¶2This case comes before the court on plaintiff’s motion, filed September 23, 1960, for new trial, together with defendant’s opposition thereto. Upon consideration thereof,
¶3It is ordered this first day of December, 1960, that plaintiff’s motion for new trial be and the same is denied, 281 F.2d 448.
¶4Judge MADDEN, joined by Judge LARAMORE, dissents for the reasons stated in his attached memorandum.
¶6Judge LARAMORE and I would grant the plaintiff’s motion for a new trial. The Government’s insistence that the plaintiff was not eligible for promotion on the retired list in accordance with the provision of section 312(i) of the Officer Personnel Act of 1947, 61 Stat. 795, 860, is demonstrably wrong. Section 855c-l of Title 34 U.S.C.1 plainly provides that a reserve officer on extended active duty is entitled to the same retirement pay as an officer of the Regular Navy, if he is disabled in line of duty.
¶7The fact that the plaintiff did not, in his former suit, claim the benefit of section 312(i) may well foreclose him, on the ground of res judicata, from now recovering that benefit for the period covered by his prior suit. There is no reason, we think, why it should prevent him from recovering it for the period following the former judgment. What he asks for is what the statutes say he is entitled to.