Lemon v. United States

delivered the opinion of the court:

The facts are agreed upon and it is also conceded that the plaintiff is entitled to recover $181.38 on account of not receiving the quarters to which he was entitled, and also $85.88 for travel pay and expenses. The only question in the case is whether he was entitled to a year’s pay on being discharged.

The act under which plaintiff was discharged, among other things, provides that—

“ Officers selected for elimination of less than ten years’ commissioned service may, upon recommendation of the board herein provided for, be discharged with one year’s pay.” (42 Stat. 722.)

We do not think that the plaintiff can be said to have been “ selected for elimination ” within the meaning of the law. The elimination referred to in the statute is the action of the Government through a board provided for that purpose. This board did not eliminate the plaintiff from the service. It merely reduced him in rank. - He eliminated himself by refusing to accept the offered commission of first lieutenant.

It follows that the plaintiff’s claim for one year’s salary should be dismissed, and that judgment should be rendered in his favor for the amount conceded to be due him on account of quarters and travel pay and expenses. It is so ordered.