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upon the Vermont, and was in no sense attached to that ship. All his duties on the ship were incidental to and not inconsistent with his superior duties at the navy-yard, and did not change the general character of his service from shore duty to sea duty, as would have been the case had he been formally detached from duty at the navy-yard and ordered to the receiving ship.
The action of the Auditor for the Navy Department disal. lowing his claim for extra compensation is therefore affirmed.
EDW. A. BOWERS,
IN RE APPEAL OF LIEUT. GEORGE H. PETERS, U. S. N., FROM THE DECISION OF THE AUDITOR FOR THE NAVY DEPARTMENT DISALLOWING HIS CLAIM FOR SEA PAY WHILE ON TEMPORARY DUTY AT THE NEWPORT, R. I., NAVAL STATION.
Where an Auditor disallows certains items in an account which have
been allowed a claimant by a paymaster it amounts to a formal settlement of the account of such claimant, from which an appeal may be
taken under section 8 of the act of July 31, 1894. An officer of the Navy in sea service ordered by the Secretary of the Nary
to report to the commandant of a naval station for instruction and exercise in automobile torpedoes, is thereby detached from his vessel, and is not entitled to sea pay while on such duty at the naval station.
July 2, 1895. This case arises from the fact that in the settlement of the accounts of Paymaster John Corwine the payment made to Lieut. George H. Peters, U. S. N., for the difference between shore-duty pay and sea pay and rations during absence from his ship, the Raleigh, on shore service, was disallowed by the Auditor, and thereupon, after such disallowance, the items were checked against the pay of Lieutenant Peters in the subse. quent account of the paymaster. This amounted to a formal settlement of Lieutenant Peters's accounts, and it will be treated as such settlement from which an appeal may be taken to the Comptroller of the Treasury under section 8 of the act of July 31, 1894 (28 Stat., 207).
The claimant now appeals, claiming this difference, and basing his claim upon the performance of certain duties pursuant to the following order:
“NAVY DEPARTMENT, Washington, May 15, 1895. "SIR: Proceed to the naval station, Newport, R. I., and report to the commandant on the 24th instant, for instruction and exercise in automobile torpedoes. When discharged from further attendance at the station, return to Norfolk, Va., and resume your present duties. “This duty is in addition to your present duties. “Very respectfully,
“Acting Secretary of the Navy." From the statement submitted by Lieutenant Peters it appears that he was the ordnance officer of the U. S. S. Raleigh, then lying at the Norfolk Navy-Yard in commission for sea service, and that as ordnance officer he was in charge, among other equipments, of the torpedoes. He claims that it was necessary for him to acquire at the naval station at New. port, R. I., knowledge in reference to automobile torpedoes before he was competent to perform his duties on board the Raleigh, and that this order of the Secretary of the Navy was given for that purpose.
Whether this be so or not is immaterial to a proper decision in this case, for an examination of the order shows that he was in fact detached from the Raleigh and directed to report to the commandant of tbe naval station. While at the naval station he was subject to the orders of the commandant and to the discipline of such station, and could not, therefore, have been subject to the orders of the captain of the Raleigh, nor to the discipline of that ship. It is manifestly impossible that he should have been subject to two commands so distinct and inconsistent as were these. While it may be true that the information which he was sent to acquire related to the operation of a portion of the ordnance under his charge on the Raleigh, yet this information is a part of the ordinary education of a nayal officer necessary to the performance of duties that may be assigned him on any ship. It may also be true that he continued on the rolls of the ship and was paid by her paymaster, yet these facts are not conclusive of his status; nor is the paying of his share of the mess bills, as by article 1078 of the Navy Regulations it appears that an officer in fact detached from a vessel is not subject to the payment of
the mess bills on the ship from which he is detached, and if he made such payment it was purely voluntary on his part.
In the case of Captain Picking, decided by Second Comptroller Mansur, May 15, 1894, it was held that “the fact that Captain Picking was attached to the Charleston is not material, as it appears from the evidence that he was on shore duty, and that fact being established the law fixes the rate of his compensation." He had been appointed a member of a naval examining board in Washington, D. C., and was thus necessarily detached from his ship to shore duty, although contin. uing to be an officer of the Charleston—that is, one of her complement.
It is well established by the United States Supreme Court that the character of the duty, wbether " sea duty” or “shore duty," is determined not by what the Secretary of the Navy says it is, but by what it is in fact. (United States v. Symonds, 120 U. S., 46; United States v. Bishop, 120 U. S., 51; United States v. Strong, 125 U. S., 656.) These cases determine that it is not within the power of the Secretary of the Navy to raise or lower the pay of an officer as fixed by section 1556, Revised Statutes, by an arbitrary declaration that a given service is sea service or shore service. The character of the service performed by the officer must determine his rate of pay, and section 1571, Revised Statutes, has defined what sea service is.
How, then, can Lieutenant Peters, who by an order of the Secretary of the Navy was sent from Norfolk, Va., to Newport, R. I., to perform duties under the direction of the commandant at the Newport naval station, such duties being entirely on shore, successfully claim that he was at sea. He had been transferred by this order to the jurisdiction of another supe. rior, and “when discharged from further attendance at the station,” by the commandant of the station, he was returned to Norfolk and resumed his duties on board the Raleigh. The second paragraph of the Secretary's order, that “This duty is in addition to your present duties," is inconsistent with what precedes it and meaningless, for it was physically impossible that he could perform his duties as ordnance officer on the Raleigh while at Newport, R. I.
Accordingly, I am of the opinion that Lieutenant Peters is not entitled to sea pay during the time he was absent from the Raleigh upon this duty, and sustain the decision of the Auditor.
EDW. A. BOWERS,
IN RE CLAIM OF ADAM BADEAU FOR LONGEVITY INCREASE OF PAY AS A RETIRED ARMY OFFICER.
The act of March 3, 1891, directing the accounting officers of the Treas
ury not to suspend or withhold the pay of certain retired officers therein described whose names were upon the retired list prior to the passage of, and retained therein in obedience to, the act of March 3, 1875, applies only to officers of the Army whose names were lawfully on the retired list, and not to those who, prior to the passage of the last-mentioned act, had severed themselves from the Army by force of section 2, chapter 38, of the act of March 30, 1868, in accepting or holding a diplomatic or consular position.
July 2, 1895. This case comes before me as a part of the unfinished business of the Second Comptroller's Office pending October 1, 1894.
Adam Badeau, by his letter of March 17, 1893, claimed that he was entitled to certain payments by virtue of the provision of the act of March 3, 1891 (26 Stat., 872), which is as follows:
66 That the accounting officers of the Treasury are hereby directed not to suspend or withhold the pay of any retired officer of the Army whose name was upon the retired list prior to the passage of the act of March third, eighteen hundred and seventy-five, and having lost an arm or leg, or having an arm or leg permanently disabled by reason of resection on account of woundsor having lost both eyes by reason of wounds received in battle, has been retained upon said list by the Secretary of War in obedience to the act of March third, eighteen hundred and seventy-five notwithstanding such officer accepted and held a diplomatic or consular office.”
The facts in the case of Adam Badeau and his rights have been passed upon so many times by the various Second Comptrollers, Attorneys-General, and the Court of Claims (decision of Second Comptroller Upton of June 18, 1883; decision of Second Comptroller Gilkeson of April 15, 1890; 15 Opin. A. G., 407; 19 Id., 202 and 609), and especially by the United States Supreme Court in the case of Badeau v. United States (130 U. S., 439), where a full statement of the history of this case up to the passage of the act of March 3, 1891, will be found, that it is unnecessary to recite its history in extenso. We have here to consider what effect, if any, the act of March 3, 1891, has upon the rights of the claimant, and in such consideration the following undisputed facts only are essential:
1. That on May 18, 1869, being then a first lieutenant of infantry in the United States Army, he was reported by a retiring board as being incapacitated for active service;
2. That on May 19, 1869, in pursuance of an appointment tendered him by the President on April 31, 1869, as assistant secretary of legation at London, he accepted the appointment and filed his oath of office;
3. That on May 22, 1869, the finding of the retiring board was approved by the Secretary of War; and
4. That on May 25, 1869, the President ordered his name to be placed on the retired list with full rank of captain, to date from May 18, 1869.
Section 2 of the act of March 30, 1868 (15 Stat., 58), was in force on May 19, 1869, and provides:
“That any officer of the Army or Navy of the United States who shall, after the passage of this act, accept or hold any appointment in the diplomatic or consular service of the Gov. ernment shall be considered as having resigned his said office, and the place held by him in the military or naval service shall be deemed and taken to be vacant, and shall be filled in the same manner as if the said officer had resigned the same.”
This was incorporated into the Revised Statutes as section 1223. It thus appears that no officer of the Army, whether on the active or retired list, could accept an appointment in the diplomatic or consular service and remain an army officer. (Badeau v. United States, 130 U. S., 439, 449.) Consequently, First Lieutenant Badeau, on May 19, 1869, by accepting the position of assistant secretary to the legation at London, ceased to be an officer of the Army eo instanti. He was at that date an officer on the active list, the finding of the retiring board not having been approved by the President. But so far as severing his connection with the Army by accepting a diplomatic office is concerned, it would have made no difference whether he was at that date an officer on the active or retired list, in view of the statute referred to above. Having ceased to be an officer of the Army by virtue of his own action in accepting this diplomatic position, he could in no way again become an officer therein, except in accordance with Article II, section 2, of the Constitution; that is, by appointment by the President by and with the advice and consent of the Senate.