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No. 14-1236 C

(Filed March 10,2016)

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FILED

MAR I 0 20t6

U.S. COURT OF

FEDERAL CLAIMS

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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.

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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 on the 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 s cross-motion is denied.
BACKGROUND

I. Overview of Complaint

The pro se complaint filed in this case focuses 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 in the complaint but may be succinctly summarized as a

demand for "physical disability retirement with pay as a sergeant 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 is whether 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 s complaint, except his

military disability retirement claim, for lack of subject matter jurisdiction. Johnson v. United

States, 123 Fed. Cl. I 74 (2015). Although plaintiff s briefs touch upon claims that were

dismissed for lack ofjurisdiction, the court's focus here is solely on his disability retirement

claim.

2/ In a previous communication with the Army, 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 in this 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 s sole remaining claim in this suit,

filed on December 24,2014, is that this court should strike down the ABCMR's

denial of his disability retirement claim because it is arbitrary and capricious.

Comol. at 3: Pl.'s Mot. at 5.

DISCUSSION

I. Standards ofReview

A. Pro Se Litigants

The court acknowledges that Mr. Johnson is proceeding pro se and is

therefore "not expected to frame issues with the precision of a common 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 s briefs and has attempted to discern all of plaintiff s legal arguments.

B. RCFC 52.I

RCFC 52.1 provides for judgment on the administrative record. To review

a motion under RCFC 52.1, the court asks whether, 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 an expedited trial on the paper record.

Id.

C. Decisions of Correction Boards
The 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 1 7 F.3d l2l8, 1227 (Fed. Cir.

2005) (citing Haselrigv. Uniled States,333 F.3d 1354, 1355 (Fed. Cir. 2003)).

Plaintiff s burden 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,

i 576 (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

Garufi v. United States,238 F.3d 1324,1338 (Fed. Cir. 2001))).

II. Analysis

The court's task is to 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 distinguish this task from ade novo review ofall ofthe

evidence in the 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 at the 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 part that

3/ The cou( has nevertheless carefully considered all ofthe 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] on the 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, a shoulder 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 that the 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 at the E-5

rank, not at the E-l rank he held at the 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 the Army sent on January 7,2014,Mr. Johnson stated that he believed

his disability rating to 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 s service file. Importantly, the following two factual findings

of the Board were based on this documentary evidence:

On 14 April, 1988, [Mr. Johnson] completed a separation

physical and was found to be qualified for separation.

On 15 April 1988, [Mr. Johnson] completed a mental

status evaluation and was found to be mentally

responsible and to have the 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 either temporary 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 due to lower back

pain);7 (noting that in June 1988 Mr. Johnson was temporarily restricted in

physical activity due to chest or side pain). The Board did not view the evidence

before it, however, to show that any probable error or injustice had occuned in

Mr. Johnson's discharge.

Instead, the Board determined that Mr. Johnson, at the 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 a pre-separation

medical evaluation that noted his mental status was

within normal limits and he was medically qualified for

separation. Additionally, there are no records to show he
suffered 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 other words, after considering the documentary evidence in Mr.

Johnson's service file, as well as the 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 is to

determine not whether the claimant was unfit for service

at the time of his release but rather whether the finding

of the Secretary . . . that the 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 s service record.

Plaintiff s service 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), and there is substantial evidence within that record to support the

ABCMR's decision to leave plaintiff s discharge 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 produced temporary restrictions
on 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

that time.

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 regulatory framework for evaluating a service 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 s contention 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 are two examples of documents submitted by Mr.

Johnson to the ABCMR in 2013 which appear to have been altered to 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

he was disabled in 1988. Pl.'s Mot. at 3-4. The court does not ignore or downplay

the fact that Mr. Johnson had a number of medical interventions while he served in

the Army. The issue before the court, however, is whether 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 a service

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 the service does not provide clearly convincing evidence of a

disability so as to overcome a denial 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 [at the 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 and capricious in

denying plaintiff s claim ffor disability retirement benefits]"). Thus, even if Mr.

Johnson now suffers from disabling conditions that began to affect him while he

was still in the Army, Mr. Johnson's service record does not contain clearly

convincing evidence that he suffered from a serious 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 a substantial burden ofproofto overcome a finding that he was fit

for duty at the time of discharge:

The issue before us is whether 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 at the time of his

release from service was so arbitrary and capricious as to

constitute a violation of his legislative mandate. In order

to establish that the Secretary's action was so arbitrary

and capricious, 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 s challenge to the 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 on the Administrative Record' filed

October 20,2015, is GRANTED;

(2) Plaintiff s Cross-Motion for Judgment on the Administrative

Record, filed November 17,2075, is DENIED;

The Clerk's Office is directed to ENTER final judgment in favor of

defendant, DISMISSING the complaint with prejudice; and

(3)

L

(4) No costs.

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