von Gehr v. United States

Court of Claims

von Gehr v. United States

152 Ct. Cl. 301, 1961 U.S. Ct. Cl. LEXIS 47, 1961 WL 8719

CourtUnited States Court of Claims

DecidedJanuary 18, 1961

DocketNo. 406-59

StatusPublished

This text of 152 Ct. Cl. 301 (von Gehr 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

von Gehr v. United States, 152 Ct. Cl. 301, 1961 U.S. Ct. Cl. LEXIS 47, 1961 WL 8719 (cc 1961).

Pincite

Opinion

Laramore, Judge,

delivered the opinion of the court:

Plaintiff, a retired officer of the Regular Army, brings this suit to recover a sum of retired pay allegedly due him over a period beginning October 1, 1949, to date of judgment. He alleges payment was denied him by reason of the arbitrary, capricious and unlawful action of the Army Board for Correction of Military Records, and the Secretary of the Army in failing to correct his record in accordance with the facts and the law.

The case arises on plaintiff’s motion and defendant’s cross-motion for summary judgment and presents the question as to whether or not the Correction Board was arbitrary and acted unlawfully in computing plaintiff’s percentage of disability for retirement pay purposes.

The facts, as disclosed by the pleadings, exhibits and respective motions, are as follows:

Plaintiff was appointed a first lieutenant in the Regular Army on October 31, 1920. He was retired for physical disability on May 25, 1922, under the provisions of section 1251, Revised Statutes. He was recalled to active duty on September 21,1942. While so serving, he attained the temporary grade of lieutenant colonel, AUS. On December 31, 1945, he was released to inactive duty on the retired list in the grade of first lieutenant. He was advanced on [303]*303•the retired list, effective June 29,1948, under section 203(a) of the Act of June 29, 1948, 62 Stat. 1085.

On February 15,1949, plaintiff applied to the Army Board for Correction of Military Records requesting the correction of his records to reflect that he had been retired for physical disability in the grade of lieutenant colonel, effective January 1, 1946, by reason of having incurred additional disability while serving in a higher temporary grade, in accordance with section 4 of the Act of June 29, 1943, 57 Stat. 249. By Letter Order dated July 9,1951, the Secretary of the Army directed that plaintiff’s military records be corrected to reflect that he had been promoted on the retired list to the grade of lieutenant colonel as of January 1, 1946.

In a decision of the Comptroller General dated April 19, 1954, reported in 33 Comp. Gen. 479, it was held that the findings of the Correction Board did not support the retroactive promotion, within the meaning of the provisions of the Act of June 29, 1943. As a result of this decision, the Correction Board again corrected plaintiff’s records to meet the objection of the Comptroller General.

On September 15, 1958, plaintiff again applied to the Correction Board, as he had been advised by the Department of the Army, for a correction of his records to reflect an election, effective October 1, 1949, pursuant to section 411 of the Career Compensation Act of 1949, 63 Stat. 802, 823, to receive retired pay based upon 80 percent disability, at the rates prescribed by the Career Compensation Act of 1949. The Secretary of the Army, on December 11, 1958, granted the relief requested, except that the records were corrected to reflect that, upon evaluation under the provisions of section 411 off the Career Compensation Act of 1949, it was determined that on December 31, 1945, he was rated 60 percent disabled, in accordance with the provisions of the Veterans Administration Schedule of Rating Disabilities, instead of 80 percent disabled. This was because, as shown by the record, the additional disability incurred was rated at 20 and 10 percent respectively.

On April 30,1959, plaintiff applied for reconsideration by the Correction Board and for further correction of his rec[304]*304ords to show that he was 80 percent disabled, instead of 60 percent disabled. A bearing on the application was held on June 24, 1959.

On August 13, 1959, the Secretary of the Army affirmed his action of December 11, 1958, determining that plaintiff had been 60 percent disabled on December 31, 1945, in accordance with the provisions of the Veterans Administration Schedule of Eating Disabilities then in effect, as required by the Career Compensation Act of 1949.

The position taken by plaintiff is that the Army Physical Eeview Counsel correctly found that on the occasion of his initial retirement on May 25, 1922, his disability rating was 50 percent. Further, that the Army Board for Correction of Military Eecords found that plaintiff, between September 21, 1942, and December 31, 1945, had incurred additional disability during that period amounting to not less than 30 per centum permanent. Plaintiff then argues that simple arithmetic discloses that the original 50 percent added later to the 30 percent must equal 80 percent, thereby making him 80 percent disabled since October 1,1945, within the purview of section 411 of the Career Compensation Act of 1949, supra. Since the Correction Board found him only 60 percent disabled, plaintiff argues that this finding is arbitrary, capricious and unlawful.

On the other hand the defendant contends that the 60 percent disability rating was computed in accordance with the “Standard Schedule of Eating Disabilities in current use by the Veterans Administration,” as specifically required by section 411 of the Career Compensation Act of 1949, supra, and therefore the 60 percent disability rating cannot be held to be arbitrary, capricious and contrary to law.

Plaintiff’s petition and brief shows that he did apply to the Correction Board asking that his military record reflect his election pursuant to section 411 of the Career Compensation Act, supra, to receive retired pay based upon a disability of 80 percent. It is further disclosed that it was the refusal to so rate him that 'he says is wrong.

Section 4 of the Act of June 29, 1943, 57 Stat. 249, provides:

[305]*305Any officer of tbe Regular Army on the retired list who shall have been placed thereon by reason of physical disability shall, if he incurs additional physical disability while serving under a temporary appointment in a higher grade, be promoted on the retired list to such higher grade and receive retired pay computed as otherwise provided by law for officers of such higher grade: Provided, That the Secretary of War, or such person or persons as he may designate, shall find that the_ additional physical disability is incident to service while on active duty in the higher grade and not less than 30 per centum permanent.

Section 411 of the Career Compensation Act of 1949, supra, provides in pertinent part as follows:

Pursuant to such regulations as the President may prescribe, (1) any member or former member of the uniformed services heretofore retired by reason of physical disability and now receiving or entitled to receive retired or retirement pay; * * * may elect within the five-year period following * * * [October 1, 1949], (A) to qualify for disability retirement pay under the provisions of this Act and, dependent on his qualification, shall be entitled to receive either the disability retirement pay or the disability severance pay prescribed in this title: Provided, That the determination of the percentage of disability as prescribed in sections 402(a) (3), 402(b)(3), or 402(c)(3), as applicable, shall be based upon the disability of such member, former member, or person, as of the time he was last retired or as of the time he was granted retirement pay, as the case may be, and the percentage of such disability will be determined in accordance with the standard schedule of rating disabilities in current use by the Veterans Administration; * * *.

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