Frame v. United States

Per Curiam :

Plaintiff asks for summary judgment on the pleadings and stipulation of the parties.

It is stipulated that—

3. On the 8th of February 1946 plaintiff was promoted to the grade of Lieutenant Colonel while still on active duty but as a terminal leave promotion, having entered on active duty on 19 January 1942 as a Captain, Infantry Reserve. On the 10th of April 1946 he was relieved from extended active duty as a Lieutenant Colonel without pay, as a result of a physical disability and pursuant to the decision of an Army Retiring Board.

4. Plaintiff, after having appeared before a reconvened Army Retiring Board, appealed to the Secretary of the Army’s Disability Review Board which found that his disability was incident to service and existed at the time of his relief from active duty. He has since

I January 1951 been paid retirement pay by the Finance Office of the Army at Washington, D. C. at the rate of $288.75 per month. (See Plaintiff’s Exhibit No. 1.) Plaintiff has not been paid any retirement pay from the date of his discharge from the military service on 10 April 1946 up to 1 January 1951.

5. Plaintiff has received payments of disability compensation aggregating $3,147.47 from Veterans Administration for the period April 11,1946 through December 31, 1950.

6. If the Court determines plaintiff is entitled to recover any amount in this action, it is agreed that the retired pay of a Lieutenant Colonel with over 12 but less than 15 years’ service for the periods 11 April 1946 through 30 June 1946, and 1 July 1946 through 31 December 1950, less compensation received from the Veterans Administration, would be as follows:

II April 1946-30 June 1946 at the rate of $262.50 per

month__________________________________________ $700. 00

1 July 1946-31 December 1950 at the rate of $288.75 per month (rate of pay increased under the provisions of the Act of 29 June 1946)________________ 15,592. 50

16,292.50

Less compensation received from Veterans Administration------------------------------------------ 3,147.47

13,145. 03

Since both by stipulation and by the finding of the Disability Review Board the disability was service-connected and since he has not been in the service since April 10,1946, it follows that the disability must have occurred not later than that date.

The case is governed by the principles laid down in Womer v. United States, 114 C. Cls. 415, and in Hamrick v. United States, 120 C. Cls. 17.

Plaintiff’s motion for summary judgment is granted, and pursuant to the stipulation he is given judgment for $13,145.03.

It is so ordered.