Prewitt v. United States

In the United States Court of Federal Claims

No. 22-1673

(Filed: February 10, 2025)

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GEORGE D. PREWITT, JR., *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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George D. Prewitt, Jr., Greenville, MS, pro se.

Kristin E. Olson, U.S. Department of Justice, Civil Division, Washington, DC, counsel for

Defendant. With whom was Holly Bryant, Military Personnel Litigation Branch, U.S. Army

Legal Services Agency, of counsel.

OPINION AND ORDER

DIETZ, Judge.

Pro se plaintiff, George Dunbar Prewitt, a former member of the United States Army,

challenges a decision on remand by the Army Board for Correction of Military Records

(“ABCMR”) that afforded him a disability retirement. Mr. Prewitt contends that the decision was

arbitrary, capricious, an abuse of discretion, and contrary to applicable law because the ABCMR

failed to grant the full relief to which he is legally entitled, assigned him an incorrect disability

percentage, and failed to remove an Article 15 nonjudicial punishment from his records. The

government argues that the ABCMR’s decision should be upheld and that Mr. Prewitt’s

challenge to the ABCMR’s denial of his request to remove the nonjudicial punishment from his

records should be dismissed for lack of jurisdiction because it was filed outside of the Tucker

Act’s six-year statute of limitations. For the reasons set forth below, the Court GRANTS-IN-

PART and DENIES-IN-PART Mr. Prewitt’s Motion for Judgment on the Administrative

Record (“MJAR”), GRANTS-IN-PART and DENIES-IN-PART the government’s MJAR, and

GRANTS the government’s motion to dismiss.

I. BACKGROUND

The Army drafted Mr. Prewitt on March 12, 1968, to fight in the Vietnam War. AR 36. 1

On February 22, 1969, Mr. Prewitt was shot in the neck. AR 36-37. On July 2, 1969, the Army

1

The Court cites to the Administrative Record filed by the government at [ECF 73] as “AR ___.”

issued Mr. Prewitt a DA Form 3349, 2 which stated that he was “medically qualified for limited

duty” but restricted his assignments to avoid “crawling, stooping, running, jumping, prolonged

standing or marching . . . strenuous physical activity . . . [and] prolonged handling of heavy

materials including weapons.” AR 62-63. The form provided that the conditions were permanent.

AR 62. A chronological record of medical care also dated July 2, 1969, stated that Mr. Prewitt’s

“main complaint is now of some limitation of motion [and] pain to the left neck” and that the

question of “a medical board is now raised.” AR 64. The treating physician, however,

recommended a “permanent profile but no board at this time.” Id.

On August 19, 1969, Mr. Prewitt was subject to a forfeiture of $50.00 under Article 15 of

the Uniform Code of Military Justice (“UCMJ”) for failing to report to his duty station at the

U.S. Lyster Army Hospital in Fort Rucker, Alabama, on August 18, 1969, and for disorderly

conduct in the hospital parking lot. AR 147, 195, 197. He did not appeal the non-judicial

punishment. AR 37, 198.

On September 22, 1969, Mr. Prewitt underwent an orthopedic physical evaluation to

assess his fitness for retention. AR 137. The report stated that Mr. Prewitt could “elevate [his]

left arm to 90 degrees but with some pain” and that he was “qualified for retention with [a]

permanent profile, but [] suggest[ed] he have an ENT or plastic surgery consultation for further

evaluation of painful neck injury residuals.” Id.

In January of 1970, Mr. Prewitt underwent a physical examination as part of his

scheduled end of service term. AR 147. In connection with the examination, Mr. Prewitt

underwent a neurology consultation on February 16, 1970, to “evaluate and profile [his injury]

for [s]eparation.” AR 191. The consultation report indicated that “[e]ver since the injury he has

experienced pain at the wound site, which has not improved following scar revision and removal

of neuroma,” and that Mr. Prewitt “complains of hyperesthesia over the upper portion of the

back just to the left of the midline, pain in the left shoulder, and inability to abduct the left arm

beyond 20 degrees.” Id. The report further stated that he “actively abducts the left arm to about

20 degrees but is unable to go beyond this because of pain.” Id. The report concluded: “The

patient’s neck wound apparently resulted in damage to the spinal accessory nerve on the left with

resultant atrophy and loss of function in the upper portion of the left trapezius muscle.”AR 191-

92. The report also concluded that, “[f]rom a neurological point of view, he [was] fit for

separation . . . .” AR 192. The Army released Mr. Prewitt from active-duty service on March 11,

1970, by reason of “[e]xpiration [of t]erm of [s]ervice,” AR 17, “not by reason of physical

disability,” AR 170. Thereafter, he was transferred to the Army Reserve. AR 17, 170. 3

A June 17, 1970, evaluation by the Department of Veterans Affairs (“VA”) Regional

Office noted that Mr. Prewitt could not move his arm beyond 60 to 75 degrees, and assigned him

a disability rating of 30 percent under Diagnostic Code 5301 (muscle injury) and 8211 (cranial

nerve injury). AR 375, 596. The rating decision sheet described the injury as “perforating [gun

2

“The DA Form 3349 is part of the Army's physical profiling system, which is used to determine whether a physical

condition has temporarily or permanently affected a soldier's ability to perform his or her military duty.” Adams v.

United States, 117 Fed. Cl. 628, 630 n.4 (2014).

3

Mr. Prewitt was honorably discharged from the Army Reserve on March 1, 1974. AR 148, 175.

2

shot wound], left neck and shoulder (major), involving muscle [group] I with injury to spinal

accessory nerve, excision of neuroma, limitation of motion of left shoulder and atrophy of

trapezius.” AR 597 (capitalization omitted). Mr. Prewitt did not appeal the rating decision. AR

366.

However, in an order by the Board of Veterans’ Appeals (“BVA”) dated April 17, 2019,

it was noted “that the June 1970 RO adjudicators committed [clear and unmistakable error] by

failing to assign a separate rating for residual scar[r]ing from [the gunshot wound] to the left

neck and shoulder.” AR 740, 756-57. The BVA then determined that “[t]he evidence supports a

10 percent rating under Diagnostic Code 7804 for residual scar[r]ing from [the gunshot wound]

to the left neck and shoulder, from March 12, 1970, to January 1, 1980.” AR 757. Therefore, as

of April 2019, the VA assigned Mr. Prewitt a combined disability rating, effective March 1970,

of 40 percent: 30 percent under Diagnostic Code 5301-8211 (muscle injury and cranial nerve

injury from gunshot wound) and 10 percent under Diagnostic Code 7804 (residual scarring from

gunshot wound). AR 787-88. The VA has periodically adjusted his disability rating since 1980 to

account for additional service-connected disabilities, as his impairments have evolved over time.

See AR 787-89.

On August 26, 2019, Mr. Prewitt applied to the ABCMR for a correction to his records,

arguing that he “should have been considered for a military disability retirement due to the

muscle-atrophying effects of the through-and-through gunshot wound to [his] left neck” which

occurred while he was serving in Vietnam. AR 157. The ABCMR asked the Army Review

Board Agency (“ARBA”) medical advisor to review Mr. Prewitt’s case. AR 149. The ARBA

medical advisor found that Mr. Prewitt should have been referred to the Physical Disability

Evaluation System (“DES”) at the time of his separation “as []his injury failed at least two

medical retention standards.” AR 151. The advisor noted that Mr. Prewitt “has several VA

service[-]connected disability ratings, . . . which are likely due to the gunshot wound to his

neck.” AR 152. The medical advisor opined “that a long overdue referral of this case to the

[DES] is clearly warranted.” Id.

The ABCMR concluded that Mr. Prewitt was entitled to partial relief and referred his

claim to the Office of the Surgeon General “to determine if the disability evaluation he received

from the Army accurately depicted his conditions as they existed at the time.” AR 153. 4 The

ABCMR added: “If a review by the Office of The Surgeon General determines the evidence

supports amendment of his disability evaluation records, [Mr. Prewitt] will be afforded due

process through the [DES] for consideration of any additional diagnoses (or changed diagnoses)

identified as having not met retention standards prior to his discharge.” Id. The Office of

Surgeon General asked Dr. Robert B. Coutant of the Fort Benning Medical Evaluation Board to

review Mr. Prewitt’s records. AR 140. Dr. Coutant determined that Mr. Prewitt “did not require

referral to the DES” in the February 1970 timeframe. AR 142 (emphasis omitted). Thereafter, the

Office of the Surgeon General endorsed Dr. Coutant’s opinion. See AR 140. The ARBA then

informed Mr. Prewitt that “it was determined that [he] did not require disability processing at the

time of separation.” AR 139.

4

Although the ABCMR noted that Mr. Prewitt “did not file within the three-year time frame provided in Title 10,

United States Code, section 1552(b),” it nevertheless found, after conducting a substantive review of his case, that

“it [was] in the interest of justice to excuse [his] failure to timely file.” AR 145.

3

On November 9, 2022, Mr. Prewitt filed a complaint in this Court challenging the

ABCMR’s decision as arbitrary, capricious, an abuse of discretion, and contrary to law, arguing

that he should be provided a medical disability retirement. Compl. [ECF 1] ¶ 22. Mr. Prewitt also

sought removal of the Article 15 nonjudicial punishment from his record and a refund of the

associated $50 fine. [ECF 1] ¶ 21. After reviewing the Complaint and other filings, the

government moved to remand Mr. Prewitt’s case to the ABCMR because it “did not afford Mr.

Prewitt an opportunity to submit any arguments or evidence in response to Dr. Coutant’s opinion

or the Office of the Surgeon General’s memorandum.” Def.’s Mot. to Remand [ECF 18] at 3-4. 5

Mr. Prewitt opposed the motion: “There is no factual basis in my post-active duty record to

support Dr. Coutant’s ex parte findings . . . .” Pl.’s Resp. to Def.’s Mot. to Remand [ECF 20] at 4

(emphasis omitted). He added: “It should be plain . . . that Dr. Coutant omitted vital information

in my military records that would have contradicted his conclusion that I should have not been

permitted access to the [DES] in 1970.” Id. at 6. The Court granted the government’s motion for

remand on April 25, 2023, finding that allowing the ABCMR to reconsider its decisions based on

new rebuttal arguments and evidence from Mr. Prewitt and allowing Mr. Prewitt to raise any

new claims, including his claim relating to the Article 15 punishment, were legitimate reasons

for a remand. See Prewitt v. United States, 2023 WL 3083162, at *2 (Fed. Cl. Apr. 25, 2023).

In his application to the ABCMR, Mr. Prewitt argued that under Army Regulation 635-

200, he was “considered to be in the DES process from July 2, 1969[,] when the DA Form 3349

and the ‘Health Record’ of the same date were issued.” AR 56. Therefore, he contended that he

“should have been considered for military retirement in 1969 . . . .” AR 55. He further stated that

he was never presented with the waiver form and thus never given the opportunity to waive his

right to separation because of physical disability, as required by Section 4.2(c) of Army

Regulation 635-200. See AR 56. With respect to the Article 15 punishment, Mr. Prewitt

challenged its validity on the grounds that the infractions are not “found within the ‘punitive

articles’ of Title 10, U.S. Code,” AR 58, and that he was “denied [his] right of appeal,” id. Mr.

Prewitt contends that, but for the wrongful Article 15 punishment and his subsequent orders to

report to Fort Benning, Georgia, he “would have remained in the Medical Hold Detachment at

Fort Rucker, Alabama in 1969 and would have been considered for medical retirement from the

military in 1969.” AR 61. He requested the following relief:

I request that I be placed back in a Medical Hold Detachment, or its

present day equivalence, that I be treated as if I had remained in the

Medical Hold Detachment from August 20, 1969 to the present,

together with all due compensation with interest from August 20,

1969 to the present, and that I be medically retired from the Army

with appropriate compensation from the present day forward.

Id. On August 22, 2023, the ABCMR granted Mr. Prewitt partial relief. See AR 29-47. The

ABCMR stated:

2. The Board agreed that the preponderance of the evidence

supported the applicant’s contention that, during his military

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All page numbers in the parties’ filings refer to the page numbers generated by the CM/ECF system.

4

service, he had a medical condition that failed retention standards.

The condition, a gunshot wound to the left neck causing injury to

the nerves and muscles in the left shoulder that limited range of

motion, prevented the applicant from performing the duties of an

infantryman, thus rendering him unfit. An error or injustice occurred

when the Army did not process the applicant through the Physical

[DES]. In retrospect, the preponderance of the evidence suggests the

applicant would have been medically separated at the conclusion of

the process rather than being separated due to expiration of his term

of service.

3. The Board considered the VA rating that the applicant received

for the unfitting condition, effective 12 March 1970, and adopts it

as the Army rating for purposes of his disposition. Since the VA

rated the unfitting condition at 30 percent, the Army rating will be

30 percent. Based on a preponderance of the evidence, the Board

determined the applicant’s record should be corrected to show he

was retired for permanent disability with a 30 percent disability

rating effective 11 March 1970, with placement on the Permanent

Disability Retired List the following day.

AR 43. The ABCMR recommended correcting Mr. Prewitt’s records to show that “he was retired

for permanent disability with a 30 percent disability rating effective 11 March 1970, with

placement on the Permanent Disability Retired List the following day.” AR 44. With respect to

the Article 15 punishment, the ABCMR “concluded the preponderance of the evidence does not

show an error or injustice occurred,” and therefore no relief was warranted. AR 43-44.

On October 5, 2023, Mr. Prewitt filed notice pursuant to Rule 52.2(e) of the Rules of the

United States Court of Federal Claims (“RCFC”), informing the Court that the ABCMR decision

did not provide a satisfactory basis for disposition of the case. Pl.’s Rule 52.2(e) Notice [ECF

41]. Mr. Prewitt challenged the 30 percent disability rating assigned by the ABCMR, see id. at 7,

asserted that he should be given the option to elect retirement on length of service or a disability

retirement, see id. at 12, and argued that the Article 15 charge in 1969 should be voided and

removed from his records, see id. at 14, 17. The government filed its RCFC 52.2(e) notice on

October 6, 2023, stating that the ABCMR’s “decision is satisfactory to the United States, and, in

[its] view, no further Court proceedings are required in this case.” Def.’s Rule 52.2(e) Notice

[ECF 40] at 2. The government explained that “[t]he benefits that flow from [Mr. Prewitt’s

corrected disability] rating will be calculated by the Defense Finance and Accounting Service

(DFAS) once Mr. Prewitt’s revised formal discharge document, DD-214, is issued.” Id.

Regarding the Article 15 charge, the government stated that, “because Mr. Prewitt filed his

complaint more than six years after March 11, 1970, the date of his separation from active duty,

his Article 15 claim falls outside the statute of limitations, and this Court does not have

jurisdiction over that claim.” Id.

The Court held a status conference on November 16, 2023, to discuss further proceedings

in this case. Order [ECF 48]. After the conference, the Court ordered the government to file a

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status report “detailing the DFAS’s progress in calculating Mr. Prewitt’s entitlement as a result

of the ABCMR’s August 23, 2023, decision.” Order [ECF 49] at 1. The Court further ordered

DFAS to “expedite Mr. Prewitt’s entitlement calculation,” and directed the government to

“confer with Mr. Prewitt to discuss DFAS’s calculations in relation to the ABCMR’s decision.”

Id. Subsequently, on January 22, 2024, the government informed the Court that it had identified

a Retirement Services Officer (RSO) to assist Mr. Prewitt in gathering the information needed by

DFAS to complete the entitlement calculation, including providing Mr. Prewitt with a retired pay

application or DD 2656. See Def.’s Status Report [ECF 58] at 1-2. The government also stated

that it could not “proceed until the RSO receives the completed DD2656 form from Mr. Prewitt.”

Id. at 2. On March 14, 2024, the government informed the Court that “the parties ha[d] reached a

stalemate regarding the execution of the August 22, 2023 remand decision of the [ABCMR].”

Def.’s Status Report [ECF 69] at 1. The government added: “Mr. Prewitt has declined to

complete the DD 2656 . . . [and] DFAS cannot create Mr. Prewitt’s retirement account or

calculate any entitlement that results from the ABCMR’s remand decision until the DD 2656 is

submitted.” Id. at 3. Furthermore, the government stated that “it appears that Mr. Prewitt does

not want the Government to proceed [with calculating his retirement benefits] until certain legal

disputes are settled.” Id. at 4.

The Court held another status conference on March 18, 2024, to discuss further

proceedings. Order [ECF 71]. After the status conference, the Court issued a scheduling order for

filing cross-MJARs to address the outstanding legal issues raised by Mr. Prewitt. Scheduling

Order [ECF 72]. The government filed the administrative record on April 19, 2024. AR [ECF

73]. The parties then filed their respective cross-MJARs, which were fully briefed as of

September 6, 2024. See Pl.’s Renewed Mot. for Partial J. [ECF 52]; Def.’s Cross-Mot. for J. on

the AR & Partial Mot. to Dismiss [ECF 79]; Pl.’s Resp. [ECF 87]; Def.’s Reply [ECF 90]; Pl.’s

Resp. to the Def.’s 8/19/2024 Doc. [ECF 92]; Second Pl.’s Resp. to the Def.’s 8/19/2024 Doc.

[ECF 94]. 6

On December 3, 2024, the Court asked the parties about their availability for oral

argument on the pending cross-MJARs. Order [ECF 96] at 1. Mr. Prewitt expressed concerns

about participating in an oral argument due to his age, and instead proposed responding in

writing to the Court’s questions. Id. The Court adopted Mr. Prewitt’s alternative approach to oral

argument and ordered that the parties respond in writing to its questions. Id. Mr. Prewitt provided

responses on December 18, 2024, Pl.’s Resp. [ECF 98], and the government responded on

January 8, 2025, Def.’s Resp. [ECF 102]. On January 15, 2025, Mr. Prewitt filed a reply to the

government’s response. Mot. for Permission [ECF 104]. The Court ordered that the reply be filed

by leave. Order [ECF 103].

II. LEGAL STANDARDS

Under RCFC 52.1(c), parties may move for judgment on the administrative record.

“When reviewing a motion for judgment on the administrative record . . . the court may make

factual findings based on record evidence ‘as if it were conducting a trial on the record.’”

Wollman v. United States, 108 Fed. Cl. 656, 671 (2013) (quoting Bannum, Inc. v. United States,

6

As noted in the Court’s March 25, 2024, scheduling order, the Court treated Mr. Prewitt’s December 8, 2023,

motion for partial summary judgment as his MJAR. See [ECF 72] at 1.

6

404 F.3d 1346, 1353-54 (Fed. Cir. 2005)). The inquiry before the court is whether a decision-

making body, “given all the disputed and undisputed facts appearing in the record, acted in a

manner that complied with the legal standards governing the decision under review.” Williams v.

United States, 116 Fed. Cl. 149, 157 (2014). “Even when the administrative record is silent as to

some disputed facts, the court may still render judgment if the agency provided an adequate

discussion of the bases of its decision.” Wollman, 108 Fed. Cl. at 672.

“[J]udicial review of decisions of military correction boards is conducted under the

[Administrative Procedure Act]” standard of review. Walls v. United States, 582 F.3d 1358, 1367

(Fed. Cir. 2009); see Brooks v. United States, 65 Fed. Cl. 135, 140 (2005) (“The Court reviews

the decision of a Secretary acting through a Correction Board according to a standard borrowed

from the [APA].”). Under this standard, the court “will not disturb the decision of the corrections

board unless it is arbitrary, capricious, contrary to law, or unsupported by substantial evidence.”

Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005) (citing Haselrig v. United

States, 333 F.3d 1354, 1355 (Fed. Cir. 2003)). The plaintiff bears the burden of showing, by

“cogent and clearly convincing evidence,” that a correction board’s action is arbitrary,

capricious, contrary to law, or unsupported by substantial evidence. Wronke v. Marsh, 787 F.2d

1569, 1576 (Fed. Cir. 1986) (quoting Dorl v. United States, 200 Ct. Cl. 626, 633 (1973)).

Jurisdiction is a threshold issue that the court must resolve before proceeding to the

merits of a case. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94–95 (1998) (stating

that jurisdiction is a threshold matter); Hardie v. United States, 367 F.3d 1288, 1290 (Fed. Cir.

2004) (stating that jurisdiction must be established before proceeding to the merits). “The Tucker

Act governs whether this court has subject matter jurisdiction.” Santiago v. United States, 71

Fed. Cl. 220, 227 (2006) (citing 28 U.S.C. § 1491). The Tucker Act confers upon this

Court jurisdiction over “any claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an executive department, or upon any

express or implied contract with the United States, or for liquidated or unliquidated damages in

cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). “Claims under the Tucker Act are subject to

the six-year statute of limitations in 28 U.S.C. § 2501.” Chambers, 417 F.3d at 1223. Section

2501 provides that “[e]very claim of which the United States Court of Federal Claims has

jurisdiction shall be barred unless the petition thereon is filed within six years after such claim

first accrues.” 28 U.S.C. § 2501. “Generally, [a] cause of action cognizable in a Tucker Act

suit accrues as soon as all events have occurred that are necessary to enable the plaintiff to bring

suit, i.e., when ‘all events have occurred to fix the Government’s alleged liability, entitling the

claimant to demand payment and sue . . . for [the plaintiff’s] money.’” Jones v. United States, 30

F.4th 1094, 1100 (Fed. Cir. 2022) (alterations in original) (quoting Martinez v. United States,

333 F.3d 1295, 1303 (Fed. Cir. 2003)). While a wrongful discharge claim seeking backpay under

the Military Pay Act, 37 U.S.C. § 204, accrues at the time of discharge, Martinez, 333 F.3d at

1303, a disability retirement pay claim under 10 U.S.C. § 1201 “generally do[es] not accrue until

the appropriate military board either finally denies such a claim or refuses to hear it,” Chambers,

417 F.3d at 1224.

When considering a motion to dismiss for lack of jurisdiction, “a court must accept as

true all undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences

in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.

7

Cir. 2011) (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). The plaintiff bears

“the burden of establishing jurisdiction, including jurisdictional timeliness . . . .” Alder Terrace,

Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998). If a plaintiff’s claim is filed outside

of the six-year statute of limitations, this court lacks jurisdiction over the claim, and it must be

dismissed. Jordan v. United States, 158 Fed. Cl. 440, 448 (2022); see RCFC 12(h)(3) (“If the

court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the

action.”). The court may afford a pro se plaintiff “leniency with respect to mere formalities.”

Kelley v. Sec’y, U.S. Dep’t of Lab., 812 F.2d 1378, 1380 (Fed. Cir. 1987). However, “where the

question is the calculation of the time limitations placed on the consent of the United States to

suit, a court may not similarly take a liberal view of that jurisdictional requirement and set a

different rule for pro se litigants only.” Id.

III. ANALYSIS

Mr. Prewitt challenges the ABCMR’s decision on three grounds. First, Mr. Prewitt argues

that Army Regulation 635-200 gave him the option of remaining in active-duty status instead of

being separated for expiration of his term of service and that, therefore, the ABCMR should have

restored him to active-duty status through the present day and applied his disability retirement

status from the present day forward. See [ECF 52] at 4-11; [ECF 92] at 1-5. Second, Mr. Prewitt

argues that he is entitled to a higher disability percentage than the 30% assigned by the ABCMR.

See Pl.’s Mot. for Partial J. [ECF 44] at 1-10; [ECF 52] at 12. Third, Mr. Prewitt argues that the

ABCMR improperly failed to remove his UCMJ Article 15 nonjudicial punishment from his

records. See [ECF 44] at 10-11; [ECF 87] at 9-10; [ECF 92] at 7-8. In response, the government

states that “Mr. Prewitt separated from active duty on March 11, 1970[;] [that] Mr. Prewitt has

not, and cannot, demonstrate that he would have remained on active duty until August 2023[;]

[and that] Mr. Prewitt’s date of separation is not before the Court.” [ECF 90] at 6. Regarding the

disability percentage assigned by the ABCMR, the government asserts that the ABCMR’s

“decision to grant Mr. Prewitt retirement disability and set his disability rating at 30 percent is

supported by substantial evidence.” [ECF 79] at 22. Finally, the government contends that the

ABCMR’s decision to deny his Article 15 challenge is not reviewable because it falls outside of

this Court’s statute of limitations, and therefore Mr. Prewitt’s challenge to the Article 15 decision

should be dismissed. Id. at 22, 34-36. As explained below, the Court finds that the ABCMR

provided Mr. Prewitt with appropriate relief, that the ABCMR was arbitrary in failing to consider

the corrected VA disability rating, and that Mr. Prewitt’s challenge to his Article 15 nonjudicial

punishment is time-barred.

A. Mr. Prewitt’s Challenges Under Army Regulation 635-200

Mr. Prewitt argues that the ABCMR erred by not granting him the full relief to which he

is entitled under law. [ECF 52] at 4-11; [ECF 92] at 1-5. He contends that he asked to “be placed

back in a Medical Hold Detachment, or its present day equivalen[t], that [he] be treated as if [he]

had remained in the Medical Hold Detachment from August 20, 1969 to the present, together

with all due compensation with interest from August 20, 1969 to the present, and that [he] be

medically retired from the Army with appropriate compensation from the present day forward.”

[ECF 52] at 4-5 (emphasis omitted). Instead of granting his requested relief, the ABCMR

retroactively determined that he “would have been medically separated at the conclusion of the

8

[DES] process rather than being separated due to expiration of his term of service,” id. at 4

(emphasis omitted), and corrected his records to show that he was permanently retired effective

March 11, 1970, id. at 3. Mr. Prewitt argues that, per Army Regulation 635-200, he should have

been given the opportunity to remain in active-duty status while he was being processed in the

DES. See id. at 5-6; [ECF 104] at 1-7. By being retired effective March 11, 1970, he asserts that

he was deprived of the rights and advantages of remaining in active-duty status, including receipt

of active-duty pay and allowances, accumulation of additional active service creditable for

longevity and retirement for length of service, and the option to elect retirement pay. See [ECF

52] at 7-9; [ECF 92] at 5.

The Court finds that the relief provided by the ABCMR—correcting Mr. Prewitt’s

records to show that he was retired for permanent disability—was appropriate and consistent

with the law. Under 10 U.S.C. § 1552, the Secretary of the Army, acting through the ABCMR,

has the authority to correct military records when necessary to rectify an error or remove an

injustice. See 10 U.S.C. § 1552(a); Denton v. United States, 204 Ct. Cl. 188, 199 (1974) (Section

1552 “grants to the Secretary, acting through the Correction Board, the power to correct records

when a correction is necessary to rectify an error or remove an injustice.”). As explained by the

United States Court of Appeals for the Federal Circuit, “the discretionary power granted to the

Correction Boards by [10 U.S.C. § 1552] includes the power to backdate discharges where such

backdating places the claimant where he likely would have been absent the improper discharge.”

Barnick v. United States, 591 F.3d 1372, 1380 (Fed. Cir. 2010) (alteration in original) (quoting

Denton, 204 Ct. Cl. at 200). Put differently, “the Board necessarily has the power not only to

correct [a claimant’s] records to give him relief, but to do so in a manner that places him in the

position he would have occupied absent the improper discharge.” Keltner v. United States, 165

Fed. Cl. 484, 505 (2023) (citing Barnick, 591 F.3d at 1380).

Here, the ABCMR determined that “[a]n error or injustice occurred when the Army did

not process [Mr. Prewitt] through the Physical [DES],” AR 43, and that, “[i]n retrospect, the

preponderance of the evidence suggests [Mr. Prewitt] would have been medically separated at

the conclusion of the process rather than being separated due to expiration of his term of

service,” id. The ABCMR recommended that the Army correct Mr. Prewitt’s records to show

that “he was retired for permanent disability with a 30 percent disability rating effective 11

March 1970, with placement on the Permanent Disability Retired List the following day.” AR

44. The ABCMR is “competent to make such a retroactive disability determination.” Barnick,

591 F.3d at 1380 (citing Sawyer v. United States, 930 F.2d 1577, 1581 (Fed. Cir. 1991)).

Furthermore, doing so placed Mr. Prewitt in the position he would have occupied absent the

Army’s failure to properly process him through the DES. See id. Having determined that Mr.

Prewitt was improperly denied disability payments due to the Army’s error or injustice in 1970,

the ABCMR properly concluded that he should be entitled to receive the disability payments due

as of the date of his separation. See id. (concluding that a service member who is improperly

denied disability benefits is only entitled to receive retroactive disability payments). Thus, Mr.

Prewitt has received the full relief to which he is entitled.

The Court is not persuaded by Mr. Prewitt’s argument that the ABCMR failed to grant

him full relief because it did not restore him into active-duty and allow him to be properly

processed through the DES. See [ECF 52] 4-11; [ECF 87] at 7-8. Since the ABCMR determined

9

that Mr. Prewitt was incorrectly separated due to the expiration of his term of service and that he

should have been separated because he was unfit, see AR 43, Mr. Prewitt contends that he should

be placed back into active-duty status and permitted to waive “processing for separation by

reason of physical disability” under Section 2.2(c) of Army Regulation 635-200, [ECF 52] at 6.

He further argues that, under Section 2.6 of the regulation, he should have the option to be

retained in active-duty service and be counseled on the advantages of being retained in active-

duty prior to his disability separation. [ECF 52] at 7. However, while these procedural

protections could have been triggered had Mr. Prewitt been properly found to be unfit in 1970,

they are not triggered now because of the ABCMR’s correction of his record. See Keltner, 165

Fed. Cl. at 505-06 (explaining that the board corrected the service member’s record for the

purpose of crafting a remedy and that disability processing procedural requirements were not

triggered). The ABCMR’s determination that Mr. Prewitt should have been determined unfit for

retention and the resultant correction of his record to show a disability retirement “is not a time

machine” that places Mr. Prewitt back in a medical hold detachment in 1970 awaiting processing

in the DES. Id. at 505. It does not “retroactively require[] the [Army] to follow procedures it can

no longer follow because of the passage of time.” Id. 7

Further, there is no evidence that Mr. Prewitt would have been able to continue in active

duty in 1970, and such a proposition contradicts the basis for his instant claim—that his

condition at the time of separation was sufficiently severe and permanent to warrant a disability

retirement. This type of claim “do[es] not support treating a service member as being on

constructive active duty.” Barnick, 591 F.3d at 1379. The objective of the ABCMR “was to

review [Mr. Prewitt’s] records and to place [Mr. Prewitt] in the position he would have been in,

but for any errors which may have been committed by the [Army] at the time of his separation.”

Petri v. United States, 104 Fed. Cl. 537, 558 (2012). By correcting Mr. Prewitt’s records to show

that he was retired for permanent disability effective March 11, 1970, the ABCMR “merely

proceeded in such a manner as to best approximate, in its judgment, what would have occurred in

[1970] but for the improper [separation].” Barnick, 591 F.3d at 1380.

The ABCMR’s conclusion that Mr. Prewitt “would have been medically separated at the

conclusion of the [DES] process,” AR 43, is supported by substantial evidence. The ABCMR

carefully considered Mr. Prewitt’s “application, all supporting documents, and the evidence

found within the military record.” Id. Of note, the ABCMR decision also cited to the DA Form

3349 dated July 2, 1969, which showed that Mr. Prewitt “was placed on a physical profile based

on his gunshot wound,” that his conditions placed significant limitations on his ability to perform

his duties, and that his conditions were permanent. AR 37. It next cited to a clinical record from

a physical examination that Mr. Prewitt underwent on January 20, 1970. Id. The record stated

that, ever since Mr. Prewitt’s injury, “he has experienced pain at the wound site, which has not

improved . . . [and] complains of hyperesthesia over the upper portion of the back just to the left

of the midline, pain in the left shoulder, and inability to abduct the left arm beyond 20 degrees.”

7

To the extent Mr. Prewitt is arguing that he was wrongfully separated on March 11, 1970, and that he was legally

entitled to continue in active duty absent error by the Army, this constitutes a wrongful discharge claim that is

barred by the Tucker Act’s six-year statute of limitations for suits brought in this Court. See 28 U.S.C. § 2501;

Martinez, 333 F.3d at 1310 (holding that a cause of action for recovery of the monetary losses suffered because of a

wrongful discharge from active duty accrues on the date of the discharge). A wrongful discharge claim seeking back

pay is distinguishable from a disability retirement claim seeking disability pay. See Chambers, 417 F.3d at 1223-25.

10

AR 37-38. It further stated that Mr. Prewitt “is unable to shrug the left shoulder, and the loss of

trapezius muscle mass renders the upper part of the left scapula easily palpable and somewhat

tender. . . . [and that he] actively abducts the left arm to about 20 degrees but is unable to go

beyond this because of pain.” AR 38. Finally, the ABCMR also cited a medical advisory opinion

issued by the ARBA medical staff in connection with Mr. Prewitt’s initial ABCMR hearing. Id.

Therein, the ARBA medical staff advised that Mr. Prewitt was mistakenly found to be fit for

separation and that he should have been evaluated by the DES because he failed two medical

retention standards by being unable to “abduct or forward elevate the arm at the shoulder to at

least 90 degrees . . . [and because the f]laccid paralysis of one or more muscles . . . [caused a

l]oss of function which preclude[d the] satisfactory performance of duty . . . .” AR 39-40. Based

on this record evidence, the ABCMR reasonably determined that “the preponderance of the

evidence supported [Mr. Prewitt’s] contention that, during his military service, he had a medical

condition that failed retention standards.” AR 43. Specially, the ABCMR agreed with Mr.

Prewitt that his “condition, a gunshot wound to the left neck causing injury to the nerves and

muscles in the left shoulder that limited range of motion, prevented [him] from performing the

duties of an infantryman, thus rendering him unfit.” Id. The Court will not disturb the ABCMR’s

judgment. 8

B. Mr. Prewitt’s Challenge to His Disability Percentage

Mr. Prewitt challenges the 30 percent disability rating assigned by the ABCMR as

arbitrary and contrary to law, arguing that the ABCMR adopted the June 17, 1970, disability

rating without considering other record evidence that shows he was entitled to a higher disability

rating at the time of his release from active duty. 9 See [ECF 44] at 1-10; [ECF 52] at 12. He

8

Mr. Prewitt cites the “half a loaf” doctrine to argue that the ABCMR erred by not granting him full relief. “The

‘half-a-loaf’ doctrine is an exception to the general rule that a plaintiff’s claim for relief arises at the time of

improper dismissal in military pay cases.” Homcy v. United States, 536 F.2d 360, 364 (Ct. Cl. 1976). The doctrine

“normally applies where a corrections board grants plaintiff’s claim, but stops short of awarding the full appropriate

relief requested by [the] plaintiff.” Bonen v. United States, 666 F.2d 536, 539 (Ct. Cl. 1981). The “[f]ailure of the

board to grant full relief where it is mandated by the records change [thus] results in a new cause of action or

continuing claim which revives the statute of limitations.” Id. (quotation marks omitted). Here, the government

concedes that the Court has jurisdiction over Mr. Prewitt’s disability retirement claim because he filed his complaint

within six years of the ABCMR’s initial decision denying his claim for disability retirement. [ECF 102] at 3-4.

Further, the government does not argue that Mr. Prewitt is barred by the statute of limitations from challenging the

ABCMR’s decision on his disability retirement claim. See [ECF 90] at 4. Because the Court finds that the ABCMR

granted Mr. Prewitt the full relief mandated by the record correction, the exception to the statute of limitations

provided by the “half a loaf” doctrine is not implicated. See Jones v. United States, 225 Ct. Cl. 643, 644 (1980)

(stating that “[i]f . . . the part of the requested relief that the board denied did not flow logically and legally from the

record correction it granted, a new cause does not accrue on the denied portion”); Rumph v. United States, 288 Ct.

Cl. 855, 857 (1981) (stating that the half a loaf doctrine “applies only where the relief sought should have followed

as a matter of law from the partial relief granted by the Correction Board”); Debow v. United States, 434 F.2d 1333,

1335 (Ct. Cl. 1970) (explaining that “[a] major reason why we have extended the concept of a ‘new cause of action’

or a ‘continuing claim’ to petitions grounded upon a beneficial administrative determination which cuts off a

claimant without the full relief he seeks, and to which he is entitled, is that, once the Board decides to give a remedy,

it should not be free to slice the relief illegally or arbitrarily, sending the claimant forth with half-a-legal-loaf or even

less”).

9

The government argues that Mr. Prewitt waived his right to challenge the ABCMR’s assigned disability rating

because “he did not claim that he was entitled to a specific disability percentage.” [ECF 79] at 30. The Court

disagrees. Because Mr. Prewitt was incorrectly separated for expiration of his term of service—as determined by the

11

further argues that this Court should not “permit the ABCMR to blindly parrot the 1970 rating of

the VA instead of obeying its statutory mandate to independently assess [his] neck muscle

injuries that were diagnosed in a July 2, 1969 health record [] as ‘some restriction of motion in

left neck.’” [ECF 87] at 9. He contends that, under 10 U.S.C. § 1216a, the ABCMR was required

to utilize the VA schedule for rating disabilities and account for all medical conditions. [ECF 52]

at 11. He also states that the ABCMR’s adoption of the 1970 VA rating decision “ignored the

multiple unfitting conditions listed by the ARBA medical advisor” and failed to independently

apply the VA rating schedule to those injuries. [ECF 63] at 17. He believes that if the ABCMR

had used the VA rating schedule, it would have assigned him a higher disability rating. [ECF 52]

at 12; [ECF 63] at 15-22.

Under 10 U.S.C. § 1216a, the Army “shall, to the extent feasible, utilize the schedule for

rating disabilities in use by the Department of Veterans Affairs.” 10 U.S.C. § 1216a(a)(1)(A). In

doing so, the Army is required to “take into account all medical conditions, whether individually

or collectively, that render the member unfit to perform the duties of the member’s office, grade,

rank, or rating.” 10 U.S.C. § 1216a(b). Despite utilizing the same ratings schedule, the disability

ratings assigned by the Army and the VA serve different purposes and consider different factors.

See Schmidt v. Spencer, 319 F. Supp. 3d 386, 393 (D.D.C. 2018) (explaining that the military

and the VA use the same disability rating schedule in entirely different ways), aff’d sub nom.

Schmidt v. McPherson, 806 F. App’x 10 (D.C. Cir. 2020); Mazarji v. United States, 164 Fed. Cl.

298, 309 (2023) (explaining that “although the DOD and VA use the same ratings schedule and

evaluation system to assign a disability percentage, the departments’ compensation regimes

differ in important ways”). The Army uses the VA disability rating schedule “to determine

whether or not the service member is fit ‘to perform the duties of office, grade, rank, or rating.’”

Stine v. United States, 92 Fed. Cl. 776, 795 (2010) (quoting Haskins v. United States, 51 Fed. Cl.

818, 826 (2002)), aff’d, 417 F. App’x 979 (Fed. Cir. 2011). The Army is concerned with “what

compensation the service member is due for the interruption of his military career . . . [and,

therefore, bases its rating on] a snapshot of the service member’s condition at the time of

separation from the service.” Stine, 92 Fed. Cl. at 795 (citations omitted). In contrast, the VA

uses the disability rating schedule to assign “disability ratings based on an evaluation of the

individual’s capacity to function and perform tasks in the civilian world.” Id. (quoting Haskins,

51 Fed. Cl. at 826). Because the VA is examining an individual’s ability to engage in the civilian

world, it “evaluates and adjusts disability ratings throughout the individual’s lifetime.” Id.

Consequently, the disability ratings assigned by the Army and the VA may differ. See Mazarji,

164 Fed. Cl. at 309 (“These features can cause a servicemember to be assigned different DOD

and VA disability ratings.”). Because of these differences, “VA decisions are ‘not determinative

ABCMR—he was not processed through the DES and was not assigned a disability rating by the Army. Therefore,

the ABCMR was the first competent board to consider his eligibility for a disability retirement and assign a

disability rating. See Chambers, 417 F.3d at 1225 (stating that “where the service member was released from service

without a board hearing and subsequently files a claim for disability retirement before a military correction board,

‘[t]he Correction Board becomes the first proper board to act (or to be asked to act) on the matter’”) (quoting

Friedman v. United States, 310 F.2d 381, 392 (Ct. Cl. 1962)). Prior to the ABCMR hearing, the Army had not

assigned Mr. Prewitt a disability to which he could object. See Doyle v. United States, 599 F.2d 984, 1001 (Ct. Cl.

1979) (stating that “plaintiffs are required to voice their objections in such a way that the Secretary or Correction

Board is aware of problems, well known to plaintiffs, in the manner a remedy is effectuated before it is

effectuated”). Since Mr. Prewitt is now aware of the ABCMR’s assignment of a disability rating, he may challenge

it in the first instance.

12

of the issues involved in military disability retirement cases.” Ward v. United States, 133 Fed. Cl.

418, 431 (2017) (quoting Lord v. United States, 2 Cl. Ct. 749, 754 (1983); see also Banerjee v.

United States, 77 Fed. Cl. 522, 537 (2007) (stating that “the ABCMR is not bound by VA Rating

Decisions”).

Here, the Court finds that the ABCMR acted rationally when it adopted the June 17,

1970, VA decision assigning Mr. Prewitt a 30 percent disability rating. However, the Court also

finds that the ABCMR acted arbitrarily by not considering whether to adopt the BVA’s April

2019 correction to Mr. Prewitt’s 1970 rating. Shortly after his release from active duty on March

11, 1970, AR 17, Mr. Prewitt underwent an evaluation by the VA on June 17, 1970, after which

he was assigned a disability rating of 30 percent under Diagnostic Code 5301 (muscle injury)

and 8211 (cranial nerve injury), AR 596-97. In its decision, the ABCMR described Mr. Prewitt’s

unfitting condition as “a gunshot wound to the left neck causing injury to the nerves and muscles

in the left shoulder that limited range of motion . . . .” AR 43. The ABCMR stated: “The Board

considered the VA rating that the applicant received for the unfitting condition, effective 12

March 1970, and adopts it as the Army rating for purposes of his disposition. Since the VA rated

the unfitting condition at 30 percent, the Army rating will be 30 percent.” Id. This decision was

rational and consistent with applicable law. The report from the VA’s June 17, 1970, evaluation

represents the most contemporaneous record of Mr. Prewitt’s condition and fitness to perform his

duties at the time of his release. Furthermore, the VA’s findings are supported by other

contemporaneous medical records, such as the Army’s January 1970 physical examination, AR

3213-16, and the VA’s April 1970 examination, AR 479-84. 10 By adopting the VA’s assigned

disability rating, the ABCMR utilized the VA’s schedule for rating disabilities and accounted for

Mr. Prewitt’s medical conditions at the time of his release from active duty.

Mr. Prewitt argues that the record does not show that the ABCMR considered other VA

rating decisions, such as the ones dated May 20, 1980, and February 18, 2003, which he claims

entitled him to a higher disability rating. See [ECF 63] at 17-18, 20-21. However, these

subsequent VA rating decisions do not indicate that the VA’s 1970 rating was incorrect. Rather,

they demonstrate that the VA continued to reconsider Mr. Prewitt’s disability ratings in response

to his requests for increased ratings. For example, in the May 20, 1980, decision, the VA

examiner stated: “In considering the veteran’s claim, [the] VA examination on February 13,

1980, did not furnish limitation of motion but when the veteran personally demonstrated the

limitation of motion . . . it became readily apparent that the veteran’s disability had been under[-

]evaluated.” AR 614. As a result, one of the changes the VA made was to increase Mr. Prewitt’s

March 12, 1970, rating of 30 percent under DC 5301-8211 to 40 percent effective January 1,

1980—the date of his claim for increase. AR 615. Significantly, the examiner did not find that

the 1970 rating decision under-evaluated Mr. Prewitt’s condition at the time of release, only that

his disability had been under-evaluated in the March 12, 1980, rating decision. 11 See AR 614-15.

10

To the extent that Mr. Prewitt’s challenges may be construed as challenging the VA’s disability rating decisions,

such challenges fall outside of this Court’s jurisdiction. See Addington v. United States, 94 Fed. Cl. 779, 782 (2010).

11

The VA rating decision dated March 12, 1980, resulted from Mr. Prewitt submitting a claim for an increased

rating “due to individual unemployability.” AR 612. Therein, the examiner stated that: “There is no evidence that

the veteran’s service-connected condition has increased in severity since his last evaluation.” AR 613. The decision,

therefore, did not result in an increased disability rating. See id.

13

Similarly, the February 18, 2003, rating decision did not alter the 1970 rating decision. Rather, it

increased Mr. Prewitt’s 40 percent rating under DC 5301-8211 to a combined 50 percent,

effective October 23, 2002—the date of his claim for an increase—by evaluating his muscle

injury and nerve injury separately. AR 795-96. This increase was “based on the current medical

evidence,” including medical examination and treatment in in 2001, 2002, and 2003. AR 795.

The VA examiner did not call into question the 1970 rating decision.

These subsequent VA rating decisions are distinguishable from the BVA’s April 17,

2019, order granting Mr. Prewitt’s request for “an initial compensable rating for his service-

connected scar associated with [his gun shot wound].” AR 756. In granting a 10 percent rating

for residual scarring, the BVA noted that “[i]n February 2014, the [Regional Office] found that

the June 1970 [Regional Office] adjudicators committed [Clear and Undisputable Error] by

failing to assign a separate rating for residual scar[r]ing from [the gun shot wound] to the left

neck and shoulder.” AR 756-57. The BVA determined that “[t]he evidence supports a 10 percent

rating under Diagnostic Code 7804 for residual scar[r]ing . . . from March 12, 1970, to January 1,

1980.” AR 757. The BVA based its conclusion on the April 1970 VA examination report, which

stated that the site of Mr. Prewitt’s “scar was hypersensitive,” id., and that he reported “that the

scarring was painful,” id. In other words, the VA revisited its initial June 17, 1970, disability

rating and found that it was erroneous. Thus, when the ABCMR decided to adopt the VA’s June

17, 1970, rating, it should have considered whether to also adopt this correction. In sum, the

Court finds the ABCMR’s assignment of a 30 percent disability rating to be arbitrary. See Kelly

v. United States, 69 F.4th 887, 894 (Fed. Cir. 2023) (noting that an “agency’s decision

is arbitrary and capricious when the agency decision-maker ‘entirely fail[s] to consider an

important aspect of the problem [or] offer[s] an explanation for its decision that runs counter to

the evidence before the agency’”) (first and third alterations in original) (quoting Motor Vehicle

Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). 12

C. Mr. Prewitt’s Challenge to His Article 15 Non-Judicial Punishment

The Army imposed an Article 15 nonjudicial punishment on Mr. Prewitt on August 25,

1969, under which he forfeited $50.00. AR 197. The punishment was based on a report that Mr.

Prewitt failed “to report to [his] appointed place of duty, . . . [and] conducted [himself] in a

disorderly manner.” AR 195. Mr. Prewitt argues that the punishment “is void as a matter of law

because of [his] patient status and [his] placement in the DES process with a permanent profile

that restricted [his] physical activity.” [ECF 63] at 22. He also argues that he was assigned duties

outside of the limits of his existing physical profile in July 1969, which violated section 8-15 of

Army Regulation 40-400; therefore, he contends his absent without official leave charge is void.

See id. at 22-23; [ECF 87] at 10. He further contends that he “was charged with being

12

The government argues that “even if Mr. Prewitt had presented the 2019 [BVA] decision to the ABCMR, there is

no reason to think that the ABCMR would have set the Army disability rating at 40 percent.” [ECF 79] at 32. The

Court will not accept the government’s invitation to predict the outcome of the ABCMR’s consideration of the

corrected VA disability rating. First, the government concedes that “[i]t is unclear whether the ABCMR was aware

of this 2019 [BVA] decision.” Id. Next, the government acknowledges that “[i]f . . . the ABCMR were to adopt a

40% combined disability rating, . . . [t]he 10% increase may . . . impact the calculation of his retired pay.” [ECF

102] at 7 (emphasis omitted). Given the significance of this determination, the Court must ensure that the ABCMR

“examine[s] relevant data and articulate[s] satisfactory explanations for [its] decisions.” Van Cleave v. United States,

70 Fed. Cl. 674, 679 (2006) (citing Yagjian v. Marsh, 571 F. Supp. 698, 701 (D.N.H.1983)).

14

‘Boisterous’ and ‘Loud’ neither of which are within the punitive articles.” [ECF 63] at 22.

Additionally, he questions the Army commander’s authority to impose an Article 15 punishment

and claims that his rights under the First and Sixth Amendments of the United States

Constitution were violated. See [ECF 87] at 10.

An Article 15 nonjudicial punishment under the UCMJ “is the least formalized method of

discipline, conducted personally by the accused’s commanding officer.” Boyce v. United States,

165 Fed. Cl. 187, 203 (2023). “When reviewing an Article 15 proceeding, the court applies a

deferential standard: ‘[I]t is not this court's function to review the merits of findings of guilt . . .

but only the disregard or violation of the Constitution, statute or regulations in the conduct of the

proceedings.’” Meyer v. United States, 127 Fed. Cl. 372, 381 (2016) (alteration in original)

(quoting Cochran v. United States, 1 Cl. Ct. 759, 770 (1983)). Here, the Court does not reach

Mr. Prewitt’s challenges to his Article 15 punishment because they are barred by the statute of

limitations. As noted above, a Tucker Act claim is “barred unless the petition thereon is filed

within six years after such claim first accrues,” 28 U.S.C. § 2501, and a claim “accrues as soon

as all events have occurred that are necessary to enable the plaintiff to bring suit, i.e., when ‘all

events have occurred to fix the Government’s alleged liability, entitling the claimant to demand

payment and sue . . . for [the plaintiff’s] money,’” Jones, 30 F.4th at 1100 (alterations in

original) (quoting Martinez, 333 F.3d at 1303). Here, because Mr. Prewitt’s Article 15

punishment was imposed on August 25, 1969, and because he did not file his complaint in this

Court until November 9, 2022—over fifty years later—the claim is outside of the Tucker Act’s

six-year statute of limitations. Therefore, the Court lacks jurisdiction over this claim and must

dismiss it. See RCFC 12(h)(3) (“If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”).

IV. CONCLUSION

Accordingly, Mr. Prewitt’s MJAR is GRANTED-IN-PART and DENIED-IN-PART. It

is GRANTED with respect to his challenge to the ABCMR’s assignment of a 30 percent

disability rating, and it is DENIED with respect to all other challenges. The government’s MJAR

is GRANTED-IN-PART and DENIED-IN-PART. It is GRANTED except with respect to

upholding the ABCMR’s assignment of a 30 percent disability rating. Additionally, the

government’s motion to dismiss Mr. Prewitt’s challenge to the Article 15 nonjudicial punishment

is GRANTED.

This case SHALL BE REMANDED to the ABCMR. Pursuant to RCFC 52.2, the Court

provides the following remand instructions:

1. The remand period SHALL TERMINATE on April 11, 2025, and proceedings in this

case are STAYED until that date. If the ABCMR fails to issue its decision by the

termination of the remand period, the parties shall file motions with the Court pursuant to

RCFC 52.2(c).

2. The ABCMR SHALL CONSIDER whether to adopt the correction to Mr. Prewitt’s

June 17, 1970, VA rating decision made by the BVA on April 17, 2019. See AR 740,

756-57.

15

3. The government SHALL FILE a status report every 30 days, starting from the date of

this order until the ABCMR issues a decision. The status report shall advise the Court of

the status of the remand proceedings.

4. The ABCMR is DIRECTED to promptly forward its decision to Mr. Prewitt and to

counsel of record for the United States, and to forward two copies to the Clerk of Court

pursuant to RCFC 52.2(d).

5. Each party SHALL FILE a notice pursuant to RCFC 52.2(e) within 30 days of the

ABCMR decision indicating their respective positions on whether the ABCMR’s

decision affords a satisfactory basis for disposition of the case or whether further

proceedings before the Court are required and, if so, the nature of such proceedings.

The Clerk is DIRECTED to serve a certified copy of this Memorandum Opinion and Order on

the ABCMR at: Office of Army Review Boards Agency, 251 18th Street South, Suite 385,

Arlington, VA 22202-3531.

IT IS SO ORDERED.

s/ Thompson M. Dietz

THOMPSON M. DIETZ, Judge

16