#### JOHN HOGAN v. THE UNITED STATES.

[No. 28463.

Decided January 6, 1908.]

*On the Proofs.*

While a military command is stationed at Fort Ontario, N. Y., but after it has been ordered to Alaska, a soldier applies for his discharge “ *by way of favor.”*His application is not acted upon until he, with his company, has arrived in Seattle. He is then and there discharged “ *by way of favor ”*and as “ *not entitled to travel pay."*

I.An enlisted man, like an officer, who is discharged at his own request “ *by way of favor*” is not entitled to travel pay and commutation for subsistence under Revised Statutes (§ 1289) as amended by the *Act 27th February,*1877 (19 Stat. L., 243).

II.The fact that after the soldier applies for his discharge he is . carried with his company from Fort Ontario, N. Y., to Seattle, Wash., before his application is acted on by the War Department does not take his case out of the rule. Neither does it entitle him to travel pay back to Fort Ontario, the place where he was when he applied for his discharge.

III.Both the discharge of a soldier “ *by way of favor ”*and the movement of troops are wholly within the authority of the War Department, and no court can adjudge the action of the Department in regard to these subjects as unreasonable or unjustifiable.

*The Reporters'*statement of the case:

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

I. The claimant reenlisted in the United States service on December 28, 1898, at Philadelphia, Pa., was assigned to Company I, Seventh U. S. Infantry, and appointed corporal February 23,1899.

II. While stationed with his company at Fort Ontario, N. Y., the station of his company was changed from the Department of the East to the Department of Alaska, for *159station at Fort St. Michael, Alaska, by General Orders, No. 14, Headquarters of the Army, Adjutant-General’s Office, February 12, 1900, the company to be sent to Seattle, Wash., and fully equipped for arctic service, ready to embark not later than June 1, 1900.

III. On May 2, 1900, the claimant made application for discharge from the service of the United States by way of favor, but before his application was acted upon his company was transferred to Seattle, Wash. On May 26, 1900, Special Orders, No. 124, were issued from the Headquarters of the Army, as follows:

“ By direction of the Assistant Secretary of War, the following-named enlisted men, supposed to lie at the stations designated after the respective names, will be discharged by way of favor from the service of the United States by the commanding officers of their respective stations: * * *

“ Corpl. John Hogan, Company I, Seventh U. S. Infantry, Seattle, Wash. * * *

“ These soldiers are not entitled to travel pay.

“ By command of Major-General Miles.”

In pursuance of the above order the claimant was discharged at Seattle, Wash., by telegraphic instructions, Adjutant-General’s Office, May 31, 1900, and received his final pay and clothing pay in full, to include the day of his discharge, but without travel pay.

IV. On March 10, 1903, the claimant filed a claim in the office of the Auditor of the Treasury for the War Department, which was disallowed because, “ having been discharged by way of favor for his own convenience, he is not entitled to travel pay.”

Y. The distance between Seattle, Wash., where the claimant was discharged, and Philadelphia, Pa., where he reenlisted, is 3,058 miles, at 4 cents per mile; and, if the claimant is entitled to recover, the amount due him is $122.32.

*Mr. Clayton E. EmAg*for the claimant.

*Mr. George M. Anderson*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the defendants.

Per Curiam:

This is a claim under Revised Statutes, section 1290, for travel pay by an enlisted man in the United States Army *160who was discharged by way of favor. The defense is that the case comes within the ruling in the case of *United States*v. *Sweet.*(189 U. S., 471.)

In that case it was held, under a statute applicable to officers in the army but otherwise identical with the one applicable to enlisted men, that where an officer tendered his resignation and was honorably discharged he was not entitled to travel pay and commutation of subsistence under Revised Statutes, section 1289, as amended by the act of February 27, 1877. (19 Stat. L., 243.) That decision, the court says, is in accord with the settled practice of the War and Treasury departments, which grew up under prior similar statutes, the construction of which was open to reasonable doubt, and for that reason they were “ not prepared to overturn the long-established understanding of the departments charged with the execution of the law.”

The present case is like that, except that here the claimant, an enlisted man, while stationed with his company at Fort Ontario, N. Y. (in the Department of the East), and after the issuance of the order transferring his command to the Department of Alaska, applied to be discharged from the service by way of favor. His application was not acted upon until the actual transfer of his command as far as Seattle, Wash., when he was discharged by the special order set forth in the findings, in which it is recited that he was “ discharged by way of favor from the service of the United States,” and, further, that he was “ not entitled to travel pay.”

By reason of the delay in acting upon his application the claimant contends that he is entitled to travel pay from Seattle back to Fort Ontario, where he applied for his discharge.

The claim is not without some merit, but as the claimant’s discharge by way of favor was lodged wholly in the War Department — as was the movement of the troops — we are not at liberty to say that the delay was unreasonable or unjustifiable; and this being true, there is no ground upon which to base a recovery. Furthermore, it is not shown that the claimant, after the transfer of his company to Seat-*161tie, withdrew his application for, or made objection to, being discharged. On the contrary, it appears that he accepted the discharge and returned to his home without even demanding travel pay until some three years later, when he filed a claim therefor in the Treasury Department. But as the question of his discharge by way of favor was lodged in the discretion of the War Department, it was for that department to determine when and where, if at all, the claimant should be discharged. The record in the War Department in this respect, therefore, controls, and such was the ruling of the Comptroller of the Treasury in rejecting the claim.

For the reasons given we must hold that the ruling in the case of *United States*v. Sweet, supra, is controlling, and the petition is therefore dismissed.