these terms contemplates or is applicable to compulsory absence; that is, absence by the order of a superior officer which is not for the convenience or in the interest of the officer who is relieved from duty, and where there is no legal authority to direct such compulsory absence. In the case of Hunt v. United States (38 Ct. Cl., 709-710), the court said: "Neither the Secretary of War nor any officer of the Government can force a leave of absence upon an officer or soldier. A leave of absence is a favor extended."

*

I am therefore of opinion that during the period referred to Captain Willey was neither absent with leave nor without leave within the meaning of those terms as used in section 1265, and that he is entitled to his full pay, less the amount he has already received during the period he was placed on leave with half pay. In arriving at this conclusion I am not unmindful of the decision in 10 Comp. Dec., 795. The cases are clearly distinguishable. In that case the power of dismissal was in the Secretary of War. Officers of the Revenue Service are considered officers, and the power to dismiss them is not in the Secretary of the Treasury. Neither can he place them on leave of absence on half pay. They are entitled to their entire salaries because of the commission they hold, except in cases wherein the law or regulations having the force of law make other provisions.

ADDITIONAL PAY TO ENLISTED MEN OF THE NAVY WHO ARE DETAINED IN THE SERVICE BEYOND THE TERM OF THEIR ENLISTMENT. The one-fourth additional pay provided by section 1422, Revised Statutes, for enlisted men of the Navy detained in the service beyond the term of their enlistment, should be computed upon the basis of the total pay, extra as well as regular, which they would otherwise have received.

(Assistant Comptroller Mitchell to the Secretary of the Navy, March 30, 1905.)

I have received your request of the 22d instant for a decision of the question submitted to you by the commanding officer of the U. S. S. New York by letter dated February 15, 1905, as follows:

"I have the honor to request decision as to whether, in computing the one-fourth additional pay for detention in the

case of gun pointers, gun captains, steamer coxswains, signalmen, and messmen receiving extra pay, the total pay of the man or of the rating be used.

"2. By the total pay of the man' is meant his original pay, including extra pay as gun pointer, coxswain of steamer, or of continuous service, good-conduct medals, etc."

The one-fourth additional pay referred to is that authorized by section 1422, Revised Statutes. This statute provides, where in certain cases therein specified enlisted men are detained in the service beyond the terms of their enlistment,

that

"All persons who shall be so detained beyond the terms of their enlistment or voluntarily reenter to serve until the return to an Atlantic or Pacific port of the vessel to which they belong, and their regular discharge therefrom, shall receive for the time during which they are so detained, or shall so serve beyond the original terms of enlistment, an addition of one-fourth of their former pay."

I am of opinion that the pay of the enlisted man here referred to as that to which one-fourth shall be added is the pay the man would otherwise receive during the time of detention. In other words, the one-quarter increase follows the pay given for the duties he may be required to perform, whether they be regular duties covered by the regular pay or special duties for which extra pay is provided. If, then, an enlisted man, detained as specified in section 1422, performs under detail the duties of gun pointer, gun captain, signalman, messman, or other detail of similar character, the extra pay allowed in such cases should be included in making up the total pay upon which the one-fourth additional is to be computed, said extra pay having been authorized by the President.

PAY OF OFFICERS OF THE NAVY WHILE ON TEMPORARY LEAVE OF ABSENCE FROM SEA DUTY.

An acting assistant surgeon in the Navy who was on leave of absence from sea duty for two days was on "temporary leave" within the meaning of article 1177, Navy Regulations of 1900, and therefore he is entitled to sea pay during such absence.

An officer of the Medical Corps of the Navy whose pay is assimilated to army pay is entitled, while on leave of absence from sea duty, and not detached from that duty, to sea pay during the cumulative leave period provided for by section 1265, Revised Statutes, and the act of July 29, 1876.

(Decision by Assistant Comptroller Mitchell, March 30, 1905.) Passed Asst. Surg. Charles H. De Lancy, U. S. Navy, by his attorneys, appealed February 27, 1905, from the action of the Auditor for the Navy Department in charging him in settlement dated February 25, 1905, with the difference between shore-duty pay and in one case leave or waiting-orders pay, and sea pay which he had been formerly allowed while on leave of absence from sea duty during the following periods: April 10 to 11, 1900; May 4 to 5, 1900; June 25 to 30, 1900; August 25 to 27, 1900; April 29 to May 5, 1901; April 25 to May 1, 1902; September 26 to October 1, 1903.

The appellant mentions two other periods, namely, June 13 to 15, 1900, and July 11 to 19, 1903. The records show, however, that the officer was not attached to a vessel of the Navy during these periods, but was actually on shore duty, so that he was properly given shore-duty pay.

Doctor De Lancy was an acting assistant surgeon in the Navy from July 11, 1898, until June 23, 1900, when he accepted an appointment as assistant surgeon in the Navy with the rank of lieutenant (junior grade).

He was commissioned a passed assistant surgeon in the Navy with the rank of lieutenant from June 7, 1903, to fill a vacancy existing at that date.

The appellant in this case contends that during the periods he was on leave he was only temporarily absent, and that under the provisions of article 1177, Navy Regulations, 1900, he should be allowed sea-duty pay, and cites the case of United States v. Engard, Supreme Court, No. 136, October term, 1904, decided February 20, 1905, to sustain his contention. Article 1177, Navy Regulations, 1900, is as follows:

"A temporary leave of absence does not detach an officer from duty nor affect his rate of pay.

During the first two leave periods mentioned, April 10 to 11, and May 4 to 5, 1900, the claimant was an acting assistant surgeon. The pay of acting assistant surgeons in the Navy was not affected by the navy personnel act, which assimilated the pay of certain regular officers of the Navy to that of officers of the Army, but the pay of acting assistant surgeons of the Navy continued, so long as they remained in the temporary service, fixed by section 1556, Revised Statutes. (See 10 Comp. Dec., 219.) Their leaves of absence are therefore gov

28007-Vol. 11-05-37

erned by the same laws and regulations that apply to officers of the Navy other than those who receive army pay.

The pay to which claimant was entitled at the time was: When at sea, $1,700 per annum; when on shore duty, $1,400, and when on leave or waiting orders, $1,000.

The Auditor allowed him leave or waiting-orders pay at the rate of $1,000 per annum during the two leaves referred to of two days each. These two leaves were of so short duration that it is assumed that the officer could be spared from his duties on the ship without interfering with the routine work. These seem to have been leaves of the character contemplated by article 1177, Navy Regulations, which should not affect his rate of pay.

I am therefore of opinion that the appellant should be allowed pay at the rate of $1,700, the sea pay he was entitled to when the leaves were granted.

The remaining leaves were from two to seven days each, and were granted after June 23, 1900, on which date the appellant became a permanent or regular officer of the Navy by accepting an appointment as assistant surgeon. From that date he became entitled to the pay that is given to officers of the Medical Corps of the Navy by section 13 of the navy personnel act (31 Stat., 1007), which is as follows:

"That after June thirtieth, eighteen hundred and ninetynine, commissioned officers of the line of the Navy and of the Medical and Pay Corps shall receive the same pay and allowances, except forage, as are or may be provided by or in pursuance of law for the officers of corresponding rank in the Army."

The Court of Claims in Thomas v. United States (38 Ct. Cl., 129) said of this word "same" used above in connection with pay:

"The word 'same' means identical, not different or other, and to put a different construction on the language used would be a violation of the well-known rule that where the language is free from ambiguity it is not allowable to interpret it.'

This office has held that the army leave laws, so far as they affect pay, apply to the navy officers whose pay is assimilated to army pay. It was said in a decision of November 29, 1899 (MS. Dec., vol. 11, p. 617)—

*

*

"the laws relating to leaves of absence to army officers, so far as they affect their pay, now apply to all offi

cers of the Navy who are placed on army pay and allowances by the navy personnel act of March 3, 1899 (31 Stat., 1004). This follows the rule adopted in applying statutes similar to the navy personnel act in this respect to the officers of the Marine Corps. (Digest Second Comp. Dec., vol. 1, § 1383.)”

The laws relating to leaves for army officers.which thus apply to officers of the line and of the Medical and Pay Corps of the Navy are the following:

Section 1265 of the Revised Statutes, which provides—

"Officers when absent on account of sickness or wounds, or lawfully absent from duty and waiting orders, shall receive full pay; when absent with leave, for other causes, full pay during such absence, not exceeding in the aggregate thirty days in one year, and half pay during such absence exceeding thirty days in one year. When absent without leave, they shall forfeit all pay during such absence, unless the absence is excused or unavoidable."

and the act of July 29, 1876 (19 Stat., 102), which provides

"That an act approved May 8, 1874, in regard to leave of absence of army officers, be and the same is hereby so amended that all officers on duty shall be allowed, in the discretion of the Secretary of War, sixty days' leave of absence without deduction of pay and allowance: Provided, That the same be taken once in two years; and provided further, that the leave of absence may be extended to three months, if taken once only in three years, or four months if taken once only in four years.

Thus section 1265 authorizes full pay during leave for thirty days in one year, and the act of July 29, 1876, allows the cumulative leave, provided for, without deduction of pay or

allowances.

The Second Comptroller held, March 6, 1882 (2d Comp. Letter Book, vol. 45, p. 299), that by reason of the provision in the act last quoted against deduction of allowances, an officer of the Army on leave was entitled during the leave to the allowance of commutation for quarters which he received prior and up to the time his leave began. This accorded with the opinion of the Attorney-General (16 Op. Att. Gen., 577), in which he said of the act of July 29, 1876, supra

"This act declares that all officers on duty shall be allowed, in the discretion of the Secretary of War, sixty days' leave of