
    JOSEPH C. THOMPSON v. THE UNITED STATES.
    No. 28529.
    Decided May 18, 1914.]
    
      On the Proofs.
    
    The plaintiff was an assistant surgeon in the Navy, with the rank of lieutenant, junior grade, and this suit was brought to recover the difference between sea and shore duty pay beyond the seas while serving in China, and the difference between Army shore pay, mounted, and Army sea pay, mounted, while traveling as a passenger from China to the Philippine Islands.
    I.Where an assistant surgeon in the Navy, under proper orders, performed services in China with the United States Marines, such services were shore duties and not duti'es at sea.
    II.Where an assistant surgeon in the Navy travels under orders as a passenger on a United States naval vessel from China to reach an assignment to duty in the Philippine Islands, he is not performing sea service and is only entitled to shore pay.
    III. Where an assistant surgeon in the Navy performed shore duty beyond the seas pursuant to an order detailing him for such duty, he is entitled to the 10 per cent additional compensation, calculated on the basis of his maximum pay.
    IV. While an assistant surgeon in the Navy is on duty at a naval hospital in the Philippine Islands, he is performing shore duty beyond the seas.
    
      The Reporter's statement of the case:
    The following are the facts of the case as found by the court:
    I. Claimant was appointed from civil life an assistant surgeon in the Navy July 19, 1897, and accepted said appointment on July 26, 1897, and has since served continuously therein. During the times hereinafter mentioned he was an assistant surgeon with the rank of lieutenant (junior grade).
    II. From July 17 to October 10,1900, inclusive, he was on duty on shore in China with the Chinese relief expedition under orders of June 17,1900, from Eear Admiral George C. Eemey, United States Navy, commander in chief of the Asiatic Station, directing him to proceed on U. S. S. Iris and report to the senior squadron commander off Taku, China, for temporary duty with the detachment of marines. The senior squadron commander, Eear Admiral Louis Kempff, United States Navy, on July 1, 1900, indorsed his orders as follows:
    “ 3rd endorsement.
    “ U. S. Flagship ‘ Newark,’ Taku, ChiNA,
    “ July 1, 1900.
    
    “Beported and will proceed at the earliest possible convenience to Tientsin, China, and report to the officer in command of the U. S. force at that place for service with that force.
    “ Loins Kempee, Bear Admiral.”
    “4th endorsement.
    “ Headquarters, U. S. Force,
    
      “Tientsin, China, July 2,1900.
    
    “ Beported. Beport further to P. A. Surgeon Kennedy for present duty with wounded.
    “ LittletoN W. T. Waller,
    
      “Major, U. S. M. C.,
    
    
      “Corn? dig”
    
    In accordance with these orders claimant served with the First Begiment, United States Marines, on shore in China, principally at Tientsin, and was not attached to and performed no duty on any ship during said period.
    III. If entitled to be paid the same pay as an officer of the Army of corresponding rank, at mounted rates, plus 10 per cent increase for shore duty beyond seas at $1,936 per annum, there is due claimant for the period mentioned in the preceding finding $44.73 more pay than he has received.
    IV. From October 11 to October 19, 1900, claimant traveled, in accordance with orders, as a passenger, and not on sea duty, and not as a member of her complement, on U. S. S. Zafiro, a naval vessel of the United States, from Taku, China, to Cavite, P. I.
    Y. If entitled to be paid the full pay of an Army officer of corresponding rank, at mounted rates, at $1,760 per an-num, there is due claimant for the period mentioned in the preceding finding $6.60 more pay than he has received.
    VI. From October 20 to December 19, 1900, claimant was on duty, in accordance with orders, at the naval hospital, Cavite, P. I.
    
      VII. If entitled to be paid the same pay as an officer of the Army of corresponding rank, at mounted rates, plus 10 per cent increase for shore duty beyond seas at $1,986 per annum, there is due claimant for the period mentioned in the preceding finding $50.67 more pay than he has received.
    
      Messrs. King dh King for the plaintiff.
    
      Mr. L. G. Bissell, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
   Atkinson, Judge,

delivered the opinion of the court:

Claimant was an assistant surgeon in the Navy with the rank of lieutenant (junior grade). Under proper military orders he performed service as follows: From July 17, 1900, to October 10, 1900, on shore with a detachment of Marines in China; from October 11,1900, to October 19,1900, traveling aboard the U. S. S. Zafiro from China to reach assignment to duty at Cavite, P. I., and from October 20, 1900, to December 19, 1900, on duty at the naval hospital, Cavite, P. I.

Claimant was allowed pay by the Treasury Department from July 17 to October 5, 1900, the sea pay of his grade, namely, the pay of a first lieutenant in the Army, mounted, after five years’ service, or $1,760 per annum; from October 6 to October 19 he was allowed the shore pay of his grade, namely, the pay of a first lieutenant in the Army, mounted, after five years’ service, less 15 per cent thereof, or $1,496 per annum; and from October 20 to December 19 he was allowed the foreign shore-duty pay of his grade calculated on the basis of his minimum pay, or $1,632 per annum.

He claims in his petition that he should have been paid for these three periods as follows:

1. From July 17 to October 5, at the rate of $1,936 per annum, or his maximum normal pay plus 10 per cent of this maximum on account of foreign shore service.

2. From October 6 to October 19, at the rate of $1,760 per annum, or sea pay.

3. From October 20 to December 19, at the rate of $1,936 per annum, or his maximum normal pay plus 10 per cent of this maximum on account of foreign shore service.

Item 1. Under this item he sues to recover the difference between sea and shore duty .pay beyond seas while serving with the First Regiment of United States Marines at Tientsin, China, as set forth in Finding III. He received only the pay of an Army officer of corresponding rank, but should have been allowed 10 per cent additional thereto for shore duty beyond seas. See act of May 26, 1900, 31 Stats., 211; 30 Stats., 1007; United States v. Mills, 197 U. S., 223. He is therefore entitled to recover under this item $44.73 more than he has received, because we believe that the original order of Rear Admiral Remey, together with the third and fourth indorsements thereon (Finding II), clearly shows that the services to be and which were rendered by claimant in China with the United States Marines were shore duties and not duties at sea.

Item 2. This is a claim for the difference between Army shore pay, mounted, and Army sea pay, mounted, as shown by Findings IV and V, while traveling as a passenger from Taku, China, to Cavite, P. I. During the period from October 6 to October 19, 1900, claimant was traveling under orders, but merely as a passenger on the U. S. S. Zafiro, a naval vessel in the employ of the United States. We do not believe that claimant is entitled to recover under this item. Section 1571 of the Revised Statutes provides that “ No service shall be regarded as sea service except such as shall be performed at sea, under the orders of a department and in vessels employed by authority of law.” It is true that claimant was traveling under orders, but his orders were not to perform sea service in the sense required to entitle him to sea pay-

We think this item is controlled by Farenholt's case, 42 C. Cls., 114, wherein it was held that an officer on duty beyond seas is not entitled to the extra 10 per cent allowed to officers of the Navy detached for shore duty beyond seas by the act of March 3, 1901, 31 Stats., 1108, unless he rendered such service. Whilst it is true the claimant is not applying for shore-duty pay beyond seas, but is applying for sea-duty pay, therefore the converse would be that he is not entitled to sea-service pay; because an officer detached from one service is not attached to another until he enters upon its duties. He had been relieved from shore duty at Tientsin and was traveling as a passenger on a Government transport, as before stated, to Cavite, P. I., to enter upon like service at that place. United States v. Thomas, 195 U. S., 418; Ryan v. United States, 38 C. Cls., 143; Schoonmaker v. United States, 19 C. Cls., 170. We therefore hold that during this journey from China to the Philippine Islands claimant was only entitled to shore pay, which pay he received.

Item 3. Under this item he claims 10 per cent increase for shore-duty pay beyond seas above the pay of an officer of the Army of corresponding rank, from October 20 to December 19, 1900, in hospital work at Cavite, P. I. He is entitled to pay for this service as an officer of the Army of corresponding rank, at mounted rates plus 10 per cent increase for shore duty beyond seas at $1,936 per annum. During this period claimant performed shore duty beyond seas pursuant to an order detailing him for such duty, and as the Philippine Islands constituted a foreign station for the purpose of extra pay under the act of May 26, 1900, 31 Stats., 211, which was in force when he performed this service, he is therefore entitled during this period to 10 per centum additional compensation calculated on the basis of his maximum pay of $1,936, which would be $50.67 more than he had received.

For the reasons we have given we decide that claimant should recover judgment against the United States for the gum of $95.40, which is accordingly ordered.  