#### NEWTON A. McCULLY v. THE UNITED STATES.

(No. 28913.

Decided March 11, 1907.)

*On the Proofs.*

A lieutenant-commander in the Navy while serving under orders of the Navy Department upon shore duty at St. Petersburg is detached and ordered to proceed to Washington for shore duty there. Prom the date of his departure from the United States he is paid the full pay of an officer of the Army of relative ránk and with 10 per cent additional. Prom the time he is detached from duty at St. Petersburg until his arrival in this country he is paid only shore-duty pay, *i. e.,*the pay of his rank less 15 per cent.

I.The *Act 3d March, 1899*(30 Stat. L., p. 1007), provides *"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; ”*and the *Act 2d March, 1901*(31 Id., 903), provides that “such service shall be *counted from the date of departure from said States to the date of-return thereto; ”*and the *Act 3d March, 1901*(31 Id., 1108), provides that when naval officers are detailed for duty beyond the continental limits of the United States they shall be considered as detailed for “ *shore duty beyond seas, and shall receive pay accordingly.”*Under these statutes a naval officer is entitled to be paid the increase of 10 per cent from the time of his departure until his return to the United States.

II.Where an officer of the Navy is detached from sea duty he ceases to be entitled to full pay, and generally increased pay will cease when an officer is detached from service entitling him thereto ; but under the act 2d March, 1901, the time of service beyond seas is to be counted from the date of departure to the date of return.

III.The basis of this increased pay is his “ *pay proper as fixed by law for time of peace.”*But the term “ *pay proper ”*is not to be construed differently from the term “ pay,” which includes the increase granted for longevity service. The total of the two is the. “ *pay proper ”*upon which the percentage is to be computed.

*The Reporters'*statement of the case:

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

I. The claimant, Newton A. McCully, was during the period covered by his claim a lieutenant-commander of more than twenty years’ service in the Navy.

*276II. Prior to September 27, 1905, the claimant was on shore duty beyond the seas under orders from the Navy Department, dated February 12,1904, and March 17, 1904, directing him to proceed to the scene of war between Russia and Japan by steamer from New York via St. Petersburg, Russia, to report to Lieut. Commander Charles C. Marsh, U. S. Navy, naval attaché at Tokyo, Japan. On September 15, 1905, the Acting Secretary of the Navy issued the following order:

“ Navy Department,

“ Washington, *&September 15,1905.*

*“*Sir : You are hereby detached from special duty at St. Petersburg, Russia, and from such other duty as may have been assigned you, will proceed to Washington, D. C., and -report to the chief intelligence officer, Mills Building, Navy Department Annex, for duty in the office of naval intelligence.

“ This employment on shore duty is required by the public interests.

“ Respectfully,

. (Signed) “ Chas. H. Darling,

*11 Acting Secretary.*

“ Lieut. Newton A. McCtjlly, U. S. Navy,

“ In care of U. S. ambassador, St. Petersburg, Russia.

“(Office of Naval Intelligence.)”

In accordance with this order he was detached from and left St. Petersburg by steamer September 27, 1905. After traveling by sea and land, as stated in his petition, he arrived at New York on the 19th day of October, 1905, and immediately proceeded thence to Washington, D. C.

III. The claimant received his full sea pay-and 10 per cent additional thereon under the navy personnel act of March 3, 1899 (sec. 13, 30 Stat. L., 1007), and the acts of March 2 and 3, 1901 (31 Stat. L., 903, 1108), from February 13, 1904, the date his steamer sailed from New York, to and including September 26,1905, the date he was detached from duty under his order of September 15, 1905. From September 27 to October 19, 1905, the date he arrived in New York, both dates included, he was paid at the rate of $3,500 per annum, being the pay of the corresponding rank of the Army, less 15 per cent for shore duty, being $2,975.

*277If he had continued to be paid at his full sea’pay with 10) per cent additional from September 27 to October 19, 1905, he would have received $66.62 more pay than he has received.

*Mr. George A. King*for the claimant.-

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

Peelle, Ch. J.,

delivered the opinion of the court:

The claimant, a lieutenant-commander in the Navy, while serving under orders of the Navy Department on shore duty beyond seas, received the following order:

“ Navy Department,

“ Washington, *September IS, 1905.*

“ SiR: You are hereby detached from special duty at St. Petersburg, Russia, and from such other duty as may have been assigned you, will proceed to Washington, D. C., and report to the chief intelligence officer, Mills Building, Navy Department annex, for duty in the Office of Naval Intelligence.

“ This employment on shore duty is required by the public interests.

“ Respectfully,

(Signed) *“*Citas. H. Darling,

*“Acting Secretary.*

“ Lieut. Newton A. McCtjlly, U. S. Navy,

“ In care of U. S. Ambassador, St, Petersburg, Russia.

“(Office of Naval Intelligence.)”

. From the date of departure from the United States, and while serving on shore duty beyond seas, prior to that order, the claimant was paid the full pay of an officer of the Army of corresponding rank, plus 10 per cent additional, under section 13 of the act of March 3, 1899 (30 Stat. L., 1007), providing, inter alia, “ 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,” and the act of March 2,1901 (31 Stat. L., 903), making appropriations for the Army, whereby the pay proper of officers of the Army for services beyond the limits of the United States and the Territories contiguous thereto is in*278creased 10 per centum, such, service being “ counted from the date of departure from said States to the date of return thereto.”

That act was followed by the act of March 3, 1901 (31 Stat L., 1108), making appropriations for the Navy, wherein it was, in substance, provided that when naval officers are detailed for duty in our island possessions or elsewhere beyond the continental limits of the United States thejr shall be considered as detailed for “ shore dxxty beyond seas,” and “ shall receive pay accordingly with such additional pay as may be provided by law fQr service in island possessions of the United States.”

Under these statiit'es the claimant contends that notwithstanding his detachment from special duty at St. Petersburg, he is entitled to be paid the increase of 10 per cent from the time of his departure from St. Petersburg until his return to the United States.

The defendants insist that when the claimant was detached from special duty at St. Petersburg his detail for shore duty beyond seas then and there ceased, and that he then and there became entitled to his ordinary shore pay, less 15 per cent.

So far as we are advised, the ruling has been uniform that where an officer of the Navy is detached from sea duty he at once ceases to be entitled to sea pay, and for the same reason when such officer has been detached from shore duty beyond seas his pay for that service ceases unless the provisions of the act of March 2,1901 (supra), providing that “ the time of such service shall be counted from the date of departure from said States to the date of return thereto ” is controlling.

Therefore, in order to determine the claimant’s right, we are required to construe those words. The claimant was paid full sea pay, plus the increase of 10 per cent, from the 'date of his departure from the United States to the date he was so detached from special duty, and such we are advised is in harmony with the ruling of the accounting officers, on the ground that when the claimant sailed from the United States he xvas traveling under the order of detail for shore duty beyond seas, while on his return voyage he was traveling-under the order detaching him therefrom and ordering him to shore duty in Washington.

*279If the statute authorizes the payment of the increase of 10 per cent to the .date of his return to the United States, then the order detaching the claimant from duty at St. Petersburg would not operate to deprive him thereof, nor would it operate to place him on ordinary shore duty until his return to the United States.

As the time of service which the act provides, “ shall be counted from the date of departure from said States to the date of return thereto,” evidently means *time of service*“ beyond the limits of the United States,” it follows that when an officer of the Navy is detailed for shore duty beyond seas, his service under such detail begins upon his departure from the United States and ends when he returns thereto.

The language of the act respecting the right of such officers to the increase of 10 per cent from the date of their departure from to the date of their return to the United States is clear and unambiguous; and the language is equally clear respecting the basis upon which that increase is to be computed, i. e., “ the pay proper as fixed by law for time of peace.”

In the case of *United States*v. *Mills*(197 U. S., 223), affirming this court in the *Irwin case*(38 C. Cls. R.., 103), the court held that the words “ pay proper ” should not be construed differently from the word “ pay,” which included the amount granted for longevity service as well as the amount provided by Pevised Statutes, section 1261, and that the two amounts, or total, is “ pay proper,” upon which total the percentage is to be computed, as provided for by the acts herein referred to.

Whether the claimant would have been entitled to the 10 per cent increase had he, upon his detachment from such special duty ánd before returning to said States, been assigned to sea duty is not before us and, therefore, not decided.

Our conclusion is that the claimant is entiled to recover the 10 per cent increase computed on his “ pay proper,” as indicated above, and judgment is ordered accordingly for $66.62.