
    HARRY MAXWELL v. THE UNITED STATES
    [No. 43922.
    Decided March 3, 1941]
    
      Mr. Mahlon G. Masterson for the plaintiff. AnseM, Ansell (& Marshall on the brief.
    
      Mr. RawUngs Ragland, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.
   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 thereof. Cherry v. United States, 89 C. Cls. 318. Plaintiff contends that the Cherry case is not in point for the reason that there the enlisted man withdrew his application after he had been demoted, but no valid distinction can be drawn between the withdrawal of the application and a denial thereof because the enlisted man had not completed thirty years’ service.

Since plaintiff’s claim does not come within the provisions of the Act of March 2, 1907, the petition must be dismissed. It is so ordered.

GeeeN, Judge; and Whaley, Chief Justice, concur.

Whitaker, Judge, took no part in the decision of this case.  