dissenting:
I agree that since plaintiff had sufficient military service he is entitled to retirement on the basis of such service.
I also agree that if in addition he had sufficient civilian service to entitle him to an annuity under the Civil Service Retirement Act he might also draw that benefit.
But I do not agree that he may draw military retirement on just enough military service to get his highest retirement, apply the excess military service to splice out and afford civilian retirement for which he could not otherwise qualify, and draw both on that basis.
Undoubtedly if he lacked sufficient civilian service to qualify for an annuity he might add any military service in order to make up his qualification for such annuity, provided he had not already had military retirement. I think the permission to use military service to supplement civilian service as set out in section 5 of the Civil Service Retirement Act, 5 U. S. C. 707, was intended primarily to take care of civilian employees who might be temporarily called into military service during wartime, or who might have a term of military service which could be used to finish out the requirement for eligibility. But I do not' believe it was the intention of the Congress that he might split up the term of his military service in order to qualify for both systems of retirement.
This conclusion is strengthened by the provisions of section 3 of the act, 5 U. S. C. 693a, which reads as follows:
* * * this act shall not apply to any such officer or employee of the United States * * * subject to another retirement system for such officers and employees * * *.
I would grant defendant’s motion to dismiss.