noting that this court “cannot acquire jurisdiction of [a disability retirement] claim until after the board and the Secretary have acted”
How later courts described this case
- noting that this court “cannot acquire jurisdiction of [a disability retirement] claim until after the board and the Secretary have acted”
- “[S]ince our jurisdiction could not be invoked until after the retiring board and the Secretary had acted, the statute of limitations on a suit in this court did not begin to run until they had acted[.]”
- “jurisdiction is conferred by Congress, not on this court, but on retiring-boards and the Secretaries of the three armed services, to decide an officer’s right to retirement for physical disability * * *”
Written by the judges who cited it.
The opinion
LARAMORE, Judge
(dissenting).
I respectfully dissent for the following reasons:
Regardless of whether this court has jurisdiction, upon an allegation and proof of arbitrary action on the part of the Secretary of the Army, to review and substitute for the decision of the Secretary, I would dismiss this case on the limitations.
*242 Aside from the correction of records board, there is no specific authority given the Secretary to review the case of any one released from service, not for physical disability, except section 301 of the Act of June 22, 1944, 58 Stat. 284 , 286, 38 U.S.C.A. § 693h.
Section 302 of the above act, 38 U.S. C.A. § 693i, provides for the review by the board in cases of officers who were retired or released for disability, but without pay, and with power equal to that of the board created under section 301. This, it seems to me, was the power to review the extent and incident of the disability for which the officer was released. It would be an inadmissible premise to assume that under this section there was granted authority to determine existence of disability. If section 301 granted this authority, there would seem to have been no reason for section 302.
If, therefore, the Secretary should review the case of an officer who has not been released for disability, he would be doing so under the broad authority conferred upon him under the basic retirement Act of April 3, 1939, 53 Stat. 555 . The right which the Secretary refused to grant was the same right that existed under the Act of April 3, 1939.
Assuming that this court has a right to review the grant under the Act of April 3,1939, any cause of action accrued when the plaintiff was released from duty and the 6-year statute of limitations ran from that date. Any subsequent act of the Secretary would not be a required administrative act which would toll the running of the statute of limitations.
Therefore, whether the case comes into this court based on the denial of retirement when released or whether it came into court based on alleged arbitrary action, the statute of limitations would commence to run at the same time.
The petition, having been filed more than six years from plaintiff’s release from duty, is in my opinion barred by the 6-year limitations statute.