Caddington v. United States, 408-57.

• Decision Date: 02 December 1959
• Docket Number: No. 408-57.,408-57.
• Citation: 178 F. Supp. 604,147 Ct. Cl. 629
• Parties: Ward W. CADDINGTON v. UNITED STATES.
• Court: U.S. Claims Court

178 F. Supp. 604

147 Ct. Cl. 629

Ward W. CADDINGTON v. UNITED STATES.

No. 408-57.

United States Court of Claims.

December 2, 1959.

James M. McCullough, Washington, D. C., for plaintiff. Leo J. McCullough, Washington, D. C., and Edwin L. Bright, Bethesda, Md., were on the brief.

Arthur E. Fay, Washington, D. C., with whom was Asst. Atty. Gen. George Cochran Doub, for defendant.

JONES, Chief Judge.

Plaintiff seeks to recover the difference between 75 percent of the pay of a lieutenant colonel with over 24 years of service, which he has been receiving, and 75 percent of the pay of a colonel with over 24 years of service, to which he claims he is entitled, from September 17, 1945, the date of his retirement from the Army for physical disability. There is no dispute as to any material fact.

After 20 years of service in the Maryland National Guard and the National Guard of the United States, plaintiff was ordered into Federal service early in 1941 in the grade of captain, National Guard of the United States. During 1941, he was appointed major, National Guard of the United States, and on September 4, 1942, he was appointed lieutenant colonel, Army of the United States. In August 1944, plaintiff was hospitalized following a combat injury, and on June 26, 1945, he was found permanently unfit for further military service by reason of physical disability. He was retired on September 17, 1945, in the grade of lieutenant colonel, with 40 percent disability. He has received retired pay from that date at the rate of 75 percent of the pay of a lientenant colonel with over 24 years of service as provided by statute.¹

By TWX message dated December 13, 1945, the Adjutant General of the Army announced an administrative policy (hereinafter called "the Terminal Leave Promotion Policy" or "the Policy") which provided, in substance, for one-grade promotions for officers who possessed certain qualifications.

On March 1, 1956, the plaintiff applied to the Army Board for the Correction of Military Records, requesting that his records be corrected to reflect "promotion to full colonel under terminal leave promotion policy which was established Dec. 13, '45 if not otherwise eligible." In the application, he stated that he had been recommended for promotion to full colonel while still on active duty but that the promotion had never actually been made because of his injury and hospitalization and certain administrative errors. As a result of this application, a hearing was held at which plaintiff and his counsel were present. The Board made certain findings, conclusions, and recommendations based on the evidence presented to it.

The Board found that plaintiff had been in grade as a lieutenant colonel, Army of the United States for 36 months and that during such period his efficiency index exceeded 40. It found that the Terminal Leave Promotion Policy entitled officers with those qualifications to promotion to full colonel "incident to their relief from active duty." The Board concluded that plaintiff was eligible for promotion to colonel, Army of the United States under the Policy and that his failure to receive such promotion was in error and unjust. It recommended correction of all plaintiff's records to reflect the promotion, effective December 13, 1945, "provided, that the Department of the Army pay no money as a result of this correction of the record." The Secretary of the Army adopted this recommendation, including the prohibition against paying out any money, and ordered that the corrections be made.

It is plaintiff's position that he is entitled to have his promotion dated incident to his release from active duty irrespective of the hiatus between the release and the promulgation of the promotion policy. Defendant urges with equal vigor that under no interpretation of the administrative policy could the promotion be dated earlier than December 13, 1945, and that the Secretary's action has provided plaintiff with every relief to which he is due. However, we do not believe, in view of the facts revealed by the pleadings and briefs, that it is necessary to decide the issue solely on the question of whether plaintiff's recovery is dependent upon the promotion policy dated December 13, 1945. That he should be granted this relief regardless of the existence of that policy is strongly supported by the admitted facts of record.

The Legislative Reorganization Act of 1946, 60 Stat. 812, 837,² includes provision for the Secretary of each armed force to correct records of his department where, in his judgment, it is necessary to correct an error or to remove an injustice. He is authorized to act through boards of civilian officers in this task. The act is remedial in nature. We believe that this imposes on the Secretary the twofold duty to properly evaluate the nature of any error or injustice and, in addition, to take such corrective action as will appropriately and fully erase such error or compensate such injustice.

From the facts contained in plaintiff's service records and the uncontroverted testimony before the Correction Board, we find that plaintiff should have been promoted to the rank of colonel no later than the date of his release from active duty. In fact, he undoubtedly would have been promoted but for an unfortunate loss of records while he was serving in the South Sea Islands of the Pacific. The plaintiff had an unusually good record. Prior to his being wounded, all of his ratings had been either superior or excellent. He alleges in paragraph 3 of his petition that he was recommended for promotion to colonel on his record while he was still at Guam and before he was wounded in combat on one of the other islands.

It is true that in...