(dissenting).
I respectfully dissent. In this case it is admitted that the disease or injury had its inception or was incurred during plaintiff’s active service. It is also apparent that at the time he was released to inactive service such injury or disease had not reached the disabling stage. A Disposition Board on January 12, 1948, so found. On January 16, 1948, the Letterman General Hospital so found. In both instances the medical examiners found that his disability at that time was only partial, and that he was still qualified for special service.
When in February 1952 plaintiff made application to the Army Board for Correction of Military Records, for correction of his record, the Board declined to grant a hearing, but requested plaintiff to report to the Station Hospital, Fort Sheridan, Illinois, for medical evaluation.
On November 30, 1954, after extensive medical examination, a board of three medical officers of the Navy determined that plaintiff became incapacitated for,' military duty on October 18, 1954, that’ the trouble had its inception as an incident of the service, but that to disclose plaintiff’s physical condition to him would adversely affect his health. The board recommended that he appear before an advisory physical evaluation board, which latter on December 7, 1954, found that he was not physically disabled at the time he was released to inactive duty. The entire record was then forwarded to the Army Board for Correction of Military Records.
The Correction Board denied plaintiff’s request for a hearing, which plaintiff alleges was arbitrary and capricious and therefore without force of law.
Section 931 of Title 10, U.S.C.A., in effect until repealed in 1949,1 provided that an Army officer may either be retired from active service or wholly retired as thereinafter provided.
Section 1023 of the same title is as follows:
“Officers retired from active service shall be entitled to wear the uniform of the rank on which they may be retired. They shall continue to be borne on the Army Register, and shall be subject to the rules and articles of war, and to trial by general court-martial for any breach thereof.”
Thus it will be seen that an Army officer retired from active service is still in the service and subject to call into active service.
I think there is no doubt that an officer may have an injury or disease or both, that had inception in the service but that did not become disabling until later, and that when it became disabling it would entitle him to retirement as of the date the disease or injury became actually disabling.
On August 28, 1947, in a Navy case the Bureau of Medicine and Surgery in *424passing on the question of whether retirement should be recommended on account of a disease that had its inception in the service, 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.”
The Army and Navy retirement statutes are substantially the same.
I agree that application for correction of military records is not mandatory. I do not regard that as the issue here. The real issue here is whether retirement with pay may be of the date when a disease or injury becomes actually disabling, or whether it must be dated back through the years to the date of inception. In other words, that no matter how clearly a battle wound or disease may have been the result of active service, if it has not progressed to the point of disabling him for active military service at the time of his release to inactive service, an officer cannot be so retired no matter how helpless he may later become. I cannot interpret the statutes in such an unjust fashion.
In this case there is no doubt plaintiff’s ti’ouble was service connected. There is little doubt that it was not disabling at the time he was released to inactive service. It may be assumed that he had not reached the point of being disabled at the time he appeared before an Army Retiring Board on January 12,1948. The Retiring Board so found and held that he was at that time qualified for limited service.
The Board for Correction of Military Records declined to consider his application for correction on October 8, 1952, but did request the plaintiff to report to the Station Hospital at Fort Sheridan for medical evaluation.
On November 30, 1954, a Disposition Board of three medical officers of the Navy after extensive medical examination, determined that plaintiff became incapacitated for military service on October 18, 1954.
This was the first time any medical board had found that plaintiff’s condition rendered him disabled for military service.
The Board for Correction of Military Records, in spite of the finding of this . medical board which had acted on its own suggestion, denied plaintiff’s request for a hearing. This action plaintiff claims was arbitx*ary and capricious.
I do not see how plaintiff could have maintained a suit before October 8,1952, when the Army Board for Correction of Military Records first declined a hearing to consider his application for correction of his military record, and probably not before November 30, 1954, when for the first time a board of medical officers found that plaintiff’s condition disabled him for military service, and that it became disabling as of October 18, 1954. What basis did plaintiff have for suit before that date?
If he had sued before that time the action could not have been sustained because his condition would not have been disabling. If he waited until the condition became disabling he, according to the majox’ity opinion, would be barred by the statute of limitations. Thus regardless of merit and no matter how complete his disability the language would preclude him. Any language that is not in a state of dover should do better than that.
I would refer the case to a commissioner of the court to hear evidence as to when plaintiff’s condition became actually disabling. I do not think he could maintain a suit before that time and the statute of limitations should not begin to run until such time as the condition became disabling for military service.
Regardless of whether the Boax'd for Correction of Military Records was justified in denying plaintiff a hearing, I don’t want the decision of this court to be either arbitrary or premature.
I think we should first get the facts.
Any rights, benefits or privileges that might have existed for any member of the uniformed forces were exempted from the repeal provision.