Stephens v. United States

• Citation: 174 Ct. Cl. 365,358 F.2d 951
• Decision Date: 18 February 1966
• Docket Number: No. 189-60.,189-60.
• Parties: James D. STEPHENS v. The UNITED STATES.
• Court: U.S. Claims Court

174 Ct. Cl. 365, 358 F.2d 951 (1966)

James D. STEPHENS v. The UNITED STATES.

No. 189-60.

United States Court of Claims.

February 18, 1966.

Joe Hobson, Prestonburg, Ky., attorney of record, for plaintiff.

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

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

COWEN, Chief Judge.

Plaintiff, a former Army Reserve officer, sues to recover disability retirement pay commencing either from the date of his release from active duty in May of 1954, or from the date he suffered a myocardial infarction while on a 15-day active Reserve tour of duty in August of 1957.

Plaintiff was appointed 2nd Lieutenant, ORC, on September 8, 1937, and served on active duty from April 21, 1941 to April 23, 1946, successively as a 1st Lieutenant, Captain, and Major. From April 24 to October 13, 1946, his status was that of a Major in the Reserves. On October 14, 1946, he was recalled to active duty in the grade of Major, and subsequently was promoted to Lieutenant Colonel. On May 31, 1954, while serving as Lieutenant Colonel, he was relieved from active duty by reason of denial of category renewal, and according to the Army records, not by reason of physical disability. Plaintiff then received a commission as Major in the Army Reserve, in which capacity he served until he was honorably discharged on April 28, 1960, due to physical disqualification.

In December of 1943, while on active duty, plaintiff experienced the discomforting effects of sacroiliac strain, the first important instance in a series of various illnesses which have plagued him intermittently to the present date. In 1948 further strains of the sacroiliac joints were evidenced and plaintiff was treated, as before, by diathermy. Later in that year he was hospitalized for "right upper quadrant tenderness," and diagnosed as having chronic cholecystitis or inflammation of the gall bladder. In November of 1950 he was hospitalized for bursitis of the left shoulder and in May of 1951 for infectious hepatitis and jaundice. At the end of May 1951, his gall bladder was surgically removed in Okinawa. Later in the same year he complained of a certain amount of chest pain. In February of 1953, he was again hospitalized with bursitis. In January of 1954, he was transferred at his own request from an infantry training task to an administrative job, and in March of that year he received outpatient treatment for headaches and dizzy spells. Two electrocardiograms then administered proved to be negative. In April 1954 plaintiff was scheduled for release from active duty, due to change of category. His request for a continuation of active duty was denied, and he was consequently released as anticipated on May 31, 1954.

A final type physical examination conducted at Camp Polk, Louisiana, on May 25, 1954, to determine plaintiff's physical qualification for release, found him to be fit and qualified for general military service, with a physical profile of P111111.¹ The Report of Medical History accompanying the examination took note of plaintiff's past ailments and complaints, including his gall bladder removal, back pains, stomach and liver disorders, headaches and dizziness, chest pains, bursitis, and sacroiliac strain.

Upon his release from active duty, plaintiff was reassigned to the Reserves and obtained civilian employment of an administrative nature. He continued, as he had before separation from active military service, to complain of various stomach and back disorders. From March 3 to March 7, 1955, he was hospitalized, and an examination disclosed a duodenal ulcer and pancreatitis.

On April 1, 1955, plaintiff tried to enlist in the Regular Army, but was found physically unfit for entry on duty as an enlisted man, with a physical profile of P411121, temporary. From August 6 to August 20, 1955, he was ordered to active duty as a Reserve officer, and in connection with that tour of duty, he represented that he considered himself sound, well, and fit for full military duty, citing the favorable physical rating he had received one year earlier upon his separation from active duty. On May 9, 1955, the Veterans' Administration rated plaintiff 10 percent disabled, effective June 1, 1954, as a result of the residual effects of his gall bladder removal. No disability rating was awarded on account of the ulcer or pancreatitis. On January 25, 1956, plaintiff again tried to enlist in the Regular Army and was once more found unfit for entry on regular military duty, with a profile of P411111, permanent, due to chronic pancreatitis.

Three days later, on January 28, 1956, plaintiff applied to the Army's Board for Correction of Military Records, claiming that he should have been found physically disabled at the time of his release from active duty on May 31, 1954. In his application, plaintiff based his claim to disability principally on his gall bladder removal and post-operative pains and on his March 1955 ulcer and pancreatitis, alleging that the latter existed prior to separation. Plaintiff stated, moreover, that he had orally requested a physical evaluation board at the time of separation, but that defendant's officials had deemed this action inadvisable.

On March 19, 1956, the Correction Board referred the case to the Surgeon General's Office for comment and opinion as to whether plaintiff's physical condition upon release from active duty was such as to require retirement for physical disability. In reply, the Surgeon General stated that there could, of course, be no doubt as to the existence of gall bladder disease in the case but that the records did not substantiate the presence of an ulcer or pancreatitis at the time of separation. Notice was taken of the discomforts that plaintiff suffered subsequent to his gall bladder operation, but it was pointed out that there was no indication that he sought aid or relief at any Army medical facility for these symptoms. In conclusion, the Surgeon General expressed the opinion that at the time plaintiff was released from active service, the records indicated that he had no condition which would have warranted his retirement by reason of physical disability under the pertinent statutes and regulations then in force. Plaintiff's request for a hearing was denied and the Correction Board refused to alter his records.

Plaintiff served on his normal annual active Reserve duty from June 17 to July 1, 1956, but the Chief of Medical Service determined on June 29, 1956, that he could do no duty. On July 20, 1956, plaintiff requested the Army Correction Board to reconsider his application in light of this latest development and urged the Board to consider his unsuccessful attempts to enlist in the Regular Army and his 10 percent disability rating from the Veterans' Administration. However, on July 24, 1956, 4 days after filing the request, plaintiff completed an Army Reserve Qualification and Availability Questionnaire in which he indicated his availability for active military duty. No mention was made of any physical defect which would have precluded such service. On December 17, 1956, after a review of the additional evidence submitted, the Correction Board denied plaintiff's request for reconsideration of the case.

Shortly after the second denial of relief by the Correction Board, plaintiff went on a short tour of duty to attend the National Resources Conference, certifying at the time his fitness for active duty. On July 20, 1957, plaintiff entered his normal 15-day active Reserve tour of duty at Fort Meade, Maryland, after once more certifying his physical qualification. On August 2, 1957, while performing this tour of duty, plaintiff sustained a myocardial infarction for which he was hospitalized in Army facilities until October 4, 1957. (A more detailed description of this illness and its relevant consequences will be found later in this opinion, in conjunction with the second court of plaintiff's claim.) On September 28, 1957, while a patient at the Walter Reed Army Hospital, plaintiff filed a third application with the Board for Correction of Military Records, again alleging his physical disqualification as of May 31, 1954. All of plaintiff's major illnesses were listed in the request, with particular emphasis laid on his 1951 gall bladder removal, his 1955 pancreatitis, and his 1957 myocardial infarction. On April 28, 1958, plaintiff was notified that his request for reconsideration had been denied because the Board, after again considering the records of the case, including those relevant to his hospitalization following the myocardial infarction, had found no basis for a formal hearing or for an alteration of the records.

Thus, three times plaintiff applied to the Army Board for Correction of Military Records, requesting that his records be changed to show his physical disability and consequent entitlement to disability retirement pay as of May 31, 1954, the date of his separation from active military service. Three times that administrative body refused to grant the relief requested. Plaintiff, of course, attacks the decisions of the Army as arbitrary and unjustified by the medical records and evidence in the case, and asserts that if a physical evaluation board had been convened upon his oral request and had competently and comprehensively examined him just prior to his release from active duty, it would have found him physically disqualified to perform general military service at that time.

This court has held on many occasions that it has no power to review the decisions of the Secretary of one of the military departments or his authorized representatives in such a case unless the petitioner shows by cogent and clearly convincing evidence that such determinations are arbitrary, capricious, or not supported by substantial evidence. Furlong v. United States, 153 Ct.Cl. 557 (1961); Wales v. United States, 130 F....