Conlin v. United States

Laramore, Judge, delivered the opinion of the court: This is a claim for disability retirement pay by a former Reserve Corps officer of the Army of the United States. The facts as alleged in plaintiff’s petition show that he was engaged in military activities since 1937, both in the United States and overseas. He was examined on various occasions by Army doctors, in connection with his military duties, and found to be in sound physical condition. On September 20, 1945, plaintiff was examined physically at the Separation Center of the U. S. Army, Fort Dix, New Jersey, prior to his separation from the service, and was ordered to the Tilton General Hospital, Fort Dix, for further observation. On November 20, 1945, plaintiff was operated on and his right Mdney was removed. On April 11, 1946, an Army disposition board recommended that plaintiff be ordered to appear before a retiring-board. Thereafter, on May 1,1946, an Army retiring board found that plaintiff was not permanently incapacitated for active service. On August 27, 1946, plaintiff i-everted to an inactive status. On September 3, 1946, plaintiff was awarded compensation from the Veterans Administration based on a disability rating of 100 percent. On February 26, 1947, plaintiff again appeared before a retiring board, and again the board refused to recommend that plaintiff be granted retirement for physical disability. On October 24, 1947, plaintiff was informed by the Veterans Administration that after April 1, 1947, he would be rated by the Veterans Administration as 60 percent disabled. On July 29, 1948, plaintiff was informed by the War Department (now Department of the Army) that a review of his medical record showed he might have an incapacitating defect and he was authorized, at his own expense, to enter Walter Reed Hospital for observation and, if warranted, he could appear before an Army retiring board. [130] On March 1,1949, after examination at Walter Need Hospital, plaintiff again appeared before an Army retiring board, and again the Army retiring board refused to recommend that plaintiff be granted disability retirement benefits. Since the time of the last retiring board action plaintiff was examined twice by Army doctors in connection with his then Reserve status, and each time he was found to be physically disqualified to perform the duties of his office. On February 20,1952, plaintiff was transferred from his Reserve status to that in the Honorary Reserve, Army of the United States, for reasons physical. On July 8, 1955, and various times thereafter, plaintiff made application to the Department of the Army, to grant him opportunity to appear before an Army retiring board. Each time permission was refused. On September 2, 1955, plaintiff made application to the Army for a consideration of his application by the Army Board for Correction of Military Records. On February 8, 1956, plaintiff’s application was denied. On April 27,1956, plaintiff was informed that his application to appear before an Army board of review had been denied. In this posture of the case the defendant has moved to dismiss plaintiff’s petition on the ground that the claim is barred by the statute of limitations, 28 U. S. C. § 2501 (Supp. III, 1952 Ed.), which provides that: Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues. Plaintiff appeared before three retiring boards, i. e., May 1, 1946, February 26, 1947, and March 1, 1949, all of which found him not permanently incapacitated for service. There is no contention here that the retiring boards’ proceedings were not approved by the Secretary of the Army, hence it can be assumed said proceedings were approved. At any rate, plaintiff knew first on May 1, 1946, that he would not be granted retirement pay. In fact, plaintiff has alleged in rhetorical paragraph 34 of his petition that the action of the United States Army in releasing him to inactive duty [131] as aforesaid, without disability retirement pay, was arbitrary, capricious, without authority and law, and that he is entitled to disability retirement pay as a Major, Army of the United States, and that he as such is entitled to the disability retirement pay of $237.20 per month from August 27, 1946, and in addition any and all increases granted retired officers by law, less any Veterans Administration disability compensation received by the plaintiff during this entire period. The foregoing allegation conclusively shows that plaintiff thought he had a right of action at the time he was released to inactive duty and is now claiming rights from that date. It was on May 1, 1946, that all events had transpired to give plaintiff a right of action on his claim and it was then his cause of action first accrued. Rosnick v. United States, 132 C. Cls. 1; Girault v. United States, 133 C. Cls. 135; Duff v. United States, 133 C. Cls. 161; Odell v. United States, 134 C. Cls. 634; Levine v. United States, 133 C. Cls. 774; Soukaras v. United States, 135 C. Cls. 88. Plaintiff’s application to the Army Board for Correction of Military Records would not toll the running of the statute of limitations. Cuiffo v. United States, 131 C. Cls. 60; Girault v. United States, supra; MacFarlane v. United States, 134 C. Cls. 755. Plaintiff’s claim first accrued when he reverted to an inactive status pursuant to the action of the Army retiring board, or at the very latest on March 1, 1949, the last action of the retiring board. The petition was filed May 29, 1956, more than six years thereafter and is barred by the statute of limitations, supra. Defendant’s motion is granted, and plaintiff’s petition is dismissed. It is so ordered. Whitaker, Judge, and JoNes, Chief Judge, concur.