Diamond v. United States

• Decision Date: 16 April 1965
• Docket Number: No. 294-61.,294-61.
• Citation: 344 F.2d 703,170 Ct. Cl. 166
• Parties: Dan D. DIAMOND v. The UNITED STATES.
• Court: U.S. Claims Court

170 Ct. Cl. 166, 344 F.2d 703 (1965)

Dan D. DIAMOND v. The UNITED STATES.

No. 294-61.

United States Court of Claims.

April 16, 1965.

Harry E. Wood, Washington, D. C., for plaintiff. Guy Emery and Emery & Wood, Washington, D. C., of counsel.

Katherine H. Johnson, Washington, D. C., with whom was Asst. Atty. Gen. John W. Douglas, Washington, D. C., for defendant.

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

COLLINS, Judge.

Plaintiff, a former member of both the Army and the Air Force, is asserting three alternative claims. The first two claims are for disability retirement pay denied plaintiff by the Army and by the Air Force, respectively. The third claim is for the active duty pay of an Army master sergeant and is based upon the allegedly unlawful rejection of plaintiff's attempt, at the time of his release from the Air Force, to reenlist in the Army.¹ Defendant has moved to dismiss the petition on the ground that each of plaintiff's claims is barred by the statute of limitations, 28 U.S.C. § 2501.

The facts relevant to defendant's motion to dismiss are as follows:

Plaintiff, a second lieutenant, Officers Reserve Corps, began his active duty with the Army on March 13, 1942. Plaintiff served continuously until February 4, 1947, when he was relieved. At the time of his relief from active duty, plaintiff held the rank of major.

On May 24, 1946, plaintiff had been admitted to Fitzsimons General Hospital, Denver, Colorado, for observation regarding pain in the right upper quadrant. The Board of Medical Officers which considered plaintiff's case reached a diagnosis of chronic peptic ulcer of the duodenum, not disabling for limited service. In accord with the recommendation of the Board of Medical Officers, plaintiff appeared before an Army Retiring Board. On October 17, 1946, the Army Retiring Board (1) determined that plaintiff was not permanently incapacitated for active service and (2) recommended that he be ordered to 6 months' limited service, at the end of which time, plaintiff's case was to be reevaluated. The Office of the Surgeon General concurred in the findings and in the recommendation of the Army Retiring Board. On February 4, 1947, plaintiff was relieved from active duty, not by reason of physical disability.

Plaintiff's recall to duty for the purposes of reexamination and reevaluation at Fitzsimons General Hospital took place on April 23, 1947. Pursuant to the recommendation of a second Medical Board which had made diagnoses of duodenal ulcer and keratitis of the right eye, plaintiff again appeared before an Army Retiring Board. The finding of the Army Retiring Board that plaintiff was not incapacitated for general service was approved by the Secretary of War. On December 13, 1947, plaintiff was relieved from active duty, not because of physical disability.²

Plaintiff, on December 31, 1947, enlisted in the United States Army as a master sergeant. His service as a master sergeant continued until September 28, 1948, when he received an honorable discharge. The purpose of discharging plaintiff was to enable him to report for active duty in the U. S. Air Force as a captain in the Air Force Reserve.

Plaintiff's active duty in the Air Force commenced on September 29, 1948, but was subject to the final outcome of a physical examination to be given at his first duty station. The examination showed an inactive duodenal ulcer; subsequently, plaintiff was hospitalized. A recommendation that plaintiff be accepted for duty with a waiver of the physical examination requirements was denied. On June 14, 1949, plaintiff's active duty was terminated by Air Force orders which stated that plaintiff was relieved from his assignment "by reason of physical disqualification as a result of failure to pass physical examination for entrance on AD active duty."

On June 14, 1949, the day of his release by the Air Force, plaintiff applied for reenlistment in the Army in his former grade of master sergeant. Plaintiff was given a physical examination which disclosed evidence of the duodenal ulcer and the keratitis. Because of the results of the physical examination, plaintiff was not permitted to reenlist.

On December 4, 1952, plaintiff commenced what was to be a series of unsuccessful attempts to have his records changed to show his retirement for physical disability or his reenlistment as a master sergeant. First, plaintiff applied to the Air Force Board for Correction of Military Records with regard to the matter of retirement. The Air Force Correction Board refused to change the records so as to reflect retirement by reason of physical disability and, accordingly, on January 12, 1954, denied plaintiff's request.

Next, on March 22, 1957, plaintiff requested that the Air Force correct his records to indicate the recall of plaintiff to active duty on June 14, 1949, in the grade of master sergeant. The Air Force Correction Board informed plaintiff, on December 9, 1957, that his request was not within the purview of the Department of the Air Force, since plaintiff had never held enlisted status in the Air Force.

Then, plaintiff submitted to the Army Board for the Correction of Military Records his application regarding reenlistment. On June 12, 1958, plaintiff was notified that his application had been denied without a hearing. After plaintiff's request for reconsideration, the Army Correction Board granted review, but, on August 3, 1959, plaintiff's application was again denied.

Finally, on June 16, 1960, plaintiff requested that the Army Correction Board change plaintiff's records to reflect his retirement for physical disability as of December 13, 1947, and his corresponding entitlement to disability retirement pay. This application was denied on May 17, 1961.

With regard to each of plaintiff's claims, this court must determine whether plaintiff's cause of action is barred by the 6-year statute of limitations, 28 U.S.C. § 2501. Although each of the claims rests upon a slightly different set of the facts, it appears that one of plaintiff's arguments applies to all three claims. That is, plaintiff asserts that, because of the Soldiers' and Sailors' Civil Relief Act of 1940,³ the statute of limitations was tolled with respect to his causes of action.⁴ The contention of plaintiff is that, but for the unlawful rejection of his application for reenlistment, plaintiff would have continued to be in military service and, thus, would have been protected by the Civil Relief Act. According to plaintiff, the Government should not be permitted to take advantage of its own wrongful conduct and, therefore, in the eyes of the law, plaintiff should be considered as coming within the terms of the Civil Relief Act.

In evaluating plaintiff's contention, it can be assumed, arguendo, that the rejection of his attempted reenlistment was a violation of plaintiff's statutory right to reenlist. However, the express terms of the Civil Relief Act make it certain that plaintiff's view regarding the tolling of the statute of limitations cannot prevail. First, the pertinent section of the Civil Relief Act, 50 U.S.C. App. § 525, halts the operation of statutes of limitations only during the "period of military service." The instant plaintiff has not, since June 14, 1949, been in "military service" as that term is defined in the Civil Relief Act, 50 U.S.C. App. § 511. Plaintiff's release from active duty terminated his "period of military service." Therefore, since June 14, 1949, the tolling provision of the Civil Relief Act has not been applicable to claims of plaintiff.

Secondly, this court does not accept the argument of plaintiff that he is entitled to the protection of the act on the basis of "constructive military service." The express purpose of the Civil Relief Act is, by means of the temporary suspension of certain legal proceedings which might prejudice the rights of persons in military service, "to enable such persons to devote their entire energy to the defense needs of the Nation, * *." Soldiers' and Sailors' Civil Relief Act of 1940, supra, 50 U.S.C. App. § 510 (1958). Therefore, it is apparent that the act was not intended to benefit a person like the instant plaintiff. Even though plaintiff may have had a right to be in military service after June 14, 1949, the fact remains that, subsequent to that date, he was not in military service. Under these circumstances, there is no foundation for plaintiff's assertion that the tolling provision of the Civil Relief Act has continued to apply to him.

ARMY DISABILITY RETIREMENT PAY

With regard to his first claim, plaintiff seeks the disability retirement pay of an Army major for the period since December 13, 1947. Defendant contends that the claim accrued upon the approval by the Secretary of War of the proceedings of the Army Retiring Board which had found, on June 26, 1947, that plaintiff was not incapacitated for general service.⁵ Defendant's conclusion that the claim for Army disability retirement pay is time-barred is correct. The Government properly relies upon the following principles stated in Friedman v. United States, 310 F.2d 381, 159 Ct.Cl. 1, 24 (1962), cert. denied, Lipp v. United States, 373 U.S. 932, 83 S.Ct. 1540, 10 L.Ed.2d 691 (1963):

"(a). The judicial claim for disability retirement pay does not accrue on release from active duty but rather on final action of a board competent to pass upon eligibility for disability retirement * * *.

"(b). Normally, the Retiring Board is the proper board, * * *."

Clearly, in the case at bar, the decision of the Army Retiring Board became final. The statute of limitations began to run on December 13, 1947, the date of plaintiff's release from active duty.

It should be noted, however, that contrary to the assertion of defendant, the statute of limitations has not run continually since December 13, 1947. Subsequent to December 13, 1947, plaintiff spent a total of approximately 18 months on active...