A decision of a “[c]orreetion [b]oard is entitled to finality and may not be overturned, even if the court might disagree with it[.]”
How later courts described this case
- A decision of a “[c]orreetion [b]oard is entitled to finality and may not be overturned, even if the court might disagree with it[.]”
Written by the judges who cited it.
The opinion
Bennett, Judge,
concurring:
I join fully in Judge Skelton’s opinion, but deem it advisable to add a word with respect to an alternative position taken by plaintiff in this case. Plaintiff’s moving brief pressed upon us the argument that his removal from the TDK.L and consequent discharge violated an applicable regulation, DOD Directive 1332.18, as it existed at the time here in question. Paragraph Y.B. of that directive enumerates certain presumptions which uniformly are to be indulged by officials in applying federal laws, relating to separation from military service by reason of physical disability. Thus, in the absence of a preponderance of evidence to the contrary (1) a member is presumed to have been physically fit upon entry into the service; (2) any disease or injury discovered after entry into the service is presumed incurred in the line of duty; (3) in the case of disease or injury known to have existed before entry, aggravation is presumed to have been service-connected; and, finally (4) certain “acute infections” will be presumed service-incurred or service-aggravated. Paragraph V.B.2 goes on to provide that whenever there exists a reasonable doubt concerning the member’s condition, the facts will be resolved on the basis of the foregoing presumptions in favor of the member.
Plaintiff derives from this language the conclusion that since the PEB was confronted with a reasonable doubt as to whether he was fit for worldwide service, the doubt necessarily under the directive had to be resolved in his favor and *180 a finding mad© that he was not fit. As I see it, plaintiff’s error rests with the undue breadth with-which he reads paragraph V.B.2 of DOD Directive 1332.18. He says, in effect, whenever there is a reasonable doubt as to anything touching his physical condition, such doubt must be resolved in his favor. I do not agree. The language upon which plaintiff relies has no significance apart from'the limited presumptions listed above, which are set out immediately preceding the words to which plaintiff refers us. The directive merely says that in the absence.of a preponderance of the evidence rebutting these presumptions, findings must be made in accordance with the facts presumed. Therefore, in my opinion, the portions of DOD Directive 1332.18 cited by plaintiff have no application in this case, and his discharge cannot be voided under the doctrine of Service v. Dulles, 354 U.S. 363 (1957).
I agree that the petition should be dismissed.
Nichols, Judge, concurs in both Judge Skelton’s opinion and Judge Bennett’s concurring opinion.