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to such officers, noncommissioned officers, and privates as have most distinguished, or may hereafter most distinguish themselves in action.' Sec. 6, act of March 3, 1863. 1357. The Secretary of War * * is hereby authorized

*

to issue to any person to whom a medal of honor has been awarded, or may hereafter be awarded, under the provisions of the joint resolution approved July twelfth, eighteen hundred and sixty-two, and the act approved March third, Rosette, or eighteen hundred and sixty-three, a rosette or knot to be worn in lieu of the medal, and a ribbon to be worn with the medal; said rosette, or knot, and ribbon to be each of a pattern to be prescribed and established by the President of the United States; and any appropriation that may hereafter be available for the contingent expenses of the War Department is hereby made available for the purposes of this act: Provided, That whenever a ribbon issued under the provisions of this act shall have been lost, destroyed, or rendered unfit for use, without fault or neglect on the part of the person to whom it is issued, the Secretary of War shall cause a new ribbon to be issued to such person without charge therefor. Joint Resolution No. 51, May 2, 1896 (29 Stat. L., 473).

New ribbon.

CERTIFICATES OF MERIT.

Certificate

merit.

of 1358. When any enlisted man of the Army shall have distinguished himself in the service the President may, at the recommendation of the commanding officer of the

This provision was not embraced in the Revised Statutes. Medals of honor will be awarded by the President to officers and men who most distinguish themselves in action. (Par. 177, A. R., 1895; see also G. O. 42, A. G. O., 1897, and G. O. 135, A. G. O., 1899.)

The original enactments of 1862 and 1863, providing for the award of medals of honor, and appropriating moneys for the expenses of the same, evidently contemplated a personal presentation to the selected recipient. Such is also inferably the design of the present Army Regulations, wherein (Art. XXV) the medal of honor is assimilated to the certificate of merit, each being manifestly intended to honor and distinguish the recipient in person. Held therefore that (except by special authority of Congress) a medal of honor could not legally be awarded to the widow, or a member of the family, of a deceased officer, on account of distinguished service in action performed by the latter during his lifetime. (Dig. Opin. J. A. G., par. 1655.)

Par. 175, A. R., 1901, like the provision upon which it is based, of the act of March 3, 1863, is deemed to contemplate, in a case of an award to an officer, that the person shall be a commissioned officer of the Army at the time of the award. A contract or acting assistant surgeon is not, and was not at any time, such a commissioned officer. Held therefore that a medal of honor could not legally be awarded to a person for alleged distinguished service rendered while serving in the field as an acting assistant surgeon in 1864, who moreover had had no connection with the Army since 1865. (Ibid., par. 1656; see also XX Opin. Att. Gen., 421.)

Act of

Mar 3, 1847, c. 61. s. 17, v. 9, p. 186; Aug 4, 1854,

c.217.3.3.v. 10. p.

575, Feb. 9. 1891,

Extra pay.
Sec. 1285, R.S.

regiment or the chief of the corps to which such enlisted man belongs, grant him a certificate of merit.' March 29, 1892 (27 Stat. L., 12). v. 26, p. 737; Mar. 29, 1892, v. 27, p. 12. Sec. 1216, R.S. 1359. A certificate of merit granted to an enlisted man for distinguished service shall entitle him, from the date of such service, to additional pay at the rate of two dollars per month while he is in the military service, although such service may not be continuous.1 Sec. 2, act of Feb. Feb.9.1891, s. 2, ruary 9, 1891 (26 Stat. L., 737).

v. 26, p. 737.

CORPS BADGES AND INSIGNIA OF SOCIETIES.

badges.

Public Res. No.

73,

v. 15, p. 261.

Sec. 1227, R.S.

1360. All persons who have served as officers, noncom- Army corps missioned officers, privates, or other enlisted men in the July 25, 1868, Regular Army, volunteer or militia forces of the United States, during the war of the rebellion, and have been honorably discharged from the service or still remain in the same, shall be entitled to wear, on occasions of ceremony, the distinctive Army badge ordered for or adopted by the Army corps and division, respectively, in which they served.

Military soci

ety badges may be worn by Army and Navy.

1361. That the distinctive badges adopted by military societies of men who served in the armies and navies of the United States in the war of the Revolution, the war J. R. No. 50, of eighteen hundred and twelve, the Mexican war, and 26, p. 681. the war of the rebellion, respectively, may be worn upon

Sept. 25, 1890, v.

1Held, under section 1216, Revised Statutes, as amended by the act of rebruary 9, 1891, as follows: 1. A certificate of merit may now be granted to "an, enlisted man of the Army," noncommissioned officer as well as private. (a) 2. It may be granted for distinguished conduct prior to the date of the act of February 9, 1891, as well as since. (b) 3. The grantee must belong to a regiment. 4. While the recommendation of the regimental commander is necessary, this recommendation may be based upon any fact or facts deemed by him to justify it, such as the recommendation of the company commander or any other officer (whether of the regiment or not) cognizant of the circumstances of the case, or upon any other authentic information brought to his (the regimental commander's) knowledge. 5. That the declaration of paragraph 197, Army Regulations, 1901, that the recommendation "must originate with an eye witness," is an interpolation not autnorized nor called for by the original statute (sec. 1216, R. S.), or by the recent amendment of 1891, and an instance of quasi legislation unwarranted in an army regulation. Dig. Opin. J. A. G., par. 668.

Held, under section 1216, construed in connection with section 1285, Revised Statutes, that the President was authorized to grant a certificate of merit only to a soldier belonging at the time of the grant to a regiment of the Army; that he was not empowered to grant such a certificate to a discharged soldier and civilian on account of services rendered while he was a soldier. (c) Ibid., par. 667.

ain Bell r. U. S., 28 Ct. Cls., 462, it was held that a soldier to whom, when a member of an infantry regiment, had been granted a certificate of merit, was entitled to continue to receive the additional pay after reenlisting in the "general messenger service."

See McNamara v. U. S., 28 Ct. Cls., 416, where it is held that the act of February 9, 1891, is retroactive, and entitles the beneficiary to the additional pay from the date of the service for which the certificate was awarded.

eSee, to a similar effect, the opinion of the Attorney-General in XVI Opins., 9; also the subsequent G. O. 28, Hdqrs. of Army, 1878.

Badge of Regular Army and

may be worn.

May 11, 1894, v.

all occasions of ceremony by officers and enlisted men of the Army and Navy of the United States who are members of said organizations in their own right. Joint resolution No. 50, of September 25, 1890 (26 Stat. L., 681). 1362. That the distinctive badge adopted by the Regular Navy Union Army and Navy Union of the United States may be worn, J. R. No. 26, in their own right, upon all public occasions of ceremony 28, p. 583. by officers and enlisted men in the Army and Navy of the United States who are members of said organization. Joint resolution No. 26, of May 11, 1894 (28 Stat. L., 583). 1363. The distinctive badges adopted by military sociewith ties of men who served in the armies and navies of the Feb. 2, 1901, s. United States during the Spanish-American war and the incident insurrection in the Philippines may be worn, upon all occasions of ceremony, by officers and men of the Army and Navy of the United States who are members of said organizations in their own right. Sec. 41, act of February 2, 1901 (31 Stat. L., 758).

The same.
War

Spain.

41, v. 31, p. 758.

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fications.

Mar. 16, 1802. c. Mar. 3, 1815, c. 79,

9, s. 11, v. 2, p. 134;

1364. Recruits enlisting in the Army must be effective General qualiand able-bodied men, and between the ages of eighteen and thirty-five years, at the time of their enlistment. This limitation as to age shall not apply to soldiers reenlisting. July 5, 1838, c.

8. 7. v. 3, p. 224;

162, s. 30, v. 5, p.

260: Feb. 13, 1862, c. 25, s. 2, v. 12, p. 339; June 21, 1862, Res. 37, v.12, p. 620; July 17, 1862, c. 200, s. 21, v. 12, p. 597; Feb. 27, 1893, v. 27, p. 486; Mar. 2, 1899, s. 4, v. 30, p. 978. Sec. 1116, R. S.

Sec. 4, act

1365. The limits of age for original enlistments in the Army shall be eighteen and thirty-five years. of March 2, 1899 (30 Stat. L., 978).

Limits of age. v. 30, p. 978.

Mar. 2, 1899, s.

'The requirements of section 1116, Revised Statutes, in respect to the limits of age for recruits upon their original enlistment into the military service have been modified by the act of February 27, 1893 (27 Stat. L., 486), which established the superior limit at thirty years in time of peace, and by section 4 of the act of March 2, 1899 (30 Stat. L., 978), which fixes the limits of age for original enlistments at from eighteen to thirty-five years.

Enlistment is a contract, but it is one of those contracts which changes the status, and where that is changed no breach of contract destroys the new status or relieves from the obligations which its existence imposes. * * * By enlistment the citizen

becomes a soldier. His relations to the State and the public are changed. He acquires a new status, with correlative rights and duties, and although he may violate his contract obligations, his status as a soldier is unchanged. He can not of his own

Age, ship.

citizen

1366. In time of peace no person (except an Indian) who Aug. 1, 1894, s. is not a citizen of the United States, or who has not made

2. v. 28. p. 215;

v. 30, p. 978.

Mar. 2, 1899, s. 4. legal declaration of his intention to become a citizen of the United States, or who can not speak, read, and write the English language, or who is over thirty-five years of age, shall be enlisted for the first enlistment in the Army.' Sec. 4, act of March 2, 1899 (30 Stat. L., 978).

Enlistment of minors.

May 15, 1872, c.

117.

1367. No person under the age of twenty-one years shall 162, s. 1, v. 17, p. be enlisted or mustered into the military service of the Sec. 1117, R.S. United States without the written consent of his parents or guardians: Provided, That such minor has such parents or guardians entitled to his custody and control.

Persons not to

be enlisted.

Mar. 2, 1833, c.

July 4, 1864, c. 237, s. 5, v. 13, p.

1368. No minor under the age of sixteen years, no insane 68, s. 6, v. 4, p. 647; or intoxicated person, no deserter from the military service of the United States, and no person who has been conc. 79, s. 18, v. 13. p. Victed of a felony shall be enlisted or mustered into the c. 69, v. 19, p. 242. military service.

380; Mar. 3, 1865,

490: Feb. 27, 1877,

Sec. 1118, R.S.

volition throw off the garments he has once put on, nor can he, the State not objecting, renounce his relations and destroy his status on the plea that, if he had disclosed truthfully the facts, the other party, the State, would not have entered into the new relations with him or permitted him to change his status. U. S. r. Grimley, 137 U. S., 147.

Our law not defining enlistment, nor designating what proceeding or proceedings shall or may constitute an enlistment, it may be said, in general, that any act or acts which indicate an undertaking, on the part of a person legally competent to do so, to render military service to the United States for the term required by existing law, and an acceptance of such service on the part of the Government, may ordinarily be regarded as legal evidence of a contract of enlistment between the parties and as equivalent to a formal agreement where no such agreement has been had. The fortyseventh article of war practically makes the receipt of pay by a party as a soldier evidence of an enlistment on his part, estopping him from denying his military capacity when sought to be made amenable as a deserter. The continued rendering of service which is accepted may constitute an enlistment. But enlistments in our Army are now almost invariably evidenced by a formal writing and engagement under oath. Dig. Opin. J. A. G., 384, par. 1. See also In re McDonald, 1 Lowell, 100. An enlistment is the act of making a contract to serve the Government in a subordinate capacity either in the Army or the Navy. Erichson v. Beach, 40 Conn., 283. An enlistment is not a contract only, but effects a change of status. In re Grimley, 137 U. S., 151. The statutes employ the term "enlist" only with reference to contracts with persons who enter the Army as privates, and to certain other classes of men, like Indian scouts and hospital stewards, who rank like soldiers, and voluntarily put themselves under military law. Babbitt v. U. S., 16 Ct. Cls., 214.

Any male citizen of the United States, or person who has legally declared his intention to become a citizen, if above the age of twenty-one and under the age of thirtyfive years, able-bodied, free from disease, of good character and temperate habits, may be enlisted under the restrictions contained in this article. In regard to age or citizenship this regulation shall not apply to soldiers who have served honestly and faithfully a previous enlistment in the Army. Par. 921, A. R., 1901. See also circular of June 3, 1898, from the Adjutant-General's Office for qualifications for

volunteer recruits.

2 Sections 1116, 1117, and 1118, Revised Statutes, providing that deserters, convicted felons, insane or intoxicated persons, and certain minors shall not be enlisted are regarded as directory only, and not as making necessarily void such enlistments, but as rendering them voidable merely, at the option of the Government. In cases of such enlistments, except of course where the party, by reason of mental derangement or drunkenness was without the legal capacity to contract, the Government may elect to hold the soldier to service, subject to any application for discharge which may be addressed by himself or his parent, etc., either to the Secretary of War or to a United

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