
    JOEL T. BOONE v. THE UNITED STATES.
    [No. 34704.
    Decided January 16, 1922.]
    
      On the Proofs.
    
    
      'Navy pay; commutation of quarters. — An assistant surgeon in the Navy was detached irom his station and ordered to proceed to Annapolis and “ report to the commanding officer oí the Marine Barracks for duty with the Artillery Battalion, Marine Brigade,” Annapolis being the permanent station of said Marine Brigade, and upon reporting there applied at once for quarters and was told there were none available. On the same day the commanding officer received an order detailing said Artillery Battalion for duty in Haiti, said battalion sailing on the following day with the said officer on duty therewith. Held, that said officer had acquired a permanent station at Annapolis and was entitled to commutation of quarters.
    
      The RefortePs statement of the case:
    
      Mr. F„ A. Fenning for the plaintiff. Mr. Paul V. Rogers was on the brief.
    
      
      Mr. John G. Ewing, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the defendant.
    The following are the facts of the case as found by the court:
    I. While on duty at the naval training station, as assistant surgeon with rank of lieutenant (junior grade), United States Navy, Norfolk, Ya., the plaintiff received the following order:
    Navy DefaRtment, Washington, August W, 1915.
    
    To: Assistant Surgeon Joel T. Boone, U. S. N., Naval Training Station, Norfolk, Ya. (Commandant.)
    Subject: Detached Naval Training Station, Norfolk, Ya., to Artillery Battalion, Marine Brigade, Annapolis, Md.
    1. You are hereby detached from duty at the Naval Training Station, Norfolk, Ya., and from such other duty as may have been assigned to you, will proceed without delay to Annapolis, Md., and report to the commanding officer of the Marine Barracks for duty with the Artillery Battalion, Marine Brigade.
    2. This employment on shore duty is required by the public interests.
    Confirming radiogram. (s) FRANklin D. Roosevelt, Acting.
    
    II. In obedience to said order, plaintiff proceeded to Annapolis, where he arrived on the morning of August 22, 1915, and reported at once to the commanding officer of the Artillery Battalion, stationed at the Marine Barracks, U. S. Naval Academy, for duty, and filed immediately an application for quarters, which, with the endorsement of the commanding officer thereon, reads:
    Annapolis, Maryland,
    
      August 1915.
    
    From: Asst. Surgeon Joel T. Boone, U. S. Navy.
    To: Commanding Officer, Artillery Battalion.
    Subject: Request for quarters.
    1. Having reported for duty with Artillery Battalion, Marine Brigade, in compliance with appended orders, I request that quarters be assigned me.
    (s) J. T. Boone.
    
      [1st Indorsement.]
    Artillery BattalioN, Marine Barracks,
    Naval Academy,
    Annapolis, Maryland, August M, 1915. From: Commanding Officer.
    To: Asst. Surgeon Joel T. Boone, U. S. N.
    1.Beturned. There are no quarters available.
    (s) D. C. McDottgal.
    III. Some time on August 22, 1915, the commanding officer of the Artillery Battalion stationed at the Marine Barracks, United States Naval Academy, received the. following order:
    53068-35$ August 21, 1915. Confidential.
    From: The Major General Commandant.
    To: The Commanding Officer, Artillery Battalion, Marine Barracks, U. S. Naval Academy, Annapolis, Md., via Superintendent and C. O., Marine Barracks.
    Subject: Orders to expeditionary duty.
    1. The Artillery Battalion under your command is detailed for foreign shore service.
    2. Upon the arrival of the Tennessee at the Naval Academy, Annapolis, Md., you will embark battalion, fully armed and equipped both as artillery and as infantry, on board that vessel for passage.
    3. Upon arrival at the destination, to be designated by the Navy Department, you will report to the senior officer present.
    George Barnett.
    On August 23, 1915, the entire Artillery Battalion, including the plaintiff, embarked on the U. S. S. Tennessee and sailed for Port au Prince, Haiti, where the command, including plaintiff, disembarked on September 1, 1915, and served with the Artillery Battalion and other units of the First Marine Brigade in Haiti, from that date, on temporary shore service, until June 24,1916, when he was detached and ordered to the U. S. S. Solace for treatment.
    
      IY. Three days after the plaintiff had sailed on the U. S. S. Tennessee, the following order was issued:
    N-31/W, August 26, 1915.
    
    To: Assistant Surgeon Joel T. Boone, U. S. N., Marine Barracks, Annapolis, Md. (Superintendent.)
    Subject: Detached Artillery Battalion, 'Marine Brigade,
    Annapolis, Md., to Tennessee.
    
    1. When the Artillery Battalion embarks at Annapolis, Md., you will regard yourself detached from duty with the Artillery Battalion, Marine Brigade, Annapolis, Md., will report to the commanding officer of the Tennessee for duty on board that vessel, and for additional duty with the Artillery Battalion, Marine Brigade.
    (s) Victor Blue.
    The plaintiff did not receive this order until over a month after his arrival in Haiti, September 1, 1915, and it was afterwards canceled, and the first order allowed to stand.
    V. Paragraph 1027 of the Army Regulations for 1913-1917 directs that:
    “An officer reporting for duty at a post will immediately upon his arrival make written application for quarters.”
    Paragraph 1299 (idem) provides:
    “A commissioned officer on duty at a place where there are no public quarters available is entitled to commutation of quarters.”
    Paragraph 1302 (idem) is as follows:
    “An officer does not lose his right to quarters or commutation at his permanent station by a temporary absence on duty.”
    VI. Naval Regulations, 1913, provide as follows:
    “R. 4511 (2). Officers of the Navy, except midshipmen, serving ‘ with troops5 are entitled to their proper allowance of public quarters or of quarters hired by the Government for them, or commutation thereof; or, if not serving ‘ with troops,’ are entitled to their proper allowance of public quarters or commutation thereof.
    “R. 4512 (1). All officers, including paymasters’ clerks and mates, but excepting midshipmen, on duty at a station where there are no public quarters for their accommodation, or where public quarters are inadequate, or where quarters have not been hired for their use, or any such officers on special duty or on detached - service on shore, are entitled to commutation for quarters at established rates.
    “B 4512 (5). An officer does not lose his right to quarters or commutation at his permanent station by a temporary absence on duty. While he continues to hold that right and expresses it by constructive occupation or use of any kind, he can not legally demand quarters nor commutation at any other station. Exceptions to this rule can be made only by the Secretary of the Navy.”
    VII. The plaintiff filed a claim for commutation of quarters from August 22,1915, to June 24,1916, with the accounting officers of the Treasury, which was disallowed by the auditor on the ground that plaintiff’s application for quarters on August 22, 1915, did not establish a permanent residence for him in Annapolis. On appeal, the comptroller affirmed the disallowance of the auditor.
   Campbell, Ghief Justice,

delivered the opinion of the

court:

The plaintiff was an assistant surgeon on duty at the Naval Training Station at Norfolk, Va., with the rank of lieutenant, junior grade, when, on August 20, 1915, an order was issued by the Acting Secretary of the Navy, detaching him from duty at the training station and ordering him to proceed without delay to Annapolis “ and report to the commanding officer of the Marine Barracks for duty with the Artillery Battalion, Marine Brigade.” In obedience to this order, upon its receipt on August 21, the plaintiff proceeded without delay to Annapolis, where he arrived on the morning of August 22. He reported at once to the commanding officer mentioned in the order for duty and filed an application for quarters. This application was indorsed to the effect that there were no quarters available.

On the same day, August 22, the commanding officer of the Artillery Battalion received an order detailing the battalion for foreign-shore service, and directing him to embark the battalion upon the arrival of the Tennessee at the Naval Academy. This order was marked confidential, and directed that “ upon arrival at the destination to be designated by the Navy Department ” the commanding officer would report to the senior officer present. This order was issued by. the major general commandant of the Marine Corps. On August 23 the battalion, including the plaintiff, embarked on the U. S. S. Tevmessee and sailed for Port au Prince, Haiti, where they were disembarked on September 1, 1915.

The plaintiff seeks commutation of quarters from the time of his application for quarters when he reported for duty at Annapolis until June 24,1916, when he was detached from duty in Haiti and ordered to the U. S. S. Solace for treatment. The question is whether the plaintiff acquired such a permanent station at Annapolis as would entitle him to the commutation of quarters provided for by the statute and regulations.

The act of February 27,1893, 27 Stat. 480, provides “ that hereafter officers temporarily absent on duty in the field shall not lose their right to quarters or commutation thereof at their permanent station while so temporarily absent.” At the time of the order to plaintiff, the pay of members of the Marine Corps was regulated by the statutes applicable to corresponding rank of Army officers. The proviso to section 9 of the act of June 17, 1878, 20 Stat. 151, as amended by the act of March 2,1907, 34 Stat. 1168,1169, provides that at places where there are no public quarters, commutation thereof may be paid by the pay department to the officer entitled to the same at a rate not exceeding $12 per month per room. See also the Navy Personnel Act' of March 3, 1899, 30 Stat. 1004, 1007, and the act of May 13, 1908, 35 Stat. 127.

Both the Army and Navy Regulations provide that an officer does not lose his right to quarters or commutation of quarters at his permanent station by temporary absence on duty. Paragraphs 1027,1299, and 1302 of the Army Regulations for 1913, and 4511, 4512, Navy Regulations for 1913.

It will be noticed also that the Army Regulations require that an officer reporting for duty at a post will immediately upon his arrival maké written application for quarters. This was done by the plaintiff, and he was notified that no quarters were available. He had reported for duty in obedience to his orders, he had asked for quarters and had been notified that they were not available. It seems to us that he had done all that he was required to do, or could do to establish his status. Annapolis was the permanent station of the Marine Brigade. The circumstance that in a very-short time after the plaintiff reported for duty with the battalion he was ordered aboard ship with it could not affect the status of the officer, so far as his right to commutation of quarters is concerned. This view receives some confirmation from the fact that three days after the plaintiff had sailed with the battalion on the U S. S. Tennessee, an order was issued to him,-dated August 26, directing that when the Artillery Battalion embarks at Annapolis, he would regard himself detached from duty with the battalion and report to the commanding officer of the Tennessee for duty on board that vessel and for additional duty with the battalion. This order did not reach the plaintiff for some weeks, and was finally canceled because he had already embarked with the battalion, as has been stated, but the order itself would indicate that the officials in the Navy Department considered plaintiff’s assignment to duty at Annapolis and his reporting there as having given him station there. But aside from-this view, we think that the plaintiff acquired a right to a commutation of quarters, and the same having been disallowed him, that he is entitled to recover. He will therefore be awarded judgment for $363.60, the amount shown by the findings to be due him. And it is so ordered.

Graham, Judge; Hat, Judge; Downey, Judge; and Booth, Judge, concur.  