#### WILBUR ROGERS v. THE UNITED STATES1

(No. B-16.

Decided March 31, 1924)

*On the Proofs*

*Jurisdiction; retired Army officer; court of inquiry.*— Where a court of inquiry, under section 24b of the Army reorganization act of June 4, 1920, 41 Stat. 773, has placed an officer in class B, and he has been retired by direction of the President, the Court of Claims has no jurisdiction to correct the record of the court of inquiry. See *Beeves*v. *Ainsworth,*219, U. S. 296.

*465
      *Same; laches.*— Where an officer has been removed from office or retired a failure for more than a year to sue for his salary is fatal to recovery; the rule in *Nicholas*v. *United States,*267 U. S. 71 and *Arant*v. *Lane,*249 TJ. S’. 367, applied.

*The Reporter'*
      *1*
      *s*statement of the case:

*Mr. Oscar W.*Underwood, *Jr.,*for the plaintiff. *Mr. U.*C. *Kilpatrick*ancl Covington, *Burling & Rublee*were on the briefs.

*Mr. John G.*Kwing, with whom was *Mr. Assistant Attorney General Robert II.*Lovett, for the defendant.

The following are the facts of the case as found by the court:

I. The plaintiff, Wilbur Rogers, is a citizen of the United States, residing in the city of Chicago, Ill., and has at all times borne true allegiance to the Government of the United States, and has not in any way voluntarily aided, abetted, or given encouragement to rebellion against said Government.

He was duly .commissioned a second lieutenant, F. A., in the Regular Army of the United States September 25, 1908; first lieutenant, July 31, 1912; captain, July 2, 1916; major, July 1, 1920. He held in the National Army the rank of major from August 5, 1911, to June 24, 1918, and that of lieutenant colonel from July‘25, 1918, to March 8,1920.

II. A board of general officers convened July 2, 1920, \ under the provisions of section 24b of the act off June 24, 1920, 41 Stat. 111. This board examined into the record of the plaintiff, classified him in class B, and sent him notice of such classification, together with a full copy of the official records upon which said classification was based.

III. Under section 24b of said act the procedure followed by the War Department, at all times relevant to this case, in provisionally and finally classifying officers of the Army was as follows:

A board of general officers was appointed by the Secretary of War to classify officers provisionally. To this board was sent by The Adjutant General of the Army all records *466on band touching in any manner on the officers’ service, including personal and efficiency records. The case of a given officer would be assigned to one member of the board, who would read the officer’s entire record and brief all papers bearing on his character or efficiency. At a board meeting the member in question would present the case to the board, and the members would vote on whether the officer should be placed in class A or class B. The board made its report to the Secretary of War, and in case an officer were placed in class B, a copy of the official records upon which its action was based was sent to him. If he then asked for a hearing before a court of inquiry, as provided in the act, the officer’s entire record was sent to the court of inquiry. After that court had held its hearing the record of same was sent to the board through The Adjutant General of the Army with the recommendation of the court of inquiry. In its initial act of classifying an officer this board was known as the provisional board, and after the record of the court of inquiry was returned to it, it was called the final board. The final board followed practically the same procedure as the provisional board, except that it considered, in addition to the records which were before the provisional board, the record of the proceedings and the recommendation of the court of inquiry. The provisional classification was considered a prima facie case against the officer which he had to answer and refute by his showing before the court of inquiry.

IV. After having been provisionally classified in class B the plaintiff applied for opportunity. to appear before a court of inquiry, and a duly appointed court of inquiry convened at Chicago, Ill., on November 30, 1920, before which the plaintiff appeared, being assisted by counsel, namely Lieut. Col. Horace F. Sykes, Infantry.

V. The plaintiff was furnished with copies from .the official records of his service, which copies contained only the unfavorable portions of his record upon which the action of the board was based. The plaintiff thereupon applied to the War Department for the complete record of *467his service, but his request was not granted. Thereafter at Chicago, Ill., he applied to the then recorder of the court of inquiry for permission to see all of his record and all of the documents from which he had received extracts, but the recorder told the plaintiff he could not permit this on account of orders from the War Department, and thereupon gave the plaintiff a copy of an order which stated only the extract copies would be given to officers in such case. The plaintiff was permitted to read the complete record of his service prior to the meeting of the court of inquiry and during its proceedings. Said record contained a complete record of plaintiff’s services as an officer of the Army from the date of his first commission therein to the date of the convening of said court of inquiry.

VI. In the proceedings before the court of inquiry the plaintiff called to the attention of the court certain charges preferred against the plaintiff by Col. Harry C. Williams, Field Artillery. The court heard the plaintiff upon these charges, but would not receive any further evidence relative thereto, upon the ground stated by the president of said court in his evidence, which appears in the record of this case, that the court had decided and had received instructions to disregard any charges against any officer who had not been brought to trial on any charges, or to whom the charges had not been read, and eAren in cases where the officer had been brought to trial and acquitted. It appeared in evidence before the court that the plaintiff had never been acquainted with these charges until he was notified that he had been put in class B.

VII. In the proceedings before the court of inquiry, while the plaintiff was on the witness stand testifying in reference to adverse reports in his record, the court through its president stated “That will be all,” whereupon he was excused as a witness and did not complete the testimony which he desired to give, although he was not prevented from doing so by the court. Upon examination of his proceedings upon the court of inquiry it appears that the remark of the court “ That will be all ” came at the end of the testimony of the plaintiff, who did not ask permission to proceed further.

*468VIII. Dtiring the course of the hearing before the court of inquiry the presiding officer addressed plaintiff’s counsel as follows:

“It is the suggestion of the court, merely a suggestion, you understand, that counsel rest his case.”

Counsel for the plaintiff thereupon stated to the court that he had more evidence that he desired to submit, whereupon the presiding officer stated :

“ I wish to repeat that it is the suggestion of the court that counsel rest his case.”

Thereupon the counsel for the plaintiff again stated to the court that he had other evidence, and that there were six witnesses in the building whom he desired to call, and a seventh witness who was in the city and waiting to be called by telephone. The. presiding officer thereupon stated emphatically, striking his hand forcibly on his desk:

“I wish to reiterate that it is the suggestion of the court that counsel rest his case.”

The plaintiff thereupon closed his case.

IX. At the time said court of inquiry was closed plaintiff had in the same building wherein the court was sitting, six witnesses, and a seventh witness, an Army officer, Avaiting to be notified by telephone to appear. These witnesses would haA^e testified as to the charges which the court had decided to ignore, but were not called by the plaintiff, nor does it appear that the plaintiff made any protest to the court because they *were*not called.

X. The copies of the official records referred to in Finding V were incorporated in the record of the court of inquiry. The court ruled as matter of law that a favorable efficiency report could be discussed but could not be incorporated in the record upon the ground that these reports were on file in the War Department and Avould be considered, as they Avere, by the final board of classification.

XI. At the conclusion of the hearing the said court of inquiry made the folloAving determination:

“The coui’t is of the opinion that Major Wilbur Rogers should not be continued in class B.

*469“ It is tbe opinion of the court that Major Rogers at times has shown much lack of tact, has shown throughout all his record, to a certain extent; shown he has energy and conscientious application to duties at times; that he has been very successful in the past year or so since these incidents occurred; and it is simply suggested to Major Rogers, that he try to cultivate improvement along those lines, to be more tactful in the future.

“ Now, any finding of the court, of course, is not final. It is reviewed by a board of general officers in Washington, and, likewise, if he is returned to class A he is again under supervision and under observation for another year; and in case his services are not satisfactory, of course, it will be brought up again for similar action. It is suggested to Major Rogers that he bear this in mind, and, realizing his defects, that he do his utmost to remedy them.

“In coming to its findings, the efficiency reports of the present Chief of Artillery, General Snow, likewise of General McIntyre and General Holbrook, have all had great weight in influencing the court, as well as those of the other senior officers who made reports upon his efficiency.”

An examination of the record of the court of inquiry shows that there was included in said record all the reports, documents, and affidavits asked for by the plaintiff, as well as the testimony of the plaintiff upon the charges which had been preferred against him.

XII. On December 20,1920, the plaintiff, by mail, received from First Lieut. Adam Richmond, the officer who was recorder of the court of inquiry at the time of the plaintiff’s hearing, a copy of the record of the court of inquiry, and found that the same contained what he believed to be errors. The plaintiff quickly interviewed Lieutenant Richmond and pointed out said errors and requested that he correct them, so that the final board in Washington would have a true record of what took place in the court of inquiry.

XIII. Thereafter, in January, 1921, the final classification board met. The board was then composed of four general officers who had been on the provisional .classification board which had provisionally classified the plaintiff in class B, and one who was a new appointee to the final board. After considering the record received from the court of inquiry as additional evidence this final board classified finally the plaintiff in class B.

*470NIY. On January 26, 1921, the then Secretary of War issued the following order:

“ The action of the classification board in finally classify-. ing-Major Wilbur Rogers, Field Artillery, in class B has been approved by the President. A board of officers having-determined that such classification is not due to the officer’s neglect, misconduct, or avoidable habits, Major Rogers is retired, by direction of the President, from active service after twelve complete years of commissioned service, or equivalent service, under the provisions of section 24b of the act of Congress approved June 4, 1920. He will proceed to his home. The travel directed is necessary in the military service.”

XV. Since January 26, 1921, the plaintiff has received only the retired pay provided by said section 24b for an officer of his rank who had served 12 complete years.

XYI. The plaintiff received a copy of the record of the court of inquiry on December 20, 1920. Immediately thereafter the plaintiff interviewed Adam Richmond, the duly appointed recorder of the court of inquiry, pointed out the errors which he believed to be in the record, and requested said Richmond to rectify them, but this was never done, the said Richmond refusing to do so. The plaintiff interviewed each member of the court of inquiry, asking that the case be reopened. He interviewed the Chief of Artillery. He saw the Secretary of War personally on or about May 18, 1921, and urged that he be restored to his rank of major on the active list. He wrote The Judge Advocate General of the Army, asking that the action of the court of inquiry be declared illegal. He wrote The Adjutant General of the Army, calling his attention to the illegal proceedings of the court of inquiry, and requested that his letter be referred to The Judge Advocate General. All of these efforts by plaintiff for reinstatement were without result. Immediately after receiving a final answer from The Adjutant General of the Army informing him that “ no further action in this matter will be taken by the War Department” the plaintiff re-qxiested his counsel to file suit in the Supreme Court of the District of Columbia against John W. Weeks, then Secretary of War, praying that a writ of mandamus be issued commanding him to restore plaintiff to his office of major of *471Field Artillery on the active list of the Army as of January 26, 1921, the elate of the purported order of retirement, which was thereafter filed. Before this mandamus suit was reached for trial the Court of Appeals of the District of Columbia held, on January 3, 1922, in certain other cases that there was no jurisdiction for a mandamus suit. Plaintiff thereupon gave directions to his counsel to file this suit.

XVII. The difference between -the retired pay received by plaintiff during the period from January 26, 1921, to January 26, 1922, and the pay and allowances of a major in the Regular Army for the same period, is $4,230.70.

Appealed.

Hat, Judge,

delivered the opinion of the court:

This is a suit brought by Maj. Wilbur Rogers to recover the difference between the pay and allowances of an officer on the active list from January 26, 1921, and the amount which he has actually received as an officer on the retired list under the provisions of section 24b of the Army reorganization act approved June 4, 1920.

The plaintiff asserts that the provisions of the act aforesaid were violated in his case; that the protection of officers of the Army which the act provided for was not extended to him, and that the order of the Secretary of War which was directed by the President directing his retirement is null and void; and that in consequence, of the nullity of said order he has never been retired from the Army, but is still an officer of the Army and entitled to the pay and allowances of an officer of his rank on the active list of the Army.

The provisions of the section of the act in question are as follows:

> “ Sec. 24b. *Classification of officers.*— Immediately upon the passage of this act, and.in September of 1921 and every year thereafter, the President shall convene a board of not less than five general officers, which shall arrange all officers in two classes, namely: Class A, consisting of officers who should be retained in the service, and class B, of officers who should not be retained in the service. Until otherwise finally classified, all officers shall be regarded as belonging to class A, and shall be promoted according to the provisions of this act to fill any vacancies which may occur prior to such final *472classification. No officer shall be finally classified in class B until he shall have been given an opportunity to appear before a court of inquiry. ' In such court of inquiry he shall be furnished with a full copy of the official records upon which the proposed classification is based, and shall be given an opportunity to present testimony in his own behalf. The record of such court of inquiry shall be forwarded to the final classification board for reconsideration of the case, and after such consideration the finding of said classification board shall be final and not subject to further revision except upon the order of the President. Whenever an officer is placed in class B, a board of not less than three, officers shall be convened to determine whether such classification is due to his neglect, misconduct, or avoidable habits. If the finding is affirmative, he shall be discharged from the Army; if negative, he shall be placed on the unlimited retired list with pay at the rate of 2% 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 equivalent, unless his total commissioned service or equivalent service shall be less than ten years, in which case he shall be honorably discharged with one year’s pay.”

It appears that on July 2, 1920,- the plaintiff was a major of Field Artillery in the Regular Army of the United States, and on that day a board of general officers was convened under the provisions of section 24b of the act above set forth. This board examined into tire record of the plaintiff and classified him in class B and sent him a notice of such classification, together with copies of the official records upon which the classification was based. The plaintiff upon receiving the notice that he had been classified in class B applied for an opportunity to appear before a court of inquiry. A duly appointed court of inquiry convened at Chicago, Ill., on November 30, 1920. Before this court the plaintiff ajjpeared together with his counsel and was given an opportunity to present testimon3r in his own behalf. This he did by producing witnesses to the court and by filing with the court numerous orders, documents, and affidavits. The court after considering the evidence produced made the following decision: “ The court is of the opinion that Maj. Wilbur Rogers should not be continued in class B,” thus deciding in favor of the plaintiff and in effect *473recommending to the final classification board that the plaintiff should not be retired from the Army.

It is true that the court in rendering its decision expressed the opinion that the plaintiff was lacking in tact, and had been so since his entrance into the Army.

The record of the aforesaid court of inquiry was forwarded to the final classification board for reconsideration of the case, and 'in January, 1921, the final classification board met, and after reconsidering the case classified the plaintiff in class B. On January 26, 1921, the Secretary of War issued an order retiring the plaintiff under the provisions of section 24b of the act of Congress approved June 4, 1920. This order is set out in full in the findings of fact.

The plaintiff complains that he was not given the opportunity by the court of inquiry “ to present testimony in his own behalf,” and that he was not furnished with his entire record in the Army before or while his case was being tried, and that his case was prejudiced before the final classification board by the alleged failure of the court of inquiry to examine several witnesses which the plaintiff had summoned and who were in the building where the court was being held.

It appears, however, that the court heard all the witnesses which the plaintiff produced, and that the witnesses which were not heard proposed to testify with respect to charges against the plaintiff which the court had disregarded and was not taken into consideration in the disposal of the plaintiff’s case, and also that the evidence proposed to be introduced was cumulative. The court in considering the plaintiff’s case, and in conducting its proceedings, had the right to exercise some discretion as to the introduction of the evidence and as to what evidence it would receive. The court was not bound to be governed by the plaintiff’s ideas of what was and what was not material evidence. And if the court regarded the essentials required by the statute, and gave the plaintiff the opportunity called for by the act, mere irregularities in practice on the trial, or any mistaken ruling of the court in respect to evidence, can not be held to vitiate its proceedings, and would not justify this court, even if it had jurisdiction of the subject matter, in setting aside and nullifying its proceedings.

*474The plaintiff was furnished with copies of the official records upon which his classification in class B was based, both before the convening of the court of inquiry and “ in the court of inquiry.” Thus the provisions of the statute were more than liter ally complied with. The plaintiff Ayas allowed to read before the court any portion of his record he desired, and his whole record while in the Army was before the final classification board and was presumably considered .by it. We fail to see wherein the plaintiff’s rights have been prejudiced by the proceedings before the court of inquiry. The court was regularly convened, it proceeded legally, it had jurisdiction of the person and of the subject matter, it made a decision favorable to the plaintiff, and it complied essentially with the provisions of the statute.

The Supreme Court of the United States in the case of *French*v. *Weeks,*259 U. S. 326, has passed upon the section of the act now under consideration. The facts in that case were not the same as those in the case at bar, but the court laid down principles which apply equally as well to the case at' bar. On pages 327 and 328 the court says:

> “ The Army reorganization act is intended to provide for a reduction of the Army of the United States to a peace basis while maintaining a standard of high efficiency. To contribute to this purpose, Congress made elaborate provision in the act for retaining in the sendee officers who had proved their capacity and fitness for command and for retiring or discharging those who, for an}^ reason, were found to be unfit. Every step of this process is committed to military tribunals, made up of officers who by experience and training should be the best qualified men in the country for such a duty, but with their action all subject, as we shall see, to the supervisory control of the President of the United States.

> “ Not being in any sense a penal statute, the act should be liberally construed to promote its purpose, and it is of first importance that that purpose shall not be frustrated by unnecessarily placing technical limitations upon the agencies which are to carry it into effect. *Street*v. *United States.*133 U. S. 299.”

The plaintiff asks this court to find that the record of the court of inquiry is erroneous and inaccurate in certain details, but this court can not set aside the record of the court *475of inquiry upon statements made by witnesses, who after all are only giving their opinion as to what ought or what ought not to be in the record. The record speaks for itself. It is too voluminous a record to be printed here, but an examination of it discloses, in our opinion, that the plaintiff was given every opportunity to present his case.

We do not believe that this court has the power to correct the record of the court of inquiry even if the evidence shows that there was some error in it. Nor do we see how the plaintiff would be benefited by such a decision.

The plaintiff in our opinion was legally retired from the Army, and can not be reinstated except by an act of Congress ; he is therefore not entitled to the pay and allowances for which he sues.

The plaintiff was retired from the Army in January, 1921, and did not bring his suit until February, 1922, more than a year after his alleged right of action accrued. The fact that the plaintiff made prompt efforts to have himself restored to the active list of the Army, and that he instituted mandamus proceedings directed against the Secretary of War does not excuse his laches in prosecuting his claim in this court. *Nicholas*v. *United*States, 257 U. S. 71; *Norris*v. *United*States, 257 U. S. 77; *Arant*v. Lane, 249 U. S. 367. See also *In re Sawyer et*al., 124 U. S. 200.

The petition of the plaintiff must be dismissed. It is so ordered.

GeahaSi, *Judge;*Dowxey, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.