
    THOMAS COMMINGS v. THE UNITED STATES
    [No. 43773.
    Decided November 6, .1939]
    
      Mr. Mahlon C. Masterson for the plaintiff. Ansell, AnseTl c& Marshall were on the briefs.
    
      Mr. Louis R. MeMinger, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.
   Wi-ialey, Chief Justice,

delivered the opinion of the court:

On December 15, 1915, plaintiff had served thirty years in the Army and on that day he was promoted to regimental sergeant major. After he had been promoted and was serving in this grade he made an application for retirement. Under the Act of March 2, 1907, 34 Stat. 1217, an enlisted man who has served thirty years, upon making application to the President is given the right to retire in the grade in which he is then serving and to receive seventy-five per centum of the pay and allowances he is then receiving. In the Blackett case, 81 C. Cls. 884, it is held that Congress gave a right which is unconditional and cannot be affected by any act of a superior officer or even the Commander-in-Chief of the Army.

Subsequent to the filing of plaintiff’s application for retirement to the President, the Adjutant General disapproved his application for the reason that plaintiff had been promoted solely for the purpose of receiving advanced retirement pay. The record shows that plaintiff had a meritorious service in the Army and was capable of performing the duties of the grade to which he had been promoted and in which he was serving at the time the application was made. No policy of the military establishment or opinion of the Adjutant General as to the propriety of an enlisted man being retired in any particular grade can affect the right granted by Congress. Action by the department, after the thirty years have been served and application made by the enlisted man, in reduction of rank or any other change of status, is unwarranted and a nullity.

Plaintiff is entitled to .recover the difference between the retired pay and allowances of a regimental sergeant major and the retired pay and allowances of a color sergeant.

The statute of limitations, 1069 Revised Statutes, sec. 156, judicial code, permits recovery only to six years prior to the commencement of suit. Recovery back of that date is barred. Plaintiff is therefore entitled to recover the retired pay and allowances of a regimental sergeant major from November 1, 1931. The claim is a continuing one.

Entry of judgment will be suspended to await the coming in of a report from the General Accounting Office showing the amount due plaintiff in accordance with this opinion. It is so ordered.

Williams, Judge, Littleton, Judge; and Green, Judge, concur.

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