HAMRICK v. UNITED STATES

JONES, Chief Judge.

Plaintiff, a naval reserve officer on active duty, was found by a Naval Retiring Board to be permanently incapacitated for active naval service by reason of diabetes mellitus. The retiring board found that this incapacity existed before he entered the Navy. As a result of the retiring board's decision plaintiff was released from active duty without pay on February 10, 1946, although the proceedings and findings of the board were not approved by the President until February 26, 1946. Plaintiff thereupon appealed the decision of the Naval Retiring Board to the Naval Retiring Review Board which convened on August 2, 1946. The review board agreed that plaintiff was permanently incapacitated for active service but found that his incapacity was incurred in line of duty, the result of an incident of the service, subsequent to the date he reported for active duty pursuant to orders contemplating in excess of thirty days. The proceedings, findings, and decision of the review board were approved by the President on October 26, 1946. On December 12, 1946, plaintiff was notified that he was placed on the retired list on November 1, 1946, in the rank of Ensign. Subsequently he was advanced to the rank of Lieutenant on the retired list effective from the date of retirement. Plaintiff's request for either active duty pay or retired pay for the period from February 10, 1946, to November 1, 1946, has been denied by the Navy. Plaintiff seeks one or the other in this action.

The law provides that an officer of the Navy is not to be retired without a hearing before a retiring board, which is to decide whether he is incapacitated for active service and, if he is, whether the incapacity is the result of an incident of the service. The board's decision is to be laid before the President for his approval or disapproval and orders in the case. If the board finds that an officer is incapacitated as a result of an incident of the service and this finding is approved by the President, the officer is to be retired from active service with retired pay. 34 U.S.C.A. §§ 411-418.1

A reserve officer who suffers a service-connected disability while on extended active duty is deemed to have been in the active naval service while on such duty and is in all respects entitled to the same retired pay as provided for officers of the Regular Navy. 34 U.S.C.A. § 855c-1.2

The law also provides for review of a retiring board's findings and decision pursuant to which an officer was released from active service without pay. The review board has the same powers as the original retiring board and its decision too is to be laid before the President for his approval or disapproval and orders in the case.3

The question presented here was also before us in Womer v. United States, 84 F.Supp. 651, 114 Ct.Cl. 415. Womer too was released from active duty without pay after a retiring board decided his disability was not service-connected. A review board later decided that his disability was an incident of the service. He was then placed on the retired list with pay. We held that he was entitled to retired pay from the time he was released from active duty until he was placed on the retired list with pay. The Government here contends that our decision in Womer conflicts with the prior decision of the Supreme Court in Denby v. Berry, 263 U.S. 29, 44 S.Ct. 74, 68 L.Ed. 148.

We do not perceive any conflict between the two cases. In Denby v. Berry, supra, a Board of Medical Survey found that a naval reserve officer on active duty was suffering a service-incurred disability and recommended that he be sent before a retiring board. Instead, the Secretary of the Navy ordered him released from active duty. The Supreme Court held that the Secretary could not be compelled by mandamus to revoke this order since he had discretionary power to issue it. The Court recognized that the statutory provision that a naval officer was not to be retired without a retiring board hearing had been made applicable to reserve officers on active duty; but it held that a release to inactive duty was not a retirement. The Court pointed out that Berry, after having been ordered to inactive duty, could have applied for retirement; he could have appealed to the President after the Secretary had denied his application for a retiring board.

We stated in Womer that "in the circumstances of this case the plaintiff could not be put on the inactive list except by a finding of the retiring board that he was incapacitated and that such incapacity was not the result of an incident of the service."4 Defendant contends that this statement was wrong in view of the decision in Denby v. Berry, supra, that the release of a naval reserve officer to inactive duty is within the discretion of the Secretary of the Navy or the President.5 However, the provisions of 34 U.S.C.A. § 855c-16 securing to reserve officers on active duty the same rights provided for officers of the regular Navy became law some years after the Denby v. Berry decision, and are considerably broader and more specific than the somewhat similar statutes referred to in that case.7 It seems to us that this statute renders improper an order releasing a reserve officer suffering a service-connected disability to inactive duty without pay. But whether or not this statute has had this effect, we do not see how Denby v. Berry, supra, invalidates the result we reached in Womer. This case and Womer are not cases of officers who were merely released to inactive duty. They are cases of officers who were in fact placed on the retired list. But they were retired with pay later than they should have been because of incorrect determinations by retiring boards that their incapacities were not service-connected.

Plaintiff's retiring board decided that his incapacity was not the result of an incident of the service. It was in error. As a result of its erroneous finding plaintiff was released from active duty without pay. The Naval Retiring Review Board found what must now be regarded as having been from the first the correct fact: plaintiff's incapacity was the result of an incident of the service. The error was partly corrected when plaintiff was placed on the retired list on November 1, 1946. But full correction of the error would require plaintiff's being put in the same position he would be in had the erroneous determination not been made. If the retiring board had made a correct determination plaintiff would have received retired pay from the time his active duty pay ceased.8 A process of review is effective only to the extent that it is followed by action which removes the consequences of error. Section 302(a) of the G. I. Bill of Rights9 is remedial. We would dilute the effectiveness of this remedial statute by a holding that this plaintiff is entitled to something less than he would have had if the erroneous determination had not been made. See Robertson v. Chambers, 341 U.S. 37, 71 S.Ct. 547.

The review board had the same powers exercised by or vested in the original retiring board. Its decision that plaintiff was suffering a service-incurred disability having been approved by the President, plaintiff was entitled to retired pay under 34 U.S.C.A. § 417,10 made applicable to him by 34 U.S.C.A. § 855c-1.11 Approval of this finding established that plaintiff had been so entitled from the time his active duty ceased.

Defendant contends that plaintiff is not so entitled because the President did not order retroactive retirement. As we understand the Stipulation of Facts the President did not order any kind of retirement; he merely approved the proceedings, findings, and decision of the Naval Retiring Review Board; he made no orders in the case. Plaintiff was later notified — we presume by the Secretary of the Navy or someone acting for him12—that he was placed on the retired list the first of the month following the President's decision. But we think it followed automatically from the President's approval of the review board's decision that plaintiff was entitled to retired pay from the time his active duty ceased.

Plaintiff is entitled to judgment for the amount of retired pay he should have received from the time his active duty pay ceased until the time his retired pay commenced, less the amount of any disability compensation received from the Veterans Administration during this period.

Entry of judgment will be suspended to await the filing of a report from the General Accounting Office showing the amount due plaintiff in accordance with this opinion.

HOWELL, MADDEN, WHITAKER and LITTLETON, Judges, concur.