Before MARIS, McLAUGHLIN, and KALODNER, Circuit Judges.
The primary issue presented by this appeal is whether an Army discharge under the provisions of Section 11, War Department Circular No. 39, dated February 4, 1943, providing for the discharge of enlisted men 38 years of age and over to enter essential industry, constituted an unconditional discharge from military service.*fn1
The appeal is from an order of the District Court entering judgment for the appellee railroad in an action brought by the appellant, a veteran, for enforcement of certain rights, under Section 8(e) of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 308(e).
The following set of facts presents the question involved. The appellant entered the service of the appellee railroad sometime in 1937 and continued in various jobs until April 30, 1940, at which time he became a bridge deckman.*fn2 On that date he obtained his seniority status in his new position. He continued to work until November, 1942, when he was inducted in the Army. He was then 40 years old. Shortly after his induction the appellant wrote to one Kiernan, general foreman of the appellee railroad asking him to write to the appellant's superior officer stating that the railroad was engaged in essential industry and would re-employ him if he were released from service. The appellant did so in order to avail himself of the benefits of the War Department Circular No. 39. No answer was received by the appellant from the railroad. The appellant thereupon communicated with the Universal Carloading Company, an essential industry, and received in reply an offer of employment. As a result he was granted an honorable discharge from the Army on April 9, 1943. The discharge recited that it was given pursuant to the provisions of War Department Circular No. 39.
The appellant went to work for the Universal Carloading Company several days after his honorable discharge and continued in that employment until September 13, 1945. He made his first application for re-employment to the appellee in the summer of 1944 - more than a year after his discharge from the Army. On September 21, 1945, the appellant applied to the railroad for re-employment and asked to be reinstated in the position which he occupied at the time of his induction into the Army. He was advised after discussion with Kiernan and the union that he could only return as a new employee. The appellant thereupon began to work for the railroad on September 24, 1945, and continued his employment until November 23, 1945, when he was furloughed because of the return of two of the railroad's employees from their Army service and their restoration to their prior jobs. He subsequently worked for some 27 days between November 23, 1945 and April 5, 1946.
It is conceded that if the appellant had obtained his old seniority date, April 30, 1940, he would have earned $508.26 more than he did during this period.
On April 9, 1946, according to appellant's testimony, he was given a "steady job" as bridge deckman without restoration of seniority and at the time of trial he was still employed by the railroad.
The appellant testified that during his employment by the Universal Carloading Company he repeatedly visited his Draft Board to obtain a "release" from his job so that he could return to work for the railroad. He said he made seven such visits. The appellant testified that it was not until September 13, 1945, that he "was released from the Draft Board to go to my old job."
A letter from the appellant's Deaft Board, dated November 27, 1945, Exhibit "A" in appellee's Answer to the appellant's petition in the Court below, discloses that the appellant "called at this office to request permission to change his job, but he was informed by the Chief Clerk of the Draft Board that he could not leave an essential wartime occupation; that this was a direct order of the Draft Board," and it was not until September, 1945, that he "was then told by the same Chief Clerk that he could now change his job." The Draft Board's letter states that the appellant's "problem was never presented to the Draft Board for a decision * * *." and that the "Chief Clerk took it upon himself to tell Mr. Parliman that * * * he would have to stay there," i.e., the Universal Carloading Company.
Recognizing that under Section 8(b) of the Selective Training and Service Act of 1940, as amended, the veteran's application for re-employment must be made "* * * within ninety days after he is relieved from * * * training and service * * *," the appellant contends that his application for re-employment was timely; that his Army discharge on April 9, 1943, was not absolute but conditional; that the condition in his case, i.e., his employment with the Universal Carloading Company, did not expire until September 13, 1945, when he was "released" by the Draft Board and that consequently the ninety day period began to run from that date.Appellant further contends that he was "legally retained in a reserve status by operation of War Department Circular No. 92."
In answer to these contentions appellee urges that the appellant received an absolute and unconditional discharge from his military service on April 9, 1943, as evidenced by his certificate of honorable discharge, and that the appellant has failed to comply with the provisions of Section 8(b) inasmuch as he did not make application for re-employment until the summer of 1944, more than a year after his Army discharge.
It is clear that the determination of the controversy between the parties hinges primarily upon the question as to whether or not the discharge on April 9, 1943, was an absolute or unconditional discharge. As to this we are of the opinion that the discharge on April 9, 1943, was an absolute discharge and that consequently, the appellant's application for re-employment not having been made until more than a year after his discharge, he has failed to bring himself within the purview ...