#### CLARENCE E. LAUDERDALE v. THE UNITED STATES

[No. D-282.

Decided May 3, 1926]

*On the Proofs*

*Army pay; act of June 1920; retired, officer, Dental Corps.*— Where an officer in the Dental Corps, United States Army, who is retired with the rank of captain March 27, 1917, is ordered to active duty June 3, 1921, and receives the pay of a captain on the active list December 10, 1921, to March 31, 1924, and he would not, if he had remained on the active list all that time, have attained a higher grade in due course of promotion, he is not entitled to additional pay under the act of June 4, 1920, for a higher grade.

*The Reporter's*statement of the case:

*Mr. Samuel T. Ansell*for the plaintiff. *AnseTl & Bailey*were on the briefs.

*Mr. John G. Ewing ^*with whom was *Mr. Assistant Attorney General Merman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff, Clarence E. Lauderdale, was duly appointed a contract dental surgeon, United States Army, April 15, 1901, and served as such until June 19, 1911; he was duly appointed and commissioned as dental surgeon with rank of first lieutenant, Regular Army, April 16, 1911, which appointment he duly accepted June 20, 1911, and served as such on the active list until March 27, 1917, when he was retired with the rank of captain to date from June 3, 1916.

*159II. By orders of the War Department issued by direction of the President the plaintiff, then on the retired list, was duly detailed, under the provision of section 40(b) of the national defense act, as amended, as professor of military science and tactics, St. Louis University Dental School, St. Louis, Mo., and was ordered to proceed without delay to Carlisle Barracks, Carlisle, Pa., and report in person on or about June 6, 1921, to the commandant, Medical Field Service School, for temporary duty for the purpose of pursuing a course of instruction, and upon completion of this duty to proceed to St. Louis, Mo., for the duty for which detailed by this order.

III. On June 3, 1921, plaintiff in obedience to said order proceeded to Carlisle Barracks, Pa.; performed there the temporary duty as directed and, upon completion thereof, proceeded to St. Louis, Mo.; reported July 22, 1921, as'professor of military science and tactics at St. Louis University Dental School, and was continuously on active duty as such at said school in accordance with said orders and under said detail from said July 22, 1921, to March 31, 1924, and has been continuously on active duty under said detail and orders from said 3d day of June, 1921, to said 31st day of March, 1924.

IY. For the period from December 10, 1921, to March 31, 1924, the plaintiff received the pay of a captain on the active list with 17 years’ active service and rental and subsistence allowances for said rank of captain on the active list.

V. If plaintiff is entitled to receive the rank, pay, and allowances of a colonel on active duty with 17 years’ active service for the period from December 10, 1921, to March 31, 1924, he would be entitled to the sum of $3,831.46, this sum representing the difference between the amount of the pay and allowances, including rental and subsistence allowances, which he received during said period as captain on the active list with 17 years’ active service, and the amount of the pay and allowances to which he would be entitled as an officer entitled to receive the pay and allowances, including rental and subsistence allowances, of the rank of colonel with 17 years’ active service.

The court decided that plaintiff was not entitled to recover.

*160Hat, Judge,

delivered the opinion of the court:

The plaintiff, who is an officer of the Dental Corps of the Army and who was retired with the rank of captain on March 27, 1917, and who was on July 22, 1921, placed on active duty as a professor of military science and tactics at St. Louis University Dental School, brings this suit for the difference between the active-duty pay and allowances of a colonel during the period from December 10, 1921, to March 31, 1924, and the pay and allowances received by him as a captain.

The plaintiff relies upon the provisions of the act of June 4,'1920, 41 Stat. 759, 786, the pertinent part of which reads as follows:

“Hereafter any retired officer who has been or shall be detailed on active duty shall receive the rank, pay, and allowances ox the grade, not above that of colonel, that he would have attained in due course of promotion if he had remained on the active list for a period beyond the date of his retirement equal to the total amount of time during which he has been detailed to active duty since his retirement.”

The plaintiff alleges that he would have attained the grade of colonel in the Dental Corps in due course of promotion if he had remained on the active list for a period of six months and nine days beyond the date of his retirement. He does not, however, state how that would have been accomplished.

Under the law as it stood when he was retired (39 Stat. 173) the highest rank provided for was that of major and it required a service of 24 years to attain that rank.

While the plaintiff was on the retired list the act of October 6, 1917, was passed (40 Stat. 397). This act was an emergency measure and largely increased the Dental Corps, and provided: “That immediately following the approval of this act all dental surgeons then in active service shall be recommissioned in the Dental Corps in the grades herein authorized in the order of their seniority and without loss of pay or allowances or of relative rank in the Army.”

The plaintiff was not in active service at the time of the passage of this act, and was not in position to take advantage of its provisions. The officers who were on the active list *161were recommissioned, not promoted; nor was there any provision in the act which repealed the provision of the act of June 3, 1916, which required a service of 24 years before on officer of this corps could attain to the rank of major. The act of October 6, 1917, was a war measure, and only those who were then in active service could take advantage of it. Certainly officers on the retired list could acquire no rights under its provisions.

The plaintiff, we suppose, claims that if he had been in active service on October 6, 1917, he would have been recoin-missioned in the Dental Corps with the rank of colonel. Admitting that to be true, the fact does not meet the requirements of the act on which he relies. That act provides that if the officer be detailed on active duty he shall receive the rank, j>ay, and allowances of the grade “ that he would have attained in due course of promotion if he had remained on the active list for a period beyond the date of his retirement equal to the total amount of time during which he has been detailed to active duty since his retirement.” The plaintiff under the provisions of the act of October 6, 1917, would not have attained in due course of promotion the rank of . colonel. He might under the provisions of that act have been recommissioned in the Dental Corps with the rank of colonel had he remained in active service. It was his misfortune that he did not so remain, but he can not now be regarded as an officer on the retired list who is entitled to the benefits of the act of June 4, 1920, above cited, and on which he relies.

Attention is also called to section 10 of the act of June 4, 1920, 41 Stat. 767. which provides, that an officer of the Dental Corps must serve 26 years before he can attain the grade of colonel.

The plaintiff proposes that he shall be given the pay and allowances of a colonel after a service of only abotit 18 years.

The petition of the plaintiff must be dismissed, and it is so ordered.

Graham, *Judge;*Downey, *Judge;*Booth, *Judge;*and CaMpbell, *Chief*Justice, concur.