dissenting:
I respectfully dissent for the reason that I believe “officers retired from active service shall be retired upon the actual rank held by them at the date of retirement” could only mean rank under which active-duty service had been performed. To justify retirement in a rank higher than any in which active-duty service has been performed, would require a clear statute to that effect. I know of no such statute. See dissenting opinions in Tracy v. United States, Lowell v. United States, and Budd v. United States, cited supra.
Jones, Chief Judge, joins in the foregoing dissenting opinion.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 on July 17, 1959, that judgment for the plaintiff be entered for $3,464.38.