Many cases rely on the general proposition that the veteran is to be given the difference between what he should have earned and what he actually earned. See, e.g., Bankston v. Stratton-Baldwin Co., 441 F. Supp. 247, 251-52 (S.D.Ala. 1977); Chernoff v. Pandick Press, Inc., 440 F. Supp. 822, 826 (S.D.N.Y. 1977); Loeb v. Kivo, 169 F.2d 346, 351 (2d Cir.), cert. denied, 335 U.S. 891, 69 S.Ct. 246, 93 L.Ed. 429 (1948); Bentubo v. Boston M.R.R., 66 F. Supp. 910, 911, (D.Mass. 1946), aff'd, 160 F.2d 326, 327-28 (1st Cir. 1947); Reynolds v. S S Corrugated Paper Machinery Co., 230 F. Supp. 855, 858, (E.D.N.Y. 1964). None of the cited cases, however, involved the situation we have here where the actual earnings exceeded, for a time, the earnings the veteran was entitled to receive under the Act.
Congress did not impose this restriction but left the registrants free to offer themselves for active conflict if they should so desire. The result in this case was that the plaintiff entered the active service not in defiance of but in accord with the plan of national defense with the permission of those authorized to give effect to the legislative will. His action in surrendering his deferred status and qualifying for service in the armed forces was expressly approved by the order of induction issued by governmental authority. In reaching this conclusion, we find ourselves in harmony with the decisions in several cases: Hayes v. Boston M.R.R., D.C. Mass. 66 F. Supp. 371; 1 Cir., 160 F.2d 325; Bentubo v. Boston M.R.R., D.C. Mass, 66 F. Supp. 910, 1 Cir., 160 F.2d 326; Blackford v. Nashville Gas Heating Co., D.C.M.D. Tenn., 68 F. Supp. 997; McCarthy v. Merchants Miners Transp. Co., D.C. Mass, 66 F. Supp. 374, 1 Cir., 160 F.2d 322; Congregation of Brothers v. Grone, 6 Cir., 164 F.2d 689. See also Thompson v. Chesapeake Ohio Ry. Co., D.C.M.D.W. Va., January 27, 1948, 76 F. Supp. 304, where the distinguishing features of the cases cited above are pointed out.
Action by William Bentubo against Boston Maine Railroad for restoration to employment on completion of military service and for damages. From a judgment for plaintiff, 66 F. Supp. 910, each party appeals. Judgment affirmed.
"We think the court below was correct in interpreting ยง 8(b) of the Act as granting reemployment rights to any person who resigns from his job as a means of terminating his deferment and thereby making himself available for voluntary induction, provided of course that he does so for the purpose of serving, is accepted, and then actually serves, in the armed forces." The same question also arose in Bentubo v. Boston, D.C., M.R.R., 66 F. Supp. 910, and was decided the same way by the same District Judge whose opinion was also affirmed on appeal by the First Circuit Court of Appeals, Boston M.R.R. v. Bentubo, 160 F.2d 326. There the employee had been placed in IA classification by the local draft board, from which decision his employer appealed. While his case was pending on appeal, he asked the general yard foreman for a release.