right. The only point made in his behalf is that the record of his desertion was canceled, and that he received an honorable discharge; the commandant of the Marine Corps claiming the right, by reason of the decision of the Secretary of the Navy of December 8, 1885, to remove the mark of desertion. Granting that this be true it still fails to go to the extent of authorizing the payment to him of the retained pay. The fact of his desertion exists the same whether it appears on his record of discharge or not, and the consequences flowing from that fact can not be avoided by the declaration of the commandant upon his discharge paper. He is not relieved from the consequences which the law attaches to his acts by the fact that he may have subsequently received honorable discharge.

In this case the marine was absent from his post without leave for a period of eight months without any explanation of his conduct, and the presumption arises that he intended to desert, as he did in fact leave the service, the gist of the offense lying in the animus non revertendi. That he subsequently changed his mind and surrendered himself to the proper authorities, and, by good conduct and an additional service of time beyond the date of his enlistment, so commended himself to his superior officers that they were willing to give him an honorable discharge, does not relieve him from the consequences of his act of desertion so far as the forfeiture of his retained pay is concerned. The very fact that he was required to make up the time lost during his absence shows conclusively that this was a case of desertion, and not absence without leave. (General Orders, No. 16, February 8, 1865, am ding 158, article 18, Revised Army Regulations.)

In the Digest of Opinions of the Judge Advocate-General of the Army (Winthrop, 1895), upon page 573, it is stated that

"It is not essential to the forfeiture by the soldier of his retained pay that he should be discharged without honor. If he has deserted, he forfeits this pay under the act of June 16, 1890, as not having served honestly and faithfully, even if after his desertion he has been restored to duty without trial. So, where the deserter has been tried and sentenced to a period of confinement without dishonorable discharge, and at the end of such period has returned to duty and served out his term of service, receiving an honorable discharge, he is not entitled to his retained pay.

"Further, under paragraph 1503, A. R., as amended by Gen

eral Orders, No. 56, 1891, a soldier may be discharged by the order of the Secretary of War specifying forfeiture of retained pay, and yet the discharge be not without honor."

It is not necessary that there should be a finding of courtmartial to deprive a soldier of this retained pay.

"By his enlistment the soldier contracts for honest and faithful service, and the rendition of such service is a condition precedent to his right to recover his retained pay. The fact that he has not rendered such service may be shown as well by his military record as by the judgment of a court-martial. It is true the word 'forfeited' is used in the statute, but we think it is not used in the technical sense of a punishment after judg. ment, but rather in the sense of a disability incurred by the nonperformance of a contract." (United States v. Kingsley, 138 U. S., 87, 90.)

To the same effect is United States v. Landers (92 U. S., 77, 79), where it is stated that

"For the purpose of determining the rights of a soldier to receive pay and allowance for past services the fact of desertion need not be established by the findings of a court-martial. It is sufficient to justify the withholding of the moneys that the fact appears upon the muster rolls of his company."

This case also draws a proper distinction between it and the case of United States v. Kelly (15 Wall., 34), cited in behalf of this claimant, which only holds that the soldier who voluntarily returns from desertion and is restored to duty without trial by his department commander, on the condition that he makes good the time lost, may be honorably discharged at the expiration of his term of service, and hence be entitled to bounty, notwithstanding the desertion. No such condition attaches to the payment of bounty as to retained pay, for in the acts relating to retained pay honest and faithful service is a necessary pre cedent.

The action of the Auditor is accordingly sustained.

EDW. A. BOWERS,

Acting Comptroller.

IN RE CLAIM OF WILLIAM H. PETERS, LATE FIFER, UNITED STATES MARINE CORPS, FOR RETAINED PAY.

An enlisted man of the Marine Corps discharged by order of the Secretary of the Navy for bad conduct and with forfeiture of retained pay (section 1 of the act of June 16, 1890, sections 1281 and 1282, Revised Statutes, paragraph 1503, Army Regulations) is precluded by such order from receiving retained pay.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,
November 9, 1895.

The claimant enlisted in the United States Marine Corps on March 26, 1891, to serve six years eleven months and twelve days, or until he attained his majority. He was discharged June 29, 1895, by direction of the Secretary of the Navy for bad conduct, and with forfeiture of his retained pay.

In presenting his claim to the Auditor he claims "retained pay as follows: First year, $48, act of June 16, 1890, and $45.20 under section 1281, Revised Statutes."

The Auditor disallowed his claim for the following reasons: "Under the provisions of the Revised Statutes (sections 1281 and 1282), which declare that the retained pay therein provided is forfeited unless the soldier serve honestly and faithfully to the date of discharge. (United States v. Kingsley, 138 U. S., 87.)

"Second. The act of June 16, 1890 (26 Stat., 157), having been construed by the Attorney-General (19 Opin. A. G., 616) to apply to the enlisted men of the Marine Corps; and the Secretary of War having decided that enlisted men of the Army discharged by orders from the War Department, specifying forfeiture of retained pay,' General Orders, No. 127, Adjutant-General's Office, October 27, 1890; and the Secretary of the Navy having ordered the discharge of the claimantas unfit for the service, with forfeiture of retained pay,' the pay retained from him under the act of June 16, 1890, is also disallowed.

"The record shows that Peters did not serve honestly and faithfully to the date of his discharge."

He now appeals from this decision of the Auditor, limiting his appeal, however, to the $48 retained from his pay under the act of June 16, 1890. In view of the decision in United States v. Kingsley the decision of the Auditor as to that portion of his pay retained under sections 1281 and 1282 was unquestionably correct, and as he has not appealed as to that portion of the decision we may treat his original claim to the $45.20 as abandoned, and in any event correctly decided by the Auditor.

The first ground of his appeal is practically that at the date of discharge the act of June 16, 1890, had been repealed, and that, therefore, the Secretary of the Navy had no authority to declare a forfeiture thereunder. This appears to be based upon the following words in the appropriation bill, approved February 12, 1895 (28 Stat., 655):

"And so much of the act approved June 16, 1890, as provides

that four dollars per month shall be retained from the pay enlisted men is hereby repealed."

of

Clearly the interpretation contended for by the claimant is not admissible, for only that portion of the act is repealed which provides for the retention of the $4 per month during the first year of the service. The single effect of this clause is to discontinue the withholding of the $4 per month of the soldier's pay after February 12, 1895, the date of this repeal. There is no direction as to the disposition to be made of that already withheld, and as to that we must therefore follow the existing law and practice, which is to pay it at the expiration of enlistment provided the service has been "honest and faithful." As the purpose of retained pay is to insure, throughout the enlistment, faithful service, the law itself makes it a condition precedent to its acquisition that such pay should only be given the man at the date of the expiration of his enlistment, and then only for honest and faithful service.

The second ground urged is that—

"There is nothing on the discharge certificate to indicate that a forfeiture was intended, as would appear to be necessary by the first proviso of said act of June 16, 1890."

From the papers in the case it appears that the claimant was discharged June 29, 1895, at Washington, D. C., "by direction of the Secretary of the Navy, as unfit for the service; character, 'bad,' with forfeiture of retained pay, upon the report of his commanding officer."

This report was as follows:

"MARINE BARRACKS, WASHINGTON, D. C.,
“June 21, 1895.

"SIR: (1) I would respectfully submit for your consideration the following report in relation to Fifer William H. Peters, of this command:

"(2) Fifer Peters enlisted at this post March 26, 1891, since which time he has served here and at the barracks at Portsmouth, N. H., and the navy yard, Washington, D. C. He rejoined from the latter post February 7, 1895.

"(3) His record at this post is as follows: March, 1892, smuggling liquor; April, 1892, scaling wall; July, 1892, fighting in quarters; September, 1892, having liquor in garrison; December, 1892, drunk in quarters; May, 1893, scaling wall; March, 1895, drunk and disorderly in garrison; March, 1895, disorderly conduct as prisoner; April, 1895, drunk from liberty and disorderly; May, 1895, using obscene and abusive language in mess hall; May, 1895, smuggling cigarettes into

cell and smoking while a prisoner; June, 1895, disorderly conduct, maltreating boy Dierking; June, 1895, leaving garrison without authority while on the restricted list.

"(4) In view of this record I would respectfully recommend the discharge of Fifer Peters as unfit for the serivce.

"Very respectfully,

"PAUL ST. C. MURPHY,

"Captain, U. S. Marine Corps, Commanding Post.

"THE COLONEL COMMANDANT,

"U. S. Marine Corps, Washington, D. C."

The claimant also contends that by forfeiture of retained pay is meant only that referred to in section 1281, but neither of these two contentions can be sustained, for under paragraph 1503 of the Army Regulations as now amended by General Orders, No. 56, it is provided that—

"The retained pay provided in sections 1281 and 1282, Revised Statutes, and section 1 of the act of June 16, 1890, is forfeited for the following causes: First, desertion during the period of enlistment; second, when the soldier is in confinement under a general court-martial sentence expressly imposing imprisonment until or beyond the expiration of his term, or his discharge under sentence of general court-martial, or by order of the War Department specifying forfeiture, or because of imprisonment by civil authority," etc.

This regulation is made to apply both to sections 1281 and 1282 of the Revised Statutes and also to the act of June 16, 1890, and under the decision of the Attorney-General governs the Marine Corps:

"The provisions of the act of June 16, 1890, entitled 'An act to prevent desertions from the Army, and for other purposes,' are applicable to enlisted men of the Marine Corps by force and effect of section 1612, Revised Statutes." (19 Opin. A. G., 616.)

The words in italics in the above regulation are sufficient to justify the refusal to allow the claimant to obtain this retained pay, as in this case the Secretary's order discharging him from the service is for the following reason:

"As unfit for the service, character 'bad,' with forfeiture of retained pay."

This is the official determination of the Secretary of the Navy, that the claimant's misconduct has constituted "a failure to render honest and faithful service," as provided in the first section of the act of June 16, 1890, which reads as follows:

"That from and after the first day of July, eighteen hundred