
    FRED H. SORROUGH v. THE UNITED STATES
    [No. 501-58.
    Decided November 1, 1961]
    John A. Kendrick for plaintiff. Burton, Iieffelfinger, McCarthy <& Kendrick were on the brief.
    
      Charles M. Munnecke, with whom was Assistant Attorney General William II. Orrick, Jr., for the defendant.
   Pee Curiam ;

This case was referred pursuant to Eule 45 to Mastín G. White, a trial commissioner of this court, with directions to make findings of fact and recommendations for conclusions of law. The commissioner has done so in a report filed September 14, 1960. Briefs were filed by both parties, exceptions to the commissioner’s findings were taken by the plaintiff and the case was submitted to the court on oral argument by counsel. Since the court is in agreement with the findings and recommendations of the trial commissioner, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Plaintiff is therefore not entitled to recover and his petition will be dismissed.

It is so ordered.

OPINION OP THE COMMISSIONER

The plaintiff, an officer of the Air Force Reserve who had served continuously on active military duty for a number of years, was released from active duty by the Air Force on January 18,1954, pursuant to a reduction-in-force program. The plaintiff contends that he should have been retired for physical disability; and he seeks in the present litigation to recover disability retirement pay from and after the date of his release from active duty.

The plaintiff relies upon Section 402(a) of the Career Compensation Act of 1949 (63 Stat. 802, 816; 37 U.S.C., 1952 ed., 272 (a)) as providing a statutory basis for his claim. At the time when the plaintiff was released from active duty by the Air Force, this section provided in part as follows:

Upon a determination by the Secretary concerned (1) that * * * a member of a Reserve component of the uniformed services entitled to receive basic pay who has been called or ordered to extended active duty for a period in excess of thirty days, is unfit to perform the duties of his office, rank, grade, or rating, by reason of physical disability incurred while entitled to receive basic pay; (2) that such disability is not due to the intentional misconduct or willful neglect of such member and that such disability was not incurred during a period of unauthorized absence of such member; (3) that such disability is 30 per centum or more in accordance with the standard schedule of rating disabilities in current use by the Veterans’ Administration; (4) that such disability was the proximate result of the performance of active duty; and (5) that accepted medical principles indicate that such disability * * * is of a permanent nature, such member muy be retired by the Secretary concerned and, upon retirement, shall be entitled to< receive disability retirement pay * * *: Provided further, That any disability shown to have been incurred in line of duty during a period of active service in time of war or national emergency shall be considered to be the proximate result of the performance of active duty.

The evidence shows — and the defendant does not make a contrary contention — that the plaintiff was suffering from cirrhosis of the liver at the time of his release from active duty by the Air Force, that the cirrhosis had developed during the plaintiff’s active military service in time of war or national emergency and not during a period of unauthorized absence, that this condition was disabling to the extent of 30 percent, and that such disability was of a permanent nature.

The question whether the plaintiff’s cirrhosis of the liver rendered him unfit to perform the duties of his office, rank, grade, or rating was considered on November 18,1953, by an Air Force physical evaluation board in connection with the plaintiff’s prospective release from active duty. The physical evaluation board found that the plaintiff was unfit for further military duty. However, the plaintiff’s case was then reviewed by the Air Force Physical Eeview Council, and the council overruled the physical evaluation board and determined that the plaintiff was physically fit to perform the duties of his office, rank, grade, or rating. It was pursuant to the latter determination that the plaintiff was released from active duty on January 18, 1954, as a result of the reduction-in-force program, instead of being retired for physical disability.

Some years later, the matter of the plaintiff’s physical fitness to perform his military duties was considered by the Air Force Board for the Correction of Military Eecords pursuant to an application filed by the plaintiff asking that his record be corrected so as to show that he was retired for physical disability effective January 18, 1954. The board denied the plaintiff’s application for reasons which will be discussed later in the opinion, but the board made findings which, in effect, reversed the determination of the Air Force Physical Review Council and reinstated the determination of the physical evaluation board that the plaintiff was unfit to perform his military duties at the time of his release from active duty by the Air Force on January 18,1954.

Therefore, the final administrative determination was to the effect that the plaintiff, at the time of his release from active military duty by the Air Force on January 18, 1954, was unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability.

Under the statutory standard, there is left for determination in the present litigation the question whether the plaintiff’s physical disability was due to his intentional misconduct or willful neglect, on the one hand, or was the proximate result of the performance of active duty, on the other hand. In this connection, consideration must be given to the proviso in the governing law to the effect that “any disability shown to have been incurred in line of duty during a period of active service in time of war or national emergency shall be considered to be the proximate result of the performance of active duty.” Since it is plain from the evidence that the plaintiff’s disability was incurred “during a period of active service in time of war or national emergency,” the problem before the court in the present litigation boils down, in essence, to the single question of whether the plaintiff’s disability was incurred in line of duty.

During the period of time involved in this case, there was in effect a regulation of the Air Force (par. 2, AFR 35-67, 12 December 1951) which had the force and effect of law (Standard Oil Co. v. Johnson, 316 U.S. 481, 484 (1942); Siegel v. United States, 148 Ct. Cl. 420, 429 (1960)) and which established the presumption that any disease contracted by a member of the Air Force while on active duty was incurred in line of duty unless there was substantial proof that the contracting of the disease came within one of several excepted categories, which were carefully specified in the regulation. The only excepted category that might possibly be regarded as applicable to the plaintiff’s case was one to the effect that a disease “directly attributable” to “Wanton overindulgence in alcoholic liquors” would normally be held to have resulted from intentional misconduct and not in line of duty. The pertinent evidence will be reviewed in the light of this regulation.

Over a period of years during his active military service, the plaintiff was a regular, daily consumer of alcohol. His usual alcoholic beverage was whiskey, and it was his custom to have several drinks of whiskey each evening. The plaintiff’s eating habits during the same period were erratic. He frequently failed to eat an evening meal because he had no appetite when drinking liquor.

After the plaintiff’s daily consumption of alcohol in substantial quantities and his erratic eating habits had continued for several years, he experienced an episode of unconsciousness (i.e., a fainting spell) in the fall of 1951 while in France, and he was examined by a medical officer on November 2, 1951. The medical officer concluded that the plaintiff was suffering from cirrhosis of the liver, and he suggested that the plaintiff abstain from alcohol and follow a high-protein diet. However, no change was made by the plaintiff in his regular consumption of liquor or in his erratic eating habits for a period of approximately 1 year after this incident.

On January 5, 1952, the plaintiff was admitted to a military hospital in Germany for medical observation under a preliminary diagnosis of “Possible D.T.’s.” A needle biopsy of liver tissue was made during the plaintiff’s hospitalization; and as a result of that examination, a diagnosis of “Portal Cirrhosis, early,” was made. The plaintiff was discharged from the hospital on February 28,1952.

"While traveling aboard a ship from Europe to the United States in August 1952, the plaintiff was admitted to the ship’s hospital because of a delirium tremens episode. Upon reaching the United States at the end of this voyage, the plaintiff was transferred to a military hospital at Camp Kilmer, New Jersey, and afterwards to the Walter Eeed Army Hospital. At the latter hospital, the plaintiff was placed on a therapeutic regimen that consisted of a high-protein, high-calorie diet, plus brewer’s yeast and multivitamin tablets. On this program, there was progressive improvement in the plaintiff’s symptoms, physical signs, and liver-function tests.

The plaintiff’s case was considered by a medical disposition board at the Walter Need Army Hospital on October 23, 1952. The board made a diagnosis of cirrhosis of the liver, associated with chronic alcoholism. The board recommended that the plaintiff be given 6 months’ temporary limited duty, and thereafter that he return to the hospital for reevaluation. The board’s recommendation was approved, and the program suggested by the board was subsequently followed.

After his appearance before the medical disposition board at the Walter Need Army Hospital in October 1952, the plaintiff discontinued the daily consumption of alcohol and began to follow improved dietary practices, in accordance with medical advice. This apparently stabilized the cirrhosis, but, as indicated in an earlier part of this opinion, the disease had already progressed to the point that the plaintiff was unfit to perform his military duties.

The medical disposition board at the Walter Need Army Hospital in October 1952, another medical disposition board at the Walter Need Army Hospital that considered the plaintiff’s case on May 21,1953, and the Air Force physical evaluation board that considered the plaintiff’s case on November 18, 1953, all found that the plaintiff’s cirrhosis was incurred in line of duty. It was not necessary for the Air Force Physical Neview Council to make a finding on this particular point, as the council found that the plaintiff was physically fit to perform the duties of his office, rank, grade, or rating.

When the plaintiff’s case was considered by the Air Force Board for the Correction of Military Necords, that board found:

* * * that applicant [plaintiff] used alcohol intemperately, that the use of alcohol caused him to neglect his food intake, and that the combination resulted in his disability.

The board then proceeded to hold:

* * * that his [plaintiff’s] disability was incurred not in line of duty and that his release from active duty rather than disability retirement was not error or injustice.

The board’s report was approved by the Secretary of the Air Force.

This was tantamount to a determination by the Air Force Board for the Correction of Military Records, with the approval of the Secretary of the Air Force, that the plaintiff’s cirrhosis of the liver was “directly attributable” to “Wanton overindulgence in alcoholic liquors.” If this administrative determination is supported by the evidence in the record, it must be accepted by the court. Carlin v. United States, 121 Ct. Cl. 643, 660 (1951); Uhley v. United States, 137 Ct. Cl. 275, 281 (1957); Towell v. United States, 150 Ct. Cl. 422, 433-4 (1960).

The evidence in the record supports the administrative findings to the effect that the plaintiff’s cirrhosis of the liver was caused by his failure to eat properly over a period of years during his active military service, and that his failure to eat properly was due to his daily consumption of alcohol in substantial quantities during the same period. Hence, there is a rational basis for concluding that the plaintiff’s cirrhosis was “directly attributable” to his consumption of alcohol. That the plaintiff’s consumption of alcohol amounted to “overindulgence” can be deduced from the delirium tremens episodes and from the harmful effect that the steady drinking had on the plaintiff’s eating habits and, ultimately, on his liver; and that the overindulgence was “wanton,” in the dictionary sense of having been undisciplined, can be deduced from the plaintiff’s action in continuing to take several drinks of liquor daily for a period of approximately a year after the initial diagnosis of cirrhosis of the liver was made and after he had been advised by a medical officer to abstain from alcohol and follow a high-protein diet because of the cirrhosis.

It is my opinion, therefore, that the evidence in the record supports the determination of the Air Force Board for the Correction of Military Records, as approved by the Secretary of the Air Force, that the plaintiff’s cirrhosis of the liver was not incurred in line of duty because it was “directly attributable” to “Wanton overindulgence in alcoholic liquors” (i.e., it was due to his own intentional misconduct). Accordingly, the board’s determination must be accepted as disposing of the present case.

As the plaintiff is not entitled to the judicial relief that he seeks, his petition should be dismissed.

FINDINGS OE FACT

1. The plaintiff, Fred H. Sorrough, was born on May 29, 1915, in Atlanta, Georgia. He is a citizen of the United States and a resident of the State of Maryland.

2. (a) The plaintiff enlisted in the United States Army on February 24, 1936. Thereafter, he served on active duty continuously as an enlisted man until he was honorably discharged on June 23, 1942, to accept a commission. During his period of service as an enlisted man, the plaintiff attained the permanent grade of staff sergeant.

(b) On June 24, 1942, the plaintiff was commissioned a second lieutenant in the Army of the United States. Subsequently, he served continuously on active duty as a commissioned officer until his release from active duty on January 18,1954, under the circumstances related in later findings. During his period of active service as a commissioned officer, the plaintiff was promoted to first lieutenant, AUS, on January 19, 1943, to captain, AUS, on July 1, 1945, and to major, ORO, on July 7,1947.

(c) Pursuant to the provisions of Joint Army and Air Force Adjustment Regulations 1-1-1 (13 November 1947), the plaintiff became a member of the Air Force effective September 26,1947.

(d) Following his release from active duty on January 18, 1954, the plaintiff held a commission as major in the Air Force Reserve continuously until the time of the filing of the petition in this case.

3. Over a period of years during Ms military service, the plaintiff was a regular, daily consumer of alcohol. His usual alcoholic beverage was whiskey, and it was his custom to have several drinks of whiskey (ordinarily bourbon, but occasionally Scotch) each evening. This daily consumption of alcohol in substantial quantities continued until the latter part of 1952. The plaintiff’s eating habits during the same period were erratic. He frequently failed to eat an evening meal because he had no appetite when drinking liquor.

4. Following an episode of unconsciousness (i.e., a fainting spell) that occurred while he was in France, the plaintiff was examined by a medical officer on November 2,1951. The medical officer concluded that the plaintiff was suffering from Laennec’s cirrhosis, and he suggested that the plaintiff abstain from alcohol thereafter and follow a high-protein diet because of the cirrhosis. However, no change was made by the plaintiff in his regular consumption of liquor, or in his erratic eating habits, for a period of approximately 1 year after this incident.

5. On January 5,1952, the plaintiff was admitted to a military hospital in Germany for medical observation under a preliminary diagnosis of “Possible D.T.’s.” A needle biopsy of liver tissue was made during the plaintiff’s hospitalization; and as a result of that examination, a diagnosis of “Portal Cirrhosis, early,” was made. The plaintiff was discharged from the hospital on February 28,1952.

6. While traveling aboard a ship from Europe to the United States in August 1952, the plaintiff was admitted to the ship’s hospital because of a delirium tremens episode.

7. Upon reaching the United States at the end of the voyage referred to in finding 6, the plaintiff was transferred to a military hospital at Camp Kilmer, New Jersey, and after-wards to the Walter Keed Army Hospital on September 9, 1952. At the latter hospital, the plaintiff was placed on a therapeutic regimen that consisted of a high-protein, high-calorie diet, plus brewer’s yeast and multivitamin tablets. On this program, there was progressive improvement in the plaintiff’s symptoms, physical signs, and liver-function tests. After he had been in the Walter Eeed Army Hospital for more than a month, the plaintiff’s case was considered by a medical disposition board at a meeting held on October 23, 1952. The board made two diagnoses, the first being: “Cirrhosis of the liver, Laennec’s, associated with chronic alcoholism, mild; improved. LOD: Yes.” The board found that the plaintiff was partially disabled on a temporary basis, and it recommended that he “be returned to six months’ temporary limited duty, any duty not involving strenuous or prolonged physical exertion, with revaluation at Walter Eeed Army Hospital on or about 23 April 1953.” The board’s report was approved by the commanding general of the hospital on October 24, 1952, and the board’s recommendation was subsequently followed.

8. In the latter part of 1952, after his appearance before a medical disposition board at the Walter Eeed Army Hospital as indicated in finding 7, the plaintiff discontinued the •daily consumption of alcohol and began to follow improved dietary practices, in accordance with medical advice.

9. (a) After 6 months of limited duty, the plaintiff returned to the Walter Eeed Army Hospital for a reevaluation.

(b) A medical officer at the Walter Eeed Army Hospital made a report on May 13, 1953, relative to the plaintiff, and stated in part as follows:

Discussion: The diagnosis of Laennec’s cirrhosis is confirmed in this man. He has responded well to the regimen instituted at WEAH. This has been shown by the well being of the patient and the liver function tests which show but minimal rises in the BSP and TT tests. There is no reason to doubt that this man will stabilize or or [sic] continue to improve if he remains away from alcohol. He should be able to perform his duties in the armed forces.
Diagnosis Laennec’s cirrhosis — compensated

(c) The plaintiff’s case was considered by a medical disposition board at the Walter Eeed Army Hospital on May 21, 1953. This board made two diagnoses, one of which was as follows:

Cirrhosis of the liver, Laennec’s, associated with chronic alcoholism, mild; improved. LOD: Yes.

The board found that the plaintiff was not disabled, and it recommended that he be returned to general military service. The board’s report was approved by the appointing authority on May 22,1953.

10. On August 11, 1953, the plaintiff received an official notice to the effect that, because of a reduction in force, he had been selected by the Air Force for release from active duty.

11. The plaintiff was admitted to the Air Force Hospital at the Bolling Air Force Base on August 11,1953, for medical evaluation prior to his release from active duty. His case was considered by a medical disposition board at that hospital on November 3, 1953. The board’s report contained the following diagnosis (among others) :

Cirrhosis, liver, Laennec’s, associated with excessive alcoholic intake. Moderate. Improved.

The board recommended a finding as follows:

Patient is unfit for general military duty.

The board recommended the following action:

Patient should be presented to physical evaluation board.

The board’s report was approved by the appointing authority on November 4,1953.

12. On November 18,1953, the plaintiff appeared before an Air Force physical evaluation board which had convened at the Walter Heed Army Hospital to consider the plaintiff’s physical fitness. That board found that the plaintiff was unfit for further military duty, that the percent of his disability was 30, that his disability was permanent, and that it was incurred as an incident of his service.

13. (a) Thereafter, the plaintiff’s case was reviewed by the Air Force Physical Review Council. The council made the following determination relative to the plaintiff:

That subject member is physically fit to perform the duties of his office, rank, grade, or rating.

(b) By means of a letter dated November 27, 1953, the plaintiff was informed that the Air Force Physical Review Council had revised the finding of the physical evaluation board in his case “From Permanent Retirement to Return to Duty,” and that it was the opinion of the council “that the defect of subject member is minimal and would not preclude his continued performance of military duty.”

(c) Under the date of December 3,1953, the plaintiff notified the Headquarters of the Air Force that “I desire to avail myself of the right of rebuttal to the revised recommended findings of the Air Force Physical Eeview Council * * *.” However, the statement mentioned in the preceding sentence was canceled by the plaintiff on January 5, 1954, and the plaintiff then stated that “I do not desire to avail myself of the right of rebuttal to the revised recommended findings of the Physical Eeview Council * *

14. On January 18, 1954, the plaintiff was released from active duty by the Air Force as a result of the reduction-in-force program.

15. Subsequently, the plaintiff, pursuant to a letter of authorization furnished to him by the Air Force under the provisions of AFL 35-29 (1 November 1948), attempted to reenlist in the grade of master sergeant. He was denied reenlistment on the ground that he was disqualified by reason of physical disability.

16. The plaintiff’s petition in the present case was filed with the court on November 10,1958.

17. The plaintiff filed an application dated February 9, 1959, with the Air Force Board for the Correction of Military Eecords asking “That the record of the applicant reflect that he was retired for physical disability effective 18 January 1954.”

18. Upon receiving the plaintiff’s application, the Air Force Board for the Correction of Military Eecords submitted to the Office of the Surgeon General, USAF, a request for advice concerning the plaintiff’s case. The Office of the Surgeon General subsequently rendered a medical report stating in part as follows:

3. It is quite obvious that the developments in this case are the result of the excessive use of alcohol. Medical experience has shown conclusively that cirrhosis of the liver in chronic alcoholics is a common finding, and when found in those individuals, is usually due to the alcoholic poisoning. If the damage to the liver is not too extensive, then the discontinuance of alcoholic intake usually allows the liver an opportunity to recover from the damage previously inflicted. If the damage is extensive, it may not be completely repairable, and in such a case, the individual will have remaining a permanent disability. Individuals so involved with alcohol usually become administrative problems. The method of their leaving the service varies from administrative or punitive discharges, resignation, relief from active duty and occasional disability separation.
4. It is presumed that in this case, it was the opinion of the Physical Review Council that the individual’s disability was not so bad that he could not continue in the military service, that was, provided he could refrain from drinking. It is not uncommon that similar cases are found physically qualified to return to duty, so that appropriate administrative separation can be carried out as occurred in this case. In any particular case, only time and observation can determine the correctness of the action taken by the various boards. No information has been submitted in this case concerning his progress for the period immediately after separation. However two statements are rendered by civilian physicians to indicate that the applicant still does have considerable cirrhosis of the liver requiring continuous treatment and further that he is now unable to perform sufficient work to earn a livelihood. The action of the Physical Review Council was not irregular. Findings of the Physical Evaluation Board are never final and serve primarily as recommendations in any case being considered. Unfitness is not determined by a diagnosis or a combination thereof, a disability percentage or combination thereof, other factors are involved in determining disposition action.
5. It is the opinion of the Surgeon General that evidence in the record shows:
. a. The applicant used alcohol over a long period of time.
b. The disease of the liver and the resulting disability is most likely due to the use of alcohol.
c. The actions of the Physical Evaluation Board and the Physical Review Council are not inconsistent. The Physical Evaluation Board generously gave the applicant the benefit of all possible doubt. The Physical Review Council was not inconsistent in this type of situation in returning a finding of fitness prior to administrative separation.
d. The presence of liver damage ratable at 30% upon separation is established. The military service cannot completely disregard the alcoholic factors in any case. That the disability was the direct result of alcohol, although probable, cannot be proven. It is the opinion of the Surgeon General that it is reasonable to assume that the liver damage in this case was due to alcohol. However, in considering the applicant’s record, years of service, his continued and progressing disabilityand if doubt is resolved in the favor of the applicant, it would be appropriate to change the record to implement the recommendations of the Physical Evaluation Board.

19. (a) After a hearing that was held on April 15,1959, the Air Force Board for the Correction of Military Becords issued its findings and recommendation on July 23, 1959, in connection with the plaintiff’s application.

(b) By a vote of 2 to 1, the board made the following findings (among others) :

21. Careful consideration has been given to the application with supporting evidence, the testimony, and the evidence contained in the official records. There is some dispute in the records as to applicant’s physical fitness or unfitness for military duty at the time of his release. The Physical Evaluation Board found him unfit but the Physical Review Council found applicant physically fit for performance of duty. We believe the record and evidence tends to show that applicant would not have been able to perform military duty to a satisfactory degree unless assigned in a physically restricted status.
22. It is necessary to turn now to the question of whether or not applicant’s disability of cirrhosis of the liver was incurred in line of duty. Disability caused by intemperate use of intoxicants is not in line of duty. The record shows that applicant has been a user of intoxicating liquors for many years. On at least three occasions his use of intoxicating liquor has caused him to be commented upon unfavorably in official documents. It is significant that delerium [sic] tremens are mentioned twice in the medical records. In December 1951 there was an indication of delerium [sic] tremens and again in August 1952, while aboard ship. Christian, in Principles and Practice of Medicine, sixteenth edition, states that delerium [sic] tremens as, “. . . an incident in chronic alcoholism, results from the long continued action of the poison. The condition was first accurately described early in the nineteenth century by Sutton, of Greenwich, who had numerous opportunities for studying it among sailors. A spree in a temperate person, no matter bow prolonged, is rarely, if ever, followed by delerium [sic] tremens, but in a habitual drinker a.temporary excess may bring on an attack or it follows the sudden withdrawal of alcohol.” Christian continues by describing the characteristic manifestations of delerium [sic! tremens. Of equal, if not greater, significance is applicant’s statements to the effect that when he imbibed he did not eat, sometimes going for several days without food. According to the medical literature nutritional deficiency is considered, a primary cause of cirrhosis of the liver. Thus we have the cycle complete, the use of alcohol, the failure to eat properly, and the resultant damage to the liver.
23. From the record and the evidence before us we conclude that applicant has used alcohol in varying amounts for many years and that he has had an excessive intake of alcohol for several years preceding his release from active duty. The drinking of alcohol is not, per se, misconduct. The intemperate use of alcohol is misconduct. In our opinion the facts in this case support a conclusion that applicant used alcohol intemperately,_that the use of alcohol caused him to neglect his food intake, and that the combination resulted in his disability. _ The Board holds that his disability was incurred not in line of duty and that his release from active duty rather than disability retirement was not error or injustice.

(c) By a vote of 2 to 1, the board recommended that the plaintiff’s application be denied.

(d) The chairman of the board dissented from the board’s action in the plaintiff’s case. In his memorandum of disagreement, the chairman stated in part as follows:

It appears to me that the majority is resolving the doubt against the applicant based on a probability which cannot be proven, the probability that the liver damage was the direct result of alcohol. This is nothing more than an assumption, which the Surgeon General admits, though he characterizes it as a reasonable assumption. Honest people may differ as to the reasonableness of the assumption. In any event, the direct causative factor still remains in the area of speculation. To assume presumes doubt and denotes the absence of proof. Consequently, with nothing more it is equitable to resolve the doubt in the applicant’s favor.
There is no dispute that the primary cause of the applicant’s ailment was a nutritional deficiency. To say that the use of alcohol with failure to eat properly, and the resultant damage to the liver completes the cycle presumes that when the applicant did eat that he ate the proper food. This may or may not have been the case. It could very well be that the applicant’s dietary habits, apart from the time when he did not eat, could have contributed considerably to his nutritional deficiency. It could be that the combined use of alcohol, plus poor eating habits, from a nutritional standpoint brought about the damage to the liver, but it would not necessarily follow that the damage was a direct result of the alcohol, and it would be difficult to prove which contributed the most to the damage. [Emphasis in original.]

20. The recommendation of the Air Force Board for the Correction of Military Records was acted upon by an Assistant Secretary of the Air Force under the date of July 23, 1959. The formal action stated in part as follows:

The application of ered h. sorrough * * * before the Air Force Board for the Correction of Military Records be, and it hereby is, denied.

21. In their consideration of the plaintiff’s case, the Air Force physical evaluation board (see finding 12), the Air Force Physical Review Council (see finding 13), and the Air Force Board for the Correction of Military Records (see finding 19) had available to them the reports of the medical disposition boards which convened at the Walter Reed Army Hospital on October 23,1952 (see finding 7), and on May 21,1953 (see finding 9), and the report of the medical disposition board which convened at the Bolling Air Force Hospital on November 3, 1953 (see finding 11), together with the clinical abstracts which accompanied each of these reports.

22. (a) At the time of his release from active military duty on January 18, 1954, the plaintiff was unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability in the form of cirrhosis of the liver incurred during a period of active military service in time of war or national emergency, while the plaintiff was entitled to receive basic pay. Such disability was not incurred during a period of unauthorized absence; it was ratable at 30 percent; and it was of a permanent nature.

(b) The plaintiff’s cirrhosis of the liver was caused by bis failure to eat properly over a period of years during bis active military service; and bis failure to eat properly was due to bis daily consumption of alcohol in substantial quantities during the same period.

23. Paragraph 2 of the Air Force Regulation dealing with Line-of-Duty and Misconduct Investigations (AFR 35-67, 12 December 1951) provided in pertinent part as follows at the time involved in this litigation:

a. General. Determination of line-of-duty and misconduct status is an administrative action to determine eligibility for gratuity pay in death cases and entitlement to benefits peculiar to injury or disease cases and is separate and distinct from any judicial process or disciplinary measures. An adverse finding regarding line of duty or a finding of misconduct will not be used as a punitive measure or as an example to a command. Disciplinary action, if warranted, should be taken simultaneously with, but separate and apart from, a line-of-duty investigation conducted under the provisions of this Regulation. A finding of in line of duty not due to misconduct does not preclude separate punitive action. The proximate cause of an injury, disease, or death is a fundamental factor in determining the finding. (“Proximate cause” means that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, disease, or death, and without which such injury, disease, or death would not have occurred.) Death or ill effect chargeable to an intervening cause (one which comes into active operation in producing the result after the negligent act or omission of the person concerned) will be determined as incurred in line of duty.
b. Line-of-Duty Status:
(1) Line-of-Duty Presumption. An injury, disease, or death will be considered to have been incurred in line of duty and not the result of misconduct when the person was, at the time the injury or death occurred or disease contracted, in active service in the military forces, whether performing duty or on authorized absence or leave, unless such injury, disease, or death was incurred under one of the conditions outlined in (2) below.
(2) When Not in Line of Duty. Any injury, disease, or death will be considered to have occurred “not in Hup. of duty” if such injury, disease, or death:
(a) Incurred as a result of the person’s own intentional misconduct (see c below).
* * * * *
(3) Proof Necessary to Rebut Line-of-Duty Presumption. Substantial proof is necessary to rebut the presumption that an injury, disease, or death was incurred in line of duty and was not due to misconduct. Mere conjecture cannot and does not overcome the presumption. In the absence of such proof, any reasonable doubt in that regard will be resolved in favor of the injured, diseased, or deceased person,
c. Misconduct Status:
(1) Intentional Misconduct. Injury, disease, and death directly attributable to the following causes normally will be held to have resulted from intentional misconduct :
$ $ $ ‡ $
(d) Wanton overindulgence in alcoholic liquors or drugs.
* * $ * *
(2) Determination of Misconduct. A fixed or absolute set of rules cannot be prescribed for the determination that an injury or death was sustained or disease .contracted as the result of intentional misconduct. Intentional participation in any act or gesture, the probable least result of which will be an injury or grossly careless behavior, while mentally sound normally should constitute intentional misconduct. The willful neglect of a person to seek authorized medical care for injury or disease he knows he has suffered or incurred may also be properly regarded as intentional misconduct. The mere presence of misconduct, however, does not fix misconduct as the producing cause. A finding that the disease, injury, or death is the result of misconduct is proper and sustainable only when substantial evidence establishes that such misconduct was the proximate cause of the condition.

CONCLUSION OJ? LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover, and the petition is therefore dismissed. 
      
       The current provision of law on this point is contained in 10 U.S.C. 1201.
     
      
       The World War II emergency began on September 8, 1939 (Proclamation 2352, 4 F.R. 3851) or, in any event, not later than May 27, 1941 (Proclamation 2487, 6 F.R. 2617), and continued until April 28, 1952 (Proclamation 2974, 17 F.R. 3813). In the meantime, the Korean emergency began on December 16, 1950 (Proclamation 2914, 15 F.R. 9029), and was still in existence at the time when the plaintiff was released from active military duty.
     
      
       The plaintiff’s application for administrative relief was filed after the institution of his action in the Court of Claims.
     
      
       The evidence does not indicate the existence ot any alternative explanation for the development of the plaintiff’s cirrhosis. If there were any other reasonable explanation, the plaintiff presumably would have offered testimony regarding it.
     
      
       Neither the plaintiff nor this medical officer testified at the trial. However, it is inferred from the medical officer’s report that the diagnosis was disclosed and the suggestion was made to the plaintiff.
     
      
       Again, it is inferred that the diagnosis was disclosed to the plaintiff.
     