Plaintiff sues to recover disability retired pay from May 1, 1948, on the ground that the Secretary of the Army acted arbitrarily, capriciously and unlawfully when, on November 28, 1955, on the basis of the recommendation of a military officer of the Army, and contrary to the recommendation of the civilian board for the Correction of Military Records, he denied plaintiff's application for correction of his military record.
On the basis of the pleadings and documents submitted by the parties, plaintiff
Defendant's motion for summary judgment dismissing the petition is based on two grounds: (1) that the claim, if any, accrued on April 27, 1948, the date on which plaintiff was released to inactive duty, not by reason of physical disability, and is therefore barred by the six-year statute of limitations under a petition filed on May 28, 1954; and (2) that in any event plaintiff has failed to state a claim on which relief can be granted because the Secretary of the Army was not required to act through civilian boards or employees in granting or denying plaintiff a correction of his military record.
On the matter of the statute of limitations, defendant urges that proceedings before a Correction Board will not necessarily toll the running of the statute of limitations nor will an alleged arbitrary decision by such Board give rise to a fresh cause of action since resort to that Board is permissive and not mandatory. In the instant case, because of the peculiar facts and circumstances which will be discussed later herein, Correction Board proceedings were the only ones open to this plaintiff, and the only administrative action ever taken on his claim for disability retirement with pay was in connection with his application to that Board. Furthermore, plaintiff's cause of action is not based on the alleged arbitrary action of the Correction Board but rather on the alleged arbitrary action of the Secretary of the Army in 1955, acting not through the Correction Board but independently and in fact contrary to the findings, conclusions and recommendations of such Board. As we said in our recent decision in the case of Furlong v. United States, 152 F.Supp. 238 this court acquired jurisdiction of a claim for disability retired pay
Accordingly, we hold that plaintiff's claim based on the alleged arbitrary action of the Secretary of the Army is not barred by the statute of limitations.
The facts, which are unusual, are not in dispute. Plaintiff, a former commissioned officer of the Army of the United States and the Officers' Reserve Corps, contracted multiple sclerosis while serving on extended active duty between 1936 and 1948. The first symptoms of this disease were manifested in 1938 during plaintiff's enlisted service in the Regular Army while serving at Fort Missoula, Montana, at which time he began to experience periods of double vision which ultimately required his giving up his favorite Army sport of baseball at which he was very expert.
Immediately upon his return to the United States in February 1945, plaintiff had a violent attack of hand tremors. Upon his release to inactive duty the following December 1945, plaintiff described his symptoms to the medical officers, but no diagnosis was reached and plaintiff was released, not by reason of physical disability.
After plaintiff's release from active duty he was employed by the Chevrolet Division of General Motors where in 1946 he suffered an attack of double vision and blurring of vision which was more intense and prolonged than any previous attack. The Company doctor referred plaintiff to a Veterans' Administration eye specialist and, after extensive examination, plaintiff was told that his vision was 20/200 and was incorrectible with glasses. Later, this attack subsided and plaintiff's vision returned to normal. He was recalled to active duty on October 15, 1946, and was accepted for extended active duty.
During plaintiff's second tour of active duty he began experiencing further symptoms consisting of periods of becoming emotionally upset over minor matters which theretofore had never upset him, periods of lack of control of elimination of kidneys and bowels, periods of pronounced sexual impotency. Although plaintiff sought the advice of civilian and military doctors, no diagnosis was reached and, on April 27, 1948, plaintiff was again released to inactive duty, not by reason of physical disability. Shortly thereafter, plaintiff began to experience numbness in his legs after exercise, and soon he lost all feeling in his legs from the hips down. Plaintiff's double vision then became permanent, and by 1953 plaintiff was no longer able to work. By that time plaintiff could walk only with his feet wide apart and with a bad stagger. It was impossible for him to walk on an uneven surface. He had lost all depth perception and could not focus his eyes even for the brief period required to insert a key in a lock.
In June 1953, a private specialist in neurology made an examination of plaintiff and diagnosed plaintiff's disease as multiple sclerosis. On October 14, 1953, the Veterans' Administration rated plaintiff 100 percent disabled by reason of multiple sclerosis.
On May 28, 1954, plaintiff filed his original petition in this court indicating in paragraph VII thereof that he intended to present an application to the Army Board for Correction of Military Records for correction of his record in accordance with the facts and circumstances set forth in the petition. Following favorable action by the Correction
Upon the basis of plaintiff's application for correction, and the supporting documents, the Army Board for the Correction of Military Records accorded plaintiff a hearing on June 15, 1955, before five members. The evidence considered by the Board consisted of the plaintiff's application and brief, to which were attached affidavits of three Army officers, two on active duty and one retired, concerning their knowledge of plaintiff's symptoms from 1938-1942; the affidavit of a general medical practitioner who had treated plaintiff from 1947 through 1951, describing his symptoms of nervousness and generalized weakness in 1947 and 1948, and his numbness of legs and double vision in 1949; the affidavit of Dr. L. E. Daniels, specialist in neurology, who examined plaintiff in the summer of 1953 and diagnosed his disease as multiple sclerosis, which disease he characterized as a progressive and incurable disease of the central nervous system; a letter dated November 9, 1953, to plaintiff from the Veterans' Administration notifying plaintiff that an award had been made to him for 100% disability resulting from multiple sclerosis incurred in service; the affidavit dated June 22, 1954, of Dr. Paul Chodoff, specialist in neurology and psychiatry, Washington, D. C., in which he summarized the personal and medical history of plaintiff, including the final hospital summary of the neurological examination made by the Denver Veterans' Administration Hospital in August 1953, and stated that on the basis of that history he was of the opinion that plaintiff was suffering from multiple sclerosis, incurred sometime in 1938; Dr. Chodoff also stated that plaintiff's history, with the remissions and exacerbations of neurological disorder, the evidence of lesions at various locations in the central nervous system, and the tendency for the attacks to become more severely incapacitating and the recoveries less complete, was quite typical of that disease; that it conformed to sound medical practice to find that the disease is typically characterized by periods, sometimes quite prolonged, of remission after its first onset, as in the case of plaintiff; that multiple sclerosis is usually progressive and that there is no known cure for it at the present time; an affidavit dated August 4, 1954, of Dr. Hilbert S. Sabin, specialist in urology, Washington, D. C., stating that on the basis of the personal and medical history of plaintiff, he was of the opinion that plaintiff contracted multiple sclerosis in 1938; that the symptoms of the disease are more varied than those of any other single organic disease of the central nervous system; and that the disease is progressive and incurable.
The Correction Board also considered a case summary prepared by Examiner Harry M. Shooman, the transcript of testimony given before the full Board, and plaintiff's AG 201 file and his medical records.
In paragraph 14 of the case summary of the Correction Board examiner, reference was made to a memorandum to the Correction Board from the Surgeon General, dated December 16, 1954. The memorandum concerned plaintiff's application for a correction of his record to show that he was totally disabled at the time of his relief from active duty by reason of multiple sclerosis contracted while serving on active duty. The Correction Board Examiner set forth part of the memorandum of the Surgeon General as follows:
The above excerpt from the report of the examiner for the Correction Board appears to be a direct quotation from the memorandum of the Surgeon General and does not represent the opinion of the examiner who was undertaking merely to make a summary of the documentary evidence for the use of the Board, and was expressing no opinions of his own.
At the hearing before the Correction Board plaintiff testified concerning his personal and medical history and concerning his symptoms. Dr. Chodoff, the specialist in neurology and psychiatry whose affidavit was before the Board as part of the application, also testified. Among his qualifications, Dr. Chodoff testified that he was the consultant in neurology for Walter Reed Army Hospital, the Veterans' Administration, Mount Alto Veterans' Hospital, an associate in neurology at Georgetown Hospital Medical School, codirector of the Multiple Sclerosis Center at George Washington University Hospital, and examiner for the American Board of Neurology and Psychiatry. Dr. Chodoff's affidavit had been made on the basis of plaintiff's personal and medical history. Just prior to the hearing, Dr. Chodoff examined plaintiff personally at George Washington University Hospital where laboratory studies were performed in connection with his examination. Dr. Chodoff found plaintiff to be suffering from multiple sclerosis in an advanced stage. In answer to the question as to what in his opinion was plaintiff's physical condition on December 29, 1945, Dr. Chodoff answered that in his opinion plaintiff had contracted the disease in 1938 and had suffered from the disease continuously from that time; that plaintiff was disabled in 1945 by reason of having this disease which is one "which can break out at any moment or any time." In answer to another question, Dr. Chodoff testified that in his opinion a neurological examination in 1945, prior to plaintiff's first release to inactive duty, would have resulted in a diagnosis of multiple sclerosis and that at the very least, the presence of the disease would have been strongly suspected at that time from plaintiff's history of symptoms. Dr. Chodoff testified that there was nearly as much known about multiple sclerosis in 1945 as in 1955 and that the correct diagnosis could have been made quite well at that time. Asked to account for the fact that no Army or Veterans' Administration physical examination had revealed the presence of this disease by as late as January 1953, Dr. Chodoff stated that no neurological examination was conducted on the plaintiff by either the Army or the Veterans' Administration until the fall of 1953, and that plaintiff's symptoms must have been so quiescent at the times of the prior examinations that the doctors simply did not suspect its presence. Until some time early in 1953, plaintiff was still having occasional periods of remission of symptoms.
Dr. Albert E. Marland, a specialist in nervous and mental diseases also testified before the Board. Dr. Marland had been an examiner and neuropsychiatrist for the Public Health Service, Chief of the 4th District of the Public Health Service,
Dr. Marland testfied that multiple sclerosis is sometimes difficult to diagnose in its early stages because the various symptoms taken separately, and some together, are compatible with other diseases or complaints. From his knowledge of the disease and of the requirements of military service, the witness was of the opinion that had any Army doctor recognized the disease in plaintiff, he would have considered plaintiff totally disabled as of that time. He also stated that if plaintiff had had a neurological examination while in the service, the disease would have been diagnosed. In opinion of this witness, plaintiff's double vision which began in 1938, and recurred from time to time thereafter, and was found by Army doctors not to be correctible by glasses "should have made somebody suspicious," because double vision occurring in an adult results from poisoning or from multiple sclerosis. He was of the opinion that plaintiff had been poorly examined.
In his closing statement to the Board at the hearing, plaintiff's counsel referred to the fact that plaintiff had in fact performed active military duty and performed it well, and that the disease from which he was then suffering went undetected. He urged the Board to consider the fact that because a man performs duty, he is not necessarily physically fit, and that this is peculiarly true of a man suffering from the disease of multiple sclerosis, which is totally unpredictable and incurable. He called attention to the memorandum of the Surgeon General to the effect that had the Army detected the presence of the disease, plaintiff in all probability would have
On the basis of the testimony and the record before the Correction Board, that Board on June 27, 1955, rendered its findings and conclusions. The findings adopted by reference the case summary of the examiner and the opinion of the Surgeon General of December 16, 1954. The conclusions reached by the Board were (1) that the plaintiff's disability was due to multiple sclerosis contracted while on active duty in 1938, but that the disease was undiscovered by the Army physical examination at the time of his relief from active duty on April 27, 1948; (2) that had the disease been detected at the time of separation in 1948, plaintiff in all probability would have been separated from service by reason of physical disability under the laws, rules, regulations and policies of the Army, then in effect, as being totally disabled; (3) that the applicant's symptoms in 1948 and previous thereto can now be considered as a justification for the diagnosis of multiple sclerosis which, although subject to periods of improvement, must be and is regarded as a progressive and incurable disease of the central nervous system; (4) that the failure of the Department of the Army to properly diagnose the disability prior to relief from active duty, and to separate the applicant by reason of physical disability, "was, and is, in error and unjust;" and (5) that plaintiff's incapacities are ratable as 100 percent disabling under the provisions of section 411, Public Law 351, 81st Congress (the Career Compensation Act of 1949, 63 Stat. 802, 37 U.S.C.A. § 281). The Board made the following recommendations:
Two of the Board members noted their dissent and recommended no change in plaintiff's record. Among the reasons set forth as bases for the dissent was the fact that plaintiff was relieved from active duty after being found physically qualified in examinations which the dissenters stated had included "complete hospital studies". We note, in passing, that these examinations were hardly "complete" since admittedly no neurological examinations were made. Another reason advanced in the dissent was that the medical witnesses did not testify that plaintiff was unable to perform his duties at any time nor that the medical examiners were in error in repeatedly finding him physically qualified. As pointed out earlier in our discussion of the testimony at the Board hearing, the medical witnesses testified that although plaintiff actually performed his military
Our reasons for commenting upon the dissenting opinion of the two Board members, which opinion we think lacked any support in the record before the Board, will become apparent later in this opinion.
On July 21, 1955, Brig. Gen. E. C. McNeil, U. S. A. (Ret.), Special Assistant, OSA, addressed a memorandum to the Assistant Secretary of the Army relative to the case of this plaintiff, in which he summarized briefly plaintiff's military record, including his various hospitalizations. The memorandum noted that the Surgeon General had indicated that had the presence of multiple sclerosis been detected in 1945 or 1948, plaintiff would probably have been separated for total physical disability. The memorandum then stated:
Several things are of interest in the above excerpt. The testimony heard by the Board was to the effect that there were sufficient symptoms as early as 1938
Another important fact about the above memorandum opinion is that it was rendered by a military officer who was not a physician, and not by a civilian employee of the Department of the Army. The memorandum and the attached order were prepared for and directed to the Assistant Secretary of the Army and not to the Secretary.
On July 22, 1955, the day following the date of General McNeil's memorandum, the Assistant Secretary of the Army signed the order attached to the memorandum. The order read as follows:
On September 8, 1955, by leave of the court, the plaintiff filed his amended petition alleging, among other things, that the Assistant Secretary of the Army had no authority in law to deny plaintiff's application. On November 28, 1955, the Secretary of the Army issued a new order in substantially identical language,
Defendant takes the position that under the facts and circumstances of this case plaintiff does not have a claim, cognizable by this court, for disability retirement pay. Defendant advances several grounds for this conclusion. First, defendant urges that under the Act of April 3, 1939, 53 Stat. 555, 557,
In the instant case the Secretary of the Army, in denying plaintiff's application for correction of his military record, did not act through the Army Board of civilian officers or employees as required by the above statute. On the contrary, the Secretary of the Army wholly disregarded the finding of the civilian board that plaintiff had been totally and permanently disabled in line of duty at the time of his release to inactive duty on April 27, 1948, and, apparently acting through a retired regular Army officer, refused to correct plaintiff's record in the manner recommended by the civilian board. But defendant urges that the Secretary did not deed to act through a civilian board and that the recommendations of the Correction Board were merely advisory, leaving the Secretary free to accept and act favorably on the findings and recommendations, or to ignore them, as he saw fit. Such an interpretation of section 207 makes the words "acting through boards of civilian officers or employees" superfluous. Neither the act itself nor its legislative history warrants such an interpretation. Since the errors or injustices which might require correction were originally made by the military, Congress made it manifest that the correction of those errors and injustices was to be in the hands of civilians. We know of no case in which this issue has been decided, but the Comptroller General in an opinion reported at 32 Comp.Gen. 294 (1952), held that a correction or change in a military record made independently and contrary to the findings and recommendation of the Correction Board, was not made in accordance with section 207.
On the other hand, we do not suggest that the Secretary may not overrule the recommendations of the Correction Board where the findings of that Board are not justified by the record on which the findings were made. Defendant takes the position that in this case the record before the Board did not justify the findings made by the majority, but did justify the findings made by the dissenting members and the statements made by General McNeil in his memorandum. As we noted earlier herein, the record before the Board fully justified the findings of the majority and did not justify the statements made to support the dissenting opinion or the conclusions reached by General McNeil. Both the dissenting Board members and General McNeil stated that the record showed that plaintiff had many thorough physical examinations by the Army which failed to detect his disease. The record established that the examinations were not thorough because, with plaintiff's known symptoms, a neurological examination was strongly indicated. The dissenting Board members and General McNeil also stated that plaintiff's symptoms were not sufficient to indicate the presence of the disease. The record established that, beginning in 1938, plaintiff demonstrated classic symptoms of multiple sclerosis which should have made medical personnel suspicious, and which were sufficient to warrant a diagnosis of the disease. General McNeil stated that it was unrealistic to find that a man who performed such outstanding military service was incapacitated while so serving. The record before the Board clearly indicated the incapacitating nature of
We are of the opinion that on the record before the Correction Board, the findings of the majority were fully warranted and that the Secretary, without the benefit of any additional evidence to the contrary, acted without proper authorization, contrary to law, section 207, supra, and the regulations of the War Department, in ignoring those findings and denying plaintiff correction of his military records as recommended by the Correction Board.
Plaintiff is entitled to recover disability retired pay accruing since his relief to inactive duty on April 27, 1948, and judgment is entered to that effect. Defendant's motion for summary judgment is denied. Plaintiff's motion for summary judgment is granted. The case is remanded to a commissioner of the court for a determination of the amount due pursuant to Rule 38(c), 28 U.S.C.A.
It is so ordered.
JONES, Chief Judge, and MADDEN, Judge, concur.
WHITAKER, Judge (dissenting).
What the majority has done in its opinion amounts to reviewing the actions of the Secretary as an appellate court would review the decision of a lower tribunal. It has reviewed his decision, denying the plaintiff retirement and, consequently, retired pay, not only on a question of law but also on the facts. In effect, the majority says that the minority opinion of the Army Board for Correction of Military Records was wrong, and the majority opinion was right, and that the Secretary was arbitrary in not adopting the majority opinion.
But how can we say that the Secretary was arbitrary and capricious in adopting the view of the minority, and rejecting the view of the majority? Would the Supreme Court be justified in saying that judges of this court, who had dissented from the opinion of the majority, were acting arbitrarily in not having concurred with the majority?
It is not for us to determine whether the majority of the Board for Correction of Military Records or the minority was correct. Jurisdiction to determine an officer's right to retirement is vested in the Secretaries of the Army, Navy and Air Force. It is not vested in us and we have no right to review their decision unless we find that they had acted arbitrarily. In my opinion, we can make no such finding in this case.
Nor do I agree that the Secretary is bound by the action of the Board for Correction of Military Records. The Legislative Reorganization Act of October 25, 1951 (65 Stat. 655), does not vest in the boards for Correction of Military Records the right to correct an error or injustice. It vests that authority in the Secretary. It merely permits the Secretary to set up such boards to aid him in determining whether or not an error has been committed or an injustice done. Section 207(a) reads in part:
This vests jurisdiction to correct the error or to remove the injustice in the Secretaries. The Act says that they "are authorized to correct any military or naval record where in their judgment such action is necessary" etc.
What I have omitted from the above quotation reads: "under procedures set up by them, and acting through boards of civilian officers or employees of their respective Departments." To me this means nothing more than that the Secretary may seek the aid of this board of civilian officers or employees of his department in order to arrive at a judgment; but, after all, the judgment to be rendered is the Secretary's judgment. He is not required to bow to the judgment of his subordinate officers and employees unless their judgment coincides with his judgment.
If I am correct in this, it cannot be said that the Secretary was arbitrary in adopting the view of the minority and rejecting the view of the majority of this board he had set up. It cannot be said that his action was arbitrary unless the law bound him to accept the judgment of this board. I do not think it does.
For the foregoing reasons, I respectfully dissent.
LARAMORE, Judge, joins in the foregoing dissenting opinion.