*1 Judge, JONES, and LIT- Chief Before WHITAKER, TLETON, MADDEN and Judges. LARAMORE, Judge. LITTLETON, recover sues to Plaintiff May pay from tired ground capriciously arbitrarily, and unlaw- acted when, fully on November of a mili- the recommendation basis contrary tary officer recommendation Rec- the Correction board ords, denied record. correction pleadings and docu- basis theOn parties, by the submitted ments *2 318 motions defendant filed cross said in our recent in the case decision Furlong summary judgment. F.Supp.
for States, v. United acquired jurisdiction this court summary Defendant’s motion claim disability pay retired judgment is dismissing petition “* * * * * * grounds: (1) Sec- based after the on two * * * retary acted, claim, any, April or failed or if accrued on * * * arbitrarily plaintiff refused to released act date on which phys- capriciously contrary law; or to inactive to not * -x- -x- » disability, ical barred is therefore six-year un- of limitations statute Accordingly, plaintiff’s we hold that 1954; petition May der a filed on alleged arbitrary claim based on the ac- (2) any plaintiff has failed that in event tion Secretary.of the,Army is not to can state a claim on which relief barred the statute of limitations.1 granted Secretary because the Army through required was not to act facts, unusual, which are not are granting employees civilian boards or dispute. Plaintiff, a former commis- n denying plaintiff a correction Army sioned officer of the of the United military record. States Corps, and the Officers’ Reserve On the limi- contracted matter of the statute of sclerosis while serv- urges tations, proceedings defendant on extended active between before a essarily will nec- Correction 1948. Board The first this running toll the of the statute were manifested alleged Regular nor arbi- will limitations enlisted service in the trary give serving Missoula, decision rise to such Board while at Fort Montana, fresh began cause action since resort to at which time he ex- perience permissive periods that Board is man- and hot of double vision which datory. case, ultimately giving required up because instant his peculiar Army sport facts and circumstances favorite of baseball at which herein, very expert.2 reported will be discussed later Cor- Plaintiff only proceedings hospital rection were the station where the diffi- n ones open only culty plaintiff, to this and the with his vision was found to be glasses. Later, administrative action taken on his ever correctible with there disability pay spontaneous claim for retirement with remission of the dou- vision, ble periodic connection but there .were mild n that Board. Furthermore, plaintiff’s recurrences thereafter. At about time, plaintiff began experience cause of action is not al- same based on the leged arbitrary action of uncontrollable the Correction tremor of head alleged began but rather arbi- when he became excited. He also trary experience difficulty using action of the hands 1955, acting attempting when plaintiff the Correc- to write. From 1938 independently tion completely Board but has never fact been free any contrary length findings, conclusions considerable of time from symptoms. recommendations of such the above Board. As 1. The writer of this 47a, also 46 Stat. 5 U.S.C.A. § petition timely pay view that falling because with the first installment disability pay May 31, 1948, this claim for retired due on first which date is with- years pe- in ‘six accrued on the date on which of the date the first on which the payment pay tition herein was filed. of such would have been paid lie been award batting 2. Plaintiff’s first full season aver- upon ed retirement his release age serving was .335. It was while April 27, from active If Alaska in 1940 that was forced retired, had been he would have sport to discontinue the of baseball be- May 1, 1948, been retired cause intensified of double vi- Uniform Retirement Date Act of sion. Although prolonged . more consulted intense than previous concerning symptoms, Company medical officers attack. doctor *3 and, recognized plaintiff his referred disease was not ato Veterans’ Admin- September 1942, during period eye of specialist istration and, after exten- symptoms, was com- examination, plaintiff remission of he sive all was told that Infantry, lieutenant, missioned a second his vision was and was ineorrec- 20/200 1942, plaintiff glasses. went AUS. In tible Later, November this attack where to plaintiff’s Theatre subsided China-Burma-India and vision returned having February he remained until normal. He was recalled to active cap- by duty of the rank time achieved on October and ac- was During period cepted tain. duty. extended active peri- 1945, plaintiff experienced During plaintiff’s second tour ac- of odic recurrences vision double duty began experiencing tive further tremors of hands head. The symptoms consisting be- recognize medical did not officers coming emotionally upset over minor ease, symptoms did not and since the matters up- which theretofore had never intensity frequency crease in him, periods set of lack of control of perform period, plaintiff was able kidneys elimination bowels, peri- outstanding in an duties pronounced ods of impoteney. sexual Al- period covered manner. The 1942-1945 though plaintiff sought the advice of ci- plaintiff’s combat service overseas diagnosis military doctors, vilian and no symptoms is best attitude toward and, April 27,1948, plain- reached explained in his own words: again tiff released to inactive “* * * time, by I did not At this physical disability. reason of I the source of the trouble. Shortly thereafter, began know plaintiff to ex- my perience wished commission to retain legs numbness in his after exer- cise, I returned to the feeling did not want to be and soon he lost all in his casualty. legs United States as a hips from the down. Plaintiff’s dou- normal, daily of the service events ble permanent, vision then became participated, notably the by in which I longer plaintiff was no able to> Myitkyina campaign Ma- By with the work. time could walk rauders, were such as to minimize only apart with his feet wide and with stagger. minor troubles like vision and double impossible bad It was for him times, tremors. we all had trem- At to walk on an uneven surface. He had light my experi- ors. later depth perception lost all and could not ence, however, I feel that the exces- eyes period focus his even for the brief humidity jungle sive climate required key to insert a in a lock. may helped my infirm- hold specialist private In June ities in restraint time.” for a neurology plain- made an examination of Immediately as; upon diagnosed his return to the plaintiff’s tiff and February United States in 14, 1953,, sclerosis. On October of hand tiff had a violent attack tremors. the Veterans’ Administration rated Upon his release to the fol- inactive percent by lowing December de- sclerosis. scribed his the medical of- May 28, 1954, plaintiff On filed his ficers, but no was reached original petition indicating in this court released, by reason of paragraph VII thereof that he in- disability. present tended to to the. plaintiff’s release After Board Correction of by employed he was the Chevrolet Records for correction of his record in Division General Motors where in with the facts accordance and circum- he suffered an attack of double petition. vi- stances set forth Fol- blurring of vision sion lowing favorable action the Corree- disease; tion and its later reversal it conformed to leave plaintiff, practice sound medical find Sep- typically court, peri- petition characterized amended disease ods, quite prolonged, sometimes of remis- tember onset, sion after its the case first as in applica- Upon the basis plaintiff; sclerosis is correction, supporting tion for usually progressive there documents, Cor- time; present cure known for it at the *4 accorded Records rection of August 1954, 4, of Dr. affidavit dated hearing plaintiff be- on June urology, Sabin, specialist Hilbert S. in consid- fore The evidence five members. Washington, C., stating D. that on the plain- Board consisted ered history personal basis and medical brief, tiff’s and to which plaintiff, opinion of that he was of the officers, affidavits of three attached multiple in contracted retired, con- one two cerning and 1938; symptoms the disease of knowledge plaintiff’s their of are more single organic varied than those of 1938-1942; symptoms the affidavit from of central ner- disease general practitioner had medical who system; pro- vous the disease is through 1951, plaintiff from 1947 treated gressive and incurable. describing symptoms of nervousness his considered Correction Board also generalized in and and weakness 1947 summary prepared by a case Harry Examiner legs 1948, dou- numbness of and and his transcript Shooman, M. tes- 1949; of Dr. vision in the affidavit ble given timony full and before the neurology, Daniels, specialist L. E. plaintiff’s AG 201 file his medical the summer of examined who records. diagnosed 1953 his as mul- disease paragraph summary In 14 case sclerosis, tiple disease he char- which examiner, of the Correction Board refer- progressive incurable acterized as ence was made to memorandum to the system; disease the central nervous Surgeon Correction eral, Gen- plain- Board from the 9,1953, letter dated November 16, dated December 1954. The tiff from Veterans’ Administration plaintiff’s appli- memorandum concerned notifying plaintiff award had cation a correction of his record to him re- made to been sulting 100% totally he at the show was multiple sclerosis incurred from duty by time of relief from active service; 22, the affidavit dated June multiple sclerosis contracted Chodoff, specialist Paul Dr. serving duty. The Cor- while on active psychiatry, Washington, neurology and part Board Examiner forth rection set C., per- he summarized the D. Surgeon the memorandum of the history plaintiff, medical sonal as follows: cluding summary hospital final “* * * neurological examination made the records indicate applicant successfully Administration Hos- Veterans’ Denver served August 1953, being military service, pital and stated tours of his separated history was basis of he for reasons other than suffering opinion physical disability, was 29 Dec. sclerosis, multiple Apr. incurred sometime in on another tour 1938; ORC, appointed Capt, also He Dr. Chodoff stated that history, AUS, discharged with the remissions and tiff’s Oct. expira- disorder, reason of exacerbations appointment. By of lesions at various loca- evidence of Res tion Jul. system, symptoms developed central nervous in the had tions degree tendency for the attacks to become such a as to di- warrant the incapacitating severely agnosis more sclerosis on complete, quite typical coveries less basis of sufficient soundness to ex-
«J2I personal history. prior The records reasonable doubt. and medical elude Just compatible hearing, symptoms indicate that Dr. Chodoff examined early developed George Washing- plaintiff personally with disease at University Hospital laboratory service. Addi- while ton where suffi- performed tional were not of studies were in connection per- severity preclude cient Chodoff found examination. Dr. military duty suffering formance of to be unrecognized. passed stage. sclerosis in an an- advanced question does swer record substantiate that as what in not, fact, mili- rendered unfit condition tary his service December Dr. Chodoff an- separation. How- opinion plaintiff the ever, swered time that in his regulations list sclero- contracted the disease in 1938 and had disease, continuously sis as a suffered from the disease may time; *5 un- from which render an individual that military be- It having service. in abled of reason this fit for presence lieved the disease the which is one “which can break if of any had in case out been this at known moment or time.” In an- appl’sseparation, at the question, time swer to another Dr. Chodoff of probably he would been neurologi- have opinion testified that in his a separated 1945, prior the cal examination in laws, physical disability tiff’s first the release to inactive would of rules, regulations policies diagnosis then have in resulted of being totally very disabled.” sclerosis least,- and that at the the effect presence of the disease would have been supplied.] [Italics strongly suspected at time from report excerpt of above the plaintiff’s history symptoms. of Dr. examiner for Correction Board the the nearly Chodoff testified that there was appears quotation to be a from the direct as much known about Surgeon of memorandum the General and in 1945 as in 1955 and the correct represent opinion does the ex- of quite could have been made undertaking merely aminer who was at that time. Asked account for well the documentary summary of make evidence fact that-no Ad- Veterans’ use physical examination had ministration revealed the by expressing opinions of own. of this disease hearing At before the Correction January 1953, as late as Dr. Chodoff concerning testified stated that no examina- history personal and medical cerning his con- plaintiff by tion was conducted on the symptoms. Chodoff, Dr. either the or the Veterans’ Admin- neurology psychiatry specialist istration until fall of whose affidavit was before the plaintiff’s symptoms so must been application, part also testified. quiescent prior at the times exam- Among qualifications, Dr. Chodoff simply inations suspect doctors did he was the consultant in testified neurology presence. its Until some time Reed for Walter Hos- having early 1953, plaintiff was still in. Administration, pital, the Veterans’ symp- occasional remission Hospital, Alto Veterans’ asso- Mount toms. Georgetown neurology Hospi- ciate at School, Marland, specialist E. tal Medical codirector of Mul- Dr. Albert George tiple and mental nervous diseases also Center at Wash- Sclerosis testified ington University Hospital, Board. Dr. Marland before had examiner been neuropsychiatrist Neurology examiner and Board of for the American Psychiatry. Service, Public Health Chief Chodoff’s Dr. affidavit Service, basis District of the Health been made on had 4th Public ability pun- Admin- had the to take to the Veterans’ he later transferred charge continue his work veterans ishment and to and was istration gold despite Hospital. that. He is not of the Since Elizabeths at St. type, I have had been member brieker seen Dr. Marland lot. rather ac- Health for lie minimized than Mental Commission on He centuated his troubles. quently subse- a consultant Columbia and District of increasing difficulty Department Correc- had but say psychiatry professional as a requires stability, Dur- soldier which I of Columbia. District tions for the think carried I Marland had Dr. time approaching specialty and private practice in his 100% Georgetown taught that time.” psychopathology at Marland University Dr. Medical School. Dr. Marland testfied that personally. He examined diag- sclerosis is sometimes difficult to opinion that he was testified stages early because vari- nose its when as of December separately, ous and some taken duty, was released inactive was first nearly together, compatible with are other dis- despite fact 100% complaints. eases or From his knowl- performing his that he was edge require- disease and of the outstanding and con- in an manner duties military service, ments the witness upon so his recall to tinued do any Army was of that had following gave duty. Dr. Marland recognized plaintiff, doctor the disease *6 opinion: reasons for this totally plaintiff he would have considered He disabled as time. also stated of that disease is afflicted with a “He a that if had had always epilepsy, is like not which service, dis- in the examination while early especially manifested, in the diagnosed. ease would have In been days. re- You have are termed what opinion witness, plaintiff’s double of this complete. missions, are never but began 1938, vision which and recurred particular time that [December At thereafter, from time to time was with had been afflicted he 1945] by Army found doctors not to be correct- interfering eye with disturbances by glasses ive “should have some- reading. to read He was unable body suspicious,” double vision because He short of time. more than occurring poi- results from in an adult dizziness, un- periods of became had soning multiple He sclerosis. driving car, unable he certain was opinion was of the had been things judge distance to coming poorly examined. him, such base- toward as a moving things than closing ball slower In his statement to the Board having He was some disturb- hearing, plaintiff’s that. re- at counsel gait. difficulty He had ance with ferred to the fact that had writing performed military duty a tremor with which was fact beginning well, performed at and also manifested and that the it long inability suffering continue for an from which he was then went urged period Had time. some disturb- the Board undetected. to con- He gait, not As I per- but much. ance say, sider the because a fact that man things always necessarily phys- these forms he is not epileptic ically fit, peculiarly manifest more than an this is true malignancy suffering condition or is mani- of a man from the disease of continuously. estimating multiple sclerosis, totally unpre- fest disabilities, it is well to take into He dictable and incurable. called atten- Surgeon fact consideration was tion to memorandum of the professional soldier and I under- General to the effect that had the disease, can be that it shown that he stand detected good probability soldier which indicates in all would have totally duty time of been considered his relief from active regulations pol- April laws, 1948, by rules and reason of sclerosis; origi- incapacity time. icies in effect that the '; incapacity Counsel also called attention of nated that such Ad- service; Veterans’ Board to the fact that the incident that the rating of incapacity ministration has ‘minimum result in- of an service; appli- sclerosis. cident of 30% incapacitated cant became for active testimony and the On the basis service on 27 a com- Board, that record before the Correction rating percent bined of 100 as deter- 27,1955, find- June its rendered mined under Section Public Law findings ings conclusions. Congress; 81st by summary adopted the case reference capacity was incurred in combat examiner enemy States, with an of the United Surgeon General of December explosion nor was it result of conclusions reached instrumentality of an of war in line disability (1) duty; due contracted “b. he was relieved from ac- duty while on active but that the tive reason of disease was undiscovered ability April 1948, on 27 and cer- physical examination at the time of his eligible tified as pay retirement April 27,1948; relief from active provisions benefits under the (2) been the disease detected April 1939, grade of 3 Act in the separation at the time of Captain; and probability tiff in all been would have separated phys- prior “c. that he elected 1to Oc- reg- disability rules, laws, ical under the tober 1954 to receive policies ulations and pay then *7 per- tirement centage based on his effect, being disabled; (3) totally as at the time of applicant’s symptoms that in 1948 retirement, such as determined un- previous can now consid- provisions thereto der the of Public Law justification as a Congress.” ered for the 81st although multiple which, sub- Two of the Board members noted their ject improvement, must be change dissent no recommended regarded progressive and is as in- Among plaintiff’s record. the reasons curable disease the central nervous set forth as bases for the dissent was the system; (4) that failure of the De- fact that ac- relieved from partment diag- Army properly duty being physically tive after found disability prior nose the to relief qualified in examinations which the dis- separate applicant active and to “complete senters stated had included “was, disability, reason of hospital note, passing, studies”. We is, unjust;” (5) in error and hardly these examinations were plaintiff’s incapacities are ratable “complete” admittedly since no neuro- percent disabling as pro- 100 under the logical examinations were made. An- visions of section Public Law reason advanced in the dissent was Congress (the Compensa- 81st Career medical witnesses did not tes- tion Act 63 Stat. 37 tify perform was unable to 281). U.S.C.A. § Board made the any his duties at time nor that the med- following recommendations: repeated- examiners were in ical error in Department “That all of the ly finding physically qualified. him As J.'Proper Records of Francis pointed out earlier in our discussion be corrected to show: testimony hearing, at the Board permanently “a. that he was although witnesses medical testified that capacitated actually performed military active service at the
324 July multiple 1953 itself sclerosis until duties, disease the nature impos- years more his second than five after since it him rendered duty. place his relief from active time or what to tell at sible sight, depth ability use perception, or [Army ABCMR Board for the walk, hands, him. desert would Records] Correction also testified The medical witnesses show a 3-2 records to vote corrects during neurological examination physically by multiple he was unfit de- would have tiff’s active sclerosis, 100%, on relief tected duty April that he and pay as symptoms as far back vision double captain certified for as retired possibil- indicated the 1938 ity should Mr. and Mr. as of that date. Taft medical sclerosis. Bugg dissent, concluding he had physical ex- testified that witnesses thorough many physical exams dur- doctors aminations January his service and on incomplete poor were in er- not dis- all of which found him physi- finding plaintiff repeatedly ror cally abled, that to now find he was military qualified for service.- reality abled is consonant with commenting perform upon his duties he did Our reasons for manner, dissenting opinion excellent the two diagnosed members, sclerosis was until lacked we think 5^2 separation years and there after his support before the in the record apparent were not later will become sufficient permit diagnosis; service to such it opinion. is a case for VA not for retirement. Brig. July 21, 1955, E. C. Mc- Gen. On agree fully minority. I with the Assistant, Special Neil, (Ret.), A. U. S. There he now has mul- doubt OSA, memorandum to addressed tiple performed But he sclerosis. Secretary of rela- Assistant years for almost five offi- plaintiff, in which case of this tive to the including cer, combat service briefly plaintiff’s he summarized record, Burma; ratings four ex- including hospitaliza- his various superior. cellent and With this noted that The memorandum tions. long done, duty excellently record Surgeon that had had indicated ’ say can now how sclerosis been *8 separa- incapacitated physically 1948, plaintiff would detected diagnosis on a tion based separated 5% total have been for probably years No in- afterwards. doubt the disability. memorandum physical The múltiple ception of sclerosis came stated: then service, he was in the as while hind- “By his own statements sight shows, in- now but-he was not by briefs, who statements others by capacitated it. He became reports from him and served with capacitated properly is 1953 and a doctors, applicant contends civilian for VA. VA case examined him starting 1946 and 1949 but found no ratable vision, episodes of double he had disabilities; it not till Octo- head, emo- the hands tremors him VA rated ber 100% upsets, weakness of the kid- tional neys, for sclerosis. legs, of the etc. numbness denying Directive is at- baffling relief Multiple signature.” sup- [Italics tached for symptoms ease, of which come the plied.] why go progress. That is but things of interest medical witnesses are the and other Several SGO inception testimony excerpt. by say it had its heard above now first double vision. Board was to the effect that there 1938 when he had the n early diagnosed as condition was not sufficient His diagnosis multiple September permitted Orders dated 10 to have might sclerosis; well it directed: the general by suspected even a have been in the case “That of Francis J. periodic practitioner, because Proper, application his undated for only vision, spells and that- of double military records, correction of for way account witnesses could September 1953; be, ceived 17 prop- Army doctors of the the failure hereby is, denied.” diagnose erly the fact the disease was September 1955, by On leave during pe- were made that examinations court, pe- filed his amended symptoms, and riods of remission of the among alleging, things, tition subjected to time was no that at Secretary Army Assistant latter a fact, examination. This authority deny plaintiff’s ap- no in law to by all, state- refutes the admitted plication. 28, 1955, On November by ment dissenters Secretary Army issued a or- many new thor- McNeil that ough received substantially language,3 der identical examinations directing for correc- and the Veterans’ Administration. tion of records be denied. clearly estab- record before the Board plaintiff’s symptoms, lished position Defendant takes the secret, no medi- about which made under the facts circumstances of this cal examination would considered claim, cog case does not have a thorough which did include a neuro- court, nizable for this re logical study suffi- and that there were pay. tirement Defendant advances sev symptoms present during plaintiff’s cient grounds First, eral conclusion. permitted service to urges defendant that under the Act of multiple sclerosis. 555, 557,* provid 53 Stat. important Another fact about non-regular Army retirement above memorandum is that it officers, September Act of by military was rendered officer who 26, 1941, 55 Stat. 10 U.S.C.A. § physician, was not and not 12; 456a, 38 U.S.C.A. Executive § employee Department Army. (April 28, 1939), only Order 8099 The memorandum order and the attached Secretary Army may determine prepared for and directed to As- eligibility benefits, for retirement includ Secretary sistant not to ing relating questions of all law and fact Secretary. eligibility. passing to such Without July 22,1955, day following On the matter of whether in all circum memorandum, date of General McNeil’s Secretary’s stances the determination of the Assistant non-eligibility for retirement benefits un signed the order attached to memo- final, those will be der Acts note *9 randum. The order read as follows: this claim arises not under the Acts of “Having findings, 1941, considered the but rather under section Legislative (a) Reorganization conclusions and recommendations of of the Army 25, 1951, 655,† the of Act of Board for Correction October 65 Stat. providing Records in of the case the correction of n records Proper, by Francis J. 0-1 294 of the Secretaries the various provisions “acting through under the of Section 207 boards services of civil Legislative Reorganization of employees.” While, the ian officers or as de (Public out, points Act of as amended fendant the 1939 reserve offi Congress) 82d Law and General cer retirement law silent on the man- * changed language 3. The new order the Now 10 U.S.C.A. §§ provisions “under the of Section 207” to 8687, 8688, 8721. authority by “under the vested ine * * § † Now U.S.C.A. Secretary deter- made manifest the correction shall it the
tier which benefits, injustices to be eligibility those errors and for retirement mine thus know of the hands civilians. We not Board the Correction statute decided, case which issue has been provides the correction silent and opin- through Comptroller in an but the civilian boards. made shall be (1952), reported Comp.Gen. fol- 207(a) part ion provides in as at 32 Section change in mili- held that tary correction lows: independently con- record made Army, the . “The Secretaries findings trary recommendation N.avy, Sec- and the Air Force made was not the Correction * * * retary Treasury accordance section 207. with up spectively, procedures set through by them, acting boards sug hand, not On dowe the employees officers may Secretary gest not overrule respective Departments, are their Correction the recommendations any military or authorized to correct findings Board the Board where judg- their naval record where in justified by on which record are not the necessary cor- ment action is such findings takes made. Defendant the injustice, remove an rect an error or record position the in this case final shall and corrections so made justify find Board did not before the on all officers of the and conclusive jus ings majority, by but did made except procured when Government by dissenting tify findings by made ** fraud; means of [Ital- by members statements supplied.] ics As General McNeil his memorandum. Secretary herein, record before the instant case the noted earlier findings denying fully justified plaintiff’s the Board justify military record, majority did and did not correction through Army support of civil- made to the dissent not act statements employees required reached ian officers or or the conclusions dissenting contrary, the On General McNeil. Both the above statute. the Secretary disregard- wholly McNeil Board members and General of the' finding plain civilian board that stated that the record showed that ed thorough totally perma- many physical exam tiff plaintiff had been de nently the time failed to in line inations disease. established to inactive The record of his release tect and, acting through apparently were not thor the examinations ough plaintiff’s regular officer, because, known refused retired symptoms, in manner record examination to correct dissenting strongly the civilian board. But was indicated. The recommended Secretary urges that did also members and General McNeil defendant plaintiff’s symptoms board a civilian act deed to stated indicate the recommendations sufficient to merely advisory, that, Board were The record established be Correction leaving disease. ginning accept 1938, plaintiff free demonstrated findings favorably and recom- on the classic 'act mendations, ignore them, person he saw or to made medical which should have *10 interpretation suspicious, of section 207 Such and which were sufficient nel fit. through “acting boards the disease. the words makes warrant employees” super- officers McNeil stated it was un leg- per act Neither the itself nor its to find realistic that a man who fluous. history outstanding military such an inter- such serv warrants formed islative injustices serving. incapacitated errors or Since the icé while so pretation. was might require were clearly correction in before the Board The record Congress incapacitating by military, originally nature dicated e., multiple sclerosis, Secretary i. because of appellate would anas court unpre- the nature of this disease and its review the decision a lower tribunal. suffering dictability, denying person decision, from it It has reviewed his might, any warning, consequent- lose control and, without retirement bodily hands, legs, vision, ly, pay, only question and retired not on a stability, effect, functions and law emotional but also on the facts. In apparent says majority minority such a opinion condition it seems that the danger he would to himself Mil- both for Correction of serving itary major- wrong, with whom he was Records was to.others duty. ity opinion right, fact that was Secre- power, tary adopting sheer will and the for- arbitrary symptoms majority opinion. tuitous circumstances that the during com- did not break out at time say Secretary But can how bat, en- when lack of control would arbitrary adopting capricious danger others, was such able to render minority, rejecting the view of the military service, mean does not excellent maj ority the view of the ? Su- Would the incapacitated that he such preme justified saying Court be the disease. judges court, of this who had dissented opinion We are of the that on the rec- majority, from the acting find- ord before Correction arbitrarily having in not con- ings majority fully , majority? warrant- curred with the Secretary, ed and that without is It not for us to determine whether benefit of additional evidence to majority of the Board for Correction contrary, proper acted without authoriza- Military minority Records or the tion, contrary law, 207, supra, section correct. Jurisdiction to determine regulations Depart- and the of the War right officer’s to retirement is vested ment, ignoring findings those Army, Navy the Secretaries of the denying plaintiff correction of his mili- Force. It is not Air vested in us and we tary records as recommended the Cor- right no to review their decision Board.4 rection they unless we find that had acted arbi- trarily. is my Plaintiff disabil- opinion, entitled recover we can make ity pay accruing finding retired since his relief such in this case. to inactive agree Nor do I is judgment is entered to that effect. De- bound action of the Board for Cor- summary judgment fendant’s motion for Military Legis- rection Records. The is denied. Plaintiff’s motion for sum- Reorganization lative Act of October mary judgment granted. The case (65 655), Stat. does not vest in the to a remanded commissioner of the court Military boards for Correction of Rec- determination of the amount due right ords to correct an error or pursuant 38(c), to Rule 28 U.S.C.A. justice. authority It vests that in the is so Secretary. It ordered. merely permits It the Secre- tary up such set boards aid him JONES, Judge, MADDEN, Chief determining whether or not an has error Judge, concur. injustice been committed or an done. 207(a) part: Section reads in Judge WHITAKER, (dissenting). “The Secretaries of the majority opin- Navy, What the has done its and Air Force and the Secre- reviewing tary ion amounts to Treasury the actions of (with respect Army Regulations relating necessary (paragraph 15-185 tion when deemed regulation 20). Board for Correction This designed would seem to have provides, Records, among things, been case such as this *11 Secretary may Secretary disagrees return the rec- where with the findings ord to the Board for further considera- conclusions the Board. judg- arrive partment in order to Guard), respectively, Coást'
to the’ * * * judgment ment; but, all, to be after correct authorized are Secretary’s judgment. rendered is the military where any record or naval judg- required bow to He is nec- judgment action such their and em- officers subordinate ment of his remove error or essary correct ” * * * judgment ployees unless their coincides injustice, [Italics judgment. with his ours.]. jurisdiction correct This vests this, it cannot I If am correct injustice in the to remove error or arbitrary in said that the ‘ they says that Act Secretaries. minority and adopting view to correct “are authorized majority rejecting this view judgment in their record or naval where up. cannot be said It board he had set necessary” etc. action such arbitrary unless that his action was the above accept judgment of I have omitted him to What bound law procedures set “under quotation reads: does. board, I think it do not acting them, boards up foregoing reasons, respect- I For the employees of their officers civilian fully dissent. Departments.” me this To spective nothing Secre- more than that the means LARAMORE, Judge, joins fore- may in the tary aid of this board seek the dissenting opinion. going employees of his de- officers