124 C. Cls.

PAY AND ALLOWANCES-Continued

1948, under the Act of August 5, 1947, effective
September 1, 1947 (61 Stat. 776), plaintiff's mo-
tion for summary judgment is denied, defendant's
motion is granted and the petition is dismissed.
Whitmore, 271.

VI. On application to the United States Public Health
Service for a commission in the Reserve Corps as
a medical officer in that service, plaintiff was ap-
pointed a Civil Service interne on July 1, 1947,
and was commissioned on August 9, 1947, and
called to active duty on August 19, 1947, effective
September 1, 1947. The Act of August 5, 1947,
provides for incentive pay at the rate of $100 per
month for each month of active service of com-
missioned medical officers who after September 1,
1947, have volunteered and been accepted "for
extended active duty of one year or longer." It
is held that plaintiff does not qualify for the in-
centive pay for period prior to July 1, 1948, since
the statute requires a volunteering and acceptance
after September 1, 1947, for at least one year of
active service. Id.

Army and Navy 13 (8).

VII. Plaintiff clearly qualifies for the period after July 1,
1948, for which he has been paid.

Id.

VIII. In a suit to recover the difference in pay of a Colonel
in the Regular Army on active duty and retired
pay for the period from November 1, 1946, to
January 24, 1947, inclusive; and to recover the
amount claimed to be due to plaintiff as the widow
of such officer on the active list of the Army at
the time of his death, January 24, 1947, under the
Act of December 17, 1919, as amended; and to
recover, under Section 421 of the Internal Revenue
Code, the amount of income taxes payable by such
officer at the time of his death for the calendar
years 1941-1946; and to recover for an unused
leave credit of 45 days at the time of his retirement
on October 31, 1946; it is held that plaintiff, the
widow and executrix of such officer, is entitled to
recover. Cravens, 415.

124 C. Cls.

PAY AND ALLOWANCES-Continued

IX. While the decedent, Colonel Cravens, was a patient
at Army and Navy General Hospital, Hot Springs,
Arkansas, on October 25, 1946, the 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 Stat-
utes. It is held that Special Orders No. 230,
applicable only to Colonel Cravens, was invalid
and ineffective, because in conflict with Army
Regulations 600-115, 4 b and 15 a, c.
Id.

Army and Navy 10, 13 (12).

X. Army Regulations 600-115, issued on August 26,
1946, to become effective on September 1, 1946,
was promulgated by the Secretary of War pursuant
to an express provision of the Armed Forces
Leave Act of 1946 (60 Stat. 963), and had the
force of law. It could not be set aside by any-
thing other than an amendment of general
application. Id.

XI. It was not the intent of Congress, in authorizing the
Secretaries of the Armed Services to issue regu-
lations having the force of law, to lodge in the
Secretaries the power to depart, in individual
cases, from the law which they made. Id.
Army and Navy

2.

XII. The provisions of the Armed Forces Leave Act of
1946, authorizing the Regulations in question in
the instant case, contemplated that a uniform and
humane system be devised for carrying out the
provisions of Sections 1245 and 1251 R. S. The
Act did not contemplate that one officer be
separated by special orders shortly after he was
hospitalized while other officers remained subject
to the Regulations and received their hospitaliza-
tion and also their unused leave, with active duty
pay. Id.

Army and Navy 10, 13 (12).

XIII. On November 8, 1946, the Secretary, in the lawful
and orderly way, amended paragraph 15 d of
Army Regulations 600-115 to cover situations
such as that of Colonel Cravens. Under that
amendment, terminal leave time did not stop
running because of hospitalization of officers on

124 C. Cls.

PAY AND ALLOWANCES-Continued

leave awaiting retirement for physical disability.
This regulation was general and applicable to all
officers so situated. A new order for Colonel
Cravens' retirement, consistent with the amended
regulation, if it had been issued, would have been
effective. But Special Orders No. 230 was inef-
fective because in violation of Army Regulations
then in force. Id.

XIV. It was an unmodified Army Regulations 600-115,
so far as the instant case is concerned, which was in
effect on October 8, 1946, when Colonel Cravens
entered the hospital. There is no question but
that Colonel Cravens was on terminal leave at the
time. Id.

XV. It is held that Colonel Cravens was in active status
at the time of his death, and the plaintiff, as his
widow and executrix, for the benefit of herself, as
widow and executrix, and for the benefit of sur-
viving children, if any, of Colonel Cravens, is
entitled to recover. Entry of judgment suspended.

XVI. In a suit by a retired Army officer for the difference
in retired pay of a colonel with more than 26 years
of service, to which plaintiff asserts he is entitled,
and the retired pay of a lieutenant colonel with
like service, which plaintiff has actually received
since August 1, 1950, plaintiff's motion for sum-
mary judgment is denied. Defendant's motion
for summary judgment is granted and plaintiff's
petition is dismissed. Gilmartin, 434.
Army and Navy ✪ 13 (12).

XVII. Plaintiff's contention that his cadet service at the
United States Military Academy prior to Novem-
ber 12, 1918, constituted service "as a member of
the military or naval forces of the United States,"
within the meaning of Section 521 (b) of the
Officer Personnel Act of August 7, 1947, 61 Stat.
795, 913, is not sustained. Id.

Army and Navy 13 (12).

124 C. Cls.

PAY AND ALLOWANCES-Continued

XVIII. In the Army Appropriation Act of August 24, 1912,
37 Stat. 569, 594, it was provided that "hereafter
the service of a cadet who may hereafter be ap-
pointed to the United States Military Academy
or to the Naval Academy shall not be counted in
computing for any purpose the length of service
of any officer of the Army." A similar provision
was included in the Naval Appropriation Act of
March 4, 1913, 37 Stat. 891. In the opinion in
United States v. Noce, 268 U. S. 613, it was held
that these provisions in the Acts of 1912 and 1913
were not impliedly repealed by the Act of May
18, 1920 (41 Stat. 601), in which it was provided
that hereafter longevity pay for service officers
shall be based on the total of all service in any or
all of the services. Id.

Army and Navy 13 (11).

XIX. If by the operation of the 1912 Act cadet service
was excluded from "any or all of said services,"
in the 1920 Act, it is held that cadet service was
equally excluded from "the military or naval forces
of the United States in Section 521 (b) of the
Officer Personnel Act of 1947," under the provi-
sions of which the plaintiff claims in the instant
Id.

case.

Army and Navy 13 (12).

XX. Where by the stipulation by the parties and by the

finding of the Disability Review Board it is shown
that the disability for which the plaintiff was re-
tired was service connected and where plaintiff
has not been in the service since April 10, 1946,
it is held that the disability must have occurred not
later than that date. Plaintiff is entitled to re-
cover retirement pay from the date of his dis-
charge, April 10, 1946, to January 1, 1951, for
which period he received no retirement pay. See
Womer v. United States, 114 C. Cls. 415, and
Hamrick v. United States, 120 C. Cls. 17. Frame,
557.

Army and Navy 13 (12).

XXI. In a suit by an officer in the United States Army to
recover additional allowances upon the ground
that his mother was dependent upon him for her

124 C. Cls.

PAY AND ALLOWANCES-Continued

chief support within the meaning of the applicable
statutes; it is held, upon all the facts and circum-
stances disclosed by the record considered in the
light of the applicable statutes, that plaintiff is
not entitled to recover. Petition dismissed. Mills,
782.

XXII. The question presented to the United States Court
of Claims in the instant case is one of fact and the
statute requires that the officer claiming the al-
lowances must establish that his mother was in
fact dependent upon him during the period cov-
ered by the claim. Odlin v. United States, 74 C.
Cls. 633. Id.

XXIII. The court concludes that the decisions of the Army
Finance Center and the Comptroller General, after
much consideration of plaintiff's claim by the ad-
ministrative officers of the Army, denying plain-
tiff's claim on the ground that plaintiff's mother
was not dependent on him for her chief support,
are supported by the evidence.

Id.

XXIV. Plaintiff, a Navy Officer with rank of captain, on
active duty, was given retirement by reason of
permanent disability, by orders dated April 14,
1950, retroactive to April 1, and delivered to
plaintiff on April 19, 1950. It is held that plain-
tiff is entitled to active duty pay and allowances
for the period from April 1 to April 19, 1950, for
which period he has received only retired pay.
Defendant's motion denied and plaintiff's motion
is granted. Crist, 825.

Army and Navy 13 (12).

XXV. Retirement orders are effective when delivered to an

XXVI. Section 514 of the Career Compensation Act (63
Stat. 802) makes no distinction between active
duty before and after retirement but stipulates
that retired officers on active duty shall be en-
titled to receive active duty pay and allowances.
Army and Navy

13 (12).