Niedernhofer

Military pay; retired pay (disability). — Plaintiff seeks to recover disability retired pay on the ground that when relieved from extended active duty as a lieutenant colonel, Army Air Corps, on September 6, 1945, he was physically 754 unfit for service and should have been retired for physical disability. In an opinion dated June 12,1970,192 Ct. Cl. 569, 426 F. 2d 1403, the court held that plaintiff’s claim is not barred by limitations and remanded the case to the trial commissioner for proceedings on the merits. In a report filed September 1,1972 Commissioner Harry E. Wood determined that on the record before him it cannot fairly and reasonably be concluded that plaintiff was permanently unfit for active military service on September 6, 1945, or that the actions of the Air Force Board for Correction of Military Eecords were arbitrary, capricious or unlawful, and recommended that the petition be dismissed. The court agreed with Commissioner Wood’s opinion, findings of fact and recommended conclusion of law, and, by order dated February 2,1973, adopted the same as the basis for its judgment herein, concluded that plaintiff is not entitled to recover and dismissed the petition.