dissenting:
I would grant the plaintiff’s motion for a rehearing, and allow him to prove, if he can, the allegations of his petition.
The plaintiff in his petition asserts that the action of the Secretary of the Army in approving the findings of the Disability Eeview Board adverse to the plaintiff was arbitrary and capricious because there was no substantial evidence that the plaintiff had the disabling peptic ulcer at the time he entered the military service.
As the court says, the plaintiff’s reason for laying stress upon the decision of the Disability Eeview Board, and its affirmance by the Secretary of the Army, is that this date is within six years of the filing of the petition. The plaintiff’s appeal to the Eeview Board may have been necessary to enable him to show that he had exhausted his administrative remedies, but, so far as appears, the Eeview Board’s decision was a mere affirmation in 1949 of a wrong done the plaintiff in 1946.
' . If the plaintiff’s allegations are true, and they must be taken- as true for the purposes of this motion, the Army violated the law when it released him without retired pay in 1946. There were no notations on plaintiff’s Army physical examination form, at the time of his entry on active duty in 1941, relative to the presence of, or any condition connected with a duodenal peptic ulcer. About April 13,1943, he was found to have such an ulcer.
Section IV, paragraph 30c (2) of Army Eegulation'605-250, 28 March 1944, provides:
Before any Army retiring board should find that the disability which renders an officer incapable of performing the duties of his office was not caused by an incident of the service, such fact should be established beyond a reasonable doubt.
Paragraph 63b of Army Eegulation 40-1025,12 December 1944 says:.
A disease or injury that a militarized person contracts or sustains, while in the active military service of the United States, will be presumed to have been ' incurred in line of duty, unless there is substantial evi- . dence to show that such disease or injury—
*640(4) Existed prior to the individual’s current active service and was not aggravated by the service (g below).
Paragraph 63g (2), (3), and (4) of Army Regulation 40-1025, 12 December 1944 provides:
(2) Basic provision. — Irrespective of length of service an Army patient will be presumed to have been in sound condition upon entering active service, unless the disease or injury, or the conditions which brought about the disease, injury or death were noted on the patient’s physical examination upon entrance into the service, or unless clear and unmistakable evidence ((3) below) demonstrates that the injury or disease, or the conditions which caused the disease, injury or death though not noted existed prior to the patient’s active service. * * *
(3) Clear and unmistakable evidence. — Medical judg.ment alone, as distinguished from well-established medical principles, will not be considered sufficient to rebut the presumption of the patient’s sound condition at the time of his entrance into active military service. * * *
(4) Service-aggravated. — Any increase in disability during active service will be presumed to have been service-aggravated, unless it can be proved otherwise on the basis of well-established medical principles. Medical or surgical treatment furnished during service for preexisting conditions does not of itself establish increase in disability; however, if such treatment was necessitated by increase in severity of pre-existing conditions, then such disability will be considered as service-aggravated, unless the condition was improved by such treatment. * * * advancement of such conditions as peptic ulcer, rheumatoid arthritis, diabetes mellitus, active pulmonary tuberculosis, and bronchial asthma (not established as seasonal) can be expected to have been caused by exertion, exposure, or other adverse influence of the military service. (Italics added.)
As the court says, the Retiring Board found that the plaintiff had a service-incurred and service-aggravated duodenal peptic ulcer, and recommended retirement for disability reasons. The Surgeon General interposed and directed the reconvening of the Board, stating to them what they “might well” find. The Surgeon General’s letter was read to the members of the Board, and by the medical officers who were to testify before the Board. The Board thereupon reversed itself and found that the plaintiff’s ulcer existed prior to service and was not aggravated by service.
*641On the basis of the plaintiff’s allegations, which we must take as true, the Army violated all of the Begulations which we have quoted above, and thereby illegally refused to give the plaintiff an annuity for life to which, according to the retirement statutes and the Army Begulations, he was entitled. The court holds that the plaintiff may not have relief for this violation of his legal rights, because his suit was not brought in time.
The plaintiff, having been disabled in military service, became entitled to an annuity, payable in periodic installments, for the rest of his life. By his delay in bringing suit, he lost as many of those installments as became due and payable more than six years before he filed his suit. The court holds that he has also lost all of the other installments for the rest of his life, although they were not due and payable more than six years before he filed his suit. This conclusion is obviously unjust and is, I think, erroneous.
This court and other courts have had innumerable occasions to enforce legal rights which accrued in periodic installments. I refer only to a sampling of those cases which have arisen in this court.
In Ellsworth v. United States, 14 C. Cls. 382 (1878) plaintiff sued to recover yearly installments of compensation due him as a collector of customs for a period of eight years. This court held that the claims for compensation for the two years which accrued more than six years prior to the filing of the petition were barred by the statute of limitations:
* * * the statute begins to run from the end of each fiscal year, and cuts off all compensation not falling due within six years before the institution of the suit. His claim must therefore be reduced * * * to the sum of * * * [p. 395].
In its decision affirming the Court of Claims (United States v. Ellsworth, 101 U. S. 170) the Supreme Court stated at page 171:
They [the Government] allege that the petition was not filed within six years after the claim first accrued.
Charges barred by the Statute of Limitations were rejected, and the court below rendered judgment in favor of the petitioner for the balance * * *.
*642To the same effect: Watson v. United States, 21 C. Cls. 511, affirmed expressly on this point, United States v. Watson, 130 U. S. 80; Moore v. United States, 76 C. Cls. 753 (retirement in 1919, suit filed in 1932); Hornblass v. United States, 93 C. Cls. 148; Hermann v. United States, 113 C. Cls. 54; Pacific Maritime Association v. United States, 123 C. Cls. 667; McCormick v. United States, 124 C. Cls. 111; Hart v. United States, 125 C. Cls. 294; Winfree v. United States, 125 C. Cls. 853.
In all these, and many other cases, this court has held that those installments of the claim which became due and payable more than six years before suit was filed were barred, but that other installments not so due were collectible. In recent years we have, in a few cases, departed from this orthodox and correct rule. The results, in some cases shockingly unjust, should have put us on our guard, but did not. In Hunter Louis Girault v. United States, No. 50474, decided November 8,1955, we found that the action of the Secretary of War was “clearly contrary to the law”, yet we allowed his illegal action to deprive a soldier of his legal rights for the rest of his life. Such an unworthy end is not a reason for inventing a novel and unorthodox legal doctrine.
I am unable to understand the court’s reasoning in the instant case. In part it seems to say that an officer is entitled to retired pay only if the Secretary of War awards it to him. But in all of our cases involving retired pay, the Secretary has not awarded the retired pay sought. If he had done so, the case would not be here. The cases come here because, it is asserted, the Secretary has illegally denied retired pay which the statutes and the regulations have awarded. I see not the slightest difference between the legal right of a soldier to his retired pay and the legal right of a civilian employee of the Government to his statutory salary. In either case, if he does not get it, it is because some superior in the Government misapplied the law, or acted without evidence, or arbitrarily. If a landlord, or the owner of an annuity policy, or a civilian employee of the Government, delays in bringing suit, he loses those installments of his claim which are too old, but he does not lose all. I can *643imagine no reason why soldiers should be selected as the sacrificial offerings to nourish a novel legal doctrine.