A naval officer being retired on furlough pay, under Rev.Stat. §
1454, for incapacity not the result of any incident of the service,
and being subsequently transferred by the President, by and with
the consent of the Senate, from the furlough to the retired pay
list under Rev.Stat. § 1594, is entitled thereafter, under the
second clause of Rev.Stat. § 1588, when not on active duty, to
one-half the sea pay provided for the grade or rank held by him at
the time of his retirement.
The case is stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
Howard D. Potts, an assistant engineer of the navy, being
physically disabled, was examined by a naval retiring board, who
reported that he was incapacitated from active service, and that in
their judgment the incapacity did not originate in
Page 125 U. S. 174
the line of duty. In this report the President concurred, and
directed a retirement on furlough pay. The sections of the Revised
Statutes governing such a proceeding are as follows:
"SEC. 1449. Said board shall be authorized to inquire into and
determine the facts touching the nature and occasion of the
disability of any such officer, and shall have such powers of a
court-martial and of a court of inquiry as may be necessary."
"SEC. 1450. The members of said board shall be sworn in each
case to discharge their duties honestly and impartially."
"SEC. 1451. When said retiring board finds an officer
incapacitated from active service, it shall also find and report
the cause which, in its judgment, produced his incapacity, and
whether such cause is an incident of the service."
"SEC. 1452. A record of the proceedings, and decision of the
board in each case shall be transmitted to the Secretary of the
Navy, and shall be laid by him before the President for his
approval or disapproval, or orders in the case."
"SEC. 1453. When a retiring board finds that an officer is
incapacitated for active service, and that his incapacity is the
result of an incident of the service, such officer shall, if said
decision is approved by the President, be retired from active
service with retired pay, as allowed by chapter 8 of this
title."
"SEC. 1454. When said board finds that an officer is
incapacitated for active service and that his incapacity is not the
result of any incident of the service, such officer shall, if said
decision is approved by the President, be retired from active
service on furlough pay, or wholly retired from service with one
year's pay, as the President may determine."
"SEC. 1593. Officers placed on the retired list on furlough pay
shall receive only one-half of the pay to which they would have
been entitled if on leave of absence on the active list."
On the 15th of March, 1877, Potts was nominated by the
President, and confirmed by the Senate on the 17th of the same
month, for transfer from the furlough to the retired pay list under
§ 1594 of the Revised Statutes. That section is as follows:
Page 125 U. S. 175
"SEC. 1594. The President, by and with the advice and consent of
the Senate, may transfer any officer on the retired list from the
furlough to the retired pay list."
Since his confirmation, he has been paid one-half the sea pay of
an officer of his rank at the time of retirement, the accounting
officers being of opinion that his case fell within the second
clause of § 1588 of the Revised Statutes, which is as follows:
"The pay of all other officers on the retired list (excluding
those above specified) shall, when not on active duty, be equal to
one-half the sea pay provided by this chapter for the grade or rank
held by them at the time of retirement."
He claims, however, that after his transfer from the furlough to
the retired list, he was entitled to three-quarters of the sea pay,
under the first clause of that section, as follows:
"SEC. 1588. The pay of all officers of the navy who have been
retired after 45 years' service after reaching the age of sixteen
years, or who have been or may be retired after forty years'
service, upon their own application to the President or on
attaining the age of sixty-two years, or on account of incapacity
resulting from long and faithful service, from wounds or injuries
received in the line of duty, of from sickness or exposure therein,
shall, when not on active duty, be equal to seventy-five percentum
of the sea pay provided by this chapter for the grade or rank which
they held, respectively at the time of their retirement."
This suit was brought to recover the difference between one-half
and three-quarters of sea pay from the date of his transfer. The
Court of Claims gave judgment against him, and from that judgment
this appeal was taken.
We agree entirely with the Court of Claims in the view it took
of the case. The finding of the retiring board, approved by the
President, is the judgment of the tribunal created, under the law,
for the government of the navy to determine such questions, that
Potts be retired from active service for incapacity, which "did not
originate in the line of duty." This made him a retired officer on
furlough pay, and gave him one-half the leave of absence pay of an
officer on the active
Page 125 U. S. 176
list. When he was afterwards transferred by the action of the
President and Senate "from the furlough to the retired pay list,"
his status as a retired officer was not changed. He still remained
an officer retired for incapacity which did not originate in the
line of duty, but his pay was raised from that of an officer
retired "on furlough pay" to that of one retired on half sea pay.
In other words, he was taken from the furlough list, and put on the
list of those retired under circumstances which brought them within
the second clause of § 1588, instead of the first. The object of
the statute is not to enable the President and Senate to vacate the
finding of the retiring board that the incapacity of the officer
did not "originate in the line of duty," and to decide that it was
"the result of an incident of the service," but to afford a means
for his relief from the consequences of such a finding, to the
extent of adding to his pay the difference between the half of
leave of absence pay and the half of sea pay. It may have been
intended as a provision for a remedy for wrongs done by retiring
boards, but it limited the power of the President and Senate in
that behalf to a transfer of the name of the officer from "the
furlough to the retired pay-list." The cause of his retirement
still remains the same, and determines his position on the "retired
pay list."
The judgment of the Court of Claims is
Affirmed.