Young

652 F.2d 68, 226 Ct. Cl. 626, 1981 U.S. Ct. Cl. LEXIS 35
CourtUnited States Court of Claims
DecidedJanuary 30, 1981
DocketNo. 234-79C
StatusPublished

This text of 652 F.2d 68 (Young) 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
Young, 652 F.2d 68, 226 Ct. Cl. 626, 1981 U.S. Ct. Cl. LEXIS 35 (cc 1981).

Opinion

This military pay case is before us, after oral argument and briefing by the parties, on cross-motions for summary judgment. The issue presented for resolution is whether we should uphold a decision of the Board for the Correction of Naval Records (BCNR). The BCNR determined that at the time of his discharge from the armed services plaintiff was not unfit for duty by reason of physical disability, a determination which prevented him from qualifying for disability retirement benefits. For the reasons set forth below, we hold that the BCNR’s decision was not arbitrary, capricious, incorrect as a matter of law, or unsupported by substantial evidence, and we therefore affirm it.

Plaintiff served on active duty with the United States Navy from 1965 through 1975. After his return from a year of active duty in Vietnam during which plaintiff was Under considerable stress plaintiff was diagnosed in February 1971 as having acute alcoholism. Several months thereafter, he was found to have a mild personality disorder described as a "passive dependent personality,” a diagnosis that was to be reaffirmed a number of times by naval doctors and medical boards from 1971 through 1975. Plaintiffs passive dependent personality as described in the June 8,1971 Medical Board Report, was "manifested by the formation of clinging dependent relationships, difficulty in the direct verbal expression of anger, and a tendency to react to stress with disillusionment, variably impaired duty efficiency, increased imbibing of ethanol, anorexia, weight loss arid insomnia.” Plaintiff continued on duty after this diagnosis was made, and although at one point a medical board suggested his discharge, plaintiff successfully rebutted that recommendation. From 1971 through his discharge in 1975, plaintiff was at various times under treatment and evaluation for his personality disorder and alcoholism. [628]*628None of the examinations of plaintiff by medical boards of naval psychiatrists1 uncovered any evidence of neurosis or organic brain disease. In a pre-discharge medical examination in March of 1975, Lieutenant Young was diagnosed as having chronic alcoholism, in remission, and a passive dependent personality with depressive reaction. The medical record expressly stated that there was "no evidence of psychosis or neurosis and there are no symptoms of central nervous disease or disability.” He was thus found fit for discharge. The above diagnosis was again reached in a neuropsychiatric consultation in June 1975. On June 30, 1975, plaintiff was involuntarily discharged from the Navy after having been found medically fit for discharge and having been twice passed over for promotion.

Subsequent to his discharge, plaintiff obtained civilian employment with the Military Sealift Command, Atlantic (although he was found to be medically fit for duty only with a waiver),2 and according to his statement during a Veterans Administration (VA) examination in May 1977, he "has no difficulty on his job.” Plaintiffs counsel stated during oral argument that plaintiff still holds this full-time position.

After his discharge, Lieutenant Young filed for, and in 1977 received, disability benefits from the VA. He obtained a 40 percent disability rating — 30 percent for "anxiety neurosis with depressive features, moderately severe,” and 10 percent for a 1966 operation in which malignant melanoma cells were removed from his neck. (The melanoma has not recurred.)

In December of 1977, plaintiff asked the BCNR to correct his records to show that he was unfit for service as a result of physical disability at the time of his discharge — a correction that would enable plaintiff to receive disability retirement benefits. In support of his application for correction, plaintiff relied on the findings of the VA, the opinion of his private psychiatrist (see note 1 supra) and his personal statement detailing the stressful conditions he [629]*629faced in Vietnam and the effect they had on him. The BCNR considered this information, and also solicited the advice of the Central Physical Evaluation Board (PEB). The PEB advisory opinion stated that plaintiff was appropriately separated from the service as unsuitable because of passive dependent personality and chronic alcoholism in remission.3 It specifically noted that "[h]ad his case been presented to this Board, it is the Board’s judgment that he would have been found unfit for duty due to conditions not constituting physical disabilities * * (emphasis added). Taking into account all of his evidence, the BCNR declined to change plaintiffs records to reflect discharge because of physical disability.

The Board was unable to find that you were unfit for duty by reason of a physical disability when you were released from active duty, which is the prerequisite for separation or retirement by reason of physical disability.
***#*'
After careful and conscientious consideration of the entire record, the Board determined that insufficient evidence had been presented to indicate probable material error or injustice. Accordingly, your application has been denied.

Subsequent to this May 1978 action of the BCNR, Lieutenant Young brought suit in this court seeking to overturn the unfavorable ruling.

In order to successfully challenge the BCNR’s determination, plaintiff must show that it was arbitrary, capricious, incorrect as a matter of law, or not supported by substantial evidence. Dorl v. United States, 200 Ct. Cl. 626, 633, cert. denied, 414 U.S. 1032 (1973). "This court will not overturn the decision of a Correction Board without such allegations and proof.” Id. Bare allegations of arbitrariness or capriciousness such as those made in this casé are not sufficient. See, Cooper v. United States, 203 Ct. Cl. 300, 304 (1973). There is a strong presumption that the correction board [630]*630acted faithfully in discharging its duties, and the burden of making a showing to the contrary rests on plaintiff. Id. In the instant case, plaintiff has failed to carry this burden.

We find no indication of incorrectness as to the legal issues involved. In order for a serviceman to receive disability retirement benefits, a determination must be made that he or she was "unfit to perform the duties of his office, grade, rank, or rating because of physical disability incurred while entitled to basic pay * * 10 U.S.C. § 1201 (emphasis added.) The Physical Evaluation Board found that plaintiffs unfitness for service was a result of a passive dependent personality and chronic alcoholism in remission, and this diagnosis was supported by numerous earlier medical boards’ and psychiatrists’ diagnoses. These problems are not physical disabilities entitling Lieutenant Young to receive a disability retirement. The Navy’s Disability Evaluation Manual provides that there are certain conditions and defects which are not to be considered "ratable physical disabilities” even though they may be cause for administrative separation. Included in these conditions are alcoholism4 and character disorders. Secnav. Instruction 1850.4, App. A § 7 (June 1977). Personality disorders (including passive dependent personality and alcoholism)

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Related

Frank A. Hutter v. The United States
345 F.2d 828 (Court of Claims, 1965)
Hendrick v. United States
150 Ct. Cl. 437 (Court of Claims, 1960)
Dorl v. United States
200 Ct. Cl. 626 (Court of Claims, 1973)
Cooper v. United States
203 Ct. Cl. 300 (Court of Claims, 1973)

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Bluebook (online)
652 F.2d 68, 226 Ct. Cl. 626, 1981 U.S. Ct. Cl. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-cc-1981.