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No. 14-1236 C 

### (Filed 

### March 10,2016) 

### @tsfms 

# FILED

MAR 

### I 0 20t6 U.S. COURT OF FEDERAL CLAIMS 

### ,. {( ,1.

### + * {. * ,1. 1. 1.

### * **,} ANTONIO JOHNSON,



### Pro Se

### Plaintffi Disability Retirement 

### Benefits; 10 U.S.C. 

### $ 

### l20I (2012); 

### No Error in Decision 

### of 

### Military Records Correction Board. 

### THE 

### UNITED STATES,

Defendant. ,i< ,* ,i<* * ,k ,t ,k ,1. ,k t< ,& *



### Antonio Johnson, LaGrange, 

### KY, pro se.


### Antonia R. Soares, 

### United States Department 

### of Justice, 

### with whom were 

### Benjamin C. 

### Mizer, Principal Deputy Assistant 

### Attomey General, Robert E. 

### Kirschman, -/r., 

### Director, 

### Martin F. Hockey, -/r.,Assistant 

### Director, Washington, 

### DC,for defendant. Captain Christopher J. 

### Koschnitzlq, United States

### Army Legal Services Agency, 

### Fort 

### Belvoir,

### VA, of counsel.



## OPINION

Bush, Senior Judge.


### This 

### military disability retirement benefits case is before the court on crossmotions for

### judgment onthe administrative record 

### filed pursuant to Rule 52.1(c) 

### of the Rules 

### of the 

### United States Court 

### of Federal Claims 

### (RCFC). The parties' motions have been

### fully briefed. For the reasons stated 

### below, defendant's 

### motion is granted and

### plaintiff scross-motion is denied.

### BACKGROUND 

# I. Overview of 

### Complaint

The 

### pro se

### complaint 

### filed in this casefocuses on 

### Mr. Johnson's 

### involuntary discharge 

### from the 

### United States

### Army 

### in 1988 and the circumstances surrounding the

### termination of 

### Mr. Johnson's service in the

### Army. In his 

### military disability retirement claim, 

### plaintiffasserts that he should have been separated 

### from the service

### for medical reasons, not 

### disciplinary reasons.r The 

### reliefrequested for this 

### claim is

### variously stated inthe complaint but may be

### succinctly summarized as a demand 

### for "physical disability retirement 

### with pay asasergeant

### E-5." Compl. at



## II. Factual 

### History
Mr. Johnson served in the

### Army from January 29, 1980 

### until his discharge on December 13, 

### 1988. Administrative Record 

### (AR) at

### 402. His certificate 

### of discharge contained a

### notation of "Misconduct 

## - Commission 

### of a Serious 

### Offense." 

## Id. The 

### only issue before the court iswhether the

### Army Board 

### for Correction of 

### Military Records 

### (ABCMR or Board) erred by not converting 

### Mr. Johnson's 

### involuntary discharge 

### for disciplinary reasons 

### into a

### disability retirement. 

# UI. Procedural 

### History Although 

### Mr. Johnson contested the nature of his discharge 

### for a number

### of years, 

### it was 

### only in 2013 that he submitted a

### disability retirement claim to the 

### ABCMR.2 In August and September 

### of 201 3

### plaintiff sent letters to the

### ABCMR broaching the subject 

### of his entitlement to 

### disability retirement benefits, 

### followed

1/ In a prior opinion, the court dismissed all claims in plaintiff scomplaint, except his military disability retirement claim, for lack of subject matterjurisdiction. Johnson v. United States, 123 Fed. Cl. I74 (2015). Although plaintiff s briefs touch upon claims that were dismissed for lackofjurisdiction, the court's focus here is solely on his disability retirement claim. 2/ In a previous communication with theArmy, Mr. Johnson had inquired as to how one would proceed with a "service connected iniuries" claim. AR at 205.by a

### formal appiication for the correction 

### of his 

### military records inthis regard 

### filed

on 

### November 

### 14,2013. AR Tabs 

### 9-11. These

### initial submissions regarding 

### plaintiff s

### claim

### for disability retirement benefits were supplemented by 

### further communications 

### from 

### plaintiff in 

### August 

### of 2014. Id. Tabs

### 3-4. The

### ABCMR denied 

### plaintiff s

### disability retirement 

### claim in October 2014 and let stand 

### Mr. Johnson's separation 

### for disciplinary reasons and his general discharge 

### "under honorable 

### conditions." 

### Id. 

### l-11,402. Plaintiff ssole remaining 

### claim in 

### this suit, 

### filed on December

### 24,2014, isthatthis court should strike down the

### ABCMR's denial 

### of his 

### disability retirement claim because 

### it is

### arbitrary andcapricious. 

### Comol. at 3: 

### Pl.'s 

### Mot. at 5.


### DISCUSSION 

# I. Standards 

### ofReview

A. Pro Se 

### Litigants

The court acknowledgesthat 

### Mr. Johnson is proceeding 

### pro se and is therefore 

### "not expected 

### to frame issues 

### with the precision 

### of acommon 

### law 

### pleading." Roche 

### v. U.S. Postal 

### Serv.,828 F.2d 1555, 1558 (Fed. 

### Cir. 1987). Pro
se

### plaintiffs are entitled to a 

### liberal construction 

### of their 

### pleadings. See Haines v. 

### Kerner,404U.S.5l9,520 (1972)(requiringthatallegationscontainedinaprose complaint be held to "less stringent standards than formal pleadings drafted by 

### lawyers"). Accordingly, the court has

### thoroughiy examined the

### complaint and 

### plaintiff sbriefs and has attempted to discern

### all of 

### plaintiff s legal arguments. 

# B. RCFC 52.I
RCFC 52.1 provides for

### judgment onthe 

### administrative 

### record. To 

### review
a

### motion under RCFC 52.1, the court askswhether, given 

### all the disputed and undisputed facts, a party has met its burden

### ofproofbased on the evidence in the 

### record. Bannum, 

### Inc. 

### v. United States,404 

### F.3d 1346, 1356 (Fed. 

### Cir. 

### 2005). The court must make fact 

### findings where necessary 

## . Id. The 

### resolution

### of crossmotions 

### filed under RCFC 

### 52.I is akin to anexpedited

### trial onthe paper record. Id. 

# C. Decisions 

### of 

### Correction BoardsThe court does not 

### review the issue before a board

### for correction 

### of 

### military

records de novo; rather,

### this court 

### "will not disturb the decision of the corrections board unless 

### it is

### arbitrary, capricious, contrary 

### to law, or unsupported by substantial 

### evidence." Chambers 

### v. United States, 4 17 

### F.3d 

## l2l8, 1227 (Fed. 

### Cir. 2005) 

### (citing 

### Haselrigv. Uniled States,333 

### F.3d 1354, 1355 (Fed. 

### Cir. 2003)). 

### Plaintiff sburden is

### to show by 

### "'cogent and 

### clearly convincing 

### evidence"'that the decision 

### of the board fails 

### this standard. Wronke v. 

### Marsh,787 F

### .2d 1569, i576 (Fed. 

### Cir. 1986) (quoting 

### Dorl v. United 

### States,200 Ct. Cl. 

### 626,633 (1973)). 

### Plaintiff must also overcome the presumption 

### of regularity which attaches to the actions of the

### ABCMR. See Richey

### v. United States, 322 F

### .3d 1317, 1326 (F ed. 

### Cir. 2003) 

### (noting "the presumption 

### of regularity that attaches to 

### all administrative decisions" 

### of the 

### United States 

### (citing Impresa 

### Construzioni Geom. Domenico 

### Garufiv. United States,238 

### F.3d 1324,1338 (Fed. 

### Cir. 2001))). 

# II. Analysis

The 

### court's task isto determine whether the

### ABCMR's decision not to correct 

### Mr. Johnson's 

### military records 

### fails the standard of 

### review described 

### supra. 

### lt is important to 

### distinguishthis task from 

### ade novo review 

### ofall ofthe evidence inthe

### administrative record, as

### well as any 

### additional documentary evidence 

### provided by 

### plaintiff, in order 

### to determine whether 

### Mr. Johnson was, 

### in fact, disabled and

### eligible for 

### military disability retirement benefits 

### in 1988 pursuant 

### to 10 U.S.C. 

### $

## l20i (20i2).t E,g., de Cicco 

### v. United States,677 F.2d 66, 70 

### (Ct. 

### Cl. 1982) 

### (citations

### omitted). The court

### tums

### first to the retirement benefits 

### claim presented by 

### Mr. Johnson to the

### ABCMR. 

# A. Claim of 

### Entitlement to 

### Disabilifv Retirement Benefits


### Mr. Johnson's 

### first communication to the

### ABCMR regarding 

### disability retirement benefits stated that atthe

### time of his discharge he "was never 

### inform[ed] [he] 

### could

### file for 

### disability retirement 

### with pay 

### [for] all [his] diseases and 

### injuries incurred 

### in the 

### line of 

### duty"while in the

### Army. AR at 114. 

### Plaintiff s second letter stated 

### in relevant partthat

3/ Thecou( has nevertheless carefully consideredallofthe documents included within the administrative record and the exhibits attached to plaintiff s briefs.

### I'm seeking 

### for 

### relief a

. . .medical 

### disability retirement pay discharge 

### with a[n] over 

### all combinefd] rating 

### of 70 

### to 90

### %l;l that 

### I be granted medical 

### disability retirement 

### with the appropriate 

### rank[; and,]that my medical 

### disability retirement pay

### startl] onthe date 

### ofthis letter."


### Id. at | 

### 12.

### A few weeks later 

### Mr. Johnson submitted his

### formal application

### for relief on

### form 

### DD 149 

### ("Application for Correction 

### of 

### Military Record"), dated 

### November 14,2013, to 

### which he attached a lengthy narrative and a number

### of exhibits. Id. at 42-109. 

### Thirty-eight ailments are listed in 

### Mr. Johnson's

### ABCMR application, 

### including lower back pain, neck pain and strain, 

### pleuritic chest pain, a

### finger scar, wheezing, hearing loss, lung scarring, fatigue, headaches, weakness,

### vertigo, shoulder pain, 

### lower back muscle spasms, spine tenderness, upper lumbar region pain, ashoulder abrasion, head 

### injury, chronic obstructive 

### pulmonary disease, 

### multifocal air trapping, 

### pleuristic lung disease, pneumonitis disease, 

### airway obstructive disease, coughing up blood, granulomatous disease, sarcoid disease, coccoides disease, blastomycosis disease, atelectasis disease, embolus disease, enlarged 

### right hilar node, dizziness, shortness 

### of breath, 

### chronic interstitial lung disease, and 

### lower back tendemess. 

### AR at

### 48-50. Mr. Johnson assigned 

### disabling percentage ratings to these ailments and estimated his 

### disabling conditions on December 13, 1988 to

### qualiff him as 100 % disabled.a 

### Id. at 53,58-59. Mr. Johnson also claimed thatthe diseases and 

### injuries he received 

### during active 

### duty service were and are permanently 

### disabling. Id. at 54.
On

### August 1,2014, 

### Mr. Johnson supplemented his 

### disability retirement benefits 

### claim

### with a letter stating that his benefits should be calculated atthe E-5 rank, not at the 

### E-l rank he held atthe

### time of his 

### discharge. 

### AR at

### 34. On 

### August 15,2014, 

### plaintiff submitted a new

### form 

### DD 149

### with additional exhibit pages. 

### Id. at 12-32. This submission included another narrative 

### to accompany his claim, 

### which stated that 

### Mr. Johnson was 

### injured during active duty and that he continues

### to suffer 

### from these 

### iniuries todav. 

### Id. at 77

.



### "/ In one letter to theArmy sent on January 7,2014,Mr. Johnson statedthat he believed his disability ratingto be 190 %. AR at 40.

# B. ABCMR's Decision on 

### Plaintiff s 

### Retirement Benefits 

### Claim

The 

### ABCMR considered whether 

### Mr. Johnson's records should be 

### corected to show that he was 

### "medically retired 

### with disability" on December 13, 

### 1988. 

### AR at

### 3. Among the records considered by the

### ABCMR were medical records in 

### plaintiff sservice

### file. Importantly, the

### following two factual 

### findings of the Board were based on

### this documentary evidence:



### On 14

### April, 1988, 

### [Mr. Johnson] completed aseparation 

### physical andwas found to be 

### qualified for separation. 

### On 15

### April 1988, 

### [Mr. Johnson] completed a mental status evaluation andwas found to be 

### mentally responsible and

### to havethe mental capacity to understand and participate 

### in board proceedings.


### Id. at 6-7 

### (formatting removed). The Board acknowledged that 

### during his years

### of service 

### Mr. Johnson had received various medical evaluations, some 

### of which had resulted 

### in eithertemporary or permanent 

### limitations on 

### activities due to health 

### problems. 

### Id. at 5 

### (noting that 

### in 1986 

### Mr. Johnson was evaluated as having a permanent health 

### condition affecting his 

### lower extremities dueto 

### lower back 

### pain);7 (noting that 

### in June 1988 

### Mr. Johnson was

### temporarily restricted 

### in physical 

### activity dueto chestor side

### pain). The Board 

### did not

### view the evidence before 

### it, however, 

### to show that any probable error or 

### injustice hadoccuned 

### in 

### Mr. Johnson's discharge.
Instead, the Board determinedthat 

### Mr. Johnson, atthe

### time of his separation, was correctly 

### judged to be

### fit for duty and 

### for separation:

The applicant is not authorized a medical 

### disability discharge or a medical 

### disability retirement because he was considered 

### medically and 

### psychiatrically 

### fit for military service and there is no evidence a medical 

### condition contributed to the misconduct that preceded his 

### discharge. Furthermore, he received apre-separation medical evaluation that noted his mental status was 

### within normal 

### limits and hewas 

### medically qualified 

### for separation.

### Additionally, there are no records 

### to show hesuffered 

### from, was diagnosed 

### with, or treated 

### for an illness 

### or injury that merited entry 

### into fthe Physical 

### Disability Evaluation Systeml.


### AR at I 

### 1. In otherwords, after considering the documentary evidence in 

### Mr. Johnson's service

### file, as

### well asthe materials submitted by 

### Mr. Johnson, the Board found no 

### effor in the

### Army's decision to discharge 

### Mr. Johnson 

### for disciplinary reasons rather than to retire 

### him for medical 

### disability reasons. The record 

### of the 

### Board's decision is dated October 

### 7,2014; notice to 

### Mr. Johnson

### of the denial 

### of his 

### application for relief was dated 

### October 

### 15,2014. 

# C. This 

### Court's Review of the

### ABCMR's Decision

The court 

### first considers whether the 

### Board's October 

### 7,2014 decision was 

### supportedbysubstantialevidence. 

### Chambers,4l7F.3dat1227. Thiscourt'srole is 

### limited: (T)he 

### traditional role 

### ofthe court on 

### review isto

determine not whether the claimant was 

### unfit for service atthe

### time of his release but rather whether the

### finding of the Secretary

. . .thatthe serviceman was

### fit was so 

### arbitrary, capricious or unsupported by evidence as

### to be contrary to the applicable 

### principles 

### of law.

de 

### Cicco,677 F.2d at 70 (alterations 

### in 

### original) (citations and internal quotations 

### omitted). Under 

### this standard, the

### ABCMR's denial 

### of 

### Mr. Johnson,s 

### claim cannot be overtumed because that decision is supported 

### by substantial evidence 

### in 

### plaintiff sservice record.


### Plaintiff sservice record shows that the

### Army's medical evaluation of 

### Mr. Johnson did not 

### find him 

### in 1988 

### tobe 30o/o disabled, the 

### minimum 

### disability required under the statute 

### for a medical 

### disability retirement, 10 U.S.C. S 

### 1201(b)(3XB), andthere is substantial evidence 

### within that record 

### to support the 

### ABCMR's decision to leave 

### plaintiff sdischarge 

### unaltered. Not only did the 

### Army's physicai and mental examinations of 

### Mr. Johnson in

### April 1988 

### find him 

### fit for separation, 

### AR at640-43,706, but subsequent medical problems experienced by 

### Mr. Johnson 

### in June 1988 merely producedtemporary restrictionson physical 

### activities, not 

### pernanent disability ratings based on an evaluation 

### of

his 

### ability to perform his

### job in the 

### military. On this record, the

### tlpes of ailments noted in 

### Mr. Johnson's 1988 medical records are not grave enough 

### to invalidate the

### Army's determination that 

### Mr. Johnson was

### fit for duty and

### for separation at thattime.

The court also finds that the 

### Board's decision was not contrary to law, and was neither arbitrary nor 

### capricious. Upon careful 

### review, the court sees no error, either procedural or 

### logical, in the

### ABCMR's denial 

### of 

### Mr. Johnson's 

### military disability retirement 

### claim. The Board examined the relevant evidence and discussed the 

### regulatoryframeworkfor evaluating aservice member's health problems 

### which might merit a

### disability retirement. 

### AR at

### 4-9, 

### 11. The 

### Board's analysis of the evidence was 

### rational. The Board also noted that among the 

### exhibits submitted by 

### Mr. Johnson in 2013, 

### in support 

### of his claim, was a document

### which appeared 

### to be an altered version 

### ofa document dated June 6, 1988 in his service 

### record. 

### Id. 

### at7. The Board 

### rationally excluded this document
as evidence 

### of disability.s Under the standard 

### of review applicable here, the 

### ABCMR decision was neither 

### arbitrary nor capricious. nor was 

### it contrarv 

### to law.

D. 

### Plaintiff s

### Arguments

The court has

### thoroughly considered 

### all

### ofplaintiffs substantive arguments related to his 

### disability retirement benefits 

### claim. The court turns

### first to 

### Mr. Johnson's argument that the

### Army, in bad 

### faith, altered his 

### military records to defeat his 

### claim. Plaintiff suggests that the

### Army's record 

### of his service is suspect because certain 

### of his credentials are missing and because the

### Army has 

### "fabricated" documents. Pl.'s Mot. at

### 2. Defendant counters that the administrative record 

### filed in 

### this case contains no evidence 

### of document 

### falsification by the

### govemment. Def.'s Reply at

### 5-6. The government's arguments on this 

### point are 

### persuasive. 

### Plaintiff scontention that the

### Army tried to "erase" evidence 

### of disability in 

### Mr. Johnson's service record, 

### Pl.'s 

### Mot. at 2, 

### fails to overcome the presumption 

### of regularity accorded the records provided to



## '/ The government notes that there aretwo examples of documents submitted by Mr. Johnson to theABCMR in 2013 which appearto have been alteredto substantiate his claim for disability benefits. Def.'s Mot. at 9 (comparing AR at 646 to id. aI72);17 n.14 (comparing AR at 723 with id. at 73).

### this court by the

### Army. E,g., 

### Richey,322F.3d at 1326. The court cannot agree



### with 

### plaintiff that the records before the

### ABCMR and before

### this court contain an inaccurate service

### file.
Second, 

### Mr. Johnson argues that his active duty medical records show that hewas disabled 

### in 1988. Pl.'s 

### Mot. at

### 3-4. The court does not ignore or downplay thefactthat 

### Mr. Johnson had a number 

### of medical interventions 

### while he served 

### in the

### Army. The issue before the court, however, iswhether such evidence 

### of medical treatment renders the 

### Board's decision that 

### Mr. Johnson was

### fit for duty and separation 

### in 1988

### arbitrary or 

### capricious. 

### It does 

### not. When aservice member experiences 

### during active duty the 

### initial and 

### relatively 

### mild symptoms 

### of

an illness that may become 

### in later years a more serious health 

### condition, medical treatment

### while in theservice does not 

### provide clearly convincing evidence 

### of a 

### disability so asto overcome adenial 

### of 

### military disability retirement 

### benefits. See, e.g., 

### Boraiko v. United 

### States,146 Ct. 

### Cl. 814, 819 (1959) 

### (holding that because 

### "the nature and degree 

### of the disease [atthe

### time of discharge] must be considered 

### in order 

### to determine

### eligibility for retirement 

### for physical 

### disability,

. . .we cannot say as a matter 

### of law that the

### Air Force was 

### arbitrary andcapricious 

### in denying 

### plaintiff s

### claim 

### ffor disability retirement 

### benefits]"). Thus, even 

### if Mr. Johnson 

### now suffers 

### from disabling conditions that beganto affect 

### himwhile he
was 

### still in the

### Army, Mr. Johnson's service record does not contain 

### clearly convincing evidence that he suffered 

### from aserious 

### disabling condition 

### in 1988. 

### Nor does the record show that 

### plaintiff was 

### unfit for duty or separation 

### for disciplinary reasons

### in 1988. 

### Mr. Johnson's medical records 

### from 1980-88 do not persuade 

### this court that the 

### Board's denial 

### of his 

### disability retirement claim was 

### in erTor. 

### Third, 

### Mr. Johnson argues that he was 

### eligible for disability retirement 

### in 1988 because he was

### too sick at the

### time of his discharge to perform his regular duties.6 

### Pl.'s 

### Mot.

### at7. A 

### plaintiff seeking 

### military disability retirement benefits, however, bears asubstantial burden

### ofproofto overcome a

### finding that he was

### fit for duty atthe

### time 

### of discharge:

The issue before us iswhether the Secretary's deciston

6/At his discharge hearing on November 3, 1988, Mr. Johnson testified that "I have
never stopped performing my duties since [separation proceedings were initiated]." AR at 334.that 

### plaintiff was 

### physically 

### fit to 

### perform duties commensurate 

### with his rank and

### office atthe

### time of his release 

### from service was so

### arbitrary and capricious asto constitute a

### violation of his 

### legislative mandate. In order to establish thatthe Secretary's action was so

### arbitrary andcapricious, 

### plaintiff must discharge a

### very substantial burden 

### of proof.

de Cicco,,677 F.2d at 71 (quoting Johnston 

### v. United States, 157 

### Ct. Cl.

### 474,478 (1962)). 

### Ifthere is

### conflicting evidence 

### ofthe service member's fitness

### for duty, the court must

### affirm the denial 

### of disability retirement benefits where there is substantial evidence that supports the 

### Board's decision and the 

### Board's decision has not been shown 

### to be 

### arbitrary or 

### capricious. 

### Id.

### at72. Here, the documentary evidence

### of 

### Mr. Johnson's medical treatment, physical examination and mental examination provides substantial evidence that 

### Mr. Johnson was

### fit for duty 

### in 1988 despite his health issues. 

### Following precedent 

### binding on

### this court, 

### plaintiff has not met his substantial burden of 

### proof and the

### ABCMR's decision survives review.


### CONCLUSION
Plaintiff schallengetothe denial 

### of his 

### disability retirement claim has not shown that the

### ABCMR's decision was arbitrary, capricious, contrary 

### to law, or unsupported 

### by substantial 

### evidence. 

### Accordingly, 

### it is hereby

### ORDERED that:

( I

# ) Defendant's 

### Motion for Judgment onthe

### Administrative Record' 

### filed October 

### 20,2015, is

### GRANTED;
(2) 

### Plaintiff s

### Cross-Motion for Judgment onthe

### Administrative Record, 

### filed November 17,2075, is 

### DENIED;

The

### Clerk's Office is directed to 

### ENTER finaljudgment in favor 

### of defendant, 

### DISMISSING the

### complaint

### with prejudice; and (3)



### L (4) 

### No costs.



### t0