dissenting:
In the opinion of the majority in the instant case it was recognized that plaintiff could not count his midshipman service unless this right was preserved or given by the Pay Readjustment Act of 1942. I agree with this, for under the Act of June 10,1922, only persons in the service on June 30, 1922, could count their midshipman service.
Did the original Pay Readjustment Act of 1942 (56 Stat. 359), give people not in the service on June 30,1922, the right to count their midshipman service ? I think it is plain from the pertinent language of the eleventh paragraph of section 1 that it did not. This paragraph reads:
For officers appointed on and after July 1, 1922, no service shall be counted for purposes of pay except active commissioned service under a Federal appointment and commissioned service in the National Guard when called out by order of the President and service authorized in section 2(b) of the Act of January 19,1942 (Public Law 402, Seventy-seventh Congress). For officers in the service on June 30, 1922, there shall be included in the computation all service which was then counted in computing longevity pay. * * *
The Act says explicitly that officers not in the service on June 30,1922, are not entitled to count academy service, but that officers in the service on June 30, 1922, are.
*453The eleventh paragraph of section 1 of this Act was amended on December 2, 1942 (56 Stat. 1037), to read in pertinent part as follows:
In computing the service for all pay purposes of officers paid under the provisions of this section, such officers shall be credited with full time for all periods during which they have held commissions as officers of [here follows the categories of creditable commissioned service] : Provided, That for officers m service on Jwne SO, 19M, there shall be included in the computation,. in addition to the service set forth above, all service which was then counted in computing longevity pay * * *. [Emphasis supplied.]
As can be seen, this amendment still restricted officers appointed after June 30,1922, from counting other than commissioned service for purposes of pay. This right to count other than commissioned service was reserved only to officers “in service” on June 30,1922.
It seems plain beyond question that plaintiff was not in the service on that date, because he had previously resigned. Not being in the service on that date, by the express language of the 1942 Act he is not entitled to count his midshipman service.
We so held in Neal E. Williams, Jr., v. United States, 136 C. Cls. 582. I see no distinction in the two cases.
I think the motion for reconsideration should be granted, and the former judgment should be set aside.
Judge LaeamoRe joins in the foregoing dissenting opinion.