93 Ct. Cl. 148 | Ct. Cl. | 1941
delivered the opinion of the court:
The facts in this case show that prior to the filing by the plaintiff of an application for retirement as a first sergeant on September 17,1926, he had to his credit over thirty years of active military service, which term of service entitled him under the existing applicable statute to retirement with 75 percentum of the pay and allowances he was then receiving. Plaintiff served as private and in various other capacities to which he was duly and regularly promoted until he reached and was duly promoted to the rank of first sergeant on September 17, 1926, and he served in that capacity until he had duly and regularly acquired credit for thirty years of active military service, and subsequently. No charges of any kind were ever preferred against plaintiff and he was-not demoted in grade for any reason specifically authorized by law or by Army Regulations.
The uncontroverted facts show that on November 20, 1926, while plaintiff was regularly serving in the grade of first sergeant and had to his credit more than thirty years of active military service, he duly and regularly made application pursuant to the act of March 2, 1907, 34 Stat.. 1217, for retirement in the rank of first sergeant to which he had theretofore been duly promoted on September 17, 1926. After plaintiff had made proper application for retirement to the appropriate authority some officer of the War Department altered the application as set forth in finding 2, without plaintiff’s knowledge or consent, to conform to an action taken in the War Department on December 1, 1926, of arbitrarily reducing, plaintiff to the rank of private and promoting him to the grade of sergeant oh the same day. This action of demoting plaintiff from first sergeant to sergeant was taken by the War Department
The plaintiff in the Blackett case made application for retirement in the grade of master sergeant after having completed thirty years of service and the War Department thereafter reduced him to a lower grade and retired him as a private. In holding that Blackett was entitled to three-fourths of the pay and allowances of a master sergeant and that he was entitled to recover the difference between the retired pay and allowances of such grade and the retired pay and allowances of a private which had been paid to him, this court said at page 891:
* * * The enlisted man applied to be retired when he was a master sergeant and the Department gave consent for the retirement as a private. The law fixed the grade upon which he should retire. It gave no authority to anyone for any cause whatsoever to designate the grade after application had been made to the President. Compensation during retirement followed the grade. No official approval was necessary.
The words of the act are plain, and their meaning simple. The act imposed an imperative duty and not a discretionary power. The Department has read into the act discretionary powers and has assumed the right to permit retirement and to select the grade in which retirement is permitted. The act confers no such powers on the President. * * * the grade in which he was entitled to be retired was that in which he was serving when the application was made. Cloud v. United States, 43 C. Cls. 69; Medbury v. United States, 173 U. S. 497. The facts show a capricious and arbitrary*153 assumption of powers by officers of tbe War Department over an enlisted man which has no basis in law.
In the case at bar, the attorney for the defendant argues that the decisions of this court in Blackett v. United States, and the other cases cited, supra, were erroneous and should be reversed. This contention is based on the claim that the act of March 2, 1901, supra, which provides “when an enlisted man shall have served thirty years either in the Army, Navy, Marine Corps, or in all, he shall, upon making application to the President, be placed on the retired list, with seventy-five per centum of the pay and allowances he may then be in receipt of, * * *” entitled plaintiff only to the retired pay and allowances of a sergeant, to which grade he had been demoted by some officer in the War Department after he had made his application for retirement, but before such application was approved by the President, for the reason that the grade in which he was placed on the retired list is controlling. In other words, counsel for defendant contends that after an enlisted man has served thirty years and has made application to the President to be placed on the retired list in the grade in which he is then serving the words of the statute, that such enlisted man “shall be placed on the retired list, with seventy-five per centum of the pay and allowances he may then be in receipt of,” mean such retired pay and allowances as may be provided by law for a grade in which such enlisted man is placed on the retired list, even though that grade and the retired pay and allowances thereof may be below the grade in which he was serving and the pay he was receiving at and prior to the time he completed the necessary thirty years’ service and made his application to be placed on the retired list. We are of opinion that this contention is without rherit. In so contending defendant’s counsel relies entirely upon the language found in an act of February 14, 1885, 23 Stat. 305, as amended by an act of February 1, 1890, 26 Stat. 504, which provided that “when an enlisted man has served as such thirty years in the United States Army or Marine Corps, either as private or noncommissioned officer,, or both, he shall by application to the President be placed on the retired list hereby created, with the rank held by
Plaintiff is entitled to recover the difference between the retired pay of a first sergeant and that of a sergeant, and judgment therefor will be entered in his favor upon' the filing of a report from the General Accounting Office showing the amount due for the period August 1932 to date of judgment. It is so ordered.