#### SAMUEL B. WITT v. THE UNITED STATES.

[No. C-64.

Decided July 2, 1923.]

*On the Proofs.*

*Waiver; uniform, gratuity; Marine*Corps .Reserve. — -Where an officer in the Marine Corps Reserve signs a waiver of his right to the uniform gratuity of $150 granted by statute in consideration of his appointment to a temporary lieutenancy in the Marine Corps, and was thereafter disenrolled from the Marine Corps Reserve and accepted appointment as such temporary lieutenant in the Marine Corps, he can recover such gratuity by a suit in the Court of Claims.

*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 B. Witt, was enrolled in the U. S. Marine Corps Beserve Force December 16,1918, as second lieutenant, and reported for active duty on the same day. He was disenrolled from the Marine Corps Beserve Force March 12, 1919, in order to accept an appointment as temporary second lieutenant in the Marine Corps. He was appointed a temporary second lieutenant in the regular Marine Corps March 13, 1919 (a commission for which was transmitted to him and duly accepted), and was honorably discharged therefrom August 5, 1919.

Under date of December 15, 1918, the plaintiff executed an instrument as follows:

“ In consideration of my enrollment as a second lieutenant, provisional, in class 4, Marine Corps Beserve, upon completing the course at the marine officers’ training camp, thus *480enabling me to acquire the rank, pay, and allowances of an officer much sooner than if I were required to remain in an enlisted status until confirmed by the Senate and temporarily appointed a second lieutenant in the Marine Corps, I hereby waive all claim to clothing or uniform gratuity to which I may be entitled under existing or future laws or regulations by reason of enrollment in the reserve.”

III. No uniform gratuity has been credited or paid to plaintiff on account of his enrollement in the Marine Corps Reserve Force. The amount so remaining unpaid is $150.

MEMORANDUM BY THE COURT.

This case is controlled by the cases of *Price*v. *United States,*55 C. Cls. 499, and *Bcmóroft*v. *United States,*56 C. Cls. 218, affirmed by the Supreme Court, 260 U. S. 706.

The facts show that the plaintiff was disenrolled from the Marine Corps Reserve on March 12, 1919, in order to accept an appointment as temporary second lieutenant in the Marine Corps.

The primary purpose of the enrollment of the plaintiff in the Marine Corps Reserve, as stated in the opinion of the court in the *Bancroft case, supra,*was “ to obviate this delay and give the Government the benefit of their immediate service as officers in the Marine Corps, incidentally giving to the men themselves the earlier advantages and pay of commissioned rank,” and “ the Commandant of the Marine Corps recommended to the Secretary of the Navy that immediately upon graduation they be enrolled in the Marine Corps Reserve and assigned to active duty, to be disenrolled therefrom when afterwards commissioned as temporary second lieutenants in the Marine Corps.” The plaintiff was never out of the service (see *Price case),*and the disenrollment was merely a method of transfer from one status in the service to another. The enrollment of this man in the Marine Corps Reserve upon graduation was part of the policy and method adopted by the Government to utilize the services of these men as officers immediately upon the completion of the course at said school during that pei’iod which would necessarily elapse before they could be confirmed by the *481Senate. The disenrollment in connection with temporary appointment as second lieutenant in the Marine Corps was merely a part of the routine in carrying out this policy and method, and was the act of the Government and not a voluntary severance in the true sense of that term by the plaintiff of his connection with the service. It is plain from the facts that he never left the service, but continued in it for the period of his enrollment until his honorable discharge on the 5th of August, 1919.

Judgment should be entered for the plaintiff in the sum of $150, and it is so ordered.