PAY AND ALLOWANCES-Continued
so long as the quarters are supplied by the Govern- ment. Id.
Army and Navy 13 (10).
IX. The housing provided by the Philippine Government was not provided as an emolument to the officers of the group, but was furnished to the United States Government as an element of compensation to the United States for making its military assistance available. Id.
X. Having served as a member of the military forces of the United States prior to November 12, 1918, and retired after the passage of the Pay Readjustment Act of 1942 (56 Stat. 368), under provision of law, plaintiff is entitled to the retired pay of a Lieutenant Colonel with over 30 years' service. See Carroll v. United States, 117 C. Cls. 53. Shea, 53.
Army and Navy 13 (12).
XI. In a suit by an Army officer, Chaplain, for terminal leave pay, where he was separated from the Army "for the good of the service" in 1944, and later, in 1945, the plaintiff was notified by the Adjutant General's office that the Secretary of War's Discharge Review Board, on consideration of plaintiff's appeal, had directed that plaintiff's resignation from the service be considered as having been under honorable conditions; it is held that the plaintiff is entitled to recover. Whelpley, 56.
XII. Under the applicable statutes and Army Regulations and practice, if it had not been for the fact that his resignation "for the good of the service" made his release not "under honorable conditions," plaintiff would have been given terminal leave for the leave standing to his credit and the date of his release would have been fixed to coincide with the end of his leave, thus giving him his pay and allowances during his leave period. The decision of the Review Board, reversing the previous decision of the War Depart- ment, wiped out nunc pro tunc the blot on plaintiff's service record and rendered him entitled to the terminal leave pay. Id.
Army and Navy ✨ 9, 13 (8).
PAY AND ALLOWANCES-Continued
XIII. The provisions of the statutes, long in effect, the Army Regulations and the regular practice of the Army in giving honorably discharged officers the leave which stood to their credit, by fixing the date of their separation as that of the expiration of their terminal leave, gave to officers a vested right to that leave, unless it was denied to them by the Secretary of War in the exercise of his statutory discretion. In the instant case the Secretary of War did not exercise any discretion, as there was not presented to him any occasion to do so. Id.
XIV. Plaintiff, formerly a lieutenant, United States Navy and leader of the United States Naval Academy Band, dismissed from the service on January 9, 1947, pursuant to the judgment and sentence of a Navy general court martial, sues to recover pay and allowances from January 9, 1947, to January 28, 1948, the date his petition was filed in the Court of Claims. Recovery is sought on the grounds that the sentence of dismissal was void because not legally reached and because such sentence of dis- missal was never properly confirmed. It is held that plaintiff is not entitled to recover and the petition is dismissed. Sima, 405.
XV. Plaintiff's contention that his dismissal was improper and without warrant of law for the reason that the general court martial was without jurisdiction be- cause of noncompliance with the applicable provi- sions of the Articles for the Government of the Navy (34 U. S. C. 1200, Arts. 24, 43 and 44) is not sus- tained on a review of the proceedings leading up to the arrest, trial, and conviction of the plaintiff. Pretrial procedural error does not offset the juris- diction of a general court martial and does not nullify a conviction after a fair trial. Errors in procedure in a court martial can be corrected only by the proper military authorities. Id.
XVI. Plaintiff's contention that he was denied his right to a speedy trial guaranteed by the Sixth Amendment is not sustained on a review of the proceedings relating to his arrest on February 28, 1946, and his arrest for trial on June 28, 1946, a period of 4 months. The
PAY AND ALLOWANCES-Continued
right to a speedy trial is necessarily relative; it is consistent with procedural delays and depends upon circumstances.
XVII. The general court martial had jurisdiction of plaintiff and of the offenses with which he was charged. The proceedings and judgment of a general court martial are not open to review or collateral attack in any civil tribunal unless it is shown that the court martial was void.
XVIII. Plaintiff's contention that his dismissal from the United States Navy was improper and without war- rant of law because the sentence of the general court martial was not personally confirmed by the Presi- dent of the United States as required by Article 53 of the Articles for the Government of the Navy (34 U. S. C. 1200, Art. 53) is not sustained. Under the provisions of Title I of the First War Powers Act, approved December 18, 1941 (55 Stat. 838), the President was authorized to redistribute func- tions, duties, and powers as he might deem necessary and wise. Under Executive Order No. 9556 the President transferred and delegated to the Secretary of the Navy and the Under Secretary all functions, duties and powers of confirmation vested in the President under Article 53. It is held that plaintiff's sentence was properly confirmed. Id.
XIX. In a suit for the difference in the retired pay of a colonel of the United States Army, which he is receiv- ing, and the retired pay of a brigadier general, it is held that plaintiff is not entitled to recover. De- fendant's demurrer sustained. Kimberly, 805.
XX. Where, on October 31, 1945, the plaintiff was retired for disability found to be an incident of the service, under Section 1251 of the Revised Statutes, with the rank and pay of a colonel with more than 30 years of service; and where beginning about July 1, 1938, the plaintiff, while holding the permanent rank of colonel, was assigned as Chief of the American Military Mission to Brazil with the rank and grade of brigadier general, but without any increase in pay, under the provisions of the Act of May 19, 1926, as amended
PAY AND ALLOWANCES-Continued
and under the Executive Agreement of November 12, 1936, renewed November 12, 1938, between the Presidents of the United States of America and of Brazil; it is held that the nature of the special assign- ment was not such an advance in rank as would entitle plaintiff to an increase in retired pay under the provisions of Section 402 (d) of the Career Compensation Act of October 12, 1949, 63 Stat. 816, 823. Id.
Army and Navy — 13 (12).
XXI. The retirement provisions of the Acts relating to officers of the Armed Services were intended by the Congress to be based on the actual rank held by officers at the time of retirement. The provisions of the Act of October 12, 1949, were intended merely to give the retiring officer the advantages of a higher rank where the promotions were real and covered actual service in the higher rank. Id.
Army and Navy ☺➡ 13 (12).
XXII. On defendant's motion for new trial, which is over- ruled, the decisions of the Court of Claims in the instant case (118 C. Cls. 438) and in Moreno v. United States, 118 C. Cls. 30, are distinguished. Dilks, 826.
XXIII. In the instant case, the departmental determination as to the status and entitlement to pay and allowances generally were not challenged by plaintiff. The only question presented to the court was whether the monetary allowance in lieu of rations and quar- ters of which Dilks was in receipt on the date of his capture was the sort of allowance which Congress intended in the Missing Persons Act, as amended, should be credited to the account of a prisoner of war during the period of bis captivity (56 Stat. 143; 58 Stat. 679, 680). Id. Army and Navy 13 (6).
PERFORMANCE BOND, SURETY ON.
I. Where plaintiff, surety on a contractor's performance bond, completed the contract upon the contractor's default; and where under the terms of the contract the Government had retained certain percentages from the payments made to the contractor during the progress of the work, before the contractor's default; it is held that the Government's right to
PERFORMANCE BOND, SURETY ON-Continued
apply the retained percentages in partial satisfac- tion of taxes owed by the contractor is superior to the completing surety's right to the retained per- centages, and plaintiff is not entitled to recover. Standard Accident Insurance Co., 749.
II. In the instant case, upon completion of the contract there was a balance of $14,658.37 remaining due from the Government. Of this amount $5,214 rep- resented the percentages retained from the pay- ments made to the contractor for work done before its default and $9,444.37 was the amount of the con- tract price earned by the completing surety. The General Accounting Office authorized payment to plaintiff of the $9,444.37 and set off the amount of the retained percentages, which the surety also claimed, in partial satisfaction of social security taxes owed by the contractor. The tax debt arose partly out of work under the contract in suit and partly out of work under another contract on which plaintiff was also surety and in respect to which plaintiff paid subcontractors and materialmen under its payment bond. Id.
III. Plaintiff's contention that defendant had no right to set off the tax debt against the retained percentages because the percentages were sums dedicated to the completion of the contract to which the surety be- came entitled in its own right when it stepped into the contractor's shoes and fulfilled the contractor's obligation to the United States is not sustained. A surety's right of subrogation to the priority of the United States cannot operate contrary to the interest of the United States. See United States v. National Surety Co., 254 U. S. 73. Id.
IV. The retained percentages represented money earned by the contractor from the United States and due to the contractor from the United States upon completion of the contract, but the United States has a right to set off its creditor's debt to it before paying its debt to the creditor. See United States v. Munsey Trust Company, 332 U. S. 234. Id.
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