
    FRANK G. KUTZ v. THE UNITED STATES
    [No. 291-52.
    Decided June 7, 1955]
    
      
      Mr. Fred, W. Shields for the plaintiff. Messrs. King <& King were on the briefs.
    
      Mr. Lawrence 8. Smith, with whom was Mr. Assistant Attorney General Warren E. Burger, for the defendant.
   Laramore, Judge,

delivered the opinion of the court:

This case involves the right of a retired naval officer to receive increased retired pay under a special statute providing for certain benefits to naval officers who were specially commended for performance of duty in actual combat.

Plaintiff is a retired naval officer who served as such during World War I, having retired in 1925, with the rant of lieutenant commander. In 1918 he was serving aboard the IT. S. S. San Diego when that vessel sank off the coast of Long Island, New York, on July 19, 1918.

In September 1918, plaintiff received a letter from the Acting Secretary of Navy commending him for his conduct upon the occasion of the sinking of the ship, as follows:

1. The Department is in receipt of the report of the Commanding Officer of the IT. S. S. San Diego, relative to the conduct of the officers and men of that vessel on the occasion of the sinking of the same on July 19,1918, and takes pleasure in quoting the following letter for your information:
“I have to report that Lieutenant F. G. Kutz, IT. S. Navy, showed unusual coolness and presence of mind in time of peril.
“On the occasion of the loss of the IT. S. S. Sam, Diego, July 19, 1918, this officer who was serving as the 1st Division Officer, in charge of the forward part of the ship, showed exceptional poise in carrying out his routine duties before the ship sank; and later in the water while getting the boats which had floated clear, in working condition, his conduct was such as to inspire confidence in those about him which undoubtedly resulted in the saving of life.
“It is my opinion that this officer’s conduct was specially meritorious and deserving of commendation from higher authority.”
2. You are, accordingly, hereby highly commended for your exemplary conduct and bearing on the occasion described above, thereby rendering all assistance possible to your Commanding Officer under exceedingly trying conditions.
3. A copy of tbis letter will be filed with, your official efficiency record.

Plaintiff retired in 1925 and has been receiving 55 percent of the active-duty pay of a lieutenant commander. When plaintiff retired, he requested the Navy Department to accord him the benefits of section 30 of the Act of March 4, 1925, 43 Stat. 1279, by virtue of his 1918 commendation in connection with the sinking of the U. S. S. San Diego. However, the Navy Department ruled that plaintiff had not been in actual combat with the enemy at the time of the sinking of the ship and was not, therefore, eligible for the benefits of the statute.

In 1950, plaintiff requested the Navy Department to advance him to the next higher rank, that of commander, on the retired list, under the provisions of section 412 (a) of the Officer Personnel Act of 1947, 61 Stat. 795. Plaintiff made reference in his request to the promotion of Hear Admiral Harley H. Christy under the same statute.

The Navy Board for Decorations and Medals reconsidered plaintiff’s case and advised the Secretary of Navy that it was of the opinion that plaintiff’s 1918 commendation on the occasion of the sinking of the U. S. S. San Diego was one for performance of duty in actual combat with the enemy. It recommended that he be “accorded the benefits accruing by law to those officers who have been so commended.” This recommendation was approved by the Assistant Secretary of Navy for Air on April 15,1950.

The redetermination of the Navy Board for Decorations and Medals in 1950 was based solely on the action taken in the case of Bear Admiral Harley H. Christy, who had likewise been commended for his performance of duty upon the occasion of the sinking of the U. S. S. Scan Diego. In 1942, after he had retired, the Navy Department ruled that this commendation was not one for performance of duty in actual combat. Thereafter, Bear Admiral Christy several times requested the Navy Department to reconsider his case. On four separate occasions it adhered to its prior ruling that the commendation was not one for performance of duty in actual combat.

In 1949, Admiral Christy again requested the Navy Department to reconsider his case. The Navy Board for Decorations and Medals at that time had before it the following statement from the British Admiralty:

* * * according to German sources U-156 sailed on her last cruise on the 18th June 1918, and was sunk by a mine in the American Northern Barrage on the 25 September. This confirms intelligence from our own sources that the submarine was probably sunk in the Northern Barrage Area A on that day.
Previous to her loss she had claimed to have destroyed 41,600 tons during her cruise including the U. S. S. 8an Diego.
According to “The German Submarine War 191T-1918” by Gibson and Prendergast the San Diego struck a mine laid by U-156 but we consider this incorrect. U-156 was not a mine layer and in any event no German mine was laid west of 9° W. in 1918. We think it is beyond doubt that the ship was torpedoed and sunk by the U-156.
There is no evidence that there were any survivors from the submarine.

Based on this data, the Board recommended that Admiral Christy’s commendation be readjudicated to one for performance of duty in actual combat. This recommendation was subsequently, on January 4, 1950, adopted by the Assistant Secretary of Navy for Air.

On June 12,1950, the Secretary of the Navy advised plaintiff that the recommendation of the Board for Decorations and Medals that he “be considered eligible for the special benefits accruing by law to those officers who have been specially commended for performance of duty in actual combat” had been approved. He was accordingly advanced on the retired list to the rank of commander, effective August 7, 1947. The Secretary of the Navy advised plaintiff by letter that this action was being taken pursuant to “Title 34, U. S. Code, Section 410n.”

In this suit, plaintiff seeks the difference between retired pay at the rate of 55 percent and 75 percent of the active-duty pay of a lieutenant commander.

Plaintiff retired January 18, 1925, as a lieutenant commander, under the Act of August 29, 1916, 39 Stat. 579. Under this act he was entitled to retired pay at two and one-half percentum times years of service. Since plaintiff has been receiving retired pay at the rate of 55 percent, a mathematical conclusion is that he retired with 22 years of service.

Plaintiff’s first request that he be accorded the benefits of section 30 of the Act of March 4, 1925, supra, that is to say that he be given advanced rank at 75 percent of his then pay because of his 1918 commendation, was denied by the Navy Department. In 1950, plaintiff again requested that the Navy Department advance him to the next higher rank, that of commander, and the Navy Department held that he qualified under section 412 (a) of the Officer Personnel Act of 1947, supra. In the meantime, however, the 1947 Act had been amended by the Career Compensation Act, infra, to strike the 75 percent provision as of October 1, 1949.

Defendant contends (1) that the 1947 provision had been repealed before the action of the Navy Department and (2) that the Navy Department’s decision as to combat was not conclusive in that it was not based upon substantial evidence of probative value.

Sections 519 and 520 of the Career Compensation Act of 1949, 63 Stat. 802, 834, provides as follows:

Sec. 519. Any member or former member of the uniformed services or any person entitled to the rights, benefits, and privileges of a member or former member of the uniformed services, including any person entitled to the benefits provided in the Act of May 7, 1948 (62 Stat. 211), who on the date of enactment of this Act, is receiving or is entitled to receive retired or retirement pay pursuant to any provision of law, shall, notwithstanding the provisions of this Act, be entitled to continue to receive or shall continue his entitlement to receive that retired or retirement pay which such member or former member is entitled to receive under any provision of law in effect on the day preceding date of enactment of this Act.
Sec. 520. Any provision of law which, on the date of enactment of this Act, entitles any person to be retired, to receive pay, retired pay, retirement pay, or retainer pay, or other monetary benefit, and which is directly repealed, impliedly repealed, or amended by the provisions of this Act, shall, if the entitlement of such person to such, retirement, pay, retired pay, retirement pay, retainer pay, or other monetary benefit is saved by the provisions of this Act, be continued in full force and effect for such entitlement and for such a time as such entitlement may exist.

It is apparent from the above sections that repeal of the 75 percent provision of the 1947 Act did not take away a right which the officer had, but which the Navy had previously erroneously denied him. In fact, the Congress specifically prevented this by enacting sections 519 and 520, supra.

The second ground relied on by the defendant, that the Navy’s redetermination of plaintiff’s commendation was not based upon substantial evidence of probative value, we believe to be unfounded. The Naval Board for Decorations and Awards, which was created for the express purpose of determining such facts, held that the evidence in question was substantial evidence of sufficient probative value to justify a redetermination of plaintiff’s commendation. Its findings and opinion were concurred in and approved by the Assistant Secretary of the Navy, whose action was final as far as the Navy was concerned. It is true that “While the information introduced to the Board in this case does not prove beyond a reasonable doubt that the U. S. S. San Diego was sunk by an enemy submarine, * * However, this is not a criminal action and we believe the Board correctly ruled “that the conflicting information be resolved in favor of the beneficiary * * and the question of “reasonable doubt” would not enter into it. Another interpretation of the rules of evidence would not and could not serve the ends of justice.

Thus, we are met with the inescapable conclusion that plaintiff is entitled to recover the difference in the retired pay received by him since August 7, 1947, and retired pay computed on the basis of 75 percent of his active-duty pay as a lieutenant commander which he received at the time of retirement.

Entry of judgment is suspended pending the filing of a report by the General Accounting Office showing the amount due the plaintiff in accordance with this decision.

Madden, Judge; Whitaker, Judge; Littleton, Judge; and Jones, Chief Judge, concur.

FUSTDISTGS OF FACT

The court, having considered the evidence, the report of Commissioner C. Murray Bernhardt, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff is a citizen of the United States and a resident of the state of California.

2. The plaintiff served as a commissioned officer in the United States Navy during World War I, and continued on active duty therein until on or about January 29,1925, when he was placed on the retired list with the rank of Lieutenant Commander under the provisions of the act of August 29, 1916,39 Stat. 579.

3. In July 1918 a Navy Court of Inquiry investigated the sinking of the U. S. S. SAN DIEGO, which had occurred on July 19, 1918, and those proceedings, including the Court’s findings of fact and opinion, were approved by the Secretary of the Navy on September 18, 1918. These findings and opinion have never been officially modified, altered, amended or revoked.

The Court of Inquiry’s findings of fact include the following :

7. That at or about 11:05 a. m. 19 July 1918, an explosion took place in proximity of the skin of the ship, at about Frame No. 78, on the port side and well below the water line.
8. There is no conclusive evidence that a submarine, torpedo, or periscope was sighted, although fire was opened on suspicious objects.
* * * * *
16. That the ship was abandoned in good order, and excellent discipline prevailed. Gun crews remained at their guns and continued firing at all suspicious objects until they were forced to jump into the water. That the captain was the last to leave the ship.
*****
19. That the steamships “Malden” Captain Brown, “Bussun” Captain Brewer and “F. P. Jones” Captain Dodge, hove in sight later and rescued the men in the water and transported them to New York.
20. That the captains of these steamers showed courage and a splendid spirit in taking their ships into these waters, where a submarine had apparently been operating, and deserve commendation for their actions and it is recommended that suitable acknowledgement be made by the Navy Department of their gallantry.
21. That on the day subsequent to this disaster six contact mines were located by the Naval Forces in the vicinity of the position where the disaster to the TJ. S. S. SAN DIEGO occurred.

The Court of Inquiry concluded that “* * * the loss of the TJ. S. S. SAN DIEGO was due to an external explosion of a mine.”

4. On September 13, 1918, the Acting Secretary of the Navy wrote plaintiff as follows:

1. The Department is in receipt of the report of the Commanding Officer of the TJ. S. S. SAN DIEGO, relative to the conduct of the officers and men of that vessel on the occasion of the sinking of the same on July 19, 1918, and takes pleasure in quoting the following letter for your information:
“I have to report that Lieutenant F. G. Kutz, U.S. Navy, showed unusual coolness and presence of mind in time of peril.
“On the occasion of the loss of the U. S. S. San Diego, July 19, 1918, this officer who was serving as the 1st Division Officer, in charge of the forward part of the ship, showed exceptional poise in carrying out his routine duties before the ship sank; and later in the water while getting the boats which had floated clear, in working condition, his conduct was such as to inspire confidence in those about him which undoubtedly resulted in the saving of life.
“It is my opinion that this officer’s conduct was specially meritorious and deserving of commendation from higher authority.”
2. You are, accordingly, hereby highly commended for your exemplary conduct and bearing on the occasion described above, thereby rendering all assistance possible to your Commanding Officer under exceedingly trying conditions.
3. A copy of this letter will be filed with your official efficiency record.

5. On or about July 28,1925, the Navy Department acted on the request of plaintiff that he be accorded the benefits of section 30 of the act of March 4, 1925, 43 Stat. 1279, by virtue of his commendation of September 13,1918, for performance of duty aboard the U.S.S. San, Diego when that ship sank on July 19,1918, but the Navy Department, at that time, determined that the plaintiff had not been in actual combat with the enemy on that occasion and was not therefore, eligible for the benefits of the said statute.

6. On February 2, 1950, plaintiff, by letter addressed to the Chief of Naval Personnel, requested that, because of his commendation of September 13, 1918, upon the occasion of the loss of the U.S.S. San, Diego on July 19, 1918, he be advanced on the retired list to the next higher grade; namely, to the rank of Commander, pursuant to the provisions of Public Law 381,80th Congress.

7. On March 22, 1950, the Navy Department Board of Decorations and Medals advised the Secretary of the Navy as follows:

The Board has reconsidered the case of Lieutenant Commander Frank Gunnell Kutz, U.S. Navy (Bet.) (6654) and is of the opinion that he has been specially commended for his performance of duty in actual combat by the Head of the Executive Department under whose jurisdiction such duties were performed. The Board, therefore, recommends that he be accorded the benefits accruing by law to those officers who have been so commended.

On April 15,1950, the opinion and recommendation of the Navy Department Board of Decorations and Medals were approved by John F. Floberg, Assistant Secretary of the Navy for Air.

8. On June 12, 1950, the Secretary of the Navy advised plaintiff as follows:

1. The Navy Department Board of Decorations and Medals has considered your case, and the recommendation of the Board that you be considered eligible for the special benefits accruing by law to those officers who have been specially commended for performance of duty in actual combat was approved on 15 April 1950. In view thereof, I take pleasure in forwarding herewith the enclosed certificate of advancement in accordance with the provisions of reference (a) to be effective from 7 August 1947

The certificate of advancement referred to in the Secretary of the Navy’s letter of June 12,1950, provided as follows:

Know Ye, that Frank Gunnell KUTZ having been specially commended for his performance of duty in actual combat by the head of the executive department under whose jurisdiction such duty was performed was, on 7 August 1947 placed upon the retired list of the United States Navy with the rank of Commander.
Done at the City of Washington this 12th day of June in the year of our Lord One Thousand Nine Hundred and Fifty and of the Independence of the United States of America the One Hundred and Seventy-Fourth.

9. The action of the Board of Decorations and Medals of the Navy Department in plaintiff’s case was based solely and exclusively upon the action taken in 1949 upon the reconsideration of the case of Bear Admiral H. H. Christy, U.S.N. (Ret.), who had also been commended for his performance of duty upon the occasion of the sinking of the U.S.S. Scun Diego on July 19,1918.

10. On May 1, 1942, the Navy Department notified Rear Admiral Christy that the commendation received by him upon the occasion of the sinking of the U.S.S. San Diego in 1918 did not indicate that it was for performance of duty in actual combat with the enemy and, therefore, he was not eligible for advancement upon the retired list.

11. Thereafter, on successive occasions, the Navy Department reviewed Rear Admiral Christy’s application for eligibility for advancement to rank of Vice Admiral on the retired list, and in each instance ruled adversely on the grounds that his commendation had not been based upon performance of duty in actual combat with the enemy, since the commendation itself had disclosed that the U. S. S. San Diego had been sunk by a mine.

12. In 1949 Rear Admiral Christy’s application was again reconsidered in the light of newly-discovered evidence. Under date of December 20, 1949, the Board of Decorations and Medals reversed its prior ruling in the following letter to the Secretary of the Navy, recommending that Admiral Christy’s application be granted:

1. Since the adjudication of the case of Rear Admiral H. H. Christy, U. S. Navy, (Retired) in which, under date of 10 October 1946, he was not approved by the Secretary of the Navy for advancement on the retired list, the Board of Decorations and Medals is in receipt of additional pertinent information from the files of the British Admiralty via the Director of Naval Records and History. This information is quoted herewith and is further attached hereto as Enclosure (A).
“according to German sources U-156 sailed on her last cruise on the 18th June, 1918, and was sunk by a mine in the American Northern Barrage on the 25th September. This confirms intelligence from our own sources that the submarine was probably sunk in the Northern Barrage Area A on that day.
Previous to her loss she had claimed to have destroyed 41,600 tons during her cruise including the U. S. S. SAN DIEGO.
According to “The German Submarine War 1914-1918” by Gibson and Prendergast the SAN DIEGO struck a mine laid by U-156 but we consider this incorrect. U-156 was not a mine layer and in any event no German mine was laid west of 9° W. in 1918. We think it is beyond doubt that the ship was torpedoed and sunk by the U-156.
There is no evidence that there were any survivors from the submarine.”
2. The Court of Inquiry, reference (c), in its findings of facts stated: “(8) There is no conclusive evidence that a submarine torpedo or periscope was sighted although fire was opened on suspicious objects.”
3. The Board is unable to fix the position of the U-156 at the time of the SAN DIEGO sinking, since that submarine was lost on her passage homeward on 25 September 1918, and no records or personnel are known to have been saved. However, the crew of the U-156 allegedly stated to the British Motor Schooner “Domfontein” on 2 August 1918, that the U-156 had sunk the SAN DIEGO, (Enclosure (D), sub-paragraph Y). This is further borne out by the above-quoted report from the British Admiralty.
4. The Letter of Commendation from the Secretary of the Navy dated 5 August 1918 to Captain H. H. Christy states in part “* * * at the time of the sinking of that vessel by enemy submarine on July 19 * * * the Department accordingly hereby commends you * *
5. The Board notes that the citation for the Distinguished Service Medal, Enclosure (E), uses the words “* * * at the time the SAN DIEGO was struck by a mine and sank.” However, the Court of Inquiry, reference (c) gave as its opinion and not as a fact “that the loss of the USS SAN DIEGO was due to an external explosion of a mine.” It is believed that the above opinion of the Court of Inquiry has been the determining factor in the three previous unfavorable recommendations of the Board.
6. While the new information introduced to the Board in this case does not prove beyond a reasonable doubt that the U. S. S. SAN DIEGO was sunk by an enemy submarine, it does lend considerable weight to Admiral Christy’s persistent contention that this was the case. This information, therefore, serves to weaken the opinion of the Court of Inquiry, namely, that the SAN DIEGO sank as a result of an external explosion of a mine. The fact that conflicting citations were awarded Admiral Christy, as set forth in paragraphs 4 and 5 above, serves only to confuse the issue.
7. The Board has taken cognizance of the principle cited in paragraph 9 of reference (b) that: “beneficial statutes are to be liberally construed.” The Board is of the opinion that a favorable recommendation in this case may be indicated by such doctrine.. After careful study, the Board is further of the opinion that no one will ever know definitely the cause of the SAN DIEGO'S sinking.
8. In view of the absence of positive proof of the manner in which the U. S. S. SAN DIEGO was sunk, the Board believes that the action taken by the Secretary of the Navy will be in accordance with the law in the event he does or does not determine that this case constitutes special commendation for performance of duty in actual combat within the meaning of the statute. Information thus far brought to light will support either finding.
9. In view of the foregoing, the Board therefore reviews this case again and recommends that the conflicting information be resolved in favor of the beneficiary and that Bear Admiral H. H. Christy, U. S. Navy, (Be-tired), be accorded the benefits accruing by law to those officers who have been specially commended for their performance of duty in actual combat by the Head of the Executive Department under whose jurisdiction such duties were performed, for his services as Commanding Officer of the TJ. S. S. SAN DIEGO on 19 July 1918.
10. A copy of the citation considered by the Board is enclosed herewith, Enclosure (B).

13. Plaintiff’s claim for the retirement pay sought in this suit, filed with the Comptroller General, was on March 10, 1952, duly denied.

14. The parties agree that, if plaintiff is found to be entitled to recover, the amount due him is subject to computation by the General Accounting Office.

CONCLUSION OE 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 entitled to recover.

Entry of judgment is suspended pending the filing of a report by the General Accounting Office showing the amount due the plaintiff in accordance with this decision.

In accordance with the opinion of the court, and on a report by the General Accounting Office showing the amount due thereunder, it was ordered November 8,1955, that judgment for the plaintiff be entered for $6,956.60.  