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McTaggart v. United States

April 6, 1972


Kiley and Stevens, Circuit Judges, and Campbell, Senior District Judge.*fn*

Author: Stevens

STEVENS, Circuit Judge.

Plaintiff is a former Air Force officer who achieved both a temporary and permanent rank of Captain and was honorably discharged, but was retired as a First Lieutenant under 10 U.S.C. § 1372. He claims that his rank at the time of his Honorable Discharge should determine his rate of retirement pay.

The discharge occurred on December 5, 1962, as a result of a disciplinary proceeding. Having accumulated 19 years, 8 months, and 11 days of service, plaintiff was allowed to reenlist as a Master Sergeant to complete his retirement time. Thereafter, when he retired for physical disability, defendants determined that the highest rank or grade in which he had performed satisfactory service was that of First Lieutenant.

Plaintiff contends that his Honorable Discharge as a Captain establishes as a matter of law that "he served satisfactorily" in that rank within the meaning of 10 U.S.C. § 1372. The relevant portion of that section provides:

"Unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:

"(2) The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired."

As we read the statute, the words "as determined by the Secretary" grant him certain discretion in determining whether the highest rank achieved by an officer should control his rate of retirement pay. Even so, plaintiff argues, if an officer's service as a Captain was "honorable," it must also have been satisfactory; hence, the Secretary's discretion cannot contradict the determination evidenced by his discharge certificate.

The argument would confine the exercise of the Secretary's discretion to cases in which the discharge was not honorable. We think Congress would have expressed such a limitation in different language.

Although unquestionably the character of an officer's discharge is controlled by the character of his service, and although it would be anomalous to characterize an officer's service as honorable if it is less than satisfactory, there are important differences between "Honorable Discharge" and "satisfactory service." The type of discharge, whether honorable or otherwise, is unrelated to the rank or grade in which the discharged veteran served. It is a badge of honor, or something less, to be carried in civilian life.*fn1 The determination of the rate of compensation to be paid a retired veteran involves different considerations. We find no real inconsistency between a characterization of a veteran's entire career as "honorable" for discharge purposes*fn2 and a finding that the conduct which resulted in discipline while he was a Captain rendered his service in that rank less than satisfactory.

We do not think Congress intended the Secretary to issue a discharge other than honorable as a condition precedent to finding that the rate of retirement pay should be measured by a rank or grade below the highest attained by the serviceman. That kind of rigid choice does not fit the discretionary language in the statute.

Plaintiff also argues that his discharge as a Captain was "unconstitutional and arbitrary, capricious, not supported by substantial evidence and contrary to law."*fn3

We have examined the record of the disciplinary proceeding and are satisfied that plaintiff received adequate notice of the charges against him, was accorded a fair hearing, and that the applicable procedural regulations were followed at the hearing and at the appellate levels.*fn4 Plaintiff also argues, essentially, that he was denied due process because his discharge was not supported by substantial evidence. When statutory procedures are followed, and procedural due process and multilevel review are afforded, our entry into the "sufficiency of the evidence" area must necessarily be a narrow one.*fn5 Without deciding the minimum standard which may be applicable, we believe that the "substantial evidence" test generally applied to review of administrative agency decisions, cf. 5 U.S.C. § ...

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