De Court v. United States , 66 Ct. Cl. 130 ( 1928 )

Moss, Judge.t

delivered the opinion of the court:

Plaintiff was retired as a captain, Philippine Scouts, October 31,1918. He was promoted to the rank of major on the retired list January 1, 1923. After his retirement plaintiff performed a certain amount of active duty, and he now contends that counting this active duty, he would have attained the grade of major by July 1, 1920, and that he is therefore entitled to the pay of major from that date under the act of June 4,1920, 41 Stat. 786.

The acts creating the organization known as the Philippine Scouts provided that a major should be selected from the captains in the Regular Army. Plaintiff was never at any time prior to his retirement a captain in the Regular Army. Before his retirement he became a captain in the Philippine Scouts by virtue of the act of May 16, 1908, 35 Stat. 163. The act of June 10, 1922, section 17, 42 Stat. 632, provided: “ That officers and former officers of the Philippine Scouts who were placed on the retired list prior to June 4, 1920, shall be entitled to promotion on the retired list for active duty heretofore performed subsequent to retirement in accordance with the provisions of section 127a of the act of June 3, 1916, as amended by the act of June 4, 1920, and to the same pay and benefits received by other officers of the Army of like grade and length of service on the retired list.” Section 127a, referred to, provided that “ any retired officer who has been or shall be detailed on active duty shall receive the rank, pay, and allowances of the grade, not above that of colonel, that he would have attained in due course of promotion if he had remained on the active list for a period beyond the date of his retirement equal to the total amount of time during which he has been detailed to active duty since his retirement.” The act of June 4,1920, also provided for a promotion list in the Philippine Scouts, but it did not create a majority, or in any event a majority to which plaintiff would have been eligible. As appears from the record, the act of June 30,1922, is the first act which authorized promotion in the Philippine Scouts to any rank higher than captain, independently of previous rank in the Regular Army, and this act, in so far as this case is concerned, was effective only on and after January 1, 1923, on which date plaintiff was promoted to the rank of major. The provision limiting the pay seems never to have been changed until the act of June 10, 1922, was passed granting Philippine Scout officers, retired prior to June 4, 1920, the right to promotion with corresponding pay. Having been retired as a captain he was after July 1, 1922, and until January 1, 1923, entitled to the retired pay of a captain, which he received. The petition alleges “ Had claimant remained on the active list for a period of time equal to the period of active service performed by him since retirement he would have been entitled in due course of promotion to the rank of major prior to July 1, 1920.” The commissioner made a finding, to which neither party excepted, as follows: “ The amount of active duty as a retired officer performed by Major De Court prior to July 1, 1920, was sufficient to entitle him to promotion to the grade of major at such time as the promotion could legally be accomplished.” It is, however, the opinion of the court that plaintiff’s promotion to the rank of major, Philippine Scouts, could not legally have been accomplished at any time during the period contended for by plaintiff.

It is contended by defendant that during the period from July 2, 1922, to January 1, 1923, plaintiff should have received the pay of a second lieutenant instead of a captain, the difference amounting to $365.46, and that in the event it should be determined that plaintiff was not entitled to promotion prior to January 1, 1923, the Government should recover that sum. The court has reached the conclusion that neither plaintiff nor defendant is entitled to recover herein, and it is so adjudged and ordered.

GreeN, Judge; and Booth, GMef Justice, concur. GRAham, Judge, took no part in the decision of this case.