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141 C. Cls. Opinion of the Court (9) An officer will be afforded a reasonable time, prior to discharge, to submit to the Secretary of the Navy, via official channels, any statement he may desire to make; which opportunity will be considered as having been afforded through the mailing of notice to his official

address. It does not appear from the record on what date the Retiring Board, convened on September 24, 1943, made its findings and conclusions, but on November 30, 1943, those findings were approved by the President and they concluded that (1) plaintiff was incapacitated for active service by reason of psychosis unclassified, (2) that plantiff's incapacity had existed prior to September 18, 1942, when plaintiff was assigned to active duty in the Marine Corps, (3) that the incapacity was permanent, not the result of an incident of plaintiff's service in the Marine Corps, and not the result of his own misconduct.

On December 5, 1943, plaintiff submitted a statement protesting the proposed discharge from the Marine Corps Reserve. On December 11, 1943, the Commandant of the Marine Corps wrote to plantiff advising him of the above noted findings of the Naval Retiring Board; that the findings had been reviewed by the Bureau of Medicine and Surgery, by the office of the Commandant of the Marine Corps, and by the Judge Advocate General of the Navy prior to submission to the President for final action which was taken on November 30, 1943. The letter then stated :

3. In view of the above, it is impracticable to grant the request contained in reference (b) [plaintiff's letter of December 5, 1943). Therefore, final steps are now being taken to effect your discharge as outlined in reference (a) [letter to Egan, dated November 27, 1943, from the Commandant stating that his discharge from the Reserves was being recommended) and reference (b) will be made a part of your official record at this Headquarters and considered as your statement relative to

discharge. On April 11, 1944, the plaintiff was notified by the Commandant of the Marine Corps, that effective that date, he was, by direction of the President, discharged from the Marine Corps Reserve under honorable conditions, having been found not physically qualified for active duty. On the

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Opinion of the Court same date the Secretary of the Navy issued to plaintiff a Certificate of Satisfactory Service.

Thereafter, plaintiff applied to the Naval Retiring Review Board, and, on March 10, 1945, that Board notified plaintiff that "after careful consideration and review of all records" [including the erroneous army records of the other Egan), it had been unanimously decided that there was no reason to reverse the findings and decision of the Naval Retiring Board in any particular; that those findings and the decision had been affirmed, and that the President had, on February 28, 1945, approved the decision of the Naval Retiring Review Board. In view of the true facts which could and should have been easily ascertained by the medical and administrative officials of the service, we conclude that a more unjust and outrageous record against plaintiff could not have been compiled.

In the meantime, plaintiff, a perfectly healthy and normal man, had, on December 13, 1943, secured employment in the Office of Price Administration in Hartford, Connecticut, and was employed thereafter in that and other civilian positions, including his employment with the Veterans Administration which was involved in plaintiff's claim in the first count of his petition. After hearing about the creation by Congress of the Board for the Correction of Naval Records, under section 207 of the Legislative Reorganization Act of 1946 (60 Stat. 837), plaintiff, on December 27, 1917, applied to that Board to correct the errors and injustices resulting from the erroneous and careless medical diagnosis of his physical condition by the Navy, and the consequent erroneous and illegal discharge of plaintiff as unqualified for active service by reason of permanent psychosis. Following diligent efforts by plaintiff and a long investigation and an oral hearing, the Board on March 17, 1948, made findings of fact, conclusions and a decision. The Correction Board concluded that plaintiff had at no time been mentally defective, nor had he ever suffered from any incapacity, physical or mental, which would have prevented him from performing active duty as an officer in the Marine Corps; that the many

• At the time of his Correction Board hearing in 1948, plaintif had been discharged from three positions when his employers discovered that he had been confined in mental institutions.

141 C. Cls. Opinion of the Court diagnoses of insanity rendered by the various medical officers and boards were all completely in error and had been based on numerous false premises, including the mistaken reports from Samoa that plaintiff had imagined two minor injuries prior to his hospitalization for bronchitis in Samoa, and that he had also imagined the encounter with the violent patient in the medical ward in the hospital in Samoa. The Board found that plaintiff's accounts of those incidents, consistently disbelieved by the Naval physicians and officials, had been completely accurate. The Board also found that the Adjutant General of the Army and the Bureau of Medicine and Surgery of the Marine Corps had confused plaintiff's Army records with the Army records of another former Army officer whose name was "Egan”; that on the basis of the Army medical records of the other Egan, Marine Corps officials were convinced that plaintiff had been found insane while serving in the Army and had been discharged from the Army as an insane person prior to his entry into the Marine Corps. In its decision, the Correction Board, after having carefully considered the true facts, concluded that plaintiff had never been insane; that all diagnoses of insanity had been negligently made and in error, that plaintiff had at all times been mentally and physically capable of performing active service as an officer in the Marine Corps; that the discharge in 1944 of plaintiff because of mental incapacity for service was clearly erroneous and should be changed to an honorable discharge without any reference therein to such nonexistent incapacity. The Commandant of the Marine Corps was ordered to cancel the previous illegal discharge and to issue to plaintiff a new honorable discharge in substitution therefor without any reference to physical or mental incapacity, together with a Certificate of Satisfactory Service. The Chief of the Bureau of Medicine and Surgery was directed by the Correction Board to add to plaintiff's medical records a certified copy of the Board's conclusion and decision as the last and final official entry in plaintiff's medical records. The decision of the Board was approved in every respect by the Secretary of the Navy on March 17, 1948.

Pursuant to the above decision of the Correction Board, the Commandant of the Marine Corps issued orders dated

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Opinion of the Court April 7, 1948, cancelling plaintiff's erroneous discharge of April 11, 1944, and substituting therefor an honorable discharge without reference to physical disqualification. The new discharge, however, was for some unknown reason made effective retroactively back to the date of the original void discharge, i. e., April 11, 1944. The Certificate of Satisfactory Service issued to plaintiff on April 11, 1944, remained in effect.

On February 12, 1951, plaintiff filed his petition in the instant case claiming, in the second count, on the facts hereinbefore recited, that he was entitled to recover (1) the difference between the active duty pay of a captain and that of a first lieutenant from March 1, 1943, the date on which his promotion to captain was illegally withheld on the ground that he was insane, to October 28, 1943, the date on which he was illegally released to inactive duty; (2) the active duty pay and allowances of a captain from October 28, 1943 to April 7, 1948, the date on which his illegal and erroneous discharge for physical incapacity was vacated and a new honorable discharge was issued. The theory of plaintiff's claim is that since the repeated diagnoses of insanity were ultimately found to have been completely in error and without any justification whatsoever, all official actions adverse to plaintiff which were taken on the basis of such erroneous diagnoses were illegal and void and he is entitled, as a matter of law to receive the pay and allowances which he would have received had the erroneous diagnosis not been made and the consequent illegal actions not been taken. The adverse actions taken on the basis of the erroneous diagnosis of insanity were, the withholding of plaintiff's commission of captain on March 1, 1943, his release to inactive duty on October 28, 1943, and his discharge from his Reserve component on April 11, 1944.

At the time in 1948 when the Correction Board ordered that plaintiff's records be corrected, and also at the time of the filing of plaintiff's petition in this court on February 12, 1951, section 207 of the Legislative Reorganization Act of 1946 (60 Stat. 812) did not contain authority later enacted, for the administrative payment of claims of persons for losses of pay, etc., due as a result of the correction of mili

141 C. Cls.

Opinion of the Court

tary records. On October 25, 1951, Congress enacted Public Law 220 (65 Stat. 655) amending section 207 of the Act of August 2, 1946, supra, to authorize such administrative payment of claims for lost pay. The new statute provided in subparagraph (b) as follows:

(b). The Department concerned is authorized to pay, out of applicable current appropriations, claims of any persons

*** for losses of pay (including retired or retirement pay), allowances, compensation, emoluments, or other monetary benefits, as the case may be, which are found to be due on account of military or naval service as the result of the action heretofore taken pursuant to section 207 of the Legislative Reorganization Act of 1946, or hereafter taken pursuant to subsection (a) of

this section: * * * [Italics supplied] Although plaintiff's claim for lost pay was pending in this court, plaintiff, on March 23, 1955, filed an application with the Board for the Correction of Naval Records seeking the administrative payment of “the amount due me on account of correction of record” and setting forth the amounts claimed to be due in the same manner as in count II of his petition pending in this court.

Navy Department regulations6 covering the application for payment and the settlement of claims under section 207 of the 1946 Act as amended provide in part as follows: 2. Application for Settlement

(a) Settlement and payment of claims shall be made only upon a claim of the person whose record has been corrected or of his legal representative, his heirs at law, or his beneficiaries. Such claim for settlement and payment may be filed as a separate part of the application for correction of the record.

3. Settlement

(a) Settlement of claims shall be upon the basis of the decision and recommendations of the Board, as approved by the Secretary of the Navy. Computation of the amounts due shall be made by the appropriate disbursing activity. In no case will the amount found due exceed

the amount which would otherwise have been paid or * NAVEXOS P-473 (9–29-52, revised 6–7–55), issued pursuant to section 207 of the Legislative Reorganization Act of 1946, as amended.

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