A cadet at the West Point Military Academy is not an officer of
the United States Army within the. meaning of §§ 1229, 1342,
Rev.Stat., and, if delinquent, may be dismissed by the President
without trial and conviction by court-martial.
Appellant filed a petition in the Court of Claims to have
declared void his dismissal from the United States Military Academy
at West Point, and for judgment for his pay as a cadet from July
27, 1883, to July 1, 1889, amounting to $3,417.
The appellant was duly appointed a cadet in the Military Academy
on the first day of July, 1880, and served as such until the
twenty-seventh of July, 1883, when he was summarily dismissed, by
order of the President, upon charges of maltreating a new cadet
upon guard, as well as other improper conduct. After the dismissal
of appellant, another cadet was appointed to succeed him, was duly
graduated from the Academy, and appointed and commissioned a second
lieutenant in the Army, and subsequently a captain of the
Twenty-fifth Regiment of Infantry.
The appellant, subsequently to his dismissal, presented
petitions respectively to the Adjutant General of the Army and to
the Secretary of War in which he asserted his innocence of the
charges made against him, and prayed for reinstatement or trial by
court-martial. He also presented a petition April 21, 1888, to the
President, asking for a revocation of the order of dismissal, a
trial by court-martial, and for an order assigning and appointing
him to the Army as of the date of the assignment of the last
graduate of his class. The petitions were all denied.
The Court of Claims held that he was not entitled to recover,
and dismissed his petition. 38 Ct.Cl. 346.
Page 196 U. S. 171
MR. JUSTICE McKENNA delivered the opinion of the Court.
The contention of appellant is that, as a cadet, he was an
officer in the Army within the meaning of section 1229 of the
Revised Statutes of the United States, and could only have been
dismissed from the Academy upon trial and conviction by
court-martial, as provided in that section.
That section provides as follows:
"The President is authorized to drop from the rolls of the Army
for desertion any officer who is absent from duty three months
without leave, and no officer so dropped shall be eligible for
reappointment. And no officer in the military or naval service
shall in time of peace be dismissed from service except upon and in
pursuance of the sentence of a court-martial to that effect, or in
commutation thereof."
In the Articles of War, enacted by section 1342 of the Revised
Statutes, the word "commutation" is changed to "mitigation." Art.
99.
The first impression of claimant's contention is that it ignores
obvious distinctions, and makes a state of preparation for a
position the same as the position itself, and claims its
Page 196 U. S. 172
sanction for one who is not bearing its responsibilities or
capable of discharging its duties. And an examination of the
Revised Statutes relating to the organization of the Army confirms
the impression.
Manifestly it is impossible to reproduce all the sections of the
Revised Statutes applicable to the military establishment, and we
will only observe that they distinguish between the Army proper and
the Military Academy, and make a distinction between an officer and
a cadet. A few citations only are necessary.
Title XIV of the Revised Statutes of the United States provides
for the organization of the Army of the United States. The name,
rank, and function of each officer is provided for, and section
1213 explicitly states when a cadet shall become an officer. That
section enacts that, when a cadet shall have regularly graduated
from the Academy he "shall be considered a candidate for a
commission in any corps for whose duties he may be deemed
competent." He then becomes a commissioned officer. Prior to that
time, he is denominated a cadet, appointed as a cadet, and
provision made for him under that name and state. He becomes an
officer when he ceases to be a cadet -- that is, when he has
finished his pupilage, or, as section 1213 expresses it, when "he
has gone through all his classes and received a regular degree from
the academic staff" and commissioned. And his government while a
cadet is provided for in chapter 5 of title XIV.
A cadet may be in the Army (section 1094), may be an officer in
a certain sense, as distinguished from an enlisted man, as it is
contended by counsel for the government he is, but nevertheless
section 1229 does not apply to him. That section is one of a number
of provisions for the organization and government of the Army,
distinct from, and having no relation whatever to, the provisions
for the government of the Military Academy and the cadets. Section
1229 is made part of, and the word "officer" given exact definition
by, section 1342, which provides as follows:
Page 196 U. S. 173
"SEC. 1342. The armies of the United States shall be governed by
the following rules and articles: the word 'officer,' as used
therein, shall be understood to designate commissioned officers;
the word 'soldier' shall be understood to include noncommissioned
officers, musicians, artificers, and privates, and other enlisted
men, and the convictions mentioned therein shall be understood to
be convictions by court-martial."
By article 99, it is enacted:
"No officer shall be discharged or dismissed from the service
except by order of the President or by sentence of a general
court-martial, and in time of peace, no officer shall be dismissed
except in pursuance of the sentence of a court-martial or in
mitigation thereof."
It is only a commissioned officer, therefore, who is entitled to
the protection of a general court-martial, and a cadet is not a
commissioned officer.
The argument of appellant contending against this construction
of the statute is not easy to reproduce or make clear, and it
involves the anomaly that there can be an officer in the Army of
the United States who is not covered by the Articles of War,
notwithstanding the declaration of section 1342 that the Armies of
the United States shall be governed by those articles.
The object of the argument is to make independent section 1229
of section 1342, and to give a cadet the protection expressed by
the former, on the ground that a cadet is an officer, but not a
commissioned officer. That a cadet is an officer is deduced from
the fact that he is appointed by the President, takes an oath to
obey his "superior officers," and receives pay. But, as we have
already intimated, it is not necessary to dispute that a cadet is
an officer. Whether he is or not is not the question in the case.
The question is whether section 1229 applies to him, and to so
construe it would seemingly give it no application except to cadets
(and officers in the naval service), and transfer it from the
government of the Army to the government of the Academy -- and, we
may observe,
Page 196 U. S. 174
would render the distinction implied by it between a time of
peace and a time of war almost meaningless. It is nevertheless
contended by appellant that section 1229 is unaffected by section
1342 and the Articles of War, but is a part of section 1326, which
gives the superintendent of the Academy the power to convene
general courts-martial for the trial of cadets. In other words, the
contention is that section 1326 is not merely a grant of power to
the superintendent of the Academy to convene courts-martial for the
trial of cadets, but commands him to do so, and, it would seem,
necessarily, for every infraction of discipline. What, it may be
asked, under the contention of appellant, is the relation between
section 1326 and section 1325? By the latter section, there can be
deficiency in studies as well as conduct. Can there be no discharge
from the Academy for deficiency in studies except upon and in
pursuance of a court-martial to that effect?
The cases cited by appellant do not conflict with these views.
United States v. Morton, 112 U. S. 1, decides
only that the time of service as a cadet was actual time of service
in the Army within the meaning of the statutes giving longevity pay
to officers. In
United States v. Baker, 125 U.
S. 646, and
United States v. Cook, 128 U.
S. 254, statutes giving longevity pay to officers in the
Navy were construed, and it was held that a cadet midshipman was an
officer of the Navy. The reasoning of the Court, however, has no
application to the construction of sections 1229 and 1342.
The power of the President to dismiss a delinquent cadet we do
not understand is questioned, except as that power is affected by
sections 1229 and 1342. We may, however, refer to
Matter
of Hennen, 13 Pet. 259;
Blake v. United
States, 103 U. S. 227,
103 U. S. 236;
Mullan v. United States, 140 U. S. 240;
Parsons v. United States, 167
U. S. 334;
Shurtleff v. United States,
189 U. S.
314.
Judgment affirmed.