#### HERBERT S. FOSTER v. THE UNITED STATES.

[No. 27267.

Decided February 3, 1908.]

*On the Proofs.*

An officer at bis borne on leave of absence is ordered, at tbe expiration of bis leave, to a new station for temporary service. Subsequently be is ordered from this station to bis regiment. He is allowed mileage from bis borne to tbe place of temporary service, but is denied it for travel from tbe place of temporary service to bis regiment.

I. Tbe general principle, long recognized and established, is that tbe expiration of a leave of absence finds the officer, in legal contemplation, at bis post.

XI. An officer ordered at the expiration of bis leave of absence to a new station for temporary service is entitled to mileage from bis borne to the station; but be is not entitled to mileage for travel from tbe station to his regiment, if the distance be less than from bis home there.

*The Reporters'*statement of the case:

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

I. The claimant, Herbert S. Foster, was at the time of the performance of the travel, out of which this claim for mile*171age arises, a major of the Twelfth Regiment of Infantry, United States Army, and is now lieutenant-colonel of the same regiment.

II. The following order granting leave of absence was issued to the claimant:

“ Special Orders, *)*Headquarters > DIVISION OE THE PHILIPPINES, “ No. 224. ) *Manila, P. I., August 23,1901.*

* * * * * * *

“ 5. Leave of absence for three months, with permission to visit the United States, and to apply for an extension of one month, is granted Major *Herbert 8. Foster,*12th U. S. Infantry.”

The claimant availed himself of this leave of absence and arrived at San Francisco, Cal., September 18, 1901. His leave of absence began September 19, 1901.

This leave of absence was extended by the following order:

i£ Special Orders, *)*Headquarters oe the Army, > Adjutant-General’s Oeeice, <c No. 285. ) Washington, *December 10,1901.*

[“ Extract.]

V *!•

“ 24. The leave of absence granted Major *Herbert 8. Foster,*12th Infantry, in Special Orders, No. 224, August 28, 1901, Division of the Philippines, is extended one month.

‡ $

“ By command of Lieutenant-General Miles.

“H. C. Corbin,

*“Adjutant-General, Major-General, U. 8. Army.”*

Before the expiration of the original leave of absence the following order was issued to the claimant, then at North Calais, Vt.:

*a*Special Orders, *)*Headquarters oe the Army, >• Adjutant-General’s Oeeice, “ No. 289. j Washington, *December 11,1901.*

[“ Extract.]

*******

“ 12. By direction of the Secretary of War, Major *Herbert 8.*Foster, 12th Infantry, now at North Calais, Vermont, on leave of absence of which he availed himself at San Fran*172cisco, California, will proceed to No. 25 North Illinois street, Indianapolis, Indiana, and report in person to Lieutenant-Colonel *Oh arles FI.*Noble, 16th Infantry, recruiting officer, for temporary recruiting duty, to relieve Major *Edward B.*Pratt, 23d Infantry, and he is appointed an acting quartermaster for the time he may remain on recruiting duty. Major *Pratt*upon being thus relieved will proceed to join his regiment. The travel enjoined is necessary for the public service.

* :|= * * * *

“ By command of Lieutenant-General Miles:

“ Ti-iomas Ward,

*“Acting*Adjutant-General.”

In obedience to this order, but not until after the expiration of his leave of absence, the claimant proceeded to Indianapolis, Ind., and reported, and he has been paid $66.64 as mileage therefor, i. e., 952 miles at 7 cents per mile. After so reporting he was in the performance of recruiting duty until July 9, 1902, when he was relieved therefrom and ordered to rejoin his regiment by the following order:

“ Special Orders, 1 Headquarters oe the Army, 1 AdjittaNt-GeNeral’s Office, “No. 135. | Washington, *June*9, *1902.*

[“ Extract.]

* $ ‡ $ * &

“ 26. By direction of the Secretary of War, Major *Herbert S.*Foster, 12th Infantry, is relieved from further recruiting duty at Indianapolis, Indiana, and will proceed to join his regiment. The travel enjoined is necessary for the public service.

$ $ ‡ ‡ $

“ By command of Lieutenant-General Miles:

“ Wm. H. Garter,

*“Acting*Adjutant-General.”

By that time the station of his command had been changed by orders from the Philippine Islands to Fort Duchesne, Utah.

He traveled from Indianapolis, Ind., to that place and there joined his regiment in compliance with his orders.

III. Mileage was paid to him to the amount of one hundred-and four dollars and eighty-two cents ($104.82) for the *173travel from Indianapolis to Fort Duchesne. He afterwards made a claim to the Auditor for the War Department for mileage from North Calais, Vt., to Indianapolis. By decision of the Comptroller of the Treasury he was held to be entitled to mileage from North Calais, Vt., to Indianapolis, Ind., but not to mileage from Indianapolis, Ind., to Fort Duchesne, Utah. The amount allowed for the former travel was credited to him. His claim was disallowed for the latter, for which he had been already paid. He was compelled to refund the balance. He has thus received or been credited with mileage from North Calais to Indianapolis, but has been deprived of mileage from Indianapolis to Fort Duchesne. The mileage for that travel amounts to one hundred and four dollars and eighty-two cents ($104.82), which is the amount to which the claimant is entitled, if he is entitled to mileage for that travel.

*Mr.- George A. King*for the claimant. *Messrs. George A.*and *William B. King*were on the brief.

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

Booth, J.,

delivered the opinion of the court:

The claimant, Herbert S. Foster, a major in the United States Army, while stationed in the Philippine Islands received a leave of absence. The order covered a period of three months from August 23, 1901, with permission to visit the United States and to apply for an extension of one month. The claimant availed himself of the entire period of leave and extension thereof. While still on leave and visiting at North Calais, Vt., he was by special orders assigned to temporary recruiting duty at Indianapolis, Ind., reporting for such duty a few days subsequent to the expiration of his leave of absence. The claim preferred is for mileage from Indianapolis to Fort Duchesne, Utah, his regiment during his absence having been transferred to that latter place, and he having received orders to rejoin the same upon relief from duty at Indianapolis.

“ It is a principle long recognized and established that the expiration of a leave of absence finds the officer, in legal *174contemplation, at his post.” The findings disclose that the claimant’s leave was not interrupted, and having received his mileage for travel from North Calais, Vt., to Indianapolis he was in fact relieved of considerable expense in rejoining his regiment. The orders for temporary duty at Indianapolis were received before the expiration of his leave of absence and while claimant was still at North Calais; but for their receipt claimant would have been compelled to perform the entire journey from North Calais to Fort Duchesne at his own expense. It is quite clear, therefore, that claimant’s duty to be at his post upon the expiration of his leave was in fact but temporarily suspended by the order for temporary duty at Indianapolis. In this respect the case is similar to *Thomas F. Barr*v. *United States*(14 C. Cls. R., 272). The case can hardly be said to come within paragraph 1480 of the Army Eegulations of 1901. Paragraph 1482 of the Eegulations of 1901 was evidently framed to cover cases similar to this. It provides as follows: “An officer on leave of absence ordered to temporary duty, involving travel without troops, will receive travel allowances from place of receipt of order to place of performance of duty and return.”

While the paragraph quoted does not in terms cover the exact situation, yet its intent is apparent. An officer whose leave is interrupted by assignment to temporary duty can by its terms recover travel allowances incident to the performance of the same, clearly intending by its limitations to only relieve the officer from the necessary expense occasioned by the assignment to duty during the continuance of his leave, and restoring him upon its completion to his prior status under the leave.

The Comptroller of the Treasury, in passing upon this case, said:

> “ The effect of the order assigning him to temporary duty was to delay his return to his command until relieved from such duty, but when relieved he was under obligations to return to his command without further orders, and, as I view it, he not being farther from his command than when on leave, at his own expense.”

*175The elementary and well-settled principles applicable to this case lead inevitably to the conclusion that travel pay can not be allowed. An officer on leave of absence is enjoying a respite from military duty, and it is granted for his sole accommodation. If, during the continuance of his leave, he is called upon to perform military duty inconsistent with the real purpose of the leave, and is thereby deprived from its enjoyment, the emoluments of such duty, including travel pay, are clearly his. If, however, the leave granted is but temporarily suspended or interrupted, and its real purposes not diverted by curtailment of time, it is unjust to entail upon the Government the expense of the officer’s return to his regiment, which in the first instance is imposed upon the officer himself. A ruling of this sort would necessarily work an unjust discrimination between officers upon leave. The Army Regulations in express terms seek to relieve military officers from any onerous burden while on leave of absence by providing allowances when additional travel is enjoined by change in his regiment’s station, by granting mileage for temporary duty, and the performance of duty while en route to his regiment. The temporary suspension of a leave of absence, which, at its close, leaves the officer in *statu quo*with respect to his orders granting the leave, merely leaves the officer where the order for temporary duty found him. He must, therefore, comply with the duties and obligations of his former situation.

The petition will be dismissed. Judgment ordered for the defendants.