201 Opinion of the Court of what constituted adequate quarters, and the matter of determining whether a less number of rooms than as required by law and the regulations constituted adequate quarters, to the commanding officer concerned. It is clear in this case that the commanding officer at the Civilian Conservation Corps post at Ft. Bragg did not determine that a less number of rooms than as provided by law and the regulations constituted adequate quarters. When he orally advised plaintiff shortly prior to September 1, 1935, that he would have to occupy the same quarters which he, the commanding officer, had already determined to be inadequate, or let the matter drop, the commanding general simply misinterpreted the regulations of June 24, 1935, and based his advice to plaintiff that he would have to occupy the inadequate quarters (which had previously been orally assigned and orally revoked), on the action of the finance officer of the War Department in advising plaintiff that he would not be paid rental allowance after the month of August 1935. This ruling of the finance officer was simply that C. C. C. buildings constituted available government quarters and nothing more. Defendant makes the further contention that plaintiff should be denied recovery of rental allowance after September 1, 1935, on the ground that he did not file a claim with the Corps area commanding general until December 6, 1939, under Army Regulations 210-70 bj (2), August 20, 1934, which dealt with the assignment of quarters and also provided that "Any officer may appeal to the Corps Area Commander if he feels that the commanding officer * has not properly determined his case. * *" This regulation does not make it mandatory that the officer concerned appeal to the Corps Area Commander as a condition to his right to claim rent allowance provided by statute. In any event, the plaintiff was never assigned quarters, either adequate or inadequate, in accordance with the requirements of the regulations, nor did his claim for rental allowance arise as a result of the assignment to him in accordance with the regulations of quarters which he considered to be inadequate. The statute is mandatory in its provision that, except as provided in the fourth paragraph Reporter's Statement of the Case 100 C. Cls. of section 6, the officer concerned "shall be entitled at all times to a money allowance for the rental of quarters." The defense of laches is not well founded. The petition was filed well within the limitation provided by law for the bringing of suits on claims of the character here involved. Judgment will be entered in favor of plaintiff for $909.33. It is so ordered. MADDEN, Judge; WHITAKER, Judge; and WHALEY, Chief Justice, concur. JONES, Judge, took no part in the decision of this case. CADMUS J. BAKER v. THE UNITED STATES [No. 45331. Decided October 4, 1943] On the Proofs Pay and allowances; increased pay for nonflying medical officer in Air Corps, United States Army; definition of "nonflying officer."— Where plaintiff, a lieutenant colonel in the Medical Corps, United States Army, has not shown that he ever received an aeronautical rating as a pilot of service types of aircraft, it is held that plaintiff's increase in pay for flying was limited to $1,440 per year under the 1934 Appropriation Act which provided that appropriations thereunder should not be "available for increased pay for making aerial flights by nonflying officers above the grade of captain at a rate in excess of $1,440 per annum," and plaintiff is not entitled to recover more for the period from January 1 to June 30, 1935. Same. The expression “nonflying officer" as used in the Appropriation Act of April 26, 1934 (48 Stat. 614, 618), in the absence of any indication that Congress had in mind any other meaning, may be interpreted in accordance with the definition of a “flying officer" given in Section 2 of the Act of July 2, 1926 (44 Stat. 780, 781), which provided that "wherever used in this Act a flying officer in time of peace is defined as one who has received an aeronautical rating as a pilot of service types of aircraft." The Reporter's statement of the case: Mr. Fred W. Shields for the plaintiff. King & King were on the brief. Mr. Louis R. Mehlinger, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. 212 Reporter's Statement of the Case The court made special findings of fact as follows: 1. Plaintiff, on March 6, 1917, accepted appointment as a first lieutenant, Medical Section Officers' Reserve Corps, United States Army, and on March 8, 1917, entered on active duty; on June 23, 1917, he accepted a commission as a first lieutenant, Medical Corps, United States Army, to rank from June 18, 1917; he was promoted to captain on August 3, 1918, and to major on November 5, 1918, to rank from August 3, 1918; on April 6, 1937, he was promoted to his present rank of lieutenant colonel. He has served continuously on active duty since March 8, 1917, and during the period from August 1, 1934, to June 30, 1935, he was a qualified flight surgeon. 2. Personnel Orders No. 175, issued July 27, 1934, by the Chief of the Air Corps, War Department, Washington, D. C., provided in part as follows: 4. Effective August 1, 1934, the following Medical Corps officers, qualified Flight Surgeons, are detailed to duty requiring regular and frequent participation in aerial flights, pursuant to Army Regulations 35-1480, during such period as they may be assigned to duty with any aeronautic headquarters or unit or assigned to duty at a station where there is an aeronautic unit: Major Cadmus J. Baker, Medical Corps This detail to duty involving flying requires aerial flights for the purpose of study and observation of the physical and psychological condition of flying personnel. 3. Personnel Orders No. 149, issued June 25, 1935, by the Chief of the Air Corps, War Department, Washington, D. C., provided, in part, as follows: 1. Under authority contained in Army Regulations 35-1480, the following Medical Corps officers (Flight Surgeons) are relieved from further duty requiring them to participate regularly and frequently in aerial flights, effective June 30, 1935: * Major Cadmus J. Baker, Medical Corps * * * 4. From August 1, 1934, to June 30, 1935, plaintiff was on duty as flight surgeon at Wheeler Field, Teritory of Hawaii, Opinion of the Court 100 C. Cls. a station where Air Corps United States Army Troops were on duty. This assignment of duty required plaintiff to participate regularly and frequently in aerial flights, and between the dates stated above plaintiff performed the number of aerial flights prescribed by Executive Order No. 5865, dated June 27, 1932. 5. The petition in this case was filed January 21, 1941. If plaintiff were entitled to receive an increase of 50 percent of his base and longevity pay, as provided by the Act of July 2, 1926, U. S. C., Title 10, Section 300, while assigned to and performing duty requiring him to participate regularly and frequently in aerial flights, there would be due him from January 1 to June 30, 1935, the sum of $212.07 as computed by the General Accounting Office. The court decided that the plaintiff was not entitled to recover. MADDEN, Judge, delivered the opinion of the court: Plaintiff, during the period from January 1, 1935, to June 30, 1935, held the rank of Lieutenant Colonel, Medical Corps, United States Army. He was a qualified Flight Surgeon, and had been, by proper order, detailed to duty requiring regular and frequent participation in aerial flights and he made the flights. He claims that, under the applicable statutes, he should have been paid 50% more than the regular pay of his rank. He was, in fact, paid $1,440 per annum more than the regular pay of his rank. He sues for the difference. Section 13 (a) of the Act of June 4, 1920, 41 Stat. 759, 768, contains the following provision: Officers and enlisted men of the Army shall receive an increase of 50 per centum of their pay while on duty requiring them to participate regularly and frequently in aerial flights; and hereafter no person shall receive additional pay for aviation duty except as prescribed in this section;" * The Army Appropriation Act of April 26, 1934, 48 Stat. 614, 618, making appropriations for the fiscal year ending June 30, 1935, contains the following language: 212 Opinion of the Court none of which shall be available for increased pay for making aerial flights by nonflying officers above the grade of captain at a rate in excess of $1,440 per annum, which shall be the legal maximum rate as to such nonflying officers above the grade of captain; Since plaintiff's grade was above that of captain, the question is whether plaintiff was a "nonflying officer" within the meaning of the latter statute. If he was, $1,440 was the maximum increase over his regular pay that the statute permitted. To ascertain what Congress meant by the expression "nonflying officer," our only direct aid seems to be the definition of a "flying officer" given in Section 2 of the Act of July 2, 1926 (44 Stat. 780, 781). It is as follows: Wherever used in this Act a flying officer in time of peace is defined as one who has received an aeronautical rating as a pilot of service types of aircraft. While this definition is, in terms, limited to use in interpretation of the Act of 1926, the meaning which it gives to the expression is a natural one, and, in the absence of any indication that Congress had any other meaning in mind when it used the correlative expression "nonflying officer" in the Act of April 26, 1934, we conclude that it used that expression with a corresponding meaning. Plaintiff has not shown that he ever received an aeronautical rating as a pilot of service types of aircraft. His increase in pay for flying was therefore limited by the 1934 Act to $1,440 per year. He was paid that increase, and is not entitled to recover more. See Idzorek v. United States, 94 C. Cls. 659; Schofield v. United States, 97 C. Cls. 263. It is so ordered. WHITAKER, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur. JONES, Judge, took no part in the decision of this case. |