Dzialo v. United States

5 Cl. Ct. 554, 1984 U.S. Claims LEXIS 1396
CourtUnited States Court of Claims
DecidedJune 5, 1984
DocketNo. 492-80C
StatusPublished
Cited by22 cases

This text of 5 Cl. Ct. 554 (Dzialo v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dzialo v. United States, 5 Cl. Ct. 554, 1984 U.S. Claims LEXIS 1396 (cc 1984).

Opinion

OPINION

REGINALD W. GIBSON, Judge:

In this second phase of subject military pay case, plaintiff seeks disability retirement benefits allegedly due him, notwithstanding his involuntary discharge from the United States Marine Corps on June 30, 1978. At that time, plaintiff had served in the Marine Corps for 17 years, but was statutorily discharged after he was twice passed over for promotion to the rank of major. Subsequent thereto, plaintiff filed a timely petition in our predecessor court, the United States Court of Claims, seeking [557]*557disability retirement benefit payments from and after July 1, 1978, or, in the alternative, reinstatement to his former rank of captain with appropriate back pay and allowances. Plaintiffs disability claim, raised for the first time in said petition, alleges that he was unfit for duty as of the date of his involuntary discharge because he suffered from psychoneurosis, hay fever, migraine headaches, and neck and back pain.

In response to the parties’ cross-motions for summary judgment, the Court of Claims, in an opinion disseminated on May 5, 1982, granted defendant’s motion for summary judgment in part and dismissed plaintiff’s alternative claim for reinstatement to his former position. Dzialo v. United States, 230 Ct.Cl. 506, 677 F.2d 873 (1982). With respect to plaintiff’s claim for disability retirement pay, however, the court held that plaintiff had not exhausted his administrative remedies, and remanded the case to the Board of Correction of Naval Records (BCNR or “Correction Board”) for consideration on the merits. On remand, the BCNR found on October 20, 1982, that plaintiff was not unfit for duty at the time of his discharge (June 30, 1978), and hence he was ineligible for disability retirement benefits. As a consequence of the foregoing, on April 11, 1983, plaintiff filed with this court a “Notice of Action on Remand and Motion for Trial on the Merits,” praying in the alternative for an order permitting a renewal of his motion for summary judgment filed in the first Court of Claims proceeding.1 Defendant thereafter filed its motion for summary judgment on June 13, 1983.

This court has thoroughly reviewed the entire administrative record, as well as the submissions of the parties. For the reasons stated hereinafter, the court is of the opinion that there is no genuine issue of material fact, that the BCNR’s decision is clearly supported by substantial evidence, and that it is neither arbitrary, capricious, nor contrary to applicable statutes and regulations. Accordingly, defendant’s motion for summary judgment shall be granted.

FACTS

Plaintiff enlisted in the United States Marine Corps in October 1961, and served therein until 1978, when he was involuntarily discharged at the rank of captain. He was first commissioned as a second lieutenant in 1966, and was assigned on a tour of combat duty to Vietnam in 1967. In a statement contained in the administrative record, plaintiff alleges that prior to his assignment to Vietnam, he was “a well-adjusted individual.” He avers, however, that “the intensity of my Viet Nam experience, further complicated by my first wife’s psychological problems ..., mentally crippled me.” According to his statement, plaintiff’s psychological problems began after nine months of his tour in Vietnam, when his first wife was hospitalized for a nervous breakdown, and he returned to the States on emergency leave. (Shortly thereafter, upon his request, he received a humanitarian transfer.)

Specifically, three months after returning to the States, in June 1968, plaintiff suffered what he termed his first “anxiety attack,” during which he purportedly “lost all control of motor functions.” He was taken to the hospital, given an injection that he believed to be valium, and released. Following this anxiety attack, plaintiff contends that he never again felt normal, because of his fear of “losing control,” as well as the guilt he felt from “deserting” his companions in Vietnam via his humanitarian transfer. At various times after 1968, plaintiff reported a number of physical ailments, such as migraine headaches, neck and back pains, and hay fever, but was not hospitalized for any of these ailments. His medical records reveal that he suffered on various occasions from dizzy spells, anxiety, and tension through[558]*558out the 1970s and was prescribed with medication, most notably valium.

Plaintiff was promoted to the rank of captain in 1969. He returned to Vietnam on a tour of duty in 1971, after which his wife was involved in an automobile accident which resulted in the death of the other driver. Plaintiff alleges that this incident was a major factor contributing to his subsequent psychological problems. Indeed, shortly after his second return to the States, he suffered a second anxiety attack similar to the first. Plaintiff continued to serve, thereafter, as a communications officer at various posts around the United States from 1972 until his involuntary discharge on June 30, 1978.

In 1976, plaintiff went to see a base psychiatrist, a Dr. Kamm, at the suggestion of another base physician from whom plaintiff had requested valium. In a report written on May 21, 1976, Dr. Kamm stated that plaintiff “demonstrates a mixed neurosis,” with “elements of neurotic depression,” but exhibited no signs of neurological impairment or active psychosis. In his recommendation, Dr. Kamm prescribed outpatient psychotherapy, as well as tofranil (an anti-depressant medication) and other medication for anxiety and insomnia. Dr. Kamm’s medical report concluded, however, that plaintiff was “fit for full duty.” A letter report by a Dr. Kneipp dated May 11, 1981, to counsel for the plaintiff states that five weeks after his initial report, Dr. Kamm apparently changed his diagnosis of plaintiff, noting on a prescription that plaintiff suffered from “chronic endogenous depression, with vegetative signs and phobic symptoms.” Nevertheless, no medical report, filed by either Dr. Kamm or his successors, ever indicated that plaintiff was unfit to perform active duty.

Shortly after plaintiffs initial visit and the resulting report, supra, Dr. Kamm was transferred, and thereafter, plaintiff consulted a Dr. Khan, also a base psychiatrist. Plaintiff intimates that Dr. Khan was negligent in his treatment, inasmuch as he did not provide psychotherapy (because of a belief that it was not necessary) and only saw plaintiff for a few brief follow-up visits after 1976. Dr. Khan apparently wrote on plaintiffs clinical record, however, on October 26, 1977, that “Capt. Dzialo has reported that he has felt relief with Tofranil. Will continue Tofranil____”

In 1976, and again in 1977, plaintiff was passed over for promotion to the rank of major by a selection board, which events admittedly exacerbated his depression. Following the second passover, the Marine Corps offered plaintiff the opportunity to continue on active duty in the grade of Gunnery Sergeant to enable him to complete 20 years of active service and qualify for a pension. He declined to accept an appointment at that grade level, and was therefore discharged on June 30, 1978, pursuant to 10 U.S.C. § 6382(a) (1976) (currently at 10 U.S.C. § 632 (Supp. IV 1980)).

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Cite This Page — Counsel Stack

Bluebook (online)
5 Cl. Ct. 554, 1984 U.S. Claims LEXIS 1396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dzialo-v-united-states-cc-1984.