
    JOHN WRIGHT REGISTER v. THE UNITED STATES
    [No. 49972.
    Decided March 1, 1955.]
    
      
      Mr. Guy Emery for plaintiff. Messrs. Ansell and Ansell were on the briefs.
    
      Mr. LeBoy Southmwyd, Jr., with whom was Mr. Assistant Attorney General Warren E. Burger for defendant.
   Whitaker, Judge,

delivered the opinion of tbe court:

Plaintiff was appointed a lieutenant (junior grade) in the United States Naval Reserve on January 10, 1944, and was ordered to active duty on February 25, 1944. After some preliminary training he was assigned to the U. S. S. Bosque, a landing craft, and engaged in combat service on said vessel until he became disabled from the recurrence of an old ailment and was hospitalized.

Plaintiff sues (1) for active duty pay and allowances of an officer of the Regular Navy of his grade and length of service from the date he was relieved from active duty for physical disability on February 16, 194T, to the date of his discharge for physical disability on November 19, 1947; and (2) for retired pay after his discharge.

A retiring board found that plaintiff was permanently incapacitated for active service by reason of thromboangiitis, obliterans, but that his disability was not an incident of the service, although it had been aggravated by it. This was approved by the Chief of Naval Personnel, by the Retirement Advisory Board and finally by the President of the United States.

After final action plaintiff asked for a review by the Naval Retiring Review Board under section 302 of the Servicemen’s Readjustment Act of 1944 (58 Stat. 287), as amended, but this was denied by the Chief of Naval Personnel on March 8, 1948.

Plaintiff’s right to recovery is governed by section 417 of 34 U. S. C., as extended by section 4 of the Naval Aviation Personnel Act of August 27, 1940 (54 Stat. 864). Section 417 of 34 U. S. C. (1946) reads:

When a retiring board finds that an officer is incapacitated for active service, and that his incapacity is the result of an incident of the service, such officer shall, if said decision is approved by the President, be retired from active service with retired pay.

Section 4 of the Naval Aviation Personnel Act extends the benefits of section 417 to Reserve Officers called to active duty for more than 30 days.

The issue in the case is whether plaintiff’s incapacity was “an incident of the service.”

It seems to be agreed that plaintiff had the disease that incapacitated him before he entered the service. Various doctors diagnosed it as one thing or another, as set out in findings 3, 6 and 9, which need not be repeated here, but the essential fact is that before entering the service in 1944 he had suffered from some 70 of the same or similar attacks as those that permanently incapacitated him. Plaintiff’s case rests on his claim that the aggravation of his ailment by his service brings his case within section 417 of 34 U. S. C. That it was aggravated is established by the finding of the retiring board, which found: “The Board is of opinion that this officer’s condition was aggravated by service.”

Can it be said that an officer’s incapacity for active service is an incident of the service, where his preexisting condition was aggravated by his service?

We think that depends on the circumstances of each case. If a man had an ailment that had been arrested, but which recurred because of his service, and incapacitated him, we think it is correct to say that his incapacity was an incident of his service.

The facts of this case are, so far as the record discloses them: From 1932 to 1941 plaintiff had some 70 attacks of the disease that finally incapacitated him. He says the attacks would last three or four days, and he would then be all right again until another attack came on. So far as the record shows, this lasted until 1941. When he was examined for active duty on February 25,1944, he was found to be physically fit. From this it must be assumed that he had had no attacks in the meantime. He had none until July 8, 1945.

Thus, we must assume that he had gone from 1941 until July 8, 1945, without an attack. If these are not the facts, which the record indicates, the defendant has not undertaken to demonstrate it. On the state of the record, we must assume them to be true.

They show an arrested case of plaintiff’s disease for a period of more than two years before his entry into the service, which disease did not recur until after he had been in the service nearly 18 months.

Under such facts, we hold that plaintiff’s incapacity was an incident of his service. See C. M. O. 1-1942-133-134, quoted by defendant; vol. Y, No. 6, par. 338a, p. 153, J. A. G. (Army) June 1946.

Defendant’s contention that plaintiff did not exhaust his administrative remedy is plainly without merit. Plaintiff applied for review of the proceedings under section 302 of the Servicemen’s Readjustment Act of 1944 (58 Stat. 287), but this application was denied. This is the only remedy he is said not to have sought.

Plaintiff is entitled to recover his active duty pay and allowances from February 16, 1947, to November 19, 1947, and his retired pay thereafter, less all disability compensation for such periods paid to plaintiff by the Veterans Administration. Plaintiff was relieved from active duty on February 16, 1947. This was the result of the finding of the Naval Retiring Board that he was incapacitated for active service. We have held that the findings of the Board entitled plaintiff to retirement. His release to inactive service was, therefore, improper; instead of that, he should have been retired for physical disability. He was not actually discharged until November 19, 1947; hence, he is entitled to his active duty pay in the meantime.

A regular Navy officer is entitled to pay and allowances until the date of his retirement. Sec. 4 of the Naval Aviation Personnel Act, supra, places reserve officers on the same basis as regular Navy officers insofar as retirement benefits are concerned. Since a regular Navy officer would have been entitled to his active duty pay until November 19, 1947, by the same token plaintiff is entitled to his active duty pay until that date.

Under our holding that plaintiff’s disability was an incident of the service, he is entitled to his retired pay from the date of his discharge.

Judgment will be suspended until the incoming of a stipulation by the parties showing the amount due computed in accordance with this opinion.

Laramoee, Judge; MaddeN, Judge; LittletoN, Judge; and Jones, Chief Judge, concur.

FINDINGS OF FACT

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

1. Plaintiff enlisted in the United States Navy on March 31, 1928, and thereafter served continuously in an enlisted status until the date of his honorable discharge on September 19,1930.

2. On January 10,1944, plaintiff was appointed a lieutenant (junior grade) in the United States Naval Reserve and reported for active duty on February 25, 1944. Before his entry on active duty he was given a physical examination and was found to be in sound physical condition, except for a defect in his teeth, which was waived. He was also given a physical examination on December 18, 1944, and was found physically fit for sea duty.

3. Plaintiff served on active duty, including a number of months of combat service, on the U. S. S. Bosque, until July 8, 1945, when he was admitted to the sick list suffering with severe pains in his left leg. He gave a history “of numerous attacks of what was probably phlebitis between 1932 and 1941.” His trouble was diagnosed as probably thrombo-phlebitis. After treatment he was returned to duty, but upon two recurrences of the pain shortly thereafter, he was transferred to U. S. N. Fleet Hospital #105 for further treatment. On the hospital ship plaintiff’s ailment was diagnosed as “cellulitis, left foot,” and plaintiff was discharged to duty on July 16,1945.

4. On July 16,1945, plaintiff was examined for temporary promotion to lieutenant USNR and found not physically qualified by reason of thrombo-phlebitis. He was duly notified that his promotion was withheld because of his failure to qualify “physically or professionally.”

5. On September 4,1945, plaintiff appeared before a Board of Medical Survey which made the diagnosis of thrombo-phlebitis, left lower leg, and recommended that he be transferred to a naval hospital in the United States for further treatment and disposition.

6. Plaintiff entered the U. S. Naval Hospital, Charleston, South Carolina, on October 22, 1945, and on November 11, 1945, plaintiff’s ailment was diagnosed as thromboangiitis, obliterans. Plaintiff was thereupon transferred to the Naval Hospital, Bethesda, Maryland, on December 4, 1945.

7. While a patient in the Bethesda Naval Hospital, a lumbar sympathectomy, bilateral, was performed, and plaintiff again appeared before a Board of Medical Survey which on March 15,1946, found him to be unfit for service and recommended that he be ordered to appear before a Naval Eetiring Board.

8. Plaintiff appeared before a Naval Eetiring Board which convened at Washington, D. C., on July 3, 1946. Plaintiff testified before the Board that “he has suffered from 70 similar attacks of thrombo-phlebitis between 1932 and 1941,” that the attacks that he had after coming into the service were the same or similar to the attacks he had between 1932 and 1941, “the symptoms and everything,” and that his “leg turned red and streaks ran at random, ragged, jagged streaks, and there was intense pain in the groin and excruciating pain in the leg and [that] it lasted three or four days,” and then “be all right again until another attack would come on.” The findings of the Eetiring Board were as follows:

The board, having deliberated on the evidence before it, decided that Lieutenant (junior grade) John W. Beg-ister, (D)L, U. S. Naval Eeserve, is incapacitated for active service by reason of thromboangiitis obliterans; that his incapacity for naval service is permanent, is not the result of an incident of the service, and is not the result of his own misconduct, but that it existed prior to February 25,1944, and therefore was not suffered in line of duty from disease or injury while employed on active duty subsequent to that date, pursuant to orders contemplating extended naval service in excess of thirty days. The board is of the opinion that this officer’s condition was aggravated by service.

9. “Thrombo-angiitis, obliterans” is an inflammatory type of obliterative vascular disease affecting chiefly the peripheral arteries and veins, especially of males during early adult life (Cecil & Loeb’s Textbook of Medicine, 8th Ed., 1193). “Thrombophlebitis” is a form of venous obstruction by thrombosis which is secondary to local or distant infection and is accompanied by inflammatory reaction in the wall of the affected vein (id., 1203). “Cellulitis” is an inflammation of cellular or connective tissue (Stedman’s Medical Dictionary, 18th Eev. Ed., 252). The plaintiff’s medical record shows that his complaint was diagnosed at Duke University Hospital on December 9-19, 1941, as cellulitis, erysipelas type.

10. The record of the proceedings of the Naval Eetiring Board were referred to the Chief of the Navy Bureau of Medicine and Surgery and to the Chief of Naval Personnel, both of whom recommended approval of the findings of the Eetiring Board. The Chief of Naval Personnel further stated that “This officer is being released from active duty.”

11. The proceedings pertaining to plaintiff’s retirement were referred to the Eetirement Advisory Board and “after a thorough review of the record and careful consideration,” the Eetirement Advisory Board unanimously recommended “that the findings and decision of the Naval Eetirement Board dated 3 July 1946 (incapacity not an incident of the service, existed prior to commencement of active duty but was aggravated by active service), be approved.”

12. On October 28,1947, the President of the United States approved the proceedings and findings of the Naval Eetiring Board.

13. Under date of February 4,1947, plaintiff was advised by the Chief of Naval Personnel in part as follows :

1. A Naval Eetiring Board has determined that you are incapacitated for active service and that your incapacity is not the result of an incident of the service. On 15 February 1947, you will regard yourself released from all active duty in the U. S. Naval Eeserve.

14. The Secretary of the Navy, by letter dated November 19,1947, advised plaintiff in part as follows:

1. The Naval Eetiring Board which convened in your case on 3 July 1946 at the Navy Department, Washington, D. C., found that you are permanently incapacitated for active service by reason of physical disability which was not incurred in line of duty while employed on active duty pursuant to orders contemplating extended naval service in excess of thirty days.
2. The President of the United States on 28 October 1947 approved the proceedings and findings of the Naval Retiring Board.
8. You were therefore, by direction of the President, honorably discharged from the Naval Reserve, effective 19 November 1947, pursuant to the provisions of U. S. Code, Title 34, section 855g.

15. Plaintiff, under date of February 2,1948, made application to the Chief of Naval Personnel for a review of the retirement proceedings in his case under Section 302 of the Servicemen’s Readjustment Act of 1944, 58 Stat. 287, as amended, 38 U. S. C. 693 (i).

16. By letter of March 8, 1948, from the Chief of Naval Personnel, plaintiff was advised that officers who had been discharged from the service, as distinguished from being released from active duty, pursuant to the decisions of retiring boards were not eligible to have their cases reviewed under the provisions of Section 302 (a) of the Servicemen’s Readjustment Act of 1944, and that, accordingly, no further action could be taken upon his application.

17. On or about April 6,1949, the Judge Advocate General of the Department of the Navy was informed of an opinion by the Comptroller General, 28 Comp. Gen. 557, wherein it was held in part as follows:

Under section 302 (a) and (b) of the Servicemen’s Readjustment Act of 1944, as amended, an officer who has been retired or released from active service, without pay, for physical disability pursuant to the findings of a retiring board, etc., is entitled to request a review of the findings and decisions of such boards within 15 years after retirement for disability, or after June 22, 1944, whichever is later. The said section 302 (a) relates to officers who have been “retired or released from active service” for disability, and contains no provision expressly or impliedly requiring that the petitioner shall be an officer of the Naval Reserve at the time such request for review is filed, or at the time final action is taken upon such request for review.

Since the time of the receipt of this opinion of the Comptroller General, the Department of the Navy has followed the Comptroller General’s interpretation of the statute cited.

18. Plaintiff has not applied to the Naval Betiring Beview Board under Section 302 of the Servicemen’s Eeadjustment Act of 1944, as amended, for a review of his retiring board proceedings of July 3, 1946, since the receipt by him of the letter dated March 8, 1948, from the Chief of Naval Personnel referred to in finding 16.

There is no record that the Comptroller General’s opinion, set out in finding 17, ever came to plaintiff’s attention.

19. There is no evidence which purports to establish that the action of the Department of the Navy in handling this claim was arbitrary, capricious, or in bad faith.

20. The plaintiff has received no pay and allowances or retired pay from the defendant since February 15, 1947. Plaintiff claims the active duty pay and allowances of an officer of the regular Navy of his grade and length of service from February 16,1947, through November 19,1947, and the retired pay of an officer of the regular Navy from November 20, 1947. This is a continuing claim.

21. The parties have stipulated that in the event the court determines that plaintiff is entitled to recovery of any retirement pay and/or active duty pay for any periods of time, defendant will be allowed to set off against such recovery, all disability compensation received for such periods by the plaintiff from the Veterans’ Administration.

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 entitled to recover of the United States his active duty pay and allowances from February 16,1947, to November 19,1947, and his retired pay thereafter, less all disability compensation for such periods paid to plaintiff by the Veterans’ Administration.

Judgment will be suspended until the incoming of a stipulation by the parties showing the amount due computed in accordance with this opinion.  