#### NELL R. SWARTZ v. THE UNITED STATES

[No. B-271.

Decided February 4, 1924]

*On the Proofs*

*Army pay: field clerk, Quartermaster Corps Regular Army;*gratuity.— A field clerk, Quartermaster Corps, designated as sucli under the act of August 29, 393.6, 39 Stat. 625, who took the oath of office December 30, 1936, was not an officer or enlisted man in the Regular Army, and Ms widow is not entitled to the gratuity provided by the act of December 17, 1939, 41 Stat., 367.

*The Reporteras*statement of the case:

The following are the essential allegations of the petition herein:

Plaintiff is the widow of Wm. E. S. Swartz, who died May 3, 1921, while a field clerk. Quartermaster Corps, United States' Army, and that she was married to said Swartz April 6,1918.

Said Wm. E. S. Swartz was appointed a field clerk. Quartermaster Corps, from August 29, 1916, and served as such until his death, which was caused by disease not the result of his own misconduct.

At the time of his death said Wm. E. S. Swartz was an officer of the United States Army on active duty, and in consequence thereof his widow became entitled to receive from the Quartermaster General of the Army an amount, equal to six months’ pay at the rate at.Avhich her husband was paid at the time of his death.

Plaintiff applied to Quartermaster General of the Army, who refused to pay the six months’ gratuity, whereupon. *233she filed claim with the War Department Division of the General Accounting Office, where it was disallowed. She requested reconsideration of this action by the Comptroller General, who upon review affirmed the action of the War Department Division. She, therefore, claims $1,500, under the following statutes:

Act of August 29, 1916, 39 Stat. 625, making field clerks, Quartermaster Corps, a part of the Army and making them subject to the Rules and Articles of War.

Act of December 17, 1919, 41 Stat. 367, providing that “ immediately upon notification of the death from wounds or disease, not the result of his own misconduct, of any officer or enlisted man on the active list of the Regular Army or on the retired list when on active duty, the Quartermaster General of the Army shall cause to be paid to the widow * * * an .amount equal to six months’ pay at the rate received by such officer or enlisted man at the date of his death.”

Act of May 18, 1920, 41 Stat. 602, increasing the pay of field clerks, Quartermaster Corps, $240 per annum.

MEMORANDUM BY THJ5. COURT

The act of December 17, 1919, 41 Stat. 367, provides for the payment of a gratuity to the widow, or children or other dependent “ of any officer or enlisted man on the active list of the Regular Army, or on the retired list when on active duty,” the authorized payment to be made by the Quartermaster General of the Army immediately upon official notification of the death from wounds or disease, not the result of his own misconduct, of such officer or enlisted men. Section 2 of the act, with the evident purpose of limiting and defining the application of the first section, declares that the act shall not be “ applicable to officers or enlisted men of any forces or troops of the Army of. the United States, other than those of the Regular Army,” nor in the commissioned grades to any officers “ except those holding permanent or provisional appointments in the Regular Army.” The act in terms distinguishes between the Army of the United States and the Regular Army. In that regard it is dis*234tinctly different from the statute construed in *Hendee's case,*124 U. S. 309, which provides that officers in the Navy should be credited with the actual time they served as officers or enlisted men in the Regular or Volunteer Army or Navy, or both. The act in question limits its benefits to the widow or dependents of officers or enlisted men in the Regular Army. A field clerk, Quartermaster’s Corps, designated as such under the act of August 29, 1916, 39 Stat. 625, and who took the oath of office December 30, 1916, was not an officer or enlisted man in the Regular Army, and consequently his widow is not entitled, to the gratuity provided by the act of December 17, 1919, *supra.*See also act of June 4, 1920, 41 Stat. 761, sec. 4a.

The petition is dismissed.