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DENBY V. BERRY, 263 U. S. 29 (1923)

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U.S. Supreme Court

Denby v. Berry, 263 U.S. 29 (1923)

Denby v. Berry

No. 47

Argued October 5, 1923

Decided November 12, 1923

263 U.S. 29


1. The act establishing the Naval Reserve Force (August 29, 1916) impliedly empowered the President, at his discretion, or the Secretary of the Navy, acting for him, to change the status of an officer of that force from active service in the Navy to the status of inactive duty. P. 263 U. S. 32.

2. A mere change of status from active service to inactive duty in the Naval Reserve Force is not a retirement within the meaning of Rev.Stats., § 1455, which refers to officers in the Regular Navy, nor under the Acts of July 1, 1918, and June 4, 1920, which made that section applicable to officers on active service in the Reserve Force when disabled in the line of duty. P. 263 U. S. 34.

3. An order of the Secretary of the Navy retiring an officer to inactive duty in the Naval Reserve Force being discretionary, the Secretary cannot be required by mandamus to revoke it, even though based on his erroneous belief that such officer was not entitled, under the Acts of July 1, 1918, and June 4, 1920, to be retired on pay when disabled in line of duty. P. 263 U. S. 36.

4. A naval regulation providing that, when any officer on the active list becomes physically incapacitated to perform his duties, he will chanroblesvirtualawlibrary

Page 263 U. S. 30

be ordered before a Retiring Board (Nav.Reg.1913, 331[5]) did not bind the Secretary as a rule of law under R.S. § 1547, after it was transferred to the instructions to naval Retiring Boards by order of the President. (Nav. Courts and Board, 1917, § 679.) P. 263 U. S. 37.

5. The right of a naval officer, disabled in the line of duty, to be retired on pay is dependent by statute on the judgment of the President, not that of the courts, and the remedy of the officer when his application for a retirement board is disapproved by the Secretary, is by appeal directly to the President. (Nav. Ins.1913, § 5323.) P. 263 U. S. 38.

51 App.D.C. 335, 279 F.3d 7, reversed.

Error to a judgment of the Court of Appeals of the District of Columbia, which affirmed, in part, a mandamus issued by the Supreme Court of the District requiring the Secretary of the Navy to revoke an order directing the release of the relator, Berry, from active service in the Navy, and to make an order sending him before a Retiring Board with a view to his retirement by the President.

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