The opinion
Laramore, Judge,
dissenting:
I respectfully dissent for the reason the Disability Review Board acted beyond its authority when it found that plaintiff was permanently incapacitated for active service and that said incapacity originated during the period of plaintiff’s active service.
Section 302 (a) of the Servicemen’s Readjustment Act of 1944, supra, provides that “* * * It shall be the duty of any such board to review, at the request of any officer retired or released from active service, without pay, for physical disability pursuant to the decision of a retiring board, * *
Thus, under the plain wording of the statute, plaintiff must have been released from active service without pay for physical disability pursuant to a decision of a retiring board in order to give the Disability Review Board jurisdiction.
Plaintiff was not released for physical disability. In fact, the Army Retiring Board found plaintiff not permanently incapacitated.
I would grant defendant’s motion for summary judgment.
In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due plaintiff thereunder, judgment for the plaintiff was entered February 6, 1957, for $14,051.42.