769 Dissenting Opinion by Chief Judge Jones If, therefore, the plaintiff is to be exempted at all from the Economy Act, it must be by right of his status as an Army of the United States officer. This brings me to the second issue in this case: whether an Army of the United States officer retired for physical disability pursuant to the Act of 1939 is exempted from the Economy Act. On this question, this court has spoken. In Leonard v. United States, 136 Ct. Cl. 686 (1956), an Army of the United States officer discharged for disability under the Act of 1939, sought exemption from the Economy Act. In Leonard we held that the plaintiff came squarely within the prohibition of the Economy Act. We said simply that the Economy Act had not been repealed and that the plaintiff in Leonard was precluded from receiving his retirement pay for the period he served as a Federal civilian employee. Again in Palmer v. United States, 148 Ct. Cl. 470, this court was confronted with the claim of an Army of the United States officer that he was entitled to exemption from the Economy Act. In a per curiam opinion this court rejected the claim and said that on the basis of our opinion in Leonard the plaintiff could not recover. Judge Madden concurred in a separate opinion in Palmer. He said that to permit an Army of the United States officer to receive the same retired physical disability pay as an officer of the Regular Army would grant the Army of the United States officers "a valuable additional privilege, exemption from the Economy Act, which is denied to Regular Army officers. I do not think that the Congress intended such a result, and I would interpret the statutes accordingly. I therefore concur in the dismissal of the plaintiff's petition." 148 Ct. Cl. 474. It is true that certain classes of regulars whose physical disability was incurred in service to the Nation in combat or in connection with waging war against the Nation's enemies are specifically exempted from the Economy Act. See § 212 (b) of the Economy Act of 1932, 47 Stat. 382, 406, as amended in 1940, 54 Stat. 761, which is set out on p. 12 of this opinion. Section 212 (b) was further amended to enlarge the class of regulars granted exemption in 68 Stat. 18 (1954). What is of couse crucially significant about these specific exemptions that the Congress made in regard to 152 Ct. Cl. Dissenting Opinion by Chief Judge Jones regulars retired for physical disability is that all regulars are not granted such exemption. Further, no exemption for disability retired pay in haec verba has ever been made by the Congress for Army of the United States officers or Reserve officers. What the plaintiff asks here then is for us by judicial decision to grant a broader exemption to Army of the United States officers and Reserve officers than the Congress has seen fit to grant to regulars in specific legislation. It is evident from the majority opinion in the instant case that it does not now depart from the sound reasoning set forth in the concurring opinion in Palmer. However, the majority opinion suggests that at this juncture confusion and unfairness will result if Palmer and Leonard are not overturned. The reason for this is that as of June 11, 1957, the Comptroller General has been allowing Reserve officers, retired for disability, exemption from the Economy Act under the purported authority of the decision of the Federal District Court in United States v. Toma, 148 F. Supp. 489 (S. D. Cal. 1957), and by reason of the stipulated judgment in United States v. Madden,' 138 Ct. Cl. 873 (1957). As was pointed out in the majority opinion, the Economy Act question was not even raised by the Government in Toma. The fact that the Comptroller General chose to follow the Federal District Court in Toma should not cause us now to call into question the essential soundness of Leonard and Palmer. When the Comptroller General is in error as to the law (which is a somewhat natural error in view of the confused state of the decisions), it is hardly our duty to change the law, but rather we should call upon him to change his practices so as to conform with the law. The gravamen of this dissent is that the plaintiff has no legal basis for exemption from the Economy Act of 1932 such as would entitle him to retired pay for physical disability either as a reservist or as an Army of the United States officer. The majority opinion adds further to any confusion that may exist by rankly discriminating against Regular Army officers. I have always believed that neither Reserve nor See footnote 6. 769 Syllabus Regular officers should be discriminated against but should receive equal treatment. This is the purport and meaning of the various statutes enacted by the Congress when they are read together, as they must be. The action taken today will give to Reserve officers an exemption that is in terms denied all Regular Army officers who were retired for disability, except the ones who were disabled in actual combat, or by an explosion of an instrument of war in line of duty. I would grant the defendant's motion for sumary judgment and deny the plaintiff's similar motion. In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due thereunder, it was ordered on July 18, 1961, that judgment for plaintiff be entered for $4,961.95. SALVADOR I. ESPARTERO v. THE UNITED STATES [No. 57-60. Decided March 1, 1961] ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Military pay; per diem-quarters and subsistence allowance; Missing Persons Act of 1942.-In an action by plaintiff, a former Philippine Scout, to recover quarters and subsistence allowance for the period of his service in the Guerilla Forces in the Philippines from April 9, 1942, to February 22, 1945, during which time he was officially carried as a prisoner of war or missing in action, on the ground that under the provisions of the Missing Persons Act of 1942 (56 Stat. 144, as amended, 71 Stat. 491) he was entitled to such allowances, it is held that under section 9 of the Act (58 Stat. 679, 680-681) the determination of the service department concerned as to the status and entitlement of a claimant thereunder is conclusive and unless that determination is arbitrary, this court will not review it. Moreno v. United States, 118 Ct. Cl. 30, cert. denied 342 U.S. 814; Alpuerto v. United States, ante, p. 270. Petition dismissed. Military pay; missing persons; quarters and subsistence allowance; status and entitlement; departmental determination; finality Section 212 (b) of the Economy Act, 54 Stat. 761. Opinion of the Court 152 Ct. Cl. of determination.-Determinations as to status and entitlement of missing persons under the Missing Persons Act (58 Stat. 679) made by the department concerned are conclusive and not subject to judicial review unless arbitrary. Moreno v. United States, 118 Ct. Cl. 30, cert. denied 342 U.S. 814; Alpuerto v. United States, ante, p. 270. Military pay; missing persons; quarters and subsistence allowance; limitation of actions; extension of period in which to file claims-application of.-Section 2(b) of the 1957 amendment to the Missings Persons Act, 71 Stat. 492, granting a threeyear extension period in which Philippine Scouts might present their claims for consideration or reconsideration, relates only to claims under section 2(b), and where a claim was not based on the sole ground that the claimant had been paroled by the Japanese and allowed to return home to engage in civilian pursuits, the extension of the period thus provided for is not applicable. Armed Services 23.5 Wayne Gladstone for plaintiff. Gladstone & Day were on the brief. Katherine H. Johnson, with whom was Acting Assistant Attorney General Geo. S. Leonard, for defendant. WHITAKER, Judge, delivered the opinion of the court: This case is before the court on defendant's motion for summary judgment. Plaintiff, a former Philippine Scout, sues for per diem allowance for quarters and subsistence during the period April 9, 1942, to February 22, 1945, during which time he was officially carried as a prisoner of war or missing in action. Plaintiff enlisted in the Philippine Scouts on February 6, 1941. Upon the fall of Bataan on April 9, 1942, he was taken prisoner by the Japanese and was taken, on the "Bataan death march", to the concentration camp at Balanga. Subsequently he escaped and joined a group known as "Colonel Straughn's Intelligence Forces." In order to gather information about the enemy's activities, plaintiff secured a position as office messenger for a Japanese colonel at Nichols Field. Colonel Straughn, or someone acting for him, then ordered plaintiff to Antique on the Island of Panay. Shortly thereafter, Colonel Straughn was captured and plaintiff joined the 65th Infantry Regiment Guerilla Forces 789 Opinion of the Court in Antique, with which he continued to serve until February 22, 1945, when he was returned to the control of the United States Army. Plaintiff received enlisted man's pay for the period in question. However, he claims that by virtue of the provisions of the Missing Persons Act of 1942, 56 Stat. 144, as amended by the Act of August 29, 1957, 71 Stat. 491, he was entitled, for the period in question, to that per diem allowance for quarters and subsistence specified in section 10 of the Pay Readjustment Act of 1942, the Act of February 2, 1901, and Executive Order No. 9206, under which order the President fixed allowances for quarters and subsistence pursuant to section 10 of the Pay Readjustment Act, supra. Plaintiff first submitted his claim to the United States Army Finance Center on November 3, 1952, but on January 30, 1953, his claim was disallowed. On July 28, 1954, plaintiff again filed his claim with the Finance Center, but his claim was again denied on September 16, 1954. On October 29, 1958, plaintiff again submitted his claim, this time addressed to the Department of the Army, Office of the Adjutant General, United States Army Records Center, St. Louis 14, Missouri. On November 7, 1958, the Commanding Officer, United States Army Records Center, wrote plaintiff that "no further pay and allowances [were] due under the Missing Persons Act or amendments thereto." Plaintiff filed his petition in this court on February 17, 1960. Clearly, plaintiff cannot recover under the Missing Persons Act. Section 9 (58 Stat. 679, 680-681) provides that the determinations of the head of the department concerned, or his designated subordinate, as to entitlement under the Act are conclusive. This section is set out in pertinent part in a note below.1 We have held that section 9 prevents this 1 SEC. 9. The head of the department concerned, or such subordinate as he may designate, shall have authority to make all determinations necessary in the administration of this Act, and for the purposes of this Act determinations so made shall be conclusive as to death or finding of death, as to any other status dealt with by this Act, and as to any essential date including that upon which evidence or information is received in such department or by the head thereof. Determinations are authorized to be made by the head of the department concerned, or by such subordinate as he may designate, of entitlement of any person, under the provisions of this Act, to pay and allowances, including credits and charges in his account, and all such determinations shall be conclusive: |