dissenting in part:
I think plaintiff is entitled to retirement pay after October 18, 1947, since his condition was as of that time first found to be such as to incapacitate him for military service. All the findings before that time were to the effect that the injury, while service connected, had not reached the incapacitating stage.
The facts are clearly distinguishable from the Hamrielc and Ramsey cases.
It will be noted that in both the Hamrielc and the Ramsey cases plaintiff suffered permanent total disability. This was found to have existed at the time of release from active duty, but it was first found that such incapacity was not service connected. Later the administrative authorities reversed their position on the second phase and found that the disability was service connected. Since there was no question as to the permanent disability at the time of retirement the reversed finding as to service connection automatically reverted to the time of the ending of active service.
*806Anpther vital distinction is that in the' Hamriele and Ramsey cases a Retiring Board’s adverse action was being reviewed by the Disability Review Board, which according to the statute “shall have the same powers as exercised by, or vested in, the board whose findings and decision are being reviewed.” In both cases the finding by each board was .that the claimant was permanently incapacitated at the time of release from active duty.
In this case, while the disease has been found to have been incurred during the wartime period of service there is no finding in the record that at that time it was disabling or permanent. In fact, the agreed findings tend to indicate otherwise. The first action by a retirement board was on October 13, 1947.1 This board at that time found that plaintiff was not disabled and was not disqualified for active service. However, on July 29,1948, the Naval Retiring Board upon reconsideration and careful review of the additional evidence and the examination and hospitalization records of the Naval Hospital at Bethesda, Maryland, found that plaintiff was incapacitated for active service by reason of nephritis; that his incapacity was permanent and the result of an incident of the service, and that he should be retired on the basis of the grade of commander. It made this finding in place of the finding of October 13,1947.
On December 31,1948, the Secretary of the Navy approved the proceedings and findings and plaintiff was transferred to the retired list with disability retirement pay in the rank of commander, effective January 1,1949.
It will be noted that while the Board found that plaintiff’s disability was an incident of the service, there is no finding that it was disabling at the time of his original release and it was not found until July 1948 that his condition was disabling and permanent. This finding at that time, however, was based on conditions that were shown to exist on October 13, 1947, and was on a review of conditions that existed at *807that time. The plaintiff should have been retired as of the date when this condition was shown to exist, to wit, October 13,1947.
There is a sentence in the stipulation which taken out of context might seem to indicate that plaintiff was incapacitated for active service at the time of his release to inactive service, but this sentence is completely ridden down by the stipulation as a whole and by the findings of the medical boards.
The plaintiff is entitled to retirement pay from October 13, 1947, to December 31, 1948, at the rate of pay of a commander in the Navy, less the sum of $81.65 which he received from the Veterans Administration as disability compensation, and less any sum that he might have been paid for training periods between October 13, 1947, and December 31, 1948. Nickell v. United States, 123 C. Cls. 859.
In passing on the question of whether plaintiff was entitled to retirement pay for the period back to the date of release from active duty in 1945, the Comptroller General makes the following comment:
It is a rule of long standing that, generally, the effective date of the retirement of a regular officer of the armed services is governed by the date when the President approves his retirement and by the uniform retirement date act of April 23,1930, 46 Stat. 253, which provides, generally, that retirements shall take effect on the first day of the month following the month in which said retirement would otherwise be effective, and may not be a date prior to the date of such approval. Apparently such rule was followed by the Secretary of the Navy in fixing the effective date of your retirement and it is understood that such rule has been followed by the Department of the Navy in connection with similar retirements of naval reserve officers for physical disability. There is no statutory provision making the said 1930 law inapplicable to reserve officers of the Navy retired for disability, nor is there any statutory authority authorizing the fixing of the effective date of the retirement of such a naval reserve officer who is released from active duty as physically qualified, as the date of such release from active duty. The established rule as to fixing the effective date of retirement would appear to be particularly applicable in a case such as yours where the retirement did not occur until more than three *808years after release from active duty and after the performance of drills and training duty as a member of the Organized Naval Reserve during portions of such three year period.
And again at a later date when the claim was again before the Comptroller General he used the following language:
The action taken in 1948 which resulted in the placement of your name on the retired list included an original determination that your disability was incurred in line of duty at some previous time while serving on active duty but there was no determination that such disability actually incapacitated you for active service at the time of your release to inactive duty.
I think the Comptroller General is right. When each medical board that examined plaintiff both at the time of his release from active duty and at each time until October 13, 1947, found that while his condition was service connected it had not progressed to the degree of incapacitating him for military service; when he remained subject to call to active duty; when he was called and actually served a part of June 1947, it is unthinkable that a court would substitute its judgment for that of competent medical authority, disregard the action of the boards commissioned to pass on matters of this kind, and date recovery back to 1945 in the teeth of repeated findings of medical men who examined plaintiff personally and saw him face to face. The facts do not call for it, the practice of the Navy does not call for it, and I do not think the law calls for it.
On the other hand, I think it would be unjust not to allow retirement pay from October 13, 1947, as of which date the Retiring Board found that plaintiff’s condition had reached the disabling stage.
Laeamoke, Judge,dissenting:
I respectfully dissent in this case for the reason the statute which provided the vehicle for the retirement of officers, 34 U. S. C. 417, as amended, shows that the member is to be retired “when a retiring board finds” the disability and when the decision is approved by the Secretary. This statute, I believe, clearly suggests that thereupon and thereafter the *809officer becomes eligible for retired pay. Therefore, an officer would not be entitled to be retired until (1) the retiring board found his incapacity, (2) that such was an incident of service, and (3) the decision was approved by the Secretary.
In this case the findings of the retiring board were approved by the Secretary of the Navy on December 31, 1948. Plaintiff has been receiving retirement pay since that date, which I believe is all he is entitled to.
I would dismiss the petition.
On August 28, 1947, the Bureau of Medicine and Surgery upon review of the proceedings had made the following statement:
* * * The condition constitutes no disability at this time. This condition may or may not progress to the point of causing incapacity at some future date. If so that will be the time to afford him a hearing before a Naval Retiring Board.