Craft v. United States

• Decision Date: 16 June 1976
• Docket Number: No. 96-74.,96-74.
• Parties: Charles E. CRAFT v. The UNITED STATES.
• Court: U.S. Claims Court

544 F.2d 468

Charles E. CRAFT v. The UNITED STATES.

No. 96-74.

United States Court of Claims.

June 16, 1976.

COPYRIGHT MATERIAL OMITTED

David Rein, Washington, D.C., attorney of record for plaintiff.

Russell W. Koskinen, Washington, D.C., with whom was Asst. Atty. Gen. Rex E. Lee, Washington, D.C., for defendant.

Before COWEN, Chief Judge, and DAVIS and KUNZIG, Judges.

KUNZIG, Judge.

In this military pay case of first impression, plaintiff, a former U.S. Army Special Forces Sergeant First Class (SFC, E-7), seeks reinstatement, back pay and records correction. SFC Craft contests the action of the Army in placing him on the Temporary Disability Retired List (the Temporary List) in 1969 and also the Army's subsequent decision permanently to retire him for disability in 1973. We are unanimously of the opinion that plaintiff's 1973 permanent separation cannot stand and we hold for plaintiff.

On January 18, 1952, plaintiff enlisted in the Army. After basic training at Fort Ord, plaintiff volunteered for airborne training and on completion of jump school, the Army as assigned him to Fort Bragg. In 1959, SFC Craft served a tour of duty in Germany and by 1961 had returned to Fort Bragg. During this second Fort Bragg assignment, plaintiff volunteered for the Special Forces. While with this unit, SFC Craft participated in the Vietnam conflict in 1967 where, in the words of his commanding officer, he performed missions of an "extremely hazardous nature." The history of plaintiff's military career, particularly in Vietnam, clearly illustrates that he was, in all respects, an excellent soldier.

In January 1968, plaintiff returned to Fort Bragg from Vietnam and his problems with the Army began. Strangely, it was not plaintiff's duty performance, but marital difficulties which led to his current predicament. Plaintiff's wife complained to his commanding officer and base medical personnel about Craft's attitude concerning her fidelity. On January 17, 1969, Fort Bragg authorities admitted plaintiff to Womack Army Hospital, ostensibly for a three-day observation. The examining psychiatrist, a Captain Rabon, concluded that plaintiff suffered from a "schizophrenic reaction, paranoid type, chronic, and severe * * *." Rabon recommended that a Medical Board find Craft unfit for retention in the Army despite the fact that the only impaired relationship demonstrated by Craft involved his wife. Whatever the nature of plaintiff's condition, there is no evidence in the record that it interfered with his military duties.

As a result of Rabon's recommendation, Womack personnel did not release plaintiff at the end of the three-day period, but confined him to a locked mental ward until the latter part of March. At this time, Craft was transferred to an open ward until his April 15, 1969, release from the hospital.

In the meantime, a Medical Board convened at Fort Bragg to evaluate plaintiff's case. Based solely on CPT Rabon's recommendation, the Medical Board on February 26, 1969, found plaintiff unfit for retention. Plaintiff did not appear before this Board.

The diagnosis was reviewed by a Physical Evaluation Board at Fort Gordon. The Evaluation Board found plaintiff unfit and recommended that he be placed on the Temporary List with a 70 percent disability rating. Like the Medical Board, the Evaluation Board formulated its conclusions without interviewing plaintiff and based its findings on the report of CPT Rabon.

On April 28, 1969, the Army denied plaintiff's request for a disability waiver to remain on active duty. A Physical Review Council reconsidered his medical status and concurred with the recommendations of the Evaluation Board again without seeing plaintiff. The Council rendered its decision on May 1, 1969. On May 28, 1969, the Adjutant General placed plaintiff on the Temporary List.

By mid-1969, plaintiff found himself in temporary retirement based on his wife's complaints and the January 1969 examination by CPT Rabon. Plaintiff in his desire for "vindication," proceeded to seek private legal and medical advice.

In 1972, plaintiff submitted to additional examinations and administrative proceedings calculated to gauge his fitness for duty after three years on the Temporary List. The statutes which establish the Temporary List define this procedure. The nature of this status is a type of "limbo." A serviceman who is on the List is separated from the Army, but his final status is deferred pending additional medical evidence. 10 U.S.C. § 1202 (1970). When a party is placed on the List, he is to receive periodic examinations and the Secretary of the service branch must, within five years, make a final disposition of the case. 10 U.S.C. § 1210 (1970). The final determination takes two forms. The serviceman is either found unfit to return to duty in which case he is permanently retired, or he is found fit and must be returned to active service (with his consent). 10 U.S.C. §§ 1210-11 (1970). See Part 3, infra. Therefore, in compliance with these statutes, the Army conducted a reevaluation of plaintiff's situation in 1972 and 1973.

During the first step of the reevaluation, SFC Craft was examined by LTC Stoller, Chief Psychiatrist at Madigan Hospital, Tacoma, Washington. On September 20, 1972, Colonel Stoller concluded that plaintiff was fit for return to duty. However, Stoller noted that plaintiff's bitterness toward the Army precluded consideration of any reinstatement. Stoller recommended a permanent discharge.

A reevaluation Medical Board convened to assess Stoller's diagnosis. This Board, without making a determination of plaintiff's fitness, concurred in LTC Stoller's separation recommendation. Plaintiff did not appear before the reevaluation Medical Board.

This led to proceedings before a Physical Evaluation Board (the reevaluation PEB). This Board at first considered SFC Craft's case solely on the record. Again, without making a fitness determination, the reevaluation PEB recommended separation. However, it reconsidered and granted plaintiff a hearing. After listening to plaintiff's testimony and having an opportunity to observe his demeanor, the reevaluation PEB on February 13, 1973, found plaintiff "fit to perform the duties of his * * * rank."

Having come this close to his goal of return to active duty, plaintiff had two more hurdles to surmount. The first of these was a Physical Review Council (the Council). On February 21, 1973 only a week after the reevaluation PEB report, the Council overturned the reevaluation PEB without a hearing and based on the same record that the PEB had used when concluding that Craft was fit for duty. Moreover, the sum total of changes effected by the Council under the heading "modifications and reasons" was as follows:

The following modification(s) and reasons therefore have been made in your case:

Items:

8a(1): Enter: "9203."

8b(1): Enter: "schizophrenic reaction, paranoid type, chronic, slight."

8c(1): Enter: "No."

8d(1) and 8e(1): Enter: "Yes."

8g(1): Enter: "10."

Delete check under "Fit." Check: "Unfit." Enter: "10" and "Separated with severance pay."

10: Check: "Is not."

A physical Disability Appeal Board reviewed the case on April 10, 1973. Again, without a hearing and on the same record, the Board affirmed the Council. The reasons given were limited to the following statement:

The board finds that the findings and recommendations of the Physical Evaluation Board as modified by the Army Physical Review Council are supported by the evidence of record, are correct in fact and are in accordance with Department of the Army policies pertaining to physical fitness and/or physical separation or retirement.

On May 31, 1973, plaintiff was permanently separated from the Army for disability.

Whatever the medical evidence reveals, one fact in the instant case becomes astonishingly clear upon careful examination of the record. Plaintiff was permanently retired from the Army for mental disability without any evidence of impairment of his duty performance. It is against this background that plaintiff brings the instant action seeking reinstatement, back pay and records correction.

Plaintiff now enters a motion for summary judgment. First, he argues that the initial findings of disability leading to placement on the Temporary List were arbitrary, capricious and in violation of Army Regulation 40-501, ¶ 3-29 (defining the standards for a finding of psychotic disability). Second, plaintiff contends that the reevaluation proceedings were invalid. Specifically, he attacks the Council's determination overturning the PEB. Craft says that the Council's reversal was arbitrary, capricious, not supported by evidence, invalid for failure to state reasons and in contravention of Army Regulation 635-40, ¶ 5-5, which narrowly defines the situations in which the Council may reverse a Physical Evaluation Board. Third, plaintiff claims that the Army's conduct violated 10 U.S.C. § 1169 (1970) (circumscribing the occasions when a military serviceman may be discharged before the termination of his service contract).

Defendant counters with a cross-motion for summary judgment. It asserts that the initial unfitness determination was not arbitrary or capricious and conformed with the applicable regulations. Second, defendant contends there was no reversible error in the reevaluation proceedings. Third, it argues that the Court of Claims has no power to restore plaintiff to active duty or make a fitness determination and plaintiff cannot recover. Finally, the Government relies on the affirmative defense that plaintiff cannot recover to the extent that he seeks pay and allowances for the period after expiration of his enlistment contract. The crux of defendant's arguments is that we must leave plaintiff as we find him.

Based on the record, we conclude that the reversal by the Council¹ cannot be permitted to stand. We, therefore, hold that plaintiff is entitled to recover.²

1. The Council

a....