Steen v. United States , 141 F. Supp. 946 ( 1956 )

WhitakeR, Judge,

delivered the opinion of the court:

Plaintiff, a reserve officer, entered upon extended active duty on December 27, 1940, and served until May 24, 1947, when he was released not for physical disability, following the decision of a retiring board that he was not “permanently incapacitated for active service,” and its recommendation that he be placed on “general service with a waiver.”

Plaintiff claims he should have been retired for physical disability.

There is no evidence of arbitrary or capricious action. On the contrary, careful and impartial consideration was given plaintiff’s claim, as will appear from the following:

About 4 years after the action of the retiring board, the Secretary of the Army authorized plaintiff to enter an Army hospital preliminary to appearing before a physical evaluation board, but with the reservation that the right of officers in an inactive status to do so under existing law was then being studied.

Plaintiff entered the hospital and later appeared before a physical evaluation board. This board found that plaintiff became unfit to perform the duties of his rank prior to the date of Iris release to inactive duty. However, before action by the Secretary of the Army on the recommendation of this board, the Comptroller General had ruled that officers in an inactive status were not entitled to apply for discharge for physical disability incurred while serving on active duty. ■For this reason no action was taken on the recommendation of the physical evaluation board.

A year and a half later plaintiff asked the Army Board for Correction of Military Becords to correct his record so as to show that he was physically incapacitated when he was released to inactive duty. After a hearing, this board denied plaintiff’s application, which was approved by the Secretary of the Army.

The Comptroller General’s ruling that an officer in an inactive status was not entitled to appear before a physical evaluation board was erroneous, and refusal for this reason to approve the recommendation of the board was, therefore, erroneous. It is nonetheless the fact that its finding was not approved, and it takes the approval of the Secretary to consummate an officer’s right to retirement benefits. Later, when the plaintiff appeared before the Army Board for Correction of Military Records, the action of that board denying his application was approved by the Secretary of the Army.

The case then boils down to this: The original action of the retiring board denying retirement for physical disability was approved by the Secretary, and the subsequent action of the Army Board for Correction of Military Records denying his application for correction of his record to show physical disability was approved by him. Plaintiff, therefore, comes before us with no action by the Secretary approving his claim, and his approval is essential to perfect an officer’s right to retired pay, in the absence of a showing of arbitrary or otherwise unlawful action. It was on a retiring board, and later on a physical evaluation board, and on the Secretary that jurisdiction was conferred to determine an officer’s right to retired pay, and not on us. We have no jurisdiction to review or set aside their action if taken in good faith and in accordance with law.

This case differs from the case of Updike v. United States, 132 C. Cls. 627, in that in the Updike case the Secretary of the Army had approved the findings of the Retiring Board and Updike had been placed upon the disability retired list. This was a final adjudication of his rights. In that case we held that the Secretary of the Army did not have the right some time later on to set aside this ruling, and for this reason we gave Updike a judgment.

In the case at bar, the Secretary of the Army approved neither the finding of the Retiring Board nor the Physical Evaluation Board. It took his approval of the Physical Evaluation Board to complete plaintiff’s right to retired pay. This approval was never given. When the matter finally came to the attention of the Secretary of the Army, when the action of the Army Board for Correction of Military Records was presented to him for action, he approved the action of that board refusing to correct plaintiff’s records. Plaintiff’s records showed that he was not permanently incapacitated for active service.

Hence, plaintiff bas not obtained approval of the Secretary of the Army of the finding of the Physical Evaluation Board that he was physically incapacitated. On the contrary, the action of the Secretary of the Army amounts to a disapproval of its recommendation. Without the Secretary’s approval of a finding that the plaintiff is incapacitated, he is not entitled to retired pay.

Plaintiff’s petition must be dismissed. It is so ordered.

Laramoee, Judge, and Jones, Chief Judge, concur.