
    No. 33-73.
    May 30, 1975
    LTC James A. Dennis
   Plaintiff, an Army Reserve Commissioned Officer, was retired on March 31,1960, at the age of 39, under 10 U.S.C. § 3911 on the basis of length of service in the grade of Lieutenant Colonel, at which time he was determined to be physically fit for duty. In this suit, he contends that on the date of his retirement he was physically unfit for duty by reason of a permanent disability (stemming from a nervous condition and related symptoms) and therefore eligible for disability retirement. Plaintiff alleges that subsequent denials by the Army Board for Correction of Military Eecords of his application for correction of his records to show retirement by reason of physical disability, rather than longevity, was arbitrary and capricious and constituted substantial error; he consequently seeks a judgment herein directing that his military records be corrected to show retirement for disability together with all monetary benefits that flow from such a determination. In a recommended decision filed October 1,1974 Trial Judge Thomas J. Lydon concluded (1), on the basis of the totality of the record, that plaintiff was physically and mentally fit to perform the duties of his rank and grade at the time of his retirement, and.that the denial by the Board of the application for correction of his records was not arbitrary or unreasonable and was otherwise correct, proper and supported by substantial evidence; and (2) that under the circumstances of this case, the failure of plaintiff to receive, as part of his retirement physical examination a special psychiatric examination did not violate any provision of statute or regulation and did not constitute substantial error. Assuming, arguendo, that such an .omission be considered an error, it must be considered harmless error for the record here suports the view that any such psychiatric, examination as part of plaintiff’s retirement physical would have found him fit to perform the duties of his rank and grade at the time of his retirement. This case came before the court on plaintiff’s exceptions to the said recommended decision, having been submitted on the briefs and oral argument of counsel. Upon consideration thereof, since the court agrees with the recommended decision, by order dated May 30,1975 the court affirmed and adopted the same as the basis for its-judgment in this case, concluded that plaintiff is not entitled to recover, and dismissed the petition.  