The opinion
JONES, Chief Judge
(dissenting).
I believe the court has misconstrued the Remaley case. The majority opinion quotes from the opinion in 122 F.Supp. 679 , 129 Ct.Cl. 159 . It will be noted that the matter should be referred to a trial commissioner for the purpose of determining whether, notwithstanding the language quoted, the plaintiff was on active duty service.
When it was finally disposed of by an opinion — 139 F.Supp. 956 , 134 Ct.Cl. 874—we held that the plaintiff should recover. We held that plaintiff was on extended active duty in fact, notwithstanding the recital “active duty for training” in the order.
In some respects the instant case is a stronger case for treating the period of service as “active duty service” than was the Remaley case, in which recovery was allowed. In the instant case the period of service was longer than in the Remaley case. Here there was nearly a year of service after the recall. If there were any doubt about the meaning of the “more than 30 days” provision the discussion of those Members of Congress in both bodies shows clearly that a case of this kind should be considered as coming within the meaning of active service, regardless of the wording of the orders. Congressman Edmiston in the House and Senator Barkley in the Senate, in explaining the bill, said that the bill was meant to exclude only Reserve officers who were called for two weeks’ training periods, but if they were called for more than thirty days they would be entitled to the benefits of the Act. Congressional Record 84th Cong., Part II, pp. 1439 and 2287.
In addition, I would allow recovery for the reasons stated in my dissent in Borai *784 ko v. United States, 146 Ct.Cl. 814, 821 (1959), MacFarlane v. United States, 140 F.Supp. 420 , 134 Ct.Cl. 755, 760 (1956), and Holt v. United States, 140 F.Supp. 268 , 134 Ct.Cl. 801, 805 (1956). Where, as in the instant case, there is no doubt that the disabled condition had its inception in the service and became disabling later, there should be retirement not later than the time it became disabling. But regardless of whether the court agrees with the latter basis of recovery, there is not the slightest doubt that if we are not to overrule the Remaley case the plaintiff is entitled to recovery.