
    WILLIAM T. CAPPS, JR., v. THE UNITED STATES
    [No. 50425.
    Decided January 31, 1956.
    Defendant’s motion for rehearing overruled May 1,1956]
    
      
      Mr. Paul R. Harmel for plaintiff. Messrs. Geiger <& Harmel were on the briefs.
    
      Mr. LeRoy Southmayd, Jr., with whom was Mr. Assistant Attorney General Warren E. Burger, for defendant.
   Whitaker, Judge,

delivered the opinion of the court:

This case is before us on exceptions to the Commissioner’s report and for a decision on the merits.

Plaintiff originally enlisted in the Pennsylvania National Guard. His unit was called into Federal Service on February 17,1941, and he was commissioned in the Eeserve Corps on October 9, 1942. While serving as a commissioned officer, he became incapacitated and was retired on a finding by a retiring board that he was permanently incapacitated for further service, but that his incapacity was not an incident of the service, which findings were approved by the Secretary of War and the President. He says that his incapacity was an incident of the service and he sues for the retired pay to which he says he is entitled under the law.

The Betiring Board found that the cause of plaintiff’s incapacity was hypertrophic arthritis, and that “said incapacity originated about October 1941,” but, because at that time plaintiff was serving as an enlisted man, the Eetiring Board held that his incapacity was not “the result of an incident of service.” 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.

Plaintiff took an appeal to the Secretary of War’s Disability Review Board, which affirmed the finding of the Retiring Board. The Secretary of War and the President approved these findings and plaintiff was retired without retirement pay on May 8, 1944.

Thereafter, 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. The Secretary of War’s ruling follows:

1. I have this date changed the administrative interpretation of the act of 3 April 1939, with reference to the determination of the line of duty status in cases of non-Regular Army Officers and warrant officers, so that it will conform to the method authorized in cases of regular Army officers and enlisted men.
_ 2. The purpose of this action is to correct the unjust situation which has resulted in the case of officers, who incurred injuries and disease while serving as enlisted men, being denied the right of retirement as an officer. It is the intent of this change to insure in instances of continuous service where the cause of an individual disability originated during enlisted service but where the actual incapacities occurred during warrant or commissioned service, that such incapacities shall be regarded as an incident of the officer’s service.
3. It is requested that necessary action be taken to inform all concerned of this change and' to revise Department of the Army Memo 400-80-1 accordingly.

The Adjutant General then notified plaintiff of this ruling of the Secretary of War and advised him of his right to apply for further consideration of his case by the Army Disability Review Board.

Plaintiff applied for review and this Board held a hearing, which was adjourned from time to time in order to secure additional evidence. Finally, however, on June 1,1951, this Board reversed its previous finding “that said incapacity originated about October 1941,” 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.

The sole basis for this action of the Disability Eeview Board was plaintiff’s testimony before the Eetiring Board and the Disability Eeview Board that he had suffered a fall while roller skating in the fall of 1940, prior to his active military service, and had hurt his back, from which he did not recover for about three days. However, the Army doctors who had examined plaintiff had testified before the Eetiring Board on November 25, 1943 that this fall had nothing to do with plaintiff’s physical condition in 1943.

We held in Carlin v. United States, 121 C. Cls. 643; Spencer v. United States, 121 C. Cls. 558, cert. den. 344 U. S. 828; and in Hunter Louis Girault v. United States, No. 50474, on motion for a rehearing, decided November 8, 1955, ante, p. 135, that the findings of a retiring board, approved by the Secretary of War, were final and could not be reopened except upon the ground of newly discovered evidence, mistake of law, mathematical miscalculation, or fraud. In the case at bar the Eetiring Board found that the inception of plaintiff’s disability was in October 1941, when he caught his foot in a barbed wire fence and fell, injuring his back. In arriving at this finding, the Board had before it evidence of the fact that plaintiff had fallen a year before while roller skating, and the testimony of the Army doctors that this had nothing to do with plaintiff’s incapacity in 1943. On this evidence, the Board found that the inception of plaintiff’s disability was not in 1940 when he fell while roller skating, but in October 1941 when he caught his foot in the barbed wire fence. This finding was affirmed by the Disability Eeview Board, and was approved by the Secretary of War.

This finding of fact was final, in the absence of newly discovered evidence or fraud, neither of which is asserted in this case.

But the Board’s conclusion of law from the facts it had found was not final, because it was contrary to law, as the Secretary of War later determined. Section 5 of the Act of April 3, 1939 (53 Stat. 557, as amended; 10 U. S. 0. 456, 1946 ed.), which is quoted in a note below, intended to give to reserve officers called into active service the same retirement rights as regular officers, and regular officers had long been held to be entitled to retirement pay whether the inception of their disability was,during their enlisted service or during their commissioned service.

When the Secretary of War concluded that his former regulation was contrary to law, it was within his power to set aside his decision denying this officer retirement rights, and to render that decision required .by the law and the facts found by the Boards. To do this, it was entirely unnecessary for him to refer the matter to the Disability Review Board. He could have acted then and there on the facts already found. These findings of fact, in the absence of newly discovered evidence or fraud, and the like, were final and conclusive and could not be changed. On the second hearing the Disability Review Board had no power to change these findings of fact, no newly discovered evidence having been presented. Its sole- power was to reverse, subject to the approval of the Secretary, the former erroneous conclusion drawn from those facts.

Since we are in agreement that the original action of the Retiring Board and of the Disability Review Board and of the Secretary in approving them, in holding that this officer’s disability had not been incurred in line of duty, was contrary to law, we must set it aside and render that decision which the law and the facts require. .

We hold that, this officer’s disability having been incurred in line of duty during his military service, he is entitled to be retired with pay as provided for by law.

Plaintiff is entitled to recover retired pay from the date of his discharge on May 8,1944.

But defendant says we have no jurisdiction to decide the issue presented because plaintiff’s claim is barred by the statute of limitations. Plaintiff was discharged by order of the Secretary of War on May 8, 1944. If this action was wrongful, plaintiff had six years from this date to resort to this court for a correction of the wrong. He did not do this within that time. Ordinarily this would bar his right of action here.

But an unusual thing happened in this case. The tribunal that was vested by statute with the right to decide retirement rights of officers, and which had issued the regulation on the basis of which plaintiff was denied his rights, decided that the regulation was wrong, and changed it to accord to officers such as plaintiff the rights to which they were entitled under the statute. Not only this, but it then notified plaintiff he had a right to ask for reconsideration of his case. This was the tribunal which had the right to decide plaintiff’s case originally, and, at least in its view, to decide it later-after its erroneous regulation had been changed.

Then when it came to pass on plaintiff’s case in the light of' the new regulation, it did what we have held it had no right to do, to wit, it reversed its former finding of fact.

This erroneous action, we think, gave plaintiff the right ta come into this court for redress of the wrong done him on this last hearing of his case. Plaintiff brought his action within six years from this time.

Plaintiff’s right to resort to this court is based solely on> the denial of his statutory right to retirement by the tribunal vested with authority to decide his claim. We had no-right to decide his claim in the first instance; our jurisdiction arose only after this tribunal had finally acted.

The suggestion of the Secretary of War that plaintiff’s, case be reopened shows he was not through with it. He did not get. through with it, as it finally turned out, until the second decision of the Disability Eeview 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.

Under these peculiar facts, we do not think plaintiff’s action is barred. See Earle Goodwin v. United States, 127 C. Cls. 417; Uhley v. United States, 128 C. Cls. 608.

The entry of judgment is suspended until the incoming of a report from the General Accounting Office showing the amount due, computed in accordance with this opinion and the stipulation of the parties.

Laramore, Judge; Madden, Judge; LittletoN, Judge; and JONES, Chief Judge, concur.

FINDINGS 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. Plaintiff enlisted in the Pennsylvania National Guard on October 15, 1940, and was called into Federal Service with his National Guard Organization on February 17,1941. He served on active duty in an enlisted status until October 8, 1942, when he was discharged to accept a commission as a second lieutenant, Army of the United States.

2. He was found physically qualified for active military service in medical examinations on October 15, 1940, when he entered the National Guard; on February 21,1941, when he entered active duty in the Army as an enlisted man; and on July 7, 1942, when he applied for a commission.

3. In October 1941, while still in an enlisted status, plaintiff was participating in battle maneuvers when his foot got caught in hurdling a barbed wire fence, causing him to fall and injure his back, but he was not hospitalized. The only hospitalization of record during plaintiff’s service as an enlisted man occurred in March of 1942 when he was hospitalized for one day as the result of an ankle sprain.

4. Plaintiff had active duty as a commissioned officer from October 9,1942, to May 8,1944, when he was released from active duty by reason of physical disability.

5. Upon entering on active duty as a commissioned officer, plaintiff served for about three months training with an infantry regiment. During this period, in November 1942, plaintiff fell on his back from an eight-foot wall while running an obstacle course, but he experienced only slight pain at the time and was not hospitalized. On January 22,1943, after an eighteen-mile hike, plaintiff was in a tent under fairly cold climatic conditions when he stooped over and experienced a sudden severe pain in the lower back, radiating down both sides. He was unable to move his legs or straighten up and was sent to the Fort Jackson Station Hospital. He remained at this hospital until March 2, 1943, when he was sent to Oliver General Hospital for “further observation, treatment, and recommendation for the type of duty, if any, that he may be qualified to perform.” There he remained until July 14, 1943, when he was returned to limited service for about three months at Camp Croft, South Carolina, until the hospitalization which led to his relief from active duty.

6. Prior to his release from Oliver General Hospital on July 6, 1943, plaintiff appeared before a Disposition Board which found that he was • physically unfit for full active service and recommended that he be placed on limited duty without strenuous activity for a period of three months, after which he should be reexamined with a view toward reclassification for full duty. The board found further that his disease, myofascitis, lower back and right leg, moderate, was incurred in line of duty. Its findings were approved by the hospital commanding officer.

7. In accordance with the recommendation of the previous Disposition Board, on October 30, 1943, plaintiff appeared before a Disposition Board convened at Moore General) Hospital, Swannanoa, North Carolina. The diagnosis of this- Disposition Board was: “Arthritis, hypertrophic, chronic, nonsuppurative, nonvenereal, moderate, lower lumbar spine, lumbosacral and sacro-iliac regions, cause undetermined. Unimproved. Line of Duty: No. EPTAD [i. e., existed prior to active duty]. Disability was not aggravated by active service and was not due to his own misconduct.” After reciting the plaintiff’s back injuries in October 1941, and again in November 1942 and January 1943, the board found that plaintiff was physically incapacitated for any type of limited or general military duty, that his condition was not aggravated by active service or due to misconduct, and recommended that he be ordered to appear before a Retiring Board.

8. On November 23,1943, Army doctors in their report of physical examination of plaintiff, diagnosed his disease as hypertrophic arthritis in the lower lumbar spine, lumbo-sacral and sacro-iliac regions. They found that the onset of plaintiff’s disability was in 1941 when he injured his back during maneuvers. They found further that he was permanently incapacitated for active military service, although he would be qualified for limited .service.

9. Plaintiff appeared before an Army Eetiring Board which convened at Moore General Hospital on.November 25, 1943. The findings of the Eetiring Board were as follows:

* * * William T. Capps, Jr., 2d Lt. 0-2195826, Infantry, Army of the United States, is incapacitated for active service, that said incapacity is not the result of an incident of service, that the cause of said incapacity is hypertrophic arthritis, that the cause of said incapacity is not an incident of service, that said incapacity originated about October 1941, and that' said incapacity is permanent.
The Board, however, further recommends that this officer be considered for a limited service assignment.

In the course of the proceedings before the Eetiring Board the plaintiff testified that he had suffered a fall while roller skating in the fall of 1940 prior to his active military service, and had hurt his back temporarily. In testifying to the Eetiring Board the Army doctors who had examined plaintiff stated that the fall plaintiff had suffered while skating in 1940 had nothing to do with his physical condition in 1943.

This same roller skating injury is referred to in the clinical records of plaintiff’s hospitalization at the Fort Jackson Station Hospital in January 1943, where it was stated that at the time of the roller skating injury plaintiff suffered a severe low back pain which was treated with hot compresses, and that it was about three days before plaintiff was well enough to resume his normal activities.

10. The Surgeon General concurred in the findings of the Eetiring Board on December 14, 1943, and on December 20, 1943, the Secretary of War’s Personnel Board reviewed the case and found the plaintiff “approximately unfit for limited service duty.”

11. Under date of February 1, 1944, The Adjutant General advised the plaintiff as follows:

1. The Secretary of War directs me to inform you that the findings of the Army Retiring Board convened in your case have been approved. It having been determined that your physical incapacity was not incurred in line of duty while on active duty as a commissioned officer, you are not entitled to retirement pay benefits under the Act of 3 April 1939.
2. You are considered by the War Department to be permanently physically incapacitated for any type of active military service.

12. On March 13,1944, the Secretary of War’s Separation Board again reviewed plaintiff’s case and sustained the action of the Retiring Board and on May 8, 1944, plaintiff was released from active duty without retirement pay by reason of physical disqualification.

13. Plaintiff appealed the decision of the Retiring Board under the provisions of section 302, Public Law 346, 78th Congress, approved June 22, 1944, and appeared before the Secretary of War’s Disability Review Board which convened at Washington, D. C., on September 11,1945. The findings of the board were as follows:

Findings Affirmed:
1. That William T. Capps, Jr., 2d Lt., 0-2195826, Infantry, Army of the United States, is incapacitated for active service.
2. That said incapacity is not the result of an incident of service.
3. That the cause of said incapacity is hypertrophic arthritis.
4. That the cause of said incapacity is not an incident of service.
5. That said incapacity originated about October, 1941.
6. That said incapacity is permanent.
Findings Reversed:
None.
Additional Fmdings:
That any increase in symptoms or additional physical findings while in military service is not beyond the normal progress of the disease and does not constitute permanent aggravation.

In the proceedings before it the board received testimony ■concerning plaintiff’s roller skating accident in the fall of 1940. The board also had before it the written statements ■of plaintiff’s nonprofessional comrades-in-arms that, during the period of his enlisted service from February 1941 to May 1942, plaintiff appeared to be in fine physical condition.

14. The findings of the Secretary of War’s Disability Review Board were approved by the President on September 13, 1945, and under date of September 22,1945, The Adjutant General so advised the plaintiff.

15. Under date of August 3, 1950, the Secretary of the Army advised the Chief of Staff as follows:

1. I have this date changed the administrative interpretation of the act of 3 April 1939, with reference to the determination of the line of duty status in cases of non-Regular Army Officers and warrant officers, so that it will conform to the method authorized in cases of regular Army Officers and enlisted men.
2. The purpose of this action is to correct the unjust situation which has resulted in the case of officers, who incurred injuries and disease while serving as enlisted men, being denied the right of retirement as an officer. It is the intent of this change to insure in instances of continuous service where the cause of an individual disability originated during enlisted service but where the actual incapacities occurred during warrant or commissioned service, that such incapacities shall be regarded as an incident of the officer’s service.
3. It is requested that necessary action be taken to inform all concerned of this change and to revise Department of the Army Memo 400-80-1 accordingly.

16. On September 5, 1950, The Adjutant General advised >the plaintiff as follows:

1. This is in further reference to the review of your disability retirement case by the Army Disability Review Board and the subsequent denial of entitlement to receive retirement pay benefits as an officer, under the Act of 3 April 1939.
2. You are advised that under date of 3 August 1950 the Secretary of the Army changed the established administrative interpretation of the Act of 3 April 1939, as amended (10 U. S. C. 456), pertaining to the determination of “incident of service as an officer” in cases of non-Regular Army officers and warrant officers. This change provides that if service is continuous, a disability originating during enlisted service shall be regarded as an incident of service when it is incurred in line of duty while employed in the active military service regardless of any change in status between enlisted, warrant' officer or commissioned service.
3. Should you desire further consideration of your case by the Army Disability Review Board in accordance with the above, there is enclosed an application form which should be returned to this office, attention AGPO-S-B.

17. On September 13, 1950, plaintiff filed an application for a review of the previous findings of the Army Disability Review Board, requesting “corrective action” in accordance with paragraph 2 of the letter of September 5, 1950.

18. An Army Disability Review Board convened on January 8,1951, to review plaintiff’s case. After considering the record and testimony of the plaintiff, who was present and represented by counsel, the board adjourned to await the receipt of additional evidence; i. e., pertinent Veterans* Administration clinical records.

19. The board reconvened on April 11,1951, with plaintiff and his counsel in attendance. Plaintiff again testified and certain new material was offered into evidence, including Veterans’ Administration clinical records and a compensation statement. The board then adjourned to await additional evidence, i. e., all X-ray films and Army clinical records.

20. The board reconvened on May 31, 1951, with plaintiff and his counsel in attendance. Plaintiff again testified and new material was offered and admitted into evidence, including 52 X-ray films. The board thereupon adjourned to await an interpretation of the X-ray films by the Walter Reed General Hospital.

21. The board again reconvened on June 1, 1951, after having first been advised by plaintiff’s counsel that neither he nor the plaintiff desired to be present because of the fact that the new evidence was technical in nature. After admitting into evidence the new material received from the chief,. radiological service, Walter Need General Hospital, and after review of the findings of the Army Retiring Board and the administrative actions subsequent thereto, the Disability Review Board took the following action:

Findings Affirmed:
1. That said incapacity is not the result of an incident of service.
2. That the cause of said incapacity is not an incident of service.
Findings Reversed or Amended:
1. That William T. Infantry, Army of the for active service. Capps, Jr., 2nd Lt., 02195826, United States, is incapacitated
2. That the cause of said incapacity is hypertrophic arthritis.
3. That said incapacity originated about October 3.941..
4. That said incapacity is permanent.
Administrative Action Affirmed:
1. The Approval of the Secretary of War dated 1 February 1944 of the findings of the Army Retiring Board dated 25 November 1943.
2. The Approval of the President dated 13 September 1945 of the findings of the Secretary of War’s Disability Review Board dated 11 September 1945.
Administrative Action Reversed:
None.
Findings of Army Disability Review Board:
1. That Second Lieutenant William T. Capps, Jr., 01295826, Inf-AUS, is permanently incapacitated for active service.
2. That said incapacity is not the result of an incident of service.
3. That the cause of such incapacity is hypertrophic arthritis L-4 and L-5, traumatic in origin.
4. That the cause of said incapacity is not an incident of service.
5. That the date of origin of the incapacitating defect was prior to entrance into military service.
6. That the officer became incapacitated for active service in January 1943.
7. That the cause of such incapacity has not been permanently aggravated by military service.
8. That officer’s disability was not incurred in combat with an enemy of the United States and did not result from the explosion of an instrumentaltiy of war in line of duty.
Additional Findings:
Oonclmions:
That the symptoms complained of and the physical findings recorded while in active service are recurring episodes of a preexisting disease, are not beyond the natural progress thereof, and do not constitute permanent aggravation.

22. The Adjutant General duly advised plaintiff of the decision and findings of the Retiring Board referred to in finding 21.

23. There is no evidence that, in reaching its conclusion that the origin of plaintiff’s incapacity antedated his military service, the Disability Review Board had before it any more information concerning plaintiff’s roller skating accident in 1940 than had previous boards which had reached a contrary conclusion.

24. The parties have stipulated and agreed that, in the event the court decides that plaintiff is entitled to recover retirement pay for any period of time, defendant may, without limitation as to any other offset it may have, set off against such retirement pay all disability compensation for such period paid to plaintiff by the Veterans’ Administration, and the entry of final judgment may await the exact computation by the General Accounting Office.

CONCLUSION OP 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.

The entry of judgment is suspended until the incoming of a report from the General Accounting Office showing the amount due, computed in accordance with this opinion and the stipulation of the parties.

In accordance with the opinion of the court and on the filing of a report by the General Accounting Office showing the amount due plaintiff, judgment for plaintiff was entered July 12,1956, for $7,056.84. 
      
       All officers, -warrant officers, and enlisted men of the Army of the united States, other than the officers andi enlisted men of the Regular Army, if called or ordered into the active military service by the 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.
     