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Opinion of the Court

to prevent the very thing that happened in the case at bar, in order that an enlisted man might not be arbitrarily deprived of the retired pay and allowances of which he was in receipt at the time he became entitled to retire and at the time he properly made application to the President for such retirement. We are certainly not justified in presuming that the use by Congress of language in the later enactment indicating an intent to accomplish a definite purpose had only the effect of creating an ambiguity. The provisions and history of the act of February 14, 1885, as amended by the act of 1890, supra, upon which counsel for defendant bases his contention in the case at bar, were fully briefed and discussed in plaintiff's brief in the case of Blackett v. United States, supra, and that act and its history, in connection with the act of 1907 under which Blackett was retired, were duly considered by the court in reaching its conclusion, but, for the reasons hereinbefore stated in this opinion, we did not consider that the act of 1885 had any important bearing or controlling influence on the question presented and for that reason it was not discussed in the opinion. The purpose and intent upon which was founded the original and subsequent enactments of the provisions for retirement of enlisted men, as disclosed by the Committee Reports which accompanied the original act of 1885, are consistent with the language of the act of 1907 and the interpretation which we have placed on it. The Lieutenant General of the Army stated and recommended in 1884 to the 48th Congress, First Session, that "thirty years would be a proper period of service to authorize the retirement of a private soldier or a noncommissioned officer," and Report No. 616, 48th Cong., 1st Sess., of the House Military Affairs Committee, recommended the passage of the bill which became the act of February 14, 1885, and stated that "Something is needed to give greater stability and better standing to the enlisted man in our military service. If he can feel that we have made proper provision for his old age he would be more likely to accept the monotonous life of the service contentedly." The Senate Military Affairs Committee adopted the report of the House of Representatives on the

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Opinion of the Court

93 C. Cls. bill and on behalf of this committee it was stated that "If we show, by an act of Congress, our determination to take care of these old men after they have honorably and faithfully served their country for that long time, it will be a great incentive to them to remain in the service." In view of the purpose clearly intended to be accomplished by the enactment of the provisions giving enlisted men and noncommissioned officers the right of retirement, we do not think that the meaning of the language of the act of 1907 is in any wise doubtful. The applicable provisions of the act of 1907 were intended for the benefit of enlisted men and to assure them that upon becoming eligible for retirement and upon making application to the President therefor they would receive 75 percentum of the pay and allowances they were in receipt of under the grade in which they were serving at the time of making such application. These provisions were enacted from motives of public policy and should not be narrowly construed. As was said in the opinion in the Blackett case "The words of the act are plain, and their meaning simple. The act imposed an imperative duty and not a discretionary power," and neither the President nor any subordinate officer of the War Department has the right "to select the grade in which retirement is permitted.”

Plaintiff is entitled to recover the difference between the retired pay of a first sergeant and that of a sergeant, and judgment therefor will be entered in his favor upon the filing of a report from the General Accounting Office showing the amount due for the period August 1932 to date of judgment. It is so ordered.

GREEN, Judge; and WHALEY, Chief Justice, concur. WHITAKER, Judge, took no part in the decision of this

case.

157

Reporter's Statement of the Case

HARRY MAXWELL v. THE UNITED STATES

[No. 43922. Decided March 3, 1941]

On the Proofs

Pay and allowances; retirement of enlisted man under the Act of March 2, 1907.-Where plaintiff enlisted in the United States Army, April 28, 1906, and served continuously under numerous reenlistments in various grades until July 31, 1934; and where on June 6, 1934, plaintiff while serving as master sergeant and receiving the pay and allowances of a master sergeant but before he had acquired credit for 30 years of military service, made application in writing for retirement as master sergeant; it is held that under the Act of March 2, 1907, plaintiff is not entitled to recover.

Same. The cases of Blackett v. United States, 81 C. Cls. 884, and Hornblass v. United States, ante, p. 148, are distinguished; Cherry v. United States, 89 C. Cls. 318, cited.

The Reporter's statement of the case:

Mr. Mahlon C. Masterson for the plaintiff. Ansell, Ansell & Marshall on the brief.

Mr. Rawlings Ragland, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.

Plaintiff instituted this suit to recover the difference between the retired pay authorized by law for a master sergeant and the pay actually received by him as a sergeant on the retired list, which increased retired pay for the period July 31, 1934, the date on which he was retired, to April 30, 1938, about the date on which the petition was filed, amounted to $3,010.99.

The court, having made the foregoing introductory statement, entered special findings of fact as follows:

1. Plaintiff enlisted in the United States Army April 28, 1906, and served continuously under numerous reenlistments in various grades until July 31, 1934. March 17, 1934, upon recommendation of the Troop Commander, plaintiff was duly and regularly appointed master sergeant by Special Orders No. 34 of the War Department. He remained in the grade of master sergeant and received the pay and al

Reporter's Statement of the Case

93 C. Cls.

lowances thereof until June 7, 1934, under the circumstances hereinafter set forth in finding 2.

2. On June 6, 1934, plaintiff, while serving as master sergeant and receiving the active-duty pay and allowances of a master sergeant but before he had acquired credit for thirty years of active military service, made application in writing for retirement as master sergeant under the act of March 2, 1907 (U. S. Code, Title 10, section 947), which provided in part that "when an enlisted man shall have served thirty years either in the Army, Navy, or Marine Corps, or in all, he shall, upon making application to the President, be placed upon the retired list."

Plaintiff's application for retirement as master sergeant was, at his request, prepared by Troop Clerk James E. Ligon, and was signed by plaintiff in the presence of such clerk. After the application had been so signed, plaintiff left it with the troop clerk to be forwarded through proper channels to The Adjutant General in Washington. On June 7, 1934, the Post Adjutant called plaintiff to his office. to discuss his application for retirement and told him that there was a surplus of master sergeants and that he, therefore, would not be retired as master sergeant at that time, and that he would be reduced in grade but that as soon as the surplus master sergeants became absorbed he could then be promoted to master sergeant and be retired in that grade. Plaintiff was thereupon reduced to grade of private on June 7, 1934, as of June 1, 1934, by Special Orders No. 70, and his application for retirement in the grade of master sergeant was denied. On June 21, 1934, by Special Orders No. 77, plaintiff was again promoted to the grade of sergeant.

3. Later, on July 8, 1934, after his application for retirement in the grade of master sergeant had been denied and he had been reduced to the grade of private and later again promoted to the grade of sergeant, plaintiff made written application for retirement in the grade of sergeant. At that time he had to his credit more than thirty years of active service. On July 23, 1934, orders were issued for retirement of plaintiff as a sergeant and on July 31, 1934, he was retired as a sergeant and since that time he has re

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Opinion of the Court

ceived the retired pay of that grade. At the time of his retirement he had a total service of thirty years, one month, and seven days of active military service, including allowance for double time for service in the Philippine Islands. 4. The difference between the statutory retired pay of a master sergeant and the retired pay received by plaintiff as a sergeant from July 31, 1934, to April 30, 1938, is $3,010.99. The claim is a continuing one.

The court decided that the plaintiff was not entitled to

recover.

LITTLETON, Judge, delivered the opinion of the court: Plaintiff bases his claim for the additional retired pay over that received by him as a sergeant on the ground that at the time he made application for retirement on June 6, 1934, he was serving in the grade of master sergeant and was receiving active-duty pay and allowances of that grade, and that he did not at any time voluntarily withdraw that application. Upon the facts disclosed by the record and set forth in the findings, we are of opinion that plaintiff can not recover the claimed increased retired pay under the act of March 2, 1907, 34 Stat. 1217, and that his case does not come within the principles announced by this court in Blackett v. United States, 81 C. Cls. 884, and Hornblass v. United States, ante, p. 148.

In the instant case, plaintiff's right to retire had not vested under the act of 1907 at the time he made his first application, nor at the time he was reduced in grade and at the time his application was denied. On those dates plaintiff had not completed thirty years of military service, and had a total credit of less than thirty years' service, including allowance for double time for service in the Philippine Islands. Thereafter, on July 8, 1934, when he had completed thirty years' service and had become entitled to retirement, and while he was serving in the grade of sergeant, receiving the pay and allowances of that grade, plaintiff made written application for retirement in that grade and was so retired on July 31, 1934. In these circumstances he was entitled to be retired only in that grade and to receive the retired pay

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