Rutherford v. United States

573 F.2d 1224, 216 Ct. Cl. 163, 1978 U.S. Ct. Cl. LEXIS 122
CourtUnited States Court of Claims
DecidedApril 19, 1978
DocketNo. 500-76
StatusPublished
Cited by8 cases

This text of 573 F.2d 1224 (Rutherford 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
Rutherford v. United States, 573 F.2d 1224, 216 Ct. Cl. 163, 1978 U.S. Ct. Cl. LEXIS 122 (cc 1978).

Opinion

Kashiwa, Judge,

delivered the opinion of the court:

Plaintiff, a former Naval Reserve Officer, requests in this case a change in his Naval disability rating from 20 percent to at least 40 percent with concomitant disability retirement. The case is before this court on cross motions for summary judgment. There is no genuine issue as to any material fact. For the reasons hereafter stated, we hold in defendant’s favor.

Plaintiff accepted an appointment as a reserve officer in the U. S. Navy in the grade of ensign on August 25, 1962. He was assigned to active duty and reported aboard ship on September 7, 1962. On November 5, 1962, he experienced what was termed a generalized convulsion on board ship. He was transferred to the U. S. Naval Hospital, Chelsea, Massachusetts, for evaluation, treatment, and disposition. There it was determined by Naval medical authorities that plaintiffs condition was within normal limits and that he was fit for duty. No further convulsive incidents occurred while petitioner was on active duty.1 After completing approximately two years of active duty, plaintiff was released to inactive duty on August 13, 1964. At a physical examination preceding release to inactive duty, he was found "physically qualified to perform all the duties of his rank at sea and on foreign shore, and for release to inactive duty.” Plaintiff then entered upon ready reserve duty. On [166]*166October 16, 1971, a Dr. Lawrence W. Martin, at plaintiffs request, sent to the Commandant of the Eighth Naval District a description of plaintiffs psychological disorder and a request that plaintiff be transferred to a noncombatant position in the reserves or, if this were not possible, that plaintiff be considered for a medical disability discharge.

A medical examination of plaintiff was conducted by Navy doctors on October 16, 1971. It was determined by the Chief, Bureau of Medicine and Surgery, that plaintiff was not qualified for retention in the Naval Reserve due to convulsive disorder. By letter dated November 16, 1971, plaintiff was informed of this decision and of his right to appear before a Physical Evaluation Board. By telegram of November 30, 1971, plaintiff requested a Physical Evaluation Board to evaluate his physical fitness for continuation in the Naval Reserve. An informal Physical Evaluation Board determined plaintiff to be not physically qualified to serve in the Naval Reserve with no ratable disability. Plaintiff demanded a formal hearing to rebut the findings of the informal board and such a hearing was held on February 9, 1972. Plaintiff was represented by counsel. The formal Physical Evaluation Board also found that plaintiff was "not physically qualified for active duty in the U. S. Naval Reserve by reason of convulsive disorder, etiology undetermined.” On February 25, 1972, the members of the Physical Review Council informed the Secretary of the Navy that they concurred in the findings of the formal Physical Evaluation Board and the Judge Advocate General concurred. Plaintiff was then informed of the March 20, 1972, decision of the Secretary of the Navy, concurring with and finalizing the Physical Evaluation Board decision. Plaintiff elected to maintain his position in the inactive Naval Reserve but was discharged as of June 30, 1972, by reason of two passovers for promotion.

Plaintiff applied to the Board for the Correction of Naval Records on April 22, 1974, contending that he should have been retired by reason of physical disability on August 13, 1964, based upon the civilian medical findings and on the rating awarded him by the Veterans Administration. Plaintiffs counsel at that time submitted a brief and [167]*167supporting documents. Acting on the recommendation of the Bureau of Medicine and Surgery, the Board for the Correction of Naval Records on July 2, 1974, forwarded the matter to the Office of Naval Disability Evaluation for further review. That office concurred in a Physical Evaluation Board recommendation that plaintiff be granted a 20 percent disability rating as of August 13, 1964, and so informed the Board for the Correction of Naval Records on August 6, 1974. Upon consideration, both the Physical Evaluation Board and the Physical Review Council reconfirmed their decision.

Plaintiffs counsel appeared before the Board for the Correction of Naval Records on November 25, 1974, and presented oral argument in support of plaintiffs application. The Board also considered plaintiffs Veterans Administration records. In its opinion, dated January 6, 1976, the Board recommended:

That Petitioner’s naval record be corrected, where appropriate, to show:
a. That he was not released from active duty on 13 August 1964 and that he was not transferred to the U. S. Naval Reserve.
b. That he was not discharged from the naval service on 30 June 1972.
c. That the Secretary of the Navy on 13 August 1964, while Petitioner was entitled to receive basic pay, determined him unfit to perform the duties of his rank by reason of physical disability, incurred while entitled to receive basic pay by reason of Convulsive disorder, etiology undetermined and Explosive personality disorder, following convulsive disorder; that his disability is not due to intentional misconduct or willful neglect and was not incurred during a period of unauthorized absence; that his disability is considered to be the proximate result of the performance of active duty; that his disability is considered to be 20% in accordance with the Standard Schedule for Rating Disabilities in current use by the Veterans Administration Code Numbers:
[168]*168VAC # 8910 - Convulsive disorder, etiology undertermined, .10%
V AC # 9307 - Explosive personality disorder, following convulsive disorder, .. .10%
19 [sic] = 20%;
and that accepted medical principles indicate that his disability may be of a permanent nature, and therefore the Secretary of the Navy directed that he be discharged from the naval service by reason of physical disability with severance pay effective 13 August 1964 in the grade of Lieutenant (junior grade), USNR.
RECOMMENDATION:
The Board recommends that the Department of the Navy pay to Petitioner, or other proper party or parties, any monies lawfully found to be due as a result of the foregoing correction of naval record, less any monies paid by the Department of the Navy or the Veterans Administration in connection with his service-connected disability.

The findings of the Board were approved by the Secretary of the Navy and plaintiff was informed of the approval on January 15,1976. Plaintiff was paid the monies that flowed from this decision.

By letter dated April 1, 1976, plaintiff requested that the Board reconsider its decision and take corrective action to "indicate that [plaintiffs] disability was at least 30% effective August lá, 1964.” This request was denied by the Board. Plaintiff then filed his petition in this court.

In challenging the correctness of the Secretary of the Navy’s determination concerning the percentage of disability, plaintiff assumes a difficult task. This court has stated

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Bluebook (online)
573 F.2d 1224, 216 Ct. Cl. 163, 1978 U.S. Ct. Cl. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rutherford-v-united-states-cc-1978.