147 F. Supp. 497 | Ct. Cl. | 1957
delivered the opinion of the court:
This is a suit to recover installments of disability retirement pay which plaintiff alleges were wrongfully and illegally denied him by the United States, acting through the Secretary of the Air Force, from December 24, 1945, following his release from active duty without being retired for disability, to the date of any judgment herein, less any disability compensation received by plaintiff from the Veterans Administration.
This case was before this court previously on defendant’s motion to dismiss the petition on the ground that it was barred by our six-year statute of limitation. Following this court’s decision overruling defendant’s motion to dismiss (128 C. Cls. 608), plaintiff’s case was tried on the merits before a commissioner of the court.
It is plaintiff’s position that his physical condition at the time he was released to inactive duty in 1945, was such that he should have been retired for physical disability and have received disability retirement pay as provided by statute, and that the action of the Board for Correction of Military Records and the Secretary of the Air Force in 1952 denying his application to have his military records corrected to place him in the status of a person retired for physical disability was, under all of the fact and circumstances, arbitrary and therefore illegal. .
As a result of plaintiff’s fall to the earth, he suffered injuries to his head and body, including concussion of the brain, fracture of the left skull and jaw, fracture of the right ankle and fibula, ruptured artery in left temple area, ruptured ligaments in right knee and dislocation of the knee, and anterograde amnesia for several days.
From the time of his injury on January 22, 1945 to October 28, 1945, plaintiff spent most of his time in hospitals or on convalescent leave. On October 28,1945, plaintiff underwent a terminal physical examination which stated in pertinent part as follows:
40. Bones, Joints, Muscles.- — Unstable rt. knee joint symptomatic. N. D.
1ft. Neurological. — Normal.
48. Psychiatric.- — Normal.
5ft Is Individual Permanently Incapacitated for General Service? — No.
Plaintiff departed on terminal leave on November 6, 1945, and was relieved from active duty and reverted to inactive status not by reason of physical disability effective December 24, 1945. He had been appointed a Second Lieutenant, Air Corps Reserve, on October 30,1945.
On March 14,1946, plaintiff was rated 30 percent disabled from December 25,1945, by a Veterans Administration rating board, due to an unstable right knee. On August 19, 1947, plaintiff was again rated by the Veterans Administration and awarded a combined rating of 30 percent from December 25, 1945 to January 9, 1947, and 60 percent from January 10,
From the date of plaintiff’s appointment in the Air Corps Reserve until February 12, 1949, plaintiff served in the Reserve on a flying status and accumulated 178 retirement points. During this time he flew AT-6 airplanes. On February 12, 1949, plaintiff was found to be physically disqualified for flying duty with the Reserve and on June 80, 1949, he filed an application to be assigned as an honorary member of his Reserve unit because of his disabilities.
On May 16, 1952, plaintiff filed an application with the Air Force Board for-the Correction of Military Records. This application requested that his records be corrected as follows:
To show that I was permanently incapacitated for active service at the time of my separation and should have been retired for physical disability with retirement pay.
The Board convened on November 5, 1952, to consider plaintiff’s application. The plaintiff personally appeared before the Board to give testimony and was represented by counsel. Plaintiff called no witnesses other than himself at the hearing. The Board rendered its opinion on November
15.1952. In making its decision the following documentary evidence was considered by the Board:
(1) Applicant’s request for corrective action dated May 16.1952.
(2) Brief of Examiner, Mr. Norman A. Compton.
(3) Transcript of testimony.
(4) Master personnel records of the applicant.
(5) YA medical records.
The findings of the Board of three members were unanimous. Such findings and recommendation are quoted in full below:
1. The applicant has exhausted all remedies provided by law or regulation.
2. The applicant was appointed Second Lieutenant, Army of the United States, 23 May 1944, having com*279 pleted the prescribed course of Pilot instruction as an Aviation Cadet.
3. On 22 January 1945, while on a bomber escort mission over Germany, he was forced to bail-out of his P-38 type aircraft when one of the engines caught fire. He was taken prisoner of war and remained in that status until return to Allied control on 17 April 1945.
4. The medical records reflect that as a result of the parachute jump he fractured the left maxilla, right fibula and right ankle and also suffered concussion. He received treatment in German medical facilities and a splint was placed on his jaw and a cast was applied to the knee. Upon return to the United States lie was hospitalized for three days and returned to duty with the diagnoses: 1. fracture, simple, complete, fibula, old, 2. fracture, simple, left jaw, partial, old, 3. concussion, “old”, brain, mild and 4, combat fatigue, moderate. On 26 July 1945, he was given an administrative admission to the hospital for determination of physical fitness. On 28 October 1945, he was discharged to duty and on the same date underwent a terminal physical examination and was found physically qualified for relief from active duty. He entered upon terminal leave 6 November 1945, and reverted to inactive status effective 24 December 1945, not by reason of physical disability.
5. In his application to this Board the applicant asserts that at the time of his separation from the service he was not physically qualified to perform active military service. He states that he was separated not by reason of physical disability possibly by mistake,, due to the circumstances attendant upon rapid demobilization. Shortly after separation from the service he was awarded a 30% disability rating by the Veterans Administration and this rating was later increased to 60%. Furthermore, his physical condition has been steadily deteriorating during the past year or two.
6. The testimony of the applicant before the board discloses that since his separation from the service he has been continuously employed by the Dodge Corporation as a pattern maker. He testified that since separation he has lost no substantial amount of time from his job and that, “Since ’49 I have missed very little time * * * Fifty and ’51 have been swell years.”
7. The complete record in the case has been reviewed by the Surgeon General and it is his opinion that no corrective action is indicated from a medical standpoint.
8. After careful consideration of the evidence presented, the testimony of the applicant before the Board*280 and tbe official records together with the opinion of the Surgeon General, the Board is of the opinion that the applicant has failed to establish a reasonable showing of error or injustice in his case. Accordingly, the application should be denied.
THE BOARD RECOMMENDS THAT :
1. The application, dated 16 May 1952, of riciiard h. uhlet, ao 778 302, before the Air Force Board for Correction of Military Records be denied.
2. All necessary and appropriate action be taken in consonance with this recommendation.
On December 23, 1952, the Assistant Secretary of the Air Force approved the aforesaid recommendation of the Correction Board and denied plaintiff’s application.
It is plaintiff’s position that he should have been retired at the time that he was separated from active duty on December 24, 1945. There is nothing in the record to show that plaintiff made any request to the Army or the Air Force to be retired for physical disability prior to his application on May 16, 1952, to the Air Force Board for the Correction of Military Records. This is readily explained by the fact that the Armed Forces were not accepting applications for disability retirement by former members who had not been released from active duty for physical disability. This was in accordance with a ruling of the Comptroller General, 30 Comp. Gen. 409.
Upon the enactment on October 25, 1951, of P. L. 220, 82d Congress, 1st Session, 65 Stat. 655, 5 U. S. C. (Supp. V) 191a, amending Section 207 of the Legislative Reorganization Act of 1946, the omission in the jurisdiction of the Armed Services to consider disability retirement was corrected and authority given to the Secretaries of the various services, acting through boards for the correction of military records, to entertain such applications and make payments where it was warranted. Plaintiff then, on May 16, 1952, filed his application with the Air Force Board for the Correction of Military Records to correct his records to show that he was disabled at the time of his release from active duty and entitled to retirement pay. Plaintiff contends that the Board in denying his application, and the approval
This court has said many times that it will not undertake to determine who is fit or unfit to serve in the Armed Forces, Holliday v. United States, 128 C. Cls. 647; Beamish v. United States, 130 C. Cls. 767; Wales v. United States, 132 C. Cls. 765. Only when it appears that the denial of the retirement rights is clearly arbitrary, capricious or unsupported by the evidence, will this court step in and grant the retirement pay, Gordon v. United States, 129 C. Cls. 270; Carlin v. United States, 121 C. Cls. 643; Girault v. United States, 133 C. Cls. 135.
In this case plaintiff was afforded a hearing by the Board, at which time all of his military and medical records were before that forum. Plaintiff was present and represented by counsel. He was given an opportunity to testify and present any evidence that would have helped prove his case. The Board submitted plaintiff’s medical records to the Surgeon General for his opinion as to whether plaintiff qualified for retirement benefits. The opinion of the Surgeon General was adverse to the plaintiff and in light of this and all of the other evidence, the Board held that there was no error and plaintiff had not been done an injustice when he was released from active duty not by reason of physical disability and without retirement benefits. This action of the Board was thereafter approved by the Secretary of the Air Force.
In the hearing before a commissioner of this court plaintiff failed to put on any evidence tending to show the arbitrary nature of the decision of the Correction Board and approval thereof by the Secretary. If it were true that such denial of retirement by the Board and Secretary was illegal, plaintiff should have been prepared to prove this by introducing evidence tending to show that under the facts in his case he was in fact disabled for service at the time of his release from active duty. This could conceivably have been accomplished by expert medical testimony to the effect that injuries such as those sustained by the plaintiff were of such character as to have necessitated his release from service by reason of physical disability and to qualify him for retirement benefits. The fact that the Veterans Administration
* * * judges are not given the task of running the Army. * * * Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. * * *
This case seems to this court to fall within that area in which we, as part of the judiciary, should not interfere in the Army’s determination of who was disabled for active duty and who was not. Absent a clear showing that there was arbitrary action on the part of the Secretary of the Air Force in approving the denial of plaintiff’s application to the Air Force Board for the Correction of Military Records we must deny plaintiff’s claim. Plaintiff’s petition will be therefore dismissed.
It is so ordered.
FINDINGS OP PACT
The court, having considered the evidence, the report of Commissioner William E. Day, and the briefs and argument of counsel, makes findings of fact as follows:
1. The plaintiff enlisted in the Army Air Corps on May 22, 1943 and after completing the course in aviation cadet training, was appointed Second Lieutenant, Air Corps, Army of the United States, on May 23, 1944. He was on active duty until December 24,1945. He departed on terminal leave November 6, 1945, and reverted to inactive duty status December 24,1945, not by reason of physical disability.
2. On October 30,1944, he was sent to the European Theater of Operations as a pilot of fighter planes. On January 22,1945, while on his fifth flight mission and while escorting bombers over Germany, fire developed in an engine in his
3. As a result of the plaintiff’s fall to the earth, he suffered injuries to his head and body as follows:
concussion of the brain; a fracture of the left skull and jaw; a fracture of his right ankle and fibula; a ruptured artery in left temple area; ruptured ligaments in right knee and a dislocation of knee; and anterograde amnesia for several days.
4. Until his liberation in April 1945, the plaintiff had spent practically all of his time in hospitals in Germany.
5. Upon return to the United States, plaintiff was hospitalized for three days from May 21 to May 24, 1945, when he was returned to duty unimproved, limited service, to resume leave, with the following diagnosis:
1. Fracture, simple, complete, fibula, right, “old.”
2. Fracture, simple, left jaw, partial, “old.”
8. Concussion, “old”, of the brain, mild. All sustained in parachute jump, 22 January 1945 over Germany.
4. Combat fatigue, moderate.
*•» íjí V
Each condition was noted to have been received in line of duty, and each condition was shown to be unimproved.
6. On July 25,1945, the plaintiff was given a physical examination at Army Air Force Bedistribution Station No. 2 at Miami Beach. The report of physical examination insofar as here material shows the following:
4. Medical history. — (In the case of applicant include family. Has he ever had epilepsy, enuresis, headaches, dizziness, vertigo, fainting, stammering, tic, somnambulism, pavor noctwrnus, migraine, insomnia, phobias, anxiety trends, irritability, apathy, elation, depression, sensory disturbances, amnesia, spasms, unconsciousness, repeated episodes of alcoholism, encephalitis, pneumonia, syphillis, renal calculi, tuberculosis, asthma, hay fever, repeated colds, mastoiditis, sinusitis, tonsilitis, arthritis in any form, malaria, severe injuries, major operations, or other pertinent history? Explain fully.)
Fracture, rt. leg, lower %, simple, left maxilla, blown*284 out of plane, 22 Jan. 1945, unconscious 25 hours and then can’t remember anything for next week, on combat mission, Prisoner of War Hospitals, various locations, finally to Nuremberg Statug, 130, total hospital time 3 months, leg symptomatic to date.
Denies all else in military service.
25. Bones, joints, muscles.- — Sprain, severa, rt. knee anterior posterior lateral moderate instability; fracture, rt. fibula with lateral displacement (contd par. 37).
34. Nervous system: Reflexes, gait, coordination, nvMsculature, tension, tremor, and other pertinent tests.— Cranio-cerebral injury, 25 Jan. 1945, followed by loss of consciousness for 25 hours (contd par. 37).
36. Estimated adaptability for military aeronautics (if unsatisfactory, state reasons). — Unsatisfactory. Anxiety reaction moderate, combat stress severe, predisposition none, manifested by tension, fatigue, anxiety, insomnia.
37. Remarles on conditions not sufficiently described.— (Par. 25 contd) and shortening, unstable ankle. CD. (Par. 34 contd) with anterograde amnesia for several days, improving. CD.
38. Is the examinee physically gualified for flying duty? — No. If yes, in what class? — If disqualified, indicate defects by paragraph number. — 25, 34, 37.
40. Is the examinee incapacitated for active service?— Yes. If yes, indicate defect by paragraph number.— 25,34,37.
41. Corrective measures or other action recommended. — Hospital for reconstruction of rt. ankle; Dental appointment made. To AAF CH, Miami Beach, Fla.
7. On July 26,1945, plaintiff was given an administrative admission to the AAF Regional and Convalescent Hospital, Miami Beach, Florida, for determination of physical fitness. The admitting diagnosis was carried as “Observation: post cranial injury symptoms.”
8. The hospital records disclose that the following “History. of the Present Illness” was given:
27 July 1945. Lt. Uhley.
Patient is 24-year-old Lt who has been in the army 2%2- He served as pilot P-38 and completed 4 missions. He was on 5th mission when something went wrong with plane and engine caught fire and exploded. He has no knowledge of what happened from that time until he awakened m a German hospital 24 hours later.*285 He bad fractured bis left maxilla, right fibula and right ankle. He bad concussion. This happened on 22 January 1945. His treatment at the hands of Germans was apparently fairly good. A split [sic] was put on jaw and a cast applied to the lower leg. The right knee would become stiff and 22 days after accident a cast was applied to the knee too. Patient was treated at St. Wendel hospital Germany then transferred to Nuremberg POW hospital where he remained until 17 April 1945 when he-was liberated. He was returned to the states 15 May 1945.
The knee gives him most trouble at the present time. It is weak and becomes stiff if left in one position for any time.
Patient admitted for anxiety too which is not too apparent. He complains of being restless and of having a lack of interest. He qualifies these statements by stating he has nothing to do and wiggles a foot. He sleeps sufficiently well for a person not having physical exercise. He is not troubled with dreams. He does not feel fatigued. He states that he is easily provoked with people and has little patience. * * *
9. A neurosurgical examination of the plaintiff, dated August 25, 1945, stated that “X-rays of skull revealed no evidence of fracture” and concluded that “This man gives no neurologic evidence of brain damage. He does seem unusually talkative and enthusiastic, but I suspect he has always been that way.”
10. During the period from September 4 to October 4,1945, plaintiff was on convalescent leave from the hospital. Upon his return he underwent a terminal physical examination and was discharged to duty on October 28, 1945.
11. The report of physical examination, dated October 28, 1945, stated in pertinent part as follows:
40. Bones, Joints, Muscles. — Unstable rt. knee joint, symptomatic. N. D.
47. Neurological. — Normal.
48. Psychiatric — Normal.
54- Is Individual Permanently Incapacitated for General B ervice ? — N o.
12. Plaintiff departed on terminal leave on November 6, 1945, and was relieved from active duty and reverted to inactive status not by reason of physical disability, effective December
13. On November 5,1945, the plaintiff filed application for pension or compensation for disability with the Veterans Administration at Dearborn, Michigan, stating in part as follows:
SB. Nature of disease or injury on account of which claim is made and date each began. — Jan. 22,1945 — plane exploded. Broken ankle, broken right leg, dislocated right knee (ruptured ligament), broken left jaw, fractured skull.
Now must wear brace on right knee. It is still sore and buckles under me. Standing and walking extremely difficult. I was a die maker prior to entering service but this job requires continuous standing.
Right ankle is weak and becomes sore and swollen on frequent occasions.
Left jaw still numb. Teeth feel dead.
Have frequent headaches.
14. The plaintiff was rated 30 percent disabled from December 25, 1945, by a rating board of the Veterans Administration at Detroit, Michigan, on March 14, 1946, due to an unstable right knee. This rating was shown to have been given on the basis of incomplete records. It is not clearly shown in the record whether a physical examination by the Veterans Administration preceded the assignment of such rating.
15. On November 18, 1946, plaintiff was admitted to St. Joseph Mercy Hospital with complaint of pain in the right knee with swelling and considerable limitation of movement. His condition was diagnosed as “ruptured medial meniscus, right knee.” An operation for “excision of semi-lunar cartilage right knee” was performed on November 25, 1946, and plaintiff was discharged from the hospital on December 7, 1946, with a prognosis of “good” by the physician.
16. On May 29,1947, the plaintiff submitted the following affidavit to the Veterans Administration in support of his claim for benefits:
I make this affidavit in support of my claim for benefits under laws administered by the Veterans Administration.
*287 On January 22, 1945 at southern Luxemburg [sic], Germany, I was a fighter pilot returning from a mission when I noticed the right engine had quit and the pro-
Íellor had stopped turning. The plane exploded and came to about twenty-five hours later. I was hurt in the fall receiving a broken right ankle and leg and ruptured ligaments in my right knee, a broken left jaw and fractured left skull. When I opened my eyes I was lying in a German hospital. German doctors looked at my eyes to see if I were blind due to the fractured skull and jaw. I had a ruptured artery in left temporal area with discoloration of my face. I was not mistreated at the hospital, but the hospital area was under heavy aerial and artillery bombardment.
My meals averaged from 6 to 27 men to a loaf of black bread per day with some green soup. I lost more than 50 pounds while I was a prisoner of war. I now weigh 200 pounds.
I was a prisoner of war for three months.
While in the prison camp hospital I received special medical attention from Allied prisoner-doctors. A Serbian doctor put a cast on my leg.
At the present time I am very irritable and nervous which I believe is due to my prisoner of war experiences. My right knee and right arm are my major complaints. My right knee dislocates while walking and throws me to the ground. When I raise my arm to shoulder height, frequently it is painful. Pain in my knee is continuous. I am standing all day at work.
17. On May 28 and 29,1947, the plaintiff was given a rather thorough examination by Veterans Administration doctors whose report as to his condition states in part as follows:
INTERVAL HISTORY:
Patient discharged December 24,1945. Went to work in Dec. 1945 while on terminal leave doing metal pattern making at Dodge Brothers. He has been there ever since. Works 40 to 48 hours a week. Takes very little time off from work, but did take 8 months off last summer because he felt nervous and restless. Sleeps fairly well, although he dreams a lot. Appetite is good. Likes to bowl or dance but has to be careful of his leg. Single, but is thinking of getting married. Gets along well with his parents.
NEUROLOGICAL EXAMINATION:
Cranial nerves are essentially negative. Pupils react to light and accommodation. Optic discs are normal.*288 Deep and superficial reflexes are within normal limits. No pathological reflexes noted. Coordination movements are well performed. Motor and sensory examination is essentially negative. The patient is able to raise and lower his right arm satisfactorily. No obvious atrophy of the right shoulder girdle muscles appears to exist.
PSYCHIATRIC EXAMINATION :
During the interview this 26 year old white veteran was cooperative. He appeared a trifle euphoric and was very spontaneous in his speech. He answered questions readily, logically and coherently. He showed no evidence of abnormal thought content and no delusions or hallucinations. He was well oriented. His judgment was fair, but his insight was limited. He feels that lately he has been becoming increasingly irritable with people. comments :
Mild social and work impairment. It is difficult to evaluate these “dreamy states” except as a part of an organic brain syndrome. Hospitalization is not indicated. The prognosis is still somewhat guarded in this case.
^ «4»
ORTHOPEDIC EXAMINATION:
* * *
Patient is ambulant. Walks with a slight limp favoring right leg. Disrobes with no apparent difficulty. He is wearing a brace to the right knee joint. There is slight atrophy of the quadriceps group on the right. Circumference above left knee 14% — right 13%. There is a 4% by % scar over the medial aspect of the right knee joint. The scar is non-adherent, non-tender and there is no loss of underlying structures. No swelling or increased heat in ankle joint. No limitation of motion except mild (5-8 degrees) limitation of complete flexion. There is fairly marked instability of the joint. There is fairly marked increased mobility of the medial collateral ligament and some increase in the antero-posterior mobility of the joint. The right ankle joint reveals some thickening over the medial and lateral malleoli, but there is full range of motion without pain, and good weight bearing alignment. No swelling or tenderness in right area. Full range of motion without pain or crepitus in right shoulder joint. Full range of motion in both temporo-mandibular joints without deformity.
(1) Scars, right knee, post excision, medial meniscus, right.
(2) Derangement, right knee j oint, unstable knee.
(3) Fracture, history of, right ankle, fibula, jaw. (See X-ray.)
(4) Post-traumatic cerebral syndrome, manifested by headaches, dreamy states, and emotional irritability.
(5) No eye, ear, nose, or throat pathology.
19. On August 19, 1947, plaintiff was rated by the Veterans Administration as follows:
(a) Unstable right knee, residuals of fracture; 30 percent from December 25,1945 to March 31,1946; 30 percent from April 1,1946.
(b) Encephalopathy, traumatic, manifested by headaches, dreamy states and emotional irritability; 30 percent from J anuary 10,1947.
(c) Arthritis, traumatic, right ankle, residual of anide injury; 10 percent from January 10,1947.
(d) Residual of fractured jaw; 0 percent from January 10, 1947.
Combined Bating:
Thirty percent from December 25,1945 to January 9,1947.
Sixty percent from January 10,1947.
20. On June 1, 1949, plaintiff was admitted to a Veterans Administration Hospital with a kidney infection and remained in the hospital until June 29,1949. An X-ray of the right knee taken at that time disclosed the following findings:
eight KNEE: There is suggestion of thickening of the soft tissues on the lateral portion of the knee joint in the medial collateral area. The examination is otherwise negative. There are no bone changes demonstrated.
21. The hospital discharge summary shows in part as follows:
Another troublesome symptom at and preceding this admission .to the hospital was numbness and tingling of the extremities with paresthesias unassociated with peculiar positions. This, along with excessive fatigue, had been present since the patient was discharged from*290 service in 1945. The service history revealed that the patient had sustained fractures of the right ankle, right leg, left jaw? and skull. Following adequate medical care, the patient made a complete recovery except for hypermobility of the knee, for which he still wears a brace.
Physical examination at the time of admission revealed slight tenderness in both costovertebral angles. There was no fever. B. P. 118/78. There was increased lateral mobility of the right knee with a scar on its medial aspect.
* * * X-ray of the right knee revealed only thickening of the soft tissues on the lateral portion of the knee joint. No bone injury was seen.
The hospital discharge diagnosis, dated June 29, 1949, was recorded as follows:
1. Acute bilateral pyelonephritis, etiology, undetermined, treated, cured.
2. Anxiety reaction, chronic mild, manifested by dissatisfaction with job, excessive sweating, and hyperventilation with vertigo and paresthesias, treated, improved.
3. Instability of the right knee due to trauma, untreated, unchanged.
22. Plaintiff was appointed a Second Lieutenant, Air Corps Reserve, on October 30, 1945, and served in the Reserves on flying status until February 12, 1949, when he was found physically disqualified for flying duty. During this period plaintiff flew AT-6 planes and accumulated 178 Reserve retirement points.
23. Under date of June 30,1949, plaintiff filed an application to be assigned as an honorary member of his Reserve unit because of disabilities. The application stated in part as follows:
8. I was last physically examined on or about 1947 and found physically qualified for general service with waiver. To the best of my knowledge and belief no change in my physical condition has occurred since my last physical examination except as follows: Not as well now as then. Kidney trouble now.
24. The report of the physical examination referred to by the plaintiff’s affidavit in the foregoing finding is not in evidence.
CORRECTION OF MILITARY AND NAVAL RECORDS
Sec. 207. The Secretary of War, the Secretary of the Navy, and the Secretary of the Treasury with respect to the Coast Guard, respectively, under procedures set up by them, and acting through boards of civilian officers or employees of their respective departments, are authorized to correct any military or naval record where in their judgment such action is necessary to correct an error or to remove an injustice.
26. Public Law 220 (65 Stat. 655, Ch. 588), amending the above-quoted Act of Congress, was approved October 25, 1951.
27. The legislative history of Public Law 220 shows (as reflected in Senate Report No. 923) that the purpose of the proposed legislation was
* * * to authorize the Secretaries of the Army, Navy, and Air Force and the Secretary of the Treasury (with respect to the Coast Guard) to make certain payments which become due as a result of action taken by the respective Boards for the Correction of Records authorized by section 207 of the Legislative Reorganization Act of 1946.
g: $ $ $ $
28. The plaintiff took no action toward the correction of his military record until May 16,1952, when he, by counsel, filed application with the Air Force Board for the Correction of Military Records. This application requested that his records be corrected
To show that I was permanently incapacitated for active service at the time of my separation and should have been retired for physical disability with retirement pay.
An oral hearing was requested.
29. The Air Force Board for the Correction of Military Records convened on November 5,1952, to consider the plaintiff’s application. The plaintiff in testimony before that Board stated that he had refused an operation on his knee in October 1945 by the Air Corps doctors. (This was the
30. The decision of the Air Force Board for Correction of Military Eecords on the plaintiff’s application was dated November 15,1952. It noted that a personal appearance was had by the plaintiff who was represented by counsel. The following documentary evidence was considered by that Board:
(1) Applicant’s request for corrective action dated May 16,1952.
(2) Brief of Examiner, Mr. Norman A. Compton.
(3 ) Transcript of testimony.
(4) Master personnel records of the applicant.
(5) VA medical records.
The findings of the Board of three members were unanimous. Such findings and recommendation are quoted in full below:
1. The applicant has exhausted all remedies provided by law or regulation.
2. The applicant was appointed Second Lieutenant, Army of the United States, 23 May 1944, having completed the prescribed course of Pilot instruction as an Aviation Cadet.
3. On 22 January 1945, while on a bomber escort mission over Germany, he was forced to bail-out of his P-38 type aircraft when one of the engines caught fire. He was taken prisoner of war and remained in that status until return to Allied control on 17 April 1945.
4. The medical records reflect that as a result of the parachute jump he fractured the left maxilla, right fibula and right ankle and also suffered concussion. He received treatment in German medical facilities and a splint was placed on his jaw and a cast was applied to the knee. Upon return to the United States he was hospitalized for three days and returned to duty with the diagnoses: 1. fracture, simple, complete, fibula, old, 2. fracture, simple, left jaw, partial, old, 3. concussion, “old”, brain, mild and 4, combat fatigue, moderate. On 26 July 1945, he was given an administrative admission to the hospital for determination of physical fitness. On 28 October 1945, he was discharged to duty and on the same date underwent a terminal physical examination and was found physically qualified for relief from active duty. He entered upon terminal leave 6 Novem*293 ber 1945, and reverted to inactive status effective 24 December 1945, not by reason of physical disability.
5. In his application to this Board the applicant asserts that at the time of his separation from the service he was not physically qualified to perform active military service. He states that he was separated not by reason of physical disability possibly by mistake, due to the circumstances attendant upon rapid demobilization. Shortly after separation from the service he was awarded a 30% disability rating by the Veterans Administration and this rating was later increased to 60%. Furthermore, his physical condition has been steadily deteriorating during the past year or two.
6. The testimony of the applicant before the board discloses that since his separation from the service he has been continuously employed by the Dodge Corporation as a pattern maker. He testified that since separation he has lost no substantial amount of time from his job and that, “Since ’49 I have missed very little time * * * Fifty and ’51 have been swell years.”
7. The complete record in the case has been reviewed by the Surgeon General and it is his opinion that no corrective action is indicated from a medical standpoint.
8. After careful consideration of the evidence presented, the testimony of the applicant before the Board and the official records together with the opinion of the Surgeon General, the Board is of the opinion that the applicant has failed to establish a reasonable showing of error or injustice in his case. Accordingly, the application should be denied.
THE BOARD RECOMMENDS THAT :
1. The application, dated 16 May 1952, of richard h. uhley, ao 778 302, before the Air Force Board for Correction of Military Records be denied.
2. All necessary and appropriate action be taken in consonance with this recommendation.
31. On December 23,1952, the Assistant Secretary of the Air Force approved the aforesaid recommendation of the Correction Board and denied plaintiff’s application.
'CONCLUSION OP 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 the plaintiff is not entitled to recover, and his petition is therefore dismissed.
