119 C. Cls.

PAY AND ALLOWANCES-Continued

so long as the quarters are supplied by the Govern-
ment. Id.

IX. The housing provided by the Philippine Government
was not provided as an emolument to the officers of
the group, but was furnished to the United States
Government as an element of compensation to the
United States for making its military assistance
available. Id.

X. Having served as a member of the military forces of
the United States prior to November 12, 1918, and
retired after the passage of the Pay Readjustment
Act of 1942 (56 Stat. 368), under provision of law,
plaintiff is entitled to the retired pay of a Lieutenant
Colonel with over 30 years' service. See Carroll v.
United States, 117 C. Cls. 53. Shea, 53.

Army and Navy ✪ 13 (12).

XI. In a suit by an Army officer, Chaplain, for terminal
leave pay, where he was separated from the Army
"for the good of the service" in 1944, and later, in
1945, the plaintiff was notified by the Adjutant
General's office that the Secretary of War's Discharge
Review Board, on consideration of plaintiff's appeal,
had directed that plaintiff's resignation from the
service be considered as having been under honorable
conditions; it is held that the plaintiff is entitled to
recover. Whelpley, 56.

Army and Navy 13 (8).

XII. Under the applicable statutes and Army Regulations
and practice, if it had not been for the fact that his
resignation "for the good of the service" made his
release not "under honorable conditions," plaintiff
would have been given terminal leave for the leave
standing to his credit and the date of his release
would have been fixed to coincide with the end of his
leave, thus giving him his pay and allowances during
his leave period. The decision of the Review Board,
reversing the previous decision of the War Depart-
ment, wiped out nunc pro tunc the blot on plaintiff's
service record and rendered him entitled to the
terminal leave pay. Id.

Army and Navy ✪ 9, 13 (8).

119 C. Cls.

PAY AND ALLOWANCES-Continued

XIII. The provisions of the statutes, long in effect, the Army
Regulations and the regular practice of the Army in
giving honorably discharged officers the leave which
stood to their credit, by fixing the date of their
separation as that of the expiration of their terminal
leave, gave to officers a vested right to that leave,
unless it was denied to them by the Secretary of War
in the exercise of his statutory discretion. In the
instant case the Secretary of War did not exercise
any discretion, as there was not presented to him
any occasion to do so. Id.

Army and Navy ✪ 13 (6).

XIV. Plaintiff, formerly a lieutenant, United States Navy
and leader of the United States Naval Academy
Band, dismissed from the service on January 9, 1947,
pursuant to the judgment and sentence of a Navy
general court martial, sues to recover pay and
allowances from January 9, 1947, to January 28,
1948, the date his petition was filed in the Court of
Claims. Recovery is sought on the grounds that
the sentence of dismissal was void because not
legally reached and because such sentence of dis-
missal was never properly confirmed. It is held
that plaintiff is not entitled to recover and the
petition is dismissed. Sima, 405.

XV. Plaintiff's contention that his dismissal was improper
and without warrant of law for the reason that the
general court martial was without jurisdiction be-
cause of noncompliance with the applicable provi-
sions of the Articles for the Government of the Navy
(34 U. S. C. 1200, Arts. 24, 43 and 44) is not sus-
tained on a review of the proceedings leading up to
the arrest, trial, and conviction of the plaintiff.
Pretrial procedural error does not offset the juris-
diction of a general court martial and does not nullify
a conviction after a fair trial. Errors in procedure
in a court martial can be corrected only by the proper
military authorities. Id.

Army and Navy 44 (1).

XVI. Plaintiff's contention that he was denied his right to a
speedy trial guaranteed by the Sixth Amendment is
not sustained on a review of the proceedings relating
to his arrest on February 28, 1946, and his arrest for
trial on June 28, 1946, a period of 4 months. The

119 C. Cls.

PAY AND ALLOWANCES-Continued

right to a speedy trial is necessarily relative; it is
consistent with procedural delays and depends upon
circumstances.

Id.

Army and Navy 47.

XVII. The general court martial had jurisdiction of plaintiff
and of the offenses with which he was charged. The
proceedings and judgment of a general court martial
are not open to review or collateral attack in any
civil tribunal unless it is shown that the court martial
was void.
Id.

Army and Navy ✪ 49.

XVIII. Plaintiff's contention that his dismissal from the
United States Navy was improper and without war-
rant of law because the sentence of the general court
martial was not personally confirmed by the Presi-
dent of the United States as required by Article 53
of the Articles for the Government of the Navy
(34 U. S. C. 1200, Art. 53) is not sustained. Under
the provisions of Title I of the First War Powers
Act, approved December 18, 1941 (55 Stat. 838),
the President was authorized to redistribute func-
tions, duties, and powers as he might deem necessary
and wise. Under Executive Order No. 9556 the
President transferred and delegated to the Secretary
of the Navy and the Under Secretary all functions,
duties and powers of confirmation vested in the
President under Article 53. It is held that plaintiff's
sentence was properly confirmed. Id.

XIX. In a suit for the difference in the retired pay of a
colonel of the United States Army, which he is receiv-
ing, and the retired pay of a brigadier general, it is
held that plaintiff is not entitled to recover. De-
fendant's demurrer sustained. Kimberly, 805.

XX. Where, on October 31, 1945, the plaintiff was retired
for disability found to be an incident of the service,
under Section 1251 of the Revised Statutes, with the
rank and pay of a colonel with more than 30 years of
service; and where beginning about July 1, 1938, the
plaintiff, while holding the permanent rank of colonel,
was assigned as Chief of the American Military
Mission to Brazil with the rank and grade of brigadier
general, but without any increase in pay, under the
provisions of the Act of May 19, 1926, as amended

119 C. Cls.

PAY AND ALLOWANCES-Continued

and under the Executive Agreement of November 12,
1936, renewed November 12, 1938, between the
Presidents of the United States of America and of
Brazil; it is held that the nature of the special assign-
ment was not such an advance in rank as would
entitle plaintiff to an increase in retired pay under
the provisions of Section 402 (d) of the Career
Compensation Act of October 12, 1949, 63 Stat. 816,
823. Id.

Army and Navy 13 (12).

XXI. The retirement provisions of the Acts relating to
officers of the Armed Services were intended by the
Congress to be based on the actual rank held by
officers at the time of retirement. The provisions of
the Act of October 12, 1949, were intended merely to
give the retiring officer the advantages of a higher
rank where the promotions were real and covered
actual service in the higher rank. Id.

Army and Navy 13 (12).

XXII. On defendant's motion for new trial, which is over-
ruled, the decisions of the Court of Claims in the
instant case (118 C. Cls. 438) and in Moreno v.
United States, 118 C. Cls. 30, are distinguished.
Dilks, 826.

XXIII. In the instant case, the departmental determination as
to the status and entitlement to pay and allowances
generally were not challenged by plaintiff. The
only question presented to the court was whether
the monetary allowance in lieu of rations and quar-
ters of which Dilks was in receipt on the date of his
capture was the sort of allowance which Congress
intended in the Missing Persons Act, as amended,
should be credited to the account of a prisoner of
war during the period of his captivity (56 Stat.
143; 58 Stat. 679, 680). Id.
Army and Navy 13 (6).

PERFORMANCE BOND, SURETY ON.

I. Where plaintiff, surety on a contractor's performance
bond, completed the contract upon the contractor's
default; and where under the terms of the contract
the Government had retained certain percentages
from the payments made to the contractor during
the progress of the work, before the contractor's
default; it is held that the Government's right to

119 C. Cls.

PERFORMANCE BOND, SURETY ON—Continued

apply the retained percentages in partial satisfac-
tion of taxes owed by the contractor is superior to
the completing surety's right to the retained per-
centages, and plaintiff is not entitled to recover.
Standard Accident Insurance Co., 749.

II. In the instant case, upon completion of the contract
there was a balance of $14,658.37 remaining due
from the Government. Of this amount $5,214 rep-
resented the percentages retained from the pay-
ments made to the contractor for work done before
its default and $9,444.37 was the amount of the con-
tract price earned by the completing surety. The
General Accounting Office authorized payment to
plaintiff of the $9,444.37 and set off the amount of
the retained percentages, which the surety also
claimed, in partial satisfaction of social security
taxes owed by the contractor. The tax debt arose
partly out of work under the contract in suit and
partly out of work under another contract on which
plaintiff was also surety and in respect to which
plaintiff paid subcontractors and materialmen under
its payment bond. Id.

United States 130.

III. Plaintiff's contention that defendant had no right to
set off the tax debt against the retained percentages
because the percentages were sums dedicated to the
completion of the contract to which the surety be-
came entitled in its own right when it stepped into
the contractor's shoes and fulfilled the contractor's
obligation to the United States is not sustained. A
surety's right of subrogation to the priority of the
United States cannot operate contrary to the interest
of the United States. See United States v. National
Surety Co., 254 U. S. 73. Id.

IV. The retained percentages represented money earned by
the contractor from the United States and due to the
contractor from the United States upon completion
of the contract, but the United States has a right to
set off its creditor's debt to it before paying its debt
to the creditor. See United States v. Munsey Trust
Company, 332 U. S. 234. Id.