ALFRED EDWARD FAWCETT, PETITIONER AND APPELLEE, VS. EULOGIO BALAO, (SUBSTITUTED BY JESUS VARGAS, AS SECRETARY OF NATIONAL DEFENSE), RESPONDENT AND APPELLANT.

Appeal from a judgment of the Court of First Instance of Manila,
Hon. Antonio G. Lucero, presiding, declaring petitioner, Alfred Edward
Fawcett, qualified for retirement under Section 22 (g) of Commonwealth
Act No. 1 and therefore entitled to the benefits granted under Republic
Act No. 340, as amended, effective as of the date of his retirement on
June 18, 1947, deducting therefrom whatever gratuity he had received
under Act No. 4151; directing respondent to recall and revoke the order
retiring petitioner under Act No. 4151 and, in lieu thereof, to retire
him under Section 22 (g) of Commonwealth Act No. 1 and to extend to him
the benefits of Section 14 (d) of Republic Act No. 340, as amended.

Plaintiff Alfred Edward Fawcett is an American citizen. He attended
the Philippine Constabulary Academy on February 1, 1918 and graduated
on May 12, 1919 and was commissioned as 3rd Lieutenant regular on May
13, 1919. He continued in said, service receiving promotions to 2nd
Lieutenant on February 17, 1920, and to 1st Lieutenant on January 15,
1924. On July 14, 1937 he was commissioned Captain in the regular force
of the Philippine Army, being raised as Major on June 17, 1947.

On February 24, 1925, plaintiff filed his application for
retirement under Act No. 2589 as amended by Act No. 3189 to take effect
at the discretion of the Chief of Constabulary. In his endorsement
dated February 24, 1925, the Chief of Constabulary forwarded Fawcett’s
application to the Director of Civil Service recommending approval, the
effective date of which, however, to be indefinitely deferred. His
application was then filed in the office of the Governor General
subject to future recommendations.

On April 28, 1935 plaintiff again filed an application for
retirement this time under Act No. 4151. But this application was
placed on file in the office of the Governor General subject to future
determination of effective date. Notwithstanding this application,
plaintiff continued rendering service.

During the war, plaintiff was interned as a prisoner of war, he
being an American citizen and was not released until the liberation. On
February 27, 1945 he suffered an accident, having been hit by a running
U. S. Army jeep and his lower third fibula, left, was fractured. In
view of this and at his request, the Philippine Army Retiring Board No.
1 recommended that plaintiff be retired from future military service
due to physical disability. This order is dated January 8, 1946. He was
actually released from the service on June 18, 1947.

On January 12, 1946 he applied for retirement for physical
disability in addition to gratuity under Act No. 4151. This petition
appears to have been granted. But on July 12, 1955 he asked that his
retirement under Act No. 4151 be revoked and that he be retired under
Section 22 (g) of Commonwealth Act No. 1. The Executive
Secretary ruled that his retirement under Act No. 4151 may not be
recalled, so his request was denied. Plaintiff admitted that he had
received retirement benefits under the provisions of Act No. 4151, so
when his petition for retirement under the provisions of Section 22 (g)
of Commonwealth Act No. 1, as amended, reached the Secretary of
National Defense, the latter interposed an objection to his application
for retirement under this latter act on the ground that an officer
already retired cannot be “re-retired”.

It will be noted that under Act No. 4151, a retiree only receives
upon retirement for each year of service and the proportionate amount
of any fraction of a year thereof a gratuity of 7% of the highest
annual salary if the period of service is one year to five years; 8% if
the period of service is five to ten years, etc. This said act was a
special law promulgated for the retirement of citizens of the United
States employed in the Philippine Government in view of the policy of
Filipinization then being contemplated.

Under Republic Act 340, however, any officer of the Armed Forces
separated from the service for disability not due to his misconduct
shall receive either (a) a gratuity, payable in one lump sum,
equivalent to one month’s base and longevity pay multiplied by the
years of active service rendered, but which shall not, in any case, be
less than three months’ base and longevity pay, or (b) an
annual retirement pay equivalent to 2-1/2% of the annual base and
longevity pay received by him on date of retirement for each year’s
active service rendered but not exceeding 75% of the total base and
longevity pay received by him on the date of retirement, such
retirement pay to be paid in equal monthly installments. The court
below ruled that plaintiff was retired under Act 4161 by a ruling of
the Army Board and was not of plaintiff’s own choice. The lower court
also held that the objection that plaintiff is estopped from asking for
the recall of his retirement under Act 4151 can not be sustained
because plaintiff had repeatedly protested to the Adjutant General
against his retirement under Act 4151.

In the first error assigned against the decision of the court below
claim is made that the court should have declared that the action of
plaintiff has prescribed or is now barred by laches, as plaintiff was
actually retired in June, 1947, and he brought his suit only in June,
1957, after more than 10 years. In answer to this supposed error,
appellee argues that the question of prescription may not be raised in
this court as the same has not been raised in the court below and
passed upon by said court in its decision. This contention is correct.
Prescription as a special defense may not be availed of except
expressly. Not having been expressly raised in the court below the same
may not be raised before Us for the first time on appeal. Besides,
plaintiff had appealed to the President against the action of the
Secretary of National Defense retiring him under Act 4151 and his
appeal was denied by the President only on August 16, 1955. Hence the
ten years period has not lapsed when he filed this action.

The second error assigned to the trial court is its failure to find
that the appellee is estopped from applying for the benefits of a law,
other than Act 4151, as he had expressly applied for gratuity under
said Act. We do not find that this error has been committed by the
trial court. As found by the court below, in his request of January 12,
1946, Exh. E, the plaintiff had expressly prayed that aside from his
disability retirement, he be granted in addition thereto, gratuity
under Act 4151 of the Philippine Legislature. As a matter of fact he
appealed the decision to retire him under Act 4151. There is,
therefore, no ground to support the contention that plaintiff-appellee
is estopped from asking for disability retirement, he having protested
his retirement under Act 4151.

The third and fourth errors imputed to the judge below axe that
there is no statutory provision allowing plaintiff-appellee to be
re-retired under the provisions of Republic Act No. 340, and that he
cannot be declared qualified for retirement under Section 22 (g) of Commonwealth Act No. 1.

The third error above mentioned finds no justification in the
evidence submitted by the appellant or by the appellate. While
plaintiff had filed his application for retirement as early as February
24, 1925 and reiterated his application for retirement under Act 4151
on April 28, 1935, no positive action on his application for retirement
under said Act 4151 was taken, before he applied for disability
retirement in his letter of January 12, 1946. We should not overlook
the fact that in plaintiff’s letter of January 12, 1946, Exh. D, he
asked for retirement for physical disability suffered in line of duty,
and, in addition thereto for gratuity under Act 4151. The letter clearly shows that he applied to be retired for physical disability and in addition
to such retirement, to be retired also under the provisions of Act
4151. But the army ignored his retirement for physical disability and
instead retired him only under Act 4151. And this error of the Army is
now interposed as defense to the action on the ground that plaintiff
once retired cannot be re-retired. The error of the Army is not of
plaintiff’s own making. Why should the Army’s error be used as an
impediment to what plaintiff is entitled.

The correct procedure for the Army would have been to determine if
plaintiff-appellee is entitled to retire because of his physical
disability, as requested by him, instead of retiring him under Act
4151. As found by the court below, which appears to Us as correct, the
law applicable in 1946 to officers and enlisted men of the Philippine
Army, including appellee, were Commonwealth Act No. 190, known as the
Philippine Army Retirement Act, and Commonwealth Act No. 1. Appellee
could have been considered retired under the provisions of both laws.
However, it does not appear that the Army ever retired him under said
Act No. 190. The reason is that said law, as appellant himself admits,
does not cover retirement for disability incurred in line of duty,
which circumstance (disability) attended appellee’s separation. Neither
could he be retired under Commonwealth Act No. 150 because this Act
refers to commissioned officers of the Army of the United States (See
Sec. 1) and appellee was not an officer of the Army of the United
States. The only other law under which appellee could be retired is
Commonwealth Act No. 1, Sec. 22 (g) as amended by Commonwealth Act 385, which expressly provides:

“SEC. 22 (g). Until superseded by laws
formulated by the National Assembly for specific application to the
Army of the Philippines, all regulations, courts-martial procedure and
provisions of law now pertaining to the punishment, discharge, dismissal, resignation, administration and retirement of officers and enlisted men of the Philippine Constabulary shall, as modified by provisions of this and other laws, apply to all officers and enlisted men on active duty in the army * * *.”

Note that all provisions of law then in force applicable to
the retirement of officers and enlisted men of the Constabulary are
made applicable to all officers and enlisted men on active duty in the
Army. Appellee was transferred from the Constabulary to the regular
force of the Army on July 14, 1937. It was under the above-quoted
provision, therefore, that appellee was retirable. The law that fixed
the benefits due him for his retirement, it is true, is Act No. 4151 of
the Philippine Legislature. But this does not mean that he is retiring
under and by virtue of said Act exclusively. Act No. 4151 fixed his
retirement rights, but the application of said Act to him is because he
was an officer of the Army on active duty. This is in accordance with
the express provision of Section 22 (g) of Commonwealth Act No. 1 above-quoted.

It is, therefore, under the above-quoted provision of law that
appellee was actually retirable. It is argued by appellant that
Commonwealth Act No. 1 is not a retirement Act. It is not so but
retirement laws were by its express mandate extended to officers of the
Philippine Army to which appellee pertained. It is a retirement law in
the sense that it makes the retirement law applicable to Philippine
Army officers; it incorporates in itself the retirement laws by
reference. Section 14 (d) of Republic Act No. 340 as amended by Republic Act No. 803, expressly recognizes that it (Commonwealth Act No. 1, Sec. 22 (g) is a retirement law when it extends its benefits to “disabled officers” separated from the service under section 22 (g) thereof.

As herein before stated, by express provision of Section 14 (d)
of Republic Act No. 803, amending Republic Act No. 340, which was
approved June 21, 1952, the benefits of Sections 2 and 3 of Republic
Act No. 340 were extended to the appellee because he was separated for
disability incurred in line of duty after December 8, 1941 and is
entitled to retirement in accordance with Section 22 (g) of Commonwealth Act No. 1. Said Section 14 (d) of Republic Act No. 803, amending Republic Act No. 340, provides:

“(d) Disabled officers and enlisted men who
were separated from the service under subsection (g) of section
twenty-two of Commonwealth Act Numbered One after December eight,
nineteen hundred and forty-one, for physical disability incurred in
line of duty: Provided, That their ranks shall be adjusted in the same
manner as the ranks of all officers in the Armed Forces were adjusted
in nineteen hundred and forty-seven: Provided, further, That if they
select the first option mentioned in section two hereof, there shall he
deducted from the gratuity to he paid them in one lump sum under said
section whatever gratuity may have been given them under subsection (g)
of section twenty-two of Commonwealth Act Numbered One: Provided,
finally, That if they select the second option mentioned in section two
hereof, they shall be paid their monthly pensions under said section
from the date on which they were separated, but there shall be deducted
from the amount of the pensions due them from such date whatever
gratuity they may have received under subsection (g) of section twenty-two of Commonwealth Act Numbered One.”

The benefits of the above provision of law should have also been
extended to appellee as he had applied for it and he was entitled
thereto.

We find no error in the findings and conclusions arrived at by the
court below and we affirm the judgment appealed from. Without costs. So
ordered.

Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Concepcion, Reyes, J. B. L., Barrera, and Gutierrez David, JJ., concur.