# ORIGI AL 3Jn tbe Wniteb**~tate5 ~ourt**  

# ofjf 

# eberal**~laims** No. 15-1583C (Filed: March 18, 2016) (NOT TO BE PUBLISHED)

CARLOS A. ALFORD, Plaintiff,



### v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

### ~~~~~~~~~~~~~~~ 

### )

Carlos A. 

### Alford,

### prose, Wilmington, North Carolina. 

# FILED MAR 1 8

# 2ms U.S. COURT OF FEDERAL CLAIMS



### IdaNassar, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department ofJustice, Washington, D.C., for defendant. With her onthe briefs were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr., Director, and Steven J. 

### Gillingham, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department ofJustice, Washington, D.C. Ofcounsel was Major Cindie Blair, General Litigation Division, Office ofthe Judge Advocate General, United States Marine Corps, Department ofthe Navy, Washington, D.C.

ORDERFOR THE UNITED STATES TO SHOW CAUSE 

### LETTOW, Judge. Mr. Carlos A. 

### Alford, a former United States Marine, brings this action claiming entitlement to disability benefits and seeking restoration ofrank, improvement in the grade ofhis discharge, and back pay. The United States has responded with a motion to dismiss his claims for lack of jurisdiction. Def.'s Motion to Dismiss, ECF No. 5. With respect to his disability benefits claim, the United States argues that this court lacksjurisdictionbecause he has not presented the claimto a military board. 

### Id. at 6 (citing 

### Chambers v. UnitedStates, 417 F.3d 1218, 1224 (Fed. Cir. 2005)). Pursuantto 

### Chambers, this court generally may nottake jurisdiction over "claims ofentitlementto disability retirement pay" unless "the appropriate military board either finally denies such a claim orrefuses to hear it." 417 F.3d at 1224 (citing 10 U.S.C. § 1201). 1Contrary to the government's argument, the record in this case suggests that Mr. Alford may have presented his disability claim to a military board. Accordingly, the court issues this show-cause order to the United States, requesting an explanation as to why its motionto dismiss should not be denied with respect to the disability claim. 

### BACKGROUND
A. Mr

.AlfordFiles Suit in This Court, and Then in UnitedStates District Court, Which Orders Reconsideration by the Board for Correction of NavalRecords Mr. Alford served in the United States Marine Corps from 1981 through 1984, whenhe was given an other-than-honorable discharge for "misconduct due to minor disciplinary infractions." Compl. at 11. During this time, Mr. Alford was charged with at least one drug infraction involving marijuana. He re-enlisted in 1985 by concealing his prior discharge and was dishonorably discharged for bad conduct in 1988. Compl. 11-12. Duringthe years that followed, Mr. Alford filed roughly 30 applications with the Board for Correction ofNaval Records ("Board" or "Navy Correction Board"). SeeAlfordv. UnitedStates, 123 Fed. Cl. 62, 64 n.4 (2015) ("Alford VF'). In 2010, he filed suit in the Court ofFederal Claims, seeking restoration ofrank, correction ofrecords, backpay, and disability benefits. Alfordv. UnitedStates, No. 10-525, slip op. at 1 (Fed. Cl. Mar. 9, 2011) ("Alford

### I"). The court dismissed the case for lack of jurisdiction. Id. at 8. In the order ofdismissal, Judge Wiese carefully considered each of plaintiff's claims. Beginning with Mr. Alford's claim for disability retirement, Judge Wiese found that he had not presented his claim to a military board and consequently dismissed that claim for lack ofsubject matterjurisdiction. Id. at 5. Mr. Alford's remaining claims were likewise dismissed, although on timeliness grounds. Id. at 6-8. Undeterred, in 2011 Mr. Alford filed suit in the United States District Court for the Eastern District ofNorth Carolina. See Compl.,Alfordv. Pfeiffer, No. 11-38 (E.D.N.C. Feb. 2, 2011) ("AlfordII"). The complaint soughtto remove a positive drug test from his record, to raise his discharge to honorable, and to establish entitlementto backpay. Id. at 3. Mr. Alford also asserted that "I am disabled. I suffer from Paranoia Schizophrenia, Major Depression, and PTSD." Am. Compl.,AlfordII, No. 11-38, (E

.D.N.C. Mar. 23, 2011). To supporthis claims, Mr. Alford submitted the results ofa polygraph examination regarding whetherhe everused marijuana while in the Marine Corps, mental healthrecords from an examination conducted on November 18, 2011, and mental health records from a Veterans Affairs ("VA") hospital examination conducted January 20, 2012. AlfordII, No. 11-38, 2012 WL 548806, at *4 (E.D.N.C. Feb. 21, 2012). The mental health records apparently indicated that Mr. Alford is afflicted with mental illness. Id. "The stated purpose ofthe [January 20, 2012 mental health] examination was 'to determine whether [Mr. Alford] was "insane" due to a mental health disease when he committed the offenses that [led] to his dishonorable discharge from service in June 1984 and in June 1988."' Id. The VA examiner opined that "[i]t is [at] least as likely as not that Mr. Alford was 'insane' due to a mental health disease when he committed the offenses that [led] to his dishonorable discharge from service in June 1984 and in June 1988

." 

### Id. (alterations in original). The district court inNorth Carolinareviewed this new evidence, which the Boardhad



### 2not had an opportunityto consider, and on February 21, 2012 granted the government's motion to dismiss withoutprejudice on the ground that Mr. Alford had not exhausted his remedy before the Navy Correction Board. Id. The Board subsequently considered Mr. Alford's case anew and denied it onJanuary 10, 2013. See United States' Motion to Remand at 3,Alfordv. Mabus, No. 13-15 (E

.D.N.C. Aug. 23, 2013) ("AlfordIII"). But in doing so, it failed to considerthe new evidence. See id. Not accepting this result, Mr. Alford again filed suit on February 8, 2013 inthe Eastern District of North Carolina challengingthe denial. Am. Compl. at 3,AlfordIII, No. 13-15 (E.D.N.C. Feb. 8, 2013). His complaint requested restoration ofrank, restatement ofhis discharge to honorable, a "full medical discharge," and backpay. Amendmentto Am. Compl. at 4,AlfordIII, No. 13-15 (E.D.N.C. Feb. 13, 2013). In response, the United States conceded that the Board "improperly" denied consideration and requested a remand to the Board. United States' Motionto Remand at 3,AlfordIII, No. 13-15 (E.D.N.C. Aug. 23, 2013). The United States' motion argued that [r]emand is appropriate inthis case because the [Navy CorrectionBoard] did not considerthe other matters providedbythe plaintiffin his petition, as was contemplatedby [the District Judge's February 21, 2012] Order. These matters include 1) the polygraph regarding marijuanause; 2) the mental health examination from 18 November 2011; 3) the VA Medical Center examination on 20 January 2012; and any other matters presentedthatwere notpreviously considered. Id. at 3-4. The district court granted the remand motion on January 10, 2014. Judgment,Alford III, No. 13-15 (E.D.N.C

. Jan

. 10, 2014). 1
Onremand, the Board reconsidered Mr. Alford's claims, and onJuly 7, 2014 it again denied them. Citing SECNA V Instruction 5420.193, enclosure (1), the Board explained that further consideration ofan application will be granted only uponpresentation by the applicant ofnew and material evidence or othermatternotpreviously considered by the Board. Newevidence is defined as evidence notpreviously considered by the Board andnotreasonably available to the applicant atthe time ofthe previous application. Evidence is material ifit is likely to have a substantial effect on the outcome. Pl.'s Supplemental Brief("Pl.'s Supp. Br.") Ex. 3 (setting outthe initial pages ofa decision by the Boardrendered July 7, 2014), ECF No. 10. The Board found the polygraph "is not 'new' because [Mr. Alford] could have submitted a similar report with any of [his] previous applications

... [and] [i]t is not material because it is unlikely to affect the outcome of [his] request for correction of [his] record." Id. The Board notedthat

1Mr. Alford opposed remand and filed an appeal with the United States Court ofAppeals for the Fourth Circuit, which concluded thatthe remand order was a non-final order overwhich it lacked appellatejurisdiction. Alfordv. Mabus, 575 Fed. Appx. 170 (4th Cir. 2014) (per curiam) ("AlfordIV''). 3[t]he examinationwas conducted more than twenty-six years after the date of [his] alleged use ofmarijuana and prior to [his] being diagnosed with psychotic disorders. Itis very likely that the passage oftime, [his] long-term alcohol abuse and use of 'crack' cocaine, the effects of [his] psychotic disorder, and [his] mental state when the examination was conducted, had substantial effects on the results ofthe examination and raise significant concerns about the validity ofthose results. 

### Id. Turning nextto the medical records, the Board found they were not newbecause Mr. Alford could have submitted similarrecords in his prior applications. 

### Id. The Board further found these reports were notmaterial because they did not determine he "suffered from a psychotic disorder during [his] service in the Marine Corps," but instead confirmed merely that he now suffered from mental illness. 

### Id. And despite the VA examiner's conclusionthat it was "at least as likely as not" that Mr. Alford was mentally 

### ill during his tenure in the Marine Corps, the Board did not credit this evidence given that the mental evaluation was largely based on Mr. Alford's own descriptions ofhimself, which the Board found "self-serving." 

### Id. 

### B. Mr

.Alford Convinces the Department ofVeteransAffairs to Upgrade His Discharge While

### AlfordIllwas pending, butpriorto the district court's remand order ofJanuary 10, 2014, the Department ofVeterans Affairs concluded onDecember 23, 2013 that Mr. Alford "was insane at the time in question," 

### i.e., May 29, 1981 to June 29, 1984 and May 29, 1985 to June 28, 1988. Pl.'s Supp. Br. Ex. 1, at 3 (VA Rating Decision (Dec. 23, 2013)). As evidence, the Department ofVeterans Affairs cited the medical examination conducted onJanuary 20, 2012 that plaintiffhad submitted to the Board as new evidence. 

### Id. Then on March 22, 2014, the Department ofVeterans Affairs wrote Mr. Alford a letter concluding that "for VA purposes" the "discharge for the period ofMay 29, 1981 to June 29, 1984 is determined to be honorable." Pl.'s Supp. Br. Ex. 1 (Letter from VAWinston-Salem Regional Office to Mr. Alford (Mar. 22, 2014)), at 1. The letter did not explain why the Department had reached this conclusion, exceptthatthe VA Rating Decision dated December 23, 2013 had said "VA Rating Decision finds you meetthe criteria for insanity at the time in question, both periods ofservice." 

### Id. Ex. 1, at 2. The Department's letter further stated "[t]he claimant is entitledto health care benefits under Chapter 17, Title 3 8 USC, for any disability determined to be service connected for the period May 29, 1981 to June 29, 1984." 

### Id. at 1. C. 

### Jn Light of the Department ofVeteransAffairs'Decision to Upgrade His Discharge andthe Navy Correction Board's Final Decision of July 

### 7, 2014, Mr. AlfordAgain Files Suit Challenging the Board's Decision In 2014, Mr. Alford again filed suit in the United States District Court for the Eastern District ofNorth Carolina, seeking the same remedies as in his prior cases. That court dismissed the suit for lack of jurisdiction on June 23, 2015, finding thatthe case properly belonged in the Court ofFederal Claims pursuant to the TuckerAct, 28 U.S.C. 

### § 1491. 

### Alfordv. Mabus, No. 14- 195, 2015 WL 3885730, at *3 (E.D.N.C. June 23, 2015) 

### ("Alford JI"). Perhaps anticipating that decision, Mr. Alford had filed a complaintwiththe Court ofFederal Claims three months earlier

4

### on March 2, 2015. SeeAlford VI, 

### 123 Fed. Cl. at 62. Butbecause he filed his complaint inthe Court ofFederal Claims before the district court dismissed the action pending there, Mr. Alford fell afoul of28 U.S.C. § 

### 1500, which deprives this court of jurisdiction in cases where a plaintiff has pending a suit regarding the same operative facts in another court, including a federal district court. 

### Id. Pursuantto that statute, the court dismissed his complaint on September 1, 2015, even though the district court had decided that his claims properly belonged in this court under the Tucker Act. Id. 

### at 65-66. Undaunted by these procedural obstacles, Mr. Alford filed this case on December 28, 2015, again seeking restoration ofrank, enhancement ofdischarge, backpay, and disability benefits. ORDER FOR THE UNITED STATES TO SHOW CAUSE Given the foregoing circumstances, the United States is directed to show cause (1) 

### whether Mr. Alford's disability claim was implicated bythe earlier decisions ofthe United States District Court for the Eastern District ofNorth Carolina, considering the fact that his complaints in that court appear to have alleged mental impairments related to his service in the United States Marine Corps; (2) why this court should not takejurisdiction over Mr. Alford's disability claim under the rationale ofChambers, 

### 417 F.3d at 1224, eitherbecause: (a) the Board's actions constitute a final decision denying Mr. Alford's disability claim, or (b) the Board's actions constitute a refusal to hear Mr. Alford's disability claim; and (3) whether the recent decisions ofthe Department ofVeterans Affairs, which found Mr. Alford was "insane" during his enlistments, and which concluded his discharge was "honorable" for "VApurposes," have any effect onplaintiffs claims in this court. The United States shall comply with this order on or before April 8, 2016. It 

### is so ORDERED.

# c~ Judge



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