
    ROGER H. WILLIAMS v. THE UNITED STATES
    [No. 49814.
    Decided December 1, 1953.
    Plaintiff’s motion for new trial overruled February 2, 1954]
    
      Mr. Guy Emery for plaintiff. Mr. /Samuel T. Ansell and Messrs. Ansell <& Ansell were on the briefs.
    
      Mr. Arthv/r E. Fay, with whom was Mr. Assistant Attorney General WarrenE. Burger, for defendant.
   Madden, Judge,

delivered the opinion of the court:

The plaintiff, a reserve colonel now on the honorary retired list of the Army of the United States, sues to recover retired pay to which he claims to be entitled under Title III of the Act of June 29, 1948, 62 Stat. 1087, the pay to begin on the date of that Act.

Section 302 (a), Title III of the Act of June 29, 1948, provides:

Any person wbo * * * has performed satisfactory Federal service as defined in this section in the status of a commissioned officer, warrant officer, flight officer, or enlisted person in the Army of the United States or the Air Force of the United States, including the respective reserve components thereof, and also including the federally recognized National Guard prior to 1933, the United States Navy * * * the United States Marine Corps, * * * or the United States Coast Guard, * * * and has completed an aggregate of 20 or more years of such satisfactory service in any or all of the aforesaid services shall, upon application therefor, be granted retired pay * * *,

The plaintiff was, on June 30, 1945, placed as a Colonel on the Officers’ Honorary Retired List and the Honorary Reserve, Officers’ Reserve Corps. In these capacities he received no retired pay. When he was so retired he had more than 19 years service as an enlisted man and a commissioned officer. These services were thus short of the 20 years required by Section 302 (a). But the plaintiff had also five years service as a cadet in the United States Military Academy, ending in 1910. If these years can be counted, the plaintiff had well over the required 20 years.

The plaintiff concedes that service as a cadet in the Military Academy is not service as a commisioned officer, warrant officer, flight officer, or enlisted person. But he contends that if one has had some service in one of those named capacities, then he can count all the years of service in the armed forces of the United States, in any branch, and in any capacity. Service in the Cadet Corps of the Military Academy is service in the Army.

The Government contends that the expression “20 or more years of such satisfactory service in any or all of the aforesaid services” means satisfactory service in one of the four named capacities. The first mention of “satisfactory service” definitely relates to service in one or more of the four named capacities. The later reference to “such satisfactory service” would seem to be a reference back to the previously named service. The Government thus has the language on its side, and the plaintiff has the burden of persuading us that the language does not have the meaning which normal usage would give it.

The plaintiff shows that in several predecessor bills which related only to the Army, language was used which said what the plaintiff would have the language here in question mean. Then the idea arose of including the Navy and the other armed services in the bill, and in the draft of the bill to accomplish that purpose, and which became Section 302 (a), the word “such” before “satisfactory service” was inserted. The plaintiff urges that the change had no meaning. He quotes numerous statements by officers of the armed services and by Congressmen giving their views as to the effect of the bill. None of these statements contains anything specific relating to our question, though the general thought of all of them may be that any person with 20 years of satisfactory Federal service would be covered by the bill.

The Government points to statements made by a War Department official, in explaining to a committee of Congress the provisions of various pending bills, that not less than 20 years of service, “enlisted or commissioned or combined” would be required to qualify for retired pay under them. The language of these statements is more directly applicable to our problem than those to which plaintiff points.

The plaintiff, in his reply brief, says that Congress, having, in the Act of August 24,1912, provided that service under an appointment made after the date of that Act, in the Military or Naval Academy, should not be counted in computing for any purpose the length of service of any officer of the Army, in every length-of-service statute since that time, unless the statute here in question is an exception, has recognized cadet service under an appointment prior to August 24, 1912, as creditable. He reminds us that, in recent legislation a strong purpose to equalize the status of reserve officers and that of officers of the Regular Army has been shown by Congress. It seems that an officer of the Regular Army can count pre-1912 cadet service for longevity purposes.

The various considerations urged by. the plaintiff create serious doubts in our minds as to whether the insertion of the word “such” in the statute here under consideration may not have been a mere inadvertence on the part of Congress. Perhaps a greater likelihood exists that the draftsmen of the bill in 1948 overlooked the fact that pre-1912 cadet service might become significant. If they had not overlooked it, perhaps they would not have used language which, prima facie, at least, excluded it. We are not persuaded of Congressional inadvertence to the point of being willing to, in effect, discard the word which causes the trouble.

The plaintiff’s petition will be dismissed.

It is so ordered.

Whitaker, Judge; LittletoN, Judge; and JoNes, Chief-Judge, concur.

FINDINGS OF FACT

The court makes findings of fact, based upon the facts as stipulated by the parties, the briefs and argument of counsel, as follows:

1. The plaintiff, Roger H. Williams, was born 22 November 1884, in Nebraska.

2. The plaintiff served in the Nebraska National Guard as a Battalion Sergeant Major from 5 August 1904 to 1 June 1905.

3. The plaintiff was a cadet at the United States Military Academy from 15 June 1905 to his graduation 14 June 1910.

4. Upon graduation plaintiff was commissioned Second Lieutenant, Infantry, United States Army (Regular) and served from 15 July 1910 to 30 June 1915, upon which latter date he resigned under honorable conditions.

5. Thereafter plaintiff served in the Officers’ Reserve Corps during the following periods in the following grades:

(1) Lieutenant Colonel, Officers’ Reserve Corps, Adjutant General’s Department, from 8 June 19Í7 to 11 August 1919;
(2) Colonel, Officers’ Reserve Corps, Adjutant General’s Department, from 24 October 1921 to 2 October 1925;
(3) Colonel, Officers’ Reserve Corps, Field Artillery, from 11 April 1930 to 7 April 1935;
(4) Colonel, Officers’ Reserve Corps, Field Artillery, from 7 December 1937 to 22 J anuary 1938;
(5) Colonel, Officers’ Reserve Corps, Ordnance Department, War Department, General Staff, and Air Corps, from 13 October 1941 to 17 February 1944.

6. On 30 June 1945, plaintiff was placed as a Colonel on the Officers’ Honorary Retired List and the Honorary Reserve, Officers’ Reserve Corps.

7. All of plaintiff’s service was satisfactory.

8. On 21 January 1903, Congress passed what is commonly known as “The Dick Act,” 32 Stat. 775.

9. On 3 June 1916, Congress passed the National Defense Act, 39 Stat. 166.

10. On 29 June 1948, Congress passed the “Army and Air Force Yitalization and Retirement Equalization Act of 1948,” 62 Stat. 1081, frequently referred to as Public Law 810.

11. On 23 April 1949, the plaintiff made application to The Adjutant General of the Army for retirement with pay under the terms of Title III of said Public Law 810, enumerating therein service as set out in Paragraphs 2, 3, 4, and 5 of this stipulation, which he claimed to be “Federal Service” for retirement credits, and of said service, he claimed the following to be “active Federal service”:

(1) His cadet service at the United States Military Academy, 15 June 1905 to 14 June 1910;
(2) His service in the Regular Infantry 15 June 1910 to 30 June 1915;
(3) His service in the Officers’ Reserve Corps, 8 July 1917 to 11 August 1919;
(4) Colonel, AUS, 17 October 1941 to 9 December 1943.

12. On 5 September 1950, The Adjutant General sent to plaintiff a statement of his service for retirement eligibility of which the following are the pertinent parts:

I. Federal Service
15 June 10 to 30 J une 15
8 June 17 to 11 Aug. 19
24 Oct. 21 to 2 Oct. 25
11 Apr. 30 to 7 Apr. 35
7 Dec. 37 to 22 Jan. 38
13 Oct. 41 to 17 Feb. 44
II. Active Duty
15 June 10 to 30 June 15
11 July 17 to 11 Aug. 19
17 Oct. 41 to 9 Dec. 43 .
III. Total Federal Service for Retirement
18 yr. 7 mo. 17 da.
IY. Total Active Duty
9 yr. 8 mo. 10 da.
Y. O trier them Federal Service
5 Aug. 04 to 1 June 05 [National Guard service]
15 June 05 to 1 June 10 [Cadet service]
VI. Total of Other than Federal Service
5 yr. 9 mo. 27 da. [National Guard and Cadet service]
Total Service for Longevity: over 24 years

13. An accompanying letter of explanation from The Adjutant General stated:

2. Attached is a statement which shows all service considered in determining your eligibility for retirement benefits under the provisions of the Act. Items I through IV of this statement show the periods of service and active duty which were determined to be Federal service as required by the law.
3. Your attention is particularly invited to Items V and VI under which are listed the specific periods of service which are not creditable. The National Guard service (5 August 1904 through 1 June 1905) and the military academy service (15 June 1905 through 14 June 1910) were both claimed by you on your application, NME Form 108, as Federal service.
4. National Guard service prior to 3 June 1916 (other than duty performed during the Spanish American War or Mexican Border conflict) was not Federal service as defined in sections 302 (a) and 306 (e) of the Act and was, therefore, not credited to you. Inasmuch as section 302 (a) specifies that to be credited for the purpose of determining eligibility under the provisions of that section, service must have been in the “status of a commissioned officer? warrant officer, flight officer, or enlisted person,” service as a cadet at the United States Military Academy cannot be credited. This action conforms to an opinion of The Judge Advocate General of the Army (CSJAGA 1949/2856) on the subject of crediting military academy service under the provisions of Title III of the Act. The Judge Advocate General’s opinion was confirmed by the Army Comptroller on 17 November 1949.
5. In view of the foregoing, the total Federal service creditable to you is 18 years, 7 months and 17 days. Therefore, you are not eligible for such benefits.

14. If plaintiff is entitled to have his attendance at the United States Military Academy as a cadet credited as “Federal service” within the meaning of Public Law 810, then the amount of retired pay due plaintiff is subject to computation by the General Accounting Office in accordance with the findings of fact herein.

CONCLUSION OP LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is not entitled to recover, and the petition is therefore dismissed.  