64 Ct. Cl. 384 | Ct. Cl. | 1928
delivered the opinion of the court:
This case grows out of the claim of a major in the Marine Corps, retired from active service on account of physical disability, consisting of the loss of his arm as a result of wounds received in battle on July 13, 1900, in China. He was retired on September 30, 1911, and at that time had had 13 years, 1 month, and 26 days of active service. Since, that time he has had active service, amounting to 4 years, 9 months, and 29 days, making the total of his -active service, before and since his retirement, 17 years, 11 months, and 25 days. The plaintiff’s brief states the question as follows: “ The principal question in this case is as to the right of an officer of the Marine Corps, retired for wounds received in battle, to be paid, as in the period established by the act of June 10, 1922, to which he would be entitled if his services were counted continuously through the active and retired lists.” In other words, in order to ascertain the base pay of a major in the Marine Corps, retired for disability as stated,
The right of a retired officer to longevity pay was recognized in the Tyler case, 16 C. Cls. 223, the decision being affirmed by the Supreme Court, 105 U. S. 244. Following these decisions the act of March 2, 1903, 32 Stat. 932, was passed which provided “ That hereafter, except in cases of officers retired on account of wounds, received in battle, no officer now on the retired list shall be allowed or paid any further increase of- longevity pay, and officers hereafter retired, except as herein provided, shall not be allowed or paid any further increase of longevity pay above that which had accrued at date of their retirement.” It is conceded that, this provision cut off longevity increases accruing after retirement except in the single case of “ officers retired on account of wounds received in battle,” and it is claimed that the plaintiff belongs to this latter class. This condition of the law continued until the act of June 10, 1922, but a provision in that act expressly excluded plaintiff and other retired officers from its benefits, as follows: “ Nothing contained in the first sentence of section 17 or in any other section of this act shall authorize an increase in the pay of officers or warrant officers on the retired list on June 30, 1922,” or, as stated by his brief, “ Thus the new act made no change in the pay of officers already retired.” It is therefore to the later act of May 8, 1926, 44 Stat. 417, that we must look. It provides “ that hereafter the retired pay of the officers and warrant officers of the Army, Navy, Marine Corps, Coast Guard, Coast and Geodetic Survey, and Public Health
“Seo. 17. That on and after July 1, 1922, retired officers and warrant officers shall have their retired pay, or equivalent pay, computed as now authorized by law on the basis of pay provided in this act: Provided, That nothing contained in this act shall operate to reduce the present pay of officers, warrant officers, and enlisted men now on the retired list or officers or warrant officers in an equivalent status of any of the services mentioned in the title of .this act. Active duty performed after June 30, 1922, by an officer on the retired list or its equivalent shall not entitle such officer to promotion: * * * Retired officers of the Army, Navy, Marine Corps, Coast Guard, and Coast and Geodetic Survey below the grade of brigadier general or commodore and retired warrant officers and enlisted men of those services shall, when on active duty, receive full pay and allowances.”
The retired pay is therefore “ to be computed as now authorized by law,” but on the basis of pay provided by the act. The law had long provided, by section 1274, Revised Statutes, that “ officers retired from active service shall receive 75 per centum of the pay of the rank upon which they were retired.” The pay of the rank of major upon which this officer was retired was fixed by the act of May 11, 1908, 35 Stat. 106, 108, at $3,000.00 per annum. In addition he was entitled to longevity pay because of being within the exception already stated in the act of March 2, 1903. The officer was retired with less than 14 years of active service to his credit and would not come within the fourth pay