
    392 F. 2d 980
    ALBERT H. GRISHAM v. THE UNITED STATES
    [No. 363-62.
    Decided April 19, 1968]
    
      
      Lawrence J. Simmons, attorney of record, for plaintiff. H. Olay Espey and Charles W. Kalp, of counsel.
    
      Edgar H. Twine, with whom was Assistant Attorney General Edwin L. Weisl, Jr. for defendant.
    Before CoweN, Chief Judge, Need, Justice (Bet.) sitting by designation, Laramore, Dureee, ColliNS, SkeltoN, and Nichols, Judges.
    
   Laramore, Judge,

delivered the opinion of the court :

Plaintiff, Albert H. Grisham, a former civilian employee of the Corps of Engineers, Department of the Army, sues to recover his salary (and other benefits) for the period beginning December 7,1952 and continuing thereafter.

Plaintiff began his career as a civilian employee of the Corps of Engineers on October 26, 1936, when he received a probational appointment as a junior clerk (OAF-2) in the Nashville District. Having successfully completed his probationary period of service, he acquired permanent status in the competitive civil service. Plaintiff continued to serve in the Nashville District until September 30, 1952 (except for a period of active military duty during World War II), and was regarded as a reliable and trustworthy employee. Plaintiff’s proficient and capable performance of his assigned duties earned him gradual promotions. On September 30, 1952, he held a position as cost accountant (GS-9) in the Nashville District.

In September 1952, plaintiff was selected for a 6-month temporary duty assignment with the Orleans District Engineers in France. This organization was part of the military command known as the Communications Zone of the United States Army in Europe. He left the Nashville District for the foreign assignment on September 30,1952. During his absence, the Nashville District employed a person on a temporary basis, for six months, to perform the work previously done by plaintiff, and thereafter it hired a permanent employee.

Following his departure for the temporary foreign assignment, he remained on the rolls of the Nashville District in the* GS-9 position to which he had been promoted. The records of the Nashville District showed plaintiff had been loaned to the Orleans District Engineers for six months and was on temporary duty with that organization. Plaintiff arrived in France on October 1, 1952, then went to Orleans and undertook the temporary duty assignment for which he had been sent overseas. Plaintiff’s wife, Dolly D. Grisham, did not accompany him to France. She arrived there on or about November 1, 1952, at which time they set up housekeeping in Orleans.

Dolly D. Grisham died on December 6,1952. Plaintiff was arrested, charged with homicide and held in confinement by the French authorities from December 6 until December 24, 1952.

The United States Army requested jurisdiction over plaintiff, and the French authorities released him to the Army on December 24,1952. Plaintiff was confined by the Army in the post stockade at La Rochelle, France, and notified that he had been charged with premeditated murder under Article 118(1) of the Uniform Code of Military Justice (10 U.S.C. §918(1) (Supp. IV, 1952)).

While in confinement at La Rochelle awaiting the disposition of the charge against him, plaintiff requested the. Corps of Engineers to pay him for his annual leave and then carry him in the status of leave without pay until the situation was clarified.

Plaintiff was placed in a leave-with-pay status by the Corps of Engineers retroactive to December 6, 1952. On the basis of the accrued annual leave to his credit, plaintiff was paid his salary for the period from December 6, 1952 through February 23,1953.

When plaintiff’s accrued leave was exhausted, the Nashville District placed him in the status of leave without pay as of February 24, 1953, “pending review of Court Martial Sentence.” He was carried in a leave-without-pay status through February 28,1954.

Plaintiff was brought to trial on March 20,1953, at Orleans, France, before a general court-martial appointed by Headquarters, USAREUR Communications Zone, United States Army. He was court-martialed under the authority of Article 2(11) of the Uniform Code of Military Justice (10 U.S.C. § 802(11) (Supp. IV, 1952)) .

The specification of the charge (a violation of Article 118 of the Uniform Code of Military Justice (10 U.S.C. § 918)) alleged that:

* * * Albert H. Grisham, European Command, US Army, Orleans District Engineers, a person employed by the US Army and serving with the US Army outside ■the continental limits of the United States, did, at Orleans, France, on or about 6 December 1952, with premeditation, murder Dolly D. Grisbam by means of striking ber on the head and body with a bottle, striking her on the head and body with his fist, and kicking her on the head and body with his foot.

When arraigned before the court-martial, plaintiff stood mute. The court-martial entered a plea of “Not Guilty” on his behalf.

The trial continued from March 20 until March 27, 1953. Plaintiff was found “Guilty” of the specification, except for the words “with premeditation” and “striking her on the head and body with a bottle,” there having been a finding of “Not Guilty” relative to the excepted words. The court-martial sentenced him to confinement at hard labor for the term of his natural life.

Plaintiff’s conviction was reviewed by the appointing authority, and the findings and sentence were approved on July 8, 1953. Subsequently, the findings and sentence were affirmed by a Board of Review in the Office of the Judge Advocate General of the Army, and by the Court of Military Appeals.

In late July or early August of 1953, plaintiff was transferred to the United States Penitentiary at Lewisburg, Pennsylvania, where he was confined for the next six and one-half years. In 1957, his sentence was reduced by the Secretary of the Army from confinement for life to confinement for 35 years.

On February 26, 1954, the Nashville District prepared a Notification of Personnel Action (Standard Form 50) addressed to the plaintiff. The Notification stated as follows:

Your separation for notorious misconduct will be effected at the close of business 28 February 1954.
This action is taken after your continued leave without pay since 24 February 1953, pending Court Martial Sentence, and your subsequent life sentence to Federal Prison for criminal action.

As indicated by this document, plaintiff was removed from his position as a cost accountant, GS-9, with the Nashville District effective at the close of business on February 28, 1954. Plaintiff never received the Notification which, admittedly, was mailed to him. An informal letter mailed to plaintiff on October 11,1957, by an acquaintance in the Nashville District Office, advised Mm of his removal.

Following the second decision by the United States Supreme Court in the case of Reid v. Covert, 854 U.S. 1 (1957), plaintiff, on October 26, 1957, filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania. The petition (alleging that the general court-martial lacked jurisdiction over a civilian employee prosecuted for a capital offense in peacetime) was deified (Grisham v. Taylor, 161 F. Supp. 112 (M.D. Pa. 1958)), and the denial was affirmed on appeal (Grisham v. Taylor, 261 F. 2d 204 (3d Cir. 1958)). The Supreme Court in Grisham v. Hagan, 361 U.S. 278 (1960), held that the attempt to apply the Uniform Code of Military Justice to the present plaintiff, a civilian employee serving with the Armed Forces outside the United States, was unconstitutional as violative of Article III and the Fifth and Sixth Amendments. This meant that the plaintiff’s court-martial conviction was a nullity and wholly void. Mallow v. United States, 161 Ct. Cl. 446, 450 (1963). Plaintiff was released from the United States Penitentiary at Lewisburg, Pennsylvania, on February 5, 1960. Plaintiff’s application, filed on June 9, 1961, with the Army Board for Correction of Military Eec-ords, was denied on July 27,1961, without a hearing, and suit in this court was filed November 15,1962.

Defendant by way of answer has asserted four affirmative defenses, the fourth of wMch is the defense of laches. We think plaintiff cannot recover by reason of that defense.

A discharged employee is bound to assert his rights with diligence. Delays by the employee in taking steps to test the legality of his removal may prevent the consideration of Ms suit on the merits. See: Alpert v. United States, 161 Ct. Cl. 810 (1963) and cases cited therein at pages 820-821.

Assuming for purposes of tMs case that the letter dated October 11,1957, from an employee of the Nashville District Corps of Engineers, was the first information plaintiff had •of Ms February 5, 1954 removal (finding 26) and under plaintiff’s theory that tMs was Ms first opportunity to sue in tMs court, he did not file suit until November 15,1962, slightly more than five years thereafter.

Plaintiff has stipulated herein that subsequent to his incarceration, and from 1957 to the present, the government has been paying someone else the salary, part of which plaintiff seeks in this suit. This court has recognized that the duplication of salary occasioned by plaintiff’s delay in bringing his action is sufficient prejudice for the application of the principle of laches. Miner v. United States, 143 Ct. Cl. 801 (1958); Dion v. United States, 137 Ct. Cl. 166 (1956); Bovard v. United States, 160 Ct. Cl. 619, cert. denied, 374 U.S. 830 (1963); Albright v. United States, 161 Ct. Cl. 356 (1963); Alpert v. United States, supra; and Gersten v. United States, 176 Ct. Cl. 633, 364 F. 2d 850 (1966).

In this case the passage of time almost equals the limitations period which plaintiff asserts is applicable. As we said in Gersten v. United States, supra, 176 Ct. Cl. at 636, 364 F. 2d at 852:

[T]he longer the delay the less need there is to show, or search for, specific prejudice, and the greater the shift to the plaintiff of the task of demonstrating lack of prejudice * * *.

Furthermore, plaintiff’s claim is premised on the contention that procedures prescribed by section 14 of the Veterans’ Preference Act of 1944, ch. 287, sec. 14, 58 Stat. 390, as amended by Act of August 4,1947, ch. 447, 61 Stat. 723 and modified by the Act of September 6,1966, Pub. L. No. 89-554, §§ 7511 and 7512, 80 Stat. 528, were not followed in effecting his placement on leave without pay or his removal. In relation to the removal, because of his delay, records were lost or destroyed pursuant to record disposition instructions. As a consequence thereof, it is not possible to reconstruct with any accuracy the precise personnel procedures that were followed in effecting his removal and his placement on leave without pay. Moreover, because of the long delay in filing suit, employees who might have had knowledge of and been able to offer information concerning the procedures followed, could not remember what had happened.

Mrs. Kessler, who authored the letter of October 11,1957, previously referred to, died before her testimony could be taken, and prior to her death she had been too ill to testify. Consequently, defendant could no longer establish, facts concerning plaintiff’s removal, either as to time or procedures followed.

This court, in the recent case of Jackson v. United States, 179 Ct. Cl. 29, cert. denied, 389 U.S. 985 (1967), had occasion to deal with the doctrine of laches in a case strikingly similar to this wherein the court denied Jackson’s claim based on his delay in filing suit. Our statement in that decision is equally applicable to the instant case. The attempt to invalidate a removal is “in no sense dependent upon * * * first securing a reversal of the court-martial convictions, * * [At p. 87.]

We adhere to our opinion in Jackson v. United States, supra, and hold that plaintiff has offered nothing by way of justification or excuse for delays that ensued after October, 1957. Imprisonment is not a legal disability under 28 U.S.C. § 2501, which would extend plaintiff’s time for filing suit. This is made manifest by the numerous cases through the years in which prisoners confined in Federal or state penal institutions have prosecuted claims in this court. E.g., Smith v. United States, 168 Ct. Cl. 242 (1964); Webster v. United States, 179 Ct. Cl. 917 (1967). Plaintiff has failed to show that he was prevented by prison authorities from filing suit.

On the facts before us we conclude that plaintiff’s suit is barred by laches. Accordingly, plaintiff is not entitled to recover, and the petition is dismissed.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner Mastin G. White, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff was bom on February 16, 1911. He is a citizen of the United States and is now a resident of California.

2. The plaintiff is a veteran of World War II and, as such, he is a 5-point preference eligible for purposes of the civil service. After performing active military duty during the war, the plaintiff continued to be a member of the United States Army Keserve for several years. As of April 1,1953, the plaintiff held the rank of Lieutenant Colonel, Quartermaster Corps, United States Army Reserve. Tbe plaintiff was honorably discharged from the Army of the United States on the date mentioned.

3. (a) The plaintiff’s first wife divorced him in February 1952. The plaintiff and his first wife were the parents of three children, who were approximately 15, 11, and 7 years of age, respectively, at the time of the divorce. The plaintiff appeared to care deeply for his children.

(b) Sometime during the period February-September of 1952, the plaintiff married again. The married name of the second wife was Dolly D. Grisham.

4. The plaintiff received a probational appointment to a civilian position as junior clerk, CAF-2, in the Nashville District, Corps of Engineers, United States Army, on October 26, 1936. He successfully completed his probationary period of service, and acquired a permanent status in the competitive civil service. The plaintiff continued to serve as an employee of the Nashville District until September 30, 1952 (except for his period of active military duty during World War II). He was regarded as a reliable and trustworthy employee. By reason of the proficient and capable performance of his assigned duties, the plaintiff was steadily and gradually promoted in the service. As of September 30, 1952, the plaintiff held a position as cost accountant, GS-9, in the Nashville District. His salary in that position was $5,310 per annum.

5. In September 1952, the plaintiff was selected for a 6-month temporary duty assignment with the Orleans District Engineers in France. He left the Nashville District for the foreign assignment on September 30,1952.

6. Following the plaintiff’s departure for his temporary foreign assignment, he was still carried on the roll of the Nashville District in the GS-9 position as a cost .accountant to which he had been promoted. The records of the Nashville District showed the plaintiff as having been loaned to the Orleans District Engineers for 6 months and as being on temporary duty with the Orleans District Engineers.

7. (a) When the plaintiff left the Nashville District for temporary duty in France, the Nashville District employed another person on a temporary basis for a period of 6 months to perform the work that the plaintiff had been doing prior to his departure.

(b) At the end of the 6-month period immediately following the plaintiff’s departure from the Nashville District for temporary duty in France, the Nashville District permanently employed someone to perform the work which the plaintiff had done prior to his departure for France.

8. The plaintiff arrived in France on October 1,1952. He went to Orleans and undertook the temporary duty assignment for which he had been sent overseas. While working on this assignment, the plaintiff received an overseas allowance of $12 per day.

9. The plaintiff’s wife, Dolly D. Grisham, did not accompany him to France. However, she later went to France, arriving there on or about November 1, 1952, or approximately a month after the plaintiff reached France. The plaintiff and his wife set up housekeeping at 74 Boulevard Alexandre Martin, Orleans, France.

10. The plaintiff’s wife, Dolly D. Grisham, died on December 6,1952.

11. The plaintiff was arrested by French authorities on December 6, 1952 and was charged with homicide. He was held in confinement by the French authorities from December 6 until December 24,1952.

12. (a) The United States Army requested jurisdiction over the plaintiff, and the French authorities released the plaintiff to the Army on December 24,1952. The plaintiff was confined by the Army in the post stockade at La Rochelle, France.

(b) On December 24,1952, the plaintiff was notified that he had been charged with premeditated murder under Article 118(1) of the Uniform Code of Military Justice (10 U.S.C. §918(1)).

13. While in confinement at La Rochelle awaiting the disposition of the charge against him, the plaintiff requested the Corps of Engineers to pay him for his annual leave and then carry him in a status of leave without pay until the situation was cleared up.

14. (a) The plaintiff was placed in a leave-with-pay status by the Corps of Engineers retroactively as of December 6, 1952. The plaintiff was notified of this action. On the basis of the accrued annual leave to his credit, the plaintiff was paid his salary as a civilian employee of the Corps of Engineers for the period from December 6, 1952 through February 23, 1953.

(b) As of February 24, 1953, the plaintiff’s accrued annual leave having been exhausted, the Nashville District of the Corps of Engineers placed the plaintiff in a status of leave without pay “pending review of Court Martial Sentence.” Thereafter, the Nashville District carried the plaintiff on its roll as being on leave without pay through February 28, 1954.

(c) AJthough the plaintiff did not receive any written notification of the action mentioned in paragraph (b) of this finding, the plaintiff was aware that his accrued annual leave was only sufficient to carry him through February 23,1953, and that his pay as a civilian employee of the Corps of Engineers was discontinued after that date.

15. During the period from February 24, 1953 through February 28,1954, the plaintiff did not make any protest to the Corps of Engineers about being placed in a status of leave without pay, or over the failure of the Corps of Engineers to pay him his salary, and he did not appeal to the Civil Service Commission with respect to the action of the Corps of Engineers in placing him in such a status or failing to pay him his salary.

16. (a) On March 20,1953, under the purported authority of Article 2(11) of the Uniform Code of Military Justice (10 U.S.C. § 802(11)), the plaintiff was brought to trial at Orleans, France, before a general court-martial appointed by Headquarters, USAREUR Communications Zone, United States Army.

(b) The plaintiff was charged with a violation of Article 118 of the Uniform Code of Military Justice. The specification of the charge alleged that:

* * * Albert H. Grisham, European Command, US Army, Orleans District Engineers, a person employed by the US Army and serving with the US Army outside the continental limits of the United States, did, at Orleans, France, on or about 6 December 1952, with premeditation, murder Dolly D. Grisham by means _ of striking her on the head and body with a bottle, striking her on the head and body with his fist, and kicking her on the head and body with his foot.

(c) When arraigned before the court-martial, the plaintiff (the accused in that proceeding) stood mute. The court-martial entered a plea of “Not Guilty” on behalf of the plaintiff.

(d) The plaintiff’s court-martial trial continued from March 20 until March 27, 1958. At the conclusion of the trial, the court-martial found the plaintiff “Guilty” of the specification, except the words “with premeditation” and “striking her on the head and body with a bottle,” there being a finding of “Not Guilty” relative to the excepted words; and the court-martial found the plaintiff “Guilty” of the charge.

(e) The court-martial sentenced the plaintiff to be confined at hard labor for the term of his natural life. The sentence was adjudged on March 27,1953.

17. While awaiting the processing of the plaintiff’s court-martial conviction in accordance with the provisions of the Uniform Code of Military Justice, the Army confined the plaintiff in Mannheim, Germany.

18. The plaintiff’s court-martial sentence was reviewed by the appointing authority, and was approved on July 8,1953.

19. In late July or early August of 1953, the plaintiff was transferred to the United States Penitentiary at Lewisburg, Pennsylvania. He was confined in that penitentiary for the next several years.

20. While confined in the United States Penitentiary at Lewisburg, Pennsylvania, the plaintiff worked in the prison industries. He received approximately $50 or $60 per month on the basis of such work. He usually sent some of tins money to his children, and he kept the remainder for the purchase of toilet articles and other personal items.

21. The plaintiff’s court-martial conviction was reviewed by a Board of Beview in the Office of the Judge Advocate General of the Army. The findings and sentence were affirmed by the Board on February 11,1954.

22. (a) On February 26,1954, the Nashville Engineer District prepared a Notification of Personnel Action (Standard Form 60) addressed to the plaintiff. The notification stated as follows:

Your separation for notorious misconduct will be effected at the close of business 28 February 1954.
This action is taken after your continued leave without pay since 24 February 1953, pending Court Martial Sentence, and your subsequent life sentence to Federal Prison for criminal action.

(b) Effective at the close of business on February 28,1954, the plaintiff was removed from his position as cost accountant, GS-9, with the Nashville Engineer District.

(c) The Notification of Personnel Action referred to in paragraph (a) of this finding was mailed by the Nashville Engineer District to the plaintiff, but it was never received by the plaintiff.

23. As of February 26, 1954, and for some time prior to that date, the defendant reasonably believed that the plaintiff had committed an act which could reasonably be classified as a crime for which he could have been imprisoned and which reasonably could be classified as notorious misconduct.

24. On petition, the United States Court of Military Appeals reviewed the plaintiff’s court-martial conviction. The court affirmed the findings and sentence on September 24, 1954.

25. In 1957, the plaintiff’s sentence was reduced by the Secretary of the Army from confinement for life to confinement for 35 years.

26. By means of a letter dated October 11, 1957 from an employee of the Nashville District, Corps of Engineers, and addressed to the plaintiff in the United States Penitentiary at Lewisburg, Pennsylvania, the plaintiff was informed that he had been officially removed from his civilian position effective at the close of business on February 28,1954. This was the first definite information received by the plaintiff concerning his removal. The plaintiff testified at the trial that, up until the receipt of the letter dated October 11,1957, he had assumed that he was being carried in a leave-without-pay status.

27. The plaintiff did not, at any time after receiving the letter dated October 11, 1957, or prior thereto, complain to the Corps of Engineers about his removal from his civilian position, or request that he be restored to such position.

28. The plaintiff did not, at any time after receiving the letter dated October 11,1957, or prior thereto, appeal to the Civil Service Commission relative to his removal from his civilian position.

29. (a) Following the second decision by the Supreme Court in the case of Reid v. Covert, 354 U.S. 1 (1957), the plaintiff on October 26, 1957 filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania. The petition was denied on April 22, 1958 (161 F. Supp. 112).

(b) The plaintiff appealed to the United States Court of Appeals for the Third Circuit. That court on November 20, 1958 (261 F. 2d 204) affirmed the judgment of the District Court.

(c) The Supreme Court reviewed the case on the plaintiff’s petition for certiorari. In a decision dated January 18, 1960 (361 U.S. 278), the Court reversed the judgment of tha Court of Appeals. The Court held that the attempt to apply the Uniform Code of Military Justice to a civilian employee serving with the Armed Forces outside the United States was unconstitutional as violative of Article III and the Fifth and Sixth Amendments.

(d) Throughout the proceedings referred to in this finding, the plaintiff was represented by an attorney who is of counsel for the plaintiff in the present action.

30. Pursuant to the decision by the Supreme Court mentioned in finding 29(c), the plaintiff was released from the United States Penitentiary at Lewisburg, Pennsylvania, on February 5,1960.

31. (a) In November 1957, the plaintiff submitted to the Civil Service Commission an application for the refund of the amount credited to him in the retirement fund. In his application, the plaintiff indicated that his service had ended on February 28,1954.

(b) Pursuant to the plaintiff’s application, the Civil Service Commission refunded to the plaintiff $1,996.43 representing deductions from his pay, plus interest of $423.12, or a total of $2,419.55.

(c) The plaintiff sent $1,000 of this money to his children, and out of the remainder he defrayed the expenses involved in the habeas corpus proceedings referred to in finding 29, including attorney’s fees.

32. (a) Following his release from the United States Penitentiary at Lewisburg, Pennsylvania, the plaintiff obtained a job in late March of 1960 as a salesman in the boys’ department of a clothing store operated by Levi Brothers in Louisville, Kentucky. In this job, he had a “draw,” or guaranteed wage, of $45 a week, plus certain premiums for selling slow-moving garments. He worked in this job from March until December of 1960. His pay did not exceed $50 in any week.

(b) In December 1960, the plaintiff obtained a slightly better job with the Richman Brothers Clothing Store in Louisville, Kentucky. In this job, he had a guarantee of $50 a week or commissions, whichever was higher. During the Christmas season, he made more than $50 a week, but not at other times.

(c) The plaintiff was still employed by Richman Brothers at the time of the trial. In March 1961, he was transferred from Louisville to a branch store in Glendale, California, and he was working in that store at the time when he filed his petition on November 15, 1962. During the period from March 1961 until November 1962, the plaintiff’s earnings were at an annual rate of from $4,500 to $4,800 per year.

33. (a) The plaintiff filed an application with the Army Board for Correction of Military Records for a hearing and relief.

(b) In a communication dated July 27,1961 and addressed to the plaintiff’s attorneys, the Executive Secretary of the Army Board for Correction of Military Records stated in part as follows:

The Army Board for Correction of Military Records has considered the application submitted by you for the correction of records of Mr. Albert H. Grisham and the brief submitted in support of that application. None of the matters urged by you are considered such errors or injustices as would require the correction of military records. Therefore, your request for a hearing and relief are denied.

34. As of the respective dates on. which the plaintiff was placed on leave without pay and removed from his civilian position, Section 4 of the Civilian Personnel Regulations promulgated by the Department of the Army contained the following provisions (among others):

(a) Subparagraph d of paragraph 4-1 stated in part that:
Each employee for whom an adverse action is proposed is entitled to an advance notice thereof and has a right to reply with a statement of reasons showing why the action should not be taken. * * *
(b) Subparagraph a of paragraph 4-2 stated that:
“Removal” is the action used in separating an employee on charges of delinquency or misconduct.
(c) Subparagraph c of paragraph 4-2 stated that:
Removals Will not be effective until the expiration of the advance notice prescribed in paragraph 4-1 á and appendix B, nor prior to the date the employee has received notice of the adverse decision.

35. (a) Appendix B to the Civilian Personnel Regulations promulgated by the Department of the Army was entitled “Job Protection Procedures.” Appendix B began with the following introductory statement:

The following procedures must be observed in processing any action discussed in section 4. The provisions of the requirement column apply to all employees without regard to type or tenure of appointment * * *.

(b) The requirement column of Appendix B provided as follows:

1. The employee must receive written advance notice identifying the proposed adverse action.
a. The advance notice must state any and all reasons, specifically and in detail, for taking the adverse action.
5. The advance notice must state the date when it is planned to make the proposed adverse action effective.
c. The advance notice must state that the employee has a right to reply personally and in writing. It also must state the time within which reply must be made, and the fact that the reply will be considered.
d. The advance notice must specify the employee’® status during the advance notice period.
e. The advance notice must be dated and signed.
2. There must be a decision made as to what action will be taken.
3. The employee will receive a written notice of the appointing officer’s decision.
a. Notice of decision must be dated and signed by the appointing officer, and the date stated when any adverse action will become effective.
3». The notice of decision must state the basis for the-decision.
c. Any notice of decision involving an adverse action must advise the employee of his appeal rights.

36. The parties stipulated at the pretrial conference, with the concurrence of the commissioner, that the initial trial would be limited to the issue of liability, and would not relate to the question of damages.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover and -the petition is, therefore, dismissed. 
      
      We are Indebted to Trial Commissioner Mastín G. White for his opinion, findings of fact and recommended conclusion of law submitted pursuant to the order of reference and Rule 57(a). We have adopted much of what the commissioner has written and arrive at the same result for different reasons.
     
      
       Plaintiff has withdrawn any claim for pay since he was released from prison on February 5, 1960 and from December 7, 1952 to February 23, 1953 when he was on annual leave status for which he was paid. Therefore, plaintiff’s claim Is for pay from February 24, 1953 to the date he was released from prison, i.e., February 5, 1960.
     
      
       “§ 918. Art. 118 Murder.
      “Any person subject to this chapter who, without justification or excuse, unlawfully hills a human being, when he—
      “(1) has a premeditated design to hill; * *
     
      
       “§ 802. Art. 2. Persons subject to this chapter.
      “The following persons are subject to this chapter:
      * * * * *
      “(11) * * * [Pjersons serving with, employed by, or accompanying the armed forces outside the united States * *
     