
    EDWIN BUELL CONSTANTINE, JR. v. THE UNITED STATES
    [No. 50430.
    Decided May 3, 1955.]
    
      
      Mr. Abraham B. Hertz for plaintiff.
    
      Mr. LeRoy Bouthmayd, Jr., with whom was Mr. Assistant Attorney General Warren E. Burger, for defendant.
   Whitaker, Judge,

delivered the opinion of the court:

This is a suit by a permanent lieutenant in the United States Naval Reserve to recover retired pay. He bases his claim on a finding of a Board of Medical Survey of the United States Navy on July 17, 1945, which found that he was unfit for service ’by reason of “psychoneurosis, anxiety,” and that his condition was incurred in line of duty, and recommended that he be ordered before a Naval Retiring Board.

This recommendation, however, was disapproved by the chief of the Navy Bureau of Medicine and Surgery on July 24, 1945, who recommended that the matter be referred to another Board of Medical Survey for reconsideration. It was referred to another board, and this board recommended that plaintiff be placed on an inactive status in the Naval Eeserve. On September 7,1945, plaintiff was released from active duty.

Prior to tbe expiration of bis annual leave be appealed to tbe Naval Medical Survey Eeview Board, wbicb affirmed tbe findings of tbe Board of Medical Survey. Pie then applied to tbe Board for Correction of Naval Eecords. This' Board recommended that tbe President withdraw bis previous approval of tbe decision of tbe Naval Medical Survey Eeview Board and that plaintiff be authorized to appear before a Physical Evaluation Board “for the purpose of determining his eligibility for disability pay or compensation.” This was done and this Board found that plaintiff was “fit to perform tbe duties of bis rant as of the date of bis return to inactive duty,” and that be was “not permanently disabled for active service at tbe time of his release from active duty.” Tbe Physical Eeview Council affirmed this finding and the Secretary of tbe Navy approved it, and plaintiff was placed on the inactive list.

It is well settled that plaintiff is not entitled as a matter of right to go before a Naval Eetiring Board. His case may be referred to such a board or not, in the discretion of the President. A Board of Medical Survey is merely an instrumentality within tbe executive department whose function it is to advise tbe Secretary of tbe Navy on whether or not an officer should be sent before a Naval Eetiring Board. Its recommendation, however, is of course not binding on the Secretary of the Navy. It is within his discretion, subject to appeal to the President, to determine whether or not an officer should be sent before a Naval Eetiring Board. The Secretary of the Navy concluded that this officer should not be; he was fully supported by the findings of the various boards in the Navy Department; his action has been approved by the President; and this is the end of the matter.

The Supreme Court in the case of Denby v. Berry, 263 U. S. 29, went into this question fully. The opinion we have expressed above is in accord with the opinion of the Supreme Court.

Our opinion in Carlin v. United States, 121 C. Cls. 643, is not in conflict with this opinion. Plaintiff in that case had been before an Army Eetiring Board, which found that be was entitled to retirement, and the Board’s findings bad been approved by the Secretary of War. This is not the case here.

Plaintiff’s petition will be dismissed.

Laramore, Judge; MaddeN, Judge; LittletoN, Judge; and JoNes, Ohief Judge, concur.

EINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner C. Murray Bernhardt, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff, Edwin Buell Constantine, Jr., is a citizen of the United States and a resident of Florida.

2. Plaintiff was commissioned a permanent Lieutenant (Junior Grade) in the United States Naval Beserve on January 18,1938, and served on active duty from January 3,1941 through January 14,1946. He was promoted to permanent Lieutenant on September 19, 1942, and to temporary Lieutenant Commander on May 1,1943.

3. Plaintiff has at no time received retirement pay from defendant.

4. On July 17, 1945, a Board of Medical Survey of the United States Navy, after examination of plaintiff, found him to be permanently unfit for service by reason of “psychoneurosis, anxiety”, found that the condition was incurred while on active duty and did not exist prior thereto, and recommended that he appear before a Naval Betiring Board.

5. The Chief of the Navy Bureau of Medicine and Surgery, under date of July 24, 1945, disapproved and returned the Beport of Medical Survey, dated July 17, 1945, with the request “that it be referred to the Board of Medical Survey for reconsideration of the diagnosis; for reconsideration of the expressed opinion regarding this officer’s physical unfitness for service; for further consideration of the recommendation; and for resubmission.” The letter further stated:

2. In connection with the foregoing it is noted from a review of the records on file that this officer was evacuated from overseas because of impetigo. From a review of the enclosure it is noted that this condition is now controlled satisfactorily. It is further noted that this officer is reported to be tense and irritable and that prior to his return from overseas he was considered to be antagonistic and opposed to those who treated his dermatological condition. It is now reported that he feels he cannot continue duty because of his emotional state and that he is further concerned because of family and business responsibilities. In view of this it would appear that this officer is not actually permanently incapacitated for service by reason of an anxiety psychoneurosis. It would further appear that a large part of his unfitness for duty may result from a desire to leave the service at this time or that he may have sustained a reduction of efficiency to the point of military noneffectiveness such as is discussed in paragraph 8 (b) of ref. (a).

6. On August 18, 1945, plaintiff appeared, pursuant to notice, before a second Board of Medical Survey. Two of the three members of this Board had served as members of the first Board of Medical Survey which had, on July 17, 1945, rendered a report on plaintiff (Finding 4, supra).

7. On August 18, 1945, the second Board of Medical Survey made a report on its examination of plaintiff which read in pertinent parts:

* * * He has had 76 previous sick days and was admitted to the hospital with the diagnosis of Impetigo, Contagious, Bullous Type, * * * he was previously surveyed at U. S. Naval Hospital, Quantico, Virginia, July 17th, 1945 with the diagnosis of Psychoneurosis, Anxiety #1541 for discharge from service. This survey was disapproved July 24,1945.
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* * * This officer was admitted to the sick list December 17th, 1944 with the diagnosis of Prickly Heat, Miliaria Buba, Refractory #1956, and was transferred to U. S. Naval Hospital #17. His skin condition at this time was refractory to treatment interfering with his sleep; he became restless and very nervous. * * *
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[On May 5,1945] This man’s symptoms of irritability, resentment and outbursts of anger are considered in part justifiable. His skin condition has led to restlessness, insomnia, and tension, which in turn has produced fatigue and induces the emotional instability heretofore noted. * * * Evidently there was superimposed on his dermatological condition an anxiety state. * * * At the present time [i. e., August 18,1945], his dermatological condition is moderately controlled in the temperate climate; however, recurrence is persistent and it is considered that he will have frequent recurrences of this condition.
In civilian life both skin condition and his anxiety states should entirely subside. Further, this officer is fully competent to accept civilian responsibilities.
* * * The mental examination establishes the diagnosis of No Disease, Not Adaptable to Further Naval Service. * * *
The Board of Medical Survey * * * considers this officer unfit for retention in the TISNR and therefore recommends that he be placed on an inactive status in the U. S. Naval Beserve.

8. Between July 17,1945, and August 18,1945, the plaintiff was not required to nor did he undergo any other or further physical examination by defendant. The report of the second Board of Medical Survey, dated August 18, 1945, was not based on any newly discovered evidence that was not available to the first Board of Medical Survey in its report of July 17,1945.

9. Under date of August 24, 1945, the Chief, Bureau of Medicine and Surgery, modified the recommendation of the Board of Medical Survey, as follows:

2. This officer has been found to have no incapacitating physical or mental disease, but to be unsuited for retention in the naval service by reason of being unable to further adapt thereto.
3. It is therefore recommended that appropriate steps be taken to effect his release from active duty and separation from the U. S. Naval Reserve.

10. On September 7, 1945, orders were issued releasing plaintiff from active duty upon discharge from treatment at the hospital, and on January 14, 1946, plaintiff was released from all active duty.

11. On December 28, 1945, prior to the termination of plaintiff’s accrued leave, plaintiff requested that his orders be modified to continue him on active duty and to effect his appearance before a Retiring Board. No action was taken on this request.

12. Thereafter plaintiff appealed successively to and had his contentions considered by the Naval Medical Survey Review Board, the Board for Correction of Naval Records, a Physical Evaluation Board, and the Physical Review Council. On March 23,1951, the Secretary of the Navy approved the proceedings and recommended findings of the Physical Evaluation Board and found that plaintiff was fit to perform the duties of his rank at the time of his release to inactive duty.

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 the plaintiff is not entitled to recover, and his petition is therefore dismissed.  