
    EDWARD BOWDITCH, JR., v. THE UNITED STATES
    [No. C-482.
    Decided December 15, 1924]
    
      On the Proofs
    
    
      Army pay; aide-de-camp to General of the Armies; rank. — Plaintiff, . an officer in the Reserve Corps of tbe Army, while serving as an aide-de-camp to the General of the Armies was entitled to the rank, pay, ,and allowances of a colonel.
    
      The Reporter’s statement of the case:
    
      Mr. George A. King for the plaintiff. King <& King were on the briefs.
    
      Mr. John G. Ewing, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the defendant.
    The following are the facts as found by the court:
    I. Plaintiff was appointed major, Infantry Section, Officers’ Keserve Corps, August 15, 1917,’ accepted and was assigned to active duty same clay; was promoted lieutenant colonel of Infantry November 5,1918; honorably discharged April 5, 1920; appointed major of Cavalry July 1, 1920, and accepted November 24, 1920, and is still such major of Cavalry. The plaintiff served from August 15, 1917, to April 5, 1920, in the forces provided for in the act approved May 18, 1917, 40 Stat. 76.
    II. May 1, 1918, by order of Gen. John J. Pershing, plaintiff was appointed aide-de-camp on his personal staff, and continued to serve as such until April 5, 1920, when he was honorably discharged as lieutenant colonel of Infantry. During all that period General Pershing held first the rank of general under section 3 of the act of October 6, 1917, 40 Stat. 410, and from September 3, 1919, the office of General of the Armies of the United States under the act of that date, 41 Stat. 283.
    III. If the plaintiff is entitled to the pay and allowances of a colonel during the time he so served he would receive an additional sum of $1,659.49.
    The court decided that plaintiff ivas entitled to recover.
   Hat, Judge,

delivered the opinion of the court:

This is a suit brought by an officer of the Army for the pay and allowances of a colonel during the period of. his service as aide to Gen. John J. Pershing, United States Army, from May 1, 1918, to April 5, 1920. During the period from May 1, 1918, to April 5,1920, General Pershing held the rank of General under section 3 Of the act of October 6, 1917, 40 Stat. 410, and the office of General of the Annies of the United States, under the act of September 3, 1919, 41 Stat. 283. . • ■

The plaintiff at the time he was appointed aide-de-camp on the personal staff of General Pershing was a major, Infantry Section, Officers’ Reserve Corps; and was on November 5, 1918, appointed a lieutenant colonel of Infantry in the same corps. ■ . .

The Revised Statutes, section 1096 provides: “The General may select from the Army such number of aides, not exceeding six, as he may deem necessary, who shall have, while serving on his staff, the rank of Colonel of Cavalry.”

In the national defense act, 39 Stat. 166, the Army of the United States is defined as follows: “That the Army of the United States shall consist of the Regular Army, the Volunteer Army, the Officers’ Reserve Corps, the Enlisted Reserve Corps, the National Guard while in . the service of the United States, and such other' land forces as are now or may hereafter be authorized by law.”

By the act of May 18, 1917, 40 Stat. 82, it is provided:

“ That all officers and enlisted men of the forces herein provided for other than the Regular Army shall be in all respects on the same footing as to pay, allowances, and pen-"] sions, as officers and enlisted men of corresponding grades . and length of service in the Regular Army.” "

When the plaintiff was appointed as aide to General Pershing under section 1096 of the Revised Statutes General Pershing had by -that law the right to appoint six aides, who when appointed and while so serving were entitled to the rank'' of ■ colonel of Cavalry. The plaintiff when he was appointed an aide was a major in the Officers’ Reserve Corps J and was, rinder the provisions of the national defense act, a hiembér of the Army Of the' United' States. The General of the Armies had the right to make the appointment, and the plaintiff had the qualifications which made him eligible to such appointment.

That being so, is he entitled to receive the pay and allowances of the rank of colonel ?

In a well-considered opinion, Judge Richardson in the case of Wood v. United States, 15 C. Cls. 151, 160, says: “And all officers, whether on the active or retired list, are paid according to their rank.” This decision was affirmed by the Supreme Court, 107 U. S. 414.

The pay of the officer is determined by his rank.

The plaintiff having been regularly appointed as aide, and holding by law the rank of colonel, is entitled to the pay and allowances of a colonel while serving as such aide. Quekemeyer case, 27 Comp. Dec. 275, 279.

A judgment will be entered in favor of the plaintiff. It is so ordered.

Graham, Judge; DowNey, Judge; Booth, Judge, and Campbell, Ghief Justice, concur.  