United States v. Thornton

Claim by Robert Thornton against the United States. From a judgment for claimant, defendant appeals. Reversed.

The petition in this case set forth that the petitioner enlisted as a private in the marine corps, November 10, 1886, at Mare Island, Cal., to serve 5 years, and was discharged March 13, 1889, at Washington, D. C., by order of the secretary of the navy; that, under the provisions of Rev. St. § 1290, he was entitled to receive transportation and subsistence or travel pay and commutation of subsistence from the place of his charge to that of his enlistment; that he made written application for the same to the treasury department, and was informed that his claim was adjusted and transmitted to the second comptroller, who declined to allow the case, on the ground that he was discharged at his own request before the expiration of his term of enlistment.

The case having been heard before the court of claims, that upon the evidence found the following facts:

(1) The claimant enlisted at the age of 13 years, 1 month, and 3 days, in the marine corps of the United States, at Washington, D. C., on August 29, 1878, for a term of 7 years, 10 months, and 27 days, and was then 'bound to learn music' in said corps.

April 17, 1880, he was rated as a drummer.

November 6, 1886, he was discharged from the service at Mare Island, Cal., as a drummer.

November 10, 1886, he re-enlisted at Mare Island, Cal., as a private in said corps for a term of 5 years.

On March 13, 1889, before the expiration of the last-mentioned term of enlistment, Thornton, as a private in said corps, was, at his own request, and not by way of punishment for an offense, discharged from service at the Marine Barracks, Washington, D. C., by direction rection of the secretary of the navy.

The claimant was settled with in full for all pay and allowances except transportation and subsistence in kind, or, in lieu thereof, travel pay and commutation of subsistence, from Washington, D. C., the place of his discharge, to Mar Island, Cal., the place where he had re-enlisted. And when he was discharged, at the end of his term of enlistment, he received travel pay and commutation of subsistence, computed at the rate of one day for every 20 miles of the distance from Mare Island, Cal., to Washington, D. C.

(2) The travel pay and commutation of subsistence of a private in the marine corps, when discharged in the third year of his second term of enlistment, and when he is allowed the same, are stated by the proper accounting officers of the treasury department to be one day's pay, at 60 cents per day, and one ration, commuted at 30 cents for each 20 miles of the distance from place of discharge to place of last enlistment; and in the settlement of accounts they adopt 3,136 miles as the distance from Washington, D. C., to Mare Island, Cal.

According to this practice the travel pay and commutation of subsistence on such a discharge would be for—

157 days' pay, at 60 cents......... $ 94 20

157 rations, at 30 cents............. 47 10

-

Total............................. $141 30

(3) Under a long standing construction, by the accounting officers of the treasury department, of the law embraced in section 1290 of the Revised Statutes, it has been the practice to refuse travel pay and commutation of subsistence to enlisted men from the place of their discharge to the place of enlistment, when they have been discharged at their own request prior to the expiration of their term of enlistment.

The only exception made under this practice is when an enlisted man is discharged at his own request after 20 years of faithful service. Army Regulations, 1863, par. 163.

(4) Before bringing suit here, the claimant presented the claim set forth in his petition to the proper accounting officers of the treasury department, and it was disallowed, in accordance with the practice mentioned in finding 3.

The court also found, as a conclusion of law, that the claimant was entitled to recover of the defendant the sum of $141.30, for which amount judgment was entered, and the government appealed.

Asst. Atty. Gen. Dodge, for the United States.

Robert Thornton, in pro. per.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.