Kutz v. United States (132 F. Supp. 117, 1955)

LARAMORE, Judge.

This case involves the right of a retired naval officer to receive increased retired pay under a special statute providing for certain benefits to naval officers who were specially commended for performance of duty in actual combat.

Plaintiff is a retired naval officer who served as such during World War I, having retired in 1925, with the rank of lieutenant commander. In 1918 he was serving aboard the U. S. S. San Diego when that vessel sank off the coast of Long Island, New York, on July 19, 1918.

In September 1918, plaintiff received a letter from the Acting Secretary of Navy commending him for his conduct upon the occasion of the sinking of the ship, as follows:

“1. The Department is in receipt • of the report of the Commanding Officer of the U. S. S. San Diego, relative to the conduct of the officers and men of that vessel on the occasion of the sinking of the same on July 19, 1918, and takes pleasure in quoting the following letter for your information:

“ T have to report that Lieutenant F. G. Kutz, U. S. Navy, showed unusual coolness and presence of mind in time of peril.

“ ‘On the occasion of the loss of the U. S. S. San Diego, July 19, 1918, this officer who was serving as the 1st Division Officer, in charge of the forward part of the ship, showed exceptional poise in carrying out his routine duties before the ship sank; and later in the water while getting the boats which had floated clear, in working condition, his conduct was such as to inspire confidence in those about him which undoubtedly resulted in the saving of life.

“ ‘It is my opinion that this officer’s conduct was specially meritorious and deserving of commendation from higher authority.’

“2. You are, accordingly, hereby highly commended for your exemplary conduct and bearing on the occasion described above, thereby rendering all assistance possible to your Commanding Officer under exceedingly trying conditions.

“3. A copy of this letter will be filed with your official efficiency record.”

Plaintiff retired in 1925 and has been receiving 55 percent of the active-duty pay of a lieutenant commander. When plaintiff retired, he requested the Navy Department to accord him the benefits of section 30 of the Act of March 4, 1925, 43 Stat. 1279, 34 U.S.C.A. § 399, by virtue of his 1918 commendation in connection with the sinking of the U. S. S. San Diego. However, the Navy Department ruled that plaintiff had not been in actual combat with the enemy at the time of the sinking of the ship and was not, therefore, eligible for the benefits of the statute.

In 1950, plaintiff requested the Navy Department to advance him to the next higher rank, that of commander, on the retired list, under the provisions of section 412(a) of the Officer Personnel Act of 1947, 61 Stat. 795, 34 U.S.C.A. § 410n. Plaintiff made reference in his request to the promotion of Rear Admiral Harley H. Christy under the same statute.

The Navy Board for Decorations and Medals reconsidered plaintiff’s case and advised the Secretary of Navy that it was of the opinion that plaintiff’s 1918 commendation on the occasion of the sinking of the U. S. S. San Diego was one for performance of duty in actual combat with the enemy. It recommended that he be “accorded the benefits accruing by law to those officers who have been so commended.” This recommendation was approved by the Assistant Secretary of Navy for Air on April 15, 1950.

The redetermination of the Navy Board for Decorations and Medals in 1950 was based solely on the action taken in the case of Rear Admiral Harley H. Christy, who had likewise been commended for his performance of duty upon the occasion of the sinking of the U. S. S. San Diego. In 1942, after he had retired, the Navy Department ruled that this commendation was not one for performance of duty in actual combat. Thereafter, Rear Admiral Christy several times requested the Navy Department to reconsider his case. On four separate occasions it adhered to its prior ruling that the commendation was not one for performance of duty in actual combat.

In 1949, Admiral Christy again requested the Navy Department to reconsider his case. The Navy Board for Decorations and Medals at that time had before it the following statement from the British Admiralty:

“* * * according to German sources U-156 sailed on her last cruise on the 18th June 1918, and was sunk by a mine in the American Northern Barrage on the 25 September. This confirms intelligence from •our own sources that the submarine was probably sunk in the Northern Barrage Area A on that day.

“Previous to her loss she had claimed to have destroyed 41,600 tons during her cruise including the U. S. S. San Diego.

“According to ‘The German 'Submarine War 1914-1918’ by Gibson and Prendergast the San Diego ■struck a mine laid by U-156 but we •consider this incorrect. U-156 was mot a mine layer and in any event no German mine was laid west of ‘9° W. in 1918. We think it is beyond doubt that the ship was torpedoed and sunk by the U-156.

“There is no evidence that there were any survivors from the submarine.”

Based on this data, the Board recommended that Admiral Christy’s commendation be readjudicated to one for performance of duty in actual combat. 'This recommendation was subsequently,