
    DELOS C. EMMONS v. THE UNITED STATES
    [No. C-783.
    Decided February 14, 1927]
    
      On the Proofs
    
    
      Army pay; detail to aviation duty; effect of order. — During the period that a duly qualified junior military aviator is detailed to “ duty requiring him to participate regularly and frequently in aerial flights” he is entitled to the pay provided for such duty.
    
      Same; acceptance of less than statutory pay. — Where a statute fixes the pay of an Army officer his compensation rests upon an act of Congress and not upon a contract, and his acceptance of less than the statutory compensation does not estop him from claiming the full amount.
    
      The Reporter’s statement of the case:
    
      Mr. Cornelius M. Bull for the. plaintiff. Mr. George A. King and King c§ King were on the brief.
    
      Mr. John G. Ewing, with whom was Mr. Assistant Attorney General Merman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. The plaintiff, Delos C. Emmons, was an officer, aviation section of the Signal Corps, United States Army. By orders from the War Department, dated July 14, 1917, plaintiff was ordered to report to headquarters of the Western Department, San Francisco, for assignment to duty as aeronautical officer of that department. Having reported to headquarters on July 27, he was assigned to duty as aeronautical officer, Western Department, with station in San Francisco, to date from July 27, 1917. By special orders No. 172 of the War Department, dated July 26, 1917, the plaintiff, together with other officers named, was announced as on duty “ that requires them to participate regularly and frequently in aerial flights from the dates indicated after their names, * * * First Lieut. Delos C. Emmons, aviation section, Signal Corps, March 5, 1917.” By the same orders, designated officers, among them Capt. Delos C. Emmons, “ now detailed in the aviation section of the Signal Corps,” were rated as junior military aviators. These orders remained in force during the entire period covered by this claim.
    II. On December 4, 1917, the Secretary of War directed that plaintiff proceed, when relieved, to Washington, D. C., and report upon arrival to the Chief Signal Officer of the Army for duty, and on December 7, 1917, the plaintiff was relieved as department aeronautical officer at San Francisco and proceeded to Washington where he reported for duty on arrival and was assigned to duty as aeronautical officer in the office of the Chief Signal Officer, United States Army, and served until February 28, 1918.
    III. On September 5, 1923, on motion of plaintiff, the court made a call on the War Department, asking, among other things, for “ a statement showing all aerial flights made by claimant between the dates of July 27, 1917, and March 1, 1918,” and on September 29, 1923, the reply of the War Department to this call was filed in the clerk’s office. In this reply it is stated, among other things, that there was inclosed “ a transcript of the flying record of Lieutenant Emmons covering the period in question. Dates on which flights were performed are not of record.” This transcript of plaintiff’s flying record, inclosed in said reply, is as follows:
    WAR DEPARTMENT AIR SERVICE
    
      Transcript of the flying record, of D. 0. Emmons, major, A. S. active duty as shown by Pilot Booh while stationed at various stations for the period from March, 1917, to September 16, 1920
    
    
      
    
    IV.Plaintiff received no flying pay previous to March 1, 1918. If entitled to flying pay in his rank as a captain, aviation section, Signal Corps, with more than 10 years’ service, from July 26, 1917, to February 28, 1918, inclusive, he would receive additional pay at the rate of 50 per cent of $240 a month, pay of his grade, namely, $120 a month, making a total for the period of $860.
    Y. During said period of July 26, 1917, to February 28, 1918, inclusive plaintiff prepared his own pay vouchers, claiming the pay and allowance of the next highest grade, that of major; certified said vouchers as being correct; presented the same to an Army disbursing officer, and received payment thereof, neither claiming nor protesting at not receiving 50 per cent increase of pay for being on duty requiring “ regular and frequent aerial flights.” Plaintiff made such certificates and received flying pay for the period immediately preceding the period of this claim.
    The court decided that plaintiff was entitled to recover $860.00.
   CaMpbell, Chief Justice,

delivered the opinion of the court:

Plaintiff, a junior military aviator, sues for 50 per cent increase in the pay of his grade and length of service, relying upon section 13 of the act of June 3, 1916, 39 Stat. 175, which provides:

“ * * * duly qualified junior military aviator shall, while so serving, have rank, pay, and allowances of one grade higher than that held by him under his commission if his rank under said commission be not higher than that of captain, and while on duty requiring him to participate regularly and frequently in aerial flights he shall receive, in addition, an increase of 50 per centum in the pay of his grade and length of service under his commission. * * * ”

During the period for which claim is made plaintiff was detailed to duty as aeronautical officer, first at the Western Department, San Francisco, and after that in the office of the Chief Signal Officer at Washington, D. C. He was announced, by special orders issued from the War Department, as on duty that required him to participate regularly and frequently in aerial flights, and by the same orders was rated as a junior military aviator and detailed in the avia-, tion section of the Signal Corps. During the whole period for which he now seeks increased pay he was under' these orders. The provision of the statute authorizing an increase in the pay of an officer “while on duty requiring him to participate regularly and frequently in aerial flights ” is not materially different from the provision of the act construed in the Lushey ease, 262 U. S. 62, affirming the judgment of this court in 56 C. Cls. 411. We said in this case: “When, therefore, the plaintiff was lawfully detailed to duty involving actual flying in aircraft he must be regarded and treated as entitled to the consequences of such detail and to the pay provided for such duty.” See also Marshall case, 59 C. Cls. 900; Matteson case, 60 C. Cls. 880. In the Clark case, 60 C. Cls. 589, the plaintiff, with- other officers was “ announced as on duty requiring them to participate regularly and frequently in aerial flights from February 12, 1918.” The order continued in force during the period covered by the claim. He sued for the pay authorized by the act of June 4,1920, 41 Stat. 169, section 13 (a) of which provides: “ Officers and enlisted men of the Army shall receive an increase of 50 per centum of their pay while on duty requiring them to participate regularly and frequently in aerial flights.” Following the Lushey case, the court said (p. 591) : “ When an officer is on duty requiring him to participate regularly and frequently in aerial flights he is entitled to the pay provided for in the statute during the time he is on such duty from the day he is placed on such duty until he is detached therefrom.” See also Bradshaw case. No. D-322, decided November 16, 1926, 62 C. Cls. 638.

The orders in the instant case directed the plaintiff to report to headquarters of the Western Department for assignment to duty as aeronautical officer of that department. By special orders dated July 26, 1917, plaintiff was announced as on duty requiring him to participate regularly and frequently in aerial flights. We think the facts bring the case within the meaning and intent of the statute and that the plaintiff is entitled to the increased-pay for which he sues.

A second defense interposed by the Government is that the plaintiff is now estopped from claiming increase in pay for the period in question. This defense is predicated upon a finding made at the request of defendant (Finding V) that the plaintiff made out his pay vouchers and did not claim the increase now sued for, and certified to the correctness of the vouchers, and that he was paid the amount of them and accepted payment without protest. The pay here claimed is provided for by statute, and his receipt of less than the statute authorized and required to be paid does not estop him from claiming the amount legally due. The case of Garlinger, 169 U. S. 316, is not applicable in a case where the claim of the officer is for an amount due by statute. The distinction between the two classes of cases— one upon an implied contract and the other for a statutory allowance — is made in Whiting'1 s ease, 35 C. Cls. 291, 301. In Bancroft's case, 56 C. Cls. 218, which was a suit to recover a uniform gratuity provided for by statute, and in which it appeared that a waiver of all claim to this uniform gratuity had been made, the Government insisted on the waiver as a defense. This court said: “ It is not necessary to discuss the rule at length. It is well settled to the general effect that agreements to forego any part of a statutory compensation will not be enforced and that recovery may be had for a. withholding under such agreement.” The judgment was affirmed, 260 U. S. 106. See also Glavey, 182 U. S. 595; Andrews, 240 U. S. 90; Katzer ease, 52 C. Cls. 32, 37. The compensation sought in this case is fixed by statute. It does not rest “upon any contract, express or implied, with the Government but upon acts of Congress which provided for his compensation.” McDonald case, 128 U. S. 471; Embry case, 100 U. S. 680, 685.

Our conclusion .is that the plaintiff is entitled to recover the increased compensation. And it is so ordered.

Moss, Judge; Graham, Judge; Hat, Judge; and Booth, Judge, concur.  