
    No. 138-65.
    November 19, 1965
    Walter E. Moses.
   Military fay; retired fay (disability); active duty fay; limitation, of actions. — Plaintiff, a former Lt. Colonel in the Army of the United States, sues to recover disability retired pay from the date of his release from active duty in 1945 after a retiring board had determined that he was incapacitated by reason of a service-incurred disability. This determination was disapproved by the Secretary of War and plaintiff was released to inactive status under orders which he claims were void. Thereafter, an Army disability review board and the Army Board for the Correction of Military Eecords declined to rule favorably on plaintiff’s claim for disability retirement. In the alternative, plaintiff sues for active duty pay on the ground that if he was not incapacitated for active duty in 1945 his release was unlawful. The case came before the court on defendant’s motion for summary judgment. Upon consideration thereof, together with plaintiff’s response and opposition thereto and Avithout oral argument, the court concluded on the basis of its decision in Merriott v. United States, 163 Ct. Cl. 261 (1963), cert. denied 879 U.S. 838, that plaintiff was not entitled to recover. On November 19, 1965, the petition was dismissed. On February 18, 1966, plaintiff’s motion for rehearing was denied.  