McCallum

185 Ct. Cl. 790, 1968 U.S. Ct. Cl. LEXIS 171

• Court: United States Court of Claims
• Decided: October 4, 1968
• Docket: No. 136-63
• Status: Published

Opinion

Military fay: retired fay (disability). — Plaintiff, a former officer in the United States Army, challenges as arbitrary and capricious the action of the Secretary, acting through various boards, in failing to find him physically unfit by reason of glaucoma for active service, plaintiff being relieved on May 13,1957, from active service not by reason of physical disability, and thereafter transferred to the United States Army Reserve. Plaintiff was initially rated by the Veterans Administration 10 percent disabled. In January 1961 plaintiff filed application with the Army Board for Correction of Military Records for correction of his record to show that he was separated for physical disability. The application was denied without a hearing in February 1962 upon the determination that insufficient evidence had been presented to indicate probable material error or injustice in plaintiff’s case, but at the trial of this case before the court, it was brought out that the decision was based in part upon an incomplete and inaccurate opinion of the Surgeon General which did not take into account medical records of plaintiff’s hospitalization at the Naval Hospital at Great Lakes, HI., as well as certain elements prescribed by applicable regulations. On January 8, 1968, Commissioner Richard Arens filed his findings of fact, opinion and recommended conclusion of law to the effect that at the time of his relief from active service plaintiff was unfit within the meaning of applicable Army Regulations, that the failure of the Army Board for the Correction of Military Records to so find was arbitrary, capricious and not supported by substantial evidence, and that plaintiff is entitled to recover on his claim. The case thereafter came before the court on a stipulation of the parties filed September 30,1968, whereby plaintiff agreed to accept the sum of $10,000 in full settlement of all claims set forth in the petition and defendant consented to the entry of judgment in that amount; and with further provision incorporated in said stipulation respecting plaintiff’s entitlement to retain certain payments heretofore made to him and his entitlement to certain future payments. On October 4, 1968, judgment was entered for plaintiff in the sum of $10,000.