
    HENRY GUILMETTE v. THE UNITED STATES.
    [No. 31160.
    Decided January 5, 1914.]
    
      On the Proofs.
    
    The plaintiff enlisted in the Navy March 13, 1905, discharged December 13, 1907, and appointed paymaster’s clerk December 14, 1907. The only question in the case is whether the plaintiS was appointed from civil life and, therefore, entitled to credit for five years’ constructive service under the Navy personnel act of March 3,1899. 30 Stat. L., 1007.
    I. The credit of five years’ constructive service to which officers entering the Navy from civil life are entitled under the Navy personnel act is in addition to actual service which may have been rendered under a prior appointment.
    II. Where retirement from the public service is in good faith and the same party is thereafter appointed to service in the Navy, such appointment is from civil life and the officer so appointed is entitled to credit for five years’ constructive service under the Navy personnel act.
    
      The Reporter's statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Henry Guilmette, enlisted in the Navy March 13, 1905, was discharged December 13, 1907, and appointed paymaster’s clerk December 14, 1907.
    While serving as such clerk on the U. S. S. Charleston, then at Cavite, P. 1., on the Asiatic station, he received orders dated July 28, 1909, detaching him from duty and directing him upon the completion of the pajunaster’s accounts to proceed immediately to his home in the United States, his appointment as paymaster’s clerk to be revoked from the date of his arrival.
    Paymaster Wise was detached from the Charleston October 19, 1909, and completed the settlement of his accounts October 25, 1909. The claimant tendered his resignation to take effect on that day, and it was so accepted, and he was paid to that date.
    
      His purpose at that time, as stated by him, was to go into private business at the city of Manila.
    Paymaster Wise, having been appointed and ordered to duty as pay officer of the Monterey, then at .Cavite, and having reported on board that vessel October 22, 1909, offered the position of paymaster’s clerk to the claimant, which he declined. Subsequently said Wise was ordered to duty as general storekeeper and paymaster of the yard at the naval station at Olongapo, P. I., and tendered the position of paymaster’s clerk there to the claimant, October 27, 1909, which offer claimant also declined. The ground assigned in each instance was that he did not intend to return to the Navy, and that he was seeking employment in civil life.
    Later Paymaster Wise was ordered to duty as paymaster of the U. S. S. Tennessee, and reported for duty on that vessel November 4, 1909. A few days afterwards he offered the position of paymaster’s clerk on that vessel to the claimant, which offer the claimant finally accepted.
    He was regularly notified by the commander in chief of the Pacific Fleet of his appointment, November 10, 1909, and on the following day, the 11th, accepted the appointment, took the oath of office, and reported for duty, and has ever since been in the service as paymaster’s clerk.
    II. If the claimant is credited on the date of appointment, November 11, 1909, with five years’ credit for computing his pay under the proviso of section 13 of the act of March 3, 1899, 30 Stats., 1007, there would accrue to him $638.93 more pay than he has received up to and including September 20, 1911, the date of the filing of the petition herein.
    
      Mr. George A. King for the plaintiff. King and King were on the brief.
    
      Mr. L. G. Bissell, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
   AteiNSON, Judge,

delivered the opinion of the court:

The only question in this case is whether the plaintiff, who is a paymaster’s clerk in the Navy, is entitled to credit for five years’ constructive service on the theory of appointment from civil life.

Plaintiff originally entered the Navy by enlistment March 13, 1905, and served until discharged December 13, 1907. On the date of his discharge he executed the requisite oath of office and became a paymaster’s clerk, pursuant to an appointment dated December 11, 1907. Thus, his initial appointment to the position of paymaster’s clerk was not from civil life.

While serving under this appointment on the U. S. S. Charleston, of the Pacific Fleet, and under date of July 28, 1909 plaintiff was ordered to assist Paymaster Wise, of the Charleston, in the settlement of his accounts. Upon the expiration of the period allowed for that purpose, he was ordered to proceed to his home in the United States, and, upon his arrival there, to consider his appointment of December 11, 1907, revoked.

Paymaster Wise completed the settlement of his accounts on October 25, 1909, whereupon plaintiff, instead of proceeding to his home, tendered his resignation for immediate acceptance, and it was accepted, October 25, 1909.

Meanwhile, on October 22, Paymaster Wise offered to nominate him for reappointment as his clerk on the U. S. S. Monterey, to which Wise had been assigned for duty. Plaintiff promptly declined the offer. Subsequently Wise was assigned to duty at the naval station at Olongapo, P. I., and on October 27 he again offered to nominate plaintiff for reappointment as his clerk, which he again declined. Still later, on or about November 2, Wise was assigned to duty on the U. S. S. Tennessee, and, as on two former occasions, he again offered to nominate plaintiff as his clerk, and this time plaintiff accepted, assuming his duties on or about November 11.

It therefore appearing that 17 days had elapsed between the time of plaintiff’s resignation from the public service and his reappointment to and acceptance of a similar position in the same service, can it be considered as an appointment from civil life? Plaintiff’s claim is for a credit of five years on his appointment of November 11, 1909, under the Navy personnel act of March 3, 1899, 30 Stats., 1007, which provides:

“That all officers, including warrant officers, who have been or may be appointed to the Navy from civil fife shall, on the date of appointment, be credited, for computing tbeir pay, with five years’ service.”

The act of May 13, 1908 (35 Stats., 128), as amended by the act of June 24, 1910 (36 Stats., 606), provides that paymasters’ clerks shall receive the same pay as warrant officers; consequently plaintiff is brought within the Navy personnel act above quoted, and is entitled to all of the benefits and privileges that it confers. Hence it is apparent that the credit of five years’ constructive service to which officers entering the Navy from civil life are entitled, under the above statutes, is in addition to any actual service they may have rendered under a prior appointment.

There is nothing in the case at bar inconsistent with the case of Stirling v. United States, 48 C. Cls., 386. Stirling was a former midshipman whose resignation had been requested and was accepted because of physical disability. A joint resolution was proposed which provided for the appointment of Stirling to be an ensign. Pending the proposed action in Congress an amendment was adopted pursuant to the recommendation of the Secretary of the Navy providing that Stirling be reinstated to the position he was entitled to by his order of merit. The court there said that there would probably have been no legislation for the relief of Stirling unless he had been recommended distinctly for “reinstatement.” Stirling accepted reinstatement and returned to the service. The action of the legislative body was neither an appointment nor a reappointment. Keappointment means the act of reappointing or the condition of being reappointed, while reinstatement means the act of reinstating or the condition of being reinstated. To reinstate is merely to restore to a former state, station, or authority; to instate again. In Stirling’s case the court was carrying out the evident intention of Congress. In the case at bar 'the findings disclose retirement from the public service in good faith and a second appointment from civil life with nothing in the conduct of his reentry into the service discrediting the good faith either of the appointing power or of this plaintiff.

Plaintiff was 17 days out of the public service, and, as no fraudulent collusion is shown between plaintiff and Paymaster Wise to defeat tbe purposes of tbe law, our conclusion is tbat plaintiff was in fact and in law completely separated from tbe pubbe service, and is, therefore, entitled, under bis reappointment, to be credited witb five years’ service as appointed from private or civil Hfe, and judgment against tbe United States is accordingly entered in favor of plaintiff for tbe sum of $638.93.

It is so ordered.  