
    CARL REICHMAN v. THE UNITED STATES.
    [No. 16299.
    Decided May 20, 1889.]
    
      On the Proofs.
    
    
      A first sergeant in the Army is appointed second lieutenant; he accepts, is discharged as an enlisted man, and under orders proceeds to join his company, drawing in advance an officer’s mileage for the journey. He now seeks commutation as an enlisted man for transportation from the place of his discharge to the place of his enlistment.
    I. An enlisted man in the Army is not entitled to transportation from the place of his discharge to the place of his enlistment under the Revised Statutes §1290, unless his connection with the Army be actually and finally severed.
    II. His connection with the Army is not actually and finally severed if his discharge be consequent to his appointment as a commissioned officer, and merely a formality in his promotion. In such a case he remains continuously in the service, and is never in a condition where he can demand transportation in kind.
    - The Reporters’ statement of tbe case:
    The following are the facts of the case as found by the court:
    I. The claimant enlisted in the Army December 6,1881, at Chicago, Ill., and was assigned to Company I, Twentieth Infantry. He was successively promoted corporal, sergeant, and first sergeant. Under the act of June 18, 1878, providing for the promotion of meritorious non-commissioned officers, he was examined for promotion to second lieutenant by a department board at Fort Leavenworth, Kans.j in April and May, 1884, passed a satisfactory preliminary examination, and was ordered to Fort Monroe, Ya., for final examination. He was recommended for appointment as second lieutenant by the board at Fort Monroe, and was accordingly appointed second lieutenant, Twenty-fourth Infantry, August 4,1884, accepted the appointment from Fort Monroe August 7,1884, and was discharged as an enlisted man to date August 6,1884. By special orders, August 4,1884, he proceeded from Fort Monroe to join the company to which he had been assigned — Company G-, Twenty-fourth Infantry, Fort Supply, Ind. T. He drew advance mileage for the journey, and joined his company at Fort Supply September 4, 1881.
    II. The claimant was not furnished transportation and subsistence from the place of his discharge as an enlisted man to the place of his enlistment, enrollment, or original muster into the service. It does not appear that he demanded such transportation or subsistence, or that the same were offered to him. He has not been allowed pay and commutation of subsistence therefor, now claimed by him.
    III. It has been the uniform practice of the Paymaster-General’s Office of the Army, under the rulings of the accounting officers (2d Comp.’s Digest, 1869, 2190 et seq.), to refuse payment of traveling allowances under the Act of 1812 (Rev. Stat., 1290) to an enlisted man released, before the expiration of his • term of service, from one branch of the service to permit him to join another.
    
      Mr. Allan Rutherford for the claimant.
    
      Mr. Héber J. May (with whom was Mr. Assistant Attorney- General Howard) for the defendants:
   Richardson, Ch. J.,

delivered the opinion of the court:

The claimant was an enlisted man and sergeant in the Army of the United States. Availing himself of the regulations providing for the promotion of meritorious non-commissioned officers, he successfully passed two examinations, and was recommended for appointment as second lieutenant by the examining board of officers. Thereupon; and before the expiration of his term of enlistment, he was appointed second lieutenant August 4,1884, accepted the appointment, and was discharged as an enlisted man August 7,’to date from August 6, 1884.

He brings this action to recover travel pay and commutation of subsistence from the place of his discharge to the place of his enlistment under the following section of the Revised Statutes as amended by the Act of February 27, 1877, chapter 69 (Supp. to Rev. Stat., p. 268, par. 39).

“Sec. 1290. When a soldier is [honorably) discharged from the service [except by way of punishment for an offense] he shall be allowed transportation and subsistence from the place of his discharge to the place of his enlistment, enrollment, or original muster into the service. The Government may furnish the same in kind, but in case it shall not do so, he shall be allowed travel pay and commutation of subsistence for such time as may be sufficient for him to travel from the place of discharge to the place of his enlistment, enrollment, or original muster into the service, computed at the rate of one day to every twenty miles.”

The object of the statute is to return a soldier, when he honorably leaves the service, to the place whence he was taken at the time of his enlistment, or in lieu thereof to give him money sufficient to pay the expenses of his return. He need not return unless he so desires. If the Government offers to transport him he need not accept the offer; and if he is paid the commutation money, he need not use it for that purpose.

But he must be out of service, so that the United States . have no further claim on him and he has a right to go where he pleases.

In our opinion the claimant’s case does not come within the letter or the spirit of the law. He was not discharged from the service,” as required by the language of the statute before he could become entitled to transportation or commutation; but he was discharged as an enlisted man, according to the very words of his discharge. He was promoted, and that of itself relieves him from his enlistment. No discharge was necessary, and none such as the statute contemplates was given. He was . continuously in service, and was never for a moment in a condition to demand transportation iu kind nor to go where he pleased. On the very day of his appointment, three days before his formal discharge as an enlisted man, he was ordered, as a second lieutenant, to join his company at a distant place in the Indian Territory, to which he proceeded. For that he was paid mileage as an officer at a rate greater than he would have been entitled to for transportation and subsistence if he had been discharged from the service.

The Government did better by him than to hold him to his original contract of five years’ enlistment with soldier’s pay and transportation to the place whence he came upon honorable discharge from the service.., It released him from that contract in the midst of the term, and promoted him to be an officer, with better duty and higher pay, and so never discharged him from the service.

The petition must be dismissed.  