
    JAMES T. MERCEREAU v. THE UNITED STATES
    [No. 240-60.
    Decided. July 19, 1961]
    
      John 8. Hears for the plaintiff.
    
      Charles M. Munnecke, with whom was Assistant Attorney General William II. Orrick, Jr., for the defendant.
   Pee Cuexam :

The plaintiff, a colonel in the United States Air Force, was honorably discharged on January 18, 1956, as the result of a series of unsatisfactory effectiveness reports. He then enlisted in the United States Air Force and while so serving filed an application with the Air Force Board for the Correction of Military Records, raising the issue of the propriety of the effectiveness reports and the validity of his discharge as a colonel. The Board recommended that the effectiveness reports be declared void and that the plaintiff’s military records be corrected to show that his appointment as colonel, Reserve of the Air Force, was not terminated on January 13, 1956, but remained in full force and effect until his retirement on January 31, 1960. Furthermore, the Board recommended that the records be corrected to show that the plaintiff was not released from active duty and discharged on January 13, 1956, but that plaintiff remained on active duty for all purposes until relieved by competent authority on January 31, 1960. The Secretary of the Air Force accepted the first part of the Board’s recommendations but decided that the records should be corrected to show that the plaintiff remained on inactive duty as a colonel from January 13,1956, to the date of his retirement. The plaintiff alleges error in this last act of the Secretary, and sues for the difference in active duty pay between that of a colonel and that which he received as an enlisted man for the period January 14,1956, to January 31, 1960.

Title 10 U.S.C. § 681 provides in part:

(a) Except as otherwise provided in this title, the Secretary concerned may at any time release a Reserve under his jurisdiction from active duty.

We believe that the Secretary, in modifying the recommendation of the Correction Board, acted within his statutory authority, as set out above, and such action was neither arbitrary nor capricious.

Defendant’s motion for summary judgment is granted. Plaintiff’s motion for summary judgment is denied. The petition will be dismissed.

It is so ordered.  