Fichman

196 Ct. Cl. 777, 1971 U.S. Ct. Cl. LEXIS 35, 1971 WL 4159

• Court: United States Court of Claims
• Decided: October 29, 1971
• Docket: No. 480-71
• Status: Published

Opinion

Military fay; limitation of actions; retired fay (disability). — Plaintiff, a former Army officer in the Dental Corps, seeks retirement pay, claiming he was physically unfit when he was relieved from active duty on February 20, 1946. On review of the Retiring Board proceeding, the Surgeon General concluded that there was insufficient evidence submitted to warrant finding that plaintiff’s incapacity was the result of an incident of service by reason of permanent aggravation, and recommended that plaintiff be returned to active duty for further treatment. A second Betiring Board recommended permanent limited service, finding that plaintiff’s condition existed prior to entry on active duty. Plaintiff was relieved from active duty in November 1946, the Secretary of War on November 12, 1946 approving the findings of the last Betiring Board. The Army Disability Beview Board on July 19, 1960 and the Army Board for the Correction of Military Becords on June 20, 1962 denied plaintiff relief. Plaintiff claims entitlement to retirement pay for physical disability from February 20, 1946, or alternatively from June 20, 1962. This case comes before the court on defendant’s motion to dismiss the petition. Upon consideration thereof, together with the opposition thereto, without oral argument, the court concludes that plaintiff’s alleged claim is barred by the statute of limitations, 28 U.S.C. § 2501. On October 29, 1971, by order, the court granted defendant’s motion and dismissed the petition. Plaintiff’s motion for rehearing was denied February 18, 1972.