Reidt v. United States

13 Cl. Ct. 741, 1987 U.S. Claims LEXIS 219, 1987 WL 20988
CourtUnited States Court of Claims
DecidedNovember 24, 1987
DocketNo. 719-87 C
StatusPublished
Cited by12 cases

This text of 13 Cl. Ct. 741 (Reidt 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
Reidt v. United States, 13 Cl. Ct. 741, 1987 U.S. Claims LEXIS 219, 1987 WL 20988 (cc 1987).

Opinion

ORDER

NAPIER, Judge.

This case comes before the Court on plaintiff’s pro se “Claim for correction of military records, 28 USC 1491, and recovery of deprived disability retirement pay * * * ” filed November 24, 1987.

As explained more fully below, plaintiff’s suit is hereby dismissed as plaintiff’s claims are precluded under the doctrine of res judicata.

Facts

On August 27, 1985, plaintiff filed a complaint in the United States Claims Court seeking retroactive disability retirement and damages in excess of $1,100,000 for himself and his children.

In an unpublished memorandum of decision filed March 6, 1986, Judge Kenneth R. Harkins denied plaintiff’s motion for summary judgment and granted defendant’s cross-motion for summary judgment stating: “It is clear that this court does not have jurisdiction of plaintiff’s claims because the statute of limitations long since has run. Soriano v. United States, 352 U.S. 270, 273-74, 77 S.Ct. 269, 271-72, 1 L.Ed.2d 306 (1957); Friedman v. United States, 159 Ct.Cl. 1, 310 F.2d 381, cert. denied, 373 U.S. 932, 83 S.Ct. 1540, 10 L.Ed.2d 691 (1963).”

Because the Court is dismissing the above captioned case on the basis of res judicata, a review of the facts in plaintiff’s prior suit is necessary. For purposes of convenience that section of Judge Harkins’ opinion entitled “FACTS” is quoted as follows:

Plaintiff enlisted in the United States Coast Guard on December 11,1951, for a period of 3 years. He reported to the Coast Guard Cutter Falgout, based in Seattle, Washington, on April 23, 1952, and on May 12, 1952, he failed to return from authorized leave. He turned himself in to the United States Public Health Service Hospital in Seattle on May 13, 1952, after the Falgout had gone to sea.
In the hospital, plaintiff underwent a psychiatric evaluation. On May 16,1952, [742]*742he was diagnosed as suffering from a personality disorder of the schizoid type, and it was determined plaintiff was not fit for duty.
On May 16, 1952, a Board of Medical Survey recommended that he be discharged in accordance with applicable Coast Guard regulations. It was explained to plaintiff that the Board of Medical Survey had made the following findings: (1) that he was suffering from a personality defect, namely a schizoid personality; (2) that it was believed that this condition existed prior to his entry on duty; and (3) that it was neither incurred in nor aggravated by his service. As a result of these findings, plaintiff was told he would not be entitled to severance pay or disability retirement pay. Plaintiff was told that he could challenge the findings of the Board of Medical Survey by invoking his right to a hearing before a Physical Evaluation Board. Plaintiff signed a waiver of that right, and declined to submit any statement in rebuttal to the findings of the Board of Medical Survey.
On July 7, 1952, plaintiff was issued a general discharge for the convenience of the Government. He received neither disability retirement pay nor severance pay as part of that discharge.
On December 10, 1980, plaintiff submitted a petition to the DOTBCMR in which he asked that his service records be corrected to reflect that he had been discharged on medical grounds with an honorable discharge, with a service connected disability, and that he suffered from a phobic condition known as agoraphobia. Plaintiff asserted that he had no knowledge of agoraphobia until approximately March 1, 1980, and that this phobic condition was traceable to an incident at the recreation hall during his Coast Guard training when a 25 lb. can of sand had fallen on his head. Plaintiffs application included two letters from a psychologist, Donald L. Tasto, Ph.D., that indicated that plaintiff did, indeed, suffer from agoraphobia, and that this condition had been precipitated by an accident he experienced while in the Coast Guard. Plaintiff also submitted literature on agoraphobia, and the affidavit of a former shipmate, which stated plaintiff had received a blow to the head in January or February 1952 and rendered unconscious.
On June 5, 1981, the DOTBCMR denied plaintiffs request for relief. The board noted that in cases involving mental disorders, the examination should be conducted by a medical doctor who is a specialist in psychiatry, and that plaintiff in 1952 had been examined by a psychiatrist who diagnosed he had a schizoid personality that existed at the time of enlistment. Since Dr. Tasto was a psychologist, rather than a psychiatrist and a medical doctor, his 1981 statement was not sufficient to demonstrate that the diagnosis in 1952 of a schizoid personality was incorrect.
On June 28, 1981, plaintiff requested reconsideration by the DOTBCMR, and submitted additional non-medical evidence to support his claim for relief. Plaintiff asserted he was unable financially to obtain medical evidence. The DOTBCMR referred plaintiffs records to the Chief, Office of Health Services, Coast Guard. On November 30, 1981, the Chief, Operational Medical Division, responded that there was sufficient evidence in the record to support the original diagnosis, that a current psychological examination was not likely to be of value, and that there was no information in the records which would support a conclusion that plaintiff suffered from a ratable disability at the time of discharge. Plaintiff did not provide any medical evidence in rebuttal. The DOTBCMR on April 22, 1982, denied the petition for reconsideration.
In November 1982, plaintiff petitioned the DOTBCMR for reconsideration and submitted medical evidence that included the results of a psychiatric examination by Dr. A.B. Hardy, M.D. Dr. Hardy’s conclusions, in a letter dated November 9, 1982, indicated his belief that plaintiff had been suffering from agoraphobia since 1952, that plaintiff’s condition had [743]*743worsened until it now severely impeded plaintiffs ability to function normally. Dr. Hardy indicated that plaintiff exhibited schizoid tendencies.
In order to clarify Dr. Hardy’s conclusions, the DOTBCMR, on December 28, 1982, wrote to Dr. Hardy. The board told Dr. Hardy it was concerned with plaintiff’s alleged disability when discharged in 1952, and asked for his advice as to the percentage of disability plaintiff might have been suffering at that time. Dr. Hardy, on January 12, 1983, replied that all he could say presently was that plaintiff “is totally disabled” by the effects of agoraphobia. Because he did not know plaintiff in 1952, Dr. Hardy did not offer an opinion as to whether plaintiff was incapacitated at that time. DOTBCMR in a decision on reconsideration, dated April 21, 1983, stated that plaintiff’s evidence, including the statements of Dr. Hardy, did not constitute persuasive evidence from an appropriate medical authority that at the time of plaintiff’s discharge in 1952 he suffered from a ratable disability.
In June 1984 plaintiff again sought reconsideration by the DOTBCMR. Plaintiff submitted new evidence.

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Bluebook (online)
13 Cl. Ct. 741, 1987 U.S. Claims LEXIS 219, 1987 WL 20988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reidt-v-united-states-cc-1987.