# Montilla v. United States

> United States Court of Claims · April 14, 1972 · 457 F.2d 978

URL: https://www.frixlaw.com/law-library/cases/8594410

## Case

- **Full name:** VICTOR J. MONTILLA v. United States
- **Court:** United States Court of Claims
- **Decided:** April 14, 1972
- **Citations:** 457 F.2d 978; 198 Ct. Cl. 48; 1972 U.S. Ct. Cl. LEXIS 58
- **Precedential status:** Published
- **Opinion:** Concurrence by Davis
- **Judges:** Collins, Cowen, Davis, Dürfee, Iols, Laramore, Nici, Sicelton, Skelton
- **Cited by:** 45 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8594410

## How later opinions describe it (automated extraction)

- stating that officers of the government have neither “the power nor the authority to waive or nullify the provisions of the statutes enacted by the Congress”
- recognizing right of plaintiff to trial to permit “judicial determination of the disputed factual issues” in military retirement pay case
- holding that a “plaintiff is charged with knowledge of [statutes passed by Congress]”

## Opinion text

Davis, Judge,
concurring in the result :
Unlike the court I do not reach the controversial issue of estoppel, involving as it does the much criticized and much defended doctrine of Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947). I rest my vote for the defendant on the simpler ground of the Correction Board’s obvious disbelief in plaintiff’s testimony as to what Colonel Powell said. The point is not what plaintiff may have mistakenly gathered from this conversation 'but whether his understanding was factually and properly based on the colonel’s actual words. Plaintiff has now been twice before the Board and his petitions for relief twice rejected. I conclude, especially from the administrative finding quoted by Judge Skelton, that the Board was not impressed with the accuracy of plaintiff’s recollection of the single oral interchange on which he must ground his claim of estoppel. 1
The Board’s view of the facts is important because we are reviewing its determination to see whether there is substantial supporting evidence. The holding of a de novo trial does not change this standard. See Brown v. United States, 184 Ct. Cl. 501, 503-04 , 396 F. 2d 989, 991-92 (1968). Even though the trial commissioner accepted the accuracy of Colonel Montilla’s version of the conversation with Colonel Powell, I cannot fault the Board (which heard plaintiff itself) for taking another view on that point. Nor can I characterize the Board’s position as arbitrary or unsubstantiated simply because the other trier came to the opposite conclusion. Such differences in fact-finding are quite common.
*66 If tlie administrative view of the evidence is accepted as adequate, plaintiff clearly has no case since, on those findings, nothing was said to mislead him.
BINDINGS OK FACT
The court having considered the evidence, the report of Trial Commissioner Mastin G. White, and the briefs and argument of counsel, makes findings of fact as follows:
1. The plaintiff was bom on March 2, 1906, in San Juan, Puerto Rico.
2. The plaintiff graduated from the Medical School of the University of Maryland in 1930. He then interned in the University Hospital, San Juan, Puerto Rico. After completing his internship, the plaintiff began the practice of medicine in the town of Cayey, Puerto Rico.
3. (a) The plaintiff was appointed a first lieutenant in the Medical Corps Reserve, Army of the United States, on March 8, 1934. He executed the oath of office on March 26, 1934.
(b) The plaintiff was reappointed a first lieutenant in the Medical Corps Reserve effective March 8, 1939.
(c) The plaintiff was promoted to captain, Medical Corps Reserve, on December 9,1939.
4. The plaintiff performed the following tours of active military duty with the Army: April 11-24,1935; May 1-14, 1936; June 17-30, 1938; May 7-20, 1939; July 20-August 2, 1940; October 14,1940-October 13,1941; and May 30,1942-September 6, 1945.
5. (a) The plaintiff was promoted to the grade of major in the Medical Corps, Army of the United States, while on active military duty during World War II.
(b) On being released from active military duty at the end of World War II, the plaintiff was tendered, and he accepted, a commission as major in the Medical Corps, Officers’ Reserve Corps, Army of the United States.
6. (a) Soon after being released from active military duty on September 6,1945, at the end of World War II, the plaintiff opened an office for the practice of medicine in San Juan, *67 Puerto Eico. He had not previously practiced in San Juan. The plaintiff still has his medical practice in San Juan.
(b) For a number of years after opening an office in San Juan, the plaintiff was extremely busy in his efforts to build up a medical practice there.
7. Being very busy in building up his medical practice after opening an office in San Juan, the plaintiff did not participate in Army Eeserve activities after September 6, 1945, except to the limited extent indicated in subsequent findings. However, he continued to be interested in the Army and wished to be a member of the Active Eeserve. It was the plaintiff’s understanding up until November 1955 that his status as a member of the Active Eeserve was dependent only upon his being physically fit to perform military duty and upon his willingness to perform such duty in the event of a call to active service. The plaintiff believed that he was physically fit to perform military duty, and he was willing to perform such duty if he should be called into active service.
8. The plaintiff was promoted to the grade of lieutenant colonel in the Medical Corps, Officers’ Eeserve Corps, on December 18,1946.
9. (a) On August 29,1949, the Headquarters of the U.S. Army Forces Antilles, by means of paragraph 3 of Special Orders No. 170, transferred the plaintiff from the Active Eeserve, in which he had served from March 26,1934, to the Inactive Eeserve.
(b) At the time of the transfer to the Inactive Eeserve, the plaintiff was credited with 15 years, 3 months, and 5 days of qualifying service in the armed forces prior to July 1, 1949, toward establishing his eligibility for retired pay benefits from the Army.
(c) The plaintiff was not credited with as many as 50 points toward eligibility for retired pay benefits during any one-year period after July 1,1949.
10. On October 21, 1949, the Headquarters of the U.S. Army Forces Antilles, by means of paragraph 4 of Special Orders No. 212, assigned the plaintiff to the Antilles OEC Control Group (Inactive).
*68 11. (a) The plaintiff did not receive any notice from the Army relative to the actions mentioned in findings 9 and 10.
(b) The plaintiff had moved his residence from No. 1 King Court, Santurce, Puerto Rico, to No. 1111 Magdalena Avenue, Santurce, in September 1948. He notified the post office on the regular form regarding this change of address, but he did not notify the Army until 1951 (see finding 12). The plaintiff was aware that he should notify the Army with reasonable promptness of any permanent change of address.
(c) After August 29, 1949, the plaintiff believed that he was still a member of the Active Reserve and that such status, if maintained for a total of 20 years, would qualify him for retired pay benefits from the Army after he reached the age of 60 years. The plaintiff was unaware of the requirement, which became effective on July 1,1949, that a reservist must earn at least 50 points per year through specified activities in order for any annual period to constitute qualifying service toward establishing eligibility for retired pay benefits. The plaintiff learned of the point system for reservists in about 1951, but he believed that it related only to eligibility for promotion.
12. (a) Under the date of August 6, 1951, the Headquarters of the United States Army Forces Antilles addressed a letter to the plaintiff at 1 King Court, Santurce, Puerto Rico, stating in part as follows:
1. Reference is made to letter this headquarters, subject as above, dated 6 April 1951, in which you were requested to complete a DA AGO Form 353 (Reserve Officers Qualification and Availability Questionnaire) as required under the ORC Service Evaluation Program, and return to this headquarters. This letter further requested that you report to the Induction Station, Fort Buchanan, Puerto Rico for a physical examination also required under the same program.
2. To date, this headquarters has not received the completed questionnaire from you. Further, the Induction Station, Fort Buchanan, Puerto Rico, has informed this headquarters that you have not reported for the physical examination.
3. As a Reserve officer, you are reminded of your primary obligation to cooperate with this program, especially in considering the value of the program in making current the records and other information main *69 tained for you in this headquarters. If you have received the letter referred to in paragraph 1 above, and have not complied with the provisions thereof, it is requested that you do so without further delay.
4. In the event that you did not receive referenced letter, paragraph 1 above, or if you did receive it and have misplaced the forms, please inform this headquarters immediately so that duplicate forms and detailed instructions may be furnished you.
('b) The communication referred to in paragraph (a) of this finding was forwarded to the plaintiff at his then address, 1111 Magdalena Avenue, Santurce, and was received by him. On August 9, 1951, the plaintiff acknowledged such communication, stated that he had not received the letter dated April 6,1951, gave Ms correct address, asked that DA AGO Form 353 be sent to him at Ms correct address, and also asked that a change-of-address form be sent to him.
(c) Following the receipt of the plaintiff’s response dated August 9, 1951, the Headquarters of the U.S. Army Forces Antilles wrote to the plaintiff at Ms correct address on August 11, 1951, and directed that he report not later than August 17,1951, to the Medical Examining Board, Induction Station, Fort Buchanan, Puerto Rico, for a physical examination in connection with the ORC Service Evaluation Program.
(d) In accordance with the directive dated August 11, 1951, the plaintiff promptly reported to the place designated and was given a physical examination.
13. (a) By means of a communication dated October 28, 1952, the Headquarters of the U.S. Army Caribbean informed the plaintiff that he was eligible for an indefinite-term Reserve appointment, in lieu of Ms then-current 5-year appointment, and asked that he execute and return certain enclosed papers, including an oath of office, if he agreed to accept the indefinite-term appointment.
(b) By means of a communication dated November 20, 1952, the plaintiff informed the Headquarters of the U.S. Army Caribbean that he agreed to accept an indefinite-term appointment as a Reserve commissioned officer in the Army. At the same time, the plaintiff returned, properly executed, the forms wMch had been transmitted to Mm.
*70 14. (a) In a communication which the Headquarters of the U.S. Army Forces Antilles sent to the plaintiff under the date of March 25, 1954, he was informed that “Becords at this station indicate that you completed 20 years service, which is creditable in the computation of basic pay, on 7 Mar 1954”; and that he was required to complete an enclosed DA Form 1041, indicating whether he did or did not desire, upon reaching the age of 60, to receive reduced retired pay in order to provide an annuity for his dependents after his death.
(b) In response to the communication mentioned in paragraph (a) of this finding, the plaintiff on April 2, 1954, informed the Headquarters of the U.S. Army Forces Antilles that he did not desire to receive reduced retirement pay in order to provide an annuity for his dependents.
15. (a) On or about November 2, 1955, the Headquarters of the U.S. Army Forces Antilles sent to the plaintiff an extract copy of paragraph 36 of Special Orders No. 212, indicating (among other things) that the plaintiff was assigned to the 7573d USAB Control Group, a unit of the Inactive Beserve.
(b) Upon receiving the information mentioned in paragraph (a) of this finding, the plaintiff went to the local office of the Organized Beserve and talked to the Senior Army Advisor assigned to that office, Colonel Charner W. Powell. The plaintiff told Colonel Powell that he wanted to stay in the Active Beserve and did not want to be transferred to the Inactive Beserve if the transfer would adversely affect his entitlement to retired pay benefits upon reaching the age of 60. Colonel Powell, after examining a file of papers relating to the plaintiff’s military career, stated to the plaintiff that there was nothing for the plaintiff to worry about; that the plaintiff had served in the Active Beserve for 20 years; and that he would commence drawing his retired pay on reaching the age of 60.
(c) The plaintiff was 49 years of age at the time of the incidents referred to in this finding.
16. (a) On February 29, 1956, the Headquarters of the U.S. Army Forces Antilles wrote a letter to the plaintiff, stating in part as follows:
*71 1. You have failed to maintain requirements for retention in the reserve program of the United States Army Reserve.
2. Under present Department of the Army Regulations you must either be discharged from your commission or transferred to the Retired Reserve.
3. Should you desire a transfer to the Retired Reserve, you must submit a written request. In the event that a reply is not received 'by 14 March 1956, action will be taken by this headquarters to effect your discharge.
(b) The plaintiff replied on March 7, 1956, to the letter mentioned in paragraph (a) of this finding. The plaintiff stated in part that “I request to be transferred to the Retired Reserve.”
17. (a) Under the date of February 9,1966, the plaintiff, believing that he would be entitled to commence receiving retired pay from the Army after passing his 60th birthday on March 2, 1966, submitted to the Commanding Officer of the U.S. Army Administration Center in St. Louis, Missouri, an “Application for Retired Pay Benefits” beginning April 1, 1966.
(b) The Commanding Officer of the U.S. Army Administration Center in St. Louis, Missouri, denied the plaintiff’s application on March 1,1966, and stated as follows:
This is with reference to your application for retired pay.
Title 10, United States Code, Chapter 67 authorizes retired pay for current and former members of the reserve components who have attained age 60 and completed a minimum of 20 years of qualifying service. The official records show that you completed 15 years, 3 months and 5 days of qualifying service as shown on the inclosed statement of service.
Service in an inactive section of a Reserve component (Inactive, Honorary or Retired Reserve), may not, by law, be credited as qualifying service. Accordingly, your service in the Inactive Reserve and Retired Reserve from 29 August 1949 to 2 March 1966, your 60th birthday, may be credited for basic pay purposes only.
Having completed less than the minimum service requirement prescribed by law, you are not eligible for retired pay benefits. -»
*72 18. (a) The plaintiff next applied to the Army Board for Correction of Military Records and asked that his military record be corrected to show that he had the minimum 20 years of qualifying service necessary to establish his entitlement to retired pay benefits.
(b) After holding a hearing on August 23,1967, the Army Board for Correction of Military Records made findings and conclusions, and recommended that the application be denied.
(c) The Under Secretary of the Army approved the findings, conclusions, and recommendation of the Army Board for Correction of Military Records, and denied the plaintiff’s application on November 2,1967.
19. The present court action was instituted by the plaintiff on December 6, 1968.
20. The plaintiff failed to complete, before reaching the age of 60, the minimum 20 years of qualifying service essential to establish his eligibility for retired pay benefits from the Army.
CONCLUSION OE LAW
Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes that plaintiff’s motion to stay proceedings should be, and the same is hereby denied, and the court further concludes as a matter of law that the plaintiff is not entitled to recover, and his petition is, accordingly, dismissed.
The court is obviously correct in its analysis of the letter of March 26, 1954.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8594410. Public record. Not legal advice.