The claimant originally enlisted at Washington in August, 1878,
and was discharged at Mare Island, California, November 6, 1886,
receiving (under the provisions of Rev.Stat. § 1290, as
amended by the Act of February 27, 1877) travel pay and commutation
of subsistence from Mare Island to Washington. He did not return to
Washington, but November 10, 1886, reenlisted at Mare Island as a
private, and in the course of his service was returned to
Washington, where, at the expiration of two years and four months,
he was discharged at his own request.
Held hat, as the
service was practically a continuous one, and his second discharge
occurred at the place of his original enlistment, he was not
entitled to his commutation for travel and subsistence to the place
of his second enlistment.
The petition in this case set forth that the petitioner enlisted
as a private in the marine corps, November 10, 1886, at Mare
Island, California, to serve five years, and was discharged March
13, 1889 at Washington, D.C., by order of the Secretary of the
Navy; that, under the provisions of Rev.Stat. § 1290, he was
entitled to receive transportation and subsistence or travel pay
and commutation of subsistence from the place of his charge to that
of his enlistment; that he made written application for the same to
the Treasury Department, and was informed that his claim was
adjusted and transmitted
Page 160 U. S. 655
to the Second Comptroller, who declined to allow the case on the
ground that he was discharged at his own request before the
expiration of his term of enlistment.
The case having been heard before the Court of Claims, that
court upon the evidence found the following facts:
1. The claimant enlisted at the age of 13 years, 1 month, and 3
days, in the marine corps of the United States at Washington, D.C.,
on August 29, 1878, for a term of 7 years, 10 months, and 27 days,
and was then "bound to learn music" in said corps.
April 17, 1880, he was rated as a drummer.
November 6, 1886, he was discharged from the service at Mare
Island, California, as a drummer.
November 10, 1886, he reenlisted at Mare Island, California, as
a private in said corps for a term of five years.
On March 13, 1889, before the expiration of the last-mentioned
term of enlistment, Thornton, as a private in said corps, was at
his own request, and not by way of punishment for an offense,
discharged from service at the Marine Barracks, Washington, D.C.,
by direction of the Secretary of the Navy.
The claimant was settled with in full for all pay and allowances
except transportation and subsistence in kind, or, in lieu thereof,
travel pay and commutation of subsistence, from Washington, D.C.,
the place of his discharge, to Mare Island, California, the place
where he had reenlisted. And when he was discharged at the end of
his term of enlistment, he received travel pay and commutation of
subsistence, computed at the rate of one day for every twenty miles
of the distance from Mare Island, California, to Washington,
D.C.
2. The travel pay and commutation of subsistence of a private in
the marine corps, when discharged in the third year of his second
term of enlistment, and when he is allowed the same, are stated by
the proper accounting officers of the Treasury Department to be one
day's pay at 60 cents per day, and one ration, commuted at 30 cents
for each twenty miles of the distance from place of discharge to
place of last enlistment, and in the settlement of accounts, they
adopt 3,136 miles as the distance from Washington, D.C., to Mare
Island, California.
Page 160 U. S. 656
According to this practice, the travel pay and commutation of
subsistence on such a discharge would be for --
157 days' pay at 60 cents . . . . . $ 94.20
157 rations at 30 cents . . . . . . 47.10
-------
Total . . . . . . . . . . . . . $141.30
3, Under a longstanding construction, by the accounting officers
of the Treasury Department, of the law embraced in section 1290 of
the Revised Statutes, it has been the practice to refuse travel pay
and commutation of subsistence to enlisted men from the place of
their discharge to the place of enlistment when they have been
discharged at their own request prior to the expiration of their
term of enlistment.
The only exception made under this practice is when an enlisted
man is discharged at his own request after twenty years of faithful
service. (Army Regulations, 1863, par. 163.)
4. Before bringing suit here, the claimant presented the claim
set forth in his petition to the proper accounting officers of the
Treasury Department, and it was disallowed in accordance with the
practice mentioned in finding 3.
The court also found as a conclusion of law that the claimant
was entitled to recover of the defendant the sum of $141.30, for
which amount judgment was entered, and the government appealed.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
By Rev.Stat. § 1290, as amended by the act of February 27,
1877, c. 69, 19 Stat. 244,
"when a soldier is discharged from the service, except by way of
punishment for an offense, he shall be allowed transportation and
subsistence from the place of his discharge to the place of his
enlistment, enrollment,
Page 160 U. S. 657
or original muster into the service. The government may furnish
the same in kind, but in case it shall not do so, he shall be
allowed travel pay and commutation of subsistence, according to his
rank, for such time as may be sufficient for him to travel from the
place of discharge to the place of his residence, or original
muster into service, computed at the rate of one day for every
twenty miles."
The case was disposed of in the court below as one depending
solely upon the question whether a soldier, who is discharged from
the service by his own consent, shall, under the above section, be
allowed the transportation and subsistence therein provided
for.
We do not find it necessary to express an opinion upon this
question, as there is another point, apparently not called to the
attention of the Court of Claims, upon which we think the case must
be reversed. The transportation provided for is "from the place of
his discharge to the place of his enlistment, enrollment, or
original muster into the service." Claimant was originally enlisted
at Washington in August, 1878, and was discharged at Mare Island,
California, November 6, 1886, receiving, under the provisions of
the above section, travel pay and commutation of subsistence from
Mare Island to Washington. He did not return to Washington,
however, but, on the fourth day thereafter (November 10th)
reenlisted at Mare Island as a private, and in the course of his
service was returned to Washington, where at the expiration of two
years and four months, he was discharged at his own request, and
now claims transportation and commutation of subsistence from
Washington to Mare Island as the place of his enlistment, amounting
to $141.30. The result is that, notwithstanding his original
enlistment and final discharge were both at Washington, he receives
$282.60 for travel and subsistence twice across the continent
without ever having, so far as it appears, expended a dollar or
traveled a mile.
These allowances are both of them, presumptively, for expenses
actually incurred, as is evident from the provision that they may
be furnished in kind, and are designed to reimburse the soldier for
all necessary outlays of returning to the place of his enlistment,
which is treated as, presumptively, his home. Indeed, the law of
1812 originally provided, 2 Stat. 674, that the travel and
subsistence should be allowed from the place of discharge to the
place of residence of the claimant. By Rev.Stat. § 1290,
however, Congress substituted
Page 160 U. S. 658
for place of residence the expression "place of enlistment,
enrollment, or original muster into the service," the purpose of
which was doubtless to protect the government against the soldier's
choosing a distant place for his assumed residence and recovering a
large mileage to which he was not justly entitled. The presumption,
however, that these allowances are for expenses actually incurred
is not absolutely conclusive, and if it be shown that the soldier
cannot possibly intend to incur the expense for which the allowance
is made, or for some other reason he is not within the spirit of
the act, he is not entitled to the allowance. His claim therefore
should be based upon something more than a mere technicality. If,
for example, petitioner's discharge and reenlistment at Mare Island
had been contemporaneous acts, he would clearly not have been
entitled to travel and subsistence to Washington, and such we
understand to have been the practice of the department. So if such
discharge and reenlistment were so near together that they
constituted, practically, a continuous service, we think the second
enlistment may be treated as a reenlistment, and if the soldier be
returned to the place of his original enlistment and there
discharged, he would not be entitled to an allowance for travel and
subsistence.
In the case of
United States v. Alger, 151 U.
S. 362;
152 U. S. 152 U.S.
384, where an officer resigned one day and was appointed to a
higher grade the next day, it was held that for the purpose of
computing longevity pay, he was to be considered as having been
engaged in a continuous service. Bounties to private soldiers, in
the form of increased pay after five years' service are allowed by
Rev.Stat. §§ 1282, 1284 to those who reenlist within one
month (since extended to three months, Act of August 1, 1894, c.
179, § 3, 28 Stat. 216) after having been honorably
discharged. This would seem to indicate an intention on the part of
Congress to regard a reenlistment within thirty days as practically
a continuous service for the purpose of additional pay, though not
necessarily so for the purposes of transportation and
subsistence.
In this case, we are able to take judicial notice of the
fact
Page 160 U. S. 659
that claimant could not possibly have traveled from Mare Island
to Washington and back within the four days which elapsed between
his discharge and his reenlistment, and hence, if he intended to
reenlist, that he received there an allowance to which he was not
justly entitled, and, as the second discharge is at the place of
his original enlistment, he is not entitled to another mileage
across the continent. It will perhaps not be just to say of the
claimant that the interval which elapsed between his discharge as a
drummer and his reenlistment as a private at Mare Island was for
the purpose of drawing transportation and subsistence to
Washington, but the case at least suggests that possibility. Nor do
we undertake to say that the paymaster was not fully justified in
paying the claimant his transportation and subsistence when
originally discharged at Mare Island, since it was manifestly
impossible for him to know whether the claimant intended to
reenlist or not; but, under the circumstances, we think the service
should be treated as a continuous one. Indeed, it is somewhat
doubtful whether this is not specially provided for by section
1290, which allows transportation and subsistence from the place of
his discharge "to the place of his enlistment, enrollment, or
original muster into the service." If the word "original" preceded
the word "enlistment," this construction would be freer from doubt,
but the section, as it reads, certainly lends support to the theory
that the allowances were not intended as a mere bounty.
Whether the claimant should be recharged, after his
reenlistment, with the travel and subsistence allowed him on his
first discharge raises a question which is not presented by the
record in this case, and upon which we do not feel warranted in
expressing an opinion. Other considerations may have a bearing upon
this question which do not enter into the present controversy. If,
for instance, the claimant did not intend to reenlist when first
discharged, but subsequently changed his mind, it does not
necessarily follow that he should be recharged these allowances if
the government chose to reenlist him. The question at issue
concerns only the propriety of the second claim, and not of the
first allowance. The case
Page 160 U. S. 660
is a somewhat exceptional one, and all that we decide is that
where the service is practically a continuous one, and the
soldier's second discharge occurs at the place of his original
enlistment, he is not entitled to his commutation for travel and
subsistence to the place of his second enlistment.
The judgment of the Court of Claims is therefore
Reversed, and the case remanded with directions to dismiss
the petition.
