plaintiff's case, the second time after the ABCMR reopened plaintiff's case at his request after its deadline for submitting further evidence had passed.
Admittedly there was evidence before the ABCMR which indicated that plaintiff's gastric condition, from which he had suffered since 1964, worsened shortly before his discharge. The ABCMR of course had before it the MEBD findings that plaintiff at the time of his discharge did not meet the Army's medical retention standards, as well as the Veteran's Administration decision to accord plaintiff a 40% disability rating. In addition, the rater who performed the final annual evaluation of plaintiff noted that in the six to eight months preceding the report plaintiff's gastric condition had "hampered his duty performance." Record at 323.
However, substantial evidence in the record supports the ABCMR decision. As noted earlier, under applicable Army regulations the purely medical finding of physical impairment does not in and of itself justify a finding that a member is unfit, because fitness must be judged in light of the tasks a member is called upon to perform. AR 635-40 § 2-1. The Veteran's Administration decision, although evidence worthy of consideration, is not binding on the ABCMR. DeCicco v. United States, supra, 677 F.2d 66.
As to the final rater's observations, the indorser who reviewed that evaluation also noted a decline in plaintiff's performance during the months preceding his discharge, but still concluded that plaintiff's overall performance was superior. Record at 324. Finally, the ABCMR had before it the record of the formal PEB proceeding at which plaintiff admitted never having gone to see an Army physician during the period of alleged deterioration.
It is evident from the record below and from the affidavits submitted by plaintiff in support of his motion that plaintiff was a superior officer who had earned the respect and admiration of all those with whom he worked, some of whom feel he has been done a grave injustice by being forced to leave the Army. But the wisdom of the Army's actions in requiring the discharge of able officers who because of limited openings are passed over for promotion is not before the court. Nor may the court decide de novo the question of plaintiff's fitness for duty. Although the court may be sympathetic to plaintiff's plight, it may not substitute its judgment for that of the ABCMR, but may overturn the board only if it acted arbitrarily or capriciously. Yet the record in this case does not warrant the conclusion that the Army "ignored relevant and competent evidence, that they unreasonably construed the significant body of medical documents before them, or that they in any other manner failed to discharge their designated duties." Stephens v. United States, 174 Ct. Cl. 365, 358 F.2d 951, 955 (1966). The ABCMR weighed the conflicting evidence and found plaintiff fit for duty. Unfortunately for plaintiff, "not all ailments or disabilities are incapacitating to the extent of justifying retirement by reason of physical disqualification." Id. Accordingly, this court affirms the judgment of the ABMR.
An appropriate Order accompanies this Memorandum.
This matter is before the court on the motion of defendant to dismiss or, in the alternative, for affirmance of the decision of the Army Board for Correction of Military Records (ABCMR) denying plaintiff's application to convert his honorable discharge from the Army to a medical disability discharge. Also before the court is plaintiff's motion for reversal of the ABCMR decision and in opposition to defendant's motion. Upon consideration of the defendant's and plaintiff's motions, as well as the entire record herein, and after a hearing before the court, it is, by the court, this day of November, 1982,
ORDERED that defendant's motion for affirmance of the decision of the Army Board of Correction of Military Reocrds is granted.