Owen v. United States

64 Ct. Cl. 496, 1928 U.S. Ct. Cl. LEXIS 535, 1928 WL 2920

• Court: United States Court of Claims
• Decided: January 23, 1928
• Docket: No. E-335
• Status: Published

Opinion

Moss, Judge,

delivered the opinion of the court:

The plaintiff, Cyril Benson Owen, entered the military service of the United States as an enlisted man on January 5, 1918, and on the same day was assigned to the officers’ training camp at Camp Stanley, Texas. On April 7, 1918, he was relieved from duty with other students at this training camp under orders of the War Department to proceed to Camp Merritt, Cresskill, New Jersey, where said students were provided with certain equipment for overseas duty. Under further orders plaintiff proceeded thence to the Saumur Artillery School in France on April 30, 1918, and on July 11, 1918, he was honorably discharged as a graduate from that school and was granted a commission as a second lieutenant, Field Artillery, National Army.

Congress provided, by act of June 15, 1917, 40 Stat. 188, that enlisted men of all grades in the Army while in training for officers of the Reserve Corps, should be paid $100 per month. Plaintiff’s claim for the extra pay was disallowed, and this action is for the recovery of the difference between $100 per month and the amount actually paid plaintiff during the period from January 5,1918, to July 11,1918. If entitled to recover, plaintiff should receive $373.06.

The Government recognizes the claim of plaintiff only for the period from January 5, 1918, to April 6, 1918, while he was on detail at the Camp Stanley Training Camp, but denies his right to any further recovery. It is the contention of the Government that plaintiff completed his training at Camp Stanley, and that the assignment to the training camp in France was for the purpose of better qualifying him for his duties as a commissioned officer. The record does not sustain this theory. There is no evidence that plaintiff graduated from the Camp Stanley Training Camp. Certainly he was not given a commission. Before he had completed the course of that camp he was sent, with other students, to the school of Saumur, France, under an order of the War Department, dated April 6, 1918, which reads in part as follows:

“ Pursuant to telegraphic instructions from The Adjutant General’s Office, Washington, D. C., April 2d, 1918, the following-named men [plaintiff’s name was among the number] will stand relieved from duty at this training camp on Sunday, April 7th, 1918, and will proceed, under charge of Reg. Sgt. Major Paul K. Partee, Headquarters, 62d Field Artillery Brigade, to Camp Merritt, Cresskill, New Jersey, reporting upon arrival to the commanding general, port of embarkation. Each man will be fully equipped for overseas duty with articles of ordnance and quartermaster equipment enumerated in par. 3, Bulletin 17, Headquarters, Southern Department, c. s.

“The destination of the above students is the artillery-school at Saumur.”

Construing the act of Congress according to its fair intent and purpose, plaintiff was at all times from Jánuary 5, 1918, until he received his commission in France on July 11, 1918, a candidate in training for a commission within the meaning of said act, and as such is entitled to the pay provided for such cases. However, the extra pay may not extend beyond June 30,1918. United States v. Rider, 261 U. S. 363.

Gkaham, Judge; Booth, Judge; and Campbell, Chief Justice, concur.