
    JOHN C. CAMPBELL v. THE UNITED STATES
    [No. 512-52.
    Decided June 7, 1955.
    Defendant’s motion for reconsideration overruled October 4, 1955]
    
      
      Mr. Paul B. Harmel for the plaintiff. Messrs,, Geiger t& Harmel were on the brief.
    
      Mr. Laurence H. Amman, with whom was Mr. Assistant Attorney General Warren E. Burger, for the defendant.
   LittletON, Judge,

delivered the opinion of the court:

Plaintiff sues for his retirement pay as a major, U, S. Army, which was suspended while he was employed by the United States Government in a civilian position.

The issue in this case now before the court is whether the Secretary of War approved the Army Retiring Board’s finding that plaintiff was disabled as a result of an explosion of an instrumentality of war in line of duty, thereby exempting plaintiff’s retired pay from the provisions of section 212 of the Economy Act of 1932, 47 Stat. 406, as amended, 54 Stat. 761. We are of the opinion from the record that the Secretary of War approved this finding of its Army Retiring Board, and that plaintiff is entitled to his retirement pay,

Plaintiff served on active duty from April 24, 1942, to September 10,1946. In 1944, plaintiff was in several bomb explosions while he was stationed in London and in April 1945, plaintiff, while on active duty in Bamberg, Germany, was near an ammunition train which exploded. The explosion blew plaintiff through a doorway against a brick wall. Thereafter plaintiff suffered from progressive deafness. Plaintiff was hospitalized as a result of this injury from the explosion for about nine months, first in France, then at Tomey, Hammond and Letterman General Hospitals. On March 2, 1946, a Disposition Board at Letterman General Hospital found plaintiff permanently incapacitated for active duty by reason of deafness, but an Army .Retiring Board at Letterman General Hospital found that plaintiff was not permanently incapacitated for active service. The Surgeon General did not concur in this finding. As a result of this nonconcurrence by the Surgeon General plaintiff again appeared before an Army Retiring Board. This Retiring Board found that plaintiff was permanently incapacitated for active service by reason of deafness and that the deafness resulted from an instrumentality of war in line of duty. The Secretary of War, acting through the Adjutant General, approved the finding of this Retiring Board and plaintiff was so notified by the Adjutant General on November 12, 1946. Plaintiff was relieved from active duty on September 10,1946, and transferred to the Honorary Reserve on May 18,1948.

Plaintiff accepted civilian employment with the United States Government on October 20, 1946, and continued in his position with the Government until June 1, 1954. Plaintiff’s compensation from his Government position was in excess of $3,000 per annum.

Sometime after the receipt by plaintiff of the letter of November 12, 1946, from the Adjutant General, the Veterans’ Administration notified plaintiff that his disability did not result from an explosion of an instrumentality of war in line of duty, and since his compensation was in excess of $3,000 per annum from Government employment, the provisions of section 212 of the Economy Act applied to the plaintiff. The Veterans’ Administration cancelled plaintiff’s retired pay. Plaintiff refunded the retired pay which he had received. After plaintiff’s Government employment terminated, his retired pay was resumed.

Plaintiff contends that the Secretary of War, acting through the Adjutant General, approved the finding of the Army Retiring Board that he was disabled as a result of an explosion of an instrumentality of war in line of duty and that the Secretary of War was thereafter, in the absence of fraud or any other evidence, without authority to reverse this finding merely upon a revaluation of the existing evidence.

On the other hand, the Government contends that neither the Secretary of War nor the Army Retiring Board made a finding that plaintiff’s disability was due to an explosion of an instrumentality of war. The Government also contends that the Secretary of War approved the Surgeon General’s recommendation that plaintiff’s disability was not the result of an explosion of an instrumentality of war.

The Economy Act of 1932, as amended, supra, provides that a person holding a civilian Government position shall not be entitled to retired pay from the United States if the total compensation from both sources is more than $3,000 per annum. This Act does not apply to retired pay if the disability for which retirement is granted resulted from an explosion of an instrumentality of war in line of duty. Plaintiff contends that he is within the exception of this Act and is, therefore, entitled to both his retired pay and his pay from the civilian Government position because his disability resulted from an explosion of an ammunition train and that the Secretary of War approved the Army Retiring Board’s finding to this effect.

There is no question about the fact that the Army Retiring Board found that plaintiff’s disability resulted from an explosion of an instrumentality of war. The Retiring Board was authorized to make such a finding. Section 46 (c) of the “Tentative War Department Technical Manual TM 12-245” provides as follows:

Retiring Boards are authorized to make findings whether an individual’s incapacity for active service was incurred in combat with an enemy of the United States or resulted from an explosion of an instrumentality of war in line of duty. Such findings will be set forth in Item 35 of WD AGO Form 199.

On WD AGO Form 199, under Item 35, the Board answered “Yes” to the question “Was officer’s disability incurred in combat with an enemy of the U. S. or did it result from an instrumentality of war in line of duty ?” This finding of the Army Retiring Board was supported fully by the evidence in the record before the Board. The evidence before the Board, including the unanimous testimony of five Army doctors who treated plaintiff and studied his medical record, showed that plaintiff suffered his disability as the result of an explosion of an ammunition train in Bamberg, Germany. Certainly an ammunition train is an instrumentality of war. But the Surgeon General, for some reason not disclosed by the record, did not concur in this finding of the Board, although he did agree with the Board in all of its other findings.

Plaintiff’s record then went to the Secretary of War. He approved the finding and action of the Retiring Board. The statutes and regulations provide that the Secretary of War either approve or disapprove the findings of the Board. R. S. 1250; 10 U. S. C. 965; Par. 34 (a) AR 605-250 (28 March 1944) provides as follows:

The proceedings and decision of the board shall be transmitted to the Secretary of War, and shall be laid by him before the President for his approval or disapproval and orders in the case.

Executive Order 8461, 3 CFR, Cum. Supp. 680; 5 F. R. 2436, provides that—

* * * in the administration of the retirement-pay provisions of the said statute [10 TJ. S. C. 456], the determination of all questions of eligibility for the benefits thereof, including all questions of law and fact relating to such eligibility, shall be made by the Secretary of War, or by someone designated by him in the War Department, in the manner, and in accordance with the standards, provided by law, or regulations for Regular Army personnel.

The Secretary of War does not approve or disapprove the recommendation of the Surgeon General. The Surgeon General’s recommendation is used to guide the Secretary in his decision on the Board’s findings. The Secretary’s decision is on the findings of the Board and not on the Surgeon General’s recommendation.

On November 12, 1946, the Adjutant General notified plaintiff that the War Department had approved the findings of the Army Retiring Board. Later some one in the War Department took the position that the Secretary of War did not approve the finding that plaintiff’s disability was the result of an instrumentality of war because Item 35 of WD AGO Form 199 was not a part of the findings which were approved by the War Department.

The position of the defendant can not be sustained. The Adjutant General, acting for the Secretary of War, approved the finding of the Board that plaintiff’s disability resulted from an explosion. The Board was authorized to make this finding. The determination of the Army Retiring Board, approved by the Adjutant General, acting for the Secretary of War, that plaintiff was physically incapacitated for active service resulting from the explosion of an instrumentality of war in line of duty is final and can be reopened only upon a showing of mistake of law, manifest error, fraud, mathematical miscalculation and subsequently newly discovered evidence of sufficient probative value to raise a reasonable doubt as to prior findings. The findings of a Retiring Board, once approved by the Secretary of War, cannot be changed because of a mere revaluation of the existing evidence. The orders of the Secretary of War are final when he acts in a quasi judicial capacity. If the rule were otherwise, deserving officers would find their retired status subject to periodic re-examination upon changes in Executive or Army administrations, or upon decreases in appropriations.

In United States v. Burchard, 125 U. S. 176, the Supreme Court held that once the findings of a Retiring Board had been approved, they were no longer open to review because the President’s action on the findings was equivalent to a judgment of an appropriate tribunal which could not be disturbed. Cf. Potts v. United States, 125 U. S. 173. Also this court has held in McBlair v. United States, 19 C. Cls. 528; Spencer v. United States, 121 C. Cls. 558 and Carlin v. United States, 121 C. Cls. 643, that the findings of a Retiring Board, once approved by the Secretary of War, cannot be changed upon a mere revaluation of the existing evidence. When the Adjutant General took the position that plaintiff’s retired pay was subject to section 212 of the Economy Act, supra, without having before him any new evidence of substantial probative value or any evidence of fraud, he exceeded his authority.

We conclude that plaintiff is entitled to recover. Entry of judgment will be suspended until the filing of a stipulation by the parties showing the correct amount due in accordance with this opinion.

It is so ordered.

Laeamoke, Judge; and JoNES, Chief Judge, concur.

Whxtakeb, Judge,

concurring:

The formal notice from the Adjutant General’s office, dated November 12, 1946, stated that “the War Department has concurred in the findings of the Board * * That means to me that it concurred in all of the findings of the Board, which includes its finding that this officer had been disabled as the result of an explosion of an instrumentality of war. The later action of the Adjutant General, taken on January 6, 1947, notifying the Administrator of Veterans’ Affairs that “the disability on which retirement is based was not incurred in combat with an enemy of the United States and was not the .result of an explosion of an instrumentality of war” — this action seems to me to be inconsistent with the action taken on November 12,1946. But the action taken on November 12,1946, was the action of the Adjutant General, acting for the Secretary of War, on the findings of the Retiring Board determining the rights to which plaintiff in this suit was entitled. While the letter to the Administrator of Veterans’ Affairs of January 6, 1947, is inconsistent therewith, nevertheless it is not a determination of the rights of the officer. That determination was on November 12, 1946, and it is that determination that I think is binding.

For this reason I concur.

Madden, Judge,

dissenting.

I do not agree with the court’s decision. I think the court should not have reversed the finding of our commissioner that:

The approval of the Secretary of War included only those findings of the Board that the plaintiff was incapacitated for service and that his incapacity was incident to the service and that he was entitled to retirement.

The Secretary’s approval was, of course, the approval of the Adjutant General, acting for the Secretary. The paper which the Adjutant General had before him, and signed, contained item 35, the Retiring Board’s finding that the plaintiff’s disability was incurred in combat with an enemy or resulted from an instrumentality of war. But it also included item’ 36, which contained the Surgeon General’s express statement that the plaintiff’s disability was:

3. Not combat incurred or result of explosion of instrumentality of war * * *.

The arrangement of the form shows that the Surgeon General’s action was to follow that of the Retiring Board. Then came the action of the Secretary, done by the Adjutant General. In a hierarchy, as the document proceeds toward the “summit,” with differences of opinion shown in the lower stages, approval without qualification at the top cannot mean that everything on the paper is approved. It means that the recommendation of the next lower stage is approved. The notice sent to the plaintiff by the Adjutant General on November 12 is entirely consistent with this conclusion. It said that the Department had concurred in the findings of the Board that:

found you to be permanently incapacitated for general military service as the result of an incident of your commissioned service.

It further said that the plaintiff would be certified to the Veterans’ Administration for retired pay. It did not say that the Department had concurred in the finding of the Board that the plaintiff’s disability was incurred in combat, or resulted from an explosion of an instrumentality of war.

The action of the Adjutant General within a few weeks after the sending of the notice to the plaintiff shows that he did not intend, by his approval, to approve item 35 of the Retiring Board’s findings. On 3anuary 6, 1947, in advising the Administrator of Veterans’ Affairs of the status of retired officers, he certified that the plaintiff’s disability was contracted in line of duty but was not incurred in combat with the enemy, and was not the result of an explosion of an instrumentality of war.

I think the case does not involve at all the question of whether the Secretary of War, having made a decision in favor of an officer, may change that decision. Here the paper on which the decision was stamped, the notice sent to the plaintiff, and the contemporaneous conduct of the officer who made the decision are all consistent with each other, and lead me to the conclusion that the Secretary of War never approved item 35 of the Retiring Board’s findings.

I think that the plaintiff’s most plausible argument is that it was arbitrary and capricious for the Adjutant General to conclude that the plaintiff’s deafness was incidental to his military service, but was not the result of an explosion of an instrumentality of war. From the history of the plaintiff’s deafness, both questions might have been answered in the negative, or both might have been answered in the affirmative. There was inconsistency in the answers recommended by the Surgeon General, and approved by the Adjutant General for the Secretary. If to be inconsistent is to be capricious, I cannot tell whether the capricious act was an act of generosity in answering the first question in favor of the plaintiff, or an act of meanness in answering the second question against him. In that situation I would be in doubt as to whether a court-imposed consistency would be a move in the direction of justice, or away from it.

FINDINGS OE EACT

The court having considered the evidence, the report of Commissioner Paul H. McMurray, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff is a resident of California. He volunteered and was on active duty in World War I, first as a private and later as a commissioned officer. He was on active duty as a commissioned officer in World War II from April 24, 1942, to September 10, 1946, inclusive. He attained the rank of major.

2. In June 1945, while on duty overseas, plaintiff was hospitalized at the 127th General Hospital at Nancy, France. He was returned to the United States for further treatment, and at the end of approximately nine months of hospitalization at Torney General Hospital, Palm Springs, and the Hammond General Plospital, Modesto, California, was ordered before an Army Retiring Board for officers at Letterman General Hospital, San Francisco, California. This Board found plaintiff was not permanently incapacitated for active service.

3. On March. 12, 1946, when plaintiff appeared before an Army Retiring Board at Letterman General Hospital, San Francisco, California, he stated that his disability was defective hearing, primarily in his left ear; that he was not sure of the cause but thought it may have been affected in some way by exposure to explosives; that he had a little ringing in his ears in May 1942 on target range but it didn’t seem to bother him; that in 1944, he was in several bomb explosions while he was stationed in London; that the last explosion occurred in Bamberg, Germany, when an ammunition train blew up; that he was going into a doorway and the explosion blew him through this doorway and after that his “hearing seemed to be worse and decreased steadily.”

4. The Surgeon General of the Army on April 24, 1946, did not entirely concur in the finding that plaintiff was not permanently incapacitated for active service and again re-fered the matter to the Retiring Board for further consideration. The Surgeon General’s letter stated it was considered that the hearing defect found was disqualifying. Reference was made to an examination of plaintiff on July 10, 1986, which found the hearing of plaintiff’s left ear was 15-20, and pointed out that this might be considered significant in that the hearing loss was on the same side as the officer’s then current deafness. The Board was requested to consider, in view of the foregoing, the officer’s age and the fact that diminished hearing was first noticed only one month after he entered upon active duty in the army, stating that “the Board may well find that this disability represents the natural progression of a pre-existing defect and is not the result of an incident of service.”

5. The Army Retiring Board for officers reconvened on August 6 and 9, 1946. It considered the plaintiff’s medical record (Item 16) and the testimony of medical doctors Capt. John M. Fearing and Aaron A. Koblentz. It made findings on WD AGO Form 199 in pertinent part as follows:

23. State grade and name of officer before the Board and whether he is or is not permanently incapacitated for active service.
(A) Major Jolm C. Campbell is permanently incapacitated for active service.
24. If the officer is permanently incapacitated for active service state the canse of such incapacity.
(A) Defective hearing, nerve type, bilateral, right, mild; left complete or severe.
25. Approximate date of origin or inception of each incapacitating defect listed under Item 24.
(A) EPTEAD (Existed prior to entry on active duty).
26. Date officer became incapacitated for active service.
(A) September 1945.
27. Is cause (disease, injury or infirmity) of such incapacity an incident of service ?
(A) No.
28. Has the cause (Item 24) of the incapacity been permanently aggravated by military service?
(A) Yes.
29. Is said incapacity for active service the result of an incident of service ?
(A) Yes.

Form 199, hearing of August 9, 1946, then recited: “The Board was then opened and the President announced the findings to the officer before the Board. A copy of the retiring board proceedings will be furnished the officer before the Board (or his counsel) upon request.”

30. The officer was then advised of his right to file application for pension.
31. Hour and date board adjourned.
(A) 1147, 6 August 1946 — 1202, 9 August 1946.
32. Signature of Keeorder, Name, grade, and arm or service (Type).
(A) Percy C. James, Captain, AGD.
33; Signature of President, Name, grade, and arm or service (Type).
(A) Bertram I. Lawrence, Colonel, Inf.

6. Below the signature of the recorder, No. 32, and the signature of the president of the board, No. 33, there appears additional blank numbered spaces on WD AGO Form 199 to be filled in. In the instant case these were as follows:

34. Becommendations for type of service, if any:
(A) Fit for permanent limited service but not recommended in view of officer’s statement of desire.

Item 35 was provided for a finding by the Board of the applicability of section 212 of the Economy Act of 1932, to the officer under consideration.

35. Was officer’s disability incurred in combat with an enemy of the U. S. or did it result from an instrumentality of war in line of duty ? (Yes or No).
(.A) Yes.

In addition there were blank numbered spaces Nos. 36, 37, 38, and 39 on the face of the report and provision for a minority report on the reverse of page 2.

7. On August 12, 1946, plaintiff was sent a copy of the proceeding of the Army Retiring Board for Officers of August 6 and 9 including the entries made through Item No. 35 on WD AGO Form 199. No action had been taken by the Surgeon General on spaces No. 36 and 38 or by the Secretary of War on space No. 39 nor were those spaces filled in.

8. Subsequently the remaining blanks on WD AGO Form 199 were filled in with the following statements showing action taken on the dates indicated thereon:

36. Leave blank for SGO.
WD, SGO, To: The Adjutant General, Officers’ Branch.
1. Concur in findings of reconvened board 6 August 1946 and contmued on 9 August 1946.
2. Physically unfit for limited service.
3. Not combat incurred or result of explosion of instrumentality of war in LOD.
37. For the action of the Commanding General, Army Air Forces signature.
38. Date
Action 15 October 1946 For the Surgeon General Signature J. O. Gillespie Name, grade, and title (Type)
J. O. Gillespie, Colonel, M. C., Assistant.
39. Date Nov. 7, 1946 Action Approved
Signature By order of the Secretary of War Robert H. Dunlop, Jr.
Adjutant General

The Surgeon General acted on October 15,1946. The plaintiff’s file was received by the Adjutant General on November 6,1946. On November 7,1946, the Adjutant General, acting for the Secretary of War, approved the findings of the Retiring Board. Plaintiff was notified by the Adjutant General on November 12, 1946, that the War Department had concurred in the findings of the Board.

9. The statutes applicable to the retirement of Army officers, during the period 1945 through 1948, provide—

(a) For retirement of an officer from active service when he becomes incapable of performing the duties of his office (R. S. 1245; 10 U. S. C. 931).

(b) That the Secretary of War should from time to time assemble an Army Retiring Board (R. S. 1246; 10 U. S. C. 961).

(c) That the Board may inquire into and determine the facts touching the nature and occasion of the disability of the officer who appears to be incapable of performing the duties of his office, etc. (R. S. 1248; 10 U. S. C. 963).

(d) When the Board finds an officer incapacitated for active service it shall find and report the cause which, in its judgment, has produced his incapacity and whether such cause is an incident of service (R. S. 1249; 10 TJ. S. C. 964).

(e) The proceedings and decision of the Board shall be transmitted to the Secretary of War, and shall be laid by him before the President for his approval or disapproval and orders in the case (R. S. 1250; 10 U. S. G. 965).

(f) When a Retiring Board finds that an officer is incapacitated for active service, and that his incapacity is the result of an incident of service, and such decision is approved by the President, said officer shall be retired from active service and placed on the list of retired officers (R. S. 1251; 10 U. S. C. 933).

The foregoing statutes were made applicable to. Reserve Officers, a status in which plaintiff served in the Army by the provisions of 10 U. S. G. 456 (1946), which provided in pertinent part:

All officers, warrant officers, and enlisted men of the Army of the United States, other than the officers and enlisted men of the Regular Army, if called or ordered into the active military service by tbe Federal Government for extended military service in excess of thirty days, other than for service with the Civilian Conservation Corps, and who suffer disability or death in line of duty from disease or injury while so employed shall be deemed to have been in the active military service during such period and shall be in all respects entitled to receive the same pensions, compensation, retirement pay, and hospital benefits as are now or may hereafter be provided by law or regulation for officers and enlisted men of corresponding grades and length of service of the Regular Army, including for their dependents the benefits of section 903 of this title.

10. To implement and carry into effect the above retirement procedure the President issued Executive Order No. 8099, 28 April 1939 (4 F. R. 1725), as amended by Executive Order No. 8461, 28 June 1940 (5 F. R. 2436), for the administration of the benefits provided by section 5 of the Act of 3 April 1939, as amended. Executive Order No. 8099, as amended, provides in pertinent part:

* * * the duties, powers, and functions incident to the administration and payment of the benefits provided by the statute as above set out are hereby vested in the Veterans’ Administration: Provided, That in the administration of the retirement-pay provisions of the said statute, the determination of all questions of eligibility for the benefits thereof, including all questions of law and fact relating to such eligibility, shall be made by the Secretary of War, or by someone designated by him in the War Department, in the manner, and in accordance with the standards, provided by law, or regulations for Regular Army personnel: * * *

11. The Secretary of War promulgated regulations to carry into effect the administration of the above statutes relating to retirement and hearing boards and Executive orders. Those in effect at the time of plaintiff’s proceedings before the Army Retiring Board for Officers, on August 6 and 9,1946, were Army Regulations 605-250 dated 28 March 1944. Those pertinent to this case are as follows:

(29) General — a. At the close of the hearing the board will go into closed session for the purpose of determining whether or not the officer is incapacitated for active service; and if so, whether said incapacity is (or is not) the result of an incident of service, the cause of such incapacity, and whether or not such cause is an incident of service. See ft. S. 1249,1251,1252 (M. L. 1939, secs. 324, 325).
b. The Board is also required to find and report the date on or about which the incapacity originated, and will state in the findings whether or not, in its opinion, such incapacity is permanent.
(34) Action by the President. — a. The proceedings and decision of the board shall be transmitted to the Secretary of War, and shall be laid by him before the President for his approval or disapproval and orders in the case. ft. S. 1250 (M. X». 1939, sec. 325).
b. When a retiring board finds that an officer is incapacitated for active service, and that his incapacity is the result of an incident of service, and such decision is approved by the President, said officer shall be retired from active service and placed on the list of retired officers. R. S. 1251 (M. L. 1939, sec. 324).
(35) Effect of action by the President. — The findings of a retiring board, approved by the President, are conclusive as to the facts. The board finds the facts and the President approves or disapproves the findings. If the President disapproves the findings of a retiring board, the officer’s status remains the same as it was before the question of referring his case to the retiring board was considered.

12. The War Department prepared a document entitled “Tentative War Department Technical Manual TM 12-245” which was in effect at the time of plaintiff’s proceedings before the Army Retiring Board for Officers. This Manual contained instructions and forms for use of the retiring boards. Section 46 provided:

Section 46. Function and. Jurisdiction. — a. It is the function of retiring boards, in cases referred to them, to make findings with respect to:
(1) the physical and mental capacity for active service of the officers concerned, and whether any incapacity for active service is permanent.
(2) the cause or causes of any such incapacity, the date or dates such cause or causes originated, and the date the officer concerned became incapacitated for active service.
(3) whether such incapacity is an incident of service.
(4) the quantum of any additional permanent disability incurred by commissioned officers of the Regular Army in line of duty while on active duty under a temporary appointment in a higher grade subsequent to their retirement for physical disability.
&. The effect of the findings made by retiring boards is to determine initially:
(1) the entitlement of the individual before it to be retired or receive retirement pay.
(2) the entitlement of commissioned officers of the Regular Army to be retired in a higher grade upon being found physically disqualified for promotion.
(3) the entitlement of commissioned officers to the benefits provided by the act of 29 June 1943 (57 Stat. 249; 10 U. S. C., Sup. IV, 985-985h).
Retiring boards are authorized to make recommendations in appropriate cases that individuals appearing before them be considered for temporary or permanent limited service assignments. Such recommendations will be set forth in Item 34 of WD AGO Form 199.
o. Retiring boards are authorized to make findings whether an individual’s incapacity for active service was incurred in combat with an enemy of the United States or resulted from an explosion of an instrumentality of war in line of duty. Such findings will be set forth in Item 35 of WD AGO Form 199.
d. The scope of the investigation of a retiring board concerning the origin and development of an incapacity, or its cause, is not restricted as to time. It may inquire into the matter of an incapacity or its cause however long since it may have originated.

13. Section 212 of the Economy Act of 1932, 47 Stat. 406, as amended, provides in part that no person holding a civilian office or position appointive or elective under the U. S. Government shall during such incumbency be entitled to “retirement pay” from the United States for or on account of service as a commissioned officer in any of the services mentioned in the Pay Readjustment Act of 1922, 37 U. S. C., at a rate in excess of an amount which, when combined with the annual rate of compensation from such civilian office or position, makes the total rate from both sources more than $3,000: Provided, That the section shall not apply to regular or emergency commissioned officers retired for disability re-suiting from combat with the enemy, or an explosion of an instrumentality of war in line of duty.

14 A formal notice dated November 12, 1946, and addressed to plaintiff from the Adjutant General’s office contained the following statements:

1. Reference is made to the proceedings of the Army Retiring Board which convened in your case and found you to be permanently incapacitated for general military service as the result of an incident of your commissioned service.
2. After review of the records of proceedings, the War Department has concurred in the findings of the Board and it is contemplated that on or about the date you will revert to inactive status, you will be certified to the Veterans’ Administration for retirement pay benefits in accordance with the provisions of the Act of 3 April 1939.

The procedure then in effect was that the above notice was not dispatched until after the War Department had approved the findings of the Retiring Board. Approval of the findings is evidenced by the signature of the Adjutant General in Item 39 on WD AGO Form 199.

15. Plaintiff entered upon a civilian position with the United States Government on October 20, 1946, and held such position until June 1, 1954. His compensation at all times for such position was in excess of $3,000 per annum.

16. Notwithstanding the finding of the Army Retiring Board and the Secretary of War’s approval of the finding as stated in the letter of November 12, 1946 (finding 14), the Secretary of War subsequently decided that plaintiff’s disability was not the result of the explosion of an instrumentality of war. This action was taken by the Secretary without any new evidence of substantial probative value or without any evidence of fraud.

17. On January 6,1947, pursuant to Executive Order 8099 as amended, the Adjutant General wrote the Administrator of Veterans’ Affairs a letter in which he stated in pertinent part that by direction of the Secretary of War and pursuant to the Executive Orders 8099 etc., certification was made concerning the plaintiff, that the plaintiff contracted permanent disability rendering him unfit for further military service, and such disability was contracted in line of duty while on active duty subsequent to April 3, 1939. This official communication further stated that “the disability on which retirement is based was not incurred in combat with an enemy of the United States and was not the result of an explosion of an instrumentality of war.”

Defective hearing was set forth as the cause of the disability and it was stated that plaintiff was entitled to retirement pay of $257.81 as a Major 4th pay period effective September 11,1946.

18. On January 6,1947, the War Department by the Adjutant General wrote plaintiff as follows:

Bx ORDER OE THE SECRETARY OE WAR!
To: Major John Clifford Campbell, 0167140, AUS 320 Mendian Ave.
Alhambra, California.
1. You are this date being certified to the Administrator of Veterans’ Affairs under the provisions of the Act of 3 April 1939 for retirement pay in the amount of $257.81 monthly, effective 11 September 1946.
2. Information as to the probable date you will receive such retirement pay, if desired, should be obtained from the United States Veterans’ Administration, Washington, D. C.
. 3. If you are not presently resident at the address indicated above, it is suggested that you notify the Administrator of Veterans’ Affairs, Washington, D. C., as to your correct address in order to expedite the receipt of your retirement pay benefits.

19. On February 17, 1947, the Veterans’ Administration sent plaintiff a form letter certifying that plaintiff was entitled to retired pay of $257.81 monthly, effective September 11, 1946; that under section 5 Public Law 18 of the 76th Congress payments of those benefits was to be made by the Veterans’ Administration. Keference was made to section 212 of Public, No. 212, 72d Congress, as amended. Plaintiff was notified that that statute provided that no Federal employee shall be entitled, during the period of civilian employment, to retired pay from the United States on account of service as a commissioned officer, at a rate in excess of an amount, which with his rate of compensation and his retirement, made the total amount from both, in excess of $3,000 annually. Plaintiff was informed that this provision was not applicable if the disease or injury, for which retired pay had been authorized, was incurred in combat with an enemy of the United States or was the result of an explosion of an instrumentality of war in line of duty.

It was further stated that the provisions of section 212 are applicable in plaintiff’s case “since the War Department states that the disability on which your retirement is predicated was not incurred in combat, or as the result of an explosion of an instrumentality of war in line of duty.”

20. On February 19, 1948, Director L. -J. Johnston of Payees Accounts Service of the Veterans’ Administration wrote plaintiff stating that payments award of Eeserve Officer’s Eetirement were discontinued effective October 20,1946, because plaintiff’s annual salary as a Federal employee was in excess of $3,000. The letter further stated since payments of Eeserve Officer’s Eetirement were authorized in plaintiff’s favor at the monthly rate of $257.81 for the period from September 11, 1946, through April 30, 1947, and whereas plaintiff was entitled to payments of compensation at the monthly rate of $13.80 for the same period, an overpayment of $1,545.40 resulted on plaintiff’s account as of April 30, 1947. It was stated that compensation payments accruing for the period from May 1, 1947, through January 31, 1948, at the monthly rate of $13.80 had been applied, reducing the amount of the overpayment to $1,421.20. Eefund of this amount was requested. Plaintiff refunded the retired pay which he had received. After plaintiff’s Government employment terminated his retired pay was resumed.

Plaintiff was transferred to the Honorary Eeserve on May 18,1948.

21. On June 23, 1948, plaintiff made an application for correction of his military record and asked for the following action:

Eequest that certification made by the War Department to the Veterans’ Administration effective as of 9th Nov 46 showing that I am entitled to retirement pay of $257.81 monthly be corrected to show that the disability on which my retirement is predicated was the result of an explosion of an instrumentality of war in line of duty. C-10-269-799.

Plaintiff stated that he believed his military record to be incorrect for the reason that he claimed the Retirement Board found that his disability resulted from an explosion of an instrumentality of war in line of duty, and that the Secretary of War on November 12, 1946, notified plaintiff that the War Department had concurred in the finding of the Retiring Board.

On July 6,1948, this application WD-AGO 562 was forwarded to the Adjutant General’s office by Patrick E. Carroll, Director of Disabled American Veterans.

22. On September 15,1949, the Adjutant General wrote to Mr. Patrick E. Carroll, National Service Officer of the Disabled American Veterans, with reference to a request concerning correction of plaintiff’s Army record under provision of section 207 of the Legislative Reorganization Act of 1946. The letter stated in part as follows:

* * * The Administrative regulations and procedures established by the Secretary of the Army for the guidance of the Board on the Correction of Military Records provide that an application for hearing by the Board may be denied where a sufficient basis for review has not been established.
I regret to advise you that careful consideration by the Army Board on Correction of Military Records, of Major Campbell’s army records, together with such facts as have been presented by you in his behalf, fail to establish sufficient basis for a hearing of his case by the Board. Therefore, in the absence of additional material evidence, no further action on his application is contemplated.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law plaintiff is entitled to recover.

Entry of judgment is suspended pending the filing of a stipulation by the parties showing the amount due plaintiff in accordance with this opinion.

In accordance with the foregoing opinion and on a stipulation by the parties showing the amount due thereunder, judgment for the plaintiff was entered December 6, 1955, in the sum of $22,439.39. 
      
       Symbol (A) supplied throughout finding 5 to signify answer to printed questions on WD AGO Form 189.
     
      
       This space was never filled In as plaintiff was not in Army Air Forces.
     