Veto of Bill Concerning Claim of William E. Stone.

To the United States Senate:

I return herewith, without my approval, S. 2582, a bill "To confer jurisdiction upon the Court of Claims to hear, determine, and render judgment upon the claim of William E. Stone for disability retirement as a Reserve officer or Army of the United States officer under the provisions of the Act of April 3, 1939, as amended."

The enrolled bill would confer jurisdiction on the Court of Claims, notwithstanding any limitation on its jurisdiction, to adjudicate the claim of Captain William E. Stone arising out of the failure of the then War Department to retire him for physical disability.

The beneficiary of this measure sustained injuries to his neck and shoulders when he parachuted over enemy territory in 1944. Following this jump, he was held as a prisoner of war by the Germans until his liberation in 1945. He was subsequently examined in the same year, by three medical officers who found no evidence of any incapacitating disability. The beneficiary was relieved from active duty for reasons other than physical disability in 1946, after affirmatively indicating he had suffered no service-incurred injuries.

During a period of Reserve training duty in 1951, the beneficiary was examined by the Air Force and found physically fit to perform flying duty. However, in the following year, he applied for and was awarded service-connected disability compensation by the Veterans' Administration, which currently considers him to be 40 percent disabled.

Upon review of his case in 1953, the Office of the Surgeon General of the Air Force determined that the beneficiary had not been permanently incapacitated for the performance of active duty at the time he was relieved from such duty in 1946. This decision was twice reviewed, in 1954 and in 1955, by the Air Force Board for the Correction of Military Records acting under statutory authority empowering it to amend military records when such action is necessary in order "to correct an error or to remove an injustice." Acting under this broad standard, the Board upheld, with the approval of the Secretary of the Air Force, the prior decision of the Surgeon General's Office. The present measure would permit review of these administrative decisions by the Court of Claims.

To avoid confusion, there is one thing which I think should be made clear at the outset. This is the difference between the basis for awarding disability retirement pay administered by the military departments and that for awarding disability compensation administered by the Veterans' Administration. The basis for the former is whether or not the individual sustained an injury or disease in the service which permanently incapacitated him for the performance of active duty at the time he was relieved from such duty. Awards of disability compensation, however, are based on findings that the former serviceman has a compensable service-connected condition. As a result of this difference, it is obvious that many individuals, particularly those with latent injuries such as the beneficiary sustained, will be able to qualify for disability compensation but cannot qualify for the receipt of disability retirement pay.

Traditionally, eligibility for retirement on account of physical disability has been determined by the military service in accordance with general provisions of law. More recently, appellate review of these decisions has been provided within the Executive Branch by means of statutory boards such as the several Boards for the Correction of Military and Naval Records established by the Legislative Reorganization Act of 1946, as amended.

On at least two occasions within the past year, the Court of Claims has been petitioned to award disability retirement pay to individuals who had been found not entitled to such pay by the Secretary of the military service concerned. In denying these petitions, the Court has stated, in effect, that under the statutory procedures for determining and reviewing entitlement to retirement, it has jurisdiction only in cases where it can be shown that the cognizant Military Secretary has acted arbitrarily, capriciously, or contrary to law.

I believe that this rule which the Court of Claims adopted is a sound one. It conforms to an important principle underlying judicial review of administrative decisions, namely, that the courts will not substitute their judgment for that of the experienced officials who have been given adjudicative responsibility by law. For this reason and since there is no evidence in this case that the Secretary of the Air Force acted arbitrarily, capriciously, or contrary to law, I can see no justification for special legislation which would require the Court of Claims to grant the beneficiary a de novo hearing.

Approval of this bill would discriminate against the many hundreds of individuals who have had their claims for disability retirement denied without benefit of judicial review. It would also establish an undesirable precedent leading to other exceptions to the orderly procedure which is now provided for under general law and which currently governs the hundreds of similar cases that are adjudicated each year.

Accordingly, I am compelled to withhold my approval from S. 2582.

DWIGHT D. EISENHOWER