Petition for Writ of Certiorari — Hoffman v. United States

/ CIBRARY “ ; ) a Ae

DUPREWE Court tm | JUL10_1967

eres | JOHN 2 DAVIS, CLERK = |

IN THE

oe Bat

’ OCTOBER TERM, 1967

| 2 349 |

FLoyD lk. HOFFMAN,

Petitioner,

Vv. .

Tae UNrrep ‘States

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

< THomas H. KING

: Suite 617, Barr Building

910 17th Street, N. W.

Washington, D. C. 20006

WiLson - Eras Pruwrine Co. - Rix 7-6002 - WasmincTON, D. C. 0008

ae ae Eee : | - *PABLE OF CONTENTS |

eae Srna | |. __ . PETITION FOR OF CERTIORARI TO THE .-

ae ! wo ee Pacer des . : : - UNITED STATES COURT OF CLAIMS...

a bens Wee S 25 "OPINIONS AND ORDERS. | | aoe

phe : ‘ ee | | JURISDICTION , 2

QUESTIONS PRESENTED 20

STATUTES AND REGULATIONS a

; STATEMENT OF THE CASE ... 2

ae ee. aa . 6

ernest 8 Ta Pere A. The Court Erred as a Matter of Law in Ruling

| . ~ That in Determining Incapacity the Inquiry

Must Be Limited to the Evidence Then Existing

ne SS oe ee eee oe

| ea the Time of Release ........ 6

eb aaa ee ? aa: ; B. The Evidentiary Support Upon Which the Board :

aes eh ae | ______ and the Court of Claims Predicated Their Find- |

se . ing. Lacks Substantial Weight 18

Pee eee a ee +. ©, Petitioner’s Intrinsic Asthmatic Condition Per-

OU . . . manently Disabled Him.as of April 1962 From

Performing Full Military Duty a

‘D. The Court of Claims’ Legal Conclusion Is Pre- °

; mised Upon a Mistake of ae Fact .......... 16

; CONCLUSION . ee Fe

7 TABLE OF CASES ee

"Farrar v. US., — CtCl. 178 CLC 1008... 10

Grubin v. U.S., 166 Ct.Cl. 272 ...: .-10, 18, 15

Harper V. U.S., 159 Ct,Cl. 186 10

- Patterson V. US., 141 CUCL 485 erccenstncninneces. aD

| Pyiuees ak a

ww

ii

TABLE OF CONTENTS (Continued)

—

TABLE: OF STATUTES AND REGULATIONS

28 U.S. Code 1255(1) 7

be Oe cg ee ee 68 Stat. 802,

816-17, 10 U.S.C. § 1201 et seq.

Air Force Regulation 31-8 Section 9 ee

2

9

10 U.S.C, 1552 ....... ; oe e2

Air Force Manual 160-1, ae» 1961 ........... ~

—_,

Powers. us, — ca, — (4480-60, June ‘, -

Proper ¥. US, 189 CLL. 611 ETE 10

~~ Robertson v. Chambers, 341 U.S. 37 ‘10

_ Smith v. U.S., 168 Ct.Cl, 545 seeil 10, 13

Towell v. U.S.,/150 Ct.Cl. 422 : wae

' Walters v. US. 175 Ct.Cl.. 215, 358 F.2d 957 .. .10, 11, 13

Williams v. U.S., 180 Ct.Cl. 485 Shade ae

Woodward v. US.,, 167 Ct.Cl. 806 - . 10

Ty THE | s

fren Go oh Ht

_ OCTOBER ‘TERM, 1967

_ PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

- FLOYD L. HOFFMAN, your sitesi prays that a

writ of certiorari issue to review the judgment. of the

United States entered in the \serandtatakah cause on aid |

18, 1966. :

etnies AND ORDERS BELOW

(a) The opinion or the original hearing i is reported ; at

175 Ct. Cls. 457, copy of opinion is. edcecrcee hereto

as’ Exhibit A. :

(b) Order of Court of Claims, dated October 28, 1966,

allowing in part petitioner’s motion for rehearing.

(ce) Order of Court of Claims, dated February 10, 1967,

netsilatead — =e, for rehearing. :

e

eee

>

,

2

_ JURISDICTION

: The final judgment’ of the Court of Claims. dtomisaing .

_ the petition was entered on February 10, 1967, Petitioner’s”

‘” motion for rehearing was denied on February 10, 1967.

‘The jurisdiction of this Court i is. invoked under 28 UIS.C.

1255 (1).

QUESTIONS PRESENTED

QM Did petitioner submit sufficient evidence to justify

a: hearing before the Air Force Board for the Correction

of Military Records to meet the standard under the agency

‘ regulation (AFR 31-8, Section 9) to require a hearing

before that ageney Board and, if he did, was the Board

guilty of arbitrary and capricious action in ATS the

. application without a hearing? _ .

(2). If petitioner submitted iilinse. sufficient to indi-.

cate probable and material error or injustice, was:not the

Court of Claims required to’ determine whether or not:

petitioner met the criteria for disability retirement under

. the pertinent statutes and regulations by reason of physi-

cal disability?

(8) Should not .a writ of certiorari be issued e. the

Supreme Court of the United States in this case and re-

view the action of the administrative hoard of the United — |

-” States Air Force and the United States Court of Claims

pay? —

STATUTES AND REGULATIONS

The applicable statutes and. regulations are sk out in

; the Appendix.

STATEMENT OF THE CASE.

: (a) After prior military service, petitioner served. on ;

aE ORY es Cemmmieatened eee in Gis United States .

and direct the entry of a & Smigueett for disability ve out

a°

’

©

; 3

Air Force from October '12, 1948 to April.29, 1952, Peti-

tioner did not have any record of serious respiratory dis-

turbance upon-entering on active duty in 1948; he was t

normal in all respects and he was found ‘to be ‘ “qualified. :

. and acceptable for extended active duty on a general mili-

_. tary service status”, Petitioner had no, problems ‘of any,

; consequence with’ his health prior ta 1950.

~ (b) Statement of petitenee’s: health pie after

December 1950:

the (1) April 1951: Nectous penicillin reaction after

_ receiving several penicillin injections for an upper”

._ respiratory infection. Petitioner was mone | for

more than a week,

ae Petitioner’s respiratory “troubles

' mounted after May 1951, he experienced difficulty in

breathing, hoarseness, sore throat and loss of voice. ~

Petitioner required frequent medical ‘treatment all

during 1951; hé ‘continued to a. his military ae

: duties.

(3) February 1952 Bs callenl a ‘severe

attack diagnosed as “acute viral influenza and pneu-

-monitis and probably acute exacerbation = ehronie

bronchial asthma”.

. (4) 1952-1958: After suititenats re from |

_. . active: service: Petitioner’s asthmatic condition be-

came progressively worse; 1952 and 1954—two severe

attacks which disabled him for about a week on each

occasion ; 1954-1958 SENG severe eae at-

(5) In 1958, petitioner’s condition hi worsened

| nS) 3, 2958 petitioners condition having worsened :

“incurable disease), forced his disability retirement, ies

(6) Dr.’ Nesbitt testified at the trial as an an expert

. Witness; he ‘expressed the opinion that plaintiff was

physically unfit for full military duty at the time of

a ae SS ey ene ae 1952.

*, %.

*

The Government did not present any expert testimony

to rebut Dr. Nesbitt’s opinion.

(ec) (1) In April 1952, petitioner’ was released from

‘active duty, not by reason of disability; he was given

__ @ physical examination for. the purpose of separation

and on the basis of information furnished by peti-

tioner episodes of asthma attacks were ‘noted on -peti-

tioner’s record. Medical records relating to petition-

er’s severe attacks during 1951 were not available to

~ the medical officer who made the separation examina-

(2) Petitioner was little aware of his true physical

condition at the time of his separation examination

and he did not realize the seriousness of his condition —

until 1954. re : a

(d) On December 12, 1958 (after petitioner’s disability —

retirement from civil service) he petitioned the Air Force

Board for the Correction of Military Records for physical

disability retirement as of April 29, 1952. In support of

. that application, petitioner submitted considerable docu- |

- mentary evidence concerning his physical health and ill-.

nesses, including (a) examination reports of the Guam

attack; (b): the report of his separation physical; (c)

- Government medical records and physical examination

reports relating to petitioner’s commi: sion as an officer

in the Reserves, and to attacks he suffered while employed —

as a civilian in the Federal Civil Service during the peri-

ods between 1952 and 1958; (d) VA records which in-

eluded statements by civilian physicians; (e) written

- statements from officers and lay individuals who had per- .

- gonal knowledge of petitioner’s physical appearance and

condition before and after separation from active duty;

(f) personnel records; and (g) other documentary evi-

The Correction Board, after receiving advice from the

Surgeon General, denied petitioner a formal hearing be-

- fore the Board on the ground that he had failed to submit

sufficient evidence to establish a Senta . ——— :

error or injustice”.

Petitioner alleged to the Court of Claims that the action

by: the Correction Board in failing to correct his records

to show service-connected disability at the time of retire-

~ Ment, was arbitrary and capricious.

(e) On May 138, 1966, the. Court of Claims decided

petitioner was not entitled to recover, and the petition was °

In an order dated October 28,°1966, the Court of Claims

' granted petitioner’s motion for rehearing on: the

that:

At the dine of the decision and opinion in . the case,

the Court was of the view that the. Trial Commis-

sioner had considered post-separation evidence in find-

ing plaintiff fit upon separation to perform his duties

. The motion for rehearing raises a substantial.

question as to the correctness of this assumption. .

"The Court remanded the case to the Trial Commissioner

for the submission of a memorandum to the Court as

to whether and, if so, to what extent the Commis-

. sioner considered plaintiff's post-discharge or post- |

_. geparation medical history in finding plaintiff fit to

perform the duties of his grade or rank at the time

of separation.

On February 10, 1967, petitioner’s motion for rehearing

was denied.

6

ARGUMENT

A.

2

The Court Erred as a Matter of Law in Ruling That

in Determining Incapacity the Inquiry Must Be Limited

to the Evidence Then Existing and Available to the .

Examining Physicians at the Time of Release .

-The Court of ‘Claims findings establish, that:

The unrebutted evidence of record clearly shows

that plaintiff’s history of respiratory infections and

illnesses dates back to about December 1950; that

_ during the period between December 1950 or January

1951, and April 1951, while he was in Tokyo, Japan,

plaintiff was given a series of penicillin injections, as

well as other medications and treatment, for his res-

piratory infections and illnesses; that in April 1951,

while on Guam, plaintiff vielently reacted to penicillin

' injections given to him in Japan, which precipitated

an asthma attack and triggered an intrinsic asthma .

condition that progressed-from that date forward to

the point he developed bronchial asthma, chronic

bronchitis, and es a progressive, ‘disabling

_ incurable disease . . [Fdg. 32, Slip Op. pp. 34-

]

“Therefore, the Court concluded that:

There was a direct causal connection between the

. Yespiratory illnesses and “episode of asthmatic bron-

- chitis” suffered by plaintiff. in 1950 and 1951, while

- he was on active duty in Japan, including the adverse

reaction he had to penicillin injections given to him |

in Japan which resulted in the attack that: occurred

on Guam in April 1951, and plaintiff’s present physi-.

cal condition. Plaintiff did not have any record, of

serious respiratory disturbance upon entering on ac-

tive duty in 1948, and it cannot be seriously ques-

tioned that his disability. is service-connected. (Fdg.

88(a) Slip Op. p. 35)

Pt GOR gtr ee ee ce ee et a

2.

In support of the contention that at the time of separa-

tion his asthmatic condition had progressed to the state

that made him unfit for general service, petitioner pre-

sented extensive medical testimony. Of particular impor-

tance, petitioner showed that’ just two months prior to

his separation he had suffered a severe asthmatic attack _

which was diagnosed as :“acute excerbation of chronic

bronchial asthma”. (Fdg. 6, Slip Op. pp. 12-13). In

addition, he presented testimony by a physician (Dr.

Nesbitt) who treated petitioner subsequent to his release. —

Dr. Nesbitt expressed the opinion, based on petitioner’s

entire medical history, that petitioner was permanently

disabled and unfit for military duty at the time of his

‘Separation. (Fdg. 27, Slip Op. pp. 30-31). The Govern-

ment did not present any expert testimony to rebut Dr.

Nesbitt’s opinion. It merely relied on petitioner’s: military

medical history. The only evidence contained in the record

ve ‘which would indicate that petitioner was fit was the de-

. termination by a physician who examined petitioner inci-

dent to his separation. The record is clear however that

‘this physician was not aware of petitioner’s asthmatic

attack which occurred just two months prior to his separa-

tion, nor did he have petitioner’s medical ‘records with

respect. to petitioner’s prior attacks in Tokyo and Guam.

Nevertheless, the Court determined that petitioner was

‘- not permanently disabled and was fit for general service.

at the time-of his release in 1952 because:

the record does not support the opinion expressed by

Dr. Nesbitt ... . to the effect: that there was a suff-

cient record in 1952, by way of history from: the

plaintiff and documentary medical history, to have

enabled him to reach the decision that plaintiff was

physically disabled and unfit for full military duty

at the time of his separation from active duty with

the Air Force on April 29, 1952, because of bronchial

asthma. [Fdg. 31(c) Slip Op. p. 84]

- The Court rejected Dr. Nesbitt’s unrebutted — on

the grounds that:

_ It is quite clear from Dr. Nesbitt’s 5 édilbadinis that

he made a retrospective diagnosis of plaintiff’s con-

dition at the time of his separation based upon medi- '

cal history furnished by plaintiff relating to periods

prior and subsequent to his- separation, reports of

‘some of the physical examinations given to plaintiff

‘and medical records covering plaintiff’s illnesses, at-

tacks and treatments that relate to periods subsequent.

to his separation which were not before medical au-

thorities who examined plaintiff on April 21, 1952,

_ and Dr. Nesbitt’s knowledge_of plaintiff's condition

gained through medical examinations ‘and treatments

afforded plaintiff by Dr. Nesbitt, or his associate, dur-

ing the period from March 1957 to January ‘1963.

iFdg. 81(c). Slip Op. p. 34; emphasis supplied].

The Court predicated its ultimate conclusion that peti-

tioner was not permanently disabled and fit for general

service at the time of his separation in 1968 on the ana

. that:

the record in this case does not disclose that official

'. medical records and reports relating to illnesses suf-

fered by, and treatments afforded, plaintiff during

1950 and 1951, while he was on active duty in Japan,

particularly the attack that occurred on Guam in

. April 1951, were available to the medical officer and

authorities who examined gle approved plaintiff for

separation, or that plaintiff ad the examining’

medical officer or authority of the attack he suffered

in late February 1952, while enroute to Wright-.

Patterson AFB, Dayton, Ohio . . . that plaintiff ad-

mittedly did not realize the seriousness of his condi-

tion at the time of his separation. examination and

did not become aware of his true condition until about

' 1964; and that plaintiff’s bronchial asthma condition.

‘apparently was in a state of remission when he was

examined for the purpose of separation. Considering

the foregoing facts, it cannot be affirmatively found,

the testimony of Dr. Nesbitt to the contrary notwith-

way of history furnished by plaintiff and official

documentary medical history, available at the time of .

plai: iff's separation examination to justify a deter-

tiff then was physically unfit to perform full military

oman 81(b) Slip Op. p. 33-34; ‘emphasis

supp: ) ee |

Thus, it is clear that the Court’s decision is premised

_ _-on-the proposition that not only medical evidence subse-

quent to petitioner’s release from active service could not

be considered in: determining petitioner’s incapacity at the

time of release, but also petitioner had an affirmative duty

to make available his entire military medical history to

the examining physician. The Court has, in effect, ruled |

that in determining whether a person was permanently in-

capacitated at the time of release and unfit for general

service, the inquiry must be limited to the evidence then

existing and available to the physicians examining a serv-

iceman incident to his separation and that all subsequent

evidence must be excluded from consideration. This stand-

ard of proof, we submit, is contrary to prior decisions of

the Court of Claims and in addition prevents a ‘plaintiff

before the Court of Claims from establishing his true con-

dition at the time of release, This is especially true in

those situations, as it was the case here, where petition-

er’s condition was latent or‘quiescent at the time of re-.

lease and flared up thereafter. we ha 2

_ It is axiomatic that Congress in establishing the Cor- _

- rection Boards’ for the Military Departments did not |

' intend to limit the Board’s inquiry (in determining wheth-

er to change “any military record. . . to correct an error

or remove an injustice”) to the military’ records them- -

110 U.S.C. § 1552 (1958 Ed.).

10

selves. This the Court of Claims in a long line of ju

- . gions has consistently held. that subsequent medical history

is always material and is frequently vital in a determina- mate

tion of the nature and extent of disability at:the time of ‘|

release. Powers v. United States, Ct.Cl. No. 80-60 decided ; ’

. June 10, 1966 Slip. Op. pp. 10-12; Walters v. United

States, —— Ct.Cl. ——, 358 F.2d 957, 961 (1966) ;

Farrar.v. United States, 173 Ct.Cl.. 1008, 358 F.2d ‘965

(1965); Smith v. United States, 168 Ct.Cl. 545, 553°

(1964); Woodward v. United States, 167 Cc Cl. 306

(1964) ; Grubin v. United States, 166 Ct.Cl. 272, 277, 333

- F.2d 861, 863 (1964) ; Harper v. United States, 159 Ct.

Cl. 185, 310 F.2d 405 (1962) ; ; Patterson v. United States,

141 Ct.Cl. 485 (1958); Proper v. United States, 189 Ct.

_. Ch. 511 (1957). This is so because hearings before boards

such’as the Correction Board “are not contests; they are

inquiries concerning disability. The purpose is to get at

the truth of the matter... [and] [t]he medical history

following the retirement will often be of great importance

...iLand] may . . ..be highly pertinent to the inquiry.”

Robertson v. Chambers, 341 U.S. 37, 39 (1951). Thus,

the crucial issue is not whether the examining physicians

made a mistaken diagnosis based on the evidence before

them, but rather whether subsequent medical history dem-

onstrates the mistake and discloses the true nature and

extent of petitioner’s condition at the time of release. For

as the Court of Claims recently stated: .

The test for recovery, however, does not rest solely

-* - on the reasonableness of the action of the examining

_ physicians at the time of release from active duty.

The petitioner may prevail if he can show that if the

complete .facts concerning his: condition had been

known at that time he would have been entitled to

retirement by reason of physical disqualifications

under the pertinent laws and regulations. [Citing

_ Harper, Farrar and Stone]. To this end, reference.

* must of necessity be made to his subsequent medical .

7 eee

' _histerg insofar as it sheds light on the nature of his

__———__ physical condition. while in Service. Evidence of

canines progressive deterioration and later discovered symp-

toms and disabilities may be decisive if it can estab-

lish that plaintiff’s incapacity -while in service was

_ substantially more serious than suspected and that: _

previous diagnoses were inadequate or incorrect.

Walters v. United States, 175 Ct-Cl.. 215, 358 F.2d

» 957, 962-64 (1966) ; emphasis supplied].' _-

_ This is exactly. what petitioner sought to establish through -

the unrebutted testimony of Dr. Nesbitt. He testified that:

-in his view the asthma attack experienced by plaintiff

in 1951 was precipitated by the penicillin injections

given to him at that time; that plaintiff’s intrinsic

- asthma evidenced itself following repeated respiratory

infections and said penicillin reaction; that the symp-

toms later appearing during the period he treated

plaintiff were substantially the same as those that

- occurred in 1951, and were “classic examples of mani-

festations of intrinsic asthma”; that intrinsic asthma

is a permanent condition’ that is usually slowly pro-

gressive and causes organic changes which result in

emphysema; and that in plaintiff’s case his intrinsic

asthma progressed to the point that he developed

emphysema. Dr. Nesbitt stated that emphysema is a

very slow developing malady that often follows re- ©

peated attacks of asthma; and he described this dis- -

ease as a “structural change in the chest which

results from obstructed breathing, causing the devel-

opment of a barrel chest . . . increased resonance to

percussion, and shortness of breath, because the lungs

are expanded to the point where you ‘don’t have the

‘inflow and outflow of air that the normal person. .

_has”. Dr. Nesbitt stated that emphysema is a pro-

gressive and incurable disease. Dr. Nesbitt also

stated that it would be difficult to establish the time

when plaintiff’s bronchial asthma progressed to the

. State that it developed into emphysema, but that such

12

condition would have become well peer before it

- Dr. Gick Whee ‘Mad acved aa''4 wisdcal imembor |

of Naval Boards of Medical Survey, expressed the —

* opinion that plaintiff was physically unfit for full

_ Inilitary duty at the time of his release from active

military service in April 1952; that there was suffi-

cient evidence available at that time by way of his-

‘tory furnished by plaintiff and official documentary

' _ medical history to have enabled him to find that

plaintiff was disabled in 1952; and that while, in his

opinion, Plaintiff's emphysema condition was not ad-

-vanced in April 1952 to the stage that it would have

been disqualifying at that time, his asthma condition

in 1952 was such that he was then disqualified physi-

cally from performing full active military service.

% {Fdg. 27 Slip Op. pp. 30-31].

However, the Court of Claims rejected 1 Dr. Nesbitt’s testi-

‘mony because: :

it is quite clear . that he mide a <plbvidinesties

diagnosis of plaintit's condition at the time of his

_ separation based upon medical history furnished by

» mien relating to periods prior and subsequent to

his separation... . which were not before medical |

authorities who examined gyal ril 21, 1952:

. [Fdg. 81(c) Slip-Op. p. 34 supplied].

Tha Gourt of Claiine concioded. thet becaua (a) the

official. medical reeords of petitioner’s history containing

- the Tokyo and Guam attacks were not available\to the .

examining physician; (b) petitioner’s failure to advise the

examining physician of his recent attack while enroute to

Wright-Patterson AFB; (c) Petitioner did not realize the

seriousness of his condition and (d) Petitioner’s bronchial

asthma was in a state of remission, the examining physi- -

cians were justified in finding that petitioner-was fit to

perform military duties. co Op. pp. 5-6; Fdg. 31(b)

Slip Op. PP. 5o-38).

\

\

\

\

\

lor 3 (OE o

As we have shown above the issue is not whether the

examining physicians acted reasonably at the time of re-.

lease, but rather whether subsequent medical history dem-"

onstrates the mistaken diagnosis and discloses the true _

nature and extent of petitioner’s condition at the time of

release, (Walters v. United: States, swpra and cases cited

_ therein). Moreover, the fact that petitioner was unaware .

of the seriousness of his condition, his failure to request

a more thoreugh examination, the fact, that the examining

physicians did not have all the records, or that petitioner’s

condition was in a state of remission are not controlling

. factors in the determination.: Grubin v. United States,

supra, at 277-78, 333 F.2d at 863;: Powers v. United

States, ones, Slip Op. p. 12, Smith v. United States,

oupre.

' Petitioner respectfully submits that the rejection of Dr.

‘Nesbitt’s unrebutted testimony on the grounds that: it was

partially based on. subsequent medical history and the

adoption of a standard to test unfitness. for duty which

only looks to the reasonableness of the examining physi-

- .¢ians actions at the time of release constitutes fatal flaws

in the Court of Claims’ decision requiring rehearing.

: .

e' a

The Evidentiary Support Upon Which the Board and .

the Court of Claims Predicated Their Finding Lacks:

Substantial Weight

"Petitioner was not given a formal hearing before the

Board on the grounds that he had failed to submit suffi-

cient evidence to establish a showing of “probably error

_ or injustice”, The Board’s action was presumably based

on a memorandum from the Surgeon General which ad- |

. vised that “no change in the record is believed indicated

and none is recommended”, The Surgeon General’s rec-.

_ ommendation primarily rested on the ground that “an

examination dated 21 — 1952 considered him qualified -

14

for service”, Thus, the Board’s decision rested sabe as

must the Trial Commissioner’s ultimate finding which was

adopted by the Court, on the determination made at time ~

of separation. It is true that this would seem to provide

an adequate basis for the Board’s deeision. However, “the

fact that there’is evidence, considered of and by. itself, to

_ Support the administrative decision is not sufficient where

there is opposing evidence so substantia] in character as

to detract from its weight and render it less than sub--

_ stantial on the record as a whole”. Williams v. United ;

States, 130 Ct.Cl. 435, 441, 127 F.Supp.

The only evidence which could possible lend support to

_ the Board’s and'the.Court of Claims’ ultimate finding was.

more than adequately rebutted by petitioner’s presentation

before the Board and the Court. Under these circum-

stances petitionér respectfully submits that the Board

- acted arbitrarily and without substantial evidentiary sup-

port and that the Court’s affirmance of the Board's action_

is contrary to law.

C.. | :

Petitioner’s Intrinsic Asthmatic Condition Permanent-

ly Disabled Him as of. April 1952 From Performing

Full Military Duty . ;

Petitioner’s respiratory attnaisti were officially recog-

nized by the Air Force as enough for retirement, if pres-

ent in an adequate degree. ‘A regulation on standards oy. |

new: commissions indicated. that a

(1) History of any, of the following: . 8 esthins of

any degree or a history of asthma, except a history .

of childhood asthma with a trustworthy history of ~

complete freedom from symptoms ‘since twelfth

birthday [Emphasis supplied].

would be. cause for rejéction of new applicants That

* AFM 160-1, 1 September 1951 par. 58(a)(1)(8).

15 o |

procurement standard would.not apply in full force to the

different issue of retention on active duty or retirement -

‘for physical disability (Towell v. United States, 150 Ct.

' Cl, 422, 434-486 (1960)), but an Air Force retirement

regulation did require that due regard be given to the

specific procurement regulations which. were not to be as.

strictly interpreted as for appointment on active duty.

“This means, at least, that . . . [petitioner’s asthmatic

_ condition] ‘would be the foundation for disability fetire-

ment if permanent and sufficiently severe.” (Grubin v. ..

United States, supra at 864). We respectfully submit

_ that all the evidence in this case brings petitioner’s case -.

within this measure. . es

_ The Court has found that: petitioner on April 29, 1952

_had intrinsic asthma. (Slip Op. p. 5): The uncontradicted

testimony shows that on February 24, 1952, petitioner

suffered an attack which was diagnosed as “acute exacer-

- bation of chronic bronchial asthma”, ‘(Fdg. 6 Slip Op. pp.

.12-13). Admittedly on April 21, 1952—the date of the

physical examination incident to his separation—petition-

_--er was not suffering an attack of asthma, However, in

the light of petitioner’s subsequent history and the uncon- _

tradicated expert testimony. on the cyclical nature of in- —

trinsic asthma (although it is a permanent. condition), it

_ is plain that the examining physician was wrong in find-

ing that his condition was not incapacitating. There

‘might have been a quiescent period on the day of his ©

physica] examination, but the disease was still there.

After leaving the service, ‘his condition grew. progressively

' worse to the point that he developed emphysema,

\

eee \

ekete es

_ 3 AFM 160-1, 1 September 1951 par. 1(b) (7).

16

D.

“The Court of Ciaims’ Legal Constastin Is Premised

Upon a Mistake of Material Fact

| At Page 5 of the. Slip opinion, the Court of Claims

- States in_relevant part as follows:

“The Correction Board upon advice from the Sur-

geon General found that the conditions which existed

at the time of separation were not of sufficient sever-

ity to warrant a finding of permanent incapacity and

disability retirement. Plaintiff was so advised on

— October 2, 1959” . . . “We hold that plaintiff in the.

case at bar has not shown such determination to be

arbitrary and — or not supported by substan-

tial evidence”.

The record in this case shows that the Correction Board

made no findings of fact. The only statements remotely

resembling findings of fact, susceptible to judicial review,

is the memorandum of September 24, 1959, stating that -

the Board determined “that no corrective action was indi-

cated”, and “that the applicant and counsel have been

notified of the action of the board” (JX 1). There is also

a letter from the Correction Board to Colonel Hoffman, .

dated October 2, 1959, reciting in relevant pert as 3 fol-

lows:

se | segret to advise you that a careful consideration

by the Board of-your Military Records, together with —

such facts as have been provided by you, fails to es-

tablish a sited of — error or injustice in

your case” .

Nowhere did the aioe find, as mistakenly found by the

Court of Claims, that:

. “the conditions which existed at the time of sepa-

ration were not of sufficient severity to warrant a

finding of secre staaaindh and disability retire- _

ment”.

ao

The Correction Board having made no such. findings, 4

petitioner was not obliged to allege and prove that this

. finding was arbitrary: and capricious or not supported by

‘the evidence, Therefore this cause should be reversed,

based on the mistaken assumption of fact and errors

- of law by the. Court. of.Claims. Valid findings of

fact by an administrative agency are entitled to great

weight in a judicial forum. The Court of Claims gave

great weight to non-existent ‘findings, and concluded that

plaintiff had not shown that the non-existent findings

were arbitrary and capricious or not supported by the

evidence.

ae

* CONCLUSION

- For the foregoing reasons, this petition for a writ of. ‘

certiorari should be ane. |

Respectfully subrnitted,

THoMAS H. KING

Baaay for the Petitioner —

ite 617, Barr Building

“s 17th Street, N.. W.

July, 1967 , Washington, D. C. 20006

I hereby certify that two copies of the foregoing Peti-

tion have been mailed to:

- The Solicitor General

of the United States

‘Department of Justice

Washington, D. C. 20530

and

Charles M. Munnecke, Esq,

Civil Division .

Court of Claims Section

Department of Justice © :

Washington, D. C. 20530

/

~ THOMAS H. KING :

' Counsel for the Petitioner

Suite 617, Barr Building . .

910 17th Street, N. W..

Washington, D. C. 20006

Ree ee eee en ee eee a eae PP EMERY OF