United States v. Fletcher (148 U.S. 84)

Petition in the court of claims by Bird L. Fletcher against the United States to recover arrears of pay as a retired officer of the army. A portion of the claim was allowed. 26 Ct. Cl. 541. Both parties appeal. Reversed.

Statement by Mr. Chief Justice FULLER: The claimant filed an amended petition in the court of claims, December 16, 1890, as a substitute for his original petition filed December 11, 1889, seeking to recover from the United States a certain amount of money as arrears of pay alleged to be due him as captain on the retired list of the army, to which the government filed a general traverse December 22, 1890. Thereupon due proceedings were had, and the court on June 8, 1891, found, in substance, the following facts:

Bird L. Fletcher, the claimant, was on December 27, 1859, enlisted as a private in the general mounted service of the United States army. After successive promotions, by which he became corporal and second lieutenant, he was brevetted first lieutenant on May 10, 1863, for gallant and meritorious service in the cavalry action at Franklin, Tenn. He was made first lieutenant on October 12, 1864, in which rank he served until August 25, 1867, when he was promoted captain. On June 19, 1868, he was placed on the retired list of the army, by order of Gen. Grant, upon the finding of a board of examination that he was incapacitated for active service, and that his incapacity was the result of sickness and exposure incident to the service. The order retiring him directed that his name be placed upon the list of retired officers of the class provided for by the act of congress of August 3, 1861, in which the disability results from long and faithful service, or from some injury incident thereto.

A court martial was held in Philadelphia, Pa., July 10, 1872, befoer which Fletcher was brought for trial upon a charge of conduct unbecoming an officer and a gentleman, and upon this charge, which was supported by the averments of six specifications, he was tried. He was not represented by counsel on the trial, but conducted his case in person, and to the charge and all the specifications pleaded not guilty.

The specifications related to the incurring and nonpayment of certain indebtedness, and Fletcher was found guilty of all of them, some parts of the first, second, and fifth excepted, and guilty of the charge, and sentenced to be dismissed the service.

The proceedings, findings, and sentence of the court martial were transmitted to the secretary of war, who wrote upon the record the following order:

'War Department, July 24th, 1872.

'In conformity with the 65th of the Rules and Articles of War, the proceedings of the general court martial in the foregoing case have been forwarded to the secretary of war for the action of the president.

'The proceedings, findings, and sentence are approved, and the sentence will be duly executed.

'Wm. W. Belknap, Secretary of War.'

From the date of this order, July 24, 1872, Fletcher received no pay as an officer of the army.

He did not dispute at the war department the validity of the dismissal, in pursuance of the sentence of the court martial, for the period of nearly 16 years, but did promptly petition congress for redress, and urge his restoration to the retired list; and he made application for pay to the accounting officers of the treasury after March 1, 1888. His complaint stated that March 27, 1888, he addressed a petition to the president of the United States, and this resulted in a report of the judge advocate general to the secretary of war, April 17, 1888, that, in accordance with Runkle v. U.S., 122 U.S. 543, 7 Sup. Ct. Rep. 1141, there was no evidence that the proceedings in Fletcher's case had been laid before or approved by the president, and that the case was still subject to the president's action. The secretary of war then transmitted the report and the original record to the president, stating that the proceedings of the court martial awaited his action, as it appeared from the facts in the report that Fletcher was still undoubtedly an officer of the army, and recommending that the sentence be approved. On July 5, 1888, the president made an order approving the proceedings, findings, and sentence of the court martial.

In his amended petition in the court of claims, the claimant alleged that the proceedings, findings, and sentence of the court martial, and the orders approving the same, were void, for the reason that the charge and specifications upon which he was tried and sentenced stated no offense within any of the articles of war, and because the order of the secretary of war in 1872 was not the act of the president.

The court of claims held that the said charge and specifications stated an offense within the articles of war, but that the sentence of the court martial did not take effect until acted upon by the president on July 5, 1888. The court therefore allowed the claimant all pay claimed by him, except such as was barred by the statute of limitations, up to the date of the last order approving the sentence of the court martial, and gave judgment for the claimant for $9,654. 26 Ct. Cl. 541.

From this judgment both parties appealed.

Asst. Atty. Gen. Parker, for the United States.

George A. King, for Fletcher.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.