Palluconi v. United States , 143 F. Supp. 572 ( 1956 )

Whitakee, Judge,

delivered the opinion of the court:

Plaintiff’s suit is for retired pay. The case is before us on the report of the Commissioner, exceptions thereto, briefs, and argument.

Plaintiff, a paratrooper, was dropped behind the enemy lines during the attack of the American forces on Sicily. He was captured by the Germans on July 10, 1943, and was their prisoner of war until liberated by the Bussians in January 1945. During this time he suffered great hardships, as a result of which he contracted rheumatic fever, which affected his heart. Pie was in the prison infirmary from October 1943 to March 1944, attended by American doctors, who were also prisoners of war.

During his confinement in prison his weight dropped from 175 pounds to around 110 pounds; but when liberated by the Bussians he was given the run of the country, and rapidly regained 40 of the pounds he had lost.

After liberation, he was sent by the Bussians to Odessa, and from there he was taken to Naples by a British vessel. There he was given a physical examination by the United States Army Medical Corps, and was then sent to the United States by troopship, arriving at Fort Benning, Georgia, in April 1945.

He was then sent to a recreation center in Miami, after which he was assigned to a parachute infantry battalion, and then to the Fourth Infantry Training Battalion. He took an infantry refresher course, and was then assigned to this battalion as a training inspector. He remained on such duty until released to inactive duty about a year later.

In the early part of 1946, he learned that he was about to be sent to Japan; whereupon, he requested relief from active duty. He was relieved on May 24,1946, after having undergone a terminal physical examination.

While undergoing this physical examination plaintiff advised the doctors he had had rheumatic fever with a heart involvement while a prisoner of war, and that he had shortness of breath and swelling of the joints on moderate exercise. Plaintiff, however, did not request discharge for physical disability, and he was not discharged for this reason, although a note was made of this medical history.

On the basis of this physical examination, the Veterans’ Administration rated plaintiff 10 percent disabled. Three years later, on March 16, 1949, on the basis of their examination of plaintiff at that time, they rated him 60 percent disabled, by reason of heart disease.

Shortly thereafter plaintiff wrote the Adjutant General applying for a pension. The Adutant General replied on September 22 that while there was some doubt about plaintiff’s eligibility therefor, he would nevertheless order him before a retiring board, if the evidence showed that plaintiff was physically disabled at the time of his separation from the service. A year later, plaintiff made formal application to appear before a review board, and, in response thereto, the Adjutant General notified him to appear before a medical board at Camp Atterbury, Indiana. This board found that plaintiff had arteriosclerotic heart disease with angina of effort, and that he became incapacitated for military duty in August 1943. In accordance with the recommendation of this medical board, plaintiff then, on February 19, 1951, appeared before a physical evaluation board, which confirmed the findings of the medical board and found that plaintiff was 60 percent disabled.

However, on March 14, 1951, the Army Physical Beview Council reversed the action of the Physical Evaluation Board on the ground that it was not substantiated by the evidence, and for certain technical reasons, and sent the case back to the Physical Evaluation Board.

Then on July 16, 1951, the Adjutant General notified plaintiff that the proceedings of the Physical Evaluation Board were being set aside, because of the decision of the Comptroller General, holding that reserve officers who had been released from active duty, not by reason of physical disability, had no right to be brought before a physical evaluation board or a retiring board, for the purpose of possible retirement for physical disability with pay. As a result, plaintiff was denied the right to appear before an Army retiring board.

Nearly a year later, plaintiff made application to the Board for Correction of Military Records for a correction of his record to show that he was 60 percent disabled by reason of arteriosclerotic heart disease with angina of effort. This board made a thorough review of plaintiff’s military records, his medical records, and the records of the Veterans’ Administration, and concluded that the findings of the Physical Evaluation Board on February 19,1951, above referred to, were based on plaintiff’s physical condition at that time, rather than on the date of his separation from the service on May 24,1946, and that there was no evidence of any error or injustice in plaintiff’s separation from active service not for physical disability. Plaintiff was so notified on October 20, 1953.

Thereafter, on its own motion the Army Board for Correction of Military Records requested that plaintiff be sent to Walter Reed Army Hospital for medical examination and appearance before a medical board and physical evaluation board, and that their findings and the prior proceedings in plaintiff’s case be forwarded first to the Army Physical Review Council, and then to the Army Board for Correction of Military Records, for further consideration.

Accordingly, plaintiff was admitted to Fort Sheridan Infirmary on December 27, 1953, where the records were examined and plaintiff was given a further physical examination, as the result of which the medical board found that plaintiff’s old rheumatic fever was inactive, without heart involvement, and that at the time of his separation from the service he was under no physical disability which was sufficient to incapacitate him for further duty.

On September 14, 1954, the Army Board for Correction of Military Records further considered the matter and concluded that there was no basis for changing their original determination, to wit, that there was no error in the release of plaintiff to inactive duty not for physical disability.

Such are the facts.

All the members of this court have great sympathy for the plaintiff on account of the hardships and, indeed, the inhuman treatment to which he was subjected while a prisoner of war; but the sole question before us is whether or not those agencies, which were given authority by Congress to determine plaintiff’s right to retired pay on account of physical disability, acted fairly and impartially and according to law. If they did, their findings are conclusive upon us.

There is not the slightest evidence of arbitrary or capricious action; on the contrary, plaintiff’s case was given careful and sympathetic consideration. It is true, as we have heretofore held, that the Comptroller General was wrong in saying that a reserve officer who had been released to inactive duty, not on account of physical disability, such as plaintiff, was not entitled to apply to appear before the physical evaluation board or a retiring board; and, hence, the Adjutant General was wrong in saying that its findings were null and void; but the findings of this board were reversed by the Army Physical Review Council; and, in addition, the Board for Correction of Military Records thoroughly reviewed the findings of this physical evaluation board and determined that they were based on plaintiff’s condition at the time he appeared before that board, and not at the time of his release to inactive duty. It is his condition at the time he was released to inactive duty that determines his right to retired pay. The Board for Correction of Military Records determined that his physical condition at that time did not justify his retirement for physical disability, and the Secretary of War has approved those findings.

That decision is conclusive upon us, since it was arrived at fairly and impartially, and in accordance with law.

It results that plaintiff’s petition must be dismissed.

It is so ordered.

Lakamoke, Judge, and MaddeN, Judge, concur.