A private in the Marine Corps of the United states, discharged
from the service as a person of bad character and unfit for service
by order of the Secretary of the Navy through the Commandant of the
Corps, without court-martial or other competent military
proceeding, forfeits thereby his retained pay under the provisions
of Rev.Stat. § 1251, but he may claim and recover his
transportation and subsistence from the place of his discharge to
the place of his enlistment, enrollment, or original muster into
the service, under the provisions contained in Rev.Stat. §
1230.
This was an appeal by the United States from a judgment of the
Court of Claims, 24 Ct.Cl. 219, awarding to the petitioner, Joseph
F. Kingsley, $73.30 for "retained pay," and for transportation and
subsistence from the place of his discharge to that of his
enlistment. The finding of the Court of Claims was as follows:
"
Findings of Fact"
"This case having been heard before the Court of Claims, the
court, upon the evidence, finds the facts to be as follows: "
Page 138 U. S. 88
"1. August 12, 1882, the claimant enlisted as a private in the
marine corps of the United States at Brooklyn, N.Y."
"October 3, 1884, he was promoted to a corporal."
"September 4, 1885, he was reduced to a private."
"June 4, 1887, he was discharged from the marine corps at the
Marine barracks, Navy Yard, Washington, D.C."
"2. The cause of discharge appears in the following
correspondence and order:"
"Marine Barracks, Navy Yard"
"Washington, D.C. May 28, 1887"
" Sir: I have to respectfully request that private Joseph F.
Kingsley, of this command, may be discharged from the service, as
he is utterly worthless, and his character is bad; he is also a
very disturbing element in the garrison. I enclose herewith his
staff returns, also a list of his offenses."
" Very respectfully, your obedient servant,"
"P. C. POPE"
"
Captain U.S. Marine Corps, Commanding Marines"
"
C. G. McCauley, Colonel Commandant."
"
List of Offenses:"
" October 11, 1886. Twenty-four hours over leave."
" October 21, 1886. Creating disturbance in quarters."
" December 3, 1886. Drunk in garrison."
" December 24, 1886. Insubordination and disrespect to sergeant
of the guard, tried by summary court-martial, sentenced thirty days
D. I., solitary confinement."
" February 23, 1887. Over leave."
" April 5, 1887. Improper conduct at target practice."
" May 20, 1887. Absent without leave."
" May 26, 1887. Insubordination and disrespect to the officer of
the day."
"These reports were forwarded through the official channels to
the Secretary of the Navy, and thereafter the following order was
issued: "
Page 138 U. S. 89
"Headquarters U.S. Marine Corps"
"Washington, D.C. May 31, 1887"
" Sir: Be pleased to discharge 'by order of the Secretary of the
Navy, as unfit for service, character bad,' . . . private Joseph F.
Kingsley at the Marine barracks, Navy Yard, Washington, D.C. (upon
the report of his commanding officer, dated the 28th instant.)"
"Very respectfully, C. G. MCCAULEY"
"
Colonel Commandant, U.S. Marine Corps."
"The Adjutant and Inspector, U.S. Marine Corps
Headquarters."
"June 4, 1887, in pursuance of this order, the claimant was
discharged."
"3. It does not appear that he demanded to be tried by
court-martial, or protested against his discharge."
"4. He has not received any 'retained pay' under section 1281 of
the Revised Statutes, nor transportation and subsistence from the
place of discharge to the place of enlistment under section 1290.
He has, however, received all other pay and allowances."
"The distance from Washington Navy Yard to Brooklyn is 228
miles."
"5. Under the practice of the accounting officers of the
Treasury Department enlisted men of the marine corps have been held
to be entitled to all the benefits of sections 1281 and 1290 of the
Revised Statutes."
"
Conclusions of Law"
"Upon the foregoing findings of facts, the court decides as
conclusions of law that the claimant is entitled to recover for
'retained pay' under section 1281 of the Revised Statutes, $65.20,
and for transportation and subsistence, under section 1290,
$8.10."
From the judgment entered upon this finding, the defendant
appealed to this Court.
Page 138 U. S. 90
MR. JUSTICE BROWN, after stating the facts as above, delivered
the opinion of the Court.
(1) Claimant's right to retained pay depends upon Rev.Stat. §
1281, which reads as follows:
"To the rates of pay stated in the preceding section, one dollar
per month shall be added for the third year of enlistment, one
dollar more per month for the fourth year, and one dollar more per
month for the fifth year, making in all three dollars increase per
month for the last year of the first enlistment of each enlisted
man named in said section. But this increase shall be considered as
retained pay, and shall not be paid to the soldier until his
discharge from the service, and shall be
forfeited unless
he serves honestly and faithfully to the date of discharge."
To entitle the soldier to this retained pay, it is therefore
necessary to show first his discharge from the service; second, an
honest and faithful service to the date of discharge. It was held
by the Court of Claims, however, that to deny his right to retained
pay, a
forfeiture must have been considered and declared
by a court-martial or other military authority having jurisdiction
in the premises, and that the question of honest and faithful
service, required by the section, was not one that could be tried
in a collateral proceeding. We are unable to concur in this
opinion. 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 judgment, but
rather in the sense of a disability incurred by the nonperformance
of a contract. A similar meaning is attached to the word when used
in connection with the claim of a mariner for his wages. By his
contract of shipment, the seaman also bargains for honest and
faithful service and obedience to the lawful commands
Page 138 U. S. 91
of the master and other officers of his vessel, and, in case of
desertion or gross misconduct, it is the constant practice of
courts of admiralty to forfeit the whole or a part of his wages,
irrespective of the actual damage suffered by the owner or master
of the vessel.
The Balize, Brown's Adm. 424. In an action
at common law, however, such wages are not subject to forfeiture,
but a deduction is made therefrom commensurate with the damages
actually sustained. The statute under consideration imposes a like
forfeiture for a breach of the soldier's contract of enlistment,
irrespective of any actual damages occasioned by his misconduct,
and such forfeiture may be declared by the court in which he brings
his action, as well as by the judgment of a court-martial. Indeed,
the word in this connection means nothing more than an incapacity
to recover, by reason of misconduct, irrespective of any actual
damages; or, as defined by Worcester, "to lose by some breach of
condition; to lose by some offense."
We are confirmed in this view by an examination of
United
States v. Landers, 92 U. S. 77, which
was an action for bounty and pay, wherein MR. JUSTICE FIELD,
speaking for the Court, says:
"Forfeiture of pay and allowances up to the time of desertion
follows from the conditions of the contract of enlistment, which is
for faithful services. The contract is an entirety, and if service
for any portion of the time is criminally omitted, the pay and
allowances for faithful service are not earned. And for the purpose
of determining the rights of the soldier to receive pay and
allowances for past services, the fact of desertion need not be
established by the findings of a court-martial; it is sufficient to
justify a withholding of the moneys that the fact appears upon the
muster rolls of his company. If the entry of desertion has been
improperly made, its cancellation can be obtained by application to
the War Department. But forfeiture of pay and allowances for future
services, as a condition of restoration to duty, can only be
imposed by a court-martial."
That the accounting officers of the Treasury were justified in
withholding the pay of the claimant in this case is manifest by the
numerous offenses of which he appears, from the report
Page 138 U. S. 92
of his commanding officer, to have been guilty. This record
furnishes a clear case of failure to furnish the honest and
faithful service demanded by the statute.
(2) Different considerations apply to his claim for
transportation and subsistence from the place of discharge to the
place of enlistment. The right to this depends upon section
1290:
"When a soldier is discharged from the service, except
by
way of punishment for an offense, he shall be allowed
transportation and subsistence from the place of his discharge to
the place of his enlistment, enrollment, or original muster into
the service. The government may furnish the same in kind, but in
case it shall not do so, he shall be allowed travel pay and
commutation of subsistence for such time as may be sufficient for
him to travel from the place of discharge to the place of his
enlistment, enrollment, or original muster into the service,
computed at the rate of one day for every twenty miles."
We think this statute contemplates a discharge as a punishment
inflicted by the judgment of a court-martial or other military
authority for a specific offense, and not such a discharge as was
issued in this case -- for unfitness for service and general bad
character. While this may justify the proper authorities in
ordering the discharge of the soldier as a worthless member of the
service, we cannot consider such a discharge as "a punishment for
an offense" within the meaning of the statute. The question whether
such punishment must necessarily be awarded by the judgment of a
court-martial is not presented by the record, and we express no
opinion upon the point.
The judgment of the Court of Claims must therefore be
Reversed, and the case remanded, with directions to set
aside the judgment already rendered, and to enter a new judgment in
favor of the claimant for $8.10, for his transportation and
subsistence.