#### SAMUEL L. GRAHAM v. THE UNITED STATES.

[No. 78-A.

Decided October 16, 1922.]

*On the Proofs.*

*Retired naval officer; mileage.*— Where a retired naval officer applies for assignment to active duty, and offers to pay his own travel expenses to the place of assignment, and the order assigning him to duty states that he is authorized to proceed at his own expense and that the employment is subject to his consent, he is not entitled to mileage.

*The Reporter's*statement of the case:

*Mr. George A. King*for the plaintiff. *King <& King*were •on the briefs.

*Mr. John G.*Ewing, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

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

I. The plaintiff, Samuel L. Graham, while a lieutenant on the retired list of the Navy, residing at San Francisco, Calif., received the following order:

April 28, 1916.

To: Lieutenant Samuel L. Graham, U. S. N., ret., Hotel Bellevue, Taylor and Geary Streets, San Francisco, Calif. *516Subject: To Branch Hydrographic Office, Baltimore, Md. May 15, 1916.

1. You are authorized to proceed at your own expense to Baltimore, Md., and on May 15, 1916, report to the officer in charge of the branch hydrographic office for duty in charge of said office.

*2.*This employment on shore duty is required by the public interests and is subject to your consent.

Josephus DaNiels.

(Confirming dispatch.)

Before receiving the aforesaid order, the plaintiff sent the following telegram to Bear Admiral Blue, San Francisco, Calif.:

April 27, 1916.

Bequest orders to hydrographic office Baltimore; will pay own travel expenses east cannot start before fifth of May no reservations before that date; wire if request is granted.

Lieut. S. L. Graham.

In obedience to said order he left San Francisco, Calif., May 9, 1916, and assumed command of the branch hydro-graphic office, Baltimore, Md., May 15, 1916. His travel from San Francisco, Calif., to Baltimore, Md., was at his own expense.

He continued on active duty until January 13, 1919, when he was retired from all further active duty.'

II. He has received no mileage or other reimbursement from the United States for the travel from San Francisco, Calif., to Baltimore, Md., a distance of 3,068 miles. Mileage at the rate of eight cents ($0.08) a mile would amount to $245.44. *517facts are entirely different. The plaintiff was a retired officer, and if he did not desire duty he was at liberty to refuse it. Having accepted the duty, he took it subject to the terms of the order assigning him to it. And in this case the plaintiff had specifically stated that he would pay his travel expenses if he was given the assignment. See the *Parmelee*case, 56 C. Cls. 125. The petition must be dismissed. It is so ordered.

*516MEMORANDUM BY THE COURT.

It appears that the plaintiff, a retired naval officer, applied to be assigned to active duty. In response to his request he was assigned to active duty to take charge of the hydrographic office at Baltimore, Md. At the time of his assignment he was in San Francisco, Calif. Before the order reached him assigning him to active duty he had telegraphed to the department: “ Will pay own travel expenses.” The order which assigned him to active duty stated. “ You are authorized to proceed at your own expense ” and that “ this employment * * * is subject to your consent.” This case is not governed by the *Katzer*case, 52 C. Cls. 32. The