Casper H. EICKS v. UNITED STATES.
No. 457-55.
United States Court of Claims.
April 8, 1959.
“Eligible line officers include those lieutenants and lieutenants, junior grade, of the Navy and Naval Reserve who have reported prior to 1 July 1951 for active military service in excess of 30 days whose dates of rank in grade are prior to 2 January 1946 for lieutenants and prior to 1 July 1949 for lieutenants, junior grade; * * *”
In this case the selection board considered for promotion to lieutenant only those lieutenants (junior grade) who had held that rank at least for a period of over two years.
The Government‘s position is that because of the requirement of meeting the needs of the service, the promotions effected under the 1941 act might not always be based upon length of service, since the statute itself does not prescribe certain years of service for promotion. Promotions under the 1941 act may not always be based upon length оf service, but the eligibility for promotion here was required by the Navy directive to be based on length of service. Section 402(d) does not say that the eligibility for promotion must be required by statute to have been based on years of service or years of service in rank, and we hold that plaintiff‘s eligibility for temporary promotion was required to have been based on years of service in rank within the meaning of that section.
The Government‘s motion for summary judgment will be denied, and plaintiff‘s similar motion will be granted. Judgment will be entered to that effect with the amount of recovery to be determined pursuant to Rule 38(c), 28 U.S.C.A.
It is so ordered.
MARIS, Circuit Judge (Retired), sitting by designation, and LARAMORE, MADDEN and WHITAKER, Judges, concur.
John R. Franklin, Washington, D. C., with whom was Asst. Atty. Gen. Gеorge Cochran Doub for defendant.
REED, Justice (Retired), sitting by designation.
Plaintiff, a commissioned officer of the Navy, was retired for disability as of May 1, 1944, after service from August 20, 1917. The retirement order was approved by the President April 28, 1944. Plaintiff received notice of the President‘s action May 14, 1944, and that he had been placed on the retired list as of May 1, 1944.
Prior to his retirement as оf May 1, he had been hospitalized by Navy orders, detaching him from duty and ordering him after medical treatment to proceed to his home pending final retirement. The orders referred to were first delivered to plaintiff on May 1, 1944, at the hospital. He was thereupon discharged from treatment and directed to comply with these orders.
On May 12, 1944, plaintiff applied for his accrued leave of three months and twenty-five days. The reason for the request was that then the use of the accrued leave would have postponed plaintiff‘s retirement date with service pay higher than retirement pay and would have given plaintiff the advantage of longer service and consequеntly an increased base upon which to apply his retirement percentage of service pay. This request was denied by letter of May 18, 1944, on the ground that his retirement had become effective May 1, 1944.
On July 12, 1954, the plaintiff filed an application with the Navy Board for Correction of Navy Records for a correction so as to show that he continued on active duty through August 30, 1944. This would result from the allowance of his unused leave during active service. Such a Board for correction of military records was set up under the Legislative Reorganization Act of 1946, § 207, 60 Stat. 837.1
Plaintiff avers the action of the Secretary in disapproving the Board decision, thus refusing correction of plaintiff‘s record as requested, was arbitrary, capricious and contrary to law. He seeks active duty pay and allowances from May 1 through August 30, 1944, less his retired pay for that period and also differencеs in retirement pay for subsequent periods through September 30, 1949, because of length of service, all amounting to about $3300, subject to computation by the General Accounting Office.4 He asserts his right to recover was established by the said findings of the Board. As the Secretary, under the statute, has authority to correct a record acting through thе civilian board, we cannot conclude that the finding of the Board compels the correction. We do think, as to record correction, that the controlling issue is whether the Secretary‘s action in disapproving was arbitrary and capricious. If it was, the record should have been corrected.
The Government pleads this court‘s six-year statute of limitation as a bar to any recovery for the period between plaintiff‘s retirement and September 30, 1949.5 It has not briefed its position. This suit was filed December 2, 1955. The notice of the Board that it had been determined that no change, correction or modification would be made
It is within the jurisdiction of this court to correct the action of the Board if it results from the Secretary‘s arbitrary disapproval of the Board‘s decision and recommendation. If the contentions of plaintiff аre correct, he is entitled to back pay from the United States of over $3,000. This action seeks the recovery of that amount and the right to recover depends on whether the refusal to correct the record was arbitrary. Friedman v. United States, note 7, supra, 158 F.Supp. at page 375, and cases cited, particularly Furlong v. United States, 146 F.Supp. 823, 152 F.Supp. 238, 138 Ct.Cl. 843. In the Friedman case this court pointed out the legislative histоry that governed our interpretation of the congressional purpose to allow this court to enter judgment for pay withheld by an arbitrary failure to correct a military record, but not to compel “alteration or correction of an official military record.” 158 F.Supp. at page 376. When Congress said that rulings of Correction Boards should “be final and conclusive on all officers of the Government except when procured by means of fraud” (65 Stat. 655), it would overturn much of our thinking on justice to say that those words were intended to bar courts from awarding pay to military personnel when they had been deprived of their compensation by failure to correct their service record through arbitrary and capricious action. The correction boards were created to remedy wrongs, not to confound them.
Plaintiff‘s disabilities led on April 16, 1943, to an order detaching him from duty and ordering him to the Naval Hospital, Brooklyn, for observation, treatment, and a report by a board of medical survey. On April 26, 1943, Brooklyn ordered him to the Naval Hospital, St. Albans, Long Island, New York. He reported there that day. On January 27, 1944, the Chief of Naval Personnel signed an order for plaintiff to be relieved of all duty and upon discharge by St. Albans Hospital to proceed to his home and “await orders pending action on the proceedings of the Naval Retiring Board in your case.” This order was sent “viа Medical Officer in Command of Naval Hospital.” The record does not show the reason for the delay but it does show that the order of the Chief of Personnel was delivered to plaintiff May 1, 1944. Up until that date plaintiff had not received notice of his retirement. The notice that he had been retired as of May
“Subj: Leave of Absence, Accumulated — Request for — Prior to effective date of retirement.
“Ref: (a) Your letter of 12 May 1944.
(b) BuPers orders of 27 January 1944.
(c) SecNav letter of 10 May 1944.
“1. By reference (b) you were ordered upon discharge from treatment at the Nаval Hospital, St. Albans, N. Y., to proceed home to await action of the Retiring Board. By reference (c) your retirement was effected on 1 May 1944. Your orders to proceed home and await action of Retiring Board were issued in January 1944 to enable you to have accumulated leave prior to 1 May 1944.
“2. As your retirement wаs effective on 1 May 1944, it is not now possible to grant you accumulated leave. By direction.
“C. L. Hansen,
“Commander, USN, Retired,
“Officer Performance Division.”
The delay in discharge for the purpose of allowing time for the use of the accumulated leave is not questioned. The difficulty is that the order of January 27, 1944, was not delivered to plaintiff until May 1, too late for him to use leave after his discharge оn the same day, May 1, 1944. It is just such errors or injustices that Congress intended to rectify by action of the Board of Corrections.
The Government urges that use of accumulated leave is a matter of departmental grace, not a right. Therefore, it is argued, refusal of accumulated leave is discretionary with the commanding officers. On Novembеr 6, 1957, this court in Pollard v. United States, 155 F.Supp. 954, examined this contention with care. We decided that the use of accumulated leave was a matter of right. We are asked to overrule that decision. It is now suggested that the 1874 (
Even though the Navy Regulations in effect at the time of plaintiff‘s retirement asserted that leave was “a privilege and not a right,”9 its policy was to grant the accumulated leave in advance of re-
It follows from our conclusion that the use of accumulated leave by Navy officers was a matter of right that officers about to be retired are entitled to such leave before retirement. The officer should have the opportunity to decide where and how he should use his leave. Plaintiff here was deprived of that right. The action of the Secretary of the Navy in refusing the correction of the record was unjustified. The correction should have been made. Plaintiff‘s motion for summary judgment is granted and defendant‘s like motion is denied. The plaintiff is entitled to recover on his claim and judgment is entered to that effect with the amount of recovery to be determined pursuant to Rule 38(c), 28 U.S.C.A.
It is so ordered.
JONES, Chief Judge, and MADDEN and WHITAKER, Judges, concur.
LARAMORE, Judge (dissenting).
I am unable to agree with the majority for this reason: Prior to the enactment of the
Robert H. BETTS v. UNITED STATES.
No. 140-55.
United States Court of Claims.
April 8, 1959.