The opinion
MADDEN, Judge
(dissenting).
I assume that the Secretary of War’s Disability Review Board, established pursuant to Section 302 of the Servicemen’s Readjustment Act of 1944 was more competent than this Court to determine whether the plaintiff’s disability was, or was not, a result of his military, service. Upon that assumption, the decision denying the plaintiff retirement pay was right on the merits. The question, then, is whether the duly constituted authorities to decide such questions, having first made a wrong decision in the plaintiff’s favor, were without power to make a right decision against him.
The doctrine that a continuing obligation to pay, in monthly installments throughout the remainder of -a man’s life an amount of money which may become very large indeed, can be irrevocably created by a mistaken decision, is strong doctrine. It carries over into the 'administrative procedure of the military establishment the rule of res adjudicata of court procedure, as it might apply to an installment contract for rent or for periodic interest on a bond. I think it is a mistake to so harden the arteries of administrative procedure. The doctrine will arise to plague deserving officers who-, unable to persuade, their Retirement Board or Appeal Board that their disabilities are service connected, find that their later attempts to do so, which might otherwise have been successful, are met by the statement that these Boards are, as to them, functus officio.
I think the decision of the Court is not required by the statutory provision for the equalization of the status of Reserve Officers and officers of the Army of the United States with those of the Regular Army. When an officer of the Regular Army is retired for disability, it makes no difference, except in certain unusual cases whether his disability is service-connected or not. He has devoted his life to- the Army, and is entitled to be maintained by the Army. He becomes a Retired Officer with Retired Pay, still subject to Army discipline and Court Martial. But a Reserve Officer or an officer of the Army of the United States, when retired for disability, becomes again a civilian. If his disability is service-connected he is, by statute, entitled to the same pay as if he had been an officer of the Regular Army. But he is not in the army in a retired status. A mistake by a Retirement Board 'as to- whether the 'disability for which a Regular Army officer is retired was, or was not, service-connected, does not, again, except in certain unusual oases, cost tire officer or the Government a penny. The Regular Army officer, once fully retired, cannot be put back into full active service without nomination by the President and confirmation by the Senate since his status as a Retired Officer is fixed by statute.
In many respects, then, there has been no equalization of the status of all officers in the various parts of the military establishment. The equality to which the plaintiff was entitled was that if his disability was service-connected, he was entitled to the same pay 'after his discharge that a Regular Army officer would have been entitled to upon retirement, whether or not the latter’s disability was service-connected. But to give the plaintiff a permanent monthly payment because of a mistaken decision, when such a decision would have had no consequences whatever in the oase of a Regular Army officer, is do-ing much more than equalizing their status.
I recognize that the decision of the court is supported by strong precedents, but I *451 think the time has come to re-examine the precedents and to attempt to develop a doctrine in keeping with current military conditions.
WHITAKER, Judge, concurs in the foregoing dissent.