Boruski v. United States, 418-56.

Decision Date09 October 1957
Docket NumberNo. 418-56.,418-56.
Citation155 F. Supp. 320,140 Ct. Cl. 1
PartiesErnest F. BORUSKI, Jr. v. The UNITED STATES.
CourtU.S. Claims Court

Thomas H. King, Washington, D. C., for plaintiff. Robert T. S. Colby, Washington, D. C., was on the brief.

Ernest R. Charvat, Washington, D. C., with whom was George Cochran Doub, Asst. Atty. Gen., for defendant.

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

JONES, Chief Judge.

This is a suit for the recovery of pay and allowances and other benefits to which plaintiff would otherwise have been entitled from the date of the execution of a court-martial conviction and sentence for manslaughter on July 23, 1945, to August 28, 1951, the date that sentence was vacated by the Judge Advocate General of the Air Force pursuant to authority granted him by Article of War 53* and the Act of May 5, 1950, 50 U.S.C.A. § 740, 64 Stat. 147, and an honorable discharge substituted therefor.

Plaintiff, a West Point graduate, received his commission as a second lieutenant in the Army Air Force in June 1943, and was subsequently promoted to first lieutenant on December 1, 1943. He was serving with the Army Air Force in that capacity when he was involved in an airplane accident which caused the death of a passenger in the airplane which he was piloting. At the ensuing court-martial plaintiff was found guilty of manslaughter, the findings apparently indicating that he was guilty of culpable negligence in causing the air accident. He was thereupon sentenced to dismissal from the service, to forfeit all pay and allowances due or to become due, and to be confined at hard labor for six months. The sentence was approved on appellate review and confirmed by the Undersecretary of War. The forfeiture and confinement were remitted, however, and, as thus modified, the sentence was ordered executed. The dismissal was effectuated as of midnight July 23, 1945, and plaintiff's certificate of dismissal bore that date.

Pursuant to Article of War 53 and section 12 of the Act of May 5, 1950, supra, plaintiff on April 3, 1951, requested that the sentence of dismissal be vacated and that he be granted an administrative discharge or, in the alternative, a new trial. The petition alleged that the evidence at the trial was insufficient to support the findings of guilty of manslaughter.

Article of War 53 is as follows:

"Petition for New Trial.—Under such regulations as the President may prescribe, the Judge Advocate General is authorized, upon application of an accused person, and upon good cause shown, in his discretion to grant a new trial, or to vacate a sentence, restore rights, privileges, and property affected by such sentence, and substitute for a dismissal, dishonorable discharge, or bad conduct discharge previously executed a form of discharge authorized for administrative issuance, in any court-martial case in which application is made within one year after final disposition of the case upon initial appellate review: Provided, That with regard to cases involving offenses committed during World War II, the application for a new trial may be made within one year after termination of the war, or after its final disposition upon initial appellate review as herein provided, whichever is the later: Provided, That only one such application for a new trial may be entertained with regard to any one case: And provided further, That all action by the Judge Advocate General pursuant to this article, and all proceedings, findings, and sentences on new trials under this article, as approved, reviewed, or confirmed under articles 47, 48, 49, and 50, and all dismissals and discharges carried into execution pursuant to sentences adjudged on new trials and approved, reviewed, or confirmed, shall be final and conclusive and orders publishing the action of the Judge Advocate General or the proceedings on new trial and all action taken pursuant to such proceedings, shall be binding upon all departments, courts, agencies, and officers of the United States."

Section 12 of the Act of May 5, 1950, as codified, is as follows:

"Under such regulations as the President may prescribe, The Judge Advocate General of any of the armed forces is authorized upon application of an accused person, and upon good cause shown, in his discretion to grant a new trial, or to vacate a sentence, restore rights, privileges, and property affected by such sentence, and substitute for a dismissal, dishonorable discharge, or bad-conduct discharge, previously executed, a form of discharge authorized for administrative issuance, in any court-martial case involving offenses committed during World War II in which application is made within one year after termination of the war, or after its final disposition upon initial appellate review whichever is the later: Provided, That only one such application for a new trial may be entertained with regard to any one case: And provided further, Within the meaning of this section and of Article of War 53, World War II shall be deemed to have ended as of May 31, 1951."

The Judge Advocate General of the Air Force on August 28, 1951, pursuant to the authority conferred upon him by the above-quoted article and statute, ordered that "the findings of guilty and the sentence are vacated, all rights, privileges, and property of which petitioner has been deprived by virtue of the findings and sentence so vacated will be restored, and an honorable discharge certificate will be substituted in lieu of the dismissal previously executed."

The Judge Advocate General found from the facts surrounding the air crash in which plaintiff was involved that they "do not prove negligence sufficiently culpable to justify the conviction of manslaughter," and that "after careful consideration of all the evidence, I am convinced that it does not establish guilt legally or sufficiently * * * consequently, I find that an injustice has resulted from the findings and sentence and that there is good cause for granting the relief sought."

As directed, an honorable discharge was substituted but bore the date July 23, 1945, the date of the execution of the court-martial sentence.

Plaintiff here seeks to recover all rights, privileges and property of which he was deprived by virtue of the original erroneous finding from the date sentence was executed to the date of its vacation by the Judge Advocate General. Plaintiff in paragraph 5 of his petition lists such deprivations as: a commission in the regular Air Force of the United States; the pay and allowances of the rank held at the time of dismissal (first lieutenant); the periodic promotions that would have occurred, together with pay and allowances of each (captain, June 1, 1945; major, February 15, 1951); the emoluments due him under the GI Bill of Rights; accrued leave; hazard pay for performing flight duties during the entire period.

Defendant points out that for anyone to receive pay as a commissioned officer of the armed forces of the United States he must be the legal holder of that office and that the only way to become an officer is by Presidential appointment with the advice and consent of the Senate. Defendant, therefore, contends that inasmuch as the plaintiff was dismissed, rightly or wrongly, from the service on July 23, 1945, he is entitled to no pay as an officer since he did not have a legal right to the office from that date forward, and because there was no subsequent appointment by the President with the advice and consent of the Senate.

Thus, the crux of defendant's argument is that the Judge Advocate General's action did not in any...

To continue reading

Request your trial
16 cases
  • Carter v. Seamans
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 8, 1969
    ...e. g., Caddington v. United States, 178 F.Supp. 604, 147 Ct.Cl. 629 (1959); Egan v. United States, supra. Cf. Boruski v. United States, 155 F.Supp. 320, 140 Ct.Cl. 1 (1957). 19 Supra at 771-772. 20 See, e. g., King v. United States, supra, and cases cited therein at 907 of 390 F.2d. 21 Cf. ......
  • Rawlins v. United States, 456-79C.
    • United States
    • Court of Federal Claims
    • November 19, 1980
    ...604, 606, 423 F.2d 1367 (1970); Muldonian v. United States, 193 Ct.Cl. 99, 107, 432 F.2d 443, 446-47 (1970); Boruski v. United States, 140 Ct.Cl. 1, 155 F.Supp. 320, 324 (1957). In Brenner v. United States, supra, we refused to promote a Navy lieutenant whose claim for promotion was practic......
  • Boruski v. Stewart
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 13, 1974
    ...should have been made effective as of August 28, 1951, and awarded back pay from July 23, 1945, to that date. See Boruski v. United States, 155 F. Supp. 320 at 324 140 Ct.Cl. 1. The judgment for back pay was paid in full by the General Accounting Office in It was not until August 29, 1969, ......
  • Sharpe v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 27, 2019
    ...premium when he never actually went to sea or performed any sea duties." Id. at 818–19. The court relied on Boruski v. United States , 155 F. Supp. 320 (Ct. Cl. 1957), where the court held that a service member was not entitled to "flight pay" because the member "did not participate in any ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT