Findings of Fact 124 C. Cls. b. The reference to AR 605-115 in paragraph 4 is changed to read: "AR 600-115." 2. Section IV, WD Circular 116, 1946, is amended as follows: a. The reference in paragraph 1 is changed to read: "paragraph 15, AR 600-115, 20 August 1946.” b. The reference in paragraph 7a is changed to read: "paragraph 7, AR 600-115, 20 August 1946." Before its amendment by WD Circular 271, the references in WD Circular 116 had been to the superseded AR 605–115. Because of the confusion arising out of the inconsistency between Circular 116 and paragraph 15 of AR 600-115, a change in Army Regulations 600-115 was effected by Change No. 2 dated 8 November 1946. Paragraph 15d of AR 600115 was changed by Change No. 2 to read as follows: The provisions of this paragraph do not apply to officers in the following categories, who will continue on leave while hospitalized and their retirement or relief from active duty will become effective as previously ordered. (1) Regular Army active list officers who are a) On leave prior to separation, awaiting retirement for physical disability. (b) On leave prior to separation, awaiting retirement for statutory age. (2) Retired Regular Army officers (a) Who appeared before an Army retiring board immediately prior to being placed on leave prior to separation. (b) Whose appearance before an Army retiring board has been determined by the War Department as inappropriate because no change in pay or retired status could be effected as a result of such appearance. (3) Officers other than Regular Army on leave prior to separation who have appeared before an Army retiring board, the findings of which will be approved by the War Department upon completion of leave and certification made to the Veterans' Administration for retirement pay benefits. Paragraph 23k of Army Regulations 600-115 makes a cross reference to Army Regulations 605-245, paragraph 18 of which reads as follows: Leave of absence prior to retirement-Unless retired under the provisions of section 246, added to act June 415 Findings of Fact 3, 1916, by section 24, act June 4, 1920 (41 Stat. 773); 10 U. S. C. 571; M. L. 1939, sec. 225, an officer may be granted leave of absence prior to retirement. He may lose part of his leave credit in order that retirement may become effective on the first day of a month. An officer granted leave prior to retirement has one year in which to proceed to his home. See paragraph 11, AR 605–115, and paragraph 11 (4), AR 35-4830. 16. Army Regulations 605-115 dated 9 November 1945, provide as follows: 1-c. Excess leave-120 days is the maximum amount of leave which may be accrued. Any ordinary leave of absence in excess of that accrued will be granted by the War Department only under the most pressing circumstances and will be on a half-pay basis as provided in AR 35-1400. 13-d. Absence on sick leave is not counted against the annual leave allowance. 17. For the period commencing November 1, 1946, and continuing to January 24, 1947, the decedent was paid at the rate of $412.50 a month which was the rate prescribed by law for a retired officer of the decedent's grade and service. If the decedent had remained upon the active list of officers of the Army from October 30, 1946, in the rank and grade then held by him, to January 24, 1947, he would have been entitled to receive pay and allowances at the rate of $712.00 per month from November 1, 1946, to January 24, 1947, and plaintiff would be entitled to recover the difference between the amount actually paid for that period, and the amount decedent would have been entitled to had he remained on the active list. 18. If decedent had been an officer on the active list of the Army at the time of his death on January 24, 1947, the plaintiff as his widow would be entitled under the Act of December 17, 1919, 41 Stat. 367, as amended, to receive from the defendant an amount equal to six months' pay of an officer of decedent's grade and length of service at the rate of $550 a month. Payment of such amount to the decedent has been denied by the defendant on the ground that the decedent was legally retired October 31, 1946. 19. If the decedent had been on the active list of officers of the Army at the time of his death on January 24, 1947, Opinion of the Court 124 C. Cls. plaintiff, as executrix of the estate of the deceased, would also be entitled to recover, under section 421 of the Internal Revenue Code, a refund of income taxes paid by decedent to defendant on account of his income for the calendar year and in the amounts stated as follows, with interest according to law: 20. Decedent was not validly retired effective October 31, 1946; he remained in an active status continuously thereafter, and was in an active status at the time of his death on January 24, 1947. The court decided that the plaintiff was entitled to recover. MADDEN, Judge, delivered the opinion of the court: Plaintiff in this case is the widow, and executrix of the estate of, William M. Cravens, deceased, who at the time of his death on January 24, 1947, held the grade of colonel in the United States Army, and who was at that time a resident of Garland County, Arkansas. Colonel Cravens had enlisted in the Army on March 22, 1915, and had accepted an appointment in the Regular Army on December 2, 1916. He held a commission in the Army from that time until the date of his death. On June 19, 1946, Colonel Cravens appeared before an Army Retiring Board at Letterman General Hospital, Presidio of San Francisco, California, and was found to have been permanently incapacitated for active service by reason of certain physical incapacities resulting as an incident of 415 Opinion of the Court service. He thereupon returned to Fort Douglas, Utah, his duty station, on sick leave from Letterman General Hospital, in order to await action upon the Retiring Board Proceedings. He was ordered to return to Letterman on July 16, 1946, where on August 2, 1946, a biopsy and deep dissection was made for metastatic cancer in the lymph glands of his neck. Colonel Cravens was granted thirty days' sick leave, commencing August 10, 1946, by special orders from the hospital dated August 8, 1946, and he left to visit friends and relatives at Camp McQuade and Los Angeles, California. On August 22, 1946, he returned to the hospital for a checkup; and on that date the Commanding General at the hospital forwarded to him by indorsement letter orders signed by the Adjutant General, dated August 9, 1946, granting him eighty-three days' terminal leave effective August 10, 1946, and notifying him that it was contemplated announcing his retirement effective October 31, 1946, upon the completion of his terminal leave, as a result of the War Department's review of the Retiring Board proceedings. Colonel Cravens immediately returned to his duty station at Fort Douglas, and on August 29, 1946, by indorsement upon the letter orders, protested to the Adjutant General his contemplated retirement effective October 31, 1946, on the ground that his accrued leave credit, assuming the commencement of terminal leave on August 10, 1946, would not have permitted his retirement before November 30, 1946, and he requested that November 30, 1946, be made the effective date of his retirement. By the same indorsement he protested his being charged with terminal leave from August 10 to August 22, 1946, while on sick leave. He was advised by the Adjutant General on September 11, 1946, that although he had an accrued leave credit of ninetytwo days, only eighty-three days from August 10, 1946, had been granted "in order to effect his retirement at the end of the month." The acting Adjutant General by letter dated September 11, 1946, denied Colonel Cravens' request to be retired effective November 30, 1946. Colonel Cravens left Fort Douglas for his home at Fort Smith, Arkansas, about September 29, 1946. While traveling the condition of his neck became worse, and on October 8, 249444-53- -29 Opinion of the Court 124 C. Cls. 1946, he was taken to the Army and Navy General Hospital at Hot Springs, Arkansas, where he was admitted as a patient the same day. As a patient in the hospital from that time until December 13, 1946, he received continuous and intensive treatment for cancer of the tongue and neck. He returned home over the holidays, and his condition worsened. He was taken back to Army and Navy Hospital on January 21, 1947, in a dying condition, and three days later on January 24, 1947, he died of a perforated gastric ulcer and cancer of the neck. While Colonel Cravens had been a patient at Army and Navy General Hospital on October 25, 1946, the United States Army Chief of Staff, by order of the Secretary of War, issued Special Orders No. 230, which announced the retirement of Colonel Cravens effective October 31, 1946, under Section 1251 of the Revised Statutes. After the death of Colonel Cravens, in reply to an inquiry by the plaintiff as to the decedent's status, the Adjutant General on February 11, 1947, stated that the retirement orders could not be amended or revoked, as his retirement had been properly effected as required by law, and retroactive orders were illegal. Plaintiff's claim here is based upon the proposition that Colonel Cravens at the time of his death was still on active duty with the Army and had never been legally retired. The orders dated August 9, 1946, placing Colonel Cravens on terminal leave did not purport to retire him, but merely stated that his retirement for physical disability, effective October 31, 1946, was contemplated. The only orders ever purporting by their own terms to retire Colonel Cravens from active duty were those issued on October 25, 1946, Special Orders No. 230, which did announce his retirement effective October 31, 1946. It is the validity and effect of Special Orders No. 230 which must be determined by this court. Prior to September 1, 1946, the War Department's procedure for administration of terminal leave provided for in AR 605-115, dated November 9, 1945, and change orders to that regulation, was set forth in WD Circular 116, dated April 20, 1946. Circular 116 provided generally that where an officer was admitted to an Army hospital while on terminal leave, after receipt of the required notification from the ad |