#### GEORGE M. McCLURE v. THE UNITED STATES.

No. 12817

April 2, 1883.

The claimant, a lieutenant in the Navy, was retired in the first five years of his service because not recommended for promotion. *(Act of April*21, 1864; 13 Stat. L.J 53.) Rev. Stat., § 1588, provides that the pay in such case shall he equal to one-half the sea-pay for the grade or rank held at the time of retirement. .■ -He claims that he should have one-half of the highest pay of the rank of lieutenant for one on the active list who has served over five years.

Held:

I. In the Navy there are grades for duty, for honor, and for pay, some by name and others by description. A'lieutenant has the grade *of*his class and also agrade *in*his class upon which his pay is fixed, depending upon length of service.

II. The word “grade” in Rev. Stat., § 1588, fixing -tifie pay of retired officers, refers to the division of officers into periods of service, as held in Rutherford’s Case *{ante,*111). A lieutenant retired in the first five years of service because not recommended for promotion is entitled to one-half of his sea-pay at the time of retirement, and no more.

This is an action like that of Rutherford’s *(ante,*111), involving the construction of Revised Statutes, §§ 1556, 1588, as to the pay of retired officers of the Navy.

The following are the facts found by the court:

I. Claimant was commissio'ned a lieutenant in the Navy February 22, 1867.

II. He was placed on the retired list November 9,1868, because he was not recommended for promotion, and has ever since been borne on said list.

III. From July 15, 1870, to June 30, 1875, he was paid at the rate of $1,300 a year. Since June 30, 1875, he has been paid at the rate of $1,200 a yea,r.

*Mr. John Paul Jones*and *Mr. Robert B. Lines*for the claimant, whose argument is reported in Rutherford’s Case *(ante,*111), and applies equally well to this.

*Mr. F. H. Rowe*(with whom was *Mr. Thomas Simons',*Assistant Attorney-General) for the defendants, whose argument is also reported in Rutherford’s Case.

*348OPINION.

Scofield, J.,

delivered the opinion of the court:

The claimant was commissioned a lieutenant in the Navy February 22,1867. After serving in that capacity about twenty and one-half months, he was placed on the retired list because he was not recommended for j>romotion in conformity to the *Act of April*21, 1864 (13 Stat. L., 63). ,

The question is whether his retired pay shall be $1,200 or $1,300 a year.

The law provides (Eev. Stat., § 1688) that his pay shall be equal to *u*one-half the sea-pay provided for the grade or rank held by him at the time of his retirement.” The sea-pay of a lieutenant during the first five years of service is $2,400, and during the second five years, $2,600. Claimant was retired during his first lustrum, but claims pay as if retired in the second.

There is no fact in this case that can, in principle, distinguish it from Rutherford’s Case, except that the class of lieutenants, in the statute, is called a grade, and the class of chief engineers is not. In the Navy there are grades for duty, for honor, and for pay. Some of them are made grades by name, others by description. Every lieutenant has the grade *of*his class and also a grade *in*his class, by which his pay is ascertained, depending upon the length of his own personal service. The one is called a grade in the law, the other is only described as such.. In the Rutherford Case we held that the words “ grade or rank ” in section 1688 should, when necessary to make sense, be considered as referring to grades described as well as those named in the law. To compute the pay of the claimant, we must consider each lustrum as a grade, although not technically so called, because his pay can only be determined by these divisions of time.

The claimant has been allowed by the accounting officers 60 per centum of the sea-pay provided for the lustrum' or pay grade, in the grade of lieutenants, at the time of his retirement. In our judgment he is entitled to no more.

The question of longevity pay on the retired list is decided in the Thornley Case *(ante,*111). We adhere to the opinion there given, and, in accordance with it, rule against the claimant on that point also.

Claimant’s petition is dismissed.