Holt v. United States

Madden, Judge,

delivered the opinion of the court:

The plaintiff, a retired Naval officer, seeks retirement pay from the date of his release from active duty on November 27,1945, to the time when he was actually placed on the retired list effective January 1, 1949. The facts have been agreed upon in a pretrial conference.

Plaintiff was graduated from the United States Naval Academy in June 1933. From that time he served in the United States Marine Corps until April 1942 when he was commissioned in the Naval Reserve and ordered to active duty. He remained on active duty until November 27, 1945.

After his return from duty in the Pacific area he, on September 6,1945, was found not physically qualified for release from active duty. Accordingly he was hospitalized and remained in the United States Naval Hospital at Bethesda, Maryland, until September 21, 1945. His condition at that time was diagnosed as albuminuria. He was, however, on that date found qualified for temporary promotion by the Navy, the albuminuria not being considered as disqualifying. The following day he appeared before a Board of Medical Examiners prior to separation from the service, which Board likewise found albuminuria but considered it not disqualifying for release and plaintiff was recommended as being fit to perform active duty at sea or in foreign service and likewise qualified for release from active duty. He was released effective November 27,1945.

Plaintiff continued his interest in the Naval Reserve and some time prior to July 1,1946, made a request to the Chief of Naval Personnel that he be transferred to the Organized Reserve. His request was granted, effective July 1,1946.

Plaintiff was examined prior to reporting for duty in February 1947, the medical officers determining that because *803of his kidney disability he was unfit to perform active duty at sea or in foreign service, and finding that he was not physically qualified for the usual 14-day active duty training. His orders to enter upon such training duty were cancelled:

Soon thereafter plaintiff requested the Secretary of the Navy to grant him a complete hearing on his right to retirement on account of disability resulting from the kidney condition. He claimed that he should have been ordered before a Board of Medical Survey, prior to his release from active duty. The Secretary of the Navy approved the requested hearing and after a review of plaintiff’s medical record he was ordered returned to the Naval Retiring Board “for further consideration in view of additional evidence to be presented.”

The Retiring Board recommended that plaintiff appear before a Naval Board of Medical Survey and for this purpose plaintiff was admitted to the Naval Hospital at Bethesda, Maryland, where a Board of Medical Survey on July 11, 1947, again diagnosed his condition as albuminuria and recommended that he be returned to duty. The Bureau of Medicine and Surgery reviewed the recommendation, approved it and stated that the officer was physically qualified for recall to active duty. The Board, however, further recommended that the record be submitted to the Retirement Advisory Board in view of plaintiff’s request. Plaintiff was again admitted to the Naval Hospital on May 17, 1948, for medical observation, and discharged June 4, 1948, with a diagnosis of “nephritis, chronic, mild.” The report further stated “Therefore, he is not physically qualified for recall to active duty in the Naval Service, including active training duty in the organized reserves. His disability is considered to be permanent, mild, and an incident of the Naval Service in that it developed while on active duty.”

Prior to 'June 4 plaintiff had been ordered to active duty training by the Bureau of Naval Personnel and on June 5, 1948, he reported to the dispensary at the Naval Gun Factory where the medical duty officer found him physically qualified for such duty, based upon a limited examination. Plaintiff’s health record was not available to the medical officer, but the medical officer was advised by the plaintiff that he had *804a medical history of chronic nephritis as established at Bethesda the day before.

Plaintiff served on active duty on the Naval Reserve Policy Board in Washington, D. C., from June 7 to June 18, 1948, when he was found physically qualified for release from active duty training.

On June 15,1948, the Retirement Advisory Board reported that, after a thorough review of the record, including the proceedings before the Retiring Board and the additional evidence presented by plaintiff during his personal appearance before that Board, it had unanimously recommended that the entire record, with the additional evidence, be returned to the Naval Retiring Board for further consideration in view of additional evidence which would be presented to the Retiring Board.

On July 29, 1948, the Naval Retiring Board took up the record of its proceedings dated October 13, 1947, reviewed those proceedings in the light of additional evidence, including the examination at the Naval Hospital at Bethesda, and upon the basis of such review revoked its previous finding of October 13, 1947, and found that the plaintiff was incapacitated for active service by reason of nephritis, chronic, mild; that his incapacity for Naval service is permanent and the result of an incident of the service, having-been incurred subsequent to April 25,1942, and prior to September 10,1945, and suffered in line of duty from disease or injury while employed on active duty pursuant to orders contemplating extended naval service in excess of 30 days. On December 31, 1948, the Secretary of the Navy approved the Board’s action and on January 1, 1949, plaintiff was transferred to the retired list with disability retirement pay in the rank of commander, since which time he has received such disability retirement pay.

Plaintiff claims that on the basis of the decisions in the cases of Hamrick v. United States, 120 C. Cls. 17, and Ramsey v. United States, 123 C. Cls. 504, and other similar cases, he is entitled to retirement pay from the date when he was first released on November 27,1945, since it had been finally found that the disease or injury was an incident of the service which *805had been incurred some time between 1942 and his release in 1945.

We think the plaintiff is right. Wliat the Retiring Board did was to make up its mind, after many delays, that the disability upon which they were retiring him had been incurred before his release from active duty in 1945, though the Board had not been convinced of this fact until 1948. The case is, then, in all relevant respects, similar to the Hamrielc and Ramsey cases, supra. The officer in each case was qualified for retirement upon his release from active duty. The fact that the formal decision that he had been so qualified came later is not a reason for his being deprived of retired pay in the meantime.

The plaintiff’s motion for summary judgment is granted, and a judgment will be entered for him. The amount of recovery will be determined pursuant to Rule 88 (c).

The defendant’s motion for summary judgment is denied.

It is so ordered.

WhitakeR, Judge; and Littleton, Judge, concur.