Spencer v. United States, 49438.

• Decision Date: 05 February 1952
• Docket Number: No. 49438.,49438.
• Citation: 102 F. Supp. 774,121 Ct. Cl. 558
• Parties: SPENCER v. UNITED STATES.
• Court: U.S. Claims Court

102 F. Supp. 774

121 Ct. Cl. 558

SPENCER v. UNITED STATES.

No. 49438.

United States Court of Claims.

February 5, 1952.

Thomas H. King, Washington, D. C., for the plaintiff.

Paris T. Houston, Washington, D. C., with whom was Holmes Baldridge, Asst. Atty. Gen., for the defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judges.

MADDEN, Judge.

The plaintiff sues to recover disability retirement pay for the period between October 4, 1944, and December 31, 1949, as a Reserve Army officer on the ground that he was certified by the Secretary of War to the Veterans' Administration for disability retirement pay. Plaintiff contends that this certification was a final order by the Secretary of War and could be revoked only upon a showing of fraud, which was not present in his case. It is the Government's contention that the retirement orders of a Reserve officer are not final orders and that certain medical reports of the Veterans' Administration hereinafter referred to constituted sufficient new evidence to justify the reopening of the proceedings.

Plaintiff had been commissioned a Captain in the Organized Reserve Corps of the Army of the United States during World War I, and served various periods of active duty from 1918 to 1940 as part of his Reserve training activities.

On August 14, 1940, he was given a physical examination by Army medical officers and was found to be suffering from arterial hypertension, or high blood pressure, which, he was advised by these medical officers could be corrected within one year. A subsequent Army medical examination in October 1940, found that this disqualification had been removed.

On December 11, 1940, plaintiff submitted to a physical examination by Veterans' Administration physicians, and that examination showed that he had arterial hypertension. At this time plaintiff stated to the medical examiner that he had had high blood pressure. However, on December 13, 1940, plaintiff was again examined by Army physicians, and on this occasion was found to be fit for active duty. Plaintiff entered on active duty as a Lieutenant Colonel on March 24, 1941, at which time he was given a Final Type physical examination and found fit for extended active duty.

On June 3, 1944, plaintiff, while in active service, entered a military hospital suffering from physical exhaustion. Shortly thereafter he was ordered before an Army Retiring Board for a hearing. The Board, on the basis of plaintiff's statements that he had not had any trouble before being called to active service, and on the basis of extensive medical reports before it, entered findings that plaintiff was suffering from arterial hypertension which permanently incapacitated him, and that the incapacity was an incident of the service. Subsequent proceedings before the same Retiring Board in September 1944 resulted in the same conclusions.

These findings were approved by the Secretary of War on October 30, 1944, who on January 12, 1945, officially certified plaintiff to the Veterans' Administration to receive retirement pay in the amount of $362.50 monthly, effective from October 4, 1944.

On March 19, 1945, this certification was revoked by the Secretary of War and plaintiff was notified that his records were being returned to the Army Retiring Board for further proceedings in view of additional evidence consisting of the report of plaintiff's physical examination by the Veterans' Administration on December 11, 1940. The reconvened Retiring Board, after reviewing plaintiff's medical records, including the report of the Veterans' Administration examination, again found, as had the first Retiring Board, that although plaintiff had suffered from hypertension prior to his acceptance for active service in 1941, that condition had been sufficiently alleviated to warrant his acceptance for extended active duty in 1941, and that the hypertension which caused his disability in 1944, was a new condition which originated while plaintiff was on active duty. These findings were disapproved by the Secretary of War.

Plaintiff then requested a review by the Disability Review Board of the action of the Secretary of War. This Board in turn reversed the findings of the retiring boards and found that plaintiff's condition had originated prior to entry on active duty, hence was not an incident of the service.

It is plaintiff's contention that when officials of the War Department, acting for the President, have made a determination that an officer is entitled to retirement and retirement pay, such decision is final and binding, leaving the officials functus officio, and that the proceedings can be reopened and reversed later only upon a showing of fraud, or such gross error as would amount to fraud.

In 1939, Congress enacted legislation, the general purpose and intent of which were to place Reserve officers on a par with Regular Army officers as to retirement rights. Senate Report No. 80, p. 7, 76th Congress, 1st Session; Senate Report No. 1947, p. 7, 76th Congress, 3d Session. It is provided, so far as here material, in section 5 of the Act of April 3, 1939, 53 Stat. 557, as amended by the Act of December 10, 1941, 55 Stat. 796, 10 U.S.C.A. § 456, that: "All officers * * * of the Army of the United States, other than the officers * * * of the Regular Army, if called or ordered into the active military service by the Federal Government for extended military service in excess of thirty days, * * * and who suffer disability or death in line of duty from disease or injury while so employed shall be deemed to have been in the active military service during such period and shall be in all respects entitled to receive the same pensions, compensation, retirement pay, and hospital benefits as are now or may hereafter be provided by law or regulation for officers * * * of corresponding grades and length of service of the Regular Army. * * *"

The Act of September 26, 1941, 55 Stat. 733, 10 U.S.C.A. § 456a contains similar provisions.¹

As these enactments were silent as to the method of administration of the retirement benefits provided thereby, Congress further provided in section 2 of the Act of September 26, 1941, supra, 55 Stat. 734, 38 U.S.C.A. § 12, that: "The duties, powers, and functions incident to the administration and payment of the benefits provided in section 456a of Title 10 are hereby vested in the Veterans' Administration: Provided, That in the administration of the retirement pay provisions of the said statute the determination of all questions of eligibility for the benefits thereof, including all questions of law and fact relating to such eligibility, shall be made by the Secretary of War, or by someone designated by him in the War Department, in the manner, and in accordance with the standards, provided by law or regulations for Regular Army personnel * * *."²

Pursuant to the rights created by these statutes, plaintiff was initially granted the proper procedure before retiring boards. This procedure, detailed in R.S. 1246-1250, 1253, 10 U.S.C.A. §§ 961-966, provides that the Secretary of War, under the President's direction, shall create Army retiring boards to conduct hearings and inquire into the disability of any officer, enter findings as to its cause, and transmit these findings to the Secretary of War for the action of the President. The procedure is the same whether an officer is a member of the Regular Army or of the Organized Reserves. Army Regulations 35-3420 of March 10, 1943, and 605-250 § 1 of March 28, 1944, in effect at the time plaintiff went before a retiring board, make no distinction between these classes of officers.³ Army Regulations have the force of law. Hironimus v. Durant, 4 Cir., 168 F.2d 288, certiorari denied, 335 U.S. 818, 69 S.Ct. 40, 93 L.Ed. 373; Gratiot v. United States, 4 How. 80, 11 L.Ed. 884. Section 36b of AR 605-250, supra, the proper interpretation of which is the main issue in this case specifically states that, "Orders for retirement, having become effective in any case, cannot be revoked or amended."

The Government urges that Section 36b applies only to Regular Army Officers. There is reason for that interpretation. Reserve officers, following retirement for service-connected disability, merely revert to inactive status with the right to receive retirement pay from the Veterans' Administration, while Regular Army retired officers are carried on a retired list and paid by the Army. When an officer of the Regular Army is retired a vacancy is created, and the President may and ordinarily does appoint a successor whose appointment must be confirmed by the Senate. A new appointment of the retired officer would similarly require confirmation by the Senate. Great confusion would be caused if it were permissible, by Executive action, to revoke the retirement order of a Regular Army officer. But in the case of a Reserve officer, his status may be changed by Executive action only, by recall from inactive duty to active service.

The application of Section 36b of AR 605-250, to Regular Army officers, thus making it impossible to later correct a mistake made in connection with their retirement cannot except in extraordinary circumstances, prejudice either the officer or the Government. Whether the disability which requires the retirement of a Regular Army officer is, or is not, service-connected, he is entitled to retired pay. He has made the Army his career and, when he is no longer able to actively follow that career, he is entitled to be maintained by the Army. But a Reserve officer is entitled to retired pay only if the disability for which he is retired is service-connected. It may, then, be of vital consequence either to such an officer, or to the Government, that a mistake once made by a Retiring Board should not irrevocably and permanently fix the rights of the officer and the obligations of the Government.

The doctrine that a decision, though made by...