Petition for Writ of Certiorari — Alan B. Adams, Petitioner v. United States

App. 1

NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

ALAN B. ADAMS,

Plaintiff-Appellant

V.

UNITED STATES,

Defendant-Appellee

2016-2296

Appeal from the United States Court of Federal

Claims in No. 1:11-cv-00418-EDK, Judge Elaine

Kaplan.

JUDGMENT

RAYMOND JEWELL TONEY, Law Office of Raymond J.

Toney, Emeryville, CA, argued for plaintiff-appellant.

Also represented by BRLN D. SCHENK, Midwest Military & Veterans Law, PLLC, Minneapolis, MN.

ERIC LAUFGRABEN, Commercial Litigation Branch,

Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee.

Also represented by DOUGLAS K. MICKLE, ROBERT E.

App. 2

KIRSCHMAN, JR., JOYCE R. BRANDA; PATRICK J. HUGHES,

Air Force Legal Operations Agency, United States Department of the Air Force, Joint Base Andrews, MD.

THIS CAUSE having been heard and considered, it is

ORDERED and ADJ1JDGED:

PER CuRI (NEw&N, O'MALLEY, and TARANT0,

Circuit Judges).

AFFIRMED. See Fed. Cir. R. 36.

ENTERED BY ORDER OF THE COURT

August 21, 2017

Date

Is! Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

App. 3

In the United States Court of Federal Claims

No. 11-418C

(Filed: May 9, 2016)

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

* Keywords: Judgment on

ALAN B. ADAMS,

* the Administrative Record;

Plaintiff,

* RCFC 52.1(c); 10 U.S.C.

* § 1201; 10 U.S.C. § 1413a;

V.

* Military Retirement Pay;

THE UNITED STATES * Combat-Related Special

OF AMERICA,

* Compensation.

Defendant.

*

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

Eugene R. Fidell, Feldesman Tucker Leifer

Fidell LLP, Washington, DC, for Plaintiff.

Eric Evan Lau/graben, Civil Division, United

States Department of Justice, Washington,

DC, for Defendant. With him on the briefs

were Stuart F Delery, Assistant Attorney

General, Bryant G. Snee, Acting Director, Donald E. Kinner, Assistant Director, and Captain

Bryce G. Poole, USAF AFLOA/JACL Litigation Attorney, Military Personnel Branch, Of

Counsel.

OPINION AND ORDER

Kaplan, Judge.

This case is before the Court on the parties' crossmotions for judgment on the administrative record. The

plaintiff, Alan B. Adams ("Major Adams" or "Plaintiff"),

•

challenges decisions of the Air Force Board of Corrections of Military Records (AFBCMR or "the Board")

denying his requests to have his record corrected to

reflect that he retired from the Air Force with a disability that was "combat related" within the meaning

of 10 U.S.C. § 1413a. Major Adams also challenges the

AFBCMR's conclusion that it lacked the authority to

order the Defense Finance and Accounting Service

(DFAS) to pay him certain additional sums of money

to which he claims entitlement as a result of the

Board's correction of his records to reflect a sixty percent disability rating.

For the reasons stated below, the government's

motion for judgment upon the administrative record is

GRANTED and Plaintiff's cross-motion is DENIED.

BACKGROUND

I.

Statutory and Regulatory Framework

A. Statute

This case involves the interpretation and application of 10 U.S.C. § 1413a and its implementing regulations. Pursuant to that statute, certain "combat-related

disabled uniformed services retiree [s]" are entitled to

elect to receive Combat-Related Special Compensation

(CRCS). 10 U.S.C. § 1413a(a).1 An "eligible combat-related

' Under the statute, a retiree with a combat-related disability is entitled to receive an amount equal to or less than his

length-of-service retirement pay and his Veterans Administration

disability compensation combined. See 10 U.S.C. § 1414(d); see also

Department of Defense, Combat-Related Special Compensation,

App. 5

disabled uniformed services retiree" is "a member of

the uniformed services who," with exceptions not relevant here, is "entitled to retired pay" and "has a combat-related disability." Id. § 1413a(c). In accordance

with section 1413a(e) "the term 'combat-related disability' means a disability that is compensable under

the laws administered by the Secretary of Veterans Affairs" and that is either "attributable to an injury for

which the member was awarded the Purple Heart" or

"was incurred (as determined under criteria prescribed

by the Secretary of Defense)" under the following conditions:

as a direct result of armed conflict;

while engaged in hazardous service;

in the performance of duty under conditions simulating war; or

through an instrumentality of war.

Id. § 1413a(e).

B. DoD Implementing Regulations

As noted) the statute authorizes the Secretary

of Defense to establish the criteria for determining

whether an injury was incurred under one of the four

circumstances identified in 10 U.S.C. § 1413a(e)(2).

httpi/militarypay.defense.gov/Portals/lO7lDocuments/CRSCJnfo_

Paper_May_08.pdf, last visited May 3, 2016. For tax purposes, a

retiree is also entitled to exclude from his gross income any disability payments that he received for combat-related injuries. 26

U.S.C. § 104(b).

App. 6

Those criteria are set forth at Attachment 1-1 to an

April 27, 2004 Directive Type Memorandum entitled

"Revised Guidance on Combat-Related Special Compensation" (hereinafter "Attachment 1-1"), AR at 80910, and in Department of Defense Instruction (DoDI)

1332.38, entitled "Physical Disability Evaluation," see

DoDI § 1332.38 (Nov. 14, 1996).

In accordance with section E3.P5.2.2 of DoDI

1332.38, the "combat-related" standard "covers those

injuries and diseases attributable to the special dangers associated with armed conflict or the preparation

or training for armed conflict." That section further

provides that "[a] physical disability shall be considered combat-related if it makes the member unfit or

contributes to unfitness and was incurred under any of

the circumstances listed in paragraphs E3.P5.2.2.1

through E3.P5.2.2.4." DoDI § 1332.38.

1. Disabilities Incurred as a Direct Result of Armed Conflict

First, under section E3.P5.2.2.1 of DoDI 1332.38,

as well as under Attachment 1-1, physical disabilities

are considered combat related if they aie incurred

"as a direct result of armed conflict." Id.; AR at 809.

Section E3.P5.2.2.1 states that "[t]he criteria [for determining whether disabilities are incurred as a direct

result of armed conflict] are the same as in paragraph

E3.P5.1.2" of the Instruction. The referenced paragraph, E3.P5.1.2, provides as follows:

App. 7

The fact that a member may have incurred a

disability during a period of war or in an area

of armed conflict, or while participating in

combat operations is not sufficient to support

[a] finding [that the physical disability is a

disease or injury incurred in the line of duty

as a direct result of armed conflict]. There

must be a definite causal relationship between the armed conflict and the resulting

unfitting disability.

DoDI § 1332.38; see also Attachment 1-1, AR at 809

(same).

Further guidance on the application of this criterion is set frth in Attachment 1-1. It provides that

"[airmed conflict includes a war, expedition, occupation

of an area or territory, battle, skirmish, raid, invasion,

rebellion, insurrection, guerilla action, riot, or any

other action in which Service members are engaged

with a hostile or belligerent nation, faction, force or

terrorists." AR at 809. In addition, according to the

Attachment, "[airmed conflict may also include such

situations as incidents involving a member while. interned as a prisoner of war or while detained against

his or her will in custody of a hostile or belligerent force

or while escaping or attempting to escape from such

confinement, prisoner of war,or detained status." Id.

2. Disabilities Incurred While Engaged

in Hazardous Service

As noted, 10 U.S.C. § 1413a(e)(2)(B) provides that disabilities incurred while engaged in hazardous service

go am

are combat related. Pursuant to section E3.P5.2.2.2 of

DoDI 1332.38 as well as under Attachment 1-1, "[s]uch

service includes, but is not limited to, aerial flight duty,

parachute duty, demolition duty, experimental stress

duty, and diving duty." DoDI § 1332.38; see also AR at

809. Attachment 1-1 further states that "[a] finding

that a disability is the result of such hazardous service

requires that the injury or disease be the direct result

of actions taken in the performance of such service."

AR at 809. "Travel to or from such service, or actions

incidental to a normal duty status not considered hazardous are not included." Id.

3. Disabilities Incurred Under Conditions Simulating War

Section E3.P5.2.2.3 of DoDI 1332.38, as well as Attachment 1-1, provide criteria for determining whether

a disability was incurred under conditions simulating

war. They state that, "[i]n general, this covers disabilities resulting from military training, such as war

games, practice alerts, tactical exercises, airborne operations, leadership reaction courses; grenade and live

fire weapons practice; bayonet training; hand-to-hand

combat training; repelling, and negotiation of combat

confidence and obstacle courses. It does not include

physical training activities, such as calisthenics and

jogging or formation running and supervised sport activities." DoDI § 1332.38; AR at 809.

App. 9

4. Disabilities Incurred Through an

Instrumentality of War

Section E3.P5.2.2.4 of DoDI 1332.38, as well as Attachment 1-1, provide criteria for determining whether

a disability was caused by an instrumentality of war.

The Instruction states that:

Incurrence during a period of war is not required. A favorable determination is made if

the disability was incurred during any period

of service as a result of such diverse causes as

wounds caused by a military weapon, accidents involving a military combat vehicle, injury, or sickness caused by fumes, gases, or

explosion of military ordnance, vehicles, or

material. However, there must be a direct

causal relationship between the instrumentality of war and the disability. For example,

an injury resulting from a Service member

falling on the deck of a ship while participating in a sports activity would not normally be

considered an injury caused by an instrumentality of war (the ship) since the sports activity and not the ship caused the fall. The

exception occurs if the operation of the ship

caused the fall.

DoDI § 1332.38 at E3.P5.2.2.4.

Attachment 1-1 contains similar language and

also explains that:

An instrumentality of war is a vehicle, vessel,

or device designed primarily for Military Service and intended for use in such Service at

App. 10

the time of the occurrence or injury. It may

also include such instrumentalities not designed primarily for Military Service if use of

or occurrence involving such instrumentality

subjects the individual to a hazard peculiar to

Military Service. Such use or occurrence differs from the use or occurrence under similar

circumstances in civilian pursuits.

AR at 810.

II. Major Adams's Service and Health Problems

Major Adams served as an officer in the United

States Air Force from May 31, 1995 until his honorable

discharge on July 1, 2006. AR at 97; Am. Compl. 1134. Having completed his required service, Major Adams

was separated pursuant to his own January 23, 2006

request. AR at 79.

As noted by the Board's medical consultant, Dr.

Horace Carson, Major Adams's "record of performance

from the start reflects nothing less than a stellar Air

Force officer and KC-135 pilot destined for a bright career," which was demonstrated in his performance reports "from day one until his final evaluation." Id. at

87. Unfortunately, however, Major Adams's career was

ultimately cut short as a result of the continuing effects of an accident that occurred in February of 1997,

when he was struck by a car while riding his bicycle.

Id. at 16, 33, 68, 87. After the accident, Major Adams

experienced chronic neck and back pain. Id. at 16 (observing that as a result of the accident he "required

App. 11

medication and frequent physical therapy to treat increasing low back and neck pain"). Beginning in 2004,

as a result of an incident in which he fell in his bathroom, his condition worsened. Id. at 68 (noting that

"[f]ollowing the fall, he has had severe weakness of the

left upper and left lower extremity with intermittent

numbness and paresthesias"). Major Adams still suffers from these disabilities today. See Oral Arg. Tr. 2-3

(counsel explaining that Major Adams may need to

stand up periodically during oral argument as a result

of back pain).

Despite his reported pain, Major Adams continued

to perform as a pilot after receiving a series of medical

waivers from his flight surgeon, beginning on October

27, 1999, and renewed on periodic basis, with the last

one granted for a three-year period beginning on October 13, 2005. Id. at 87. Major Adams was accordingly

not restricted from performing flying duties until May

15, 2006, approximately six weeks before he was discharged. Id. This restriction was imposed "due to his

chronic recurrent pain (neck, back, ischial tuberosity

area) and inability to sit for extended periods of time

(at a desk or in a cockpit)." Id. at 189.

Notwithstanding his continuing pain, Major Adams was not referred to a medical evaluation board

before his discharge. See id. at 189 (Board Medical

Consultant observing that Major Adams's "reported

intolerance to sitting for prolonged periods (flying

or otherwise) and the ineffectiveness of conservative

treatment measures prior to his discharge should have

alerted his health care provider and/or commander to

App. 12

consider an MEB (or a review-in-lieu of an MEB if his

condition(s) were believed to have no duty impact); followed by a referral to a Physical Evaluation Board if

appropriate"). As noted, Major Adams was honorably

discharged at his own request on July 1, 2006. Id. at

97.

III. Major Adams's First Request for Correction of His Records

On November 9, 2007, Major Adams submitted an

application to the AFBCMR for the correction of his

military records to reflect a disability. retirement. Id.

at 12. In his application, Major Adams sought assistance from the Board "in receiving a medical retirement, recovery of medical expenses and retroactive

pay/promotions.2 Id. He alleged that the Air Force had

improperly separated him "with unstable and worsening conditions without a military medical retirement,"

and that "these problems were directly attributable to

[his] aerial flight duty over Iraq and Afghanistan." Id.

at

2

Major Adams subsequently withdrew his claim for a promotion. Am. Compl. 116.

In support of his application, Major Adams submitted a

letter summarizing his medical condition and the reasons he

believed that he should have been medically retired, AR at 13;

a letter from the VA denying his request for vocational rehabilitation and employment services, which stated that he was "not

suitable for employment until [he gets his] medical conditions

treated," id. at 14; a medical summary that he prepared, id. at 16;

letters from his doctors indicating that he suffered from "degenerative back and neck conditions," id. at 17-18; a letter from the

App. 13

The Air Force Separation Branch, as well [sic] the

Board's medical consultant, Dr. Carson, initially recommended that Major Adams's request for correction

of his military records be denied. Id. at 79-80. In response, Major Adams submitted additional documentation, including a report prepared by Dr. Craig Bash,

dated October 7, 2008. Id. at 139-56. In that report, Dr.

Bash opined that Major Adams "was clearly not fit for

duty, particularly to fly an aircraft, when the Air Force

separated him." Id. at 139. He further stated that it

was "very clear medically that this patient was very ill

prior to his separation from the Air Force and the fact

that he was separated and not medically boarded with

MEB/PEB process represents a logical disconnect." Id.

Dr. Bash concluded that, pursuant to his own review of

Major Adams's medical records, Major Adams should

be retired with at least a fifty-percent disability rating.

Id.

Thereafter, Dr. Carson reconsidered his opinion

and recommended that Major Adams receive a disability retirement with a combined disability rating of

thirty percent to account for neck, back, and ischial

pain. Id. at 188-90. According to Dr. Carson, Major Adams should have received disability ratings of ten percent for his neck pain, ten percent for his back pain,

and ten percent for his ischial pain. Id. at 6. Major

VA assigning Major Adams an overall or combined rating of sixty

percent for service-connected disability compensation for a variety of conditions, id. at 19; an "Injury History and Progression"

chart prepared by Major Adams, detailing his a [sic] continuing

history of back pain, id. at 21; and additional records, id. at 33-77.

App. 14

Adams then submitted a second letter from Dr. Bash,

dated May 5, 2009, this time opining that Major Adams's disability should be rated at a minimum of sixty

percent. Id. at 200.

IV. The Air Force Corrects Major Adams's Military Record to Reflect a Disability Retirement

On April 15, 2010, the AFBCMR issued a decision

finding that Major Adams was the victim of an error or

injustice and recommending that corrections be made

to Major Adams's military record to reflect a disability

retirement, with a thirty percent combined disability

rating as had been recommended by Dr. Carson. Id. at

8-9. On June 10, 2010, after reviewing the information

submitted by Major Adams and consulting with Dr.

Carson, the Director of the Air Force Review Boards

Agency further modified the recommended relief. As

further modified, the record was corrected to show that

Major Adams was permanently medically retired, effective July 2, 2006, with a combined disability rating

of sixty percent, based on findings of cervical degenerative disc disease, bilateral upper extremity radiculopathy, lumbar intervertebral disc syndrome, and left

sciatic nerve neuritis. Id. at 10-11. The corrected record

further states "that the degree of impairment was permanent; that the disability was not due to intentional

misconduct or willful neglect; that the disability was

not incurred during a period of unauthorized absence;

and that the disability was not received in the line of

App. 15

duty as a direct result of armed conflict or caused by

an instrumentality of war." Id. at 11.

In his June 10, 2010 letter, the Director explained

that "[aifter correction, the records will be reviewed to

determine if you are entitled to any monetary benefits

as a result of the correction of records." Id. at 1. "This

determination," he stated, "is made by [DFASI and involves the assembly and careful checking of finance

records." Id.

V. Request for Reconsideration and the Filing

of This Suit

By letter of February 25, 2011, Major Adams

sought clarification and/or reconsideration from the

Board of several items that were not encompassed in

the "final settlement" payment that had been forwarded to him by DFAS in the wake of the Board's decision on his initial claim. Id. at 362. In addition, Major

Adams claimed for the first time in his February 25,

2011 letter that he should be entitled to treat his medical retirement pay as tax exempt pursuant to 10

U.S.C. § 1413a because his "disability was received in

the line of duty as a direct result of armed conflict or

caused by an instrumentality of war." Id. He also demanded that the Board order the following additional

relief: (1) immediate TRICARE coverage and coverage

retroactive to July 2, 2006; (2) payment of medical and

dental bills, including health care insurance premiums; (3) reimbursement in the amount of $1,031.63 for

his first move after his retirement. Id.

App. 16

In his request for reconsideration, Major Adams

stated that he would not cash the back-pay check that

DFAS had sent to him "until these items are addressed." Id. According to Major Adams, he was concerned that if he cashed the check he would be deemed

to have accepted the amount provided in the check in

full settlement of his claims. Am. Compl. 11 21-22. Major Adams similarly did not cash another check in the

amount of $5,598 which DFAS issued to reimburse him

for past insurance premiums. Id. 1 23.

On June 23, 2011, Major Adams filed this suit.

ECF No. 1. Thereafter, on August 3, 2011, the case

was stayed at Major Adams's request pending the

AFBCMR's decision on his request for reconsideration.

ECF Nos. 5-6.

VI. Board Decisions Rejecting Requests for

Reconsideration

A. The First Addendum

After Major Adams requested reconsideration, Dr.

Carson reviewed the records Major Adams submitted

to determine whether his disability was "the direct resuit of armed conflict or was caused by an instrumentality of war." AR at 506; see also id. at 508 (observing

that he sought to determine "whether the applicant's

clinical presentations represented the expected natural progression of the underlying pathology, likely emanating from his 1997 (and possibly 2004) injuries [or

the natural aging process] or whether they could reasonably be considered permanently aggravated by or

App. 17

caused by the applicant's combat flying missions"). Dr.

Carson noted that the records before him showed that

Major Adams "experienced varying degrees of pain

(neck, lower back, and ischial area) during his military

service" and that "the evidence shows that pain, particularly in the ischial region and buttocks was 'exacerbated' or flared every time he flew missions." Id. at

509.

Dr. Carson stated that, in his opinion, "an exacerbation of pain upon sitting in the cockpit does not necessarily infer that a permanent worsening of the

underlying defect has occurred; in this case the appliand degenerative disc discant's ischial bursitis

He

further

noted,

however, that "due to the

ease." Id.

repetitive nature and duration of the applicant's flying

missions, which ultimately resulted in permanent disqualification for flying duties, [he] could not rule out a

permanent worsening, or aggravation, of his ischial

pain overtime." Id. at 509-10.

.

.

.

Dr. Carson then turned to a review of the radiographic evidence, which he characterized as insufficient to show that the "underlying defect[s]" i.e.,

Major Adams's ischial bursitis and degenerative disc

disease were accelerated by or resulted from his combat flying missions, "as may be implicated in high

performance aircraft and the effect of associated sustained high-gravitational forces over a several year period upon the cervical, thoracic, and lumbar spine." Id.

at 510. Dr. Carson noted that "[s]everal clinicians have

introduced the notion that the applicant's flying duties

indeed caused a worsening of one or more of his painful

-

-

App. 18

conditions." Id. "However," he stated, "in the absence of

a discrete, significant traumatic event productive of

biomechanically significant change of anatomic structure, conditions such as degenerative arthritis, degenerative disc disease or chronic mechanical pain, which

are also common in the general population," Dr. Carson

"found no direct causal relationship between the applicant's underlying medical condition[s] (manifested by

acute exacerbations of pain with sitting) and [1 combat

or an instrumentality of war." Id. (emphasis in original). In short, according to Dr. Carson, "the exacerbation of the applicant's pain incident to assuming a

prolonged seated position for extended periods of time,

in flight or otherwise, is insufficient to meet the standard of direct causality that his condition was the direct

result of combat or the direct result of the Instrumentality of War which [sic] in which he flew." Id.

On April 2, 2012, Major Adams submitted a response to the Board in which he expressed disagreement with Dr. Carson's opinion. Id. at 512-15. Major

Adams cited evidence in Dr. Carson's report and the

reports of his doctors, both of which he claimed showed

that his flight duties had worsened his underlying condition. Id. at 513.

On May 21, 2012, the AFBCMR issued a decision

on Major Adams's request for reconsideration in its Addendum to the Record of Proceedings (First Addendum). Id. at 358-61. Without specifying any particular

dollar amount that Major Adams was entitled to receive, the Board administratively corrected his military record to reflect that Major Adams should be

App. 19

reimbursed for his first move after his retirement date.

Id. at 359. As to his other claims, the Board denied Major Adams's request for reconsideration. Id. at 360.

First, with respect to Major Adams's claim for

CRSC, the Board referred to Dr. Carson's comments

and his rationale as the basis for its conclusion that

Major Adams had not been a victim of an error or

injustice. Id. Thus, it cited Dr. Carson's observations:

1) that Major Adams's pain was exacerbated every

time he flew missions; 2) that, nonetheless, "an exacerbation of pain upon sitting in the cockpit does not

necessarily infer that a permanent worsening of the

underlying defect has occurred, such as the applicant's

ischial bursitis and degenerative disc disease;" and

that 3) "the radiographic evidence alone is insufficient

to show that [Major Adams's degenerative disc disease] was accelerated by or resulted from the applicant's combat flying missions." Id. at 359. Further, it

observed that Dr. Carson "found no direct causal relationship between the applicant's underlying medical

condition(s)" and that he had determined that those

conditions "are neither combat-related nor an instrumentality of war" [sic]. Id. at 359-60. Finally, the Board

adopted Dr. Carson's rationale that "the exacerbation

of the applicant's pain (incident to assuming a prolonged seated position for extended periods of time, in

flight or otherwise) is insufficient to meet the standard

of direct causality that his condition was a direct result

of combat or the direct result of the instrumentality of

war in which he flew." Id. at 360.

App. 20

The AFBCMR further denied Major Adams's continued request for reimbursement of certain expenses

and for benefits, ruling again that its power was limited to correcting Major Adams's military records, and

reiterating that "[dietermining the benefits and entitlements that are a consequence of such corrections is

the responsibility of TRICARE and [DFAS] ."Id. In conclusion, the Board found that "relief beyond that already granted administratively is not warranted." Id.

B. The Second Addendum

On June 21, 2012, Major Adams again applied

for reconsideration of the Board's decision. Id. at 52426. Major Adams requested reconsideration on the

grounds that the Board did not consider Major Adams's April 2, 2012 submissions in making its decision;

that the April 2, 2012 submissions and his medical and

combat deployment records supported his claim that

his injuries were combat related; and that he was having difficulty obtaining reimbursement and other benefits from DFAS and/or TRICARE. Id. at 525. He also

noted that he had yet to receive the reimbursement for

his first move after retirement, which the Board had

ordered in the First Addendum. Id. at 524. Major Adams also submitted additional documents, including a

chronology of events regarding back surgery that he

underwent in Germany after his discharge on the recommendation of his doctor and at his own expense, see

id. at 527, and emails reflecting his efforts to receive

medical and dental benefits, id. at 545-57.

App. 21

In light of the additional documentation provided

by Major Adams, the AFBCMR requested that Dr. Carson reconsider his opinion. Id. at 504. Although Dr.

Carson reviewed the additional documentation provided by Major Adams, he "determined another medical opinion was not necessary and indicated that he

stood by his original recommendation and had nothing

further to add." Id.

Accordingly, on December 28, 2012, the AFBCMR

issued its Second Addendum to the Record of Proceedings (Second Addendum) denying Major Adams's second request for reconsideration. Id. at 502-05. With

respect to Major Adams's claim that his disability was

combat related, the Second Addendum affirmed the

Board's prior conclusion that the medical evidence did

not establish "a clear linkage between his existing conditions and a combat-related injury." Id. at 504. With

respect to Major Adams's request for reconsideration

of his claims "for reimbursement of his medical/dental

bills and health insurance premiums," the AFBCMR

stated that "while every effort is made to make an applicant whole when it is determined that he has been

the victim of an error or injustice, we believe the relief

previously provided by the Board, to include granting

him a medical retirement with TRICARE eligibility

constitutes full and fitting relief." Id.

C. The Third Addendum

On January 23, 2013, Major Adams requested

reconsideration by the Board for the third time,

App. 22

primarily to seek a modification of its decision that he

must seek any relief concerning reimbursements or

benefits from DFAS or TRICARE. Am. Compi. ¶ 30.

The AFBCMR issued a decision finding that Major

Adams's request did not meet the criteria for reconsideration by the Board. Id. 1 31. After receiving this decision, Major Adams moved this Court to remand the

case back to the AFBCMR, directing the Board to address the issues raised in his January 23, 2013 request

for reconsideration. ECF No. 32. On May 6, 2013, the

Court granted Major Adams's motion and remanded

the case to the AFBCMR for further development of

the administrative record. ECF No. 35.

In accordance with the Court's Order, on August 1,

2013, the AFBCMR considered the points raised in Major Adams's January 23, 2013 letter and issued a Third

Addendum to its Record of Proceedings (Third Addendum). AR at 559-63. In the Third Addendum, the Board

reaffirmed its prior determination that Major Adams

had already received all of the relief that the Board is

authorized by statute to provide and clarified certain

prior points made in the First Addendum and Second

Addendum to the extent that they were unclear. Id. at

561. It explained as follows:

[Tihe Board cannot enter an order to direct

TRICARE (or DFAS for that matter) to pay

the applicant a specific amount. The Board is

a creature of statute. Under Title 10, Section

1552, the Board is empowered only to correct

military records for the removal of error or injustice. The Board has no authority to issue

App. 23

orders to enforce its own corrections. On the

other hand, Section 1552(a)(4) of Title 10

states, "[e]xcept when procured by fraud, a

correction under this section is final and conclusive on all officers of the United States." So,

to the extent the Board has already granted

relief to the applicant, other federal agencies

have a duty to provide that relief.

Id. at 562.

Pursuant to the Court's remand order, the AFBCMR

also evaluated its previous finding that "there was insufficient evidence to warrant corrective action in regard to the applicant's request that his injuries be

rated as combat-related." Id. at 561-62. The AFBCMR

found that Major Adams "has not provided any additional information" or evidence "to specifically substantiate his entitlement to the requested relief or

to overturn [the Board's] earlier decision." Id. at 562.

Given these circumstances, the Board again concluded

that there was "no basis upon which to recommend"

correcting Major Adams's record to show that his medical condition was combat related. Id. Major Adams's

subsequent motion in Court to remand the case to the

AFBCMR for further consideration was denied on October 7, 2013. ECF No. 40.

D. The Fourth Addendum

On January 16, 2015, after briefing on cross-motions for judgment on the administrative record was

complete and oral argument was scheduled, the government filed a consent motion to remand the matter

App. 24

back to the Board yet again. ECF No. 72. The remand

was requested to allow the Board to obtain an advisory

opinion from the Director of Compensation, Office of

the Deputy Under Secretary of Defense (Military Personnel Policy) (hereinafter ODUSD) as provided in Department of Defense Directive 1332.41 ¶ 3.3 for cases

involving combat-related special compensation. Id. The

Court granted the government's consent motion. ECF

No. 73.

Because the Air Force Personnel Center (AFPC) is

the Air Force's office of primary responsibility regarding claims for combat-related special compensation,

the Board initiated its request for an advisory opinion

through the AFPC. After noting that Major Adams had

not previously submitted an application for combatrelated special compensation, the AFPC directed the

Board to request that Major Adams submit such an

application, which he did on February 21, 2015, along

with a detailed memorandum for the ODUSD. AR at

765-85.

AFPC's Combat-Related Special Compensation

Board (CRSC Board) then conducted a review of Major

Adams's application and, on April 15, 2015, determined

that Major Adams was entitled to combat-related special compensation for tinnitus and fibromyalgia at a

rating of ten percent, but was not entitled to such compensation for the disabilities reflected in his corrected

military record. Id. at 786-91.

App. 25

The CRSC Board explained its conclusion as follows:

To be approvable for compensation, clear

documentation must be provided to indicate

that an injury/disability occurred and/or was

caused by a specific combat-related factor

rather than from routine causes or your particular physical make-up. Your claim and documentation received contained no definitive

evidence to confirm these disabilities were the

direct result of a combat-related event. Additionally, the fact that a member incurred a

disability in an area of armed conflict or while

participating in dombat operations is not sufficient by itself to support a combat related

determination. There must be a definite, documented, causal relationship between the

armed conflict and the resulting disability. Alter reviewing your documentation we were

unable to identify a combat-related event as

the cause of your disabilities.

Id. at 787.

The CRSC Board's determination, Major Adams's

application and memorandum, along with the entire

record of proceedings, were then transmitted to the

ODUSD for an advisory opinion concerning Major Adams's claim. On June 1, 2015, the ODUSD provided the

Board and Major Adams with an advisory opinion. Id.

at 814. In the opinion, ODUSD stated that it conducted

a review of the case using the guidance found in the

DTM dated April 27, 2004 and in the Supplemental

Guidance on Combat-Related Special Compensation,

App. 26

dated June 3, 2008. Id. at 814. Based on its review, the

ODUSD advised the Board of its view that Major Adams's disabilities (other than tinnitus and flbromyalgia) were not combat related within the meaning of 10

U.S.C. § 1413a. Rather, the ODUSD concluded, "[tihe

evidence shows that the applicant's other health issues

were incurred as a result of being hit by a car while

riding a bicycle in 1997 and falling in a bathroom in

2004." Id. Although the ODUSD observed that Major

Adams's medical condition appeared to have deteriorated over time, it opined that the evidence did not

show that these issues "were incurred while engaged

in hazardous service, in the performance of duty under

conditions simulating war, or through an instrumentality of war." Id. at 815. "In addition," the ODUSD

noted, "the evidence does not show that the applicant's

other health issues were incurred as a direct result of

armed conflict." Id. It concluded that "[tihe fact that

the applicant deployed numerous times and flew numerous missions does not demonstrate that his other

health issues were incurred in the requisite manner to

qualify for CRSC benefits." Id.

Major Adams was provided with a copy of the advisory opinion and submitted a response to the Board

on June 9, 2015. Id. at 821. On September 8, 2015, the

Board issued a decision in which it affirmed its earlier

determination declining to correct Major Adams's records to show that his degenerative disc disease of the

cervical spine, cervical radiculopathy of the left upper

extremity, thoracolumbar sprain, bilateral ischial tuberosity/bursitis, and radiculopathy involving the left

App. 27

lower extremity were combat related. Id. at 623-31.

The Board also affirmed the partial relief provided by

the CRSC Board, which granted Major Adams a ten

percent combat disability rating for fibromyalgia and

tinnitus. Id. at 631.

DISCUSSION

I.

Jurisdiction of the Court

The Tucker Act empowers this court to hear "any

claim against the United States founded either upon

the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express

or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding

in tort." 28 U.S.C. § 1491(a)(1) (2012). While the Tucker

Act waives the sovereign immunity of the United

States to allow a suit for money damages, United

States v. Mitchell, 463 U.S. 206, 212 (1983), it does not

confer any substantive rights on a plaintiff. United

States v. Testan, 424 U.S. 392, 398 (1976). Therefore, a

plaintiff seeking to invoke the court's Tucker Act jurisdiction must identify an independent source of a substantive right to moiley damages from the United

States arising out of a contract, statute, regulation, or

constitutional provision. Jan's Helicopter Serv., Inc. v.

Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir.

2008).

A statute may serve as an independent source of a

substantive right to money damages where it "can

fairly be interpreted as mandating compensation by

App. 28

the Federal Government for the damage sustained."

Roberts v. United States, 745 F.3d 1158, 1162 (Fed. Cir.

2014) (quoting United States v. White Mountain Apache

Tribe, 537 U.S. 465, 472 (2003)). In that regard, "[ut is

enough 'that a statute creating a Tucker Act right be

reasonably amenable to the reading that it mandates

a right of recovery in damages." Id. (quoting White

Mountain Apache Tribe, 537 U.S. at 473).

It is well established that Section 1201 of title 10

of the United States Code, which governs military disability retirement, is a money-mandating statute because the Secretary of Defense "has no discretion

whether to pay out retirement funds once a disability

is found qualifying." Fisher v. United States, 402 F.3d

1167, 1174 (Fed. Cir. 2005) (citing Sawyer v. United

States, 930 F.2d 1577 (Fed. Cir. 1991)). The same lack

of discretion exists under 10 U.S.C. § 1413a, which pro-,

vides that "[tihe Secretary concerned 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 of the retiree

determined under subsection (b)." Accordingly, 10 U.S.C.

§ 1413a is a money mandating statute and this Court

has jurisdiction to hear Major Adams's claim that the

AFBCMR erred when it found that he was not entitled

to combat-related special compensation.

App. 29

II. Standard of Review for Motion for Jüdgment on the Administrative Record

RCFC 52.1 governs motions for judgment on the

administrative record. See RCFC 52.1(c). Therefore,

the standard of review for a motion for judgment on

the administrative record differs from that for a motion for summary judgment. Bannum, Inc. v. United

States, 404 F.3d 1346, 1354-55 (Fed. Cir. 2005). Unlike

summary judgment, for instance, "a genuine dispute of

material fact does not preclude a judgment on the administrative record." Sierra Nevada Corp. v. United

States, 107 Fed. Cl. 735, 751 (2012) (citing Bannum,

Inc., 404 F.3d at 1355-56). To the contrary, "[tlo 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 of proof based

on the evidence in the record." Jordan Pond Co., LLC

v. United States, 115 Fed. Cl. 623, 630 (2014) (citing

Bannum, Inc., 404 F.3d at 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

of fact thus neither precludes the granting of a motion

for judgment on the administiative record nor requires

this court to conduct a full blown evidentiary proceeding." CRAssociates, Inc. v. United States, 102 Fed. Cl.

698, 710 (2011) (citing, inter alia, Bannum, Inc., 404

F.3d at 1356).

App. 30

III. Scope of Review of Military Correction

Board Decisions

The scope of judicial review of military correction

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,

642 F.3d 1040, 1044 (Fed. Cir. 2011) (quoting Heisig v.

United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983)).

The arbitrary and capricious 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, 719 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. NL.R.B., 305 U.S. 197, 229 (1938)). The

court is limited to a review of the record that was before the corrections board. Metz v. United States, 466

F.3d 991, 998 (Fed. Cir. 2006); see also Walls v. United

States, 582 F.3d 1358, 1368 (Fed. Cir. 2009). Finally, it

may not "substitute [its] judgment for that of the military departments when reasonable minds could reach

differing conclusions on the same evidence." Heisig,

719 F.2d at 1156.

App. 31

IV. Merits

A. Board's Conclusion that Major Adams's

Disability Was Not Combat-Related

As explained above, Major Adams's corrected records reflect that, at the time he was separated, he was

unfit to perform the duties of his position as a result of

the combination of several disabling conditions: cervical degenerative disc disease, associated with bilateral

upper extremity radiculopathy; lumbar intervertebral

disc syndrome; and left sciatic nerve neuritis. AR at 11.

It is undisputed that all of these conditions originated

from causes unrelated to combat. See id. at 139 (report

of Plaintiff's expert Dr. Craig Bash, observing that

"[a]ll of [Major Adams's] medical problems stem from

the primary and secondary complications of his in-service bicycle accident"); id. at 152 (Dr. Bash noting that

"[b] eginning after a car hit him while riding his bike to

work, degenerative cervical and lumbar degenerative

conditions progressed and increasingly impaired his

ability to perform his flying duties culminating in permanent disqualification by the Air Force and medical

denial of FAA flying privileges"). It is also undisputed

that the pain Major Adams suffered as a result of these

conditions was exacerbated during and after his combat flight duty. Id. at 152 (Dr. Bash opining that "[e]xtended sitting while flying in combat deployments

worsened his symptoms of radiculopathy").

In finding that Major Adams had failed to establish that his disability was combat related, the Board

relied upon Dr. Carson's opinion that "an exacerbation

App. 32

of pain upon sitting in the cockpit does not necessarily

infer that a permanent worsening of the underlying

defect has occurred, such as the applicant's ischial bursitis and degenerative disc disease," and that "the radiographic evidence alone is insufficient to show that

[Major Adams's degenerative disc disease] was accelerated by or resulted from the applicant's combat flying missions." Id. at 359. For the reasons set forth

below, the Court concludes that the Board did not act

unreasonably in relying upon the opinion of its medical

consultant, and that its decision finding that Major Adams's disability was not combat related was neither arbitrary, capricious, nor contrary to law.

As described above, the statute and the relevant

provisions of DoDI 1332.38 specify that "a physical disability shall be considered combat-related if it makes

the member unfit or contributes to unfitness and was

[w]hile engaged in hazardous service," inincurred.

cluding while engaged in "aerial flight duty." DoDI

1332.38 §§ E3.P5.2.2, E3.P5.2.2.2; see also 10 U.S.C.

§ 1413a(e). Attachment 1-1 further specifies that "[a]

finding that a disability is a result of such hazardous

service requires that the injury or disease be the direct

result of actions taken in performance of such service."

AR at 809.

.

.

.

In this case, as noted, it is undisputed that Major

Adams was not fit for duty at the time of his discharge. The Board found, however, that the underlying

conditions/disabilities that caused or contributed to

his unfitness were not "incurred" as a result of Major

Adams's flight duty. Instead, the Board concluded that

App. 33

the medical conditions that caused Major Adams's

pain and discomfort were incurred years earlier as a

result of the bicycle accident that took place in 1997.

See AR at 623-31.

The Board's conclusion in this regard was supported by substantial evidence and, in fact, as noted

above, Major Adams does not dispute that his underlying conditions were not combat related. Thus, the real

point of contention between the parties is not whether

Major Adams's underlying medical conditions were

caused in the first instance by his flight duties. Rather,

the issue before the Court is whether substantial

evidence supports the Board's decision that Major

Adams's flight duties did not aggravate his noncombat-related medical conditions.4

After oral argument in this case, this Court requested briefing on a subsidiary question: whether, as a matter of law, the aggravation of a pre-existing non-combat-related condition can

serve as the basis for an award of combat-related special compensation, given that 10 U.S.C. § 1413a(e) speaks in terms of disabilities "incurred" as a result of combat, as opposed to disabilities

"incurred or aggravated" as a result of combat. ECF No. 89; cf 38

U.S.C. § 101(16) (defining "service-connected" for purposes of Title 38 as meaning, "with respect to disability or death, that such

disability was incurred or aggravated, or that the death resulted

from a disability incurred or aggravated, in line of duty in the active military, naval, or air service"). Major Adams took the position that the concept of "aggravation" of a pre-existing disability

was encompassed within the word "incurred." Pl.'s Suppi. Br. at

2-8, ECF No. 92. The government, however, argued that DoD's

regulations foreclose .a finding of eligibility based on the aggravation of a non-combat-related disability because they require direct

causation between a service member's disability and one of the

App. 34

In his March 5, 2012 opinion, Dr. Carson observed

that Major Adams experienced varying degrees of

neck, low back, and ischial area (lower and back part

of the hip bone) pain during his military service, and

that such pain was "exacerbated" or "flared-up" when

Major Adams flew missions. Id. at 509. Dr. Carson considered whether these flare-ups represented the "expected natural progression of the underlying pathology

[a 1997 bike accident and/or a 2004 fall in his bathroom]" or whether they could be "reasonably considered permanently aggravated by or caused by the

applicant's combat flying missions." Id. at 508.

Having reviewed the medical evidence, Dr. Carson

stated that he was "of the opinion that an exacerbation

circumstances set forth in 10 U.S.C. § 1413a(e)(2). Def.'s Corrected Suppi. Br. at 2-12, ECF No. 103.

The court notes that the government's position in this litigation appears inconsistent with the views of the Board itself, which

seems to have assumed that the aggravation of a pre-existing disability as a result of combat would be sufficient to support eligibility for CRSC. AR at 359 (noting Dr. Carson's observation that

exacerbation of pain does not necessarily imply that there has

been "a permanent worsening of the underlying defect"). The

Court is also skeptical of the government's argument that there

is an inconsistency between the direct causation requirement in

the DoD instructions and guidance, and the notion that the aggravation of a disability as a direct result of combat constitutes a

combat-related disability. But in any event, the Court need not

resolve the legal question of whether the aggravation of a noncombat-related disability meets the statutory and regulatory

standards given its conclusion, set forth below, that the Board's

decision that Major Adams failed to prove that his disability was

aggravated by his flight duties was supported by substantial evidence.

App. 35

of pain upon sitting in the cockpit does not necessarily

infer.. a permanent worsening of the underlying defect." Id. at 509. Effectively, Dr. Carson determined

that Major Adams's back pain when seated in the cockpit represented the expected, natural consequences of

the injury that Major Adams sustained in his 1997 bicycle accident, and perhaps his fall in the bathroom in

2004— neither of which was combat related. Id. at 508.

Dr. Carson found that there was insufficient medical

evidence to show that Major Adams's underlying disability was "accelerated by or resulted from [his] flying

missions." Id. at 359; see also id. at 510. Moreover, Dr.

Carson considered the possibility suggested by several

of Major Adams's doctors that Major Adams's flying

duties caused a worsening of one or more of his painful

conditions, but found that "in the absence of a discrete,

significant traumatic event productive of biomechanically significant change of anatomic structure," there

was insufficient evidence to establish a "direct causal

relationship between [Major Adams's] underlying condition[s] (manifested by acute exacerbations of pain

with sitting) and [e] ither combat or an instrumentality

of war." Id. at 510.

.

Major Adams contends nonetheless that his disabilities should be considered combat-related because

the medical records showed (and Dr. Carson concurred)

The Court takes Dr. Carson's reference to the absence of a

nexus between Major Adams's underlying medical conditions and

"combat or an instrumentality of war" to encompass as conclusion

that there was no nexus between his underlying medical conditions and the "hazardous service" in which Major Adams was engaged, namely, his aerial flight duties.

App. 36

that Major Adams experienced an "exacerbation" of

pain during and after flying. Pl.'s Resp. and Cross-Mot.

for J. on the Admin. R. (Pl.'s Cross-Mot.) at 28, ECF No.

58. He argues that "exacerbation is obviously within

the scope of the 'contributes to' clause of the regulation." Id. Further, Major Adams contends, the AFBCMR

(and Dr. Carson) misread the statute by assuming that

he was required to prove a causal relationship between

his disability and the hazardous service he performed.

He distinguishes the provision of the statute upon

which he relies, covering disabilities incurred "while engaged in hazardous service," 10 U.S.C. § 1413a(e)(2)(B),

from the statutory provision stating that a physical

disability is combat-related if it was incurred "[a]s a direct result of armed conflict," 10 U.S.C. § 1414a(e)(2)(A).

Id. at 27. These contentions are unpersuasive.

First, there is no merit to Major Adams's contention that he has met the statutory criteria for establishing the existence of a combat-related disability

because an exacerbation of pain resulting from his

flight duty contributed to his unfitness. Pl.'s CrossMot. at 26 (observing that the "only question" concerning his entitlement to CRSC is whether his flight duty

"either made him unfit or contributed to his unfitness"); see also id. at 28. This contention conflates two

separate inquiries. The question is not as Major Adams contends whether his flight duty contributed to

his unfitness. It is whether he 1) had a disability that

he incurred while engaged in service as a pilot, and

2) whether that disability contributed to his unfitness.

As described above, substantial evidence supports the

-

-

App. 37

Board's conclusion that Major Adams failed to satisfy

the first of these criteria because his underlying disabling condition was incurred as a result of a bicycle

accident and because that condition itself was not aggravated by his flight duty.

Critically, there is a legally recognized distinction

between the exacerbation of pain caused by the requirement that Major Adams sit for extended periods

of time in the cockpit and the aggravation or increase

of his underlying disability as a result of his confinement to the cockpit. See Davis v. Principi, 276 F.3d

1341, 1346-47 (Fed. Cir. 2002) (holding that "evidence

of temporary flare-ups symptomatic of an underlying

to

preexisting condition, alone, is not sufficient

1153

[deshow increased disability under 38 U.S.C. §

fining "aggravation" of a disability under veterans benefits statute for purposes of determining whether a

disability is service-connected] unless the underlying

condition is worsened"). Thus, proof that Major Adams's flying duties caused an exacerbation or flare-up

of his symptoms (i.e., pain when sitting for prolonged

periods of time) is not enough to establish that his underlying disability was aggravated (i.e., increased) as

a result of his time in the cockpit.

...

Finally, Major Adams's argument that the statute

does not require a causal relationship between a service member's hazardous service and his disability is

inherently implausible. The entire purpose of CRSC is

to provide service members who incur their disability

as a result of combat with benefits above and beyond

those which they would receive in any event for other

App. 38

service-connected disabilities. And it seems inconsistent with that statutory purpose to suppose that

Congress would have intended a service member to receive enhanced benefits for disabilities that were not

the direct result of actions taken in conditions of combat set forth in the statute.

Indeed, Major Adams's argument is inconsistent

with the instructions and guidance issued by the Secretary of Defense, to whom Congress delegated the authority to prescribe criteria for determining whether a

disability has been "incurred" under one of the four

conditions set forth in 10 U.S.C. § 1413a(e)(2). Attachment 1-1 to the DTM, as well as section E3.P5.2.2.2 of

DoDI 1332.38, provide that "[a] finding that a disability is the result of. hazardous service requires that

the injury or disease be the direct result of actions

taken in the performance of such service." AR at 809;

DoDI 1332.38.

.

.

As described above, the scope of this Court's review of the Board's decision regarding whether Major

Adams's disability was combat related is a narrow one.

The Federal Circuit has held that a service member

"who has sought relief from a correction board is bound

by its decision unless he can demonstrate by 'cogent

and clearly convincing evidence that the correction

board acted arbitrarily, capriciously, contrary to law, or

that its determination was unsupported by substantial

evidence.'"Dodson v. US. Gov't, Dept ofArmy, 988 F.2d

1199, 1204-05 (Fed. Cir. 1993) (quoting Arens v. United

States, 969 F.2d 1034, 1037 (Fed. Cir. 1992)). Further,

questions of medical causation are uniquely within the

App. 39

competence of medical professionals. Here, the Board

relied upon the opinion of its consulting physician, Dr.

Carson, when it concluded that Major Adams's conditions were not incurred (i.e., acquired or aggravated)

as a result of his flight duty, even if the symptoms of

those conditions were exacerbated by such flight duty.

Its reliance was not unreasonable. The Court, therefore, must affirm the Board's ruling denying Major

Adams's request for combat-related special compensation.

B. The AFBCMR's Determination That It

Was Not Authorized to Provide Major

Adams With Additional Relief Beyond

the Correction of His Records

Major Adams next contends that the requirement

that the Board grant "full and fitting relief" or "thorough and fitting relief," empowers it to issue an order

to TRICARE and DFAS to afford Major Adams certain

additional monetary relief he seeks. See Pl.'s CrossMot. at 29. Specifically, he contends that as a member

on active duty he was entitled to receive medical and

dental care in any facility of any uniformed service,

but that he was denied this right "because he was

separated in 2006 rather than taken into the DES

and afforded the disability retirement the AFBCMR

granted him retroactively in 2010." Id. (citing 10 U.S.C.

§ 1074(a)(1)-(2)(A)). Therefore, Major Adams argues,

the Board should have ordered reimbursement of outof-pocket expenses he incurred to pay for back surgery,

dental work, medications, and private insurance. Id.

App. 40

He challenges the AFBCMR's conclusion that it lacked

the authority to "direct DFAS, TRICARE and/or Delta

Dental to pay [him] the sums he has claimed." Am.

Compl. 1 47.

Major Adams's contentions lack merit. First, the

Board's authority is, in fact, limited to directing the

correction of a service member's records. See 10 U.S.C.

§ 1552(a)(1) ("The Secretary of a military department

may correct any military record of the Secretary's department when the Secretary considers it necessary to

[Sluch corcorrect an error or remove an injustice.

rections shall be made by the Secretary acting through

boards of civilians of the executive part of that military

department.); see also 32 C.F.R. §§ 865.1, et seq. (detailing the function and responsibilities of the AFBCMR).

And once the Board has corrected a record, other agencies have a duty to provide the monetary and other relief due to a service member in light of the corrected

record. 10 U.S.C. § 1552(a)(4) ("Except when procured

by fraud, a correction under this section is final and

conclusive on all officers of the United States."). Thus,

DFAS is charged with the resolution of "claims on the

basis of the corrected military record" and "[c] omputation of the amount due, if any [based on a Board decision], is a function of DFAS." 32 C.F.R. § 865.7(b)(2).

.

.

.

In this case, in response to the AFBCMR's correction of Major Adams's record, DFAS has sent him the

back retirement pay he was due. Am. Compi. 121. It

has also sent him reimbursement for his insurance

premiums. Id. ¶ 23. In addition, the Third Addendum

explicitly states that Major Adams is eligible to receive

App. 41

moving expenses and advises Major Adams that he

should contact DFAS to obtain reimbursement for

those expenses. AR at 562.

Further, there is no merit to Major Adams's argument that the AFBCMR should have directed that he

receive reimbursement for medical expenses incurred

for his back surgery and other procedures; because he

would have received free medical care as a matter of

right pursuant to 10 U.S.C. § 1074 had he been kept on

active duty to undergo the medical evaluation process.

That argument is foreclosed by the court of appeals'

decision in Barnick v. United States, 591 F.3d 1372

(Fed. Cir. 2010). In that case, the court of appeals held

that a service member who is voluntarily separated

from the service cannot secure monetary relief based

on a theory of constructive service where he claims

that "he should have been retained on active duty

merely for disability evaluation." Id. at 1379-80.

Moreover, 10 U.S.C. § 1552(c)(1) provides that "the

Secretary concerned may pay, from applicable current

appropriations, a claim for the loss of pay, allowances,

compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a

result of correcting a record under this section, the

amount is found to be due the claimant on account of

his or another's [military] service." Thus, in light of the

Board's correction of Major Adams's record to reflect a

disability retirement in May 2006, he was entitled to

receive the "pay, allowances, compensation, emoluments, or other pecuniary benefits" that he would have

received had he been medically retired on that date.

App. 42

But because "the availability of medical care for retired

personnel of the uniformed services is discretionary

with the services, retired personnel who fail to receive

such care cannot successfully maintain an action for

money damages based on such failure." Lord v. United

States, 2 Cl. Ct. 749, 757 (1983) (citing 10 U.S.C.

§ 1074(b)).

Similarly, with respect to Major Adams's claims

for reimbursement of medical expenses, TRICARE has

advised him that he is entitled to coverage under its

health care and dental programs as a result of the corrections made to his record. AR at 545, 556. As such,

the AFBCMR properly found that the corrections

made, including "granting [Major Adams] a medical

retirement, with TRICARE eligibility[,} constitute [d]

full and fitting relief." AR at 504. To the extent that

Major Adams believes that he has been wrongfully

denied benefits by TRICARE, his resort is not to the

AFBCMR it is to the administrative scheme set forth

in DoD regulations for challenging TRICARE coverage

determinations. See 32 C.F.R. § 199.10.

-

For these reasons, the Board's decision that it provided Major Adams with all the relief it is authorized

to provide was neither arbitrary and capricious, an

abuse of discretion, nor unsupported by substantial evidence on the whole record.6

Plaintiff requests that the Court issue a judgment for the

amount of back retired pay and moving expenses due to him. Pl.'s

Cross-Mot. at 42-43. But, as noted above, the government has already issued Major Adams checks for back pay, and counsel for

6

App. 43

CONCLUSION

For the reasons discussed above, the government's

motion for judgment on the administrative record is

GftANTED and Plaintiff's motion for judgment on the

administrative record is DENIED. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

s/Elaine D. Kaplan

ELAINE D. KAPLAN

Judge, U.S. Court of

Federal Claims

the government indicated at the oral argument that DFAS would

reissue those checks at Major Adams's request. Oral Arg. Tr. at

78. The status of Major Adams's request for reimbursement of

moving expenses is unclear, but the government has acknowledged his entitlement to submit a claim for reimbursement for

such expenses to DFAS. Def.'s Reply at 10 n.7, ECF No. 63. Until

he does so, and until DFAS makes its determination, his claim for

reimbursement is not ripe for review.