A-17821, AUGUST 16, 1927, 7 COMP. GEN. 108

A-17821: Aug 16, 1927

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ARMY PAY - DESERTION WHERE A FORMER SOLDIER APPREHENDED AFTER HIS ENLISTMENT HAS EXPIRED IS TRIED BY COURT-MARTIAL FOR WAR-TIME DESERTION AND FOUND NOT GUILTY. OR THE CHARGE OF DESERTION IS REMOVED AS ERRONEOUSLY ENTERED. THE MAN IS NOT A WAR-TIME DESERTER. WILL NOT BE CONSIDERED OR TREATED FOR PAY PURPOSES AS A DESERTION FROM THE ARMY DURING THE WORLD WAR. WHERE A CHARGE OF DESERTION HAS BEEN CONTEMPORANEOUSLY ENTERED IN THE RECORD OF A SOLDIER AND THE CHARGE IS REMOVED OVER FIVE YEARS THEREAFTER AS ERRONEOUSLY ENTERED. SUCH CHANGE IN THE CONTEMPORANEOUS RECORD WILL NOT BE RECOGNIZED FOR PAY PURPOSES. AND(2) IF PAYMENT IS AUTHORIZED. THE FINAL STATEMENT SHOWS THAT SMITH WAS ACCEPTED FOR ENLISTMENT AT PEORIA.

A-17821, AUGUST 16, 1927, 7 COMP. GEN. 108

ARMY PAY - DESERTION WHERE A FORMER SOLDIER APPREHENDED AFTER HIS ENLISTMENT HAS EXPIRED IS TRIED BY COURT-MARTIAL FOR WAR-TIME DESERTION AND FOUND NOT GUILTY, OR THE CHARGE OF DESERTION IS REMOVED AS ERRONEOUSLY ENTERED, THE MAN IS NOT A WAR-TIME DESERTER. ANY DESERTION FROM THE ARMY SUBSEQUENT TO JANUARY 10, 1920, WILL NOT BE CONSIDERED OR TREATED FOR PAY PURPOSES AS A DESERTION FROM THE ARMY DURING THE WORLD WAR. WHERE A CHARGE OF DESERTION HAS BEEN CONTEMPORANEOUSLY ENTERED IN THE RECORD OF A SOLDIER AND THE CHARGE IS REMOVED OVER FIVE YEARS THEREAFTER AS ERRONEOUSLY ENTERED, ON A MEDICAL FINDING OF A CONSTITUTIONAL PSYCHOPATHIC STATE WHICH EXISTED AT DATE OF ORIGINAL ENLISTMENT, SUCH CHANGE IN THE CONTEMPORANEOUS RECORD WILL NOT BE RECOGNIZED FOR PAY PURPOSES.

ACTING COMPTROLLER GENERAL GINN TO MAJ. W. A. MACNICHOLL, UNITED STATES ARMY, AUGUST 16, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 12, 1927, SUBMITTING FINAL STATEMENT OF PVT. FRED A. SMITH (6461539), INFANTRY, UNASSIGNED, FOR DECISION (1) AS TO THE PROPRIETY OF MAKING PAYMENT THEREON, AND(2) IF PAYMENT IS AUTHORIZED, WHETHER PAYMENT SHOULD BE MADE AT THE RATE OF PAY PRESCRIBED BY SECTION 4B OF THE ACT OF JUNE 4, 1920, 41 STAT. 761, OR AT THE RATE PRESCRIBED BY SECTION 9 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629. THE FINAL STATEMENT SHOWS THAT SMITH WAS ACCEPTED FOR ENLISTMENT AT PEORIA, ILL., AND ENLISTED NOVEMBER 9, 1920; WAS HONORABLY DISCHARGED AT SAN FRANCISCO FEBRUARY 11, 1927, BY REASON OF "CERTIFICATE OF DISABILITY, PER 3D IND., HQ. 9TH C.A., DATED FEB. 8/27," THAT PAY IS DUE FROM DATE OF ENLISTMENT, AND ITEMIZES UNDER DUE SOLDIER ,ENTITLED TO PAY AS PRIVATE, ACT JUNE 4/20 FOR PERIOD NOV. 9/20 TO NOV. 21/20, AND AS PRIVATE, ACT JUNE 10/22 FOR PERIOD AUG. 31/26 TO DATE OF DISCHARGE," AND FOR CLOTHING, $4.78. THE FINAL STATEMENT CONTAINS THE FOLLOWING NOTATION:

DUE UNITED STATES FOR--- DESERTED NOV. 21/20 AT FT. MCDOWELL, CALIF. ACCOUNTS AT DATE OF DESERTION: DUE P.EX. JEFFERSON BKS., MO., TEN AND 00/100 ).10.00) DOLLARS. DUE P.EX. MCDOWELL, CALIF., FIVE AND 00/100 ($5.00) DOLLARS. DUE US QM PROPERTY SIXTY-FOUR AND 03/100 ($64.03) DOLLARS. APPREHENDED AND RETURNED TO MIL. CONTROL AUG. 31/26 AT FT. MCDOWELL, CALIF., WHILE SERVING FRAUDULENTLY UNDER THE NAME OF PVT. FRED ADAMS, 6534164, INF., UNASGD. NOT TRIED. CHARGE OF DESERTION REMOVED AS ERRONEOUSLY MADE, PER PAR. 5, S.O. NO. 11, HQ. 9TH C.A., DATED JAN. 20/27. AWOL NOV. 21/20 TO AUG. 31/26. DUE U.S. UNDER THE FRAUD.ENLMT. OF PVT. FRED ADAMS, 6534164, INF., UNASGD., FOR CLO. OVERDRAWN THIRTY- THREE AND 45/100 ($33.45) DOLLARS. DATE OF ADAMS' ENLMT. AUG. 19/26. NEVER PAID AS ADAMS. ENLMT. OF ADAMS DROPPED AS OF AUG. 30/26.

REMARKS: DISABILITY: CONSTITUTIONAL PSYCHOPATHIC STATE, INADEQUATE PERSONALITY, ASSOCIATED WITH PERIODS OF AMNESIA. ENTITLED TO TRAVEL PAY. TIME LOST UNDER THE 107TH ARTICLE OF WAR: 2,109 DAYS (AWOL NOV. 21/20 TO AUG. 31/26).

IT IS STATED THAT THE RECORDS OF THE WAR DEPARTMENT SHOW THAT SMITH'S ORIGINAL ENLISTMENT OF NOVEMBER 9, 1920, WAS FOR A PERIOD OF THREE YEARS. THE ENLISTMENT HAVING BEEN FOR THREE YEARS, OR FOR PRACTICAL PURPOSES 1,095 DAYS, IT IS NOT CORRECT OR ACCURATE TO STATE IT AS ABSENT WITHOUT LEAVE FROM SUCH ENLISTMENT 2,109 DAYS, OR 5 YEARS 284 DAYS. HAVING SERVED A PORTION OF THE ENLISTMENT, THE ABSENCE WITHOUT LEAVE, SO FAR AS MATTERS AFFECTING PAY ARE INVOLVED, IS THE REMAINING OR UNSERVED PORTION OF THE ENLISTMENT, AND NOT THE ENTIRE PERIOD ELAPSING BETWEEN DATE OF DEPARTURE AND DATE OF RETURN.

IN FORWARDING YOUR REQUEST TO THIS OFFICE THE CHIEF OF FINANCE STATED BY FIRST INDORSEMENT, DATED MARCH 19, 1927, IN PART AS FOLLOWS:

3. IN THIS CONNECTION THERE IS FOR CONSIDERATION A CERTAIN PROVISION, HEREINAFTER QUOTED, OF THE JOINT RESOLUTION OF MARCH 3, 1921 (41 STAT. 1359), WHICH PROVISION WAS NOT MENTIONED IN YOUR DECISION OF SEPTEMBER 29, 1926 (A-15792), IN THE CASE OF BEECHER ROBERTS, WHICH DECISION HAS CAUSED THE DOUBT OF MAJOR MACNICHOLL AS TO HIS AUTHORITY TO MAKE SETTLEMENT IN THE PRESENT CASE. THE LEGISLATION IN QUESTION IS IN THE FOLLOWING TERMS:

"THAT NOTHING HEREIN CONTAINED SHALL BE CONSTRUED AS EFFECTIVE TO TERMINATE THE MILITARY STATUS OF ANY PERSON NOW IN DESERTION FROM THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES.'

4. THE PROVISION OF LAW QUOTED ABOVE OPERATED TO CONTINUE OR PRESERVE SMITH'S MILITARY STATUS; AND SINCE OTHER LAWS OR REGULATIONS FIX OR SPECIFY THE MANNER IN WHICH A MILITARY STATUS SHALL BE TERMINATED NORMALLY --- THAT IS, BY DISCHARGE--- IT WOULD SEEM THAT ON THE FACTS OF THIS CASE AND UNDER THE JOINT RESOLUTION OF MARCH 3, 1921, A DUTY RESTED ON THE MILITARY AUTHORITIES TO TERMINATE SMITH'S MILITARY STATUS, CONTINUED IN EXISTENCE BY THE JOINT RESOLUTION; AND THAT THIS TERMINATION WAS ACCOMPLISHED BY DISCHARGE. IT IS APPARENTLY CONCEDED IN YOUR DECISION IN THE ROBERTS CASE THAT MILITARY PAY FOLLOWS OR IS DEPENDENT UPON, OR INCIDENT TO, MILITARY STATUS; AND SINCE, AS BEFORE STATED, THE JOINT RESOLUTION OF MARCH 3, 1921, CONTINUED SMITH'S MILITARY STATUS UNTIL PROPERLY TERMINATED BY MILITARY AUTHORITIES IT WOULD SEEM THAT THAT SOLDIER IS RIGHTFULLY ENTITLED TO PAY FOR THE PERIOD COVERED IN HIS FINAL STATEMENT AND ALSO TO THE TRAVEL PAY INVOLVED. * * *

IN THE CITED ROBERTS DECISION, A-15792, SEPTEMBER 29, 1926, IT APPEARED THAT ROBERTS, WHO WAS IN THE ARMY UNDER THE SELECTIVE SERVICE ACT OF MAY 18, 1917, 40 STAT. 82, WAS TRIED BY COURT-MARTIAL OCTOBER 27, 1925, FOR DESERTION COMMITTED APRIL 21, 1919, AND WAS FOUND NOT GUILTY. IN THE PRESENT CASE THERE HAS BEEN AN ADMINISTRATIVE FINDING (PAR. 5, S.O. NO. 11, HDQRS. 9TH CORPS AREA, DATED JANUARY 20, 1927) THAT THE CHARGE OF DESERTION ENTERED AGAINST SMITH WAS ERRONEOUSLY ENTERED. IN NEITHER CASE WAS THE FORMER SOLDIER FOUND TO BE A DESERTER FOR THE PURPOSES OF THE THIRTY-NINTH ARTICLE OF WAR, 41 STAT. 794, WHICH FIXES A LIMITATION UPON TRIALS FOR MILITARY OFFENSES"EXCEPT FOR DESERTION COMMITTED IN TIME OF WAR, OR FOR MUTINY OR MURDER.' THE REFERENCE TO THE JOINT RESOLUTION OF MARCH 3, 1921, 41 STAT. 1359, IS PROBABLY DUE TO A MISCONCEPTION AS TO ITS EFFECT. IT IS, IN PART, AS FOLLOWS:

JOINT RESOLUTION DECLARING THAT CERTAIN ACTS OF CONGRESS, JOINT RESOLUTIONS, AND PROCLAMATIONS SHALL BE CONSTRUED AS IF THE WAR HAD ENDED AND THE PRESENT OR EXISTING EMERGENCY EXPIRED

* * * THAT IN THE INTERPRETATION OF ANY PROVISION RELATING TO THE DURATION OR DATE OF THE TERMINATION OF THE PRESENT WAR OR OF THE PRESENT OR EXISTING EMERGENCY, MEANING THEREBY THE WAR BETWEEN THE IMPERIAL GERMAN GOVERNMENT AND THE IMPERIAL AND ROYAL AUSTRO-HUNGARIAN GOVERNMENT AND THE GOVERNMENT AND PEOPLE OF THE UNITED STATES, IN ANY ACTS OF CONGRESS, JOINT RESOLUTIONS, OR PROCLAMATIONS OF THE PRESIDENT CONTAINING PROVISIONS CONTINGENT UPON THE DURATION OR THE DATE OF THE TERMINATION OF SUCH WAR OR OF SUCH PRESENT OR EXISTING EMERGENCY, THE DATE WHEN THIS RESOLUTION BECOMES EFFECTIVE SHALL BE CONSTRUED AND TREATED AS THE DATE OF THE TERMINATION OF THE WAR OR OF THE PRESENT OR EXISTING EMERGENCY, NOTWITHSTANDING ANY PROVISION IN ANY ACT OF CONGRESS OR JOINT RESOLUTION PROVIDING ANY OTHER MODE OF DETERMINING THE DATE OF SUCH TERMINATION. AND ANY ACT OF CONGRESS, OR ANY PROVISION OF ANY SUCH ACT, THAT BY ITS TERMS IS IN FORCE ONLY DURING THE EXISTENCE OF A STATE OF WAR, OR DURING SUCH STATE OF WAR AND A LIMITED PERIOD OF TIME THEREAFTER, SHALL BE CONSTRUED AND ADMINISTERED AS IF SUCH WAR BETWEEN THE GOVERNMENTS AND PEOPLE AFORESAID TERMINATED ON THE DATE WHEN THIS RESOLUTION BECOMES EFFECTIVE, ANY PROVISION OF SUCH LAW TO THE CONTRARY NOTWITHSTANDING: * * * PROVIDED, HOWEVER, THAT NOTHING HEREIN CONTAINED SHALL BE CONSTRUED AS EFFECTIVE TO TERMINATE THE MILITARY STATUS OF ANY PERSON NOW IN DESERTION FORM THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES, NOR TO TERMINATE THE LIABILITY TO PROSECUTION AND PUNISHMENT UNDER THE SELECTIVE SERVICE LAW, APPROVED MAY 18, 1917 (FORTIETH STATUTES, PAGE 76), OF ANY PERSON WHO FAILED TO COMPLY WITH THE PROVISIONS OF SAID ACT, OR OF ACTS AMENDATORY THEREOF: * * *.

THIS JOINT RESOLUTION MERELY ESTABLISHED A DATE WHEN THE TECHNICAL STATE OF WAR SHOULD BE CONSIDERED AS TERMINATED, NOTWITHSTANDING PROVISIONS IN OTHER LAWS FIXING A METHOD OF DETERMINING THE END OF THE WAR, AS, FOR EXAMPLE, SECTION 4 OF THE ACT OF JUNE 15, 1917, 40 STAT. 217, WHICH PROVIDED:

THAT THE SERVICE OF ALL PERSONS SELECTED BY DRAFT AND ALL ENLISTMENTS UNDER THE PROVISIONS OF THE ACT ENTITLED "AN ACT TO AUTHORIZE THE PRESIDENT TO INCREASE TEMPORARILY THE MILITARY ESTABLISHMENT OF THE UNITED STATES," APPROVED MAY EIGHTEEN, NINETEEN HUNDRED AND SEVENTEEN, SHALL BE FOR THE PERIOD OF THE WAR, UNLESS SOONER TERMINATED BY DISCHARGE OR OTHERWISE. WHENEVER SAID WAR SHALL CEASE BY THE CONCLUSION OF PEACE BETWEEN THE UNITED STATES AND ITS ENEMIES IN THE PRESENT WAR, THE PRESIDENT SHALL SO DECLARE BY A PUBLIC PROCLAMATION TO THAT EFFECT, AND WITHIN FOUR MONTHS AFTER THE DATE OF SAID PROCLAMATION OR AS SOON THEREAFTER AS IT MAY BE PRACTICABLE TO TRANSPORT THE FORCES THEN SERVING WITHOUT THE UNITED STATES TO THEIR HOME STATION, THE PROVISIONS OF SAID ACT, IN SO FAR AS THEY AUTHORIZE COMPULSORY SERVICE BY SELECTIVE DRAFT OR OTHERWISE, SHALL CEASE TO BE OF FORCE AND EFFECT.

THE JOINT RESOLUTION OF MARCH 3, 1921, NEITHER DEFINED NOR CREATED "MILITARY STATUS" NOR PROVIDED FOR ITS CONTINUANCE OR TERMINATION. THE LANGUAGE QUOTED BY THE CHIEF OF FINANCE IS LARGELY A SAFEGUARD AGAINST INTERPRETATION OR CONSTRUCTION THAT IT TERMINATED LIABILITY FOR THE MILITARY OFFENSE OF WAR-TIME DESERTION. IF, UNDER WAR LAWS OR OTHER LAWS, THE MILITARY STATUS HAD THERETOFORE TERMINATED, THE ACT DOES NOT REVIVE THE STATUS. THE EXISTENCE OR NONEXISTENCE OF A MILITARY STATUS WAS LEFT TO BE DETERMINED BY THE FACTS OF A CASE UNDER THE LAWS CREATING AND APPLICABLE TO THAT STATUS. IN THE PRESENT CASE, SMITH WAS NOT IN SERVICE UNDER ANY OF THE WAR STATUTES TO WHICH THE JOINT RESOLUTION WAS ADDRESSED. HE WAS IN THE SERVICE BY VOLUNTARY ENLISTMENT UNDER THE PEACE- TIME LAWS FOR ENLISTMENTS IN THE REGULAR ARMY, WHICH HAD BEEN SUSPENDED BY THE ACT OF MAY 18, 1917, AND WHICH WERE REESTABLISHED WITH MODIFICATIONS BY THE ACT OF FEBRUARY 28, 1919, 40 STAT. 1211, AUTHORIZING THE RESUMPTION OF VOLUNTARY ENLISTMENTS IN THE REGULAR ARMY. THE JOINT RESOLUTION CITED IS IN NO WAY APPLICABLE TO THE FACTS OF THIS CASE NOR TO THAT OF ROBERTS. THERE WAS JURISDICTION TO APPREHEND HIM UNDER THE CIRCUMSTANCES OF BEING ABSENT WITHOUT LEAVE OR TENTATIVELY IN DESERTION UNTIL HIS STATUS WAS DETERMINED BY FORMAL MILITARY PROCEDURE. IN SUBSTANCE, THERE WAS A MILITARY CHARGE AGAINST HIM WHICH GAVE THE RIGHT TO APPREHEND HIM TO HAVE THE LEGALITY OF THE CHARGE DETERMINED. IF THE MAN WAS NOT A DESERTER, AS WAS TRUE IN BOTH CASES, HE WAS NOT A DESERTER AND THERE WAS NO JURISDICTION TO HOLD HIM. THE PROPOSITION THAT WOULD BE PRESENTED BY WHAT IS URGED IN THESE CASES IS THAT A MAN CAN BE NOT A DESERTER FOR THE PURPOSE OF CRIMINAL JURISDICTION AND PUNISHMENT AND YET BE A DESERTER FOR THE PURPOSE OF CREATING A MILITARY STATUS ON WHICH RIGHTS TO PAY MAY BE BASED. NOTHING AFFECTING PAY STATUS FOLLOWED FROM THE APPREHENSION. THE ASSERTION OF JURISDICTION WHERE NONE EXISTED DOES NOT, OF COURSE, AFFECT THE STATUS OF THE MAN.

WHILE IN THIS CASE THERE WAS NO DESERTION AND THE ASSUMED MILITARY STATUS DID NOT EXIST, THE CASES PRESENTED HERE IN CONNECTION WITH PRESUMPTIVE PAY RIGHTS ARE APPARENTLY ON THE GROUND THAT ANY DESERTION FROM THE ARMY BETWEEN NOVEMBER 11, 1918, THE DATE OF THE ARMISTICE WITH GERMANY, AND MARCH 3, 1921, THE DATE OF THE JOINT RESOLUTION, WAS DESERTION DURING WAR. IT MAY BE WELL, THEREFORE, TO CONSIDER TO WHAT EXTENT THAT VIEW IS TENABLE IN CONNECTION WITH PAYMENTS OF PUBLIC FUNDS TO THOSE SO DESERTING. A STATE OF WAR IS A FACT. IT MAY COME INTO EXISTENCE WITHOUT FORMAL DECLARATION, 7 MOORE'S DIG.INT.L. 171, ALTHOUGH IT IS CUSTOMARY FOR NATIONS TO FORMALLY DECLARE THE EXISTENCE OF A STATE OF WAR. SEE, FOR EXAMPLE, THE JOINT RESOLUTION OF APRIL 6, 1917, 40 STAT. 1, WHICH RECOGNIZES THE EXISTENCE OF A STATE OF WAR BETWEEN THE UNITED STATES AND THE IMPERIAL GERMAN GOVERNMENT. SO, ALSO, PEACE MAY BE RESTORED BETWEEN BELLIGERENTS BY THE CESSATION OF HOSTILITIES, BY THE SUBMISSION OF ONE BELLIGERENT TO ANOTHER, AND BY A TREATY OF PEACE BETWEEN THE BELLIGERENTS; A FORMAL DECLARATION THAT WAR HAS CEASED IS NOT NECESSARY. 3 PHILL.INT.L. 772; SEE ALSO 7 MOORE'S DIG.INT.L. 336.

THE ARMISTICE BETWEEN THE ALLIED AND ASSOCIATED POWERS AND GERMANY BECAME EFFECTIVE NOVEMBER 11, 1918. IN REPORTING THAT FACT TO THE CONGRESS, THE PRESIDENT STATED "THE WAR THUS COMES TO AN END.' A TREATY OF PEACE BETWEEN THE ALLIED AND ASSOCIATED POWERS AND GERMANY WAS SIGNED JUNE 28, 1919, AND BECAME EFFECTIVE AS TO GERMANY JANUARY 10, 1920,"AT 4:15 O-CLOCK P.M. BY VIRTUE OF FILING THE FIRST PROCES VERBAL OF RATIFICATION PROVIDED FOR IN ARTICLE 440" OF THE TREATY. 3 TREATIES AND CONVENTIONS BETWEEN THE UNITED STATES AND OTHER POWERS, 1910-1923, PP. 3329. THE MILITARY CLAUSES OF THE TREATY PROVIDED IN PART:

ARTICLE 159

THE GERMAN MILITARY FORCES SHALL BE DEMOBILIZED AND REDUCED AS PRESCRIBED HEREINAFTER.

ARTICLE 160

(1) BY A DATE WHICH MUST NOT BE LATER THAN MARCH 31, 1920, THE GERMAN ARMY MUST NOT COMPRISE MORE THAN SEVEN DIVISIONS OF INFANTRY AND THREE DIVISIONS OF CAVALRY.

AFTER THAT DATE THE TOTAL NUMBER OF EFFECTIVES IN THE ARMY OF THE STATES CONSTITUTING GERMANY MUST NOT EXCEED ONE HUNDRED THOUSAND MEN, INCLUDING OFFICERS AND ESTABLISHMENTS OF DEPOTS. THE ARMY SHALL BE DEVOTED EXCLUSIVELY TO THE MAINTENANCE OF ORDER WITHIN THE TERRITORY AND TO THE CONTROL OF THE FRONTIERS. * * * * * * *

(2) * * *.

(3) * * *.

THE MAINTENANCE OR FORMATION OF FORCES DIFFERENTLY GROUPED OR OF OTHER ORGANIZATIONS FOR THE COMMAND OF TROOPS OR FOR PREPARATION FOR WAR IS FORBIDDEN.

SUBSEQUENT ARTICLES PROHIBITED AN INCREASE OR REQUIRED A REDUCTION IN CIVILIAN GUARDS AND PEACE OFFICERS; REGULATED AND LIMITED THE ARMAMENT, MUNITIONS AND WAR MATERIAL THAT MIGHT BE POSSESSED OR MANUFACTURED BY GERMANY, PROHIBITED THE IMPORTATION OF SUCH MATERIAL, REQUIRED THE DISCONTINUANCE OF COMPULSORY MILITARY SERVICE, REQUIRED THE DISMANTLING OF FORTIFICATIONS, ETC., AND PROVIDED FOR SUPERVISION BY ALLIED OBSERVERS TO SECURE COMPLIANCE WITH THOSE CONDITIONS. THE ARMISTICE OF NOVEMBER 11, 1918, HAD THERETOFORE REQUIRED THE SURRENDER OF LARGE QUANTITIES OF ARMAMENT, MUNITIONS, AND MATERIALS, REQUIRED THE EVACUATION OF DESCRIBED TERRITORY BY GERMAN TROOPS, THE RESTORATION OF CERTAIN CAPTURED PROPERTY, THE SURRENDER OF ALL SUBMARINES, THE DISMANTLING OF SURFACE NAVAL VESSELS, ETC. IN OTHER WORDS, PEACE WAS SUBSTANTIALLY ESTABLISHED BY THE COMPLETE SUBMISSION OF THE ENEMY NOVEMBER 11, 1918, AND THIS WAS THE BASIS OF THE PRESIDENT'S REPORT TO THE CONGRESS THAT "THE WAR THUS COMES TO AN END.' SIMILAR ARMISTICE HAD THERETOFORE, ON NOVEMBER 3, 1918, BEEN CONCLUDED WITH AUSTRIA HUNGARY. BY A SERIES OF CIRCULARS COMMENCING WITH NO. 73 OF NOVEMBER 18, 1918, THE WAR DEPARTMENT INITIATED THE DEMOBILIZATION OF THE ARMY AND BY VARIOUS ENACTMENTS THE CONGRESS INDICATED ITS UNDERSTANDING THAT THE WAR HAD ENDED; FOR EXAMPLE, BY THE ACT OF JANUARY 7, 1919, 40 STAT. 1052, PROVISION WAS MADE FOR FURNISHING TRANSPORTATION TO THEIR HOMES OF CIVILIAN EMPLOYEES WHO CAME TO THE DISTRICT OF COLUMBIA SINCE APRIL 6, 1917, AND WHOSE SERVICES WERE NO LONGER REQUIRED; BY THE ACT OF FEBRUARY 25, 1919, 40 STAT. 1164, PROVISION WAS MADE FOR THE REINSTATEMENT OF FORMER GOVERNMENT EMPLOYEES WHO HAD BEEN DRAFTED OR ENLISTED INTO THE MILITARY SERVICE; BY THE SAME ACT, 40 STAT. 1169, ET SEQ., OVER FIFTEEN BILLIONS OF DOLLARS OF APPROPRIATIONS FOR THE MILITARY ESTABLISHMENT WERE REPEALED; BY THE ACT OF MARCH 2, 1919, 40 STAT. 1272, PROVISION WAS MADE FOR THE EQUITABLE ADJUSTMENT OF CONTRACTS MADE DURING THE WAR "AND PRIOR TO NOVEMBER 12, 1918; " BY THE ACT OF MARCH 3, 1919, 40 STAT. 1309, A "VICTORY" LOAN WAS AUTHORIZED; BY THE ACT OF JULY 11, 1919, 41 STAT. 129, THE PRESIDENT WAS AUTHORIZED TO SELL REAL PROPERTY ACQUIRED BY THE UNITED STATES SINCE APRIL 6, 1917, FOR ARMY PURPOSES. IN THE SAME ACT THE CONGRESS AUTHORIZED THE USE OF ARMY SUPPLIES "TO RELIEVE AND SUPPLY THE PRESSING NEEDS OF THE PEOPLES OF COUNTRIES INVOLVED IN THE LATE WAR; " BY THE ACT OF JULY 11, 1919, 41 STAT. 157, THE WAR-TIME CONTROL OF TELEGRAPHS WAS TERMINATED; BY THE ACT OF JULY 19, 1919, 41 STAT. 232, HEADS OF DEPARTMENTS WERE REQUIRED, IN THE PURCHASE OF SUPPLIES AND EQUIPMENT, TO SECURE THEM FROM BRANCHES OF THE GOVERNMENT "POSSESSING MATERIAL, SUPPLIES, AND EQUIPMENT NO LONGER REQUIRED BECAUSE OF THE CESSATION OF WAR ACTIVITIES.' BY SECTION 4 OF THE SAME ACT, PAGE 233, THE TRANSFER OF RECORDS AND FILES "OF THE AGENCIES CREATED FOR THE PERIOD OF THE WAR" WAS PROVIDED FOR; BY SECTION 6, CERTAIN APPROPRIATIONS OF SUCH WAR ACTIVITIES WERE COVERED INTO THE TREASURY; BY THE ACT OF JULY 26, 1919, 41 STAT. 272, THE ACT OF MARCH 2, 1913, 37 STAT. 1025, WAS AMENDED TO AUTHORIZE THE LOAN OF TENTS "TO RECOGNIZED ORGANIZATIONS OF VETERANS OF THE LATE WORLD WAR; " THE ACT OF SEPTEMBER 3, 1919, 41 STAT. 283, REVIVED THE OFFICE OF GENERAL OF THE ARMIES OF THE UNITED STATES, AUTHORIZED THE APPOINTMENT TO SUCH OFFICE OF AN OFFICER, WHO ,DURING THE RECENT WAR" HAD BEEN ESPECIALLY DISTINGUISHED IN THE HIGHER COMMAND OF MILITARY FORCES OF THE UNITED STATES ON FOREIGN SOIL. SUCH EXAMPLES COULD BE MULTIPLIED. SUFFICIENT HAS BEEN CITED TO SHOW THAT BY THE LEGISLATION OF THE CONGRESS THE END OF ACTUAL WAR WAS CLEARLY RECOGNIZED.

THE JOINT RESOLUTION OF MARCH 3, 1921, HAD FOR ITS OBJECT THE TERMINATION OF AUTHORITY IN THE CHIEF EXECUTIVE UNDER CERTAIN STATUTES EFFECTIVE DURING THE WAR. ITS LANGUAGE CLEARLY SO SHOWS, AND THAT RESOLUTION IS NOT INCONSISTENT WITH A STATE OF PEACE WHICH HAD BECOME EFFECTIVE THERETOFORE.

THE THIRTY-NINTH ARTICLE OF WAR FIXES A LIMITATION UPON AMENABILITY FOR MILITARY FENSES,"EXCEPT FOR DESERTION COMMITTED IN TIME OF WAR OR MUTINY OR MURDER.' THIS ARTICLE HAS FOR ITS PURPOSE THE ADEQUATE PUNISHMENT OF ONE OF THE GREATEST MILITARY OFFENSES. IT IS CLASSED BY THE STATUTE IN THIS EXCEPTION WITH MUTINY AND MURDER. THE PUNISHMENT IS SUCH AS A COURT- MARTIAL MAY IMPOSE; THAT IS, IT MAY BE PUNISHED BY DEATH. THERE ARE MANY MILITARY REASONS FOR SUCH SEVERITY, BUT THEY ALL REST UPON THE EXISTENCE OF AN ACTUAL, NOT A THEORETICAL OR TECHNICAL ENEMY. SEE WAR DEPARTMENT PUBLICATION MILITARY JUSTICE DURING THE WAR, GOVERNMENT PRINTING OFFICE, 1919, PAGE 35, ET SEQ. SO FAR, THEREFORE, AS MATTERS OF PAY ARE CONCERNED AND UNTIL THERE HAS BEEN A JUDICIAL DETERMINATION OTHERWISE, DESERTION FROM THE ARMY SUBSEQUENT TO JANUARY 10, 1920, THE EFFECTIVE DATE OF THE TREATY OF JUNE 28, 1919, WILL BE TREATED AND CONSIDERED BY THIS OFFICE AS DESERTION IN TIME OF PEACE AND ACTION WILL BE ACCORDINGLY. YOU ARE NOT AUTHORIZED TO PAY THE VOUCHER. TRAVEL PAY IS NOT PAYABLE, THE MAN NOT HAVING BEEN IN THE MILITARY SERVICE AT THE TIME OF HIS PURPORTED DISCHARGE. FOR PAY PURPOSES THE MAN IS CONSIDERED A DESERTER IN TIME OF PEACE, THE ACTION OF ARMY AUTHORITIES IN "REMOVING" THE CHARGE OF DESERTION AS ERRONEOUSLY ENTERED, BASED ON A PATHOLOGICAL CONDITION ASSUMED TO HAVE EXISTED OVER FIVE YEARS BEFORE NOT BEING EVIDENCE OF ERROR AUTHORIZING A CHANGE OF A CONTEMPORANEOUS RECORD.