Morse v. United States 48 Ct. Cl. 510

JEROME E. MORSE v. THE UNITED STATES.

[46 C. Cls. R., 361; 229 U. S. R., 208.]

On the claimant's appeal.

Á lieutenant in the Navy, retired for incapacity which did not originate in the line of his duty, is on the half-pay list when a special statute authorizes the Secretary to transfer him from the half-pay list to the 76 per cent pay list. Subsequently he is nominated for advancement to the grade of lieutenant commander on the retired list under the act 29th June, 1906, and his nomination is confirmed by the Senate. The question in the case is whether he is entitled to the retired pay of a lieutenant or of a lieutenant commander.

The court below decides;

I.The act 29th June, 1906 (34 Stat. R, 554), provides that any officer on the retired list of the Navy who has been “ retired on account of wounds or disability incident to the service ” may, in the discretion of the President, by and with the consent of the Senate, be placed on the retired list with the rank and retired pay of one grade above that actually held by him at the time of retirement. But this advancement by the President and Senate will not entitle an officer to the pay of the higher grade to which he has been advanced unless he was “ retired on account of wounds or disability incident to the service.”

II.A special act, act 10th June, 1902 (32 Stat. B., 1444), which authorizes the Secretary of the Navy to transfer an officer on the retired list “ from the half-pay list to the 15 per centum list under section 1588, Revised Statutes,” will not operate to change his status from that of an officer retired for incapacity not incident to the service to that of an officer retired for incapacity incident to the service.

III.The Revised Statutes (§ 1588) limits the increase of pay to such officers only as were retired, among other things, “ on account of incapacity resulting from long and faithful service, or from wounds received in the line of duty, or from sick *511 ness or exposure therein." An officer retired from active service wiien comparatively a young man because of a disease of his eyes, which the retiring board found did not originate in the line of duty, is not entitled to the benefits of the statute.

The decision of the court below is affirmed on the same grounds.

May 26, 1913.