B-153649, MAR. 23, 1964

B-153649, MAR. 23, 1964

TO KENNETH H. DECKER:

WE HAVE RECEIVED FOR REPLY YOUR LETTER OF FEBRUARY 24, 1964, TO THE PRESIDENT OF THE UNITED STATES, RELATIVE TO YOUR CLAIM FOR DISABILITY RETIRED PAY. SINCE THAT LETTER REFERS TO YOUR CLAIM FOR DISABILITY RETIRED PAY AMOUNTING TO OVER $28,000 FOR THE PERIOD FOLLOWING YOUR RELEASE FROM ACTIVE DUTY, NOT BY REASON OF PHYSICAL DISABILITY, ON MARCH 12, 1949, WHICH WAS DISALLOWED BY OUR SETTLEMENT OF JUNE 19, 1963, YOUR LETTER WILL BE REGARDED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT.

UNDER THE PROVISIONS OF LAW APPLICABLE IN YOUR CASE, 10 U.S.C. 933 (1946 ED.), PAYMENT OF RETIRED PAY WAS AUTHORIZED ONLY---

"WHEN A RETIRING BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, AND THAT HIS INCAPACITY IS THE RESULT OF AN INCIDENT OF SERVICE, AND SUCH DECISION IS APPROVED BY THE SIDENT.'

SINCE SUCH ADMINISTRATIVE ACTION WAS NOT TAKEN IN YOUR CASE, THERE IS NO AUTHORITY FOR THE PAYMENT OF RETIRED PAY TO YOU. THE DEPARTMENT OF THE ARMY HAS REPORTED THAT YOU WERE TRANSFERRED FROM THE ACTIVE RESERVE TO THE HONORARY RESERVE ON DECEMBER 4, 1950, BECAUSE OF A "NERVOUS DISORDER.' HOWEVER, WHILE A PHYSICAL CONDITION MAY NOT WARRANT RETIREMENT, THE SAME CONDITION MAY BE SUCH THAT THE ARMY PREFERS NOT TO RETAIN A RESERVIST IN AN ACTIVE RESERVE STATUS. ACCORDINGLY, THE SETTLEMENT OF JUNE 19, 1963, IS SUSTAINED.

CONCERNING YOUR COMMENT THAT "THERE MUST BE SOME AVENUE OF JUSTICE OPEN TO ME IN THIS MATTER," YOU ARE ADVISED THAT THE DECISIONS OF THIS OFFICE ARE FINAL AND CONCLUSIVE ON ALL CLAIMANTS AND OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE 31 U.S.C. 71, 74. YOU MAY, OF COURSE, FILE SUIT IN THE UNITED STATES COURT OF CLAIMS. THAT COURT, HOWEVER, HAS LONG FOLLOWED THE RULE THAT SINCE THE CONGRESS HAS GRANTED TO THE SECRETARIES OF THE ARMED FORCES THE POWER TO DETERMINE THOSE MEMBERS WHO ARE QUALIFIED TO SERVE IN THE ARMED FORCES, AS WELL AS THOSE MEMBERS WHO ARE ENTITLED TO RECEIVE DISABILITY RETIRED PAY BY REASON OF SUCH SERVICE, IT HAS NO JURISDICTION TO REVIEW THE ACTIONS OF THE VARIOUS MILITARY BOARDS AND OF THE SECRETARIES, IN THE ABSENCE OF COGENT AND CLEARLY CONVINCING EVIDENCE OF ARBITRARY OR CAPRICIOUS ACTION. SEE FURLONG V. UNITED STATES, 153 CT.CL. 557, 563 (1961), AND THE CASES THERE CITED. THE QUESTION AS TO WHETHER THERE WAS ARBITRARY OR CAPRICIOUS ADMINISTRATIVE ACTION IN ANY PARTICULAR CASE IS, OF COURSE, ONE OF FACT TO BE DETERMINED ON THE BASIS OF THE EVIDENCE IN THE CASE.