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149 C. Cls. Dissenting Opinion by Chief Judge Jones men are impossible to be obtained-as Molloy forcibly expresses it, "to rot in her neglected brine.” Such desertion might involve a long delay of the vessel while the master is seeking another crew, an abandonment of the

voyage, and, in some cases, the safety of the ship itself. It is not our function to substitute our judgment for that of the employing agency or the Civil Service Commission. Our review is limited to the sole question of whether their action was reasonable in the light of all the evidence. Blackmon v. United States, 128 C. Cls. 288; Bayly v. United States, 99 C. Cls. 598. We have no doubt that it was entirely reasonable. Plaintiff, of course, acted in anger, but even after he had "slept over it,” he still made no effort to rejoin his ship, but abandoned it and left it to get to Norfolk as best it could, without the services of one of the most important officers in charge of the operation of a ship, to wit, the First Assistant Engineer.

Plaintiff's motion is denied. Defendant's motion for summary judgment is granted, and plaintiff's petition is dismissed.

It is so ordered.

BARKSDALE, District Judge, sitting by designation; LARAMORE, Judge, and MADDEN, Judge, concur.

Jones, Chief Judge, dissenting:

I am unable to agree with the conclusion reached by the majority.

When the pleadings and attached exhibits are considered, the record wholly fails to justify the extreme penalty that was assessed against the plaintiff.

Concededly, plaintiff was not free from blame and should have been subjected to some sort of disciplinary measure but the record does not justify sustaining the charge of desertion and the forfeiture of all pay and privileges against a gallant sailor who had an unusually fine war record. He had been given numerous medals and citations for outstanding combat duty during World War II. These included, inter alia, a presidential unit citation, sub combat pin—7 stars, Navy unit citation, and a bronze star medal conferred by the

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Dissenting Opinion by Chief Judge Jones President of the United States for courage and steadfast devotion in the fulfillment of several perilous missions.

Plaintiff, while in the employment of the Military Sea Transportation Service, Department of Navy, as first assistant engineer on the USNS Short Splice, was twice assaulted by one of the subordinates serving under him; the second time, while a third member of the crew was holding his arms. This latter assault caused rather serious injuries.

The first assault occurred while both parties were on leave; the second at about 1:00 a.m. while on the ship. At about 2:00 a.m. the same night plaintiff packed a bag and left the ship, staying at the Eagle's Nest Hotel. Plaintiff called the chief engineer at 2:30 a.m. to advise him that the Master wanted the ballast tanks filled the following morning. The morning following the incident, January 20, 1956, plaintiff went to the Bermuda Medical Center where he was referred to the Bermuda Hospital for treatment of his injuries.

By this time the ship had sailed. Plaintiff had left most of his clothing on board and his engineer's license was still in its place on the ship. Plaintiff caught a plane the same day for New York, the ship's home port, and immediately reported to the Military Sea Transportation Service, the agency which had employed him. He asked the privilege of rejoining the ship at Norfolk and was told that he would not be permitted to do so. Plaintiff was dismissed from the service on the ground of desertion, thus making a permanent black mark against his record.

I do not think the undisputed facts justify a verdict of desertion. In a recent decision by the Supreme Court, Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 487 (1951), there is a holding to the effect that the fact that there is evidence, considered of and by itself, to support the administrative decision is not sufficient where there is opposing evidence so substantial in character as to detract from its weight and render it less than substantial on the record as a whole.

When this entire record is considered I do not believe, in the light of this interpretation, there is substantial evidence to justify the conclusion that was reached by the officials.

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149 C. Cls. Syllabus The charge of desertion is a very serious one. I am unable to escape the conclusion that the action was taken on sudden impulse with severe provocation. The fact that plaintiff left most of his clothing aboard ship and left his engineer's license in place on the ship does not comport with the idea of desertion.

It is true that plaintiff should not have left the ship. It is also true that a subordinate should not assault someone under whom he is serving. The latter action in the matter of discipline is more important than leaving the ship for just one night.

In order to remove the cloud from the name and reputation of a sailor with a magnificent war record, who had been covered with medals and citations, I would hold that there is not substantial evidence to sustain the finding of desertion and the forfeiture of all pay and allowances.

In order to balance the record and remove a manifest injustice, I would grant the plaintiff a restoration of his pay for a six months' period. This would have the effect of removing a blemish that in my judgment has unjustifiably been placed against a veteran with an outstanding war record.

WILLIAM P. CHISHOLM v. THE UNITED STATES

(No. 391–56. Decided February 3, 1960. Defendant's motion for new

trial overruled June 8, 1960)

ON PLAINTIFF'S AND DEFENDANT'S MOTIONS FOR SUMMARY

JUDGMENT

Civilian pay; dismissal; veteran preference eligible; Performance

Rating Act.-In an action by plaintiff, a veteran preference eligible, to recover back pay on the ground that his dismissal for unsatisfactory performance of duties was violative of section 14 of the Veterans' Preference Act of 1944 because he was not given a hearing on the merits of his case by the Civil Service Commission, it is held that the civil service regulation issued pursuant to the Performance Rating Act of 1950 (64 Stat. 1098), denying to a veteran preference eligible a Civil Service Commission hearing on the merits of his discharge carried out under the provisions of the 1950 Act, is not required by the Act and is violative of the provision of section 14 of the Veterans' Preference Act guaranteeing such a hear

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Syllabus ing, and plaintiff's discharge without a hearing on the merits of his case is invalid, entitling plaintiff to recover the pay of

which he was deprived. Officers On 72(1) Civilian pay; dismissal; veteran preference eligible; Performance

Rating Act; appeal to Civil Service Commission on merits. Since the Performance Rating Act of 1950 (64 Stat. 1098) only makes an unsatisfactory rating the basis for a discharge and does not require a discharge, it is not inconsistent with the provisions of section 14 of the Veterans' Preference Act of 1944 (58 Stat. 390) which require that discharged veterans be given a chance to appeal for all purposes by the Civil Service Commission. The Boards of Review operating under the Performance Rating Act of 1950 are not concerned with whether or not an employee should be discharged, whereas section 14 of the Veterans' Preference Act deals with discharges and provides for an appeal on the merits of the discharge before the Civil

Service Commission. Officers On 72(1) Civilian pay; dismissal; veteran preference eligible; Performance

Rating Act; appeal to Civil Service Commission on merits.Section 14 of the Veterans' Preference Act of 1944 gives to preference eligibles in the civilian Government service the right to an appeal to the Civil Service Commission reaching the merits of their dismissals even where the charges upon which the dismissal was based were previously reviewed under the provisions of the Performance Rating Act of 1950 (64 Stat. 1098); and the civil service regulation limiting such appeals to the matter of procedural defects is in violation of the Veterans'

Preference Act and invalid. Officers am 72(2) Civilian pay; dismissal; veteran preference eligible; Performance

Rating Act; appeal to Civil Service Commission on merits.A civil service regulation which denies to a veteran a hearing on the merits of his discharge carried out under the procedures of the Performance Rating Act of 1950 (64 Stat. 1098), where the veteran has had a hearing before the statutory review board established under the 1950 Act, violates the provisions of section 14 of the Veterans' Preference Act of 1944 which give to veterans the right to appeal to the Civil Service Commission on

the merits of their dismissals. The regulation is invalid. Officers 72(1)

Mr. John P. Witsil for plaintiff.

Miss Kathryn H. Baldwin, with whom was Mr. Assistant Attorney General George Cochran Doub, for defendant.

149 C. Cls.

Opinion of the Court

WHITAKER, Judge, delivered the opinion of the court:

This case is before the court on cross-motions for summary judgment. Plaintiff, a veteran preference eligible, was given an unsatisfactory performance rating, after the required 90day notice had been given him, and on the basis of this rating he was separated from the service.

The grounds for plaintiff's motion for summary judgment are: (1) the refusal of the Civil Service Commission to review the merits of his unsatisfactory performance rating; (2) the alleged denial of his right of counsel in the hearing on review of his unsatisfactory performance rating; and (3) failure to comply with the procedural requirements of section 14 of the Veterans Preference Act of 1944.

On December 18, 1953, plaintiff was notified that he would be given an unsatisfactory performance rating on December 31, 1953, but this was not done at this time. On January 4, 1954, plaintiff had an interview with his supervisor relative to his rating, and on the following day he was given a memorandum outlining his deficiencies. However, the required 90-day notice of an intention to give an employee an unsatisfactory rating not having been given plaintiff, he was given a rating for the period April 26 to December 31, 1953, of "satisfactory ***

*** pending improvements desired as discussed with employee.”

On February 26, 1954, after a conference with three of his superiors, plaintiff was told that an unsatisfactory rating would be given him, and on March 4, 1954, he was given the 90-day notice of the proposal to give him such a rating. This was signed by his three superiors with whom he had conferred on February 26, 1954. On June 24, after the 90 days had run, plaintiff was advised that he had been given an unsatisfactory performance rating, and that, on account of this rating, he would be separated from the service in 30 days.

The Performance Rating Act of 1950 (64 Stat. 1098) provides for a board to review performance ratings upon request. However, the Department of Agriculture, by whom plaintiff was employed, had established a committee within the Department to consider employees' complaints against the ratings given them. Plaintiff appealed to this departmental

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