#### HENRY GUILMETTE v. THE UNITED STATES.

[No. B-49.

Decided March 19, 1923.]

*On the Proofs.*

*'Navy pay; chief pay clerk; constructive service.*— The plaintiff was entitled to credit for five years’ constructive service upon appointment from civil life as paymaster’s clerk on November 11, 1910, in computing his longevity pay, and having been given such credit in computing his pay up to July 1, 1916, he is entitled to like credit in computing his longevity pay from July 1,. 1916, to March 20, 1922.

*194
      *The Reporter’s*statement of the case:

*Mr. George A. King*for the plaintiff. *King da King*were on the briefs.

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

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

I. The plaintiff, Henry Guilmette, January 5, 1914, recovered judgment in this court against the United States for $638.93, in accordance with the findings of fact, conclusion of law, and opinion of the court reported in volume 49 of the decisions of this court, pages 188 to 192. Said judgment was not appealed from and was paid at the Treasury. According to the terms of the findings of fact, conclusion of law, and opinion, said plaintiff was entitled to be paid from the date of his appointment, November 11, 1909, as in his second five years of service, on the ground of receiving a constructive credit of five years on such appointment in addition to four years seven months and eighteen days’ previous actual service. The additional pay allowed him by said judgment was up to and including the date of filing the petition in that cause, September 20, 1911.

II. The plaintiff continued from September 20, 1911, to serve as paymaster’s clerk until July 1,1915, from which date he was by commission dated October 16, 1915, appointed a chief pay clerk in accordance with the provisions of the'act of Congress approved March 3, 1915 (38 Stat. 942), but was refused the benefit of the credit of five years as upon appointment from civil life of November 11,1910.

A second suit of the plaintiff resulted in a judgment for additional longevity pay which accrued to him on account of credit for five years’ constructive service on appointment from civil life, coming down to June 30, 1916, and amounting to $1,806.07. The findings, conclusion of law and opinion of this court are reported, 52 C. Cls. 219, 220.

III. Plaintiff continued to be a chief pay clerk until June 20, 1917, from which date he was commissioned and took rank as an assistant paymaster with the rank of ensign ,• was promoted to the rank of lieutenant, junior grade, from July *1951,1917; was again temporarily promoted to the rank of lieutenant, junior grade, from March 30,1920; and a permanent lieutenant and passed assistant paymaster from July 1,1920, in which office and rank he is still serving.

IV. There would be due plaintiff, if held entitled to five years’ constructive service, credit as upon appointment from civil life on November 11, 1909, for the time he has not received said credit during the period July 1, 1916, to March 20,1922, the sum of $765.92.

MEMORANDUM;

BT THE COURT.

The facts in this case are those upon which this court acted in deciding the case in 49 C. Cls. 188, and those upon which the court acted in deciding the case in 52 C. Cls. 219. No reasons have been given by the defendant which would justify the court in reversing the two decisions of the court, more especially as no appeal was taken from either of the other decisions.

Judgment for plaintiff in the siun of $765.92.