146 Ct. Cl. 814 | Ct. Cl. | 1959
Lead Opinion
delivered the opinion of the court:
Plaintiff, an Air Force reserve officer, sues for retired pay, claiming that he was totally and permanently disabled when he was separated from active service on December 20,1945. He made no request for retirement for physical disability at the time of his separation from active service, but on October 21, 1948, while still on the inactive list, he requested retirement for physical disability. This was denied. Plaintiff says that this action, as well as the denial of his request for relief by the Air Force Board for Correction of Military Records, was arbitrary and capricious, and contrary to law and, hence, this court has jurisdiction to entertain his petition.
Since plaintiff’s claim for retirement was denied by the Air Force on November 23, 1948, plaintiff’s petition is in time and, if this denial was arbitrary and capricious or contrary to law, we have jurisdiction. Dismuke v. United States, 297 U.S. 167; San Millan v. United States, 139 C. Cls. 485.
Whether or not it was arbitrary and capricious is the first question to be decided. If that is decided in the negative, the decision of the Secretary of the Air Force is final, and we will not need to consider any other question raised.
Plaintiff enlisted in the Air Corps, Army of the United States, on March 18,1942. When he was released to inactive duty on December 20, 1945, he held the rank of First Lieutenant. During the intervening period, plaintiff had served as a navigator with the Air Transport Command, stationed first in Memphis, Tennessee, and later in Calcutta, India. His basic duties, while stationed at Memphis, consisted of navigating bomber and transport-type aircraft from the United States to the Africa-Middle East, European, and Asiatic Theaters of Operations. While stationed in Cal
While in Calcutta in August 1945, plaintiff experienced pains down the back of his thighs. After treatment by the flight surgeon at the dispensary, he continued to have pain and, hence, on September 21, 1945, he was transferred to the hospital with a diagnosis of “bilateral sciatic pain.” At the hospital x-rays were taken. They indicated that the fifth lumbar vertebra had slipped forward on the first sacral vertebra. This is called “spondylolisthesis”. The doctors believed that this was due to a congenital failure of fusion of the neural arch, and was not significant. They finally diagnosed plaintiff’s condition as a “strain, lumbo-sacral, mild, cause undetermined.”
On October 5, 1945, plaintiff’s condition having improved, he was released from the hospital and he returned to active duty.
Almost immediately thereafter plaintiff was returned to the United States, since he had enough “points” for release from active duty.
During the course of his service he was given periodic physical examinations, in May 1942, October 1942, April 1944, and February 1945, and they showed plaintiff to be in good physical condition. Plaintiff was a navigator on long trips in airplanes, and worked in cramped quarters, in consequence of which from time to time he experienced stiffness in his right arm and shoulder, but this was not considered of sufficient moment to note on the record of his physical
Plaintiff, however, says some unidentified captain in the Medical Corps told him at the time of his release to inactive duty that he could not be sent before a retiring board because he was a reserve officer. This testimony should not have been received in evidence because of plaintiff’s failure to identify the officer alleged to have made this statement, thus affording the defendant no opportunity to dispute it. It is strange that any such statement would have been made, since the physical examinations disclosed no reason for sending plaintiff before a retiring board; he had been found fit for active duty, with only minor defects. It is immaterial, anyway, since plaintiff cannot predicate a case on anything that happened at this time, since it was eight years before the petition was filed in this court.
On April 2S, 1946, the Veterans Administration rated plaintiff as 20 percent disabled for sciatica and 10 percent for arthritis. This disability was based on the findings of the physical examinations given plaintiff at the time of his separation from the service.
In 1946 and 1947 plaintiff began to have some trouble with his knees. He received treatment from the Veterans Administration, and on their advice moved to a warmer climate about a year and a half later. In February 1948 he received a physical examination from the Veterans Admin
The foregoing is the extent of the record before the Director of Military Personnel, Department of the Air Force, when he wrote plaintiff on November 23,1948, that his record did not indicate a permanent incapacitating defect when he was released from active duty. These records amply justified him in refusing to send plaintiff before a retiring board. His action was not arbitrary or capricious.
Plaintiff took no further action until December 1952, when he requested the Board for the Correction of Military Records to review his case.
In the meantime, plaintiff was again examined by the Veterans Administration in 1949, and was found to have sciatic neuritis and mild hydro-arthrosis of the right knee. In 1950 plaintiff was examined by the Air Force to determine whether he was physically qualified for service in the Korean conflict and was found disqualified because of “arthritic knees.” Because of this disability plaintiff was transferred from the inactive reserve to the Air Force Honorary Reserve.
In 1951 the Veterans Administration again examined plaintiff, when, for the first time his trouble was diagnosed as rheumatoid arthritis of the spine and knees. The arthritis in the spine and left knee was considered mild, while that in the right knee was considered moderately severe. These findings were confirmed by Dr. Jesse W. Hofer, of Houston, Texas, a private physician, who also treated and examined plaintiff during this period.
Rheumatoid arthritis and spondylitis, a spinal variant of rheumatoid arthritis, are basically defined as a chronic disease of the joints. The onset is generally insidious and presents a difficult problem of diagnosis. The early symptoms are quite frequently mislabelled as muscular rheuma
Army Regulation No. AR 605-10, May 26, 1944, applicable to commissioned officers in the Army Air Corps, provides in section IV, paragraph 20, that the physical standards for appointment, promotion, entry on active duty, and for retention of commission are those prescribed for the Officers Reserve Corps in AR 40-100 and AR 40-105. Under these latter regulations both rheumatoid arthritis and osteoarthritis were cause for rejection of an application for a commission. However, Tentative War Department Technical Manual 12-245, October 1, 1945, provided:
b. Due regard will be given to the provisions of the above-mentioned regulations [AR 40-100 and 40-105] in considering the physical qualifications of officers for retention on active (general) service. However, in this connection, the mentioned regulations will not be as strictly interpreted as for appointment or entrance on active duty.
c. Thus, officers may be found capable of performing active (general) service even though they have diseases, injuries, or infirmities which would disqualify them for original appointment, provided such diseases, injuries or infirmities are of such a nature and degree as not to affect adversely the performance of active (general) service (including overseas duty) considering the individual’s age, grade, branch and MOS.
It follows, therefore, that the nature and degree of the disease must be considered in order to determine eligibility for retirement for physical disability,
The degree of plaintiff’s disease in 1945, whether considered osteoarthritis or rheumatoid arthritis, was mild and relatively asymptomatic. Under the regulations, we cannot say as a matter of law that the Air Force was arbitrary and capricious in denying plaintiff’s claim. As plaintiff’s witness, Dr. Hofer, testified, the progress and effect of arthritis varies from patient to patient. In some patients the disease progresses very rapidly, and at its onset is markedly incapacitating, while in others its progression is very slow and does not become incapacitating for many years, and sometime never. In the light of this fact, the armed services, as a matter of general policy, do not retire officers for mild osteoarthritis or rheumatoid arthritis, especially if there are no objective symptoms of the disease. Cf. Army Regulation No. SR 40-120-1, October 9, 1958. From the facts in this case it definitely appears that plaintiff’s arthritis was in its initial stage and mild.
Therefore, even assuming that the plaintiff had rheumatoid arthritis at the time of his release from active duty, we cannot say as a matter of fact that the Correction Board’s determination, that no injustice has been done plaintiff, was in error. Wales v. United States, 132 C. Cls. 765; San Millan v. United States, supra; Palluconi v. United States, 136 C. Cls. 190; Lemly v. United States, 117 C. Cls. 365. The nature and the degree of the disease at the time of plaintiff’s release to inactive duty were such that the Board’s determination seems fully justified.
In our opinion, this court can afford plaintiff no relief. Under the facts presented only Congress can do so.
Plaintiff’s petition will be dismissed.
It is so ordered.
Personnel not In the regular forces were returned from overseas according to the length of such service and other factors, called, In military parlance, “points”.
Plaintiff also presented proof attempting to show that the Army Air Corps In 1945, In determining what constituted “physical disability for active service”, applied a different standard to reserve officers than to regular officers and thereby discriminated against the former. However, as we stated above, plaintiff’s claim must be based on the administrative determinations made In 1948 and 1953. There Is no evidence in the record which would indicate that the standard applied by the Director of Military Personnel and the Air Force Board for the Correction of Military Records was any other than that authorized by the statute and the applicable regulations. This evidence, therefore, is also immaterial.
Later, In 1951, this disability rating was increased to 40 percent.
This was also the test applied In Proper v. United States, 139 C. Cls. 511, and Patterson v. United States, 141 C. Cls. 435. Those cases were concerned with multiple sclerosis, the mere presence of which renders an officer unfit to be entrusted with command, because of the ever-present possibility of an attack that would completely incapacitate the officer while the attack lasted.
Dissenting Opinion
dissenting in part:
There is no doubt that plaintiff’s disabled condition had its inception in the service. It is probable that the malady did not become completely disabling until some years later, when it became certain from medical examinations that at that time it not only was disabling, but that the malady necessarily existed at the time of separation from the service. The nature of the malady at that time was unknown either to him or the medical examiners.
I can see no reasonable basis for denying justice to a gallant soldier, who served long under great difficulties during a period of actual hostilities, merely because the medical authorities did not discover the condition in 1945 when vast numbers of soldiers were being separated from the service, especially since the record abundantly shows that he was permanently disabled when examined and report made in June 1951. In fact the trial commissioner so found. The record leaves no doubt on this point.
I would allow retirement as of a date not later than June 1951. See dissenting opinions in Holt v. United States, 134 C. Cls. 801, 805, and MacFarlane v. United States, 134 C. Cls. 755, 760.
The trial commissioner who heard the evidence found that plaintiff was permanently incapacitated as of the date of his separation from the service in 1945. The trial commissioner saw the witnesses face to face and examined the records. Had the Army known at the time of plaintiff’s separation from the service the actual nature of his malady he would have been retired without question. The regulations set out in finding 29 clearly stipulate that a person afflicted with rheumatoid arthritis shall be ineligible for even limited service. There is not the slightest doubt as revealed by later examination that plaintiff had that malady at the time of his separation from the service.
He flew over the “Hump,” which is the highest of all mountain ranges. His assignments carried him from the hot, steamy climate of India to the cold climate of Greenland, to the hot, dry climate of Africa, and hack and forth through wide variations of climate. He had cramped rigid seating
During the service he complained of pains in the thighs, legs, and mid-calf regions, which the surgeon at that time mistakenly thought were the result of cramped quarters during long hours of flight, but which later analyses showed to be a malady of a serious nature as indicated.
I would restore at least a part of the trial commissioner’s findings.
Whichever horn of the dilemma is taken, the undisputed facts of record establish plaintiff’s right to a retired status.
FINDINGS OF FACT
The court having considered the evidence, the report of Trial Commissioner Paul H. McMurray, and the briefs and argument of counsel, makes findings of fact as follows:
1. On March 18,1942, at the age of 19, plaintiff enlisted as a private, Air Corps, Army of the United States. He was appointed an Aviation Cadet on May 16, 1942, a Second Lieutenant in the Army Air Corps Deserve on December 5, 1942, and a First Lieutenant in the Army of the United States on March 23, 1944. He served on active duty from March 18, 1942, to December 20,1945, when he was released to inactive duty.
2. Physical examinations conducted by the Army, prior to plaintiff’s enlistment, showed that he was physically qualified for flying duty. He performed the required training for flying without any physical difficulties. In his induction examination there is no evidence of any physical disability or ailments other than the usual childhood diseases.
3. Plaintiff was trained for and assigned to duty as a navigator and from February 1943 to October 1945, he served as a navigator of transport and bomber type aircraft in the American, European, Africa — Middle East and Asiatic Theaters of Operations. He was stationed first in Memphis, Tennessee, from which he made flights to India, Iran and other parts of the world. He was subsequently stationed in Calcutta, where he flew over the “Hump” to various parts of the Far East. In manf of the planes he flew, particularly bombers, his seating space was greatly restricted and he had
He flew approximately 1,650 hours, 1,450 of which were in the performance of his duty as a navigator.
4. According to plaintiff’s testimony, in the late summer or early fall of 1943 he began to experience stiffness in his right arm and shoulder during flying and reported it to the Flight Surgeon. However, there is no medical record of such a report. None of plaintiff’s medical examinations given in May and October 1942, April 1944, and February 1945, indicated any complaint.
5. In 1944, after a trip on an A-26 plane in which the space he occupied was extremely restricted, he was so stiff that he was unable to rise out of his seat and had to be helped out. This stiffness lasted two or three days.
In August 1945, when he was stationed in Calcutta, he began to experience pains down the back of his legs and could not bend over. He reported these attacks to the Flight Surgeon, who treated him with sodium salicylates, but when the condition did not improve he was sent to a hospital.
6. On September 21, 1945, the Dispensary at Calcutta transferred him to the 142nd General Hospital with a diagnosis of “bilateral sciatic pain”. He remained at the hospital until October 5, 1945.
The hospital records show that plaintiff was admitted “with complaint of pain radiating down posterior aspects of both thighs to the mid-calf region”,; that, according to him, he had experienced pain for iyz years; that he had been seen by the Flight Surgeon and medicine administered with no beneficial results; that the attacks of pain lasted anywhere from one hour to several days, with varying degrees of intensity. The doctors told him he had a “nerve” condition down the back of his legs and he was given postural exercise, a pelvic girdle, and a board to sleep on.
An x-ray report of September 24,1945, indicated spondy-lolisthesis, L-5, having slipped forward on S-l.
He was discharged from the hospital on October 5, 1945, with a final diagnosis of “Strain, lumbo-sacral, mild, cause undetermined.”
7. After his discharge from the hospital as fit for general duty, he was returned to general duty and sent to Lincoln
8.. The two examining physicians determined that plaintiff was “qualified for general service with waiver of minor defects” found during his terminal physical examination.
9. Plaintiff was placed on terminal leave effective October 25, 1945, and released from active duty on December 20, 1945. At that time he was suffering from pain in his back, hips and legs.
During the latter part of 1945 or early 1946 plaintiff was very thin and highly nervous.
10. On April 23, 1946, the Veterans Administration rated plaintiff as of December 21,1945, the date following his discharge from service, as 20% disabled for sciatica, right, moderately severe, cause probably traumatic, and 10% for arthritis, chronic, mild, osteoarthritis, cause unknown. These ratings were obviously based upon the findings in the Air Force terminal physical examination since the wording of the diagnoses is identical and plaintiff had not been physically examined by the Veterans Administration at the time the rating was made.
11. In late December 1945, or early January 1946, plaintiff began to work in Omaha, Nebraska, but in February 1946 his knees began to give him trouble. He went to the Veterans Administration for Out-Patient treatment for his knees and back. He received medication which did not relieve him and the Veterans Administration recommended a warmer climate. A year and half later, he moved to Tampa, Florida, in August 1947, and received Out-Patient treatment from the Veterans Administration at Davis Island for a period of two months. He was given heat therapy two or three times a week by a private doctor to whom the Veterans Adminis
The Veterans Administration records show that early in 1948 he received examinations and treatment by three doctors for pain and stiffness in both knees with clinical findings of swellings of both knees. The treatment included salicylates, diathermy and darthronol. The clinical diagnosis was arthritis, hips and knees.
12. The Veterans Administration report of physical examination of February 26, 1948, shows that plaintiff complained of arthritis, swelling and aching of both knees; that a clinical diagnosis of “rheumatic arthritis” was made; that an x-ray of the sacrolumbar spine showed a slight spondy-lolisthesis, a slight sclerosis of the articulations between the 4th and 5th lumbar vertebrae and moderately advanced sclerosis of both sacroiliac articulations; that an orthopedic doctor diagnosed his ailment as hydro-arthrosis, right knee, cause undetermined; spondylolisthesis, mild; arthritis, sacroiliac joints, mild. At this time his Veterans Administration disability rating was reduced to 10%.
13. In October 1948, he went to Washington, D.C., to see his brother. In Washington a retired officer informed him that he was entitled to retirement. On October 21, 1948, plaintiff wrote to the United States Air Force, requesting consideration of his claim for retirement, stating:
Upon discharge from active duty at Lincoln Army Air Field, Lincoln, Nebraska I was informed by the O.O. of the medical department of the discharge center that my physical condition was bad enough for retirement except that he had orders from Washington to let the reserves go through as they were. _ Since then I have found out that the reserves are entitled to the same retirement as the regular army.
14. On November 23, 1948, the Director of Military Personnel, Department of the Air Force, advised plaintiff that his record had been carefully reviewed and did not indicate a permanent incapacitating defect while on active duty.
15. After his visit to Washington, plaintiff moved to Houston in 1948. At that time.he had difficulty standing on his legs. On April 19, 1949, he was examined by the Veterans Administration in Houston, Texas. As a result of a
16. In 1950 the plaintiff was examined to ascertain whether he was physically qualified for service in the Korean conflict. He was sent to Brooks Air Force Base where, on September 9, 1950, after x-rays were taken of his knees and back, he was found disqualified by reason of “marked hydro-arthrosis, both knee joints. Sub Patella Crepitus. Patella bilaterally floats beyond joints . . . arthritic knees”. On September 12, 1950, plaintiff was released from active duty “having been found physically disqualified”.
17. By reason of his disability, plaintiff was, on November 11, 1950, transferred to the United States Air Force Honorary Reserve in accordance with AR 140-120, 20 February 1950. Section V of said Regulation entitled “Transfer of Individual between Active Reserve, Inactive Reserve and Honorary Reserve” provides as follows:
13. Physical Requirements — To meet the physical requirements for retention in the Active Reserve an individual must be physically qualified for general military service or general military service with waiver for minor defects which would not preclude the performance of general military duty.
14. Permanently Physically Disqualified Reservists — An individual found to be permanently physically disqualified for military duty will either be transferred to the Honorary Reserve, if eligible therefor, or will be discharged from the Reserve by the Area Commander.
15. Remedial Physical Defects — Individuals found to be temporarily disqualified for Active Reserve because of physical defects which are considered to be remediable within one year, will be transferred to the Inactive Reserve.
18. On February 21, 1951, plaintiff consulted Dr. Jesse W. Hofer of Houston, a specialist in internal medicine, diagnosis and treatment. Following x-ray of the knees and
19. On August 16,1951, the Veterans Administration examined plaintiff. The x-ray diagnoses were; Spondylolis-thesis, L-5; rheumatoid arthritis, lumbar spine and both sacroiliac joints, Marie Strumpell type (some narrowing of the apophyseal joints of the lumbar spine, with sclerosis and irregularity and partial obliteration of the sacroiliac joints) ; minimal hypertrophic changes medial condyles, both knees; joint effusion, right knee. The diagnoses were:
(1) Lumbosacral Area: Arthritis rheumatoid, mild, developmental anomaly.
(2) Left Knee: Arthritis, rheumatoid., at present mild.
(3) Eight Knee: Arthritis, rheumatoid with increased joint fluid and limitation of motion. Moderately severe.
Marie Strumpell type arthritis is the kind of arthritis that involves the sacroiliac articulation. X-rays taken by Dr. Hofer in September 1951 showed rheumatoid arthritis of the lumbar spine in both sacroiliac joints, Marie Strumpell type. After this examination, plaintiff’s Veterans Administration disability rating was increased to 40%.
20. Plaintiff again asked the Air Force for reconsideration and received a reply dated February 14, 1952, to the effect that under the Comptroller General’s Opinion of April 25, 1951, plaintiff could not be considered for disability retirement pay and that the Department ox Defense had submitted remedial legislation to Congress with reference to such cases.
21. On October 30,1952, the Air Force in a letter to plaintiff called his attention to the statute and regulation authorizing the Air Force Board for the Correction of Military Eecords to take jurisdiction where necessary to correct an error and remove injustice and enclosed a blank form of application to such Board. On December 11, 1952, plaintiff filed the application, attaching thereto the sworn statement of Dr. Hofer dated December 2,1952, addressed to the Secretary of the Air Force. On March 27, 1953, plaintiff sent
22. On September 17, 1953, the Correction Board notified plaintiff there was not sufficient basis for a hearing and plaintiff was never accorded a hearing.
23. It is stated in “Comroe’s Arthritis”, 5th Edition, 1953, a standard text on the subject of arthritis, that:
Spondylitis, in the broad sense, means arthritis of the spine.
[spondylitis] “is merely the spinal variant of rheumatoid arthritis ... a general systemic process in which the predominant manifestations occur in the spinal joints and their related structures.”
Because the real diagnosis is often overlooked for years the clinical features which characterize the onset are of considerable importance. The early symptoms of rheumatoid spondylitis are quite frequently mislabelled as muscular rheumatism, fibrositis, lumbago, chronic low back strain, idiopathic sciatica or even kidney disease. The onset is insidious in approximately 80 per cent of cases. Almost invariably the first complaints are referred to the lower back and consist of episodes of aching and stiffness, transient back pains or sciatica.
Involvement of sacro-iliac joints is a more important part of rheumatoid arthritis. In the vast majority of instances, but not in all, these joints are the first to be affected. Usually the first symptoms are referable to the lower back, and certainly the earliest.
* * * Months or years may elapse before clinical manifestations or x-ray alterations appear higher in the spine. The x-ray findings in rheumatoid spondylitis are quite characteristic. In general they reflect those pathologic changes which occur in the sacro-iliac and apophyseal articulations and in the paraspinal ligaments.
The cause of rheumatoid arthritis remains unknown.
24. In “Rheumatoid Arthritis” 1957, written by Charles L. Short, President of American Rheumatism Association, 1955-56, Walter Bauer, Professer of Clinical Medicine at
Strain was found to be the most common precipitating factor, with over one-fourth of the patients admitting to a period of unusual anxiety, extended physical exertion, or both, associated with the onset of arthritis. Although an attempt might be made to divide, these patients, according to whether the strain experienced was mental or physical, it seems likely in most cases that both types had been present. For example, work demanding long hours or of a fatiguing nature was usually accompanied by anxiety and tension.
25. The following Army Regulations were in effect at the times indicated:
(1) AR 40-105, 14 October 1942, superseded by AR 40-105,29 October 1946, entitled “Medical Department — Standards of Physical Examination for Commission in Regular Army, National Guard of the United States, Army of the United States and Organized Reserves”, provided:
(a) Sec. XVI. Spine and Pelvis, including Sacroiliac and Lumbo-sacral Joints.
Par. 47. Conditions which are Cause for Rejection: (c) Spondylolisthesis.
(f) Osteoarthritis of spinal column.
(h) Disease of sacro-iliac or lumbo-sacral joints.
Sec. XVII. Entremities.
Par. 49. Conditions which are Cause for Rejection:
(i) Diseases of bones and joints.
Sec. IV. General Examinations * * *
Par. 20. Conditions which are Cause for Rejection: g (5) * * * atrophic or hypertrophic arthritis.
(2) AR 40-100, 8 April 1946, superseded by AR 40-100, 3 January, 1951, entitled “Medical Department — Miscellaneous Physical Examinations’1"1, provided:
Par. 7a. “* * * i. In periods of national emergencies individuals may be accepted for original appointment or extended active duty who do not meet the physical standards for general military service but who are physically qualified for limited military service.”
*830 Par. 7b. “The following conditions are listed as an aid to uniformity in determining the physical qualifications of officers and current officers for original appointment or extended active duty in a limited service status.
(2)Non-acceptable for limited service * * *
i. Osteoarthritis, rheumatoid arthritis or acute or chronic arthritis from any cause.
(3) AR 40-1025,12 December 1944, entitled “Medical Deportment — Records and Reports of Sick and Wounded”, provided:
Par. 63g (4). “* * * advancement of such conditions as peptic ulcer, rheumatoid arthritis, diabetes mellitus, active pulmonary tuberculosis, and bronchial asthma (not established as seasonal) can be expected to have been caused by exertion, exposure or other adverse influence of the military service.”
(4) AR 140-5, 7 June 1941, superseded by AR 140-5, 27 October, 1949, entitled “Officer Reserve Corps” provided:
Par. _ 10. “Physical Examinations. Except where otherwise specifically provided, every applicant for appointment in the Officers Reserve Corps and every Reserve officer qualifying for reappointment, retention, promotion, transfer or active duty, as well as extensions of tours thereof, and upon relief from active duty, will be required to pass satisfactorily a physical examination of the scope prescribed by current War Department instructions.
The physical standards will be those prescribed in AR 40-100 and 40-105 * * * supplemented by current War Department instructions.”
(5) AR 605-10, 26 May 1944, superseded by AR 605-10, 9 March 1946, entitled “Commissioned Officers — Officers Appointed in the Army of the United States”, provided:
Par. 20. “Physical Standards. The physical standards for appointment and promotion, for retention of commission, and for entry upon active duty of an officer appointed in the Army of the United States under these regulations are those prescribed for the Officers Reserve Corps in AR 40-100, 40-105 and, where applicable, 40-110, all as supplemented or modified by current War Department instructions.”
Par. 22 “Waiver of Physical Defects. Deviations from normal physical standards that will not interfere with nor prevent the full and satisfactory performance*831 of the duty for which the individual is appointed, or is being ordered to active duty, and that are not of a nature likely to be aggravated to a disabling degree by active military service, may be waived in the manner and under the conditions authorized in current War Department instructions.”
(6) Tentative War Department Technical Manual TM 12-245, 1 October, 1945, entitled “Physical Reclassification, Retirement and Retirement Benefits for Officers''', provided:
“1. Applicability, a. Classification of officers for general or limited service, and hospitalization and disposition (including determination of eligibility for retirement benefits, in appropriate cases) of officers determined to be physically unfit for general service or for limited service will be governed by these instructions. * * *
2. Limited service status, a. Physical standards for commission and appointment of officers, warrant officers and flight officers for active (general) military service are set forth in Alt 40-105 and 40-100, respectively.
b. Due regard will be given to the provisions of the above-mentioned regulations in considering the physical qualifications of officers for retention on active (general) service. However, in this connection, the mentioned regulations will not be as strictly interpreted as for appointment or entrance on active duty.
c. Thus, officers may be found capable of performing active (general) service even though they have diseases, injuries, or infirmities which would disqualify them for original appointment, provided such diseases, injuries or infirmities are of such a nature and degree as not to affect adversely the performance of active (general) service (including oversea duty) considering the individual’s age, grade, branch and MOS.”
(The foregoing provisions are the same as contained in Paragraphs 2 a, b, c of War Department Circular No. 313, 12 October 1945, effective until 12 April 1947, entitled “Physical Declassification of Officers”.)
26. On September 10,1945, a new War Department Technical Manual TM 8-255, entitled “Terminal Physical Examination on Separation from Military Service”, was promulgated. The purpose of this Manual was to establish the standards and procedures to be followed in terminal physical examinations prior to separation and release from active duty. The instructions in the Manual applied to all instal
The Manual in Par. 10c(4) provided:
AE 40-100, AE 40-105, and ME 1-9 in effect will serve as a guide only in determining incapacitation for military service. Medical judgment will be followed in determining whether any defect is likely to interfere with satisfactory performance of work in civilian life. Procedure for separation of enlisted personnel on Certificate of Disability for Discharge will be in accordance with current regulations.
TM 8-255, 10 September 1945, was inconsistent with TM 12-245, 1 October 1945, entitled “Physical Eeclassification, Eetirement and Eetirement Benefits for Officers”. This manual provided that what constituted “permanent incapacity for active service” for Eegular Army officers likewise constitutes “disability” for non-Eegular officers, and in defining what constitutes incapacity for Eegular officers, entitling them to retirement, the Manual provided:
An officer is incapacitated for active service when he is permanently physically or mentally incapable of performing full military duty, field as well as garrison, in both peace and war. The fact that an officer may be capable of performing limited military service with the supply arms and services does not prevent his retirement under section 1251, Eevised Statutes, supra, by reason of being permanently incapacitated for active service.
The Act of April 3, 1939, 53 Stat. 557, 10 IT. S. C. 456, provided that non-Eegular Army officers “shall be in all respects entitled to receive the same retirement pay * * * as are now or may hereafter be provided by law and regulation for officers * * * of corresponding grades and length of service of the Eegular Army.”
Executive Order 8461, June 28,1940, amending Executive Order 8099, April 28, 1939, which provided that payments under the Act of April 3,1939, were to be made by the Veterans Administration, but the determination of eligibility by the Secretary of "War, contained this further provision:
The determination of all questions of eligibility for the benefits thereof, including all questions of law and fact relating to such eligibility, shall be made by the Secretary of War, or by someone designated by him in*833 the War Department, in the manner provided by law and regulation for Regular Army personnel.
CONCLUSION OE LAW
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover, and>his petition is therefore dismissed.
