
    WILLIAM H. PARKER v. THE UNITED STATES.
    [No. 98-A.
    Decided January 29, 1923.]
    
      On the Proofs.
    
    
      Jurisdiction; action of retirement board; right of revieio. — Where an officer of the Army has been retired by a retirement board in a certain rank, and the action of the board has been approved by the President, the court has no authority to speculate as to what rank he might have attained if the officer had not been retired. See Beeves v. Ainsworth, 219 U. S. 296.
    
      The Reporter’s statement of the case:
    
      Mr. George A. King for the plaintiff. King db 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 of the case as found by the court:
    I. The plaintiff, William H. Parker, served as an enlisted man and as an officer in the Marine Corps from April 5, 1898, to September 22,1916. He had attained the rank of captain on the active list of the Marine Corps. He appeared. before a marine examining board for examination for promotion to the grade of major. The examining board resolved itself into a marine retiring board and found that plaintiff was incapacitated for active service by reason of chronic bronchitis. Another marine examining board, which was also a retiring board, August 28, 1916, decided that he was incapacitated for active service by reason of chronic pulmonary tuberculosis. This report was approved by the President. He was placed on the retired list as a major September 22, 1916. Had the plaintiff not been retired he would, in due course of promotion, have attained the rank of major on the active list on August 29, 1916, and he would also have attained the rank of lieutenant colonel on the active list on the same date. (39 Stat. 609-612.)
    Subsequently to his retirement he was, under date of January 18, 1917, assigned to active duty. He reported for duty January 31,1917, and remained continuously on active duty until June 16,1919, on which date he was relieved from active duty and placed in an inactive status.
    II. He has received pay since the date of his retirement, September 22, 1916, to the present time only in the grade of major, first on active duty and later on inactive duty.
    If paid during all of that time as a lieutenant colonel on the retired list, he would receive in pay and allowances $2,964.97 more than he has received.
   MEMORANDUM

BY THE COURT.

If the plaintiff had not been found physically unfit for promotion, he would in due course have attained the rank of lieutenant colonel. But upon examination for promotion from captain to major he was found physically unfit for promotion and was as a result placed upon the retired list with the rank of major, the rank to which his seniority entitled him to promotion. The court can not indulge in speculation as to what might have happened, but must decide cases upon the facts as they are presented and proved.

The petition is dismissed.  