NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

DONALD W. ZAPPLEY, SR.,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

______________________ 

2013-5046

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 10-CV-0299, Judge Francis M. Allegra.

______________________ 

Decided: June 25, 2013 

______________________ 

DONALD W. ZAPPLEY, SR., of Gladstone, Michigan, pro 

se. 

ROBERT C. BIGLER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for defendant-appellee. With 

him on the brief were STUART F. DELERY, Acting Assistant 

Attorney General, JEANNE E. DAVIDSON, Director, and 

FRANKLIN E. WHITE, JR., Assistant Director. 

______________________ 

Before PROST, O’MALLEY, and REYNA, Circuit Judges.
2 DONALD ZAPPLEY, SR. v. US

PER CURIAM. 

Appellant Donald W. Zappley seeks review of decisions of the Court of Federal Claims dismissing his claim 

for wrongful discharge as barred by the statute of limitations, granting judgment in favor of Defendant on the 

parties’ cross-motions for judgment on the administrative 

record, and denying his request to supplement the administrative record. Because Mr. Zappley did not file his 

wrongful discharge suit within the limitations period, the 

Court of Federal Claims did not err by dismissing the 

wrongful discharge claim. Nor do we find that the decision in favor of Defendant on the parties’ cross-motions 

for judgment on the administrative record to be arbitrary, 

capricious, contrary to law, or otherwise lacking substantial evidence. Finally, we affirm the Court of Federal 

Claims’ decision to deny Mr. Zappley’s request to supplement the administrative record. We therefore affirm. 

BACKGROUND 

The present dispute stems from Mr. Zappley’s service 

in the United States Navy (the “Navy”), which began on 

February 1, 1973. Prior to his enlistment, on January 4, 

1973, Mr. Zappley was examined by Navy personnel and 

found to be in “very good health.” 

On July 5, 1973, Mr. Zappley was injured during an 

altercation with another sailor while aboard the U.S.S. 

Independence.1 On July 9, 1973, following the altercation, Mr. Zappley was evaluated by the Flight Surgeon 

and Medical officer of the Independence who diagnosed 

him with “Inadequate Personality.” The medical officer

concluded that the inadequate personality diagnosis 

1 This altercation led to the other sailor serving a 

30-day sentence in the ship’s brig and being dishonorably 

discharged from the Navy. 

 
 DONALD ZAPPLEY, SR . v. US 3

rendered Mr. Zappley unsuitable for duty and recommended that he be discharged from the Navy. Mr. Zappley was notified that he was being considered for 

discharge on July 23, 1973, but declined to make any 

statement in response to the notice. On July 24, 1973, the 

Commanding Officer of the Independence recommended 

that Mr. Zappley be processed for discharge. 

On August 16, 1973, Mr. Zappley received a discharge 

exam. During this exam, he did not display any injury, 

disease, disability, or defect with his left eye and his 

vision was tested to be 20/20 for both eyes. No record of 

any residual disabling effects due to the contusions to his 

nose and brow was reported. He was also found to be 

physically qualified for duty and, notwithstanding his 

inadequate personality diagnosis, was able “to perform all 

the duties of his rate both at sea and foreign shore.” On 

August 20, 1973, Mr. Zappley was honorably discharged 

from the Navy.

Since his discharge, Mr. Zappley periodically requested service-connected disability benefits related to alleged 

injuries to his left eye. In response, he was examined in 

1995, 2000, and 2001 by doctors at the Department of 

Veterans Affairs (the “VA”) and found to have 20/20 

eyesight or better in his left eye. The VA also noted that 

his medical records indicated that he suffered injuries in 

the 1973 altercation, but there was no evidence that those 

injuries would be chronic or have any residual disabling 

effects on Mr. Zappley. The report further acknowledged

that Mr. Zappley sustained an intervening injury to his 

left eye in a car accident in 1987. 

On January 8, 2003, Mr. Zappley petitioned the Board 

for Corrections of Naval Records (BCNR), requesting that 

his military record be changed to reflect that the 1973 

altercation that led to his discharge was a “sneak attack” 

and not a “fight” and the basis for his discharge was 

physical disability rather than unsuitable personality. 

The BCNR made requests for additional information from 

Mr. Zappley and the VA, but no VA ratings decisions were 
4 DONALD ZAPPLEY, SR. v. US

provided in response to those requests. On the record 

before it, the BCNR denied Mr. Zappley’s petition to

change his military record on June 30, 2005, concluding

that there was insufficient evidence to establish a material error or injustice in his military record. 

Mr. Zappley then sought reconsideration of the 

BCNR’s determination, relying in part on a ten-percent, 

service-connected disability benefit granted by the VA on 

March 16, 2005. This VA decision was not provided to the 

BCNR before it denied Mr. Zappley’s original request. 

The VA’s March 16, 2005, disability award arose from 

Mr. Zappley’s argument that his 1987 motor vehicle 

accident aggravated the pre-existing injury to his left eye

sustained during the July 5, 1973, altercation. In granting the benefit, the VA admitted it was “acknowledging 

service connection for the mild superior temporal field 

distortion in [Mr. Zappley’s] left eye and assigning a 

disability evaluation of 10 percent for that condition 

effective March 14, 1995.” Despite the VA’s assignment of 

a ten-percent disability rating, the BCNR determined that 

Mr. Zappley had failed to submit any new evidence that 

warranted reconsideration. 

On May 17, 2010, Mr. Zappley filed a complaint in the 

United States Court of Federal Claims (“Court of Federal 

Claims”). The complaint included a claim for wrongful 

termination and an appeal of the BCNR’s denial of his 

request for corrective action.2 The Court of Federal 

Claims dismissed the wrongful termination claim as timebarred by the statute of limitations and remanded the 

claim for corrective action to the BCNR for further consideration in light of the VA’s ten-percent disability 

award. 

2 Mr. Zappley’s complaint also included tort and 

criminal claims that are not at issue in this appeal. 

 
 DONALD ZAPPLEY, SR . v. US 5

Upon remand, the BCNR denied Mr. Zappley’s request for reconsideration. The BCNR concluded that the

submission of the VA’s ten-percent disability determination was untimely because it was reasonably available to 

Mr. Zappley prior to the BCNR’s initial June 30, 2005, 

decision. The BCNR also found that the VA’s ten-percent 

disability rating was not probative of the existence of 

material error or injustice in Mr. Zappley’s naval record 

because the VA explicitly granted the disability rating 

“without regard to the issue of your fitness for military 

duty on 20 August 1973.” 

On October 12, 2011, Mr. Zappley filed a motion to 

supplement the record which the Court of Federal Claims 

denied. Thereafter, the parties filed cross-motions for 

judgment on the administrative record and the Court of 

Federal Claims granted judgment in favor of Defendant. 

Mr. Zappley appeals. 

DISCUSSION

A. WRONGFUL TERMINATION

The Court of Federal Claims is a court of specific jurisdiction and can only resolve claims for which the United States has waived sovereign immunity. United States. 

v. Testan, 424 U.S. 392, 399 (1976) (“the United States, as 

sovereign, ‘is immune from suit save as it consents to be 

sued . . . and the terms of its consent to be sued in any 

court define that court’s jurisdiction to entertain the 

suit.’”) (quoting United States v. Sherwood, 312 U.S. 584, 

586 (1941)). Pursuant to the Tucker Act, the Government 

has waived sovereign immunity for certain claims seeking 

monetary relief in the Court of Federal Claims. Martinez 

v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en

banc). 

The statute of limitations is a jurisdictional requirement of the government’s waiver of sovereign immunity. 

Maclean v. United States, 454 F.3d 1334, 1336 (Fed. Cir. 

2006). The waiver of sovereign immunity is embodied in 

28 U.S.C. § 2501, which mandates that “[e]very claim of 
6 DONALD ZAPPLEY, SR. v. US

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 “as soon as all events 

have occurred that are necessary to enable the plaintiff to 

bring suit.” Martinez, 333 F.3d at 1303. 

Here, Mr. Zappley was honorably discharged from the 

Navy on August 20, 1973. At that time, Mr. Zappley was 

informed that he was being discharged due to inadequate 

personality. He participated in a hearing regarding his

discharge and was notified of his right to make a written 

statement concerning the inadequate personality diagnosis and discharge. Instead of contesting his discharge at 

that time, he declined to make a written statement. He 

thereafter signed his “Record of Discharge,” which expressly indicated that he was being discharged for “unsuitability,” without any apparent protest. 

In addition to the information known by Mr. Zappley 

contemporaneous with his discharge, in 1977, he obtained 

a copy of his naval personnel records, including records 

addressing his discharge. He used those records in connection with a 1977 disability application to the VA. 

According to Mr. Zappley, this 1977 application “placed 

the [government] on notice” that he disputed certain 

statements in his Navy records and considered them “not 

to be relevant to inadequate personality and unsuitability.” (Appellant’s Informal Br. 3.)

It has long been settled law that in a military discharge case, a plaintiff’s cause of action accrues at discharge. Martinez, 333 F.3d at 1303. Mr. Zappley did not 

contest his discharge until May 17, 2010, nearly four 

decades after it occurred. The record indicates that he 

knew in both 1973 and 1977 that the reason for his discharge was a medical determination of inadequate personality, but Mr. Zappley failed to challenge the medical 

determination within six years of discharge and we see 

nothing in the record that would justify disregarding the 

six-year limitations period in this case. Thus, on the 
 DONALD ZAPPLEY, SR . v. US 7

record before us, we determine that the Court of Federal 

Claims properly dismissed Mr. Zappley’s claim of wrongful termination for lack of jurisdiction. 

B. JUDGMENT ON THE ADMINISTRATIVE RECORD

Mr. Zappley appeals the Court of Federal Claims’ 

judgment on the administrative record that affirmed the 

BCNR’s refusal to correct his military records to reflect a 

disability-based discharge. We review a decision of the 

Court of Federal Claims on a motion for judgment on the 

administrative record de novo. Chambers v. United 

States, 417 F.3d 1218, 1227 (Fed. Cir. 2005). Accordingly, 

we apply the same standard as the Court of Federal 

Claims and will not disturb the decision of the BCNR 

unless it was arbitrary, capricious, contrary to law, or 

unsupported by substantial evidence. Barnick v. United 

States, 591 F.3d 1372, 1377 (Fed. Cir. 2010). Substantial 

evidence means that “there exists ‘such relevant evidence 

as a reasonable mind might accept as adequate to support 

a conclusion.’” Nippon Steel Corp. v. U.S., 458 F.3d 1345, 

1351 (Fed. Cir. 2006) (quoting Universal Camera v. Nat’l 

Labor Relations Bd., 340 U.S. 474, 477-78 (1951)). 

The BCNR based its decision on medical records and 

letters created at the time of Mr. Zappley’s discharge. 

Those records support the fact that Mr. Zappley was 

discharged on the basis of unsuitability due to inadequate 

personality. The medical records indicate that Mr. Zappley received a discharge exam wherein he was deemed

physically qualified for duty, and that he had no lasting 

injury or disability to his left eye. The BCNR further

noted that Mr. Zappley displayed no disability or abnormality in his left eye when he was examined by the VA in 

1995, 2000, and 2001. We therefore agree with the Court 

of Federal Claims that the BCNR’s decision was not 

arbitrary, capricious, contrary to law, or unsupported by 

substantial evidence. 

We agree, moreover, that the BCNR did not err when 

it denied Mr. Zappley’s motion for reconsideration, either 
8 DONALD ZAPPLEY, SR. v. US

initially or on remand. The BCNR was correct that VA’s 

March 16, 2005 ten-percent disability rating was not new 

and material evidence because it issued prior to the 

BCNR’s July 12, 2005 decision and had not been presented to the Board before that July decision.

Finally, Mr. Zappley also challenges the denial of his

motion to supplement the administrative record in the 

Court of Federal Claims. Here, our review of the Court of 

Federal Claims’ denial to supplement the administrative 

record is reviewed for an abuse of discretion. Axiom Res. 

Mgmt., Inc. v. United States, 564 F.3d 1374, 1378 (Fed.

Cir. 2009). Mr. Zappley filed his motion to supplement 

the administrative record on October 12, 2011. Despite 

that the vast majority, if not all, of the documents existed 

long before he attempted to add them to the administrative record, Mr. Zappley has given no explanation for his 

failure to timely present these documents to the BCNR so 

that they would have been part of the administrative 

record so that they could be reviewed by the BCNR in the 

first instance. Under these circumstances, the Court of 

Federal Claims did not abuse its discretion in refusing

Mr. Zappley’s untimely submission of these materials. 

CONCLUSION

In view of the foregoing, we affirm the Court of Federal Claims decision to dismiss Mr. Zappley’s wrongful 

termination claim on the ground that it is barred under 

the statute of limitations and that the BCNR did not act 

arbitrarily, capriciously, or contrary to law, in refusing to 

correct his naval records. Accordingly, the decision of the 

Court of Federal Claims is 

AFFIRMED. 

COSTS

No Costs.