
    EDWARD P. BUCKENMEYER v. THE UNITED STATES
    [No. D-155.
    Decided June 1, 1925]
    
      On the Proofs
    
    
      Army pay; training schools; regulation of the President; pay of students. — Where the President, under the act of May 12, 1917, issues a regulation fixing the pay .of enlisted men serving at Army training schools for commissions in the Army during the fiscal year ending June 30, 1918, at $33 per month, the pay of privates, first class, and an appropriation act is passed June 15, 1917, fixing the pay of enlisted men in training for officers of the Keserve Corps at $100 per month, to include June 30, 1918, the regulation of the President is in conflict with the act of June 15, 1917, the act will prevail, and the plaintiff may recover.
    
      The Reporter's statement of the case:
    
      Mr. Edward P. Buehenmeyer, in propria persona.
    
    
      Mr. John G. Ewing, with whom ivas Mr. Assistant Attorney Generad Herman. J. Galloway, for the defendant.
    The following are the facts as found by the court:
    I. Plaintiff, a citizen of the United States, was a student at the Ohio State University when he was designated by the commandant of the corps of cadets at said college to attend the third officers’ training camp at Camp Sherman, Ohio. This designation was approved, and plaintiff reported at Camp Sherman, Ohio, on January 5, 1918, and received mileage at the rate of 3y<¿ cents per mile for the distance traveled to the camp. He enlisted on said date in the Army for the duration of the Avar, and was in attendance at the third officers’ training camp from January 5, 1918, to April 12, 1918, during which period he received pay at the rate of $33 a month. The plaintiff served as an enlisted man in the Army until July 24, 1919, when he was honorably discharged. One year of his service was in France.
    II. War Department Special Regulations No. 49, dated Jammy 5, 1918, as to training schools for candidates for. commissions in the Infantry, Cavalry, and Field Artillery, defines the status of students at the third officers’ training camp as follows:
    “ 2. Enlisted men of the Regular Army, National Guard, and National Army will be carried on detached, service in the grade they held when sent there while students at these schools. They will receive the pay and allowances of their grade, except that privates will receive the pay of privates, first class, while at the school.
    “ Graduates and undergraduates of educational institutions selected to attend will be required, upon reporting at the school, to enlist or be, inducted into the service. If after completing the three months’ course they are not recommended for a commission, they will remain in service. While students they will receive the pay and allowance of privates, first class.
    
      “ 3. * * * The civilians sent to these training schools will upon arrival be enlisted for the Regular Army (except in National Guard divisions) for the duration of the war. Those civilians sent to schools in National Guard divisions will be enlisted for the National Guard. As soon as these civilians have been enlisted the training-school commander will issue an order appointing them first-class privates. Where men are of draft age they will be inducted into the military service upon their arrival at the camp.
    “4. Civilians sent to these training schools will be paid on the first pay roll mileage at the rate of Sy2 cents per mile from their homes to the point at which the division school is located.”
    III. If entitled to judgment the amount due plaintiff is $216.68, as the difference between $100 and $33 a month for the period from January 5, 1918, to April 12, 1918.
    The court decided that plaintiff was entitled to recover.
   Hat, Jttdge,

delivered the opinion of the court:

The plaintiff in this case sues for the sum of $216.63, the difference between $100 per month and $33 per month, the pay received by him from January 5, 1918, to April 12,1918, when as an enlisted man of the Army he was in training at the third officers’ training camp at Camp Sherman, Ohio. He enlisted on January 5, 1918, in the Army for the’duration of the war, which he was required to do upon reporting at the camp.

The order under which he enlisted provided that while a student at the training camp he would receive the pay and allowances of a private, first class. This order or regulation was issued by virtue of the provisions of the act of May 12, 1911, 40 Stat. 69, 10, which authorized the Secretary of War to pay to persons designated by him for training as officers in the Army during the period of their training the sum of not to exceed $100 per month in addition to the allowances authorized by section 54 of the act of June 3, 1916, 39 Stat. 194, and the Government contends that the Secretary of War was exercising the discretion conferred upon him by that act when he fixed the pay of the plaintiff as that of a private, first class.

Congress, however, had subsequently passed the act of June 15, 1917, 40 Stat. 188, which provided:

“ For pay of enlisted men of all grades, including recruits, and pay at $100 per month for enlisted men in training for officers of the Reserve Corps, $226,882,560.”

This was a deficiency appropriation and authorized pay at the rate of $100 per month up to June 30, 1918. The Supreme Court, in an opinion by Chief Justice Taft, says that this act “ was obviously passed to put enlisted men on a level with civilians going through the same training for commissions in the Reserve Corps.” United States v. Rider, 261 U. S. 363, 366.

The regulation which fixed the pay of the plaintiff as that of a private, first class, was issued on January 5, 1918, subsequent to the passage of the act of June 15, 1917. Congress provided that the pay of an enlisted man in training for officer of the Reserve Corps should be $100 per month, and the Secretary of War could not by a regulation nullify the act of Congress.

The plaintiff was an enlisted man during the whole period while he was in training for an officer of the Reserve Corps. That period was from January 5, 1918, to April 12, 1918, within the time when the appropriation was available under the act of June 15, 1917, and the plaintiff is clearly entitled to receive the pay provided for him by Congress.

The Government contends that the plaintiff was not an enlisted man of the line within the meaning of the act of June 15, 1917, but he was enlisted to serve for the duration of the war. He was thus an enlisted man in the military forces of the United States; he was not in a local or State force, and the fact that he was in training at a camp for officers of the Reserve Corps does not alter his status as an enlisted man in the Army of the United States. He was not enlisted for the period of training, but for the duration of the war, and as a matter of fact he did serve in the Army during the entire period of the war, one year of such service being in France, and he was thereafter honorably discharged.

A judgment will be entered in favor of the plaintiff for the sum of $216.63. It is so ordered.

DowNey, Judge; Booth, Judge; and Campbell, Chief Justice, concur.

Gkaham, Judge, took no part in the decision of this case.  