
    HENRY WILLIAMS v. THE UNITED STATES.
    [No. 29945.
    Decided December 4, 1911.]
    
      On the Proofs.
    
    A naval constructor becoming sick while in the Government service is placed in a naval hospital. At the end of two months he is discharged from the hospital, and upon the recommendation of a board of medical survey he is granted sick leave for two months. He receives full duty pay for the whole time. The accounting officers disallow full pay for the time that he is absent on sick leave.
    I. The Revised Statutes (§ 1556) distinguish between duty pay, $2,500, and leave or waiting orders pay, $1,900, but the Navy Regulations (art. 1177) provide that in cases of temporary absence an officer is not detached from duty nor is his rate of pay affected.
    II. Where an officer on being discharged from the hospital is granted sick leave for two months and his leave is to enable him to fully recover his health, and during that time he is absent from his station doing no duty whatever, it must be held that while not formally detached by express order he was in fact detached, and was not entitled to full duty pay.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. During the period covered by this claim Henry Williams was an assistant naval constructor in the Navy, having been appointed as such April 4,1900, after serving as a naval cadet from September 6,1894, to April 3,1900, inclusive.
    
      On October 4,1904, Assistant Naval Constructor Williams was admitted to the Naval Hospital, New York, N. Y., for treatment, and he remained in that hospital under treatment from that date until January 16, 1905, when he was discharged under an order from the Navy Department, dated January 9, 1905, and granted sick leave for two months. This order is substantially correct, as quoted in the petition in the case.
    During the period from January 16, 1905, to March 16, 1905, Mr. Williams was absent in Florida from his duties at the navy yard, New York, in accordance with the provisions of the order above mentioned, and on March 16, 1905, he returned to duty at the navy yard, New York, without further orders from the department.
    II. While the claimant was so temporarily absent from his duty at the navy yard he was paid at the full rate of pay of an officer of his grade on duty, $2,600, as fixed by Revised Statutes, section 1556, under a ruling by the Secretary of the Navy quoted in his petition.
    Subsequently the sum of $116.68, representing the difference between his full pay of $2,600 and the Navy leave pay of his grade, $1,900, for two months was checked against and deducted from his pay, and the accounting officers of the Treasury Department have refused to allow him the same.
    
      Mr. George A. Kmg for the claimant. Messrs. George A. and William B. King were on the brief.
    
      Mr. Frederieh Be O. Foust (with whom was Mr. Assistant Attorney General Thorny son) for the defendants.
   Booth, J.,

delivered the opinion of the court:

This is the claim of an assistant naval constructor for two months’ duty pay while absent on sick leave. The claimant was taken sick on October 2, 1904, while on duty at the New York Navy Yard, and placed in the New York Naval Hospital, where he received medical treatment until January 16, 1905, when he was discharged. On January 9, 1905, upon the recommendation of a board of medical survey he was by proper orders granted sick leave of absence for two months from January 16,1905. While in the hospital claimant received full duty pay, and for the subsequent time of two months spent by him in Florida, manifestly recuperating from his illness, he also received full duty pay. Section 1556, Revised Statutes, makes a distinction in amount from $2,600, duty pay, to $1,900, leave or waiting orders pay, respecting assistant naval constructors. Article 1177, Navy Regulations, provides that in cases of temporary absence an officer is not detached from duty nor his rate of pay affected.

The accounting officers acting under the foregoing statute and regulation subsequently deducted from claimant’s pay the difference above indicated, for which amount the claimant sues.

The issue in most respects is identical with the case of Roberts v. United States (44 Ct. Cls. R., 411). It is true that in the Roberts ease the claimant asked for and was granted leave of absence and the same was a matter of personal convenience for personal benefit, but it is hardly probable that this case can escape the former ruling upon this ground alone. Was the absence of such a temporary character as the statute and the regulations contemplate ? Could the claimant, in the very nature of things, be considered in a duty status ? He was away from his station, disconnected entirely therefrom, with no duties to attend in connection therewith; his leave was in a measure for his benefit to enable him to fully recover his health. While not formally detached from the service by express order, it can be seen at a glance that he was in fact detached, doing no duty of a military character whatever.

The Comptroller of the Treasury considered the case, and in an exhaustive opinion ruled adversely to claimant’s contention. In discussing article 1177 of the Navy Regulations, he said:

It was held by this office (11 Con. Dec., 577) that a leave of two days may be taken without affecting the rate of pay, as an officer’s services might be dispensed with for one or two days, because during such leave he could hardly separate himself so far from his vessel or station as not to be within recall if needed, and that on such leave he was not practically relieved from duty. But to hold that an officer on leave, as in this case, for two months and the leave spent nearly a thousand miles from his station does not place the officer in a leave status and entitle him to leave pay, would only be to nullify the statute fixing the rate of pay. The auditor’s action in disallowing the claim is approved.”

The petition is dismissed. It is so ordered.  