373 F2d 794 Boyce v. United States

373 F.2d 794

Lew R. BOYCE, Appellant,
v.
UNITED STATES of America, Appellee.

No. 23312.

United States Court of Appeals Fifth Circuit.

March 2, 1967.

Gibson Tucker, Jr., Tucker & Schonekas, New Orleans, La., for appellant.

Kathleen Ruddell, Asst. U.S. Atty., Louis C. LaCour, U.S. Atty., New Orleans, La., for appellee.

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and BREWSTER, District Judge.

PER CURIAM:

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1

Appellant contends that the trial court erred in entering judgment against him on the government's motion for summary judgment. The pleadings and motion for judgment disclosed no issues of fact material to a determination of the case.

2

It is undisputed that the Army paid appellant one month's salary on separation more than he was entitled to according to the leave records, which appellant does not attack. He says that he took thirty days leave at a post in Alaska based on misinformation as to his leave status given him by the personnel office of his post; that the leave was worthless to him because of the isolation of the post; and that, in effect, he carried on substantially all of his regular duties while on a leave status.

3

We agree with the trial court that this defense does not raise a material issue of fact requiring submission of the case to a jury. There is only a legal question to resolve.

4

It being clear that there is no challenge to the correctness of the leave records, and that whatever duty appellant performed while on leave was voluntary the trial court correctly entered a summary judgment for the United States.

5

The judgment is affirmed.