Price v. United States

149 F. Supp. 181, 137 Ct. Cl. 685, 1957 U.S. Ct. Cl. LEXIS 170

• Court: United States Court of Claims
• Decided: March 6, 1957
• Docket: No. 422-55
• Status: Published

Opinions

Whitaker, Judge,

delivered the opinion of the court:

Plaintiff sues for disability retirement pay.

She was on active duty as a Second Lieutenant in the Army Nurse Corps from April 17, 1942, to October 14, 1945, serving for the most part in the North African and European Theaters of War.

In April 1944 she sustained an injury to her hack in a jeep accident, but continued her duties until finally, in December, partly as a result of the injury and partly from overwork, she collapsed and was returned to the United States and sent to Ashburn General Hospital in Texas on March 8,1945.

While at the hospital, she went before a Disposition Board, which found her fit for general duty and ordered her on terminal leave until October 14, 1945, when she was discharged.

She did not request a hearing before a Retiring Board, and registered no protest against the action of the Disposition Board until July 23, 1953, nearly eight years later, when she applied to the Army Board for Correction of Military Records for a determination of her eligibility for retirement pay. She alleged that at the time she appeared before the Disposition Board prior to her separation, there was a temporary remission of her symptoms, which created the impression that her condition was better than it actually was, and that in consequence an injustice had been done her. She asked that she be permitted to appear before a Physical Evaluation Board or the Board for the Correction of Military Records.

She was sent to Walter Reed Hospital for examination. Afterwards, a board of three doctors found that she was not entitled to appear before a Retiring Board. Later, the Board for the Correction of Military Records denied her application for a rehearing.

We have held many times that jurisdiction is conferred on the Army boards and the Secretary to determine a person’s fitness for Army service and his or her eligibility to retirement for disability, and that this court has no jurisdiction in the matter unless the Board and the Secretary acted arbitrarily, or otherwise unlawfully. The facts alleged do not show arbitrary action.

Moreover, plaintiff’s right to sue in this court accrued, if at all, when the Disposition Board on June 30, 1945, found her fit for general duty, instead of ordering her before a Retiring Board. MacFarlane v. United States, 134 C. Cls. 755; Girault v. United States, 133 C. Cls. 135; Odell v. United States, 134 C. Cls. 634; Rosnick v. United States, 132 C. Cls. 1, rehearing denied 132 C. Cls. 6. This was more than six years before the filing of her petition.

Defendant’s motion to dismiss is granted, and plaintiff’s petition is dismissed.

It is so ordered.

Laramore, Judge, concurs. Jones, Chief Judge, concurs in the result.