Bowditch v. United States

60 Ct. Cl. 92, 1924 U.S. Ct. Cl. LEXIS 315, 1924 WL 2394

• Court: United States Court of Claims
• Decided: December 15, 1924
• Docket: No. C-482
• Status: Published

Opinion

Hat, Judge,

delivered the opinion of the court:

This is a suit brought by an officer of the Army for the pay and allowances of a colonel during the period of. his service as aide to Gen. John J. Pershing, United States Army, from May 1, 1918, to April 5, 1920. During the period from May 1, 1918, to April 5,1920, General Pershing held the rank of General under section 3 Of the act of October 6, 1917, 40 Stat. 410, and the office of General of the Annies of the United States, under the act of September 3, 1919, 41 Stat. 283. . • ■

The plaintiff at the time he was appointed aide-de-camp on the personal staff of General Pershing was a major, Infantry Section, Officers’ Reserve Corps; and was on November 5, 1918, appointed a lieutenant colonel of Infantry in the same corps. ■ . .

The Revised Statutes, section 1096 provides: “The General may select from the Army such number of aides, not exceeding six, as he may deem necessary, who shall have, while serving on his staff, the rank of Colonel of Cavalry.”

In the national defense act, 39 Stat. 166, the Army of the United States is defined as follows: “That the Army of the United States shall consist of the Regular Army, the Volunteer Army, the Officers’ Reserve Corps, the Enlisted Reserve Corps, the National Guard while in . the service of the United States, and such other' land forces as are now or may hereafter be authorized by law.”

By the act of May 18, 1917, 40 Stat. 82, it is provided:

“ That all officers and enlisted men of the forces herein provided for other than the Regular Army shall be in all respects on the same footing as to pay, allowances, and pen-"] sions, as officers and enlisted men of corresponding grades . and length of service in the Regular Army.” "

When the plaintiff was appointed as aide to General Pershing under section 1096 of the Revised Statutes General Pershing had by -that law the right to appoint six aides, who when appointed and while so serving were entitled to the rank'' of ■ colonel of Cavalry. The plaintiff when he was appointed an aide was a major in the Officers’ Reserve Corps J and was, rinder the provisions of the national defense act, a hiembér of the Army Of the' United' States. The General of the Armies had the right to make the appointment, and the plaintiff had the qualifications which made him eligible to such appointment.

That being so, is he entitled to receive the pay and allowances of the rank of colonel ?

In a well-considered opinion, Judge Richardson in the case of Wood v. United States, 15 C. Cls. 151, 160, says: “And all officers, whether on the active or retired list, are paid according to their rank.” This decision was affirmed by the Supreme Court, 107 U. S. 414.

The pay of the officer is determined by his rank.

The plaintiff having been regularly appointed as aide, and holding by law the rank of colonel, is entitled to the pay and allowances of a colonel while serving as such aide. Quekemeyer case, 27 Comp. Dec. 275, 279.

A judgment will be entered in favor of the plaintiff. It is so ordered.

Graham, Judge; DowNey, Judge; Booth, Judge, and Campbell, Ghief Justice, concur.