Berry

Military fay; active duty fay. — Plaintiff, a regular Air Force officer retired for physical disability on July 2, 1963, sues to recover the difference between the disability retired pay he has been receiving and the active duty pay he claims he should have been receiving, on the ground that his retirement was in reality under the provisions of the so-called White Charger Act of July 12,1960, 74 Stat. 386, providing for the retirement of officers on the active list in the regular grade of colonel or lieutenant colonel, who have had at least 20 years of service and who have been considered more than twice but not recommended for promotion. Defendant moved for summary judgment dismissing the petition on the ground that the petiiton failed to state a claim upon which relief might be granted. On July 12, 1965, the court considered *677defendant’s motion and plaintiff’s opposition thereto and without oral argument concluded that plaintiff was retired for physical disability with his concurrence and was not retired under the Act of July 12, 1960. It was ordered that defendant’s motion be granted and the petition dismissed. On December 17, 1965, plaintiff’s motion for reconsideration and oral argument and to defer action on defendant’s motion for summary judgment until evidence is completed in the Norman v. United States (No. 295-62) case, was denied, plaintiff’s petition for writ of certiorari denied, April 25, 1966, 384 U.S. 919.