
    LEWIS E. BROWN v. THE UNITED STATES.
    [No. 23129.
    Decided March 12, 1906.]
    
      On the claimant's Motion.
    
    An officer ,on duty in Ouba during the Spanish war is court-mar-tialed upon the charge of conduct unbecoming an officer and a gentleman and found not guilty. The commanding officer remands the record for further consideration. The court immediately reverses its former action and, without additional evidence of any kind, finds the officer guilty and sentences him to he dishonorably dismissed. The court is composed of five members (the minimum number)-, one of whom is an officer in the Regular Army, though serving as lieutenant-colonel of volunteers, and the officer on trial is in the volunteer service. *
    
    I. The Articles of War (77) provide that “officer's of the Regular Army shall not he competent to sit on courts-martial, to try 
      . the officers or soldiers of other forces.” The language is too imperative to admit of evasion. Such an officer is incompetent notwithstanding he may be serving temporarily as an officer in the volunteer service.
    II. Where the court is of the minimum number, the incompetency of one member renders the proceedings void ad initio.
    
    III. Where an officer of volunteers was illegally dismissed from the Army on' the sentence of a court-martial which was absolutely- void, he was not legally removed from his office and can recover his pay, including two months’ extra pay on muster out. of his regiment. But if the office was that of lieutenant in a volunteer regiment, it did not exist after the muster-out of the regiment.
    
      The Reporters’ statement of the case:
    The case was decided in favor of the claimant March 20, 1905. Claimant thereupon moved. for a rehearing to increase the judgment by allowing two months’ extra pay provided for by the act of January 12,1899, which had not been asked for in the petition.
    Judgment was then entered for the increased amount, $658.33, for the reasons set forth in the former opinion of the court,' now published for the first time.
    The following are the facts of the case as-found by the court:
    I. Company I of the Ninth United States Volunteer Infantry was organized in the month of June, 1898, at Houston, Tex., whence it proceeded to New Orleans, La., where it arrived July 2,1898, and was there mustered into the service, of the United States on July 3, 1898, and thereafter served in Cuba, beyond the limits of the United States.
    The-claimant,.Lewis E. Brown, joined said company June 25, 1898, at Houston, Tex., where he then resided; was appointed, by the name of Louis E. Brown, first lieutenant of said company June 29, 1898; received and accepted July 11, 1898, at New Orleans, his commission, dated July 7, 1898, as such first lieutenant, and served as such with his company under said commission until February 17, 1899, within, and also in Cuba without, the limits of the United States.
    
      II. While said company was serving in Cuba, in the military department of Santiago, the following order was issued :
    “ Proceedings of a general court-martial which convened at San Luis, Cuba, pursuant to the following order:
    “ Special Orders, No. 70.
    “ HeadquaRteRs Department oe Santiago,
    
      “ Santiago de Cuba, November 3d, 1898.
    
    “ 4. A general court-martial is hereby appointed to meet at San Luis, Cuba, at ten o’clock a. m., Monday, Nov.- 7th, 1898, or as soon thereafter as practicable, for the trial of such officers as may be properly brought before it.
    “ DETAIL FOR THE COURT.
    “ Colonel C. J. Crane, 9th U. S. Y. I.
    “ Lt. Col. H. Y. Grubbs, 2d U. S. Y. I. '
    “ Major H.N. Swain, 2d U.S.V..I.
    “ Major G. W. Ford, 23d Kansas Yol. Inf. ' ' -
    “ Capt. M. S. Swain, 2d U. S. V. I.
    “ Capt.- F. J. Looney, 2d U. S. V. I.
    “ Capt. K. M. Nolen, 9th U. S. Y. I.
    “ Capt. C. A. Winders, 9th U. S. Y. I.
    “ Capt. J. L. Waller, 23d Kansas Yol. Inf.
    “ Capt. T. E. Yan Pelt, 8th Ill. Yol. Inf. -
    “ 1st Lieut. Allen Sholars, 2d U. S. V. I., appointed judge-advocate.
    “A greater number of officers can not be assembled without manifest injury to the service.
    “Immediate example requiring it, the court will sit without regard to hours.
    “ The quartermaster’s department will furnish the necessary transportation.
    “ By command of Brigadier-General Wood:
    “ John H. Beacon,
    “Zí. 'Gol. <& A. A. <■?., U. S. V., Adjutant-Generdll'1
    
    At 2 o’clock p. m.,, November 11, 1898, the court met pursuant to said order, except that four members -of the court were absent, viz, Colonel Crane, Major Swain, and Captains Looney and Nolen.
    The said Brown was then brought before the court and said order was read to him, and he was asked if he objected to being tried by any member present named therein, to which he replied that he objected to Capt. C. A. Winders, Ninth United States Volunteer Infantry, on'the ground that said Captain Winders was the officer preferring the charge and a witness; which objection was sustained by the court, and Captain Winders withdrew.
    The said Brown was then asked if he objected to any other member present, to which he replied in the negative.
    The remaining five members of the court, consisting of Lieutenant-Colonel Grubbs, Major Ford, and Captains Swain, Waller, and Van Pelt, and the judge-advocate, First Lieutenant Sholars, were then sworn, and before the court which was so organized the said Brown ivas thereupon arraigned and tried on the charge of “ Conduct unbecoming an officer and a gentleman, in violation of the sixty-first article of war.” The specification under this charge was: “ In that the said First. Lieutenant Louis E. Brown, Company I, 9th IT. S. Vol. Inft., did gamble with enlisted men of Co. I, 9th U. S. V. Inft. This at camp near San Luis, Cuba, on or about the eleventh day of October, A. D. 1898.” To the charge and specification the accused pleaded not guilty.
    Witnesses were produced, sworn, and examined for the prosecution and for the accused, respectively, whereupon the case was submitted. The accused and the judge-advocate withdrew, the court was closed and found the accused of the charge and of the specification not guilty, and acquitted him. The court then adjourned sine die, and the record was transmitted to General Wood, by whose order the court had been convened.
    III. December 6, 1898, the court reconvened at San Luis pursuant to the following indorsement upon the record:
    “ HEADQUARTERS DEPARTMENT OF SANTIAGO,
    
      “ Santa, Dec. 1st, 1898.
    
    “ Respectfully returned to G. C. M. convened at San Luis, S. O. 70, p. 4, these headquarters, for reconsideration,
    “ By command of Brig. Geni. Wood:
    “ John H. Beacom,
    
      “Lt. Gol. Vol, A. A. G., Ad?t GenV.”
    
    The said indorsement was then read to the court, whereupon the court revoked its former findings and found the accused of the specification and also of the charge guilty, and sentenced him to be dismissed the service,' whereupon the court again adjourned sine die.
    The accused was not present at said proceedings had on December 6, 1898, and had no notice or knowledge thereof.
    •December 24, 1898, General Wood approved the proceedings, findings, and sentence of the court as recorded, and forwarded such record to the War Department for the action of the President, but the same was, on January 12, 1899, returned to General Wood by the War Department, with the statement of the Judge-Advocate-General “ that the one hundred and sixth article of war only relates to time of peace, and that the state of war still continues,” whereupon the following order was made and indorsed on the record:
    “ HEADQUARTERS DEPARTMENT OP SANTIAGO,
    
      “Santiago de Cuba, Feb. 15th, 1899.
    
    “ The sentence in the foregoing^ case of First Lieutenant Louis E. Brown, 9th United States Volunteer Infantry, will be executed, to take effect on the seventeenth instant, on which date he will cease to be an officer of the Volunteer Army of the United States.
    “ Leonard Wood,
    “ Major-General, Ü. 3. V., Commanding.”
    IV. May 7, 1900, the claimant duly applied for an honorable discharge as of May 25,1899, and also for all pay, allowances, and other moneys due him to the date of such muster out, which applications were refused by the War Department.
    V.. The claimant, as first lieutenant, has received pay at the rate of $1,500 per annum, as'allowed by law, during all the period commencing July 2, 1898, and ending February 17, 1899, excepting only the sum of $10 withheld from his pay for the month of October, 1898, and has received no other pay or allowances. Claimant has not received the two months’ extra pay provided for by the act of January 12, 1899.
    VI. Lieut. Col. H. T. Grubbs, who served as president of said court-martial, was a cadet at the United States Military Academy from June 18, 1892, to June 12, 1896, when he was appointed second lieutenant, Eighteenth Infantry. An indefinite leave of absence from the Regular Army was granted him May 20, 1898, to enable him to accept a commission as lieutenant-colonel, Second United States Volunteer Infantry, and be was commissioned as sucb July 1, 1898, to rank from June 25, 1898, and accepted the commission July 8, 1898. He was mustered out and honorably discharged from the volunteer service as lieutenant-colonel, Second United States Volunteers, June 22, 1899. While on duty in the volunteer service lie was promoted to be first lieutenant in the regular service September 16, 1898, and was assigned to the Sixth Infantry January 1, 1899.
    The fact that Lieutenant-Colonel Grubbs was, at the time of the trial, a Regular Army officer was unknown to the claimant until May, 1902.
    VII. Ever since February 17, 1899, the claimant has been able, willing, and ready to perform the duties of his rank as first lieutenant.
    Company I, of the Ninth United States Volunteer Infantry, with all the officers, noncommissioned officers, and enlisted men, was mustered out May 25, 1899.
    VIII. The following indorsement appeared upon the back of the order of the commanding officer reconvening the court-martial, and was the first indorsement thereon:
    .“ HEADQUARTERS DEPARTMENT OP SANTIAGO,
    “ Office of Judge-Advocate,
    
      “ December 7,1898.
    
    “ Respectfully returned to the adjutant-general of the department.
    “ The evidence in this case is conclusive as to the guilt of' the accused. Four witnesses testify that they saw him gambling with enlisted men, while two witnesses whose memories are faulty testify negatively. The accused denies the allegation. It is recommended that the proceedings be returned to the court for reconsideration of its finding.
    “ H. R. Bailev,
    “ Captain, Fifth Infantry, Acting Judge-Advocate.’’’1
    
    It does not affirmatively appear that this indorsement was read to the court-martial.
    
      Mr. Lorenzo A. Bailey for the claimant. Messrs. Dudley da Michener were on the brief.
    
      Mr. F. W. Collins (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Nott, Cb. J.,

delivered the opinion of the court:

This case comes into court with a record which is not creditable to the administration of military justice.

1. First, it appears that the claimant, a lieutenant of volunteers, was tried by a court-martial of five members (the minimum number), the president of which was an officer in the Begular Army notwithstanding the seventy-seventh article of war, which provides that: “ Officers of the Begular Army shall not be competent to sit on courts-martial to try the officers or soldiers of other forces.” Without this officer the court consisted of less than the minimum number, and there could, consequently, be no court and no conviction.

2. It also appears that the court found the officer not guilty of the charge and specification upon which he had been tried.

3. It also appears that the record of the court-martial proceeding was transmitted to the commanding officer who convened the court, and was by him indorsed, “ Beturned for reconsideration.” Thereupon the court-martial immediately— that is to say, upon the same day, and with no additional evidence before it — found the officer guilty of the charge and specification, and sentenced him to be dismissed from the service. This sentence was approved and carried out.

4. It also appears that the record of the court-martial upon which the case was considered by the commanding general was attacked collaterally, it being shown aliunde the record that the testimony of a witness who was summoned, sworn, and examined before the court as a witness for the accused, and whose testimony tended to prove the accused innocent of the charge and specification, was wholly omitted from the record.

5. It finally appears that the charge was “ conduct unbecoming an officer and a gentleman,” and the specification was that the accused “ did gamble with enlisted men at camp near San Luis, Cuba, on or about the 11th day of October, 1898.” “ Conduct unbecoming an officer and a gentleman ” is a military offense not defined and not definable, but it involves necessarily the element of turpitude or dishonor. It ranks next on the roll of dishonor to cowardice. There is no latitude of discretion as to the punishment, which must always be, upon conviction, dismissal from tbe service. The specification, “ did gamble with enlisted men ” on one occasion, “ the 11th day of October, 1898,” is a mere conclusion of law and not a specification of facts. To pay 25 cents for a ticket in a.raffle would be gambling; it might be conduct prejudicial to good order and military discipline, but it would be too absurd for argument to class it as “ conduct unbecoming an officer and a gentleman,” as involving turpitude or dishonor, or as rendering a man unfit to associate with honorable men and to continue to do duty in the Army.

The first objection raised to the conviction is that above set forth, that one of the members of the court-martial was an officer of the Regular Army, and that without him there was not a sufficient number of members present to constitute a court.

To this the defendant’s counsel makes two replies: First, that the officer was asked if he had any objection to any member of the court, and he answered “ No; ” second, that that member of the court was at the time absent from the Regular Army on leave and serving as a lieutenant-colonel of volunteers.

As against the first of these replies the counsel for the claimant contends that the member of the court came into the court-martial in the guise of an officer of volunteers; that the fact of his being in the Regular Army was unknown to the officer on trial, and that the waiver of the officer of personal objection to all members’ of the court could not make a member competent who by statute is expressly declared “ not competent.”

, As to the second ground 'taken by the defendant’s counsel, viz, that the relations of the member of the court with the Regular Army were for the time being suspended, it may be conceded that, if the purpose of the statute was administrative, if the object was to save the more valuable time of Regular Army officers, if there were two systems of law applicable to the regular and volunteer forces, etc., the suspension of an officer’s relations with the Regular Army might take the case out of the statute. But the. purpose of the statute undoubtedly was to obviate a prejudice which existed in the minds of volunteers against Regular A.rmy officers — a belief that such officers -were prejudiced against volunteers; that they administered discipline and punishment with a severity that amounted to injustice. The language of the statute is too imperative to admit of evasion: “ Officers of the Regular Army shall not be competent to sit on courts-martial to try the officers or soldiers of other forces.” It admits of but one interpretation and of no exception. The president of the court was a lieutenant in the Regular Army. While he was temporarily doing duty as a lieutenant-colonel of the volunteer forces he was promoted in the Regular Army; and the fact that he was also doing duty as an officer in a volunteer regiment does not authorize the court to say that he was not an officer of the Regular Army. The court is of the opinion that the competency of this member of the court could not be conferred by the waiver of personal objections, and that he was an officer of the Regular Army within the intent of the statute.

The other questions in the case have been argued with most praiseworthy care and elaboration. Some of them are of great importance, but in view of the fact that the proceedings were void ab initio, that there was in fact no court present, competent to try the claimant for his alleged offense, it is inadvisable that this court proceed further with the case.

The claimant seeks to recover pay from the time he was dismissed under the sentence of the court-martial to the present time. He grounds this supposed right partly on the fact that he applied to the War Department for an honorable discharge, and that it was refused. But when he so applied he had been dismissed from the Army, and the ground of his dismissal appearing on the record of the Department as honorable or dishonorable would not affect his right to recover the pay of which he had been illegally deprived. It seems plain to the court that when the regiment, with all of its officers and men, was mustered out of the service the muster out was the dissolution of the regiment and of every office in and connected with it. From that time there was no office for the claimant to hold and no salary to which he could be entitled. The recovery, therefore, must be limited to a recovery of the officer’s pay from and including February 18, 1899, up to the time of the'final muster out of the regiment, May 25, 1899, both inclusive, amounting to $404.12.  