
    ARTHUR JOHN BANCROFT v. THE UNITED STATES.
    
    [No. 34702.
    Decided April 11, 1921.]
    
      On the Proofs.
    
    
      Waiver; uniform gratuity, Marine Corps Reserve. — A uniform gratuity of $150 is granted to officers of the Marine Corps Reserve by statute. A waiver of the right to receive such gratuity can not be enforced, and an officer of that corps, notwithstanding such waiver, may recover the'same by a suit in this court.
    
      The Reporter's statement of the case:
    
      Mr. George A. King for the plaintiff. King <& Kmg were on the briefs.
    
      Mr. John G. Ewing, with whom was Mr. Assistant Attorney General Franje Davis, jr., for the defendant.
    The following are the facts of the ease as found by the court:
    I. The claimant, Arthur John Bancroft, was enrolled in the United States Marine Corps Reserve July 15, 1918, as a second lieutenant, provisional, upon completing the course of instruction at the Marine Officers’ Training Camp, Marine Barracks, Quantico, Virginia, and reported for active duty on the same date.
    He was disenrolled from the Marine Corps Reserve October 22, 1918, in order to accept an appointment as temporary second lieutenant in the Marine Corps, having been temporarily appointed a second lieutenant August 28, 1918, to rank from August 15, 1918, and commission transmitted to him October 7,1918. He accepted this appointment October 23, 1918, and was temporarily promoted first lieutenant March 5, 1919, to rank from August 16, 1918. He was honorably discharged from the Marine Corps July 1,1919.
    II. Claimant’s enrollment in the Marine Corps Reserve as a second lieutenant was for the purpose of avoiding the delay incident to appointment in the Marine Corps, necessitating confirmation by the Senate. With reference thereto the Commandant of the Marine Corps recommended as follows, and in pursuance of the plan thus proposed and approved the claimant executed the release also following:
    Headquarters, U. S. Marine Corps,
    
      Washington, June 28,1918. From: The Major General Commandant.
    To: The Secretary of the Navy.
    Subject: Temporary appointment as second lieutenant in the Marine Corps Reserve of enlisted men recommended for commissions at the Marine Officers’ Training Camp, Quantico, Ya.
    1. It is expected that about 300 enlisted men will graduate from the Marine Officers’ Training Camp at Quantico the middle of July and be eligible for temporary appointment as second lieutenants in the Marine Corps.
    2. It is the desire to utilize the services of these men as officers immediately upon the completion of the course at the school, and as some time will elapse before they can be confirmed by the Senate, it is proposed, with the Department’s approval, to enroll them in the Marine Corps Reserve and assign them to duty upon graduation. This is the same policy pursued last summer in making temporary appointments as second lieutenants, when successful candidates were enrolled in the Reserve pending their confirmation by the Senate, and also is the same as that authorized by the Department on the 19th instant in regard to successful candidates serving in France. Unless otherwise directed, this plan will be carried out in regard to candidates successfully qualifying in the future for temporary appointment as second lieutenants in the Marine Corps. As these men will thus receive promotion to commissioned rank a month or two earlier than if they were required to wait until after confirmation by the Senate they will only be enrolled upon executing a waiver of claim' for clothing gratuity now or hereafter allowed officers enrolled in the reserve.
    George Barnett.
    Ajoproved:
    Josephus Daotels,
    
      Secretary of the Navy.
    
    UNITED States Marine Corps,
    
      Marine Barracks, Quantico, Va., July 15,1918.
    
    In consideration of my enrollment as a second lieutenant, provisional, in Class 4, Marine Corps Beserve, upon completing the course at the Marine Officers’ Training Camp, thus enabling me to acquire the rank, pay, and allowances of an officer much sooner than if I were required to remain in an enlisted status until confirmed by the Senate and temporarily appointed a second lieutenant in the Marine Corps, I hereby waive all claim to clothing or uniform gratuity to which I may be entitled under existing or future laws or regulations, by reason of enrollment in the Beserve.
    Arthur J. Bancroet.
    Witness :
    Campbell H. Brown,
    
      1st Lieut., U. S. M. G.
    
    III. No uniform gratuity was paid the claimant on account of his enrollment in the Marine Corps Beserve, and he made no demand for such gratuity until after his discharge from the service. He then filed a claim therefor with the Auditor for the Navy Department, which was by said auditor disallowed, and upon appeal to the Comptroller of the Treasury the action of the auditor was affirmed.
    
      
       Appealed.
    
   Downey, Judge,

delivered the opinion of the court:

The action is for the recovery of a uniform gratuity of $150.00 alleged to be due the plaintiff as a second lieutenant in the United States Marine Corps Beserve and the question for decision arises from the following facts:

The plaintiff, in 191$, was one of a number of enlisted men in attendance at a Marine Officers’ Training Camp, about to graduate, and upon graduation eligible to temporary appointment as second lieutenant in the Marine Corps. Such appointments could only be made subject to confirmation by the Senate necessarily entailing some delay.

To obviate this delay and give the Government tlie benefit of their immediate service as officers of the Marine Corps, incidentally giving to the men themselves the earlier advantages and pay of commissioned rank, the Commandant of the Marine Corps recommended to the Secretary of the Navy that immediately upon graduation they be enrolled in the Marine Corps Beserve and assigned to active duty, to be disenrolled therefrom when afterward commissioned as temporary second lieutenants in the Marine Corps, and, in view of the fact that they would thus receive commissioned rank earlier than if required to await confirmation by the Senate, he recommended that they should be so enrolled in the reserve only upon the execution of a waiver of the clothing gratuity allowed officers in the reserve.

This clothing or uniform gratuity constituted the only difference between the pay and allowances of officers in the Marine Corps Beserve and officers temporarily commissioned in the Marine Corps. Had they awaited confirmation by the Senate and been commissioned temporary lieutenants in the Marine Corps they would not have been entitled to the uniform gratuity. The pay otherwise was the same.

The plaintiff was commissioned in the Beserve Corps— where he served for a very short time — in accordance with this plan, “ in consideration of which,” as recited therein, he executed a written waiver of claim to uniform gratuity. The recommendation by the Commandant of the Marine Corps and the waiver executed by the plaintiff with other material facts not necessary here to recite are set out in the fundings. He was not paid the uniform gratuity, and after discharge filed a claim therefor with the auditor, which was disallowed because of his waiver, and the disallowance by the auditor was affirmed by the comptroller.

However the merits of the case may or may not appeal to us, we are constrained to conclude that it is within the rule established by the Supreme Court and recognized and applied by this court with reference to attempted waivers of statutory pay or allowances.

It is not necessary to discuss the rule at length. It is well settled to the general effect that agreements to forego any part of a statutory compensation will not be enforced, and that recovery may be had for a withholding under such agreements. The cases of Glwoey v. United States, 182 U. S., 595, and United States v. Andrews, 240 U. S., 90, lay down the rule, and they have been followed consistently in many other cases, among which, in this court, we cite the Katzer Case, 52 C. Cls., 32.

It is contended by the defendant, referring to the waiver as a contract or an agreement, that, if unexecuted, it would not be enforced, but that, when executed, the courts will not act to relieve either party from the consequences of the illegal transaction, and cases are cited. Without entering into a detailed review of the cases cited, suffice it to say that we do not find them applicable to cases of this class.

Under the established rule referred to we conclude that the plaintiff is entitled to recover the sum of $150, and judgment is awarded accordingly.

Graham, Judge; Hat, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  