Lowell v. United States

Jones, Chief Judge,

dissenting:

At the time of plaintiff’s retirement he was serving on active duty to which duty he had been called for a period in excess of 30 days. He was so serving as a major, in which grade he held a commission in the Army of the United States. At the same time, he also held a commission in the grade of lieutenant colonel in the Officers’ Eeserve Corps, in which grade he was not serving, nor had ever served, on active duty. Both commissions were in Reserve components of the uniformed services.

Section 402 (a) and (b) of Title IV of the Career Compensation Act of 1949, 63 Stat. 802, 816, 817, which was in force at the time of plaintiff’s retirement, provided for retirement of an officer of a Reserve component, who had been called or ordered to extended active duty for a period in excess of 30 days, and while so serving was found unfit to perform the duties of his office by reason of physical disability. Plaintiff was so found.

Subsection (d) of section 402 provided the method for computing the disability retirement pay to which a member, determined to be physically unfit under subsections (a), (b), or (c), shall be entitled. It provided that one of the multipliers to be used in the computation would be an amount equal to the basic pay of the rank, grade, or rating held by him at the time of retirement.

In this case the plaintiff held two ranks, major, in which he was serving, and lieutenant colonel, in which he was not serving, and never had served on active duty. Had he ever served in this grade of lieutenant colonel, a proviso of section 402 (d) would be applicable so that, had the service as colonel been determined by the Secretary to be satisfactorily performed, the retirement grade would be lieutenant colonel. *121Cf. Kimberly v. United States, 119 C. Cls. 805, Cairnes, et al. v. United States, 180 C. Cls. 776.

To justify a retirement on a rank higher than any in which actual service has been rendered would require a clear statute to that effect. There is no such statute applicable in this ■case.

The legislative history of Title IV of the Career Compensation Act of 1949 shows clearly that the retirement pay is to be based on the rank in which satisfactory service has been performed (U. S. Code Congressional Service, 81st Cong., 1st Sess., 1949, Vol. 2, p. 2102). The 1949 act provided for a temporary disability retired list as well as a permanent list. The computation of retired pay for both is set forth in section 402 (d).

With respect to the temporary disability retired lists and the rank upon which the computation of disability retired pay is to be based, the Committee Eeport states as follows:

This title provides that a person deemed retirable under the standards established thereby will be eligible to be placed upon a temporary disability retired list. He win thereafter draw disability retirement pay computed by multiplying the degree of his disability by the basic pay of the highest rank in which he had performed satisfactory service, or, at his election, by multiplying the number of years of active service he has performed by 2% percent of the pay of the highest grade or rank in which he performed satisfactory service. * * *

While this discussion was limited to the computation to be applied in case of temporary disability retirement, the act uses the same terms, so far as rank is concerned, in stating the computation in case of permanent disability retirements. It thus makes clear that the use of the term “rank held,” means a rank which was held when satisfactory service was performed. The view expressed in this Committee Eeport is the same as that incorporated in the codification of section 402 (d) in section 1372 of U. S. Code, Title 10, Armed Forces, enacted August 10,1956.

This act restated the law in clearer form. It provided in effect that in cases of the kind involved here, where the person “held” two ranks, the retiree would be entitled to the grade or rank in which serving when he is retired, or the highest *122rank or grade in which he served satisfactorily, as determined by the appropriate Secretary. It seems to me that this particular provision clarified the rights plaintiff had under the particular provision of law as it existed at the time of the Tracy decision.1

The majority would read the words of the codification, “rank in which he is serving” as not meaning the same as “serving on active duty.” In other words, the majority feels that if section 1372 (1) is to be followed the plaintiff can qualify thereunder as he “served” in the rank of lieutenant colonel, and that he does not have to have “served on active duty.” Reliance for this view seems to be placed on the wording of section 1371 and section 1372 (3) of the codification. Section 1371 relates to retired grade of warrant officers and it was derived from section 14 (d) of the act of May 29,1954, the Warrant Officer Act of 1954 (68 Stat. 157, 163). This act had specifically provided for retirement of warrant officers in the permanent warrant officer grade held on the day before the date of his retirement, or in any higher warrant officer grade in which he has satisfactorily served. There was, therefore, no question of interpretation involved in codifying those words in section 1371.

Section 1372 (3) specifically allows disability retirement pay based on a reserve grade to which an officer would have been promoted except for his failure to pass the physical examination for the promotion. The majority draws support from this section for their view that an officer may be retired under certain circumstances in a grade in which he has never served on active duty. As hereinbefore noted, to reach such a result there should be a clear statement to that effect in the statute. Section 1372 (1) contains no such statement as is found in 1372 (3) and therefore I would not enlarge section 1372 (1) to encompass therein the right to retirement pay based on a rank or grade in which service has never been performed on active duty.

I, therefore, would hold that plaintiff should have retired pay based on the rank of major, the rank in which he was serving on active duty at the time of the determination of his right to retirement. He is not entitled to pay based on the *123rank of lieutenant colonel as he never served in that rank satisfactorily or otherwise.

Substantially, the same issue was determined adversely to the contention on which plaintiff relies in Woodford v. United States, 138 C. Cls. 228, certiorari denied 355 U. S. 861.

Plaintiff having received the retired pay to which he is entitled, the petition should be dismissed.

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 May 7,1958, that judgment for the plaintiff be entered for $4,689.22.

See this writer’s dissenting opinion in the Tracy case, 136 C. Cls. 211, 216.