
    CLARENCE A. REMALEY v. THE UNITED STATES
    [No. 40-54.
    Decided April 3, 1956.
    Defendant’s motion for reconsideration overruled July 12, 1956]
    
      Mr. Paul B. Harmel for the plaintiff. Messrs. Oeiger and Harmel were on the brief.
    
      Mr. John B. Franklin, with whom was Mr. Assistant Attorney General Warren E. Burger, for the defendant.
   Madden, Judge,

delivered the opinion of the court:

This case was before us at an earlier stage, on motions of both parties for summary judgment. We overruled both motions and sent the case to trial before a commissioner of this court (129 C. Cls. 159). We decided that if the tour of duty during which the plaintiff incurred his disabling illness was not training, he was entitled to the benefits of subsection (a) or (b) of section 402 of the Career Compensation Act of 1949, which subsections allow retirement pay for any disability incurred in military service, and that he was not limited to the benefits of subsection (c), which allows retirement pay only for disabilities resulting from injuries. See James M. Gwin v. The United States, 133 C. Cls. 749, for a fuller discussion of the distinction.

.. In our earlier decision in this case we said that Congress had, in the Act of June 20, 1949, recognized a distinction between “active service,” and “active duty for training,” which distinction justified the Executive in limiting those engaged in the latter activity to the benefits of subsection (c). We refer to our earlier decision for an extended discussion of the statutory provisions.

■ The plaintiff was a Reserve officer in the Army. He had had some 20 years of military service, some 15 years of which had been active service. He was a good teacher of military tactics and, in the latter part of 1951, the administrative officers of the Command and General Staff School of the Second Army, at Fort Meade, Maryland, telephoned to the plaintiff who lived at Annapolis, telling him that they wanted him to teach in the school as much as he could find time to do so in the early months of 1952. He expressed willingness and was told that it would be necessary for him to take a short refresher course at Fort Leavenworth. He had had the Fort Leavenworth course some years before. He took the refresher course for ten days in December 1951, and received a certificate showing completion of the course. The course was entitled “Instructor Training Course for Special Associate Course, Command and General Staff.” Its stated objective was “to provide instruction in the methods of teaching applicable to the Special Associate Course.”

The paper which it was necessary for the plaintiff to sign before taking up his teaching duties at Fort Meade was prepared for his signature by the Army. It said that he asked to be ordered to a short tour of active duty training. An order, using this same language and designating January 28 to February 15 as the period, was issued to the plaintiff. He taught at the Fort Meade school during that period, being the principal instructor in some of the courses, with another instructor as his assistant, and vice versa in other courses.

On a similar request and similar orders he began another tour of teaching, which was to have lasted from April 21 to May 28,1952, a period of 33 days. On May 12 he suffered a cerebral thrombosis, which is the disability upon which this suit is based.

The applicable Army regulations are quoted in our findings and will not be repeated here. They show that it was the general practice of the Army to use the form of application and orders which were used in the plaintiff’s case, whether the officer was coming to the school at the request of the Army to teach, or was coming at his own request to be taught. The practice was not invariable, as there were eight officers out of the 40 who were connected with the faculty of the school in 1951 and 1952 who were on orders which did not use the wording “training”.

We think the intent of Congress in drawing a distinction between “active duty for training,” and other active duty, was to withhold from those Eeserve officers who were being trained, at Government expense, to be soldiers, or better soldiers, some of the benefits which the statutes gave to those who were on regular active duty as soldiers. The plaintiff •was not being trained to be a soldier, or a better soldier, in that sense. He already knew what he was called upon to teach to others. The witnesses for the Government were quite right, of course, in saying that a soldier or officer throughout his career is always learning, hence is always in training. But that argument proves too much. Probably no other soldiers learned as much in World War II as General Eisenhower in Africa and Europe, and General MacArthur in the Pacific.

As we held in the prior proceeding, the language in which the plaintiff’s orders were couched, and the appropriation from which the costs of the school were paid, are not conclusive. The question is, Was the plaintiff on a tour of “active duty for training” within the meaning of the applicable statutes ? We hold that he was not.

The Physical Evaluation Board on October 21,1952, found that the plaintiff was unfit to perform the duties of his office by reason of physical disability incurred in the performance of his duty. It rated his disability at 30 percent. The Secretary of the Army disapproved these findings because the disability resulted from a disease, and not from an injury, and was, therefore, not covered by subsection 402 (c) of the Career Compensation Act. This was a decision that the plaintiff was not on extended active duty, within the coverage of subsections 402 (a) or (b) of that Act.

The Secretary of the Army’s interpretation of the statutes was erroneous. The plaintiff is entitled to recover, and judgment will be entered to that effect. The case will be returned to the commissioner of this court pursuant to Rule 38 (c) to determine the amount of recovery.

It is so ordered.

Whitaker, Judge; Littleton, Judge; and Jones, Chief Judge, concur.

Laramore, Judge,

concurring:

I concur in the majority opinion for the reason that in this case there is no controversy as to the fact that plaintiff suffered disability, while serving on active duty as a Reserve officer under competent orders of the Secretary of the Army, and that he was disabled by a disease which was the proximate result of the performance of that duty. The Secretary of the Army disapproved of the findings of the board to the extent that retirement pay was denied because he thought the plaintiff was not on “extended active duty * * * in excess of 30 days,” within the meaning of sections 402 (a) and (b) of the Career Compensation Act of 1949, 63 Stat. 802, 816-818. The action of the Secretary indicates that he thought that the only right plaintiff had to retirement pay was under that act.

The Act of June 20, 1949, 63 Stat. 201, 202, which is an amendment to the Act of April 3,1939, provides that (1) if any officer, other than a regular officer, is called or ordered into active military service in excess of 30 days, and (2) if called for active-duty training, or inactive-duty training, for any period of time, may be granted retired pay if disabled; in the first case from disease, and in the second case from injury. That act says that in the cases of officers called or ordered under the conditions outlined therein, the officers shall be deemed to have been in the active military service during such period.

It, therefore, becomes unnecessary for the court in this case to review the nature of the duty. It would seem to me that a court should not, at least until it is necessary, review the nature of the duty to which an officer is assigned once he has been called to duty under authority of Congress.

While the parties have briefed this case as though the only authorization for retirement was the Career Compensation Act of 1949, supra, this could be true only if the Act of June 20,1949, were repealed. In Updike v. United States, 132 C. Cls. 627, we rejected defendant’s contention that the Act of June 20,1949, had been repealed or superseded by the Career Compensation Act of 1949 and gave judgment under the former act.

In the present case, all the conditions precedent to awarding retirement pay under the Act of June 20, 1949, seem to have been met except an approval of the award by the Secretary of the Army. His disapproval was under a misapprehension of the law. Under previous decisions of the court the failure of the Secretary to approve, if approval was necessary, on the circumstances here disclosed should be ignored. The only proper decision under the applicable Act of June 20, 1949, could be that retirement pay should be granted. .

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner Marion T. Bennett, and the briefs and argument of counsel, makes the following findings of fact:

1. The plaintiff is a resident of the State of Maryland. He has had approximately 20 years of military service, formerly was a member of the Organized Reserve Corps, Army of the United States, and presently holds the rank of colonel in the Retired Reserve of the Army of the United States.

2. In late 1951, the plaintiff was advised there was a shortage of instructors for the Command and General Staff School of the Second Army, that his services were desired on the faculty and that a short refresher course at Fort Leavenworth would be required before he could take up such duties at Fort Meade. The plaintiff took the refresher course for ten days in December 1951. The course was entitled “Instructor Training Course for Special Associate Course, Command and General Staff.” Its stated objective was “to provide instruction in the methods of teaching applicable to the Special Associate Course.” At the close of the course the plaintiff received a certificate from the college showing that he had attended the course.

3. Thereafter, the plaintiff was ordered to a. short tour of active duty training at Fort Meade, Maryland, at which time he acted as an instructor in teaching military tactics, strategy and other subjects in the Special Associate Course. This tour of duty extended from January 28 to February 15,1952. TTis further service as an instructor being desired, he signed another application which read that it was for another short tour of active duty training. He was ordered to teach at Fort Meade from April 21 to May 23,1952. Plaintiff’s orders for each of these three above-named tours of duty all read, “By direction of the President, and with your consent you are ordered for a short tour of active duty training.” No representations were made to plaintiff as to. whether his teaching-duty at Fort Meade would be active duty for training, extended active duty or on-the-job training, and plaintiff did not inquire nor did he question or challenge the orders he received for training until his illness hereafter described. The funds available from which the faculty members were paid were funds for Reserve training.

4. While on the second tour of training duty at Fort Meade, on May 12, 1952, the plaintiff suffered a cerebral thrombosis of undetermined cause. On May 13, he was sent to the Fort Meade hospital where he remained until June 18, 1952, when he was hospitalized at Valley Forge General Army Hospital. On October 21,1952, he appeared before a Physical Evaluation Board which found that he was unfit to perform the duties of his office by reason of physical disability resulting from mild cerebral thrombosis which was the proximate result of the performance of duty and was permanent. He was rated 30 percent disabled and described in the report of the board as a member of the [Reserve component on extended active duty.

5. The Secretary of the Army, through the Adjutant General, on October 30, 1952, disapproved the proceedings and findings of the Physical Evaluation Board, declaring:

The determination having been made that Colonel Clarence A. Remaley, 0295333, CE-ORC, is unfit for active service and that such unfitness resulted from a disease rather than an injury, the proceedings of the physical evaluation board convened at Valley Forge-Army Hospital, Phoenixville, Pennsylvania, on 21 October 1952 in the case of Colonel Remaley are hereby disapproved, pursuant to the provisions of Section 402c, Public Law 351, 81st Congress.

The commanding officer of the Valley Forge Army Hospital was advised on the same date that the disapproval, pursuant to the act, was because the disability resulted from a disease rather than an injury, that the patient was to be returned to his home station by November 1, 1952, and that he be advised to contact the Veterans Administration for possible disability benefits.

The finding of the Secretary was affirmed by the Army Board for Correction of Military Records on November 9, 1953, after a review of the records. The board stated that since there appeared to be no material error or injustice in the case a formal review by the board was not warranted.

6. Army regulations pertaining to the training of military personnel and which are pertinent to this case consist of the following:

AR 140-305
1 February 1952
31. Objectives. — a. The objectives in training individuals are to—
(1) Develop and qualify personnel in all grades to perform all duties which reasonably may be assigned to them both in peace and upon mobilization.
(2) Develop and qualify all personnel of the Army Beserve in their MOS assignment.
(3) Develop personnel capable of being used as instructors.
(4) Maintain such standards of mental and physical fitness as are necessary for active field service.
(5) Prepare, by progressive selection and training, officers qualified to assume command and staff responsibilities of all echelons.
35. Active Duty eor Training (see SB 140-220-1) a.General.
(5) Tours of active duty for training are authorized in excess of 15 days with pay for selected personnel of the Army Beserve as distinguished from other Army Beserve training as may be deemed necessary to maintain essential proficiency in their military occupational specialties as follows:
(a) Tours of active duty for training as students at regular, associate, and refresher courses of service schools, specialist schools, and officer candidate schools.
(b) Tours of active duty for training as members of the staff and faculty of army area schools.
35-b. (2) (c) Duty with staff and faculty of army area schools. — Selected individuals may participate as staff and/or faculty at prescribed army area schools.

7. On January 30,1952, the Adjutant General, Department of the Army, in a letter to the Chief of Army Field Forces, established and set forth the Department policies and personnel ceilings for active duty for training of members of the Organized Beserve Corps. It stated in part:

2. General. * * *
b. All Active Duty for Training other than attendance at annual field training will be with the consent of the individual concerned, * * *
c. Beservists on Active Duty for Training will be assigned only such duties as contribute materially to the individual’s military development. Training will be scheduled so that it can be completed within the prescribed periods of active duty without extensions. Any benefit accruing to the Begular Establishment through training duty performed by reservists must be incidental to the primary mission of training the reservist.
d. Annual field training for both units and individuals, including pre-camp conferences and Advance and Eear Detachments, is on a calendar year basis. Tours of Active Duty for Training as students at service schools, and as students or as Staff and Faculty of Army Area Schools, are on a fiscal year basis.
H: * # ❖ *
4. Individual Training. Keservists will not be ordered to Active Duty for Training in any fiscal year for more than one (1) tour of the following types of training in addition to the authorized field training. * * *
a. Students at Service Schools. Allocation is made for the following number of students at service schools; provision is for the duration of the course, plus travel time, though computed on an average of sixty (60) days for officers * * *
(1) The importance of affording the maximum amount of Active Duty for Training to the individual reservist to enhance his military education should be considered. There must be assurance, however, that the individual possesses sufficient background to justify the expenditure of time and funds. Reservists ordered as students of Regular, Special and Associate courses conducted by the Service Schools must be sent with a view that such training is a required qualifying training for the next higher position in the normal line of advancement. Upon completion of a course, reservists should be utilized to impart the knowledge gained to the maximum number of reservists.
b. Students at Army Area Schools. * * *
c. Staf cmd Family of Army Area Schools. Allocation is made for the following number of Reservists to participate with Staff and Faculty of Army area Schools; training is limited to a maximum of sixty (60) days, including travel time, for officers * * *

Headquarters for the Second Army, Fort Meade, Maryland, on April 10, 1952, set forth policies governing active duty for training in the Organized Reserve Corps for the fiscal year 1952. These policies were in conformity with those issued by the Adjutant General and set forth above and provided specifically that among the authorized types of active duty training for officers were tours as members of the staffs and faculties of Army area schools.

8. The Special Associate Course, Command and General Staff, had as its purpose the preparation of qualified officers (a) for duty as division commanders and (b) for duty in general staff positions at division level. The scope of the course was declared to consist, in part, in command and staff functions and procedure in accordance with instruction presented from the viewpoint of the division commander, the employment of his general staff as a coordinating group to assist him in the exercise of command and to achieve teamwork and to give commander and general staff officers a knowledge of special staff officers’ capabilities and limitations.

9. The National Guard, in two known instances, in ordering its officers to duty as instructors at Fort Meade, specifically stated in their orders that the purpose was “on the job training as an instructor, special associate command and general staff.” The Kentucky Military District, however, which sent four officers to Fort Meade for service on the faculty characterized it as “a short tour of active duty” on orders issued to' the officers. All other military districts, including the Maryland Military District, in which the plaintiff was located, in ordering Reserve officers to active duty as instructors at Fort Meade, invariably stated that the officer was to report to the commanding officer for active duty for training.

10. All of the members of the faculty of the Command and General Staff School, Second Army, Fort Meade, Maryland, were members of the United States Army Reserve or the National Guard. The great majority of such officers were serving on “active duty for training” orders during their tours. There were only eight exceptions out of forty from May 9,1951 to December 30,1952. Of these exceptions, four were on short tours of active duty, two in on-the-job training, and two on extended active duty. The latter two were administrative personnel around which the faculty was formed.

11. Special Regulations No. 140-220-1 of the Department of the Army dated June 9,1949, concerning “Organized Reserve Corps — Short Tours of Active Duty Training,” required as follows:

5. Applications. — Individuals desiring short tours of active duty training will submit an application on DA AGO Form 1058 (Application for Short Tour of Active Duty Training), which will be requisitioned through normal publications supply channels, to the unit instructor, Organized Reserve Corps, having administrative jurisdiction.

As opposed to the above, Special Regulations No. 135-210-1 of the Department of the Army dated April 13, 1950, concerned “Civilian Components — Entry on Extended Active Duty” and required as follows:

2. Action by applicants. — a. Officers. — Officers who volunteer for extended active duty will submit completed DA AGO Form 160 (Application for Extended Active Duty) and DA AGO Form 643B (Personal History Statement (Short Form)), which may be obtained through any Army installation, including recruiting stations.

12. The plaintiff, prior to his last tour of duty, submitted Department of the Army AGO Form No. 1058, entitled “Application for Short Tour of Active Duty Training,” dated April 16, 1952, to the Senior Army Instructor of the Officers’ Reserve Corps, Maryland Military District, Baltimore, Maryland, in which he stated, “I hereby request that I be ordered to active duty training for a period of 31 days beginning on or about 22 April 1952.” The application showed under the heading “Latest Short Tour of Active Duty Training” that he had served for a duration of 19 days, ending February 15,1952.

13. The plaintiff, as a Reserve officer, was required to attend an annual 15-day training period. By letter of April 16, 1952, plaintiff requested the Office of the Inspector General of the Army to waive this requirement in his case, stating as follows:

From the perusal of Department of the Army Newsletters, etc., it is my understanding that each Reserve Officer with a Mobilization Designation will be ordered to attend a fifteen (15) day training period. In my case the designation is #9310 and with the O. I. G.
Since 14 December 1951, I have had 29 days active duty of which 10 days were Instruction training at Ft. Leavenworth and 19 days teaching Phase I, Associate Course, C&GS School, 2nd. Army, at Ft. George G. Meade, Maryland. I will report again at Ft. George G. Meade 22 April 1952, for 31 additional days duty as Instructor for both classes of Phase III, the duty ending 23 May 1952.
In view of the fact that I have had considerable duty which was highly instructive, could the type of duty performed be considered in lieu of 15 day summer training.
Any consideration that might be given in my case will be greatly appreciated.

14. The plaintiff’s last tour of extended active duty, before the tour here in question, was in the years 1944-1948 when he was detailed to the Office of the Inspector General. The duties of such an assignment consisted of inspections of installations of various kinds, overall inspection of world-wide procurement programs, and checking performance against applicable regulations.

15. The plaintiff and a majority of officers serving with him as instructors, including all from the Maryland Military District, had, after signing a form which stated that it was at their request, been placed on what was stated in their orders to be “active duty for training.” At no time prior to the present controversy had plaintiff, a man of wide military experience and familiar with military orders, disclaimed or protested, or had any occasion to disclaim or protest, the fact that he was on active duty for training purposes when ordered to so participate as an instructor at the Command and General Staff schools in question. Except under unusual circumstances such as those which gave rise to this case, it made no difference to the instructor officers how their orders read, in this regard.

16. The plaintiff, at the time he suffered the physical disability of a mild cerebral thrombosis in May 1952, was in fact serving on extended active duty under orders for a period of more than 30 days.

CONCLUSION OF LAW

Upon the foregoing findings of fact which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover and judgment will be entered to that effect. The amount of recovery will be determined pursuant to Rule 38 (c).

In accordance with the foregoing opinion and on the filing of a memorandum report by the commissioner recommending that plaintiff recover $12,094.71, judgment for the plaintiff was entered October 2,1956, for $12,094.71.  