Montilla v. United States

• Decision Date: 14 April 1972
• Docket Number: No. 368-68.,368-68.
• Citation: 457 F.2d 978
• Parties: Victor J. MONTILLA v. The UNITED STATES.
• Court: U.S. Claims Court

457 F.2d 978 (1972)

Victor J. MONTILLA v. The UNITED STATES.

No. 368-68.

United States Court of Claims.

April 14, 1972.

Philip F. Herrick, Washington, D. C., attorney of record for plaintiff.

Arthur E. Fay, Washington, D. C., with whom was Asst. Atty. Gen. L. Patrick Gray, III, for defendant.

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

OPINION

SKELTON, Judge:

We are indebted to Trial Commissioner Mastin G. White in this case for his findings of fact and conclusion of law and also for his opinion, although we reach a different result. We have adopted his findings of fact with minor changes, and have used much of his opinion. The opinion of the court follows:

The question to be decided by the court in this case is whether the plaintiff, who has been a commissioned officer in the Army Reserve since March 1934 and who has been 60 years of age since March 1966, is entitled to receive retired pay from the Army in accordance with the provisions of 10 U.S.C. §§ 1331 and 1332. The plaintiff's application for retired pay was rejected by the Department of the Army on the ground that he did not have the minimum 20 years of qualifying service essential to establish his eligibility for retired pay benefits.

The plaintiff is a native and a resident of Puerto Rico. He is a licensed physician and has practiced medicine in Puerto Rico since the early 1930's, except for periods of active military duty performed by the plaintiff pursuant to his commission in the Army Reserve.

The plaintiff was originally commissioned as a first lieutenant in the Medical Corps Reserve of the Army on March 8, 1934, and he accepted this appointment by executing the oath of office on March 26, 1934. Subsequently, he was promoted to the grade of captain in the Medical Corps Reserve on December 9, 1939.

The plaintiff regularly participated in Army Reserve activities prior to World War II. He performed 2-week tours of active military duty for training purposes in 1935, 1936, 1938, and 1939. During the emergency period which preceded this country's entry into World War II, the plaintiff performed a 1-year tour of active military duty from October 14, 1940, to October 13, 1941.

After the United States became a participant in World War II, the plaintiff was on extended active duty with the Army from May 30, 1942, to September 6, 1945. He was promoted to the grade of major during the war.

On being released from active military duty at the end of World War II, the plaintiff was tendered—and he accepted —a commission as major in the Medical Corps Reserve of the Army. Some 15 months later, the plaintiff was promoted to the grade of lieutenant colonel in the Medical Corps Reserve.

Soon after being released from active military duty on September 6, 1945, at the end of World War II, the plaintiff opened an office for the practice of medicine in San Juan, Puerto Rico. He had not previously practiced in San Juan; and for a number of years after opening an office there, the plaintiff was extremely busy in his efforts to build up a medical practice. Because of this, the plaintiff did not participate in Army Reserve activities after World War II. However, he was still interested in the Army and he wished to continue as a member of the Active Reserve. It was the plaintiff's belief that his status as a member of the Active Reserve was dependent only upon his being physically fit to perform military duty and upon his willingness to perform such duty in the event of a call to active service, and he met both of these requirements. As a matter of fact, the plaintiff officially continued to be a member of the Active Reserve until August 1949.

On August 29, 1949, the Headquarters of the U. S. Army Forces Antilles, by means of paragraph 3 of Special Orders No. 170, transferred the plaintiff from the Active Reserve to the Inactive Reserve. In accordance with the presumption of official regularity, it can reasonably be inferred that the issuing headquarters mailed an extract copy of paragraph 3 to the plaintiff at the last address which the plaintiff had furnished to the Army. However, the plaintiff did not receive the extract copy of paragraph 3 or any other notice regarding the transfer from the Active Reserve to the Inactive Reserve in August 1949.

The plaintiff had moved his residence to No. 1111 Magdalena Avenue in Santurce, a suburb of San Juan, in September 1948. Although he notified the post office on the regular form regarding this change of address, he did not notify the Army until August 1951, or for a period of approximately 3 years after the change occurred. In this connection, the plaintiff was aware that he should notify the Army with reasonable promptness regarding any permanent change of address. Therefore, it must be concluded that the plaintiff's ignorance for several years after August 1949 concerning the transfer from the Active Reserve to the Inactive Reserve was due principally to his own negligence.

The plaintiff's membership in the Active Reserve of the Army from March 26, 1934 (the date on which the plaintiff accepted his initial appointment as a Reserve officer) through June 30, 1949, constituted qualifying service toward establishing the plaintiff's eligibility for retired pay under 10 U.S.C. § 1331 and 1332. Thus, at the close of June 30, 1949, the plaintiff had to his credit 15 years, 3 months, and 5 days of qualifying service. Beginning with July 1, 1949, the governing statutory provisions required that a reservist earn "at least 50 points" per year through specified activities in order for any annual period to be regarded as qualifying service toward establishing eligibility for retired pay benefits.

The plaintiff was unaware of the requirement which became effective on July 1, 1949, as indicated in the last sentence of the preceding paragraph.¹ The plaintiff continued to believe that he was still a member of the Active Reserve and that such status, if maintained for a total of 20 years, would qualify him for retired pay benefits from the Army after he reached the age of 60 years. After the plaintiff notified the Army of his correct address in August 1951, the Headquarters of the U. S. Army Forces Antilles wrote to the plaintiff on August 11, 1951, and directed that he report promptly to the Medical Examining Board, Induction Station, Fort Buchanan, Puerto Rico, for a physical examination in connection with an ORC Service Evaluation Program that was being conducted to determine the qualifications and availability of Reserve officers for active military duty. The plaintiff reported to the place mentioned and was given a physical examination.

Subsequently, by means of a communication dated October 28, 1952, the Army informed the plaintiff that he was eligible for an indefinite-term Reserve appointment, in lieu of his then-current 5-year appointment, and asked that he execute and return certain enclosed papers, including an oath of office, if he agreed to accept the indefinite-term appointment. The plaintiff agreed to accept the indefinite-term appointment, and he executed and returned the oath of office.

On March 25, 1954, the following letter was sent to the plaintiff by the Headquarters of the U. S. Army Forces Antilles and Military District of Puerto Rico:

HEADQUARTERS UNITED STATES ARMY FORCES ANTILLES AND MILITARY DISTRICT OF PUERTO RICO Fort Brooke, Puerto Rico ANTAG 201 Montilla, Victor J. 26 March 1954 03158 25 SUBJECT: Uniformed Services Contingency Option Act of 1954 (P.L. 239, 83d Congress, DA Bulletin 13, 1953) TO: Lt. Col. Victor J. Montilla, MC-USAR 1111 Magdalena Avenue Santurce, Puerto Rico

1. The Uniformed Services Contingency Option Act permits Reservists to elect, prior to completion of 18 years service which is creditable in the computation of basic pay, to receive a reduced amount of retirement pay to provide an annuity payable after death, to their widow, child or children if such widow, child or children are living on the date of his retirement.

2. Reservists who, on 1 November 1953, have completed over 18 years service, and any who will complete 18 years before 30 April 1954, which is creditable in the computation of basic pay, have until 30 April 1954, to elect an annuity. If this election is not made by this date, reservists in this category waive all rights to make a future election.

3. Members may elect one or more of the four (4) options payable in such amounts expressed as a percentage of the reduced amount of retired pay as specified at time of election, in amounts equal to one half, one fourth or one eight sic of the reduced amount of retired pay.

4. Attached herewith is Fact Sheet (FS-7), which explains this annuity plan in detail. An estimate of the probable cost to you depends on which option is desired, your age and your wife's age at time of retirement. This probable cost may be computed by referring to actuarial tables available in your local USAR Center or the Civilian Components Division of the Adjutant General's Office, this headquarters.

5. Records at this station indicate that you completed 20 years service, which is creditable in the computation of basic pay, on 7 Mar 1954. Therefore, you are required to either make an option or decline to do so by completing in triplicate DA Form 1041, which is inclosed.

6. It is requested that subject form be completed, signed, attested and returned in duplicate to this headquarters not later than 30 April 1954, in the enclosed self-addressed envelope which requires no postage. If you check the block "I do not desire to receive reduced retired pay in order to provide an annuity for my dependents", it is not necessary to secure the signature of an attesting officer. Emphasis supplied.

BY COMMAND OF BRIGADIER GENERAL SWEANY 3 Incls. Rex. L. Moyer /s/ 1. Fact Sheet (FS-7) REX L. MOYER 2. DA Form 1041 (trip) CWO, USA 3. Self-addressed envelope Asst AG

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