145 C. Cls.

MILITARY PAY-Continued

DISABILITY RETIRED PAY-Continued

Correction of military or naval records—Continued

ability retirement, the court cannot restore his commission or place
him on the retired list of disabled officers, but it can award him a
money judgment for the retired pay which he should have and
would have received if the Secretary of the Army had corrected
plaintiff's record and placed him on such retired list. Eicks v.
United States, ante, p. 522. Betts, 530.

Accrual of cause of action for arbitrary refusal to correct
record.

Where it is shown by the evidence that the Secretary of one of the
military services acted arbitrarily in disapproving the findings and
recommendations of his board for the correction of military records
that the plaintiff's record be corrected to show that he was granted
the annual leave which he had earned, and was thereafter retired
for physical disability, plaintiff's suit in this court for active duty
pay for the 3 months' leave and for increased retired pay due from
the date of the corrected retirement up to the date of the enactment
of the Career Compensation Act of 1949, 63 Stat. 802, is not barred
by the 6-year statute of limitation applicable to suits in this court
on a petition claiming salary for periods more than 6 years prior
to the institution of the suit. Plaintiff's claim is not set up as a
salary debt but is for a sum of money denied him because of the
arbitrary and capricious refusal of the Secretary of the Navy to
correct plaintiff's military record. Since the arbitrary action of
the Secretary occurred within 6 years of the filing of the petition,
the claim is not barred. Eicks, 522.

Limitation of Actions 58(1)

Rank for retirement purposes.

Actual rank-what constitutes.

"Actual rank" in which an officer is entitled to disability retire-
ment, section 1254, Revised Statutes, is not necessarily the rank in
which the officer is serving on active duty at the time of retirement.
Thus, where a Reserve officer holding a permanent rank of major
in the Officers' Reserve Corps is retired for physical disability
while serving on active duty in the temporary rank of captain, the
rank of "major" is his actual rank and the one in which he should
be retired. Neri, 537.

145 C. Cls.

MILITARY PAY-Continued

LEAVE OF ABSENCE.

Accumulated unused leave.

Right to use.

The use of military leave is a matter of right not of grace and if
a member of the Armed Forces has unused leave to his credit at
the time it is decided to retire him or relieve him from active duty,
he is entitled to be put on leave in advance of retirement or relief
from duty. Pollard v. United States, 140 C. Cls. 237; section 1265,
Revised Statutes; 19 Stat. 102. Eicks, 522.

RETIRED PAY (NONDISABILITY)

Dual compensation restriction.

Election to revert to enlisted rank.

The purpose of the act of June 19, 1948 (62 Stat. 505) was to
permit retired service personnel to retain their civilian Govern-
ment positions and draw the retired pay of an enlisted man in
addition to civilian Government pay by permitting them to elect
to revert to their former enlisted status on the retired list and
thus avoid the prohibitions regarding dual compensation contained
in section 212(a) of the Economy Act of 1932 (47 Stat. 406; 5 U.S.C.
§ 59a (a)). Brewington, 122.

Exemption from restriction-when applicable.

Navy enlisted personnel temporarily promoted to commissioned
rank.

Section 4 of the Naval Reserve Act of 1938 (52 Stat. 1175), and
section 7(a) of the Temporary Promotion Act of July 24, 1941 (55
Stat. 603), do not exempt from the dual compensation provisions
of section 212(a) of the Economy Act of 1932 (47 Stat. 406; 5
U.S.C. § 59a (a)), Navy enlisted men temporarily promoted to com-
missioned rank. Broyderick et al. v. United States, 140 C. Cls. 427.
§ 59a (a)). Brewington, 122.

Armed Services 13.5(11)

Civilian employees of the Government may not receive, in addition
to their civilian pay, retired pay based on commissioned service
in the Navy even when such commissioned service was in temporary
commissioned rank. Section 212 (a) of the Economy Act of 1932
(47 Stat. 406; 5 U.S.C. § 59a (a)). Brewington, 122.
Armed Services

13.5(11)

145 C. Cls.

MINES AND MINERALS.

TITLE, CONVEYANCES AND CONTRACTS.

Nature of estate granted or reserved.

Overriding royalty.

An overriding royalty is, under the laws of the State of Texas,

MISTAKE OF LAW. See Payments.

MUTUAL SECURITY ACT OF 1954. See Civilian Pay.

NAVAL RESERVE ACT OF 1938. See Military Pay.

OFFICIAL ACTIONS OF GOVERNMENT OFFICIALS. See Presumptions.
OFFICER PERSONNEL ACT OF 1947. See Military Pay.

PARTIES. See Judgments-Estoppel By.

PAY AND ALLOWANCES. See Military Pay.

PAYMENTS.

MISTAKE OF LAW-PAYMENTS MADE UNDER.
Exception to general rule of no claim.

While payments voluntarily made or received under a mistake of
law are generally final, United States v. Edmonston, 181 U.S. 500,
where the court finds a strong congressional purpose which would
be frustrated by the application of such general rule, the rule will
not be applied. The strong congressional policy involved herein
is that the formula established by the Merchant Ship Sales Act
of 1946, 60 Stat. 41, 50 U.S.C. App. §§ 1735-1746, shall be strictly
adhered to. Sprague Steamship Co., 642.
74 (4)

United States

PLEADING AND PRACTICE.

SPECIAL MATTERS.

Allegations of arbitrariness-particularity.

Where plaintiff's petition in a suit for loss of pay, based upon an
allegedly arbitrary separation from service on a finding of ineffi-
ciency, states conclusions and inferences and does not allege suffi-
cient facts, it fails to raise the issue of arbitrary action or lack
of substantial supporting evidence. Mayer, 181.
United States

39 (13)

THIRD PARTY PRACTICE.

Motion to dismiss answer asserting claim.

The answer of a third party defendant in which a claim to the
fund in suit is asserted will not be dismissed if there is a possibility
that after the plaintiff's superior claim is satisfied there will be a
balance remaining in which the trustee has an interest. Conti-
nental Casualty Co., 99.

Courts 463

145 C. Cls.

PLEADING AND PRACTICE-Continued

TRIAL.

Continuance.

Discretion of court.

Criminal law.

The denial of a motion for continuance of a criminal trial may,
under some circumstances, have the effect of depriving the accused
of the right to the assistance of counsel for his defense guaranteed
by the Constitution. Griffiths, 669.

Criminal Law 641 (1)

In general.

The granting or denial of a motion for continuance is within the
jurisdiction of the court to which the motion is submitted. Griffiths,
669.

Continuance 7

POLITICAL MOTIVATION. See Civilian Pay.

POSTAL MONEY ORDERS.

LAW APPLICABLE.

Postal laws.

Postal money orders are not negotiable instruments but are special-
ties governed by the postal laws rather than laws relating to
commercial paper. Lewin, 249.

Post Office 18

PAYMENT.

Decision of Postmaster General.
Finality of.

Where the Postmaster General is authorized by statute to satisfy
himself as to the genuineness of endorsements on postal money
orders and that the person seeking payment is the one entitled to
such payment, his decision is final absent proof of arbitrariness.
Lewin, 249.

Post Office 18

How obtained.

The postal laws require that a holder seeking payment of a postal
money order must furnish proof of the genuineness of the endorse-
ments as the Postmaster General may require. The fact that the
holder is for value will not in itself entitle him to payment unless he
has complied with the requirements of the statute and the postal
regulations. Lewin, 249.

Post Office → 18

145 C. Cls.

PRESUMPTIONS.

OFFICIAL ACTIONS OF GOVERNMENT OFFICIALS.

Presumption of regularity.

Courts-martial.

Where officers are engaged in the performance of their official
duties while serving as defense counsel in a general court-martial,
it will be presumed, in the absence of evidence to the contrary, that
they properly performed those duties. Griffiths, 609.

Evidence 83(1)

PROPERTY OF THE UNITED STATES. See Constitutional Law.

RECOUPMENT. See Veterans' Training.

REDUCTION IN FORCE. See Civilian Pay.

REDUCTION IN GRADE. See Civilian Pay.

REGULATION OF EXECUTIVE DEPARTMENT. See also Civilian
Pay.

CONSTRUCTION AND OPERATION.

Administrative interpretation of.

The Government is not at liberty to misapply its own regulations
merely because it authored them unless the regulations in question
are housekeeping directions. Starzec, 25.

Regulations issued subsequent to accrual of claim.

While regulations issued subsequent to the events giving rise to
the claim in suit are not applicable thereto, they may reflect a clari-
fication of the regulations in question. Califano, Jr., 245.
Armed Services

13.3(1)

RELEASE. See Eminent Domain.

REPORT TO CONGRESS.

See Congressional Reference.

RES JUDICATA. See Judgments.

RETIRED PAY. See Military Pay.

SALES. See Contracts.

STATUTE OF LIMITATIONS. See Limitation of Actions.
STATUTES. See also Taxes-Estate Tax; Liquor Tax.

CONSTRUCTION AND OPERATION.

Administrative construction.

Implied ratification by Congress.

Great weight is given to contemporaneous and continuous construc-
tion of a statute by the executive department charged with its ad-
ministration and the subsequent enactment of similar legislation
by Congress without any sign of disapproval of such administra-
tive construction amounts to implied legislative approval thereof
by the Congress. Fox, 186.

Statutes 223.5(1)