B-197860 L/M, MAR 20, 1980

B-197860 L/M, MAR 20, 1980

OFFICE OF GENERAL COUNSEL SUBJECT: WILLIAM H. LORD V. UNITED STATES, COURT OF CLAIMS NO. 50-80C, FILE REFERENCE: AD:DMC:RERICHARDSON:EEW 154-50-80C

ALICE DANIEL; DEPARTMENT OF JUSTICE; ATTENTION: ROBERT E. RICHARDSON, ESQ., COMMERCIAL LITIGATION BRANCH:

IN COUNT I, PETITIONER ALLEGES THAT THE ACTIONS OF THE BOARD FOR CORRECTION OF NAVAL RECORDS AND CERTAIN SUBSIDIARY BOARDS WERE ARBITRARY AND CAPRICIOUS WHEN THEY DENIED HIS REQUEST FOR CORRECTION OF HIS RECORD SO AS TO ENTITLE HIM TO A DISABILITY RETIREMENT. IN COUNT II, PETITIONER ALLEGES THAT THE DECISION OF THE VETERANS ADMINISTRATION TO AWARD HIM DISABILITY BENEFITS SHOULD BE RETROACTIVE TO HIS DATE OF DISCHARGE IN 1968, AND NOT TO HIS DATE OF APPLICATION IN 1972.

THE PETITIONER HAS NOT SUBMITTED A CLAIM TO OUR OFFICE REGARDING THE SUBJECT MATTER OF THIS SUIT OR ANY OTHER ACTION AND WE HAVE NO FACTUAL INFORMATION OTHER THAN THAT SET FORTH IN THE PETITION. WE HAVE NO RECORD OF ANY COUNTERCLAIM, SETOFF, OR OTHER DEMAND WHICH WOULD FURNISH THE BASIS OF A CROSS ACTION AGAINST THE PETITIONER.

CONCERNING THE ALLEGATIONS IN COUNT I, THE COURT OF CLAIMS HAS HELD THAT THE PETITIONER'S BURDEN IS TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT THE DETERMINATION NOT TO CORRECT HIS NAVAL RECORDS WAS ARBITRARY AND CAPRICIOUS OR UNSUPPORTED BY SUBSTANTIAL EVIDENCE. WOOD V. UNITED STATES, 176 CT.CL. 737, 743 (1966). THE PETITIONER WILL NOT MEET HIS BURDEN BY SHOWING THAT HIS CONDITION MAY HAVE DETERIORATED SUBSEQUENT TO HIS RELEASE FROM MILITARY SERVICE SINCE THIS IS NOT DETERMINATIVE OF THE ISSUE AS TO HIS FITNESS AT THE TIME OF HIS RELEASE. IF THE EVIDENCE ADDUCED INDICATES THAT HE WAS NOT INCAPACITATED FOR MILITARY SERVICE AT THE TIME OF HIS DISCHARGE, THEN HIS LATER INCAPACITY, ALTHOUGH PERHAPS SERVICE INCURRED, DOES NOT ENTITLE HIM TO DISABILITY RETIREMENT BUT RATHER POSSIBLE RELIEF FROM THE VETERANS ADMINISTRATION. SEE UNTERBERG V. UNITED STATES, 188 CT. CL. 994 (1969); AND STONE V. UNITED STATES, 160 CT.CL. 128 (1963).

ALSO, IN REGARD TO COUNT I, THERE IS A QUESTION WHETHER THE PETITIONER HAS TIMELY FILED THIS SUIT. A DETAILED DISCUSSION REGARDING THIS ISSUE OF TIMELINESS IN SUITS OF THIS NATURE IS CONTAINED IN FRIEDMAN V. UNITED STATES, 159 CT.CL. 1 (1962). ON THE FACTS STATED IN THE PETITION, IT WOULD SEEM THAT PETITIONER IS NOT TIME BARRED AS THE PETITIONER'S CAUSE OF ACTION DID NOT ACCRUE UNTIL FINAL ACTION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS ON MAY 1, 1975. SEE HOPPOCK V. UNITED STATES, 163 CT.CL. 87 (1963). ALSO, IN A RELATED ISSUE, THE COURT, IN HOPPOCK, NOTED THAT WHILE A PETITIONER MAY WAIT A LONG TIME TO SEEK ACTION BY A CORRECTION BOARD AND NOT BE TIME BARRED, THE LONG TIME MAY JUSTIFY A BOARD'S DENIAL OF THE CLAIM BECAUSE OF THE DIFFICULTY OF PROOF DUE TO THE PASSAGE OF YEARS. N.7 AT 96.

REGARDING COUNT II, THE PETITIONER'S ENTITLEMENT TO THE VETERANS ADMINISTRATION'S BENEFITS WAS RETROACTIVELY GRANTED TO THE DATE OF HIS APPLICATION, THE EARLIEST DATE POSSIBLE. SEE 38 U.S.C. SECS. 3010(A) AND (B)(1). SINCE THIS AWARD CONFORMED WITH THE APPLICABLE STATUTORY SCHEME, IT WOULD APPEAR THAT THE COURT HAS NO JURISDICTION TO REVIEW THIS DECISION OF THE VETERANS ADMINISTRATION. SEE DE SIBONGA V. ADMINISTRATOR OF VETERANS AFFAIRS, 458 F.2D, 789 (D.C. CIR. 1972); AND TAYLOR V. UNITED STATES, 379 F. SUPP. 642 (W.D. ARK. 1974).

IF I MAY BE OF FURTHER ASSISTANCE IN THIS MATTER, PLEASE CONTACT ME AT 275-6404.