Accountability for Stores, etc. Article 15 directs that any officer who, willfully or through neglect, suffers to be lost, spoiled, or damaged, any military stores belonging to the United States, shall make good the loss or damage, and be dismissed from the service. 1 The loss or damage may be assessed by a Board of Survey with the approval of the commanding officer; 1 or it is presumed, by the court-martial trying him. The former would seem to be the better way. In referring to losses occasioned by neglect of company commanders, the Secretary of War holds that the pecuniary responsibility cannot be transferred to enlisted men. It is the duty of the commander to attend personally to its (the property's) security, and either to himself superintend the issues, or cause it to be done by a commissioned officer. The plea that the keys of the rooms or chests, and the making of issues, were entrusted to enlisted men, or to civilians, without direct proof of vigilance on the part of the responsible officer, and a resort to every reasonable precaution, including frequent personal inspections, intended to prevent loss or damage, will not be accepted by Boards of Survey as relieving such officer from liability. Evidence must be demanded, showing clearly the circumstances of the loss and all the means and precautions taken to guard against it; and reviewing officers, in examining the proceedings of Boards of Survey, will apply the principles set forth in this order and be governed by them in affixing their approval. These remarks should be borne in mind by courts-martial, in trying offenses under this article. Losing Accoutrements. Article 17 provides that any soldier who sells or, through neglect, loses or spoils his horse, etc., shall suffer such stoppages, not exceeding 1 Under par. 1027 Regulations. 2 G. O. 66 A. G. O., June 24, 1874. one-half of his current pay, as a court-martial may deem sufficient for repairing the loss or damage, and shall be punished by confinement or such other corporal punishment as the court may direct. General Orders from the Adjutant-General's office direct that in future, the amount, charged against an enlisted man on muster and pay rolls for indemnification for loss or damage to government property, will not exceed the value of the article alienated, or the amount of damage, or the cost of repairs, and such charges will be made in conformity with paragraphs 1027 and 1028 Revised Regulations for the Army of 1863. The soldier will be informed, at the time for signing the roll, that his signature will be regarded as an acknowledgement of the justice of the charge set against his pay; but, in case he objects to signing the rolls and demands a court-martial, and in cases of loss from stealing, selling, gross neglect, or other illegal disposition of or damage to public property, such as should subject the offender to punishment, in addition to making good the loss to the United States, he will be proceeded against as provided for in the 16th and 17th Articles of War, Revised Statutes of the United States. In these cases the stoppages imposed by a garrison or regimental court-martial or in time of war a field officer's court-is not limited to one month's pay, but only to the amount necessary to reimburse the government, and the conditions imposed in said 17th Article of War.1 In 1877 a soldier was tried for violation of this article in unlawfully disposing of his great-coat. The court failed to make any stoppage, and on being re-convened, adhered to their action on the ground that, the great-coat having been issued to the soldier and charged against him, the government had sustained no loss or damage which it was 1 G. O. 110, A. G O., Dec. 1, 1876. in the power of the court to assess. The convening officer held the conclusion of the court erroneous, both as to the fact of actual loss or damage, and as to the legal relation of the prisoner and government as to ownership. The actual cost for care and transportation of clothing to any particular station forms no part of the value as stated in the price-list, and there is, in such respect, an actual ascertainable loss to the government, resulting both from the wrongful sale of clothing in the first instance, and usually from the necessity of replacing the articles at places of issue. The legal right of the soldier to the clothing issued to him is a qualified right, that of use only, whilst he is in service, and is still public property within the intent of the 17th Article of War, so far as the right of disposition is concerned.1 Where a soldier came into possession of articles of government clothing by purchase or gift from soldiers discharged, the Judge-Advocate General held, that selling such clothing to citizens constituted an offense under Sec. 23 of the Act of March 3, 1863, the same being construed as not intending to restrict the offense denounced to a selling by the identical soldier to whom the clothing was originally issued.2 The Judge-Advocate General holds, that the imposition by sentence of certain stoppages of pay for violation of this article is, in all cases, mandatory upon the court.3 The punishment for offenses under this article is limited to corporal punishment, confinement being regarded as such. Disrespect. Article 20 refers to an officer or soldier behaving with disrespect toward his commanding officer. Every officer entitled to require the obedience of an 1 G. C. M. O., 31, Headq'rs. Dept. of the South, April 17, 1877. other, for the time being, is to the latter his commanding officer. Disrespectful language used towards his captain by a soldier, when detached from his company and serving at the hospital, to the surgeon in charge of which he was ordered to report, was held not properly charged "as disrespect towards his commanding officer "-the surgeon, not the captain, being his commander at the time. The offense should, under these circumstances, have been charged as "conduct to the prejudice of good order and military discipline.' Striking Superior Officer and Disobedience of Orders. Article 21 provides that any officer or soldier who, on any pretense whatsoever strikes his superior officer, or draws or lifts up any weapon, or offers any violence against him, being in the execution of his office, or disobeys any lawful command of his superior officer, shall suffer death, or etc. Three things are necessary to make an act an offense under this article: First. The violence mentioned must be against a superior officer; the term "superior" being interpreted to mean any commissioned officer superior in rank to the accused. Second. It must be shown, in evidence, that the superior officer was in the execution of his office." Third. If the offense charged is "disobedience of orders," the order disobeyed must be a lawful command of a superior officer. The fact that any stated duty is enjoined in regulations, or orders, does not in itself render a non-performance of such duty a disobedience of orders, in violation of the 21st Article; but, to support this, it is essen1 1 Opinions J. A. G. p. 4. G. C. M. O. 2, Army of the Potomac, Jan. 2, 1865. tial that there should be shown such an intentional disregard of authority, as is evinced by a willful refusal or omis sion to comply with the specific command of a superior officer.1 The Article, it will be seen, does not provide for the punishment of disobedience of an unlawful order. On the contrary, it is well settled that an officer or soldier is justified in disobeying such order. It may become his imperative duty to do so, for obedience of such an order may often render him liable in damages, the same as if it was committed of his own free will and accord. Thus, in the case of Mitchell vs. Harmony, the United States Supreme Court held that upon principle, independent of the weight of judicial decision, it can never be maintained. that a military officer can justify himself for doing an unlawful act, by producing the order of his superior. The order may palliate, but it cannot justify." Disobedience of orders, however, is one of the severest offenses known to the military code, and is made punishable in all armies by the severest penalties. Prompt, unhesitating obedience is the very root of discipline, without which the efficiency of an army would instantaneously be impaired. How can we reconcile the two? What will justify an officer or soldier in disobeying an order? May he pause to consider, and obey or not as the order appears to him legal or illegal? In the case of McCall vs. McDowell, it was said, "If every subordinate officer or soldier were at liberty to question the legality of the orders of the commander and obey them or not as they may consider them valid or invalid, the camp would be turned into a debating school, where the precious moment for action would be wasted 1 G. C. M. O. 26, A. G. O., Aug. 31, 1872. 214. Howard, p. 137. |