dissenting:
I cannot agree that plaintiff is entitled to the benefits of the Act of January 12,1923 (42 Stat. 1130), which provides that when a commissioned officer of the Coast Guard retires he shall be placed on the retired list with the rank and retired pay of one grade above that actually held by him at the time of retirement.
At the time plaintiff retired, this Act had no application to him because he was not a commissioned officer. But the majority says he later became a commissioned officer and, when he did, the Act became applicable to him and that he was entitled to its benefits upon his return to an inactive status.
The difficulty with this is that the only authority under which he acquired the status of a commissioned officer was the Temporary Promotions Act of 1941 (55 Stat. 603), as amended by the Act of February 21,1946 (60 Stat. 26), and this Act says that personnel promoted under its authority shall, upon their return to an inactive status, be placed on the retired list in the highest grade in which they had served satisfactorily, not in the next higher grade.
Section 10 (a) of the 1941 Act as amended reads:
Upon the termination of their temporary status such personnel on the active list of the Regular Navy and Marine Corps2 shall assume their permanent status and those of the retired list * * * shall have, when returned to an inactive status, the highest grade and rank in which, * * * they served satisfactorily under a temporary appointment * * *.
Subsection (b) (1) of section 10 of the 1941 Act as amended provides:
*207Personnel of the retired list returned to an inactive status with higher rank pursuant to subsection (a) shall receive retired pay computed at the rate prescribed by law and applicable in each individual case but based upon such higher rank.
Plaintiff was returned to inactive status as a lieutenant, which was the temporary rank to which he had been temporarily promoted, and he has been paid retired pay upon the basis of this higher rank.
This would seem to me to settle the matter, but the majority opinion says that he is entitled to a higher rank under section 10 (e). This section provides:
(e) The highest rank in which an officer served on or prior to June 30,1946 * * * is the highest rank in which the officer may be retired and upon which his retired pay may be based pursuant to this section, unless under provisions of law other than those contained within this section he is entitled to a higher rank on the retired list or to a higher retired pay * * *. [Italics supplied.]
The majority says that the above italicized portion of this section entitles plaintiff to one rank higher than the rank in which he served because he was entitled to this rank under the Act of 1923.
This seems to me fallacious for this reason: The 1923 Act could never have had any application to plaintiff except for his promotion under the authority of the Temporary Promotions Act of 1941, and this Act was plainly designed to define the rights of personnel promoted under its authority. When plaintiff retired on March 1, 1939, he could not claim the benefit of the 1923 Act because he was not a commissioned officer and, hence, I do not think the part of section 10 (e) relied on by the majority has any application to plaintiff.
Plaintiff not having been entitled to the benefits of the Act of 1923 when he retired, and having become a commissioned officer only by virtue of the Temporary Promotions Act of 1941, in my opinion he is entitled only to the pay of the rank specified in that Act, which is “the highest grade and rank in which * * * they served satisfactorily under a temporary appointment * *
For these reasons I respectfully dissent.
*208In 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 $6,644.45.
under section 11 of this Act, this was made applicable to personnel of the Coast Guard.