The opinion
OR!GI[{AL
REDACTED OPINION
lJn tltt @nfte! $ltstts tourt of ftUerul gflgtr
No. 12-649C
Fifed: June 25,2014 AUG 14 2014
Reissued: August 14, 20141
U.S' COURT OF
*** * tEbtdeucLems
:
KATHRYN WALKER.
Plaintiff, I pro S" Plaintiff; Motion to Dismiss;
* Lack of Subject Matter Jurisdiction;
v' . St"tute of Limitations; lncapacitation
uNrrED srATEs. - PaY'
, * * * * * * * *.":::':T'.. :
Kathryn Walker, Middletown, MD, pro se.
Austin Fulk, Trial Attorney, Commercial Litigation Branch, Civil Division'
Department of Justice, Washington, D.C. With him were Martin F. Hockey' Jr.,
Assistant Director, Robert E. Kirschman, Jr,, Director, Commercial Litigation Branch'
stuart F. Delery, Assistant Attorney General, civil Division. captain Geoff Guska,
U.S. Army Litigation Division, Department of the Army, of counsel.
OPINION
HORN. J.
Pro se plaintiff Kathryn walker filed a complaint in the United states court of
Federal Claims alleging that she was wrongfully discharged from the United States
Army Reserve on October 1, 2006, and that she was wrongfully denied incapacitation
pay. Prior to when defendant responded to her complaint, Ms. walker amended her
1
This opinion was issued under seal on June 25, 2014. On June 25, 2014, the court
inquired of both parties whether either party required redactions to the opinion.
Defendant indicated that no redactions were required. Plaintiff failed to indicate if any
redactions were required, but publicly filed a copy of the sealed opinion with her appeal
to the United States Court of Appeals for the Federal Circuit.
complaint, and, thereafter, filed a second amended complaint. In her second amended
complaint, Ms. Walker seeks "incapacitation pay pursuant to 37 U.S.C. $ 204(gX1) for
the period from September 2003 through February 2004,1'l reinstatement in the USAR
[United States Army Reserve] in the grade of major, and correction of military records to
set aside her under other than honorable conditions discharge."' In her second
amended complaint, Ms. Walker also quotes Army Regulation 135-175 fl 1-3a,4 which
states:
a. Reserve component (RC) officers will be separated only by-
(1)The Secretary of the Army (SA).
(2) Commanders specified in this regulation under conditions set forth
in this and other pertinent regulations.
(3) Commanders specified in special directives of the SA under the
conditions in these directives.
(4) In relation to paragraphs (2) and (3), above, the discharge
authority delegated to commanders by this regulation will not
include authority to discharge an officer under a court-martial
sentence to dismissal, prior to completion of appellate review'
unless the discharge authority intends the discharge to act as a
remission of the conviction.
Army Reg. 135-175, fl 1-3a (Feb. 28,1987).
Ms. Walker further alleges in her second amended complaint.that according to
"Army Regulation 135-175 lf 2-8a," "the Army's Headquarters, 7' ' Army .Reserve
command-lacked the authority to discharge plaintiff," and, therefore, "the plaintiff was
not legally discharged on october 1, 2006 under Army Regulation 135-175." Army
Regulation 135-175, fl 2-8a, "Discharge authority," provides' in pertinent part:
2 Previously Ms. walker had represented to the Army Board for correction of Military
Records (A-BCMR) that the incapacitation pay due to her was for a period beginning on
August 20, 2003 through February 2004.
3
The plaintiff failed to keep the court appraised of her current address, so that the flow
of her multiple, improperly filed motions was interrupted until the court was able to
secure a coirect address for plaintiff. In addition, the second amended complaint was
not properly filed in accordance with the Rules of the United States Court of Federal
Claims. In order to move the case forward and given plaintiffs pro g status, the court,
nonetheless, filed the second amended complaint by leave of the court. Moreover,
among other relief, Ms. Walker seeks attorney'S fees even though she is representing
herself pro se before this court.
a Ms. Walker incorrectly cites to Army Regulation 1 35-175 fl 1-4a in het second
amended complaint, but quotes the regulation from Army Regulation 135-175 fl 1-3a.
HQDA [Headquarters, Department of the Army] will take final action on
the recommendations of boards of officers and resignation in -lieu of
involuntary separation, based on the reasons 10 through 2-14.1') Area
commanders will forward these cases, with the recommendations and
remarks, to the Cdr, ARPERCEN, PAT-R.
Army Reg. 135-175, fl 2-8a (emphasis in original).
In response, the government filed a motion to dismiss Ms. Walker's second
amended complaint, or, in the alternative, for judgment on the administrative record.
Subsequently, Ms. Walker filed a cross-motion for judgment on the administrative
record and a response to the government's motion to dismiss, after which the parties
exchanged further responsive briefs.
FINDINGS OF FACT
On August 3, 1989, Ms. Walker was commissioned a second lieutenant in the
United States Army Reserve and assigned to the Transportation Corps. Between her
commissioning and April 1 , 1999, Ms. Walker served in various units in the Army
Reserve and the Army National Guard. On April 1, 1999, Ms. Walkertransferred from
the Texas Army National Guard to the Army Reserve. On June 19, 2002, she was
promoted to the rank of major in the Army Reserve.
On January 13, 2003, Ms. Walker was mobilized into active duty for one year in
support of Operation Enduring Freedom. On January 21,2003, Ms. Walker was ordered
to Fort Hood, Texas. On May 30, 2003, while on active duty, Ms. Walker sought medical
treatment for what Army medical personnel described as "bilateral wrist pain and hand
weakness for 2 to 3 months," and was diagnosed with carpal tunnel syndrome in both
hands. Ms. Walker's medical evaluation form indicated that her condition may result in
temporary disability. On August 7,2003, she was found unfit to perform her assigned
duties as a training officer, and, on August 13, 2003, an informal Line of Duty
Investigation conducted by Ms. Walker's commanding officer determined that she
sustained her injuries in the line of duty. Thereafter, on August 14,2003, Ms. Walker
requested incapacitation payo from the Army for bilateral carpal tunnel syndrome. On
5
The reasons for involuntary discharge, referenced in Army Regulation 135-175' 11 2-
8a, include, "substandard performance of duty," Army Reg. 135-175, fl 2-11, "Moral or
professional dereliction," Army Reg. 135-175, fl 2-12, "lnvoluntary separation of officers
who do not meet the medical fitness standards at time of appointment . . .," Army Reg.
135-175, fl 2-13, and "ln the interest of National security," Army Reg. 135-175,1'2-14.
6
Section 204(gX1XA) of title 37 of the United States Code states:
A member of a reserve component of a uniformed service is entitled to the
pay and allowances provided by law or regulation for a member of a
3
August 18, 2003, on United States Army Reserve Command Form 46-1-R (Soldier
Acknowledgement of Incapacitation Pay Counseling), Ms. Walker acknowledged her
understanding of, and agreement with, the requirements for requesting incapacitation
pay. On August 19, 2003, Ms. Walker completed her required service, was honorably
released from active duty, and transferred back to the Army Reserve.
A September 4, 2003, Military Physician's Statement of Soldier's
Incapacitation/Fitness for Duty form, United States Army Reserve Command Form 46-
2-R, indicates that Ms. Walker was found unfit to perform military duties from
September 4,2003 through March 4, 2004. In a January 26, 2004 memorandum from
Ms. Walker to her commanding officer, plaintiff requested incapacitation pay and
allowances from March 4,2004 through September 4,2004, due to her bilateral carpal
tunnel syndrome. Plaintiff also stated that she was unemployed, outside of her duties in
the Army Reserve, and without any income from any source.
On April 1,2004, Ms. Walker was transferred, upon her request, to the 317tn
Support Center, an Army Reserve unit in Germany, because her spouse, an active duty
Army officer, was transferred there. On a June 10, 2004, Individual Sick Slip,
Department of Defense Form 689, Ms. Walker was diagnosed with a right knee sprain
sustained in the line of duty, and was restricted from running, jumping, or marching for
seven days. A consult report, dated June 22, 2004, indicates that Ms. Walker was
undergoing physical therapy for tricompartmental arthritis in her right knee. On July 7,
regular component of a uniformed service of conesponding grade and
length of service whenever such member is physically disabled as the
result of an injury, illness, or disease incurred or aggravated . . . in [the]
line of duty while performing active duty. . . .
37 U.S.C. S 2Oa(gxlXA) (2000). Army Regulation 135-381 states:
a. Section 204, title 37, United States Code provides authority for
continuation of pay and allowances under certain circumstances to
soldiers who are disabled ILD [in the line of duty] from injury, illness, or
disease.
b. This chapter implements policy for soldiers disabled by injury, illness, or
disease after 29 September 1988.
c. For the purposes of this regulation such continuation of pay and
allowances is refened to as "incapacitation pay. . . .
Army Regulation 135-381, l[ 4-1a-c (June 1, 1990) (emphasis in original). The 1990
version of Army Regulation 135-381 was in effect at the time Ms. Walker requested
incapacitation pay. The specific processing procedures governing incapacitation pay
were later included in the Department of the Army Pamphlet 135-381, lncapacitation of
Reserve Component So/diers Processing Procedures (Sept.29,2005), which, however,
as discussed below, was not in effect at the time pertinent to plaintiffs claims.
2004, she was issued a temporary physical profile "3,"7 Department of the Army Form
3349, for 30 days, which indicated that Ms. Walker was restricted, until August 7,2004,
from certain physical activities, namely running, jumping, and kneeling/squatting, among
other things, due to knee pain and osteoarthritis. An Individual Sick Slip, Department of
Defense Form 689, dated August 3, 2004, indicates that Ms. Walker's temporary
restriction from certain physical activity was extended until August 30, 2004, or until she
had an orthopedic consultation. On September 1,2004, Ms. Walker was re-evaluated
for her carpal tunnel syndrome by an Army medical professional, who prescribed
"Motrin 800 mg" for the condition.
By the fall of 2005, Ms. Walker's Army Reserve unit commander in Germany
became aware that Ms. Walker continued to receive active duty pay in the aggregate
approximate amount of $55,000.00 after she had been released from her 2003 active
duty mobilization. An investigation commenced by her commanding officer pursuant to
Army Regulation 15-6, Procedures for lnvestigating Officers and Boards of Officers
(Sept. 30, 1996) (emphasis in original), found that
the respondent [Ms. Walker] mismanaged her personal affairs to the
discredit of the service within the meaning of paragraph 2-12(b ), AR 13
5-175, by knowingly continuing to receive military pay to which she was
not entitled. Specifically, a preponderance of the evidence shows: (a) that
the respondent did not out-process Finance as ordered at the end of her
mobilization in September 2003, (b) that the respondent failed to report
'As explained in Watson v. United States, 't 13 Fed. Cl. 615 (2013):
The Army's physical profile system is "a system for classifying individuals
according to functional abilities." Army Reg. 40-501 fl 7-1. In an effort to
"provide an index to overall functional capacity," individuals are assigned
one of four physical profile numerical designations /d fl 7-3(b). For
example, an individual assigned a physical profile of three "signifies that
the individual has one or more medical conditions or physical defects that
may require significant limitations," and that "[t]he individual should receive
assignments commensurate with his or her physical capability for military
duty." /d 1T7-3(dX3)
Individuals are also assigned either temporary or permanent physical
profiles. See rd fl 7-4. Relevant here, "A temporary profile is given if the
condition is considered temporary, the correction or treatment of the
condition is medically advisable, and correction usually will result in a
higher physical capacity." ld. 1174(b).
Watson v. United States, 113 Fed. Cl. at 623 n.8.
continued receipt of active-duty pay from September 2003 through May
2004 after demobilization, and (c) that the respondent improperly stated
the pay was incapacitation pay.
On December 3, 2005, Ms. Walker's commanding officer testified at her
administrative separation proceeding that the approximately $55,000.00 she had been
paid was identified during the course of the Article 15-6 investigation by a document
retrieved from the "military pay and finance automated system," as having been
improperly received. In addition, Ms. Walker had missed each of her Army Reserve
unit's battle assemblies every month between June 2004 and June 2005. Ms. Walker
also missed her unit's annual training in February 2005 and March 2005. As a result,
she had received eleven letters of unsatisfactory attendance from her commanding
officer for her absences.
On October 20, 2005, Ms. Walker was notified in a Notice of Elimination
Proceedings that an Administrative Separation Board would convene to determine
whether the Army should separate her from the Armed Services. The Notice of
Elimination Proceedings stated that Ms. Walker was required to be present at
Headquarters, 7tn Army Reserve Command, on December 3, 2005. The Notice of
Elimination Proceedings also contained language from Army Regulation 135-175,
stating that the Administrative Separation Board would appoint counsel to represent Ms.
Walker, in absentia, should she fail to appear at her proceeding. Ms. Walker ignored
additional attempts to notify her of the separation proceedings. For example, she hung
up the telephone on members of her Army Reserve unit when they called to notify her of
the unit's attempt to mail her Notice of Elimination Proceedings. When Ms. Walker's
Army Reserve unit commander went to her civilian workplace and attempted to provide
her with the Administrative Separation Board documents, she threatened to call the
military police.
Notification of Ms. Walker's elimination proceedings also was provided to Captain
Udelgarde Alexandre, a Senior Defense Counsel, who had been assigned to represent
Ms. Walker. Caotain Alexandre contacted Ms. Walker and explained that she was
appointed to represent Ms. Walker before the Administrative Separation Board
proceeding. In a July 29,2006 memorandum for record, Captain Alexandre stated:
Itold her [Ms. Walker] who lwas and explained that lwas appointed to
represent her at the Administrative Separation Board. Major Walker
informed me that she was not interested in my representation and that she
did not require my services. In plain English, she said "Ma'am l'm not
interested" twice and hung up the phone on me. MAJ Walker declined my
representation. I accepted Major Walker's wishes and did not represent
her at the board.
On December 3, 2005, the Administrative Separation Board was convened to
consider whether to separate Ms. Walker from the Army Reserve, and to determine the
appropriate type of discharge. After hearing testimony, including testimony from Ms.
Walker's Army Reserve unit commander, the "Show-Cause Board rn re MAJ Kathryn
Walker" found that Ms. Walker had
mismanaged her personal affairs to the discredit of the service within the
meaning of paragraph 2-12(b'), AR 135-175, by knowingly continuing to
receive military pay to which she was not entitled. Specifically, a
preponderance ofthe evidence shows: (a) that the respondent did not out-
process Finance as ordered at the end of her mobilization in September
2003, (b) that the respondent failed to report continued receipt of active-
duty pay from September 2003 through May 2004 after demobilization,
and (c) that respondent improperly stated the pay was incapacitation
pay....
That the respondent intentionally neglected or failed to perform assigned
duties within the meaning of paragraph 2-12(i)(1), AR 135-175, by missing
unit battle assemblies every month between June 2004 and June 2005
and by missing unit annual training in February and March 2005.
specifically [sic], a preponderance of the evidence shows: (a) that the
respondent failed to report for repeated battle assemblies between June
2004 and June 2005 as evidenced by 11 letters of unsatisfactory
attendance, and witnessed by her unit commander, and (b) that the
respondent failed to report for mandatory annual training on 11 September
2004 and again from 26 February through 11 March 2005, as evidenced
by notification letters from her unit commander. . . .
That the respondent intentionally neglected or failed to reply to official
correspondence within the meaning of paragraph 2-12(iX3Xd), AR 135-
175, by refusing to acknowledge letters from her unit and by hanging up
the telephone on an officer from the unit who called to ascertain why she
was not present for unit training. Specifically, a preponderance of the
evidence shows: (a) that the respondent on repeated occasions refused to
accept personally delivered notifications as stated by the witnesses, (b)
that the respondent on repeated occasions refused to accept delivery of
and to sign for mail as evidences [sic] by written statements, (c) that the
respondent's husband, an active-duty officer, connived with her in refusing
delivery of and to sign for mail as evidenced by written statements, and (d)
that the respondent willfully changed her mailing address from Germany to
Texas with intent to deceive and in order to frustrate deliverv of mail to her
while she was living in Germany.
Based upon its findings, the Show-Cause Board concluded that Ms. Walker
should be separated from the Army Reserve with a^ discharge under other than
honorable conditions. Accordingly, on October 1, 2006,' in a decision signed by Col.,
o
The court notes that the administrative record before the court includes two different
discharge orders of Ms. Walker, the first with the effective date of September 8, 2006,
GS [General Staffl Albert J. Gardner, Ms. Walker was separated from the Army Reserve
with an other than honorable discharge.
Ms. Walker sought administrative review of her discharge on five separate
occasions, twice before the Army Discharge Review Board (ADRB), and three times
before the ABCMR. Ms. Walker first challenged her discharge before the ADRB on
November 8,2007, requesting that the ADRB upgrade her discharge characterization
from "UNDER OTHER THAN HONORABLE' to "HONORABLE." (capitalization in
original). On September 30, 2008, the ADRB denied Ms. Walker's request, stating that
after reviewing her application, it determined Ms. Walker was "properly and equitably"
discharged under other than honorable conditions. On January 8, 2009, Ms. Walker
again challenged her discharge before the ADRB and repeated her request for an
upgrade in characterization. On May 6, 2009, the ADRB again rejected Ms. Walker's
challenge on the grounds she was "properly and equitably" discharged. The ADRB
added that Ms. Walker had exhausted her appeals with the ADRB, but noted that she
could still apply to the ABCMR for relief.
Ms. Walker challenged her discharge before the ABCMR on June 2, 2009, this
time represented by counsel. Ms. Walker requested that her involuntary separation with
a discharge under other than honorable conditions be voided, and that she be
reinstated into the Army Reserve. Ms. Walker argued before the ABCMR that her
discharge proceedings should be voided because she was denied due process as set
forth in Army Regulation 135-175. According to Ms. Walker, an officer against whom
involuntary administrative separation proceedings have been initiated should be
afforded notice of the proceedings and records which are to be submitted to the
Administrative Separation Board, has a right to representation by counsel, and should
have an opportunity to present her case to the Administrative Separation Board. Ms.
Walker further stated that she was not notified of her involuntary separation action, and
that she did not execute any waiver of her rights to appear for a hearing before a Board
of officers. Ms. Walker also argued that the presumption of regularity the ABCMR
attributed to the Army adminishative separation process was erroneous, because "the
entire record is void of any facts and circumstances concerning the events that led to
her discharge from the Army Reserve." On December 11, 2009, the ABCMR denied
Ms. Walkeis challenge. In its record of proceedings, the ABCMR stated that Ms. Walker
bore the burden of proving an error or injustice by a preponderance of the evidence, but
that she had failed to satisfy that burden.
and the second with the effective date of October 1 , 2006. The discharge orders bear
different numbers, were issued on different dates and list different effective dates of Ms.
Walker's discharge, although both discharge orders were signed by Col., GS Albert J.
Gardner, both reference the HRC's September 8, 2006 Memorandum signed by MG
[Major General] Hernandez, and both note Ms. Walker's other than honorable
discharge. Because plaintifi and defendant in their respective briefs agree that Ms.
Walker's effective date of discharge is October 1, 2006, the court will treat Ms. Walker's
effective date of discharge as October 1 , 2006.
The ABCMR concluded that:
The applicant's records do not contain the facts and circumstances
concerning the events leading to her discharge from the USAR. Her
commander's notification of her separation action, her election of her
rights, and the recommendations of a board of officers were not available
for review. However, her discharge orders contain a reference to a
memorandum from HRC [Headquarters Reserve Command], dated 8
September 2006, and signed by a major general. Therefore, it is
reasonable to conclude that her separation package and
recommendations by a board of officers were in fact submitted to HRC for
final approval.
On April 7,2011, the ABCMR denied a petition filed by Ms. Walker for
reconsideration of its December 1 1, 2009 decision and concluded that she had failed to
meet her burden of oroof. The ABCMR stated that "the overall merits of this case are
insufficient" to amend its earlier decision. In its April 7. 20'11 decision, the ABCMR
noted that the evidence in the record demonstrated that Ms. Walker's administrative
discharge was accomplished in accordance with the applicable regulations, with no
indications of any violations of her rights. The ABCMR also noted that Ms. Walker was
afforded every opportunity to participate in her administrative separation proceedings,
but had failed to do so. Furthermore, the ABCMR concluded that based on a review of
Ms. Walker's separation proceedings, her discharge under other than honorable
conditions properly characterized "her multiple acts of misconduct and overall service."
On May 2, 2012, Ms. Walker petitioned the ABCMR for a third time, again
seeking correction of her military records to void her involuntary separation and for
reinstatement into the Army Reserve. Additionally, Ms. Walker requested evaluation of
her medical status by a Medical Evaluation Board (MEB), as well as "incapacitation pay
and allowances for the period from 20 August 2003 through the date of completion of
her physical disability evaluation and separation from the USAR.' Ms. Walker alleged in
her third petition to the ABCMR that she never was fit for duty after her 2003
mobilization; that she was involuntarily discharged without simultaneous process for
administrative separation and physical disability evaluation to which she claims she was
entitled; that she was undergoing medical treatment at the time she was separated; that
she was separated without the benefit of proper treatment and evaluation of her alleged
medical condition; and that she was denied the opportunity to submit documentation of
her medical condition and have a disability rating assigned, all in violation of Army
Regulation 635-40.
On November 13, 2012, the ABCMR returned Ms. Walker's request without
action. The ABCMR stated that according to Army Regulation 15-185, if it receives a
request for reconsideration after it has already considered one request for
reconsideration, the case will be returned without action. See Army Reg. 15-185, Army
Board for Conection of Military Records, 11 2-15b (Mar. 31 , 2006). As discussed in its
on April 7. 2011 decision, the ABCMR had reiected Ms. Walker's request for
reconsideration of its denial of her first request for relief. Nonetheless, on November
27.2012. the ABCMR issued a decision in which it stated it had decided to conduct a
substantive review of Ms. Walker's third oetition to determine whether the interests of
justice necessitated granting her relief. Upon evaluation of the evidence in the record,
the ABCMR, once again, determined that there was no basis for granting any of Ms.
Walker's requested relief. TheABCMR noted thatwhile an August 13,2004 Informal
Line of Duty Investigation referenced an August 7, 2003 handwritten letter by Ms.
Walker "Chief, Training," indicating that Ms. Walker was found to be unfit to perform her
assigned duties, her August 14, 2003 request for incapacitation pay did not contain the
proper documentation required for such claims to be approved. The ABCMR noted that
Department of the Army Pamphlet 135-381s details the procedures by which a soldier
must apply for and be approved to receive incapacitation pay. See Department of the
Army Pamphlet 135-381 (Sept. 29, 2005). The ABCMR also held that "[o]n 4 September
2003, a military physician documented that the applicant was unfit to perform military
duties from 4 September 2003 to 4 March 2004. However, the evidence of record fails
to show the applicant provided the documentation to her commander for consideration
of her request." Furthermore, the ABCMR held that Ms. Walker's request for
incapacitation pay for the period from March 4, 2004 through September 4, 2004 also
did not contain the required documentation. The ABCMR concluded there was no
evidence to demonstrate that Ms. Walker was excused from attending her various unit
battle assemblies and annual training in 2004 and 2005. Accordingly, the ABCMR held
that there was insufficient evidence to support Ms. Walker's claim that she had
submitted a proper request for incapacitation pay, or that she was entitled to
incapacitation pay retroactive to August 20,2003, through the date of her separation.
s The
court notes that the ABCMR incorrectly references the Department of the Army
Pamphlet 135-381 as applicable to Ms. Walker's case. The Department of the Army
Pamphlet 135-381 was first issued in September 2005. The procedures described
therein, and, specifically, in DA PAM 135-381 ll 2-1 ,lor a soldier to "[c]omplete and
submit an lncapacitation Pay Monthly Claim Form (DA Form 7574 figure 2-2)) for each
calendar month claimed," are, therefore, not applicable to Ms. Walker, as the alleged
processing of her incapacitation claims must have taken place in the time period
between August 2003 and March 2004, long before the Army Pamphlet 135-381 was in
effect. The defendant concedes that the ABCMR inconectly cited to the pamphlet, but
argues it was, at most, "harmless error" because Army Regulation 135-381 already
provides procedures for incapacitation pay and the "pamphlet merely provides a greater
degree of specificity." The court notes, however, Army Regulation 135-381 contains
only general procedures regarding the incapacitation pay process, and does not include
a requirement to submit a monthly claim form. Had the court reached the merits of Ms.
Walker's claim and been able to consider if the ABCMR's decision was "'arbitrary,
capricious, contrary to law, or unsupported by substantial evidence,"' Meidl v. United
States, 108 Fed. Cl. 570,575 (quoting Roth v. United States, 378 F.3d 1371, 1381
(Fed. Cir.), reh'q denied (Fed. Cir. 2004)), mistakes, such as the citation to the
Department of the Army Pamphlet 135-381, would have required closer scrutiny by the
court.
'10
Additionally, regarding Ms. Walker's request for an evaluation of her medical
status by an MEB, the ABCMR noted that "under the laws governing the Army PDES
[physical disability evaluations], in order to be eligible to receive retirement and
severance pay benefits, physically unfitting disabilities must meet certain LOD fiine of
duty determinationl criteria." Seg Army Reg. 635-40, Physical Evaluation for Retention,
Retirement, or Separation, fl 3-4a (Sept. 1, 1990). The ABCMR concluded that there
was no evidence establishing that Ms. Walke/s alleged condition was directly caused
by either service on active duty or in the Army Reserve. According to the ABCMR,
the evidence of record shows the period of time the examining physician
certified the applicant [Ms. Walker] was not fit to perform military duties
was from 4 Seotember 2003 to 4 March 2004. The Evidence of Record
also shows the applicant [Ms. Walker] was administratively separated from
the USAR more than 2 /, years after the period that a physician
documented the applicant was unable to perform military duties. Since
there are no other medical records showing she was unfit to perform her
military duties,.it is reasonable to conclude that [Ms. Walker's] condition
had improved.['"]
Accordingly, the ABCMR concluded Ms. Walker was not entitled to physical disability
evaluation processing, and her claim was found to be without merit. The ABCMR also
highlighted that Ms. Walker bore the burden of proving administrative impropriety in her
separation by a preponderance of the evidence, and that she had failed to do so.
Therefore, the ABCMR denied all of Ms. Walker's requested relief, and informed Ms.
Walker that she was not eligible to request further action on her claims to the ABCMR
because her request for review of her discharge had already been reconsidered. The
ABCMR added, however, that Ms. Walker could seek relief in a court of appropriate
jurisdiction.
Ms. Walker ultimately filed a complaint in the United States Court of Federal
Claims, followed by an amended complaint, and then a second amended complaint. In
this court, Ms. Walker requests incapacitation pay for the period from September 2003
through February 2004, reinstatement into the Army Reserve as a major, and correction
of her military records to set aside her under other than honorable conditions discharge.
In response, the government filed a motion to dismiss, or, in the alternative, for
judgment on the administrative record. The government first argues that the court lacks
subject matter jurisdiction to adjudicate Ms. Walker's incapacitation pay claim because it
is time-baned by the statute of limitations. Second, the government argues that
10
Several documents in the administrative record suggest that Ms. Walker may have
suffered a knee injury in 2004, and may have continued to suffer from Carpal Tunnel
Syndrome as of September 1,20O4. Nothing in the administrative record, however,
demonstrates that Ms. Walker was diagnosed by a medical professional to be unfit to
perform her military duties after March 4, 2004, such that she might have been entitled
to incapacitation pay.
11
because the court lacks jurisdiction over Ms. Walker's incapacitation pay claim, the
court lacks jurisdiction to adjudicate her remaining claims for reinstatement and
correction of her military records because they are equitable claims, for which she
cannot be awarded relief if not incident to, or collateral to, a claim for monetary relief.
Third, the government argues that even if the court determines it has jurisdiction to
adjudicate Ms. Walker's claims, it should limit its review to the ABCMR's November 27,
2012 decision, in which the ABCMR concluded that there was insufficient evidentiary
basis to support Ms. Walker's claim that she had submitted a proper claim for
incapacitation pay or that she was entitled to incapacitation pay. Fourth, the government
argues that the ABCMR correctly found that Ms. walker was properly discharged from
the Army Reserve and the Board properly concluded that Ms. walker was not entifled to
incapacitation pay, because she was not entitled to simultaneous processing on medical
grounds, and because of her documented misconduct. The government also contends
that Ms. walker's argument that her discharge orders did not comply with regulations is
waived because she did not argue it before the ABCMR, and that her disCharge was
properly processed and the orders properly authenticated.
In response, Ms. Walker asserts that this court has jurisdiction to adjudicate all of
her claims, including her request for incapacitation pay and her request to be reinstated
into the Army Reserve. Ms. walker also argues that she is entiiled to incapacitatron pay
because she alleges the claim accrued on lhe date of her improper discharge from the
Army Reserve, given that her discharge was defective because it failed to comply with
applicable regulations and was not properly approved. Ms. walker also alleges that that
the ABCMR's November 27,2012 rejections of her requests for relief weie arbitrary,
capricious, and contrary to law.
DtscusstoN
Ms. walker filed her case in this court pro se. when determining whether a
complaint filed by a oro se plaintiff is sufficient to invoke review by a c-ourt, pro se
plaintiffs are entitled to liberal construction of their pleadings. see ijaines v. Kerner:
404 u.s. 519, 520-21 (requiring that allegations contained in a prq gc complaint be neta
to 'less stringent standards than formal pleadings drafted by lawyers"), ieh'q denied,
405 U.S. 948 (1972): see atgo Erickson v. pardus, 551 U.S. 89, 94 (2007)., HlgXCS_lt
Rowe,449 U.S.5,9-10 (1980); Esteile v. Gambte,429 U.S.97, 106 tigZOl, relg
9g!igd, 429 U S 1066 (1977); Matthews v. United States, 750 F.3d rS)O 1ri:0. Cin
2014) (citing Haines v. Kerner, 404 u.s. at s20); Diamond v. United states, 115 Fed. cl.
516, 524 (2014). "However, "'[t]here is no duty on the part ofirre triat court to create a
claim which [the plaintiffl has not spelled out in his [or her] pleading.""' Lenqen v. United
States,100Fed.C|.317,328(2011)(a|terationsinorigina|)(quotins@
states, 33 Fed. cl. 285,293 (1995) (quoting ctark v. Nit't rraveterJLife tisj-o. s18
F.2d 1167,1169 (6th Cir. '1975))); see atso Bussie v. U@, 94,
F. App'x 542(Fed. Cir.2011); Minehan v. United States, Tb Fed. Ct. 24g,253
S,++l"While a pro se plaintiff is held
(2007). to a less stringent standaid than that of a plaintiff
represented by an attorney, the oro se plaintiff, nevertheless, bears the buiden of
establishing the court's jurisdiction by a preponderance of the evidence.,, Riles v.
12
United States, 93 Fed. Cl. 163, 165 (2010) (citing Huohes v. Rowe,449 U.S. at 9 and
Tavlor v. United States, 303 F.3d 1357, '1359 (Fed. Cir.) ("Plaintiff bears the burden of
showing jurisdiction by a preponderance of the evidence."), reh'q and reh'q en banc
denied (Fed. Cn.2002)); see also Harris v. United States, 113 Fed. C|.290,292(2013)
("Although plaintiffs pleadings are held to a less stringent standard, such leniency 'with
respect to mere formalities does not relieve the burden to meet jurisdictional
requirements."' (quoting Minehan v. United States, 75 Fed. Cl. at 253)).
It is well established that "'subject-matter jurisdiction, because it involves a
court's power to hear a case, can never be forfeited or waived."' Arbauqh v. y & H
Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630
(2002)). "[F]ederal courts have an independent obligation to ensure that they do not
exceed the scope of their jurisdiction, and therefore they must raise and decide
jurisdictional questions that the parties either overlook or elect not to press." Henderson
ex rel. Henderson v. Shinseki, 131 S. Ct. 1197,1202 (2011); see also Hertz Corp. v.
Friend, 559 U.S. 77, 94 (2010) ("Courts have an independent obligation to determine
whether subject-matter jurisdiction exists, even when no party challenges it." (citing
Arbauqh v. Y & H Corp., 546 U.S. at 514)); Special Devices. Inc. v. OEA, Inc., 269 F.3d
1340, 1342 (Fed. cir.2001) ('[A] court has a dutyto inquire into its jurisdiction to hear
and decide a case." (citing Johannsen v. Pav Less Druq Stores N.W., Inc., g18 F.2d
160, 161 (Fed. Cir. 1990))); View Enq'q. lnc. v. RoboticVlsion Svs.. lnc., 115 F.3d 962,
963 (Fed. cir. 1997) ("[c]ourts must always look to their jurisdiction, whether the parties
raise the issue or not."). "The objection that a federal court lacks subject-matter
jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage
in the litigation, even after trial and the entry of judgment." Arbauqh v. y & H Corp., 546
U.S. at 506; see also Cent. Pines Land Co.. L.L.C. v. United States,697 F.3d 1360,
1364 n.1 (Fed. cir. 2012) ("An objection to a court's subject matter jurisdiction can be
raised by any party or the court at any stage of litigation, including after trial and the
entry of judgment." (citing Arbauqh v. Y & H Corp., 546 U.S. at 506)); Rick,s Mushroom
S.erv.. lnc. v. United States,521 F.3d 1338, 1346 (Fed. Cir. 2008) ("[A]ny party may
challenge, or the court may raise sua sponte, subject matter jurisdiction at any time."
(citing Arbauoh v. Y & H Corp., 546 U.S. at 506; Folden v. United States, 379 F.3d
1344, 1354 (Fed. Cir.), reh'q and reh'q en banc denied (Fed. Cir. 2004), cert. denied,
545 U.S. 1127 (2005); and Fanninq, Phillips & Molnarv. West, 160 F.3d 717,720 (Fed.
Cir 1998))); Pikulin v. United States, 97 Fed. CL 71, 76,appeat dismissed, 42S F. App,x
902 (Fed. Cir.2011). In fact, "[s]ubject matter jurisdiction is an inquiry that this court
must raise sua sponte, even where . . . neither party has raised this issue." Metabolite
_Labs., Inc. v. Lab. Corp. of Am. Holdinos,3TO F.3d 1354, 1369 (Fed. Cir.) citing ICXtilC
Prods., lnc. v. Mead Corp., 134 F.3d 1481,14A5 (Fed. Cir.), reh'q denied and en oanc
Slggesle! declined (Fed. Cir.), cert. denied, 525 U.S. 826 (1998)), reh'q and reh'q en
bancdenied (Fed. Cir.2004),ceft. qranted in oartsub. nom Lab. Corp. of Am. Holdlnqs
y. Melalolite Labs.. lnc., 546 u.s. 975 (2005), cert. dismissed as improvidenflv qranted,
548 U.S. 124 (2006).
Pursuant to the Rules of the United States Court of Federal Claims (RCFC) and
the Federal Rules of civil Procedure, a plaintiff need only state in the complaint "a short
13
and plain statement of the grounds for the court's jurisdiction," and "a short and plain
statement of the claim showing that the pleader is entitled to relief." RCFC 8(a)(1), (2)
(2014); Fed. R. Civ. P. 8(aX1), (2) (2014); see alsoAshcroftv. lqbal,556 U.S. 662,677-
78 (2009) (citing Bell Atl. Corp. v. Twomblv, 550 U.S. 544,555-57,570 (2007)).
"Determination of jurisdiction starts with the complaint, which must be well-pleaded in
that it must state the necessary elements of the plaintiffs claim, independent of any
defense that may be interposed." Hollev v. United States,124F.3d 1462, 1465 (Fed.
Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust,463 U.S. 1 (1983)),
reh'q denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States,
97 Fed. C|.203, 208 (2011); Gonzalez-McCaullev Inv. Grp., Inc. v. United States,93
Fed. Cl. 710,713 (2010). "Conclusory allegations of law and unwarranted inferences of
fact do not suffice to support a claim." Bradley v. Chiron Corp., 136 F.3d 1317,1322
(Fed. Cir. 1998); see also McZeal v. Sprint Nextet Corp.,501 F.3d 1354, 1363 n.9 (Fed.
Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and A.
Miller, Federal Practice and Procedure S 1286 (3d ed. 2004)).
"A plaintiffs factual allegations must 'raise a right to relief above the speculative
level'and cross'the line from conceivable to plausible."' Three S Consultinq v. United
States, 104 Fed. C|.510,523 (2012) (quoting Bett Att. Corp. v. Twombtv,550 U.S. at
555), aff'd, 562 F. App'x 964 (Fed. Ct.2014), reh'o denied (Fed. Cir. June 11,2014\.
As stated in Ashcroft v. lqbal, "[a] pleading that offers 'labels and conclusions' or 'a
formulaic recitation of the elements of a cause of action will not do.' 550 U.S. at 555.
Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual
enhancement."' Ashcroft v. lqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twomblv,
550 U.S. at 555).
When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the
complaint are true and must draw all reasonable inferences in the non-movant's favor.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("ln addition, when ruling on a
defendant's motion to dismiss, a judge must accept as true all of the factual allegations
contained in the complaint." (citing Bell Atl. Corp. v. Twomblv, 550 U.S. at 555-56 (citing
Swierkiewicz v. Sorema N. A.,534 U.S. 506, 508 n.1 (2002)))); Scheuerv. Rhodes,416
U.S. 232, 236 (1974) ("Moreover, it is well established that, in passing on a motion to
dismiss, whether on the ground of lack of jurisdiction over the subject matter or for
failure to state a cause of action, the allegations of the complaint should be construed
favorably to the pleader."), abroqated on other qrounds by Harlow v. Fitzqerald, 457
U.S. 800 ('1982), recoonized !y Davis v. Scherer,468 U.S. 183, 190, reh'q denied,468
U.S. 1226 (1984); United Pac. Ins. Co. v. United States,464 F.3d 1325, 1327-28 (Fed.
Cir.2006); Samish Indian Nation v. United States,419 F.3d 1355, 1364 (Fed. Cir.
2005); Boise Cascade Corp. v. United States,296 F.3d 1339, 1343 (Fed. Cir.), reh'q
and reh'q en banc denied (Fed. Cn.2002), cert. denied, 538 U.S. 906 (2003).
14
The Tucker Act grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon 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) (2012). As interpreted bythe United States Supreme Court, the
Tucker Act waives sovereign immunity to allow jurisdiction over claims against the
United States (1) founded on an express or implied contract with the United States, (2)
seeking a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
government for damages sustained. See United States v. Navaio Nation, 556 U.S. 287,
289-90 (2009); United States v. Mitchell, 463 U.S. 206,216 (1983); see also Greenlee
Cntv.. Ariz. v. United States,487 F.3d 871,875 (Fed. Cir.), reh'q and reh'q en oanc
dgnied (Fed. Cn. 2007), cert. denied, 552 U.S. 1142 (2008); patmer v. United States,
168 F.3d 1310, 1314 (Fed. Cir. 1999).
"Not every claim invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages against
the United States. . . ." United States v. Mitchell,463 U,S. at 216; see also United
States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United
States, 709 F. 3d 1114, 1116 (Fed. Cir.), cert. denied, 134 S. Ct. 2S9 (2013)r
Eadjeshack Corp. v. United States,566 F.3d 1358, 1360 (Fed. Cir.2009); Rick,i
Mushroom Serv., Inc. v. united states, 521 F.3d at 1343 ("[p]laintiff must . . . identify i
substantive source of law that creates the right to recovery of money damages agarnsr
the United States."). In Ontario Power Generation, Inc. v. United States, the United
states court of Appeals for the Federal circuit identified three types of monetary claims
for which jurisdiction is lodged in the United states court of Federal claims. The court
wrote:
The underlying monetary claims are of three types. First, claims
alleging the existence of a contract between the plaintiff and the
government fall within the Tucker Act's waiver. . . . Second, the Tucker
Act's waiver encompasses claims where "the plaintiff has paid money over
to the Government, directly or in effect, and seeks return of all or part of
that sum." Eastport S.S. ICorp. v. United States, 178 Ct. Cl. 599, 605-06,1
372 F.2d [1002,] 1007-08 (1967)l (describing iilegal exaction ctaims as
claims "in which 'the Government has the citizen's money in its pocket','
(quoting Claop v. United States,127 Ct. C|.505, 117 F. Supp. b76,58O
(1954)) . . . . Third, the Court of Federal Claims has jurisdiction over those
claims where "money has not been paid but the plaintiff asserts that he is
nevertheless entitled to a payment from the treasury." Eastport S.S., 372
F.2d at7. Claims in this third category, where no payment has been
1q
made to the government, either directly or in effect, require that the
"particular provision of law relied upon grants the claimant, expressly or by
implication, a right to be paid a certain sum." ld.; see also Testan [v
United Statesl ,424U.5.1392,1 401-02 [1976] ("Wherethe United States is
the defendant and the plaintiff is not suing for money improperly exacted
or retained, the basis of the federal claim-whether it be the Constitution, a
statute, or a regulation-does not create a cause of action for money
damages unless, as the Court of Claims has stated, that basis 'in itself . .
can fairly be interpreted as mandating compensation by the Federal
Government for the damage sustained."' (quoting Eastport S.S., 372 F.2d
at 1009)). This category is commonly referred to as claims brought under
a "m oney-m and ating " statute.
Ontario PowerGeneration. Inc. v. United States,369 F.3d.t298, 1301 (Fed. Cir.2004):
see also Twp. of Saddle Brook v. United States, .,|04 Fed. Cl. 101, 106 (2012).
To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon "'can fairlv be
interpreted as mandating compensation by the Federal Government.';' United States v.
Navaio Nation, 556 U.S. at 290 (quoting United States v. Testan , 424 U.5. at aOO); see
algq united states v. white Mountain Apache Tribe, 537 u.s. at 472; united stares v.
Mitchell,463 U.S. at 217; Blueport Co.. LLC v. United States, SSg f3d 137a, l3B3
(Fed. Cir.2008), cert. denied,555 U.S. 1153 (2009). The source of law granting
monetary relief must be distinct from the Tucker Act itself. See United States v]Navaio
N=ation, 556 u.s. at 290 (The Tucker Act does not create "substantive rights;
tit rs smply
al jurisdictional provision[] that operatels] to waive sovereign immunity -for claims
premised on other sources of law (e.9., statutes or contracts)."). "'lf the itatute is not
money-mandating, the court of Federal claims lacks jurisdiction, and the dismissal
should be for lack of subject matter jurisdiction."' Jan's Helicopter serv., lnc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. ZOO8) (quoting grcen!9C_.leAly-jlzJ
United states, 487 F.3d at 876); Fisher v. United states , loz {.sa tlal , llzl lrea. Ci
2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction
under the Tucker Act."); Peoples v. United States, 87 Fed. Cl. SS3, 565-66 (2d09).
Incapacitation Pav Claim
The government asserts that Ms. walker's claim for incapacitation pay is barred
by the statute of limitations because Ms. walker failed to bring her incapacitation pay
claim within six years of the accrual of the claim. Ms. walker's incapacitation pay claim,
if timely, would be brought pursuant to the Tucker Act's waiver of sovereign immunity,
and premised on the money-mandating provisions of the Military pay Act. see iz
u.s.c. s 204. The Military Pay Act allows reservists in the Armed Foices to recerve
incapacitation pay for injuries incurred in the line of duty. see id. S 204(g)(1). Although
the Tucker Act waives federal sovereign immunity and grants this court jurisdiction to
hear monetary claims against the government, such as claims for incapacitation pay
pursuant to the Military Pay Act, this court's jurisdiction is expressly limited by 28 u.s.c.
16
S 2501 (2012), which prescribes a six-year statute of limitations for claims arising out of
the Tucker Act's waiver of sovereign immunity.
According to 28 U.S.C. g 2501:
Every 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. . . . A petition on the claim of a
person under legal disability or beyond the seas at the time the claim
accrues may be filed within three years after the disability ceases.
ld. "The six-year statute of limitations set forth in section 2501 is a jurisdictional
requirement for a suit in the Court of Federal Claims." John R. Sand & Gravel Co. v.
United States, 457 F.3d 1345, 1354 (Fed. Cir.), reh'o en banc denied (Fed. Cir. 2006),
affd,552 U.S. 130 (2008); Schnell v. United States, 115 Fed. Ct. 102, 104-05 (2014).
The United States Court of Appeals for the Federal Circuit has indicated that a claim
accrues ""'when all events have occurred to fix the Government's alleged liability,
entitling the claimant to demand payment and sue here for his money.""' San Carlos
Aoache Tribe v. United States,639 F.3d 1346, 1358-59 (Fed. Cir.) (quoting Samish
Indian Nation v. United States,419 F.3d 1355, 1369 (Fed. Cir.2005) (quoting Martinez
v. United States,333 F.3d 1295, 1303 (Fed. Cir.2003), cert. denied,540 U.S. 1177
(2004))), reh'q en banc denied (Fed. Cir. 2011); see also FloorPro, Inc. v. United States,
680 F.3d 1377,1381 (Fed. Cir. 2012); Martinez v. United States, 333 F.3d at 1303) ("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, r.e., when 'all events
have occurred to fix the Government's alleged liability, entitling the claimant to demand
payment and sue here for his money."' (quoting Naqer Elec. Co. v. United States, 177
Ct. Cl. 234, 240, 368 F.2d 847,851 (1966), motion denied, 184 Ct. Ct. 390, 396 F.2d
977 (1968)); Mildenberoer v. United States, 643 F.3d 93A,94445 (Fed. Cir. 2011);
Hopland Band of Pomo Indians v. United States. 855 F.2d 1573, 1577 (Fed. Cir. 1988);
see also Eden lsle Marina, Inc. v. United States, 113 Fed. C|.972,a81 e013); Brizuela
v. United States, 103 Fed. Cl. 635, 639, affd,492 F. App'x 97 (Fed. Cir.2012), cert.
denied, 133 S. Ct. 1645 (2013); see atso Lew v. United States, 83 Fed. Cl.67,73,79
(2008) (dismissing a claim for military reserve retirement benefits because suits against
the United States are subject to a six-year statute of limitations and the claim was filed
outside the allotted timeframe); Barnev v. United States, 57 Fed. Cl. 76, 83, 86 (2003)
(dismissing former Airman's claims for wrongful discharge/unpaid wages and disability
retirement because they were time-barred by the six-year statute of limitations).
A Judge of the United States Court of Federal Claims has noted that:
It is well-established that a claim accrues under section 2501 "when,all
events have occurred to fix the Government's alleged liability, entiiling the
claimant to demand payment and sue here for his money."' Martinez v.
United States,333 F.3d 1295, 1303 (Fed. Cir.2003) (en banc), cert.
denied, 540 U.S. 1177 (2004) (quoting Naoer Elec. Co. v. United States,
368 F.2d 847,851 (Ct. Cl. 1966)); see atso Samish flndian Nation v.
United Statesl,419 F.3d [1355,] 1369 (2005)1. Because, as noted, this
17
requirement is jurisdictional, plaintiff bears the burden of demonstrating
that its claims were timely. See Alder Terrace. Inc. v. United States, 161
F.3d 1372, 1377 (Fed. Cir. 1998); Entines v. United States, 39 Fed. Cl
673,678 (1997), affd, 185 F.3d 881 (Fed. Cir.), cert. denied,526 U.S
1117 (1999); see also John R. Sand & Gravel Co. v. United States,457
F.3d 1345, 1362 (Fed. Cir.2006) (Newman, J., dissenting); Reynolds v.
Armv & Air Force Exch. Serv., 846 F.2d 746,748 (Fed. Cir. 1988).
Parkwood Assocs. Ltd. P'ship v. United States, 97 Fed. Cl. 809, 813-14 (2011), affd,
465 F. App'x 952 (Fed. Cir. 2012); see also Klamath Tribe Claims Comm. v. United
States,97 Fed. C1.203,209 (201 1)(citingAlderTerrace, lnc. v. United States, 161 F.3d
1372, 1377 (Fed. Cir. 1998)). Accrual of a claim is "'determined under an objective
standard"' and plaintiff does not have to possess actual knowledge of all the relevant
facts in order for a cause of action to accrue. FloorPro. Inc. v. United States, 680 F.3d
at 1381 (quoting Fallini v. United States,56 F.3d 1378, 1380 (Fed. Cir. 1995), cert.
denied, 517 U.S. 1243 (1996)).
In her claim, Ms. Walker tries to conflate her incapacitation pay claim and
wrongful discharge claim, but she does not make a claim for back pay due to wrongful
discharge. Moreover, as correctly noted by defendant, "her Tucker Act claim is not for
wrongful discharge, but rather for non-payment of incapacitation pay." Regarding
incapacitation pay, Army Regulation 135-381, fl 4-1k instructs that,,[t]here is no
automatic entitlement to incapacitation pay. Each request is judged on a case-by-case
basis and is based on a soldier's inability to perform normal military duties or
demonstrated loss of nonmilitary income." ld. "A prerequisite for entiflement to
incapacitation pay is a completed, favorable LD [line of duty] investigation of injury,
illness, or disease. However, a finding of ILD [in the line of duty] alone does not provide
automatic entitlement to pay." ld., lJ 4-1d. "Prerequisites for entitlement to incapacitation
pay are inability to perform normal military duties or satisfactory demonstration of loss of
nonmilitary earned income." ld., fl 4-1e. To receive incapacitation pay, the
[o]ther requirements of law that must be met include-
(1) Inability to perform normal military duties or demonstrated loss
of nonmilitary income.
(2) A finding that the soldier was disabled "while so employed."
(3) The injury, illness, or disease was incurred or aggravated while
in a duty or travel status.
(4) Eligibility to receive incapacitation pay.
rd., 114-1d(1)-(4).
Army Regulation 135-381 also lists the documents to be considered by the
Incapacitation Review Board for every request for incapacitation pay, including a line of
duty investigation report, together with a final determination; a medical evaluation;
medical records; memorandum authorizing medical treatment; commander's statement;
documentation to support loss of non-military compensation, if applicable; statements
18
and documentation submitted by the requesting solider; and a U.S. Army Accident
Investigation Report. See Army Reg. 135-381, fl 5-5a (1)-(8). Other documents, such
as the requesting soldier's training schedule, record of incapacitation payments, and
entitlement verification memorandum, may be considered by the Board, as appropriate.
See Army Reg. 135-381, 1T 5-5b (1), (5)-(6) "
The government argues that because Ms. Walker invokes the Military Pay Act as
the money-mandating statute to support her claim that she was wrongfully denied
incapacitation pay from September 2003 through February 2004, her claim filed on
September 27, 2012 in this court is untimely. The government contends that, "a claim
for money damages arising under the incapacitation pay provisions of the Military pay
Act would accrue on the date that the application was approved," and argues that,
"[c]onsequently, Ms. Walker's alleged claims for incapacitation pay were fixed, known
and claims that were due and payable upon the end of each month that she submitted
an application that was approved, but did not receive such payments."
Plaintiff acknowledges that according to the "date of discharge" rule established
by the united states court of Appeals for the Federal circuit in Martinez v. United
States, improper military discharge claims are subject to the six-year statute of
limitations, pursuant to 28 U.S.C. S 2501. See Martinez v. United States, 333 F.3d at
1314. Ms. Walker argues, however, that her claim for incapacitation pay is not barred by
the statute of limitations because the government mischaracterized her claim as one of
a reservist on active duty, and that she was in fact a parHime reservist, not on active
duty. Ms. Walker also argues that the applicable start date for the accrual of the statute
of limitations regarding her claim should be the date of her discharge from the Army
Reserve, October 1,2006. Therefore, according to plaintiff, she had until October 1,
" The administrative record before the court does not include any evidence that an
Incapacitation Review Board was convened to review Ms. walker's alleged
incapacitation pay claim. Defendant states that "there is no indication that Ms. waiker
actually applied for incapacitation pay," because Ms. walker cannot establish an
entitlement to incapacitation pay solely on the presentation of some documenrs.
Approval of incapacitation pay starts with review by either a unit commanoer or
Incapacitation Review Board to determine whether or not such claims are meritonous.
The ABCMR decision noted that "[o]n 14 August 2003, the applicant submitted a
request for incapacitation pay. However, based on the evidence of record, her request
did not contain the required documentation (i.e., physician's statement, DA Form 7574,
or disclosure of income from nonmilitary earned income)." Moreover, Army Regulation
135-381 , fl 4-1( provides "[t]here is no automatic entiflement to incapacitation pay.
Each request is judged on a case-by-case basis and is based on a soldier's inability io
q9{orT normal military duties or demonstrated loss of nonmilitary income." Army Reg.
135-381, fl 4-1k. The record before the ABCMR did not reflect that Ms. watker's unit
commander certified any incapacitation pay claim. Even if plaintiffls claims were to be
considered timely by this court, which, as determined below, they are not, it is not clear
that Ms. Walker could demonstrate entitlement to incapacitation pay on the merits.
19
2012 to file her claim in this court, for which reason she alleges her complaint, filed on
September 27,2012, was timely filed.
Ms. Walker improperly attempts to eltrapolate a blanket rule from the Martinez
case that not only claims for back pay, but other claims as well, such as her claim for
incapacitation pay, do not accrue until the date of discharge. In Martinez, the Federal
Circuit stated the limitations period was determined by the date of accrual in the back
pay case brought by plaintiff, which was the date on which the service member was
denied the pay to which he claimed entitlement. See id.
By contrast, Ms. Walker's incapacitation pay claims would have accrued when
all the events occurred which were necessary to enable the plaintiff to bring suit, the
date of non-payment. On August 14, 2003, Ms. Walker submitted a request for
incapacitation pay, and on August 18, 2003, Ms. Walker acknowledged her
understanding of, and agreement with, the requirements for requesting incapacitation
pay. Ms. Walker was examined by an Army medical professional and found unfit for her
military duty for the period from September 4, 2003 through March 4, 2004.12 Ms.
Walker now alleges in this court that she is due "incapacitation pay pursuant to 37
U.S.C. S 204(gX1) for the period from September 2003 through February 2004." tf, as
Ms. Walker alleges, she was due incapacitation pay, she would have had to not only file
a request for such pay, but also have received an approval of the incapacitation pay.
Given plaintiff's stated timeframe for claiming incapacitation pay, even assuming
payment a month after a submitted request, at the latest, on April 1,2004, she should
have realized that the alleged incapacitation pay monies had failed to arrive. Therefore,
when Ms. Walker became aware, or should have become aware, that she did not
receive the incapacitation pay she thought she was due, is when her cause of action for
unpaid incapacitation pay began to accrue, and the statute of limitations began to run.
In plaintiff's case, it would appear, at the latest, April 1, 2004 was the date Ms. Walker
should have become aware, that she did not receive incapacitation pay. As such,
pursuant to 28 U.S.C. S 2501, Ms. Walker had six years from April 1, 2004 to bring her
claim before this court. Instead, Ms. Walker filed her claim on September 27,2012, well
over two years after the expiration of the six-year statute of limitations.
Although not addressed by either plaintiff or defendant, even if Ms. Walker were
to have alleged she believed that the approximately $55,000.00 in active duty pay she
received from September 2003 through May 2004 was, in fact, the incapacitation pay
she claims to have requested, once the payments ceased, she would have realized, or
she should have realized, that the further incapacitation pay monies had failed to arrive
in June 2004. As a result, under even the most generous interpretation of facts, and not
alleged by Ms. Walker, the statute of limitations for Ms. Walker's incapacitation pay
would have begun to run on July 1,2004. Therefore, pursuant to 28 U.S.C. g 2501, Ms.
Walker was required to file her claim before the July 1, 2010, but, as indicated above,
Ms. Walker filed her claim on September 27.2012
'' The court notes that, in her cross-motion for judgment on the administrative record,
Ms. Walker claims that she first requested incapacitation pay on June 13, 2003.
20
While neither Ms. Walker nor the government cite to Joseph v. United States, a
2004 decision from this court, it is a post-Mg(inCz opinion which applies the Martinez
precedent in an incapacitation pay claim context. See Joseph v. United States,62 Fed.
Cl. 415 (2004). In Joseph, a pro gg former United States Marine Corps reservist brought
suit seeking incapacitation pay, as well as correction of his military records. See id. Mr.
Joseph was injured on February 2, 1990, while traveling to drill with his Marine Corps
Reserve unit. See id. On October 25, 1995, the Board for Conection of Naval Records
(BCNR) determined that Mr. Joseph's personnel record should be corrected to show
that he was entitled to incapacitation pay for the period from February 2, 1990, through
May 12, 1992, and for the period from November '13, 1992, through December 21,
1 992. See id. at 416. Mr. Joseph received the incapacitation pay and was honorably
discharged on May 29, 1996. See id. As noted by the court, "[o]n March 17,1997,
approximately ten months after his discharge, [Mr. Joseph] again petitioned the BCNR,
asking it to correct his records to reflect that he was entitled to receive incaoacitation
pay from December 21, 1992, through the date of his discharge on March 29, 1996, and
to allow him to medically retire." ld. The BCNR in Joseph denied his claim. Mr. Joseph
filed his incapacitation pay claim in this court on March 3,2004. see id. at 416-17. After
the government moved to dismiss Mr. Joseph's incapacitation pay claim, the court held
that his claim was barred by the applicable six-year statute of limitations. see id. at 417.
The court found that Mr. Joseph's incapacitation pay claim had accrued before ne was
discharged, as is the case regarding Ms. Walker. See id.
Additionally, although, again, not cited by either party, Fuentes v. United States,
1 00 Fed. Cl. 85 (201 1), also speaks to incapacitation pay. In Fuentes, a p1g Sli fonner
member of an Indiana Army National Guard filed a complaint alleging he was entifled to
incapacitation pay in the form of back pay because the united states Army had
improperly separated him from active duty while he was injured. Although in Fuentes
the plaintiff and the government disagreed as to whether plaintiff's claim wls a bicx pay
claim, as alleged by plaintiff, or a disability retirement claim, as argued by defendant,
which would not have accrued until a military board had acted on the disability claim,
the court concluded that the plaintiff had "established all the jurisdictional predicates for
a claim for back pay under the Military Pay Act." ld. at 92. unlike in Ms. walker's case,
however, the Fuentes plaintiff argued that he was "entiiled to back pay because the
Army wrongfully separated him from active duty while he was injured, and had the Army
properly processed him, he would have remained on active duty for continued treatment
or until a MEB acted on his case," citing to 37 u.s.c. S 204(g)(1). see Fuentes v. United
states, 100 Fed. cl. at 90. As discussed below, Ms. walker wai not on actirre outv at
the time of her seoaration.
In the alternative, Ms. Walker points to her discharge from the reserve
component as the start date for the limitations period, based on the servicemembers
Civil Relief Act. See Soldiers'and Sailors,Civil Relief Act of ,1940, S 205, Ch. 988, 54
Stat. 1178, 1181, as amended Dec. 19,2003, servicemembers civil Relief Act, pub. L.
108-189, S 206, 117 Stat.2835, 2844 (2003) (codified at 50 U.S.C. App. g 526(a)). The
21
Servicemembers Civil Relief Act tolls an applicable statute of limitations for a member of
the Armed Forces while serving on active duty, and states, in relevant part:
The period of a servicemember's military service may not be included in
computing any period limited by law, regulation, or order for the bringing of
any action or proceeding in a court, or in any board, bureau, commission,
department, or other agency of a State (or political subdivision of a State)
or the United States by or against the servicemember or the
servicemember's heirs, executors, administrators, or assigns.
50 App. U.S.c. S 526.
The provision of the Servicemembers Civil Relief Act providing that the statute of
limitations does not begin to run until the date of discharge would be applicable to Ms.
walker's case only if Ms. walker was on active duty at the time of her discharge. This
tolling provision is inapplicable to Ms. Walker's claim because her last period of active
duty ended on August 19, 2003. see 50 App. u.s.c. s 526; see also Freeman v. united
States, 98 Fed. Cl. 360,371-72 (2011). "Military service', is OetineO Oy SO npp. USEJ
511 as "active duty," which is defined in 10 U.s.c. S 101(d). section 101(d)of riile 1o
of the United states code defines "active duty" as "full{ime duty in the aciive military
service of the united states." 10 u.s.c. S 101(d). Ms. walker's records before the coun
do not reflect any active duty service after she was released from her active duty
mobilization on August 19, 2003. Moreover, even though "military service," as defined
in the servicemembers civil Relief Act, includes the ll;ited time required for reserve
component annual training duty, see id., Ms. walker did not perform her Army Reserve
duties even after the period during which she was found medically unfit for her reserve
duty ended. specifically, the administrative record reflects that Ms. walker failed to
attend her annual required training in 2oo4 and 2005, and missed every one of her
Army Reserve unit battle assemblies from June 2oo4 to June 2005. consequenfly, Ms.
walker did not serve time on active duty after the end of her mobilization on August 19,
2003 through when she was discharged on october 1, 2006. The tolling proviiions of
the servicemembers civil Relief Act, therefore, are not applicable to plaintifis claims.
In addition, the statute of limitations was not tolled when Ms. walker sought
review of her case by either the ADRB or the ABCMR. Because resort to a correction
board is not mandatory in military pay cases, but rather permissive, application to a
correction board is not required before challenging a wrongful discharge in the United
states court of Federal claims, and the statuie of limitations is not Juspended. see
Qhalnb_ejs_v. United States, 417 F.3d 1218, 1224 (Fed. Cir.), cert. denied, 546 U-S,
1066 (2005); scc also See
!EUU!czJ_U-0Ied_S!ate9, 333 F.3d at tSOa; WX4s v. Ua11eO
states, 101 Fed. cl. 673,677 (2011) ("plaintiff stopped receiving activeiuty!-ay when
h9 wa9 discharged from the Navy on Novembei 22, 1g}g. c-onsequenily,'plaintitts
claim for back pay arose on that date, and his subsequent invocation of administrattve
proce_d ures did not stop the 6 year statute of limitations from
running. Nor did the
BCNR's denial of Plaintiffs request to correct his military records create a second cause
of action."). Accordingly, the six-year statute of limitations set forth in 2g u.s.c. s 2501
22
was running throughout the period in which Ms. Walker sought administrative review
before the ADRB and ABCMR. See Martinez v. United States, 333 F.3d at 1304.
ln sum, Ms. Walker's incapacitation pay claims accrued by April 1,2004, or at the
latest, July 1, 2004. Based on the six-year statute of limitations, Ms. Walker was
required to file her claim by April 1, 2010, or at best by July 1, 2010, however, she filed
her claim more than two years later, on September 27 ,2012. Accordingly, Ms. Walker's
incapacitation pay claims are time-barred by the statute of limitations, and this court
lacks subject matter jurisdiction to address her complaint.
Claims for Reinstatement and Conection of Militarv Records
The government also argues, citing Reillv v. United States, 93 Fed. Cl. 643, 650
(2010), that Ms. Walker's remaining claims for reinstatement into the Army Reserve in a
part-time reserve status in the grade of major retroactive to October 1, 2006, and for
correction of her military record to void orders reflecting her allegedly wrongful
discharge from the Army Reserve are outside the jurisdiction of this court because they
are separate from her incapacitation pay claims and are equitable claims that are
neither incident of nor collateral to a claim for monetary relief. See James v. Caldera,
159 F.3d 573, 580 (Fed. Cir. "1998), reh'q denied (Fed. Cir. 1999). The government
states that while this court could have reviewed possible procedural violations in
processing a military service member, it may do so only to provide an entire remedy and
to afford complete relief attendant to a jurisdictionally valid claim for entitlement to a
monetary judgment. According to the defendant, absent a valid claim for monetary
relief, which this plaintiff does not have, given that her incapacitation pay claims are
time-barred, this court lacks jurisdiction to modify Ms. Walker's service records, set
aside her involuntary discharge, or order her reinstatement. See Reillv v. United States,
93 Fed. Cl. at 650.
Ms. Walker argues in response that her remaining claims are not outside the
jurisdiction of the court. Ms. Walker claims that because this court has jurisdiction over
her incapacitation pay claim and wrongful discharge claim, this court has jurisdiction to
hear her ancillary equitable claims as well, and those claims should not be dismissed.
According to Ms. Walker, in order to properly invoke this court's jurisdiction, a plaintiff
must only identity a separate source of substantive law that creates the right to money
damages. She adds that she seeks incapacitation pay and ancillary equitable relief
pursuant to the Military Pay Act, which she asserts is the money-mandating statute
applicable to injured reservists. Ms. Walker, however, does not address this court's
jurisdiction absent the validity of jurisdiction in the court for the incapacitation pay
claims.
Ms. Walker seeks the court declare that olaintiff is entitled to reinstatement and
to have various military records voided and/or corrected. The United States Court of
Federal Claims, however, has limited jurisdiction to grant declaratory relief, absent a
claim for monetary damages. The United States Court of Appeals for the Federal
Circuit stated, as follows:
23
The Court of Federal Claims has never been granted general authority to
issue declaratory judgments, and to hold that the Court of Federal Claims
may issue a declaratory judgment in this case, unrelated to any money
claim pending before it, would effectively override Congress's decision not
to make the Declaratory Judgment Act applicable to the Court of Federar
Claims.
Nat'l Air Traffic Controllers Ass'n v. United States, 160 F.3d 714, 716-17 (Fed. Cir.
1998); see also United States v. Tohono O'Odham Nation, 131 S. Ct. 1723, 1729
(2011) (The united states court of Federal claims "has no general power to provide
equitable relief against the Government or its officers."); Massie v. united States, 226
F.3d 1318, 1321 (Fed. Cir. 2000) ("Except in stricfly limited circumstances, see 28
I s c sClaims to order equitableprovision in the Tucker Act authorizing the court of
Federal
1491(bx2), there is no
relief." (citing United States v. Kinq, 395 U.S. 1, 4
(1969) ("cases seeking relief other than money damages from the court of claims nave
never been 'within its jurisdiction"') and placewav constr. corp. v. United states, 920
F.2d 903, 906 (Fed. Cir. 1990))); James v. Catdera, 1b9 F.3d at S80 (.[T]he Court of
Federal claims has no power'to grant affirmative non-monetary relief unless it is tied
and subordinate to a money judgment."' (quoting Austin v. United states. 206 ct. cl.
719,!23, cert. denied,423 u.s. 911 (197s)); wesflands water Dist. v. United states,
109 Fed. Cl. 177,192 (2013); Halim v. United States, 106 Fed. Ct. ilZJ,aS eOlZ);
9malls v. United States, 87 Fed. cl. 300, 307 (2009); prvor v. United states, 85 Fed. ct.
97, 103 (2008) ("Apart from ordering relief under 28 U.S.C. gg 1491(a)(2) or (b)(2), the
court of Federal claims has no power to grant a declaratory judgment. . . . The court of
fedgrat claims cannot adjudicate a complaint that seeks only declaratory relief." (citing
Nat'l Air Traffic controllers Ass'n v. United states, '160 F.3d aI 717)). None of the
exceptions which permit the United states court of Federal claims to grant declaratory
relief apply to plaintiff. This court, therefore, does not have jurisdiction to grant plaintiff
the declaratory relief that he requests. In cases arising under the Military Fay Act, the
court only has the power to grant equitable relief "'incidental of and collateral to its
?-ryqr! of a money
judgment."' See Martinez v. United States, 77 Fed. Cl. 318, 322
(!Q07) (quoting Voqe v. United States, A44 F.2d 776,781 (Fed Cir.), cert. denied, 488
9 s 941 (1988)), affd,260 F. App'x 298 (Fed. cir. 2008); Hwanq v. u-nited states, 94
Fed- Cl. 259,270 (2010), aff'd, 405 F. App'x 348 (Fed. Cir.;, 1s1g sn91 lqhg
cn banc
denied (Fed. cir.2Q11). The government further points out that Ms. walkerinas no
cognizable monetary claim stemming from any potential wrongful discharge. This is
because 37 u.s.c. s 206(gx1),t'rl governing pay for part-time non-ictive duty
13
The statute at 37 U.s.c. g 206, effective January 2g,2oog, governs pay for part{ime
non-active duty reservists, but that section does not contain a suusbction (b)(t). lt
appears that the statute defendant may have intended to cite was s7'u.s.c.
$ 206(a)(1), governing pay for members "of a reserve component of a uniformed
service," who are entitled to pay only "for each regular period of instruction, or period of
appropriale duty" actually performed. 37 u.s.c. g 206(a)(1); see also palmer v. United
States, 168 F.3d at 1314.
24
reservists, is not money mandating." (citations omitted). "The consequence of this
difference in pay entitlement between full-time active duty personnel and those serving
part-time reserve duty is that a member who is serving in part{ime reserve duty in a pay
billet, or was wrongfully removed from one, has no lawful pay claim against the United
States for unattended drills or unperformed training duty." Palmer v. United States, 168
F.3d at 1314. Consequently, because Ms. Walker was separated as a non-active duty
reservist, she cannot allege a money-mandating statute that would vest this court with
jurisdiction to entertain a wrongful discharge claim.
Once Ms. Walker's incapacitation pay claim was found beyond the jurisdiction of
the court based on the statute of limitations, plaintiff is left without a money mandating
statute or regulation on which to base her remaining claims, and absent such a money
mandating, statutory basis, Ms. Walker cannot assert her equitable relief based claims
in this court. As noted, this court cannot grant equitable relief unless incident or
collateral to a monetary judgment. See 28 U.S.C. S 1491(a)(2); Reeves v. United
States,49 Fed. C|.560,569-70 (2001); Brown v. United States,3 Ct. Ct.31 (1983),
aff'd, 741 F .2d 1374 (Fed. Cir. 1984).
CONCLUSION
As discussed above, plaintiff's incapacitation pay claims are time-barred by the
statute of limitations, and, thus, this court lacks subject matter jurisdiction to consider
the claims plaintiff raised in her second amended complaint. Therefore, defendant's
motion to dismiss is GRANTED. Plaintiffs second amended complaint is DlSMlssED.
The Clerk of the Court shall enter JUDGMENT in favor of the defendant consistent with
this opinion.
IT IS SO ORDERED. ///
z .'1/ ,.\ 1 /
,- L.'k4'l/L1.4->--
MARIAN BLANK HORN
Judge
25