5. Dishonorable—Continued. (d) From service subsequent to the war of the rebellion. A dishonorable discharge from service subsequent to the late war of the rebellion is no bar to pension under the act of June 27, 1890, on account of service during the war of the rebellion from which the soldier was honorably discharged, but otherwise if the soldier deserted from the subsequent service and was never discharged therefrom. Citing William B. Johns, 2 P. D., 393. Stephen H. Carey (Asst. Sec. Bussey), 6 P. D., 42. Where soldier served over ninety days in the war of the rebellion and was honorably discharged therefrom, his desertion March 9, 1866, from a subsequent enlistment, July 25, 1865, in the Regular Army, for which desertion he was courtmartialed and dishonorably discharged, is no bar to his right to a pension under the act of June 27, 1890, the other conditions of the act being complied with. Cases of Carey, 6 P. D., 42, and Graham, ibid., 84, cited, followed, and affirmed. Jeremiah Butler (Asst. Sec. Reynolds), 7 P. D., 214. 6. Dismissal from service. An officer tried by court-martial, convicted of desertion, and dishonorably dismissed from the service is not pensionable, even for disability incurred in the service and line of duty. The case of Jane Conroy (2 P. D. (0. s.), 477) is distinctly overruled. Daniel B. Kaufman (Asst. Sec. Hawkins), 1 P. D., 383. Overruled: 3 P. D., 137; 7 P. D., 233. Where a soldier, after acquittal on a trial by a courtmartial, was dismissed from the service on recommendation of the major-general commanding the department, who disapproved the verdict of acquittal, such dismissal has no legal effect upon the soldier's claim for or title to pension on account of disabilities incurred in line of duty in service. Citing and following Daniel B. Kaufman, 3 P. D., 137; Jane Conroy, 2 P. D. (0. s.), 477, reversing prior decision, ibid., 259. Widow of Frank Backof (Asst. Sec. Bussey), 4 P. D., 77. A dishonorable dismissal from service debars from pension under the act of June 27, 1890. Citing Stephen H. Carey, 6 P. D.. 42. James Cullen (Asst. Sec. Bussey), 6 P. D., 72. 7. Evidence. A paper purporting to be a discharge, with seemingly the requisite intrinsic evidence of genuineness, and in harmony with the history of the times and facts to which it relates, should be admitted as genuine, in the absence of any wellfounded suspicion of its character. Lewis Blankenbaker (Sec. Usher), 5 L. B. P., 156. 8. Date of. The date to which a soldier is paid should be considered the real date of his discharge, although the discharge was not made out until subsequently. Gottlieb Stoll (Actg. Sec. Cowen), 1 P. D. (o. s.), 20. (a) For pensionable purposes under section 4701, Revised Statutes. Section 4701, Revised Statutes, limits the legal termination of service in any pension case to one or other of two possible dates only-that is (1), to date of actual discharge for any other cause than expiration of the term of service of the organization; and (2), to the date of disbandment of the organization because of the expiration of the term of service. George W. Hill (Asst. Sec. Reynolds), 7 P. D., 235. 9. Discharge for promotion. The discharge of an enlisted man by reason of his promotion to a higher rank (lieutenant) is not a discharge within the meaning of the act of June 27, 1890; the purpose of said discharge is not to terminate his service, but to retain him in the service in a higher grade, and when such soldier was, after his promotion, dismissed from the service by sentence of a court-martial he can not be held to have been honorably discharged. Mary, widow of Adam Landfrit (Asst. Sec. Reynolds), 8 P. D., —. See also ATTORNEYS; BOUNTY LAND; DESERTION; EVIDENCE; EXAMINATIONS; NURSES; RESTORATION; WITHDRAWAL OF PAPERS. DISLOYALTY. 1. Laws governing as to, generally. (a) Act of March 3, 1873 (section 23). 2. Is a bar to pension. 3. Acts held to constitute disloyalty. (a) Enlistment to escape imprisonment. 4. Acts held not to constitute disloyalty. 5. Condonation-subsequent loyal service. (e) Act of August 1, 1892. 6. Evidence, presumptions, and proof. (a) Enlistment in rebel army is presumed to hare been voluntary. (d) When rebuttal is on ground of duress. 7. No bar to pension under act of June 27, 1890. (a) Contra. 8. Commissioner's circular of June 10, 1865. 9. As affecting payment. 1. Laws governing as to, generally. The question of disloyalty, as affecting bounty-land claims, is governed solely by the joint resolution of March 2, 1867, but as affecting pension claims, by section 4716, Revised Statutes; adhering to former decisions of October 23, 1869, 7 L. B. P., 32, and Irene G. Scarritt, December 5, 1873, 1 P. D. (o. s.), 322. Instructions (Sec. Chandler), 3 P. D. (o. s.), 125. (a) Act of March 3, 1873 (section 23). Section 23 of the act of March 3, 1873, is applicable alike to those who were on the pension rolls at the date of the passage of said act and to those who might apply thereafter. Edward T. Maynard (Actg. Sec. Smith), 2 P. D. (o. s.), 133. 2. Is a bar to pension. Encouragement of the rebels, or sympathy with their cause, bars claim for pension. James A. Sewers (Asst. Sec. Otto), 5 L. B. P., 182. Section 4716, Revised Statutes, prohibits the payment of any money on account of pension to any person, or to the widow or children or heirs of any deceased person, who in any manner voluntarily engaged in or aided or abetted the late rebellion against the authority of the United States, except in cases where pension is granted on account of disability due to a wound or injury received or disease contracted in the service of the United States under a contract of enlistment entered into subsequent to the time such person was engaged in aiding or abetting the late rebellion, and in certain classes of pensions granted on account of service in wars prior to the war of the rebellion, which are expressly excepted from the operation of said section. Job White (Asst. Sec. Reynolds), 7 P. D., 312. The admissions of this appellant under oath, as well as the other evidence in this case, show that he rendered voluntary service in the Confederate army during the late war of the rebellion, and consequently his title to pension is barred by the provisions of section 4716, Revised Statutes. Anastatio Capella (Asst. Sec. Reynolds), 8 P. D., 308. 3. Acts held to constitute disloyalty. Making clothes and tents for the rebel soldiers was disloy alty which will bar pension. Penita Hendley (Sec. Delano), 1 P. D. (o. s.), 327. Voting for the ordinance of secession in 1861 is an act of disloyalty which bars pension. Andrew D. Slaughter (Sec. Delano), 1 P. D. (o. s.), 366. Payment of taxes to the Confederate government is disloyalty, barring pension vader the act of February 14, 1871. Henry L. Davis (Actg. Sec. Cowen), 3 P. D. (o. s.), 56. 3. Acts held to constitute disloyalty-Continued. No conscript act was passed by the rebel congress prior to April, 1862. This claimant's service, therefore, in the rebel army from March 1, 1862, to March, 1863, and his evident attempt by false allegation as to the date of his enlistment to support his plea of involuntary service by reference to the conscript act, warranted a belief that his disloyal service was not involuntarily rendered. William D. Bowen (Sec. Chandler), 3 P. D. (o. s.), 242. Any person exercising the functions of an office (in this case a justice of the peace) under the government of a State in rebellion against the United States was aiding and abetting the rebellion within the meaning of section 4716, Revised Statutes. Jesse D. Havis (Actg. Sec. Gorham), 3 P. D. (o. s.), 467. Under section 4716, Revised Statutes, anyone who gave public expression to sentiments showing sympathy with the rebels aided and abetted the rebellion within the meaning of said section. Margaret Lemaster (Sec. Schurz), 4 P. D. (o. s.), 427. Holding the office of postmaster and performing the duties thereof under the Confederate government was aiding and abetting the rebellion. John W. McDonald (Sec. Schurz), 5 P. D. (0. s.), 104. Presumption of disloyalty is raised by payment of taxes to the Confederate government or furnishing food and clothing to sons in the Confederate army; but such presumption may be rebutted. Phillip Hoppel (Sec. Schurz), 5 P. D. (o. s.), 151. Enlistment and service in the Confederate army is such a voluntary aiding and abetting the rebellion against the authority of the United States as, under section 4716, Revised Statutes, will bar title to pension. Milo Ousterhout (Asst. Sec. Reynolds), 7 P. D., 270. (a) Enlistment to escape imprisonment. Where a Federal soldier voluntarily enlists in the Confederate service to escape the hardships of prison life, he is barred of his right to pension by the provisions of section 4716, Revised Statutes. William Hedgspeth (Asst. Sec. Hawkins), 1 P. D., 245. Overruled: 4 P. D., 144; 5 P. D., 369. But see Milo Ousterhout, 7 P. D., 270. Where claimant alleges he voluntarily joined the rebel army in order to save his life and escape from prison: Held, That section 4716, Revised Statutes, applies, and disabilities incurred during said imprisonment and such service in the army of rebellion are not pensionable. George Smith (Asst. Sec. Hawkins), 1 P. D., 303. 3. Acts held to constitute disloyalty-Continued. (a) Enlistment to escape imprisonment-Continued. Where a soldier was taken prisoner in July, 1864, returned to the Union lines April 30, 1865, and to his company June 5, 1865, it was held that his enlistment in the Confederate service, made voluntarily in January, 1865, for the purpose of escaping from his imprisonment by the Confederate forces and rejoining his command, was not a voluntary engagement in or aiding and abetting of the rebellion, within the meaning of section 4716, Revised Statutes. Ruling 107 abrogated. Russel S. Cole (Asst. Sec. Bussey), 4 P. D., 141. Soldier, while a prisoner of war in Andersonville, Ga., enlisted in the Confederate army, as he alleges, to escape the barbarities of prison life, and with the intent to escape to the Union lines, and was mustered out of the service with his company: Held, That he was completely justified in so doing, and is not barred from pension by section 4716, Revised Statutes; the fact that he received a final discharge from the military service putting him beyond the pale of inquiry by the Secretary of the Interior respecting any military offense that may have been recorded against him prior to his discharge. McCoy (Asst. Sec. Bussey), 5 P. D., 369. Overruled: Milo Ousterhout, 7 P. D., 270. John R. The soldier, while a prisoner of war, enlisted in the Confederate service for the purpose, as alleged, of escaping his prison life; served therein; was captured by the Federal Army; confined in a military prison, and while so confined enlisted in the United States Infantry April, 1865, from which he was mustered out with his command October, 1866: Held, The above facts bring this case within the provisions of section 4716, Revised Statutes. Distinguishing this case from R. S. Cole, 4 P. D., 141, in that in that case the soldier was, on his return to his regiment, assigned to duty with his command, and was honorably discharged, while in this case the soldier was captured in arms against the United States, was not assigned to duty with his command, nor honorably discharged from that service, but was regarded in all respects as a Confederate pris oner of war. Edward Hughes (Asst. Sec. Bussey), 6 P. D., 82. Appellant was captured while serving as a soldier in a vol. unteer regiment in the United States army, and while a prisoner of war enlisted in the Confederate Army and was subsequently captured by the Union forces in arms against the United States. He was never returned to his original command nor mustered out of his first service, but while being held as a rebel prisoner of war enlisted in the Army of the United States in a regiment composed principally of ex-Confederate |