Ogden v. Zuckert, 16283.

• Decision Date: 14 December 1961
• Docket Number: No. 16283.,16283.
• Parties: William B. OGDEN, Appellant v. Eugene M. ZUCKERT, Secretary of the Air Force, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

111 US App. DC 398, 298 F.2d 312 (1961)

William B. OGDEN, Appellant v. Eugene M. ZUCKERT, Secretary of the Air Force, Appellee.

No. 16283.

United States Court of Appeals District of Columbia Circuit.

Argued October 6, 1961.

Decided December 14, 1961.

Mr. John L. Kilcullen, Washington, D. C., for appellant.

Mr. Arnold T. Aikens, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Charles T. Duncan, Principal Asst. U. S. Atty., were on the brief for appellee. Mr. Daniel J. McTague, Asst. U. S. Atty., also entered an appearance for appellee. Mr. Oliver Gasch, U. S. Atty., at the time the record was filed, and Mr. Carl W. Belcher, Asst. U. S. Atty., at the time the record was filed, also entered appearances for appellee.

Before FAHY, BASTIAN and BURGER, Circuit Judges.

FAHY, Circuit Judge.

Appellant, William B. Ogden, to whom we shall refer as plaintiff, is a commissioned Air Force officer with a record of sixteen years active service as a pilot, navigator and bombardier, including combat service during World War II. The appellee, defendant, is the Secretary of the Air Force.

Plaintiff reached the rank of major with an unblemished record. In 1957 he was found to be suffering from severe chronic anxiety and chronic bronchitis. His case was referred to a Medical Board of the Air Force to determine whether he was qualified to be retained in the service.¹ The diagnosis was confirmed by the Medical Board, which thereupon referred his case to a Physical Evaluation Board.² This Board found plaintiff unfit for retention on active duty and recommended that he be placed on the temporary disability retired list with a disability rating of 40 per cent. This recommendation was subsequently approved by the Physical Review Council.³ In March 1958 the then Secretary of the Air Force directed that Ogden be placed on the temporary disability retired list with a compensable rating of 40 per cent. Two years later, in February 1960, he underwent a periodic examination required by statute to determine whether his physical disability was of a permanent nature.⁴ He was given an extensive physical and psychiatric examination at Andrews Air Force Base Hospital. His case was then considered by a Medical Board consisting of three medical officers of the Air Force. This Board found plaintiff's condition permanent and not likely to improve. The case was then referred to a duly convened Physical Evaluation Board at Andrews Air Force Base, which confirmed the findings of the Medical Board and recommended that plaintiff be placed on the permanent disability retirement list with a compensable disability rating of 40 per cent. This finding and recommendation was reviewed by the Air Force Physical Review Council. The Council recommended that plaintiff's compensable disability be reduced from 40 per cent to 10 per cent and that he be discharged from the service. The case then came before the Air Force Physical Disability Appeal Board, which, without further medical evidence or an additional physical examination of plaintiff's condition, affirmed the Council's recommendation. Pursuant to this finding the Secretary on May 20, 1960, directed the removal of plaintiff's name from the temporary disability retired list and that he be discharged from the service on May 31, 1960. The action in the District Court was then instituted by plaintiff.

Plaintiff seeks a declaratory judgment that he is entitled to be retained on the permanent retired list of the Air Force rather than being discharged. The District Court granted defendant's motion to dismiss the complaint, holding that plaintiff had failed to exhaust his administrative remedies. Recitals in its order indicate that the court concluded that plaintiff, before the court could take jurisdiction, was obliged to submit his problem to the Air Force Board for Correction of Military Records. This Board is established pursuant to a statute⁵ which implements section 131 of the Legislative Reorganization Act of 1946. Section 131 provides that no private bill or resolution authorizing or directing the correction of military or naval records shall be received or considered in either the Senate or the House of Representatives.⁶ In lieu of this method of seeking relief the statute provides:

"The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice. * * * Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States."⁷

The statute further provides that no correction may be made under the above provision "unless the claimant or his heir or legal representative files a request therefor before October 26, 1961, or within three years after he discovers the error or injustice, whichever is later."⁸ At present the period of limitation is three years after the error or injustice is discovered.

Regulations were promulgated in due course to implement the statute, but with one exception they shed no light upon our problem. The exception reads:

"The record of proceedings of the Board will be forwarded to the Secretary of the Air Force who will direct such action in each case as he determines to be appropriate. * * *"⁹

The Government takes the position, and we assume for purposes of this opinion, that the Air Force Board for Correction of Military Records, to which we shall refer hereinafter as the Board, would if requested assume jurisdiction of Major Ogden's problem, and that the Board could make a recommendation which, if approved and acted upon by the Secretary, would afford plaintiff the relief he seeks, that is, in substance, that he be placed upon the Air Force permanent retired list rather than being separated from the service.

While the problem is a subtle one and the answer not entirely clear, we conclude that the court was not deprived of jurisdiction by plaintiff's omission to seek Board consideration. Several factors lead to this conclusion. The statute under which the Board was established obviously was intended by Congress to take the place of private bills for relief from error or injustice at the hands of the Armed Services.¹⁰ There is no indication of congressional consciousness or intention that judicial jurisdiction would be affected. This may be due in part to the absence of any legislative provision for judicial review of the Secretaries' actions in such matters, but the fact remains that no intention is evidenced to preclude judicial review as previously authorized by court decisions. The congressional plan is for the Boards to assist the Secretaries in correcting errors and injustices in military records. This plan was not designed to bring the Boards into the original administrative process of making the records, a process which is participated in by the various other boards, referred to earlier in this opinion, which considered and reviewed plaintiff's case before the Secretary acted.

There are important additional factors. An application to the Board may be delayed up to three years after the discovery of the error or injustice, and the aid of the Board may be invoked by the claimant's heirs or legal representatives as well as by the claimant himself. All this obviously removes Board consideration from the administrative process which precedes finality.

The Board furnishes a means by which to seek correction of error or injustice, but neither statute nor regulation requires this means to be pursued as a condition to finality of the Secretary's action. The relief which might ensue after Board consideration, similar to relief previously obtained by private bills enacted by Congress, is through a procedure over and above that which guides the administrative process itself to its end. It is a part of a different and subsequent procedure. The place and function of the Board may be roughly compared to that of the bill of review in equity which sought relief from a final judgment where error or injustice appeared. See Rule 60(b), Fed.R.Civ.P., 28 U.S.C.

It would be a welcome matter for the courts to be able to disclaim jurisdiction until after resort to the Board; but our problem is not to satisfy judicial convenience so much as it is under existing legislation and decisions to preserve to the individual a forum to which he is entitled to present his case. And this is so even though most persons will undoubtedly resort to the Board; for the criteria for obtaining judicial relief are difficult to satisfy in such a case, involving the management by the Armed Services of their personnel problems.

The most pertinent judicial decisions interpreting the nature of these Boards have arisen in litigation before the United States Court of Claims.

In Girault v. United States, 135 F. Supp. 521, 133 Ct.Cl. 135 (1955), the question was whether the period of limitations within which one must sue in the Court of Claims began to run from the time the Secretary acted. Holding that application to the Board did not suspend the period of limitations, the court said,

"All of these boards, the Retiring Board, the Disability Review Board, and the Board for Correction of Military Records act only in an advisory capacity to the Secretary of War. If his decision on the retirement rights of an officer is alleged to have been arbitrary, then the officer\'s right to come to the court for redress accrues as soon as the arbitrary decision is rendered.

"Indeed, the statutes did not contemplate court review at all; full and complete jurisdiction to determine an officer\'s right to retire for disability was lodged in the Secretary of War, acting for the President. Resort to the court can only be had if the Secretary\'s action is arbitrary or unlawful. As soon as it

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