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308

Opinion of the Court

5. On May 29, 1916, the Commanding General advised the Adjutant General that plaintiff would be retired as a sergeant. Plaintiff's application for retirement as first sergeant was the only application for retirement ever made by him, and he never withdrew it. He did not consent to his retirement in the grade of sergeant.

6. On June 10, 1916, by Special Orders No. 136, plaintiff was placed on the retired list as sergeant. Plaintiff had a total credit of 30 years, 2 months, and 22 days of active service, including allowance for double time for service in the Philippines and Cuba.

On June 26, 1916, plaintiff was retired in the grade of sergeant, after a record of more than 30 years of "honest and faithful service."

7. Plaintiff received the active-duty pay and allowance of a first sergeant from April 20, 1916, to May 20, 1916, and as a sergeant from May 21, 1916, to June 26, 1916.

Plaintiff received the retired pay and allowance of a sergeant from June 26, 1916, to the present time.

8. Should plaintiff be entitled to recover the difference between the retired pay and allowances of a first sergeant and the retired pay and allowances received by him as a sergeant from August 1, 1932, to July 31, 1938, there would he due him for that period the sum of $1,956.42.

This is a continuing claim.
The court decided that the plaintiff was entitled to recover.
Opinion per curiam:

This case is similar to the case of Francis O'Hara v. United States ante, p. 306, this day decided, and for the reasons stated in the per curiam opinion in that case it follows that the plaintiff is entitled to recover. The claim is a continuing one and judgment will be suspended to await the receipt of a report of the General Accounting Office of the amount due the plaintiff for the period within the statutory limitation, to wit: August 1, 1932, to the date judgment is rendered herein.

It is so ordered.

On March 3, 1941, the court entered an order as follows: Now on this third day of March, 1941, this case coming

92 C. Cls. Syllabus before the court on the defendant's motion for new trial and the plaintiff's motion for judgment, pursuant to the opinion of the court and the report received from the Comptroller General's Office with reference to the amount due, it is found that the petition in this case was filed August 29, 1938, and the claim of plaintiff is therefore barred for the period prior to August 29, 1932, and in accordance with the report of the Comptroller General there is due the plaintiff for the remainder of the period involved the sum of $2,666.80.

It is therefore ordered and adjudged that the defendant's motion for new trial be overruled, and that plaintiff have and recover of and from the United States the sum of two thousand six hundred sixty-six dollars and eighty cents ($2,666.80).

WILLIAM C. KOENIG v. THE UNITED STATES

[No. 44745. Decided October 7, 1940. Defendant's motion for new

trial overruled March 3, 1941]

On the Proofs

Pay and allowances; computation on annual basis under the Act of

June 10, 1922.-Where plaintiff, a lieutenant colonel in the United States Army on active duty, from July 1, 1937, to June 30, 1938, during the first 4 months of said fiscal year, did not occupy Government quarters and therefore was entitled to pay and allowances, including commutation of quarters, for an officer of his rank, with dependents, and where the plaintiff during the last 8 months of said fiscal year occupied Govern. ment quarters and therefore was not entitled to commutation of quarters; and where during the first-named period of 4 months the finance officer of the Army withheld from the plaintiff all pay in excess of $600 a month, interpreting section 7 of the Act of June 10, 1922, placing a limitation of $7,200 a year on the pay and allowances of any officer below the grade of brigadier general, to mean a daily limitation of $20 or a monthly limitation of $600, it is held that under the provisions of the said section 7 an officer of stated rank is given the right to receive the full amount of base pay, pay for length of service, and allowances for subsistence and rental of quarters so long as the total of all these items, for the year, does not exceed the maximum fixed in the statute.

310

Reporter's Statement of the Case Same.--A daily or monthly computation of pay and allowances is

not mentioned in the statute. Same.-All salaries of the Government are based on the fiscal year

and Congress appropriates for salaries on the fiscal-year basis.

The Reporter's statement of the case:

Mr. Mahlon C. Masterson for the plaintiff. Ansell, Ansell & Marshall were on the brief.

Miss Stella Akin, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.

The court made special findings of fact as follows, upon the stipulation by the parties :

1. The plaintiff, William C. Koenig, at all times hereinafter mentioned, was a commissioned officer on active duty in the United States Army, with the rank of Lieutenant Colonel.

2. Plaintiff's claim involves the period from July 1, 1937, to June 30, 1938, during which time he was an officer, with dependents, in the sixth pay period.

3. Plaintiff was entitled to subsistence allowance for the period in question at the rate of $1.20 a day. From July 1 to October 28, 1937, plaintiff did not occupy Government quarters, and therefore for this period he was entitled to rental allowance for six rooms at $20 a room or $120 a month, subject to such reduction, if any, as may have been required by Section 7 of the Act of June 10, 1922 (42 Stat. 629), which said Section 7 reads as follows:

That when the total of base pay, pay for length of service and allowances for subsistence and rental of quarters, authorized in this Act for any officer below the grade of brigadier general or its equivalent, shall exceed $7,200 a year, the amount of the allowances to which such officer is entitled shall be reduced by the amount of the excess above $7,200: Provided, That this section shall not apply to the Captain Commandant of the Coast Guard nor to the Director of the Coast and

Geodetic Survey. 4. The total pay and subsistence allowances of an officer, with dependents, with plaintiff's rank and length of service, accrued during the period from July 1, 1937, to June 30, 1938, and rental allowance for the period from July 1 to

92 C. Cls. Reporter's Statement of the Case October 28, 1937, as provided by statute, is $6,660.04, as follows:

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LO

$333. 33
145. 84
33. 60

pay--Commutation of Rations..

$512. 77

For the month of March :

Base pay--
Longevity pay---
Commutation of Rations.

$333, 33
145. 84
37. 20

$516. 37

310

Reporter's Statement of the Case
For the month of April :
Base pay-

$333. 33
Longevity pay---

145. 84 Commutation of Rations--

36.00

$515. 17 For the month of May: Base pay

$333. 33 Longevity pay

145. 84 Commutation of Rations.

37. 20

$516. 37 For the month of June : Base pay-

$333. 33 Longevity pay--

145. 84 Commutation of Rations_

36.00

$515. 17 5. For the period from July 1, 1937, to June 30, 1938, the plaintiff was credited with, and allowed and paid, pay and allowances in the total amount of $6,519.31, as follows:

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6. The plaintiff's accrued pay and allowances during the period from July 1, 1937, to June 30, 1938, did not exceed $7,200.00, amounting only to the sum of $6,660.04 as pay and allowances for that period.

7. Plaintiff submitted a claim to the Finance Officer of the Army for $140.73, the difference between the total accrued amount as set forth in Finding 4, and the amount allowed and paid him as set forth in Finding 5 herein, but payment of this amount was denied by that officer on the ground that, as held by the Comptroller General, the pay and allowances of officers for a fractional period of a year under the $7,200 limitation imposed by the statute shall be paid at the maximum rate of $20 a day.

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