#### HENRY E. RHOADES v. THE UNITED STATES.

[No. 46-A.

Decided January 29, 1923.]

*On the Proofs.*

*Navy pay; constructive service; longevity pay.*— An officer on the retired list of the Navy is not entitled, in computing his longevity pay, to count five years’ service on account of his appointment from civil life under the provisions of the act of March 3, 1899, 30 Stat. 1007.

*The Repoi'ter’s*statement of the case:

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

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

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

I. The plaintiff, Henry E. Rhoades, served in the Civil War in the Army of the United States from July 21, 1861, to January 12, 1863, a period of 1 year 5 months and 21 days.

On the 11th of February, 1865, he was appointed from civil life and commissioned acting third assistant engineer in the Navy, and served as such officer until April 23,1869. He Was again appointed from civil life and commissioned second assistant engineer in the Navy on February 25, 1871, and served until December 30, 1874, when he was placed on the retired list.

After retirement he again served on active duty from April 28,1898, to May 28,1898, and again from December 1, 1903, to December 30,1911. He had thus by August 29,1916, completed a total service on the active list, plus active duty on the retired list, of more than 15 years.

Subsequently to August 29, 1916, he has been on active duty as follows:

From March 13, 1917, to June 30, 1918, as assistant engineer in the Navy with the rank of lieutenant.

From July 1, 1918, to November 5,1919, as assistant engineer with the rank of lieutenant commander, to which rank *74he was permanently promoted on the retired list from July 1, 1918.

II. For the period from March 13,1917, to June 30, 1918, he was paid as a lieutenant of more than 10 but less than 15 years’ service.

For the period from July 1, 1918, to November 5, 1919, he was paid as a lieutenant commander of more than 15 years’ service.

If paid as a lieutenant of more than 15 years’ service from March 13, 1917, to June 30, 1918, he would receive one additional longevity increase as lieutenant, amounting for that period to $312.

If also entitled to count 5 years’ constructive service as upon appointment from civil life, his appointments of 1865 and 1871 having been from civil life, he would be entitled, if paid as a lieutenant of inore than 20 years’ service from March 13, 1917, to June 30, 1918, and as a lieutenant commander of more than 20 years’ service from July 1, 1918, to November 5, 1919, to a difference of pay amounting to $758.72

memorandum

by the court.

The petition is dismissed as to the item of the claim of the plaintiff for five years’ constructive service upon appointment from civil life. The plaintiff relies for this pay upon the provisions of the act of March 3, 1899, 30 Stat. 1007, which provides for constructive service for all officers of the Navy appointed thereto from civil life; but the act also provides *“*That nothing in this act shall operate to increase or reduce the pay of an officer now on the retired list of the Navy.” At the time of the passage of the act the plaintiff was on the retired list of the Navy. The fact that he was placed on the active list at different times can have no bearing upon his pay status as far as constructive service is concerned.

Judgment for plaintiff in the sum of $312, which he is entitled to receive as an officer in the grade of lieutenant of more than 15 years’ service from March 13,1917, to June 30, 1918.