United States v. Kelly, 82 U.S. 34 (1872)

U.S. Supreme Court

United States v. Kelly, 82 U.S. 15 Wall. 34 34 (1872) United States v. Kelly

82 U.S. (15 Wall.) 34

APPEAL FROM THE

COURT OF CLAIMS

Syllabus

A soldier who had deserted but was restored to duty by order of his department commander, without trial, on condition that he make good the time lost (about two months), and who complied with the condition and was honorably discharged at the expiration of his term of service, held entitled to bounty money notwithstanding his desertion.

This was an appeal by the United States from a judgment of the Court of Claims in favor of one Kelly, lately a soldier in the army of the United States, for an unpaid balance of bounty money.

The claim was denied by the pay department on the ground that the bounty had been forfeited by desertion.

Page 82 U. S. 35

The case as found by the court was that the petitioner had deserted, but was restored to duty by order of his department commander, without trial, on condition that he make good the time lost, about two months; that he complied with the condition, and was honorably discharged at the expiration of his term of service.

Page 82 U. S. 36

THE CHIEF JUSTICE delivered the opinion of the Court.

We do not think that, under the circumstances of the present case, the bounty was forfeited. The able lawyer who fills at present the post of Judge Advocate General, in a case similar to the present, held that

"The honorable discharge of the deserter was a formal final judgment passed by the government upon the entire military record of the soldier, and an authoritative declaration by it that he had left the service in a status of honor; that as such, it dispensed altogether with the supposed necessity that the soldier must obtain bounty by removal, by order, of the charge of desertion from the rolls, and amounted of itself to the removal of any charge or impediment in the way of his receiving bounty."

With this opinion we entirely concur.

Judgment affirmed.