Pfister v. United States

203 Ct. Cl. 459, 1974 U.S. Ct. Cl. LEXIS 87, 1974 WL 21676
CourtUnited States Court of Claims
DecidedJanuary 23, 1974
DocketNo. 418-72
StatusPublished
Cited by2 cases

This text of 203 Ct. Cl. 459 (Pfister 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
Pfister v. United States, 203 Ct. Cl. 459, 1974 U.S. Ct. Cl. LEXIS 87, 1974 WL 21676 (cc 1974).

Opinion

DtjRfee, Senior Judge,

delivered the opinion of the court: Plaintiff sues to recover the difference between the disability retirement pay of a major in the United States Air Force, which he has actually received since the date of his retirement, and that of a lieutenant colonel, to which he claims entitlement. Both parties have filed motions for summary judgment pursuant to rulelOl.1

On May 5, 1970, plaintiff was retired for physical disability in the grade of major with more than 21 years of service. As of that date he was transferred to the Ketired Reserve in the grade of lieutenant colonel.

In January 1970, plaintiff requested separation in lieu of retirement. As a Reserve Officer he had been given a date of separation of March 31, 1970.

Plaintiff was notified on March 16, 1970, of his selection for promotion to the grade of lieutenant colonel in the Air [462]*462Force Eeserve. The effective date of his promotion, originally January 7,1971, was changed to October 2,1970, by order of the Secretary of the Air Force as a result of a recommendation by the Air Force Board for the Correction of Military Eecords.

On March 17,1970, one day after his notification of selection for promotion, plaintiff received a physical examination in connection with his application for separation. As a result of that examination his records were referred to a Medical Board which found plaintiff was suffering from- organic heart disease, hiatal hernia and diabetes mellitus. The Medical Board recommended that plaintiff meet with a Physical Evaluation Board.

On April 9, 1970, the Physical Evaluation Board found plaintiff unfit for further military duty by reason of the three disabilities found by the Medical Board, and found further that plaintiff’s disability was incurred while entitled to receive basic pay. The Physical Evaluation Board recommended permanent retirement with a disability rating of 80 percent.

Plaintiff concurred in the recommended findings of the Physical Evaluation Board, and was retired effective May 5, 1970. His retirement order indicates that plaintiff was retired for physical disability in accordance with the prolusions of 10 U.S.C. § 1201 (Supp. IV, 1968)2 in the grade of major, [463]*463the highest rank held by him on active duty, with assignment to the Retired Reserve in the grade of lieutenant coloneL

Plaintiff’s June 1,1971 application to the Air Force Board for the Correction of Military Records claiming entitlement to the retired pay of a lieutenant colonel was denied on July 19, 1971. Thereafter, plaintiff petitioned this court for relief.

The question presented is whether the physical disability for which plaintiff was retired was found to exist as a result of his physical examination for promotion, so as to entitle him to the retired pay of a lieutenant colonel, rather than to that of a major, pursuant to 10 U.S.C. § 1372(3) (Supp. IV, 1957). Section 1372 of Title 10 provides, in pertinent part, as follows:

Unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:
(1) The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired. *****
(3) The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of his physical examination for promotion.
íjí # # ❖ ❖

The Government contends that plaintiff’s case falls squarely within subsection (1) of section 1372 in that he was retired pursuant to 10 U.S.O. § 1201 and was serving as a major on the date when he retired. The Government argues [464]*464that plaintiff is not entitled to receive the retirement pay of a lieutenant colonel because the physical disability for which he was retired was not found to exist as a result of a physical examination for promotion.

Plaintiff maintains that the March 17, 1970 physical examination, initiated by him in conjunction with his voluntary application for separation, and conducted one day after notification of his selection for promotion, constituted a physical examination “for promotion,” within the purview of subsection (3) of 10 U.S.C. § 1372 and this court’s holdings in Leonard v. United States, 131 Ct. Cl. 91, 128 F. Supp. 957 (1955); Fredrickson v. United States, 133 Ct. Cl. 890, 138 F. Supp. 265 (1956); and Williams v. United States, 145 Ct. Cl. 513, 172 F. Supp. 439 (1959).

The issue in this case was decided more than a decade ago in Brandt v. United States, 155 Ct. Cl. 345 (1961), where we held that because the disability of plaintiff therein was not actually found to exist as a result of a physical examination given in connection with effecting a promotion, he did not qualify under the statutory provision to have his retirement pay computed on the basis of the rank to which he would have teen promoted.3

The facts in the Brandt case are strikingly similar to those in the case at bar. Plaintiff in Brandt, a commander in the Navy, underwent a routine physical examination on December 11, 1944, as a result of which he was hospitalized. While in the hospital Brandt was selected for promotion in the rank of captain, and his selection received Presidential approval on April 19, 1945. On May 3, 1945 a Board of Medical Survey determined that Brandt was unfit for continued duty and recommended that he appear before the retiring board. There had been no connection between this medical finding and Brandt’s selection for promotion. On May 19, 1945, Brandt was notified of his selection for promotion and was informed that he would be assigned an ap[465]*465propriate billet in that rank at the earliest time consonant with the needs of the service. However, the Naval Retiring Board determined that he was physically incapable of performing the duties of his rank; he was placed on the retired list in the grade of commander.

We held in Brandt that some degree of connection between the physical examination given and the proposed promotion must be established, and that the mere fact that plaintiff was retired for physical disability at a time when he was also being considered for promotion was insufficient to qualify under the statute for retirement pay on the basis of the grade to which he would have been promoted. The Brmvlt precedent controls the disposition of this case.

The statutory prescription for entitlement under 10 U.S.C.

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Bluebook (online)
203 Ct. Cl. 459, 1974 U.S. Ct. Cl. LEXIS 87, 1974 WL 21676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pfister-v-united-states-cc-1974.