the time of the accident a member of the United States Army so as to come within the purview of the Tort Claims Act. Smits was ordered to report to Fort McClellan on the 15th of May 1969. The Army could have begun to account for him as early as May 13, 1969, but before that time he could not be considered to have been on official United States business. Although the court fails to see how it would be significant, it cannot be said that Smits was "on his way" to Fort McClellan at the time of the accident. At the time of the accident Smits was returning to Lexington from Frankfort. His trip to Frankfort was for personal reasons that were in no way connected toany order by the United States Army. It may be that Smits was ready to prepare to leave for Fort McClellan, but it cannot be claimed that he was on his way. Simply put, the court does not believe that under any construction of these facts Smits could have been said to be in the employ of the United States Army prior to May 13, 1969. Smits states in his deposition that in regard to the United States Army he was on May 9, 1969, only a civilian.
"Q22 Would you consider yourself to be a civilian as far as the United States Army was concerned on May 9, 1969?
A. Yes, sir, as far as the Army was concerned."
The court must conclude that Peter Smits, Jr. was not an