5. Desertion from first, with discharge from second, serviceContinued.

deserter: Held, That faithful subsequent service condoned desertion from prior service; that the pension laws are beneficial in character, and their interpretation should be broad and liberal, and that suspension should be removed. James H. Brush, alias Jesse L. Judd (Sec. Schurz), 7 P. D. (o. s.), 73.

Where a charge of desertion from the service in the war with Mexico remains on the record of the War Department against a soldier who enlisted in the service in the war for the Union, and therein incurred pensionable disabilities in the line of duty, and thereafter was formally discharged from the service, it is held that the old record of desertion can not be interposed to deny him pension for disabilities incurred by reason of the latter service. Reenlistment, without objection on the part of the Government, and faithful service neutralized and condoned the old offense. Jacob Bowersmith (Asst. Sec. Bussey), 3 P. D., 303.

Claimant while a deserter from the Eighty-seventh New York Volunteers enlisted in the First Vermont Cavalry, and was mustered out of the latter organization at the close of the war. He was never discharged from the Eighty-seventh New York, and the War Department refuses to recognize the legality of his second enlistment or any claim for service thereunder, but holds that the law holds him as in a continuous state of desertion during the whole period of enlistment: Held, That the fact of desertion can not be used to debar claimant from pension for disabilities subsequently incurred in the line of duty, soldier having returned to and been discharged from the service. Citing James H. Brush, 7 P. D., (o. s.), 73. De Witt C. Falkenburg (Asst. Sec. Bussey), 3 P. D., 336.

Overruled (Asst. Sec. Reynolds), 7 P. D., 218.

A formal discharge from an enlistment subsequent to claimant's desertion terminates the status of desertion and places the soldier, regardless of the record, in the attitude of an eligible claimant for invalid pension. John Van Fossen (Asst. Sec. Bussey), 3 P. D., 347.

Overruled (Asst. Sec. Reynolds), 7 P. D., 218.

Claimant while a deserter from the Thirty-second Indiana regiment enlisted in the One hundred and forty-sixth, from which he was discharged in 1865, and has never been dis charged from his first enlistment: Held, That soldier's readmission to the service under his last enlistment, though charged with desertion, without trial or punishment, constructively pardoned or condoned said offense, and that the charge of

5. Desertion from first, with discharge from second, serviceContinued.

desertion from his former service was no bar to pension. Frank Wempe (Asst. Sec. Bussey), 5 P. D., 339.

Overruled (Asst. Sec. Reynolds), 7 P. D., 218.

Where the claimant deserted from his first service and enlisted in another and different organization, and the War Department refuses to remove the charge of desertion or recognize the legality of the second service, but holds him to be in a continuous state of desertion, it is held that the War Department has exclusive jurisdiction over issues as to such desertion, the correction of its own records, and legality of the soldier's service; and until the said charge is removed by the War Department the claimant has no pensionable status. The act of March 2, 1889, was passed at a time when the rulings of this Department recognized those soldiers coming within the class embraced in this decision as in a continuous state of desertion and as having no pensionable status, and it is presumed that Congress never intended a general removal of the charge of desertion in cases like the present, but simply indicated the cases in which, under certain circumstances, the charge could be removed and the record changed or corrected on application to the War Department. De Witt C. Falkenburg (3 P. D., 336), John Van Fossen (3 P. D., 347), Alfred C. Taft (5 P. D., 110), Frank Wempe (5 P. D., 339), and like cases overruled. Joseph C. Williams (Asst. Sec. Reynolds), 7 P. D., 218.

Claimant having obtained the removal of the charge of desertion, and an honorable discharge from both services hav ing been granted him through the War Department, the former decision is overruled, the rejection reversed, and the papers are returned for adjudication of the claim on its merits.

(a) Contra: Such desertion bars pension.

Ibid.

Claimant having enlisted in the organization in which he alleges he contracted his disability, in violation of the fiftieth article of war, being a deserter from another organization at the time, he was acting in violation of law, and his disability is not regarded as having been contracted in the line of duty. Alexander Butts (Sec. Schurz), 6 P. D. (o. s.), 205.

This Department will not take jurisdiction for pensionable purposes in cases where a soldier enlisted in violation of the twenty-second article of war until the charge of desertion is removed in the manner provided by law. Margaret A. Taylor (Asst. Sec. Hawkins), 1 P. D., 42.

6. Widow of deserter at large is not pensionable.

Where a soldier deserted and afterwards was mustered into another service as a substitute, it is held he remained a deserter until his death, and his widow is not pensionable. Widow of John Smart (Asst. Sec. Otto), 5 L. B. P., 180.

Desertion of a soldier is a bar to his widow's claim for pension, as, under sections 4709 and 4710, Revised Statutes, no right accrues to him prior to his discharge, and having never been discharged, no right whatever could accrue to him; accordingly none to his widow under section 4702, Revised Statutes. Widow of Frank W. Porter (Sec. Schurz), 5 P. D. (0. s.),

146.

Under act of March 9, 1878, record that claimant deserted is a bar to pension to widow, and allowance of bounty land under act of September 28, 1850, to a soldier who is borne as a deserter is erroneous. Widow of Josiah Ellis (Sec. Schurz), 6 P. D. (0. s.), 427.

The widow of a soldier of the war of 1812 is not pensionable if he is marked on the rolls a deserter, although he obtained a bounty-land warrant for such service, it appearing that the record of desertion was not reported in the bounty-land claim. Widow of Albert Wilson (Sec. Kirkwood), 8 P. D. (o. s.), 184.

(a) Except under act of June 27, 1890.

The widow of a soldier who died in the status of a deserter is not pensionable under section 4702, Revised Statutes, although he was honorably discharged from a service prior to the one from which he deserted, but she is pensionable under the act of June 27, 1890. Widow of Augustus F. Gresham (Asst. Sec. Bussey), 6 P. D., 84.

See James W. Miller, 2 (a), ante.

7. Removal of charge of desertion.

If a record of desertion is erroneous, evidence to establish that fact should be filed with the War Department, which alone has the power of correction, as this Department can not go behind the records of that Department in such cases. Widow of Ebenezer F. Woodworth (Sec. Teller), 13 P. D. (o. s.), 452.

Where a special act, in its first section, removed an existing charge of desertion against the soldier, and in its second section authorized the Secretary of the Interior to place said soldier's name on the pension roll, the Department concurred in the holding of the Pension Office that the first section has no bearing upon the right of the applicant to pension other than in connection with the second section, and does not enable the allowance of the soldier's general-law claim, which stood

7. Removal of charge of desertion-Continued.

rejected on the ground of desertion. Daniel McAlpin (Asst. Sec. Jeuks), 17 P. D. (o. s.), 386.

See also APPEALS; BOUNTY-LAND; COMMENCEMENT; DISCHARGE; FURLOUGH; LINE OF DUTY; RESTORATION (Commencement).

1. Are pensionable whether due to disease or injury.

2. Must appreciably incapacitate for manual labor.

(a) Must be capable of detection by examining surgeons.

(b) Continuance in a pensionable degree from discharge must be shown.

(c) Degree is determinable from the evidence on file.

(d) Question of disability is determinable by the medical referee.

3. Permanent specific-defined and construed.

4. Nonspecific.

5. Equivalent.

6. Total-Term "totally disabled in the same" construed.

(a) "Total disability” of soldier construed.

7. Under act of June 27, 1890, and under general law.
(a) Incurrence of disability in Confederate service.
(b) As to permanency.

(c) Senility.

8. Manual labor defined.

1. Are pensionable whether due to disease or injury.

Disabilities are pensionable under the act of March 3, 1873, or June 18, 1874, whether due to injuries or diseases. Henry Schmidt (Sec. Chandler), 3 P. D. (0. s.), 158.

2. Must appreciably incapacitate for manual labor.

It is the disability, and not the wound or disease causing the disability, which entitles to pension, and a disability must be shown. Elizabeth McCluney (Sec. Delano), 1 P. D. (o. s.), 84.

2. Must appreciably incapacitate for manual labor-Continued. It appearing that the disability on account of which the claim was made does not incapacitate the claimant from obtaining his subsistence by manual labor, it is not pensionable. Sheridan B. Smith (Sec. Delano), 2 P. D. (o. s.), 289.

Although the applicant may actually perform as much labor as a person free from any disabling cause whatever, if, in performing work, he labors under a disadvantage in consequence of a disability received in line of duty in the service, he is entitled to a pension. Peter Abare (Sec. Schurz), 4 P. D. (o. s.), 138.

(a) Must be capable of detection by examining surgeons.

Disability, to be pensionable, must be of such a character and exist to such a degree that it can be detected by the examining surgeon of the office. Durin H. Williams (Sec. Schurz), 4 P. D. (o. s.), 294.

Where claimant bases application for pension upon disease, and reports of examining surgeons show that the same has caused no disability for manual labor, claim was properly rejected. Alvin 0. Thayer (Sec. Schurz), 6 P. D. (o. s.), 498.

Disability from disease or from injury to be pensionable must be of such a character and exist to such a degree that it can be detected by the examining surgeon or by the board of surgeons of the Pension Office. Lemuel R. Scott (Asst. Sec. Hawkins), 1 P. D., 77; John Blair (Asst. Sec. Hawkins), 2 P. D., 183.

A claim for pension on account of disease of lungs will not be allowed where the examining surgeons who examine claimant certify that his lungs are perfectly sound. George C. Cowden (Asst. Sec. Hawkins), 1 P. D., 83.

The Department relies upon the certificates of examining surgeons in estimating the degree of disability found to exist. Wilson G. Gray (Asst. Sec. Hawkins), 1 P. D., 120.

The fact that claimant is not rated for any disability as a result of sunstroke shows he is not entitled to pension even though incurrence is proved. Citing Leonard Nerreter, 1 P. D., 67; Daniel Bower, ib., 257. Levi Reeves (Asst. Sec. Hawkins), 2 P. D., 177.

To entitle a claimant to pension, his disabilities must be such as to enable the examining surgeons to discover them. Citing Daniel Bower, 1 P. D., 257; Lemuel R. Scott, ib., 67. Albert T. Chapin (Asst. Sec. Hawkins), 2 P. D., 254.

(b) Continuance in pensionable degree from discharge must be shown. Although the disability alleged is shown to have existed in the service, pension must be denied when claimant fails to prove