Hazan v. United States

13 Cl. Ct. 66, 1987 U.S. Claims LEXIS 155
CourtUnited States Court of Claims
DecidedAugust 27, 1987
DocketNo. 302-86C
StatusPublished
Cited by2 cases

This text of 13 Cl. Ct. 66 (Hazan 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
Hazan v. United States, 13 Cl. Ct. 66, 1987 U.S. Claims LEXIS 155 (cc 1987).

Opinion

OPINION

YOCK, Judge.

The plaintiff seeks military back pay, correction of his military records to reflect retirement for medical disability, and other relief. For the reasons discussed herein, the defendant’s Motion for Summary Judgment is granted and the plaintiff's complaint is to be dismissed. Because the Court finds that a settlement release executed by the plaintiff fully satisfied the present claim, the plaintiff’s Cross-Motion for Summary Judgment and the defendant’s Motion to Stay Consideration of Plaintiff’s Cross-Motion for Summary Judgment are denied as moot.

Facts

The plaintiff, Col. S.J. Hazan, is a medical doctor and a retired officer in the United States Army Reserve. Colonel Hazan served on active duty in Bamberg, Germany, from June 1976 through July 1978 as an Army physician. While on this tour of duty, the plaintiff suffered several medical problems (including cardiac illness and spinal problems) which resulted in his being placed on limited medical duty with restricted activities. At his request, he was honorably discharged from active duty service in Germany on July 14,1978 and transferred to the Army Reserve. Effective November 17,1978, the plaintiff was voluntarily assigned to an Army Reserve unit in pay status located at the 6253d Army Hospital, Hamilton Field, California. On August 18, 1979, the Reserve Components Personnel and Administrative Center (RCPAC) of the Department of the Army advised the plaintiff by letter that he did not meet the standards for retention in the Army Reserve and therefore must elect to be discharged or to be transferred to the nonpay Retired Reserve. The plaintiff elected to be retired, and on December 28, 1979, he was discharged from his pay unit position and transferred to the Retired Reserve.

On May 9, 1980, the plaintiff submitted his initial application for correction of his military records to the Army Board for the Correction of Military Records (hereafter the Board or ABCMR). In that application, the plaintiff sought to have his 1978 active duty discharge corrected and changed to indicate that he was given a medical disability discharge. This application was initially denied by the Board on March 25, 1981 due to insufficient evidence. There followed, however, a series of reconsideration decisions by the Board (prompted by the plaintiff’s requests) terminating in the final Board decision dated July 10, 1985.

Prior to the Board’s final decision being issued, however, the Army (RCPAC) on September 10, 1982 revoked its retirement orders issued to the plaintiff on December 28, 1979 and reinstated him to active reserve status in the Army Reserve. The Army cited administrative error, 'thereafter, the plaintiff amended his claim before the Board to include back pay for the reserve pay and allowances lost from December 28, 1979 forward.

As indicated above, on July 10, 1985, the Board issued its final opinion in the plaintiff’s case. In summary, the Board held that the plaintiff was not entitled to medical disability retirement from his active duty discharge on July 14, 1978, but that he was entitled to have all pay and benefits he would have received as a paid Army reservist from December 28, 1979 through September 10, 1982, since the Army had erroneously transferred him to the Retired Reserve as of that date. The plaintiff was not entitled to any Reserve pay and benefits from September 10,1982 forward, how[68]*68ever, because he had failed to produce sufficient evidence to justify that relief. The plaintiff was again placed in retired status on September 28, 1984. The Board’s conclusions and recommendations in pertinent part state:

CONCLUSIONS:
1. After reviewing all of the evidence of record, the prior reviews and the applicant’s current contentions, the Board reaffirms its prior decisions in denying the applicant’s requests to show that he was separated by reason of physical disability.
2. Further, taking into consideration the current standards for fitness, which requires [sic] “world-wide deployability” under field conditions, the applicant is not fit for return to active duty. In addition, although qualified for retention and/or separation at the time of his release from active duty on 14 July 1978, his medical disqualification for retention as an active member of the USAR appears proper.
3. Notwithstanding the foregoing, the applicant was erroneously transferred to the Retired Reserve on 28 December 19781 and remained in such status until 10 September 1982, when he was restored to the active Reserve.
4. While the applicant has been credited with sufficient points to make RYE 12 May 1979 and 12 May 1980 as qualifying years, he has only been credited with membership points after RYE 12 May 1980.
5. Accordingly, it appears that the applicant also should be entitled to have RYE 12 May 1981 and RYE 12 May 1982 counted as qualifying years and credited with at least 50 retirement points for these two years.
6. Had it not been for the erroneous transfer to the Retired Reserve on 28 December 1978, it is reasonable to presume that the applicant would have continued to participate in the USAR program during the period 28 December 1978 until his reinstatement on 10 September 1982.
7. In view of the foregoing, the applicant is entitled to all benefits that would have accrued as a result of his participation in the scheduled drills, annual training and active duty for training with his assigned USAR unit from 28 December 1978 through his reinstatement 10 September 1982.
8. Since the applicant has submitted insufficient evidence to indicate that the Department failed to provide him with the opportunity to earn qualifying points or to participate in the USAR after his reinstatement on 10 September 1982, he is not entitled to have his records corrected to show satisfactory participation after that date.
RECOMMENDATION:
1. That all of the Department of the Army records of SOL J. HAZAN be corrected to show that he is entitled, in the grade of 06, to all benefits, to include retirement points, that he would have accrued from participating in all scheduled drills, annual active duty for training and/or annual training of his assigned Reserve unit, Headquarters, 6253d Army Hospital, Hamilton Field, California from 28 December 1978 through 10 September 1982.
2. That so much of the application which is in excess of the foregoing be denied.

ABCMR Proceedings, AC 82-14394D (July 10, 1985) (emphasis added). The Board’s decision was approved by the Deputy Assistant Secretary of the Army on August 5, 1985.

Plaintiff, in the instant case, seeks the identical relief denied to him by the Board. Specifically, Colonel Hazan seeks a declaration that his discharge from active duty was invalid, an order from this Court requiring evaluation of the plaintiff for medical disability retirement, or his restoration to active duty. Additionally (and apparently in the alternative), the plaintiff seeks all [69]*69active reserve duty pay for the period September 10, 1982 to the present.

Prior to filing his case in this Court, the plaintiff executed USAFAC (United States Army Finance and Accounting Center) Form 34-36FL.

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Related

Peckham v. United States
61 Fed. Cl. 102 (Federal Claims, 2004)
S.J. Hazan, Col., Usar, Ret. v. The United States
847 F.2d 842 (Federal Circuit, 1988)

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Bluebook (online)
13 Cl. Ct. 66, 1987 U.S. Claims LEXIS 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hazan-v-united-states-cc-1987.