Washington.--IN SPRING of 1863, as Fighting Joe Hooker moved his Union army across the Rappahannock River to open the battle of Chancellorsville, soldiers of the 34th New York Volunteers refused to march. They had enlisted for two years, they insisted, and their time was up.
Alfred Sully, their brigade commander, didn't know how to cope with this insubordination. Maybe the soldiers were right. But John Gibbon, the division commander, knew exactly what to do. He relieved Sully from command, surrounded the reluctant troops with his most loyal regiment, and told them that if they did not follow orders, that regiment would open fire.
After no discussion at all, the balky soldiers backed down. Soon afterward, they redeemed themselves by leading Gibbon's charge across a pontoon bridge into Rebel-held Fredericksburg.
Things have changed. As the nation faces possible war in the Middle East, deserters are no longer shot or branded, as in the Civil War. While no unit has defied orders to go this time, some individuals have. When today's refuseniks make this decision, what they do is get a lawyer.
Take former Marine Jeff Paterson. When his outfit took off for Saudi Arabia in August, he suddenly realized he was a conscientious objector. He was charged with being AWOL when he skipped duty to hold a press conference announcing his change of heart.
I say ''change of heart'' without having talked to Mr. Paterson, because I assume anyone volunteering for the Marine Corps must know that some day he might have to go to war.
But that assumption is not as solid as it might have been in, say, 1943. These days, the armed services seek enlistees by emphasizing the chance to learn computer skills. No one can tell from the recruiting pitch that the infantry is still the backbone of the Army and Marine Corps, just as in wars past. That a recruit might have to shoot or get shot, or even get his fingernails dirty, has become semi-classified information.
True, recruits learn, once in service, that armies still fight with guns as well as computers. But some of them consider it a breach of contract when Uncle Sam says it's time to ship out. Some discover long-repressed religious or moral scruples against war. Then they hire a lawyer.
Mr. Paterson of the Marines hired one, and counterattacked when the corps started court-martial proceedings against him. Now, after just over two months, he is one of those exceptional parties who have made the Marines back down. This week, they agreed to give him an administrative discharge -- in exchange for his dropping legal action against the Marine Corps!
Note that this was not a dishonorable discharge, or even a bad-conduct discharge. It was administrative, implying no fault, as if some clerk had merely made a mistake in the paper work when Mr. Paterson enlisted. Despite the Marines' famously successful technique of brainwashing away civilian notions while instilling esprit de corps, I can imagine whole platoons of barracks lawyers getting ideas from this case when their outfit is ordered to saddle up and go.
Not that this case, or the Marine Corps, is alone in how it deals with today's legal-minded soldiers. Army Pvt. Alfred Esquibel Jr. obviously was one of those who took the recruiting literature at face value. At Fort Campbell, Kentucky, he was discharged this week for refusing to carry a gun to Saudi Arabia. At Fort Riley, Kansas, Sgt. George Morse, who must have been around long enough to find out what armies are for, refused orders to prepare equipment for use in the Gulf crisis. Both of them asked to be classified conscientious objectors.
And how did the Army respond? It is asking a special court-martial -- not a general court-martial, which is serious -- for Sergeant Morse. It is discharging Private Esquibel for ''fraudulent enlistment,'' which must break his heart. No official mention is made of fraudulent recruitment.
Those challenges to military authority came when individuals objected to going to the Gulf. The latest comes from a soldier who is already there. Just this week, Spec. Sebastian Correa sued against the Army and President Bush for extending his active-duty hitch to keep him in Saudi Arabia. He turned down a chance to re-up in September, before he shipped out. His duty tour, supposed to end last month, was extended to December 1991.
How today's Army will respond is so far unsaid, but it surely will involve lawyers, and should Specialist Correa prevail, his suit may be contagious. If the chairman of the Joint Chiefs wants to head off an epidemic, I recommend reading up on that exemplary old-fashioned general named John Gibbon.