The opinion
Laramore, Judge,
dissenting:
In the cases of Womer v. United States, 114 C. Cls. 415 , and Hamrick v. United States, 120 C. Cls. 17 , this court held that where a Disability Beview Board, created pursuant to section 302 (a) of the Servicemen’s Beadjustment Act of 1944, 58 Stat. 284 , 287, as amended by 59 Stat. 623 , reviewed the action of a previous retirement board and arrived at a determination contrary to the decision of the previous board that the disability was an incident of service, the former officer was entitled to retirement benefits retroactive to the date of release from active duty. This was because section 302 (a), supra, was a remedial act and this court held that it would not “dilute the effectiveness of this remedial statute by a holding that this plaintiff is entitled to something less than he would have had if the erroneous determination had not been made.” However, the remedial act makes it the duty of the review board “to review, at the request of any officer retired or released from active service, without pay, for physical disability.”
The review board in the present case acted beyond its authority inasmuch as the plaintiff had not been released for *592 physical disability. This, of course, amounts to a determination that the plaintiff was physically disabled at the time of his release and perhaps warrants retirement pay prospectively. This does not, under the decisions of this court, mean that retroactivity must be given to the determination of the review board in this case.
In Nickell v. United States, 123 C. Cls. 859 , there was a determination by a review board that a previous retiring board had erred in its determination that the disability was not contracted in service. Eetroactivity was awarded in that case, not back to the date of the first release, which had not been by reason of disability, but only to the date upon which the plaintiff had been released for disability.
The plaintiff here, therefore, on the basis of the facts set forth in the petition, would not under the decided cases have been entitled to retroactive retirement pay to the date of his release because he had not been released for disability.
Subsequently, the Army Board for Correction of Military Records made findings which would have warranted payment of retroactive pay. The settlement proposed by this Board was payment of retirement pay from October 1,1951, and the finance officer of the Army, as directed by Army Regulations No. 15-185, dated November 14, 1952, advised plaintiff that acceptance of this amount would constitute a release of all claims on account of the correction of his record. This was strictly in accord with section 207 of the Legislative Reorganization Act of 1946, 60 Stat. 831 , as amended by 65 Stat. 655 . Subsection (c) thereof provides:
The acceptance by the claimant of any settlement made pursuant to subsection (b) of this section shall constitute a complete release by the claimant of any claim against the United States on account of such correction of record.
Based upon information disclosed by the briefs in this case, the Finance Officer gave notice to the plaintiff as to the effect acceptance would have, as he was required to do by the regulations.
Plaintiff, to overcome the effect of the acceptance, claims in his brief that he did not understand what he was signing and the acceptance is of no effect. This, if properly before *593 the court on pleadings, would require evidence. Johnson v. United States, 111 C. Cls. 750 . I would not be disposed to so proceed in this case on the pleadings as filed.
It is elementary that plaintiff must allege facts sufficient to entitle him to recover. Plaintiff’s petition is obviously based not on the decision of the Board for Correction of Military Eecords, but on the decision of the Army Disability Review Board. The latter board being without jurisdiction to grant retirement pay to plaintiff, his claim necessarily must be predicated on the decision of the Correction Board, which is not alleged in the petition. In fact, plaintiff’s petition was filed approximately 1 year and 8 months before the action of the Correction Board.
The court could, of course, permit plaintiff to amend his petition to properly present the question of the effect of the signature. Plaintiff, however, having moved for summary judgment, the case should be decided as it stands on the pleadings.
It appearing that plaintiff has not by his pleadings established a right to recover, I would dismiss the petition.
In this case (No. 32-42) in accordance with the opinion of the court and on a report by the General Accounting Office showing the amount due thereunder, it was ordered June 7, 1955, that judgment be entered for the plaintiff for $9,134.47.