Petition for Writ of Certiorari — Michael G. Pohl, Petitioner v. United States

1

APPENDIX TABLE OF CONTENTS

Page

Opinion, United States Court of Appeals for the

Federal Circuit (April 18, 2023)....................... App. 1

Judgment, United States Court of Appeals for

the Federal Circuit (April 18, 2023)

App. 16

Opinion and Order, United States Court of Fed­

eral Claims (June 21, 2022)

App. 17

Record of Proceedings, United States Air Force

Board for Correction of Military Records (May

25, 2020)

App. 55

Denial of Rehearing, United States Court of

Appeals for the Federal Circuit (May 12,

2023)

App. 67

Denial of Rehearing En Banc, United States

Court of Appeals for the Federal Circuit (June

1, 2023).........................................

App. 69

DD Form 149 (November 16, 2018)

App. 71

Decision, Department of Veterans Affairs (Octo­

ber 25, 2018)

App. 77

Decision, Department of Veterans Affairs

(November 13, 2019)..........

App. 89

DD Form 214 (April 17,1995)

App. 93

Medical Notes by Dr. Tieman (June 27,1998).... App. 98

Memorandum by Col Boersma (June 22,

1999)

App. 100

Memorandum by Lt Col Lynott (August 9,

1999)................................................

.App. 101

RRL Not Approved (October 7,1999)

App. 103

11

APPENDIX TABLE OF CONTENTS - Continued

Page

Retirement Order (October 27,1999)

App. 106

AFI 36-3202 Table 2, Rule 2...............

App. 108

IDES Short Brief..................................

App. Ill

App. 1

Note:

This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

MICHAEL G. POHL,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

2022-2080

Appeal from the United States Court of Federal

Claims in No. l:21-cv-01482-CNL, Judge Carolyn N.

Lerner.

Decided:

April 18, 2023

Michael Pohl, Liberty Hill, TX, pro se.

Sonia W. Murphy, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, for defendant-appellee. Also repre­

sented by Brian M. Boynton, Patricia M. McCarthy,

Loren Misha Preheim.

Before Reyna, Mayer, and Hughes, Circuit

Judges.

Reyna, Circuit Judge.

App. 2

Pro se Appellant Michael G. Pohl is a retired

United States Air Force Reserve flight engineer. In

1999, the Air Force informed Mr. Pohl that he would be

discharged for physical disqualification based on his

back problems. He applied for transfer to the Retired

Reserve in lieu of the discharge and was placed on the

“Retired Reserve List.” In 2018, Mr. Pohl, in an effort

to obtain disability retirement pay, petitioned the Air

Force Board for the Correction of Military Records

(“Record Corrections Board”) to change his records to

reflect that he had been discharged for medical dis­

qualification for a back disability stemming from an al­

leged 1991 Air Force training accident. On July 5,2020,

the Record Corrections Board denied the petition.

Mr. Pohl sued the government in 2021 in the

United States Court of Federal Claims claiming he was

entitled to military disability retirement pay under 10

U.S.C. § 1204. The government moved to dismiss on

grounds that Mr. Pohl’s claim was barred by the appli­

cable six-year statute of limitations under 28 U.S.C.

§ 2501. According to the government, Mr. Pohl’s claim

accrued when he was discharged in 1999. Mr. Pohl ar­

gued that his claim accrued on July 5, 2020—the date

the Record Corrections Board denied his request to

correct his records. The Court of Federal Claims agreed

with the government and dismissed the case for lack

of subject matter jurisdiction. Pohl v. United States,

No. 21-1482, 2022 WL 2232302, at *1 (Fed. Cl. Jun. 21,

2022) {“Decision”). Mr. Pohl appeals. We affirm.

App. 3

Background

Mr. Pohl joined the Army in 1982. Decision, at *2.

He served three years on active duty before joining

the Air Force Reserve as a flight engineer. Id. Mr. Pohl

alleges that in April 1991, he sustained a back injury

after falling 100 feet into a ravine during an Air Force

training program. Id. After returning home from the

training, he went to an on-base hospital where the

flight surgeon suggested that if Mr. Pohl were exam­

ined “further,” the surgeon would find an injury and

that injury might “possibly end” his military career. Id.

at *3 (quoting Complaint at 'll 12, Pohl v. United States,

No. 21-1482 (Fed. Cl. Jun. 16, 2021), ECF No. 1 (“Com­

plaint”)).1 Mr. Pohl left the hospital without further

testing. Id.

Medical records reflect that Mr. Pohl was injured

in 1995 in a motor vehicle accident. Id. In 1996, he ag­

gravated the 1991 injury by lifting a heavy object at

his civilian commercial-airline job and became “inca­

pacitated.” Id. (quoting Complaint at 1 13). In 1997, he

reinjured his back while lifting his son at home. Id. In

November 1997, the Air Force placed Mr. Pohl on a pro­

file that rendered him “not qualified for deployment”

and “not qualified for reassignment.” Id. at *4 (quoting

Administrative Record at 146, Pohl ECF No. 7).

In December 1997, Mr. Pohl’s civilian doctor, Dr.

Coscia, identified several issues with Mr. Pohl’s L5

1 For brevity, other materials from the Court of Federal

Claims’ docket that are cited here will be referred to as “Pohl ECF

No. **.”

App. 4

vertebrae. Id. The doctor determined that an x-ray “re­

vealed the extent of the 1991 injury” because they

showed a “copious amount of fragmented bony over­

growth.” Id. (quoting Complaint at 'H 17). Mr. Pohl was

diagnosed with additional spinal injuries and had sur­

gery for a 360-degree fusion of his L5-S1 vertebrae. Id.

In June 1998, an Air Force doctor evaluated Mr.

Pohl. Id.; Complaint at f 14. The doctor noted that, to

return to duty, Mr. Pohl needed to provide documenta­

tion from his primary care provider stating that he had

“no limitations,” but further noted that, “[i]n the prob­

able event that the patient’s provider recommends

long term disability, the patient will need to return for

reevaluation” by a “MedicalEB”—a Medical Evalua­

tion Board. Administrative Record at 106, Pohl ECF

No. 7; see also Decision, at *4; Complaint at 1 14. A

Medical Evaluation Board or MEB determines

whether a service member meets the service’s stand­

ards for retention under its regulations. Chambers u.

United States, 417 F.3d 1218,1225 n.2 (Fed. Cir. 2005).

If the MEB finds that the service member does not

meet the standards for retention, a Physical Evalua­

tion Board or “PEB” then “determines a service mem­

ber’s fitness for duty and entitlement to disability

retirement.” Id. Mr. Pohl never obtained any documen­

tation from his primary care provider. Decision, at *4.

On December 21, 1998, the Air Force mailed Mr.

Pohl two memoranda: a “Required Medical Documen­

tation Update” (which asked him to provide medical

documentation related to his condition) and a “Selec­

tion of Rights to Physical Evaluation Board (PEB).”/<i.

App. 5

(citing Administrative Record at 102 and 136-137,

Pohl ECF No. 7). In the PEB-related document, the Air

Force advised Mr. Pohl “that [he] ha[d] been identified

as having a medical condition that may be medically

disqualifying for worldwide duty and [that may] sub­

sequently result in [his] involuntary separation.”

AppxlOO. The Air Force further referenced Depart­

ment of Defense Directive 1332.18 (Separation or Re­

tirement for Physical Disability), and Department of

Defense Instruction 1332.38 (Physical Disability Eval­

uation), and stated that those provisions require that

“a member of the Ready Reserve who is pending sepa­

ration for a nonduty related impairment or condition

shall be afforded the opportunity to have his/her case

reviewed by the PEB solely for a fitness determina­

tion.” Id. The Air Force then stated that Mr. Pohl “may

elect to have [his] case reviewed by the PEB by com­

pleting and returning the attached form evidencing

[his] election” and that “[f]ailure to comply will consti­

tute a waiver of this right and discharge proceedings

will continue.” Id.

The government asserts that Mr. Pohl did not re­

spond. Decision, at *4. Mr. Pohl claims that he never

received the documents and that the Air Force never

gave him a fitness determination or otherwise gave

him the option to go before a medical evaluation board

to begin the process of determining his right to obtain

disability benefits. Id.

In June 1999, the Air Force declared Mr. Pohl med­

ically disqualified for service based on his back surgery

and inability to perform his duties. Id. at *5; Complaint

App. 6

at 'll 15. In September 1999, the Air Force notified him

of his pending discharge. Decision, at *5. Mr. Pohl re­

turned a signed acknowledgement of receipt for the

discharge notification, and, in lieu of accepting a dis­

charge, he submitted an application to transfer to the

Retired Reserve on September 24, 1999. Id. He was

placed on “Reserve Retired List” effective October 1,

1999. Id.

Mr. Pohl asserts that he had additional back sur­

geries in 2001 and 2003. Id. at *4. In 2016, Mr. Pohl

petitioned the U.S. Department of Veterans Affairs for

veteran’s disability benefits, citing his injuries from

the 1991 training incident. Id. at *3. In October 2018,

the VA found that Mr. Pohl’s lower back condition was

“service-connected” based on the 1991 incident and as­

signed him a disability rating of 40%. Id.

In November 2018, to obtain disability retirement

benefits through the Department of Defense, Mr. Pohl

sought to correct his military record with the Records

Corrections Board. Id. at *5; Complaint at 'll 21. He re­

quested that the Records Correction Board correct his

discharge records to show that that he was “medically

discharged” for a service-connected injury that ren­

dered him permanently disabled. Decision, at *5. He

contended that he had not applied for disability retire­

ment earlier because he did not know that he was eli­

gible to do so until after he received the VA’s 40%

disability determination. Id.

On July 5, 2020, the Record Corrections Board de­

nied his request to correct the record. Appxl9. It

App.7

determined that Mr. Pohl’s application was untimely

filed after the three-year filing deadline under 10

U.S.C. § 1552. Appx23. It also determined that Mr. Pohl

failed to establish an error or injustice in his military

record.Id.

In June 2021, Mr. Pohl filed suit against the gov­

ernment in the U.S. Court of Federal Claims seeking

military pay, disability retirement pay, reimbursement

of expenses, and other benefits under 10 U.S.C. § 1204.

Decision, at *1, *6. He also asserted due process viola­

tions under the Constitution. Id.

The government moved to dismiss under Rule

12(b)(1) for lack of subject matter jurisdiction. Id. at *1.

In its motion to dismiss, the government argued that

Mr. Pohl’s § 1204 claim was barred by the six-year stat­

ute of limitations under 28 U.S.C. § 2501. Def. Mot. at

9—11, Pohl ECF No. 11. Section 2501 provides in rele­

vant part: “Every claim of which the . . . Court of Fed­

eral Claims has jurisdiction shall be barred unless the

petition thereon is filed within six years after such

claim first accrues.” 28 U.S.C. § 2501. According to the

government, Mr. Pohl’s claims accrued in 1999, the

date of discharge, because Mr. Pohl knew at the time of

discharge that his disability was permanent. Def. Mot.

at 9-11, Pohl ECF No. 11.

Mr. Pohl did not challenge that he knew that he

was permanently disabled as of discharge, PI. Resp. Br.

at 4—6, Pohl ECF No. 12, and he “readily admits he was

unfit for flight duty” and that “all parties agree that

[he] was retired with a permanent disability,” id. at 5.

App. 8

He argued instead that the Air Force erred by failing

to give him a board medical evaluation review and fail­

ing to process him correctly before discharge. Id. As a

result, Mr. Pohl asserts that his claim did not accrue

until July 5, 2020, when the Record Correction Board

denied his request for a record correction. Id.

The Court of Federal Claims granted the motion

to dismiss, finding that Mr. Pohl’s claim was barred by

the statute of limitations and that the court thus

lacked subject matter jurisdiction over the claims.

Decision, at *1, *7-9. The court determined that, under

Federal Circuit case law, Mr. Pohl’s claim accrued at

the time of discharge, in 1999. The Court of Federal

Claims found that Mr. Pohl waived his right to board

review in 1999 because Mr. Pohl “knew he was perma­

nently disabled” at the time of discharge, April 1991,

id. at *8, and “[e]ven if [he] did not have the requisite

knowledge,” he voluntarily transferred to the Retired

Reserve, id. at *9.

The court explained that Mr. Pohl’s “counsel ad­

mitted at oral argument, and the Complaint makes

clear, that Mr. Pohl knew he was permanently disa­

bled” at the time of discharge. Id. at *8 (citing Hr’g Tr.

at 19:1-6, Pohl ECF No. 18; Complaint at ^[ 13). The

court noted that Mr. Pohl’s assertion that he was una­

ware of the service-connected disability until the VA’s

2018 rating was “incredulous” because Mr. Pohl was

the one who self-reported the 1991 incident to the VA.

Id. The court determined that the statute of limita­

tions could not be equitably tolled or waived, and that

App. 9

the court was further divested of jurisdiction over his

lawsuit. Id. at *9.

Mr. Pohl appeals. We have jurisdiction under 28

U.S.C. § 1295(a)(3).

Discussion

Whether the Court of Federal Claims has jurisdic­

tion over a claim is a question of law that we review de

novo. Jones u. United States, 30 F.4th 1094, 1100 (Fed.

Cir. 2022). The plaintiff bears the burden of establish­

ing jurisdiction by a preponderance of the evidence.

Diaz v. United States, 853 F.3d 1355, 1357 (Fed. Cir.

2017). We review the court’s findings of fact relating to

jurisdictional issues for clear error. Jones, 30 F.4th at

1100. “If the Court of Federal Claims’ findings of fact

are plausible in light of the record viewed in its en­

tirety, this court may not reverse them even though

convinced that had it been sitting as the trier of fact, it

would have weighed the evidence differently.” Bernard

v. United States, 98 F. App’x 860, 861 (Fed. Cir. 2004)

(cleaned up).

“To fall within the jurisdiction of the Court of Fed­

eral Claims, a claim against the United States filed in

that court must be ‘filed within six years after such

claim first accrues.’” Jones, 30 F.4th at 1100 (quoting

28 U.S.C. § 2501 (1988)). This deadline requirement is

jurisdictional and cannot be equitably tolled or waived.

Reoforce, Inc. u. United States, 853 F.3d 1249, 1264

(Fed. Cir. 2017).

App. 10

Generally, “claims of entitlement to disability re­

tirement pay do not accrue until the appropriate board

either finally denies such a claim or refuses to hear it.”

Real u. United States, 906 F.2d 1557, 1560 (Fed. Cir.

1990). “The decision by the first statutorily authorized

board which hears or refuses to hear the claim is the

triggering event.” Id. Where the service member has

“neither requested nor been offered consideration by a

retiring board prior to discharge,” a corrections board’s

later denial of his petition is generally the “triggering

event.” Id.2

But there is an exception to that general rule. Un­

der certain circumstances, a service member’s failure

to request a review by a retiring board before discharge

may have the same effect as a refusal by the service to

provide board review. Id. That failure can trigger the

statute of limitations when the service member has

sufficient “knowledge of the existence and extent of his

condition at the time of his discharge . . . to justify con­

cluding that he waived the right to board review of the

service’s finding of fitness by failing to demand a board

prior to his discharge.” Id. at 1562 (footnote omitted).

In a footnote, the Real court added: “This assumes that

the service member has been informed that the failure

to demand a board prior to discharge will result in his

being ineligible for disability benefits from the service.”

Id. at 1562 n.6.

2 The “retiring board” is now the PEB. Chambers, 417 F.3d

at 1225 n.2.

App. 11

This footnote suggests that, before the statute of

limitations is triggered, the service member must be

both (1) aware of his condition and (2) made aware that

his failure to demand a board review before discharge

will result in potentially missing out on disability ben­

efits. Later cases from this court, however, have not ref­

erenced Real’s footnote 6. A 2003 nonprecedential case

did allude to this two-part framework—but without

citing Real’s footnote 6—stating: “[W]hen a service

member is sufficiently alerted to the possible existence

of a disability to ask for or appear before a Retiring

Board, the awareness of the disability coupled with

awareness of the review board process causes the dis­

ability claim to accrue at that time.” Purvis v. United

States, 77 F. App’x 512, 514 (Fed. Cir. 2003) (emphasis

added) (cleaned up). Yet other cases have discussed

only the first issue—awareness of the condition. See,

e.g., Ullmann v. United States, 123 F. App’x 970, 973

(Fed. Cir. 2004) (focusing on the service member’s

knowledge of the permanent disability). In the 2005

precedential Chambers case, this court appeared to in­

terpret Real as requiring only awareness of the condi­

tion—essentially equating awareness of the condition

with awareness of entitlement to disability retirement

pay. Indeed, the Chambers court stated—without men­

tioning Real’s footnote 6—that the service member’s

failure to demand a Board Review “can invoke the stat­

ute of limitations when the service member has suffi­

cient actual or constructive notice of his disability, and

hence, of his entitlement to disability retirement pay.”

Chambers, 417 F.3d at 1226 (emphasis added) (citing

Real, 906 F.2d at 1562).

App. 12

As the foregoing indicates, applicable case law is

not clear whether the exception requires satisfaction

of: (1) an awareness of the condition, and (2) an aware­

ness that the failure to demand a board review before

discharge will result in potentially losing disability

benefits. For its part, the Court of Federal Claims here

did not expressly consider the issue, but it appears to

have concluded that the second element, awareness to

demand a board review, was not a requirement under

Real or Chambers. Decision, at *8 and n.5. In any

event, the court also appears to have concluded that

Mr. Pohl was aware through the December 1998 com­

munications that he needed to seek a PEB as part of

the retirement disability process. Id. at *8.

We need not resolve the legal issue here, because

the record shows that Mr. Pohl was made aware of the

board review process and potential loss of entitlement

to disability benefits pay. In June 1998, the Air Force

doctor that evaluated Mr. Pohl noted that, if Mr. Pohl’s

primary care doctor recommended long term disability,

Mr. Pohl would need to return for reevaluation by an

MEB. Administrative Record at 106, Pohl ECF No. 7;

Decision, at *4; Complaint at f 14. And shortly there­

after, the Air Force informed Mr. Pohl of his right to a

PEB; referred to Department of Defense Directive

1332.18 (Separation or Retirement for Physical Disa­

bility) and Department of Defense Instruction 1332.38

(Physical Disability Evaluation); and warned him that

a failure to elect to have his case reviewed by a PEB

would “constitute a waiver of this right.” AppxlOO.

App. 13

We also agree with the Court of Federal Claims

that Mr. Pohl had “sufficient actual or constructive no­

tice of his disability.” Chambers, 417 F.3d at 1226. The

issue is whether the service member’s “knowledge of

the existence and extent of his condition at the time of

his discharge was sufficient to justify concluding that

he waived the right to board review of the service’s

finding of fitness by failing to demand a board prior to

his discharge.” Id. (quoting Real, 906 F.2d at 1562). To

determine if the service member had such knowledge,

we look to the relevant statutory requirements for dis­

ability retirement—here, 10 U.S.C. § 1204. Id. Under

§ 1204, a service member may be retired with disabil­

ity retirement pay if, among other things, the disability

is permanent and stable; is the proximate result of per­

forming active duty or inactive-duty training or is the

result of an injury incurred or aggravated in the line of

duty while performing active duty or inactive-duty

training; and is not a result of his intentional miscon­

duct. 10 U.S.C. § 1204. The inquiry here is whether Mr.

Pohl knew that he had a permanent disability that was

service-connected and not a result of his intentional

misconduct. Cf. Chambers, 417 F.3d at 1226 (explain­

ing that the inquiry under the similar requirements

of § 1201 was whether “Chambers knew that he was

entitled to disability retirement due to a permanent

disability that was not a result of his intentional mis­

conduct and was service-connected”).

Mr. Pohl argues in his informal brief that in 1999

he was unaware of a disability that would entitle him

to disability retirement benefits because his “condition

App. 14

was not medically permanent and stable in 1999,” not­

ing that he had additional surgeries and that he was

still under the care of his doctor at that time. Appel­

lant’s Br. 2. He also appears to argue that he had no

reason to believe in 1999 that his back issues were tied

to his injury from the 1991 training incident. Id. at 6.

The record does not support these arguments.

Mr. Pohl’s Complaint alleged that he was “in con­

stant pain” after his 1991 accident; that in 1997, he

was rendered “incapacitated” after further injuring his

back; and that his doctor identified significant issues

with his back and diagnosed several back injuries.

Complaint at 1 13. Mr. Pohl’s counsel also stated at

oral argument that Mr. Pohl knew that he was disabled

at the time of his discharge. Hr’g Tr. at 19:1-6, Pohl

ECF No. 18. Mr. Pohl also admitted that “he was unfit

for flight duty” and that “all parties agree that Mr. Pohl

was retired with a permanent disability.” PI. Resp. Br.

at 5, Pohl ECF No. 12. And as for knowledge of serviceconnection, as the Court of Federal Claims explained,

Mr. Pohl himself suggested below that he understood

his doctor’s 1997 “finding of a ‘copious amount of frag­

mented bony overgrowth’ on his vertebrae ... to be ev­

idence of‘the extent of the 1991 injury,’” and Mr. Pohl

himself pointed to the 1991 accident before the VA to

obtain a service-connected disability rating. Decision,

at *8 (citing Complaint at % 17; Pl.’s Mot. at 3, 8, Pohl

ECF No. 8; Hr’g Tr. at 11:16-12:1 and 43:4-12, Pohl

ECF No. 18). We conclude that the Court of Federal

Claims did not clearly err in finding that Mr. Pohl was

App. 15

sufficiently aware of his permanent, service-connected

disability in 1999, the date of his discharge.3

We hold that the Mr. Pohl’s claim for disability re­

tirement rights accrued in 1999, at which time he had

actual and constructive knowledge of his § 1204 bene­

fits, and the statutory six-year statute of limitations

began to run. Based on the foregoing, we affirm the

judgment of the Court of Federal Claims that it lacked

jurisdiction over Mr. Pohl’s claims. We have considered

Mr. Pohl’s other arguments and find them unpersua­

sive.

AFFIRMED

Costs

No costs.

3 Mr. Pohl also argues that the Court of Federal Claims erred

by not focusing on whether the Air Force was aware that Mr. Pohl

was permanently disabled. Appellant’s Br. 3. But “[i]t is a plain­

tiff’s knowledge of the facts of the claim that determines the ac­

crual date.” Young v. United States, 529 F.3d 1380, 1385 (Fed Cir.

2008) (emphasis added).

App. 16

United States Court of Appeals

for the Federal Circuit

MICHAEL G. POHL,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

2022-2080

Appeal from the United States Court of Federal

Claims in No. l:21-cv-01482-CNL, Judge Carolyn N.

Lerner.

JUDGMENT

This Cause having been considered, it is

Ordered and Adjudged:

AFFIRMED

FOR THE COURT

April 18, 2023

Date

Is/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

App. 17

In the United States Court of Federal Claims

MICHAEL G. POHL,

Plaintiff,

v.

THE UNITED STATES

OF AMERICA,

No. 21-1482C

(Filed: June 21, 2022)

Defendant.

Sean Timmons, Houston, TX, for Plaintiff.

Sonia Williams Murphy, Commercial Litigation Branch,

Civil Division, Department of Justice, Washington, DC,

for Defendant. With her on the briefs was Ryan V.

Haslam, Of Counsel.

OPINION AND ORDER

LERNER, Judge.

This is an action for military pay, disability retire­

ment pay, reimbursement of expenses, and other bene­

fits that Plaintiff, Michael G. Pohl, alleges the U.S. Air

Force Board for the Correction of Military Records

(“AFBCMR”) improperly denied given the injuries he

suffered while on military duty. Compl. f 1, ECF No. 1.

The case is before the Court on the Government’s Mo­

tion to Dismiss pursuant to Rule 12(b)(1) of the U.S.

Court of Federal Claims (“RCFC”) and the parties’

Cross-Motions for Judgment on the Administrative

Record. See Def.’s Mot. to Dismiss and Cross Mot. for J.

on the Admin. R., ECF No. 11 (“Def.’s Mots.”); Pl.’s Mot

App. 18

for J. on the Admin R., ECF No. 8 (“Pl.’s Mot.”). On Feb­

ruary 28, 2022, the case was transferred to the under­

signed. Order, ECF No. 14. The Court held oral

argument on the parties’ motions on April 20,2022. See

Hr’g Tr., ECF No. 18. Subsequently, on May 11, 2022,

Plaintiff filed a “Motion for Leave to File Supplemental

Affidavit from Plaintiff in Support for Plaintiff’s Mo­

tion for Judgment on the Administrative Record”

(“Plaintiff’s Motion to Supplement”). Pl.’s Mot. to

Suppl., ECF No. 19.

Plaintiff moves for judgment on the administra­

tive record, arguing that the AFBCMR unlawfully de­

nied him disability retirement pay under 10 U.S.C.

§ 1204. See Pl.’s Mot. Specifically, Plaintiff contends

that the AFBCMR’s actions were arbitrary and capri­

cious when it ruled that (1) Mr. Pohl failed to show er­

ror in the Air Force’s decision that required a medical

retirement; and (2) Plaintiff was not eligible for a De­

fense Department Form 214, Certificate of Release or

Discharge from Active Duty (“DD-214”) at the time of

his retirement or a correction to his narrative reason

for separation. Id. at 14-16. Plaintiff further argues

that the AFBCMR’s denial of disability retirement

benefits amounted to substantive and procedural due

process violations under the Fifth Amendment to the

U.S. Constitution. Compl.

34-41. Mr. Pohl seeks

various forms of relief, including declaratory and in­

junctive relief with respect to all claims in his Com­

plaint, as well as back pay, allowances, out-of-pocket

medical expenses, other medical benefits to which he

App. 19

claims entitlement under the law, and reasonable at­

torney’s fees. Id. at 11.

The Government moves to dismiss Plaintiff’s

claims for lack of subject matter jurisdiction. See Def.’s

Mots, at 8-12. It argues that the Court should dismiss

the action because the statute of limitations has run

on Plaintiff’s claims and because the Court does not

have jurisdiction over constitutional due process

claims. Id. at 7-12. Alternatively, the Government

moves for judgment on the administrative record. See

id. at 12.

The Court is sympathetic to Mr. Pohl’s situation

and recognizes the role that stigmas surrounding dis­

abilities in the military may have played in his case.

However, for the reasons set forth below, the Court

finds that the statute of limitations has lapsed, and

therefore it lacks subject matter jurisdiction over

Plaintiff’s claims. Accordingly, the Government’s Mo­

tion to Dismiss is GRANTED, and the parties’ CrossMotions for Judgment on the Administrative Record

are DENIED as moot. Plaintiff’s Motion to Supple­

ment is also DENIED.

I.

Background

A. Statutory and Regulatory Framework

This case involves the application of several mili­

tary policies and regulations associated with deter­

mining servicemembers’ entitlement to disability

retirement pay under 10 U.S.C. § 1204. Section 1204

App. 20

allows members of the armed forces who were on active

duty for 30 days or less, or on inactive-duty training,

to retire with retired pay if the member “is unfit to

perform the duties of his office, grade, rank, or rating

because of physical disability.” 10 U.S.C. § 1204 (2018).

In relevant part, the statute provides that the Secre­

tary of Defense may retire a servicemember with re­

tired pay if the Secretary determines that: (1) the

disability is permanent and stable; (2) the disability is

the result of an injury “incurred or aggravated in [the]

line of duty . . . while performing active duty or inac­

tive-duty training”; (3) “the disability is not the result

of the member’s intentional misconduct or willful ne­

glect, and was not incurred during a period of unau­

thorized absence”; and (4) “the disability is at least 30

percent under the standard schedule of rating disabil­

ities in use by the Department of Veterans Affairs at

the time of the determination.” § 1204(l)-(4).

The Integrated Disability Evaluation System

(“IDES”) is the military’s “mechanism for implement­

ing retirement or separation because of physical dis­

ability.” Department of Defense Directive (“DoD

Directive”) 1332.18, Separation or Retirement for Phys­

ical Disability, part 3.1 (Nov. 4,1996); Def.’s Mots, at 5;

Def.’s Mots, at App. 2. It consists of four elements: (1)

medical evaluation, including by a medical evaluation

board (“MEB”); (2) a physical disability evaluation, in­

cluding by a physical evaluation board (“PEB”) and ap­

pellate review; (3) counseling; and (4) final disposition.

See DoD Directive 1332.18, part 3.2. The standard for

determining unfitness due to physical disability is

App. 21

“unfitness to perform the duties of the member’s office,

grade, rank or rating because of disease or injury.” Id.

at part 3.3. Servicemembers found to be unfit are al­

lowed an honorable discharge. See Air Force Instruc­

tion (“AFI”) 36-3209, Separation and Retirement

Procedures for Air National Guard and Air Force Re­

serve Members, part 3.14 (Aug. 15, 1994); Def.’s Mots,

at App. 109. Servicemembers having at least 15 years

of experience can also elect to transfer to the Retired

Reserve as an alternative to being separated due to a

physical disqualification. 10 U.S.C. § 1273la(a) (2022);

see also AFI 36-3209, part 5.8.2.7; Def.’s Mots, at App.

154.

The Air Force uses line of duty determinations to

evaluate eligibility for physical disability retirement or

separation. AFI 36-2910, Line ofDuty (Misconduct) De­

termination, 'll 1.1.1.1; Def.’s Mots, at App. 11. A mem­

ber’s commander makes a line of duty determination

at the time of injury when (1) the member is unable to

perform military duties for more than twenty-four

hours; (2) there is a likelihood of a permanent disabil­

ity; (3) the member dies; or (4) the Reserve member,

regardless of the ability to perform military duties, ob­

tains medical treatment. AFI 36-2910, part 1.3; Def.’s

Mots, at App. 11.

The Air Force issues a DD-214 in certain cases of

separation from active service. The DD-214 informs

military personnel and government agencies about the

circumstances of a servicemember’s separation in or­

der to properly process their discharge. AFI 36-3202,

2.2 (May 20,1994); AR 164. The Air Force relies on AFI

App. 22

36-3202, Table 2, to determine whether to issue a DD214 and what narrative reason for the member’s sepa­

ration to list on the form. AFI36-3202, Table 2; AR 163.

B. Facts

1. Plaintiff’s Medical History

Mr. Pohl joined the Army in 1982, serving three

years on active duty before joining the Air Force Re­

serve as a flight engineer in 1985. Compl. 1 8. In April

1991, Plaintiff allegedly fell 100 feet into a ravine and

sustained a back injury during an Air Force training

program; course leaders and on-site medical techni­

cians treated him at the time. Id. ‘I 10. He did not re­

ceive or request further treatment, and he continued

and completed the 17-day training course. Id.

After returning home from the course, Plaintiff’s

wife noted that he had significant bruising. Id. ‘ft 11.

The next day, he visited the on-base hospital where the

flight surgeon on duty examined him and allegedly

stated that “he [the surgeon] was sure that he would

find something wrong if Mr. Pohl was examined fur­

ther,” and that such further examination “would put

Mr. Pohl on Duties Not Including Flying (“DNIF”) sta­

tus and possibly end Mr. Pohl’s military career.” Id.

^ 12. Fearing the loss of his career, Mr. Pohl opted to

leave the hospital without further testing. Id. He

treated his injuries on his own with pain medication

and heat therapy per his doctor’s suggestion. Id.

App. 23

No diagnosis was made regarding a back or other

injury attributed to the April 1991 training incident.

Id. ^ 13. Indeed, the record is completely devoid of any

contemporaneous medical documentation of the April

1991 incident beyond Plaintiff’s representation that

he visited the on-base hospital but left without a diag­

nosis or treatment. Plaintiff’s counsel explained at

oral argument that Mr. Pohl’s decision not to seek

treatment was influenced by a severe stigma against

reporting injuries that was pervasive in the military in

the 1990s, and which remains today. Hr’g Tr. at 28:414. Counsel also noted that servicemembers in the

1990s were “actively encouraged not to report deficien­

cies in their medical condition because that was the

philosophy of the military at the time” Id. at 28:10-12.

In 2016, well over two decades later, Mr. Pohl selfreported to the Department of Veterans Affairs (VA)

that he was disabled as a result of the April 1991 inci­

dent. Compl. <fl<][ 17,19. He did so to obtain documenta­

tion connecting that incident to his disability. See id.

<W 18-20; Pl.’s Mot. at 3; Hr’gTr. at 12:2-25; 43:4-12.

There is no evidence that independently verifies this

claim. Mr. Pohl’s self-report that the April 1991 injury

caused his back condition was the sole basis upon

which the VA made its determination in his case. See

AR 8—14; Hr’g Tr. at 43:4—12. As counsel conceded at

oral argument, “the VA considered the 1991 injury

alone for the assessment of the 100 percent disability

rating that formed the basis” for his application to the

AFBCMR and did not consider other relevant injuries

that appear in the record. Hr’g Tr. at 43:4-12.

App. 24

On October 25,2018, based on Plaintiff’s own rep­

resentations, the VA found that Mr. Pohl’s lower back

condition was “service-connected” as a result of the

April 1991 incident and assigned him a disability rat­

ing of 40%. AR 8-14. Plaintiff alleges, without provid­

ing any supporting documentation, that the VA

performed a medical examination in March 2017, and

the doctor noted in the medical history that Mr. Pohl’s

lower back condition began during training in 1991

when he fell into a ravine. Pl.’s Mot. at 3-4. Addition­

ally, Plaintiff points to a separate October 25, 2018

Deferred Rating Decision from the VA—also not con­

tained in the administrative record before the AFBCMR—which states that “[t]he preponderance of the

evidence supports an injury during/on [the April 1991]

active duty for training period.” Pl.’s Reply and Resp.

at Ex. A. Plaintiff further alleges, again failing to

identify any documentation in the record, that “Mr.

Pohl’s rating was re-examined and increased to 70%

with 100% unemployability effective December 2018.”

Compl. f 19.

After the April 1991 incident, Plaintiff continued

as a reservist with the Air Force while working at a

civilian job with a commercial airline. Id. *][ 13. Nearly

six years later, in December 1996, Plaintiff claims he

“aggravated the injury” he allegedly sustained in

April 1991 by lifting a heavy object at his civilian job

and became “incapacitated.” Id. Mr. Pohl’s Standard

Form 502—an Air Force medical record completed by

Plaintiff’s medical provider, Dr. Michael F. Coscia,

M.D.—states that he “apparently sustained an

App. 25

on-the-job-injury while working for his civilian em­

ployer on 4 Dec 96,” and “[a]fter apparent reinjury

while lifting his son at home on 5 May 97, he was

placed in DNIF on 17 May 97 for lower back sprain.”

AR 105. Medical records also reflect that Plaintiff was

injured in a motor vehicle accident in 1995. E.g., AR

113. Despite these other injuries in his medical record,

Mr. Pohl only reported the April 1991 incident for the

VA’s consideration. See Hr’g Tr. at 43:4-12.

On December 3, 1997, Plaintiff’s civilian medical

provider, Dr. Coscia, identified a number of issues with

his L5 vertebrae. See AR 113-121. Plaintiff also al­

leges, though the documentation does not appear to

support, that Dr. Coscia determined that his x-rays “re­

vealed the extent of the 1991 injury,” Compl. % 17, be­

cause they showed a “copious amount of fragmented

bony overgrowth,” AR 120. Plaintiff contends this in­

dicates an earlier injury. Hr’g Tr. at 11:16-25, 12:1.1

Mr. Pohl subsequently had surgery in 1997 for a 360degree fusion of his L5-S1 vertebrae and was diag­

nosed with additional spinal injuries. Compl. % 13. He

underwent additional back surgeries in 2001 and 2003.

Id.

1 Dr. Coscia’s comment that Mr. Pohl’s vertebrae showed a

“copious amount of fragmented bony overgrowth” was made in re­

sponse to observing the vertebrae during surgery, and not in con­

nection with his review of Plaintiff’s x-rays, as Plaintiff states in

his Complaint. AR 120; see also AR 114-15; Compl. 1 17.

App. 26

2. Plaintiffs Retirement

On November 6, 1997, Plaintiff was placed on a

profile that rendered him “not qualified for deploy­

ment” and “not qualified for reassignment.” AR 146.

On June 27,1998, Captain Peter K. Tiernan, a U.S. Air

Force doctor, reviewed Mr. Pohl’s medical file and noted

that in order to begin the process to return to duty,

Mr. Pohl needed to provide documentation from his

primary care provider. Compl. 1 14; see AR 106. Dr.

Tiernan noted that “Mil the probable event that the

patient’s provider recommends long-term disability,

the patient will need to return for reevaluation” by a

medical evaluation board (“MEB”). Compl. 'll 14; see AR

106. Mr. Pohl never obtained documentation from his

primary care provider or a reevaluation from a MEB.

Compl. 1 14. He claims that he was never offered such

an opportunity. Pl.’s Reply and Resp. at 5.

The profile that established Mr. Pohl as “not qual­

ified for deployment” expired one year later, on Novem­

ber 6,1998. See AR 102,144-46. On December 8,1998,

the Air Force sent Plaintiff via certified mail “all nec­

essary paperwork for world wide duty determination.”

AR 102. On December 14, 1998, his wife signed a re­

ceipt for the certified mail. AR 102—03. The record also

shows that later that week, his wife called the Air

Force to discuss the paperwork. AR 102. On December

21, 1998, the Air Force mailed Mr. Pohl two memo­

randa: a “Required Medical Documentation Update,”

and “Selection of Rights to Physical Evaluation Board

(PEB)” (collectively, “the December 21 communica­

tions”). AR 136-37. The “Required Medical

App. 27

Documentation Update” memorandum requested ad­

ditional medical documentation regarding Mr. Pohl’s

prognosis, limitations, complications, treatments, and

medications. AR 136.

The Government claims that despite multiple

communications with Mr. Pohl and extensions of time,

he failed to produce the documentation. Def.’s Mots, at

3; see AR 102. Plaintiff claims that “he did not receive

any additional communications from the Air Force for

his medical documentation” and instead “was jetti­

soned out of the Air Force with no line of duty determi­

nation and no opportunity to go before a medical

evaluation board.” Pl.’s Reply and Resp. at 5. The rec­

ord shows that the Air Force sent the December 21

communications via regular mail rather than certified

mail, so there is nothing in the record to show whether

Mr. Pohl actually received the December 21 communi­

cations. See AR 102.

The December 21 communications contained in­

formation about the right to a PEB and attached the

forms necessary to request one. AR 102,136-37. In par­

ticular, the “Selection of Rights to a PEB” memoran­

dum stated that failing to return the “Selection of

Rights to PEB” form constitutes a waiver of that right

and triggers discharge proceedings. AR 137. Another

Air Force memorandum (with an unclear date) stated

that Mr. Pohl “did not make an election to have the

case reviewed by the [informal PEB],” and therefore

recommended “non-retention.” AR 97.

App. 28

On June 22, 1999, the Air Force declared Plaintiff

medically disqualified for service due to his inability to

be deployed or perform his duties as a flight engineer.

AR 213. On September 9,1999, Plaintiff received noti­

fication of his pending administrative discharge under

AFI 36-3209, paragraph 3.14, Physical Disqualifica­

tion. AR 89. The record reflects that Plaintiff returned

a signed acknowledgement of having received the dis­

charge notification, AR 94, and submitted Air Force

Form 131, Application for Transfer to the Retired Re­

serve, on September 24,1999, AR 91. A separate mem­

orandum from Air Force Reserve Command, dated

September 3,1999, states that Mr. Pohl was eligible for

retirement with benefits upon being separated due to

his physical disqualification. AR 93. An October 27,

1999 Reserve Order EK-0612 made Mr. Pohl’s “Reserve

Retired List” status effective October 1,1999. AR 15.2

Plaintiff alleges that his DD-214 did not reflect a

medical disability rating, and that he did not go

through any disability processing prior to retirement

or turn in his military flight gear.3 Compl. H 15. Fur­

ther, medical personnel never physically evaluated

2 Plaintiff claims, inconsistent with the record, that Reserve

Order EK-0612 “involuntarily” retired him and transferred him

to the Retired Reserve. Compl. <J[ 15; Pl.’s Mot. at 3; AR 15.

3 It is not clear when Plaintiff was issued a DD-214. The

pleadings and the record seem to focus on the issue that Plaintiff

was not issued a DD-214 “at the time of retirement.” E.g., Compl.

1 22. Plaintiff seems to have been issued the form at some point

after his retirement, but the exact date cannot be determined be­

cause relevant pages in the record are largely illegible photocop­

ies. AR 76-77.

App. 29

him or placed him on the Temporary Disability Retired

List (“TDRL”). Id. He states that his out-processing

was done entirely remotely and did not allow for the

PEB to review his condition. Id.

C. AFBCMR Decision

On November 16, 2018, after being advised by fel­

low veterans that his DD-214 “did not reflect the true

reason the military released [him] from service obliga­

tion as reflected in the ‘Reason’ section of the driving

authority of Reserve Order EK-0612 [sic],” AR 17,

Plaintiff applied for correction of his military record

with the AFBCMR, AR 2,7. He requested a DD-214 to

indicate that he was “medically discharged” for a ser­

vice-connected injury that rendered him permanently

disabled. AR 2, 7. The issue, according to Plaintiff, was

that his DD-214 did not reflect the actual reason for

his discharge as shown on the October 27, 1999 Re­

serve Order EK-0612. AR 2, 15. Instead, his DD-214

listed the narrative reason for his separation as “Com­

pletion of Required Active Duty Training.” AR 3. Plain­

tiff claims that he waited until 2018 to apply for

disability retirement with the AFBCMR because he

did not know he was eligible to do so until he received

the VA’s determination that he was disabled through a

service-connected injury, namely, the April 1991 inci­

dent. See, e.g., Hr’g Tr. at 12:2—25. This despite the fact

that it was Plaintiff who self-reported to the VA that

his back injury was the sole result of the 1991 incident.

App. 30

Plaintiff made three main arguments before the

AFBCMR. First, Mr. Pohl claimed that “[t]he Air Force

failed to follow proper IDES processing procedures” at

discharge because he “was forced into a medical retire­

ment with no medical examination, no chance to re­

quest a waiver [via AFI 48-123, Medical Examinations

and Standards], and no opportunity to review his DD

Form 214 to ensure it was accurate prior to being gen­

erated” and that the Air Force failed to comply with

AFI 48-123 by ignoring the “Presumption of Fitness,”

“Disability Information,” and “Mandatory Examina­

tions.” AR 2, 5. Second, Plaintiff alleged that he “did

not receive his mandatory medical examination; thus,

he was never properly evaluated for the injury he suf­

fered in 1991.” AR 5. Finally, he contended that the

AFBCMR Medical Advisor erred by failing to consider

the proper rule in Table 2 of AFI 36-3202, which man­

dates the issuance of a DD-214, and applying the

wrong rule (Rule 3), which Plaintiff alleged did not

apply to his case. AR 5.

In July 2020, the AFBCMR determined that Plain­

tiff did not establish by a preponderance of the evi­

dence his claim that he discovered the “alleged error or

injustice” within the three-year filing requirement un­

der 10 U.S.C. § 1552 and AFI 36-260. AR 4-5. There­

fore, his filing with the AFBCMR was untimely. Id. The

AFBCMR further found that Plaintiff was “not the

victim of an error or injustice” because “a preponder­

ance of the evidence [did] not substantiate [Plaintiff’s]

contentions,” and it disagreed with his argument that

the Medical Advisor applied the wrong rule of AFI

App. 31

36-3202. AR 2-7. The AFBCMR concurred with and

relied upon an advisory opinion submitted by the

AFBCMR Medical Advisor, who found that Plaintiff

“chose to apply for early retirement in lieu of discharge

for physical disability,” which was the reason his case

was “never processed through the disability evaluation

system to determine his physical disability.” AR 166.

In her January 13, 2020 advisory opinion for the

AFBCMR, the Medical Advisor determined that there

was (1) “no error or evidence to warrant a change to

the narrative reason of the DD 214”; (2) “insufficient

evidence to support a medical retirement”; and (3) “in­

sufficient evidence to find the service member’s back

issue was a result of a service connected injury.” AR

165. The Medical Advisor found “no medical documen­

tation of any injury that occurred in April 1991.” AR

166-67. She noted that Plaintiff’s medical records

showed he injured his back in a motor vehicle accident

in the mid-1990s and when he lifted a seventy-pound

aircraft battery during his civilian job, both of which

occurred while he was not on active-duty military or­

ders, and that he “denied any military accidents or in­

jury.” Id. Therefore, the Medical Advisor “found no

evidence to support a medical retirement or a change

in [Plaintiff’s] narrative reasoning [on his DD-214] to

reflect a physical disability.” AR 167.

The Medical Advisor attached a December 26,

2019 letter from the Air Force Reserve Personnel Cen­

ter, to which the AFBCMR also referred in making its

decision. AR 4,161. The letter explained that Plaintiff

was ineligible for a DD-214 at the time of his

App. 32

retirement because he was not on active-duty orders

for ninety continuous calendar days leading up to his

retirement, and it recommended that the AFBCMR

deny Plaintiff’s request for a DD-214. AR 161. The let­

ter cites AFI 36-3202, Certificate of Release or Dis­

charge from Active Duty, Table 2. Id.

D. The Present Complaint

On June 16, 2021, Mr. Pohl filed a Complaint in

this Court. Compl. He alleges that he met the elements

of 10 U.S.C. § 1204 for disability retirement pay, and

therefore the AFBCMR’s decision that he was not en­

titled to a medical retirement was arbitrary and capri­

cious. Compl. H 30-32; Pl.’s Mot. at 7, 8-17. He further

alleges that the AFBCMR acted arbitrarily and capri­

ciously in determining that the Air Force did not err

when issuing his DD-214 because the AFBCMR cited

the wrong rules of the applicable Air Force regulation

in its decision. Compl. f 39; Pl.’s Mot. at 16-17. Finally,

Mr. Pohl asserts that he had liberty and, property

rights in his disability retirement, rendering the denial

of his retirement and medical benefits a violation of his

constitutional substantive and procedural due process

rights. Compl. 33-35, 38, 40.

II.

Discussion

A. Motion to Dismiss for Lack of Subject

Matter Jurisdiction

The Government moves to dismiss the Complaint

pursuant to RCFC 12(b)(1), arguing that the Court

App. 33

lacks jurisdiction to hear any of Plaintiff’s claims be­

cause they are untimely and because the Court gener­

ally does not have jurisdiction to hear Plaintiff’s due

process claims. Def’s Mots, at 7-12.

“Jurisdiction is a threshold matter and a case can

proceed no further if the court lacks jurisdiction to

hear it.” Schmidt v. United States, 89 Fed. Cl. Ill, 118

(2009) (citing Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 94 (1998)). Therefore, the Court has the duty

“to examine its jurisdiction over every claim before it

assumes jurisdiction over the claim.” RHI Hldgs., Inc.

v. United States, 142 F.3d 1459, 1461 (Fed. Cir. 1998).

The Tucker Act, 28 U.S.C. § 1491, is the primary source

of this Court’s jurisdiction. It waives the United States’

sovereign immunity for claims against the United

States that are founded upon the Constitution, an Act

of Congress, an executive department regulation, or an

express or implied contract with the United States. See

28 U.S.C. § 1491(a)(1) (2018). The Tucker Act is a

purely jurisdictional statute that does not itself pro­

vide a cause of action. Chambers v. United States, 417

F.3d 1218, 1223 (Fed. Cir. 2005). Accordingly, for a

claim to fall within the scope of the Tucker Act, “a

plaintiff must identify a separate source of substantive

law that creates the right to money damages.” Fisher

v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)

(first citing United States v. Mitchell, 463 U.S. 206,

216-17 (1983); and then citing United States u. Testan,

424 U.S. 394, 398 (1976)). In other words, the plaintiff

must identify a “money mandating” source of law. Id.

App. 34

When considering a motion to dismiss for lack of

subject matter jurisdiction, the Court treats all factual

allegations in the complaint as true and construes

those allegations in the light most favorable to the

plaintiff. Estes Express Lines v. United States, 739 F.3d

689, 692 (Fed. Cir. 2014) (citing Cedars-Sinai Med. Ctr.

v. Watkins, 11 F.3d 1573,1583-84 (Fed. Cir. 1993)); see

Schmidt, 89 Fed. Cl. at 119. However, the plaintiff still

bears the burden to prove by a preponderance of the

evidence that the Court has jurisdiction over his

claims. Schmidt, 89 Fed. Cl. at 118 (citing Reynolds v.

Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.

Cir. 1988)); see also Montiel v. United States, 118 Fed.

Cl. 283, 287 (2014) (“The plaintiff. . . must prove any

disputed jurisdictional facts by a preponderance of the

evidence.”). When a party challenges the jurisdictional

facts alleged in the complaint, as is the case here, the

Court may engage in fact finding to resolve factual dis­

putes and determine whether the plaintiff has estab­

lished jurisdictional facts by a preponderance of the

evidence. Reynolds, 846 F.2d at 747; see Carter v.

United States, 62 Fed. Cl. 66, 69 (2004) (citing Toxgon

Corp. v. BNFL, Inc., 312 F.3d 1379, 1383 (Fed. Cir.

2002)). When this occurs, the Court may consider other

relevant evidence to resolve factual disputes. Reynolds,

846 F.2d at 747; see also The George Fam. Tr. ex rel.

George v. United States, 91 Fed. Cl. 177,190 (2009).

App. 35

1. Statute of Limitations

a. When the statute of limitations

began to run

The Court lacks subject matter jurisdiction in this

case because the statute of limitations has expired.

Under 28 U.S.C. § 2501, “[e]very claim of which the

United States Court of Federal Claims has jurisdiction

shall be barred unless the petition thereon is filed

within six years after such claim first accrues.” A claim

under the Tucker Act accrues when “all events have

occurred to fix the Government’s alleged liability, enti­

tling the claimant to demand payment and sue [in this

Court] for his money.” Chambers, 417 F.3d at 1223

(quoting Martinez u. United States, 333 F.3d 1295,1303

(Fed. Cir. 2003) (en banc)). In general, military disabil­

ity retirement pay claims “do not accrue until the ap­

propriate military board either finally denies such a

claim or refuses to hear it.” Id. at 1224 (citing Real v.

United States, 906 F.2d 1557,1560 (Fed. Cir. 1990)).

However, the Federal Circuit in Real held:

If at the time of discharge an appropriate

board was requested by the service member

and the request was refused or if the board

heard the service member’s claim but denied

it, the limitations period begins to run upon

discharge. A subsequent petition to the correc­

tions board does not toll the running of the

limitations period, nor does a new claim ac­

crue upon denial of the petition by the Correc­

tions Board. However, “where the Correction

Board is not a reviewing tribunal but is the

App. 36

first board to consider or determine finally the

claimant’s eligibility for disability retirement,

the single cause of action accrues upon the

Correction Board’s final decision.” Thus, un­

der Friedman if the service member had nei­

ther requested nor been offered consideration

by a retiring board prior to discharge, the

later denial of his petition by the Corrections

Board was the triggering event, not his dis­

charge. However, there are circumstances un­

der which the service member’s failure to

request a hearing board prior to discharge has

been held to have the same effect as a refusal

by the service to provide board review.

906 F.2d at 1560 (cleaned up) (first citing Friedman v.

United States, 310 F.2d 381,390,396-98 (Ct. Cl. 1962),

cert, denied, 373 U.S. 932 (1963); then citing Miller v.

United States, 361 F.2d 245 (Ct. Cl. 1966); and then cit­

ing Huffaker v. United States, 2 Cl. Ct. 662 (1983)).

Under Chambers, “such failure 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.” 417 F.3d at 1226. Specif­

ically, the question is whether Plaintiff’s knowledge at

the time of discharge “was sufficient to justify conclud­

ing that he waived the right to board review of the ser­

vice’s finding of fitness by failing to demand a board

prior to his discharge.” Real, 906 F.2d at 1562. Moreo­

ver, that knowledge must be determined by reference

to the statutory requirements for disability retirement,

which are the four elements of 10 U.S.C. § 1204 in this

App. 37

case. See Chambers, 417 F.3d at 1226. The question un­

der Real, according to Chambers, focuses on “whether

at the time of his separation . . . [the servicemember]

knew that he was entitled to disability retirement due

to a permanent disability that was not a result of his

intentional misconduct and was service-connected.”

Chambers, 417 F.3d at 1226.

After reviewing all facts in the Complaint and con­

sulting the administrative record to assess relevant ju­

risdictional facts, the Court finds that Plaintiff has not

proven subject matter jurisdiction by a preponderance

of the evidence. Specifically, the Court holds that the

statute of limitations began to run at the time of Mr.

Pohl’s discharge in 1999 and has long since expired.

Plaintiff’s counsel admitted at oral argument, and the

Complaint makes clear, that Mr. Pohl knew he was per­

manently disabled at the time of discharge and that

the incident in 1996 at his civilian job aggravated the

alleged service-connected back injury from April 1991.

See, e.g., Hr’g Tr. at 12:14-16, 19:1-6; Compl. f 13.

Plaintiff even emphasizes in his Complaint and brief­

ings, and his counsel reiterated at oral argument, that

he understood Dr. Coscia’s 1997 finding of a “copious

amount of fragmented bony overgrowth” on his verte­

brae, AR 120, to be evidence of “the extent of the 1991

injury,” Compl. 17; see also Pl.’s Mot. at 3, 8; Hr’g Tr.

at 11:16—12:1. This indicates that Mr. Pohl knew since

at least 1997 of the possibility that he had a perma­

nent, service-connected disability.

Furthermore, it was Plaintiff himself who pro­

vided information to the VA about the April 1991

App. 38

incident, and this self-report formed the basis for the

VA’s finding that he had a service-connected disability.

Hr’g Tr. at 43:4-12. The fact that Mr. Pohl went to the

VA specifically to obtain a determination that his dis­

ability was connected to the April 1991 incident indi­

cates that Mr. Pohl believed that he had a qualifying

disability. Thus, Plaintiff’s argument that he was una­

ware of a service-connected disability until the VA’s

2018 finding—because he was not given a line of duty

determination after the April 1991 incident—is incred­

ulous. See Pl.’s Mot. at 4; Hr’g Tr. at 12:2-25.

Under Friedman, if the servicemember neither re­

quested nor was offered consideration by a disability

board prior to discharge, the later denial of his petition

by a corrections board, not his discharge, triggers the

statute of limitations. 310 F.2d 390, 395-98. However,

because Plaintiff knew about his service-connected dis­

ability when he was discharged, the statute of limita­

tions began to run at that time. See Real, 906 F.2d at

1561-63 (describing the relevant inquiry as “[w]hether

the veteran’s knowledge of the existence and extent of

his condition at the time of his discharge was sufficient

to justify concluding that he waived the right to board

review of the service’s finding of fitness by failing to

demand a board prior to discharge.”); Chambers, 417

F.3d at 1226; see also Miller, 361 F.2d at 249—50;

Huffaker, 2 Cl. Ct. 662.

Plaintiff also claims, based on the apparently in­

complete and remote manner of his discharge pro­

cessing, that the Air Force never offered him the

App. 39

opportunity for a MEB.4 See Compl. (HCJI 14-15. Plain­

tiff’s position is that Dr. Tiernan’s note in his medical

file put the Air Force on notice that Mr. Pohl needed a

MEB, but the Air Force failed to follow through. See id.

However, because Plaintiff had knowledge of his enti­

tlement to disability benefits per the elements of 10

U.S.C. § 1204 when discharge proceedings began, his

failure to request a board prior to discharge has the

same effect as a refusal by the service to provide board

review. See Real, 906 F.2d at 1560; Hr’g Tr. at 12:1416,19:1-6; Compl. *][ 13. In other words, Mr. Pohl’s fail­

ure to demand a hearing board when he knew he re­

quired one constituted a waiver of that right and

triggered the statute of limitations at the time of dis­

charge. See id. Moreover, the December 1998 commu­

nications show both that it is the servicemember’s

burden to affirmatively request a PEB, and that

“[flailure to [timely submit the paperwork requesting

a PEB] will constitute a waiver of this right and dis­

charge proceedings will continue.” AR 137.5

4 It is irrelevant to a statute of limitations analysis which

specific medical boards, such as a MEB or formal or informal PEB,

that Plaintiff obtained. The relevant inquiry for determining

when the statute of limitations began to run in this case is

whether and when Plaintiff requested, obtained, or was denied

review of his case by any statutorily authorized board prior to

obtaining a decision from the AFBCMR. See Chambers, 417 F.3d

at 1223; Real, 906 F.2d at 1560.

5 Plaintiff alleges that he did not receive these communica­

tions. Even if true, that fact would be irrelevant to the Court’s

analysis because he still had the requisite knowledge under Real

and Chambers that he was entitled to disability benefits, at which

point the law makes it the servicemember’s responsibility to

App. 40

Finally, the fact that Mr. Pohl opted to voluntarily

transfer to the Retired Reserve negates his statute of

limitations argument. As the Real decision holds, a servicemember’s waiver of an evaluation board triggers

the statute of limitations at the time of discharge. 906

F.2d at 1560-62. Even if Plaintiff did not have the req­

uisite knowledge to conclude that he waived his right

to a PEB under a “failure to request” analysis per Real

and Chambers, his claims still fail. Applying to trans­

fer to the Retired Reserve in lieu of separation due to

a physical disqualification undoubtedly constitutes a

waiver of his right to a PEB and any processing under

the IDES. See Moyer v. United States, 190 F.3d 1314,

1319 (Fed. Cir. 1999) (stating the “common sense no­

tion that one who voluntarily gives up any right to

compensation and benefits cannot later claim entitle­

ment to such”). Thus, Mr. Pohl waived his right to an

evaluation board on two grounds: first, because he had

the requisite knowledge to request one, and second, be­

cause he applied to voluntarily transfer to the Retired

Reserve instead of going through the IDES. Accord­

ingly, the statute of limitations on any potential claim

Mr. Pohl could have under 10 U.S.C. § 1204 began at

the time of discharge in 1999. And, as explained below,

his voluntary transfer to the Retired Reserve also de­

feats the merits of such a claim.

affirmatively request an evaluation board. See Real, 906 F.2d at

1561-63; Chambers, 417 F.3d at 1226. Additionally, the Decem­

ber 1998 communications only refer to a PEB; Mr. Pohl still could

have requested a MEB or other type of evaluation board available

to him under the IDES. See AR 136—39.

App. 41

b. Plaintiff’s request to toll or waive

the statute of limitations

Plaintiff argues in the alternative that the Court

should waive the statute of limitations based on the

doctrine of equitable tolling because he “was on heavy

narcotics from his post-operation recovery following

his medical retirement.” Pl.’s Reply and Resp. at 6. It

is well established that the statute of limitations under

the Tucker Act “cannot be waived or extended by equi­

table considerations,” and therefore, the Court cannot

toll the statute of limitations on these grounds. Young

v. United States, 529 F.3d 1380,1384 (Fed. Cir. 2008).

To the extent that Plaintiff is actually requesting

a waiver of the statute of limitations based on the doc­

trine of legal disability—versus the doctrine of equita­

ble tolling—the Court cannot grant a waiver on these

grounds either. Plaintiff does not meet the “heavy bur­

den” to establish legal disability, which requires that a

“plaintiff’s mental illness ... be acute and extreme”

such that it renders him “incapable of caring for his

property, of transacting business, of understanding the

nature and effect of his acts, and of comprehending his

legal rights and liabilities.” Schmidt, 89 Fed. Cl. at 123

(quoting Ware u. United States, 57 Fed. Cl. 782, 788

(2003)). Plaintiff must also show that the “failure to file

was the direct result of a mental illness that rendered

him incapable of rational thought or deliberate deci­

sion making, or incapable of handling his own affairs

or unable to function in society.” Id. (quoting Barrett v.

Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004)). Moreo­

ver, a “narcotic addiction does not in itself constitute a

App. 42

statute-tolling legal disability unless the claimant al­

leges and shows that he was Incapable of understand­

ing the nature of his discharge,’ which he sought

unsuccessfully to change.” Goewey v. United States, 612

F.2d 539, 544 (Ct. Cl. 1979) (quoting Cochran v. United

States, 506 F.2d 1406 (Ct. Cl. 1974) (table)). Plaintiff

has not made that showing.

2. Due Process Claims

The Government argues that this Court does not

have jurisdiction over Plaintiff’s Fifth Amendment

due process claims because such claims are not money

mandating. Def.’s Mots, at 12; see, e.g., Mullenberg u.

United States, 857 F.2d 770, 773 (Fed. Cir. 1988) (stat­

ing “it is firmly settled that [the Due Process Clause]

do[es] not obligate the United States to pay money

damages” and therefore, cannot trigger jurisdiction un­

der the Tucker Act) (first citing United States v. Testan,

424 U.S. 392, 401-02 (1976)); then citing Inupiat Cmty.

v. United States, 680 F.2d 122,132 (Fed. Cl. 1982); and

then citing Carruth u. United States, Q21 F.2d 1068,

1081 (Fed. Cl. 1980)).

While the Government is correct that this is the

general rule, the Court may consider the due process

violations implicated by procedural deficiencies in mil­

itary separation procedures because they are con­

nected to money-mandating claims. Cf. Holley v. United

States, 124 F.3d 1462, 1465 (Fed. Cir. 1997) (“The de­

termination of [a plaintiff’s] entitlement to remedy un­

der [the Military Pay Act] may include consideration of

App. 43

whether his removal violated constitutional rights.”).

However, while the Court may have subject matter ju­

risdiction over Plaintiff’s due process claims on these

grounds, it is nonetheless divested of jurisdiction by

the untimeliness of Plaintiff’s Complaint. Accordingly,

the Government’s Motion to Dismiss Plaintiff’s Com­

plaint for lack of subject matter jurisdiction is

GRANTED.

B. Cross-Motions for Judgment on the Ad­

ministrative Record

Given this Court’s lack of subject matter jurisdic­

tion, it need not address the parties’ Cross-Motions for

Judgment on the Administrative Record. However, it

offers the following explanation as to why Plaintiff’s

claims would nevertheless not succeed on the merits.

1. Standard of Review

a. RCFC52.1

The standard of review governing a decision to

render judgment on the administrative record pursu­

ant to RCFC 52.1 is “whether, given all the disputed

and undisputed facts, a party has met its burden of

proof based on the evidence in the record.” Peterson v.

United States, 104 Fed. Cl. 196, 204 (2012) (quoting A

& D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126,

131 (2006)); see also Bannum, Inc. v. United States, 404

F.3d 1346,1356 (Fed. Cir. 2005). Unlike summary judg­

ment, when ruling on a motion for judgment on the ad­

ministrative record, courts can make “factual findings

App. 44

. . . from the record evidence as if it were conducting a

trial on the record.” Bannum, 404 F.3d at 1357. “The

existence of a question of fact thus neither precludes

the granting of a motion for judgment on the adminis­

trative record nor requires this court to conduct a full

blown evidentiary proceeding.” CRAssociates, Inc. u.

United States, 102 Fed. Cl. 698, 710 (2011) (first citing

Bannum, Inc., 404 F.3d at 1356; and then citing Int’l

Outsourcing Servs., LLC u. United States, 69 Fed. Cl.

40, 45-46 (2005)).

b. Scope of review and justiciabil­

ity of AFBCMR decisions

Courts have historically extended significant def­

erence to the military’s routine personnel decisions.

See Bond v. United States, 47 Fed. Cl. 641, 647 (2000);

Sanders u. United States, 594 F.2d 804, 813 (Ct. Cl.

1979) (“Strong policies compel the court to allow the

widest possible latitude to the armed services in their

administration of personnel matters.”). Thus, courts

review military correction board decisions only “for

failure to correct plain legal error committed by the

military.” Dodson v. Dep’t of the Army, 988 F.2d 1199,

1204 (Fed. Cir. 1993) (first citing Arens v. United States,

969 F.2d 1034, 1037 (Fed. Cir. 1992); then citing Grieg

v. United States, 640 F.2d 1261,1266 (Ct. Cl. 1981); and

then citing Sanders, 594 F.2d at 813). “Such legal error

includes the military’s Violation of statute, or regula­

tion, or published mandatory procedure, or unauthor­

ized act.’” Id. (quoting Skinner u. United States, 594

F.2d 824, 830 (Ct. Cl. 1979)).

App. 45

The standard of review is whether a military cor­

rection board’s final agency action was “arbitrary or

capricious, unsupported by substantial evidence, or

otherwise not in accordance with law.” Fisher, 402 F.3d

at 1180. That review is particularly narrow and may

only include consideration of “the administrative rec­

ord before the deciding official or officials.” Wyatt v.

United States, 23 Cl. Ct. 314, 319 (1991). “Substantial

evidence” is defined as “such relevant evidence as a

reasonable mind might accept as adequate to support

a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)). Importantly, courts may not “substi­

tute their judgment for that of the military depart­

ments when reasonable minds could reach differing

conclusions on the same evidence.” Heisig v. United

States, 719 F.2d 1153, 1156 (Fed. Cir. 2010). The

agency’s decision must only reflect a “rational connec­

tion between the facts found and the choice made.”

Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29,43 (1983) (quoting Burling­

ton Truck Lines v. United States, 371 U.S. 156, 168

(1962)).

2. The AFBCMR’s Ruling that Plaintiff’s

Application was Untimely

Were this Court to rule on the merits of the CrossMotions for Judgment on the Administrative Record,

its analysis could end here. The AFBCMR clearly ar­

ticulated the primary reason for denying Mr. Pohl’s

application:

App. 46

[T]he applicant did not file the application

within three years of discovering the alleged

error or injustice, as required by Section 1552

of Title 10, United States Code, and Air Force

Instruction 36-2603, Air Force Board for Cor­

rection of Military Records (AFBCMR). While

the applicant asserts a date of discovery

within the three-year limit, the Board does

not find the assertion supported by a prepon­

derance of the evidence. The Board does not

find it in the interest of justice to waive the

three-year filing requirement. Therefore, the

Board finds the application untimely and rec­

ommends against correcting the applicant’s

records.

AR 5-6. As the Government noted at oral argument,

Plaintiff waived this issue. See Hr’g Tr. at 45:13-24. In

his Motion for Judgment on the Administrative Rec­

ord, Plaintiff did not dispute the AFBCMR’s finding

that his application was untimely. Nor did Mr. Pohl

provide evidence that he filed his application within

three years of discovering the alleged error or injustice.

See Pl.’s Mot.; Pl.’s Reply and Resp. Therefore, the

Court could uphold the AFBCMR’s decision and deny

Plaintiff’s Motion for Judgment on the Administrative

record on these grounds alone.

App. 47

3. The AFBCMR’s Decision that Plain­

tiff Failed to Demonstrate Error Re­

quiring a Medical Retirement or a

Correction to His Narrative Reason

for Separation

The AFBCMR found that Plaintiff failed to prove,

by a preponderance of the evidence, that the Air Force

erred by denying him disability retirement under 10

U.S.C. § 1204. AR 5. This finding was based on the lack

of evidence that he was rendered disabled through an

injury incurred or aggravated in the line of duty and

his transfer to the Retired Reserve in lieu of discharge

due to a physical disability. AR 5-6,166. For the same

reasons, the AFBCMR found no support for correcting

the narrative reason for separation on Plaintiff’s DD214. AR 5-6. Plaintiff alleges that this decision was ar­

bitrary and capricious because the AFBCMR failed to

recognize that he met the requirements of 10 U.S.C.

§ 1204. Pl.’s Mot. at 8. Specifically, Mr. Pohl contends

that (1) he “suffered a permanent disabling condition

not the result of intentional misconduct or willful ne­

glect”; (2) his condition was the result of an injury that

“occurred during inactive duty training”; (3) “he was

entitled to but denied a Line of Duty determination”;

and (4) “his VA disability rating meets the . . . thresh­

old requirement of 30%.” Id.

The record provides substantial evidence to sup­

port the AFBCMR’s decision, particularly in light of

the lenience and deference courts extend to military

personnel decisions. Due to the complete absence of

contemporaneous medical documentation of the April

App. 48

1991 incident in the record before the AFBCMR—

which is the only alleged injury in Mr. Pohl’s medical

history that could be service-connected—the Board’s

finding that Plaintiff was not entitled to disability re­

tirement pay was well-founded. AR 5—6. Indeed, the

only medical documentation of Plaintiff’s disability be­

fore the AFBCMR related to incidents where Plaintiff

injured or aggravated his back condition while he was

not on active-duty orders. This included evidence of a

1995 motor vehicle accident, a 1996 injury from lifting

a heavy object at his civilian job, and a 1997 injury

from lifting his son in his home. AR 105, 113. Most no­

tably, Plaintiff’s civilian medical records reflect that he

reported “no previous accidents in the military.” AR

113,166-67 (emphasis added).

The record also shows that Plaintiff signed and

submitted an application for transfer to the Retired

Reserve after receiving notice of his pending discharge

due to physical disqualification and multiple requests

to provide the Air Force additional documentation.

AR 94. In this application, he specifically opted out of

disability retirement. See id.; 10 U.S.C. § 12731a(a).

Therefore, the AFBCMR relied on substantial evidence

when it determined that Mr. Pohl did not qualify for

medical retirement or a correction to the narrative rea­

son for separation, which was “Completion of Required

Active Duty Training.” AR 76.

Plaintiff claims that he would have established his

entitlement to disability retirement had he not been

improperly denied a line of duty determination after

the 1991 incident. Pl.’s Mot. at 12. However, the

App. 49

AFBCMR’s decision was not in error because the rec­

ord before it was completely devoid of any contempora­

neous medical documentation suggesting that Mr. Pohl

sustained an injury requiring a line of duty determina­

tion. The alleged 1991 incident did not impact his abil­

ity to perform military duties within twenty-four hours

of his injury. See Compl. f 10; AFI 36-2910, part 1.3;

Def.’s Mots, at App. 11. In fact, he continued participat­

ing in and completed the 17-day training course after

his fall. Compl. 10. There is no medical documenta­

tion indicating a likelihood of permanent disability be­

cause no injury from the fall was ever formally

diagnosed. Id. 'll 13; AFI 36-2910, part 1.3; Def.’s Mots,

at App. 11. The record similarly does not reflect that

Plaintiff received medical treatment for the 1991 in­

jury because he declined any additional testing or

treatment beyond at-home pain medication and heat

therapy. Compl. % 12.

Finally, the VA’s finding that Mr. Pohl’s disability

was service-connected would not have been a reliable

basis for the AFBCMR to grant him relief. See AR

8-14,181; Hr’g Tr. at 43:4-12. The VA’s determination

was based entirely on Mr. Pohl’s self-representation

that his back injury resulted from the 1991 incident.

AR 8-14; Hr’g Tr. at 43:4-12.

4. The AFBCMR’s Decision that Plain­

tiff was not Eligible for a DD-214

Plaintiff claims that the AFBCMR acted arbitrar­

ily and capriciously by concluding that he was not

App. 50

entitled to a DD-214 because he (1) was not on contin­

uous active duty for ninety days leading up to his re­

tirement and (2) was removed from the Temporary

Disability Retired List (“TDRL”). Compl. 1 39; Pl.’s

Mot. at 16-17. Mr. Pohl argues that the AFBCMR im­

properly relied on AFI 36-3202, Table 2, Rules 3 and

18, in reaching these respective decisions. Pl.’s Mot. at

14-17. However, the AFBCMR’s decision to apply Rule

3 was supported by substantial evidence, and the

Board did not base its decision on Rule 18 as Plaintiff

contends. See AR 3-5.

Plaintiff asserts that the AFBCMR should not

have relied on Rule 3 when it determined that he

would not have been eligible for medical retirement or

a correction to the narrative on his DD-214. Pl.’s Mot.

at 14-17. Rule 3 mandates issuing a DD-214 upon an

Air Force Reserve member completing ninety continu­

ous calendar days or more of active duty. AFI 36-3202,

Table 2; AR 163. Mr. Pohl argues that Rule 3 did not

apply to him and that the AFBCMR instead should

have applied Rule 2, which provides for issuance of a

DD-214 when a member is separated because of a dis­

ability. Pl.’s Mot. at 14-17. Mr. Pohl alleges he “was in

fact separated due to his disability.” Id. at 16. This ar­

gument is unpersuasive.

The record supports the AFBCMR’s decision that

Mr. Pohl was not separated “due to his disability” be­

cause there was no medical documentation of an injury

sustained in the line of duty and he opted into the Re­

tired Reserve. AR 5-6. Thus, Rule 2 would not have

applied. Based on a common sense reading of Table 2,

App. 51

Rule 3 was the only other category for which Table 2

requires the issuance of a DD-214 that could have ap­

plied to Plaintiff’s situation. See AFI 36-3202, Table 2;

AR 163. Because Plaintiff did not meet the ninety-day

requirement under Rule 3, the record supports the

AFBCMR’s decision to deny his claim for a DD-214 on

those grounds.

Plaintiff’s argument that the AFBCMR erred in

applying Rule 18 is also unpersuasive. Rule 18 pro­

vides that the Air Force should not issue a DD-214

when a servicemember is removed from the TDRL. AFI

36-3202, Table 2; AR 163. Plaintiff asserts that he

could not be TDRL-eligible because he never went

through a PEB (the entity responsible for placing

members on the TDRL). Plaintiff is correct that the

record shows he was never placed on the TDRL and

that Rule 18 does not apply. However, Plaintiff misin­

terprets the AFBCMR’s reference to Rule 18, which ap­

pears only under the “Applicable Authority” section of

the AFBCMR’s decision, and not in any analysis. AR 3.

Thus, the AFBCMR did not deny Plaintiff’s request for

a DD-214 based on his removal from the TDRL pursu­

ant to Rule 18. It is not clear why the AFBCMR listed

Rule 18 at all, but it does not amount to an arbitrary

or capricious action. Even if the AFBCMR had also in­

cluded an erroneous analysis and conclusion based on

Rule 18, its decision with respect to Rule 3 would still

stand, and therefore, so would its ultimate decision to

deny the DD-214 and change of narrative description.

App. 52

C. Motion for Leave to File Supplemental

Affidavit

Mr. Pohl’s Motion to Supplement requests leave of

the Court to file an affidavit “seeking] to address ques­

tions posed by the Court during oral arguments and to

respond to positions espoused by Defendant.” See Pl.’s

Mot. to Suppl. at 1-2. It is unclear whether Plaintiff’s

Motion to Supplement should be treated as a motion to

amend the Complaint pursuant to RCFC 15, or a mo­

tion to supplement the administrative record. How­

ever, under either interpretation, the Motion is denied

because it would be unduly prejudicial to the Govern­

ment, is futile, and is unnecessary to permit meaning­

ful and effective judicial review.

It is within the Court’s discretion to grant leave to

amend a pleading. See Tamerlane, Ltd. v. United

States, 550 F.3d 1135,1147 (Fed. Cir. 2008); Husband v.

United States, 90 Fed. Cl. 29, 38 (2009). RCFC 15(a)

instructs that courts “should freely give leave [to

amend] when justice so requires,” and the Supreme

Court has held that “this mandate is to be heeded.”

Foman v. Davis, 371 U.S. 178,182 (1962). However, fu­

tility of an amendment or undue prejudice to the non­

moving party justifies denying a motion to amend the

complaint. Spalding & Son, Inc. v. United States, 22 Cl.

Ct. 678, 680 (1991) (“The existence of any one of these

criteria is sufficient to deny a motion to amend, the

theory being that the amendment would not be neces­

sary to serve the interests ofjustice under such circum­

stances.”); see also A & D Auto Sales, Inc, 748 F.3d at

App. 53

1158; Mitsui Foods, Inc. v. United States, 867 F.2d 1401,

1403-04 (Fed. Cir. 1989).

In ruling on a motion for judgment on the admin­

istrative record, a court “may consider ‘extra-record’

evidence in limited circumstances,” which requires

“showing that the ‘additional evidence is necessary’

to supplement the administrative record. Hirsch v.

United States, 144 Fed. Cl. 55, 58 (2019) (first quoting

Metz v. United States, 466 F. 3d 991, 998 (Fed. Cir.

2006); and then quoting Axiom Res. Mgmt., Inc. v.

United States, 564 F.3d 1374,1380 (Fed. Cir. 2009)). “If

the administrative record is sufficient to permit mean­

ingful and effective judicial review, supplementation of

that record is not appropriate.” Id.

Permitting Mr. Pohl to amend his Complaint at

this stage to add an affidavit addressing “what [he]

knew and when [he] knew it” in response to the Gov­

ernment’s Motion to Dismiss would be unduly prejudi­

cial to the Government. Aff. of Michael Pohl 1, ECF

No. 19-1; Spalding & Son, 22 Cl. Ct. at 680. The rele­

vant inquiry for adjudicating the Government’s Motion

to Dismiss Plaintiff’s claim as barred by the statute of

limitations is “whether at the time of his separation . . .

[the servicemember] knew that he was entitled to

disability retirement due to a permanent disability

that was not a result of his intentional misconduct and

was service-connected.” Chambers, 417 F.3d at 1226.

Mr. Pohl had ample opportunity to respond to the Gov­

ernment’s Motion to Dismiss and was ably represented

by counsel both in a Response to the Government’s

App. 54

Motion and at oral argument. See generally Pl.’s Reply

and Resp.; Hr’g Tr.

Furthermore, filing the affidavit would be futile

here because the Court does not reach the merits in

this case. See Spalding & Son, 22 Cl. Ct. at 680. Even

if the Court were to rule on the merits, its review would

be limited to the record before the AFBCMR. See Wyatt,

23 Cl. Ct. at 319. Moreover, the fact that Plaintiff “did

not seek to offer the additional material he seeks now

to include in the administrative record” before the

AFBCMR is “highly probative” that the affidavit would

not be necessary to permit meaningful and effective ju­

dicial review. Hirsch, 144 Fed. Cl. at 58.

III. Conclusion

For the foregoing reasons, the Government’s

Motion to Dismiss is GRANTED, and the case is DIS­

MISSED with prejudice. The parties’ Cross-Motions

for Judgment on the Administrative Record are DE­

NIED as moot. Plaintiff’s Motion for Leave to File

Supplemental Affidavit is also DENIED. The Clerk

of the Court is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ Carolyn N. Lerner

CAROLYN N. LERNER

Judge

App. 55

[SEAL]

FOR OFFICIAL USE ONLY PRIVACY ACT OF 1974 APPLIES

UNITED STATES AIR FORCE

BOARD FOR CORRECTION

OF MILITARY RECORDS

RECORD OF PROCEEDINGS

IN THE MATTER OF: DOCKET NUMBER:

BC-2019-01037

MICHAEL G. POHL

COUNSEL:

MR. STEPHEN M. JEWELL

HEARING REQUESTED:

NO

APPLICANT’S REQUEST

His DD Form 214, Certificate of Discharge from Active

Duty, Block 28, Narrative Reason for Separation, be

corrected to reflect that he was discharged for medical

disqualification.

He be placed on the Permanent Disabled Retired List

(PDRL) with a 70% disability rating.

In the alternative, he be processed through the Inte­

grated Disability Evaluation System (IDES).

APPLICANT’S CONTENTIONS

He believes his DD Form 214 should reflect that he was

“medically discharged” for a service-connected injury

that resulted in. him being permanently disabled. If

his injury was so severe that he could not continue to

App. 56

serve, it does not make sense why it would not be an­

notated on his DD Form 214. Had his injury been listed

on the form, it would have identified him as a serviceconnected disabled veteran.

A fellow veteran told him his DD Form 214 did not re­

flect the actual reason for his discharge as reflected on

Reserve Order EK-0612, dated 27 Oct 99. The order

states that his service obligation was waived due to be­

ing “Med Disq,” which means medically disqualified for

service. However, he was never identified as being

medically disqualified due to a service-connected in­

jury and this has prevented him from receiving full

Federal and State benefits that he has earned.

The Department of Veterans Affairs (DVA) rated him

with a 40% disability rating for his service-connected

back injury. AFI 48-123, Medical Examinations and

Standards, allows a member to request a waiver. How­

ever, he was forced into a medical retirement with no

medical examination, no, chance to request a waiver,

and no opportunity to review his DD Form 214 to en­

sure it was accurate prior to being generated. AFI 48123 was not complied with when the “Presumption of

Fitness,” “Disability Information,” and “Mandatory Ex­

aminations,” were ignored. Additionally, he was denied

the right to seek a medical waiver as allowed in the

AFI for flying duties.

The applicant’s complete submission is at Exhibit A.

App. 57

STATEMENT OF FACTS

The applicant is a retired Air Force Reserve (AFR)

technical sergeant.

The applicant’s DD Form 214 issued in conjunction

with his 17 Apr 95 separation reflects his narrative

reason for separation as “COMPLETION OF RE­

QUIRED ACTIVE DUTY TRAINING.” He served 4

months and 20 days of active service and over 13 years

of total service for pay.

On 6 Nov 97, according to the applicant’s AF Form 422,

Physical Profile Serial Report, he was placed on a pro­

file that rendered him “not qualified for deployment”

and “not qualified for reassignment.” His profile ex­

pired on 6 Nov 98.

On 8 Dec 98, the 349th MDS/SGP notified the appli­

cant that his Physical Profile had expired. SGP

granted a 90-day extension in order for him to provide

additional medical documentation regarding his prog­

nosis, limitation, complications, treatments, medica­

tion and sequelae.

On 21 Dec 98, SGP sent another memorandum notify­

ing the applicant that he must complete and return the

acknowledgement of receipt of the SGP memorandum

within 24-hours. The memorandum noted that failure

to comply would constitute as a waiver of this right and

discharge proceedings would continue.

On 9 Sep 99, according to the AFRC/DPM memoran­

dum, the applicant was notified of his pending admin­

istrative discharge under AFI 36-3209, paragraph

App. 58

3.14, Physical Disqualification. On 17 Sep 99, the ap­

plicant acknowledged receipt of the discharge notifica­

tion and on 24 Sep 99, according to AF Form 131,

Application for Transfer to the Retired Reserve, the ap­

plicant applied for transfer to the Retired Reserve, ef­

fective 1 Oct 99.

On 27 Oct 99, according to Reserve Order EK-0612, the

applicant was relieved from his current assignment

and assigned to the Retired Reserve Section and

placed on the Reserve Retired List, effective 1 Oct 99,

by reason of medical disqualification, awaiting pay at

age 60 (DOB: 26 Feb 64).

For more information, see the excerpt of the applicant’s

record at Exhibit B and the advisories at Exhibits C

and D.

APPLICABLE AUTHORITY

The military DES, established to maintain a fit and vi­

tal fighting force, can by law, under Title 10, United

States Code (USC), only offer compensation for those

service incurred diseases or injuries which specifically

rendered a member unfit for continued service and

were the cause for career termination; and, then only

for the degree of impairment present at the time of sep­

aration and not based on future occurrences. DoDI

1332.32, Physical Disability Evaluation, reads “A Ser­

vice member shall be considered unfit when the evi­

dence establishes that the member, due to physical

disability, is unable to reasonably perform the duties of

his or her office, grade, rank or rating.”

App. 59

The Department of Defense and the DVA disability

evaluation systems operate under two separate laws.

Under Title 10, United States Code, Physical Evalua­

tion Boards must determine if a member’s condition

renders them unfit for continued military service re­

lating to their office, grade, rank or rating. The fact

that a person may have a medical condition does not

mean the condition is unfitting for continued military

service. To be unfitting, the condition must bq such

that it alone precludes the member from fulfilling their

military duties. If the board renders a finding of unfit,

the law provides appropriate compensation due to the

premature termination of their career. Further, it must

be noted the AF disability boards must rate disabilities

based on the member’s condition at the time of evalu­

ation; in essence a snapshot of their condition at that

time. It is the charge of the DVA to pick up where the

AF must, by law, leave off. Under Title 38, the DVA may

rate any service-connected condition based upon fu­

ture employability or reevaluate based on changes in

the severity of a condition. This often results in differ­

ent ratings by the two agencies.

LAW AFI 36-3202, Separation Documents, Table 2,

Rule 18, a DD Form 214 is not issued when a service

member is removed from the TDRL. AFI 36-3212, Per­

sonnel Physical Evaluation for Retention, Retirement

and Separation, paragraph 7.22 states, HQ AFPC/

DPPD announces the final disposition on a Retirement

Special Order. These orders are the official notice to

TDRL members of final disposition action.

App. 60

AIR FORCE EVALUATION

ARPC/DPTS recommends denying the application.

There is no error or injustice within the applicant’s

military record. He was not eligible for a DD Form 214

at the time of his retirement because he was not on

continuous active duty orders of 90 continuous calen­

dar days leading up to his retirement. Although he now

has a 40% rating from the DVA, it does not change his

eligibility and receipt of a retirement DD Form 214.

Per Air Force Instruction 36-3202, Table 2, a member

(ANGUS or USAFR) has to serve 90 continuous calen­

dar days or snore of active duty to qualify for a DD

Form 214.

The complete advisory opinion is at Exhibit C.

The BCMR Medical Advisor recommends denying the

application. There is no evidence to support a medical

retirement or a change in the applicant’s narrative

reason for separation. Although the DVA granted com­

pensation for his medical condition, it was based upon

a non-duty related back condition, which the applicant

elected to retire in lieu of a discharge for a physical

disability.

On 17 May 97, the applicant was placed in a duties not

including flying (DNIF) status due to chronic narcotic

use and permanent physical limitations, and was

found to be disqualified for continued military service.

On 21 Dec 98, the applicant was notified that addi­

tional medical documentation was needed in order to

further evaluate his medical condition. Despite several

App. 61

attempts, he did not comply nor did he elect to have his

case further reviewed by the Physical Evaluation

Board (PEB). He was placed on “no pay no points” sta­

tus prior to his medical case being submitted for fur­

ther review. Medical documentation notes the

applicant received several phone calls and letters via

certified mail explaining the process and requesting

additional information. The applicant states he was

not notified of a possible disqualification from the mil­

itary. Because the applicant did not respond, his case

was referred to AFRC/SGP with no updated medical

treatment notes.

On 22 Jun 99, AFRC/SGP found the. applicant disqual­

ified for continued military duty and recommended ad­

ministrative action for being diagnosed with Bilateral

L4 spondylosis and L5 + SI herniation, status postspinal instrumentation and history of chronic pain

with work limitation and narcotic requirement. The

applicant’s commander reviewed SGP’s recommenda­

tion and non-recommended him for retention based on

his inability to deploy or perform the duties of a flight

engineer.

The Medical Advisor found no medical documentation

of any injury that occurred in April 1991 while attend­

ing survival school. In fact, the applicant’s medical rec­

ords noted he injured his back in a motor vehicle

accident in 1995 and again in 1996 when he lifted a 70pound aircraft battery. However, neither of the events

occurred while the applicant was on active duty orders;

thus, the injury was not found to be in line of duty. Fur­

thermore, it was noted in the applicant’s medical

App. 62

records from St. Vincent Hospital and Health Services

that he denied any military accidents or injury.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALU­

ATION

The Board sent copies of the advisory opinions to the

applicant on 31 Jan 20 for comment (Exhibit D), and

the applicant’s counsel replied on 2 Mar 20. In coun­

sel’s 6-page response, he reiterates the applicant’s orig­

inal contentions and makes the following comments in

rebuttal:

While on active duty for training in January 1991, he

fell approximately 100 feet into a ravine. After the fall,

on-site medical technicians saw him; however, he re­

mained at the training site until he returned home

then his wife took him to the hospital for treatment.

The physician explained that his injury could result in

him being discharged. Fearing he would lose his career,

he opted to leave the hospital. He continued to drill

with his unit after the AFR failed to properly diagnose

his pre-existing injury as being severely aggravated.

The Air Force failed to follow proper IDES processing

procedures when the applicant was discharged. He did

not receive his mandatory medical examination; thus,

he was never properly evaluated for the injury he suf­

fered in 1991.

The BCMR Medical Advisor applied the wrong rule of

the governing instructions and did not consider any of

App. 63

the evidence provided by the applicant. Specifically, the

Medical Advisor did not consider the proper Rule in

Table 2 of AFI 36-3202. Rule 2 mandates the issuance

of a DD Form 214 and Rule 3 does not apply to the ap­

plicant’s case. The applicant’s spouse provided an affi­

davit that notes she observed and knows the extent of

his injury from 1991.

He worked for United Airlines in his civilian job when

he aggravated his back injury causing him to be inca­

pacitated requiring him to have surgery. He underwent

three (3) surgeries for his back injury. Due to the sur­

geries, he was involuntarily retired from the AFR. In

February 2006, he was no longer able to work for the

airlines, he placed a claim with the Social Security Ad­

ministration (SSA). After appealing the SSA’s decision,

he presented his case to an administrative judge in

2007 who found him disabled and granted him SSA

benefits, effective 15 Jan 03.

His initial service-connected disability rating was 40%;

however, he filed an appeal and the rating was in­

creased to 70% with 100% un-employability, effective

May 2016. His application was timely filed as he peti­

tioned the Board once he received the DVA decision on

25 Oct 18.

The applicant’s complete response is at Exhibit E.

App. 64

FINDINGS AND CONCLUSION

1.

The application was not timely filed.

2. The applicant exhausted all available non-judicial

relief before applying to the Board.

3. After reviewing all Exhibits, the Board concludes

the applicant is not the victim of an error or injustice.

The Board concurs with the rationale and recommen­

dation of ARPC/DPTS and the BCMR Medical Advisor

and finds a preponderance of the evidence does not

substantiate the applicant’s contentions. While coun­

sel believes the Medical Advisor used the wrong rule of

AFI36-3202, we do not agree. The Board also notes the

applicant did not file the application within threeyears of discovering the alleged error or injustice, as

required by Section 1552 of Title 10, United States

Code, and Air Force Instruction 36-2603, Air Force

Board for Correction of Military Records (AFBCMR).

While the applicant asserts a date of discovery within

the three-year limit, the Board does not find the asser­

tion supported by a preponderance of the evidence. The

Board does not find it in the interest of justice to waive

the three-year filing requirement. Therefore, the Board

finds the application untimely and recommends

against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the

evidence did not demonstrate material error or injus­

tice, and the Board will reconsider the application only

App. 65

upon receipt of relevant evidence not already pre­

sented.

CERTIFICATION

The following quorum of the Board, as defined in Air

Force Instruction (AFI) 36-2603, Air Force Board for

Correction of Military Records (AFBCMR), paragraph

1.5, considered Docket Number BC-2019-01037 in Ex­

ecutive Session on 20 May 20:

Mr. Clifford D. Tompkins, Panel Chair

Mr. Gregory E. Johnson, Panel Member

Ms. Phyllis M. Joyner, Panel Member

All members voted against correcting the record. The

panel considered the following:

Exhibit A: Application, DD Form 149, w/atchs,

dated 16 Nov 18.

Exhibit B: Documentary evidence, including rele­

vant excerpts from official records.

Exhibit C: Advisory opinion, ARPC/DPTS, dated

26 Dec 19.

Exhibit D: Advisory opinion, BCMR Medical Advi­

sor, 13 Jan 20.

Exhibit E: Notification of advisory, SAF/MRBC to

applicant, dated 31 Jan 20.

Exhibit F: Applicant’s response, w/atchs, dated 2

Mar 20.

App. 66

Taken together with all Exhibits, this document con­

stitutes the true and complete Record of Proceedings,

as required by AFI 36-2603, paragraph 4.11.9.

5/25/2020

X

Charlie T. Alston

Board Operations Manager, AFBCMR

Signed by: ALSTON.CHARLIE.T. 1053540860

App. 67

Note: This order is nonprecedential.

United States Court of Appeals

for the Federal Circuit

MICHAEL G. POHL,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

2022-2080

Appeal from the United States Court of Federal

Claims in No. l:21-cv-01482-CNL, Judge Carolyn N.

Lerner.

ON PETITION FOR PANEL REHEARING

Before Reyna, Mayer, and Hughes, Circuit Judges.

Per Curiam.

ORDER

Michael G. Pohl filed a petition for panel rehearing

[ECF No. 24] and subsequently filed a document which

the court construed as a supplement to the petition

[ECF No. 25].

Upon consideration thereof,

App. 68

It Is Ordered That:

The petition for panel rehearing is denied.

For the Court

Mav 12. 2023

Date

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

App. 69

Note: This order is nonprecedential.

United States Court of Appeals

for the Federal Circuit

MICHAEL G. POHL,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

2022-2080

Appeal from the United States Court of Federal

Claims in No. l:21-cv-01482-CNL, Judge Carolyn N.

Lerner.

ON MOTION

Before Moore, Chief Judge, Newman, Mayer1,

Lourie, Dyk, Prost, Reyna, Taranto, Chen, Hughes,

Stoll, Cunningham, and Stark, Circuit Judges.

Per Curiam.

1 Circuit Judge Mayer participated only in the decision on

the petition for panel rehearing.

App. 70

ORDER

Michael G. Pohl filed a petition for rehearing en

banc.2 The petition was first referred as a petition to

the panel that heard the appeal, and thereafter the pe­

tition was referred to the circuit judges who are in reg­

ular active service.

Upon consideration thereof,

It Is Ordered That:

The petition for panel rehearing is denied.

The petition for rehearing en Banc is denied.

For the Court

June 1. 2023

Date

/s/ Jarrett B. Perlow

Jarrett B. Perlow

Clerk of Court

2 Mr. Pohl filed a petition for panel rehearing on April 27,

2023, which the court denied on May 12, 2023.

App. 71

APPLICATION FOR

OMB No.

CORRECTION OF MILITARY 0704-0003

RECORD UNDER THE

OMB approval

PROVISIONS OF TITLE 10,

expires

U.S. CODE, SECTION 1552

Dec 31, 2017

(Please read Privacy Act Statement

and instructions on back BEFORE

completing this application.)

The public reporting burden for this collection of in­

formation, 0704-0003, is estimated to average 30

minutes per response, including the time for review­

ing instructions, searching existing data sources,

gathering and maintaining the data needed, and com­

pleting and reviewing the collection of information.

Send comments regarding this burden estimate or any

other aspect of this collection of information, including

suggestions for reducing the burden, to the Department

of Defense, Washington Headquarters Services, at

whs.mc-alex.esd.mbx.dd-dod-information-collections

@mail.mil. Respondents should be aware that not­

withstanding any other provision of law, no person

shall be subject to any penalty for failing to comply

with a collection of information if it does not display a

currently valid OMB control number.

RETURN COMPLETED FORM TO THE

APPROPRIATE ADDRESS ON THE

BACK OF THIS PAGE.

1. APPLICANT DATA (The person whose record

you are requesting to be corrected.)

a. BRANCH OF SERVICE (Xone)

ARMY

NAVY

MARINE CORPS

S

AIR FORCE

COAST GUARD

App. 72

b. NAME (Print - Last, First, Middle Initial)

Pohl, Michael G.

c. PRESENT OR LAST PAY GRADE

E6

d. SERVICE NUMBER (If applicable)

1093585433

e. SSN

2. PRESENT STATUS WITH RESPECT TO THE

ARMED SERVICES (Active Duty, Reserve, National

Guard, Retired, Discharged, Deceased) Retired

3. TYPE OF DISCHARGE^//' by court-martial, state

the type of court.)

Honorable

4. DATE OF DISCHARGE OR RELEASE FROM

ACTIVE DUTY (YYYYMMDD) 19991001

5. I REQUEST THE FOLLOWING ERROR OR

INJUSTICE IN THE RECORD BE CORRECTED

AS FOLLOWS: (Entry required)

1 - Member requests that his DD-214 be cor­

rected to reflect the true reason for his retire­

ment which was due to his being found

medically disqualified for service per Reserve

Order EK-0612 dated October 27,1999 with an

effective date of October 01, 1999 resulting

from a service connected injury rated at a 40%

disability.

2 - DD-214 must reflect the order driving it

and why the member is released from his com­

mitment of service.

3 - Failure to accurately reflect the reason for

medical retirement prevents member from

App. 73

receiving all benefits he is legally entitled to

and has earned.

6.1 BELIEVE THE RECORD TO BE IN ERROR

OR UNJUST FOR THE FOLLOWING REASONS:

(Entry required)

1 - Member’s DD-214 does not reflect the fact

for his early retirement in either Block 26 or

Block 27.

2 - As of October 25, 2018 the VA issued a find­

ing that the member was medically separated

in 1999 due to a service connected injury. That

injury was rated by the VA at 40% disabled

which is not stated in the remarks section of

the member’s DD-214.

3 - Member seeks to have his DD-214 reflect

the order for retirement as being “Medically

Disqualified” for a service connected injury

with an effective date of October 01,1999 that

rated a 40% disability.

a. IS THIS A REQUEST FOR RECONSIDERA­

TION OF A PRIOR APPEAL? YES ✓ NO

b. IF YES, WHAT WAS THE DOCKET NUMBER?

c. DATE OF THE DECISION

7. ORGANIZATION AND APPROXIMATE DATE

(YYYYMMDD) AT THE TIME THE ALLEGED ER­

ROR OR INJUSTICE IN THE RECORD OC­

CURRED (Entry required)

1999/10/01

8. DISCOVERY OF ALLEGED ERROR OR IN­

JUSTICE

Not until the VA Decision of October 2018 con­

firming the error

App. 74

a. DATE OF DISCOVERY

(YYYYMMDD)

20181025

b. IF MORE THAN THREE YEARS SINCE THE

ALLEGED ERROR OR INJUSTICE WAS DIS­

COVERED, STATE WHY THE BOARD SHOULD

FIND IT IN THE INTEREST OF JUSTICE TO

CONSIDER THE APPLICATION.

Member is entitled by law to have his DD-214

accurately reflect the true reason for separa­

tion so all benefits he is entitled to are in-fact

made available to him.

9. IN SUPPORT OF THIS APPLICATION, I SUB­

MIT AS EVIDENCE THE FOLLOWING AT­

TACHED DOCUMENTS: (If military documents or

medical records are pertinent to your case, please send

copies. If Veterans Affairs records are pertinent, give

regional office location and claim number.)

1 - VA Decision dated October 25, 2018, and;

2 - Reserve Order EK-0612 dated October 27,

1999 => ref: “Reason”

10. I DESIRE TO APPEAR BEFORE THE

BOARD IN WASHINGTON, D.C. (At no expense to

the Government) (X one)

YES. THE BOARD WILL DETERMINE IF

WARRANTED.

V NO. CONSIDER MY APPLICATION

BASED ON RECORDS AND EVIDENCE

11.a. COUNSEL (If any) NAME (Last, First, Middle

Initial) and ADDRESS (Include ZIP Code)

b. TELEPHONE

(Include Area Code)

c. E-MAIL ADDRESS

App. 75

d. FAX NUMBER (Include Area Code)

e. I WOULD LIKE ALL CORRESPONDENCE/

DOCUMENTS SENT TO ME ELECTRONI­

CALLY.

YES

NO

12. APPLICANT MUST SIGN IN ITEM 15 BE­

LOW. If the record in question is that of a de­

ceased or incompetent person, LEGAL PROOF

OF DEATH OR INCOMPETENCY MUST AC­

COMPANY THE APPLICATION. If the applica­

tion is signed by other than the applicant,

indicate the name (print)_____________________

and relationship by marking one box below.

SPOUSE

WIDOW

NEXT OF KIN

WIDOWER

LEGAL REPRESENTATIVE

OTHER (Specify)

13.a. COMPLETE CURRENT ADDRESS (Include

ZIP Code) OF APPLICANT OR PERSON IN ITEM

12 ABOVE (Forward notification of all changes of ad­

dress.)

3355 De Coronado Trl

Round Rock, TX 78665

b. TELEPHONE (Include Area Code) (317) 281-4452

c. E-MAIL ADDRESS indyflyer64@icloud.com

d. FAX NUMBER (Include Area Code)

14. I MAKE THE FOREGOING STATEMENTS,

AS PART OF MY CLAIM, WITH FULL

KNOWLEDGE OF THE PENALTIES INVOLVED

FOR WILLFULLY MAKING A FALSE STATE­

MENT OR CLAIM. (U.S. Code, Title 18, Sections 287

and 1001, provide that an individual shall he fined

App. 76

under this title or imprisoned not more than 5 years,

or both.)

15. SIGNATURE (Applicant must sign here.)

16. DATE SIGNED (YYYYMMDD) 20181116

CASE NUMBER (Do not write in this space.)

DD FORM 149, DEC 2014

PREVIOUS EDITION IS OBSOLETE.

Adobe Designer 9.0

App. 77

[SEAL]

DEPARTMENT OF VETERANS AFFAIRS

Veterans Benefits Administration

Regional Office

MICHAEL POHL

VA File Number

Represented By:

VETERANS OF FOREIGN WARS OF THE US

Decision Review Officer Decision

10/25/2018

INTRODUCTION

The records reflect that you are a veteran of the Peace­

time. You served in the Army from September 15,1982,

to September 14, 1985. We received a Notice of Disa­

greement from you on April 27,2017 about one or more

of our earlier decisions. Based on a review of the evi­

dence listed below, we have made the following decision(s) on your claim.

DECISION

1. Service connection for status post L4-L5 fusion

with fusion hardware and STIM unit (claimed as low

back condition) is granted with an evaluation of 20 per­

cent effective May 25, 2016.

2. Service connection for left lower extremity radicu­

lopathy is granted with an evaluation of 20 percent ef­

fective May 25, 2016.

App. 78

3. Service connection for scars, status post L4-L5 fu­

sion is granted with an evaluation of 0 percent effec­

tive May 25, 2016.

4. Service connection for scar, anterior think, status

post L4-L5 fusion is granted with an evaluation of 0

percent effective August 13, 2018.

5. Service connection for scar, posterior trunk, status

post L4-L5 fusion is granted with an evaluation of 0

percent effective August 13, 2018.

EVIDENCE

•

•

•

•

•

•

•

•

•

•

VA Form 21-526 EZ: Application for Disability

Compensation and Related Compensation Bene­

fits, May 25, 2016

Service Treatment Records, from September 15,

1982 through September 14,1985

Service Treatment Records (reserve), from Sep­

tember 16,1985 through October 1,1999

Statement from your spouse, received February

28, 2017

Phone coversation with you on February 9, 2017

VA contract examination, QTC contract provider,

dated March 1, 2017

Rating Decision, dated March 22, 2017

VA Form 21-0958, Notice of Disagreement, re­

ceived April 27, 2017

VAMC (Veterans Affairs Medical Center) treat­

ment records, Indianapolis VA Medical Center,

from July 15, 2014 through December 19, 2016

VAMC (Veterans Affairs Medical Center) treat­

ment records, Central Texas VA Healthcare Sys­

tem, from April 28, 2017 through August 31, 2017

App. 79

REASONS FOR DECISION

1. Service connection for status post L4-L5

fusion with fusion hardware and STIM unit

(claimed as low back condition).

Service connection for status post L4-L5 fusion with

fusion hardware and STIM unit has been established

as directly related to military service. You initially re­

ported that this incident occurred in March 1990 while

you were on active duty training. Your spouse had

pointed out that the injury happened following sur­

vival school training in 1991. She testifies that back

issues were not present prior to this training and when

you returned she witnessed severe bruising across

your entire mid to lower back. She notes that she took

you to Travis AFB for treatment shortly after return­

ing and that you have had episodes of back pain since

that time.

We requested a medical opinion and noted to the ex­

aminer the incident happened in March 1990 using

your statements instead of your spouse’s credible

statements and your ADT discharge document which

showed the combat survival school was in April 1991.

The evidence is consistent between your spouse’s state­

ments and she is considered a credible historian. The

VA examiner reviewed all the records and provided the

opinion that it is at least as likely as not that the con­

dition was incurred due to a fall during survival school

that went undiagnosed and untreated. He states this

led to weakened vertebral lumbar area that when a

separate injury occurred later at the same location,

the damage was much greater. He states while the

App. 80

claimant’s current condition can’t be considered wholly

due to the event in service, it is likely that his initial

injury on military duty made him more susceptible to

further injury resulting in your current condition.

Based on the testimony from your spouse and the pos­

itive medical opinion, the evidence supports an injury

to the back did occur on your ADT period in 1991 and

that your current back condition is at least in part due

to this event. All reasonable doubt is resovled in your

favor.

An evaluation of 20 percent is assigned from May 25,

2016, the date we received your claim for this condi­

tion.

We have assigned a 20 percent evaluation for your sta­

tus post L4-L5 fusion with fusion hardware and STIM

unit based on:

• Combined range of motion of the thoracolumbar

spine not greater than 120 degrees

• Forward flexion of the thoracolumbar spine greater

than 30 degrees but not greater than 60 degrees

• Guarding severe enough to result in an abnormal

gait or abnormal spinal contour such as scoliosis, re­

versed lordosis, or abnormal kyphosis

Additional symptom(s) include:

• X-ray evidence of traumatic arthritis

• With no incapacitating episodes during the past 12

months

• Combined range of motion of the thoracolumbar

spine greater than 120 degrees but not greater than

235 degrees

• Painful motion upon examination

App. 81

The provisions of 38 CFR §4.40 and §4.45 concerning

functional loss due to pain, fatigue, weakness, or lack

of endurance, incoordination, and flare-ups, as cited in

DeLuca v. Brown and Mitchell v. Shinseki, have been

considered and applied under 38 CFR §4.59.

This is the highest schedular evaluation allowed under

the law for traumatic arthritis.

Additionally, a higher evaluation of 40 percent is not

warranted for intervertebral disc syndrome (ivds) un­

less the evidence shows:

• Favorable ankylosis of the entire thoracolumbar

spine; or,

• Forward flexion of the thoracolumbar spine 30 de­

grees or less.

Additionally, a higher evaluation of 40 percent is not

warranted for intervertebral disc syndrome (ivds) un­

less the evidence shows:

• Intervertebral disc syndrome (IVDS) with incapac­

itating episodes having a total duration of at least four

weeks but less than six weeks during the past 12

months.

Our decision represents a grant of the benefit sought

on appeal based on a denovo review. The portion of the

appeal concerning service connection for low back con­

dition is considered withdrawn.

App. 82

2. Service connection for left lower extremity

radiculopathy as secondary to the service-con­

nected disability of status post L4-L5 fusion

with fusion hardware and STIM unit.

Service connection for left lower extremity radiculopa­

thy has been established as related to the service-con­

nected disability of status post L4-L5 fusion with

fusion hardware and STIM unit.

An evaluation of 20 percent is assigned from May 25,

2016, the date we received your claim for low back con­

dition because radiculopathy is a known complication

of a back disability. The 20 percent evaluation is be­

ing assigned based on moderate subjective complaints

with decreased reflexes noted in the left knee and an­

kle on examination. The examiner noted the impair­

ment is of a moderate level.

We have assigned a 20 percent evaluation for your left

lower extremity radiculopathy based on:

• Moderate incomplete paralysis

A higher evaluation of 40 percent is not warranted for

paralysis of the sciatic nerve unless the evidence

shows nerve damage is moderately severe.

3. Service connection for scars, status post L4L5 fusion as secondary to the service-connected

disability of status post L4-L5 fusion with fu­

sion hardware and STIM unit.

Service connection for scars, status post L4-L5 fusion

has been established as related to the service-connected

App. 83

disability of status post L4-L5 fusion with fusion hard­

ware and STIM unit.

A noncompensable evaluation is assigned from May

25, 2016, the date we received your claim for your back

condition because your scars were determined to be a

result of this condition which has found to be serviceconnected. We sympathetically read your claim for

your back condition to include the scars of your sur­

gery.

We have assigned a 0 percent evaluation for your scars,

status post L4-L5 fusion based on:

• Other areas of disfigurement not considered under

another appropriate diagnostic code

Note: In every instance where the schedule does not

provide a zero percent evaluation for a diagnostic code,

a zero percent evaluation shall be assigned when the

requirements for a compensable evaluation are not

met. {38 CFR §4.31}

An additional, separate compensable evaluation under

Diagnostic Code 7804 is not warranted unless there is

at least one scar that is painful or unstable.

This is the highest schedular evaluation allowed under

the law for scars, other (including linear scars) and

other effects of scars evaluated under diagnostic codes

7800, 7801, 7802, and 7804.

The code used to assign this evaluation is being closed

out August 13, 2018, the date of the law change per­

taining to scars. See our decisions about scars of the

anterior and posterior trunk respectively to see how

App. 84

these scars will be evaluated after the date of the law

change.

4. Service connection for scar, anterior trunk.

status post L4-L5 fusion as secondary to the

service-connected disability of status post L4-L5

fusion with fusion hardware and STIM unit.

Service connection for scar, anterior trunk, status post

L4-L5 fusion has been established as related to the ser­

vice-connected disability of status post L4-L5 fusion

with fusion hardware and STIM unit.

The schedule for rating disability has changed for this

condition. An evaluation of 0 percent assigned effective

August 13, 2018, the date of the law change.

We have assigned a 0 percent evaluation for your scars,

status post L4-L5 fusion based on:

• Anterior trunk: area or areas less than 144 square

inches (929 sq. cm.) (Not associated with underlying

soft tissue damage)

Additional symptom(s) include:

• Scar 1 Location: Anterior trunk

• Scar 1 type: scar

Note: In every instance where the schedule does not

provide a zero percent evaluation for a diagnostic code,

a zero percent evaluation shall be assigned when the

requirements for a compensable evaluation are not

met. {38 CFR §4.31}

App. 85

Your first scar/area has a length of 13 cm and a width

of 1 cm for a total area of 13 sq. cm.

An additional, separate compensable evaluation under

Diagnostic Code 7804 is not warranted unless there is

at least one scar that is painful or unstable.

A higher evaluation of 10 percent is not warranted for

burn scar(s) or scar(s) due to other causes, not of the

head, face, or neck, that are not associated with under­

lying soft tissue damage (anterior trunk) unless the ev­

idence shows:

• Area or areas of 144 square inches (929 sq. cm.) or

greater.

Additionally, a higher evaluation of 10 percent is not

warranted for burn scar(s) or scar(s) due to other

causes, not of the head, face, or neck that are associated

with underlying soft tissue damage (entire body) un­

less the evidence shows:

• Area or areas of at least 6 square inches (39 sq. cm.)

but less than 12 square inches (77 sq. cm.).

Additionally, a higher evaluation of 10 percent is not

warranted for burn scar(s) or scar(s) due to other

causes, not of the head, face, or neck, that are not asso­

ciated with underlying soft tissue damage (entire

body) unless the evidence shows:

• Area or areas of 144 square inches (929 sq. cm.) or

greater.

App. 86

5. Service connection for scar, posterior trunk.

status post L4-L5 fusion as secondary to the ser­

vice-connected disability of status post L4-L5 fu­

sion with fusion hardware and STIM unit

Service connection for scar, posterior trunk, status post

L4-L5 fusion has been established as related to the ser­

vice-connected disability of status post L4-L5 fusion

with fusion hardware and STIM unit.

The schedule for rating disability has changed for this

condition. An evaluation of 0 percent assigned effective

August 13, 2018, the date of the law change.

We have assigned a 0 percent evaluation for your scars,

status post L4-L5 fusion based on:

• Posterior trunk: area or areas less than 144 square

inches (929 sq. cm.) (Not associated with underlying

soft tissue damage)

Additional symptom(s) include:

• Scar 2 Location: Posterior trunk

• Scar 2 type:scar

• Scar 3 Location: Posterior trunk

• Scar 3 type: scar

• Scar 4 Location: Posterior trunk

• Scar 4 type: scar

• Scar 5 Location: Posterior trunk

• Scar 5 type:scar

Note: In every instance where the schedule does not

provide a zero percent evaluation for a diagnostic code,

a zero percent evaluation shall be assigned when the

requirements for a compensable evaluation are not

met. {38 CFR §4.31}

App. 87

Your second scar/area has a length of 18 cm and a

width of 0.25 cm for a total area of 4.5 sq. cm.

Your third scar/area has a length of 9 cm and a width

of 0.1 cm for a total area of 0.9 sq. cm.

Your fourth scar/area has a length of 6 cm and a width

of 0.1 cm for a total area of 0.6 sq. cm.

Your fifth scar/area has a length of 7 cm and a width of

0.25 cm for a total area of 1.75 sq. cm.

An additional, separate compensable evaluation under

Diagnostic Code 7804 is not warranted unless there is

at least one scar that is painful or unstable.

A higher evaluation of 10 percent is not warranted for

burn scar(s) or scar(s) due to other causes, not of the

head, face, or neck, that are not associated with under­

lying soft tissue damage (posterior trunk) unless the

evidence shows:

• Area or areas of 144 square inches (929 sq. cm.) or

greater.

Additionally, a higher evaluation of 10 percent is not

warranted for burn scar(s) or scar(s) due to other

causes, not of the head, face, or neck that are associated

with underlying soft tissue damage (entire body) un­

less the evidence shows:

• Area or areas of at least 6 square inches (39 sq. cm.)

but less than 12 square inches (77 sq.cm.).

Additionally, a higher evaluation of 10 percent is not

warranted for burn scar(s) or scar(s) due to other

causes, not of the head, face, or neck, that are not

App. 88

associated with underlying soft tissue damage (entire

body) unless the evidence shows:

• Area or areas of 144 square inches (929 sq. cm.) or

greater.

REFERENCES:

Title 38 of the Code of Federal Regulations, Pensions,

Bonuses and Veterans’ Relief contains the regulations

of the Department of Veterans Affairs which govern

entitlement to all veteran benefits. For additional in­

formation regarding applicable laws and regulations,

please consult your local library, or visit us at our web­

site, www.va.gov.

App. 89

[SEAL]

DEPARTMENT OF VETERANS AFFAIRS

Veterans Benefits Administration

Regional Office

MICHAEL POHL

VA File Number

Represented By:

VETERANS OF FOREIGN WARS OF THE US

Decision Review Officer Decision

11/13/2019

INTRODUCTION

The records reflect that you are a veteran of the Gulf

War Era and Peacetime. You served in the Army from

September 15,1982 to September 14,1985 and the Air

Force from July 27,1990 to December 4,1991 and from

November 28,1994 to April 17,1995. We received a No­

tice of Disagreement from you on November 9, 2018

about one or more of our earlier decisions. Based on a

review of the evidence listed below, we have made the

following decisions on your claim.

DECISION

1. Entitlement to individual unemployability is

granted effective May 25, 2016.

2. Basic eligibility to Dependents’ Educational Assis­

tance is established from May 25, 2016.

App. 90

EVIDENCE

•

•

•

•

•

•

•

•

•

•

•

•

VA Form 21-526 EZ: Application for Disability

Compensation and Related Compensation Bene­

fits, May 25, 2016

VA contract examination dated March 1, 2017

Notice of Disagreement received November 9,2018

VA Form 21-8940, Veteran’s Application For In­

creased Compensation Based On Unemployability,

received December 5, 2018

Social Security Administration records received

on December 18,2018, March 20,2019, and March

28, 2019

VA contact examination, dated December 26,2018

Statement from United Airline dated January 31,

2006, received February 8, 2019

Veteran’s written statement, received Mach 29,

2019

VA Form 27-0820, Report of General Information,

documenting phone call with Veteran confirming

employment dates, dated October 18, 2019

Advisory Opinion Extra-Schedular Consideration

from the Director of Compensation Service dated

November 7, 2019

VAMC (Veterans Affairs Medical Center) treat­

ment records, Indianapolis VA Medical Center,

from July 15, 2014 through December 19, 2016

VAMC (Veterans Affairs Medical Center) treat­

ment records, Central Texas Healthcare System,

from April 28, 2017 to October 18, 2019

App. 91

REASONS FOR DECISION

1.

Entitlement to individual unemployability.

Entitlement to individual unemployability is granted

because you are unable to secure or follow a substan­

tially gainful occupation as a result of service-con­

nected disability. (38 CFR 4.16)

The Director of Compensation Services has provided a

decision that you are entitled to individual unemploy­

ability on an extra-schedular basis for the period from

May 25,2016 to December 26,2018. You met the schedular criteria for individual unemployability effective

December 26, 2018.

Entitlement to individual unemployability is granted

from May 25, 2016.(38 CFR 3.400).

This is considered a total grant of your appeal for this

condition and your appeal of this condition is closed

out.

2. Eligibility to Dependents* Educational As­

sistance under 38 U.S.C. Chapter 35.

Eligibility to Dependents’ Educational Assistance is

derived from a veteran who was discharged under

other than dishonorable conditions; and, has a perma­

nent and total service-connected disability; or a perma­

nent and total disability was inexistence at the time

of death; or the veteran died as a result of a serviceconnected disability. Also, eligibility exists for a serviceperson who died in service. Finally, eligibility can

be derived from a service member who, as a member of

App. 92

the armed forces on active duty, has been listed for

more than 90 days as: missing inaction; captured in

line of duty by a hostile force; or forcibly detained or

interned inline of duty by a foreign government or

power.(38 USC Ch. 35, 38 CFR 3.807)

Basic eligibility to Dependents’ Education Assistance

is granted as the evidence shows you currently have a

total service-connected disability, permanent in na­

ture. (38 USC Chapter 35, 38 CFR 3.807)

Basic eligibility to Dependents’ Educational Assistance

is established from May 25, 2016 the date you were

granted entitlement to Individual Unemployability.

REFERENCES:

Title 38 of the Code of Federal Regulations, Pensions

Bonuses and Veterans’ Relief contains the regulations

of the Department of Veterans Affairs which govern

entitlement to all veteran benefits. For additional in­

formation regarding applicable laws and regulations,

please consult your local library, or visit us at our web­

site www.va.gov.

App. 93

[Illegible] :26 CDT 09/30/2016 #53703979

Submitted Electronically

THIS IS AN

IMPORTANT RECORD.

SAFEGUARD IT

CAUTION: NOT TO BE

ANY ALTERATIONS IN

USED FOR IDENTIFICA­

SHADED AREAS

TION PURPOSES

RENDER FORM VOID

CERTIFICATE OF RELEASE OR

DISCHARGE FROM ACTIVE DUTY

1. NAME (Last, First,

Middle)

POHL, MICHAEL

GERARD

3. SOCIAL. SECURITY

NO.

4.b. PAY GRADE

E6

2. DEPARTMENT,

COMPONENT AND

BRANCH

AIR FORCE — USAFR

4.a. GRADE, RATE

OR RANK

TSGT

5. DATE OF BIRTH

(YYMMDD)

6. RESERVE OBLIG.

7.a. PLACE OF ENTRY

TERM, DATE

INTO ACTIVE DUTY

Year 2000 |Month APRjDay 14 VACAVILLE CA

7.b. HOME OF RECORD 8.a. LAST DUTY ASSIGN­

AT TIME OF ENTRY

MENT AND MAJOR

(City and State, or com- COMMAND

plete address if known) 70ARS (AFRES)

8.b. STATION WHERE 9. COMMAND TO WHICH

SEPARATED

TRANSFERRED

TRAVIS AFB CA

USAFR

App. 94

10. SGLI COVERAGE □ None

Amount: $ 200,000_____________________________

11. PRIMARY SPECIALTY (List number, title

and years and months in specialty. List additional

specialty numbers and titles involving periods of

one or more years.)

XIA171C-KC-10A FLIGHT ENGINEER

4 MONTHS

Year(s) Month(s) Day(s)

12. RECORD OF

SERVICE

28

NOV

1994

a. Date Entered AD This

Period

17

APR

1995

b. Separation Date This

Period

20

04

00

c. Net Active Service

This Period

27

11

0

d. Total Prior Active

Service

28

09

07

e. Total Prior Inactive

Service

00

00

00

f. Foreign Service

00

00

00

g. Sea Service

JAN

01

1992

h. Effective Date or

Pay Grade

13. DECORATIONS, MEDALS, BADGES, CITA­

TIONS AND CAMPAIGN RIBBONS AWARDED

OR AUTHORIZED (All periods of service)

ARMY ACHIEVEMENT MEDAL; AF OUTSTAND­

ING UNIT AWARD; AIR RESERVE FORCES MERI­

TORIOUS SERVICE MDL W/3 DEVICES;

NATIONAL DEFENSE SERVICE MEDAL; SOUTH­

WEST ASIA SVC MEDAL W/2 DEVICES; AIR

FORCE OVERSEAS “SEE REMARKS”

App. 95

14. MILITARY EDUCATION (Course title, number

of week,, and month and year completed)

KC-10A INITIAL FLIGHT ENGINEER, 14 WEEKS,

JAN 1995.

15.a. MEMBER CONTRIBUTED TO

Yes No

POST-VIETNAM ERA VETERANS’

X

EDUCATIONAL ASSISTANCE PROGRAM

15.b. HIGH SCHOOL GRADUATE OR

Yes No

EQUIVALENT

X

16. DAYS ACCRUED LEAVE PAID

21.5

17. MEMBER WAS PROVIDED

Yes X No

COMPLETE DENTAL EXAMINATION

AND ALL APPROPRIATE DENTAL

SERVICES AND TREATMENT WITHIN

90 DAYS PRIOR TO SEPARATION

18. REMARKS

ITEM 13; SHORT TOUR RIBBON; ARMY OVER

SEA SERVICE RIBBON; AF LONGEVITY SERVICE

AWARD RIBBON W/l DEVICE; SMALL ARMS

EXPERT MARKSMANSHIP RIBBON AIR FORCE

TRAINING ROBBIN; ARMY SERVICE RIBBON

//////NOTHING FOLLOWS//////

COPY 3: A DATA PROCESSING CENTER,

1615 WOODWARD ST, AUSTIN TX 78772

COPY 5: LOUISIANA CLAIMS CONTROL

CENTER UCX UCFE, P O BOX 94246

CAPITOL STATION

BATON ROUGE LA 70804-9246

Data herein are subject to computer

matching within DoD or with other

agencies for verification purposes and

determining eligibility or compliance

for Federal benefits._________________

App. 96

19. a. MAILING

ADDRESS AFTER

SEPARATION

19.b. NEAREST RELA­

TIVE (Name and ad­

dress include Zip Code)

BARBARA J. POHL

VACAVILLE CA 95687

ACAVILLE CA 95687

20. MEMBER REQUESTS COPY BE SENT |Yes|No

TO CA DIR OF VET AFFAIRS

X

22. OFFICIAL

21. SIGNATURE OF

AUTHORIZED TO SIGN

MEMBER BEING

(Typed name, grade, title

SEPARATED

and signature)

MEMBER NOT

fs/ Geraldine K. Bliss

AVAILABLE TO SIGN

GERALDINE K. BLISS,

SMSGT, USAFR

CHIEF, PERSONNEL

RELOCATIONS

SPECIAL ADDITIONAL INFORMATION

(For use by authorized agencies only)

23. TYPE OF SEPARATION 24. CHARACTER OF

RELEASE FROM ACTIVE SERVICE (include

upgrades)

DUTY

HONORABLE

25. SEPARATION 26. SEPARATION 27. REENTRY

CODE

CODE

AUTHORITY

NOT

AFI 36-2102

NA

APPLICABLE

28. NARRATIVE REASON FOR SEPARATION

COMPLETION OF REQUIRED ACTIVE DUTY

TRAINING

App. 97

29. DATES OF TIME

30. MEMBER REQUESTS

LOST DURING THIS

COPY 4

PERIOD

initials

NONE

Previous editions are obsolete.

Generated by Dept of the Air Force PC-Ill

DD Form 214. NOV 88, EG

SERVICE-2

-» COPY MADE BY VARMC, ST. LOUIS

FROM A RECORD IN VA'S POSSESSION

App. 98

EXHIBIT 1

NSN 7540-00-634-4122

509-113

MEDICAL RECORD

PROGRESS NOTES

DATE

27 Jun 98

s: 33 yo flight engineer

sip laminectomy in Dec 97 for

low back pain which occurred

while working for United

The pi’s pc provider states the

patient is not able to lift 25 lbs

(Pt’s medical provider/surgeon)

is Michael Coscig MP (Surgeon)

There may also be another medical

provider.)__________________________

A Pt is currently unable to fly (or if)

and is not capable for WW deployment

P: The needs to return a note from

primary care provider which states

He has no limitations.

Once that occurs we can submit a

AMDS for return to duty.

In the probable event that the patient’s

provider recommends long term_______

disability the patient will need to_____

return for revaluation for Medical EB

App. 99

REGISTER NO. WARD NO.

patient’s identification

/s/ P K Tiernan

PROGRESS NOTES

(For typed or written entries

give: Name—last, first, middle; PETER K. TIERNAN,

grade; rank; rate; hospital or CAPTAIN, USAFR,

medical facility)

MC, FS

CAL LIC G083461

Is/ Pohl Michael

MI LIC 301058910

SSN;

DEA BT 3751129

COPY MADE BY VARMC, ST. LOUIS

FROM A RECORD IN VA’S POSSESSION

App. 100

EXHIBIT 2

MEMORANDUM FOR DPMF

22 June 1999

FROM: SGPA

SUBJECT: Medical Disqualification TSgt

^

Pohl. Michael G.

1. We have determined that subject member is medi­

cally disqualified for continued military duty in accord­

ance with AFI 48-123, paragraph(s) 14.18.2, A2.14,

A2.20 by reasons of

Spondylolysis; Status-Post Laminectomy & Spinal Fusion

2. This case is forwarded to your office for appropri­

ate administrative action.

/s/ Richard W. Boersma

RICHARD W. BOERSMA, Col,

USAFR, MC, CFS

Aerospace Medicine Branch

Directorate, Health Services

-> COPY MADE BY VARMC, ST. LOUIS

FROM A RECORD IN VA’S POSSESSION

App. 101

EXHIBIT 3

[SEAL]

DEPARTMENT OF THE AIR FORCE

AIR FORCE RESERVE COMMAND

9 August 1999

MEMORANDUM FOR HQ AERC/DPMF

FROM: 70 ARS/CC

555 Hickam Ave

Travis AFB CA 94535-2710

SUBJECT:

Member Utilization Questionnaire,

TSgt Michael G. Pohl, SSN

1. Given the members physical restrictions it is vir­

tually impossible to return to duty. As a KC-10 Flight

Engineer TSgt Pohl is required to be in a fully mobi­

lized position. In the last 12 months this unit has de­

ployed on three occasions. All deployments to date

have been under field conditions. The unit is scheduled

to deploy again in February 2000 in support of Opera­

tion SOUTHERN WATCH.

2. Sgt Pohl is assigned to a UTC tasked position. Sgt

Pohl has not been a counter for 27 months. He has hurt

our SORTS reporting and war fighting capabilities.

There is currently no non-UTC-tasked position that

the member could be assigned. In addition, Sgt. Pohl

has moved to the mid-west and is currently located

1500 miles from Travis AFB.

3. The job of a KC-10 engineer is physically demand­

ing. A flight bag weight approximately 46 lbs and must

App. 102

be carried up the stairs of a wide-body aircraft. Mem­

bers also need to often carry 3-4 mobility bags.

4. Sgt. Pohl has exceeded a 24-month limit in regards

to currency as a flight engineer. If brought back in this

squadron we would be faced with an extended training

cycle. Initial qualification would take approximately 6

months at a cost of $227.000.

5. It is my recommendation that Sgt. Pohl not be re­

tained.

/s/ J P Lynott

JAMES P. LYNOTT, Lt Col,

USAFR

Commander

-> COPY MADE BY VARMC, ST. LOUIS

FROM A RECORD IN VA’S POSSESSION

App. 103

APPLICATION FOR TRANSFER

TO THE RETIRED RESERVE;

PRIVACY ACT STATEMENT

AUTHORITY: [ILLEGIBLE] CHAPTERS 11, 31, [IL­

LEGIBLE]

PRINCIPLE PURPOSE: To process application for

transfer to the Retired Reserve.

ROUTINE USE: None

DISCLOSURE IS VOLUNTARY: Refusal to divulge

information may delay or halt transfer to the Retired

Reserve. Social Security Number is necessary to ensure

positive identification

TO

THRU

HQ ARPC/DPAR

HQ AFRC/DPML

I.

PERSONNEL DATA

NAME (Last Name, First, CURRENT GRADE (If

MI)

applicable)

POHL, MICHAEL G.

TSGF

SSN

HIGHEST GRADE HELD

[Illegible] 411

[Illegible]

HOME ADDRESS

HOME PHONE NO.

7696 WYCKFORD CT

INDIANAPOLIS, IN 46214

UNIT ADDRESS

UNIT PHONE NO.

[Illegible]

TAFB, CA

II.

CASE PROCESSING DATA

(Check and complete appropriate block)

A. REQUEST THAT I BE TRANSFERRED TO

THE RETIRED RESERVE EFFECTIVE ON 1

OCT 99

App. 104

B. REQUEST THAT I BE REAPPOINTED AS A

RESERVE OFFICER OF THE AIR FORCE FRO

THE PURPOSE OF ASSIGNMENT TO THE RE­

TIRED RESERVE AND PLACEMENT ON THE

USAF RESERVE RETIRED LIST

C. REQUEST THAT I BE DISCHARGED UNDER

THE PROVISION OF AFI 36 3208 (Applicable to

regular airmen requesting appointment as a re­

serve officer for retirement under 10 U.S.C. 8911.

AUTHENTICATION DATA

III.

FOR COMPLETION OF II, IV, AND V REFER TO

AFI 36 3209, CHAPTER 5

SIGNATURE OF

DATE OF REQUEST

APPLICANT

29 SEP 99

[Illegible]

RECOMMENDATION

IV.

DISAPPROVAL APPROVAL

JUSTIFICATION

ATTACHED

DATE TYPED NAME, GRADE AND SIGNATURE

TITLE OF RECOMMENDING

OFFICIAL

REMARKS

SPOUSE’S NAME

EARLY RESERVE RETIREMENT ELIGIBILITY

FOR

MEDICALLY DISQUALIFIED RESERVIST

THE FY95 NATIONAL DEFENSE AUTHORIZA­

TION ACT AMENDING TITLE 10, USC SEC­

TION 1331a(c) PROVIDES I ACKNOWLEDGE

THAT MY APPLICATION FOR EARLY RETIRE­

MENT IS APPROVED, DISCHARGE PROCEED­

ING AGAINST ME WILL BE CANCELLED.

App. 105

“MEMBER ELECTED TRANSFER TO THE RE­

TIRED RESERVE IN LIEU OF ADMINISTRATIVE

DISCHARGE FOR PHYSICAL DISQUALIFICA­

TION.”

Atch 3

PREVIOUS EDITION IS OBSOLETE

AF FORM 131, DEC 97 (EF-V1)

000091

[STAMP OCT 07 1999]

App. 106

01092019 - VA Claims Intake Center, Janesville WI

BEST COPY

EXHIBIT 4

DEPARTMENT OF THE AIR FORCE

HEADQUARTERS AIR RESERVE

PERSONNEL CENTER

DENVER, COLORADO 80280

RESERVE ORDER

EK-0612

27 OCT 99

TSG POHL MICHAEL G

SSN

INDIANAPOLIS!, IN 46214-2629

IS RELIEVED. FROM CURRENT ASSIGNMENT, AS­

SIGNED TO THE RETIRED RESERVE SECTION

AND PLACED ON THE USAF RESERVE RETIRED

LIST EFFECTIVE AS INDICATED BELOW. ENTI­

TLED TO ARMED FORCES IDENTIFICATION

CARD, DO -FORM 2 AF (RESERVE).

CURRENT ASSIGNMENT FROM

WHICH RELIEVED.

0070 ARF SQTRAVIS ABACA 94535

(PAS: T81LFMRQ)

DATE ASSIGNED TO RETIRED RESERVE

01 OCT 99

RETIRED RESERVE SECTION: ZA

DATE OF BIRTH: 26FEB 64

RETIREMENT IDENTIFICATION CODE: T5

App. 107

AUTHORITY:

REASON

RTAP RETIREMENT-15 TO < 20 SAT

SVC-MED DISQ__________________

REMARKS

TRANSFER TO RETIRED RESERVE PRECLUDES

FURTHER PROMOTION/PROMOTION CONSIDER­

ATION. TERM OF ENLISTMENT EXTENDED FOR

AN UNSPECIFIED PERIOD.

PAY GRADE AT AGE 60 = (E6) TECHNICAL SER­

GEANT

FOR THE COMMANDER

DISTRIBUTION: EK

OFFICIAL

JOHN R. GREEN

CHIEF., RETIREMENTS AND

SEPARATIONS DIVISION

DIRECTORATE OF PERSONNEL

PROGRAM MANAGEMENT

-> COPY MADE BY VARMC, ST. LOUIS

FROM A RECORD IN VA’S POSSESSION

App. 108

AFI36-3202 10 May 1994

Table 2. Issuing DD Form 214.

R

U

L

E

1

2

3

4

5

6

B

A

If a member is because of

being

separated

C

then

issue

aDD

Form

214

Yes.

from a penod completion of active

of active duty, service as a member of

active duty for the Regular Air Force.

training,

disability

full-time

training duty, completion of 90

a special tour continuous calendar

of active duty, days or more active duty

active duty for (for ANGUS or USAFR

special work, member) (see note 1)

or an active

completion of an usual

Guard/Reserv tour of active duty

e (AGR) tour, training or separating

according to

for cause (for ANGUS or

10 U.S.C. 672, USAFR airman)

32 U.S.C. 503,

release from a status

or 32 U.S.C.

legally determined to be

505

void

dismissal from the

service under a sentence

of general court-martial

(see note 2)

App. 109

7

an order to active duty in

time of national

emergency or war,

regardless of length of

time served on active

duty

8

an order from the

No.

Secretary of the Air

Force that the member

be dropped from the rolls

of the Air Force

9

death

10

any circumstance when

the Secretary of the Air

Force directs that no

discharge documents be

issued

11 from one

status to

continue in

12

another

immediate reenlistment

or enlistment

13

discharge from cadet

status to accept

commission as a Regular

officer

14

expiration of enlistment Yes.

for a cadet who entered

the USAF Academy from

enlisted status

transition from a

Reserve appoinonent

into the Regular Air

Force

App. 110

15

discharge from enlisted

status to accept

appoinanent as a

commissioned or

warrant officer

16

transition from an officer

appointment to an

appointment in another

service or in the Regular

Air Force

17

retirement with

entitlement to pay

18

removal from TDRL

19 without

entering on

active duty

physical disqualification

for entry when reporting

for active duty

No.

NOTES:

1.

Includes ending an AGR tour.

2. Applies to officers only. Airmen separated by sen­

tence of court-martial are discharged.

App. Ill

The Air Force’s Personnel Center

Integrated

Disability

Evaluation

System (IDES)

AF Physical Disability Division

HQ AFPC/DPFD

. 112

OVERVIEW

■ Purpose/Background

■ The Process

■ Possible Outcomes

Agile, Innovative, and Responsive...Fueling the Fight!

2

App. 113

r

t

J

Pu rpose/Background

■ Ensure a Fit and Vital force to accomplish AF mission

■ Determine Fit or Unfit for Continued Service

■ Determine Combat Relation (if any)

■ Apply ratings from VA for unfitting conditions

■ Adjudicate 4K+ AD/Guard/Reserve cases annually

Agile, Innovative, and Responsive...Fueiing the Fight!

3

App. 114

The Process

Disability Roadmap:

Wounded, Injured or III Airmen & Guardians

Pre-DES

Indeterminate

DES (Disability Evaluation System) = 180 days*

*-

■*

4!

Injured/Sick

Airman

Medical

Treatment,

DAWG,

IRILO

Local MTF/

AFPC

10,000

i

Medical

Evaluation

Board

(MEB)

Informal

Board

(IPEB)

Formal

Board

(FPEB)

Local MTF

AFPC

AFPC

4,000

1,000

4,000

Y

MEB Phase

74 days

A

0

T

Physical Evaluation Board Phase

80 days

Veteran/Retiree

Transition

A

T

Transition Phase

26 days

*DES goals are established by DoD

Agile, Innovative, and Responsive... Fueling the Fight!

4

App. 115

'f

i

£

¥■%

-\

Possible IDES Outcomes

■ Return to Duty

■ Discharge with Severance Pay (VA Rating of 0-20%)

■ Pay = Base Pay x 2 x Years of Service

■ Personnel with 20 or More Years are Retired

Regardless of Rating

m Medical Retirement (VA Rating of 30- 100%)

■ Permanent Retirement if Conditions) Stable

■ Temporary Retirement if Condition(s) Not Stable

■ Existed Prior to Service Separation: Less than 8 Years

and Condition Not Aggravated by Military Service

Agile, Innovative, and Responsive...Fueling the Fight!

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App. 116

Questions?

Agile, innovative, and Responsive...Fueling the Fight!

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