This сase is before us on exceptions to the Commissioner’s report and for a decision on the merits.
Plaintiff originally enlisted in the Pennsylvania National Guard. His unit was called into Federal Service on February 17, 1941, and he was commissioned in the Reserve Corps on. October 9, 1942. While serving as a commissioned officer, he became incapacitated and was retired on a finding by a retiring board that he was permanently incapacitated for further service, but that his incapacity was not an incident of the service, which findings were approved by the Secretary of War and the President. He says that his incapacity was an ' incident of the service and he sues for the retired pay to which he says he is entitled under the law.
■ The Retiring Board found that the cause of plaintiff’s incapаcity was hypertrophic arthritis, and that “said incapacity originated about October 1941,” but because at that time plaintiff was serving as an enlisted man, the Retiring Board held that his incapacity was nоt “the result of an incident of service.” This holding was required by an Army regulation holding that a reserve officer was not entitled to be retired for physical disability which had originated during the time he had served as аn enlisted man.
Plaintiff took an appeal to the Secretary of War’s Disability Review Board, which affirmed the finding of the Retiring Board. The Secretary of War an<^ the President approved these findings аnd plaintiff, was retired without retirement pay on May 8, 1944. .-
*723 Thereafter, on August 3, 1950, the Secretary of the Army reversed his previous ruling that a reserve Army officer was not entitled to be retired with pay on acсount of an injury sustained during his service as an enlisted man. The Secretary of War’s ruling follows:
“1. I have this date changed the administrative interpretation of the act of 3 April 1939, with reference to the detеrmination of the line of duty status in eases of non-ReguIar Army Officers and warrant officers, so that it will conform to the method authorized in cases of regular Army officers and enlisted men.
“2. The purpose оf this action is to correct the unjust situation which has resulted in the case of officers, who incurred injuries and disease while serving as enlisted men, being denied the right of retirement as an officer. It is the intent of this change to insure in instances of continuous service where the cause of an individual disability originated during enlisted service but where the actual incapacities occurred during warrant or сommissioned service, that such incapacities shall be regarded as an incident of the officer’s service.
“3. It is requested that necessary action be taken to inform all concernеd of this change and to revise Department of the Army Memo 400-80-1 accordingly.”
The Adjutant General then notified plaintiff of this ruling of the Secretary of War and advised him of his right to apply for further considerаtion of his case by the Army Disability Review Board.
Plaintiff applied for' review and this Board held a hearing, which was adjourned from time to time in order to secure additional evidence. Finally, however, оn June 1,1951, this Board reversed its previous finding “that said incapacity originated about October 1941,” and held that “the date of origin of the incapacitating defect was prior to entrance into militаry service,” that is, prior even to his enlisted service.
The sole basis for this action of the Disability Review Board was plaintiff’s testimony before the Retiring Board and the Disability Review Board that he had sufferеd a fall while roller skating in the fall of 1940, prior to his active military service, and had hurt his back, from which he did not recover for about three days. However, the Army doctors who had examined plaintiff had testified before the Retiring Board on November 25, 1943 that this fall had nothing to do with plaintiff’s physical condition in 1943.
We held in Carlin v. United States,
This finding of fact was final, in the absence of newly discovered evidence or fraud, neither of which is asserted in this case.
But the Board’s conclusion of law from the facts it had found was not *724 finаl, because it was contrary to law, as the Secretary of War later determined. Section 5 of the Act of April 3, 1939, 53 Stat. 557, as amended, 10 U.S.C.A. § 456, which is quoted in a note below, 1 intended to give to reserve оfficers called into active service the same retirement rights as regular officers, and regular officers had long been held to be entitled to retirement pay whether the inception of their disability was during their enlisted service or during their commissioned service.
When the Secretary of War concluded that his former regulation was contrary to law, it was within his power to set aside his decisiоn denying this officer retirement rights, and to render that decision required by the law and the facts found by the Boards. To do this, it was entirely unnecessary for him to refer the matter to the Disability Review Board. He could have acted then and there on the facts already found. These findings of fact, in the absence of newly discovered evidence or fraud, and the like, were final and conclusive and cоuld not be changed. On the second hearing the Disability Review Board had no power to change these findings of fact, no newly discovered evidence having been presented. Its sole power was to reverse, subject to the approval of the Secretary, the former erroneous conclusion drawn from those facts.
Since we are in agreement that the original actiоn of the Retiring Board and of the Disability Review Board and of the Secretary in approving them, in holding that this officer’s disability had not been incurred in line of duty, was contrary to law, we must set it aside and render thаt decision which the law and the facts require.
We hold that, this officer’s disability having been incurred in line of duty during his military service, he is entitled to be retired with pay as provided for by law.
Plaintiff is entitled to recover retired pay from the date of his discharge on May 8, 1944.
But defendant says we have no jurisdiction to decide the issue presented because plaintiff’s claim is barred by the statute of limitations. Plaintiff was discharged by order of the Secretary of War on May 8, 1944. If this action was wrongful, plaintiff had six years from this date to resort to this court for a correction of the wrong. He did not do this within that time. Ordinarily this would bar his right of аction here.
But an unusual thing happened in this case. The tribunal that was vested by statute with the right to decide retirement rights of officers, and which had issued the regulation on the basis of which plaintiff was denied his rights, decided that the regulation was wrong,’ and changed it to accord to officers such as plaintiff the rights to which they were entitled under the statute. Not only this, but it then notified plaintiff he had a right to ask for reсonsideration of his case. This was the tribunal which had the right to decide plaintiff’s case originally, and, at least in its view, to decide it later after its erroneous regulation had been changed.
Then when it caine to pass on plaintiff’s case in the light of the new regulation, it did what we have held it had no right to do, to wit, it reversed its former finding of fact.
This erroneous action, we think, gave plaintiff the right to cоme into this court for redress of the wrong done him on this last hearing of his case. Plaintiff *725 brought his action within six years from this time.
Plaintiff’s right to resort to this court is based solely on the denial of his statutory right to retirement by the tribunal vested with authority to decide his claim. We had no right to decide his claim in the first instance; our jurisdiction arose only after this tribunal had finally acted.
The suggestion of the Secretary of War that plaintiff’s case be reopened shows he was not through with it. He did not get through with it, as it finally turned out, until the second decision of the Disability Review Board on June 1, 1951, and his approval of its action. It was then that our jurisdiction began. Plaintiff’s action was brоught within six years from this time.
Under these peculiar facts, we do not think plaintiff’s action is barred. See Earle Goodwin v. United States,
The entry of judgment is suspended until the incoming of a report from the General Aсcounting Office showing the amount due, computed in accordance with this opinion and the stipulation of the parties.
Notes
. “All officers, warrant officers, and enlisted mеn of the Army of the United States, other than the officers and enlisted . men of the Regular Army, if called or ordered into the active military service by the Federal Government for extended military servicе in excess of thirty days, other than for service with the Civilian Conservation Corps, and who suffer disability or death in line of duty from disease or injury while so employed shall be deemed to have been in the active military service during such period and shall be in all respects entitled to receive the same pensions, compensation, retirement pay, and hospital benefits as are now or mаy hereafter be provided by law or regulation for officers and enlisted men of corresponding grades and length of service of the Regular Army, including for their dependents the benefits of section 903 of this title.”