
    426 F. 2d 1403
    WILLIAM F. NIEDERNHOFER v. THE UNITED STATES
    [No. 227-67.
    Decided June 12, 1970]
    
      
      Frank J. Mizell, Jr., for plaintiff. Nicholas E. Allen, attorney of record.
    
      Arthur E. Fay, with whom was Assistant Attorney General William D. Buckelshaus, for defendant.
    Before CoweN, Chief Judge, Lahamore, Dureee, Davis, Collins, Skelton, and Nichols, Judges.
    
   Per Curiam

: This case was referred to the late Trial Commissioner Bichard Arens with directions to make findings of fact and recommendation for conclusions of law under the order of reference, Buie 184(h) and the order of October 17, 1968, as to the applicability of the statute of limitations, as is more fully set forth in the commissioner’s opinion below. The commissioner did so in an opinion and report filed on October 14, 1969. Defendant filed exceptions to the commissioner’s opinion, findings and recommended conclusion of law and urged that the petition be dismissed as barred by the statute of limitations (28 U.S.C. §2501). Plaintiff requested that the commissioner’s opinion, findings of fact and recommended conclusion of law be affirmed and adopted by the court. The case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court agrees with the trial commissioner’s opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment herein and it concludes, therefore, that plaintiff is not barred by the statute of limitations from proceeding in this court. The case is returned to a trial commissioner for further appropriate proceedings.

OPINION OP COMMISSIONER

ARENS, Commissioner: Plaintiff seeks military disability retirement pay in this case in which this court by order of October 17, 1968, denied both defendant’s motion and plaintiff’s cross-motion for summary judgment, and remanded the case to the trial commissioner for trial “on the sole issue as to whether and when plaintiff requested a board decision on disability retirement and the applicability of the statute of limitations.”

In a pretrial conference, the parties further refined the issue by agreeing that the sole issue in the case is whether in June 1945 (the month in which plaintiff was relieved from attachment to his command and ordered to revert to inactive status, not by reason of physical disability), he requested an appearance before a Physical Evaluation Board (or its equivalent) for a decision on his then physical condition, and that, if he did not do so, then he is not barred by the statute of limitations from proceeding in this court. The parties stipulated in the pretrial conference that there is no official record of any request by plaintiff for disability retirement prior to his application on July 10, 1961, to the Air Force Board for the Correction of Military [Records.

Defendant contends that plaintiff’s claim is barred by 28 U.S.C. §2501 (footnote 1, supra), because of (I) certain “official determinations” at the time he was ordered to revert to inactive status, (II) alleged admissions in correspondence, and (III) an alleged admission in plaintiff’s petition.

(r)

By letter of April 16,1945, plaintiff, then serving on active duty with the Army Air Force in the grade of Lieutenant Colonel, was advised by his commanding officer that it had been decided to recommend to the War Department that he be placed on inactive status under the provisions of a.detailed printed 8-page War Department Circular which was enclosed. The Circular provided that all recommendations for relief from active duty were to include several statements, including a statement that no Hospital Disposition Board or Army Betiring Board proceedings were pending or believed to be appropriate. Plaintiff acknowledged that he had read and understood the Circular and that he had no objections to relief from active duty. The commanding officer then advised the Adjutant General, among other things, that no Hospital Disposition Board or Army Betiring Board proceedings were pending or were believed to be appropriate in plaintiff’s case.

Defendant cites Miller v. United States, 175 Ct. Cl. 871, 361 F. 2d 245 (1966), for the proposition that a denial of an appearance before a “proper board” is sufficient to start the operation of 28 U.S.C. § 2501, whether or not an appearance before such board is requested. In Miller a Disposition Board had recommended that the plaintiff be returned to full military duty and the Adjutant General, acting for the Secretary of the Army, officially notified the plaintiff that the Army records revealed no physical defect and that the plaintiff’s appearance before an Army Betiring Board with view to retirement for physical disability was not indicated. The facts in the instant case are clearly distinguishable from those in Miller, because it does not appear that the statement of the commanding general to the Adjutant General was based upon an authority competent to deny an appearance before a Betiring Board, and it was not a notification directed to plaintiff. Defendant’s position is also inconsistent with the aforementioned agreement of the panties that the sole issue is whether in June 1945, plaintiff requested an appearance before a Physical Evaluation Board (or its equivalent). Defendant’s contention must, accordingly, be denied.

(II)

On May 18, 1966, plaintiff was advised by a Dr. Joel T. Smith at the MacDill Air Force Base Hospital in Florida that he had certain cervical injuries and that he should write to the Air Force Surgeon General and request hospitalization at Lackland Air Force Hospital, and then request an appearance before a Physical Evaluation Board. On September 9,1966, plaintiff wrote to the Surgeon General of the Air Force, in part as follows:

I respectfully request that I be returned to W/H USAF Hospital, Lackland for a complete physical to determine if any corrective action is feasible at this late date and that I be permitted to appear before a Physical Evaluation Board to determine specifically if this affliction and spinal injuries and disabilities incurred in service as residuals of 2 military plane crashes were not properly evaluated, after either crash, during my service or at termination of my service, altho [sic] I was hospitalized 4 times after the 2 crashes and there is no record of complete physical and especially no xrays [sic] of my spinal column or head.
Attached herewith, a resume of my Macdill [sic] medical records from 1957 to 2 Aug 65 and a complete chronological record in three parts which will reveal repeated errors and injustices during my service from Dec 1940 and to the present time, and copies of pertinent records, in particular, the scurrilous, grievous and erroneous evaluation dated 26 Dec 62.

Enclosed with the foregoing letter were lengthy and detailed accounts of his military service, with emphasis on alleged residual injuries from two official flight plane wrecks in which he was involved in June and August 1942. In the course of one account, he stated that in June 1945, he returned to Camp Atterbury, Indiana, where he “requested a complete physical with xrays [sic],” but “was advised that no xray [sic] equipment was available and refused my verbal request for Physical Evaluation Board.” In a chronological record which he alleged revealed continuous errors and injustices by military physicians, he repeated that in June 1945, he returned to Camp Atterbury, Indiana, “for final physical and requested xrays [sic] on my spinal column to determine the reason for my disabilities and was informed that no xray [sic] equipment was available for spinal and was denied a Physical Evaluation Board.” He further stated that in December 1955, he was instructed to report for a physical examination at the United States Air Force Clinic at Miami, Florida, but that “This clinic had no equipment or staff for final physical for retirement, denied my request for xray [sic] of my spinal colume [sic] and denied my verbal request for physical evaluation Board, no personnel available.”

At the trial, plaintiff, an extremely credible witness, testified that the first time he had ever heard of a Physical Evaluation Board was in his conversation with Dr. Joel T. Smith on May 18, 1966, and that in preparing the accounts of his military service, he had in mind the advice of Dr. Smith that he should request an appearance before a Physical Evaluation Board, that he became confused and wrote that when he had requested a physical examination, he also “requested physical evaluation board.” He declared categorically that he did not request an appearance before a Physical Evaluation Board prior to his application of July 10,1961.

The evidence at the trial establishes that there were no Physical Evaluation Boards in the Armed Services until 1949. The only entities equivalent to Physical Evaluation Boards in 1945 were Betiring Boards which in 1945 were authorized and governed by Army regulation. The appearance of an officer before a Betiring Board was accomplished upon recommendation of an Army Hospital Disposition Board and only upon appropriate orders originating with medical personnel.

Because of plaintiff’s extreme credibility and the plausibility of his explanation under the circumstances, it is concluded that his explanation respecting his letter to the Air Force Surgeon General is valid and accepted as fact.

(Ill)

Paragraph 4 of plaintiff’s original petition stated:

Petitioner was separated without disability benefits notwithstanding the fact that he had made numerous requests to authorities of the United States for evaluation and determination of his disabilities and residual injuries as having resulted from the aforesaid aircraft accidents.

Subsequently, with leave of court, plaintiff filed an amended petition in which the foregoing language of paragraph 4 was omitted.

Defendant contends that the language of paragraph 4 is binding on plaintiff and constitutes a judicial admission that he requested a Board decision on disability retirement (and that his cause of action accrued) more than 6 years before the filing of his petition. Plaintiff asserts, on the other hand, that the amended petition superseded the original petition and that, therefore, the language of paragraph 4 is no longer before the court. Ericson v. Slomer, 94 F. 2d 437 (7th Cir.1938). It does not appear to be necessary to decide whether defendant or plaintiff is correct, because it is clear that the language of paragraph 4 is not an admission that plaintiff requested a Board decision on disability retirement in June 1945 (the time agreed by the parties to be crucial to a determination of the issue here). Plaintiff admittedly requested a Board decision on July 10, 1961, again on September 9, 1966, and again on March 28,1967.

It is, therefore, concluded that plaintiff first requested a Board decision on disability retirement on July 10, 1961, when he applied to the Air Force Board for the Correction of Military Records, and that under the authorities, since the request was within 6 years of the filing of his petition on July 7, 1967, he is not barred by the statute of limitations from proceeding in this court. Grubin v. United States, 166 Ct. Cl. 272, 333 F. 2d 861 (1964); Hoppock v. United States, 163 Ct. Cl. 87 (1963); Patterson v. United States, 141 Ct. Cl. 435 (1958).

FINDINGS on Fact

1. (a) Plaintiff seeks military disability retirement pay in this case in which this court, by order of October 17,1968, denied without prejudice both defendant’s motion and plaintiff’s cross-motion for summary judgment, and remanded the case to the trial commissioner for trial “on the sole issue as to whether and when plaintiff requested a board decision on disability retirement and the applicability of the statute of limitations.”

(b) On March 18,1969, in a pretrial conference, in which a number of exhibits were received in evidence, counsel for the pai^ties further refined the issue by agreeing that the sole issue in the case is whether in June 1945, plaintiff requested appearance before a Physical Evaluation Board (or its equivalent) for a decision on his then physical condition, and that, if plaintiff did not do so, then he is not barred by the statute of limitations from proceeding in this court. Counsel for the parties stipulated in the pretrial conference that there is no official record of any request by plaintiff for disability retirement prior to his application on July 10,1961, to the Air Force Board for the Correction of Military Records.

(c) On May 13, 1969, a trial was conducted in the case at Montgomery, Alabama, in which additional exhibits were received in evidence and in which plaintiff testified and produced the testimony of his wife and of a former colonel in the Army, who was knowledgeable respecting pertinent regulations. Defendant offered no witnesses.

2. (a) By letter of April 16,1945, plaintiff, then serving on active duty with the Army Air Force- in the grade of Lieutenant Colonel, was advised by his commanding officer as follows:

1. Inclosed herewith is a copy of War Department Circular 485, 1944, subject “Relief of Officers, Warrant Officers, and Flight Officers from Active Duty”.
2. After careful consideration it has been decided to recommend to the War Department that you be placed on inactive status under the provisions of the above circular. You are advised that this action is not final and you are subject to reassignment either within the AAF or another branch of the service. Further it is suggested that any arrangements made by you for return to civil life be on a tentative basis only.
3. It is desired that this letter be acknowledged within three days of its receipt, together with any remarks you wish to make. Your indorsement will be accomplished in the form shown on the attached sample, and all paragraphs must be included.

(b) War Department Circular 485 dated 29 December 1944, a detailed printed document of some 8 printed pages, provided that all recommendations for relief from active duty were to include several statements, including a state- ' ment that no Hospital Disposition Board or Army Retiring Board proceedings were pending or believed to be appropriate.

(c) On April 23, 1945, plaintiff advised his commanding general as follows:

1. Beceipt acknowledged of notification of recommendation for my relief from active duty and copy of War Department Circular 485,1944, which I have read and understand.
2. I have no objections to relief from active duty.
3. I hereby certify that I have 82 days total accrued leave as of 20 April 1945.1 do desire to be granted leave pending final action on this recommendation.
4. My home destination is 31 Greene Street, Osborn, Ohio.
5. Because of two minor children (the youngest being 15 years of age) without parental supervision (their mother deceased 9 October 1940) it is my desire to be relieved from active duty as soon as possible in order that I may return to my home and supervise my two children.
6. My present age is 49 years.

(d) On the same date, plaintiff was given an annual physical examination and was found to be physically qualified for flying duty.

(e) On April 24, 1945, plaintiff’s commanding general advised the Adjutant General, among other things that no Hospital Disposition Board or Army Retiring Board proceedings were pending or were believed to be appropriate in plaintiff’s case.

3. (a) On June 1,1945, plaintiff was given a terminal type physical examination at a separation center in Camp Atter-bury, Indiana. He was found not to be permanently incapacitated for active service.

(b) On the same date, by Special Orders Number 113 he was relieved from attachment to his command and was ordered to revert to inactive status, not by reason of physical disability, effective September 6,1945.

4. (a) On July 10,1961, plaintiff applied to the Air Force Board for the Correction of Military Records, for correction of records to show entitlement to disability retirement pay.

(b) On October 27,1961, the Air Force Board for Correction of Military Becords denied plaintiff’s application.

5. (a) On May 18,19,66, plaintiff was advised by a Dr. Joel T. Smith at the MacDill Air Force Base Hospital in Florida that he had certain cervical injuries, and that he should write to the Air Force Surgeon General and request hospitalization at Lackland Air Force Hospital and then request appearance before a Physical Evaluation Board.

(b) On September 9,1966, plaintiff wrote to the Surgeon General of the Air Force, in part, as follows:

I respectfully request that I be returned to W/H USAF Hospital, Lackland for a complete physical to determine if any corrective action is feasible at this late date and that I be permitted to appear before a Physical Evaluation Board to determine specifically if this affliction and spinal injuries and disabilities incurred in service as residuals of 2 military plane crashes were not properly evaluated, after either crash, during my service or at termination of my service, altho [sic] I was hospitalized 4 times after the 2 crashes and there is no record of complete physical and especially no xrays [sic] of my spinal column or head.
Attached herewith, a resume of my Macdill [sic] medical records from 1957 to 2 Aug 65 and a complete chronological record in three parts which will reveal repeated errors and injustices during my service from Dec 1940 and to the present time, and copies of pertinent records, in particular, the scurrilous, grievous and erroneous evaluation dated 26 Dec 62.

(c) Enclosed with the foregoing letter were lengthy and detailed accounts of his military service, with emphasis on alleged residual injuries from two official flight plane wrecks in which he was involved in June and August 1942. In the course of one account, he stated that in June 1945, he returned to Camp Atterbury, Indiana, where he “requested a complete physical with xrays [sic],” but “was advised that no xray [sic] equipment was available and refused my verbal request for Physical Evaluation Board.” In a chronological record which he alleged revealed continuous errors and injustices by military physicians, he repeated that in June 1945, he returned to Camp Atterbury, Indiana, “for final physical and requested xrays [sic] on my spinal column to determine the reason for my disabilities and was informed that no xray [sic] equipment was available for spinal and was denied a Physical Evaluation Board.” He further stated that in December 1955, he was instructed to report for a physical examination at the United States Air Force Clinic at Miami, Florida, but that “This clinic had no equipment or staff for final physical for retirement, denied my request for xray [sic] of my spinal colume [sic] and denied my verbal request for physical evaluation Board, no personnel available.”

(d) At the trial, plaintiff, an extremely credible witness, testified that the first time he had ever heard of a Physical Evaluation Board was in his conversation with Dr. Joel T. Smith on May 18, 1966 (finding 5(a), supra), and that in preparing the accounts of his military service (finding 5 (c), supra), he had in mind the advice of Dr. Smith that he should request an appearance before a Physical Evaluation Board, that he became confused and wrote that when he had requested a physical examination he also “requested physical evaluation board.” He declared categorically that he did not request an appearance before a Physical Evaluation Board prior to his letter of September 9,1966 (finding 5(b), supra).

(e) There were no Physical Evaluation Boards in the Armed Services until 1949. The only agency equivalent to Physical Evaluation Boards in 1945 were Retiring Boards which in 1945 were authorized and governed by Army regulation. The appearance of an officer before a Retiring Board was accomplished upon recommendation of an Army Hospital Disposition Board and only upon appropriate orders originating with medical personnel.

6. (a). On March 28, 1967, plaintiff.again applied to the Air Force Board for the Correction of Military Records to show entitlement to disability retirement benefits because of disability incurred as a result of two aircraft accidents.

(b) On May 11,1967, the Air Force Board for the Correction of Military Records advised plaintiff that the Board found no basis for corrective action.

7. (a) On July 7, 1987, plaintiff filed his petition in this court, paragraph-4 of .which stated:

Petitioner was separated without disability benefits notwithstanding the fact that he had made numerous requests to authorities of the United States for evaluation and determination of his disabilities and residual injuries as having resulted from the aforesaid aircraft accidents.

(b) On October 27,1967, with leave of court, plaintiff filed an amended petition in which the foregoing language of paragraph 4 of the petition was omitted.

8. It is found that plaintiff did not in June 1945, request appearance before a Physical Evaluation Board (or its equivalent) for a decision on his then physical condition, that his first such request was on July 10,1961 (within 6 years of the filing of his petition on July 7, 1967), and that, accordingly, he is not barred by the statute of limitations from proceeding in this court.

CONCLUSION op Law

Upon the foregoing opinion, findings of fact and conclusion of law, which are adopted by the court and made a part of the judgment herein, the court concludes that plaintiff is not barred by the statute of limitations from proceeding in this court; and the case is returned to a trial commissioner for further proceedings. 
      
       28 U.S.C. § 2501 (1964 eel.) provides in part as follows:
      “Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.”
     
      
       Plaintiff filed his petition in this court on July 7, 1967.
     