## United States Court of Appeals for the Federal Circuit

04-5134

JAMES S. CHAMBERS, Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee.

Thomas J. Reed , Widener University School of Law, of Wilmington, Delaware, argued for plaintiff-appellant. Gregory T. Jaeger , Trial Attorney, Commercial Li tigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendantappellee. With him on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, and Franklin E. White, Jr. , Assistant Director. Appealed from: United States Court of Federal Claims Judge Lawrence J. Block

## United States Court of Appeals for the Federal Circuit

04-5134

JAMES S. CHAMBERS, Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee.

__________________________ DECIDED: August 1, 2005

__________________________ Before MICHEL, Chief Judge , MAYER and DYK, Circuit Judges

. Opinion for the court filed by Chief Judge MICHEL. Dissenting opi nion filed by Circuit Judge DYK. MICHEL, Chief Judge

. James S. Chambers (“Chambers”) appeals the decision of the United States Court of Federal Claims granting judgment upon t he administrative record in favor of the United States (“the government”) . Chambers v. United States , No. 03-1767-C (Fed. Cl. July 12, 2004). The trial court upheld the de cision of the Army Board for Correction of Military Records (“ABCMR” or “Board”) denying Chambers’ request to reopen his 1970 honorable discharge from t he military to assess whether he suffered from post traumatic stress disorder (“PTSD”) while on active duty such that he should have been retired for disability under 10 U.S.C. § 1201 with disabili ty retirement or severance pay.Although neither the parties nor the trial c ourt considered whether the Court of Federal Claims had jurisdiction to hear Chambers’ cas e , “[e] very federal appellate c o urt has a s pec ial obligation to ‘satisf y itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,’ even though the parties are prepared to concede it.” Bender v. Williamsp o rt Area Sch. Dist. , 475 U.S. 534, 541 (1986) (citation omitted). Given some thirty-three years separat ing Chambers’ discharge from the Army and his suit in the Court of Federal Claims, we request ed jurisdictional briefing from the parties. We now hold that because the ABCMR was the first competent mi litary board to consider Chambers ’ disability retirem ent claim arising under 10 U.S.C. § 1201, his claim did not accrue until the Board rendered its final dec is ion in September 2000. Chambers’ 2003 suit in the Court of Federal Claims was, therefore, not barred by the six-year st atute of limitati ons in 28 U.S. C. § 2501. Howev e r, because the Court of Federal Claims correctly held that the de cision of the ABCM R was supported by substantial evidenc e, we affirm. BACKGROUND
I. Chambers enlisted in the U.S. A rmy in July 1967. After completing training in Fort Bliss, Texas, Chambers served in t he Panama Canal Zone unt il he was reassigned to Vietnam as a light air defense artill ery crewman in Dece m ber 1969. He wa s promoted to the rank of sergeant (grade E-5) in March 1970. Prior to his discharge from active dut y in July 1970, Chambers wa s hospitaliz e d three times. In June 1968, Chambers was hos pitaliz ed for back pain resulting from a car accident. At that time, he was als o diagnosed wit h “tr ansient stress reaction.” The

04-5134 2attending psychiatrist, however, concluded t hat no follow-up treatment was necessary. In January 1969, Chambers was readmitted to the hospital for headaches and chest pain, diagnosed wit h “personality pattern di sturbance, transient, situational,” and prescribed Valium. He retur ned to regular duty after eleven days in the hospital. In April 1970, approximately th ree months before Chamber s’ discharge, Chamber s reported to a military hospital c o mplain in g of an ear ache and nervousne ss. Upon referral to the Neurological Psychiatric Clin ic, Chambers reported feeling agit ated, shorttempered, and experiencing difficulty interacting with his fellow s o ldiers and superiors. Chambers was diagnosed with “mild situationa l anxiety” and prescribed Librium. He returned to regular duty the same day. Chambers returned to Fort Lewis, Washington in J u ly 1970 t o complete his military obligation. At Fort Lewis, Chambers’ medica l records were examine d , and h e received a separation physical exam, whic h revealed no physical or psychologic al abnormalities. Chambers was found medically qualified for separation and honorably discharged. After separation from active duty, Cham bers first sought medical assistance from the Veterans Administration (“VA”) in Novem ber 1972. At that time, he was diagnosed with acute bronchitis, but m ade no mention of PTSD-related symptoms. From 1982 to 1983, Chambers served in the New York Army National Guard. Chambers was diagnosed with PTSD in February 1987, while in the Drug Rehabilitation Program at the VA Hospital in Montros e , New Yor k . Chambers promptly filed a c l aim for VA disability benefits bas ed on PT SD and receiv ed a 30 percent PTSD

04-5134 3rating in July 1987. That rating was ultima tely increas ed to 100 percent, effective June
1990. II. In July 1999, Chambers applied t o the AB CMR for disability retirement pay based upon his 1987 diagnosis of PTSD. Specif ically, Chambers asked that the ABCM R reopen his discharge to reassess his mental condition and evaluate his entitlement to disab ility retirement or severance pay. Chambers argued that the Army improperly discharged him as physically and mentally qua lified, despite his m edical history. He further claimed that the dischar ge was ille gal, because he did not receive counseling about his right to have a Medica l Evaluation Board (“MEB”) revi ew his fitnes s for duty or his right to waive MEB review. The Board denied Chambers’ claim on March 16, 2000. The ABCM R first determined that under Army Regulation (“AR”) 635-40 in effect in 1970, only a soldier’s commander, physician, or a Military Occupat ional Specia lty/Medical Retention Boar d (“MMRB”) could request MEB revi ew or refer a soldier to an MEB. Chamber s thus had no right to request review by an MEB at the time of his separation. Accordingly, “[Chambers’] rights were not violated by him not being counseled concerning his right to a[n] MEB or requirement to waive a[n] MEB before he could be separated.” Moreover, the Board determi ned that the thr ee medical incidents suffered by Chambers — all of them temporary in durat ion, medically treat ed, and followed by a return to full military duty — did not meet the requirements for reference to an MEB. The Board also noted that “[t]h e medicines prescribed in these cases, Valium (5 mg

04-5134 4twice a day) and Librium (10 mg three times a day for two weeks ) , are low concentrations according to the B oard’s medical doctor advisor.” The ABCM R thus concluded that the physi cian adminis t ering Chambers’ physical correctly found no basis for referring Ch ambers to an MEB based upon his medica l condition and medic a l records. First, the Board observed that Chambers was performing his military duties at the time of s eparation and wa s thus presumed fit under the standards set by the U.S. Army Physical Disability Agency. Second, according to the 1970 version of AR40-501, “transient personalit y disr uptions of a n onpsychotic nature and situational maladj ustments due to acute or spec ial stress do not render an indiv i dual unfit.” “As such,” the Board ruled, “the docto r was correct in stating that the applicant was qualified for separation.” The Board declined to reconsider Cham bers’ claim on September 27, 2000.
III. On July 24, 2003, Chambers filed a compla int in the Court of Federal Claims, challenging the ABCM R dec isio n as arbitrary and c apric ious . Chambers claimed, inter alia , he was entitled t o a judgment awarding him “disabilit y retirement pay from 22 April 1970 through 1 June 2003 at the rate of 50% of pay for enlisted grade E-5,” amounting to $344,000.00 plus costs. On the parties’ cross-motions for judgm ent upon the administra tive record, the trial court ruled in favor of the government. The Court of Federal Claims explained tha t despite its “arbitrary and capric ious” standard of review for administrative decisions affecting military pay, “[e]ssentially, plai ntiff asks this court to conduct a de novo review of the administrative record and find that the ABCMR impermissibl y denied plaintiff’s

04-5134 5claim. T h is court, however, may not rewe igh the evidence but may only ascerta i n whether the administration’s dec ision was based on substantial evidence.” Chambers , No. 03-1767-C, slip op. at 2. The trial court concluded t hat “[t]he ABCMR reviewed the record and rendered a rational decision that plai ntiff was fit for duty at the time of his separation. ” Id. Chambers timely appealed to this court. We have jurisdiction over an appea l from a final decision of the Court of Federal Claims pursuant to 28 U.S.C. § 1295 (a)(3). DISCUSSI ON I. We begin with subject matter jurisdiction . There is no dispute that Chambers filed this suit under the Tucker Act, 28 U. S.C. § 1491 (2000), which authorizes certain actions for monetary relief against the United States to be brought in the Court of Federal Claims and waives the government’s so vereign immunity for those actions. As we hav e explained, however, “[t]he Tucker Ac t does not itself provide the s ubstantive cause of action; instead a plaintiff must look elsewher e for the sour ce of substantive law on whic h to base a Tucker Act suit against t he United States.” Ma rtinez v. United States , 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc) (c itations omitted). That source must be “money-mandating.” See F i sher v. United States , 402 F.3d 116 7 , 1172 (F ed. Cir. 2005) (en banc in relevant part). Here , Chambers claims entit lement to military disab ility p a y under 1 0 U.S.C. § 1201, a mo ney-manda ting statute. See id. at 1174-75. Section 1201 provides that upon the Secretary’s determination that a service member is “unfit to perform the duties of the member’s office, grade, rank, or rating because of

04-5134 6physical disability incurred while entitled to basic pay,” the servic e member may retire for disabilit y. 10 U.S. C. § 1201(a) (2000). Claims under the Tucker Act are subject to t he six-year statute of l i mitations in 28 U.S.C. § 2501, whic h provides t hat “every claim of which the United States Court of Federal Claims has jurisdiction shall be barr ed unless the petition t hereon is filed within six years after such cl aim first accrues.” A Tucker Act claim accrues “as soon as all events hav e occurred that are necessary to enable the plaintiff to bring suit , i.e. , when ‘all events have occur r ed to fix the Government ’s alleged liability , entitling the claimant to demand payment and sue here for his money.’” Martinez , 333 F.3d at 1303 (citation omitted). Accordingly, to ascertain whether the tri a l court had jurisdiction to hear Chambers’ claim, we must determine when that clai m accrued — upon his discharge from the Army in 1970, when t he ABCMR denied his claim in 2000, or at some point in between those two dates. This court recently held en banc that a claim for wrongful disc harge accrues upon the service member’s discharge rather t han upon the final decis i on of the appropriate military corrections board. See Martinez , 333 F.3d 1295. In view of Martinez , we asked that the parties’ jurisdicti onal briefing addre ss whether the same rule applies in retirement disab ility c a ses. We now hold that it does not. In Martinez , the Court of Federal Claims dis m iss ed the plaintiff’s cl aim, filed more than six y ears after his separation from acti ve duty, as time-barred under 28 U.S.C. § 250 1. Th is court affirmed. We exp l a i ned t hat “[i]n a military dis c harge cas e , this cour t and the Court of Claims have long held that t he plaintiff’s cause of action for back pay accrues at the time of the plaintiff’s disc harge.” Id. at 1303 (citing, a m ong other

04-5134 7authorities, Real v. United States , 906 F.2d 1557, 1560 (Fed. Cir. 1990)). We observed that: [t]his court and the C ourt of Claims have frequently addressed and rejected the argument that the cause of action for unlawful discha r ge does not accrue until the service member seeks relief from a correction board and the correction board enters a final decision denying relief. The reasoning underlying that li ne of cases is that, since their creation, the correction boards have been r egarded as a permissive administrative remedy and that an application to a c o rrection board is therefore not a mandatory prerequisite to filing a Tucker Act suit challen g i ng th e discharge. Id. at 1304 (citing, am ong other authorities, Friedm an v. United States , 310 F.2d 381, 396 (Ct. Cl. 1962)). We thus reasoned t hat Martinez’s resort to the ABCMR wa s permissive rather than mandatory to bringing a Tucker Act suit for monetary relief. Id. at 1306-08. Accordingly, we held that Martinez’s claim accrued not upon the Board’s fin a l decision, but upon his discharge. Id. at 1310. Unlike claims for unlawful discharge, however , claims of entitlement to disability retirement pay genera lly do n o t accrue until t he approp riate military board eit her finally denies suc h a claim or refuses to hear it. See Rea l , 906 F.2d at 1560 (citing Friedman , 310 F.2d 381). The decision by the first st atutorily authorized board that hears or refuses to hear the claim invokes the statute of limitations. Id. The difference between the two ty pes of c l aims stems from thei r respective money-mandating statutes. In wrongful discharge ca ses brough t under the M ilitary Pa y Act, 37 U.S.C. § 204 , Martinez explained, the service member can seek r edress immediately upon separation from service; an appeal to a Correction Board constitutes a “permissive” rather than a mandatory remedy. 333 F.3d at 1303. Because the Tu cker Act does not require exhaustion of administrative remedies, a plaintiff’s invoca tion of such a permissive

04-5134 8remedy neither prevents the a ccrual of his cause of action nor tolls the statute of limitations. Disability retirement cases, howev er, are governed by 10 U.S.C. § 1201. 1 A s Friedman e x p l ained, in the conte x t of section 1201, “Co ngress has entrusted the military boards wit h the task of determining wh ethe r a serviceman should be retired for disabilit y and therefore . . . no cause of action arises ( and the sta t ute of limit ations does not run) until a proper board has acted or declined to act.” 310 F.2d at 389. As another decisio n of the Court of Claims artfully reasoned: The princ i ple of these cases is: fir s t, jurisdiction is conferred by Congress, not on this court, but on retiring boards and the Secr etaries of the three armed services, to decide an officer’ s right to retirement for physica l disab ility, and his c onseque nt right to retired pay; second, it follows therefrom that we cannot acquire jurisdiction of su ch a claim until after the board and the Secretary have acted, or failed or refused to act, and not then unles s the board and the Secretary act ed arbitrarily or capric iously or contrary to law; third, since our juri sdiction could not be invoked until after the retiring board and t he Secretary had ac ted, the statute of limitations on a suit in this court did not begin to run until they had acted . . . . Furlong v. United States , 152 F. Supp. 238, 240-41 (Ct. Cl. 1957) . In other words, the Court of F ederal Claims has no jurisdiction over dis ability retirement claims until a military bo ard evaluates a servic e member’s entitleme nt to su ch retirement in the first instance. Therefore, if at the time of disc harge, t he service member requested review by an appr opriate board and the request was denied, or if the boar d heard the service member’s claim and denied it, then the limitat ions period begins to run upon discharge.

1 “Upon a determination by the Secr etary concerned that a member described in subsection (c) is unfit to perform the duties of the mem ber’s office, grade, rank, or rati ng becaus e of physic a l disability in curred while entitled to basic pay or while absent as described in subsection (c)(3), the Secretary may retire the member, with retired pay computed under secti on 1401 of this title [10 U.S. C. § 1401], if the Secretary also makes the determinations with respect to the member and that disability specified in subsection (b).” 10 U.S.C. § 1201 (a) (2000).

04-5134 9Real , 906 F.2d at 1560. But where the claim ant “has not had or sought a Retiring Board, 2 his claim does not accrue until final ac tion by the Correction Board (which in that instance stands in the place of the Retiring Board as the proper tribunal to determine eligibility for disabi lity retirement).” Friedman , 310 F.2d at 396. Thus where the servic e member was released from service without a board hearing and subseque n t ly files a c l aim for dis ability retire ment before a militar y co rrection board, “the Correction Board bec omes the fi rst proper board to act (or to be asked to act) on the matter, and the claim does not ripen until that Board’s action is final.” Id. at 392. The Correction Board proceeding “becomes a mandatory remedy; without it, the case in this court would be dismissed as pr emature on the ground that the plaintiff did not seek or obtain a final decis ion within the ad ministrative hierarchy.” Id. (emphasis added). Given the differences underlying claims for unlawful discharge and disability retirement, our ho ld in g in Martinez did not disturb the so-cal led “ f irst competent board rule” of Friedman . Indeed, the government does not contend otherwise. The government instead argues that Chambers’ case falls into an exc eption to the Friedman rule addressed by this court in Real . This exception, acco rding to the government, applies to cases where “the service member is aware of the prospect of disability retirement but does not obtain a decision e n tit ling him to disabilit y retirement from the appropriate board during servic e.” The gov ernment contends that as of 1987, Chambers knew he had PTSD and, based on his 30 percent disability rating from the VA, knew that his PT SD was service connect ed. At that time, the government argues,

2 A Retiring Board, now called Physica l Examination Board or PEB, determines a servic e member’s fitness for duty and entitlement to di sability r e tirement once a Medical Exam ination Board or MEB fi nds the s o ldier does not meet the Army’s standards for retention under its regulations.

04-5134 10Chambers knew all of the fact s supporting his disabilit y retire ment claim, yet failed to apply to the ABCMR until 1999, twelve years later. We do not read Real as broadly as the government. In Real , the trial court dismissed t he pla i ntiff’s claim for disab ility b enefits as time-barred, hold i ng th at his cla i m accrued upon dischar ge from the Navy in 1974, not upon the final decision of the Boar d for the Correction of Naval Rec o rds in 1987. The Court of Federal Claims concluded that, even though Real knew or should have known that he suffered from signific ant medical pr oblems prior to discharge and underst ood that he w ould be inelig ible for future disability benefits if he did not challen ge the Nav y ’s finding that he was fit for duty, he did not contest that dete rmination and thus waiv ed the right to further review. Real v. United States , 18 Cl. Ct. 118, 128 (Ct. Cl. 1989)

. 3 On appeal, this court began by r e stat ing the general r u le of Friedman that if the service member had neither re quested nor been offered cons ideration by a disability board prior to dischar ge, the lat e r denial of hi s petition by a correct ions board, not his

3 The Claims Court found a striking s i m ilarity between Re al’s c a se and Huffaker v. Un ited Sta t es , 2 Cl. Ct. 662 (1983). In Huffaker , the plaintiff was examined by Navy physicians upon discharge and found fit fo r duty. 2 Cl. Ct. at 663. He then certified that he was informed of and u nderstood the provision of BUMEDNIST INSTRUCT ION 6120.6, providin g that “all personnel of the naval service be made aware of t he poss i bility of bein g den ied an y [disab ility ] benefits . . . by rea s on of n o t rebutting, under certain circumstances, a fi nding that they are fit for duty.” Id. at 664. The Court of Claims held that [p]laintiff’s failure to act in res ponse to t he Navy ’s conditioning further medical ev aluation upon plai ntiff’s objections, and assertion that absent an objection plaintiff would receive no fu rther consideration, amounted to a waiver by plaintiff. In turn, the waiv er of any further action triggered the running of the limit ations period. Id. Huffaker’s certification thus amounted to a waiver of his rights to a phys i cal evaluation board and triggered the running of the statute of limitations.

04-5134 11discharge, triggers the statute of limitations. “However,” we explained, “there are circumstances under which the service mem ber’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 (c iting Miller v. United States , 361 F.2d 245, 175 Ct. Cl. 871 (1966); Huffaker , 2 Cl. Ct. 662). Specifically , such failure can invoke the statute of l i mitations when the service mem ber has sufficient actual or constructive notice of his disability, and hence, of his enti tlement to disability re tirement pay, at the time of discharge. Id. at 1562. Real thus f r amed the issue bef or e it as “[w]hether the veteran’s knowledge of the exis tence and extent of his condition at the ti me of his discharge was sufficient to justify concluding that he waived the right to board review o f the service’s finding of fitness by failing to demand a board prior to his discharge.” Id. Such knowledge, this court held, must be determined by reference to the statutory requiremen t s for disability retirem ent, namely, 10 U.S.C. § 1201. Id. Because the trial court failed to gauge Real’s knowledge by re ference to section 1201, we reversed and remanded, noting that [w]hen the state of Real’s knowledge of his condition is measured with regard to [statutory] requirement s, it is highly questionable whet her he should be f ound to have had either act ual or constructive knowledge that he was ent itled to dis ability benefits. There is no indication in the record before this court that Real could (l et alone should) have known that he was suffering from a permanently disabling disorder in 1974. Id. at 1563. Real thus concerned the service member’s k nowledge at the time of disc harge , not, as here, many years after discharge. Real did not fashion a rule, as the government suggests, that a ser v ice member’s claim accrues when he lea r ns of his disabling c ondition, whether before or after discharge. Indeed, such a rule would be

04-5134 12untenable, given that a military b oard must determine elig ibi lity fo r disab ility retirement before such a claim accrues. There can be no waiver of board review absent an opportunity for such review, as at discharge. Simply put, after discharge, a veteran has nothing to waive. The appr opriate inquiry under Real , therefore, is whether at the time of his separation from the Army in 1970, Chambers knew t hat he was entitled t o disab ility re tirement due to a permanent dis ability that was not a result of his intentiona l misconduct and was service-connected. We hold t hat the record is bereft of any evidenc e that Cham bers poss e ssed suc h knowledge. The medical diagnose s Chambers received prior to discharge — “t ransient stress reaction,” “transient situational stress,” and “mild s i tuational anxiet y” — all indic a ted t hat his condition wa s minor, temporary, and circumstantial. Noth ing in the record indicates that Chambers considered these diagnoses to be erron eous. Chambers also knew that he was returned to regular duty after his brief hospi t a lizations. Thus, in 1970, he ha d no basis for concluding the Army erred in finding him fit for duty and hence s u itable for discharge. The Real exception does not apply. We, therefore, follow the general rule in Friedman to hold that Chambers’ c a use of action for disability retire ment benefits in the Court of Federal Claims did not accrue until the ABCMR, the first competent board, fi nally denied his cla i m in September 2000. Because Chambers filed his Tucker Act suit in 2003, within the si x-year limitations period of 28 U.S.C. § 2501, his claim for disability retirement pay was not time barred. Jurisdiction in the Court of Federal Claims, as well as this court, w a s thus proper.

04-5134 13II. We review a decision of the Court of Federal Claims gr anting or denying a motion for judgment on the administrat ive record without deference. McHen r y v. United States , 367 F.3d 1370, 1377 (Fed. Cir. 2004) . That is, we reapply the statutory review standards. Accordingly, we will n o t disturb t he decision of the corrections bo ard unless it is arbitrary, capricious, contrary to law, or unsupported by substantial evidence. Haselrig v. United States , 333 F.3d 1354, 1355 (Fed. Cir. 2003)

. We agree with the Court of Federal Claim s that the decision of the Board had substantial evidentiar y support. As an initial matter, we note that the Army regulations in effect at the time of Chambers’ discharge in 1970, rather than current regulatio n s, guide our analysis. At the time of discharge, and the pre-discharge medical examinatio n, Chambers was ef fectively pe rforming his milit ary duties. As the Board correctly determined, therefor e, under the standards set by the U.S. Army Physical Disab ility Agency, Cha m ber s was presumed fit. Moreover, we cannot say t hat the physic i an who exam ined Chambers prior to his separation from active duty erred in conc luding, based on Chambers’ medical record and the governing Army regul ations, that Chambers su ffered no psychologic al abnormalities. After all, in 1970, AR40 -501 provided that “transient personalit y disruptions of a nonpsychotic nature and sit uational maladjustments due to acute or special stress do not render an individual unfit.” Chamber s’ pre-discharge diagnoses — “transient stress reaction,” “transi ent situat ional distress,” and “mild situation a l anxiety” — appear to fall squarely wit hin the boundaries of AR40-501. T he B oard likewise did not err in determining that Chambers’ sympt oms lacked the c r iteria for referral to a

04-5134 14Medical Examination Board set out in AR40-501, i.e. , “persistence or recurrence . . . sufficient to require extended or recurrent hospitaliz a tion, nece ssity for limitations of duty or duty in protected envir on ment or resulting in inte rference with effective military performance.” Each of Chambers’ three m edical inc i dents was of short duration and had no effect on the scope or performance of his mi litary duties. In sum, under the standards in existenc e in 1970, Chambers was fi t for duty. This is not to say that, in retrospect, Chambers’ symptom s appear unrelated to PTSD . Indeed, the VA deemed Chambers’ PTSD service-c onnected and, ultimately, awarded him a 100 percent disab ility rating. Chambers, however, cannot now complain t hat the Army failed to diagnose him in 1970 with a psychological condition unknown until 1980. This fact alone distinguishes Chambers’ case from Proper v. United Stat es , 154 F. Supp. 317 (Ct. Cl. 1957), whic h involved multiple sclerosis, a known disease with known symptoms, whic h presented itse lf sufficiently during s e rvic e member’s active duty to warrant such a diagnosis at the ti me of his separation physical. Chambers’ contention that the ABCMR wrongly relied on an undisclosed “off-therecord” opinion of a Medical Doctor Advisor has little merit. We note that it is unclear whether Chambers preserved this argum ent on appeal by raising it in his reconsider ation papers before the ABCM R or the Court of Federal Claims. In any event, we see nothing nefarious in the Board’ s limited reliance o n the opinion of its own medical advisor, as it is permi tted to do under the statute. See 10 U.S.C. § 1555. The ABCMR, moreover, appears to have relied on this advic e only to observe that the doses of Valium and Librium prescribed to Chambers as a result of his hospitalizations were “low.” Finally, becaus e we hold that subst antial eviden ce supports the ABCMR’s denia l

04-5134 15of Chambers’ claim, any alleged error in the Board’s reliance on suc h advice is harmless. CONCLUS ION For the foregoing reasons, the decision of the Court of Federal Claims is
AFFIRMED

.

04-5134 16

## United States Court of Appeals for the Federal Circuit

04-5134 JAMES S. CHAMBERS, Plaintiff-Appellant,

v.

UNITED STATES, Defendant-Appellee.
DYK, Circuit Judge , dissenting. In Fisher v. United States , 402 F.3d 1167 (Fed. Cir. 2005), we recently held that military disability claims are justiciable. T he majority now holds that such claims do not accrue until a correction board has rejected a disability claim (where the service member acquires knowledge of his disability a fter discharge). Thus, there is effectively no statute of limitations wit h respect to such claims. 1 In my view the result reached here is inconsistent with our en banc decision in Marti nez v. United States , 333 F.3d 1295, 1310 (Fed. Cir. 2003) (en banc), where we held that wrongful discharge claims accrue at the time of the service member’s di scharge and not when a co rrection board rejects the claim. I respectfully dissent from t he majority’s decision that the statute of limitations has not expired. In my view, no theory supports the majority’s conclusion.

1 The correction board does have a three- year statute of limitations. 10 U.S.C. § 1552(b) (2000). But that deadline is routinely waived. See Pl. App. at 51.First, the majority appears to rely on the fa ct that the Secretar y has provided by regulation that disability dete rminations are to be made by a series of medical boards. Ante at 9. The pertinent provisions of the relevant Army regulation, AR 635-40 Physical Evaluation for Retention, Retirement, or Separation , require a commander to refer a solider “unable to perform the dut ies of his or her office” to the responsible medical facility, which then refers the soldier to a Medical Evaluation Board, and then to a Physical Evaluation Board to determine w hether the service member should be discharged for disability. AR 635-40 §§ 4-8, 4-9, 4-10, 4-13 & 4-17(a)(4). The ultimate decision to discharge the service member is finally carried out by the Personnel Command for the Secretary of the Army. Id. §§ 4-19(b), 4-22(g)(5) & 4-24. But there is no provision for convening a Physical Evaluati on Board after the discharge of a member to address disability claims, and the statut e itself does not m andate that only these medical boards make such a determination. See id. § 4-17 (The Physical Evaluation Board “is not a statutory board. Its findings and recommendations may be revised.”). Even if review by a Physical Evaluation Boar d were available after discharge, we have held that failure to resort to such a Board is a waiver of the right to seek a Board determination. See Real v. United States , 906 F.2d 1557, 1560 (Fed. Cir. 1990) (citing Miller v. United States , 361 F.2d 245 (Ct. Cl. 1966)). T hus, where knowledge of the disability is obtained after disc harge, the only administrative route open to the veteran is to seek relief before a correction board—a mechanism that is equally available in unlawful discharge and disability retirement ca ses. The same statute provides for correction board relief in discharge cases and disability retirement cases. See 10 U.S.C. § 1552 (2000).

04-5134 2Second, we held in Martinez that the correction board is permissive only and not essential to the accrual of the cause of acti on, stating that “an app lication to a correction board is therefore not a mandat ory prerequisite to filing a Tucker Act suit challenging the discharge.” 333 F.3d at 1304. If resort to a correction board is permissive in discharge cases, it is permissive in dis ability cases, and cannot toll the limitations period. Under Martinez correction board exhaustion is not r equired. “A cause of action cognizable in a Tucker Act suit accrues as soon as all events have occurred that are necessary to enable the plaintiff to bring suit.” Id. at 1303. 2 Third, the majority (correctly) notes t hat the 40-year-old dec ision in Friedman v. United States , 310 F.2d 381 (Ct. Cl. 1962) held that a “judicial claim for disability retirement pay does not accrue on releas e from active duty but rather on final action of a board competent to pass upon eligibility for di sability retirement (or upon refusal of a request for such a board).” Id. at 395-96. But in my view Friedman is not consistent with Martinez . It is true that we did not directly overrule Friedman in Martinez , and indeed cited that case in the majority opinion. Martinez , 333 F.3d at 1304. But the Martinez opinion cited Friedman for a proposition directly opposite to the majority’s holding here. Martinez cited Friedman for the proposition that “[t]his court and the Court of Claims have frequently addressed and rejected the argument that t he cause of action for unlawful discharge does not accrue until t he service member seeks relief from a

2 The dissent in Martinez advocated a theory that a second cause of action accrued under the correction boar d statute, which the diss ent regarded as money mandating. See id. at 1321 (Plager, J., dissenting) . Chambers does not argue here that a separate cause of action accrued in 2000, when the correction board denied his claim.

04-5134 3correction board.” Id. (citing Friedman , 310 F.3d at 396). Under these circumstances Martinez can hardly be read as endorsing the majority’s view of Friedman

. Fourth, the majority holds that the difference between the result here and the result in Martinez is justified by t he statutory language of 10 U.S.C. § 1201, which specifies that “[u]pon a determi nation by the Secretary concer ned that [the] member . . . is unfit to perform the duties of the member’s office . . . because of physical disability . . . the Secretary may retire the member, with reti red pay . . . .” 10 U.S.C. § 1201 (2000). A secretarial determination is also required in the dischar ge of service personnel before the expiration of their enlistment. 10 U.S.C. § 1169 (2000); Harmon v. Brucker , 355 U.S. 579, 582 (1958) (“Congress gr anted to the Secretary of t he Army authority to issue discharges.”). Thus both in the disability context and in Martinez , there is a challenge to the Secretary’s determination, and that challenge is a predi cate to success on the claim for compensation. In Martinez , the plaintiff prayed that t he Secretary’s determination of misconduct in an Article 15 proceeding be expunged, that he be restored to active duty and be retroactively promoted, and that he be awarded back pay as a consequence. See 333 F.3d at 1300. In the present case, Chambers seeks to have the Secretary’s determination of honorably discharging him conver ted to a disability retirement, and that he be awarded disability retirement benefits as a consequence. The requirement of a secretarial determination in § 1201 does not pr ovide any basis to distinguish Martinez

. Finally, the majority’s holding today perpetuates a serious anomaly in our disability retirement jurisprudence. Under Real , if a service member has knowledge of his disability at the time of discharge and fails to demand a Physical Evaluation Board, he is deemed to have waived the right to board evaluation and the cause of action

04-5134 4accrues immediately upon discharge. 906 F.2d at 1562. Under the majority’s holding today, however, if that same service mem ber acquires knowledge of his disability the day after discharge, he must resort to a co rrection board, and the cause of action does not accrue until after a correction board has ruled. Of course, it would be unfair to hold t hat a service member who was unaware of a disability is nonetheless barred from suit by the passage of six years from the time of discharge. This problem is solved by the doctrine that “t he accrual of a claim against the United States is suspended, for purposes of 28 U.S.C. § 2501, until the claimant knew or should have known that the claim existed.” Martinez , 333 F.3d at 1319. Chambers was diagnosed with Post-Traumatic Stress Disorder in 1987, and applied (successfully) for veterans benefits. Despit e having knowledge of his disability claim, Chambers did nothing for the next 12 years, and did not file suit in the Court of Federal Claims until 2003. In these circumstances his claim is barred. In summary, under the majority’s holdi ng, where the service member acquires knowledge of disability after discharge, ther e is effectively no Tucker Act statute of limitations. The majority’s holding opens the door to stale claims that are decades old. I respectfully dissent from the majority’s holding as to the statute of limitations.

04-5134 5