
    WILLIAM L. SCHIFFMAN v. THE UNITED STATES
    [No. 548-59.
    Decided July 12, 1963]
    
      
      Paul R. Harmel for plaintiff. Geiger, Harmel & Schuchat were on the briefs.
    
      Katherine H. Johnson, with whom was Assistant Attorney General John W. Douglas for defendant.
    Before Jones, Chief Judge, Whitaker, Laramore, Durfee and Davis, Judges.
    
   Durfee, Judge,

delivered the opinion of the court:

Plaintiff was released from active duty with the Army on June 14, 1946, in apparent good health. When released, he had the option of taking $300 mustering out pay or a “terminal leave promotion” to major under War Department Circular No. 10, of January 11, 1946. Plaintiff qualified for the terminal leave promotion — 24 months in grade and an efficiency index of 40 — but chose the mustering out pay.

In August 1940 plaintiff was hospitalized because of a large herniated disc. Surgery did not cure plaintiff and on April 7, 1949, he appeared before an Army Retiring Board at Walter Reed. The Board determined that Captain Schiff-man had incurred a herniated nucleus pulposus in line of duty and that he became permanently incapacitated for active service in February 1945. The Secretary of the Army approved these findings on May 9, 1949, and certified plaintiff as eligible for disability retirement pay, based on the rank of captain, from the date of his release from active duty in June 1946.

The Mustering-Out Payment Act of 1944 provided that no payment should be made to any member eligible for retirement pay at the time of his release from active duty. Since plaintiff was in fact disabled when he was released, he would not have received the mustering out pay had the Army known his true condition.

In May 1953 plaintiff requested the Army Board for the Correction of Military Records to correct his records to reflect the terminal leave promotion from captain to major. The Correction Board notified plaintiff on December 30, 1953, that his request was denied. The Board thought that the law and regulations did not afford him a chance to rescind his choice, even though the findings of the 1949 Retirement Board showed that he was not qualified for the mustering out pay because of his disability. Finally, the Board found no evidence of error or injustice.

In the meantime, on October 13, 1953, the Secretary of the Army changed the Army’s policy with reference to payment of retroactive benefits in terminal leave promotion cases to conform to Air Force’s policy. The Air Force took into account errors in waiving the promotion and authorized payment at the higher grade, retroactive to the date on which the terminal leave promotion would have become effective except for an administrative error. The new policy was held in abeyance until a test case was decided by the Comptroller General. The Opinion, No. B-116091, February 5, 1954, completely upheld the Army’s policy, which was then implemented on March 9,1954, by a determination that certain classes of officers were entitled to have their claims reconsidered.

Plaintiff was in the class that had been given no relief, although the officers were qualified for the promotion by time in grade and efficiency index. He asked for reconsideration by the Board on June 1,1954. And on September 2,

1954, the Board sent a memorandum to the Secretary of the Army, recommending that plaintiff’s and similar cases be reconsidered. The memorandum stated, inter alia:

5. The pertinent point in all of these cases is that the applicants did not know whether or not they would be retired for physical disability, and therefore declined their promotion to accept the MOP [mustering out pay.] Had they known that they would be retired for disability, it is inconceivable * * * that they would have declined promotions and thereby forfeited their right to a higher amount of retirement pay to accept the $300 MOP.
6. It is felt further that had applicant’s case and all similarly rejected cases been considered subsequent to the implementation of the Secretary’s policy of 13 October 1953, the final decision thereon might have been different.

This memorandum was submitted through General McNeil, Special Assistant to the Secretary. The General recommended an adverse decision. The Secretary concurred, and on October 7, 1954, plaintiff was so advised.

Plaintiff was given no reason for the adverse decision. The denial is difficult to understand in light of the memorandum dated March 9,1954, by General McNeil addressed to the Department Counselor, implementing the new policy. The memorandum contained such statements as:

* * * I recommend that we now process all terminal leave promotion cases in accord with the Secretary’s declaration of policy.
* * *
Action now will have to be from the date of eligibility for promotion.
í í» $
In other cases ABCME has corrected the records to show entitlement to promotion but has made no finding as to pay. As to these cases, a paragraph may be added to the Secretary’s directive ordering pay from date of eligibility in accord with the present policy.
Approval of the foregoing will permit prompt disposal of all terminal leave cases estimated at around eighty.

The Army was still not finished with Captain Schiffman. Pursuant to statute, the Army sent him a letter, dated August 1,1960, reading in part as follows:

2. At the time of your discharge 14 June 1946 you were paid $300.00 mustering-out pay. The findings of the Army Eetiring Board, as approved by the Secretary of the Army, subsequently established entitlement to the disability retirement pay effective 15 June 1946. This action voided entitlement to mustering out pay.

Plaintiff duly refunded the $300.

He now sues for the difference between captain’s and major’s retirement pay from June 15, 1946, the day after his release from active duty. He claims he should have been given the terminal leave promotion, retroactively, under the Army’s policy implemented March 9, 1954. He further claims that the Secretary’s action in denying his request was arbitrary.

I

On these facts, says defendant, the claim is barred by our six year statute of limitations. 28 U.S.C. §2501 (1958). This contention is bottomed on Lipp v. United States, 157 Ct. Cl. 197, 301 F.2d 674 (1962), cert. denied, 373 U.S. 932, which held that the statute was not tolled while the petitioner sought administrative review by the Army Board for Correction of Military Records. There is no question but that Lipp correctly states the general rule, viz, that the statute is not tolled while permissive administrative remedies are sought. See, e.g., Friedman v. United States, 159 Ct. Cl. 1, 310 F. 2d 381, cert. denied, 373 U.S. 932, and Rosnick v. United States, 132 Ct. Cl. 1 (1955). Rosnick held that the cause of action accrued when “plaintiff was relieved from active duty on May 26,1946, without retirement pay.” Rosnick had had several reviews of his case, the last of which was before the Army’s Board for Correction of Military Records on January 13, 1954. The court held that the cause of action did not accrue on this date, saying:

* * * It is difficult to see how a cause of action could arise or be renewed by adverse findings, all of which were based on conditions that existed more than six years prior to the action which was alleged as a basis for the new cause of action. [Id., at p. 47]

Appeal to the Correction Board is not, of course, a necessary prerequisite to an action here. This court has often held that where a “proper board has acted -finally the running of the statute is not tolled by later consideration by other boards or agencies.” Friedman v. United States, supra, slip op. at p. 11, and see cases cited therein.

Friedman teaches the danger — in the complex area of military pay cases — of deciding particular cases by application of general language in decisions such as Lipp. In the case at bar we think the operative facts put it in the category of cases headed by Capps v. United States, 133 Ct. Cl. 811 (1956), and not in the category headed by Lipp.

Capps was an officer retired without pay on May 8, 1944, for incapacity from hypertrophic arthritis. The arthritis originated in 1941 while plaintiff was an enlisted man. The Retiring Board held that his incapacity was not “the result of an incident of service.” Id., at pp. 812-13. The Board’s decision was approved by the Secretary of War and the President. “This holding was required by an Army regulation holding that a reserve officer was not entitled to be retired for physical disability which had originated during the time he had served as an enlisted man.” Id., at p. 813. On August 3, 1950, the Secretary of the Army “reversed his previous ruling that a reserve Army officer was not entitled to be retired with pay on account of an injury sustained during his service as an enlisted man.” Ibid. Plaintiff was notified of his right for a reconsideration of his case by the Army Disability Review Board. He applied, and on June 1, 1951 — after numerous adjournments to gather more evidence — the Board reversed its earlier ruling that the arthritis originated while plaintiff was an enlisted man and “held that ‘the date of origin of the incapacitating defect was prior to entrance into military service,’ that is, prior even to his enlisted service.” Id., at pp. 813-14. According to the court’s analysis, the Retirement Board’s finding was not final, “because it was contrary to law, as the Secretary of War later determined.” Id., at p. 814. The effect of the Secretary’s action was to apply different law to Capps’ case, the facts of which had been determined back in 1944. Defendant of course raised the limitations defense. The court rejected this defense on the ground that the Board’s original action was deprived of finality when the Secretary announced a new policy with respect to officers like plaintiff.

On the question of when the cause of action accrued, the court said:

The suggestion of the Secretary of War that plaintiff’s case be reopened shows he was not through with it. Pie did not get through with it, as it finally turned out, until the second decision of the Disability Review Board on June 1,1951, and his approval of its action. It was then that our jurisdiction began. Plaintiff’s action was brought within six years from this time. \_Id., at p. 816. Emphasis added.]

The facts in the case at bar are sufficiently parallel to those in Oapps to bring it within the category of cases where

* * * the court has held that the final action of the first board to decide has been delayed or deferred by one or another circumstance and therefore that the cause of action has not accrued until the later time. [Friedman v. United States, supra, p. 16.]

On December 30,1953, the Army’s Correction Board denied Captain Schiffman’s application to have his records corrected to show a terminal leave promotion from captain to major. In the meantime, on October 13, 1953, the Secretary of the Army had changed the Army’s policy with reference to payment of retroactive benefits in terminal leave promotion cases to conform to that of the Air Force, which authorized payment at the higher grade retroactive to the date on which the terminal leave promotion would have become effective but for administrative error. Implementation of this policy was delayed, however, until a test case was submitted to the Comptroller General. The opinion, referred to by the parties as the Baltzell case, was announced February 5,1954; and the Secretary’s new policy was implemented on March 9, 1954, by a determination that applicants to the Correction Board were entitled to have their terminal leave promotion claims reconsidered if relief had been denied in whole or in part. As a result of the Secretary’s new policy, plaintiff on June 1, 1954, asked the Correction Board to reconsider his case. The Board recommended favorable action. But the Secretary denied the request, and plaintiff was so advised by the Board on October 7, 1954, less than six years prior to the filing of the petition in the case.

Here, as in Capps, supra, the Secretary took a new view of the law and announced that all officers affected by his new policy would have a chance to have their cases reconsidered by the Correction Board. The Secretary’s pronouncement deprived the Board action of December 30,1953, of “finality.” The last and “final” decision of the Board, therefore, is October 7,1954, the date when it denied plaintiff’s request for correction of his records in light of the new policy. And as was said in Capps, supra, at p. 816, “It was then that our jurisdiction began.” Plaintiff’s petition was filed December 29,1959, well within the six year period allowed by 28 U.S.C. § 2501 (1958). See also Friedman v. United States, supra; Loeb v. United States, 133 Ct. Cl. 937 (1956) (decided on the basis of Capps, supra); and Suter v. United States, 139 Ct. Cl. 466 (1957), 153 F. Supp. 367, cert. denied, 355 U.S. 926 (1958).

II

The threshold question in considering plaintiff’s case on the merits is this: Had he chosen the terminal leave promotion to major, and had he been retired for disability when released from active duty in June 1946, would his retirement have been in the rank of major or captain?

The Army announced its new policy on October 13, 1953. In November 1953, it submitted the Baltzell case to the Comptroller General to test this policy. And as soon as the Comptroller General rendered his opinion, the Army implemented the new policy. Baltzell was released from active duty on December 25, 1945, with the rank of lieutenant colonel. Then on March 23,1953, the Correction Board corrected his records to show (1) that he was released from active duty by reason of physical disability on December 25, 1945, and certified, effective as of December 26, 1945, for retirement benefits, and (2) that he was promoted to colonel as of December 25, 1945. The Comptroller General ruled that Colonel Baltzell’s widow was entitled to receive the retirement pay benefits from December 26, 1945, computed on the grade of colonel, since that was the actual rank held by him at the time of his retirement. The Baltzell opinion is straightforward and logical, and apparently assured the Army of the legality of effecting terminal leave promotions retroactively.

Plaintiff relies heavily on Caddington v. United States, 147 Ct. Cl. 629 (1960), which held that an officer should have been promoted to colonel before he was released from active duty for physical disability September 17,1945. In this case, the Terminal Leave Policy was announced on December 13, 1945, some three months after Caddington was retired. On March 1, 1956, however, he applied to the Correction Board, “requesting that his records be corrected to reflect ‘promotion to full colonel under terminal leave promotion policy which was established Dec. 13, ’45 if not otherwise eligible.’ ” Id., at p. 630. The Board corrected his records to show the promotion as of December 13,1945, but stated that no monetary benefits were to attach. The Secretary concurred with the Board. Plaintiff then sued in this court, which found that plaintiff was “otherwise eligible” for promotion to colonel. That is, he was eligible independent of the terminal leave promotion policy because he had been recommended for promotion while still on active duty and undoubtedly would have been promoted but for the loss of all his records “while he was serving in the South Sea Islands of the Pacific.” Id., at p. 632. The court pointed out that it was unnecessary “to decide the issue solely on the question of whether plaintiff’s recovery is dependent upon the promotion policy dated December 13,1945.”

Plaintiff says Caddington clearly implies that the court would have awarded judgment for disability pay based on the higher rank of a terminal leave promotion to colonel had this policy been in effect when Caddington was released from active duty. The implication may be there; however, it is not an implied holding.

Had plaintiff known he was going to be retired for physical disability, he undoubtedly would have accepted the terminal leave promotion to major. 56 Stat. 787 (1942) states, in part:

That every officer of the Army of the United States, or any component thereof, promoted to a higher grade at any time after December 7,1941, shall be deemed for all purposes to have accepted his promotion to higher grade upon the date of the order announcing it unless he shall expressly decline such promotion, and shall receive the pay and allowances of the higher grade from such date * * * [Emphasis added.]

“For all purposes” would seem to include retirement benefits commensurate with the rank to which an officer is promoted. There is nothing in War Department Circular No. 10 of January 11, 1946, indicating that the terminal leave promotion brought the officer higher pay only for his short remaining period of active duty, and after that was in the nature of a merit badge if the officer happened to be retired for disability.

Defendant points to no statute or regulation which would deprive an officer with a terminal leave promotion of the full monetary benefits of Iris rank simply because be was injured in the service of Ms country and retired for disability. And in view of this court’s pronouncements on the emoluments of rank, we do not feel constrained to limit the phrase “for all purposes” in the above quoted statute. See Darby v. United States, 146 Ct. Cl. 211, 216 (1959). The Secretary’s qualification of the new policy is especially difficult to explain, considering that the policy drew support from the Baltzell opinion, which stated:

* * * Such correction of * * * [Baltzell’s] military records is required to be viewed * * * as establisMng that he met all the statutory conditions entitling him to active duty pay and allowances as a colonel * * * and to receive retirement pay benefits * * * [Emphasis added.]

The Comptroller’s opinion seems to be in harmony with this court’s interpretation of “for all purposes” as expressed in Darby v. United States, supra, at p. 216. Certainly the fact situation is indistinguishable from the one in the present case — with one exception: Captain Schiffman had turned down his promotion in favor of $300 mustering out pay. The Correction Board in its first denial of the claim apparently considered it unsportsmanlike for plaintiff first to accept $300 and then to ask for a promotion when he found out he had been disabled while in the war. The Board’s findings of November 30, 1953, contained the concluding remarks as follows:

* * * and inasmuch as he rejected terminal leave promotion to the grade of Major in favor of mustering out pay, no evidence of error or injustice is found.

Whatever the Board or the Secretary of the Army may have thought of this reasoning it does not make the denial of plaintiff’s claim any less arbitrary. Captain Schiffman did not know he was disabled when released from active duty, nor did the Army’s mustering out physical examination reveal this disability. His choice of mustering out pay in lieu of a promotion was logical, as well as honorable. As he stated before the Correction Board,

I was anxious to take advantage of any legitimate benefits that might be due me, and, therefore, decided on * * * [that basis] not to accept the majority.

We do not think plaintiff’s choosing the mustering out pay prejudiced his request to have his records corrected. In Uhley v. United States, 128 Ct. Cl. 608 (1954), the officer was in fact permanently disabled, but “was informed by medical officers of the Air Force that his disabilities were not sufficient to make him eligible for retirement and he was released not for physical disability.” Id., at p. 609. When Uhley’s condition did not improve he sought a hearing before a retiring board. He was told that “under a ruling of the Comptroller General a retiring board would have no jurisdiction to entertain such an application because plaintiff had been released not for physical disability.” Id., at p. 610. This court held that plaintiff was not bound by his decision to leave the service without first determining his physical fitness.

We do not think that Captain Schiffman’s acceptance of the $300 without knowledge of his existing disability should have deprived him of the right to have his records corrected by the Board. In view of what we have said, the Secretary’s denial of plaintiff’s request to have his records corrected to show his promotion to major and to entitlement to the pay and allowances, including retirement pay, was arbitrary.

Plaintiff is, therefore, entitled to judgment for the additional retirement pay he would have received had he accepted his terminal leave promotion to major when he was first eligible in June 1946. Allin v. United States, 147 Ct. Cl. 459, 466 (1959) ; Friedman v. United States, 141 Ct. Cl. 239, 259 (1958); Suter v. United States, 139 Ct. Cl. 466 (1957), 153 F. Supp. 367, cert. denied, 355 U.S. 926 (1958); Capps v. United States 133 Ct. Cl. 811, 815 (1956). The amount of plaintiff’s recovery will be determined pursuant to Rule 38(c).

FINDINGS OF FACT

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

1. Plaintiff volunteered for service in the United States Navy immediately after Pearl Harbor and was rejected because of poor vision and lack of medical internship. Pie was accepted by the Army after having served an internship as a physician and appointed a first lieutenant in the Medical Corps, Army of the United States, on September 30, 1942. He entered upon active duty October 15, 1942, served overseas, was promoted to the rank of captain on August 31,1944, and on June 14, 1946, was released from active duty not by reason of physical disability.

2. At the time plaintiff was released from active duty, Army officers below the grade of colonel were, coincident with their processing for separation from active duty, tendered a promotion to the next higher grade, in the event they fulfilled the requirements for such promotions set forth in War Department Circular No. 10, dated January 11, 1946, entitled “Promotions of Officers on Relief from Active Duty.” The Circular, as amended, remained in effect until May 15, 1946, when it was rescinded by paragraph 12 of War Department Circular No. 140. Under the provisions of the applicable War Department Circular officers who had served on active duty in the grade of captain for 24 months or more since September 16,1940, and who had attained a maximum efficiency index of 40, were eligible, at the time they went on terminal leave, for promotion to major. Plaintiff met these requirements for promotion to major, having been credited with 29 months and 13 days of active duty as a captain and having attained an efficiency rating of 40.2.

3. Paragraph 6 of War Department Circular No. 10 provided that acceptance of such promotions would be assumed but also indicated that such promotions could be declined in appropriate cases, including declinations submitted “in order to accept mustering-out pay.”

4. Plaintiff was entitled to $300 mustering-out pay under the provisions of the Mustering-Out Payment Act of 1944, Public Law 225, 78th Cong., approved February 3, 1944 (58 Stat. 8; 38 U.S.C. 1946 ed., Sec. 691). In accordance with the established procedure pertaining to “terminal leave promotions” (as they were commonly called), plaintiff accepted the $300 mustering-out pay in lieu of a promotion.

5. In August 1946, shortly after his release from active duty, plaintiff was hospitalized and submitted to surgery. A large herniated disc was disclosed as a result of the operation. Plaintiff experienced some difficulty with his back in the service and testified at the Correction Board hearing as follows:

APPLICANT: As stated, I did not realize that I was subject to retirement. I did know that I had a ruptured disk and I felt, in my own mind, that I would be incapable of further military duty. In view of that I also felt that for me to accept the majority at that time would be simply an honor without status, because it would have meant that there would be no function in my retaining the reserve commission since I was certain that in the event of requirements for further duty I would simply bust out because of this disability which did exist. And I was satisfied to leave the situation as it was from that point of view. Also, there was in my mind the fact that, according to my knowledge, in the first world war the fieldgrade officers were not subject to any bonus payment and coming out of civilian life, fresh to start, I was anxious to take advantage of any legitimate benefits that might be due me, and, therefore, decided on the basis of those two reasons not to accept a majority.

The extent of the disability was not known to plaintiff or the military authorities at the time of his release from active duty. The operation failed to cure plaintiff’s condition, and on April 7,1949, he met an Army Retiring Board at Walter Reed General Hospital. The Board found that plaintiff had incurred the herniated nucleus pulposus in line of duty and that he had become permanently incapacitated for active service in February 1945. The Secretary of the Army approved the findings of the Army Retiring Board and on May 9, 1949, certified plaintiff to the Veterans Administration as eligible for disability retirement pay in the grade of captain as of June 15, 1946. Plaintiff has received retirement pay based on his rank as captain since that date. On June 9, 1949, he was discharged from his commission because of his disability.

6. Section 1(b) (2) of the Mustering-Out Payment Act of 1944, supra, provided:

(b) No mustering-out payment shall be made to—
(2) any member of the armed forces who, at the time of discharge or relief from active service, is transferred or returned to the retired list with retirement pay or to a status in which he receives retirement pay;

* * *

After plaintiff had been found eligible for retirement pay at the time of his release, the Army, pursuant to the statutory provision, sent him a letter, dated August 1, 1960, which included the following statement:

2. At the time of your discharge 14 June 1946 you were paid $300.00 mustering-out pay. The findings of the Army Retiring Board, as approved by the Secretary of the Army, subsequently established entitlement to disability retirement pay effective 15 June 1946. This action voided entitlement to mustering out pay.

Plaintiff complied by refunding the $300 mustering-out pay.

7. On or about May 12,1953, the Disabled Emergency Officers of the World Wars, a veterans’ service organization, acting on behalf of plaintiff, filed an application with the Army Board for the Correction of Military Records requesting that his records be corrected to reflect the terminal leave promotion from the rank of captain to major. In a letter to the Board enclosing the application plaintiff’s representative stated, in part, as follows:

It is respectfully contended that Captain Schiffman met the requirements for the terminal leave promotion prior to June 14, 1946. The records show that he was not aware of bis eventual retirement with pay when be declined tbe promotion to receive mustering-out pay.

8. At a bearing before tbe Correction Board on November 10, 1953, plaintiff’s representative pointed out that, at bis release, plantiff was in a position of command and might reasonably have expected to receive tbe promotion to major within a short time, had be not been separated. It was also emphasized that plaintiff did not know that he was eligible for retirement at tbe time of bis release and bad no inkling of that fact until 1949. By letter dated December 30,1953, tbe Army Board for the Correction of Military Records notified plaintiff’s representative of the denial of plaintiff’s application.

Although the notice to plaintiff’s representative failed to state the reasons for the decision, the Board made findings in the matter. The Board’s findings, conclusion, and recommendation were as follows:

THE BOARD FINDS:
1. That the applicant has exhausted all administrative remedies afforded him by existing law and regulations.
2. That applicant was appointed a First Lt., Medical Corps, AUS, 30 September 1942 and entered on active duty 15 October 1942. He was promoted to the temporary grade of Captain, 31 August 1944, and relieved from active duty not by reason of physical disability 14 June 1946.
3. That applicant appeared before an Army Retiring Board on 7 April 1949, which Board found him to be permanently incapacitated for active duty. As a result thereof, on 9 May 1949 applicant was certified to the Administrator of Veterans Affairs as eligible for retirement pay benefits under the provisions of the Act of 3 April 1939 in the grade of Captain, effective 15 June 1946.
4. That applicant elected to receive mustering out pay rather than terminal leave promotion to the grade of Major.
THE BOARD CONCLUDES:
_ 1. That inasmuch as applicant was apprised of his right to terminal leave promotion at the time of his relief from active duty, and inasmuch as he rejected terminal leave promotion to the grade of Major in favor of mustering out pay, no evidence of error or injustice is found.
THE BOARD RECOMMENDS:
That in the case of WILLIAM L. SCHIFFMAN his application for correction of military records, dated 1 May 1953, be denied.

The Board did not state in its findings that plaintiff had accepted mustering-out pay without knowledge of his eligibility for disability retirement.

9. On October 13, 1953, the Secretary of the Army liberalized the Army’s policy with reference to payment of retroactive benefits in terminal leave promotion cases to conform to that of the Air Force, which authorized payment at the higher grade retroactive to the date on which the terminal leave promotion would have become effective except for administrative error.

Implementation of the Secretary’s new policy was delayed until March 9, 1954, pending the determination by the Comptroller General of the Baltzell case in which an officer, through the action of the Army Board for the Correction of Military Records, had been (1) retired for disability retroactively to the date of his release from active duty, (2) given a terminal leave promotion to the rank of colonel retroactively to the date of his release, and (3) awarded retroactive disability retirement pay on the basis of the higher rank to which he had been promoted. The Comptroller General’s opinion, B-116091, is dated February 5, 1954.

After the announcement of the Comptroller General’s decision in the Baltzell case, the Secretary’s policy was implemented by a determination that applicants to the Correction Board were entitled to have their claims reconsidered in the following types of cases in which relief theretofore had been fully denied or denied in part. The change in policy related to the following groups:

(1) Cases in which the Board had granted promotion only from the last day of terminal leave or from the date of the officer’s application. The new policy required promotions from the date of eligibility.
(2) Cases in which the Board had given no relief, although the officers were qualified for promotions by length of service and the efficiency index. The new policy required that such officers be given complete relief.
(3) Cases in which the Board had held that the officer should be promoted but not paid. The new policy required payment from the date of eligibility for promotion. (See finding 11.)

10. By letter dated June 1, 1954, the plaintiff asked the Correction Board to reconsider his case in the light of the changed policy on terminal leave promotions. On September 2,1954, the Executive Secretary of the Correction Board addressed a memorandum to the Secretary of the Army through General McNeil, Special Assistant to the Secretary, recommending that plaintiff’s case be reconsidered in the light of the implementation on March 9, 1954, of the Secretary’s new policy of October 13, 1953. The Executive Secretary’s letter included the following statements:

4. This case is one of several that was denied by this Board prior to the enunciation of the Secretary of the Army’s policy of 13 October 1953. As stated by the Special Assistant, OSA, in his Memorandum dated 20 July 1954, in the William E. Wheeler case, the question is, whether having declined the TLP to Major in order to receive $300 MOP, which has been refunded, should he now be given a TLP to Major, effective the first day of his eligibility therefor with retroactive pay.
5. The pertinent point in all of these cases is that the applicants did not know whether or not they would be retired for physical disability, and therefore declined their promotion to accept the MOP. Piad they known that they would be retired for disability, it is inconceivable to believe that they would have declined promotions and thereby forfeited their right to a higher amount of retirement pay to accept the $300 MOP.
6. It is felt further that had applicant’s case and all similarly rejected cases been considered subsequent to the implementation of the Secretary’s policy of 13 October 1953, the final decision thereon might have been different.
7. Furthermore, in many cases considered prior to the implementation of the 'Secretary’s policy, this Board has denied relief on other equitable considerations, although the applicant was qualified by service and the efficiency index under the terminal leave promotion policy. Such denials are now in contravention of the Secretary’s policy put into effect 9 March 1954, and upon application therefor should be reconsidered.
8. AB. 15-185, the regulations governing this Board, Section VI, paragraph 22, states that, “Reconsideration. — After final adjudication further hearing before the Board will be granted only upon presentation by the applicant of newly discovered relevant evidence not previously considered by the Board and then only upon recommendation of the Board and approval by the Secretary of the Army”.
9. The implementation on 9 March 1954, of the Secretary’s policy of 13 October 1953 concerning terminal leave promotion can be considered as newly discovered relevant evidence not previously considered by the Board. It is therefore recommended that pursuant to the above, this memorandum be considered by the Secretary of the Army as the recommendation of this Board that this case ana all terminal leave promotion cases which were denied prior to the Board’s implementation on 9 March 1954 of the Secretary’s policy of 13 October 1953 be upon application therefor reconsidered by this Board.

Although the Correction Board recommended that plaintiff’s claim be reconsidered, the Secretary of the Army, who had General McNeil’s adverse recommendation, denied plaintiff’s request.

On October 7, 1954, the Executive Secretary of the Correction Board advised plaintiff that his request for reconsideration was denied.

11. Plaintiff’s counsel has attempted to obtain from the defendant information as to the extent to which the new policy on terminal leave promotions was applied by the Army and the Air Force in cases in which the officer rejected the promotion in ignorance of his right to disability retirement pay. In the defendant’s reply of March 28, 1961, to plaintiff’s letter of January 18,1961, defendant pointed out that, in order to supply the information, it would be necessary to examine all of the applications filed with the Correction Board, approximately 15,000, because there was no index or other record identifying Correction Board cases by category. It is evident, however, from the exhibits placed in the record of this case that some records were maintained with respect to terminal leave promotion cases. In a memorandum prepared by General McNeil, Special Assistant, Office of the Secretary of the Army, addressed to the Department Counselor, dated March 9,1954, implementing the new policy, it is stated, in part, as follows:

We have held up terminal leave promotion cases for a year trying to get some authoritative decision to clarify the confusion. The Baltzell case was submitted by Finance to see if the Comp. Gen. would affirm the Francis decision. He has not done so but has not overruled Francis.
On 10 September 1953 a memorandum signed by the Assistant Secretary of the Army Mitchell, approved by Secretary Stevens on 13 October 1953, recommended “that the Army adopt the policy of authorizing payments at the higher grade retroactive to the date on which terminal leave promotion would have become effective, except for administrative error”.
The implementation of this policy has been delayed awaiting the Baltzell decision and by certain actions of our ABCMB, referred to below. I recommend that we now process all terminal leave promotion cases in accord with the Secretary’s declaration of policy.
ABCMB has made full payment m certain especially meritorious cases as was formerly done by the Congress. In other cases they have made promotion from the last day of terminal leave and payments from the date of application to the Board. Congress habitually made payments from the date of the law with no retroactive payment at all except in especially meritorious cases. Action now will have to be from the date of eligibility for promotion.
_ Since the Secretary’s policy, ABCMB has denied relief in some six cases on equitable considerations although the officer was qualified by service and the efficiency index under the terminal leave promotion policy. I think this is an evasion of the Secretary’s policy and these cases should be returned to the Board. None of these have been sent to the Secretary.
In other cases ABCMB has corrected the records to show entitlement to promotion but has made no finding as to pay. As to these cases, a paragraph may be added to the Secretary’s directive ordering pay from date of eligibility in accord with the present policy.
Approval of the foregoing will permit prompt disposal of all terminal leave cases estimated at around eighty.

The memorandum was approved by the Department Counselor, Mr. Berry.

Action on these cases, as shown above, had been suspended pending clarification of the new policy. In view of these facts, it appears reasonable to conclude that many of these cases had been segregated and were known to the Department of the Army.

It appears from the opinion of the Comptroller General in the Balt Bell case that the Correction Board had granted the promotion in a case similar to plaintiff’s. (See finding 9.)

12. At the time plaintiff was separated from active service, neither the Army nor plaintiff knew that plaintiff was then eligible for disability retirement pay. Had the Army known that plaintiff was eligible for disability retirement, mustering-out pay would not have been tendered to plaintiff, since such remuneration was prohibited by statute to persons eligible for disability retirement. Plaintiff insists that if he had known he was entitled to disability retirement pay he would not have accepted a lump sum of $300 in lieu of retirement pay, which would likely have been paid him for the remainder of his life.

Because of a mistake of fact, the Army tendered plaintiff mustering-out pay and plaintiff accepted it in lieu of his promotion, as authorized by the Army regulations.

The extent of plaintiff’s physical disability was not discovered until his operation, a short time subsequent to his release. When the facts became known, an Army Retiring Board, in 1949, found that plaintiff was, at the time of separation, permanently incapacitated for active military service because of disability incident to such service and entitled to disability retirement pay. The Secretary of the Army approved the finding and plaintiff retired with pay.

Plaintiff was retired in the grade of captain and denied promotion in grade. The Department of the Army obtained a refund of the $300 mustering-out pay.

Based upon the complete record, it is found that the action of the Correction Board, approved by the Secretary of the Army, in denying plaintiff disability retirement pay in tbe rank of major was arbitrary and not supported by substantial evidence.

CONCLUSION OF LAW

Upon tbe foregoing findings of fact, which are made a part of tbe judgment herein, tbe court concludes as a matter of law that plaintiff is entitled to recover the additional retirement pay be would have received bad be accepted his terminal leave promotion to major when be was first eligible in June 1946. The amount of recovery will be determined pursuant to Eule 38 (c).

In accordance with tbe opinion of tbe court and a memorandum report of tbe commissioner as to the amount due thereunder, it was ordered on November 1, 1963, that judgment for tbe plaintiff be entered for $7,806.30. 
      
       58 Stat. 8, § 1 (b)(2), (1944), 38 U.S.C. § 691a(b) (2) (1946 ed.).
     
      
       “To acknowledge plaintiff’s right to a promotion and at the same time to deprive him of one of the principal benefits of the promotion cannot truly be viewed as such action as would remove an injustice. We think that to confer on plaintiff a fitting recognition of the reward earned by him during months of valiant service, more than a promotion in name only is required. An action which is designed to remove an. injustice or correct an error, as this one must have been under the statutory enactments, should include every essential benefit.” [Caddington v. United States, 147 Ct. Cl. 629, 633 (1960).] * * * “Certainly getting the same pay for an equal amount of knowledge, training and service is as important to an officer in the Army as to a person occupying a civilian position. To say otherwise would he to say that the emoluments of office are unimportant to a man in the military. This we cannot conceive. One cannot eat or put in the bank the glitter and glory that goes hand-in-hand with an officer of the Army. Officers like civilians have their future and families to think of and the pay commensurate to their station is of the greatest personal importance to the soldier.” Darby v. United States, supra, at p. 216.]
     
      
       These changes were recommended by General McNeil, Special Assistant, Office of the Secretary of the Army, and approved by Mr. Berry, Department Counselor, March 9, 1954.
     