#### THOMAS G. ROBERTS v. THE UNITED STATES.

[No. 28521.

Decided March 1, 1909.]

*On the Proofs.*

A naval constructor on active duty at New Orleans is ordered to Washington for examination preliminary to promotion. When examined he is to return to his station and resume his duties. After being examined he applies for an order authorizing him to delay his return. His request is complied with. •The question in the .case is whether he is entitled while absent at his own request to pay *“on duty*” or “ *on leave*” or “ *cm ivaiting orders.’'*

I.The Navy Regulations, article 1177, provide that “ *a temporary leave of absence does not detach an officer from duty nor affect Ms rate of pay;*” and prior to the *Navy Personnel Act*(30 Stat. L., p. 1007) it was the practice of the department to allow to officers a leave 'of absence without reduction of pay where they were not detached from duty by the leave so granted.

II.Since the Navy Personnel Act duty pay can not be allowed where a leave of absence is granted at an officer’s own request and presumably for his own benefit if it does, in fact, relieve him from duty and from responsibility.

III.A regulation must be interpreted, .if possible, to harmonize with the law. It .may supplement a statute, but can not supersede it.

*The Reporters'*statement of the case:

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

I. The claimant, Thomas G. Eoberts, entered the naval service on the 27th day of May, 1890, and on the 1st of July, 1904, reached the grade of naval constructor of the rank of lieutenant. He was, therefore, during the time covered by *412this claim, a naval constructor in his first five years of service in that grade and more than ten years’ service in the navy.

II. The following are orders and letters issued to the claimant, with the indorsements thereon:

2680-11 LRK

JRC DEPARTMENT OE THE NaVY,

Bureau oe Navigation ,

*Washington, D. C., June 25,1901-*

Sir: Proceed to Washington, D. C., and report to the commandant of the navy-yard at that place at 10.00 a. m. Thursday, July 14, 1904, and, when directed by him, to Naval Constructor David W. Taylor, U. S. N., president of the Naval Examining Board, for the examination preliminary to promotion to the grade of naval constructor, required by section 1496 of the Revised Statutes.

When this examination is completed, report to the president of the Board of Medical Examiners, Mills Building, Washington, D. C., for the examination required by section 1493 of the Revised Statutes.

When discharged by both boards, return to the naval station, New Orleans, La., and resume your -present duties.

Respectfully,

IT. C. Taylor,

*Chief of Bureau.*

Asst. Naval Constructor Thomas G. Roberts, U. S. N.,

*Naval Station, New Orleans, La.*

(Comd’t.)

[ 1st indorsement.]

Naval Station-, *New Orleans, La., July 5,1901.*Delivered. ' ,

F. Singer,

*Captain, V. S. N., Commandant.*

Received July 5, 1904, 2.30 p. m.

T. G. Roberts,

*Asst. Naval Constr., U. S. N.*

Received July 21, 1904, commandant’s office, U. S. Navy-Yard, Washington, D. C.

Reported and will report to the president of the Naval Examining Board.

E. C. PendletoN,

*Captain, U. S. A7., Commandant.*

*413U. S. Navy-Yaed, *Washington, D. G., July 81,1901.*Reported.

D. W. Tayloe,

*Nav. Gonstr., XI. 8. N., Pres. Exam. Board.*

U. S. Navy-Yaed, *Washington, D. G., July 89,1905.*Examination completed. Candidate discharged.

D. W. Tayloe,

*Nav. Gon., U. 8. N., Pres. Exam. Board.*

Boaed oe Medical ExamiNebs, Mills BtjildiNG,

*Washington, July 30,1901.*Reported, was examined physically, and discharged.

F. M. GuNNEll,

*Medical Director, U. 8. N., Pres't.*

U. S. Naval StatioN, *New Orleans, La., Sept 1,1901.*Reported.

Jnx>. F. Paekee,

*Commander, U. 8. N., Oommanding.*

Nav. Sta., New Orleans, La., $177.60 mileage paid, from New Orleans, La., to Washington, D. C., and return to N. O. (Sgd.) E. T. Hoopes, P. A. Paymaster, U. S. N.

2680-12 LRK JRC

DepaetmeNt ok the Navy,

Bueeau ok Navigation, *Washington, D. 0., June 87, 1901.*

Sie: Your orders of June 25, 1904, are so far modified that you will report to the commandant of the navy-yard, Washington, D. C., on July 21, 1904, for the examination required by section 1496 of the Revised Statutes, and to the president of the Board of Medical Examiners on July 30, 1904, for the examination required by section 1493, Revised Statutes.

Respectfully, J. E. Pillsbuey,

*Acting Ghief of Bureau.*

Asst. Naval Constructor Thomas G. Robeets, U. S. N., *Naval Station, New Orleans, La.*

(Comdt.)

*414[1st endorsement.]

Naval StatioN,

*New*Orleans, *La., July 5, 1904-*

Delivered.

F. SlNGER,

*Captain, U. 8. N., Commandant.*Keceived July 5, 1904, 2.30 p. m.

T. G. Koberts,

*Asst. Naval Constr., U. 8. N.*

Keceived July 21, 1904, commandant’s office, U. S. Navy-Yard, Washington. Reported and will report to the president of the Naval Examining Board.

E. U. PeNdletoN,

*Captain, U. 8. N., Commanding.*

IT. S. Navy-Yard,

*Washington, D. C., July 21, 1904.*

Reported.

D. W. Taylor,

*Nav. Constr., Ü. 8. N., Pres. Exam. Board.*

IT. S. Navy-Yard,

*Washington, D. C., July 29,1904-*

Examination completed. Candidate discharged.

D. W. Taylor,

*Nav. Constr., O. 8. N., Pres. Exam. Board.*

Board oe Medical Examihers, Mills Bld’g,

*Washington, July 30,1904-*

Reported, was examined physically, and discharged.

F. M. GuNNEll,

*Medical Director, XJ. 8. N., Pres’t.*

Naval StatioN,

*New Orleans, La., Sept. 1,1904•*

Reported.

Jho. F. Parker,

*Commander, V. 8. N., Commanding.*

Naval Station, New Orleans, La., $171,60 mileage paid from New Orleans, La., to Washington, D. C., and return to N. O.

E. T. PIoopes,

*Passed Assistant Paymaster, U. 8. N.*

*4152680-14

JRC

DEPARTMENT OE THE NAVY,

Bureau oe Navigation,

*Washington, D. G., July SO, 190J/..*

Sir: In compliance with your request of July 29th, you are authorized to delay returning to your duties at the naval station, New Orleans, La., for ten days.

Respectfully, Wm. Swiet,

*Acting Chief of Bureau.*

Asst. Naval Constructor Thomas G. Roberts, *U. S. N.,*

*Washington, D. O.*

2680-14 LRK

Department oe the Navy,

Bureau op Navigation,

*Washington, D. 0., August IS, 190J¡..*

Sir: In compliance with your request dated August 8th, 1904, your leave is hereby further extended seventeen days.

Keep the Bureau advised of your address.

Respectfully,

G. A. Converse,

*Chief of Bureau.*

Naval Constructor Thomas G.' Roberts, U. S. N.,

*Ocean View House, Good Ground, Long Island, N. Y.*

III. In accordance with the orders and letters above quoted, the claimant was absent from the naval station at New Orleans, where he was stationed at the date of the first of these orders, from the time that he left there under orders of June 25, 1904, until August 26, 1904.

IV. He has received pay at the rate of $3,200 a year as prescribed by section 1556 of the Revised Statutes for naval constructors “ when on duty ” to July 30, 1904, when he was discharged by the examining board. The remaining twenty-seven days he has been paid at the rate of only $2,200 a year as prescribed by that section “ when on leave or waiting" orders.”

V. It has been for many years, and still is, provided by the Navy Regulations as follows (1896, art. 1168; 1905, art. 1111) : “A temporary leave of absence does not detach an officer from duty nor affect his rate of pay.”

*416It was the custom and practice of the department prior to the going into effect of the navy personnel act of March 3, 1899, to allow all officers of the navy who were on duty leave of absence to an amount in the discretion of the Secretary of the Navy without any reduction of pay. This is where the officer was in the regular performance of his duty and was not detached therefrom by the leave so granted.

By the decision of the comptroller made in the present case, it was held that during the twenty-seven days in question he was, although not detachefl from his station, entitled only to leave pay. The difference between the two rates of pay for that period would amount to $15.

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

*Mr. Frederick De C. Faust*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

Howry, J.,

delivered the opinion of the court:

The question in this case is whether a naval constructor in the navy is entitled to the rate of pay allowed such officers by the statutes which provide pay “ when on duty; ” or “ when on leave or waiting orders.” Otherwise, a*id more fully stated, it is whether a naval constructor shall be paid full duty pay; or on leave or waiting orders pay whilst absent from his station at his own request and charged with no duties or responsibilities.

Section 1556 of the Revised Statutes provides pay for naval constructors as follows: “ Naval constructors, during the first five years after date of appointment, when on duty, three thousand two hundred dollars; on leave, or waiting-orders, two thousand two hundred dollars; * * *.”

Article 1177, Navy Regulations, provides that “ a temporary leave of absence does not detach an officer from duty nor affect his rate of pay.”

The findings show that plaintiff being on active duty at New Orleans, La., was directed to proceed to Washington, D. C., for examination preliminary to promotion to the grade of naval constructor, and when discharged by the boards he was to return to his station and resume “ present ” duties. *417When discharged from the examination, he received an order, pursuant to his application for such an order, authorizing him to delay return to his station. His leave was further extended in compliance with his • subsequent request. The claim is that the officer’s absence from duty was of such a temporary character as did not, under the law, interrupt the duty status.

The contention of the claimant is that duty pay on vacation has always been allowed under the Navy Eegulations. The argument fully summed up is that prior to the enactment of the navy personnel act, Match 8, 1899, different rates of pay were prescribed for all officers of the navy both of the line and of the staff corps when on duty and when “ on leave or waiting orders.” For most officers there was also a difference between the rate of pay for sea duty and for shore duty. That by the thirteenth section of the personnel act (30 Stat. L., 1007) it was provided that officers of the line and of the Medical and Pay Corps should thereafter receive the same pay and allowances as the officers of corresponding rank in the army. The officers of other corps of the navy remained entitled to the old rates of pay fixed by section 1556 of the Eevised Statutes. That prior to the passage of the personnel act it had been the custom and practice of the department to allow to all officers of the navy who were on duty a leave of absence to an amount in the discretion of the Secretary of the Navy without any reduction of pay where the officer was in the regular performance of his duty and was not detached therefrom by the leave so granted. This custom was recognized and provided for by article 1168 of the Navy Eegulations of 1896: “A temporary leave of absence does not detach an officer from duty nor affect his rate of pajU’ In other words, the rate of pay provided by section 1556 for an officer “ when on leave or waiting orders ” was regarded as applicable to an officer who was placed on leave or directed to await orders for a period of considerable length, or for an indefinite period, and who was charged with no duties. That it was never treated as intended to apply to the customary vacation granted for a reasonable time determined by the Secretary of the Navy to *418officers in the performance of regular duties, and ought not to be overturned to the detriment of the few officers of the navy who remain entitled to pay under the old provisions of section *1556*of the Revised Statutes.

From the foregoing contentions it would appear that naval constructors are not entitled to army pay under the navy personnel act like other naval officers. But passing this as a decisive issue, we go to the claim for duty pay under the navy regulations on the merits involved in the character of the leave of absence and dispose of the case upon that phase of the matter alone.

Unquestionably there are leaves of absence which do not relieve from duty. There must be absences in both army and navy which can not change the rate of pay. Departmental constructions of statutes being only expressive of the law necessary to be carried into effect by regulations, it was well said by the Comptroller that the regulations appealed to in this case may be interpreted to harmonize with the law, because it may properly be held to mean that during such temporary leave of absence that shall not detach an officer from duty the pay shall not be reduced. But we do not understand that there has been any such interpretation of this regulation as will admit of duty pay for a temporary leave of absence obtained for a naval constructor’s convenience and pleasure at his own request and presumably for his own benefit. Such absence so interrupts the duty status as to interfere with the continuance of duty pay. Under such circumstances the leave of absence does detach an officer from duty, and if there be any different contemporaneous construction, as claimed by counsel, such construction can not have the effect of enabling such naval constructor to draw duty pay when in fact he performs no duty and has no responsibility during such temporary absence.

Regulations may supplement a statute, but can not supersede it. If inconsistent or in conflict with the law upon the same subject, a departmental regulation is void. *(United States*v. Symonds, 120 U. S., 46.) Any construction that would carry duty pay under the circumstances set forth in the findings would be the equivalent of legislation.

Petition dismissed.