dissenting:
I respectfully dissent from the opinion of the court because it has rewritten the statutes applicable to this case, and I believe that it is appropriate only for the Congress to do so.
At first blush one might conclude that without the court’s aid plaintiff is in a no-win situation. Because he was found physically unfit to continue as a member of the Texas Air National Guard (ANG), he lost his civilian position as a production controller technician with the Guard. But, the court properly observes that this was mandated by statute. 32 U.S.C. § 709(e)(1). Plaintiff was given and receives a discontinued service annuity under 5 U.S.C. § 8336(d). Now plaintiff wants instead a disability retirement annuity under the Federal Retirement Program for civilian employees. The latter annuity was denied by the Civil Service Commission which, after a hearing and appellate review, found that plaintiff suffered from a condition pre-existing his position and that he was not *534totally disabled. The military had found plaintiff not qualified for general military service and worldwide duty by reason of diabetes. His military responsibilities required occasional foreign travel and this made it difficult for him to adhere to a restricted diet and to maintain insulin regulation. There is nothing to indicate that, except for the foreign travel problem, plaintiff could not or did not perform his duties adequately. Indeed, there is uncontroverted evidence that he could do so and that he was not totally disabled. The Civil Service Commission agreed, in denying his claim, as noted. Is plaintiff entitled to a disability retirement annuity anyway? The court says that he is. It does so by making this conclusion:
* * * It would seem only fair that there be a single standard in determining physical fitness for employment as a technician. In light of section 709(e) and settled law respecting reviewability of military determinations, it is preferable that the military standard prevail when there is disagreement. * * *
If Congress had wanted this to be the rule, it knew how to say so. But, it did not require that the Civil Service Commission defer to the military judgment by enacting the National Guard Technicians Act, and there is nothing at all in section 709 to support the court’s position. Technicians remain under the Civil Service and not military law, so far as retirement rights are concerned. Qualifications for the military position plaintiff held were governed by military requirements. When plaintiff failed to meet those standards, he lost his civilian job by operation of law. This does not, however, entitle plaintiff, by operation of law, to a disability retirement under title 5 of the United States Code. Section 8331(6) says:
(6) "disabled” and "disability” mean totally disabled or total disability, respectively, for useful and efficient service in the grade or class of position last occupied * * * [emphasis supplied].
Another section, 5 U.S.C. § 8347(c), provides:
(c) The Commission shall determine questions of disability and dependency arising under this subchapter. The decisions of the Commission concerning these matters *535are final and conclusive and are not subject to review. * * * [emphasis supplied].
The court surmounts the foregoing language by ruling that, in ignoring the dual nature of plaintiffs positions and the National Guard Technicians Act, the Commission made a mistake and its findings simply must be set aside. The court says: "In view of this, we find that the civilian and military duties imposed on plaintiff constitute a single job for purposes of determining disability and resultant retirement benefits.” This flies in the face of the law and the facts. Plaintiff has no right to a disability retirement annuity unless he comes within the statutory provisions and their implementing regulations. He does not. The CSC has not found him to be totally disabled from useful and efficient service. Its decision is final. Not even the ANG found that plaintiff was totally disabled for useful and efficient service but only that he was unfit for general worldwide military service.
The court seems to be under a misapprehension that the National Guard Technicians Act somehow changed the responsibility given to the CSC for these decisions under 5 U.S.C. §§ 8331(6), 8337(a),'and 8347(c). It did not do so. That Act had the purpose of giving Guard technicians the same retirement benefits as other federal employees. 3 U.S. Code Cong. & Adm. News 3320 (1968). It did not seek to give technicians greater disability benefits than other federal employees. But, the court does so. This is not insignificant, as counsel assured us at oral argument that approximately 50,000 technicians are potentially affected by this case. The court’s syllogism fails because it does not follow that if plaintiff is unfit for general, worldwide military duty he is also "totally disabled” from his civilian position and that the CSC is deprived of the discretion given to it by statute to rule otherwise. Nor is it correct to say that plaintiffs two positions are the same. The duties of a civilian technician are not the same as those of an Air National Guardsman on active duty. Plaintiff was retired from his civilian position, and it is his civilian duties that are relevant to the question of entitlement to civilian disability benefits. The CSC did not abuse its discretion in applying the law, and we thus have no jurisdiction to upset its *536decision made final by statute. If Congress wishes to prefer these technicians over other civilian government employees and to give the military, instead of the Civil Service Commission, the right to say with finality who is disabled and entitled to a disability annuity, it can rewrite the statutes. The court should refrain from doing so, whatever the appeal of the particular case.