Tapia v. United States

16 Ct. Cl. 561

Opinion

Nott, J.,

delivered the opinion of the court:

The claimant in this case represents a class of the enlisted men in Company A, Third New Mexico Yolunteers, who were deserters. He seeks to recover for the loss of Ms borse, because be was dismounted and separated from bis borse and ordered to do duty at a station detached from bis borse. It may be conceded that be was dismounted on the 20th February, 1862, but it must be remembered that be deserted on the night of the 21st. Technically bis case may come within the very letter of the Act 1849, but that act expresses only a part of a soldier’s compact. It and all other statutes for bis benefit are based on the supposition of bis faithful service, and it would be a monstrous perversion of their purpose to bold that they could be •used to encourage desertion or recompense deserters. As was said by the Supreme Court in Zander’s Gase (92 H. S. R., 77):

u Forfeiture of pay and allowances up to the time of desertion follows from the conditions of the contract of enlistment, which is for faithful service. The contract is an entirety, and if service for any portion of the time is criminally omitted the pay and allowances for faithful service are not earned. And for the purpose of determining the rights of the soldier to receive pay and allowances for past services the fact of desertion need not be established by the findings of a court-martial; it is sufficient to justify a withholding of the moneys that the fact appears upon the muster-rolls of his company.”

The judgment of the court is that the claimant’s petition be dismissed.