(dissenting in part).
I agree that plaintiff should have been retired at the rate of 75 percent of his pay as a lieutenant colonel, the highest rank in which he ever actually served. It is true that after he was called into the Federal service and was appointed a lieutenant colonel in the Army of the United States he was tendered and accepted a permanent appointment as a colonel in the Officers’ Reserve Corps, but he continued to serve as a lieutenant colonel in the Army of the United States, and he never had a minute’s actual service as a colonel, and at no time served in a higher rank than that of lieutenant colonel.
To justify a retirement in 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.
Plaintiff’s active duty in the Army from December 3, 1947, to his retirement April 30, 1950, was performed under his commission as lieutenant colonel, Army of the United States.
The plaintiff’s disability retirement pay under section 402(b) of the Career *947Compensation Act of 1949, as amended, 63 Stat. 802, 37 U.S.C.A. § 272(b), is determined by the rank, grade or rating in which he was serving on active duty at the time of his retirement. In order to receive disability retirement pay based upon the rank of colonel, the plaintiff must have served satisfactorily in such rank as determined by the Secretary of the Army. This requirement has not been met. Kimberly v. United States, 97 F.Supp. 710, 119 Ct.Cl. 805; Cairnes v. United States, 128 F.Supp. 155, 130 Ct.Cl. 776.
We quote from the opinion in the Cairnes case, 128 F.Supp. at page 158, 130 Ct.Cl. at page 781, as follows:
“This Court in Kimberly v. United States, 97 F.Supp. 710, 711, 119 Ct. Cl. 805, considered the meaning of Section 402(d) and, in dismissing plaintiff’s petition, used the following language:
“ Tt is manifest from the various official documents that our retirement provisions were intended by the Congress to be made on the basis of the. actual rank held by officers at the time of the retirement and that the provisions of the act of October 12, 1949, were intended merely to give the retiring officer the advantages of a higher rank where the promotions were real- and covered the actual service in the United States Army as such.’ [Italics supplied.] It is significant that the cases decided by the court1 after the Kimberly case, supra, except the Shanley case, were all claims wherein the officers were recalled to active duty. Hence, they either ‘served satisfactorily’ in, or ‘satisfactorily held’ the higher rank as set forth in the Career Compensation Act, supra, and thereby met the requirements of said. act.
“It seems that Congress intended that those who had a brevet rank given on retirement should not have retired pay under the 1949 rates at the brevet rank, but he could either hold his existing retired pay or elect a greater sum computed at his actual service rank based on the higher pay of the 1949 act.
“This is exactly what the Court held in Shanley v. United States, 122 Ct.Cl. 692. The same result was reached in the Kimberly case, supra.
“Therefore, it is clear that the Kimberly case, supra, and the Shanley case, supra, are controlling in this instance and the plaintiffs’ never having served in the advanced rank, do not meet the retirement qualifications of Section 511(b) of the Career Compensation Act, supra.”
Under the facts as pleaded in this case, plaintiff is not entitled to retirement pay at the rate of 75 percent of the active duty pay of a colonel.
Plaintiff was and is entitled to receive retirement pay at the rate of 75 percent of the active duty pay of a lieutenant colonel with over 26 years’ service.
LARAMORE, Judge, concurs in the foregoing dissent.. Miller v. United States, 104 F.Supp. 981, 123 Ct.Cl. 351; Alger v. United States, 115 F.Supp. 898, 126 Ct.Cl. 561, 128 Ct.Cl. 777; Hottel v. United States, 120 F. Supp. 910, 128 Ct.Cl. 284; Shanley v. United States, 122 Ct.Cl. 692.