#### OSCAR W. FARENHOLT v. THE UNITED STATES.

(No. 28735.

Decided February 4, 1907.)

*On the Proofs.*

A captain in the Navy while on duty at a navy-yard is ordered to Cavite to take command of the naval station there. He is on that duty about a month, when, upon the recommendation of a medical board, he is ordered to Yokohama to report to the surgeon in chief of the hospital for treatment. After being in the hospital some months he is ordered to Hong-kong to the command of the Monadnock. He now claims pay as if on shore duty “ *beyond seas ”*from the time he left the navy-yard until discharged from the hospital at Yokohama. The questions in the case are whether he was on duty “ *beyond seas ”*and entitled to the extra 10 per cent allowed, for such service' while in transit from the navy-yard to Cavite, and whether he was entitled to the same extra 10 per cent during the time he was in the hospital in Yokohama.

I. Where a naval officer is detached from one duty within the United State and assigned to another beyond seas his pay will be only shore pay, as if within the continental limits of the United States, until he enters upon the new duties to which he is assigned. An officer detached from one service is not attached to another until he enters upon its duties.

II. An officer on duty beyond seas is not entitled to the extra 10 per cent allowed to officers of the Navy detached for shore duty beyond seas by the *Act of March 8, 1901*(31 Stat. L., p. 1108), while in hospital and not rendering service.

*The Reporters'1*statement of the case:

The following are the facts of the case as found by the court:

I. The claimant, Oscar *W.*Farenholt, entered the naval service as an acting ensign, having previously served as an *115enlisted man, on the 19th day of August, 1864, and has served continuously in the Navy up to the present time.

During all the time covered by this claim he was a captain of more than twenty years’ service in the Navy. He was, August 24, 1901, placed on the retired list with the rank of rear-admiral.

II. The following is a copy of the claimant’s orders, dated June 28, 1900:

“You are hereby detached - from duty at the navy-yard, Boston, Mass., and from duty at the United States Naval War College, Newport, R. I., and from such other duty as may have been assigned you; will proceed to San Francisco, Cal., thence to Manila, P. I., take passage in the steamer *Niff on*Maru, sailing from San Francisco on July 10, 1900. Immediately upon your arrival at the Asiatic Station report to the commander in chief for duty as commandant of the United States Naval Station, Cavite, P. I.

“ The officer in charge of the navy pay office, San Francisco, Gal., has been directed to secure your passage to Manila.”

On July 2, 1900, the above order was modified and the claimant was directed to proceed to the Asiatic Station via steamer *Rio de*Janeiro, sailing from San Francisco, Cal., on July 19, 1900, instead of taking passage on the steamer sailing July 10, 1900.

He entered on duty as commandant of the naval station at Cavite August 27, 1900, and so remained until the receipt of the following orders, dated September 19, 1900, detaching him from duty at the naval station, Cavite, P. I., and ordering him to the naval hospital, Yokohama, Japan:

“In accordance with the recommendation of a medical board of survey approved this day, you are hereby detached from the naval station, Cavite, and taking passage on the U. S. A. T. *Sherman*as far as Nagasaki, Japan, you will proceed to Yokohama, Japan, and report to the surgeon in charge of the hospital at that place for treatment, and report your arrival by letter to the commander in chief.

■“ 2. Guy C. Million, hospital apprentice, will accompany and attend you during your trip, and on arrival at Yokohama you will request the surgeon in charge to order him to return to his present duties in Cavite.

*116“ 3. The *Sherman*is scheduled to sail on the 22d instant, and all passengers will be on board with their baggage before 4 p. m., SejAember 21. I inclose herewith transportation order for yourself and attendant. The expenses of the attendant from this port to Nagasaki will be defrayed by the purchasing pay officer at this place. His passage from Nagasaki to Yokohama will be paid by the pay officer at Yokohama, Japan.”

The following is a copy of the claimant’s orders, dated October 27, 1900:

“ You are hereby relieved from duty in charge of the United States Naval Station, Cavite, P. I., and from such other duty as may have been assigned you, and when discharged for further treatment at the United States naval hospital, Yokohama, Japan, you will proceed to such port as the U. S. S. *Monadnoch*may be, and report to the senior officer present for the command of that vessel.”

ITe was discharged from the naval hospital December 19, 1900; assumed the command of the *Monadnoch*at Hong-kong, China, December 28, 1900.

The following is a copy of claimant’s orders detaching him from command of the Monadnoch, dated July 10, 1901:

“ Upon the reporting of your relief, you will regard yourself detached from the command of the U. S. S. Monadnoch, will proceed to your home in the United States, and wait orders.

“ Immediately upon your arrival home, report your local address, in full, to the Bureau of Navigation, Navy Department.”

III. From July 12 to December 19, 1900, claimant was paid at the rate of $3,825 a year, being the pay of the corresponding rank of colonel in the Army, less 15 per cent for duty on shore, with the exception that from August 27 to September -22 he was paid at the same rate of shore duty pay, with an increase of 10 per cent of his minimum shore pay, being at the rate of $4,022.50 a year.

The amount of pay to which he would be entitled if he were paid from the 18th day of July, 1900, when he left the United States, to the 19th day of December, 1900, when he *117was discharged from the naval hospital at Yokohama, attire full rate of army pay, plus 10 per cent increase .when on shore duty beyond seas, would be as shown by the following table :

First. July 11 to 18, 1900, en route from Boston to San Francisco:

Pay of a captain in the Navy, which corresponds in rank with a colonel in the Army, with credit for length of service, if held to be entitled: July 11 to

18, 1900, 8 days, at $4,500 per annum- $100. 00

Less pay received, shore duty, at $3,825, without credit for foreign service_ 85. 00

-$15. 00

Second. En route from San Francisco to Cavite:

Pay of a captain in the Navy, which corresponds in rank with a colonel in the Army, with credit for length of service from July 19, 1900, to August 20, 1900; 1 month, 8 days, at $4,500 per annum- 475. 00

Ijess pay received for same period, without credit for foreign service- 403. 75

•-- 71.25

Third. Shore duty at Cavite:

Pay of captain in the Navy, which corresponds in rank with a colonel in the Army, with credit for length of service from August 27, 1900, to September 20, 1900, date of detachment; 24 days, at $4,500

per annum_1_ 300. 00

Ten per cent additional on maximum pay- 30. 00 Pay for September 21 and 22, 2 days, at $4,500 less 15 per cent, shore duty, without credit of 10 per cent

for shore duty, $3,825_ ' 21. 25

- 351.25

Less pay received from August 27, 1900, to September 21, 1900; 25 days, at $3,825_ 265. 62

Ten per cent on minimum shore pay- 20. 66

Pay as above, less 15 per cent, for September 22, 1900; 1 day, at $3,825_ 10.62

- 296. 90

54.35

Fourth. En route to and at the Yokohama Hospital: Pay of a captain in the Navy, which corresponds in rank with a colonel in the Army, with credit for length of service, September 23, 1900, to December

19, 1900; 2 months, 27 days, $4,500 per annum-Ten per cent on maximum pay-

1, 087. 50 108. 75

1,196. 25

Less pay received for same period, at $3,825 per annum (without 10 per cent for shore duty beyond

seas) _ 924. 37

- 271. 88

Total

412. 48

*118
      *Mr. Clark McKercher*for tlie claimant. *Messrs. George A. c& William M. King*were on the brief.

*Mr. John Q. Thompson*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the defendants.

Atkinson, J.,

delivered the opinion of the court:

The claimant, Oscar W. Farenholt, during the period covered by the claim for which he sues, was a captain in the United States Navy of more than twenty years’ service and is now on the retired list with the rank of rear-admiral. While on duty at the navy-yard at Boston he was ordered to proceed to San Francisco, thence to Manila, P. I., and from there to Cavite, where he was to assume the duties of commandant of the naval station at that place. He performed shore duty at Cavite from August 27, 1900, until September 22 of said year, when, upon the recommendation of a medical board of survey, he was ordered to proceed to Yokohama, Japan, and report to the surgeon in charge of the hospital at that place for treatment. In obedience to this order he remained at the hospital until December 19, 1900, when he ivas ordered to proceed to Hongkong, China, and assume command of *the,'Monadnock*for sea duty.

Claimant was allowed shore-duty pay from the time he left Boston until his arrival at Cavite, which, for an officer of his rank and service, is at the rate of $3,825 per year, which is likeivise the pay of an officer of -the Army' of corresponding rank and service, less 15 per cent for duty on shore. During the time he was in charge of the navy-yard at Cavite he was paid at the rate of shore-duty pay beyond seas, with an increase of 10 per cent on his minimum pay; and from the time he left Cavite, and during the time he was at the hospital at Yokohama, his pajr was ah the same rate he received while he was traveling from Boston to Caidte.

Claimant brings this suit to recover the full pay of an officer of his grade as if he were on shore duty beyond seas, including the 10 per cent allowed to army officers, from the time he left Boston until he ivas discharged from the hospital at Yokohama, Japan, which amounts to $412.48.

*119The defendants’ contention is that while the claimant was proceeding from Boston to Cavite he was not performing “ shore duty beyond seas ” within the meaning of the statute, and, further, that while going from Cavite to the hospital at Yokohama and while in the hosjoital at Yokohama he was not performing “ shore duty beyond seas,” which allows the full maximum pay for shore service beyond seas.

Section 13 of the act of March 3, 1899 (30 Stat. L., 1007), commonly called “ The navy personnel act,” provides as follows:

*“*That after June 30, 1899, commissioned officers of the line of the Navy and of the Medical and Pay Corps shall receive the same pay and allowances, except forage, as are or may be provided by or in pursuance of law for the officers of corresponding rank in the Army: *Provided,*That such officers when on shore shall receive the allowances, but fifteen per centum less pay than when on sea duty; but this provision shall not appy to warrant officers commissioned under section twelve of that act: *Provided further,*That when naval officers are detailed for shore duty beyond seas they shall receive the same pay and allowances as are or may be provided by or in pursuance of law for officers of the Army detailed for duty in similar places.”

The army appropriation act of May 26, 1900 (31 Stat. L., 211), contains the following provision:

“ That hereafter the pay proper of all officers and enlisted men serving in Porto Eico, Cuba, the Philippine Islands, Hawaii, and in the Territory of Alaska, shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pajr proper as fixed by law in time of peace.”

The naval appropriation act of March 3, 1901 (31 Stat. L., 1108), provides as follows:

“ That officers of the Navy, and officers and enlisted men of the Marine Corps, who have been detailed, or may hereafter be detailed, for shore duty in Alaska, the Philippine Islands, Guam, or elsewhere beyond the continental limits of the United States shall be considered as having been detailed for ‘ shore duty beyond seas,’ and shall receive pay accordingly, with such additional pay as may be provided by law for service in island possessions of the United States.”

*120In referring to the proviso in the section of the navy personnel act above quoted, claimant’s counsel says, “ the language is not ‘ when naval officers are on duty beyond seas,’ but ‘ when naval officers are detailed for shore duty beyond seas they shall receive the same pay and allowances as are or may be provided by or in pursuance of law for officers of the Army detailed for duty in similar places.’ ” We do not agree with this technical construction of the language of the statute quoted. When a naval officer is detached from a duty to which he had formerly been assigned, and before he enters upon other duties under another order of assignment at another place, his pay should be shore pay as if within the continental limits of the United States, and the higher rate of pay should date from the time he enters upon the new duties to which he has been assigned. In other words, when an officer is detached from one service, he is not attached to another until he has entered upon the duties of such assignment.

The contention of claimant for sea pay while in *transitu*from an assignment from shore duty to enter upon duty beyond seas has been determined by this court in the first opinion rendered in the case of *Charles M. Thomas*v. *The United States*(38 C. Cls. R., 113), and reiterated in its second opinion in that case (ibid., 719). In said case the claimant received similar orders to those issued to the claimant in the case at bar. In the Thomas case (p. 121) the court said:

“ 2. As to the claim for sea pay while traveling under the order of the Navy Department in a merchant vessel from December 2 to December 12, 1899, such travel being from Barbados, the place of his detachment from the U. S. S. Lancaster, the decision in the case of *Ryan*v. *The United States*(38 C. Cls. R., 143), now decided, is controlling, and following that decision the claimant is not entitled to recover sea pay during such travel subsequent to the detachment from the vessel in which he was performing sea service. Nor is the claimant entitled to recover sea pay while traveling to his post of duty on a merchant vessel from San Francisco to Hongkong, for the reason that when he was detached from the U. S. S. *Lancaster*he thereby ceased to perform sea service and became entitled to the lower or exceptional rate of. pay provided for by the proviso to section 13, and that rate of pay continued until he reached the vessel to ivhich he was subsequently assigned, as ‘ no service shall be regarded *121as sea service except such, as shall be performed at sea under the order of a Department and in a vessel employed by authority of law.’ ”

The same principal was plainly declared in the cases of *Collins*v. *The United States*(37 C. Cls. R., 222), *Ryan*v. *The United States*(38 C. Cls. R., 143), and also in *Ackley's case*(40 C. Cls. R., 216).

The case of *Thomas*v. *The United States (supra)*was taken to the Supreme Court upon cross appeal, and the conclusion herein announced was there sustained.

For the reasons we have assigned judgment is awarded to claimant for fifty-four dollars and thirty-five cents ($54.35), for that portion of his claim which involves the computation of 10 per cent increase upon the maximum pay of his grade while on shore duty beyond seas at Cavite, P. I., and that no further allowance can be made for additional pay to claimant, as set forth in the findings herein.