The opinion
Whitaker, Judge,
concurring:
It is physical incapacity at the time of discharge that determines entitlement to retired pay. At the time plaintiff was discharged he was not incapacitated for military duty. The Army did not find that he was; he did not think he was; and the evidence clearly shows that he was not.
When he was discharged there was no discernible evidence of multiple sclerosis. This was not recognized as a possibility until nearly three years after his discharge; it was not diagnosed as his trouble until over five years after his discharge. In the meantime, he had had a complete neurological examination, in November 1949, and eight months thereafter he had had a number of physical examinations at the Naval Hospital in Philadelphia.
Under such facts, I do not think plaintiff was entitled to be retired for physical disability.
I prefer to rest the decision on this ground, although I recognize we held in th% Remaley case, supra, that active duty for training did not come within the provisions of section 5 of the Act of April 3,1939, or of section 2, subsection (1) of the Act of June 20,1949, supra.