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Findings of Fact

The court made findings of fact as follows; as stipulated by the parties:

1. On August 1, 1918, plaintiff accepted an appointment and entered on active duty as a second lieutenant, Air Force (Production) in the National Army, and was honorably discharged as a second lieutenant on February 5, 1919, for the convenience of the Government.

2. Plaintiff was last honorably discharged from the Regular Army on August 24, 1935, for a physical disability incurred in line of duty, while serving as a corporal, fifth pay grade, Medical Department, and at date of discharge had completed 23 years, 3 months, and 26 days of active Federal military service.

3. Plaintiff was rated 100 percent disabled by the Veterans Administration as of August 24, 1935, and received compensation for said disability until September 1, 1949. Payments of disability compensation aggregating $5,169.82 were made to plaintiff by the Veterans Administration for the period May 4, 1945, through August 31, 1949.

4. On August 26, 1949, plaintiff submitted a formal application for retirement to the Department of the Army, under the provisions of Section 2 of the act of Congress approved June 30, 1941 (Public Law 140, 77th Congress, 55 Stat. 394), as amended by the act of Congress approved May 4, 1945 (Public Law 51, 79th Congress, 59 Stat. 135).

5. Plaintiff's application was approved by the Secretary of the Army on August 30, 1949, and plaintiff was placed on the retired list of the Regular Army effective August 31, 1949, in the grade of private first class, fifth pay grade, the grade titled for the fifth pay grade having been converted from corporal to private first class, effective August 1, 1948, upon implementation by the Department of the Army of the career guidance plan for warrant officers and enlisted personnel.

6. Plaintiff was advanced on the retired list to the grade of second lieutenant, under the provisions of the act of Congress approved May 7, 1932 (Public Law 123, 72d Congress, 47 Stat. 150), pursuant to paragraph 73, Special Orders 169, Department of the Army, dated August 30, 1949.

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Opinion of the Court

122 O. Ols.

7. Under date of September 27, 1949, plaintiff filed a claim with the Department of the Army for the difference in the retired pay of a warrant officer, junior grade, and the disability compensation paid to plaintiff by the Veterans Administration, for the period from May 4, 1945, to August 31, 1949.

8. Plaintiff's claim was disallowed by the Army Finance Officer on November 17, 1949, which disallowance read in part as follows:

in view of the Decision of the Comptroller General (27 Comp. Gen. 495) rendered in connection with retirement under the provisions of Public Law 51, 79th Congress, wherein it was held that the "pending request of the former enlisted man here involved to be placed on the retired list should be consistent with the established rule that the effective date of the retirement of a member of the Regular Army is governed by the date of the approval by competent authority of his retirement, and by the uniform retirement date act of April 23, 1930, 46 Stat. 253, and may not be a date prior to the date of such approval. See 25 Comp. Gen. 663, and decisions cited therein."

The court decided that the plaintiff was entitled to recover.

JONES, Chief Judge, delivered the opinion of the court: Plaintiff here sues for certain retirement pay to which he asserts a right under the act of June 30, 1941, 55 Stat. 394, as amended by the act of May 4, 1945, 59 Stat. 135.

Plaintiff was discharged from the Regular Army in 1935, because of permanent physical disability. At the time of his discharge he was a corporal in the fifth pay grade, with over 20 years' active service in the Army, including service as a commissioned officer in the grade of second lieutenant between August 1, 1918, and February 5, 1919. There was no provision in the law in 1935 whereby he might be retired, and instead he received a discharge from the Army. He did, however, receive 100 percent disability compensation from the Veterans' Administration from that time until September 1, 1949.

In 1941 there was enacted into law provision for retirement of enlisted men then in the Regular Army who had over

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Opinion of the Court

20 years' active service and who were permanently incapacitated, 55 Stat. 394, and in 1945 that law was amended, 59 Stat. 135, to include persons such as plaintiff who had been discharged prior to the 1941 act. On August 26, 1949, plaintiff submitted formal application for retirement, and on August 31, 1949, he was placed on the Regular Army retired list. Effective the same day he was advanced on the retired list to the grade of second lieutenant, under the provisions of the act of May 7, 1932, 47 Stat. 150, as a result of his commissioned service during the first World War. On September 27, 1949, plaintiff filed a claim with the Department of the Army for the difference in retired pay and the disability compensation paid to him, for the period May 4, 1945, to August 31, 1949. This claim was disallowed.

It is plaintiff's contention that the amendatory act of May 4, 1945, supra, gave to him a right to retired pay from the date of its passage, even though he did not make formal application for it until August 26, 1949, and though his name was not formally placed on the retired list until August 31, 1949. He seeks recovery here of retired pay computed pursuant to 49 Stat. 1900, for the period May 4, 1945, to August 31, 1949, less the amount of disability compensation actually paid to him for that period.

Plaintiff concedes that ordinarily retirement is effective only from the date upon which the transfer to the retired list is made, but emphasizes that this case does not present the usual retirement situation of a man retired directly from active service, but involves a man who was not eligible for retirement under the law as it existed at the time of his separation from active service, and as to whom there was no provision in law for retirement until some ten years later.

Notwithstanding the usual practice under other retirement legislation, it is, of course, the specific statutes, 55 Stat. 394, as amended by 59 Stat. 135, which must control the disposition of this case. As remedial legislation they are to be liberally construed. Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275; Boone v. Lightner, 319 U. S. 561; Hornblass v. United States, 93 C. Cls. 148, 156. And we believe that the Congressional intent disclosed in the statutes and their legislative history lends support to plain

Opinion of the Court

122 C. Cls.

tiff's claim. The original act of June 30, 1941, 55 Stat. 394, provided in part as follows:

SEC. 2. An enlisted man of the Regular Army or of the Philippine Scouts who had served twenty years or more in the military forces of the United States and who has become permanently incapacitated for active service due to physical disability incurred in line of duty shall be placed on the retired list.

It applied only to men on active duty at the time of its passage. In the usual case those men would continue on active duty until retired, and their right to retired pay, as an incident of retired status, would begin immediately upon the cessation of their active duty status. It was a perfectly good piece of legislation and adequately expressed the intention of Congress, so far as the nature and extent of the rights conferred were concerned. It failed, however, to include otherwise qualified enlisted men who had been discharged prior to its passage.

And so by the 1945 amendment, 59 Stat. 135, there was added to the 1941 act the following clause:

Provided, That this Act shall apply to all former enlisted men of the Regular Army and the Philippine Scouts who have served for twenty years or more, and who were honorably discharged therefrom by reason. of becoming permanently incapacitated for active service due to physical disability incurred in line of duty:

*

The act as amended, however, was not completely specific as to the date of accrual of retired pay rights of persons added by the 1945 act who had been separated from active service prior to June 30, 1941.

It is evident that to some extent at least Congressional attention had been called to the general problem as to when the pay rights under the 1945 act should accrue. As originally introduced, H. R. 1701, 79th Cong., 1st Sess., which became the act of May 4, 1945, placed no limitation whatsoever upon the periods for which these men would be entitled to retired pay. But the Secretary of War in a letter to the House Committee on Military Affairs stated that the bill "should be amended to conform to the basic law,

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Opinion of the Court

and should definitely preclude the payment of benefits to the persons contemplated therein for any period prior to its enactment." H. Rept. 287, 79th Cong., 1st Sess. This the Committee did, and the Congress approved and retained the very language suggested by the Secretary of War:

Provided further, That any former enlisted man placed upon the retired list in accordance with the provisions of the foregoing proviso shall not be entitled to receive retirement pay for any period prior to the effective date of this amendment. [59 Stat. 135]

Congress could have expressly provided in the 1945 act for retirement pay from the date of separation from active service, as was the usual retirement situation, or from the date of enactment of the 1945 act, or from the date of application for retirement thereunder, or indeed from any other date which Congress might fix. But what Congress did provide was that no pay should accrue for any period prior to the effective date of the act. Thus the implication is very strong that rights to retired pay should accrue for the period beginning with the effective date of the act.

It was only through an oversight that no provision for persons such as plaintiff had been made in the 1941 act, and the 1945 act was intended to remedy that defect. Bearing further on the intention of Congress are the reports of the House and Senate Committees on Military Affairs to their respective Houses, both of which contain the following:

Public Law 140 of the Seventy-seventh Congress, approved June 30, 1941, had for its purpose the giving of certain retirement benefits to enlisted men of the Regular Army and of the Philippine Scouts who, having had at least 20 years' service in the military forces of the United States, had been placed on the retired list by reason of permanent disability received in line of duty. Apparently through an oversight, no provision was made in that act for similar cases who had been retired prior to the approval of the act. The present bill seeks to extend the same benefits to similar persons similarly disabled who were retired prior to June 30, 1941, with the provision, however, that no benefits shall have accrued prior to the approval of the proposed amendment. [H. Rept. 287 and S. Rept. 183, 79th Cong., 1st Sess.]

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