585 Opinion of the Court corrected to show that he was entitled to his current retired pay, that is, that which had accrued since October 1, 1951, but had been interrupted on February 23, 1953. On May 20, 1954, the Army Chief of Finance wrote the plaintiff, in Arkansas, stating the account with regard to the plaintiff's current retired pay and showing that, in addition to what he had received before the interruption, and what he had received from the Veterans' Administration during the interruption, he was entitled to $2,538.25. The letter enclosed the "claims certificate" to be signed by the plaintiff, which contained the release now relied on by the Government. The plaintiff signed the certificate, and, apparently, was then paid by the Finance Officer. On May 28, 1954, the General Accounting Office wrote the plaintiff's attorneys in Washington asking for some routine information which was necessary before the final approval and payment of the plaintiff's other claim, the one here in litigation, for retroactive retired pay for the 1947-51 period. The plaintiff's attorneys furnished the information on June 10. On June 14 the General Accounting Office wrote the plaintiff's attorneys that the plaintiff had released the claim which the General Accounting Office had under consideration. The Government is asserting that alleged release as its defense. The situation then, is this. The plaintiff had a suit pending in this court. By our precedents, the suit was well founded and would result in a judgment for some $9,000. Government counsel urged us to delay consideration of the case while the plaintiff resorted to the Board for the Correction of Military Records. We did so, and the plaintiff did So. The Board refused to grant the plaintiff any relief. He could then have come back to the court and asked for, and presumably received, a summary judgment for his $9,000. However, in the meantime the Supreme Court, by denying certiorari in our former case, had settled the law, and the Attorney General and the General Accounting Office had accepted it as settled. The commissioner of this court suggested to the plaintiff's lawyers that instead of coming here and asking for judgment, they go to the General Accounting Office and close the case out administratively. They did Opinion of the Court 131 C. Cls. go to the General Accounting Office and the case was in the process of being so closed out. In the meantime, the Army, against whom the plaintiff had another and much smaller claim decided that that claim of the plaintiff was well founded and that he was entitled to $2,538.25. They sent him a filled out form for his claim, which form contained a release, told him that if he would sign and return the form he would get his $2,538.25. He executed the form and, presumably, got the money. Then the General Accounting Office stopped processing the $9,000 claim, saying that the plaintiff had released it. The plaintiff came back into our court and found that the Government was asserting the release as a defense. No one could assert that the plaintiff, by signing the release, intended to surrender the claim here in litigation. No one could, we think, assert that the Finance Officer of the Army intended, in paying the plaintiff $2,538.25 which the Army unquestionably owed the plaintiff, to get the plaintiff to release another claim for $9,000, which the Army unquestionably owed him. The Government urges that, regardless of the intention of the parties, the release given by the plaintiff has, by the mandate of statute, the devastating effect which is claimed for it. Section 207 of the Legislative Reorganization Act of 1946, as amended by the Act of October 25, 1951, 65 Stat. 655, 5 U. S. C. 191a, provides in subsection (a) that the respective Secretaries of the Military Services may, through boards of civilian officers or employees appointed by them, correct military records "to correct an error or remove an injustice ***." Subsection (b) authorizes the Department concerned to pay claims found to be due because of a correction of records. Subsection (c) says: The acceptance by the claimant of any settlement made pursuant to subsection (b) of this section shall constitute a complete release by the claimant of any claim against the United States on account of such correction of record. We see nothing in the language of this statute to indicate that Congress intended, when it set out to ease the path of military personnel in obtaining justice, to set a trap for the unwary soldier whose records needed correction in more than one respect, and who had filed separate applications for those 585 Dissenting Opinion by Judge Laramore corrections. In the instant case, the plaintiff's first application had been rejected, he had not been asked to sign any release, and he was free to resume negotiations with the General Accounting Office, or litigation. On his second application, on a different account, he was granted a correction. He released his claim "on account of such correction." But the statute does not say that he also released some other claim as to which there was no "such correction," but as to which he had been refused any correction. The defendant's motion for summary judgment is denied. The plaintiff's motion for summary judgment is granted. Entry of judgment will be suspended to await a report from the General Accounting Office showing the amount due the plaintiff. It is so ordered. WHITAKER, Judge; LITTLETON, Judge; and JONES, Chief Judge, concur. LARAMORE, Judge, dissenting: In the cases of Womer v. United States, 114 C. Cls. 415, and Hamrick v. United States, 120 C. Cls. 17, this court held that where a Disability Review Board, created pursuant to section 302 (a) of the Servicemen's Readjustment Act of 1944, 58 Stat. 284, 287, as amended by 59 Stat. 623, reviewed the action of a previous retirement board and arrived at a determination contrary to the decision of the previous board that the disability was an incident of service, the former officer was entitled to retirement benefits retroactive to the date of release from active duty. This was because section 302 (a), supra, was a remedial act and this court held that it would not "dilute the effectiveness of this remedial statute by a holding that this plaintiff is entitled to something less than he would have had if the erroneous determination had not been made." However, the remedial act makes it the duty of the review board "to review, at the request of any officer retired or released from active service, without pay, for physical disability." The review board in the present case acted beyond its authority inasmuch as the plaintiff had not been released for Dissenting Opinion by Judge Laramore 131 C. Cls. physical disability. This, of course, amounts to a determination that the plaintiff was physically disabled at the time of his release and perhaps warrants retirement pay prospectively. This does not, under the decisions of this court, mean that retroactivity must be given to the determination of the review board in this case. In Nickell v. United States, 123 C. Cls. 859, there was a determination by a review board that a previous retiring board had erred in its determination that the disability was not contracted in service. Retroactivity was awarded in that case, not back to the date of the first release, which had not been by reason of disability, but only to the date upon which the plaintiff had been released for disability. The plaintiff here, therefore, on the basis of the facts set forth in the petition, would not under the decided cases have been entitled to retroactive retirement pay to the date of his release because he had not been released for disability. Subsequently, the Army Board for Correction of Military Records made findings which would have warranted payment of retroactive pay. The settlement proposed by this Board was payment of retirement pay from October 1, 1951, and the finance officer of the Army, as directed by Army Regulations No. 15-185, dated November 14, 1952, advised plaintiff that acceptance of this amount would constitute a release of all claims on account of the correction of his record. This was strictly in accord with section 207 of the Legislative Reorganization Act of 1946, 60 Stat. 831, as amended by 65 Stat. 655. Subsection (c) thereof provides: The acceptance by the claimant of any settlement made pursuant to subsection (b) of this section shall constitute a complete release by the claimant of any claim against the United States on account of such correction of record. Based upon information disclosed by the briefs in this case, the Finance Officer gave notice to the plaintiff as to the effect acceptance would have, as he was required to do by the regulations. Plaintiff, to overcome the effect of the acceptance, claims in his brief that he did not understand what he was signing and the acceptance is of no effect. This, if properly before 585 Syllabus the court on pleadings, would require evidence. Johnson v. United States, 111 C. Cls. 750. I would not be disposed to so proceed in this case on the pleadings as filed. It is elementary that plaintiff must allege facts sufficient to entitle him to recover. Plaintiff's petition is obviously based not on the decision of the Board for Correction of Military Records, but on the decision of the Army Disability Review Board. The latter board being without jurisdiction to grant retirement pay to plaintiff, his claim necessarily must be predicated on the decision of the Correction Board, which is not alleged in the petition. In fact, plaintiff's petition was filed approximately 1 year and 8 months before the action of the Correction Board. The court could, of course, permit plaintiff to amend his petition to properly present the question of the effect of the signature. Plaintiff, however, having moved for summary judgment, the case should be decided as it stands on the pleadings. It appearing that plaintiff has not by his pleadings established a right to recover, I would dismiss the petition. In this case (No. 32-42) in accordance with the opinion of the court and on a report by the General Accounting Office showing the amount due thereunder, it was ordered June 7, 1955, that judgment be entered for the plaintiff for $9,134.47. OTOE AND MISSOURIA TRIBE OF INDIANS v. THE UNITED STATES [Appeal No. 1-54. Decided May 3, 1955.] * On Appeal From The Indian Claims Commission [Indian Claims Docket No. 11. 2 Ind. Cl. Com. 335.] Indian Claims; appeal from the Indian Claims Commission; decision of Commission respecting Second, Third, Fourth, Fifth, Sixth, and Seventh Causes of Action are affirmed and decisions on First Cause of Action and on Offsets are remanded.—In this *Appellee's petition for writ of certiorari denied October 10, 1955. |