#### CYRIL BENSON OWEN v. THE UNITED STATES

[No. E-335.

Decided January 23, 1928]

*On the Proofs*

*Army pay; traAmng for commvission; act of June 15, 1917; overseas school.*— A private trained at an officers’ training camp in the United States is not, by reason of his continuance of such training under orders at an overseas artillery school, to be deprived for the period of such overseas training, of the pay provided by the act of June 15, 1917, 40 Stat. 188, for enlisted men in training for commissions.

*The Reporter's*statement of the case:

*Mr. Henry W. Driscoll*for the plaintiff.

*'Mr. Frank J.*Keating, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant. *Mr. John G. Ewing*was on the brief.

The court made special findings of fact, as follows:

I. The plaintiff, Cyril B. Owen, was inducted into the military service January 5, 1918, and was assigned the same day as a private, first class, to the Officers’ Training Camp, Camp Stanley, Texas. In orders dated at headquarters, Leon Springs Training Camp, Camp Stanley, Texas, April 6, 1918, it was announced that “ pursuant to telegraphic instructions from The Adjutant General’s Office, Washington, D. C., April 2, 1918, the following-named men (including Cyril B. Owen) will stand relieved from duty at this training camp on Sunday, April 7, 1918, and will proceed under charge of Regimental Sergeant Major Paul K. Partee, headquarters, 62nd Field Artillery Brigade, to Camp Merritt, Cresskill, New Jersey, reporting upon arrival to the com*497ma.nding general port of embarkation. Each man will be fully equipped for overseas duty with articles of ordnance and quartermaster equipment enumerated in par. 3, Bulletin 17, headquarters, Southern Department, c. s. * * * The destination of the above students is the Artillery School of Saumur, France.” He sailed from the United States for the Saumur Artillery School, France, April 30, 1918, with Leon Springs detachment, Beserve Officers’ Training Camp, and was appointed sergeant May 13, 1918. He joined the Saumur Artillery School May 30, 1918, and was honorably discharged July 11, 1918, as a graduate from that school to accept a commission as a second lieutenant, Field Artillery, National Army, which commission he accepted July 12, 1918.

II. There is no charge of any indebtedness against plaintiff to the defendant. From January 5, 1918, to April 22, 1918 (3 months, 18 days), plaintiff was paid as a private, first class, at the rate of $33.00 per month in the amount of $118.80, and from April 23, 1918, to May 12, 1918 (20 days), at the same rate with an increase for foreign service, $36.60 per month in the amount of $24.40. From May 13, 1918, to July 11, 1918 (1 month, 29 days), plaintiff was paid as a sergeant at the rate of $44.00 per month in the amount of $86.53.

III. If entitled to pay at $100 per month from January 5, 1918, to April 6, 1918, plaintiff should receive $205.47.

If entitled to pay at $100 per month for the period from May 31, 1918, to June 30, 1918, plaintiff should receive the further sum of $56.00.

If entitled to pay at $100 per month from all periods from January 5,1918, to June 30,1918, plaintiff should receive the sum of $373.06.

The court decided that plaintiff was entitled to recover $373.06.

Moss, Judge,

delivered the opinion of the court:

The plaintiff, Cyril Benson Owen, entered the military service of the United States as an enlisted man on January 5, 1918, and on the same day was assigned to the officers’ training camp at Camp Stanley, Texas. On April 7, 1918, *498he was relieved from duty with other students at this training camp under orders of the War Department to proceed to Camp Merritt, Cresskill, New Jersey, where said students were provided with certain equipment for overseas duty. Under further orders plaintiff proceeded thence to the Saumur Artillery School in France on April 30, 1918, and on July 11, 1918, he was honorably discharged as a graduate from that school and was granted a commission as a second lieutenant, Field Artillery, National Army.

Congress provided, by act of June 15, 1917, 40 Stat. 188, that enlisted men of all grades in the Army while in training for officers of the Reserve Corps, should be paid $100 per month. Plaintiff’s claim for the extra pay was disallowed, and this action is for the recovery of the difference between $100 per month and the amount actually paid plaintiff during the period from January 5,1918, to July 11,1918. If entitled to recover, plaintiff should receive $373.06.

The Government recognizes the claim of plaintiff only for the period from January 5, 1918, to April 6, 1918, while he was on detail at the Camp Stanley Training Camp, but denies his right to any further recovery. It is the contention of the Government that plaintiff completed his training at Camp Stanley, and that the assignment to the training camp in France was for the purpose of better qualifying him for his duties as a commissioned officer. The record does not sustain this theory. There is no evidence that plaintiff graduated from the Camp Stanley Training Camp. Certainly he was not given a commission. Before he had completed the course of that camp he was sent, with other students, to the school of Saumur, France, under an order of the War Department, dated April 6, 1918, which reads in part as follows:

> “ Pursuant to telegraphic instructions from The Adjutant General’s Office, Washington, D. C., April 2d, 1918, the following-named men [plaintiff’s name was among the number] will stand relieved from duty at this training camp on Sunday, April 7th, 1918, and will proceed, under charge of Reg. Sgt. Major Paul K. Partee, Headquarters, 62d Field Artillery Brigade, to Camp Merritt, Cresskill, New Jersey, reporting upon arrival to the commanding general, port of embarkation. Each man will be fully equipped for overseas duty with articles of ordnance and quartermaster equipment *499enumerated in par. 3, Bulletin 17, Headquarters, Southern Department, c. s.

> “The destination of the above students is the artillery-school at Saumur.”

Construing the act of Congress according to its fair intent and purpose, plaintiff was at all times from Jánuary 5, 1918, until he received his commission in France on July 11, 1918, a candidate in training for a commission within the meaning of said act, and as such is entitled to the pay provided for such cases. However, the extra pay may not extend beyond June 30,1918. *United States*v. Rider, 261 U. S. 363.

Gkaham, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.