
    ROBERT H. MEADE v. THE UNITED STATES
    [No. 45181.
    Decided February 1, 1943] 
    
    
      Mr. Fred W. Shields for the plaintiff. King do King were on the brief.
    
      Mr. Philip Mechem, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.
    
      
      Petition for writ of certiorari denied June 7, 1943.
    
   Whaley, Chief Justice,

delivered the opinion of court:

Plaintiff is an officer of the Civil Engineer Corps of the United' States Navy who was appointed midshipman on June 16,1922; was commissioned ensign from June 3, 1926; arid was commissioned regular civil engineer with rank of lieutenant from June 1, 1936, which rank he now holds. Plaintiff seeks to compare for purposes of pay his record of active service with that of Lieutenant Commander Robert Stanley Robertson, Jr., who was appointed midshipman on June 15, 1905; was commissioned ensign to rank from June 5, 1911; was transferred to the retired list on September 19, 1915, and was retired, with the exception of a temporary period of active duty, until October 18, 1939, when he returned to active duty as a lieutenant commander on the retired list. Plaintiff has been receiving the pay and allowances of the third pay period as provided by the Act of June 10,1922 (42 Stat. 625,626) as amended by the Act of May 23, 1928 (45 Stat. 719, 720), which provides in pertinent part as follows:

The pay of the fourth period shall be paid to * * * lieutenant commanders of the Navy * * * who have completed fourteen years service * * * and to lieutenant commanders and lieutenants of the Staff Corps of the Navy * * * whose total commissioned service equals that of lieutenant commanders of the line of the Navy, drawing the pay of this period. — (U. S. Code, Title 37, sect. 1)

Plaintiff under this statute claims the difference between the pay and allowances of the third pay period which he is now receiving and the pay and allowances of the fourth pay period, which is being paid to Lieutenant Commander Robertson, for the period from October 18, 1939, to the date of judgment.

It is apparent from the facts that there is no comparison between the two services rendered by these officers. They are not comparable. Robertson was appointed a midshipman in 1905 at which time he was entitled to compute the period he was at the Naval Academy in his'pay period. By the act of March 4,1913 (37 Stat. 891) service as a midshipman at the Naval Academy was not to be counted when computing length of service for pay period purposes. See United States v. Noce, 268 U. S. 613. Deducting from plaintiff’s computation of his service the time spent as a midshipman at the Academy, his active service is not comparable with the active service of Robertson. Furthermore, when this deduction is made, plaintiff has approximately thirteen and one-third years active service to his credit and not the fourteen years which would entitle him to the fourth pay period rate. Plaintiff’s active commissioned service counting from June 3, 1926, when he was commissioned ensign, to October 18, 1939, is 13 years, 4 months and 16 days. Lt. Commander Robertson’s active service from June 15, 1905, when he was appointed midshipman, to October 18, 1939, is 16 years, 6 months and 6 days.

In Robertson’s case he counted the time spent in the Naval Academy, which he was entitled to do, as part of his activé service, and had over fourteen years service and therefore was entitled to be in the fourth pay period.

Plaintiff’s case is on all fours with the case of Roggenkamp v. United States, 76 C. Cls. 329, in which the court held that the plaintiff had the same length of active commissioned service but he lacked the credit of the Academy service and therefore there was no comparison between the two services for the purposes of pay. It may be further added that the services of these two officers were not concurrent.

Plaintiff entered the Naval Academy seventeen years after Robertson and therefore there could be no comparable service. Robertson was in' the first world war which was several years before plaintiff even entered the Academy.

Plaintiff relies on the case of Marvin v. United States, 78 C. Cls. 567. This case is clearly inapposite.

Plaintiff is not entitled to recover and his petition is dismissed. It is so ordered.

JoNES, Judge; and LittletoN, Judge, concur.

Whxtakee, Judge,

concurring:

I concur, but I would like to add to the majority opinion the following observations:

The fifth paragraph of section 1 of the Act of June 10, 1922, c. 212, 42 Stat. 625, 626, as amended by the Act of May 23,1928, c. 715,45 Stat. 719, gives the pay of the fourth period to the following officers of the Navy: (1) commanders; (2) lieutenant commanders with fourteen years service; (3) lieutenants with seventeen years service; and (4) to “lieutenant commanders and lieutenants of the Staff Corps of the Navy * * * whose total commissioned service equals that of lieutenant commanders of the line of the Navy, drawing the pay of this period.”

Lieutenant commanders of the Navy are entitled by virtue of their rank only to the pay of the third period, but if they have had fourteen years service they are entitled to the pay of the fourth period. Paragraph 5 entitles lieutenant commanders and lieutenants of the Staff Corps of the Navy to fourth period pay only when they have had a length of commissioned service equal to that which entitles lieutenant commanders of the line to that pay. This length of service ordinarily is fourteen years. Plaintiff has not had this length of service, but he says that he is nevertheless entitled to fourth period pay because Lieutenant Commander Robertson is drawing fourth period pay and because his length of commissioned service is less than plaintiff’s.

This is true, but Lieutenant Commander Robertson is drawing fourth period pay because at the time he retired an officer was entitled to include the period of his service at the Naval Academy in computing his length of service; but, in 1913, prior to plaintiff’s appointment to the Academy, Congress provided that officers thereafter appointed were not entitled to include the period of their service in the Naval Academy in computing their length of service, and plaintiff, ■.therefore, is expressly prohibited from doing so. But, what .he in effect seeks to do is to add to his commissioned service a sufficient part of Robertson’s service in the Academy to "bring his total commissioned service up to the required fourteen years. He would thus accomplish indirectly what he .■could not accomplish directly. Robertson gets fourth period' pay only by including his service in the Academy. Plaintiff ■ can get it only by adding on to his commissioned service Robertson’s Academy service. This seems to me to be contrary to the intention of Congress. If an officer could not "include his own service in the Academy, certainly it was not 'intended that he could include the service of another. The .Act' of 1913 is a limitation on the Act of May 23, 1928, . supra. This plaintiff is not entitled to fourth period pay if to qualify himself therefor he must include in his length of ■service either his own service in the Academy or that of an-other.

If plaintiff, can thus use Robertson’s Academy, service, so man every other lieutenant commander and lieutenant in the .Staff Corps of the Navy and every lieutenant commander, lieutenant, and lieutenant (junior grade) of the line and engineer corps of the Coast Guard whose commissioned service i comes within four years of the required fourteen years. The •purpose sought to be accomplished by the Act of 1913 would ■"thus bé largely defeated. For a large number of officers ■appointed after 1913, Academy service would be taken into .• account. I am convinced that Congress did not intend this.

If plaintiff, a lieutenant,. is entitled to this pay, he ■would be paid higher than most of the lieutenant com-manders of the line who had had equal service. It was the :intention.of Congress to bring the pay of staff officers up to -that of line officers, but it never was intended to pay them :more.

Cf. United States v. Lenson, 278 U. S. 60.

MaddeN, Judge,

dissenting.

I think plaintiff should recover.

Subdivision 4 of the fifth paragraph, section 1, of the perti¡nent statute says that fourth period pay is proper for “lieutenant commanders and lieutenants of tbe Staff Corps of the Navy * * * whose total commissioned service equals that •of lieutenant commanders of the line of the navy, drawing the pay of this period.” The prevailing opinions translate this long expression into two words, “fourteen years.” I think that if Congress had meant fourteen years it would have said so in two words rather than seventeen words.

The record gives us little light on our problem. It seems that lieutenant commanders who have been commissioned since the Act of 1913 removed the right to count time spent in the Naval Academy as a part of the period of service must have fourteen years of commissioned service to draw fourth period pay. That means, I suppose, that nearly all lieutenant commanders of the line who are at the present time drawing fourth period pay have had fourteen years of commissioned service. The prevailing opinions take the language of the fourth subdivision of the section to mean “lieutenant commanders of the line who are in the normal status of present day lieutenant commanders of the line, drawing the pay of this, (the fourth) period.” But this rendering of the text is nothing but a still longer way of saying “fourteen years.”

Without any real light on the subject of what Congress meant, I think the natural conclusion from what it said is that it meant that staff corps lieutenants, such as plaintiff, were to be paid fourth period pay if any lieutenant commander of the line, who had no longer period of commissioned service than they had, received fourth period pay. If Congress didn’t mean this, it meant “fourteen years,” which, as I have indicated, I doubt. If Congress-did mean this, plaintiff can compare his service with Eobertson, though Eobert-son’s career was unusual because of his long period of retirement which kept him, upon reentering active service, in the fourth period pay group, though he was appointed to Annapolis before the Act of 1913.

What would be the practical consequences of holding as I would hold does not appear in the record. If they would be so disrupting or burdensome as to make it apparent that Congress could not have intended them, we have not been informed. 
      
       37 Stat. 891.
     