dissenting:
I respectfully dissent for the following reasons:
Plaintiff’s claim for retired pay as a brigadier general is based on the Act of June 29, 1948. Said act applies by its very terms to regulars and reservists. Plaintiff was neither. *784In World War I be was an emergency officer. His later service was in the National Guard and in the Army of the United States, pursuant to Joint Resolution, September 22, 1941, 55 Stat. 728. Therefore, he could not qualify as either a regular or a reservist under the Act of June 29, 1948.
Furthermore, plaintiff’s entitlement to retired pay, if any stems from the Act of May 24,1928, as amended (38 U. S. C. §581), which act provides for payment by the Veterans’ Administration of retired pay, based on the pay to which they were entitled on the date of their discharge.
Section 11a-2 of title 38 U. S. C. provides that the decisions of the Veterans’ Administration on any question of law of fact concerning payments under any act administered by the Veterans’ Administration shall be final and conclusive and not reviewable by the courts. Therefore, this court does not have jurisdiction to pass on the question in issue. See Peyton v. United States, 120 C. Cls. 722.
I would agree that plaintiff’s right to the retired pay of a brigadier general is equal to his right to the retired pay of a colonel. However, I do not believe he is even entitled to the retired pay of a colonel. See Perkins v. United States, 116 C. Cls. 778.
I would dismiss the petition.
FINDINGS OF FACT
The court, having considered the evidence, the briefs and argument of counsel, and the stipulation of facts entered into between the parties, makes findings of fact as follows:
1. Plaintiff is a citizen of the United States and a resident of the State of Mississippi.
2. Plaintiff’s serial number is 0-326252. He served overseas as an Infantry Officer in the military forces of the United States in World War I. He accepted an appointment as a first lieutenant in the National Army on January 3, 1919, and was honorably discharged October 14, 1919, for the convenience of the Government. First Lieutenant Grayson was placed on the Emergency Officers’ Retire List on December 13, 1928, with a rating of not less than 30% permanent disability, under the provisions of the Emer*785gency Officers’ Retirement Act (Public Law 506, 70tli Congress, approved May 24,1928,45 Stat. 735).
3. On July 31, 1932, plaintiff was federally recognized as Colonel, Adjutant General Department, Mississippi National Guard. On July 1,1933, be received Federal recognition as Brigadier General, Adjutant General Department, Mississippi National Guard. On February 15, 1935, plaintiff, as Adjutant General of tbe State of Mississippi, was appointed Brigadier General, Adjutant General Department, National Guard of the United States; accepted March 14, 1935. On January 20, 1936, plaintiff’s appointment as Brigadier General, Adjutant General Department, Mississippi National Guard, and his appointment as Brigadier General, Adjutant General Department, National Guard of the United States, and his federal recognition as Brigadier General, Adjutant General Department, Mississippi National Guard, terminated. When plaintiff’s federal recognition terminated as of January 20, 1936, the stated reason therefor was: “on a/c being relieved as The Adjutant General.”
4. As of September 26, 1940, by order dated October 7, 1940, plaintiff was by the War Department of the United States “Federally recognized as Brigadier General, Adjutant General’s Department, Mississippi National Guard.”
5. On October 15, 1940, Special Order # 226 from Headquarters of the Fourth Corps Area, ordered plaintiff to “active duty for a period of 12 months, unless sooner relieved, effective October 15, 1940” as Brigadier General; and he was directed to proceed to Barksdale Field, Louisiana, pursuant to said order, for physical examination and indoctrination, and thereafter to Jackson, Mississippi, as State Selective Service Executive.
6. On November 4,1940, plaintiff was again given federal recognition as Brigadier General, Adjutant General Department, Mississippi National Guard, as Adjutant General of the State of Mississippi, pursuant to Sections 74 and 75, National Defense Act.
7. On February 21, 1941, the Adjutant General of the Army of the United States officially notified plaintiff that *786“By direction of the President, by and with the advice and consent of the Senate, you have been appointed Brigadier General, Adjutant General’s Department, National Guard of the United States, Army of the United States, to date from October 9, 1940, under the provisions of Section 381 of the National Defense Act. * '* *. If you accept, this appointment will continue in force at the pleasure of the President for the time being, for the period during which your present federal recognition as a National Guard Officer shall continue in effect, and will terminate upon the expiration thereof,” and thereby plaintiff was appointed Brigadier General, in the National Guard of the United States, Adjutant General’s Department, as of October 9,1940.
8. After plaintiff’s examination referred to in paragraph 5 above, he returned to Jackson, Miss, and continued on active duty as Adjutant General of the State of Mississippi and Director of Selective Service until May 6, 1942, said duty being performed after February 21, 1941, as Brigadier General, Adjutant General’s Department, National Guard of the United States, Ax-my of the United States, pursuant to the appointment referred to in paragraph 7 above and pursuant to pertinent acts of Congress. Plaintiff “satisfactorily” served as Brigadier General on active duty, as such commissioned officer, from February 21, 1941 to July 25,1942.
9. Plaintiff’s resignation as Director of Selective Service was tendered to the President on May 25, 1942, and was accepted effective May 31,1942. Plaintiff was relieved from active duty as Brigadier General, Army of the United States (the appointment mentioned in paragraph 7 hereof) by Fourth Corps Area Orders dated June 15, 1942, pursuant to War Department radiogram dated June 12, 1942, such relief becoming effective at the expiration of some accrued leave on July 25, 1942, “on which date he will revert to inactive status.” His federal recognition as a National Guard Officer expired on said date. The reason for plaintiff’s being relieved and reverting to an inactive status was, as determined by the War Department, that he had resigned *787as Adjutant General of Mississippi and this necessitated termination of plaintiff’s active duty as Brigadier General, Mississippi National Guard, and the expiration of his federal recognition and termination of his active duty as Brigadier General, Army of the United States, inasmuch as his federal recognition and his being placed on active duty in grade of Brigadier General in the Army of the United States resulted from the fact that he did hold the office of Adjutant General of Mississippi.
10. National Guard Regulations No. 15, section I, paragraph 3-c, provides:
Strength. — A State Staff and State Detachment shall not exceed the strength and ranks, grades, and ratings indicated in the following table:
11. Effective October 26,1942, plaintiff was commissioned as a Colonel, Army of the United States (“A.U.S.-A.C.”) and ordered to active duty as such in the Air Corps, being first assigned to Jefferson Barracks, St. Louis, Missouri. Although plaintiff was on the Emergency Officers’ retired list *788continuously from December 13, 1928, the pay otherwise due him because of his being on said retired list as a lieutenant was suspended during periods of his active service, but such retired pay as a lieutenant was resumed from time to time when he was not on active duty until June 29, 1948 (effective date of Pub. Law 810), when it was increased because of his advancement on said list to the rank of Colonel.
12. Plaintiff was continuously on active duty as Colonel “A.U.S.-A.C.,” and during World War II served in the Pacific Theater of Operations from August 7, 1944 to June 23, 1945. On March 29, 1946 he was admitted to Borden General Hospital, Chickasha, Oklahoma, for observation, treatment and further disposition. On May 16, 1946 he appeared before an Army Retiring Board, and thereafter on August 2, 1946, he was relieved from active duty as such Colonel, at Borden General Hospital, by reason of physical disability. His services were satisfactory and were “honorably” terminated.
13. On December 30, 1949 plaintiff was notified by the Secretary of the Army that the Comptroller General would be informed that plaintiff had served satisfactorily in the Army of the United States for a period of not less than six months in the grade of Brigadier General.
14. On September 20, 1950 the Comptroller General decided that plaintiff was not entitled to advancement to the grade of Brigadier General on the Emergency Officers’ Retired List. On February 20, 1951 the Secretary of the Army informed the Comptroller General that the Department of the Army was of the opinion that plaintiff was entitled to advancement to the grade of Brigadier General and requested the Comptroller General to render an authoritative opinion with respect to the question of advancement.
15. On April 30, 1951 the Comptroller General by written decision No. B-90724 (30 Comp. Gen. 424), ruled that plaintiff was not entitled to advancement to Brigadier General under Section 203 (a) of the Act of June 29,1948. The basis for this decision was the fact that this section refers to the highest “temporary” grade in which an officer served, and *789in the opinion of the Comptroller General the plaintiff’s appointment as a Brigadier General in the National Guard of the United States, Army of the United States, was a permanent appointment.
16. Thereafter, at the suggestion of plaintiff, with the understanding that the request was without prejudice to his rights to seek or obtain advancement on said list to the grade of Brigadier General, the Secretary of the Army determined and certified that plaintiff had served satisfactorily in the Army of the United States for a period of not less than six months between September 9, 1940, and June 30, 1946, the grade of Colonel. Such certification was recognized and approved by the Comptroller General of the United States and plaintiff was advanced on said list to the grade of Colonel and has been paid retirement pay at the rate applicable to a Colonel from and after the effective date of Public Law 810 of the 80th Congress of June 29, 1948.
17. Plaintiff has sought relief by application to the Army Board for Correction of Military Records, but after preliminary review said Board declined to further review this matter or issue a formal decision upon merits of said application, stating the preliminary review did not disclose sufficient basis for further review by that Board. Thus, prior to the filing of the pending suit plaintiff, in due order, exhausted the appropriate and applicable administrative procedures and remedies incident to his claim for payment at the rate applicable to the rank of Brigadier General.
CONCLUSION OF LAW
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover and judgment will be entered to that effect.
The amount of recovery will be determined pursuant to Rule 38 (c) of the Rules of this court.
Amendment June 15, 1933; 48 Stat. 153.