Porter v. United States

FILED

(}REffiBFE&I APR I I 2017

U.S. COURT OF

lIn tb@nfte! #ltlrttg t onrtof fr[erst @[Eiitf*o'"*'"

No. l5-576C (Pro Se)

(Filed: April 18,2017)

Keywords: Pro Se Complaint;

CHRISTOPHER PORTER. Military Pay Act; Disability

Retirement Pay; VA Benefits

Plaintifi Estimate ; Combat-Related Special

Compensation.

THE TINITED STATES OF AMERICA,

Defendant.

Christopher A. Porter,Mil'amat, FL, Plaintiff pro se.

Sonia M. Orfield,Tial Attomey, Commercial Litigation Branch, Civil Division, U.S.

Department of Justice, Washington, DC, with whom were Steven J. Gillingham, Assistant

Director, Robert E. Kirschman,,,/r., Director, and Benjamin C. Mizer, Principal Deputy

Assistant Attomey General, for Defendant. Lt. Zachary Dembo, Office of the Judge

Advocate General, United States Nary, Washinglon, DC, Of Counsel.

OPINION AND ORDER

KAPLAN, Judge.

In 201 l, PlaintiffChristopher Porter was discharged from the United States Navy

due to a combination of service-connected disabling conditions. In 2013, Mr. Porter

asked the Board for Correction ofNaval Records (BCNR) to correct his naval discharge

records to reflect a diagnosis of post-traumatic stress disorder (PTSD) and to correct a

reduction ofhis disability rating for a combat-related disability, which had been

downgraded from 5070 to 40%. The BCNR denied his requests.

In this action, Mr. Porter challenges the BCNR's decision, seeks compensatory

damages for a series of wrongs he alleges were committed by the Navy, and requests

payment of certain amounts ofper diem to which he believes he was entitled but which

he never received. The govemment has filed a partial motion to dismiss Mr. Porter's

complaint and a motion for judgment on the administrative record.

For the reasons discussed below, the govemment's partial motion to dismiss is

GRANTED as to most of Mr. Porter's claims, and its motion for judgrnent on the

administrative record is GRANTED with resoect to his remaining claims.

701rr 1,a00 0D0u 1093 ?51?

BACKGROUI{D'

I. Mr. Porterts Naval Service, Injuries, and Treatment

Mr. Porter enlisted in the United States Naly in 2005. Admin. R. (AR) 187,

Docket No. 13. In early 2008, Mr. Porter was injured on t}ree occasions during trainings

and war simulations. See id. at 271. First, in February 2008, he injured his right shoulder

while climbing a ladder during a war simulation. Id. Next, in early March 2008, he hurt

his right shoulder and lower back when he fell during a martial arts training session. !!

Finally, in early April 2008, Mr. Porter injured his back, right knee, and right ring finger

during another war simulation when a large man knocked him to the ground and landed

on his back. Id. During this same exercise, a simulated charge exploded near him. Id. at

196.

After he suffered these injuries, Mr. Porter was assigned to a duty station in San

Diego, where he received treatment at a Naly medical center. See Compl. tffl 4, 10,

Docket No. 1. Over the next two years, Mr. Porter underwent several medical procedures

to treat his injuries, including arthroscopic surgeries on his right shoulder and right knee

and the insertion ofa rod to stabilize his lumbar spine. See AR 188-94. Despite these

interventions, Mr. Porter continued to suffer pain related to his injuries in his back and in

both legs. See id.

II. Mr. Porter's Medical Evaluation and Proposed Ratings

In March 2010, a Navy medical evaluation board (MEB) determined that Mr.

Porter's medical conditions might render him unfit for continued service and referred him

to the joint VA"/DOD Disability Evaluation System (VA DES) for a full assessment. Sgg

id. at 1 80. At the start of that process, on March 25, 2010, Mr. Porter submitted a claim to

the VA DES. Id. at 181-83. In it, he claimed to have numerous "disabling conditions"

beyond the injuries described above that he felt were "caused by, or aggravated by, [his]

active military service." Id. at 182. In particular, he claimed to suffer from "post

trawnatic strcss disorder due to IED." Id.

After he submitted his claim, VA doctors examined Mr. Porter on several

occasions in April 2010. See id. at 197-20I (general medical exam); id. at 187-95

(physical exam focused on Mr. Porter's orthopedic injuries); id. at 186-87 (auditory

exam); id. at 195-97 (evaluation for PTSD).

On February 26, 2011, the VA DES completed its evaluation. Id. at 4-31' It noted

that its evaluation and recommendations would be used for two purposes. See id. at 4.

First, the Navy would use the evaluation "in determining [Mr. Porter's] frnal disposition

I The facts set forth in this section are drawn from the allegations in Mr. Porter's

complaint, which the Court assumes are true for purposes of deciding the govemment's

motion to dismiss, as well as from the documents attached to the parties' filings and the

administrative record submitted by the govemment.

for unfit conditions." Id. Second, the VA would use it "to determine [Mr. Porter's]

potential entitlement to [VA] disability compensation." Id.

The VA DES then proposed disability ratings for Mr. Porter in two overlapping

categories: (l) ratings related to the conditions that made him unfit for military service

(i.e., "unfitting conditions"); and (2) ratings for conditions for which he might be entitled

to VA disability compensation following his separation from the military (i.e.,

"disabilities"). See id. at 5-8. In terms of unfitting conditions, the VA DES proposed

ratings of 20% for "residuals of lumbar Lzl-5 fusion"; 20% for "right lower extremity

radiculopathy" (i.e., nerve pain in the right leg); and 10% for "left lower extremity

radiculopathy" (i.e., nerve pain in the left leg). Id. at 5.

For purposes of VA disability compensation, the VA DES similarly proposed

20%120%110% ratings for the disabilities caused by Mr. Porter's lumbar fusion and

ongoing pain in both legs. See id. In addition, it proposed ratings for thirteen other

disabilities that Mr. Porter claimed. Id. at 5-8. It did not, however, propose a rating for

PTSD. See id. Instead, it proposed a 10% rating for "adjustment disorder with mixed

anxiety and depression (also claimed as post-traumatic stress disorder . . . )." Id. at 6.

IIL The VA's Benefits Estimate

On the same day that the VA DES completed its evaluation, the VA provided Mr.

Porter with a benefits estimate by letter. See id. at 170-78. The letter noted that the

estimate set forth only "what disabilities VA is proposins for service connection, your

estimated VA entitlement amount, and eppfsxlrn{g VA payment start date." Id. at 170

(emphasis in original). Thus, it "d[id] not constitute a final decision by VA." Id.

In accordance with the VA DES's evaluation, the VA proposed a combined rating

for the disabilities resulting from Mr. Porter's unfitting conditions of 50Vo.Id. at 170-71.

Further, based on the combination ofthose disabilities and Mr. Porter's thirteen other

claimed disabilities, the VA proposed a "total combined rating" of 90Vo for purposes of

his entitlement to VA disability benefits. Id. at 173. The letter also informed Mr. Porter

that "[u]nless we receive additional medical evidence, we will implement the proposed

Rating Decision when the Service Department notifies us that you have separated." Id. at

178.

w. The Nary Physical Evaluation Board's tr'indings

Soon thereafter, on March 4, 2011, a Navy physical evaluation board (PEB)

issued findings regarding Mr. Porter's fitness for continued service. Id. at 32-33.

Adopting the VA DES's recommendations, it found Mr. Porter unfit for continued

service and recommended his "[p]ermanent [d]isability [r]etirement from [a]ctive [d]uty."

ld. at32.In accordance with the VA DES's evaluation, the PEB determined that Mr.

Porter's unfitting conditions included "back pain, S/P L4-5 fusion"; "radicular leg pain,

right"; and "radicular leg pain, left." Id. Applying a "[b]ilateral [flactor" to his right and

left radicular leg pain ratings, the PEB assigned him a combined disability rating of 50%.

Id. Further, it found that the disability was "permanent" and "incuned in the line of duty

under conditions simulating war." Id.

On March 8, 2011, Mr. Porter formally received the PEB's findings, and on

March 9, 201 1 , he underwent separation counseling. Id. at 35-36. During the counseling,

he was informed that he had ten days in which to respond to the findings if he wished to

request reconsideration or a formal PEB (i.e., a hearing). Id. at 35. Mr. Porter was wamed

that "[flailure to respond [within ten days] constitutes a presumption of acceptance and

the case will be automatically finalized according to the current findings ofthe PEB." Id.

Mr. Porter responded to the findings on March 18, 201 1 . Id. at 37-40. In his

response, he formally "accept[ed] and request[ed that] the PEB finalize [his] case." Id. at

37 (emphasis omitted). He also "waive[d] [his] right to submit nedadditional

information or to request a formal hearing." Id.

V. Mr. Porter's Claim for Combat-Related Special Compensation and

Discharge from Active Duty

On April 7,2011, Mr. Porter submitted claim to the Navy for combat-related

a

special compensation. Id. at 153-55. He apparently based his claim on the ratings found

in the PEB's March 4, 2011 findings. Thus, he stated that the "Title of [his] Disability"

wx"5lVo PDRL/COMBAT RELATED." Id. at 154.

After submitting this claim, Mr. Porter was discharged from active duty and

medically retired effective June 12,2011. Id. at42.Mr. Porter's DD-214 discharge form

listed "Permanent Disability Retired List" as his "Type of Separation," and it stated that

the 'Narrative Reason For [his] Separation" was "Disability, Permanent." Id. The form

also noted, in Box 18, that his disability "ha[d] been determined to be combat related."

Id. (emphasis omitted).

On September 13,2011, the Navy's CombalRelated Special Compensation

Board (CRSC Board) approved Mr. Porter's request for combat-related special

compensation. Id. at 51-54. The decision noted that he had received ratings for three

combat-related disabilities: "Residuals of lumbar L4-5 fusion," rated 20%; "Right lower

extremity radiculopathy," rated 20%o; and "Left lower extremity radiculopathy," rated

l\Vo.ld. at 51. Using the VA's combined ratings table (set forth at 38 C.F.R. $ 4.25), the

CRSC Board assigned him a combined CRSC rating of 40%. Id. at 53.

The CRSC Board noted, however, that Mr. Porter's "actual compensation amount

w[ould] be determined by the Defense Finance and Accounting Service (DFAS)," which

would "effect CRSC payment withir 60 days." Id. Further, it stated that "[i]n some cases,

where . . . disability retired pay is based on a relatively high percentage ofdisability and

the number of years of creditable service are relatively few, the computation [of CRSC

compensation] may result in little or no CRSC compensation due."2 Id.

VI. The VA's Final Disability Ratings

On March 31,2012,the VA finalized its rating decision. Id. at 45-50. It made

several changes to its February 26,20ll estimated ratings. First, it reduced Mr. Porter's

disability rating for one ofhis disabilities stemming from an unfitting condition,

"residuals of lumbar Lzl-5 fusion," from 20%o to 10%, effective November 18, 2011. Id.

at 47, 50. Second, the VA changed his rating of 10% disability for "adjustment disorder

with mixed anxiety and depression" to a rating of50% for "post traumatic stress disorder

(PTSD) and major depressive disorder," effective August 11, 2011. Id. at 45. Finally, it

changed the ratings for two of Mr. Porter's other service-corurected disabilities. Id. at 45,

47, 50 (increasing his rating for "obstructive sleep apnea" and reducing his rating tbr

"cervical spine strain and degenerative disc changes with arurular calcification between

Cut-7"). Based on tlese changes, the VA increased Mr. Porter's "combined evaluation for

compensation" from 90% to 100%, effective June 13,2011. Id. at 49-50.

VII. The CRSC Board's Changes to Mr. Porter's Combat-Related Special

Compensation Rating

On May 30,2012, the CRSC Board made two changes to Mr. Porter's combat-

related special compensation rating. Id. at 69-73. First, effective July 2011, it conected

an enor it made when it first awarded him a rating of 40o/o in September 201 1. Id. at 69.

According to the CRSC Board, Mr. Porter was entitled to an additional l0% disability

rating due to the bilateral nature of two ofhis disabilities. Id. Thus, as ofJuly 2011, Mr.

Porter was entitled to a combat-related special compensation rating of 50%. Id. at72.

Second, in accordance with the VA's November 18, 201 1 reduction in Mr.

Porter's disability rating for his "residuals from L4-5 fusion," the Navy reduced Mr.

Porter's combat-related special compensation rating by 10% effective December 2011.

Id. at 69. Accordingly, as of December 2011, Mr. Porter was again entitled to a combat-

related special compensation rating of 40Vo. See id. at 72. The CRSC Board noted that it

had informed DFAS of the changes "for their intemal processing of [Mr. Porter's]

CRSC" and that "[n]o further action [was] required on [Mr. Porter's] part to effect

payment." Id.

In making these changes, however, the CRSC Board did not update Mr. Porter's

list of claimed disabilities to reflect the VA's conversion ofhis "adjustment disorder"

diagnosis to a diagnosis of "post-traumatic stress disorder." See id. at 70. Thus, as of May

2

As discussed below in more detail, this is because 10 U.S.C. $ lal3a(b)(3)(B) caps the

amount of combat-related special compensation that may be paid to medically retired

service members who served for less than twenty years.

2012, the CRSC Board had not considered whether Mr. Porter's PTSD diagnosis was

combat related. See id.

VIII. Mr. Porter's Administrative Appeals and Requests for Reconsideration

On October 8,2012,Mr. Porter sent a letter to his regional VA office appealing

theVA's November 201 1 reduction of his disability rating for his "residuais of lumbar

L4-5 fusion." Id. at 151-52. The VA's response to this request does not appear to be

included in the administrative record.

On January 24, 20l3,he sent a similar letter to the CRSC Board requesting

"Reconsideration/Appeal" of its decision to reduce his combat-related special

compensation rating from 50yo Io 40yo as of December 2011. Id. at 305-06. The CRSC

Board responded to Mr. Porter's request on February 14,2013.Id. at74-78. Noting that

it "is required to use the codes, percentages[,] and effective dates that the VA has rated,"

the CRSC board made no changes with respect to Mr. Porter's rating for "[r]esiduals of

lumbar Lzt-5 fusion." See id. at 74.

Further, for the first time, the CRSC Board considered Mr. Porter's PTSD

diagnosis. See id. at 75,77.\t determined that Mr. Porter's PTSD was not combat related,

explaining that his "application package d[id] not establish that specific combat-related

events caused [his] diagnosis." Id at77. Accordingly, it made no changes to his rating for

purposes of combat-related special compensation. See id. at 78.

IX, Mr. Porter's Application for the Correction of His Military Records

On August 21, 2013, Mr. Porter applied to the Nary for the conection of his

military records. ld. at 102-25. He made two requests. First, he noted that his "PTSD

disability was not submitted/recorded on [his] DD-214"-i.e., his military discharge

form. Id. at 103 (emphasis omitted). He thus requested that the Navy correct his DD-214

to reflect his PTSD diagnosis. See id. Second, he asserted that his combat-related special

compensation rating was "reduced by the U.S. Narry review board unjustly" fiom 50% to

40%. Id. (emphasis omitted).

After reviewing Mr. Porter's records, the BCNR denied Mr. Porter's application

on November 3, 2014. AR 1-3. With respect to his combalrelated special compensation

claim, the BCNR stated that the reduction from 50% to 40Yo "wx required because the

VA lowered the rating for one of [his] orthopedic disabilities." Id. at 2. And "because

CRSC entitlements are based on VA ratings," there was "no action" the BCNR could

take to "restore [Mr. Porter's] entitlement to payment of CRSC at the 50% rate."r Id. The

3

As discussed below in more detail, the actual amount of combat-related special

compensation to which Mr. Porter was entitled did not, in fact, change when his rating

was reduced ftom 50oA to 40yo because of the cap placed by 10 U.S.C. $ 1413a(b)(3XB).

The BCNR apparently did not take this fact into account when it referenced "restor[ing]"

Mr. Porter's entitlement to payments to the 50o/o rate.

BCNR did not mention or appear to review the CRSC Board's determination that Mr.

Porter's PTSD was not combat related. See id. at l-3.

Tuming to Mr. Porter's claim regarding the correction of his military records to

include a diagnosis ofPTSD on his discharge form, the BCNR concluded that Mr. Porter

failed to timely bring that issue to the PEB's attention. See id. at 2. According to the

BCNR, "if [Mr. Porter] believed [he] w[as] suffering from a ratable mental disorder, [he]

should have requested the PEB to rate that condition, and demanded a formal hearing."

Id. Further, "[t]he fact that the VA ultimately granted [him] a disability rating for

post[-]traumatic stress disorder was not considered probative ofthe existence ofenor or

injustice in [his] naval record because the VA acted without regard to the issue of [his]

fitness for service vis-d-vis the effects of that disorder at the time of [his] release from

active duty and retirement." Id. Accordingly, because neither of his claims merited

correcting his naval records, the BCNR denied Mr. Porter's application. Id. at 3.

X. This Action

A. Mr. Porter's Comnlaint

Mr. Porter filed acomplaint in this Court on June 8, 2015. Docket No. 1.Init,he

asserted several claims against the Navy. First, he alleged that the Navy "fraudulently,

deliberately, or mistakenly reduce[d]" his combat-related special compensation rating

from 50'r/o to 40%o. Compl. fl 41 . He also alleged that the Navy "fraudulently, deliberately,

or mistakenly failed to inscribe or enter on [his] DD-214 the [p]ost-traumatic stress

disorder (PTSD) diagnosis that was in the medical records from the onset." Id. fl 40

(emphasis omitted). Further, he alleged that he was "entitl[ed] to [a] Per Diem as Per

'JFTR PAR U4400"' for the period of time when he was billeted in San Diego while

receiving medical treatrnent. Id. fl 6 (emphasis omitted); see also id. fl 22. He also

appeared to claim that he was entitled to reimbursement for certain expenses related to

moving his family from Califomia to Florida upon his discharge. See id. fl 13.

Finally, Mr. Porter alleged that he had been "treated by agents of the defendant in

[a manner that was] discriminatory, unfair, [and a] widespread abuse of their authority,"

id. fl 7 (quotation omitted); that he was "subjected to lies, deception, stalling,

intimidation, threats, harassment and oppressive tactics by members of the United States

fNaryl and its hierarchy," id. '!J 12; that the Navy "intentionally made false

representations ofthe material facts regarding the true nature of [his] claim," id. fl 25; and

that the Naly's representations regarding his claim were "mistaken when they were

made" and the Navy "knew, or should have known, that its representations were mistaken

when they were made or it made them recklessly," id. flfl 33-34.

According to Mr. Porter, these alleged misdeeds "caused [him] . . . to suffer

substantial damages for pecuniary losses, additional mental anguish, loss ofenjoyment in

life, and other non-pecuniary losses." Id. ']f 42. He requested an award of "compensatory

damages in an amount of $61,000.00 and more to be determined by th[e] court." Id. at 5.

B. Remand to the BCNR

After compiling an administrative record, the govemment moved to partially

dismiss Mr. Porter's complaint with respect to several of his claims and moved for

judgment on the administrative record with respect to his remaining claims. See Def.'s

Partial Mot. to Dismiss and Mot. for J. on the Admin. R. (Def.'s Mot.), Docket No. 14.

Upon the completion of briefing, the Court ordered the parties to submit supplemental

briefs regarding whether it should remand the case to the BCNR for further consideration.

Docket No. 20. After the Court received the parties' responses, it remanded the case to

the BCNR. Docket No. 23. The Court instructed the BCNR to take the following actions:

(1) Review (for the first time) the merits of the [CRSC] Board's

determination that [Mr. Porter's] claimed post-traumatic stress

disorder (PTSD) was not combat related;

(2) Obtain an advisory opinion from the Director of Compensation,

Office of the Deputy Under Secretary of Defense (Military

Persorurel Policy) (ODUSDA4PP), pusuant to Department of

Defense Directive 1332.41, regarding all of [Mr. Porter's] claims

for entitlement to combat-related special compensation (including

his PTSD-related claims);

(3) Obtain an advisory opinion from the Defense Finance and

Accounting Service (DFAS) to provide an accounting of [Mr.

Porter's] cunent entitlement benefit and projected entitlement

benefit, should his ratings or disabilities be increased;

(4) Review (for the first time) [Mr. Porter's] per diem and travel

expense claims; and

(5) Upon completing its review of the entire case, and taking the

advisory opinions into consideration, issue a final decision

granting [Mr. Porter] any relief it determines that he is entitled to

receive, and to explain in detail the rationale supporthg its final

decision.

ld. at l-2.

C. The BCNR's Decision on Remand

The BCNR completed its review and issued a remand decision on October 11,

2016. See Notice of Filing of Decision on Remand (Remand Decision) at 3-4, Docket

No. 27. The BCNR reported that it had received advisory opinions regarding Mr. Porter's

claims from the Office of the Chief ofNaval Operations (OCNO), the ODUSD.MPP, the

Navy Council of Review Boards Qrlavy CORB), and DFAS. Id. It also noted that Mr.

Porter did not submit any additional documents or materials for consideration. Id. at 3.

Based on the advisory opinions and its own review, the BCNR "concluded that

[Mr. Porter's] PTSD condition did not qualifu for CRSC" because "there was no

evidence presented that showed that [Mr. Porter's PTSD] was caused by simulated

combat training." Id. at 4. Further, it observed that, according to the advisory opinions it

obtained from the Navy CORB and DFAS, Mr. Porter's combat-related special

compensation payments were capped at their cunent level. Id.; see also id. at 10-l 1. That

is, based on his rank and years ofservice, Mr. Porter would not be eligible to receive any

more combat-related special compensation than he currently receives even if the VA

increased his disability ratings for combat-related disabling conditions from 40% to

100%. See id. at 10-1 l. The BCNR thus concluded that Mr. Porter's "PTSD condition"

did not "qualiflyl for CRSC." See id. at 4.

The BCNR further concluded that Mr. Porter was not "authorized per diem in

accordance with the Joint Federal Travel Regulation[s]" because he had "presented no

evidence to the Board to explain why [he was] entitled to per diem for travel of [his]

dependents or more than the Govemmental Meal Rate while [he was] assigned to San

Diego." Id. Accordingly, it denied his per diem claims. See id.

After the BCNR filed its remand decision, the parties filed supplemental briefs.

See Docket Nos. 32-33. In its supplemental brief, the governrnent renewed and expanded

its motion to dismiss, contending that Mr. Porter's entire complaint should be dismissed

for lack ofsubject matter jurisdiction and/or failure to state a claim. See Def.'s Suppl. Br.

Addressing the [BCNR]'s Final Decision and Renewing Its Mot. to Dismiss and, in the

Altemative, for J. on the Admin. R. at 2-4.

DISCUSSION

L Motion to Dismiss for Lack of Subject Matter Jurisdiction

A. ApplicableStandards

In deciding a motion to dismiss for lack of subject matter jurisdiction, the court

accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in

favor of the plaintiff. Trusted Integation. Inc. v. United States, 659 F.3d 1159, 1163

(Fed. Cir. 201 1). The court may "inquire into jurisdictional facts" to determine whether it

has jurisdiction. Rocovich v. United States ,933 F.2d 991,993 (Fed. Cir. 1991). It is well

established that complaints that are filed by pro se plaintiffs, like this one, are held to

"less stringent standards than formal pleadings drafted by lawyers." Haines v. Kemer,

404 U.S. 519,520 (1972). Nonetheless, even pro se plaintiffs must persuade the court

that jurisdictional requirements have been met. Bemard v. United States, 59 Fed. Cl. 497,

499,afld,98 F. App'x 860 (Fed. Cir.2004).

Pursuant to the Tucker Act, the United States Court ofFederal Claims has

jurisdiction to "render judgment upon any claim against the United States founded either

upon the Constitution, or any Act ofCongress or any regulation ofan 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)

(2012). The Tucker Act serves as a waiver of sovereign immunity and a jurisdictional

gant, but it does not create a substantive cause ofaction. Jan's Helicopter Serv.. Inc. v.

Fed. Aviation Admin., 525 F.3d 1299,1306 (Fed. Cir. 2008). A plaintiff, therefore, must

establish that "a separate source of substantive law . . . creates the right to money

damages." Id. (quoting Fisher v. United States,402F.3d 1167 , 1172 (Fed. Cir. 2005) (en

banc in relevant part)).

Further, in an action under 28 U.S.C. $ 1a91(a), the Court ofFederal Claims lacks

the power to grant equitable reliefunless such reliefis "an incident ofand collateral to" a

money judgment. James v. Caldera, i59 F.3d 573, 580 (Fed. Cir. 1998) (quoting 28

U.S.C. S A91(a)(2)). Thus, the court's power to order the correction of a service

member's military records depends upon the correction being "incidental" to an award of

monetary relief, usually in the form ofincreased payments. See Pearl v. United States,

111 Fed. Cl. 301, 308 (2013); Haskins v. United States, 51 Fed. Cl. 818, 822 (2002); see

also 28 U.S.C. $ 1a91(a)(2) ("To provide an entire remedy and to complete the relief

afforded by the judgment, the court may, as an incident ofand collateral to any such

judgment, issue orders directing restoration to office or position, placement in appropriate

duty or retirement status, and correction ofapplicable records . . . .").

B. Challense to BCNR Decisions Reeardins PTSD and Combat-Related

Special Compensation

ln this case, Mr. Porter has failed to meet the burden of establishing this Court's

jurisdiction over his claims that the BCNR erred when it failed to correct his military

records to reflect his PTSD diagnosis and when it declined to increase the rating for his

acknowledged combat-related disabilities from 40o/o to 50Yo. To be sure, 10 U.S.C

$ 1201, which govems military disability retirement, is a money-mandating statute. See

Fisher, 402 F .3d at 1174 (citing Sawyer v. United States, 930 F.2d 1577 (Fed. Cir.

1991)). Likewise, 10 U.S.C. $ 1413a, which provides that "[t]he Secretary concemed

shall pay to each eligible combat-related disabled uniformed services retiree who elects

benefits under this section a monthly amount for the combat-related disability ofthe

retiree," is money-mandating. Adams v. United States, 126 Fed. Cl.645,655-56 (2016).

But Mr. Porter does not appear to request monetary relief based on his claim that

the BCNR ened when it denied his request for correction ofhis records. And even if he

had, such relief would not be available on the facts of this case because Mr. Porter's

disability retirement and combat-related special compensation payments are capped at

their current levels. See Remand Decision at 10 Qrlavy CORB advisory opinion stating

that Mr. Porter "is receiving the maximum amount of CRSC pay that he can receive"); id.

at 11 (DFAS analysis explaining that "if [Mr. Porter's] P[ermanent] D[isability] R[etired]

L[ist] PEB percent increased to 100%, his CRSC pay would remain at $226.00 and his

net retired pay would remain at $0.00," and that "ifhis CRSC percent increased to 100%,

his CRSC pay would remain at $226.00 since he is capped").

The cap on Mr. Porter's retirement payments results from the operation of two

sets of laws. First, under 38 U.S.C. $ 5304 and 38 C.F.R. $ 3.750, a veteran who is

eligible for both military retirement pay and disability compensation must generally

10

waive his military retired pay in order to receive disability compensation. See 38 U.S.C.

$ 53Oa(a)(1); 38 C.F.R. $ 3.750(c)(1). Veterans who stand to receive more in disability

compensation than in retirement pay have reason to execute such a waiver.

To determine whether a service member who has been medically retired will

receive more in disability compensation than in retirement pay, the service mernber's

entitlement to retirement pay must be calculated pursuant to 10 U.S.C. $ 1401(a) and 10

U.S.C. $ 1406OX1). Those statutes act in concert with 10 U.S.C. $ 1201 to place a cap

on the retirement pay that a medically retired service member may receive. Specifically, a

service member who is medically retired may receive no more than a payment equal to

his monthly basic payment at the time of retirement multiplied by either (l) two-and-a-

halftimes his creditable years ofservice, expressed as a percentage,a or (2) the

percentage of his unfitting disabilities up to 75Vo. See 10 U.S.C. $ 1401(a); 10 U.S.C.

s 1406(bx1).

In this case, according to DFAS's advisory opinion, Mr. Porter's entitlement to

retired pay based on his present level of disability is $1,140 per month. Remand Decision

at 1i. But his monthly entitlement to VA disability benefits is much higher-$ 3 ,37 1 .35

per month. Id. He has thus executed a VA waiver, and he receives no net retirement pay'

See id.

According to DFAS, if Mr. Porter's entitlement to retirement pay were calculated

based on a 100% disability rating (rather than the current 40o% rating), he would be

entitled to just $ 1,710 in retirement pay per month. See id. This remains well short of his

VA waiver amount, and he still would receive no net retirement pay. See id'

The cap on Mr. Porter's combat-related special compensation payments has a

separate source, 10 U.S.C. $ 1413a, which is the statute creating the entitlement to

combat-related special compensation. Under that statute, combat-related special

compensation is not subject to a VA waiver, and a disabled service member is generally

entitled to a payment of"the amount of compensation to which the retiree is entitled

under title 38 [i.e., the statute governing disability benefits] for that month, determined

without regard to any disability of the retiree that is not a combat-related disability." Id.

$ la13a(bXl). For service members with fewer than twenty years of service who are

medically retired, however, the statute caps payments at an amount equal to two-and-a-

half times the service member's creditable years ofservice, expressed as a percentage,

multiptied by the member's base pay upon retirement. Id. $ 1a13a(b)(3(B).

As discussed above, Mr. Porter served in the Navy for about five years. Thus, the

applicable multiplier under $ lal3a(b)(3)(B) is fairly small, and, according to DFAS' the

$ lal3a(b)(3)(B) calculation yields a maximum monthly payment for Mr' Porter of

5226.00, which is the amount he cunently receives. See Remand Decision at 1 1. His

combat-related special compensation payments therefore would not change even if his

a

Thus, a service member with ten years of creditable service could elect a multiplier of

25%o. See 10 U.S.C. 0 1401.

l1

combat-related disabilities were rated as 100% disabling by the VA. See id.; see also id.

at 10 Q.{aly CORB advisory opinion reaching the same conclusion).

Under the relevant statutes and regulations, then, Mr. Porter cannot receive any

retirement pay without revoking his VA waiver; nor can he receive any more combat-

related special compensation than he currently receives. As a result, this Court lacks

jurisdiction to order the correction ofhis military records, even ifsuch a correction were

warranted, because such relief would not be "an incident ofand collateral to" a money

judgment. Caldera, 159 F.3d at 580 (quoting 28 U.S.C. $ 1491(aX2)); see also Bobula v.

U.S. Dep't of Justice,970 F.2d 854, 859 (Fed. Cir. 1992) (Court of Federal Claims may

exercise its equitable powers only "ifthey are necessary for complete relief'); Pearl, 111

Fed. Cl. at 308; Haskins, 51 Fed. Cl. at 823. Accordingly, the Court lacks jurisdiction

over Mr. Porter's claim that the BCNR erred when it failed to correct his military records

to reflect his PTSD diagnosis and declined to increase the rating for his acknowledged

combat-related disabilities from 400/o lo 50yo.s

C. Tort and Civil Riehts Clains

As to Mr. Porter's other claims: it is well established that "[t]he plain language of

the Tucker Act excludes from the Court of Federal Claims['] jurisdiction claims sounding

in tort." Rick's Mushroom Serv.. Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir.

2008) (citing 28 U.S.C. $ la91(aX1)). Similarly, this Court lacks jurisdiction over claims

alleging the deprivation ofcivil rights and/or claims based on alleged violations of civil

rights laws, for which jurisdiction is vested in the United States District Courts. See

Elkins v. United States,229 U. CL.607,608 (1981) (per curiam); Taylor v. United States,

73 Fed. Cl. 532, 540 (2006); Sindram v. United States, 67 Fed. Cl. 788,794 (2005). Thus'

the Court lacks jurisdiction over Mr. Porter's claims for damages arising from what he

characterizes as "false representations"; "mistaken representations"; "mental anguish,

loss ofenjoyment in life, and other non-pecuniary issues"; and his claims based on the

Narry's allegedly discriminatory or oppressive conduct. See Compl. 1fl7, L2,25--29,33

37,3943.

D. Claims Under the Joint Travel Resulations

On the other hand, to the extent that Mr. Porter is pressing claims for monetary

reliefbased on violations ofthe Joint Federal Travel Regulations, this Court has

s

Further, as the govemment points out, the Court lacks jurisdiction to entertain claims

directly challenging the VA's disability benefits decisions. Prestidse v. United States,

611 F. App'x 979,982-83 (Fed. Cir.2015); Addineton v. United States,94Red,.Cl.779,

782(2010); see also Elkins v. Gober,229F.3d1369,l374J5 (Fed. Cir.2000)

(discussing the administrative scheme goveming such challenges). Thus' to the extent

Mr. Porter's combat-related special compensation claim may be construed as a challenge

to the VA ratings that form the starting point for calculating his entitlement to combat-

related special compensation, the Court lacks jurisdiction over the claim for that reason as

well.

12

jurisdiction over such claims under the Tucker Act. See Bailey v. United States , 52 Fed.

Cl. 105, 109 (2002); Eastman v. United States, 33 Fed. CL.293,297-98 (1995).

Accordingly, the Court has jurisdiction to hear Mr. Porter's claims that the BCNR erred

when it found that he was not entitled to additional per diem payments.

In summary, the Court lacks jurisdiction as to Mr. Porter's claim that his records

should be corrected to reflect his PTSD diagnosis and his claim that the Board erred in

not adjusting upward by 10% his rating for his combat-related disabilities. On the facts of

his case, Mr. Porter is not entitled to monetary relief on those claims; and the Court thus

has no power to grant the equitable reliefhe requests. Further, the Court lacks jurisdiction

over Mr. Porter's tort, discrimination, and civil rights claims, as well as his challenge to

the VA's reduction of his disability ratings. The govemment's motion to dismiss for lack

of subject-matter jurisdiction is therefore GRANTED as to all of those claims.

II. Motion to Dismiss or in the Alternative for Judgment on the Administrative

Record as to Per Diem Claims

A. Standards

When considering a motion to dismiss for failure to state a claim under Rule

12(b)(6) ofthe Rules ofthe Court offederal Claims (RCFC), the court accepts as true the

complaint's undisputed factual allegations and construes them in the light most favorable

to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662,678 (2009).6 The court also draws all

reasonable inferences in favor of the non-moving party. Sommers Oil Co. v' United

States,241 F.3d 1375, 1378 (Fed. Cir. 2001). Nevertheless, the complaint's factual

allegations "must be enough to raise a right to relief above the speculative level." Bell

Atl. Corp. v. Twomblv, 550 U.S. 544, 555 (2007). In other words, the plaintiff s claim

must be plausible on its face. Id. at 570; see also Acceptance Ins. Cos.. Inc. v. United

States, 583 F.3d 849, 853 (Fed. Cir. 2009). "A claim has facial plausibility when the

plaintiffpleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing

Twomblv, 550 U.S. at 556).

The standard goveming a motion for judgment on the administrative record is set

forth in RCFC 52.i, and differs from the standard for a motion for summary judgment.

Bannum. Inc. v. United States, 404 F.3d 1346, 1354-55 (Fed. Cir. 2005). Thus, when

deciding a motion forjudgment on the administrative record, "a genuine dispute of

material fact does not preclude ajudgment on the administrative record." Sierra Nev'

6

"[t]he Rules of the United States Court of Federal Claims generally mirror the

Because

Federal Rules of Civil Procedure (FRCP)," the "'[i]nterpretation ofthe court's rules [is]

guided by case law"' interpreting the equivalent rules of federal procedure and by "'the

Advisory Comrnittee notes that accompany the Federal Rules."'Sharoe v. United States,

1 12 Fed. Cl. 468, 474 n.3 (2013) (quoting RCFC 2002 Rules Committee Note).

t3

Com. v. United States, 107 Fed. Ct.735,751 (2012) (citing Bannum. Inc.,404 F.3d at

1355-56). To the contrary, "[t]o review a motion or cross-motions under RCFC 52.1(c),

the court asks whether, given all the disputed and undisputed facts, a party has met its

burden ofproofbased on the evidence in the record." Jordan Pond Co.. LLC v. United

States, 115 Fed.Cl.623,630 (2014) (citing Bannum. Inc.,404F.3dat 1356-57); see also

RCFC 52.1 Rules Committee Note (2006) ("Summary judgment standards are not

pertinent to judicial review upon an administrative record."). "The existence of a question

offact thus neither precludes the granting ofa motion for judgment on the administrative

record nor requires th[e] court to conduct a full blown evidentiary proceeding."

CRAssociates. Inc. v. United States, 102 Fed. CI. 698, 710 (2011) (citing Bannum. Inc.,

404 F.3d at 1356).

B. Scope of Review of BCNR Decisions

The scope ofjudicial review of military conection board decisions is a narrow

one. Thus, this Court is "'limited to determining whether a decision of the Correction

Board is arbitrary, capricious, unsupported by substantial evidence, or contrary to

applicable statutes and regulations."' Melendez Camilo v. United States,642F.3d 1040,

1044 (Fed. Cir. 201 1) (quoting Heisig v. United States ,719 F.2d 1 153, 1 156 (Fed. Cir.

1983)). The arbitrary and capricious standard ofreview "does not require a reweighing of

the evidence, but a determination whether the conclusion being reviewed is supported by

substantial evidence." Heisig,Tl9 F.2d at 1157 (emphasis in original). "Substantial

evidence" is "such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion." Richardson v. Perales,402 U.S. 389,401 (1971) (quoting Consol'

Edison Co. v. NLRB, 305 U.S. 197 ,229 (1938)). The court is limited to reviewing the

record that was before the corrections board. Metz v. United States,466F.3d 991, 998

(Fed. Cir. 2006); see also Walls v. United States, 582 F.3d 1358, 1368 (Fed' Cir' 2009).

Finally, the court may not "substitute [its] judgment for that of the military department[]

when reasonable minds could reach differing conclusions on the same evidence." Heisiq,

719 F.2d at 1156.

C. Aoplication to This Case

As noted above, the government has moved to dismiss Mr. Porter's claims

regarding his entitlement to additional amounts ofper diem pursuant to RCFC 12(b)(6)'

for failure to state a claim. Altematively, it asks that the Court enter judgment on the

administrative record as to those claims.

The Court agrees with the govemment that the allegations in Mr. Porter's original

complaint were arguably too vague and generalized to state a claim for relief. Thus, in

that complaint, Mr. Porter simply alleged that "Plaintiff was entitl[ed] to Per Diem as per

'JFTR PAR U4400' which delineates the rights to County Per Diem when TDY is not at

the installation." Compl. fl 6 (emphasis omitted); see also id.\n22,39 (making similar

generalized allegations). He also stated, in reference to his apparent claim for

reimbursement for travel expenses for his dependents, that he "was []paid less money

than what he was entitle[d] to as [a] retired Nary member and his dependents (wife and

two children travelling from Califomia to Florida) of the United States." Id. fl 13. Mr'

14

Porter did not include any factual allegations in support ofhis claim that he was entitled

to additional per diem payments; nor did he cite any specific regulations as a basis for his

entitlement to travel expenses for his family.

On the other hand, Mr. Porter appended some email exchanges regarding

reimbursement oftravel expenses to his complaint, id. at 9-23; and he elaborated

somewhat further on his allegations in his response to the govemment's motion to

dismiss, see Pl.'s Mot. to Dismiss Def.'s Mot. at 10, Docket No. 16. Thus, in his

response, he contended that the joint federal travel regulations (JFTR) entitle service

members to per diem payments for meals when they are ordered to annual training where

a govemment mess is "unavailable." Id. He further claimed that under the applicable

regulation, a govemment mess "is considered not available if (1) the member's orders

specifically state that govemment mess is not available , and (2) the unique circumstances

ofthe member's duty and assignments prevent him from taking any meals at government

mess facilities located at the nominal site of his assignment." See id.

According to Mr. Porter, the circumstances of his stay in San Diego for treatment

at the Medical Center were such that "MESSING was NOT COMPATIBLE ' because his

appointments "were at various time[s] of the day and . . . were MORE THAN 99.9% OFF

THE BASE," and because of "intricacies, complexities, and . . . Base Galley hours of

operations." Id. (emphasis in original).

Given Mr. Porter's pro se status, and the unclear state of the record regarding his

claims for per diem pay, the Court directed the BCNR to develop the record and resolve

Mr. Porter's per diem claims when it remanded this case to the BCNR' Based on the

BCNR's decision, the Court concludes that, even assuming that Mr. Porter has stated

claims for relief withir the meaning of RCFC 12(bX6), the government is entitled to

judgment on the administrative record as to those claims.

Thus, in an advisory opinion the BCNR obtained on remand, OCNO explained

that, rurder Navy regulations, a service member "is not authorized dependent travel and

transportation allowances when a member is called to active duty (for other than training)

for more than 180 days at one location" unless the call to duty was required by

contingency operations. Remand Decision at 5. The BCNR noted, however, that Mr.

,,presented no evidence to the Board to explain why

Porter [he was] entitled to per diem

for travel of [his] dependents" in connection with his assignment to San Diego. Id. at 4.

Further, OCNO advised the BCNR that Mr. Porter's per diem for meals was

limited to the standard Govemment Meal Rate (GMR) because "adequate Govemment

Quarters [we]re available on the U.S. Installation to which [he was] assigned" and "the

Govemment dining facility/mess was available for all three meals" each day he was

assigned there. Id. at 5 {. Relying on OCNO's opinion, the BCNR determined that Mr.

Porter was not authorized any per diem for meals beyond the per diem he in fact

received. Id. at 4.

In his supplemental brief, Mr. Porter does not present any basis for challenging

the BCNR's determination, other than to assert that he had many medical appointments

l)

offbase during the time he was an outpatient at the San Diego Medical Center and that

"[g]alley hours weren't compatible with the appointments." See Pl.['s] Suppl. Brief[] at

2, Docket No. 33. But the pertinent regulations provide that a service member is entitled

to reimbursement for meals only when an officer has determined (among other things)

that "[t]here is excessive distance between the [govemment] dining facility and places of

duty, and/or oflodging"; that "[t]ransportation is not reasonably available between the

[govemment] dining facility and places of duty, and/or oflodging"; or "[d]uty hours and

[govemment] dining facility operating hours are not compatible." See Dep't of Def., The

Joint Travel Reeulations Ch.4, Part B'1T 4235(8) (Nov. 1, 2016), http://www.defense

travel.dod.mil/Docs/perdiem/JTR.pdf. It was not unreasonable for the Board to find that

Mr. Porter did not submit evidence sufficient to show that anv ofthese standards were

met.

Accordingly, Mr. Porter's claims for additional per diem payments lack merit, and

the govemment is entitled to judgment on the administrative record as to those claims.

CONCLUSION

For the reasons discussed above, the govemment's motion to dismiss under RCFC

12(b)(1) is GRANTED as to Mr. Porter's claim that his records should be corrected to

reflect his PTSD diagnosis; his claim to an entitlement to a change in his combat-related

special compensation rating; his tort, discrimination, and civil rights claims; and any

claim that the VA erred in revising his disability ratings. Accordingly, those claims are

DISMISSED without prejudice.

The govemment's motion to dismiss Mr. Porter's remaining claim under RCFC

12(b)(6) is DENIED; however, its motion for judgment on the administrative record as to

Mr. Porter's per diem claims is GRANTED.

The Clerk is directed to enter judgment accordingly. Each side shall bear its own

costs.

t( //_-

IT IS SO ORDERED.

ELAINE D. KAPLAN

Judge

16