Labonte v. United States

In the United States Court of Federal Claims

No. 18-1784C

Filed: October 30, 2020

FOR PUBLICATION

ROBERT J. LABONTE, JR.,

Keywords: Motion to Dismiss;

Plaintiff, Jurisdiction; Failure to State a

Claim; Rule 12(b)(1); Rule

v. 12(b)(6); 10 U.S.C. § 1201;

Military Disability Retirement;

UNITED STATES, Court-Martial; 10 U.S.C. §

1552(f)

Defendant.

Renée A. Burbank, Veterans Legal Services Clinic, Jerome N. Frank Legal Services

Organization, New Haven, CT, with Lernik Begian, Alexander M. Fischer, and Casey Smith, law

students, practicing pursuant to Rule 83.3 of the Rules of the Court of Federal Claims, for the

plaintiff.

Richard P. Schroeder, Commercial Litigation Branch, Civil Division, U.S. Department of

Justice, Washington, D.C., with MAJ Nicholas D. Morjal, U.S. Army Legal Services Agency, Ft.

Belvoir, VA, of counsel, for the defendant.

MEMORANDUM OPINION

HERTLING, Judge

The plaintiff, Robert J. LaBonte, seeks correction of his military records to receive

disability retirement, back pay, and retirement benefits. He was discharged from the Army by

court-martial, receiving a Bad Conduct Discharge. The Army has since granted the plaintiff

clemency, upgrading the characterization of his discharge to General, Under Honorable

Conditions. As a result of this upgrade to his discharge, the plaintiff claims that he is now

entitled to disability retirement for his service-related post-traumatic stress disorder (“PTSD”)

and traumatic brain injury (“TBI”).

On remand from this Court to the Army Board for Correction of Military Records

(“ABCMR” or “the Board”), the Board denied his claim. The plaintiff challenges the Board’s

decision, moving for judgment on the administrative record. He also alleges that the Board

violated his fifth amendment due-process rights. The defendant moves to dismiss, arguing that

the Court does not have jurisdiction, and that the plaintiff fails to state a claim on which relief

can be granted. In the alternative, the defendant cross-moves for judgment on the administrative

record.

The Board lacks the statutory authority to grant the plaintiff the relief he seeks.

Accordingly, the Court grants the defendant’s motion to dismiss on the ground that the plaintiff

has failed to state a claim on which relief can be granted. Rule 12(b)(6), Rules of the Court of

Federal Claims (“RCFC”). Having dismissed the plaintiff’s claim for relief under RCFC

12(b)(6), the Court does not have jurisdiction over the plaintiff’s due-process claim standing

alone. Accordingly, that claim is dismissed under RCFC 12(b)(1) and 12(h)(3). The parties’

cross-motions for judgment on the administrative record are denied as moot.

I. BACKGROUND

A. Facts1

The plaintiff enlisted in the U.S. Army in 2002. (ECF 1, Pl.’s Compl. ¶ 17.) In 2004,

during a deployment to Iraq, he fell out of a 30-foot guard tower. (Id. ¶ 25.) Another soldier

found him, unconscious and bleeding from a head wound, at the base of the tower. (Id. ¶ 26.)

The plaintiff received first aid from that soldier and stitches at the local aid station. (Id. ¶¶ 26-

27.)

After returning from Iraq, the plaintiff sought help for symptoms of mental distress,

anxiety, disrupted sleep, and panic attacks from his chain of command and from the Fort Hood

Mental Health Clinic. (Id. ¶¶ 31-32, 36-38.) The plaintiff’s chain of command referred him to

an Army chaplain. (Id. ¶¶ 33-34.) An intake specialist at the Fort Hood Mental Health Clinic

documented his symptoms and diagnosed him with an adjustment disorder. (Id. ¶ 39.)

In 2004, shortly after his visit to the Fort Hood Mental Health Clinic, the plaintiff learned

that he was scheduled to deploy to Iraq again. (Id. ¶ 40.) He informed his chain-of-command

that he was not mentally prepared to return to Iraq. (Id.) The plaintiff ultimately went absent

without leave (“AWOL”) for six months. (Id. ¶ 42.) In 2006, he voluntarily returned to Fort

Hood. (Id. ¶ 43.) He pleaded guilty to a charge of desertion in a court-martial proceeding and

was separated from the Army with a Bad Conduct Discharge. (Id. ¶¶ 46-47.)

The plaintiff subsequently received post-service assessments of his condition. In 2012,

the plaintiff sought treatment from a clinical psychologist, who diagnosed him with PTSD

stemming from his combat service in Iraq. (Id. ¶ 52.) In 2014, the plaintiff was evaluated by a

psychiatrist, who diagnosed him with service-connected PTSD. (Id. ¶ 54.)

1

Because the Court grants the defendant’s motion to dismiss under RCFC 12(b)(6), the facts

as alleged in the complaint (ECF 1) are assumed to be true. This recitation of the facts does not

therefore constitute findings of fact; rather, the Court provides a recitation of the facts as alleged

by the plaintiff. For additional context, the Court also refers to facts derived from the

administrative record in the case. These facts are included only to add context and to provide a

more complete background; the Court does not rely on any factual claim aside from those

contained in the plaintiff’s complaint in deciding the defendant’s motion to dismiss.

2

In 2014, the U.S. Department of Veterans Affairs (“VA”) concluded that the plaintiff was

eligible for VA benefits for service-connected PTSD, TBI, depression, headaches, back pain,

tinnitus, a painful scar, and ulcers. (Id. ¶ 57.) In 2015, a neurologist found that the plaintiff had

suffered a moderate TBI when he fell from the guard tower in 2004. (Id. ¶ 55.) In 2016, the

plaintiff received a 100% service-connected disability rating from the VA. (Id. ¶ 56.) In the

same year, an Army Review Boards Agency psychiatrist assessed the plaintiff and issued an

advisory opinion. (AR 116-18.2) She concluded that “there is sufficient evidence to state that

the [plaintiff’s] PTSD is mitigating for the offenses which led to his discharge from the Army.”

(Id. at 118.)

B. Procedural history

After he received his PTSD diagnoses, the plaintiff sought formal review of his service

history and post-discharge benefits. In 2014, the Army Discharge Review Board (“ADRB”)

upgraded the characterization of the plaintiff’s discharge from Bad Conduct to General, Under

Honorable Conditions. (Pl.’s Compl. ¶ 58.) The ADRB concluded that if the plaintiff would

have had a PTSD diagnosis and an indication of TBI at the time of his court-martial, they would

have been mitigating factors at his trial. (Id.)

In 2015, having secured the upgrade in his discharge, the plaintiff applied to the ABCMR

for retroactive medical retirement. (Id. ¶ 59.) He alleged that he had had a permanent disability

for PTSD, TBI, depression, and anxiety incurred during his service. He argued that the disability

caused him to be unfit for service prior to his absence without leave, his court-martial, and his

discharge. The Board found that “based on the available post-service medical evidence, it could

be argued the [plaintiff] met the criteria for referral to the [Physical Disability Evaluation System

(“PDES”)] prior to going AWOL.” (AR 115.) The Board, however, denied the plaintiff’s

request on the ground that it “is not empowered to set aside a conviction” under 10 U.S.C.

§ 1552. (AR 115; see also Pl.’s Compl. ¶ 61.)

After reviewing the Board’s decision, Deputy Assistant Secretary of the Army Francine

Blackmon found that “there [wa]s sufficient evidence to grant additional relief.” (AR 11-12; see

also Pl.’s Compl. ¶ 63.) Secretary Blackmon directed the Office of the Surgeon General “to

determine if [the plaintiff] should have been retired or discharged by reason of physical disability

through the Integrated Disability Evaluation System [(“IDES”)].” (AR 11; see also Pl.’s Compl.

¶ 63.)

Two Army physicians conducted an evaluation of the plaintiff as part of a Medical

Evaluation Board (“MEB”) to determine “whether PDES processing was warranted at the time

2

Citations to the Administrative Record submitted by the defendant (ECF 27, supplemented

at ECF 44, ECF 49, and ECF 67) are denoted “AR” and followed by the page number denoted

within the Administrative Record. As noted in footnote 1, this information is provided only for

additional context and supplements the factual allegations in the complaint, but the Court does

not rely on these facts in ruling on the motion to dismiss.

3

of separation.” (AR 60; see also Pl.’s Compl. ¶¶ 67-71.) They concluded in their narrative

summary that the plaintiff failed to meet medical-retention standards in 2003 because of his

PTSD, generalized anxiety disorder, and major depressive disorder, and in 2004 because of his

TBI. (Pl.’s Compl. ¶¶ 69-70; AR 62-65.) They found it “unlikely that any further interventions

for these conditions would have returned the service member to duties consistent with their [sic]

rank and [Military Occupational Specialty].” (AR 61; see also Pl.’s Compl. ¶ 70.)

Following the MEB’s evaluation, Dr. Eric L. Doane issued a medical advisory opinion,

reviewing the plaintiff’s medical records for the ABCMR. (Pl.’s Compl. ¶ 84.) He found that at

the time of the plaintiff’s separation, there were no indications of disabling PTSD and no

symptoms of TBI. (AR 68.) Dr. Doane concluded that the plaintiff was not in need of disability

processing at the time of his separation. (Id. at 70.) The ABCMR adopted Dr. Doane’s opinion

in full as its sole basis for denying the plaintiff’s claim. (Pl.’s Compl. ¶ 99; see also AR 71.)

In 2018, the plaintiff filed a complaint in this court. (ECF 1.) He alleged that the

ABCMR’s denial of his claim was arbitrary and capricious, in bad faith, unsupported by

substantial evidence, and a violation of the due process clause of the fifth amendment. After

briefing and oral argument, the Court (1) held that it had jurisdiction over the plaintiff’s claim for

medical retirement; (2) vacated the ABCMR’s decision to deny the plaintiff’s claim as contrary

to law because the Board had “relied on a medical opinion that failed to consider medical

evidence as required by 10 U.S.C. § 1552(h)(2)(B)”; (3) remanded to the Board to “obtain a

further medical opinion that considers the medical evidence as required by law and thereafter

resolve plaintiff’s claim”; and (4) dismissed the remainder of the complaint for lack of

jurisdiction. (ECF 57.)

In 2020, the Board, on remand, again denied the plaintiff’s request for disability

retirement. (AR 2369.) Pursuant to the remand order, the ABCMR obtained a medical advisory

opinion from the Office of the Surgeon General. (Id. at 2432.) Dr. Denise M. Richardson issued

an advisory opinion, which concluded that “there is no evidence to support the need for disability

processing” because there is “a dearth of medical records available during [the plaintiff’s] time in

service.” (Id.) The Board found that relief was not warranted based on a review of the 2016

Army Review Boards Agency psychiatrist’s advisory opinion, the 2018 and 2020 reviews

conducted by the Office of the Surgeon General physicians (Dr. Doane and Dr. Richardson), and

the narrative summary of the 2018 MEB. The Board found that the evidence in favor of the

plaintiff’s claim was “outweighed by the other evidence of record addressing the state of

disabilities in 2008 that indicate the [plaintiff] met medical retention standards prior to

separation.” (Id. at 2408-09.)

The plaintiff challenges the Board’s latest decision and moves for judgment on the

administrative record. (ECF 68.) The defendant renews its motion to dismiss and, in the

alternative, cross-moves for judgment on the administrative record. (ECF 74.) The plaintiff has

4

responded (ECF 82), and the defendant has replied. (ECF 83.) The Court held oral argument on

October 13, 2020.3

II. JURISDICTION

The Tucker Act, 28 U.S.C. § 1491, limits this Court’s jurisdiction to causes of action

based on money-mandating statutes and regulations. Metz v. United States, 466 F.3d 991, 995-

98 (Fed. Cir. 2006). A statute is money-mandating when it is “reasonably amenable to the

reading that it mandates a right of recovery in damages.” United States v. White Mountain

Apache Tribe, 537 U.S. 465, 473 (2003). The plaintiff bears the burden of proving subject-

matter jurisdiction by a preponderance of the evidence. Freeman v. United States, 875 F.3d 623,

628 (Fed. Cir. 2017).

A. Money-Mandating Source

The plaintiff is not collaterally attacking his court-martial conviction, as the defendant

contends, but instead the plaintiff asserts a disability-retirement claim. The statute governing

military retirement for disability, 10 U.S.C. § 1201, is a money-mandating statute because “when

the requirements of the statute are met—i.e., when the Secretary determines that a service

member is unfit for duty because of a physical disability, and that disability is permanent and

stable and is not the result of the member’s intentional misconduct or willful neglect—the

member is entitled to compensation.” Fisher v. United States, 402 F.3d 1167, 1175 (Fed. Cir.

2005).

B. Class of Plaintiffs Entitled to Relief

The plaintiff must make “a nonfrivolous assertion that [he] is within the class of plaintiffs

entitled to recover under the money-mandating source” but does not need to “make the additional

nonfrivolous allegation that [he] is entitled to relief under the relevant money-mandating

source.” Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309 (Fed. Cir. 2008). The issue is

whether the plaintiff in this case made a nonfrivolous assertion that he is within the class of

plaintiffs entitled to recover under the disability statute.

The Federal Circuit has found jurisdiction even when it was clear from the face of the

plaintiff’s complaint that he did not come within the reach of the money-mandating source. See

In re United States, 463 F.3d 1328, 1334-35 (Fed. Cir. 2006). In In re United States, the plaintiff

asserted a claim for damages under a money-mandating statute. Id. at 1334. A claim of

unlawful discharge would have supported Tucker Act jurisdiction, so the plaintiff claimed that

his non-appointment was a form of discharge to bring his claim under the statute. Id. The

Federal Circuit found that this argument had no merit, but it held that the plaintiff had

nonetheless established jurisdiction. Id. at 1335.

3

The Court acknowledges the excellent advocacy provided to the plaintiff by his law student

representatives from the Yale Law School Veterans Legal Services Clinic.

5

The plaintiff here has likewise made a nonfrivolous assertion that he is within the class of

plaintiffs entitled to recover under the disability statute. The defendant claims that the plaintiff is

ineligible for disability retirement under 10 U.S.C. § 1201 because both his court-martial makes

him ineligible under Army Regulation 635-40, and 10 U.S.C. § 1552(f) prohibits the Board from

correcting his record to provide him disability retirement. The plaintiff asserts that the regulation

does not preclude his claim because the clemency he received from the ADRB made him eligible

under the regulation. He also argues that 10 U.S.C. § 1552(f) does not apply because his claim

does not require the Board to correct a record of court-martial or a “related administrative

record[ ].” As a result, the plaintiff argues that he is within the class of plaintiffs entitled to

recover under 10 U.S.C. § 1201.

Even if the plaintiff’s substantive claim for relief is without merit, it meets the bar set by

In re United States to bring the plaintiff within the class entitled to relief under the disability

statute and thereby satisfies the threshold to establish the Court’s jurisdiction to resolve the

plaintiff’s claim.

Although the plaintiff successfully makes a nonfrivolous claim that he is within the class

of plaintiffs entitled to recover under the disability statute, this showing merely meets the

threshold for jurisdiction. On the merits, he must show that the Board can grant relief. The

Federal Circuit held that “the consequence of a ruling by the court on the merits, that plaintiff’s

case does not fit within the scope of the source, is simply this: plaintiff loses on the merits for

failing to state a claim on which relief can be granted.” Fisher, 402 F.3d at 1175-76. The

plaintiff’s losing argument on the merits of his claim in In re United States had that consequence.

In re United States, 463 F.3d at 1335 (“[T]he Court of Federal Claims should have dismissed

[the plaintiff’s] section 153(a) claim under its Rule 12(b)(6) for failure to state a claim upon

which relief could be granted.”).

C. Timeliness

The plaintiff’s claim must be filed within six years after it first accrues. 28 U.S.C.

§ 2501; Chambers v. United States, 417 F.3d 1218, 1223 (Fed. Cir. 2005). More than six years

have passed since 2004, when the plaintiff claims that the Army failed to discharge him on

medical grounds. At that time, the Army had not processed the plaintiff for or denied him

disability retirement. Instead, the Board was the first to deny the plaintiff’s retirement claim in

2018 after the plaintiff’s discharge was upgraded.

A service member’s failure to request a disability board prior to discharge “can invoke

the statute of limitations when the service member has sufficient actual or constructive notice of

his disability, and hence, of his entitlement to disability retirement pay, at the time of discharge.”

Chambers, 417 F.3d at 1226. The plaintiff did not request a disability review prior to his

discharge, but he did report symptoms related to his later-diagnosed PTSD and TBI.

There is a difference between knowing one’s symptoms and knowing one’s condition.

Despite identifying some symptoms, the plaintiff likely did not know either the extent of his

disabilities or his entitlement to disability retirement. In Colon v. United States, for example, the

plaintiff was “aware that he had trouble sleeping and suffered from anxiety,” as was evidenced

6

by his military records. 71 Fed. Cl. 473, 482 (2006). Judge Lettow found that there was no

evidence that the plaintiff “knew his mental condition was so severely disabling that it would

have qualified him for disability retirement . . . .” Id. The court also considered that “the Army

itself did not give any indication that it believed the plaintiff suffered from a mental disability.”

Id. See also Johnson v. United States, 123 Fed. Cl. 174, 179 (2015).

In this case, the plaintiff likewise was aware of his mental distress, anxiety, and disrupted

sleep as documented in his visit to the Fort Hood Mental Health Clinic. (Pl.’s Compl. ¶ 37; AR

772.) There is no indication, however, that the plaintiff knew at the time that his conditions may

have qualified him for disability retirement. The Army, as in Colon, did not give any indication

at the time that it believed the plaintiff was suffering from a mental disability. The plaintiff

therefore did not have “sufficient actual or constructive notice of his disability,” and his claim

did not accrue at that time for purpose of the statute of limitations. See Chambers, 417 F.3d at

1226.

The first-competent-board rule provides that “a claim for disability retirement pay

generally does not accrue until an appropriate military board denies the claim in a final

decision[] or refuses to hear the claim.” Sabree v. United States, 90 Fed. Cl. 683, 694 (2009)

(citing Chambers, 417 F.3d at 1224). The defendant argues that the ABCMR is not an

appropriate military board because it is without the statutory or regulatory authority to provide

the relief the plaintiff seeks. The plaintiff responds that he became eligible for retirement

benefits when he received clemency, and that upon his clemency he submitted a timely

application for relief to the ABCMR, an appropriate military board with the authority to award

retirement benefits. Although the Court ultimately holds that the Board lacks statutory authority

to provide relief to the plaintiff, that is a decision that goes to the merits of the claim, not the

Board’s or the Court’s jurisdiction to reach the merits. The Board was the first military entity to

consider and deny the plaintiff’s disability-retirement claim. On that basis, the Court finds that

the plaintiff’s claim accrued when the Board first denied it in 2018. The plaintiff’s claim is

timely.

D. Prior Army Decisions

The Court’s finding of jurisdiction is consistent with the Army’s own actions in this case.

The Board originally concluded that it could not set aside the plaintiff’s conviction under § 1552,

“and since his discharge resulted from his court-martial conviction, he [was] ineligible for

processing through the PDES for possible medical retirement.” (AR 115.) Secretary Blackmon

found enough evidence to grant the plaintiff additional relief. (Id. at 11.) Invoking her authority

under § 1552, she directed “that the [plaintiff’s] case be referred to the Office of the Surgeon

General to determine if he should have been retired or discharged by reason of physical disability

through the [IDES].” (Id.) Following a medical advisory opinion, the Board in 2018 decided on

the merits that the plaintiff was not eligible for disability processing. (Id. at 71.) After the Court

remanded the case back to the Board, it again in 2020 decided the case on the merits. (See id. at

2408-09.) The Board has twice decided the plaintiff’s claim on the merits. It has never

interposed a jurisdictional impediment to resolving the plaintiff’s claim for disability-retirement

benefits. The Court recognizes the Board’s prior determination of its jurisdiction and finds that it

further demonstrates the appropriateness of the Court exercising jurisdiction in this case.

7

In sum, the Court has jurisdiction over the plaintiff’s claim for disability retirement

because the plaintiff has invoked a money-mandating statute, made a nonfrivolous assertion that

he is within the class of plaintiffs entitled to recover under that statute, and filed his claim within

six years of being denied relief.

III. FAILURE TO STATE A CLAIM

In addition to its jurisdictional challenge to the plaintiff’s claim, the defendant moves to

dismiss on the ground that the plaintiff fails to state a claim on which relief can be granted. The

defendant argues that the plaintiff’s court-martial conviction makes him ineligible for disability

retirement. Specifically, the defendant argues that the plaintiff is not eligible for disability

processing under Army Regulation 635-40, and that the Board is without authority under

10 U.S.C. § 1552(f) to correct the plaintiff’s DD-214 Form to reflect a disability retirement.4

The plaintiff disagrees with both these arguments.

A. Eligibility for Military Retirement Under the Army Regulation

The parties dispute whether the relevant Army regulation in effect at the time of the

plaintiff’s discharge precludes the relief the plaintiff seeks. See Army Reg. 635-40, Physical

Evaluation for Retention, Retirement, or Separation (Feb. 8, 2006).5 The Court holds that it does

not.

Army Regulation 635-40 provided the eligibility criteria for disability evaluation.

Paragraph 4-1 limited eligibility for soldiers charged with an offense:

a. Uniform Code of Military Justice action. The case of a Soldier

charged with an offense under the Uniform Code of Military Justice

[(“UCMJ”)] or who is under investigation for an offense chargeable

under the UCMJ which could result in dismissal or punitive

discharge, may not be referred for, or continue, disability processing

unless—

(1) The investigation ends without charges.

“The DD Form 214 . . . is the authoritative source of information required for the

4

administration of State and Federal laws applicable to personnel who have been discharged,

released, or transferred to a Reserve Component while on active duty.” Department of Defense

Instruction 1336.01 ¶ 3(f) (Aug. 20, 2009). The document “provide[s] an accurate and complete

summation of active military personnel service.” Id. ¶ 3(a). Insofar as relevant here, the DD-214

contains a space for noting the narrative reason for a service member’s separation from the

service and a space for noting the characterization of the service member’s service.

5

Army Regulation 635-40 has changed since the time relevant to this case, but both parties

accept the applicability of the version of the regulation in effect at the time of the plaintiff’s

court-martial.

8

(2) The officer exercising proper court-martial jurisdiction

dismisses the charges.

(3) The officer exercising proper court-martial jurisdiction refers the

charge for trial to a court-martial that cannot adjudge such a

sentence.

Id. ¶ 4-1 (italicization in original).

Paragraph 4-2 of Army Reg. 635-40 provided that soldiers “may not be referred for, or

continue, disability processing if under sentence of dismissal or punitive discharge.” Id. ¶ 4-2.

First, the parties dispute the reach of paragraph 4-1, but the Court does not read

paragraph 4-1 in isolation. See Analytical Graphics, Inc. v. United States, 135 Fed. Cl. 378, 407

(2017) (citing Duncan v. Walker, 533 U.S. 167, 174 (2001)) (“[T]he court must avoid an

interpretation of a clause or word which renders other provisions of the statute inconsistent,

meaningless, or superfluous.”).

The defendant interprets paragraph 4-1 to preclude forever any service member charged

with an offense under the UCMJ from disability processing. That interpretation, however,

creates an inconsistency between paragraph 4-1 and paragraph 4-2. Not only would paragraph 4-

2’s limitation on service members under punitive discharge have been superfluous, but paragraph

4-2 also allowed a service member to be referred for disability processing if his sentence is

suspended. See Army Reg. 635-40, ¶ 4-2 (“If the sentence is suspended, the Soldier’s case may

then be referred for disability processing.”).

The plaintiff interprets paragraph 4-1 only to preclude service members undergoing a

court-martial from being processed for disability retirement during the court-martial proceedings

or the investigation leading to the court-martial. The plaintiff reads paragraph 4-2 to limit

disability processing after conviction and sentencing by court-martial.

The plaintiff’s interpretation provides consistency between paragraphs 4-1 and 4-2, when

read together, and is preferred.

Second, the parties dispute whether the plaintiff remains subject to a punitive discharge.

If the plaintiff remains subject to a punitive discharge, he would be disqualified from being

processed for disability retirement under paragraph 4-2. The plaintiff argues that paragraph 4-2

does not apply because the characterization of his service was changed on his DD-214 to remove

“Bad Conduct” from the Character of Service block. (Compare AR 637 with AR 638.) The

defendant responds that the plaintiff is still under a punitive discharge because he was discharged

pursuant to his court-martial conviction, which has not been reversed. The narrative reason for

separation on the plaintiff’s DD-214 is still denoted as “Court-Martial, Other.” The question

before the Court is whether the upgrade in the characterization of his discharge removed the

plaintiff from under a punitive discharge.

The upgrade in characterization did have such an effect. A Navy regulation enumerates

only two types of punitive discharges: bad conduct and dishonorable. 32 C.F.R. § 724.111.

9

While the parties have not pointed the Court to an equivalent Army regulation, the Army

describes a punitive discharge in similar terms. See, e.g., United States v. Rush, 51 M.J. 605, 607

(Army Ct. Crim. App. 1999) (“‘[Congress] has demonstrated uncommon concern for

punishments extending to dishonorable or bad-conduct discharges.’” (quoting United States v.

Johnson, 31 C.M.R. 226, 231 (C.M.A. 1962)) (modification in original)).

Although the plaintiff was separated by court-martial, the punitive discharge—Bad

Conduct Discharge—is no longer reflected in his official record, the DD-214. The punitive

discharge limitation in paragraph 4-2 therefore does not apply to the plaintiff because he is no

longer “under” a punitive discharge.

The plaintiff is not currently charged by or undergoing a court-martial and, having

received clemency from the ADRB, is no longer subject to a punitive discharge. Therefore, by

its own terms, Army Regulation 635-40, in effect at the time of the plaintiff’s discharge, does not

preclude the plaintiff from disability-retirement processing.

B. ABCMR Statutory Authority

The parties next dispute whether the Board is barred from granting the plaintiff relief due

to 10 U.S.C. § 1552(f), which limits the Board’s authority to correct records relating to a court-

martial. The Court holds that the Board does not have the authority to correct the plaintiff’s DD-

214 to provide him disability retirement.

Section 1552 of Title 10 provides the Secretary of a military department the authority to

“correct any military record of the Secretary’s department when the Secretary considers it

necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1). When the

correction involves “records of courts-martial and related administrative records pertaining to

court-martial cases,” the authority to correct a record is limited to “(1) correction of a record to

reflect actions taken by reviewing authorities” under the UCMJ, or “(2) action on the sentence of

a court-martial for purposes of clemency.” Id. § 1552(f)(1)-(2).6 Because the plaintiff does not

ask the Board to make a correction based on actions by reviewing authorities under the UCMJ or

6

Section 1552(f) provides in full the following:

(f) With respect to records of courts-martial and related

administrative records pertaining to court-martial cases tried or

reviewed under chapter 47 of this title (or under the Uniform Code

of Military Justice (Public Law 506 of the 81st Congress)), action

under subsection (a) may extend only to--

(1) correction of a record to reflect actions taken by reviewing

authorities under chapter 47 of this title (or under the Uniform

Code of Military Justice (Public Law 506 of the 81st Congress));

or

(2) action on the sentence of a court-martial for purposes of

clemency.

10 U.S.C. § 1552(f)(1)-(2).

10

a correction for purposes of clemency, the Board lacks authority to make a correction to the

plaintiff’s record of courts-martial and related administrative records.

The threshold question is whether the Board would need to correct the plaintiff’s DD-214

to award him disability retirement. The plaintiff’s “narrative reason for separation” is noted as

“Court-Martial, Other” on his DD-214. (AR 637.) His disability-retirement claim necessarily

embodies the argument that he should have been medically discharged and separated prior to his

court-martial conviction. The plaintiff claims that there is no regulation or statute preventing his

records from reflecting both a court-martial conviction and a medical-retirement status, but the

defendant argues that the Board would need to correct his DD-214 to reflect that the plaintiff was

medically separated instead of separated pursuant to a court-martial conviction. Consistent with

the defendant’s position, the plaintiff originally asked the Board in 2015 to “correct his DD-214 .

. . to remove the reason for his separation (e.g. court-martial conviction).” (Pl.’s Compl. ¶ 59.)

Although Secretary Blackmon subsequently determined that the evidence supported the

plaintiff’s request for relief, the Board’s original decision in 2017 informs this discussion. The

Board found that the plaintiff had requested “in effect” a correction of his DD-214 to show that

“he was retired due to physical disability.” (AR 86.) The Board concluded that because the

plaintiff’s court-martial made him ineligible for disability processing, there was “no basis to

amend [his] DD Form 214 by changing the reason and authority for separation.” (Id. at 115.)

The Board itself therefore has answered the question; it would need to correct the plaintiff’s DD-

214 in order to grant the relief the plaintiff seeks.

Because the DD-214 would need to be changed in order to grant the plaintiff the relief he

seeks, the next question is whether the DD-214 is a “record[ ] of courts-martial” or a “related

administrative record[ ].” If it is, the Board’s authority to correct the plaintiff’s record is limited.

Courts generally interpret terms of a statute by their plain meaning. See Bostock v.

Clayton Cnty., 140 S. Ct. 1731, 1749 (2020) (“[W]hen the meaning of the statute’s terms is plain,

our job is at an end.”). Courts begin with a “careful examination of the ordinary meaning and

structure of the law itself.” Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364

(2019).

Neither party claims that a DD-214 is a “record[ ] of courts-martial” under 10 U.S.C. §

1552(f). Section 801 of Title 10 defines the word “record”:

The term “record”, when used in connection with the proceedings

of a court-martial, means--

(A) an official written transcript, written summary, or other writing

relating to the proceedings; or

(B) an official audiotape, videotape, or similar material from which

sound, or sound and visual images, depicting the proceedings may

be reproduced.

11

10 U.S.C.§ 801(14). Although the DD-214 notes the plaintiff’s court-martial, it does not satisfy

any of the terms reflected in this statute regarding that proceeding. Hence, it is not a “record[ ]

of courts-martial.”

The question comes down to whether the plaintiff’s DD-214 is an administrative record

“related” to the plaintiff’s court-martial that the Board has no authority to change pursuant to the

limitation of 10 U.S.C. § 1552(f). The defendant argues that the DD-214 is encompassed within

the phrase “related administrative record[ ]” because the DD-214 notes the plaintiff’s court-

martial and is used for administrative purposes. The plaintiff does not dispute that a DD-214 is

an administrative record, but argues that his DD-214 is not “related” in any way to his court-

martial because every service member has a DD-214, and it is issued by an entity entirely

separate from the court-martial authority. Relying on the statute’s purpose of fostering an

independent military criminal justice system and protecting the finality of its decisions, the

plaintiff concludes that the statute only limits changes to the underlying factual record or

alterations to the legal conclusions of a court-martial proceeding. He defines the phrase “related

administrative record[ ]” as meaning “a non-original record that incorporates or reflects the facts

or legal conclusions codified in a ‘record’ of a court-martial proceeding.” (ECF 68 at 33-34.)

As an example, the plaintiff points to a charging document from a court-martial.

The full phrase “related administrative record[ ]” is not defined in Title 10.7 A DD-214

is—without question—an administrative document; it is one that all service members have. The

Department of Defense describes it as the “authoritative source of personnel information for

administrative purposes.” Department of Defense Instruction 1336.01 ¶ 3(a) (Aug. 20, 2009). It

is more difficult to determine whether the DD-214 is “related” to a court-martial whenever a

service member’s DD-214 notes the court-martial as a reason for discharge, but there is reason to

find that it is related.

Dictionary definitions of the word “related” support a broad reading of the word.

Dictionaries may aid a court in determining a statute’s ordinary meaning. Gumpenberger v.

Wilkie, 973 F.3d 1379, 1382 (Fed. Cir. 2020). According to the Oxford English Dictionary,

“related” means “[c]onnected or having relation to something else.” Related, adj. and n., Oxford

English Dictionary (3rd ed. 2009). Black’s Law Dictionary defines “related” as meaning

“[c]onnected in some way; having relationship to or with something else.” Related, Black’s Law

Dictionary (11th ed. 2019).8

A broad reading of the word “related” also gives full effect to the meaning of the statute,

especially when read in conjunction with § 801(14). Courts hesitate to adopt a statutory

interpretation that renders another portion of the same law surplusage. Maine Cmty. Health

7

The phrase “related administrative records” in Section 1552 of Title 10 appears to be the

only use of the phrase in Title 10.

8

The other senses of the word provided in both dictionaries are not relevant to this

discussion.

12

Options v. United States, 140 S. Ct. 1308, 1323 (2020). The plaintiff would effectively read

§ 1552(f)’s limitation on “related administrative records” out of the law. We know from

§ 801(14) what records are directly related to a court-martial.

What would otherwise fall under the rubric of administrative records “related” to a court-

martial not captured by § 801(14)? Most obviously, the indictment or other charging document

fits the description, and so would the record of sentence. These records, however, appear to be

encompassed by the broad category of “other writing relating to the proceeding” already

captured by that statute.

For the phrase “related administrative record” to have any meaning, it must incorporate a

broad definition of “related” to include any administrative document that is connected or has a

relationship with a court-martial but is not part of, or contained within, the official records of the

court-martial itself.

This broad definition gives effect both to § 801(14) and § 1552(f) and the records each

covers. As so limned, § 1552(f) captures any administrative record that reflects the decision of

the court-martial. The plaintiff’s DD-214 reflects the decision of the court-martial by noting the

court-martial as the reason for his separation. The DD-214 is therefore an administrative record

“related” to the plaintiff’s court-martial under § 1552(f).

The Court notes that its interpretation is consistent with the purpose of the statute as

explained by its drafters.9 The Report of the Senate Committee on Armed Services on the

Military Justice Act of 1983, Pub. L. 98-209, 97 Stat. 1393 (1983), which created the provision,

discusses the language of 10 U.S.C. § 1552(f). S. Rep. No. 98-53, at 36-37 (1983). The

Committee’s report notes that the provision “make[s] it clear” that the boards of correction of

military records and the discharge review boards “have no authority to modify, as a matter of

law, findings or sentences of courts-martial.” Id. at 36. The exceptions in the statute left intact

the authority for the boards to correct “personnel files” and “collateral records” resulting from

review of a conviction pursuant to the UCMJ. Id. at 36-37.

The ADRB acted in accordance with this interpretation of the statute. When the ADRB

granted the plaintiff clemency, it concluded that “[a] change in the reason for discharge is not

authorized under the Federal statute.” (AR 641.) “Clemency,” it explained, “is an act of

leniency that reduces the severity of the punishment imposed.” (Id. at 646.) It could act only to

change the characterization of service and not the reason for the plaintiff’s separation from the

Army because “[t]he ADRB may not upset the finality of a court-martial conviction.” (Id.) The

ADRB therefore found that it could not change the plaintiff’s reason for discharge on his DD-

9

The Court interprets § 1552(f) based on the statute’s language and not on its legislative

history. The Court references the legislative history to demonstrate that it does not show a

“‘clearly expressed legislative intention’” contrary to Court’s interpretation of the statutory

language. See Analytical Graphics, Inc., 135 Fed. Cl. at 408 (quoting INS v. Cardoza-Fonseca,

480 U.S. 421, 432 n.12 (1987)).

13

214, even as an act of clemency. As does the Court, the ADRB—the Army board in charge of

reviewing discharges—considers a DD-214 a “related administrative record” subject to

§ 1552(f)’s limitations.

The effect of the statutory language, as interpreted by the Court and the ADRB and

understood by the Senate Committee responsible for the language, is to channel claims for post-

conviction relief “into the judicial forums established for such actions by Congress in the

UCMJ.” S. Rep. No. 98-53, at 36.

The statute provides two exceptions to the limitation on the ability of corrections and

discharge review boards to remove from a DD-214 a record of conviction by court-martial, but

neither applies here. One exception is when the service member receives clemency on the

sentence of a court-martial. The plaintiff is not seeking clemency on his sentence here. The

second exception is when reviewing authorities constituted under the UCMJ revise or overturn a

conviction. The plaintiff never appealed his conviction through the means authorized under the

UCMJ, and the time for him to seek such review is long past.

In context, corrections boards and discharge review boards may only correct “personnel

files” that reflect a conviction by court-martial when that conviction is overturned on appeal or

by other processes provided for in the UCMJ. Otherwise, they may not do so. The DD-214 is an

administrative record. The notation on it reflecting a conviction by court-martial leading to a

service member’s removal from the armed forces is “related” to the determination of the court-

martial.

In sum, because the plaintiff’s DD-214 is an administrative record “related,” under

10 U.S.C. § 1552(f), to his conviction by court-martial and discharge from the Army, the Board

is without authority to change the reason for separation due to the court-martial. Because such a

change would be necessary for the Board to grant disability retirement in place of separation due

to court-martial, the Board is without the authority to grant the plaintiff the relief he seeks. As a

result, the Court may not grant the plaintiff relief and dismisses the plaintiff’s claim for failure to

state a claim on which relief can be granted.

IV. FIFTH AMENDMENT

The plaintiff argues that the ABCMR’s decision violates his right to due process under

the fifth amendment to the Constitution for two reasons: (1) the Board failed to consider

competent medical evidence, denying him an opportunity to be heard at a meaningful time and in

a meaningful manner; and (2) the Board applied a different presumption to the plaintiff’s case

than it does to similar cases, denying him the same fair process afforded to others.

The Court’s dismissal of the plaintiff’s claim for disability retirement for failure to state a

claim upon which relief can be granted requires dismissal of the plaintiff’s constitutional claim.

This court has jurisdiction to hear due-process claims only in support of money-mandating

claims. See Holley v. United States, 124 F.3d 1462, 1467 (Fed. Cir. 1997). This court “has full

authority to consider constitutional issues relevant to an appeal that is properly before it.” Id.

The court, however, lacks jurisdiction to hear fifth amendment due-process claims standing

14

alone. Wheeler v. United States, 11 F.3d 156, 159 (Fed. Cir. 1993) (upholding a Court of Federal

Claims decision dismissing a plaintiff’s due-process claim because it dismissed the plaintiff’s

other claim for failure to state a claim upon which relief can be granted). In the absence of an

applicable money-mandating statute, now lost to the plaintiff, the only recourse for the plaintiff’s

constitutional claim is federal district court. Accordingly, the plaintiff’s fifth amendment claim

is dismissed for lack of jurisdiction.

V. CONCLUSION

The ABCMR lacks authority to alter the plaintiff’s DD-214 to remove the record of the

plaintiff’s court-martial conviction. The Board may not, therefore, revise the nature of the

plaintiff’s discharge. To find for the plaintiff, the Board would have to revise the plaintiff’s DD-

214 to revise the reason for the plaintiff’s separation from the Army. This power the Board is

denied by law. Accordingly, the plaintiff’s Complaint fails to state a claim upon which relief can

be granted and must be dismissed under RCFC 12(b)(6).

With the claim under the Military Pay Act dismissed, the Court does not have jurisdiction

over the plaintiff’s fifth amendment claim, which must be dismissed pursuant to RCFC 12(b)(1)

and 12(h)(3). The parties’ cross-motions for judgment on the administrative record are denied as

moot.

The Court will issue an order in accordance with this opinion.

s/ Richard A. Hertling

Richard A. Hertling

Judge

15