Alford v. United States

3Jn tbe Wniteb ~tates QCourt of jfeberal QClaims

No. 15-1583C Ff LED

(Filed: April 18, 2018) APR 1 8 2018

********************************** U.S. COURT OF

FEDERAL CLAIMS

)

CARLOS A. ALFORD, ) Claim by military veteran for disability

) retirement benefits; 10 U.S.C. § 1201;

Plaintiff, ) review of a decision by the Board for

) Correction of Naval Records; substantial

v. ) evidence

)

UNITED STATES, )

)

Defendant. )

)

**********************************

Carlos A. Alford, pro se, Wilmington, North Carolina.

Mollie L. Firman, Trial Attorney, Commercial Litigation Branch, Civil Division, United

States Depaitment of Justice, Washington, D.C., for defendant. With her on the briefs were

Chad A. Readler, Acting Assistant Attorney General, Civil Division, Robert E. Kirshman, Jr.,

Director, and Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washington, D.C. Of counsel was Major

Matthew Banks, General Litigation Division, Office of the Judge Advocate General, Washington

Navy Yard, D.C.

OPINION AND ORDER

LETTOW, Judge.

Plaintiff, Carlos A. Alford, comes before this cou1t to, at long last, receive a final

decision on his claim for military disability benefits. In addition to many proceedings before the

Board for Correction of Naval Records ("Navy Correction Board" or "Board") and the Naval

Discharge Review Board, this is the twelfth decision issued by a federal comt addressing Mr.

Alford 's claims. 1

1

Mr. Alford's claims have been the subject of eleven previous decisions from the United

States Court of Appeals for the Federal Circuit, this court, the United States Court of Appeals for

the Fomth Circuit, and the United States District Court for the Eastern District of North Cai·olina.

See Alford v. United States, No. 10-525C, slip op. (Fed. Cl. Mar. 9, 20 11) ("Alford I"); Alford v.

United States, 416 Fed. Appx . 901 (Fed. Cir. 20 11) (per curiam) ("Alford II"); Alfordv. Pfeiffer,

No. 7:11-CV-38-BR, 2012 WL 548806 (E.D .N.C. Feb. 21, 2012) ("Alford III"); Alfordv.

Secreta1y of the Navy, No. 7:13-CV-15-D, 2014 WL 12495274 (E.D.N.C. Jan. 10, 2014)

7017 1450 DODO 1346 4636

Mr. Alford served in the United States Marine Corps from 1981 until he received an

other-than-honorable discharge in 1984. By concealing his discharge, he was able to re-enlist in

1985 but was again discharged, this time dishonorably, in 1988. In 1993, Mr. Alford was

diagnosed with two mental disorders: post-traumatic stress disorder and schizoaffective disorder.

In an attempt to restore his rank and receive military benefits, Mr. Alford filed a flurry of

administrative petitions and court actions between 1997 and the initiation of this action in 2015.

The crux of Mr. Alford's claims was that he deserved an honorable discharge and the benefits

attendant to it because his active duty service caused or at least aggravated his mental

disabilities.

This court construed Mr. Alford's extant complaint as raising two claims: an entitlement

to back pay and eligibility for disability retirement benefits. The court dismissed Mr. Alford's

back pay claim as collaterally estopped because it had been adjudicated to be time-batTed in a

decision rendered in 2011. The court then remanded the disability claim to the Navy Correction

Boat'd to obtain the Boat'd's consideration of that claim, which had been put before it but not

decided by it. After the Navy Correction Board issued a decision adverse to Mr. Alford, he

sought post-remand review and the government sought a further voluntary remand to correct a

deficiency in the Board's procedures; the court granted that remand request. Now, with a second

adverse decision from the Navy Correction Boai·d, Mr. Alford has brought the question of his

eligibility for disability retirement benefits squarely before this court.

Pending before the court are Mr. Alford's motion for judgment on the administrative

record and the government's cross-motion seeking the satne relief.

FACTS 2

The facts of this case have already been detailed at length in two of this court's previous

opinions, see Alford X, 127 Fed. Cl. 345; A/ford XI, 132 Fed. CL 334, so they will be restated

only summarily here. Mr. Alford enlisted in the United States Marine Corps in 1981 and served

several deployments. AlfordX, 127 Fed. CL at 347. During his service, Mr. Alford was

diagnosed with and treated for somnambulism (sleepwalking) and enuresis (involuntai·y

urination). AR 2844; 3 see also Def 's Resp. to Pl. 's Mot. for Judgment on the Administrative

("Alford IV"), appeal dismissed sub nom., Alford v. Mabus, 575 Fed. Appx. 170 (4th Cir. 2014)

(per curiam) ("Alford V''); Alford v. Mabus, No. 7:14-CV-195-D, 2015 WL 3885730 (E.D.N.C.

June 23, 2015) ("Alford VI"), ajf'd, 622 Fed. Appx. 249 (4th Cir. 2015) (per curiam) ("Alford

VII"); Alford v. United States, 123 Fed. Cl. 62 (2015)("Alford VIII"); Alford v. United States,

No. 15-1583C, 2016 WL 1085108 (Fed. Cl. Mar. 18, 2016) ("Alford IX"); Alfordv. United

States, 127 Fed. Cl. 345 (2016) ("Alford X''); Alford v. United States, 132 Fed. CL 334 (2017)

("Alford XI").

2

The recitations that follow constitute findings of fact by the court drawn from the

administrative record filed pursuant to RCFC 52. l(a).

3

Citations to the administrative record refer to the record as filed on December 15, 2017.

The record contains no tabs and is consecutively paginated.

2

Record and Cross-Mot. for Judgment on the Administrative Record ("Def.' s Cross-Mot.") at 4,

ECF No. 58. In 1984, Mr. Alford received an other-than-honorable discharge for disciplinary

infractions, including "testing positive for marijuana in a urinalysis" and "possessing alcohol in"

a prohibited area. See Alford XI, 132 Fed. CL at 336. In 1985, Mr. Alford re-enlisted in the

Marine Corps by concealing his 1984 discharge, but he was dishonorably discharged in 1988 for

further misconduct. See Alford X, 127 Fed. CL at 347.

Mr. Alford was diagnosed with post-traumatic stress disorder and schizoaffective

disorder in 1993. See AR 2809; Def.'s Cross-Mot. at 15. In 1997, he filed a petition with the

Naval Discharge Review Board, challenging his 1984 discharge, but that petition was denied.

See AlfordX, 127 Fed. Cl. at 347. He then filed petitions with the Navy Correction Board in

1998, 2003, and 2006; each petition was dismissed "due to insufficient evidence." Alford XI,

132 Fed. CL at 336. Mr. Alford followed these disappointments with a suit in this court in 2010

to request "correction of his unfavorable discharge, disability retirement, and restoration of

rank." Alford X, 127 Fed. Cl. at 347. The court construed the complaint as including a back pay

claim under the Military Pay Act, 37 U.S.C. § 204(a), and a claim for disability retirement

benefits under 10 U.S.C. § 1201. See Alford I, slip op. at 5-6. The court dismissed the back pay

claim as time-barred under 28 U.S.C. § 2501, and dismissed the claim for disability retirement

benefits for lack of jurisdiction because that claim had not been previously raised before either

the Naval Discharge Review Board or the Navy Correction Board. Id.; see also Alford X, 127

Fed. CL at 347-48 (describing Alford I). Over the course of the next several years, Mr. Alford

pursued his claims before the Eastern District of North Carolina, leading to a remand to the Navy

Correction Board, but after a decision by the Board on remand, the district court dismissed his

suit, determining that jurisdiction was proper only in this court. See Alford XI, 132 Fed. Cl. at

336-37 (describing Alford JV).

Mr. Alford filed this action in December 2015, alleging that "he suffers from service-

connected post-traumatic stress disorder and schizoaffective disorder[,] and that he should have

been retired honorably for disability." Alford XI, 132 Fed. Cl. at 337. As in Alford I, the court

construed Mr. Alford's complaint as raising a back pay claim pursuant to the Military Pay Act

and a disability retirement benefits claim pursuant to 10 U.S.C. § 1201. Id. The court dismissed

the back pay claim as being collaterally estopped because the court in Alford I had held that the

claim was time-barred. Id. But the court determined that Section 1201 was a money-mandating

provision under the terms of the Tucker Act and thus provided the court with jurisdiction after

"the appropriate military board either finally denies such a claim or refuses to hear it." Id.

(quotingAlfordX, 127 Fed. CL at 351). Because the court determined that the Navy Correction

Board had not considered Mr. Alford's disability retirement claim even thought it had been

presented to the Board, the court stayed and remanded the case, ordering the Board "to decide

whether Mr. Alford is entitled to disability retirement pay or benefits on the basis of his allegedly

service-connected post-traumatic stress disorder and schizoaffective disorder." Id. (quoting

Alford X, 127 Fed. Cl. at 350).

The Navy Conection Board considered Mr. Alford's claims on remand but found that he

was not entitled to disability retirement benefits. AR 2660-61. When the case returned to this

court after the remand, Mr. Alford filed a motion for judgment on the administrative record.

Alford XI, 132 Fed. Cl. at 338. The government responded by noting that the Board had acted

3

on a record that had not included all the materials required by statute, and requesting a second

remand to the Navy Correction Board "to obtain a medical advisory opinion that includes an

opinion ofa clinical psychiatrist or psychologist, pursuant to 10 U.S.C. § 1552(g)." Id. The

court granted the government's motion to remand and denied as moot Mr. Alford's motion for

judgment on the administrative record. Id. at 339.

On November 28, 2017, the Navy CotTection Board, with an advisory opinion from a

licensed psychiatrist in hand, found that Mr. Alford was not entitled to disability retirement

benefits. AR 2808-10. As the basis for this finding, the Board determined that "there was

insufficient evidence in [Mr. Alford's] medical record[ s] to show that [he] suffered from either

[post-traumatic stress disorder] or [schizoaffective disorder] during [his] time in service." AR

2809. Because Mr. Alford is only eligible for disability retirement benefits ifthe "disability

[was] incutTed on or aggravated by active duty service," the Board concluded that the lack of

"evidence that [Mr. Alford] w[as] determined unfit for duty any time during [his] service" was

dispositive. See AR 2810. The Board also concluded that "even if [Mr. Alford's] record did

contain evidence of a disability incurred or aggravated by service, the Board was unable to draw

a nexus between [his] medical conditions and the misconduct that led to either of [his]

discharges;" in short, "(t]he Board concluded [that Mr. Alford] w[as] mentally responsible for

[his mis]conduct." AR 2810.

After this adverse decision from the Navy Correction Board, Mr. Alford moved for

judgment in his favor on the administrative record, see Scheduling Order of Jan. 5, 2018, ECF

No. 54 ("Though plaintiff has not filed a motion for judgment on the administrative record as

such, several of plaintiffs filings talcen together amount to such a motion, see Pl. 's Notice, ECF

No. 47 (filed December 7, 2017); Pl.'s Status Report, ECFNo. 48 (filed December 13, 2017);

Pl.'s Suppl. Notice, ECF No. 49 (same); PJ's Second Suppl. Notice, ECF No. 50 (same); Medical

Evaluation Board, ECF No. 52 (filed December 26, 2017)."), and the government filed a cross-

motion seeking a contrary judgment on the administrative record, see generally Def. 's Cross-

Mot. All issues have been briefed and are ready for disposition.

STANDARDS FOR DECISION

This couti "will not disturb the decision of the [C]orrection[] [B]oard unless it is

arbitrary, capricious, contrary to law, or unsupported by substantial evidence." Chambers v.

United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005) (internal citation omitted). The substantial

evidence standard requires "a couti to ask whether a 'reasonable mind might accept' a particular

evidentiary record as 'adequate to support [the challenged] conclusion."' Dickinson v. Zurko,

527 U.S. 150, 162 (1999) (internal citation omitted). This "standard of review does not require a

reweighing of the evidence, but a determination whether the conclusion being reviewed is

supported by substantial evidence." Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir.

1983) (emphasis in original). And "(s]o long as the Board considered the relevant evidence and

came to a reasonable conclusion, this court will not disturb the Board's decision." Riser v.

United States, 97 Fed. Cl. 679, 683-84 (2011) (citing Citizens to Preserve Overton Park, Inc. v.

Volpe, 401U.S.402, 416 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S.

99, 104-05 (1977)).

4

ANALYSIS

"Disability retirement cases ... are governed by 10 U.S.C. § 1201." Chambers, 417 F.3d

at 1224. Section 1201 states that when the Secretary determines that a service member "is unfit

to perform the duties of the member's office, grade, rank, or rating because of physical disability

incurred while entitled to basic pay ... , the Secretary may retire the member, with retired pay."

10 U.S.C. § 1201(a). But entitlement to disability retirement is not established by "merely

show[ing] that [the] service-connected injuries resulted in an eventually disabling condition or

that at the time of release from active duty this condition was in an incipient stage of

pathological development;" rather, a plaintiff "must proceed one step further and establish that

the condition was of such extent and severity as to actually render him unfit for active military

service at the time of his release or shortly thereafter." Banerjee v. United States, 77 Fed. Cl.

522, 536 (2007) (alterations and citations omitted). Further, "[a] cause and effect relationship

must exist between [the] inadequate duty performance [that led to the discharge] and the

presence of ... disabilities." Joslyn v. United States, 110 Fed. Cl. 372, 389 (2013).

The parties do not contest Mr. Alford's diagnoses of post-traumatic stress disorder and

schizoaffective disorder. See Def.'s Cross-Mot. at 2-4, 15. Nor, it seems, do they contest that

Mr. Alford would be entitled to disability retirement benefits if his disabilities were determined

to have been incurred in or aggravated by his military service. Cf Pl.'s Resp. to Def. 's Cross-

Mot. ("Pl.'s Resp.") at 1-3, ECF No. 59; see also Def.'s Cross-Mot. at 10; AR 2809. The only

material point of contention between the parties is whether the Correction Board correctly

determined that there was insufficient evidence that Mr. Alford's disabilities were incurred or

aggravated by his military service, or in the alternative, that even if there were, there was

insufficient evidence of a nexus between those disabilities and the misconduct that led to his

discharges. Compare Pl. 's Resp. at 1-2, with AR 2809-10. Under the relevant standard of

review, this court's inquiry is limited to the question of whether the Board's factual findings are

supported by substantial evidence. For the reasons stated below, the court concludes that they

are.

Mr. Alford claims that the Navy is responsible because he "suffered through guard duty

at a top secret listening post for [two years, at] which he worked every[] day and was under

extreme anxiety." Pl. 's Resp. at 1. Mr. Alford points to his diagnoses of "sleepwalking and

urinating on himself' as "warning[s] that there was something wrong" and as evidence that his

military service was the source of his current mental disabilities. See id at 2. But the Board

concluded that somnambulism and enuresis are not proof "that he suffered from [other

disabilities] during [his] service" and notes that he was not diagnosed with post-traumatic stress

disorder or schizoaffective disorder for "nine years after [his] service, during which time any

number of circumstances could have caused and aggravated" his mental condition. AR 2809.

Specifically, during both his post-discharge and re-enlistment processing, "the board found no

indications in the record of ambient symptoms of post-traumatic stress disorder or

schizoaffective disorder;" rather, "[p]ost-discharge evaluation and treatment records ... reflect a

clinical focus on Mr. Alford's alcohol and drug use." Def.'s Cross-Mot. at 15; see also AR

2845.

5

The Board also ruled, in the alternative, that even assuming Mr. Alford's disabilities were

caused or aggravated by his military service, there was insufficient evidence of a "nexus between

[Mr. Alford's] medical conditions and the misconduct that led to either of [his] discharges." AR

2810. Mr. Alford implies that the prescribed medication he was taking dming his service, an

anti-depressant called Elavil, rendered him mentally irresponsible for his misconduct. See, e.g.,

Pl.' s Resp. at 2. But the Board relied on a medical advisory opinion that regarded this claim as

"highly speculative in the absence of more definitive evidence" when making its determination.

See AR 2809, 2845.

Because the Board's evidentiary record provides sufficient suppmi for a reasonable mind

to accept the Board's determination, the court concludes that it is supported by substantial

evidence. See Dickinson, 527 U.S. at 162; see also Melendez Camilo v. United States, 642 F.3d

1040, 1044-46 (Fed. Cir. 2011). The Navy Correction Board's determination that Mr. Alford is

not entitled to disability retirement benefits is therefore upheld.

CONCLUSION

For the reasons stated, Mr. Alford's motion for judgment on the administrative record is

DENIED and the government's cross-motion for judgment on the administrative record is

GRANTED. The clerk shall enter judgment in accord with this disposition.

No costs.

It is so ORDERED.

Charles F. Lettow

Judge

6