
    GORDON C. THOMAS v. THE UNITED STATES
    [No. 50341.
    Decided November 4, 1952]
    
    
      
      Mr. Paul R. Harmel tov plaintiff. Geiger & Harmel were on tbe briefs.
    
      Mr. S. R. Gamer, with whom was Mr. Assistant Attorney General Holmes Baldridge, for defendant. Mr. LeRoy Southmayd, Jr., was on the brief.
    
      
      Defendant’s petition for writ of certiorari pending.
    
   Jones, Chief Judge,

delivered the opinion of the court:

Plaintiff on March 3, 1942, entered into active duty with the Army of the United States as a second lieutenant. He was promoted to the rank of captain on December 11, 1942, to major on January 8, 1944, and to lieutenant colonel on December 24,1945.

On October 5, 1945, an Army Retiring Board, at Tilton General Hospital, New Jersey, found that plaintiff was permanently incapacitated for active service by reason of peptic ulcer of the duodenum and that the cause of such incapacity was an incident of the service. The Surgeon General did not concur with the finding and the Adjutant General ordered a rehearing by a reconvened Army Retiring Board. The reconvened Army Retiring Board found, as did the original Army Retiring Board, that plaintiff was permanently incapacitated for active service by reason of such ulcer, and that the cause of such incapacity was an incident of the service.

The Surgeon General again did not concur and the Secretary of War decided that plaintiff’s disability was not caused by an incident of the service. As a result of such decision plaintiff was relieved of active duty on January 19, 1946.

An application for review of this decision was made under Section 302 of Public Law 346, 78th Congress, to the Army Disability Review Board in Washington, D. C., which board reviewed the case and on August 25,1948, reversed the previous decision and found that plaintiff’s disability by reason of which he was relieved of active duty was the result of an incident of the service. [58 Stat. 284, 287.]

After administrative approval of the latter decision the Secretary of the Army on September 24, 1948, certified to the Veterans Administration that the plaintiff was entitled to retired pay at tbe rate of $276.72 monthly, effective August 25, 1948, since which date plaintiff has received such retired pay. However, he has received no compensation either on the basis of active or retired pay for the period between January 13, 1946, the date he was relieved from active duty, and August 25,1948.

Defendant admits the allegations of plaintiif’s petition, except it asserts that the official records of the Veterans’ Administration show that plaintiff received disability compensation during the period from January 20, 1946, to August 25,1948.

The issues involved in this case are identical with those involved in the case of Ramsey v. United States, No. 50325, this day decided. For the reasons therein stated the plaintiff is entitled to retired pay for the period January 20, 1946, through August 25, 1948, less any amount he may have received as disability compensation during such period.

Plaintiff’s motion is granted and defendant’s motion is denied.

Entry of judgment is suspended pending the receipt of a report from the General Accounting Office showing the amount due plaintiff in accordance with this opinion.

It is so ordered.

Howell, Judge/ MaddeN, Judge; Whitaker, Judge, and LittletON, Judge, concur.  