Beckham v. United States

• Decision Date: 19 April 1968
• Docket Number: No. 379-61.,379-61.
• Citation: 392 F.2d 619,183 Ct. Cl. 628
• Parties: James A. BECKHAM v. The UNITED STATES.
• Court: U.S. Claims Court

183 Ct. Cl. 628, 392 F.2d 619 (1968)

James A. BECKHAM v. The UNITED STATES.

No. 379-61.

United States Court of Claims.

April 19, 1968.

Paul R. Harmel, Washington, D. C., attorney of record, for plaintiff.

Arthur E. Fay, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

OPINION

DURFEE, Judge.

This is an action for disability retirement pay based upon provision of section 402 of the Career Compensation Act of 1949.¹ Plaintiff is claiming disability retirement pay from March 15, 1952 (date of final separation from the Navy) to the present on the ground that he incurred a service-connected disability during his first tour of duty (8/15/37 to 12/9/45) which was aggravated by his second tour of duty (10/28/50 to 3/15/52) to the extent that plaintiff was unfit for active duty within the meaning of the Act.

A brief statement of the facts² and procedural posture of the case is as follows:

Plaintiff spent two tours of duty in the Navy and in both instances the separation was voluntary. Upon both separations he was found physically fit for active duty. In neither instance did the terminal examination include a gastro-intestinal (G.I.) X-ray series. Yet, plaintiff was granted a 20 percent disability rating by the Veterans Administration, effective as of November 30, 1949, for a duodenal ulcer which the VA expressly conceded was service-connected. In addition, when plaintiff entered the Navy for his second tour of duty (October, 1950), he was appointed with a waiver for a physical disability labeled as "gastritis, chronic and sequelae of".³

Then, in 1955 (subsequent to his second release from duty at which time he was again found physically fit), plaintiff was found not qualified for active duty pay status in the Navy Reserve because of his prior medical record of gastro-intestinal ailments, and a recent medical examination (January, 1955) which found "peptic ulcer diathesis and duodenal ulcer". The record was shortly thereafter amended to reflect plaintiff's gastrectomy (July, 1955) in which 60 percent of his stomach and four inches of his intestines were removed. Although the operation was the culmination of plaintiff's history of gastro-enterological ailments beginning some time during his first tour of duty, it reinforced the Navy's conclusion that plaintiff was unfit for active pay status in the Navy Reserve.

On January 23, 1959, plaintiff requested that his military records be changed to reflect the fact that he was unfit for active duty at the time of his second separation because of a service-connected disability (duodenal ulcer) and eligible for disability retirement pay pursuant to the provisions of the Career Compensation Act of 1949.

The Board for the Correction of Military Records, upon the advisory opinion of a Physical Evaluation Board (which was approved by the Physical Review Council), denied this request although neither the Physical Evaluation Board nor the Physical Review Council specified the standard upon which the determination of fitness of plaintiff was based. Plaintiff then brought suit in this court for disability retirement pay alleging that the decisions of the medical boards and the Navy Correction Board were arbitrary, erroneous in law, and not based upon substantial evidence.

The court rendered a decision (Beckham v. United States, 375 F.2d 782, 179 Ct.Cl. 539, pet. for cert. dismissed, 389 U.S. 1011, 88 S.Ct. 583, 19 L.Ed.2d 613 (1967)), and held essentially three things: (1) the Navy waiver statute (see fn. 2, supra) only applied to "civilian incurred" injuries; (2) the Navy's definition of "organic defect" is reasonable; and (3) the Trial Commissioner should have allowed a trial for the introduction of new evidence.

Before trial, however, plaintiff filed a motion requesting withdrawal of the remand to receive new evidence; and for determination of plaintiff's claim on the existing record. Over defendant's objection, an appropriate order of court, dated November 28, 1967, was entered, granting plaintiff's motion.

Thus, in the present posture of the case, there are now two questions before this court:

(1) Whether plaintiff had waived any rights to disability retirement pay he might have had, because he accepted an appointment for his second tour of duty which was granted "with a waiver"?

(2) Assuming the first question is answered in the negative, then, whether the Correction Board acted unlawfully, arbitrarily or without substantial evidence when it determined, in effect, that plaintiff was not entitled to disability retirement pay at the time of his separation from the Navy in 1952?

I

As pointed out above, we have already held in the first Beckham case, supra, that the applicable Navy waiver statute only applies to "civilian-incurred" disabilities. In other words, the statute does not take away an "officer's rights to benefits for an injury or disease initially incurred while on active duty". Id. at p. 784

We now find on the basis of the evidence of record that plaintiff's disability or disease was service-incurred.⁴ There is no Board finding to the contrary. Defendant tacitly concedes this point, but simply argues that this is not the real issue. The Veterans Administration has also found that plaintiff's disease was service-incurred. Its conclusion, when based on a medical examination as here, is entitled to great weight. Hutter v. United States, 345 F.2d 828, 831, 170 Ct.Cl. 517, 523 (1965).

Consequently, the first Beckham decision is controlling on the waiver issue, and we hold that plaintiff did not waive any rights upon accepting the appointment for his second tour of duty "with a waiver".

II

With regard to the second issue, we also agree with plaintiff, and find that he was unfit for active duty and entitled to disability retirement pay within the meaning of the Career Compensation Act of 1949 at the time of his separation from the Navy in March of 1952. The Board's conclusion to the contrary is either based on an erroneous interpretation of the applicable statute and regulation or not supported by substantial evidence, or both.

Entitlement to disability retirement pay under the provisions of this Act requires, among other things, proof of a permanent⁵ service-connected disability which renders the claimant unfit to perform the duties of his rank, grade or rating. In addition, it must be shown that such disability was incurred while claimant was on active duty.

To determine whether or not a member of the Armed Forces is entitled to disability retirement is the function of the Secretary of the particular service involved in the first instance, and this determination is entitled to finality. The mere fact that this court might disagree with the Secretary's determination in any given instance does not mean that we then have authority to overturn the Secretary's determination. See, e. g., Johnston v. United States, 157 Ct.Cl. 474, 475-476 (1962). But where there is a showing that the Board (acting for the Secretary) did act arbitrarily, capriciously, without support of substantial evidence or contrary to applicable statutes and regulations, this court has an obligation to entertain a claim for disability retirement pay. See, e. g., Cooper v. United States, 178 Ct.Cl. 277 (1967). Such is the situation in this case.

As a preliminary matter, we note with dismay that none of the Naval Boards⁶ commented upon or even referred to the regulation of the Navy that established the standards by which fitness or unfitness for active Naval service was to be determined. They could well have decided the case as if they were not controlled by any legal standard of fitness, and as if determination of this fact was within their unlimited discretion. Needless to say, this is not the law; the Navy Board, like other administrative bodies, is bound by its own regulations. See, Hamlin v. United States, Ct.Cl. 391 F.2d 941, at p. 943, decided March 15, 1968, and cases cited therein.

Assuming, however, that the Correction Board did use the correct legal standard, there is no satisfactory showing on the record that the Board's determination was based upon a balanced consideration of all the evidence available and presented. A naked conclusion and mere recitation that the opinion is based upon all of the evidence without an analysis of the evidence in writing (as here), is inimical to a rational system of administrative determination and ultimately inadequate. See, Smith v. United States, 168 Ct.Cl. 545, 553 (1964); cf., Loral Electronics Corp. v. United States, Ct.Cl., 387 F.2d 975, at p. 980, decided December 15, 1967: "In these circumstances summary and sketchy findings and reasoning by the administrative Board we cannot give as much deference to the Board's determination as if it had given detailed findings to support, and fuller explanations of the reason for, its conclusion. We are compelled to look to the record without much help from the Board's opinion, and therefore, without the need to accord as great weight to its determination as we otherwise would. Cf. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167-169, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)".

It is not necessary, however, to dwell unduly on these administrative deficiencies since we conclude that, if the correct legal standard is applied, and due weight is given to all the evidence of record, plaintiff must be found unfit for active service on the date of his release from active duty, March 15, 1952, and entitled to disability retirement pay. In deciding otherwise, the Correction Board must either have ignored the governing regulations, or acted upon unsubstantial evidence, or both.

The Career Compensation Act of 1949, supra, requires, inter alia, proof of a permanent service-connected disability which renders the claimant "unfit to perform the duties of his rank, grade...