
    FRANCIS O’HARA v. THE UNITED STATES
    [No. 44261.
    Decided October 7, 1940.
    Defendant’s motion for new trial overruled March 3, 1941]
    
      King dt King for the plaintiff. Mr. Fred W. Shields was on the brief.
    
      Miss Stella AJcin, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.
   Opinion

per curiam:

There is no substantial contest as to the right of the plaintiff to recover. Having completed more than 30 years’ service, he made application for retirement in the grade of first sergeant. It is not denied that at that time he had the grade of first sergeant, that he had been lawfully appointed to that grade and received the pay and allowances thereof, nor is it denied that he had at that time completed more than 30 years’ service in the Army. The fact that the War Department had refused him retirement in that grade is immaterial, as the act of March 2, 1907, 34 Stat. 1217, plainly and specifically gave him the right to retirement in the grade that he then occupied and the refusal to pay him accordingly is clearly in violation of law.

The precise question here involved was decided in this court in Blackett v. United States, 81 C. Cls. 884, and the court’s decision in the Blackett case has been followed in Standerson v. United States, 83 C. Cls. 633; Holub v. United States, 85 C. Cls. 701; and Bale v. United States, 89 C. Cls. 532.

Plaintiff is entitled to judgment but as bis claim is a continuing one tbe entry of judgment will be suspended pending the filing by the General Accounting Office of a statement showing the amount due him from November 1,1932, to date of the judgment.

It is so ordered. 
      
       See post, p. 602.
     