dissenting:
I am unable to agree with the opinion of the majority. Under section 521 (b) of the Officer Personnel Act of 1947, 51 Stat. 913, a lieutenant colonel having served 28 years or more was entitled to be retired in the grade of colonel if he “has served in any capacity as a member of the military or naval forces of the United States prior to November 12, 1918.” Prior to November 12, 1918, plaintiff was a cadet at the Military Academy. The majority of the court say that as such he was not “a member of the military or naval forces of the United States.” I think he was.
The Supreme Court, in United States v. Morton, 112 U. S. 1, 4, said:
But an examination of the legislation of Congress shows that the cadets at West Point were always a part of the army, and that service as a cadet was always actual service in the army. * * *
*440A number of Acts of Congress were quoted in support of the statement, and also the decision of the Court in United States v. Tyler, 105 U. S. 244, holding that a retired officer “was in the military service.”
This case was followed by the Supreme Court in United States v. Watson, 130 U. S. 80. On page 81 the Court said:
That cadets at West Point were always a part of the army, and that service as a cadet was always actual service in the army, has been settled by the decision of this court in the case of United States v. Morton, 112 U. S. 1. * * *
In view of these decisions of the Supreme Court it is unnecessary to undertake to demonstrate that service at West Point is service in the Army, but we cannot imagine that any one at all familiar with the military discipline and training to which such cadets are subject would doubt for a minute that they were serving in the Army.
But the majority say that the Act of August 24,1912, 37 Stat. 569, 594, changed this. I do not think it did.
As was stated in United States v. Noce, 268 U. S. 613, 617, there had been a long standing controversy between officers of the Army and Navy who were graduates of the two academies and those who were not, as to whether or not service as a graduate should be counted for pay purposes. This controversy was settled by the passage of the Act of 1912, supra. But it will be observed that this Act did no more than to say that service as a graduate “shall not be counted in computing for any purpose the length of service of any officer of the Army.” This was a pay statute. The pay of officers of the Army depended upon their length of service, and the Act of 1912 merely said that for the purpose of arriving at the pay to which they were entitled, the length of their service should not include their service as a cadet. The Act does not say that service as a cadet was not service “as a member of the military or naval forces of the United States.” In the cases cited above, Morton and Watson, the Supreme Court said that it was service in the Army or Navy, and Congress has not changed this.
So, when the Act says that a lieutenant colonel is entitled to the retired pay of a colonel if he “has served in any ca*441pacity as a member of the military or naval forces of the United States prior to November 12, 1918,” this must of necessity, it seems to me, include his service as a cadet in the Military Academy.