Muller v. United States

In the United States Court of Federal Claims

FOR PUBLICATION

No. 24-1103C

(Filed: May 6, 2025)

)

)

ANDREW J. MULLER, )

)

Plaintiff, )

)

v.

)

UNITED STATES, )

)

Defendant. )

)

James P. Barth, Pfeifer Morgan & Stesiak, South Bend, IN, for plaintiff.

Daniel Bertoni, Trial Attorney, Commercial Litigation Branch, Civil Division,

U.S. Department of Justice, Washington, DC. With him on the briefs were Yaakov M.

Roth, Acting Assistant Attorney General, and Patricia M. McCarthy, Director, and

Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division,

Washington, DC. Lt. Col. John Spalding, General Litigation Division, Office of the

Judge Advocate General, Department of the Navy, Of Counsel.

OPINION AND ORDER

BONILLA, Judge.

Plaintiff Andrew J. Muller served as a non-commissioned officer in the

United States Marine Corps (USMC) from 2007 through 2017, rising to the rank of

Sergeant (E-5). His decade of military service included deployments to Iraq and

Afghanistan, for which he was awarded several medals, ribbons, and citations.

Following his initial deployments, a military doctor noted a concern that Mr. Muller

might be suffering from post-traumatic stress disorder (PTSD). He then suffered a

traumatic brain injury during his last overseas deployment. Four years later,

Mr. Muller’s military career derailed following his conviction in a general court-

martial on assault and drunk and disorderly conduct charges. After receiving a

formal medical diagnosis of PTSD while serving his term of confinement, the Naval

Clemency and Parole Board upgraded Mr. Muller’s bad-conduct discharge to other

than honorable.

Through this action—initially filed in federal district court—Mr. Muller seeks

to be awarded the Purple Heart (Count II) and to undergo a retroactive

(pre-conviction) medical review to determine whether he is entitled to a medical

retirement or separation and a further upgrade to his character of discharge

(Counts I and III). Prior to filing this case, the Board for Correction of Naval Records

(BCNR or Board) denied Mr. Muller’s application for administrative relief. Pending

before the Court are the parties’ dispositive cross-motions. Oral argument is

unnecessary. For the reasons set forth below, plaintiff’s motion for judgment on the

administrative record (ECF 38) is DENIED, plaintiff’s alternative request to

re-transfer his claimed entitlement to be awarded the Purple Heart (Count II) to the

United States District Court for the Southern District of Texas (ECF 49) is

GRANTED, and defendant’s cross-motion to dismiss and for judgment on the

administrative record (ECF 46) is GRANTED as to Counts I and III and DENIED

as to Count II.

BACKGROUND

I. Military Service

Mr. Muller enlisted in the USMC on February 12, 2007, and entered on active

duty the next day as a Private (E-1). After completing boot camp at the Marine Corps

Recruiting Depot in San Diego, California, his assigned Military Occupational

Specialty (MOS) was Reconnaissance Marine, wherein he served as a Field Radio

Operator with the 1st Reconnaissance Battalion. Eighteen months later, then-

Private First Class (E-2) Muller’s command approved his lateral move to

Transmissions System Operator. On August 23, 2010, then-Corporal (E-4) Muller

reenlisted under the Fiscal Year 2010 Selective Reenlistment Bonus Program. After

another reenlistment dated April 29, 2014, then-Sergeant (E-5) Muller continued to

serve on active duty until his discharge effective November 15, 2017.

While on active duty, then-Corporal Muller deployed to Iraq on April 1, 2008,

for six months. The following April, he deployed to Afghanistan for seven months.

While in Afghanistan, then-Corporal Muller punched a senior non-commissioned

officer on August 10, 2009. He waived his right to a general court-martial and

accepted a non-judicial punishment for violating Article 128 (assault), Uniform Code

of Military Justice (UCMJ).1 Two years later, then-Sergeant Muller again deployed

to Afghanistan for seven months. While traveling in a convoy from Camp Hanson to

Camp Leatherneck outside Marjah on March 26, 2012, the mine-resistant ambush

protected (MRAP) vehicle carrying then-Sergeant Muller and other marines struck

an improvised explosive device (IED). Despite temporarily losing consciousness and

suffering what was later diagnosed as a traumatic brain injury, Sergeant Muller was

1 The final disposition, accounting for the suspended punishment, included a reduction in rank to

Lance Corporal (E-3) and forfeiture of one-half of one month’s military pay.

2

not awarded the Purple Heart—presumably for refusing medical treatment at the

scene.2

II. Court-Martial

On May 12, 2015, while deployed aboard a Navy ship docked at Marine Corps

Base Hawaii, located on the windward side of Oahu’s Mōkapu Peninsula, then-

Sergeant Muller attended a barbeque at Hale Koa Beach. During the social event,

Sergeant Muller—a member of the 1st Reconnaissance Battalion—confronted a

sixty-one-year-old retired Navy Commander (O-5) wearing a Reconnaissance

Battalion sweatshirt. Dissatisfied with the retired naval officer’s explanation that

his son had served in the 4th Reconnaissance Battalion, Sergeant Muller escalated

the situation. When the retired naval officer attempted to walk away, Sergeant

Muller pushed him from behind into a tree. Once on the ground, Sergeant Muller

straddled the retired service member and punched him in the face until the retired

naval officer lost consciousness and bystanders intervened. The retired service

member reportedly suffered a brain bleed and multiple facial fractures.3

On September 15, 2015, Sergeant Muller’s command preferred two charges

and three specifications of aggravated assault, assault consummated by battery, and

drunk and disorderly conduct in violation of Articles 128 (assault) and 134 (general

article), UCMJ. Following an Article 32 hearing conducted on November 6, 2015, the

charges and specifications were referred to a general court-martial on December 13,

2015. After a two-day trial conducted on April 11-12, 2016, Sergeant Muller was

found guilty on both charges and all three specifications. He was sentenced to a

reduction in rank to Private (E-1), six months of confinement, and a bad-conduct

2 During his time on active duty, Mr. Muller was awarded a number of medals, ribbons, and citations,

including the Marine Corps Good Conduct Medal, Combat Action Ribbon, National Defense Service

Medal, Global War on Terrorism Service Medal, Sea Service Deployment Ribbon (three), Iraq

Campaign Medal, Afghanistan Campaign Medal (two), Navy Unit Commendation (two), Presidential

Unit Citation-Navy, NATO International Security Assistance Force (ISAF) Medal-Afghanistan, and

Meritorious Mast (two).

3 In his original and amended complaints, Mr. Muller seemingly seeks to excuse his violent conduct by

characterizing the incident as follows: “Plaintiff, on May 12, 2015, was involved in a physical

altercation with a retired Naval officer who is a convicted[] and registered[] sex offender who had

recently been released from prison.” ECF 1 at 4 ¶ 18 (footnote omitted); ECF 15 at 4 at ¶ 18 (footnote

omitted); ECF 32 at 5 ¶ 21 (footnote omitted). He includes a substantively identical summary of the

event in each of his briefs. ECF 38 at 10 (“In April 2016 [sic], Mr. Muller was involved in a physical

altercation with a[] recently released from prison registered sex offender[] and retired Naval Officer.”)

(footnoted omitted); ECF 49 at 7 (“In April 2016 [sic], Plaintiff was involved in a physical altercation

with a retired Naval Officer who was previously convicted of child pornography and registered as a

sex offender[].”) (footnotes omitted). Putting aside the inherent illegality of vigilantism, nothing in the

record presented even suggests that Mr. Muller was aware of this information on May 12, 2015,

let alone that it caused him to attack the retired service member.

3

discharge.4 The United States Navy-Marine Corps Court of Criminal Appeals

affirmed the court-martial’s findings and sentence. In doing so, the appellate court

rejected now-Private Muller’s claims that (1) the judge presiding over his court-

martial improperly denied the defense’s request to present expert witness testimony

regarding the seriousness of the victim’s injuries, and (2) the failure to present

evidence that PTSD contributed to the May 12, 2015 incident constituted ineffective

assistance of counsel. United States v. Muller, No. 16-294, 2017 WL 3186979

(N-M. Ct. Crim. App. July 27, 2017). The United States Court of Appeals for the

Armed Forces denied Private Muller’s petition for grant of review. United States v.

Muller, 77 M.J. 73 (2017) (table).

On March 29, 2017, following Private Muller’s formal PTSD diagnosis,

discussed infra, and with the assault victim’s endorsement, the Naval Clemency and

Parole Board upgraded the character of Private Muller’s discharge to other than

honorable.5 Mr. Muller’s post-discharge petition to be awarded the Purple Heart for

the injuries he sustained during the March 26, 2012 IED explosion in Afghanistan

was denied due to his discharge status.

III. PTSD Diagnosis

Following then-Corporal Muller’s initial deployments to Iraq and Afghanistan

in 2008 and 2009, a military doctor noted a “possible concern for PTSD.” AR 71–72.

For context, the March 1, 2010 entry in the Chronological Record of Medical Care

(SF-600) was seven months after then-Corporal Muller’s initial assault charge and

two years prior to his suffering a traumatic brain injury in the IED-caused vehicle

accident during his second deployment to Afghanistan. The administrative record

is devoid of any further mention of PTSD until after Sergeant Muller’s April 2016

court-martial.

4

As defined in the Manual for Courts-Martial:

A bad-conduct discharge applies only to enlisted persons and may be adjudged by a

general court-martial and [certain] special court-martial . . . . A bad-conduct discharge

is less severe than a dishonorable discharge and is designed as a punishment for

bad-conduct rather than as a punishment for serious offenses of either a civilian or

military nature. It is also appropriate for an accused who has been convicted

repeatedly of minor offenses and whose punitive separation appears to be necessary[.]

Joint Service Committee on Military Justice, Manual for Courts-Martial, Pt. II, § 1003(b)(8)(C) (2024),

available at https://jsc.defense.gov/Military-Law/Current-Publications-and-Updates/ (last visited

May 5, 2025).

5 An other than honorable discharge is an administrative (as opposed to punitive) discharge and is the

least favorable administrative characterization of service. See N.G. v. United States, 94 Fed. Cl. 375,

380–81 & nn.2 & 4 (2010).

4

While serving his six-month term of confinement at the Camp Pendleton Base

Brig in California, then-Private Muller sought mental health services. In a

memorandum dated July 27, 2016, a psychiatric nurse practitioner at the Camp

Pendleton Naval Hospital noted Private Muller’s recent PTSD diagnosis, opining that

“it appears that some of his symptoms were contributing factors in his conduct on

12 May 2015.” AR 77. Following Mr. Muller’s November 15, 2017 discharge, the

United States Department of Veterans Affairs assigned him a 100% disability rating

for PTSD.

IV. Procedural History

In August 2018, Mr. Muller applied for administrative relief before the BCNR,

seeking to further upgrade the character of his discharge to at least a general

discharge under honorable conditions. Three months later, on November 14, 2018,

the BCNR administratively closed his case, improvidently concluding that Mr. Muller

failed to exhaust his administrative remedies by first petitioning the Naval Discharge

Review Board (NDRB). The NDRB in turn rejected Mr. Muller’s subsequent request

for relief on July 17, 2019, explaining that the board’s jurisdictional authority did not

extend to discharges awarded in connection with a general court-martial. Mr. Muller

resubmitted his BCNR application on June 30, 2020, amending his request to include

the award of the Purple Heart and a retroactive medical retirement or separation in

addition to a further upgrade to the character of his discharge. The BCNR denied

relief on February 11, 2021.

Mr. Muller commenced this action in the United States District Court for the

Northern District of Indiana on July 31, 2023, seeking to challenge the BCNR’s denial

of his application for administrative relief. Upon the parties’ joint motion, by order

dated October 13, 2023, the case was transferred to the United States District Court

for the Southern District of Texas to cure a venue defect. Following the transfer, the

government filed a motion to dismiss the complaint in its entirety or, in the

alternative, to transfer the military discharge and disability claims to this Court.

By order dated July 17, 2024, the federal magistrate judge transferred the entire case

to this Court pursuant to 28 U.S.C. § 1404(a). Muller v. United States, No. 23-3946,

2024 WL 3448015, at *1–2 (S.D. Tex. July 17, 2024).

DISCUSSION

I. Purple Heart

Dating back to August 7, 1782, and established by then-Commander-in-Chief

of the Continental Army George Washington as the Badge of Military Merit, the

Purple Heart is the oldest military award presented to United States service

members today. Although laid dormant for well over one-hundred years following

5

the American Revolutionary War, over two million Purple Hearts have been awarded

since World War I.6

On December 3, 1942, President Franklin D. Roosevelt signed Executive Order

No. 9277 titled Award of the Purple Heart to Persons Serving with the Navy,

Marine Corps or Coast Guard of the United States, including the following mandate:

The Secretary of the Navy is authorized and directed to award the

Purple Heart in the name of the President of the United States to

persons who, while heretofore or hereafter serving in any capacity with

the Navy, Marine Corps or Coast Guard of the United States, are

wounded in action against an enemy of the United States, or as a result

of an act of such enemy, provided such would necessitates treatment by

a medical officer.

7 Fed. Reg. 10125 (Dec. 3, 1942). Since the issuance of this Executive Order,

Presidents and Congress have clarified and largely expanded the eligibility criteria

to ensure deserving service members are duly recognized. See, e.g., Executive Order

No. 13758, 82 Fed. Reg. 5321 (Jan. 12, 2017); 10 U.S.C. §§ 1129, 1129a, and 1131.

Specific to the Marine Corps, eligibility requirements for the Purple Heart are

codified in SECNAVINST 1650.1H (Aug. 22, 2006).

In Count II, Mr. Muller contends the BCNR wrongly denied his entitlement to

be awarded the Purple Heart for the injuries he sustained in the IED explosion in

Afghanistan on March 26, 2012. Fatal to Mr. Muller’s claim—at least in this Court—

is the fact that there is no monetary renumeration associated with the Purple Heart.

In fact, the challenged denial of an award of military medals, decorations, and

ribbons—readily distinguishable from claims for back pay and medical retirement or

separation pay under 37 U.S.C. § 204 and 10 U.S.C. §§ 1201 and 1203—does not

constitute a claim for money damages upon which this Court may render judgment

under the Tucker Act, 28 U.S.C. § 1491(a). In the absence of that jurisdictional hook,

the issue lies outside this Court’s statutory authority to adjudicate. Curtis v. United

States, 33 Fed. Cl. 586, 589 (1995) (“A claim for a military decoration . . . is not a claim

for money damages, and, accordingly, does not meet the standards of the Tucker

Act.”), aff’d, 86 F.3d 1175 (Fed. Cir. 1996) (per curiam) (table), quoted with approval

in Sanders v. United States, No. 24-1067, 2025 WL 313171, at *6 (Fed. Cir. Jan. 28,

2025) (per curiam); see Mote v. United States, 110 F.4th 1345, 1353 (Fed. Cir. 2024)

(“The [Court of Federal Claims] . . . ‘has no power to grant affirmative non-monetary

relief unless it is tied and subordinate to a money judgment.’ The Tucker Act

expressly grants the [Court of Federal Claims] power only to order the ‘correction of

6 See A Heart of Purple: The Story of America’s Oldest Military Decoration and Some of its Recipients,

National Archives Prologue Magazine Vol. 4 No. 4 (Winter 2012). available at https://perma.cc/FCN8-

777T (last visited May 2, 2025).

6

applicable records’ that are ‘incident of and collateral to’ its award of a money

judgment.”) (citations omitted).

Rather than simply dismiss Count II, the Court must consider whether

(re)transfer to a court with jurisdiction is in the interest of justice. Title 28,

United States Code, Section 1631, provides:

Whenever a civil action is filed in a court . . . and that court finds that

there is a want of jurisdiction, the court shall, if it is in the interest of

justice, transfer such action . . . to any other such court . . . in which the

action . . . could have been brought at the time it was filed or noticed . . . .

28 U.S.C. § 1631. “Transfer under this section is appropriate when (1) the

transferring court lacks jurisdiction, (2) jurisdiction lies in another court, and

(3) transfer is in the interest of justice.” Ramos-Quiroz v. United States, 172 Fed. Cl.

1, 7 (2024) (quotation marks and citations omitted), appeal dismissed, No. 24-1851,

2024 WL 3894165 (Fed. Cir. Aug. 22, 2024) (per curiam).

The first two requirements are easily satisfied and favor retransfer to the

district court whence it came. As explained above, and acknowledged by both parties,

this Court lacks jurisdiction to adjudicate non-monetary claims for military medals,

decorations, and ribbons. In contradistinction, district courts possess jurisdiction to

address the precise issue presented here: whether a military corrections board’s

denial of a service member’s administrative request for the award of the Purple Heart

is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. See, e.g.,

McKinney v. Wormuth, 5 F.4th 42, 45 (D.C. Cir. 2021) (“This court has exercised

jurisdiction to review a denial of a Purple Heart award.”) (citing Haselwander v.

McHugh, 774 F.3d 990 (D.C. Cir. 2014)). These jurisdictional lines are amply

demonstrated by the government’s litigative approach to this case while it was

pending in the Southern District of Texas. The government sought to dismiss

Mr. Muller’s Purple Heart claim—not for lack of subject matter jurisdiction—but for

failure to state a claim upon which relief can be granted (i.e., failure to meet eligibility

requirements). In contrast, the government moved to dismiss Mr. Muller’s claims for

a retroactive medical retirement or separation and his related challenge to the

characterization of his discharge on jurisdictional grounds as well as failure to assert

a cognizable claim. Most telling, the government’s alternative motion to transfer

Mr. Muller’s claims to this Court specifically exempted the Purple Heart claim.7

See Muller v. United States, No. 23-3946 (S.D. Tex.) (ECF 16) (filed Jan. 31, 2024).

Accordingly, this Court concludes that Mr. Muller’s claimed entitlement to the award

7 Contrary to the assertions of “bad faith litigation” littered throughout Mr. Muller’s reply brief, the

government has not engaged in “jurisdictional gamesmanship,” “jurisdictional flip-flops,” “abuse [of]

the judicial process,” “forum manipulation,” “manipulative tactics,” “procedural gamesmanship,” or

otherwise attempted to “obstruct justice” or “undermine the rule of law and erode public confidence in

the judiciary.” ECF 49 at 8, 17–20, 22.

7

of the Purple Heart could have been brought at the time it was originally filed in the

Southern District of Texas.8

Turning to the third and final element, transferring Count II back to the

district court clearly serves the interest of justice. As this Court recently explained:

“The phrase ‘if it is in the interest of justice’ relates to claims which are

nonfrivolous and as such should be decided on the merits.” Galloway

Farms, Inc. v. United States, 834 F.2d 998, 1000 (Fed. Cir. 1987) (citing

Zinger Constr. Co. v. United States, 753 F.2d 1053, 1055 (Fed. Cir.

1985)). The decision to transfer “rests within the sound discretion of the

transferor court, and the court may decline to transfer the case ‘[i]f such

transfer would nevertheless be futile given the weakness of plaintiff's

case on the merits.’” Spencer v. United States, 98 Fed. Cl. 349, 359 (2011)

(quoting Faulkner v. United States, 43 Fed. Cl. 54, 56 (1999)).

Ramos-Quiroz, 172 Fed. Cl. at 8 (quoting Martin v. United States, 169 Fed. Cl. 342,

345–46 (2024)). Notwithstanding the government’s arguments to the contrary,

Mr. Muller’s claimed entitlement to be awarded the Purple Heart is not frivolous and

warrants a merits determination in the appropriate judicial forum whatever the

ultimate outcome. See Toohey v. United States, 105 Fed. Cl. 97, 99 (2012) (“[T]he

transfer statute language ‘persuasively indicates that transfer, rather than

dismissal, is the option of choice[.]”) (quoting Britell v. United States, 318 F.3d 70, 73

(1st Cir. 2003)); see, e.g., Mata v. United States, 118 Fed. Cl. 92 (2014) (Court of

Federal Claims transferred “plaintiff’s only surviving claim” back to the originating

district court after concluding the claim “is not money-mandating”); cf. Cooper v. Dept.

of the Navy, 108 F.3d 324, 327 (Fed. Cir. 1997) (Federal Circuit affirmed decision of

Merit Systems Protection Board to dismiss appeal as moot while simultaneously

transferring back to the district court the remaining claims over which the appellate

court lacked jurisdiction); see also Ramos-Quiroz, 172 Fed. Cl. at 2 (“Rather than shut

the courthouse doors procedurally or sit idly by while litigation continues where it

ought not, this opinion and order seeks to ripen the matter for disposition in the

appropriate court whatever the ultimate outcome.”).

8 In transferring this case, the district court erroneously cited the Change of Venue statute, 28 U.S.C.

§ 1404(a), rather than the applicable Transfer to Cure Want of Jurisdiction statute, 28 U.S.C. § 1631,

quoted supra. See Fisherman’s Harvest, Inc. v. PBS & J, 490 F.34 1371, 1378 (Fed. Cir. 2007)

(“[W]e hold that the Court of Federal Claims is not a ‘district or division’ to which a district court may

transfer a case pursuant to 28 U.S.C. § 1404(a).”). Presumably, the Federal Circuit nevertheless would

have had jurisdiction to review the district court’s transfer order in accordance with 28 U.S.C.

§ 1292(d)(4)(A) (“The United States Court of Appeals for the Federal Circuit shall have exclusive

jurisdiction of an appeal from an interlocutory order of a district court of the United States . . . granting

or denying, in whole or in part, a motion to transfer an action to the United States Court of Federal

Claims under section 1631 of this title.”). Although that opportunity has now passed, this Court

may endeavor to establish the appropriate jurisdictional alignment between claims and judicial fora.

See, e.g., Ramos-Quiroz, 172 Fed. Cl. at 1.

8

In reaching this conclusion, the Court declines both parties’ invitations to

examine or otherwise weigh-in on whether Mr. Muller initially met all eligibility

requirements to be awarded the Purple Heart in connection with the March 26, 2012

IED explosion in Afghanistan while he was serving on active duty and, if so, whether

he thereafter disqualified himself for failing to continue serving honorably. As the

parties’ briefing makes clear, such an assessment would require an examination of

Mr. Muller’s medical records and incident reports to determine whether the factual

predicate for the award of the Purple Heart is plausibly present. The next step would

be to interpret and apply the labyrinth of cited Executive Orders, statutes,

Department of Defense Instructions, and Secretary of the Navy Instructions to

determine whether the BCNR’s denial of administrative relief was arbitrary,

capricious, an abuse of discretion, or otherwise contrary to law. Congress expressly

left these endeavors to federal district courts.

II. PTSD

Throughout the pendency of Mr. Muller’s post-discharge appeals, his PTSD-

claims have continuously evolved. In his initial BCNR application, the relief

requested was limited to a further upgrade of the character of his discharge. Upon

resubmission, Mr. Muller further sought a retroactive medical retirement or

separation. The original complaint filed in the Northern District of Indiana sought a

pre-court-martial medical evaluation under the Disability Evaluation System (DES).

Although Mr. Muller did not specifically request a retroactive medical retirement or

separation, there are only three possible outcomes of the Medical Evaluation Board

(MEB) and Physical Evaluation Board (PEB) assessments: retention, medical

separation, or medical retirement. See SECNAV M-1850.1 ch. 1 ¶ 2(d) & app. C-3

(Sept. 2019); Carlborg v. United States, 168 Fed. Cl. 371, 379–80 (2023), aff’d, No. 24-

1339, 2024 WL 4675290 (Fed. Cir. Nov. 4, 2024) (per curiam), petition for cert. filed,

__ U.S.L.W. __ (U.S. Apr. 30, 2025) (No. 24-1121). The amended complaint filed in

the Southern District of Texas added his contention that the BCNR erred in denying

him a retroactive medical separation or disability retirement. ECF 15 at 7.

Mr. Muller’s second amended complaint (i.e., the operative post-transfer complaint

filed in this Court) cites the medical retirement and separation pay statutes,

10 U.S.C. §§ 1201 and 1203, and restates his claim that the BCNR erred in denying

him a retroactive medical separation or disability retirement. ECF 32 at 2, 7.

Notwithstanding the specific language included in his formal pleadings—

curiously seeking to divest this Court of jurisdiction over his PTSD claim and

returning it to the district court—Mr. Muller states in his reply brief:

Mr. Muller has never requested the District Courts or the COFC[]

to make a finding for a disability retirement. At all times during this

litigation, Mr. Muller has consistently held he is only looking for a

retroactive medical evaluation, that which would better guide the BCNR

9

for consideration of possible discharge relief which could include either

General, Honorable, Medical, Disability, or a discharge the BCNR

deemed appropriate after consideration of a full medical review.

See ECF No. 15 (Prayer for Relief); ECF No. 19 (Prayer for Relief);

ECF No. 32 (Prayer for Relief). This is further supported by Mr. Muller’s

introduction in ECF No. 19, Pg. 7, where his expresses that “[t]his case

is not about monetary gain, . . .”

ECF 49 at 13. To be clear, in his successive prayers for relief, Mr. Muller does not

formally demand medical retirement or separation backpay or future pay and

benefits. But, as noted supra, the import of his claim for a retroactive DES medical

assessment necessarily carries the prospect of a statutory entitlement to the pay and

related benefits associated with a medical retirement or separation beyond the

characterization of Mr. Muller’s discharge. That some or all of these financial

renumerations will be offset by the post-discharge disability benefits he has and

continues to receive from the Department of Veterans Affairs does not impact this

Court’s jurisdictional authority over Mr. Muller’s PTSD-based claim.9

This Court’s jurisdiction is predicated upon money-mandating claims as

opposed to the prospective net results. See Fisher v. United States, 402 F.3d 1167,

1173 (Fed. Cir. 2005) (“If the court’s conclusion is that the Constitutional provision,

statute, or regulation meets the money-mandating test, the court shall declare that

it has jurisdiction over the cause, and shall then proceed with the case in the normal

course.”). Unlike his Purple Heart claim, Mr. Muller’s claim for a retroactive DES

medical evaluation is inextricably intertwined with a medical retirement or

separation—both carrying statutory entitlements to post-separation pay and

benefits. See id. at 1174 (“[Plaintiff] has little difficulty establishing that § 1201 is

understood as money-mandating.”); Verbeck v. United States, 89 Fed. Cl. 47, 61 (2009)

(“Section 1203 is a money-mandating statute for the same reasons that Section 1201

is a money-mandating source of law for purposes of the jurisdiction of this court.”),

quoted in Keltner v. United States, 165 Fed. Cl. 484, 499 (2023); see also Smith v. Sec’y

of Army, 384 F.3d 1288, 1294 (Fed. Cir. 2004) (“It is well established that the Military

Pay Act is a money-mandating statute.”) (citing Dysart v. United States, 369 F.3d

1303, 1315 (Fed. Cir. 2004)). Readily distinguishable from the plaintiff in Coleman

9 See Hutchinson v. United States, 168 Fed. Cl. 504, 511 (2023) (“As a general matter, ‘even if a veteran

qualifies for both retired pay from the Department of the Army and disability benefits from the V.A.,

the veteran cannot receive the full amount of each because 38 U.S.C. § 5304 prohibits duplication of

benefits. In such a case, the veteran may elect to waive the portion of retired pay that would be

duplicative of disability benefits and, thereby, become entitled to receive the disability benefits in

addition to the unwaived portion of retired pay.’”) (quoting Burkins v. United States, 112 F.3d 444, 447

(10th Cir. 1997) (further citations omitted)). Any anticipated offset does not take into account the

potential budgeting implications of shifting entitlement from the Department of Veterans Affairs to

the Department of Defense and Department of the Navy/Marine Corps.

10

v. Kendall, Mr. Muller has not affirmatively waived his right to medical retirement

or separation pay.10 See 74 F.4th 610, 616 n.3 (4th Cir. 2023).

Turning to the merits of Mr. Muller’s claim for a retroactive DES medical

assessment, there is no basis in fact or in law upon which to disturb the BCNR’s

denial of administrative relief. Consistent with the amorphous nature of his PTSD

claim, Mr. Muller fails to specify the date upon which he should have been declared

unfit for continued military service. At one end of the timeline, Mr. Muller points to

the March 1, 2010 entry in his medical record of a “possible concern for PTSD.” At the

other end, Mr. Muller suggests “a point in time immediately before his [April 11-12,

2016] court-martial.” ECF 38 at 28. Presumably, a third option would be

immediately after the March 26, 2012 IED explosion in Afghanistan, wherein he

suffered a traumatic brain injury. A fourth election would be on or about May 11,

2015 (i.e., the day before Mr. Muller assaulted the retired Naval officer on Hale Koa

Beach).

As an initial matter, Mr. Muller’s contention that PTSD excused or otherwise

contributed to his actions on May 12, 2015, is contradicted by the findings and

conclusions reached by the U.S. Navy-Marine Corps Court of Criminal Appeals in

affirming Mr. Muller’s general court-martial conviction and sentence:

The appellant had no formal diagnosis of PTSD at the time of trial.

During the presentencing proceedings, the appellant called four

witnesses and admitted 16 affidavits, all from people he served with

throughout his career, including in combat environments. Every person

attested to his good character and performance as a Marine. Notably,

not one mentioned ever observing in the appellant any signs or

symptoms of PTSD. In fact, they spoke of him as someone not exhibiting

the typical signs of PTSD—such as being short-tempered and

aggressive. The appellant also gave an unsworn statement, which

included chronicling his combat experiences as a Reconnaissance

Marine and his numerous deployments. Again, there was no mention of

any signs, symptoms, or diagnosis of PTSD.

We disagree with the appellant’s assertion that “[g]iven the defense

counsels’ awareness of [his] combat experience and the facts of his

assault of the victim, it was unreasonable and deficient to forego

examination of [the appellant] for potential PTSD before his trial.”

10 Although not dispositive, it is worth noting that the district court which transferred this matter to

this Court, and where Mr. Muller seeks retransfer, already decided—in this very case—that it lacks

jurisdiction over Mr. Muller’s PTSD claim for the reasons stated above (i.e., money-mandating medical

retirement and separation statutes). See Muller, 2024 WL 3448015, at *1–2. As explained supra,

Mr. Muller failed to timely appeal that interlocutory order to the Federal Circuit.

11

Merely because the appellant had combat experience and then

committed an assault while he was drunk at a party, does not mean,

ipso facto, that his defense counsel were deficient for failing to

investigate the option of having him tested for PTSD.

Muller, 2017 WL 3186979, at 4–5. Reevaluation of these findings and conclusions is

well outside the “narrow window of collateral attack review” of this Court. See West

v. United States, 145 Fed. Cl. 112, 125 (2019) (quoting Matias v. United States,

923 F.2d 821, 826 (Fed. Cir. 1990) (quoting cases)), aff’d, 847 F. App’x 927 (Fed. Cir.

2021). As further explained in West:

The Court [of Federal Claims] “does not have the authority to retry the

facts of a court-martial proceeding nor to act as a reviewing court of the

decision of the court-martial tribunal.” . . . And so, the Court may review

court-martial convictions only where the alleged infirmities at the court-

martial rise to a constitutional level.

145 Fed. Cl. at 125 (quoting Flute v. United States, 535 F.2d 624, 626 (Ct. Cl. 1976)).

No such constitutional claims have been asserted in this case.

Instead, Mr. Muller’s challenge to the BCNR’s denial of his application for

administrative relief rests principally on the Board’s conclusion that he did not

qualify for a DES referral because he was fit for continued military service at all times

leading up to his general court-martial. In support, Mr. Muller asserts that the Board

improperly relied upon information included in his fitness reports and character

evidence presented during his general court-martial in violation of SECNAVINST

1840.4E ¶ 3205. His reliance upon this instruction is misplaced.

SECNAVINST 1840.4E is the Department of the Navy Disability Evaluation

Manual. Paragraph 3205, included in Part 2 titled “Policies Concerning Referral of

Cases to the Physical Evaluation Board,” provides in relevant part:

a. When a member is referred for physical disability evaluation, an

assessment of the member’s performance of duty by his or her chain

of command may provide better evidence of the member’s ability to

perform his or her duties than a clinical estimate by a physician.

Particularly in cases of chronic illness, non-medical documentation

may be expected to reflect a member’s capacity to perform accurately.

b. Provide non-medical documentation in all Medical Board reports to

include:

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(1) Except in situations of critical illness or injury or where the

member has been declared “Death Imminent”, a statement from

the member’s immediate commanding officer, executive officer,

company commander, or command senior enlisted advisor

addressing:

...

(e) Commanders are also required to complete the

non-medical documentation form and submit a narrative

assessment on how the service member’s medical condition

impacts on his/her ability to perform military duties.

Enclosure (11) contains the [non-medical assessment

(NMA)] form and an example of a narrative assessment.

ECF 36-1 at 316–17 (SECNAVINST 1840.4E ¶ 3205(a)–(b)) (emphasis added).

Isolating and taking subsection (b)(1)(e) out of context, Mr. Muller argues that the

BCNR could not consider non-medical documentation without his commander first

completing and submitting the NMA form (i.e., Enclosure 11).

Both the title of the cited Disability Evaluation Manual provision and the

above-emphasized text of the complete subsection relied upon make clear that the

touted NMA form is required “[w]hen a member is referred for physical disability

evaluation.”11 Id. at 317. Mr. Muller was not referred for a PEB, rendering the

instruction inapplicable. In contrast, this Court has long sanctioned the practice of

reviewing fitness reports in making temporal fitness for continued military service

determinations. E.g., O’Hare v. United States, 155 Fed. Cl. 364, 375 (2021); Krauss

v. United States, 40 Fed. Cl. 834, 841 (1998), aff’d, 185 F.3d 886 (Fed. Cir. 1999)

(per curiam) (table); Dzialo v. United States, 5 Cl. Ct. 554, 564 (1984); cf. Ford v.

United States, 172 Fed. Cl. 300, 312–13 (2024) (BCNR’s consideration of favorable

fitness reports prior to relevant injuries are not probative of continued fitness for

military service). Accordingly, the BCNR properly relied upon Mr. Muller’s fitness

reports in assessing his contemporaneous fitness for continued military service.

As found by the BCNR, Mr. Muller’s fitness reports support the conclusion that

he remained fit for continued military duty. For example, his fitness report for the

reporting period November 15, 2015 to March 31, 2016—following the May 12, 2015

physical altercation and immediately before the convening of his April 11-12, 2016

general court-martial—included a “highly qualified” rating and the following

narrative excerpt:

11 The Court assumes Mr. Muller’s exclusion of the framing clause included in § 3205(a) in briefing

this issue was an oversight.

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I believe he displays the physical, intellectual, and moral virtue

expected of a Non-Commissioned Officer. His positive attitude,

competency, and drive to succeed have made him a very important part

of the Company training cell. I recommend Sergeant Muller be

promoted with his peers.

AR 133. Although a medical record from March 1, 2010 notes “a possible concern for

PTSD,” AR 71–72, the record presented is devoid of any indication that Mr. Muller

was unfit for duty at any time during the intervening six years prior to his general

court-martial conviction and incarceration. This case is readily distinguishable from

Hassay v. United States, wherein there was no recent fitness report demonstrating

plaintiff’s fitness for continued military service at the time of his discharge, and the

record was rife with medical evidence to the contrary. See 150 Fed. Cl. 467, 479–482

(2020).12

There is similarly no reason to disturb the BCNR’s conclusion that even if

Mr. Muller’s July 27, 2016 PTSD diagnosis merited a DES referral, his general court-

martial conviction and impending misconduct discharge would have superseded any

disability-based separation. Paragraph 3403 of the Disability Evaluation Manual

makes clear that service members “being processed for misconduct which could result

in a punitive discharge” are generally ineligible for DES referrals and disability

retirements or separations. See ECF 36-1 at 326–27 (SECNAVINST 1850.4E

¶ 3403(a)–(b)). On this point, the Federal Circuit has explained that the only way to

avoid a misconduct discharge taking precedence over disability proceedings is for a

service member to show they were “‘unable to appreciate the nature and quality

or wrongfulness of the acts’ under SECNAVINST 1850.4E ¶ 3414.b.” Malcolm v.

United States, 752 F. App’x 973, 977 n.2 (Fed. Cir. 2018). In this case, Mr. Muller

does not claim eligibility under this exception. Accordingly, Mr. Muller’s challenge

to the BCNR’s reliance upon his criminal conviction and sentencing in independently

finding him ineligible for a DES referral must fail.

One final matter warrants mention. In his complaint, Mr. Muller references

the series of Department of Defense memoranda directing military corrections boards

to employ “liberal consideration” in evaluating applications by veterans seeking

discharge upgrades, particularly those related to mental health conditions like PTSD

and traumatic brain injuries. ECF 32 at 10. In his principal brief, however,

Mr. Muller makes no mention of this issue. His reply brief similarly makes no

mention of the memoranda and includes only one passing reference to “liberal

consideration” in summarizing other BCNR decisions related to his claimed

entitlement to be awarded the Purple Heart. ECF 49 at 32. Consequently,

Mr. Muller has waived this argument. Advanced Magnetic Closures, Inc. v.

12 Of note, following remand the Court sustained the BCNR’s conclusion that the plaintiff was fit for

continued military service until his discharge. Hassay v. United States, 174 Fed. Cl. 614, 629 (2025),

appeal filed, No. 25-1546 (Fed. Cir. Mar. 17, 2025).

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Rome Fastener Corp., 607 F.3d 817, 833 (Fed. Cir. 2010) (“This court has consistently

held that a party waives an argument not raised in its opening brief.”) (citing cases).

For completeness, the Court notes that the BCNR expressed its position that “liberal

consideration” can be found in the grace already afforded Mr. Muller by the Naval

Clemency and Parole Board in upgrading his bad-conduct discharge to other than

honorable.

CONCLUSION

For the reasons stated above:

(1) Plaintiff’s motion for judgment on the administrative record (ECF 38) is

DENIED;

(2) Defendant’s cross-motion to dismiss and for judgment on the administrative

record (ECF 46) is GRANTED-IN-PART (Counts I and III) and DENIED-IN-

PART (Count II);

(3) The Clerk of Court is directed to ENTER judgment in favor of defendant as to

Counts I and III;

(4) Plaintiff’s request to transfer Count II back to the United States District Court

for the Southern District of Texas is GRANTED; and

(5) The Clerk of Court is directed to TRANSFER Count II of plaintiff’s second

amended complaint (ECF 32) back to the United States District Court for the

Southern District of Texas in accordance with 28 U.S.C. § 1631.

It is so ORDERED.

___________________

Armando O. Bonilla

Judge

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