dissenting:
I think that the plaintiff’s situation is substantially the same as that of the plaintiff in Updike v. United States, 132 C. Cls. 627. Both were released from active duty “not by reason of physical disability.” At the time of Updike’s release in 1948, no investigation relating to disability was conducted. At the time of Steen’s release in 1947, Steen was sent before a retiring board which found that he was not permanently incapacitated for active service, but was sufficiently incapacitated to warrant the recommendation that he be given “general service with a waiver,” the equivalent, apparently of being placed on limited service. I suppose that in peacetime there is no place in the service for a reserve officer who is capable only of limited duty. At any rate, both Steen and Updike were discharged without retired pay.
In 1950 Updike was given an opportunity to appear before a Physical Evaluation Board, which seems to have been the equivalent, after the enactment of the Career Compensation Act of 1949, of a Retiring Board. The Physical Evaluation Board found that Updike was disabled, that he had become so disabled while serving on extended active duty. The Secretary of the Army approved the findings of the Physical Evaluation Board and placed Updike on the temporary disability retirement list. Steen, likewise, was given an opportunity to appear before a Physical Evaluation Board which found that he was disabled, and had become so on extended active duty.
*146On April 25,1951, the Comptroller General issued a ruling to the effect that, once an officer had been separated from the service without a determination of disability, such a determination could not be later made, even though the determination found disability which existed at the time of discharge, though not diagnosed at that time.
The Physical Evaluation Board made its determination in Steen’s case on April 17, 1951, eight days before the Comptroller General’s ruling. At the time of that ruling, the Secretary had not yet approved the determination of the board, or granted Steen retirement. After the Comptroller General’s ruling, the Secretary did not consider the merits of Steen’s case. Instead, on July 16,1951, he declared the proceedings of the Physical Evaluation Board “null and void,” in view of the Comptroller General’s ruling.
Returning now to Updike, who had been granted retirement by the Secretary before the Comptroller General’s ruling, the Secretary, in view of that ruling, on August 1, 1951, canceled his prior order granting Updike retirement. In this case, again, he gave no consideration to the fact of disability. He acted only on the law, as the Comptroller General had construed it.
The ruling of the Comptroller General was erroneous. We held that it did not deprive Updike of his rights. It should not deprive Steen of his rights.
Both Updike and Steen, after being denied retired pay by the Secretary, filed applications with the Board for the Correction of Military Records for the correction of their records. Updike’s application was denied on July 7, 1954. Steen’s application was denied on August 7, 1954. Both denials were approved by the Secretary.
Updike wins. Steen loses. Steen loses because of the accident that his favorable decision from the Physical Evaluation Board came such a few days before the Secretary received the erroneous ruling of the Comptroller General that the Secretary had not, in the normal course of his work, approved it before he received the erroneous ruling and refused to consider the case on its merits at all.
The opinion of the court seeks to distinguish the Updike case on the ground of the original approval of his retirement *147by tibe Secretary, later revoked. I think we, in the Updike case, disregarded the Secretary’s second and erroneous decision, and based our decision on the determination of the Physical Evaluation Board. I think we should, in this case, disregard the Secretary’s erroneous refusal to decide, and base our decision on the determination of the Physical Evaluation Board.
The error which called for correction in this case was the error of law committed by the Secretary in treating the determination of the Physical Evaluation Board as a nullity, and refusing to consider it. The way to correct that error, after the error was recognized, was to pick up that determination and consider it on its merits. If that had been done, we have no reason to suppose that it would not have been approved, and retirement granted, since that determination had been made after ten days’ examination and interrogation of the plaintiff in an Army hospital, and a full day’s hearing by the Physical Evaluation Board itself, of the plaintiff in person.
The Board for the Correction of Records, on the other hand, acted upon recommendations of the Surgeon General and the Physical Review Council, which recommendations were unknown to the plaintiff at the time of his hearing before the Board and were not, of course, based upon any direct acquaintance of those officials with the plaintiff’s condition.
The effect of the Secretary’s failure ever to give consideration to the decision of the Physical Evaluation Board was to deprive the plaintiff of the chance and the probability of obtaining a favorable decision in the tribunal of first instance. Instead, he was projected into the appellate tribunal, the Board for the Correction of Records, with the burden of securing the reversal of an adverse decision which, of course, never should have been made. He was deprived of rights which all other officers, not the victims of the Comptroller General’s error of law, were accorded. This court should award him retired pay.
Littleton, Judge, agrees with this dissent.*148FINDINGS OF FACT
The court, having considered the evidence, the report of Commissioner Currell Vance, and the briefs and argument of counsel, makes findings of fact as follows:
1. Plaintiff was commissioned a second lieutenant in the Officers’ Reserve Corps, Army of the United States, on May 15,1927, and performed active service at various times from said date until December 27, 1940, when he entered into extended active duty until May 24, 1947, at which time he was relieved from active service, not by reason of physical disability, in the rank of maj or.
2. On May 28, 1942, plaintiff was admitted to the station hospital at Camp Gordon, Georgia, where he related that in April 1935, while assigned to the Civilian Conservation Corps, he was in an Army truck that was wrecked. His back was injured, teeth knocked loose, and he suffered bruises. Plaintiff further stated that at intervals since the 1935 accident, he had some trouble with his back, and first commenced having trouble with his leg in April 1942. Plaintiff was operated upon for removal of intervertebral disc on June 3, 1942, and was discharged from the hospital to duty on June 25,1942.
3. On July 26, 1942, plaintiff was readmitted to the hospital, complaining of pain in left leg. He was discharged to duty on August 4,1942.
4. Plaintiff was again hospitalized on November 4, 1942, for determination of physical fitness. On November 9,1942, plaintiff appeared before a disposition board. He was examined by orthopedic, neurological, and surgical consultants, who recommended full field duty. The board diagnosed plaintiff’s condition as: “Neuralgia, mild, left sciatic nerve, residual of operation, 6/3/42, excision of intervertebral disc, L-5,” and in recommending his discharge to full field duty stated “that the symptoms are of insufficient severity as to preclude the performance of full field duty.”
5. On November 24, 1942, plaintiff was readmitted to the hospital as an administrative admission. Plaintiff appeared before a disposition board on November 25,1942, which recommended that he be transferred to a general hospital for *149further disposition. Plaintiff was thereupon transferred to Lawson General Hospital, Atlanta, Georgia, on December 4, 1942.
6. On December 14, 1942, a disposition board convened at Lawson General Hospital, consisting of the chiefs of the surgical, medical, and neuropsychiatric services. This board diagnosed his condition as: “Sciatica, mild, superior gluteal component, left, residual of herniated intervertebral disc, L-5-S1. (Improved) 6-3-42 Hemilaminectomy with excision of intervertebral disc, L-5-S1, Station Hospital, Camp Gordon, Georgia.” The board was of the opinion that the plaintiff was physically disqualified for general service and for the duties of his assignment because of such condition, but that he was physically qualified for limited service; further that the physical defect was stationary in character and not likely to be aggravated as a result of further limited service. The board recommended that the plaintiff be relieved from further hospitalization and reassigned for limited service to duties other than with troops in the field.
7. Plaintiff appeared before a disposition board convened at Oliver General Hospital, Augusta, Georgia, on February 5, 1947. His incapacity was diagnosed as: “Limitation of motion, flexion of lumbar spine, with loss of lumbar curve, moderate, secondary to herniated nucleus pulposis, L-4 and 5, removed surgically at Camp Gordon, Ga., in 1942, with subjective complaints of weakness and pain in the back on strenuous exertion. Unchanged. LD Yes.” The board recommended that plaintiff “formerly classified as qualified for permanent limited service, be continued on permanent limited service, either in the U. S. or overseas, at a fixed installation.”
8. Plaintiff appeared before an Army retiring board convened at Oliver General Hospital on February 25,1947. The Army retiring board found that the plaintiff “is not permanently incapacitated for active service,” and recommended general service with a waiver. On May 24, 1947, plaintiff was relieved from active duty “not by reason of physical disability” and reverted to an inactive status.
9. Under date of January 18, 1951, the Surgeon General stated that the plaintiff may have an incapacitating defect warranting an appearance before a physical evaluation board *150and recommended that the plaintiff be authorized hospitalization in an Army hospital for observation, necessary treatment, appearance before a medical board and, if warranted, before a physical evaluation board.
10. The Secretary of the Army, under date of January 19, 1951, advised the plaintiff that he was being given an opportunity to enter the U. S. Army Hospital, Camp Rucker, Alabama, “in an inactive (civilian) status,” for observation and necessary treatment, including appearance before a physical evaluation board, if indicated. This letter further advised the plaintiff that the question of allowing military personnel on an inactive status the right to “receive retirement benefits under existing law is now being studied by the Department of the Army and other interested agencies. Until such decision is reached, this office cannot assure you of any possible monetary benefits which may be derived from your appearance before a physical evaluation board.”
11. Plaintiff was admitted to Camp Rucker Army Hospital on March 19,1951, and a disposition board thereupon recommended that plaintiff appear before a physical evaluation board. The disposition board described plaintiff’s disability “in nontechnical language” as “painful back.”
12. Plaintiff appeared before a physical evaluation board convened at Camp Rucker on April 17, 1951. The board diagnosed plaintiff’s incapacity as “sciatica, left, moderate severe.” The recommendations of the board were as follows:
Recommendations are that the individual appearing before the Board was injured in the line of duty while on extended active duty in the Armed Forces, Camp Gordon, Georgia. Recommended percentage of disability is 40% at the date of his discharge, 24 May 1947.
It is recommended that date of first physical examination be within 6 months subsequent to 17 April 1951. The individual became physically unfit to perform the duties of his office, rank or grade, on 24 May 1947.
13. On July 16,1951, the Secretary of the Army made the following endorsement upon the record of proceedings of the physical evaluation board:
In view of the Comptroller General of the United States decision (Opinion B-100262 dated 25 April 1951), *151the proceedings of the Physical Evaluation Board are hereby declared null and void.
14. Under date of July 16,1951, the Secretary of the Army advised the plaintiff as follows:
1. Reference is made to the report of proceedings of the Physical Evaluation Board convened in your case on 17 April 1951 at US Army Hospital, Camp Rucker, Alabama, and to letter this office dated 9 February 1951 relative to the question of the legality of granting officers on an inactive status the opportunity to appear before a Physical Evaluation Board, and whether such personnel, if otherwise found to be eligible, may retire and receive disability retirement pay pursuant to section 402 a or b, Title IV, Public Law 351, 81st Congress, as amended.
2. In view of the decision of the Comptroller General of the United States (Opinion B-100262 dated 25 April 1951, copy inclosed), which precludes retirement under the above law by reason of physical disability of members of Reserve Components not receiving basic pay at time of determination of disability, the proceedings of the above mentioned Board are hereby declared null and void.
3. The above action is regretted, but the Department of Defense has included in its legislative program, proposed legislation to amend section 302 of the Servicemen’s Readjustment Act of 1944 in order to provide authority for review of cases such as yours.
15. On July 10,1952, plaintiff filed with the Department of the Army an application for correction of military records. This application requested that plaintiff’s record be corrected “to show that I was permanently incapacitated to perform active service when I was separated on May 24,1947, and as a Physical Evaluation Board has found.”
16. On May 22,1953, the Surgeon General’s office reviewed the case and advised the Board for Correction of Military Records that the “evidence of record in this case does not reveal physical defects of a degree warranting retirement for physical disability at the time of separation, 24 May 1947, under laws, regulations, policies, etc., then in effect.”
17. On July 15, 1953, the Army Board for Correction of Military Records conducted oral proceedings on plaintiff’s application, with plaintiff and his counsel in attendance. The board considered the following evidence:
*152(1) Plaintiff’s application, dated July 10,1952.
(2) Case summary, dated May 29, 1953, prepared by tbe examiner for the board.
(3) Testimony of plaintiff and witness and argument of counsel before the board.
(4) AG 201 file and medical records of plaintiff.
18. The correction board, under date of August 10, 1953, recommended to the Secretary of the Army that plaintiff’s “application for correction of military records, dated 10 July 1952, be denied.”
19. Under date of August 25,1953, the executive secretary of the Army Board for Correction of Military Records furnished plaintiff with a copy of the decision of the Secretary of the Army in the matter, which reads as follows:
Aug. 22,1953.
AG 201 — Steen, Julian P.
O 237 904
MEMORANDUM FOR THE ADJUTANT GENERAD :
Having received and approved the findings, conclusions and recommendation of the Army Board for Correction of Military Records in the case of judian p. steen, O 237 904, and under the authority vested in me by Section 207 of the Legislative Reorganization Act of 1946, as amended (Public Law 220, 82d Congress), it is directed:
That in the case of judian p. steen, his application for correction of military records, dated 10 July 1952, be and hereby is denied.
(Signed) Robert T. Stevens,
Secretary of the Army.
20. On July 23,1947, plaintiff was rated by Veterans’ Administration as 20 percent disabled, effective May 25, 1947. Veterans’ Administration reconsidered plaintiff’s claim on November 10,1948, and February 4,1949, and on each occasion deemed that no change was warranted. On December 27, 1950, Veterans’ Administration rerated plaintiff’s percentage of disability as 20 percent from May 25, 1947 to October 3,1950, and 40 percent from October 4,1950.
21. Subsequent to the filing of the petition herein, plaintiff, under date of September 24,1953, requested of the Adjutant General that the Surgeon General and the Physical Review *153Council furnish, plaintiff with a statement of specific findings and the basis for such findings in the evidence. In reply thereto, the Adjutant General, under date of November 5, 1953, advised in part that “the opinions of the Surgeon General and the Army Physical Review Council to which you refer were based upon all medical evidence of record, including the proceedings of the Physical Evaluation Board convened on 17 April 1951”, and that “Major Steen has had the full benefit of the exhaustive procedure provided for the review of such cases.”
22. Plaintiff again wrote the Adjutant General, under date of November 16, 1953, requesting that he be furnished with the following information:
(1) How many officers retired for disability under the law before the Career Compensation Act have been rated by the Army 20% or less under the provisions of the Career Compensation Act?
(2) How many officers have been retired for injury to their intervertebral discs ? How many have been retired for disability resulting from operations upon interverte-bral discs? What disability ratings have these officers been given under the Career Compensation Act?
23. In reply thereto, the Adjutant General advised the plaintiff under date of March 30,1954, in part, as follows:
The records show that Major Steen has repeatedly been carefully examined and his disabilities reevaluated and have been found not of a degree to warrant retirement for physical disability under the laws, rules, regulations, and policies in effect on 24 May 1947, the date of his separation from active service.
As each decision with respect to the incapacity of a member of the Army is made on an individual basis upon consideration of all the available medical evidence pertaining to the member concerned, the information requested by you in connection with other officers who were retired on account of disability would not be pertinent in determining Major Steen’s eligibility for retirement benefits. Further, it has been the long-established practice of the Department of the Army not to furnish information based on departmental personnel records to individuals other than the member or former member to whom the records pertain or his authorized representative.
*15424. War Department Technical Manual 12-245,1 October 1945, paragraph 23 b, 23 c, and paragraph 60 h, Item 34, provides as follows:
23. Nature of permanent incapacity for active service.
b. The word “disability” as used in section 5 of the act of 3 April 1939, as amended, with respect to retirement pay benefits means such disability as would constitute a basis for the retirement of Regular Army Officer personnel. Thus, what constitutes “incapacity for active service” for Regular Army officers likewise constitutes “disability” for officers who are not Regular Army officers.
c. The question whether an officer of the Regular Army is incapacitated for active service is one of fact. An officer is incapacitated for active service when he is permanently physically or mentally incapable of performing full military duty, field as well as garrison, in both peace and war. The fact that an officer may be capable of performing limited military service with the supply arms and services does not prevent his retirement under section 1251, Revised Statutes, supra, by reason of being permanently incapacitated for active service.
60h. Item 31¡.. (1) When a retiring board is of the opinion that an officer appearing before it is capable of performing limited service, the board is authorized to recommend that he be considered for a limited service assignment. Such recommendation will be stated in Item 34.
(2) An officer is capable of performing limited service if he is physically fit for certain types of active military _ assignment commensurate with his physical condition even though he is disqualified under current physical standards for general military service.
(3) The recommendation of a retiring board that an officer be considered for a limited service assignment is not inconsistent with a finding of incapacity for active service and does not preclude his retirement or certification for retirement pay.
(4) When an officer in the status of permanent limited service is found by a retiring board to be not incapacitated for active service the board will, except in those cases where it believes that the officer concerned is qualified for general service, recommend that he be continued in the status of permanent limited service.
*15525. There is no evidence that the actions of the Army were arbitrary or capricious.
CONCLUSION OF LAW
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover, and his petition is dismissed.