settlement of his claim (a 10% disability rating entitling him to $8,870 in back benefits), lost the right to proceed to seek further recovery (a 100% disability rating). When plaintiff accepted the back disability pay due to him, he signed a form which stated: "My acceptance of this settlement constitutes a complete release by me of any claim against the United States on account of this matter." This form was apparently based upon 10 U.S.C. § 1552(c) which provides that: "A claimant's acceptance of a settlement under this section fully satisfies the claim concerned." Defendant argues that these statements indicate that the United States has revoked its waiver of sovereign immunity once settlement of a claim is accepted.
The Court need not address the merit of this argument, nor must the Court determine whether plaintiff's recovery here is barred by the claim form or the statutory statement because the Court finds that defendant is estopped from asserting this claim. When asked to sign this form, plaintiff balked, concerned that accepting the proffered settlement would abrogate his right to appeal to this Court. Plaintiff ultimately decided to sign the form, but only after he had received two separate letters from the Department of the Army assuring him that signing the claim certificate would not preclude him from seeking further relief.
Defendant argues that these letters were not authorized and therefore cannot bind the government to the position they espouse. Whether the officials had actual authority, however, is not the relevant inquiry. In order for defendant to be estopped from making this claim, the Court must find that plaintiff reasonably relied on the apparent authority of the letter writers, to his detriment and that defendant engaged in affirmative misconduct. See e.g., Pratte v. NLRB, 683 F.2d 1038, 1043 (7th Cir. 1982); National Treasury Employees Union v. Reagan, 214 U.S. App. D.C. 62, 663 F.2d 239, 249 (D.C. Cir. 1981). Plaintiff's conduct in refusing to sign the claim form until he had received multiple assurances, makes it clear that he in fact acted in reliance upon these assurances. Further, his reliance would indeed result in substantial injury if, as a consequence, he were to be barred from seeking further relief. Finally, the Court finds that defendant did engage in affirmative misconduct when its agents represented to plaintiff that he was waiving no rights when, in fact, he was. Accordingly, the defendant is estopped from asserting waiver and the Court has jurisdiction over this action. The Court can, therefore, turn to the merits of this dispute. Two questions are presented: 1) Was the ABCMR's denial of plaintiff's request for a hearing an abuse of discretion; and 2) Did the ABCMR abuse its discretion in assigning plaintiff a 10% disability rating.
The ABCMR's Denial of Plaintiff's Request for a Hearing Was Within the Board's Discretion.
It is well established that the ABCMR's decision to grant an oral hearing is purely discretionary. 32 C.F.R. § 581.3(c)(5)(1975). See also Knehans v. Callaway, 403 F. Supp. 290, 297 (D.D.C. 1975), aff'd sub nom., Knehans v. Alexander, 184 U.S. App. D.C. 420, 566 F.2d 312 (D.C. Cir. 1977); Amato v. Chafee, 337 F. Supp. 1214, 1219 (D.D.C. 1972). Therefore, this Court should only intervene if it finds that the ABCMR's denial of a hearing was an abuse of discretion. See Amato v. Chafee, 337 F. Supp. at 1219. There is nothing in the record which indicates that the ABCMR abused its discretion in determining that a hearing was not necessary for the just disposition of plaintiff's application.
Moreover, 10 U.S.C. § 1214 does not override the ABCMR's discretion and require a hearing in this case. That section provides that: "No member of the armed forces may be retired or separated for physical disability without a full and fair hearing if he demands it." It is clear from the terms of the statute that it was not intended to apply to the facts of this case. Here, plaintiff is not being forced to retire because of physical disability. Rather, he is voluntarily seeking the correction of his military records to indicate that he retired disabled.
Nor does Army Regulation 635-40 entitle plaintiff to a hearing on his application. Although that regulation gives the right to a formal hearing in physical disability cases, it only applies to the "Army Physical Disability Evaluation System." The ABCMR may seek advice from components of this system (like the MEBs and PEBs) on issues of disability, as it did in this case, but the ABCMR is not a part of this system and therefore is not bound by regulations governing its operation. See Army Reg. 635-40 § 1-6(a), (b). Accordingly, the Court holds that the ABCMR's denial of a hearing is purely discretionary and that discretion was not abused here.
The ABCMR's Decision was Reasonable and Supported By Substantial Evidence.
The Court's role in cases of this type is limited to reviewing the record to determine whether the ABCMR's decision was arbitrary or capricious, unsupported by substantial evidence, or contrary to law. See, e.g., De Cicco v. United States, 677 F.2d 66, 70 (Ct. Cl. 1982); Heisig v. Secretary of the Army, 554 F. Supp. 623, 627 (D.D.C. 1982); Amato v. Chafee, 337 F. Supp. 1214, 1217 (D.D.C. 1972). The ABCMR's action clearly meets this standard in the case at bar.
It is undisputed that plaintiff is now suffering from a serious illness. However, that is not the question here. The ABCMR was charged with determining whether plaintiff was suffering from a disabling illness at the time of his discharge7 and whether that disability was caused by his ingestion of LSD in an Army experiment.
In order to arrive at a reasoned and supportable conclusion, the ABCMR authorized numerous physical and psychological examinations of plaintiff. Based on the evidence produced by these exams, and the recommendation of the USAPDA,
the Board determined that plaintiff would only have been diagnosed as suffering from a 10% service related disability at the time of his discharge. The severity of his current illness, the Board concluded, was not causally related to the LSD he received in the Army's testing program. The Court finds that this determination was reasonable and supported by substantial evidence.
An Order in accordance with the foregoing will be issued of even date herewith.
For the reasons set forth in the memorandum opinion of even date herewith, it is, by the Court, this 31 day of March, 1983, hereby
ORDERED that Defendant's Motion for Summary Judgment is granted.