
    AUBREY I. EAGLE v. THE UNITED STATES
    [No. D-924.
    Decided February 14, 1927]
    
      On the Proofs
    
    
      Longevity pay; act of September H, 1922; neto pay period, during demotion. — The proviso in the act of September 14, 1922, 42 Stat. 840, 841, that “the discharge and recommission of officers in the nest lower grade shall not operate to reduce the pay or allowances which they are now receiving or to deprive them of credit for service now counted for purposes of pay or retirement,” does not give increased pay for future service, and where an officer who was a captain in the Army June 30, 1922, is demoted to the rank of first lieutenant November 18, 1922, while in his third pay period, he is not entitled after said period, if still in the lower grade, to increase of longevity pay that would have resulted if his service in the lower grade were counted as that of a captain.
    
      The Reporters statement of the case:
    
      Mr. George M. Wilmeth for the plaintiff. Mr. Samuel T. Ansell was on the brief.
    
      Mr. John, G. Ewing, with whom was Mr. Assistant Attorney General Merman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    
      I. The plaintiff, Aubrey I. Eagle, enlisted in the United States Army on October 13, 1917, as a private, first class, Aviation Section, Signal Enlisted Eeserve Corps, and served as such until July 10, 1918, when he was assigned to active duty as a first lieutenant, Signal Officers’ Eeserve Corps, to which he had accepted appointment December 20, 1917. He served as a first lieutenant until October 26, 1918, when he was appointed captain. He was discharged as a captain on November 18, 1922, and recommissioned in the grade of first lieutenant. He served as first lieutenant until November 7, 1924, when he was again commissioned captain.
    II. The plaintiff was paid during the period from November 18, 1922, to November 7, 1924, when he held the grade of first lieutenant at the rate of pay he was receiving when discharged as captain — that is, at the rate of $315 a month, which is base pay of $200 a month, flying pay of $100 a month, and longevity pay of $15 a month — which was the pay of a captain saved to him by the act of September 14, 1922, 42 Stat. 841, instead of at the rate of $166.66 base pay, $91.66 flying pay, and longevity of $16.66 a month, or $284.98 a month as fixed by section 1 of the act of June 10, 1922, 42 Stat. 625, 626, which he would have received had it not been for the proviso in the act of September 14, 1922.
    III. If plaintiff was entitled to receive an increase of 10%
    of his base pay and flying pay upon completion of 6 years of service, he was entitled to receive between the dates of October 13, 1923, and November 7, 1924, base pay at the rate of $200 per month, plus 50 per centum thereof for flying pay, or $300 per month, and a 5 per centum increase for each of the two three-year periods of service, or, in all, $330 per month, or a total increase for said period on account of longevity pay of $192 over the amount actually paid to and received by him. .
    The court decided that plaintiff was not entitled to recover.
   Hay, Judge,

delivered the opinion of the court:

The question for decision in this case is the proper construction to be given to the following provision contained in the act of September 14, 1922, 42 Stat. 840, 841, which reads as follows:

“ That the discharge and recommissioning of officers in the next lower grade shall not operate to reduce the pay or allowances which they are now receiving or to deprive them of credit for service now counted for purposes of pay or retirement.”

This is the case of a captain, demoted to the grade of first lieutenant, who was in the third pay period at the time of his demotion. The provisions of the act above cited permitted him to continue to be entitled to the pay of the third pay period he was entitled to at that time.

The plaintiff, however, claims that he is entitled to the longevity pay of a captain, while in the grade of first lieutenant, notwithstanding the fact that his longevity pay, or the part of it which he claims, accrued while he was serving as first lieutenant and not as captain. In other words, the plaintiff says that the effect of the statute is to give him longevity pay which he earned after his demotion. But in our opinion the statute precludes any increase in pay to accrue to him in the third pay period in the grade of captain upon his attaining a new pay period through service. When he was promoted to the grade of captain and not before was he entitled to any increase of pay over that which he drew after his demotion, unless through longevity in the grade of first lieutenant, and that pay he has received. The act certainly can not be construed as giving increased pay for future services, but insures to officers the pay and allowances which they were receiving at the time of the passage of the act, and no more.

The above is the interpretation given the statute by the War Department and the Comptroller General (8 Comp. Gen. 615), and we think that interpretation is correct.

The petition of the plaintiff must be dismissed. It is so ordered.

Moss, Judge; Gkaham, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  