
    AMELIO B. PALLUCONI v. THE UNITED STATES
    [No. 420-54.
    Decided June 5, 1956.
    Plaintiff’s motion for new trial overruled October 2, 1956]
    
      
      Mr. Paul B. Harmel for plaintiff. Messrs. Geiger and Harmel were on the briefs.
    
      Mr. Philip W. Lowry, with whom was Mr. Assistant Attorney General George Ooehran Doub, for defendant.
   Whitakee, Judge,

delivered the opinion of the court:

Plaintiff’s suit is for retired pay. The case is before us on the report of the Commissioner, exceptions thereto, briefs, and argument.

Plaintiff, a paratrooper, was dropped behind the enemy lines during the attack of the American forces on Sicily. He was captured by the Germans on July 10, 1943, and was their prisoner of war until liberated by the Bussians in January 1945. During this time he suffered great hardships, as a result of which he contracted rheumatic fever, which affected his heart. Pie was in the prison infirmary from October 1943 to March 1944, attended by American doctors, who were also prisoners of war.

During his confinement in prison his weight dropped from 175 pounds to around 110 pounds; but when liberated by the Bussians he was given the run of the country, and rapidly regained 40 of the pounds he had lost.

After liberation, he was sent by the Bussians to Odessa, and from there he was taken to Naples by a British vessel. There he was given a physical examination by the United States Army Medical Corps, and was then sent to the United States by troopship, arriving at Fort Benning, Georgia, in April 1945.

He was then sent to a recreation center in Miami, after which he was assigned to a parachute infantry battalion, and then to the Fourth Infantry Training Battalion. He took an infantry refresher course, and was then assigned to this battalion as a training inspector. He remained on such duty until released to inactive duty about a year later.

In the early part of 1946, he learned that he was about to be sent to Japan; whereupon, he requested relief from active duty. He was relieved on May 24,1946, after having undergone a terminal physical examination.

While undergoing this physical examination plaintiff advised the doctors he had had rheumatic fever with a heart involvement while a prisoner of war, and that he had shortness of breath and swelling of the joints on moderate exercise. Plaintiff, however, did not request discharge for physical disability, and he was not discharged for this reason, although a note was made of this medical history.

On the basis of this physical examination, the Veterans’ Administration rated plaintiff 10 percent disabled. Three years later, on March 16, 1949, on the basis of their examination of plaintiff at that time, they rated him 60 percent disabled, by reason of heart disease.

Shortly thereafter plaintiff wrote the Adjutant General applying for a pension. The Adutant General replied on September 22 that while there was some doubt about plaintiff’s eligibility therefor, he would nevertheless order him before a retiring board, if the evidence showed that plaintiff was physically disabled at the time of his separation from the service. A year later, plaintiff made formal application to appear before a review board, and, in response thereto, the Adjutant General notified him to appear before a medical board at Camp Atterbury, Indiana. This board found that plaintiff had arteriosclerotic heart disease with angina of effort, and that he became incapacitated for military duty in August 1943. In accordance with the recommendation of this medical board, plaintiff then, on February 19, 1951, appeared before a physical evaluation board, which confirmed the findings of the medical board and found that plaintiff was 60 percent disabled.

However, on March 14, 1951, the Army Physical Beview Council reversed the action of the Physical Evaluation Board on the ground that it was not substantiated by the evidence, and for certain technical reasons, and sent the case back to the Physical Evaluation Board.

Then on July 16, 1951, the Adjutant General notified plaintiff that the proceedings of the Physical Evaluation Board were being set aside, because of the decision of the Comptroller General, holding that reserve officers who had been released from active duty, not by reason of physical disability, had no right to be brought before a physical evaluation board or a retiring board, for the purpose of possible retirement for physical disability with pay. As a result, plaintiff was denied the right to appear before an Army retiring board.

Nearly a year later, plaintiff made application to the Board for Correction of Military Records for a correction of his record to show that he was 60 percent disabled by reason of arteriosclerotic heart disease with angina of effort. This board made a thorough review of plaintiff’s military records, his medical records, and the records of the Veterans’ Administration, and concluded that the findings of the Physical Evaluation Board on February 19,1951, above referred to, were based on plaintiff’s physical condition at that time, rather than on the date of his separation from the service on May 24,1946, and that there was no evidence of any error or injustice in plaintiff’s separation from active service not for physical disability. Plaintiff was so notified on October 20, 1953.

Thereafter, on its own motion the Army Board for Correction of Military Records requested that plaintiff be sent to Walter Reed Army Hospital for medical examination and appearance before a medical board and physical evaluation board, and that their findings and the prior proceedings in plaintiff’s case be forwarded first to the Army Physical Review Council, and then to the Army Board for Correction of Military Records, for further consideration.

Accordingly, plaintiff was admitted to Fort Sheridan Infirmary on December 27, 1953, where the records were examined and plaintiff was given a further physical examination, as the result of which the medical board found that plaintiff’s old rheumatic fever was inactive, without heart involvement, and that at the time of his separation from the service he was under no physical disability which was sufficient to incapacitate him for further duty.

On September 14, 1954, the Army Board for Correction of Military Records further considered the matter and concluded that there was no basis for changing their original determination, to wit, that there was no error in the release of plaintiff to inactive duty not for physical disability.

Such are the facts.

All the members of this court have great sympathy for the plaintiff on account of the hardships and, indeed, the inhuman treatment to which he was subjected while a prisoner of war; but the sole question before us is whether or not those agencies, which were given authority by Congress to determine plaintiff’s right to retired pay on account of physical disability, acted fairly and impartially and according to law. If they did, their findings are conclusive upon us.

There is not the slightest evidence of arbitrary or capricious action; on the contrary, plaintiff’s case was given careful and sympathetic consideration. It is true, as we have heretofore held, that the Comptroller General was wrong in saying that a reserve officer who had been released to inactive duty, not on account of physical disability, such as plaintiff, was not entitled to apply to appear before the physical evaluation board or a retiring board; and, hence, the Adjutant General was wrong in saying that its findings were null and void; but the findings of this board were reversed by the Army Physical Review Council; and, in addition, the Board for Correction of Military Records thoroughly reviewed the findings of this physical evaluation board and determined that they were based on plaintiff’s condition at the time he appeared before that board, and not at the time of his release to inactive duty. It is his condition at the time he was released to inactive duty that determines his right to retired pay. The Board for Correction of Military Records determined that his physical condition at that time did not justify his retirement for physical disability, and the Secretary of War has approved those findings.

That decision is conclusive upon us, since it was arrived at fairly and impartially, and in accordance with law.

It results that plaintiff’s petition must be dismissed.

It is so ordered.

Lakamoke, Judge, and MaddeN, Judge, concur.

JoNes, Chief Judge,

dissenting:

I would grant plaintiff retirement pay from February 19, 1951, the date when the physical evaluation board found him disabled.

The evidence discloses that plaintiff served as a paratrooper during World War II; that he was dropped behind the lines of the American forces in Sicily, that he was captured, suffered great hardship, that his weight dropped from 175 to around 110 pounds, as a result of which he contracted rheumatic fever which affected his heart; that he remained a prisoner from July 1943 to January 194'5, and that there was lack of adequate medical treatment during that period. When the record as a whole is considered, there can be no doubt whatever that plaintiff’s disability had its inception in the service. This is emphasized by his record as an athlete, his activity and his personal health prior to that time.

While there is possibly not sufficient evidence to show beyond question that his condition was actually disabling at the time he was released to inactive service in January 1946 it is certain that it became disabling as of February 19, 1951, when the Physical Evaluation Board found him disabled. The officials who nullified the findings of the Physical Evaluation Board on a mistaken interpretation of the law and in the belief that that board had no jurisdiction, admitted in effect that plaintiff was disabled at the time of his first complete medical examination on February 19, 1951. Their stated conclusion was that the Physical Evaluation Board and the medical officers who examined plaintiff in connection therewith relied on his condition which they found on examination in 1951 as a basis for concluding that he was disabled at the time of his release from active service in 1946. The facts would seem to justify the Physical Evaluation Board’s action, but the discretion was lodged in the officials who finally passed upon the matter, and I do not think the facts here would justify us in finding their action was arbitrary, or that it was an abuse of discretion for them to hold that the record does not show that plaintiff was disabled at the time of his release from active service.

This case raises the question which has been before the court repeatedly as to whether one who is sick or wounded while in the service in such manner as not to be disabled at that time, but whose condition may at a later date become disabling, may be retired as of the time when the disease or wound has progressed to the point where it is disabling.

Since there is no doubt that plaintiff’s condition originated or had its inception in the service, and since it is practically admitted that his condition had progressed to the point of complete disability in 1951, I think he should have been granted retirement from that time for the reasons which I stated in my dissenting opinions in the cases of Holt v. United States, 134 C. Cls. 801, and MacFarlane v. United States, 134 C. Cls. 755.

This is one of those rare cases where the evidence of service connection and the proof of disability, incapacitating at least as early as February 19, 1951, are so overwhelming as to remove any reasonable doubt as to the essential facts.

The findings of the trial commissioner as set out in findings 14 to 20, inclusive, would justify a conclusion that plaintiff was incapacitated and should have been released to inactive service in 1946 on account of disability. The numerous aches and pains (as described in findings 14 and 15) which plaintiff suffered during the last few months of his active service and his inability after his release from a prisoner of war status to do any substantial physical work before his release are very convincing facts and are practically undisputed.

A medical board of three officers of the United States Army, and the Physical Evaluation Board both found plaintiff disabled as early as February 19,1951. There has never been any finding to the contrary. The Army Physical Review Council, and the Army board merely found on a review of the record that there was not sufficient evidence to establish disability at the time of plaintiff’s release to inactive service in 1946.

This leaves the record that he was disabled as of February-19, 1951, completely unchallenged.

Section 519 of the Career Compensation Act of 1949, 68 Stat. 802, retains all retirement rights which an officer had received or was entitled to receive prior to such act.

Section 933, Title 10, United States Code, in effect at the time of plaintiff’s service is as follows:

Disability found by retiring board to be incident of service
When a retiring board finds that an officer is incapacitated for active service, and that his incapacity is the result of an incident of service, and such decision is approved by the President, said officer shall be retired from active service and placed on the list of retired officers.

The quoted provision, as I interpret it, clearly provides that any time a retiring board finds that an officer is incapacitated for active service, and that such incapacity had its inception in the service, he is entitled to retirement pay when the condition becomes disabling.

This fits plaintiff’s case like a glove. Because of a misinterpretation the higher officials who declined to permit him to go before a retiring board arbitrarily denied plaintiff his statutory rights. While it was due to a misunderstanding, the results were the same as if the denial of rights had been intentional.

It is difficult to understand the strange reluctance of the intermediate higher officials to grant a hearing in considering plaintiff’s application for retirement. The only full hearing plaintiff ever had was before the physical evaluation board, which, after examination, tests, observation and questioning found him disabled from 1943, a date long before his release to inactive duty. This was set aside and disregarded on the erroneous belief that the evaluation board had no jurisdiction. It is difficult to thread one’s way through the maze of boards and special groups that were set up, and to determine the jurisdiction of each.

But this much is certain — if that board’s finding was to be disregarded, some other board, such as the Board for Correction of Military Records, a Disposition Board, or a Retiring Board, should have granted a full and fair hearing before taking adverse action. Lemly v. United States, 109 C. Cls. 760.

Plaintiff’s case was not acted upon by the Retiring Board or a Disposition Board, and the Board for Correction of Military Records declined to give plaintiff a hearing, standing on the statement that the facts of record did not justify the Physical Evaluation Board’s findings of complete disability, that the findings were not supported by substantial evidence, that that board had relied on plaintiff’s condition in 1951, and that it had no jurisdiction in the first place. I do not believe that plaintiff could be blocked off in this way without the Correction Board’s or some other board’s action being classed as arbitrary.

No one who reads this record can fail to be impressed with the merits of the case. To deny plaintiff retirement pay completely would be unjust.

LittlbtON, Judge, joins in the foregoing dissent.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner Currell Vance, and the briefs and argument of counsel, makes findings of fact as follows:

1. After 4 years of R. O. T. C. training at St. Norbert’s College, Green Bay, Wisconsin, plaintiff was commissioned a second lieutenant, Army of the United States, and entered active duty July 5, 1940, at the age of 25 years. He was subsequently promoted to the rank of major.

2. Prior to military service, plaintiff played 8 years of football, 4 in high school and 4 in college, and participated in track. He met the rigorous physical requirements of field service, first in a heavy weapons company, and subsequently as a paratrooper in the infantry. In January 1942 he took the ordinary 3 months’ training period of a paratrooper concentrated in one month. This training consisted of running for miles at a time, climbing ropes, wrestling and jiujitsu, acrobatics on a system of pipes, jumps from parachute towers, endurance tests in climbing, running and wrestling, and moving about always at a run. He and another captain went from one company to another to exhibit how to throw each other in jiu-jitsu.

3. In April 1943 plaintiff was sent overseas. On July 9, 1943, his paratroop battalion took off by air from Tunisia and was dropped in Sicily with the objective of preventing enemy thrusts to an airport and to beaches where American troops were landing. Due to adverse weather conditions, the paratroopers were widely separated when dropped from the planes. After capturing a German machine gunner, plaintiff was himself captured and taken prisoner on July 10,1943.

4. Plaintiff was incarcerated for 19 months as a prisoner of war. He was first taken to Catania, where he became infested with bugs and lice which remained with him until he was disinfected after his return to the United States in April 1945. He was removed to Capua where his diet began to deteriorate. No breakfasts were given to the prisoners and they had access to water only 15 minutes in the morning. Here he was threatened with the firing squad for refusal to cooperate in interrogation.

With American invasion in Italy imminent, the prisoners were moved north from Capua. For 6 days, 40 men were packed into a small boxcar, with no toilet facilities and let out not even once during this time. With dysentery and diarrhea, conditions became almost unbearable. Their destination was a camp near the Polish Corridor where they remained about 2 weeks. Plaintiff’s outstanding recollection of this camp was the German captain who marched the prisoners outside unclothed or partially clothed. The more inclement the weather, the longer he kept them there.

5. From this prison camp, he was transferred to Oflag 64 in Poland where, with the exception of one month at Lueh-envalde, he remained for many months. Here he was forced to exist on a semistarvation diet. In the morning he had only ersatz coffee; at noon two small potatoes; and at supper cabbage soup with one loaf of bread to divide among eight prisoners. When the Germans did not confiscate their Bed Cross food parcels and they received them, they had to eat all the food at once because the Germans punctured the cans and the food spoiled. During this incarceration plaintiff paid $30, all the money he had, for a single candy bar. His weight dropped about 65 pounds, from 175 to 110-115.

6. After his first two weeks at Oflag 61, he was sent to Luchenvalde, a concentration camp, where Russians and some French prisoners were imprisoned. For 12 to 15 days he endured solitary confinement in a concrete and steel cell, with a tiny peephole in the door and a glaring white concrete floor. If any prisoner was discovered looking out of the small window of the cell into the yard, the shutters were slammed shut for 24 hours and he remained in utter darkness. An American lieutenant in the nest cell, whose mind had become disorganized by the shock of seeing his platoon cut up in Sicily, spent many days in darkness. Plaintiff was caught looking through the window only once. When he did look out, he usually saw dead Russians being carried out of the prison in boxes, a sight which would strike home a bit. The food at Luchenvalde consisted of a cup or two of warm water in the morning, two small potatoes at lunch, and a few spoonfuls of cabbage soup at dinner — even less than at Oflag 64.

Plaintiff’s cell had no toilet facilities and he was not allowed out at any time to go to the toilet, and during the 12 to 15 days of confinement he did not have a single bowel movement. Only one thin blanket was furnished him.

7. During his solitary confinement under the foregoing conditions, plaintiff contracted a severe throat infection with swellings which emitted pus. He asked for medical help but did not get it. His constipation gave him stomach pains.

8. After his release from the cell, he began to feel better. He remained at Luchenvalde another 15 days, 30 days in all, and was returned to Oflag 64.

9. About two weeks after his return to Oflag 64, plaintiff experienced a fever which began daily at noon and kept climbing until at midnight he was drenched with sweat. This was accompanied by chills, headaches, and stiffness and soreness in the muscles and joints.

For some time his complaints were disregarded because in the morning when he complained at rollcall, the fever had subsided. He finally refused to go down the five flights of stairs from bis attic room to answer rollcall, and was sent to the prison infirmary in charge of American doctors, who were also prisoners of war.

10. Plaintiff remained in the prison infirmary from October 1943 to March 1944 with fever (fever chart kept), inflamed knees, red blotches on his back, elbows, finger joints and knees, and stiff joints. He had a definite very loud heart murmur. His heart was checked each day. Upon the doctor’s instructions, plaintiff had to remain absolutely quiet in bed, could not go out even to the toilet. He was prohibited from eating much of the food. It was here that he lost most of his weight. The American doctors, Dr. Batalion, Dr. Bogess, and another whose name plaintiff does not remember but who was referred to by Dr. Bogess as Dr. Burdick, diagnosed his case as acute rheumatic fever with cardiac involvement.

11. When plaintiff was released from the infirmary in March 1944, he was cautioned by the American doctors not to engage in any strenuous activity. He was not permitted even to participate in the walking periods which the American prisoners had daily for exercise. He was, of course, not permitted to participate in the prisoners’ rounds of digging for the purpose of escape. He was advised by the doctors that when he returned to the States he should move to the South to avoid the harshness of the northern climate.

The senior American officer in command at the camp, Colonel Thomas D. Drake, stated in a letter dated December 19, 1949:

I well remember you being in our Infirmary in the prison camp, Oflag 64, Poland, during the Fall and Winter of 1943. It is a matter of record and common knowledge that during our time as Prisoners of War that the enemy, the Germans, not only starved the prisoners but failed to give adequate heating and blankets during the subzero weather which often got 15 to 20 degrees below zero, not freezing.
There certainly is no doubt in my mind, nor would there be in the minds of anyone familiar with the conditions of the Prison Camps maintained by the Germans, but that your condition, if not caused by your incarceration, was certainly aggravated by the lack of food, clothing, and proper heating facilities. The average loss of weight per person was around 30 pounds and in many cases greatly exceeded this figure. In fact, had it not been for the food parcels furnished through the Red Cross few Prisoners-of-War would have survived their captivity.
I made a complete report on the conditions of the Prisoners upon my return to the United States and that report is in the G-2 files of the War Department General Staff.

Colonel Drake proposed that plaintiff be examined by a mixed medical commission, and on July 8, 1944, Secretary Hull cabled the American Legation at Berne that plaintiff was suffering from acute rheumatism and a systolic condition of the heart and instructed him to request an examination by the said commission, a request never complied with, upon the pretext that plaintiff’s rheumatism was limited to his wrist.

12. Shortly after he left the infirmary, the plaintiff was so weak that he fainted during a rollcall. At the end of 1944, he was sent to Posen to help organize a prison camp. During the confusion caused by the coming of the Russians, plaintiff and other prisoners, were forced to march about the countryside for 8 days in 10 to 15 degrees below zero weather, with inadequate clothing, no overcoats, shoes without stockings. When the Russians came on January 28-29,1945, the American prisoners were given the run of the country, and they gorged themselves on cows, pigs, and chickens. Plaintiff put on 40 pounds inside of a month.

13. Plaintiff was sent to Odessa by the Russians and from there he went to Naples on an English ship. After a period at a rest camp near Naples he was returned to the States. At Fort Benning in April 1945, plaintiff was cleared of his 21-month infestation of body bugs, and was sent to Miami for recreation. There he was afflicted with hemorrhoids, a result of his long period of constipation at Luchenvalde.

14. After leaving Miami, plaintiff was assigned to a parachute infantry battalion, and then to the Fourth Infantry Training Battalion at Fort Benning, Georgia, where he took an infantry refresher course. While running behind a tank in a mock attack at Fort Benning during the summer of 1945, he fell, felt a pain in his chest, a weak feeling in his joints, and a tremor throughout his body. At the dispensary be was treated for a cut on his hand caused by his gun at the time of the fall. He was later assigned the duties of training inspector.

15. Prior to the time that plaintiff began his terminal leave, March 14, 1946, during his terminal leave, and since his separation, May 24, 1946, plaintiff has suffered pains in his chest above his heart, while sitting as well as on exertion; pain in the chest during emotional strain; headaches; stiffness and weakness in the joints; shortness of breath (dysp-nea) when in motion; needle-like side pains, very, very sharp at times; swelling of ankles; spells of indigestion with a full stomach, very frequent; sudden sharp heart pains and weakness all over his body, lasting one-half hour for no apparent cause.

Most of these symptoms existed during and prior to plaintiff’s terminal leave. Plaintiff made no report of this to the medical officers until his physical examination at the separation center, when he informed the doctor of his rheumatic fever and that he had then been having chest pains. This and his dyspnea and swelling of joints on moderate exercise was made a matter of record in the report of his physical examination at the separation center. Plaintiff did not request relief from active duty because of physical disability, but because he did not want to go to Japan.

16. In 1948 he attempted to pick up some sod with a pitchfork and load it into a trailer, when he was suddenly overcome with weakness; his heart started to pound; he became dizzy; suffered a severe pain in the chest, and lay on the ground fifteen to twenty minutes, after which he got in his car and drove home, and remained in bed over the week-end. However, he did not call a doctor.

17. Shortly after his separation, the Veterans’ Administration rated plaintiff 10 percent disabled solely upon the evidence contained in the plaintiff’s separation physical examination, February 14, 1946, the roughening of sound at the apex and mitral areas and dyspnea on moderate exertion. At the time of this rating there had been no physical examination of the plaintiff nor any history other than that stated above. When the Veterans’ Administration examined plaintiff in 1949, he was rated 60 percent disabled for rheumatic heart disease manifested by mitral stenosis and insufficiency with cardiac failure.

The basis of the Veterans’ Administration finding is found in the cardiovascular examination of March 16, 1949, in which it is stated:

Patient was in paratroops and captured by German troops in Sicily in July 1943. He was sent to Poland as P. O. W. and then transferred to German P. O. W. camp at Luchenvalde where he was kept in solitary confinement in cold, damp concrete cells for a month. He developed sore throat, fever, chills but was refused treatment by Germans. He had the sore throat for 2-3 weeks and then it went away. Later he developed fever, chills and sweats as well as migratory joint pain associated with appearance of migratory nodules around the joints. He was then sent to Poland in German P. O. W. camp, when he was admitted to the infirmary. There he was cared for by American doctors who did not have anything to work with and no drugs to dispense. He was kept in the infirmary from Oct. to April, when fever had resolved, and he was allowed to be ambulant. He was kept a P. O. W. until Jan. 1945 when he was liberated by the Russians. Since then he has had marked dyspnea on exertion, palpitation, and chest pain without radiation. Has occasional cough and once had he-moptysis (blood-stained sputum due to disturbed arterial tension in persons with heart disease). In the last year he has twice had_ severe epistaxis (hemorrhage of the nose). On occasion he has had marked bilateral leg and ankle edema. He has had some recurrences of joint pains in back, shoulders and fingers. Takes no medication. The condition has seriously impared his ability to earn a living.
T 98.6° P — at rest 88
—immediately after exercise 100 BP 130/90
—3 min. after exercise 94
Patient is a well-developed, well-nourished white male. There is a marked malor (bilateral) flush. No cyanosis. The cardiac borders are within normal limits. No palpable thrills. There is a soft, blowing apical systolic murmur with axillary transmission. There is a fainter diastolic element. P2>A2. Normal rhythm. The liver is palpable -r fb below ROM. There is slight bilateral ankle edema. The chest is clear and resonant.
Impression: 1) Heart disease
Etiol. — Rheumatic iever
Anat. — Mitral stenosis ancl insufficiency
Physiol — Early cardiac failure
Function — Grade II
Advise: 1) EKG
2) Sed. rate
3) Prophylactic sulfadiazine during months
Nov.-April.
Diag: Same as impression.

18. On September 22 1949, the Adjutant General, in reply to plaintiff’s request, advised him that he would be permitted to appear before a retiring board if available evidence indicated physical defects at the time of his separation from the service. In June 1950 plaintiff made formal application to appear before a review board. On November 2, 1950 the Adjutant General notified him that he might appear before a medical board at Camp Atterbury, Indiana. This medical board of three officers at the U. S. Army Hospital, Camp Atterbury, Indiana, on February 16, 1951, found that the plaintiff had arteriosclerotic heart disease with angina of effort and that he became incapacitated for military duty in August 1943. The medical board recommended that he appear before a physical evaluation board. That board found, on February 19, 1951, that plaintiff was 60 percent disabled by reason of arteriosclerotic heart disease with angina of effort, moderately sevei’e, incurred August 1943. At the hearing plaintiff was given an opportunity to present his history in full, and the medical records of the hospital show that it had plaintiff’s complete history.

The Physical Evaluation Board prepared a “Statement of Conclusions,” as follows:

Major Palluconi appeared before the Physical Evaluation Board, this date, a well developed, well nourished, white male who appeared about ten years older than his given age of 36. He appeared before this Physical Evaluation Board under authority of Section 302, Public Law 346,78th Congress and letter of authority, Dept, of Army, Office of the Adjutant General, dated 22 Sept. 1949, file AGPO-S-B 201-Palluconi, Amelio B. (22 Sept. 1949) subject: “Retirement Pay Benefits,” copy of which is attached.
He has a history of being interned as a prisoner of war for nineteen months and then development of joint pain and inflammation approximately six weeks after an attack of a severe sore throat. He was examined by American doctors in the prison camp who have given us written statements that they believed that he suffered from rheumatic fever with heart involvement. Therefore, this Board concurs that his present condition is service connected and was in the line of duty which is “yes.”
During his internment he lost approximately sixty-five pounds in weight. After his release from service in May 1946, he rapidly regained his weight. However, the period of shortness of breath with exertion and anginal pain have remained ever since. We feel that a history of a definite coronary insufficiency with arteri-oscelerotic changes exists subsequent to a long period of semi-starvation diet as a prisoner of war. He probably developed Beri-beri and pellagra during this long period of malnutrition at the time of his attack. This history of weight loss followed by rapid weight gain would suggest early arteriosclerotic changes and effort angina such as the patient complains. This is also the opinion of Colonel Walter M. Bartlett, MC, Chief of the Medical Service of this hospital.
It is the opinion of the Board that this man does not at the present time suffer from any evidence of rheumatic heart disease — that his complaints are best explained by an arteriosclerotic heart condition. This disability may be considered permanent in accordance with existing medical principles and it is recommended that he be given the Veterans’ Administration Diagnosis No. 7005: “Arteriosclerotic heart disease with effort angina” because of his typical history of acute coronary insufficiency and with the history of substantiated repeated anginal attacks, and that more than light manual labor cannot be accomplished without precipitating one of these attacks.
It is the opinion of this Board that a disability of 60% be given this individual.

19. Individual physicians, both Army and private, found plaintiff to be afflicted with heart disease. These consisted of the three Army doctors at the prison camp, Dr. Walter Schmutzler of Kingsford, Michigan, who stated on April 20, 1954, “This patient definitely has a coronary insufficiency”; Dr. A. M. Cooperstock of Marquette, Michigan, cardiologist and specialist in rheumatic fever, who stated that plaintiff’s symptoms are strongly indicative of the presence of angina of effort as the result of coronary insufficiency.

20. When plaintiff was separated from the service at Fort McPherson, he had a physical examination over a period of two or three days along with numerous men who were going through at the time. The report of his physical examination on February 14, 1946, signed by two doctors, contains the following:

Had rheumatic fever October 1943 in prison camp, preceded by strep throat and quinsy — in bed till March 1944. Received no medication. Had all joints swollen, has had some dyspnea since on moderate exertion. EKG in June 1945 — was normal. No other complaints.
Physical examination — Find only a roughening of 1st sound at apex and mitral areas.
EKG Report — INTERPRETATION: Normal electrocardiogram — 14 Feb. 1946.

Plaintiff was not sent to a hospital for a thorough examination and treatment. On the basis of this report alone and without physical examination, the Veterans’ Administration subsequently gave plaintiff a 10 percent disability rating.

21. On March 14, 1951, the Adjutant General forwarded the proceedings of the Physical Evaluation Board outlined in finding 18, above, to the Army Physical Review Council at the Pentagon, which returned the matter to the Physical Evaluation Board, for reconsideration on the ground that the 60 percent disability was not substantiated by the evidence, that plaintiff was sworn as a witness without his consent, that the rating was not completed by insertion of the converted or Veterans’ Administration rating, that the proceedings were submitted on an AGO form, now obsolete, and the statement of conclusions described incorrectly the Public Law to which they had been allegedly referred.

22. On May 17, 1951, plaintiff had another medical examination, the purpose of this one being his eligibility for an officer’s commission in the Reserve Corps. The board, reviewing the clinical examination report, reported plaintiff normal for everything except the eye; and the board further reported him qualified for general service.

23. On July 16, 1951, the Adjutant General, by order of the Secretary of the Army on the basis of a decision of the Comptroller General, No. B 100262, April 25, 1951, declared the proceedings of the Physical Evaluation Board null and void. This was a decision by the Comptroller General that members of the Army of the United States who were released from active duty without pay, not by reason of physical disability, prior to the date of approval of the Career Compensation Act of 1949, and who, subsequent to that date, upon appearing before a physical evaluation board in a civilian status or found to be physically disabled from the time of release from active duty, were not entitled to retirement pay under the Career Compensation Act of 1949, nor under laws which .were in effect prior to the approval of the Act.

24. On April 23 1952, plaintiff made formal application for correction of military records to show that he was entitled to receive retirement pay from the time of Ms release from active service on the grounds that he was interned for 19 months under unhealthful conditions, was afflicted with rheumatic fever with cardiac involvement, that the Veterans’ Administration had given him 60 percent service disability rating for heart disease, and the Physical Evaluation Board had found that he had arteriosclerotic heart disease with angina of effort. On June 10-11, 1953, the Army Board for Correction of Military Records reviewed the files in their entirety and found that plaintiff did not suffer physical defects of a degree warranting retirement for physical disability at the time of separation from the Army under the laws, rules, regulations, and policy then in effect. On October 12, 1953, the Army Board for Correction of Military Records directed the Adjutant General to notify plaintiff and his counsel that a thorough review of plaintiff’s military records, medical records, and Veterans’ Administration records failed to reveal any evidence of error or injustice relative to plaintiff’s separation from active service, and that the findings and recommendations of the Physical Evaluation Board were based upon plaintiff’s physical condition on January 19, 1951, rather than upon the date of his separation, May 24,1946. On October 20,1953, plaintiff was so notified by the Adjutant General.

25. On November 18 1958, the Army Board for Correction of Military Records requested of the Adjutant General an invitation to plaintiff to proceed to Walter Reed Army Hospital for medical examination and appearance before a medical board and a physical evaluation board to determine his disability and its service connection; and that the proceedings of the boards be forwarded to the Army Physical Review Council, and then to the Army Board for Correction of Military Records.

26. On December 27, 1953, plaintiff was admitted to Fort Sheridan Infirmary and had a comprehensive clinical and physical examination. All laboratory and other clinical records were submitted to the authorities at the Great Lakes Naval Hospital where the records were substantiated that there was no evidence of any organic pathology except for a questionable roughening of M-l (first mitral of the heart) ; that plaintiff’s physical condition revealed no evidence of physical disability sufficient to incapacitate him for further duty, which existed at the time of his separation in May 1946, and that at that time he was fit for separation without physical disability. The Medical Board further found that an appearance before a physical evaluation board was not warranted. Plaintiff’s rheumatic fever was described by the Medical Board as old, inactive, without heart or cardiac involvement.

27. On August 4, 1954, plaintiff’s attorney asked for a review of the Medical Board’s findings of December 1953, enclosing letters of two private physicians giving their opinions that plaintiff had heart disease.

28. In support of this application, plaintiff’s attorney submitted copies of the Medical Board proceedings at Camp Atterbury, Indiana, in February 1951, which had recommended that in view of the “possibility” that plaintiff’s then disability was due to his previous military service, favorable consideration be given to his petition to reevaluate plaintiff’s disability. Copies of the proceedings of the Physical Evaluation Board, dated January 19,1951, were also submitted.

29. On September 14, 1954, the Army Board for Correction of Military Records notified plaintiff’s attorney as follows:

Reference is made to your request for reconsideration of tbe application for correction of military records filed by Amelio B. Palluconi, O 394 840.
Records on file sbow that on 20 October 1953, both Mr. Palluconi and you were informed that a thorough examination of his military, medical and Veterans Administration records, together with the information submitted by him, failed to reveal any evidence of error or injustice relative to his separation from active service on 24 May 1946.
Subsequently, the case was reopened and the applicant was authorized admittance at United States Army Infirmary, Fort Sheridan, Illinois, for a complete medical examination and appearance before a Medical Board and further appearance before a Physical Evaluation Board, if in order, to determine whether or not he was disabled as a result of his military service so as to be permanently incapacitated for military service upon his relief therefrom on 24 May 1946. On 6 January 1954, a Medical Board, convened at the aforementioned installation, unanimously determined that the applicant was fit for separation without disability at the time of his relief from active duty, and further, that the case did not warrant appearance before a Physical Evaluation Board.
Your letter of 4 August 1954, as well as the statements of Dr. Walter A. Schmutzler and Dr. M. Cooperstock, dated 20 April 1954 and 7 July 1954, respectively, were given thorough consideration on 1 September 1954, by The Surgeon General, together with all other evidence of record. However, The Surgeon General has expressed the opinion that the applicant did not have any physical disability at the time of his separation from the service which would have warranted his separation because of physical disability under the laws, rules, regulations and policies then in effect.
Inasmuch as the facts now in this case are the same as those considered in the prior review, there appears to be no basis for a change in the original determination. Your request for reconsideration of the case by the Army Board for Correction of Military Records is accordingly denied.

CONCLUSION OK 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 his petition is dismissed.  