
    388 F. 2d 685
    DONALD S. HOLLOWAY v. THE UNITED STATES
    [No. 411-65.
    Decided December 15, 1967]
    
      
      Thomas H. King, attorney of record, for plaintiff. Neil B. Kabatchnich, of counsel.
    
      Charles M. Munneche, with whom was Assistant Attorney General EdwinL. Weisl,Jr., for defendant.
    Before CoweN, Chief Judge, Laramore, Dureee, Davis, ColliNS, SkeltoN, and Nichols, Judges.
    
   Per Curiam :

This case was referred to Trial Commissioner Richard Arens with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed on March 22, 1967. Exceptions to the commissioner’s report and opinion were filed by defendant, and the case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court is in agreement with the opinion, findings, and recommendation of the commissioner, with one slight modification, it hereby adopts the same as modified as the basis for its judgment in this case, as hereinafter set forth. Plaintiff is, therefore, entitled to recover and judgment is entered for plaintiff with the amount of recovery to be determined pursuant to Buie 47 (c).

OPINION OF COMMISSIONER

Arens, Commissioner:

This case involves the action of the Air Force Board for the Correction of Military Becords, pursuant to which plaintiff’s military records were corrected to show that he served on active duty for an additional day. The controversy concerns the results which should follow from the correction.

The facts, which are detailed in the findings, as derived from a stipulation and accompanying exhibits, may be summarized as follows:

On May 18, 1943, plaintiff was inducted into the United States Army and, after having been given a physical examination, was on the same date, released from active duty and transferred to the Enlisted Beserve Corps.

On June 2, 1943, he was recalled to active duty and, after successfully completing Aviation Cadet training, was commissioned a Second Lieutenant on December 23, 1944. He then served continuously on active duty until May 31,1961, when he was involuntarily released in the grade of Captain, having twice failed of selection for promotion to the grade of temporary Major. In the meantime, on September 9, 1958, plaintiff had been promoted to the grade of permanent Major under the provisions of the Beserve Officer Personnel Act.

At the time of plaintiff’s release from active duty on May 31, 1961, it had been administratively determined that he was not entitled to count the date of his induction, May 18, 1943, as a day of active service, that he was therefore one day short of completing 18 years active military service and that he therefore could not qualify under those provisions of Air Force Begulation 36-12 which relate to the retention of officers, twice passed over for promotion, who have 18 or more years of active service.

Prior to his release from active duty, plaintiff had initiated action challenging the validity of the foregoing administrative determination, and subsequent to his release he filed a hlalm for active duty pay for May 18,1943. This claim was allowed and paid to him on April 9,1962. Thereafter, plaintiff requested that further consideration be given to his contention that May 18, 1943, should be credited to his records as a day of active service, but in September 1962 the prior administrative determination, adverse to plaintiff’s contention, was reaffirmed.

On October 29,1962, plaintiff enlisted in the United States Air Force for a term of 4 years and served on active duty in an enlisted status as an Airman First Class until November 30,1964.

In May 1964, plaintiff filed an application with the Air Force Board for the Correction of Military Records, in which he requested: “That my records be corrected to show that I served in an active duty and pay status on and prior to May 18, 1943 and that I have been in an active commissioned status from May 31,1961.” He further stated in his application: “I was not given credit for the time on active duty from induction date in 1943 to the date I was released from active duty to await Cadet training. This would have given me over 18 years service and I would have been retained on active duty.”

On November 30, 1964, plaintiff was relieved from active duty in the Air Force, at which time he had served on active duty in USAF for 2 years, 1 month and 1 day; and on December 1,1964, he was retired in the grade of Major, with a total of 20 years, 1 month and 1 day of active service for retirement and 21 years, 6 months and 13 days of service for basic pay purposes.

On March 23,1965, the Air Force Board for the Correction of Military Records found that plaintiff was, for all intents and purposes, on active duty on the date of his initial induction, to-wit: May 18, 1943, and that it was error to fail to credit him with that day of active duty; that on May 31, 1961, the date plaintiff was released from active duty, he had completed 18 years active service and was entitled to be retained in the service, under the authority of AFR 38-12, until he could qualify for retirement upon completion of 20 years active service; and that his records should be corrected to show that he was not released from active duty on May 31, 1961 (the date on which he had been involuntarily released in the grade of Captain), but instead was continued on active duty in the grade of Captain until May 31, 1963, on which date he was released from active duty and was retired in the grade of Major, effective June 1, 1963. The Board further found that the 2 years and 1 month service which plaintiff performed as an Airman First Class would be regarded as de facto service, and that he would not be given credit therefor. In April 1965, the findings and recommendations of the Board were approved by the Assistant Secretary of the Air Force and implemented by an order of the Air Force. Thereafter, plaintiff was tendered the monies due under the corrective action, but he declined to accept them.

In a request to the Board for reconsideration which was denied, plaintiff contended, and in this court he contends that his records should have been corrected to show that he continued to serve on active duty in the grade of Captain from May 31, 1961 (the date on which he was involuntarily released from active duty in the grade of Captain) until November 30,1964 (the date on which he was relieved from duty as an Airman First Class in the Air Force), and that he was retired in the grade of Major on December 1,1964. At the very least, plaintiff contends, he should have been allowed additional credit for his enlisted status from June 1,1963 to November 30, 1964, with a corresponding time addition in computing his retirement.

In this court plaintiff seeks the monetary benefits which would result from the corrective action to which he hialms entitlement. The parties have stipulated that there was at all pertinent times no statutory prohibition or any departmental regulation, precluding a Reserve officer such as plaintiff from remaining on active duty during the time interval between May 31, 1963 to November 30, 1961:; but that in no event is plaintiff entitled to recover active duty pay allowances beyond November 30,1964.

The principal question presented is simply what terminal date should the Board have used for plaintiff’s status as a Captain. The Board chose May 31, 1963, because that was the date on which plaintiff, if he had not been erroneously discharged, would have completed 20 years active service and would have qualified for retirement. The fact is, however, that plaintiff, as a Reserve officer was not precluded from remaining on active duty from May 31, 1963 until November 30, 1964, during which time he was actually serving on active duty and subj ect to the Uniform Code of Military Justice, even though only in the status of an Airman First Class. The fiction which the Board adopted of regarding this latter service as “de facto” service for which plaintiff would not be given credit, is not only without foundation in fact, but no authority has been cited to sustain it by way of legal presumption. At this juncture, defendant argues that the Board awarded plaintiff all that he sought, namely, the opportunity to complete 20 years of service. It is clear that defendant gives too narrow an interpretation to plaintiff’s application to the Board, and that only by a strained construction could it be said that he limited the relief which he sought to a maximum of 20 years of service. Plaintiff’s application to the Board (pertinent parts of which are quoted in finding 9) did not contain a terminal adjustment date. At the time of the filing of his application on May 23, 1964, plaintiff was actually serving in the Air Force and the chief issue with which he was concerned was simply whether the date of initial induction, May 18,1943, should be counted as a day of active service. The remaining issues hinged on a resolution of this chief issue and on the then undetermined date of his actual relief from active service. When, following plaintiff’s relief from active service in the Air Force, the Board findings and recommendations were issued and implemented, plaintiff in his request for reconsideration asserted the same entitlement which he asserts in this court.

The crucial facts in the instant case are similar to those in Motto v. United States, 172 Ct. Cl. 192, 348 F. 2d 523 (1965), in which the plaintiff, therein, an officer of the United States Army, was notified by Army authorities on September 8, 1958, that he had ceased to be an officer as of July 11, 1958, at which time he had been sentenced under a plea of guilty in a United States District Court to a charge of violation of a Federal bribery statute. In March 1961, the District Court ordered the withdrawal of his plea of guilty and vacated the sentence. In August 1961, he filed an application for correction of military records and a claim for back pay with the Army Board for Correction of Military Records. This application sought his reinstatement, or in the alternative, a change of his original dismissal into an honorable discharge as of the date of the change. The request for back pay and allowances covered the period from the date of dismissal from the service to the date of decision by the Board. On August 17, 1963, he received a notice of final disposition of his case from the Under Secretary of the Army in which the original dismissal was declared to be null and void, and in which it was directed that his records were to be corrected to show that he remained in the active military service until September 8, 1958, at which time he was honorably relieved from active duty and transferred to the Army Reserve. In considering the plaintiff’s claim for active duty pay and allowances, this court ruled that when the Under Secretary of the Army rendered plaintiff’s original dismissal null and void, he could not arbitrarily choose a date (September 8,1958) as a date of the plaintiff’s relief from active duty, and that in doing so, the Under Secretary clearly abused his discretion and acted contrary to law. The court then ruled that the plaintiff could not have been legally discharged, at least until the date of the decision of the Under Secretary, and that he was, therefore, entitled to back pay from the date of his illegal discharge on July 11, 1958, until his service was legally terminated on August 17,1963.

Defendant attempts to distinguish the instant case from Motto on the ground that it cannot be said that the selection of May 31, 1963, as plaintiff’s retirement date was an arbitrary action because it was the date on which plaintiff quali-fled for retirement pay, with 20 years active service. This ignores, however, the fact that plaintiff was on May 31,1963, actually serving in the Air Force and continued to serve therein until November 30, 1964, which was the date on which his service was legally terminated.

It is concluded that the action of the Air Force Board for the Correction of Military Records, as implemented, was arbitrary and that plaintiff’s records should have been corrected to show his release from active duty in the grade of Captain on November 30, 1964, and his retirement in the grade of Major on December 1,1964.

Subject to determination under Rule 47(c), and taking-account of appropriate offsets, plaintiff is entitled to:

(1) active duty pay and allowances as a Captain, USAF, from May 31, 1961 to November 30, 1964, less such pay and allowances paid to him by defendant from October 29,1962 to November 30,1964; and
(2) retirement pay of a Major computed on 21 years, 6 months and 13 days of service, less such retirement pay paid to him by defendant.

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

FindiNgs of Fact

1. Plaintiff, a resident of the State of Arizona, and an adult citizen of the United States, was born on December 28, 1923.

2. On May 18, 1943, plaintiff:

(a) was inducted into the United States Army;
(b) underwent an Army physical examination at Fort Sam Houston, Texas; and
(c) was released from active duty and transferred to the Enlisted Reserve Corps of the United States Army.

3. (a) On June 2, 1943, plaintiff was recalled to active duty.

(b) On December 23,1944, having successfully completed Aviation Cadet training, he was commissioned a Second Lieutenant, and thereafter served continuously on active duty in a commissioned status until May 31, 1961.

(c) On September 9, 1958, he was promoted to the grade of permanent Major under the provisions of the “Reserve Officer Personnel Act of 1954.”

4. (a) Prior to his release from active duty on May 31, 1961, plaintiff initiated action to have his service recomputed in order to establish that he would complete 18 years of active service on May 31,1981 (thereby bringing him within the purview of Air Force Regulation 36-12 permitting the retention of officers twice passed over, and having 18 years of active service, to remain on active duty until they would qualify for retirement with over 20 years service).

(b) On or about May 17, 1961, it was administratively determined that he was not entitled to count the date of his induction, May 18,1943, as a day of active duty.

5. On May 31, 1961, plaintiff was:

(a) involuntarily released from active duty in the grade of Captain, having twice failed of selection for promotion to the grade of temporary Ma j or;
(b) credited with active military service from June 2, 1943, which, as of May 31, 1961, was then 17 years, 11 months and 29 days of service; and
(c) credited with 18 years, 0 months, and 13 days total service, computed from the date of his induction on May 18, 1943.

6. On June 1,1961, plaintiff was transferred to the United States Air Force Standby Reserve in which he remained until October 28,1962.

7. (a) Subsequent to his release from active duty, plaintiff filed a claim with the Department of the Army for pay for one day of active duty performed by him on May 18, 1943. The claim was referred to the Comptroller General of the United States for payment if deemed proper.

(b) On April 9,1962, he was paid for “pay due as Private, Army of the United States, May 18, 1943.” Thereafter, he requested further consideration that May 18,1943, be credited as a day of active Federal service; and

(c) on or about September 25, 1962, the prior administrative determination (that he was not entitled to count the date of his induction, May 18,1943, as a day of active duty) was reaffirmed (finding 4 (b), supra).

8. On October 29, 1962, plaintiff enlisted in the United States Air Force for a term of 4 years and served on active duty in an enlisted status as an Airman First Class until November 30,1964.

9. On or about May 23,1964, plaintiff filed an application for correction of military records under the provisions of 10 U.S.C. 1552 with the Air Force Board for the Correction of Military Eecords (hereinafter referred to as AFBCME) wherein he requested: “That my records be corrected to show that I served in an active duty and pay status on and prior to May 18, 1943 and that I have been in an active commissioned status from May 31,1961.” He further stated in his application: “I was not given credit for the time on active duty from induction date in 1943 to the date I was released from active duty to await Cadet training. This would have given me over 18 years service and I would have been retained on active duty.”

10. (a) On November 30,1964, plaintiff was relieved from active duty in the United States Air Force. He had served on active duty in the USAF for 2 years, 1 month and 1 day.

(b) On December 1, 1964, he was retired in the grade of Major under the provisions of 10 U.S.C. § 8911 with a total of 20 years, 1 month and 1 day of active service for retirement and 21 years, 6 months and 13 days of service for basic pay purposes.

11. (a) On March 23,1965, the AFBCME, under the provisions of paragraph 9, AFE 31-3, dated January 2, 1962, considered plaintiff’s case, and found that plaintiff was, for all intents and purposes on active duty on the date of his initial induction, May 18, 1943, and that it was error to fail to credit him with that day of active duty.

Findings of Fact

(b) The AFBCMR further found as follows: i]! í $ $

7. The Board, having examined and considered the Application, Master Personnel Records, Brief of Counsel and other evidence finds that a serious error or injustice exists in that Applicant was released from active duty effective 31 May 1961 having twice failed of selection for promotion to the grade of temporary Major, that in that date he had completed 18 years active service and was entitled to be retained in the service, under authority of AFR 36-12, until he could qualify for retirement upon completion of 20 years active service; that Applicant was erroneously not credited with one day of active service which he performed on 18 May 1943; that he has, since his release filed claim for pay for that date, which claim was allowed and authorized to be paid by the General Accounting Office. Further, the Board finds that Applicant’s records should be corrected to show that he was not released from active duty on 31 May 1961, but instead was continued on active duty until 31 May 1963 on which date he was released from active duty and was retired in the grade of Major, effective 1 June 1963.
8. The Board notes that Applicant reenlisted in the Air Force on 29 October 1962 and served on active duty in the grade of Airman First Class from that date until he was released from active duty on 30 November 1964 and voluntarily retired, effective 1 December 1964 in the grade of Major on which date he had completed 20 years 1 month and 1 day active service; however, his Application requests and the Board notes that had the error not been made in computing his service he would have been retained on active duty until 31 May 1963, upon which date he would have completed 20 years service and placed on the retired list effective 1 June 1963 in the grade of Major; that the service he has performed, some 2 years and 1 month as an AlC will, upon approval of the Board’s findings and recommendation become, in essence, de facto service, and the Applicant will not be given credit therefor; however, Applicant is being given credit for the time which he did not serve in any capacity between 1 June 1961 and 29 October 1962, and will receive the same pay and allowances as if he had remained on active duty for this period without being separated; that this means he also will be entitled to pay as a Captain for the remainder of the period between the date of his reenlistment and the retirement date established by this corrective action even though he served as an AlC during the period 29 October 1962 and 31 May 1963; that subsequent to 31 May 1963 he will be credited with retired pay in the grade of Major with 20 years service, which will be offset by any active duty pay and allowances received during this period.

(c) The AFBCMR recommended that:

1. The pertinent military records of the Department of the Air Force relating to Donald S. Holloway, AO 2092695, be and they hereby are corrected to show that he served on extended active duty with full pay and allowances on 18 May 1943, and that on .31 May 1961 he completed 18 years active military service; and, further, that he was not released from active duty on that date but instead continued on active duty in the grade of Captain until 31 May 1963 on which date he was released from active duty; and further, that effective 1 June 1963 he was retired in the grade of Major in accordance with Section 8911, Title 10 United States Code.
2. All necessary and appropriate action be taken in accordance with this recommendation.

12. (a) By memorandum dated April 2, 1965, the Assistant Secretary of the Air Force (hereinafter referred to as ASAF) directed the Chief of Staff of the USAF to correct plaintiff’s military records consistent with the AFBCMR’s findings and recommendation.

(b) By Special Order AC-7248, Department of the Air Force, dated April 14,1965, plaintiff’s relief from active duty effective November 30, 1964, and retirement on December 1, 1964, pursuant to Special Order AC-18777, dated September 22,1964, was revoked. Under the authority of the memorandum of April 2, 1965, and 10 U.S.C. § 1552 plaintiff, on April 14,1965, pursuant to Special Order AC-7249 (Retirement Order), was shown to be relieved from active duty in the grade of Captain on May 31, 1963, and retired in the grade of Major June 1, 1963, under the provisions of 10 U.S.C. § 8911, with 20 years, 00 months, and 00 days of active service for retirement and only 20 years, 00 months, and 13 days of service for basic pay purposes.

13. (a) On September 17, 1965, plaintiff requested that the AFBCMR reconsider the corrective action recommended by the Board and acted upon by the ASAF. For specific reasons stated, it was requested that upon reconsideration of the corrective action that the Board recommend that plaintiff’s records be corrected to show: (1) that plaintiff served on active duty in the grade of Captain, USAF, from May 31, 1961 to November 30,1964, and that he was paid accordingly for such service in the grade of Captain, less such pay and allowances paid to plaintiff by reason of his active duty in an enlisted status from October 29, 1962 to November 30, 1964; and (2) that his records be further corrected to show that he was retired in the grade of Major on December 1, 1964.

(b) On November 22, 1965, counsel for plaintiff was advised by the Executive Secretary, AFBCME, that the AFBCMR found no basis for further correction of applicant’s record.

(c) By virtue of the AFBCMR action of record, as approved by the ASAF, plaintiff was tendered the monies, due under the corrective action taken by the ASAF, which plaintiff declined to accept on December 23,1965.

14. By reason of the AFBCMR having construed plaintiff’s actual active military service (as an Airman First Class) from October 29, 1962 to November 30, 1964, as “de facto” service, he was not credited with active duty actually performed for this period of service and was, in effect, credited only with active duty as a Captain from May 31, 1961 to May 31, 1963, and retired pay as a Major from June 1, 1963 to November 30, 1964. That is, plaintiff was not paid for active duty in the grade of Captain from June 1, 1963 to November 30, 1964, and his retired pay is currently computed on 20 years, 0 months and 13 days of service, rather than on 21 years, 6 months and 13 days of service, claimed by plaintiff.

15. (a) There was at all times pertinent to this cause of action no statutory prohibition or any departmental regulation, precluding a Reserve officer such as plaintiff from remaining on active duty during the time interval between May 31, 1963 to November 30,1964, as requested by plaintiff in the request for reconsideration of September 17, 1965. However, under a departmental policy in effect on May 31, 1961, and had plaintiff not been erroneously denied credit for one day of service, to-wit: May 18, 1943, thus necessitating his enlistment and enlisted service from October 29, 1962 to November 30,1964, as well as his seeking relief under 10 U.S.C. § 1552, plaintiff would have been advised by letter from the Department substantially as follows:

2. Eecords show that you have twice failed of selection for promotion to your next higher temporary grade. Under the provisions of paragraph 74, AFE 36-12, you therefore will be released from active duty on 31 May 1961, as a result of this failure unless you qualify for retention on active duty to qualify for retirement under 10 USC 8911.
3. On the above date, you meet the criteria outlined in paragraph 9c, AFE 36-12 for retention on active duty to qualify for retirement under 10 USC 8911
Your retention on active duty for this purpose has been approved until May 31, 1963. * * *
4. Your application for retirement, to be effective on the date specified in paragraph 3 above, should be submitted in accordance with AFM 35-7 and forwarded through channels to Headquarters USAF _ (AFPMP-4C), Washington 25, D.C., to arrive not earlier than 120 days and not later than 90 days before that date. If you do not submit your application for retirement, you will be released from active duty on your controlled date of separation, the date specified in paragraph 3 above. * * *

(b) Paragraph 9c of Air Force Eegulation 36-12, referred to above, reads as follows:

c. Retention of Reserve Officers on Extended Active Duty to Qualify for Retirement or Retired Pay. Current legislation provides that members of the Eeserve components serving on extended active duty will not be separated involuntarily for any reason unless their separation is approved by the Secretary of the Air Force, if on the dates established for their involuntary separation they are within 2 years of qualifying for retirement or retired pay under any purely military retirement system. The Comptroller General has ruled that, within the meaning of this legislation, retired pay under 10 U.S.C. 1331 (AFM 35-7) is considered to be awarded under a purely military retirement system.
(1) The above authorizes the Secretary to retain on extended active duty a Eeserve officer who would otherwise be separated involuntarily under paragraphs 33 or 34 until he is qualified for retirement under 10 U.S.C. 8911 or 10 U.S.C. 1293 (AFM 35-7), or for retired pay under 10 U.S.C. 1331, WHICHEVER OCCURS EARLIER, provided that on the date established for his involuntary separation for any reason, including attainment of the maximum ages prescribed in paragraphs 33 or 34, he is NOT qualified for retirement or retired pay under any provision of law but he is within 2 years of qualifying.
(2) A Reserve officer who on the date established for bis involuntary separation is qualified for retired pay under one provision of law, such as 10 U.S.C. 1331, and on that date is also within 2 years of qualifying for retirement under another provision of law, such as 10 U.S.C. 8911 or 10 U.S.C. 1293, will not be retained for the purpose of qualifying under the latter provision of law. A commissioned officer in this category who has completed 10 years of active Federal commissioned service may, if he is otherwise eligible, enlist in the Regular Air Force and serve in that status until he completes 20 years of active Federal service. He would then be qualified for retirement in a commissioned grade under 10 U.S.C. 8911, provided he then holds a valid appointment as a Reserve commissioned officer of the Air Force.

16. In no event is plaintiff entitled to recover active duty pay allowances beyond November 30, 1964.

17. In the ultimate, plaintiff is seeking judgment for active duty pay and allowances as a Captain, from May 31, 1961 to November 30, 1964, less such pay and allowances paid to plaintiff by defendant from October 29,1962 to November 30, 1964, during the latter time plaintiff was serving in an enlisted status. By reason of the corrective action taken by the Assistant Secretary of the Air Force, defendant has agreed to pay to plaintiff active duty pay as a Captain from May 31, 1961 to May 31, 1963. Plaintiff is also requesting that he be paid the amount of retired pay of a Major with over 23 years of service from December 1, 1964, to date of judgment.

18. This case is before the court on a stipulation of facts agreed upon by the parties, together with certain exhibits referred to in the stipulation. No oral testimony was offered in this court.

CONCLUSION OK Law

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover and judgment is entered to that effect. The amount of recovery is reserved for further proceedings under Hule 47 (c).

In accordance with the opinion of the court, a stipulation of the parties, a report of the General Accounting Office, and a memorandum report of the commissioner, it was ordered on March 18, 1968, that judgment for the plaintiff be entered for $17,075.76. 
      
      The opinion, findings of fact, and recommended conclusion of law are submitted under the order of reference and Rule 57(a).
     
      
       See finding 15(b).
     
      
       10 U.S.C. ch. 47 (1964 edition).
     
      
       In plaintiff’s brief, dated January 18, 1965, in support of bis application for correction of military records, tbe following appears:
      “For tbe foregoing reasons, It is respectfully submitted that tbe record herein establishes tbe existence of material error and injustice in tbe failure of tbe Department to have determined that tbe applicant was on active duty on May 18, 1943, to have determined that tbe applicant hadi eighteen (18) years Federal service on May 81, 1961; and in having relieved tbe applicant from active duty without according him tbe opportunity to complete 20 years of active Federal service and- thereafter to have retired by reason of years of service. It is therefore requested that tbe applicant be granted a bearing and thereupon that be be granted tbe relief prayed for in this application.”
      Tbe AFBCME did not grant a hearing which, under its procedures, is not a matter of right.
     