
    JOHN de P. DOUW v. THE UNITED STATES.
    [No. 22433.
    Decided March 18, 1901.]
    
      On the Proofs.
    
    An ensign in the Navy tenders his resignation, August 8, 1898. It is accepted August 13, 1898, to take effect August 15, 189£. On the same day the Chief of the Bureau of Navigation incloses an honorable discharge and suggests that the officer return the letter accepting his resignation. He does not do so.
    I. The Act Sd March, 1899 ( 30 Stat. L., 1228), grants two months’ extra pay “to officers and enlisted mm comprising the temporary force of the Navy during the war with Spain who served creditably beyond the limits of the United States, and who have been or may hereafter be discharged.” This is restricted to officers and men who serve until discharged.
    II. An officer who resigns and whose resignation is accepted is thereby out of the service and can not subsequently be discharged, within the intent of the act.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. That claimant, John de P. Douw, is a citizen of the United States, and resides at Annapolis, in the State of Maryland.
    II. That on the 14th day of May, 1898, claimant was appointed and commissioned by the President of the United States to be an ensign in the temporary force of the Navy during the war with Spain, under the provisions of the act of Congress approved May 4, 1898.
    III. That on May 16, 1898, claimant was ordered to duty on board the U. S. S. Southery, and served as an ensign thereon creditably beyond the limits of the United States until August 11, 1898, when he was detached therefrom under orders of the Navy Department dated August 9, 1898, directing him to proceed to his home.
    IV. On August 8, 1898, claimant tendered his resignation as an ensign to the Secretary of the Navy by the following letter, to wit:
    
      “U. S. S. Sotjthery, August 8, 1898. “Hon. John D. Long,
    ‘ ‘ Secretanj of the Wavy.
    
    “Sir: I bave the honor to tender my resignation as an ensign in the United States Navy. As I volunteered for patriotism and a desire for active service, I feel that I should not longer absent myself from my wife and family now that the war is practically over.
    “Yery respectfully,
    “John de Peyster Douw,
    “Ensign, Ñ. S. NO
    
    The resignation was accepted on August 13, 1898, to take effect August 15, 1898.
    Subsequent to the resignation and acceptance thereof, to wit, August 15, 1898, the Chief of the Bureau of Navigation of the Navy Department inclosed an honorable discharge from the naval service to claimant for the reasons mentioned in the following letter, to wit:
    “The Bureau incloses herewith an honorable discharge from the naval service, from the date, presuming that this would be more acceptable to you than the acceptance of your resignation. If this is so, you will please return to the Department for cancellation the letter accepting your resignation dated the 13th.”
    The letter of resignation was not returned.
    Y. For his services claimant has received the pay and allowance then fixed by law for an ensign in the Navy, but he has not received any additional pay therefor under the provisions of the act approved March 3, 1899 (30 Stat. L., 1228).
    
      Mr. Samuel A. Putnam for the claimant. Mr. Oha/rles M. Shelly was on the brief.
    
      Mr. George M. Gorman (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   Howry, J.,

delivered the opinion of the court:

Plaintiff was appointed and commissioned by the President to be an ensign in the temporary force of the Navy during the war with Spain under the provisions of an act of Congress approved May 4, 1898. He was ordered to duty on board ■the Southeiy, and served under his appointment creditabty bejmnd the limits of the United States until August 11, 1808, when he was detached from service at sea under orders of the Navy Department directing' him to proceed to his home. The day preceding the order detaching him the plaintiff tendered his resignation, as shown in the letter disclosed by the fourth finding. The Secretary of the Navy accepted the resignation on August 13, 1898, to take effect August 15, 1898. On the last named date, however, the Chief of the Bureau of Navigation forwarded an honorable certificate of discharge from the naval service to plaintiff, stating to him that the discharge was forwarded on the presumption that this would be more acceptable to him than the acceptance of his resignation, and with the further statement that if this was so plaintiff would return to the Department for cancellation the letter accepting his resignation. This letter, however, was not returned.

Plaintiff subsequently presented a claim for $200 for two months’ extra pay authorized by the act of March 3, 1899 (30 Stat. L., 1228). This claim was rejected by the Auditor on the ground that a subsequent discharge issued by the Navy Department was, in effect, but a form of acceptance of his resignation and not such a discharge as was contemplated by the act granting extra pay to officers of the temporary force of the Navy (5 Comp. Dec., 877; 6 Comp. Dec., 346, 714).

The statute under which the claim is made provides that—

“The officers and enlisted men comprising the temporary force of the Navy during the war with Spain who served creditably beyond the limits of the United States, and who have been or may hereafter be discharged, shall be paid two months’ extra pay.”

Plaintiff is within the spirit of the act, but unfortunately for his interest he is not within the terms of the statute. He was not offered a certificate of discharge from the service until after his resignation had been duly accepted and taken effect. The day the resignation took effect he was as much out of the service, as far as any orders of the Navy Department could affect him (whether beneficially or injuriously), as if he had never been in it. Being no longer amenable to the requirements of a service which he had voluntarily left, the letter transmitting to him a certificate of honorable discharge was inoperative to cancel the resignation. Had the resignation been revoked before the same took effect a different question might arise, but on the case as it has arisen we are unable to afford relief.

The petition is dismissed.  