
    ROBERT WALTER HEINS v. THE UNITED STATES
    [No. 246-53.
    Decided March 6, 1957.
    Plaintiff’s motion for new trial overruled May 8, 1957]
    
      
      Mr. Thomas H. King for the plaintiff.
    
      Mr. Lawrence 8. Smith, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant.
   Laramore, Judge,

delivered the opinion of the court:

This suit involves a claim by an Air Force Beserve officer for active-duty pay and allowances for two months, April and May, 1952, and for disability retirement pay since June 1, 1952. Defendant counter claims for pay and allowances paid to plaintiff for the period December 6, 1951, to April 1,1952.

The questions presented are (1) was plaintiff on active duty as an officer of the United States Air Force from December 6, 1951 to May 31, 1952; (2) is plaintiff entitled to the pay and allowances of a first lieutenant of the United States Air Force for the months of April and May, 1952; and (3) is plaintiff entitled to disability retirement pay.

Plaintiff enlisted in the Beserve Corps, Army of the United States, on November' 28,1942 and reported for active duty as a private on March 2, 1943. He remained on duty as an enlisted man until May 19, 1944. Plaintiff was commissioned and entered on active duty as a second lieutenant on May 20,1944, remaining on such active duty until December 2,1945. From December 3,1945, he was in the Officers’ Beserve Corps in an inactive status until August 15, 1947. At that time plaintiff took 15 days of active duty for training purposes, from August 16 to August 30, 1947. He then reverted to an inactive status as a second lieutenant in the Air Corps Beserve and remained in such status to and including March 7, 1948. On March 9, 1948, he was promoted to first lieutenant and remained in that status until September 7,1951.

In September 1951, prior to being issued orders for extended active duty, plaintiff was given a physical examination. He was found physically qualified, returned to inactive duty, and subsequently issued orders for extended active duty. The effective date of his orders to active duty was December 6, 1951. He was to report to Mather Air Force Base in California on December 12, 1951, and thence to Bandolph Field in Texas.

In November 1951, while plaintiff was at his home in Wisconsin, he entered a civilian hospital under the care of a civilian physician, suffering from a type of rheumatic fever.

On December 6, 1951, the effective date of Ms orders, and while still in a civilian hospital, plaintiff had the local Eed Cross representative send a telegram to Mather Air Force Base, California, advising that he was hospitalized at the Wisconsin General Hospital “with suspected rheumatic fever and unable to travel.” There followed a series of communications, and on December 18, 1951, plaintiff’s civilian doctor wired Randolph Air Force Base, Texas, that it would be a minimum of four weeks before plaintiff could be released. On January 5, 1952, the Surgeon, Randolph Air Force Base, Texas, addressed a communication to the Surgeon General of the Air Force, Washington, D. C., requesting instructions as to the disposition of plaintiff. As a result of this request, and in the belief that plaintiff was on active duty, in January 1952 the Office of the Surgeon General sent instructions to Truax Air Force Base at Madison, Wisconsin, to “return” plaintiff to military control when his physical condition would permit.

The Chief of the Hospitalization and Evacuation Division of the Office of the Surgeon General, who sent the orders to Truax, frequently was asked for assistance in returning military personnel under civilian medical care to military medical facilities. It frequently happened that military personnel on active duty became hospitalized in civilian hospitals or came under civilian medical care for various reasons, such as accidents while on leave. In such cases it was the policy of the Air Force to return these persons to military facilities as soon as possible to save the expense of civilian hospitalization. There was no authority to take such steps unless the individual concerned was actually on active duty.

On January 15, 1952, plaintiff was taken in an Air Force ambulance from Ms home in Wisconsin to the Truax Air Force Base hospital in Madison, Wisconsin. This was done with his knowledge and consent and the consent of his civilian physician.

Under orders dated January 24,1952, plaintiff was transferred by train to Chanuie Air Force Base, Illinois, for observation and treatment. The orders indicated that plaintiff was assigned to Randolph Air Force Base, Texas, and further that upon completion of observation and treatment at Chanute, he was to be returned to his home station.

On February 29, 1952, plaintiff was assigned to Detachment of Patients at Chanute Air Force Base and relieved from his assignment to Randolph Air Force Base.

While at Chanute plaintiff was issued an identification card by the Air Force, which stated thereon under the signature of the security officer as follows:

WARNING
Issued for official use of the holder designated hereon during active service onlt. Use or possession except as prescribed is unlawful and will make the offender liable to heavy penalty.

On April 21, 1952, plaintiff appeared before a medical disposition board at Chanute Air Force Base. This board diagnosed his illness as follows:

Rheumatic valvulitis, inactive, mitral. LD — No, EPTS, not aggravated by service.
Approximate date of origin — 1935.

By order dated April 22, 1952, plaintiff was transferred from the hospital at Chanute Air Force Base to the Air Force hospital at Wright-Patterson Air Force Base, Ohio. He arrived there April 23, traveling in his private automobile.

On April 16, 1952, the Office of the Judge Advocate General issued a memorandum stating that plaintiff had never entered upon active duty and had never attained an active duty status and steps should be taken to have his pay and allowances stopped at once. Plaintiff was notified of this development upon his arrival at the hospital that day and voluntarily remained for the purpose of appearing before a physical evaluation board on May 1,1952. Plaintiff did not receive any pay and allowances for any period af ter April 1, 1952.

Plaintiff appeared before the physical evaluation board at Wright-Patterson Air Force Base on May 1, 1952, which board found that plaintiff’s disease existed prior to service, but was service aggravated, and that the degree of disability was 30 percent. The board further found that plaintiff was on active duty as an officer and therefore was entitled to be retired by reason of physical disability.

When plaintiff appeared before the physical evaluation board he was informed that the board’s recommendations were of an advisory nature only. These advisory recommendations were forwarded to the physical review board, which on May 27, 1952, found that plaintiff’s disability was the normal progression of a disease that existed prior to December 6, 1951; that it had not been aggravated since that date; and that plaintiff was not entitled to pay for the reason he was physically unable to perform active duty. The physical review board further found that plaintiff’s disability was in fact only 10 percent.

Plaintiff filed a rebuttal statement and upon receipt thereof the physical review board again reviewed his case and made no change in the findings. On July 15,1952, the case was forwarded to the Physical Disability Appeal Board, which board refused to take action because of the Advocate General’s previous ruling. On August 6, 1952, the Office of the Judge Advocate General of the Air Force reaffirmed its earlier ruling that plaintiff had not attained an active-duty status.

Plaintiff still holds a commission in the Air Corps Eeserve.

Plaintiff has received pay and allowances for the period December 6,1951, to April 1,1952, in an amount not disclosed by the evidence.

On the first issue of whether plaintiff was on active duty as an officer in the United States Air Force, the answer is obvious. He became ill and entered the civilian hospital in Wisconsin before his active-duty orders became effective. He was still in the hospital and physically unable to comply with his orders on December 6,1951, the effective date of his orders. He remained in the civilian hospital until December 7, 1951, and after being sent to his home, remained there under the care of his family physician until January 15, 1952. Therefore, he did not and could not report to the designated duty station on December 12, 1951, as required by his orders, nor could he have started to comply with orders on December 6,1951.

He would not be considered on active duty until be bad at least began bis travel to tbe duty station as directed by tbe orders. Furthermore, plaintiff was clearly not physically able to perform active duty on tbe effective date of bis orders or on January 15, 1952, when he entered tbe Air Force hospital. We can find no authority for tbe Air Force to assign an officer to active duty if be is not physically qualified. Plaintiff remained physically unqualified thereafter, and consequently never achieved an active-duty status.

Section 201 (e) of tbe Career Compensation Act of 1949, 63 Stat. 802, 807, defines who shall be entitled to receive basic pay and provides in pertinent part as follows:

(e) All members of the uniformed services when on the active list, when on active duty, or when participating in full-time training, training duty with pay * * *, shall be entitled to receive the basic pay of the pay grade to which assigned * * *: Provided, That in accordance with regulations prescribed by the President, in the case of members of the uniformed services called or ordered to extended active duty in excess of thirty days, active duty shall include the time required to perform travel from home to first duty station and from last duty station to home by the mode of transportation authorized in orders for such members: * * *.

Thus it can be seen that plaintiff never having achieved active-duty status would not be entitled to receive pay imder the above statute. Moreover, plaintiff was taken to the Air Force hospital in the belief that he was on active duty. All events transpiring later were still under the assumption that plaintiff was on active duty and the sums he received were paid to him under the same assumption. The question then confronting us is, since plaintiff was not entitled to active duty pay, can he keep the money paid him.

Plaintiff was taken from his home by the Air Force and, under what he believed to be competent orders, placed in a hospital. The remainder of the time spent in various hospitals was also under what he believed to be competent orders. We cannot assume he was arrested or kidnapped, nor can we assume plaintiff had the right to refuse to go. Under the Uniform Code of Military Justice, article 92, Act of May 5, 1950, 64 Stat. 107, 136, any person subject to the code who violates or fails to obey a lawful order shall be punished as a court-martial may direct. Article 2 of the code, supra at 109, provides that any person lawfully called or ordered for training in the Armed Forces is subject to the Uniform Code of Military Justice. Therefore, we find that plaintiff in good faith followed the directions given him by the Air Force, and while not paid as an active-duty officer under the Career Compensation Act of 1949, supra, was paid as a de facto active-duty officer and is entitled to retain what was paid him.

It would seem to be completely illogical to say that plaintiff was entitled to the money already paid him as a da facto active-duty officer and then to say he is not entitled to the remainder because he was not entitled to active-duty pay. Hence we conclude plaintiff is not only entitled to retain the money paid him, but is entitled to be paid during the period he was in the hospital under orders, for which he was not paid; i. e., April 1,1952 to April 23,1952, when he was notified by the Air Force that he was not on active duty. At this point it naturally follows that defendant cannot recover on the counterclaim and the same is dismissed.

The next and final question is whether plaintiff is entitled to disability retirement pay.

The short answer to this question is, plaintiff is not entitled to retirement pay unless he acquires an active-duty status and has been retired by the Secretary of the Air Force.

As pointed out above, plaintiff did not acquire an active-duty status and was not entitled to receive basic pay. One of the requirements of section 402 (a) of the Career Compensation Act of 1949, supra at 816, is that the Secretary make a determination:

* * * that a member of a Regular component of the uniformed services entitled to receive basic pay, or 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; * * *.

Therefore since plaintiff’s disability, if any, was not incurred while entitled to receive basic pay, he is not eligible for retirement under the above section.

Furthermore, plaintiff has never been retired by the Air Force. As was stated by this court in Steen v. United States, 136 C. Cls. 142, “Without the Secretary’s approval of a finding that the plaintiff is incapacitated, he is not entitled to retired pay.”

In addition thereto, as this court held in the cases of Wales v. United States, 132 C. Cls. 765; Holliday v. United States, 128 C. Cls. 647; Beamish v. United States, 130 C. Cls. 767, we cannot undertake to determine who is fit or unfit to serve in the military forces. The last action taken by the Air Force was that of the Physical Review Board, which after considering all the evidence which was before the Physical Evaluation Board, found plaintiff’s disability was only 10 percent and that such disability was the natural progression of a disease which existed prior to December 6, 1951, and which had not been aggravated by any happenings since that date. The Physical Disability Appeal Board refused to take any further action because the Judge Advocate General of the Air Force ruled plaintiff had not attained an active-duty status. Furthermore, plaintiff still is commissioned in the Air Force. In this posture plaintiff cannot recover disability retired pay.

It is, therefore, concluded that plaintiff is entitled to retain the pay and allowances already paid him as a first lieutenant from December 6,1951, when he was ordered to active duty, to April 1,1952, and defendant is not entitled to recover on its counterclaim. Further, plaintiff is entitled to recover as a de facto active-duty officer from April 1,1952, to April 23, 1952, when he was notified by the Air Force that he was not on active duty. It is further concluded that plaintiff is not entitled to disability retirement pay as petitioned for.

MaddeN, Judge; Whitaker, Judge; LittletoN, Judge; and JoNes, Chief Judge, concur.

FINDINGS OP PACT

The court, having considered the evidence, the report of Commissioner Marion T. Bennett, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff, a citizen of the United States, enlisted in the Enlisted Reserve Corps, Army of the United States, on November 28, 1942, and was ordered to active duty as a private on March. 2,1943. He remained on active duty as an enlisted man until May 19, 1944. Plaintiff was commissioned and entered on active duty as a second lieutenant on May 20, 1944, remaining on duty until December 2, 1945. From December 3, 1945, until August 15, 1947, plaintiff was in the Officers’ Reserve Corps in an inactive status. He was on active training duty from August 16 to August 30, 1947. On August 31, 1947, plaintiff reverted to inactive status as a second lieutenant in the Air Corps Reserve and remained in such status until March 7, 1948. On March 8, 1948, he was appointed a first lieutenant in the United States Air Force Inactive Reserve and remained in that status until September 7, 1951. From September 8, 1951 to September 15, 1951, he was in an active duty status as a first lieutenant. He reverted to inactive status on September 16, 1951, and remained in such status until December 5,1951.

2. Under Air Force Reserve order 193, dated August 28, 1951, issued by Headquarters, Tenth Air Force, Selfridge Air Force Base, Michigan, by direction of the President, plaintiff was ordered to active duty, effective September 8, 1951, for approximately ten days, for the purpose of undergoing a final-type physical examination to determine his qualifications for a tour of extended active duty. At the time of receipt of these orders, plaintiff’s home address was at Platteville, Wisconsin. He was, however, in Lake Charles, Louisiana, at the time.

3. Pursuant to the orders described above, plaintiff reported to Maxwell Air Force Base, Alabama, where he was examined on September 10,1951. The report of this examination contained, among other things, the following notes:

Rheumatic fever, 1941, with occasional swelling of both knees at present. He has never been completely incapacitated * * * Applicant has lost 15 pounds from 1 January 1951 to present time. * * *

The summary of his defects was stated by the examining medical officer as “None.” He was found qualified for “Extended Active Duty. Class II (Flying).”

4. The evidence also shows a consultation sheet signed by another medical officer, the chief of medicine, and dated September 10,1951. The reason for his further examination, as stated by the flight surgeon’s oflice which requested it, was as follows:

History of rheumatic fever 10 years ago, with occasional swelling of knees. Also loss of 15 pounds since 1 January 1951. Reason unknown.

After examination it was found as follows:

This 27 year old engineer with Shell Oil Company allegedly had acute rheumatic fever for some 8 weeks at the age of 17 years. At that time he had following a sore throat a migratory polyarthritis with objective increased heat, redness, tenderness, swelling of the joints, and fever. He apparently had no symptoms of cardiac involvement. Pie recovered, apparently completely, had a tonsillectomy several months later. Since this time he has had some 5 to 7, 3 to 4 day bouts of slight swelling of the knees with no other symptoms, the bouts usually occuring in the winter and spring * * *
In addition this man has allegedly lost some 15 pounds weight during the past year; this weight loss occurred, however, the initial 4 months of this period and there has been no weight loss now for some 8 months. No remarkable symptoms on systems review. * * *
Impression: There is no definite evidence of rheumatic heart disease in this man. I consider him a good risk and would recommend qualification. Medical clearance concerning weight loss also.

5. On September 13,1951, special order No. 209, paragraph 14, was issued to plaintiff by the United States Air Force, 3899th Personnel Processing Squadron, 3811th Air Base Group, Maxwell Air Force Base, Alabama. Plaintiff was ordered to extended active duty for a period of 17 months, involuntarily recalled, and the effective date of the orders was December 6, 1951. Plaintiff was to report on December 12, 1951, to the 3535th Bomber Training Wing, Mather Air Force Base, California, for approximately 60 days of temporary duty for refresher training upon the completion of which he was ordered to proceed without delay to his duty station at Randolph Air Force Base, Texas. These orders recited that plaintiff’s permanent address was Platteville, Wisconsin, and his temporary address was in care of the Shell Oil Company, Houston, Texas.

6. On or about November 24,1951, plaintiff became ill and on the advice of his family physician in Platteville, Wisconsin, entered the Wisconsin General Hospital at Madison on or about November 26. Plaintiff remained in the hospital until December 7, 1951, when he was discharged and sent to his home at Platteville where he remained until January 15, 1952, under the care of his family physician. The civilian doctor diagnosed plaintiff’s illness as “palindromic rheumatism complicated with allergy.” This was the first time plaintiff had been hospitalized, although between 1948 and 1945 while on active duty he reported to an infirmary for the condition described. He did not apply for veteran’s disability benefits as a result thereof.

7. On December 6,1951, the effective date of his orders, and while plaintiff was still in the hospital, he had the local Eed Cross representative send a telegram to Mather Air Force Base, California, which advised that installation that plaintiff was hospitalized at the Wisconsin General Hospital “with suspected rheumatic fever and unable to travel.” Mather Air Force Base promptly requested information as to how long plaintiff would be hospitalized and was advised that he was “suffering from rheumatic condition dermatitis and allergy and bedridden part of the time,” and that it was not possible to state when plaintiff would be able to report for duty until further information was available from his hospital.

On December 15,1951, the commanding officer at Eandolph Air Force Base, Texas, wired plaintiff’s physician for confirmation of the diagnosis of plaintiff’s illness and anticipated date of release from medical observation. On December 18, 1951, the doctor replied by wire confirming the diagnosis as palindromic rheumatism and that it would be a minimum of four weeks before plaintiff could be released.

8. On January 5, 1952, the surgeon, Eandolph Air Force Base, Texas, addressed a communication to the Surgeon General of the Air Force, Washington, D. C., requesting instructions as to the disposition of plaintiff. As a result of this request, a dispatch was directed to the commanding officer, Truax Air Force Base, Madison, Wisconsin, on January 9, ordering that plaintiff be returned to military control when his physical condition would permit. This dispatch, was issued in the belief that plaintiff was on active duty.

The chief of the Hospitalization and Evacuation Division of the Office of the Surgeon General, who sent the orders to Truax, frequently was asked for assistance in returning military personnel under civilian medical care to military medical facilities. It frequently happened that military personnel on active duty became hospitalized in civilian hospitals or came under civilian medical care for various reasons, such as accidents while on leave. In such cases it was the policy of the Air Force to return these persons to military facilities as soon as possible to save the expense of civilian hospitalization. There was no existing authority to take such steps unless the individual concerned was actually on active duty.

9. On January 15,1952, plaintiff was taken by an Air Force ambulance from his home in Platteville, Wisconsin, to the hospital at Truax Air Force Base with his knowledge and consent and that of his civilian physician. A telegram was sent by Truax Field to the XTSAF hospital, Chanute Air Force Base, Illinois, stating that plaintiff would report to Chanute on or about January 29, 1952, to meet a physical evaluation board. Diagnosis: “Rheumatic fever subsiding, rheumatic valvulitis active, subsiding.”

10. Under orders dated January 24, 1952, plaintiff was transferred by train to Chanute for observation and treatment. The orders indicated that plaintiff was assigned to Randolph Air Force Base, Texas, and, further, that upon completion of observation and treatment at Chanute he was to be returned to his home station.

11. On February 29, 1952, orders were issued releasing plaintiff from attachment to Mather Air Force Base, California, and from assignment to Randolph Air Force Base, Texas, and assigning him to Detachment of Patients at Chanute. While at Chanute plaintiff was issued an identification card by the Air Force, which stated thereon under the signature of the security officer as follows:

WARNING
Issued for official use of the holder designated hereon during active service only. Use or possession except as prescribed is unlawful and will make the offender liable to heavy penalty.

The evidence establishes that on February 29, 1952, and again on April 1, 1952, the defendant indicated that plaintiff had entered on active duty on December 6,1951. On March 14, 1952, Chanute Air Force Base, in a letter to the Air Adjutant General, stated in part:

2. Subject officer was unable to comply with original extended active duty orders, inasmuch, that he was confined to a civilian hospital and subsequently to his home during the period of 6 December 1951 to 14 January 1952 inclusive. On 15 January 1952, Lt. Heins reported to Truax AF Base, Wisconsin and subsequently was sent to this station.

12. On April 21,1952, plaintiff appeared before a medical disposition board at Chanute Air Force Base. His illness was diagnosed as follows:

Kheumatic valvulitis, inactive, mitral. LD — No, EPTS, not aggravated by service.
Approximate date of origin — 1935.

The board stated further, in part:

History oe preseot ILLNESS: * * * At the onset of this condition the patient was not on active duty. His orders read that he should report on 6 December. Because of the delay in reporting to active duty, on 6 December he was ultimately considered to be under the Air Force jurisdiction and on 6 January 1952, was ordered to report to Truax AFB where he was hospitalized for thirteen days and sent here for treatment and disposition.. CONDITION upon completion oe case: Unchanged. Patient has a mitral insufficiency with mild left ventricular hypertrophy as a result of past rheumatic heart disease.
Disposition recommended: Because of the possibility of further recurrences of rheumatic fever and ever present possibility of developing a subacute bacterial endo-carditis and the extent of cardiac involvement at this time, it is felt that he should meet the Medical Board. Maximum hospital benefit has been attained. * * *

13. By order dated April 22,1952, plaintiff was transferred from the hospital at Chanute Air Force Base to the Air Force hospital at Wright-Patterson Air Force Base, Ohio. He arrived there on April 23, traveling in his private automobile.

14. On April 16, 1952, the Office of the Judge Advocate General issued a memorandum reading as follows:

1. Based upon the facts contained in the inclosed file, it appears that on the effective date (6 December 1951) of orders to extended active duty this reserve officer was unable to comply, because he was at that time under civilian medical care with a diagnosis of rheumatic fever. While still physically incapacitated for duty, and though he had never reported for active duty, military orders were issued pursuant to which he was admitted on 29 January 1952 to a USAF hospital. It is understood that he is still a patient in this hospital.
2. In these circumstances it is our opinion that the officer has never attained an active duty status and is, therefore, not entitled to the pay and allowances attaching to such status. The order by which he was admitted to a military hospital is considered to have been issued without proper authority.
3. The laws authorizing the ordering of reserve officers to active duty contemplate the actual performance of active duty from and after the effective date of the orders. * * * It has frequently been held that a reserve officer is not on active duty until he enters upon the performance thereof by actually starting to the designated place of duty as directed by the orders. * * *

15. The information in the foregoing finding came to the attention of the Surgeon General’s Office in Washington, D. C., some time after April 16, 1952, whereupon this office by telephone notified the Wright-Patterson Air Force Base on April 23, 1952, that plaintiff, who was being transferred to the hospital there, was not, in their opinion, legally on active duty and that all necessary steps should be taken to have his pay and allowances terminated at once. Plaintiff was notified of this development upon his arrival at the hospital that day and voluntarily remained for the purpose of appearing before a physical evaluation board on May 1,1952. Plaintiff did not receive any pay and allowances after April 23,1952.

16. The information given to Wright-Patterson Air Force Base over the telephone on April 23 was followed on May 2, 1952, by a written communication from the director of Plans and Hospitalization, Office of the Surgeon General, to the commanding general at Wright-Patterson. This communication advised that upon receipt of the January 5 request from Randolph Field for disposition of plaintiff, referred to in finding 8, it was erroneously assumed that plaintiff was in an active duty status. Under this impression a message was dispatched to the commanding officer, Truax Field, Madison, Wisconsin, directing that he assume responsibility for the return of plaintiff to military control. As a result of this message, the commanding officer at Truax had plaintiff moved to Chanute Air Force Base and it also accounts for his ultimate removal to Wright-Patterson. After outlining the position as given above, the communication from the Office of the Surgeon General stated as follows:

2. A review of available records indicates that Lt. Heins was not on active duty at the time of his being brought under military control at Truax Field, because he had not complied with active duty orders by actually starting to the designated place of duty as directed by the orders. Therefore, the message from this headquarters to the Commanding Officer, Truax Field, on 9 January. 1952 (referred to above), is considered to have been issued without proper authority. Request he be. apprised of the above and that a certificate be obtained from him covering whether or not he did begin travel to the designated place of duty as prescribed in his orders. If the certificate reveals he did not begin travel, he should be released from hospital as soon as practicable and offered transportation to Truax Field, Madison, Wisconsin, via aircraft of the Military Air Transport Service. This indorsement may be cited as authority for issuance of appropriate orders. Transportation authorized under this authority is to be provided without reimbursement from the individual. In order to protect the individual and the Air Force, it is requested the officer be offered a hearing before a board of officers prior to departure from Wright-Patterson Air Force Base. The Air Force Physical Evaluation Board at Wright-Patterson Air Force Base may be used to hear the case. If the board hearing is held, request that proceedings and the individual’s certificate covering whether or not he did begin travel be sent to this headquarters, Attn: AFPMP-4F.
3. If the officer’s certificate is to the effect that he did begin travel to the designated place of duty as prescribed in his orders, request two copies of it be sent to this headquarters and he be held at Wright-Patterson Air Force Base until clarification of his status is made.

17. On May 1,1952, plaintiff appeared before the Physical Evaluation Board at Wright-Patterson Air Force Base, Dayton, Ohio. In opening the proceedings of the board, the presiding officer made the following statement to plaintiff:

Before proceeding with this meeting, I would like to call to your attention that Higher Headquarters has indicated that there is a considerable doubt as to whether or not your present status is one of active duty. This present meeting is not intended to have any effect on your status whatever it may be. However, if you so desire, we will continue with this meeting and make such recommendations as may seem appropriate with a view to fixing your physical status and consolidating your records as to your duty status. Upon the completion of this Board, the record will be forwarded to Higher Headquarters for resolution of the problem presented. Again may I say that we will proceed with this meeting, if you so desire it, remembering at this time your attendance is voluntary, that the recommendations of this Board are advisory only until your status is determined, and that such voluntary attendance is not pursuant to orders nor is it at this time performance of active duty.

The advisory findings of this board were that plaintiff’s disability was “Bheumatic valvulitis, inactive, mitral, rated as Bheumatic Heart Disease;” that plaintiff was entitled to receive basic pay; that the disease was the proximate result of active or inactive duty training; that it existed prior to service but that it was service aggravated; that it was permanent and disabling; and that the degree of disability under the Veterans Administration diagnostic code was 30 percent.

18. The Air Force Physical Evaluation Board prepared a statement as to its reason for determining that plaintiff was in fact on active duty as an officer and was therefore entitled to be retired by reason of physical disability. This statement of the Physical Evaluation Board was as follows:

Proceedings of the Air Force Physical Evaluation Board, USAF Hospital, Wright-Patterson Air Force Base, Dayton, Ohio, in the case of 1st Lt. Bobert W. Heins, AÓ-2056590,1 May 1952.
STATEMENT OE THE PHYSICAL EVALUATION BOARD
A. Since this Board requires both legal and medical opinions to acquire the resolution in this case, both the medical member and the legal member have been required to prepare individual statements which are attached hereto.
It is the opinion of this Board that the member is undoubtedly a “de facto” officer in accordance with JAG opinion on that matter. It is further the opinion of the Board that, at the time his orders to active duty became effective, the member was hospitalized in Wisconsin General Hospital suffering from the early symptoms of rheumatic fever. In this, the Board is "in disagreement with the diagnosis of Dr. Cunningham who rendered a diagnosis of palindromic fever. It is believed that the opinion of this Board in this matter which is based on later uninterrupted developments of the disease is the one to be favored.
Due to hospitalization the member was unable to comply with the orders returning him to active duty, but he was motivated for that duty and, in order to discharge his responsibility to higher authority, he had them apprised of his condition. Further, he did comply with subsequent orders as soon as his physical condition made such compliance possible.
While in the hospital at Truax Air Force Base, forty days after his orders to active duty were effective, the first definite, unmistakable symptoms of rheumatic fever manifested themselves by a residual to that disease, namely, rheumatic valvulitis with a mitral murmur. _ The Board feels that this shows an acceleration of the disease in its normal course and, since it was first noted while the member was on active duty, it is ratable as service aggravation being residual to an EPTS disease.
Summarizing, the Board feels that this member was an officer on active duty from 6 December 1951 and, therefore, at the time that the symptomatology of his residual became noticeable. In the opinion of the Board this member, insofar as the residual is concerned, is LOD — Yes, ratable and compensable.
[S] W. O. Earecksok,
Colonel, Ü8AF,
President.
$ $ $ ‡ $ STATEMENT BY LEGAL MEMBER
With reference to active duty status of the Officer whose case is enclosed herewith, the Legal Member of the Air Force Physical Evaluation Board is of the opinion that subject Officer was officially on active duty from 6 December 1951;
It is noted that subject Officer received official orders in the nature of Air Force Reserve Orders 19S, from Headquarters, 10th Air Force, Selfridge, dated 28 August 1951, to proceed to Maxwell Air Force Base, for processing. Those orders were obeyed. Above orders also directed that in the event the member was found physically fit and otherwise qualified for extended active duty, he was to proceed on 6 December 1951 to Mather Air Force Base, California, for purpose of refresher course. He was to report to Mather by 12 December 1951. His effective date of active duty was 6 December 1951.
On 6 December 1951, subject Officer was unable to proceed, and thereby informed the Air Force through the County Service Officer of Grant County, Wisconsin. Thus, he accepted his appointment in the Air Force, on active duty. This acceptance may be either express or implied. Express acceptance may be accomplished either by a simple statement of acceptance or by execution of the oath of office. An implied acceptance may be indicated by conduct compatible only with an acceptance, such as commencing to perform the duties of the office, putting on the uniform, or complying with orders of competent authority. In any case, execution of the oath of office is not a prerequisite to acceptance. * * *
It is clear to the undersigned that the above Officer obeyed orders of competent authority when he notified the officials at Mather Air Force Base of his illness, and later telegrams between Dr. Cunningham and the military officials.
It is not a requisite that the acceptance be communicated to the appointing authority before the acceptance is effective. * * * Thus, on 6 December 1951, this officer accepted his active duty status, although he was not able to perform.
It is further noted that on the 14th of January 1952, an Air Force ambulance picked up this officer and thereby the Air Force made known to subject officer that his status as an Officer on active duty was recognized. The oath of office is now important only to entitle the appointee to be paid, although once having executed the oath, entitlement to pay begins as-of the date of acceptance. * * *
This Officer was brought into military hospital channels and given treatment and was ordered about from Truax AFB, to Wright-Patterson AFB, thus clearly indicating that the Air Force had accepted his active duty status. His Form 66, Sec. 28, clearly shows that he was assigned to Truax AFB, absent sick, civilian hospital.
Occasionally an individual will assume the duties of a military office without having been properly appointed thereto, either through lack of some qualifications or some defect in the appointment. As a matter of public policy, and to give effect to official acts performed in good faith, such an individual may be said to have a “De facto” status as an Officer of the United States. The individual must, however, assume the office in good faith, under color of authority, and there must exist a vacant office. A “De facto” officer is entitled to retain any pay received under color of office, but is not entitled to pay, whether earned or not, once it is known that he has no “De jure” status. * * *
Clearly it is shown that the above mentioned officer was in a “De facto” status. Thereby, he was on active duty in the Air Force from 6 December 1951, he was thereby entitled to receive basic pay, and the residuals of rheumatic fever came into being while subject member was entitled to receive basic pay, and was the proximate result of the performance of active duty.
[S] George J. LONG,
1st Lt., U/SAF,
Legal Member, PEB.
sk $
STATEMENT BY MEDICAL MEMBER
According to the principles of good sound medical practice, the Medical Member is of the opinion that this member had an acute exacerbation of rheumatic fever, both at Wisconsin General Hospital and during the month of December, prior to his examination by an Air Force physician at Truax Air Force Base on 15'January 1952. The presence of fever, enlarged liver, increased sedimentation rate, split first sound over the precordium, and a positive past-history of rheumatic fever definitely are against the diagnosis of palindromic rheumatism.
It is to be noted that this member was cleared for rheumatic fever by the Chief of Internal Medicine at Maxwell Air Force Base Hospital on 10 September 1951. It is to be noted next that the subsequent physical examination of this member by a physician of the Air Force revealed a definite organic stystolic murmur of the mitral valve on 15 January 1952. It can neither be proved or disapproved, although this member had rheumatic fever on 6 December 1951, that there was present a murmur at that time. From the correspondence in the Clinical Eecords from both Wisconsin General Hospital and the member’s private physician, Dr. Cunningham, we must recognize that a murmur was not found by them.
In conclusion, although this member, beyond reasonable doubt, had rheumatic fever on the day of his orders to active duty and, therefore, rheumatic fever is definitely EPTS, service aggravation must be allowed, due to the presence of a deformity of the mitral valve, secondary to this rheumatic fever, now present in the member.
[S] Ltle W. Kahler,
1st Lt., USAF, Medical Member, PEB.

19. Plaintiff left the Wright-Patterson Air Force hospital at 1:00 p. m. on May 1, 1952, after appearing before the Physical Evaluation Board there. He felt well on this day, received no treatment and needed none. On May 8, 1952, the assistant commanding officer of the Detachment of Patients at this hospital communicated with the Air Adjutant General requesting that orders as to the proper disposition of plaintiff be forwarded without delay and furnishing information quoted below:

1. Eequest the proper disposition pertaining to 1st Lt. Eobert W. Heins, AO 2056590, be forwarded this organization without delay.
2. The following information is furnished in regards to the disposition of Lt. Heins:
a. Subject officer came on active duty into the Air Force on the 6th of December 1951.
b. Prior to entering the Air Force on active duty, he had been admitted to a civilian hospital for medical treatment.
c. From this civilian hospital he entered and was assigned to Detachment of Patients, 3345th Medical Group, 3345th Technical Training Wing (ATEC), Chanute AFB, Illinois, where he was hospitalized for approximately (90) days.
d. Subject officer was assigned to Detachment of Patients, 2750th Medical Group P/L, Wright-Patterson AFB, Ohio, EDCSA: 27 April 1952, to appear before the Physical Evaluation Board. The Board’s finding was thirty (30) per cent disability, LOD: Yes, and was recommended PCS to his home, on 1 May 1952.
e. He didn’t wait to be processed for PSC home, but left the hospital unknown to anyone, leaving no home address. His where-abouts at present are unknown.
f. Lt. Heins has never taken the oath of an officer into the Air Force, therefore, he is not legally on active duty with the United States Air Force.

20. On May 27,1952, the Air Force Physical Review Board, having considered all of the evidence which was before the Physical Evaluation Board, forwarded to plaintiff revised recommended findings with reference to his physical condition, which indicated that his disability was less than 30 percent and was in fact 10 percent; that such disability was the result of normal progression of a disease process which existed prior to December 6, 1951, and which had not been aggravated by any happenings since that date; that plaintiff was not entitled to pay for the reason that he was physically unable to perform active duty. This board stated, “Accordingly, subject evaluee (plaintiff) is not entitled to the benefits of Public Law 351, 81st Congress.”

21. On June 2,1952, plaintiff elected to file a rebuttal statement as he was permitted to do by Air Force regulations. Plaintiff did this and upon receipt of the rebuttal statement, the Physical Review Board again reviewed the case and found no evidence warranting a change in the recommended findings. On July 15, 1952, the case was forwarded to the Physical Disability Appeal Board. On August 6, 1952, the Office of The Judge Advocate General of the Air Force reaffirmed its earlier ruling of April 16,1952, that plaintiff had not attained an active duty status. The Physical Disability Appeal Board refused to take any further action with respect to the case because of this opinion. Plaintiff still holds a commission in the Air Corps Reserve.

22. The Physical Evaluation Board, the Physical Review Board and the Physical Disability Appeal Board referred to in the preceding findings were established by Air Force regulation 35-49, dated November 1,1949, in order to implement the provisions of the Career Compensation Act of 1949, Title IV, Public Law 351, 81st Congress, and Public Law 18, 76th Congress, as amended by Public Law 108, 81st Congress, relating to retirement, retirement pay, separation and severance pay for physical disability.

In 1951 when plaintiff’s active duty orders were issued, applicable Air Force regulations (Pers. Mob 1M 210.455) provided in part as follows:

22. Physical Processing. Reservists must be physically qualified for general service with or without waiver to qualify for active military service.
a. Waivers may be granted when the individual does not meet the physical standards prescribed in AFR 160-1, AR’s 40-100, 40-105, and 40-115, if the physical defects:
(1) Are static in nature.
(2) Are not subject to complication or aggravation by reason of military service.
(3) Will not interfere with satisfactory performance of full duty.
(4) Will not compromise flying safety or will not constitute an unacceptable limitation for unrestricted flying status of rated personnel.
(5) Will not involve hospitalization and/or time lost from duty.
b. Reservists who are granted waivers for physical defects as outlined above will be classified as general service with waiver. Such conditions as arthritis, peptic ulcer, neuropsychiatric or mental conditions, chronic pulmonary, back or joint conditions, and manifestations of cardiovascular renal diseases will not be waived.

The regulations provided further that where an individual was found to be physically disqualified, physical examination was to be completed, even though a disqualifying defect was discovered early in tire examination.

23. Plaintiff admits that he received pay and allowances for the period December 6, 1951 to April 1, 1952, in an amount not disclosed by the evidence. Plaintiff’s amended petition prays for judgment in the amount of $3,434.58 with interest and such other relief as the court deems just and proper. The sum stated represents pay and allowances of a first lieutenant with over eight years of service, for the months of April and May 1952, in the amounts of $430.88 and $460.72, respectively, plus disability retirement pay for the period from June 1, 1952 to April 1, 1954, for 30 percent disability at the rate of $115.59 per month, a total of $2,542.98.

dependant’s counterclaim

24. Defendant counterclaims for the sum of $1,533 paid to and received by plaintiff during the period December 6, 1951 to approximately April 1, 1952, on the grounds that the sum was paid to plaintiff improperly and without legal authority. There is no evidence as to how this sum is computed, or whether it is correct.

CONCLUSION OP LAW

Plaintiff is entitled to recover pay and allowances as a first lieutenant from April 1, 1952, to April 23, 1952, and judgment will be entered accordingly.

The amount of recovery will be determined pursuant to rule 38 (c) of the Eules of this Court.

Plaintiff is not entitled to recover disability retirement pay. Defendant’s counterclaim is dismissed.  