#### JOSHUA GARRISON, JR., v. THE UNITED STATES

[No. A-116.

Decided October 28, 1924]

*On the Proofs*

*Extra pay for aviation duty, Navy; during change of station.*— An officer in the Navy detailed for aviation service was entitled to receive the additional 50 per centum provided by the act of March 3, 1915, 38 Stat. 939, during change of station from the United States to France.

*Same; while in hospital.*— An officer of the Navy detailed for aviation service while in hospital was entitled to receive the aviation increase of 50 per centum so long as his detail remained in force.

*Naval Reserve Force; provisional appointment; recommendations of hoard.*— Where an ensign in the Navy was injured while detailed for aviation duty, and thereafter given a provisional appointment as lieutenant, junior grade, and was not recommended by a “ board of naval officers,” nor found “ physically qualified by a board of medical officers to perform the duties required in time of war,” as was necessary under the act of August 29, 1916, 39 Stat. 5S7, he was not “ advanced in grade, or rank pursuant to law.” (Act of March 4, 1913, 37 Stat. 892.)

*The Reporters*statement of the case:

*Mr. George A. King*for the plaintiff. *King & King*were on the brief.

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

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

I. The plaintiff, Joshua Garrison, jr., was from July 26, 1917, a seaman; from January 22, 1918, an ensign; and from October 1, 1918, a lieutenant, junior grade in the *920United States Naval Reserve Flying Corps, Class 5, U. S. N. R.. F., and remained sucli lieutenant, junior grade, until September 23, 1920, wlien he was transferred to the retired list in accordance with Revised Statutes, Sec. 1453, and the act of June 4,1920, Sec. 2, 41 Stat. 834, for physical disability incurred in line of duty as hereinafter stated.

January 22, 1918, he was appointed by the commanding-officer of the naval air station at Pensacola, Florida, and the appointment approved by the Navy Department, a naval aviator for duty involving actual flying- in aircraft, including- dirigibles, balloons, and air planes, and was assigned to duty at the Naval Air Station, Pensacola, Florida.

Shortly afterwards he was detached from the Naval Air Station at Pensacola and ordered to France for duty with the Naval Aviation Forces, and upon arrival in France was ordered to go to London and thence to the Naval Air Station at Killingholme, England, for duty at that place. His assignment involving- actual flying in aircraft remained in force.

October 28, 1918, while in the active performance of that duty he fell from the seaplane in which he was flying, incurring serious and permanent disability, and remained continuously in hospital until September 23, 1920, date of his retirement.

October 28, 1918, the commanding officer of the United States Naval Air Station at Killingholme, England, in the course of giving orders named, “ Ensign J. Garrison, U. S. N. R. F. (2d pilot).”

January 6, 1919, the commanding officer of the same station issued an order to the plaintiff then in Grimsby General Hospital, England, “ when able to travel proceed to London, England, and. report to the force commander for such duty as may be assigned you.” “ Your designation as a naval aviator remains in force,” sending a copy thereof among others to the Bureau of Navigation, Washington, D. C.

II. At the time the accident occurred and until the retirement of the plaintiff the following was in force as a part of General Order No. 377, Navy Department, Washington, D. C., March 14, 1918:

*921“ S. In tlie case of individuals failing to perform a Eight because of physical disability incident to flying, flight orders, during the period of such disability will be considered as fully in effect.”

The plaintiff applied to the Auditor for the Navy Department for a continuance of aviation pay to the date of his retirement. The claim was disallowed by the said Auditor and on appeal the decision ivas affirmed by the Comptroller of the Treasury.

III. He was at first paid by a supply officer of the Navy for the time covered by his transit from station in the United States to that in France. More than three years after the payment, however, it was checked against and deducted from his current pay on the retired list.

The items involved in this claim are as follows:

50% aviation increase during time of transit from station in tlie United States to that in France, February 8, 1918, to March 13, 1918_ $85. 00

Aviation increase while in hospital from May 14, 1919, to September 23, 1920_1,361.12

Total_ 1,446.12

Booth, *Judge,*

delivered the opinion of the court:

The plaintiff, Joshua Garrison, jr., enlisted in the Naval Reserve Force as a seaman July 26, 1917. Subsequent to a short course of instruction at the Massachusetts Institute of Technology he was detailed on October 19,1917, to the Naval Air Station at Pensacola, Florida. On January 22, 1918, he was given the provisional rank of ensign, class 5, and on the same day duly qualified for the same. He was on' this same day appointed a naval aviator and detailed for'duty involving actual flying in aircraft, including balloons, dirigibles, and airplanes. On February 1, 1918, he was detached from aviation duty at Pensacola and ordered to Washington, D. C., for temporary duty, and was, in a short time thereafter, ordered to aviation duty with the naval aviation service in France. He served as a naval aviator in France and in England, flying as ordered. On October 28, 1918, he was seriously injured by the fall of the airplane in which he was flying and sent to the hospital for treatment. After *922receiving medical and surgical treatment in various naval hospitals, both abroad and in the United States, he was, on October 1, 1920, found by a naval retiring board to be permanently incapacitated for duty and placed on the retired list under section 1453, Revised Statutes. While invested with the rank of ensign, and subsequent to his injury, he was on March 3, 1919, given the provisional rank of lieutenant, junior grade, to date from October 1, 1918. In the settlement of his pajr accounts the plaintiff received the additional pay of 50 per cent provided for aviators in the act of March 3, 1915, 38 Stat. 939, until May 14, 1919. Thereafter it was withheld from him on the ground that his physical condition precluded actual flying, and notwithstanding his detail remained unrevoked, the fact of his injury and confinement in a hospital was sufficient to prevent the additional allowance under the statute. Just why this additional allowance was stopped on May 14, 1919, does not appear, unless the decision of the Comptroller of the Treasury, rendered on that date, was the cause. (25 Comp. Dec. 872.)

The plaintiff, we have said, received the additional pay provided for aviators in the act of March 3, 1915, from the date of his detail until May 14, 1919. Some three and a half years later, after he had been placed on the retired list, $85 was checked against and deducted from his retired pay as an alleged overpayment made to him for the time intervening between his transfer from Pensacola, Florida, to Washington, and thence to France and England.

This suit, therefore, is to recover the following items :

> 50% aviation increase during time of transit from station in tbe United States to that in France, February 8, 1918, to

> March 13, 1918_ $85.00

> Aviation increase while in hospital from May 14, 1919, to September 23, 1920_1,361.12

> ■ Total_ 1,446.12

The case is not *res integra,.*The first item of $85 comes clearly and unmistakably within the decisions of this court in *Lamont*v. *United*States, 53 C. Cls. 644, as well as *Engard*v. *United*States, 196 U. S. 511. The second item is in most respects disposed of by the more recent case of *Marshall*v. *United*States, *ante,*p. 900, following the decision of the *923Supreme Court in the case of *United States*v. Luskey, 262 U. S., 62.

The only issue deserving especial consideration is whether the plaintiff is entitled to be paid as a lieutenant, junior grade. It, will be noted that his provisional appointment as lieutenant, junior grade, was made subsequent to his accident, and at a time when he was confined in a hospital. It is true that the act of March 4, 1913, 37 Stat. 892, provided “ That all officers of the Navy who, since the 3d day of March, 1899, have been advanced or may hereafter be advanced in grade or rank pursuant, to law shall be allowed the pay and allowances of the higher grade or rank from the dates stated in their commissions,” and this court has uniformly held that if the advancement of the officer was “ pursuant to law,” he was entitled to the advanced pay from the date stated in his commission. The act of August 29, 1916, 39 Stat. 587, specifically provided for the appointment or advancement of officers in the Naval Reserve Force. Among other things, no such promotion could be made until after the same had been recommended by a “ board of three naval officers not below the rank of lieutenant commander, nor until he shall have been found physically qualified by a board of medical officers to perform the duties required in time of war.” Manifestly the plaintiff could not meet the requirements of this statute, and the record does not disclose any attempt to comply with it. Hence it seems to us that his appointment as provisional lieutenant, junior grade, was clearly outside the statute and unwarranted under the law. We so held in the similar case of *Lawless*v. *United States,*ante, p. 224.

The plaintiff, however, is entitled under the *Marshall*ease, *supra,*to recover the additional pay due and allowable to an ensign from May 14, 1919, until the date of his retirement, viz, September 23, 1920.

The case will be remanded for a restatement of account in accord with this opinion. It, is so ordered.

Geahabi, *Judge;*Hat, *Judge;*DowNet, *Judge;*and Campbell, *Chief*Justice, concur.