116 C. Cls. Syllabus ment within the time specified in Article 15 of the contract. Plaintiff submitted this claim to the Federal Public Housing Authority in Washington, on January 23, 1947, and it was denied, because no appeal had been taken on the claim within the time limit stipulated in the contract. Neither the contracting officer nor anyone having authority to act for him authorized plaintiff to postpone making written protests or claims, with respect to amounts due under change orders, until after all work had been completed and all change orders had been issued. The plaintiff is not entitled to recover on any of the items of the claim sued upon, and its petition is, therefore, dismissed. It is so ordered. HOWELL, Judge; MADDEN, Judge; WHITAKER, Judge; and JONES, Chief Judge, concur. LEWIS B. PERKINS v. THE UNITED STATES [No. 49095. Decided June 5, 1950. Plaintiff's motion for new trial overruled July 10, 1950.] On the Proofs Pay and Allowances; Officer in Army Reserve Corps; retired pay under Act of May 24, 1928.-In a suit to recover the difference in retired pay computed on less than 3 years' active service as an Emergency Officer in the Army in World War I and retired pay computed on such World War I service plus 10 years' additional service in the Officers' Reserve Corps subsequent to plaintiff's discharge from his Emergency Officer's commission as Captain, Quartermaster Corps, on October 30, 1920; it is held that plaintiff is not entitled to recover. Army and Navy 13 (12) Same; Act of 1928 controlling.—In the instant case, the Act of May 24, 1928, is controlling, not the Pay Readjustment Act of 1942, as amended by the Act of June 29, 1946; and the only service to be counted for retirement pay as an Emergency World War I officer is the active service rendered during World War I. The Pay Readjustment Act of 1942, as amended, merely increased the rate of retirement pay without changing the basis upon which the rate was to be computed. Army and Navy 13 (12) 778 Reporter's Statement of the Case Same; plaintiff discharged upon demobilization.-Plaintiff was not "retired" from the Army, he was "discharged" when the emergency forces were demobilized in 1920. He could not be "retired" from the Officers' Reserve Corps; his commission "expired" by its very terms. Army and Navy 13 (12) Same; Act of 1946.-The 1946 Act gave Emergency Retired Officers the right to have their retired pay computed upon a different rate which embodied the increase provided in the Act of 1942. Instead of the 75 percent of pay received at the time of discharge from the emergency service, 75 percent of the pay of comparable rank based on the 1946 salary scale was provided, 13 (12) Army and Navy Same; plaintiff's service properly credited.-Plaintiff was credited with less than 3 years of service at the time of his discharge and it is held that this was the only service with which he could have been credited when he was placed on the Emergency Offcers' retired list in 1928. Carroll v. United States, decided December 6, 1948, distinguished. Army and Navy 13 (12) The Reporter's statement of the case: No appearance for plaintiff. Mr. Thomas O. Fleming, with whom was Mr. Assistant Attorney General H. G. Morison, for the defendant. The court made special findings of fact as follows upon a stipulation entered into by the parties: 1. Plaintiff on October 3, 1904, enlisted for a term of three (3) years in the Roanoke Light Infantry, Virginia Volunteers, from which organization he was honorably discharged on August 29, 1905, by reason of his removal from the Roanoke District. 2. Plaintiff received a letter dated 4 April 1949 signed by General S. Gardner Waller, Virginia National Guard, which read as follows: Replying to your inquiry of the 2nd instant, it is the opinion of this Department that service during the years 1904-1905 should be classed as having been in the Organized Militia. The National Guard of this State came into being in 1916 with the advent of the National Defense Act. 116 C. Cls. Reporter's Statement of the Case 3. Plaintiff accepted a commission dated November 6, 1918, as Captain, Quartermaster Corps, United States Army, under the provisions of the Act of May 18, 1917 (40 Stat. 76), on November 8, 1918, and so served until honorably discharged on October 30, 1920, by reason of the demobilization of the emergency forces. 4. On May 16, 1921, plaintiff accepted a commission as Captain, Judge Advocate General's Department, Officers' Reserve Corps, effective as of May 11, 1921. On May 11, 1926, plaintiff was reappointed in the same grade and section. Plaintiff's commission terminated on May 10, 1931, by reason of the expiration of the period for which it was granted. During his ten years as a member of the Officers' Reserve Corps, plaintiff rendered active duty from May 17 to May 31, 1925, from September 29 to October 13, 1926, and from April 16 to April 29, 1928. 5. Effective as of October 30, 1920, through February 28, 1922, plaintiff received disability awards from the Veterans Administration; no awards were received from March 1, 1922, through December 31, 1925; and effective as of January 1, 1926, through August 3, 1928, plaintiff received disability awards from the Veterans Administration. 6. Effective as of August 4, 1928, plaintiff was determined to be entitled to Emergency Officers' retirement benefits under the provisions of the Act of May 24, 1928 (45 Stat. 735, 38 U. S. C. 581), by virtue of a rating of service connected permanent partial disability of 34 percent. Plaintiff accordingly was dropped from the Veterans Administration's pension rolls and was placed on the Emergency Officers' Retirement List. As a result of being placed on that list, plaintiff was deemed not eligible for active duty or for reappointment in the Officers' Reserve Corps, although he was permitted to complete the term of his appointment therein dated from May 11, 1926, through May 10, 1931. 7. Pursuant to the provisions of the Emergency Officers' Retirement Act of May 24, 1928, plaintiff's retired pay of $150 per month was computed on the basis of 75 percent of the pay he was receiving when he was discharged from the Army on October 30, 1920, said basis being a captain's pay based on less than five years' service. 778 Reporter's Statement of the Case 8. On April 11, 1933, pursuant to Section 10 of the Act of March 20, 1933 (48 Stat. 10, 38 U. S. C. 710), and Presidential Regulation No. 5, approved March 31, 1933, plaintiff was determined not to be entitled to continue to receive Emergency Officers' retirement benefits because the disability for which he was retired with pay was not shown to have been caused by a factor arising directly out of the performance of actual military or naval duty during World War I. Effective as of June 30, 1933, plaintiff's name was dropped from the Emergency Officers' Retirement Rolls. 9. Effective as of July 1, 1933, plaintiff was restored to the Veterans Administration's pension rolls and continued thereon until July 14, 1940. 10. As of July 15, 1940, pursuant to the Act of July 15, 1940 (54 Stat. 760, 38 U. S. C. 582a), plaintiff was restored to the Emergency Officers' Retirement Rolls with a rating of permanent and total disability. 11. Effective as of July 15, 1940, plaintiff received $150 per month (less certain family allotments not pertinent to this suit) as Emergency Officers' retired pay. The monthly retirement award was determined on the basis of a captain's pay with less than 3 years' service. 12. Effective as of July 1, 1946, plaintiff's Emergency Officers' retirement pay was increased to $172.50, in accordance with the Comptroller General's Certificate of October 31, 1946, based on Section I of the Pay Readjustment Act of 1942 (56 Stat. 359, 37 U. S. C. 101), as amended by Section 4 of the Act of June 29, 1946 (60 Stat. 343, 37 U. S. C. 115a), the rate of pay being based on a captain's pay with less than three (3) years' service. 13. By letters dated July 22 and December 4, 1947, the Audit Division of the General Accounting Office, in response to plaintiff's letters of June 16, June 20, and November 26, 1947, advised plaintiff that no increase in his retired pay was authorized under the Act of June 29, 1946, by virtue of his service in the Reserve Officers' Corps after his discharge as an Emergency Officer on October 30, 1920. 14. By letter dated October 27, 1947, the Veterans Administration informed plaintiff that it did not grant either 116 C. Cls. Opinion of the Court pensions or compensation awards based on National Guard service.. 15. On November 24, 1947, in reply to a letter from the American Legion, written on behalf of plaintiff, the Veterans Administration informed plaintiff that the General Accounting Office had affirmed its decision that plaintiff's retired pay based on less than three (3) years service in the amount of $172.50 per month was correct. The court decided that the plaintiff was not entitled to recover. HOWELL, Judge, delivered the opinion of the court: This is an action to recover the difference in retired pay computed on less than three years' active service as an Emergency Officer in World War I and retired pay computed on such World War I service plus ten years additional service in the Officers' Reserve Corps subsequent to plaintiff's discharge from his Emergency Officer's commission as Captain, Quartermaster Corps, on October 30, 1920. From the stipulation of facts filed herein by the parties, it appears that plaintiff honorably served as an enlisted man in the Roanoke Light Infantry, Virginia Volunteers, from October 3, 1904, through August 29, 1905, a period of 10 months and 27 days. Plaintiff served as an Emergency Commissioned Officer with the rank of Captain, Quartermaster Corps, United States Army, from November 8, 1918, until October 30, 1920, at which time he was honorably discharged by reason of the demobilization of the emergency forces. This commissioned service was for a period of 1 year, 11 months and 23 days. Plaintiff held a commission as Captain, Judge Advocate General's Department, Officers' Reserve Corps, from May 11, 1921, through May 11, 1926, and from May 11, 1926, through May 10, 1931, a total of ten years, during which time he served 45 days on active duty. Plaintiff received disability pension awards from the Veterans Administration from October 30, 1920, through February 28, 1922, and from January 1, 1926, through August 3, 1929. |