Byrne v. United States

delivered the opinion:

The plaintiff, a captain of the U. S. Army, was retired April 18, 1929, after serving more than ten years in the Regular Army. He had previously served as an officer in the Philippine Constabulary for a period of 13 years, 8 months, and 1 day. Since his retirement from the Regular Army he has received retired compensation as provided by section 24b of the act of June 4, 1920, 41 Stat. 773, but upon the basis of 2% per centum of his yearly active pay, multiplied by ten, the period of service in the Regular Army, rather than multiplied by the total period of his combined service in the Philippine Constabulary and the Regular Army, a total of twenty-two years.

Section 24b, act of June 4, 1920, supra, amending the national defense act of 1916, makes provision, in the circumstances applicable to this plaintiff, for the retirement of an officer in the regular service and the payment of retired pay “ at the rate of 2y2 per centum of his active pay multiplied by the number of complete years of commissioned service, or service which under the provisions of this Act is counted as its equivalent.”

The equivalence, as provided by section 127a of the same act must specify the service in the “ Regular, provisional, or temporary forces * *

By the act of May 23, 1928, 45 Stat. 720, specific provision was made that commissioned service in the Philippine Constabulary “ shall be credited to the same extent as service under a Regular Army commission * * * ” in determining the pay periods and rights of a retired officer of the Regular Army.

*442In this action plaintiff seeks to recover the difference in the compensation received by him and the amount which he would have received if his right of compensation had been estimated upon the basis of his total service in the Philippine Constabulary and the regular service, but which has, been denied him upon the contention that service in the Regular Army alone is permitted to serve as the basis of compensation.

In view of the provisions of the act of May 23, 1928, 45-Stat. 120, the plaintiff is clearly entitled to secure compensation upon the basis of service in excess of 22 years.

Judgment will be entered for the plaintiff upon recepit. of a statement from the General Accounting Office of the amount due in accordance with this opinion.