N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ DONALD W. ZAPPLEY, S R., Plaintiff

- Appellant,

v.

UNITED STATES, Defendant

- Appellee.

______________________

2013

- 5046

______________________ Appeal from the United State s Court of Federal Claims in No. 10

- CV

- 0299, Judge Francis M. Allegra.

______________________

Decided: June 2 5 , 2013

______________________

D ONALD W. Z APPLEY , S R ., of Gladstone, Michigan, pro

se.

R OBERT C. B IGLER , Trial Attorney, Commercial Litig ation Branch, Civil Division, United States Department of Justice, of Washington, DC, for defendant

- appellee. With him on the brief were S TUART F. D ELERY , Acting Assistant Attorney General, J EANNE E. D AVIDSON , Director, and F RANKLIN E. W HITE , J R ., Assistant Director.

______________________

Before P ROST , O’M ALLEY , and R EYNA , Circuit Judges.DONALD ZAPPLEY , SR

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P ER C URIAM

. Appellant Donald W. Zappley seeks review of dec isions o f the Court of Federal Claims dismissing his claim for wrongful discharge as barred by the statute of limit ations

, granting judgment in favor of Defendant on the parties’ cross

- motions for judgment on the administrative record , and denying his request to supplement the admi nistrative record

. Because Mr. Zappley did not file his wrongful discharge suit within the limitations period , the Court of Federal Claims did not err by dismis sing th e wrongful discharge claim

. Nor do we find that the dec ision in favor of Defendant on the parties’ cross -motions for judgment on the administrative record to be arbitrary, capricious, contrary to law , or other wise lacking substa ntial evidence. Finally, we affirm the Court of Federal Claim s’ decision to deny Mr. Zappley’s request to suppl ement the administrative record. We therefore affirm

. B ACKGROUND 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 a n altercation with another sailor while aboard the U.S.S. Independence. 1 On July 9, 1 973, following the alterc ation, Mr. Zappley was evaluated by the Flight Surgeon and Medical officer of the Independence who diagnosed him with “Inadequate Personality.” The medical officer conclu ded that the i nadequate p ersonality 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

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rendered Mr. Z appley unsuitable for duty and reco mmended that he be discharged from the Navy. Mr. Za ppley 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 Comm anding 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, h e 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 w as reported. He was also found to be physically qualified for duty and, not withstanding his i nadequate 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 reques ted service

- connected disability benefit s 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. T he 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 dis charge 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 wereDONALD ZAPPLEY , SR

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provided in response to those requests

. On the record before it, t he BCNR denied Mr. Zappley’s petition to change his military record on June 30, 2005

, conclud ing that there was insufficient evidence to establish a mater ial error or injustice in his military r ecord.
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 ar gument that his 1987 motor vehicle accident aggravated the pre

- existing injury to his left eye sustained during the July 5, 1973

, alter cation. I n gran ting t he 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 eff ective March 14, 1995.” De spite 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 cl aim for wrongful termination and a n appeal of the BCNR’s denial of his request for corrective action

. 2 The Court of Federal Claims dismiss ed the wrongful termination claim as time

barred by the sta tute of limita tions and remanded the claim for corrective action to the BCNR for further co nsideration 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

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U pon remand, the BCNR denied Mr. Zappley’s r equest for reconsideration . The BCNR concluded that the submission of the VA’s ten

- percent disability determin ation was untimely because it was reasonably availa ble to Mr. Zappley prior to the BCNR’s initial June 30, 2005, decision. T he BCNR also found that the VA’s ten

- percent disability rating was not proba tive 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 a ppeals.

D ISCUSSION

A. W RONGFUL T ERMINATION

The Court of Federal Claims is a court of specific j urisdic tion and can only resolve claims for which the Uni ted 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 requir ement of the government’s waiver of sovereign immunity. Maclean v. United States , 454 F.3d 1334, 1336 (Fed. Cir. 2006). Th e waiver of sovereign immunity is embodied in 28 U.S.C. § 2501 , whi ch mandates that “ [e]very claim ofDONALD ZAPPLEY , SR

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which the United States Court of Federal C laims has jurisdiction shall be barred unless the petition thereon is filed within six years af ter 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 th at time , Mr. Zappley was informed that he was being discharged due to i nadequate

p ersonality. He participated in a hearing regarding his discharge and was notifi ed of his right to make a written statement concerning the i nadequate personality diagn osis and discharge. Instead of contesting his disch arge at that time, he de clined to make a written statement. He thereafter signed his “Record of Discharge

, ” which e xpressly indicat ed that he was being discharged for “u nsuitabil ity, ” 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 n aval personnel records , including records addressing his discharge

. He used those records in co nnection 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 unsuitabi lity.” (Appellant’s Informal Br. 3 .)
It has long been se ttled law that in a military di scharge case, a plainti ff’s cause of action accru es at di scharge. Martinez , 333 F.3d at 1303. Mr. Zappley did not
contest his discharge until May 17, 2010, nearl y four decades after it occurred

. The record indicates that he knew in both 1973 and 1977 that the reason for his di scharge was a medical determination of i nadequate pe rsonality , but Mr. Zappley failed to challenge th e medical determination within six years of discharge and w e see nothing in the record that would j ustify disregarding the six

- year limitations period in this case

. Thus, o n theDONALD ZAPPLEY , SR

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record before u s, we determine that the Court of Federal Claims properly dismissed Mr. Zappley’s claim of wron gful termina tion for lack of jurisdiction.

B. J UDGMENT ON THE A DMINISTRATIVE R ECORD 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 Fe deral 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 B CNR 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 m ight 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 bas ed its decision on m edical records and letters created at the time of Mr. Zappley’s discharge

. Those records su pport the fact that Mr. Zappley was discharged on the basis of unsuitability due to inadequate personality . The medical records indicate that Mr. Za ppley 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 abno rmality in his left eye when he was examined by t he VA in 1995, 2 000, 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, eitherDONALD ZAPPLEY , SR

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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 presen te d to the Board before that July decision.
Finally, Mr. Zappley also challenges t he denial of his motion to supplement the administrative record in the Court of Federal Claims

. Here, o ur review of the Court of Federal Claims ’ d enial to supplement the admin istrative 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 administr ative record

, Mr. Zappley has given no explanation for his failure to timely present these docu ments to the BCNR so that they w ould have been part of the admin istrative record so that they could be reviewed by the BCNR in the first instance

. Under these circumstances, the Court of Feder al Claims did not abuse its discretion in refusing Mr. Zappley’s untimely submission of these materials.

C ONCLUSION In view of the foregoing, we affirm the Court of Fe deral 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 contra ry to law, in refusing to
correct his naval records. Accordingly, the decision of the Court of Federal Claims is

AFFIRMED

. C OSTS

No Costs.