Scott v. United States, 50335.

• Decision Date: 07 October 1952
• Docket Number: No. 50335.,50335.
• Citation: 107 F. Supp. 846,123 Ct. Cl. 547
• Parties: SCOTT v. UNITED STATES.
• Court: U.S. Claims Court

107 F. Supp. 846

123 Ct. Cl. 547

SCOTT v. UNITED STATES.

No. 50335.

United States Court of Claims.

Decided October 7, 1952.

Mahlon C. Masterson, Washington, D. C. (Burr Tracy Ansell, Washington, D. C., on the brief), for the plaintiff.

John I. Heise, Jr., Washington, D. C., Holmes Baldridge, Asst. Atty. Gen., for the defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judges.

LITTLETON, Judge.

The plaintiff was retired in the rank of Lieutenant Commander of the United States Coast Guard on October 1, 1945, for physical disability. At the time and prior to his retirement his active-duty pay and allowances were at the rate of $662 per month. In this proceeding plaintiff seeks to recover the amount of his active-duty pay and allowances of which he was in receipt up to the time of his retirement for a period of 120 days after October 1, 1945, less his retired pay, on the ground that he had accumulated that amount of leave at the rate of 30 days a year and such leave was illegally denied him by the Commandant of the United States Coast Guard, by direction of the Secretary of the Navy.

The parties have signed and filed a stipulation of facts and have submitted certain official documents having reference to plaintiff's retirement and his claim herein. The stipulation sets forth (1) that during the period from October 1, 1941, to October 1, 1945, the plaintiff had accumulated 120 days' leave, exclusive of sick leave, at the rate of 30 days a year; (2) that on October 1, 1945, the date of his retirement, plaintiff had to his credit 120 days' unused leave, exclusive of sick leave; (3) that plaintiff was not granted any terminal leave at the time he was released from active duty and placed on the retired list on October 1, 1945, or at any time thereafter, nor was he granted any compensation in lieu of such unused leave; and (4) that at no time prior to October 1, 1945, did plaintiff receive other than active-duty pay and allowances.

From November 1, 1941, to December 29, 1945, the Coast Guard operated, pursuant to Executive Order 8929, 14 U.S.C.A. § 1 note, as a part of the Navy subject to the orders of the Navy.

On April 25, 1945, an order was issued by the Commandant of the Coast Guard and sent to plaintiff in the form of a letter stating in part that "You are detached from all duties previously assigned you and placed in a status of awaiting orders pending action on the proceedings of the retiring board held in your case." Paragraph 5 of this letter informed plaintiff that "In accordance with the decision of the Comptroller General all accumulated leave is cancelled upon the effective date of an officer's retirement. During the period you are awaiting retirement, you are entitled to accept civilian employment and wear civilian clothes at your option."

As above stated, the defendant admits that plaintiff was not specifically given any leave, exclusive of sick leave, prior to October 1, 1945, the date of his retirement; that on the date of his retirement plaintiff had to his credit 120 days of unused leave, and that "all leave accumulated at the time of retirement was cancelled by action of the Secretary of the Navy." Plaintiff's leave was accumulated during the period of National Emergency and War, October 1, 1941, to October 1, 1945.

Section 1265, Revised Statutes, 10 U.S. C.A. § 841, provides as follows:

"Pay of officers during absence from duty generally. Officers when absent on account of sickness or wounds, or lawfully absent from duty and waiting orders, shall receive full pay; when absent with leave, for other causes, full pay during such absence not exceeding in the aggregate thirty days in one year, and half pay during such absence exceeding thirty days in one year. When absent without leave, they shall forfeit all pay during such absence, unless the absence is excused as unavoidable."

The Act of July 29, 1876, 19 Stat. 102, 10 U.S.C.A. § 842, provides as follows:

"Leave of absence with pay allowable to officers. All officers on duty shall be allowed in the discretion of the Secretary of War, sixty days' leave of absence without deduction of pay or allowance Italics ours: Provided, That the same be taken once in two years; And provided further, That the leave of absence may be extended to three months, if taken once only in three years, or four months if taken only once in four years."

Section 865, U.S.C.A. Tit. 34, Act of March 3, 1899, 30 Stat. 1004, 1007, provides:

"Allowances; commissioned officers generally. Commissioned officers of the Navy shall receive the same allowances, except forage, as provided by or in pursuance of law for the officers of corresponding rank in the Army."

Section 121, U.S.C.A. Tit. 14, Act of May 18, 1920, 41 Stat. 601, 603, provides:

"Commissioned officers, warrant officers, petty officers, and other enlisted men of the Coast Guard shall receive the same pay, allowances, and increases as now are, herein are, or hereafter may be prescribed for corresponding grades or ratings and length of service in the Navy. * * *"

Article 1937 (1) of the Regulations of the Coast Guard provides for 30 days' leave for officers for each fiscal year with an accumulation not to exceed 120 days,...