141 Ct. Cl. 709 | Ct. Cl. | 1958
delivered the opinion of the court:
Plaintiff sues to recover Army longevity retirement pay as a colonel under Title III
Commencing in 1905 and from time to time thereafter, the plaintiff served in various commissioned capacities in the Army of the United States, the Officers Reserve Corps, and in the National Guard of the United States. From April 14, 1934, plaintiff held commissioned rank in the National Guard of the United States and also held commissioned rank as a Federally recognized officer in the National Guard of North Dakota. On June 29, 1948, Congress enacted the legislation which provided that all commissioned officers and former commissioned officers of the Army of the United States, the Air Force of the United States, including the respective Reserve components thereof, and also of the Federally recognized National Guard, who had reached the age of 60 years and had performed satisfactory Federal service as defined in that Act, aggregating 20 or more years,
On January 1, 1949, plaintiff was transferred from the active National Guard of North Dakota to the inactive Guard. On August 12, 1950, plaintiff’s appointment as a colonel in the inactive National Guard of North Dakota was terminated. On July 27,1951, plaintiff, then nearly 65 years of age, was honorably discharged from his commission as colonel in the National Guard of the United States. In 1955 plaintiff filed application for retirement pay under the 1948 Act, supra, and on December 81, 1955, he was placed on the retired list of the Army of the United States in the grade of colonel with entitlement to retirement pay from January 1, 1956, under the provisions of the Act of June 29,1948. The Department of the Army has certified that plaintiff is now a “Colonel, Army of the United States, Eetired.”
Defendant has conceded in its briefs that plaintiff is entitled to recover the retired pay withheld for the period from June 29, 1948, to July 27, 1951, by virtue of the exemption from the dual compensation prohibition provisions of the 1932 Act contained in section 2 of the Act of July 1,1947, 61 Stat. 238, 239, on the authority of the decisions in Tanner v. United States, 129 C. Cls. 792, cert. den. 350 U. S. 842, Seagrave v. United States, 131 C. Cls. 790, and Stevanus v. United States, 138 C. Cls. 149.
Defendant contends, however, that plaintiff is not entitled to recover retired pay for the period commencing July 27, 1951, and continuing during plaintiff’s employment by the
Sec. 2. * * * That no existing law shall be construed to prevent any member of the National Guard from accepting employment in any civil branch of the public service nor from receiving the pay incident to such employment in addition to any pay and allowances to which he may be entitled under the provisions of law relating to the National Guard, * * *.
The defendant now takes the position that, under the above-quoted language, a person entitled to the retired pay provided for in the 1948 Act because of age and length of service as a commissioned officer in the National Guard of the United States, may have the benefit of the 1947 Act exemption from the dual compensation prohibition of the 1932 Act only so long as that person continues to hold a commission in the National Guard of the United States.
We cannot agree with this contention and are of the opinion that Congress did not intend the dual compensation exemption provided for in the 1947 Act to be denied to those former commissioned officers of the National Guard, or other Reserve components of the Armed Forces, who, because of age, were honorably discharged from their commissions either prior to or after their retirement under the 1948 Reserve Officers Retirement Act. As we pointed out in our decision in the Tanner case, supra, the 1947 Act and the 1948 Act must be read together. One of the primary purposes common to both acts was to reward reservists and members of the National Guard who had given long and faithful service, largely without remuneration, to the Armed Forces of the United States, and to encourage civilians to devote larger amounts of their time to service in the Reserve components and in the National Guard of the United States. We are of
It is so ordered.
In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due thereunder, it was ordered June 18, 1958, that judgment for the plaintiff be entered for $23,370.14.
Section 301 (a) oí the Act of June 29, 1948, supra, provides in part as-follows:
“The Secretary of the Army is authorized to establish the Army of the-united States Retired List * * * to be published annually in the official Register * * * upon which * * * shall be placed the names of all commissioned and former commissioned officers of the Army of the united States * * * heretofore or hereafter granted retirement pay under section 5 of the-
“Any person who, upon attaining or having attained the age of sixty years,, has performed satisfactory Federal service as defined in this section in the status of a commissioned officer * * * in the Army of the united States or the Air Force of the united States, including the respective reserve components thereof, and also including the federally recognized National Guard prior to 1933j * * * and has completed an aggregate of twenty or more years of such satisfactory service in any or all of the aforesaid services, shall upon application therefor, be granted retired pay: * * [Italics ours.J