76 Ct. Cl. 753 | Ct. Cl. | 1933
delivered the opinion of the court:
Plaintiff seeks to recover the difference in pay between that of a retired warrant officer after twenty years’ service, amounting to $138.75 a month, and the pay of a retired quartermaster sergeant, amounting to $94.50 a month, from January 1, 1926, to date of judgment under the act of June 6, 1924, 43 Stat. 472.
Counsel for defendant resists allowance of the claim on the ground that plaintiff’s commissioned service was not honorable and that he was not honorably discharged. We think the facts in this case distinguish it from the case of Hubert P. Monahan v. United States, ante, p. 516, in which the officer was dishonorably discharged. In this case the plaintiff was
In view of the nature and purpose of the act of May 18, 1917, we do not think that a plain discharge given to an officer under section 9 of that act should be construed as a dishonorable discharge in the absence of a statement therein that it was an honorable discharge, and the fact that the President paid the plaintiff upon his discharge the bonus, which was payable only in cases where the officer had been discharged under honorable conditions, adds great weight to the conclusion that the plaintiff is entitled to the benefits of the act of June 6, 1924, supra, which provides that “ retired enlisted men of the Army heretofore or hereafter retired who served honorably as commissioned officers
The contention of the defendant is predicated entirely upon the fact that charges had been made against the plaintiff. We think that these unproven charges do not justify the conclusion that plaintiff’s discharge was dishonorable. These charges may have resulted from malice or some other similar cause and, at most, amounted to a mere accusation, raising no presumption of guilt. A person is presumed to be innocent until his guilt is established and no proper evidence of dishonorable conduct on the part of plaintiff has been offered in this case and the department, upon the accusation mentioned, did not decide in the manner provided by law that the plaintiff’s service had been other than honorable. The charges made were never pursued by the War Department, the plaintiff was never brought to trial, and was never afforded an opportunity to refute the charges. It would be an injustice to permit the making of a charge to be used to the prejudice of the person against whom the unproven charge is made. Glover v. United States, 147 Fed. 426, 430. Coyne v. United States, 246 Fed. 120, 121. White v. United States, 72 C.Cls. 459, 463.
Plaintiff is entitled to recover and entry of judgment will be suspended to await receipt from the General Accounting Office of a statement of the amount due plaintiff in accordance with this opinion. It is so ordered.
