#### JOHN M. MARKLEY v. THE UNITED STATES

[No. C-936.

Decided October 28, 1924]

*On the Proofs*

*Army pay; rental alloioanee.*— Where an officer of tlie Army haying-dependents is on leave of absence without quarters from October 25, 1922, to December 15, 1922, and on October 25, 1922, is honorably discharged from the service, to take effect December 15, 1922, with one year’s pay, he is entitled to rental allowance under the act of May 31, 1924, 43 Stat, 250, from October 15, 1922, to December 15, 1922.

*The Reporter'1 s*statement of the case:

*Mr. George A. King*for the plaintiff.' *King*cfi *King*were on the brief.

*Mr. John G.*E-wing, 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, John M. Markley, entered the military service of the United States October 21, 1918, and was serving as a major in the Judge Advocate General’s Department at Headquarters of the Panama Canal Department, Balboa Heights, Canal Zone, when the following order was issued to him:

Headquarters Pax am a Canal Department,

Quarry Heights, Balboa Heights, C. Z.,

*October o, 1988.*

*1.*In compliance with paragraph 5, radiogram No. 1296, War Department, dated August 30, 1922, Major John M. Markley, Judge Advocate General’s Department, is relieved from further duty in this department, effective at such time as will enable him to proceed on the first available transport sailing from Cristobal, C. Z., to New York, N. Y.

Immediately upon arrival in the United States Major Markley will report by letter to The Adjutant General of the Army, Washington, D. C., for instructions. He 'will apply immediately by letter to these headquarters for accommodations for so much of the journey as requires water transportation. The travel directed is necessary in the mili*925tary service and is chargeable to procurement authority F. D 26 P 5124 A 3.

8. Leave of absence for two (2) months and ten (10) days to terminate not later than December 15, 1922, is granted Major John M. Markley, Judge Advocate General’s Department, effective upon his arrival in the United States in compliance with paragraph 1 of this order. _

_ By command of Major General Sturgis:

H. O. Williams,

*Chief of Staff.*

In pursuance of this order he applied for and obtained transportation on the Army transport San Mihiel, leaving Cristobal, Canal Zone, October 7, 1922, and arriving in New York October 16, 1922.

He arrived at Washington on or about October 17, 1922, and went to the office of the Judge Advocate General and asked to be assigned to station in Washington, but was unable to obtain any assignment to duty. No quarters were available in Washington.

He remained from that date on leave without quarters and without rental allowance until his discharge from the service of the United States, December 15, 1922, by the following order:

WAR DEPARTMENT,

’Washington, *October %B\ 19%%.*

Par. 1. Under the provision of the act of June 30, 1922, as amended by the act of September 14,1922, Major John M. Markley, Judge Advocate General’s Department, having served less than ten years as a commissioned officer and being an officer in excess of the number authorized by said act, is, by direction of the President, honorably discharged from the service of the United States, with one year’s pay, effective December 15, 1922.

By order of the Secretary of War:

John J. Pershing,

*General of the*Armies,

*Chief of Staff.*

II. During the period of the plaintiff’s service in the Canal Zone he was provided with quarters in kind. From October 16,1922, when he landed in the United States, until date of discharge, December 15, 1922, he received no rental allowance. His family consisted of his wife and two children, both under eight years of age. Rental allowance for *926that time for an officer of his pay period would amount to $200.00.

Campbell, *Chief*Justice,

delivered the opinion of the court:

The question for decision is whether Major Markley is entitled to rental allowance under the facts found and the applicable statutes. The facts show that he was serving as a major in the Judge Advocate General’s Department at headquarters in the Panama Canal Department, Canal Zone, when an order dated October 5,1922, was issued relieving him from further duty in that department, effective at such time as would enable him to proceed on the first available transport sailing from Cristobal to New York. This order also directed that immediately upon his arrival in the United States the officer should report by letter to The Adjutant General of the Army, at Washington, for instructions, and further provided: “Lqave of absence for two months and ten days, to terminate not later than December 15, 1922, is granted Major John M. Markley, Judge Advocate General’s Department, effective upon his arrival in the United States ” in compliance with the first paragraph of the order mentioned. He arrived in New York October 16 and reported at the Judge Advocate General’s Office in Washington the next day, asking to be assigned to duty. On October 25, 1922, an order was issued, effective December 15, 1922, by which this officer was honorably discharged from the service with one year’s pay.

The order of October 5 was preparatory to his honorable discharge, in accordance with legislation cutting down the total- number of officers of the Army (42 Stat., 721-723, 840, 841). The suit was brought in August, 1923, but the plaintiff relies not only upon the act of June 10, 1922, 42 Stat., 628, but also upon the amendatory act of May 31, 1924, amending section 6 of the prior act of June 10, 1922. The plaintiff was denied rental allowance and the Government insists that this denial was proper for the reasons stated in the Comptroller General’s opinion in the matter of *Crosby,*2 Dec. Comp. Gen., 160. In 2 Dec. Comp. Gen., 399, is a further discussion of the question of rental allow-*927anees under the act of June 10, 1922. In our view, the later act of May 31, 1924, 43 Stat., 250, is controlling. Its provisions are in terms made effective from and after July 1, 1922. The applicable provision of this act is that each commissioned officer below the grade of brigadier general in any of the services mentioned in the title of the act “ While either on active duty or entitled to active duty pay shall be entitled, at all times, to a money allowance for rental of quarters.” The plaintiff was entitled to active duty pay until his discharge became effective on December 15,1922. He had dependents. He is therefore entitled to the rental allowances claimed between the dates of October 15 and December 15, 1922. Judgment will be awarded accordingly. And it is so ordered.

Graham, *Judge;*Hay, *Judge;*Downey, *Judge;*and Booth, Judge, concur.