Plaintiff, a former officer in the Army of the United States, seeks to recover disability retirement pay from July 25, 1946, when he was relieved from active duty, not by reason of physical disability, to February 18, 1947, when he was recalled to active duty; and from May 14, 1947, when plaintiff was again relieved from active duty, not by reason of physical disability, to date of judgment.
The allegations of the petition, together with the exhibits attached thereto, show the following facts with reference to plaintiff's service record.
Plaintiff was appointed a second lieutenant, Infantry, Officers' Reserve Corps, May 31, 1942; promoted to first lieutenant, Army of the United States, July 17, 1943; promoted to captain, Army of the United States, March 27, 1946; appointed captain, Infantry, Officers' Reserve Corps, March 28, 1946; relieved from active duty on July 25, 1946, "not by reason of physical disability"; appointed first lieutenant, Army of the United States, February 7, 1947, vacating commission as captain, Army of the United States; recalled to active duty February 18, 1947; promoted to captain, Army of the United States, May 8, 1947; relieved from active duty May 14, 1947, "not by reason of physical disability"; transferred to Honorary Reserve, April 6, 1951; appointed captain, Honorary, United States Army Reserve, November 12, 1952; commission as captain, Army of the United States, terminated April 1, 1953, by operation of law; and plaintiff is now a captain, Retired Reserve. He is credited with the following periods of active service as a commissioned officer: June 11, 1942,
The certificate of the Department of the Army establishes that on March 27, 1947, plaintiff appeared before an Army retiring board which convened at Murphy General Hospital, Waltham, Massachusetts. The finding of the board was: "1st Lt. William R. Barker is not permanently incapacitated for active service." Recommendation of the board was: "Full military duty, with a waiver for moderate left ulnar deformity, and mild limitation of supination and pronation, left." These findings were concurred in by The Surgeon General and approved By Order of the Secretary of War on April 24, 1947. On May 14, 1947, plaintiff was thereupon relieved from active duty "not by reason of physical disability," under Special Orders No. 40, dated May 7, 1947.
During the Korean emergency the plaintiff was ordered to one-day active duty for the purpose of undergoing a physical examination, under Special Orders No. 38, dated February 21, 1951. On February 23, 1951, the plaintiff was examined for extended active duty at the U. S. Army Dispensary, Boston Army Base. The medical examiner noted the scarring resulting from a shrapnel wound, the resultant bone graft, and the loss of motion attendant thereto. Based upon the loss of motion, the examiner concluded that the plaintiff was not physically qualified for extended active duty. Thereafter, on April 6, 1951, plaintiff was transferred from the Inactive Reserve to the Honorary Reserve by reason of being "permanently physically disqualified," pursuant to Special Orders No. 69.
Plaintiff's request to reopen his retirement proceedings was denied by the Department of the Army under dates of June 18, 1951, and April 4, 1952. Plaintiff was advised that authority did not exist for considering his case under the Career Compensation Act of 1949, 63 Stat. 802, 37 U.S.C.A. § 231 et seq., and since plaintiff's release from active service was not the result of a retiring or disposition board action, his case was not eligible for review under section 302 of the Servicemen's Readjustment Act of 1944, 58 Stat. 284, 287, as amended, 38 U.S.C. § 693i, 38 U.S.C.A. § 693i.
On February 26, 1952, plaintiff filed an application with the Army Board for Correction of Military Records, pursuant to section 207 of the Legislative Reorganization Act of 1946, 60 Stat. 812, 837, as amended by the Act of October 25, 1951, 65 Stat. 655, 5 U.S.C.A. §§ 191a, 275. Plaintiff's application requested that the action of the retiring board of active duty, incapacitated for active March 27, 1947, be corrected to show that he was, on the date of initial relief from service and entitled to be retired.
On December 5, 1952, the plaintiff was informed by the Adjutant General as follows:
The official records on file in the Office of the Adjutant General further disclose that on September 20, 1953, the plaintiff requested the Secretary of the Army to reconsider his application for correction of his records; and that on October 14, 1953, the plaintiff was informed by the Executive Secretary of the Army Board for Correction of Military Records that his application had again been thoroughly reviewed but a basis for relief had not been established.
Plaintiff continued to protest his separation "not by reason of physical disability." The official records on file in the Office of the Adjutant General disclose that on April 30, 1954, plaintiff was authorized to report to Walter Reed Army Medical Center, "for the purpose of undergoing a complete medical examination, appearance before a Medical Board and if warranted, appearance before a Physical Evaluation Board". Subsequently, for the convenience of the plaintiff, this authority was amended to permit plaintiff to report to the U. S. Army Hospital, Fort Devens, Massachusetts.
On May 20, 1954, plaintiff underwent a thorough medical examination at Fort Devens. The medical examiner noted the following defects:
The examiner concluded that the plaintiff was "qualified for General Duty."
On August 25, 1954, plaintiff's case was considered by a board of medical officers. The board, after noting plaintiff's defects in technical medical terms, was required to "State Disability In Nontechnical Language." In response thereto, the board stated as follows:
The board concluded that the plaintiff was "Not Incapacitated" for military duty and "was capable and is capable of performing general military service in a limited capacity."
Plaintiff has been receiving disability compensation from the Veterans' Administration during the period covered by the present claim.
This case comes before the court on plaintiff's and defendant's motions for summary judgment. The defendant in its motion for summary judgment has raised the question of the statute of limitations, 28 U.S.C. § 2501, which provides in pertinent part as follows:
Plaintiff was released from active duty on July 25, 1946, not by reason of physical disability, without retirement pay. On February 18, 1947, plaintiff was recalled to active duty for the purpose of physical reevaluation, and on March 27, 1947, plaintiff was found by a retiring board qualified for general service with a waiver. This decision was approved by the Secretary of War on April 27, 1947. On May 14, 1947, he was again released to inactive duty without retirement pay. His right of action accrued only when the retiring board acts arbitrarily or otherwise unlawfully. Odell v. United States, Ct.Cl., 139 F.Supp. 747. It was on this date (May 14, 1947) that plaintiff's cause of action accrued.
Plaintiff's petition was filed March 14, 1955, more than six years after the approval of the retiring board's action by the Secretary of War. Therefore, the claim is barred by the statute of limitations, supra.
Plaintiff's motion for summary judgment is denied. Defendant's motion for summary judgment is granted, and plaintiff's petition is dismissed.
It is so ordered.
WHITAKER and LITTLETON, Judges, concur.
JONES, Chief Judge, and MADDEN, Judge, concur in the result.