United States v. Thornton
160 U.S. 654 (1896)

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U.S. Supreme Court

United States v. Thornton, 160 U.S. 654 (1896)

United States v. Thornton

No. 133

Submitted December 20, 1895

Decided January 6, 1896

160 U.S. 654

Syllabus

The claimant originally enlisted at Washington in August, 1878, and was discharged at Mare Island, California, November 6, 1886, receiving (under the provisions of Rev.Stat. § 1290, as amended by the Act of February 27, 1877) travel pay and commutation of subsistence from Mare Island to Washington. He did not return to Washington, but November 10, 1886, reenlisted at Mare Island as a private, and in the course of his service was returned to Washington, where, at the expiration of two years and four months, he was discharged at his own request. Held hat, as the service was practically a continuous one, and his second discharge occurred at the place of his original enlistment, he was not entitled to his commutation for travel and subsistence to the place of his second enlistment.

The petition in this case set forth that the petitioner enlisted as a private in the marine corps, November 10, 1886, at Mare Island, California, to serve five years, and was discharged March 13, 1889 at Washington, D.C., by order of the Secretary of the Navy; that, under the provisions of Rev.Stat. § 1290, he was entitled to receive transportation and subsistence or travel pay and commutation of subsistence from the place of his charge to that of his enlistment; that he made written application for the same to the Treasury Department, and was informed that his claim was adjusted and transmitted

Page 160 U. S. 655

to the Second Comptroller, who declined to allow the case on the ground that he was discharged at his own request before the expiration of his term of enlistment.

The case having been heard before the Court of Claims, that court upon the evidence found the following facts:

1. The claimant enlisted at the age of 13 years, 1 month, and 3 days, in the marine corps of the United States at Washington, D.C., on August 29, 1878, for a term of 7 years, 10 months, and 27 days, and was then "bound to learn music" in said corps.

April 17, 1880, he was rated as a drummer.

November 6, 1886, he was discharged from the service at Mare Island, California, as a drummer.

November 10, 1886, he reenlisted at Mare Island, California, as a private in said corps for a term of five years.

On March 13, 1889, before the expiration of the last-mentioned term of enlistment, Thornton, as a private in said corps, was at his own request, and not by way of punishment for an offense, discharged from service at the Marine Barracks, Washington, D.C., by direction of the Secretary of the Navy.

The claimant was settled with in full for all pay and allowances except transportation and subsistence in kind, or, in lieu thereof, travel pay and commutation of subsistence, from Washington, D.C., the place of his discharge, to Mare Island, California, the place where he had reenlisted. And when he was discharged at the end of his term of enlistment, he received travel pay and commutation of subsistence, computed at the rate of one day for every twenty miles of the distance from Mare Island, California, to Washington, D.C.

2. The travel pay and commutation of subsistence of a private in the marine corps, when discharged in the third year of his second term of enlistment, and when he is allowed the same, are stated by the proper accounting officers of the Treasury Department to be one day's pay at 60 cents per day, and one ration, commuted at 30 cents for each twenty miles of the distance from place of discharge to place of last enlistment, and in the settlement of accounts, they adopt 3,136 miles as the distance from Washington, D.C., to Mare Island, California.

Page 160 U. S. 656

According to this practice, the travel pay and commutation of subsistence on such a discharge would be for --

157 days' pay at 60 cents . . . . . $ 94.20

157 rations at 30 cents . . . . . . 47.10

-------

Total . . . . . . . . . . . . . $141.30

3, Under a longstanding construction, by the accounting officers of the Treasury Department, of the law embraced in section 1290 of the Revised Statutes, it has been the practice to refuse travel pay and commutation of subsistence to enlisted men from the place of their discharge to the place of enlistment when they have been discharged at their own request prior to the expiration of their term of enlistment.

The only exception made under this practice is when an enlisted man is discharged at his own request after twenty years of faithful service. (Army Regulations, 1863, par. 163.)

4. Before bringing suit here, the claimant presented the claim set forth in his petition to the proper accounting officers of the Treasury Department, and it was disallowed in accordance with the practice mentioned in finding 3.

The court also found as a conclusion of law that the claimant was entitled to recover of the defendant the sum of $141.30, for which amount judgment was entered, and the government appealed.

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