delivered the opinion of the court:
Plaintiff sues for his retirement pay as a major, U, S. Army, which was suspended while he was employed by the United States Government in a civilian position.
The issue in this case now before the court is whether the Secretary of War approved the Army Retiring Board’s finding that plaintiff was disabled as a result of an explosion of an instrumentality of war in line of duty, thereby exempting plaintiff’s retired pay from the provisions of section 212 of the Economy Act of 1932, 47 Stat. 406, as amended, 54 Stat. 761. We are of the opinion from the record that the Secretary of War approved this finding of its Army Retiring Board, and that plaintiff is entitled to his retirement pay,
Plaintiff served on active duty from April 24, 1942, to September 10,1946. In 1944, plaintiff was in several bomb explosions while he was stationed in London and in April 1945, plaintiff, while on active duty in Bamberg, Germany, was near an ammunition train which exploded. The explosion blew plaintiff through a doorway against a brick wall. Thereafter plaintiff suffered from progressive deafness. Plaintiff was hospitalized as a result of this injury from the explosion for about nine months, first in France, then at Tomey, Hammond and Letterman General Hospitals. On March 2, 1946, a Disposition Board at Letterman General Hospital found plaintiff permanently incapacitated for active duty by reason of deafness, but an Army .Retiring Board at Letterman General Hospital found that plaintiff was not permanently incapacitated for active service. The Surgeon General did not concur in this finding. As a result of this nonconcurrence by the Surgeon General
Plaintiff accepted civilian employment with the United States Government on October 20, 1946, and continued in his position with the Government until June 1, 1954. Plaintiff’s compensation from his Government position was in excess of $3,000 per annum.
Sometime after the receipt by plaintiff of the letter of November 12, 1946, from the Adjutant General, the Veterans’ Administration notified plaintiff that his disability did not result from an explosion of an instrumentality of war in line of duty, and since his compensation was in excess of $3,000 per annum from Government employment, the provisions of section 212 of the Economy Act applied to the plaintiff. The Veterans’ Administration cancelled plaintiff’s retired pay. Plaintiff refunded the retired pay which he had received. After plaintiff’s Government employment terminated, his retired pay was resumed.
Plaintiff contends that the Secretary of War, acting through the Adjutant General, approved the finding of the Army Retiring Board that he was disabled as a result of an explosion of an instrumentality of war in line of duty and that the Secretary of War was thereafter, in the absence of fraud or any other evidence, without authority to reverse this finding merely upon a revaluation of the existing evidence.
On the other hand, the Government contends that neither the Secretary of War nor the Army Retiring Board made a finding that plaintiff’s disability was due to an explosion of an instrumentality of war. The Government also contends that the Secretary of War approved the Surgeon General’s recommendation that plaintiff’s disability was not the result of an explosion of an instrumentality of war.
There is no question about the fact that the Army Retiring Board found that plaintiff’s disability resulted from an explosion of an instrumentality of war. The Retiring Board was authorized to make such a finding. Section 46 (c) of the “Tentative War Department Technical Manual TM 12-245” provides as follows:
Retiring Boards are authorized to make findings whether an individual’s incapacity for active service was incurred in combat with an enemy of the United States or resulted from an explosion of an instrumentality of war in line of duty. Such findings will be set forth in Item 35 of WD AGO Form 199.
On WD AGO Form 199, under Item 35, the Board answered “Yes” to the question “Was officer’s disability incurred in combat with an enemy of the U. S. or did it result from an instrumentality of war in line of duty ?” This finding of the Army Retiring Board was supported fully by the evidence in the record before the Board. The evidence before the Board, including the unanimous testimony of five Army doctors who treated plaintiff and studied his medical record, showed that plaintiff suffered his disability as the result of an explosion of an ammunition train in Bamberg, Germany. Certainly an ammunition train is an instrumentality of war. But the Surgeon General, for some reason not disclosed by the record, did not concur in this finding of the Board, although he did agree with the Board in all of its other findings.
The proceedings and decision of the board shall be transmitted to the Secretary of War, and shall be laid by him before the President for his approval or disapproval and orders in the case.
Executive Order 8461, 3 CFR, Cum. Supp. 680; 5 F. R. 2436, provides that—
* * * in the administration of the retirement-pay provisions of the said statute [10 TJ. S. C. 456], the determination of all questions of eligibility for the benefits thereof, including all questions of law and fact relating to such eligibility, shall be made by the Secretary of War, or by someone designated by him in the War Department, in the manner, and in accordance with the standards, provided by law, or regulations for Regular Army personnel.
The Secretary of War does not approve or disapprove the recommendation of the Surgeon General. The Surgeon General’s recommendation is used to guide the Secretary in his decision on the Board’s findings. The Secretary’s decision is on the findings of the Board and not on the Surgeon General’s recommendation.
On November 12, 1946, the Adjutant General notified plaintiff that the War Department had approved the findings of the Army Retiring Board. Later some one in the War Department took the position that the Secretary of War did not approve the finding that plaintiff’s disability was the result of an instrumentality of war because Item 35 of WD AGO Form 199 was not a part of the findings which were approved by the War Department.
The position of the defendant can not be sustained. The Adjutant General, acting for the Secretary of War, approved the finding of the Board that plaintiff’s disability resulted from an explosion. The Board was authorized to
In United States v. Burchard, 125 U. S. 176, the Supreme Court held that once the findings of a Retiring Board had been approved, they were no longer open to review because the President’s action on the findings was equivalent to a judgment of an appropriate tribunal which could not be disturbed. Cf. Potts v. United States, 125 U. S. 173. Also this court has held in McBlair v. United States, 19 C. Cls. 528; Spencer v. United States, 121 C. Cls. 558 and Carlin v. United States, 121 C. Cls. 643, that the findings of a Retiring Board, once approved by the Secretary of War, cannot be changed upon a mere revaluation of the existing evidence. When the Adjutant General took the position that plaintiff’s retired pay was subject to section 212 of the Economy Act, supra, without having before him any new evidence of substantial probative value or any evidence of fraud, he exceeded his authority.
We conclude that plaintiff is entitled to recover. Entry of judgment will be suspended until the filing of a stipulation by the parties showing the correct amount due in accordance with this opinion.
It is so ordered.