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Opinion of the Court This is an unusual case of mistaken identity and almost incredible negligence, as a result of which plaintiff, an officer in the United States Marine Corps Reserve, was denied his promotion to captain on March 1, 1943, was illegally and erroneously released to inactive duty on October 28, 1943, and was illegally discharged from the Marine Corps Reserve on April 11, 1944. Plaintiff sues to recover the active duty pay and allowances which he claims were due him and were wrongfully withheld from the date of his promotion to captain on March 1, 1943, to April 7, 1948, when plaintiff was finally given a legal and valid honorable discharge from the Marine Corps.

The present case is one in which a rather full statement of the facts and a discussion of the issues are necessary to a proper understanding of the case.

Plaintiff had been appointed a second lieutenant in the United States Army, Infantry Reserve, on June 1, 1938, and had thereafter transferred to the Coast Artillery Corps Reserve. On January 6, 1941, plaintiff was called to extended active duty and served thereon as a captain, Coast Artillery Corps, National Guard of the United States. On August 7, 1942 plaintiff was permitted to resign his Army commission as captain to accept a commission as a first lieutenant in the United States Marine Corps Reserve, effective August 26, 1942. Plaintiff was called to active duty in the Marine Corps on September 18, 1942.

While serving overseas in Samoa, plaintiff, on February 12, 1943, was taken to a field hospital for treatment for an attack of bronchitis. Shortly after his admission to the hospital for treatment, another patient in plaintiff's ward made a violent attempt with a dangerous weapon upon the life of a Naval physician. Plaintiff, who was not seriously ill, intervened and disarmed the violent patient. In the course of an investigation following that incident, the witnesses to what happened, who were patients in the hospital at the time, denied that anything of the sort had occurred. It was later fully established that these witnesses lied. Plaintiff was also questioned by hospital doctors concerning two previous injuries which he had mentioned but which were not noted on his hospital medical record. Plaintiff had actually suffered

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141 C. Cls. Opinion of the Court the two injuries, had been treated for them by Army doctors, and had reported the injuries to the admitting physician of the hospital but, unaccountably, no record was made of this matter. The investigating physicians in the hospital made up their minds that plaintiff had imagined the ward encounter with the violent hospital patient and had also imagined the two injuries he claimed to have incurred. At about this time, plaintiff learned that his battalion had been ordered into combat. Plaintiff had recovered completely from the attack of bronchitis and asked to be discharged from the hospital to permit him to join his battalion. Hospital authorities refused to discharge plaintiff and his reaction was, naturally enough, quite violent. On February 17, 1943, the hospital physicians erroneously diagnosed plaintiff as insane and he was confined to the locked ward of the hospital.

On March 1, 1943, while plaintiff was in the locked ward under an improper diagnosis of insanity, he was given a temporary appointment as captain, subject to conditions and procedure specified in ALNAV 142 in part as follows:

upon receipt notification of appointment in any form commanding officer direct appointee report for examination by at least one medical officer to determine physical fitness to perform duties of the rank to which appointed. Submit completed form yoke to Bureau of Naval Personnel with notation thereon "for temporary promotion or appointment as appropriate”, making reference to appointment authority. If physical defects of a Naval reserve officer have been waived previously by the Department and upon physical examination for temporary promotion are found to be essentially the same, such defects will not be considered disqualifying. If found physically qualified and if in opinion commanding officer appointee is mentally, morally, and professionally qualified and not involved disciplinary action, appointee will be informed of his appointment. By law the appointee is then entitled to the pay and allowances of the grade or rank to which appointed from the date on which his appointment was made by the President and the appointment, unless expressly declined, shall be regarded for all purposes as having been accepted on the date made. Date of rank is for precedence only and is not controlling factor for pay purposes. Formal acceptance and oath of office not required by

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Opinion of the Court law. * * * Physical examination waived in event no medical officer available within one month to conduct physical examination. In this event advise Bureau of Naval Personnel of circumstance. Bureau of Naval Personnel will be informed of appointments withheld stat

ing reasons therefor. * Plaintiff's appointment as captain, effective March 1, 1943, with rank from February 28, 1943, was illegally withheld for the stated reason, which was erroneous, that "he was sick in the U. S. Naval Hospital.”? There is no indication that the promotion was withheld for any reason other than that plaintiff was then in the hospital and confined to a locked ward under an erroneous diagnosis of insanity. His previous attack of bronchitis was not a factor in this. Under the conditions prescribed in ALNAV 142, plaintiff was, in the circumstances, erroneously and illegally deemed neither physically nor mentally qualified to accept the appointment. Plaintiff was in fact neither ill nor insane.

On March 15, 1943, plaintiff was transferred from the locked ward of the naval hospital in Samoa to the locked ward of a ship, the U. S. S. Wright, and transported back to the United States. On March 28, 1943, plaintiff was transferred to the locked ward of the U. S. Naval Hospital, Mare Island, California. On May 28, 1943, plaintiff was released from the Naval Hospital at Mare Island and ordered to proceed, without escort, to the Naval Medical Center, Bethesda, Maryland. Upon his arrival in Bethesda on June 7, 1943, plaintiff was placed in the locked ward of that hospital. On June 17, 1943, plaintiff was transferred to Saint Elizabeths Hospital for the Insane, Washington, D. C.

During the five months of plaintiff's confinements in locked wards as an insane person, he attempted in every conceivable way to persuade the medical officers that he was not insane. His growing sense of frustration and his occasionally vehement protests only served to confirm the medical authorities in their opinion that plaintiff was insane. Throughout plaintiff's confinements no technical tests administered to him by doctors resulted in the manifestation of 141 C. Cls. Opinion of the Court any symptom of a psychiatric origin, or of any physical condition of a psychogenic origin.

* Letter, dated January 31, 1945, from F. L. Churchville, Captain, U. S. Marine Corps, Headquarters, Washington, D. C., "To whom it May Concern :".


Not long after plaintiff's admission to Saint Elizabeths Hospital, he escaped and later returned armed with reports of several medical examinations attesting to his sanity. Plaintiff then appeared before a group of psychiatrists at Saint Elizabeths and told them that if he was held at the hospital he would seek a writ of habeas corpus. He was finally permitted to leave the hospital on October 30, 1943.

In the meantime, on July 30, 1943, a Board of Medical Survey convened at Saint Elizabeths Hospital and rendered a report which contained the following statement of so-called facts:

On admission to this hospital the patient was obviously making an effort to be as pleasant as possible but failed to conceal very definite tension, speaking very rapidly and lighting one cigarette from the other. He was intent upon establishing that he had no mental disorder and that he had been mistreated. He presented his case with considerable circumstantiality and detail, and made an especial effort to smooth over his past behavior difficulties, giving explanatory and personal versions of a paranoid nature. Since then he has shown improvement. He is still however, preoccupied with explaining his psychiatric difficulties on the basis of errors on the part of the physicians, who have handled his case. He needs further hospital care. His physical condition is good.

Verified history reveals that this patient was discharged from the U. S. Army on March 3, 1942, because of a mental illness diagnosed, "PSYCHONEUROSIS, ANXIETY, NEUROSIS, WITH SCHIZOID FEA TURES.” In the opinion of this Board the origin of the patient's present disability existed prior to appointment and has not been aggravated by service conditions.

[Italics supplied.] The "verified history” reported in the statement of facts of the Board of Medical Survey was the service and medical history of another John J. Egan, not this plaintiff, who had indeed been discharged from the Army on March 3, 1942 as an insane person. Despite the asserted verification referred to, this other Egan had a service serial number dif

• It is interesting to note in this connection that plaintiff's personal versions of what had happened turned out to be the correct versions.


Opinion of the Court ferent from the serial number of plaintiff, and his discharge from the Army antedated plaintiff's by several months. This astounding piece of misinformation and carelessness was transmitted to the Board of Medical Survey by the Adjutant General of the Army through the Bureau of Medicine and Surgery.

On the basis of the remarkable and untrue findings of fact quoted above, the Board of Medical Survey, without further inquiry into the matter, recommended that plaintiff appear before a United States Marine Corps Retiring Board "in order that his best interests be fully protected”, inasmuch as he was deemed to be permanently “unfit for service” by reason of an unclassified psychosis which had existed prior to his Marine Corps service and had not been aggravated by such service.

On September 24, 1943, a Marine Corps Retiring Board was convened pursuant to the incorrect and erroneous recommendation of the Board of Medical Survey. On October 25, 1943, the Commandant of the Marine Corps notified plaintiff that as of October 28, 1943, he would be relieved from active duty and be assigned to the Third Reserve District; that upon his discharge from treatment at Saint Elizabeths Hospital, he should proceed to his home in Connecticut. On October 28, 1943, plaintiff was relieved from active duty and his pay and allowances were discontinued. On October 30, 1943, plaintiff was discharged from treatment at Saint Elizabeths Hospital.

On November 27, 1943, plaintiff was advised by the Commandant of the Marine Corps that:

In view of the recommendation of the Board of Medical Survey convened in your case, which was approved by the Chief of the Bureau of Medicine and Surgery, it is the intention of the Commandant, U. S. Marine Corps, to recommend to the proper authority that you be discharged as an officer of the Marine Corps

Reserve. Plaintiff was advised that he might make such statement as he might desire pursuant to Art. 13–111 (9) Marine Corps Manual. That regulation provides as follows:

Discharge of Officers

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