
    GEORGE L. RICHARD v. THE UNITED STATES
    [No. 624-52.
    Decided May 1, 1956.
    Plaintiff’s motion for rehearing overruled October 2, 1956]
    
      
      Mr. Samuel T. Ansell, Jr., for the plaintiff. Mr. Burr Tracy Ansell, Mr. Harry E. Wood, and Ansell and Ansell were on the briefs.
    
      
      Mr. Richard E. Wais on, witli whom was Mr. Assistant Attorney General Warren E. Bwrger, for the defendant. Mr. Laurence E. Axman was on the briefs.
   Laramore, Judge,

delivered the opinion of the court:

This is an action by a retired naval officer, for the difference between the active-duty and retired pay of his grade as commander from January 1, 1947, to March 31, 1952, when he attained the age of 62 years, on the ground that his retirement on January 1, 1947, was ineffective because he had not received a retiring board hearing. In the alternative plaintiff asks for the difference in pay from January 1,1947, until August 16, 1947, on the ground that while receiving treatment in a Navy hospital he was performing active duty. Plaintiff further claims this alleged active service increased his entitlement from the retired pay of a commander with over 27 years’ service and not over 30 years’ service to which he would have been entitled on the basis of retirement on January 1, 1947, to the retired pay accorded officers with over 30 years’ service.

The questions presented are: (1) Was plaintiff’s retirement in accordance with law, and (2) if the plaintiff was retired effective January 1,1947, did he perform active duty as a retired officer of the Navy after that date.

Plaintiff, George L. Eichard, entered upon active duty as a commissioned officer in the United States Navy, on January 7, 1922, after having previously served 4 years 4 months and 6 days in the Eeserves. He thereafter served continuously as a commissioned officer on the active list until December 31, 1946, when he was retired with the rank of commander.

Sections 3,4 and 5 of the Act of February 21,1946, 60 Stat. 26,27, provides in pertinent part for the retirement of officers of the Navy upon the recommendation of a board of officers. This statute, popularly known as the “plucking statute” provided generally for the retirement of officers who were so designated by the board on the approval by the President.

Pursuant thereto a board of officers appointed by the Secretary of the Navy was convened in Washington, D. C., on May 15,1946, to consider, and recommend for retirement, line officers of tbe Navy, including plaintiff. The board recommended that plaintiff among others, be retired and the recommendation was approved by the President in June 1946.

On June 15,1946, the Secretary of the Navy notified plaintiff of his involuntary selection for retirement by the retirement board under section 3 of the Act of February 21, 1946, supra.

On July 29, 1946, plaintiff acknowledged receipt of said notice in a letter, addressed to the Bureau of Naval Personnel, wherein he referred to the applicable law and stated that he had been informed that his services on active duty would terminate not later than January 1, 1947. Plaintiff requested that he be allowed to remain on active duty in charge of his station until December 31,1946. This included flight duty. On September 24, 1946, plaintiff was advised that the President had approved the recommendations of the special board placing him on the retired list on January 1, 1947.

In October 1946, plaintiff, who was in command of his station, received orders dated September 30, 1946, from the Navy Department, Bureau of Personnel, which provided in pertinent part as follows:

1. When directed by your commanding officer, you will report for a physical examination in accordance with reference (a). If hospitalization is required, you will be detached from duty and ordered to an appropriate hospital by your commanding officer, and these orders endorsed accordingly. If hospitalized, further compliance with these orders is delayed until you are ready for discharge from treatment. At that time, the medical officer in command will perform the duties of the commanding officer referred to in the balance of these orders.
3. When directed by your commanding officer, on 1 November 1946, you will regard yourself detached from your present duties; await orders pending retirement. You will proceed to your home. If hospitalization was required in accordance with paragraph one above, you will, upon discharge from treatment, await orders pending retirement. You will proceed to your home. You will complete all travel within one year from date of detachment; or, if under treatment, within one year from date of discharge from treatment; but not later than one year from date of retirement; * * *.
4 Upon detachment or discharge from treatment, to await orders pending retirement, furnish the Bureau of Naval Personnel one copy and the disbursing officer carrying your pay accounts four copies of these orders bearing all endorsements. Also report your mail address and subsequent changes thereof to the Bureau of Naval Personnel (Attention Pers — 325), and to the commandant of the naval district in which you reside and to the disbursing officer carrying your pay accounts. Comply also with Articles 134 and 135, Navy Regulations, 1920.
5. During the period between date of detachment and date relieved of all active duty (date of retirement) you may, at your option, wear civilian clothes. You are authorized to engage in any occupation not prohibited by law for military personnel.
6. You will regard yourself relieved of all active duty in the U. S. Navy on 1 January 1947. A letter from the Secretary of the Navy formally placing you on the retired list as of that date will be forwarded to you shortly thereafter.

Plaintiff, as his own commanding officer, did not direct himself to report for a physical examination until October 28,1946, when he went before a board of medical examiners in a nearby naval hospital in California. Pie was found not physically qualified for active duty, in need of hospitalization, and on October 29,1946, was ordered to return to his duty station “for detachment and transfer to U. S. Naval Hospital, Mare Island, California”.

The commanding officer of the 12th Naval District ordered plaintiff to report to the hospital not later than November 1, and to furnish to the hospital his orders of September 30, 1946. Plaintiff, as his own commanding officer, ordered himself to proceed to the hospital on November 1, 1946, which he did in accordance with his basic orders of September 30,1946.

On November 9,1946, after his hospitalization on November 1, 1946, it was established by diagnosis that plaintiff had a chronic arthritis which was incurred as the result of an injury to his spine some years before. Plaintiff’s condition had not prevented him from remaining in command of Ms post, which involved flying duties, until Ms retirement on January 1,1947.

After therapeutic and heat lamp treatments each day, with no immediate improvement, plaintiff on December 5, 1946, appeared before a Medical Survey Board which determined that plaintiff was unfit for service and recommended that plaintiff be ordered to appear before a retiring board. The findings and recommendations of the Medical Survey Board were transmitted to the Bureau of Medicine and Surgery. On December 16,1946, that Bureau recommended to the Bureau of Naval Personnel that the Board’s findings be disapproved, stating that plaintiff had continued full duty status including flight duty until “recently” and that he had only been on the sick list since November 1,1946, and that there had been no worsening in his state of health. It was recommended that he be returned to duty, despite the fact that he had already been “plucked” for retirement as of January 1, 1947. On January 1, 1947, plaintiff was retired and Ms name was transferred to the retired list. On January 9, 1947, the findings and recommendations of the Bureau of Medicine and Surgery as to plaintiff, were marked “Preceding endorsement * * * approved,” by the Chief of Naval Personnel.

Following tMs action by the Chief of Naval Personnel plaintiff was retained as a patient at the Mare Island Naval Hospital for further treatment because his “symptoms continued unabated”.

Between January 1, 1947, and August 28, 1947, plaintiff appeared before several Medical Survey Boards for checkups. On April 17, 1947, it was found that his arthritic condition persisted and the Board recommended that plaintiff be retained for further treatment.

On August 11, 1947, after plaintiff again appeared before the Medical Survey Board, it was found that he was fit for duty, and the Board recommended that he be returned to duty. Plaintiff, so informed, submitted a signed “statement of rebuttal” in which he requested that he be permitted to appear before a naval retiring board. This was the first time plaintiff had ever made such request, having waived his right to a retiring board hearing in December 1946 prior to retirement. On August 22, 1947, the findings and recommendation of the Board of Medical Survey of August 11, 1947, together with the plaintiff’s statement in rebuttal, were transmitted to the Bureau of Medicine and Surgery, and on the 29th of August 1947 such Bureau approved the Board’s recommendation that plaintiff be restored to duty. This was in turn forwarded to the Bureau of Naval Personnel which on September 15, 1947, approved the findings and recommendation of the Medical Board. Plaintiff’s request to appear before a naval retiring board was never acted upon.

On August 15, 1947, the medical officer in command at Mare Island Naval Hospital telegraphed the Bureau of Naval Personnel that plaintiff had been found fit for duty with a recommendation that he be returned to duty and request was made for authority to carry out plaintiff’s orders of September 30, 1946. On August 19, 1947, the Bureau of Naval Personnel, by direction of its Chief, in response to the foregoing request of August 15,1947, wrote the medical officer in command as follows:

2. Under the operation of reference (b) [the Act of February 21,1946] subject officer was recommended for retirement, which was to become effective not later than 1 January 1947. He was subsequently notified that he would not be retained on active duty after 1 January 1947; his separation orders stated unequivocally that he would regard himself relieved of all active duty on 1 January 1947. In view thereof, Commander Bichard is not entitled to active duty pay or allowances subsequent to 1 January 1947.
3. Examination of this officer’s record on file in the Department reveals that his final retirement letter [of January 2, 1947] was not received by him * * *. The letter is accordingly forwarded for delivery to Commander Bichard in order that he may take appropriate action in connection with establishing his retired pay status.

On August 26, 1947, after receipt of the foregoing letter, the medical officer in command at Mare Island delivered to plaintiff a copy of the letter addressed to plaintiff, dated January 2, 1947, advising him that he had been placed on the retired list. On August 28,1947, plaintiff was discharged from hospitalization and treatment and directed to comply with the orders of September 30,1946.

The retirement letter of January 2, 1947, is in pertinent part as follows:

1. The President of the United States having approved the recommendation of a special Board, appointed by me, you were on 1 January 1947 transferred to the retired list. I have determined that your performance of duty in the rank of Commander under a temporary appointment has been satisfactory. Accordingly, you were transferred to the retired list with the rank of Commander and with the retired pay of that rank, pursuant to the provisions of U. S. Code, Title 34, Sections 410a and 410c.
¡S * ¡¡c * &
3. Acknowledgment of receipt is requested.

Plaintiff claimed that his first formal notice that he had been retired effective January 1, 1947, was his receipt on August 26, 1947, of a copy of the notice of his retirement dated January 2, 1947. However, as shown above, there were a series of notices that he received during the year 1946 which clearly showed that he would be retired on January 1, 1947.

Through error plaintiff, who was retired by operation of the statute on January 1, 1947, was paid active-duty pay from the date he went into the hospital on July 1, 1946, to August 16, 1947, at the rate of his grade of a commander with over 27 years’ service and not over 30 years’ service.

Plaintiff was subsequently charged $2,378.21 as an overpayment, being the difference between active-duty pay and the retired pay of his rank, which amount was collected by stoppage of retired pay until the entire amount was recovered. Plaintiff requested reexamination of his status but the Chief of Naval Personnel on review denied plaintiff’s application as did the Board for Correction of Naval Records.

On August 28,1947, in a letter to the Chief of Naval Personnel, plaintiff requested that either his status of active duty be extended to August 26, 1947, or that he be recalled to active duty as a retired officer as of 1 January 1947. The Chief of Naval Personnel denied the request pointing out inter alia that the language of paragraph 1 of his orders of September 80, 1946, regarding delay in compliance with the orders until ready for discharge from treatment, referred only to his proceeding home, and did not change the effective date of retirement as stated later in the same orders. After a documentary review of plaintiff’s naval record, the Board for Correction of Naval Eecords on June 21, 1948, found no error or injustice in the record and concluded that no change should be made therein.

Plaintiff later, in the early part of 1952, requested review by the Board for Correction of Naval Eecords which again sustained its conclusion adverse to plaintiff.

Plaintiff contends that his purported retirement on January 1, 1947, was illegal because he had not been afforded an opportunity to appear before a retiring board in accordance with section 1455, Eev. Stat., and therefore he was deemed to be in an active-duty status until he reached the retirement age of 62 years.

Section 1455, Eev. Stat., provides:

No officer of the Navy shall be retired from active service, or wholly retired from the service, without a full and fair hearing before such Navy retiring-board, if he shall demand it, except in cases where he may be retired by the President at his own request, or on account of age or length of service, or on account of his failure to be recommended by an examining board for promotion.

Defendant contends that plaintiff was effectively retired January 1, 1947, under the Act of February 21, 1946, supra. This statute, known as the “plucking statute” provided for the retirement of officers who were so designated by a board of officers on the approval by the President. Section 5 of the above statute provides:

Each officer recommended for retirement pursuant to this Act shall, if such recommendation be approved by the President, be placed on the retired list on the first day of such month as may be set by the Secretary of the Navy but not later than the first day of the'seventh month after the date of approval by the President.

The defendant further contends that after January 1,1947, plaintiff was entitled and did receive retired pay, and the active-duty pay which he drew up to August 1947 was properly checked against him.

Pursuant to the “plucking statute” plaintiff was recommended for retirement by a duly constituted board appointed by the Secretary of the Navy for the purpose of picking officers for retirement from among those who had not been promoted as described in the aforementioned statute. This action of the board was approved by the President in June of 1946. The only possible administrative error in plaintiff’s retirement was his failure to get the retirement, letter of January 2, 1947. However, as shown by the findings, the letter was sent to the address furnished by plaintiff and carried on the naval records. Furthermore, on June 15, 1946, the Secretary of the Navy notified plaintiff of his involuntary selection for retirement by the retirement board under the Act of February 21, 1946, supra. On July 29, 1946, plaintiff acknowledged receipt of said notice by letter in which he stated that he had been informed that his services on active duty would terminate not later than January 1, 1947. On September 24, 1946, the defendant notified plaintiff that the President had approved the recommendations of the special board placing him on the retired list of officers of the Navy on January 1,1947. Thus there can be no question as to plaintiff’s knowledge that this action had been taken. Moreover, the direction to report for physical examination and the fact that he did so report further bears out knowledge on the part of plaintiff.

Following January 1, 1947, the statutory date for plaintiff’s retirement, there remained nothing to be done to make his retirement an accomplished fact. Greenwald v. United States, 88 C. Cls. 264.

The only question then is whether section 1455, Rev. Stat., has the force attributed to it by plaintiff; i. e., is a hearing before the Navy retiring board mandatory before an officer can be retired under the “plucking statute.”

While it is highly doubtful that section 1455, Rev. Stat., has this force, the later act (plucking statute) would supersede the earlier. Nothing is contained in the “plucking statute” guaranteeing the right to appear before a Navy retiring board. Furthermore, section 1455, Bev. Stat., supra, provides that no officer be retired from the service without a full and fair hearing before a retiring board if he shall demand it. We can find nothing in the record that indicates a demand was ever made by plaintiff until August 11, 1947, more than eight months after the date fixed for his retirement. We believe this request was not timely made. As a matter of fact, plaintiff did not want retirement at that time. He had much to gain by seeking to prolong his active-duty status. This is demonstrated by his formal application of August 28, 1947, asking that his active-duty status be extended to August 26,1947, or that he be recalled from retirement status to active duty as of January 1, 1947 (retroactively) . Furthermore, plaintiff appeared before a Board of Medical Survey on December 5, 1946. In the record of the hearing before the Board there appears the statement “In the event he is ordered to appear before a Naval Eetiring Board, he waives the right to appear before such Board.”

On the trial of this case plaintiff stated he did not think it was necessary for him to go before a retiring board and did not in any way challenge or deny the statement in the medical survey report. Therefore, if plaintiff had a right to demand and receive a hearing before a Navy retiring board, he not only failed to make a timely demand, but waived any rights he might have had.

If plaintiff is entitled to anything, it is as a de facto active-duty officer, but as he performed no duty after he went to the hospital on November 1, 1946, he could not qualify as a de facto active-duty officer. During plaintiff’s stay in the hospital, which was pursuant to his own orders, he was permitted to go and come at will and only when he intended to be gone for protracted periods did he apply for leave to the commanding officer of the hospital. Moreover, on the orders of the commanding officer, Naval Air Base, 12th Naval District, Alameda, California, plaintiff turned over his duties to the next senior officer.

It is well settled that in the absence of orders definitely assigning one to active duty after retirement, active-duty pay ceases on the date an officer is placed on the retirement list. Terry v. United States, 81 C. Cls. 958; Holland v. United States, 83 C. Cls. 376. It has also been held that to be paid for active duty an officer must actually perform services calling for such payment. Morrow v. United States, 65 C. Cls. 35.

Absent actual performance of services and orders to active duty after retirement, the medical officer of the naval hospital was in error when he continued to issue vouchers for plaintiff’s active-duty pay while plaintiff was undergoing treatment, and the Secretary of the Navy was correct in collecting from plaintiff the “overpayment.”

In United States v. Bentley, 107 F. 2d 382, 384, the Court stated:

* * * but a well-settled exception is that payments made by the legal mistakes of officers of the United States are recoverable. United States v. Burchard, 125 U. S. 176, 180, 8 S. Ct. 832, 31 L. Ed. 662; United States v. Stahl, 151 U. S. 366, 14 S. Ct. 347, 38 L. Ed. 194; Wisconsin Central R. Co. v. United States, 164 U. S. 190, 207-212, 17 S. Ct. 45, 41 L. Ed. 399; United States v. Wurts, 303 U. S. 414, 58 S. Ct. 637, 82 L. Ed. 932, (semble); Heidt v. United States, 5 Cir., 56 F. 2d 559. The situation at bar was not like that in Badeau v. United States, 130 U. S. 439, 9 S. Ct. 579, 32 L. Ed. 997; and United States v. Royer, 268 U. S. 394, 45 S. Ct. 519, 69 L. Ed. 1011, where the claimant not only fulfilled the duties of the rank which he supposed he had, but understood at the time that he was serving for the pay which he received. For this reason it was thought inequitable to deprive him of the consideration for which he had been working. * * *

The Board for the Correction of Naval Records refused plaintiff’s contention and sustained the action which resulted in plaintiff’s placement on the retired list as of January 1,1947, and refused plaintiff’s request that his status of active duty be extended to August 26, 1947, the day he left the hospital, or that he be recalled to active duty as a retired officer as of January 1,1947.

There is no allegation in the petition that this Board was arbitrary in its decision. In the absence thereof, this court will not review the decision, and the decision of the Board must therefore stand. Wales v. United States, 132 C. Cls. 765; Gordon v. United States, 129 C. Cls. 270.

For the foregoing reasons plaintiff is not entitled to recover, and his petition is dismissed.

It is so ordered.

MaddeN, Judge; Whitaker, Judge; LittletoN, Judge; and JoNes, Chief Judge, concur.

FINDINGS oe Fact

The court, having considered the evidence, the report of Commissioner Paul H. McMurray, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff, George L. Eichard, was born in Florida on March 5, 1890. He entered upon active duty as a commissioned officer, United States Navy, on January 7, 1922, after having previously served 4 years 4 months and 6 days in the Eeserve components of the Navy. He served continuously as a commissioned officer on the active list of the Navy until December 81, 1946, when he was retired in the rank of commander under the conditions and circumstances hereinafter set out.

2. E. S., Section 1455, provides:

No officer of the Navy shall be retired from active service, or wholly retired from the service, without a full and fair hearing before such Navy Eetiring Board, if he shall demand it, except in cases where he may be retired by the President at his own request, or on account of age or length of service, or because of his ineligibility for promotion on account of age.

3. Joint letter 45-998, Navy Department Bulletin, August’ 15, 1945, approved by the Acting Secretary of the Navy, reads in part as follows:

2. No one shall be released from active duty or discharged from the service without first having been thoroughly examined by at least one medical officer. The examination * * * in the case of commissioned officers * * * shall be conducted by a board of medical examiners. * * *
$ $ 3: $ $
6. When personnel are being examined for separation from active service the medical examiners are required to make a decision regarding the individual’s physical fitness for release. This involves questions of whether:
(a) Hospitalization is required, such as for the treatment of disease * * *
(b) Further study is required to determine the presence or absence of disability.
(c) Further consideration is necessary to determine whether an officer should be recommended for retirement for physical disability. * * *
As a general rule an individual should not be released from active duty or discharged from the service until * * * a reasonable period of treatment has been provided for existing disability, or ai’rangements have been made for continued treatment or hospital care if required.
* * * ‡ sfc

Joint letter 45-998 was in effect at all times material to this action.

4. Sections 8 and 4 of the Act of February 21,1946,60 Stat. 26, provide, in pertinent part, for the retirement of officers of the Navy upon the recommendation of a board of officers. Section 5 of that Act is as follows:

Each officer recommended for retirement pursuant to this act shall, if such recommendation be approved by the President, be placed upon the retired list on the first day of such month as may be set by the Secretary of the Navy but not later than the first day of the seventh month after the date of approval by the President.

Pursuant to the Act of February 21,1946, a board of officers appointed by the Secretary of the Navy met in Washington, D. C., on May 15, 1946, to consider and recommend for retirement, line officers of the Navy, including the plaintiff. The board recommended that the plaintiff be retired, and the recommendation was approved by the President in June 1946. Plaintiff was retired as of January 1,1947, and his retirement was approved by the President.

5. On June 15, 1946, the Secretary of the Navy notified plaintiff of his involuntary selection for retirement by the Eetirement Board under Section 3 of the Act of February 21,1946.

On July 29, 1946, plaintiff acknowledged receipt of said notice in a letter, addressed to the Bureau of Naval Personnel, wherein he referred to the applicable law and stated that he had been informed that his services on active duty would terminate not later than January 1,1947. Plaintiff requested that bte be allowed to remain on active duty in charge of his. station until December 31, 1946, as his “venture into certain business is not scheduled to begin until March 1947,” and he “would be at a loss as to what to do with himself if he was to go on inactive duty in September or October.”

On September 24,1946, the defendant notified the plaintiff that the President had approved the recommendations of the special board placing him on the retired list of officers of the Navy on 1 January 1947.

6. In October 1946, as a consequence of the proceedings set out in finding 4, the plaintiff then on duty as commanding officer of the Naval Auxiliary Air Station, Santa Eosa, California, received orders dated September 30, 1946, from the Navy Department Bureau of Personnel, providing in part as follows:

1. When directed by your commanding officer, you will report for a physical examination in accordance with reference (a). If hospitalization is required, you will be detached from duty and ordered to an appropriate hospital by your commanding officer, and these orders endorsed accordingly. If hospitalized, further compliance with these orders is delayed until you are ready for discharge from treatment. At that time, the medical officer in command will perform the duties of the commanding officer referred to in the balance of these orders.
$ $ $ $ $
3. When directed by your commanding officer, on 1 November 1946, you will regard yourself detached from your present duties; await orders pending retirement. You will proceed to your home. If hospitalization was required in accordance with paragraph one above, you will, upon discharge from treatment, await orders pending retirement. You will proceed to your home. You will complete all travel within one year from date of detachment ; or, if under treatment, within one year from date of discharge from treatment; but not later than one year from date of retirement; * * *.
4. Upon detachment or discharge from treatment, to await orders pending retirement, furnish the Bureau of Naval Personnel one copy and the disbursing officer carrying your pay accounts four copies of these orders bearing all endorsements. Also report your mail address and subsequent changes thereof to the Bureau of Naval Personnel (Attention Pers-325), and to the commandant of the naval district in which you reside and to the disbursing officer carrying your pay accounts. Comply also with Articles 134 and 135, Navy Regulations, 1920.
5. During the period between date of detachment and date relieved of all active duty (date of retirement) you may, at your option, wear civilian clothes. You are authorized to engage in any occupation not prohibited by law for military personnel.
6. You will regard yourself relieved of all active duty in the 17. S. Navy on 1 January 1947. A letter from the Secretary of the Navy formally placing you on the retired list as of that date will be forwarded to you shortly thereafter.
7. As required by law, the Chief of Naval Personnel has determined that your release from active naval service is considered to be under honorable conditions, and you are entitled to a certificate of satisfactory service.

7. The plaintiff, in his capacity as commanding officer, Naval Auxiliary Air Station, Santa Rosa, California, by first endorsement dated October 28, 1946, directed that he “Proceed immediately and report to the Senior Member, Board of Medical Examiners, NAS Alameda, Calif., for physical examination.” He appeared before such Board on October 29, 1946. He was “found not physically qualified and in need of hospitalization,” and ordered to return to his duty station “for detachment and transfer to U. S. Naval Hospital, Mare Island, California,” and his orders were so endorsed.

8. The Commanding Officer, Naval Air Base, 12th Naval District, Alameda, California, by dispatch 302349 of October 1946, ordered the plaintiff to:

TURN OVER COMMAND NEXT SENIOR ABOARD AND REPORT HOSPITAD NO LATER THAN ONE NOVEMBER X FURNISH THIS COMMAND WITH COPY ORDERS AND ALL ENDORSEMENTS X

On November 1, 1946, in accordance with his basic orders of September 30, 1946, and the above-quoted dispatch, the plaintiff, as his own commanding officer, ordered himself detached and to “Proceed and report this date to Commanding Officer, U. S. Naval Hospital, Mare Island, California.”

9. The plaintiff was admitted to the Mare Island Naval Hospital on November 1,1946, with, diagnosis undetermined. On November 9,1946, a diagnosis of arthritis, chronic, lumbar spine (post-traumatic), was established. After treatment with no improvement in his physical condition, the plaintiff appeared December 5,1946, before a board of medical survey at the Hospital. The board found that the plaintiff was disabled by reason of arthritis, chronic, lumbar spine (post-traumatic), not the result of his own misconduct and incurred in line of duty, and that he was permanently unfit for service. It recommended that the plaintiff be ordered to appear before a Naval Retiring Board.

10. The findings and recommendation of the board of medical survey of December 5, 1946, were transmitted the following day to the Bureau of Medicine and Surgery. On December 16,1946, the Bureau of Medicine and Surgery forwarded them to the Bureau of Naval Personnel with the following endorsement:

1. Forwarded. Recommendation of Board DISAPPROVED.
2. This officer continued in a full duty status including flight duty until recently. He has been on the sick list only since 1 Nov. 1946 and presents no recently acquired disease process. There has been no recent worsening of his state of health.
3. It is recommended that he be returned to duty.

On January 9,1947, the Chief of Naval Personnel endorsed the findings and recommendation of the Board of medical survey with this notation: “Preceding endorsement (of the Bureau of Medicine and Surgery) approved.”

11. Following the action of the Chief of Naval Personnel on January 9,1947, the Mare Island Naval Hospital retained the plaintiff as a patient for further treatment because his “symptoms continued unabated.” After further treatment without improvement, the plaintiff again appeared before a board of medical survey at the Hospital. The board found, on April 17, 1947, that the plaintiff was disabled by reason of arthritis, chronic, lumbar spine (post-traumatic), not the result of his own misconduct and incurred in line of duty, and that he was unfit for duty with an indefinite probable future duration. The board recommended that the plaintiff be retained as a patient for further treatment.

12. The findings and recommendation of the board of medical survey of April 17, 1947, were transmitted to the Bureau of Medicine and Surgery. On May 13, 1947, the Bureau of Medicine and Surgery forwarded them to the Bureau of Naval Personnel with the endorsement “Eecom-mendation of board approved.” On May 21, 1947, the Chief of Naval Personnel approved the findings and recommendation of the board.

13. After May 21, 1947, the plaintiff received treatment two or three times per week at the Mare Island Naval Hospital. His arthritic condition unproved by reason of symptomatic treatment and physiotherapy. On August 11,1947, he again appeared before a board of medical survey at the Hospital. The board found that the plaintiff had arthritis, chronic, lumbar spine (post-traumatic), not the result of his own misconduct and incurred in line of duty, but that he had improved and was fit for duty. The board recommended that he be returned to duty.

The plaintiff was informed of the findings and recommendation of the board, and submitted a signed “statement in rebuttal” to accompany the findings and recommendation. His statement in rebuttal read in part as follows:

Due to the fact that this injury has caused my activities to become considerably limited and the fact that the condition of my back has grown progressively worse during the last few years, with every indication that the condition will continue to grow worse, it is requested that I be allowed to appear before a Naval Eetiring Board.

14. On August 22, 1947, the findings and recommendation of the board of medical survey of August 11, 1947, together with the plaintiff’s statement in rebuttal requesting that he be allowed to appear before a Naval Eetiring Board, were transmitted to the Bureau of Medicine and Surgery. On August 29, 1947, the Bureau of Medicine and Surgery approved the board’s recommendation that the plaintiff be returned to duty. The board’s findings and recommendation and plaintiff’s statement were promptly forwarded to the Bureau of Naval Personnel. On September 15, 1947, the Chief of Naval Personnel approved the findings and recommendation of the board. The plaintiff’s request that he be allowed to appear before a Naval Retiring Board was not referred to by either the Bureau of Medicine and Surgery or the Chief of Naval Personnel. He has never been afforded an opportunity to appear before such a board.

15. On August 15,1947, the Medical Officer in Command, Mare Island Naval Hospital, hereinafter referred to as “the Medical Officer,” sent the following telegram to the Bureau of Naval Personnel:

COMDR GEORGE L. RICHARD USN 29765 FOUND FIT FOR DUTY WITH RECOMMENDATION HE BE RETURNED TO DUTY BY BOARD OF MEDICAL SURVEY ON 11 AUGUST 1947 X FOUND PHYSICALLY QUALIFIED AND AERO-NAUTICALLY QUALIFIED FOR DUTY IN SERVICE GROUP NR THREE X REQUEST AUTHORITY CARRY OUT PERS ORDERS 27647 DATED 30 SEPTEMBER 1946 TO COMDR RICHARD

On August 19, 1947, the Bureau of Naval Personnel by direction of the Chief of Naval Personnel wrote the Medical Officer in pertinent part as follows :

1. By * * * [telegram of August 15] you request authority to carry out release from active duty orders in the case of * * * [plaintiff].
2. Under the operation of reference (b) [the Act of February 21,1946] subject officer was recommended for retirement, which was to become effective not later than 1 January 1947. He was subsequently notified that he would not be retained on Active duty after 1 January 1947,; his separation orders stated unequivocally that he would regard himself relieved of all active duty on 1 January 1947. In view thereof, Commander Richard is not entitled to active duty pay or allowances subsequent to 1 January 1947.
3. Examination of this officer’s record on file in the Department reveals that his final retirement letter [of January 2, 1947] was not received by him * * *. The letter is accordingly forwarded for delivery to Commander Richard in order that he may take appropriate action in connection with establishing his retired pay status.

On August 26, 1947, after the receipt of this letter, the Medical Officer delivered to the plaintiff a copy of the retirement letter of January 2,1947, advising him that he had been placed on the retired list. On August 28, 1947, the Medical Officer, as the plaintiff’s commanding officer, discharged the plaintiff from hospitalization and treatment, and directed him to comply with the letter orders of September 30,1946, referred to in finding 6.

16. The retirement letter of January 2,1947, referred to in finding 13, is in pertinent part as follows :

1. The President of the United States having approved the recommendation of a special Board, appointed by me, you were on 1 January 1947 transferred to the retired list. I have determined that your performance of duty in the rank of Commander under a temporary appointment has been satisfactory. Accordingly, you were transferred to the retired list with the rank of Commander and with the retired pay of that rank, pursuant to the provisions of U. S. Code, Title 34, Sections 410a and 410c.
❖ # # % *
3. Acknowledgment of receipt is requested.

Plaintiff did not receive this letter in due course of mail although it was sent to the address furnished by plaintiff and carried on the Navy records.

17. Although the first formal notice to the plaintiff that he had been retired effective January 1,1947, was his receipt on August 26,1947, of a copy of the notice of his retirement dated January 2, 1947, he had been definitely informed several months prior to that date that his active duty service would terminate not later than January 1,1947. He acknowledged receiving such information in his letter of July 29, 1946. He also received his orders dated September 30,1946, which stated among other things: “You will regard yourself relieved of all active duty in the U. S. Navy on January 1, 1947.” He was also informed that a formal notice placing him on the retired list would be subsequently forwarded to him.

18. The record shows that, regardless of prior notices to the effect that his active duty would end January 1, 1947, plaintiff was paid, during the period from November 1,1946, to August 16, 1947, while receiving treatment at the Mare Island Naval Hospital, the active-duty pay and allowances of a commander with over 27 years’ service and not over 30 years’ service. When he desired to absent himself from the Hospital for an extended period, he applied for leave to the commanding officer of the Hospital. Naval records show that he was granted leave on three occasions: on March 31, 1947, for seven days; on August 2, 1947, for ten days; and on August 19, 1947, for five days. On other occasions, and for shorter periods, he was permitted to be absent from the hospital without issuance of formal leave orders.

19. After August 16, 1947, the plaintiff was charged by the Navy Department with an overpayment of $4,952.70 representing the active-duty pay and allowances he had received for the period January 1 to August 16, 1947, and was credited with $2,574.49 representing the retired pay of a commander with over 27 years’ service and not over 30 years’ service for such period. By direction of the Secretary of the Navy, the difference between the “overpayment” and the credit or $2,378.21 was collected from the plaintiff through complete stoppage of his pay effective until April 1948.

20. In a letter of August 28, 1947, to the Chief of Naval Personnel, the plaintiff reviewed the history of his case and concluded as follows:

11. In view of the above, it is requested that my status of active duty be extended to 26 August 1947. If this is impracticable, it is requested that I be recalled to active duty as a retired officer as of 1 January 1947.

21. On September 23,1947, the Chief of Naval Personnel answered the plaintiff’s letter of August 28, 1947, referred to in finding 20 and stated as follows:

Copy
Pers. 325-PRS/smh
29765
NAVY DEPARTMENT
BUREAU OF NAVAL PERSONNEL
From: Chief of Naval Personnel.
To: Commander George L. Richard, USN, Retired 23 Sep 1947.
Via: Medical Officer in Command,
U. S. Naval Hospital,
Mare Island, California.
Subj: Active Duty Status — request for.
Ref: (a) Yourletterof28August 1947.
(b) BuPers dispatch 281502 of October 1946.
(c) AlNav 586 of 7 November 1946.
1. By reference (a) you request that your retention on the active list be extended to 26 August 1947 or otherwise that you be recalled to active duty retroactive to 1January 1947. This request is based upon the assumption that your retirement proceedings were held in complete abeyance during hospitalization by the effect of your orders of 30 September 1946, which stated in pertinent part: “If hospitalized, further compliance with these orders is delayed until you are ready for discharge from treatment.” This quoted sentence referred to discharge from treatment and proceeding home, and did not in any way change the effective date of your retirement, which was stated later in the same orders.
2. In view of the personal notification addressed to you on 15 June 1946, by the Chief of Naval Personnel the retirement date given in your orders, BuPers dispatch to all hospitals, 281502 of October 1946, and AlNav 586 of 1946, it is difficult to understand why your status was not clearly understood.
3. In paragraph 7 of reference (a), it is stated that the final retirement letter from the Secretary of the Navy was not received until 26 August 1947. This letter is never delivered until after retirement has become effective, and there have been cases similar to yours where several months have elapsed before the officer concerned has received this letter.
4. The President’s action in your case was final and it is legally impossible to recall you to active duty effective retroactively.

22. After the plaintiff’s request of August 28,1947, that his active-duty status be extended to August 26,1947, was denied by the Chief of Naval Personnel, the plaintiff continued to protest the action of the Navy Department in releasing him from active duty and retiring him effective January 1, 1947. On J une 21,1948, the Board for Correction of Naval Records, made a documentary review of plaintiff’s naval record and stated in part:

1. Petitioner admits that he received his orders on 30 September 1946; and it is clear from the record that he was well aware of his proposed retirement as of 1 January 1947. He had been selected for compulsory retirement by a “Plucking Board” pursuant to Public Law 305, 79th Congress and his file indicates that at the time he was selected for retirement he was not then undergoing medical treatment.
* * ^ Hi
7. CONCLUSION: After careful consideration of Petitioner’s Naval Record, evidence submitted by him or on his behalf, and applicable statutes, regulations and policies, this Board concludes that under normal standards of Naval law, administration and practice, no correction of Naval record is warranted.
Bemarhs:
The compulsory retirement of Petitioner as the result of his selection therefor pursuant to Public Law 305, 79th Congress, and his notification thereof in his orders of 30 September 1946 resulted in establishing his retired status as of 1 January 1947. That date is itself established in the statute; and could not have been changed even if Petitioner had not been informed of the date. He had actual as well as constructive knowledge that he would be and was retired on 1 January 1947. Although the wording of his orders of 30 September 1946 was somewhat ambiguous those orders were adequate notice to any reasonable man that he was to be retired as of 1 January 1947, whether hospitalized or not. Indeed, had it been mistakenly intended by the writer of those orders that hospitalization should postpone date of retirement, such result would have been ultra vires, Public Law 305 (sec. '5) which establishes the retirement date.
8. DECISION: No change.
The Board found no error or injustice in this record.

Following review and approval by the Secretary of the Navy of the foregoing action of the Correction Board, the Chairman of the Board by letter of June 24,1948, informed the plaintiff that the decision of the Board was, “That no error or injustice is found in your record under applicable standards of Naval law, administration or practice.”

23. In the early part of 1952 the plaintiff addressed a letter to the Secretary of the Navy upon the subject of his retirement by which he asked that the date of his retirement be determined as of August 28,1947, and that the order of the Secretary of the Navy stopping his pay be rescinded.

By letter dated May 7, 1952, the Special Assistant to the Secretary of the Navy wrote the plaintiff as follows:

It is with a great deal of regret that I must inform you that your new application to the board for review of records has again been turned down.
There are two steps now remaining for you to take, and I leave it to your discretion. The first suggestion is for you to file a claim with the Comptroller General. I believe that you will need legal assistance for this.
Secondly, our JAG proposes to prepare a request for a decision by the Comptroller General as to your entitlement to this pay. However, this proposed request will first have to be cleared through the Committee on Military Pay and Allowance in the office of the Secretary of Defense, for whom, of course, we can make no commitment in advance.
We are all still sympathetic to your request in this matter but that is about all that we can do when it comes to these legal boards which are set up with unilateral power.

24. The plaintiff has not filed a claim with the Comptroller General in respect of his retirement and release from active duty effective January 1,1947. The Judge Advocate General of the Navy submitted to the Comptroller General the question of whether the plaintiff was entitled to retain active-duty pay and allowances received after December 31, 1946. The Comptroller General, in an opinion dated December 15, 1952, replied in the negative. If plaintiff is credited with continuous active duty after December 31, 1946, he completed 30 years’ service on August 16,1947.

25. From January 1, 1947, the plaintiff has received or been credited with the retired pay of a commander with over 27 years’ service.

A statement of plaintiff’s naval service, as reported by the Chief of Naval Personnel, under date of 10 November 1947, to the Chief, Bureau of Supplies and Accounts, is as follows:

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover, and his petition is therefore dismissed. 
      
      
        Denby v. Berry, 263 U. S. 29.
     