NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

MORRIS SHELKOFSKY,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

______________________ 

2013-5083

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 11-CV-0765, Senior Judge Robert H. Hodges, Jr.

______________________ 

Decided: October 11, 2013

______________________ 

MORRIS SHELKOFSKY, Tallahassee, Florida, pro se.

BARBARA E. THOMAS, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

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

With her on the brief were STUART F. DELERY, Acting 

Assistant Attorney General, JEANNE E. DAVIDSON, Director, and CLAUDIA BURKE, Assistant Director.

______________________ 
2 SHELKOFSKY v. US

Before RADER, Chief Judge, LOURIE, and O’MALLEY,

Circuit Judges.

PER CURIAM. 

Plaintiff Morris Shelkofsky appeals the decision of the 

United States Court of Federal Claims (“Claims Court”)

granting the Government’s motion for judgment on the 

administrative record. In granting the motion, the 

Claims Court found that the Air Force Board for Correction of Military Records’ (“AFBCMR”) decision to deny 

Shelkofsky’s requests for age-based retirement pay based 

on a previous final decision and his explicit waiver was

neither arbitrary, capricious, contrary to law, nor unsupported by substantial evidence. Shelkofsky v. United 

States, 110 Fed. Cl. 15, 18 (2013).

For the reasons below, we affirm the judgment of the 

Claims Court. 

BACKGROUND

Shelkofsky is a former judge advocate in the Air Force 

Reserve. In 1997, he was involved in a car accident that 

left him with substantial injuries. As a result, he was 

removed from active duty and placed on the Temporary 

Disability Retired List (“TDRL”) on May 27, 1998. In a 

letter dated June 12, 2000, the Air Force informed 

Shelkofsky that it was removing him from the TDRL 

because he did not qualify for transfer to the Permanent 

Disability Retired List (“PDRL”) and could not continue 

on the TDRL due to his recently decreased 20 percent 

disability rating. 

When he was discharged, the Air Force provided him 

with two options: disability severance pay or inactive 

reserve status. If Shelkofsky had elected inactive reserve 

status, he would have been eligible for reserve retirement 

pay at sixty years of age. Instead, Shelkofsky elected 

disability severance pay and signed a form that stated “I 
SHELKOFSKY v. US 3

elect to be discharged with severance pay as provided 

under Section 1203, Chapter 61, Title 10 USC. I understand that I forfeit all right to receive retired pay under 

Chapter 1223, 10 USC, at age 60.” Appellant Appendix 

A45-46. In a letter dated July 10, 2000, the Air Force 

stated that it would remove Shelkofsky from the TDRL 

and discharge him with entitlement to disability severance pay as of July 30, 2000.

Shelkofsky, however, never received the disability 

severance pay he elected. By an administrative error, the 

Air Force transferred him from the TDRL to the PDRL. 

Since his disability rating at retirement was only 20 

percent, he should not have been transferred to the 

PDRL, which requires a rating of at least 30 percent. The 

Administrative Record did not contain an explanation for 

his transfer to the PDRL. He continued to receive disability retirement payments for more than seven years. 

In 2008, after reaching the age of 60, Shelkofsky filed 

for a correction of his military records at the AFBCMR 

asking for placement on the inactive status list. If listed, 

he would be eligible to collect reserve retirement pay. In 

his request, he explained that he never received severance 

pay, but did not mention at the time, that he had been 

collecting disability retirement pay instead. After verifying that Shelkofsky never received severance pay, the 

AFBCMR granted the request to correct his records to 

allow him to move to the inactive status list in 2008.

While attempting to implement the AFBCMR’s decision, the Defense Finance and Accounting Service 

(“DFAS”) realized Shelkofsky’s erroneous inclusion on the 

PDRL when it attempted to move him to the inactive 

reserve list. The DFAS informed Shelkofsky that he was 

already listed on the PDRL, and that compliance with the 

AFBCMR decision would require him to pay back the 

disability retired pay he received for the previous seven 

years.
4 SHELKOFSKY v. US

In response, Shelkofsky asked the AFBCMR to withdraw its approval of his request to correct his records to 

move to the inactive status list, explaining his desire not 

to incur such a debt. The AFBCMR agreed to void its 

earlier decision. In 2009, the DFAS then stopped sending 

disability retirement payments after determining 

Shelkofsky had never been eligible for the PDRL. 

Shelkofsky then asked for reinstatement of the recently voided AFBCMR order to again obtain age-based 

reserve retired pay, or in the alternative, for an adjustment to his assigned disability percentage so that he 

would be eligible to stay on the permanent disability 

retired list. The AFBCMR denied his request, finding 

that the previous decision to withdraw its prior approval 

was final and conclusive, unless obtained by fraud. 

Shelkofsky then asked for reconsideration of his request 

for placement on the PDRL based on a more recent disability rating of 60 percent awarded by the Department of 

Veterans Affairs. The AFBCMR denied his request, 

finding he submitted no evidence to show that his medical 

condition warranted permanent disability retirement at 

the time of his removal from the TDRL, when he had only 

a 20 percent disability rating. 

In November 2011, Shelkofsky filed a complaint in the 

Claims Court asserting claims only for reserve retirement 

pay and back reserve retirement pay. Complaint at 1-3, 

Shelkofsky v. United States, No. 11-0765 (Fed. Cl. Nov. 14, 

2011), ECF No. 1.1 In a March 20, 2013 decision, the 

Claims Court ordered judgment on the administrative 

record in favor of the United States finding that the 

AFBCMR’s decision to deny retirement pay was not 

arbitrary, capricious, or contrary to law. Shelkofsky, 110 

1 Shelkofsky did not seek the unpaid severance pay 

in this proceeding; his right to severance is, thus, not at 

issue in this appeal.

 
SHELKOFSKY v. US 5

Fed. Cl. at 18. In reaching this conclusion, the Claims 

Court, concluding both that the AFBCMR had found its 

decision voiding the original decision “final and conclusive 

on all officers of the government, unless obtained by 

fraud,” and that Shelkofsky had waived his right to agebased retirement pay when he elected to be discharged 

with severance pay. Id. The Claims Court also noted 

that “the pay that plaintiff chose at the time of his separation is not a subject of this appeal.” Id.

Shelkofsky appeals that ruling to this Court. We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). 

DISCUSSION

I. Standard of Review

As a judgment on the administrative record by the 

Claims Court is a legal determination, we review the 

judgment de novo. Roth v. United States, 378 F.3d 1371, 

1381 (Fed. Cir. 2004). This Court may disturb the decision of the Board only if it was “arbitrary, capricious, 

contrary to law, or unsupported by substantial evidence.” 

Id. 

II. Waiver of Retirement Pay

A member of a military reserve component is entitled, 

upon application, to retired pay if he: (1) has attained the 

applicable eligibility age; (2) has performed at least 20 

years of service; and (3) is not entitled, under any other 

provision of law, to retired pay from an armed force. See 

10 U.S.C. § 12731(a). Here, the applicable eligibility age 

is 60 years. Id. § 12731(f)(1). In the proceedings below, 

the Government did not dispute that Shelkofsky meets all 

of these criteria. Shelkofsky, 110 Fed. Cl. at 17. Nonetheless, the Claims Court found that, “[w]hile Mr. Shelkofsky 

appears to meet the statutory requirements for retirement pay eligibility, he waived his right to age-based 

retirement pay when he was separated from the Air Force 

in 2000.” Id. at 18. Therefore, while the Claims Court 
6 SHELKOFSKY v. US

noted that this case had been “infected by an odd series of 

government errors,” it concluded that the AFBCMR’s

decision not to award retirement pay was not arbitrary, 

capricious, or contrary to law. Id. We agree.

In an August 2008 memorandum, the AFBCMR 

granted Shelkofsky’s request to correct his military records to place him on the inactive status list reserve section. Shortly thereafter, DFAS informed Shelkofsky that 

this correction could not be accomplished because he was 

already retired on the PDRL and would need to return 

seven years of disability retirement pay. A60-61. In 

response, he asked to withdraw his previous request to 

correct his military records. A59. In a Corrected Directive, the AFBCMR then declared the previous memorandum void. A64. After the memorandum was declared 

void, DFAS notified Shelkofsky that he was also going to 

be removed from the PDRL as he never qualified for the 

PDRL. A65. Shelkofsky, again, approached the 

AFBCMR, this time asking it to reinstate his previous 

request to place him on the inactive status list reserve 

section. In a March 15, 2011 decision, the AFBCMR 

found that: 

After a thorough review of the available evidence, 

we are not persuaded any corrective action is warranted. In this respect, we note that on 30 Jul 00, 

the applicant’s name was removed from the TDRL 

and he was discharged by reason of physical disability, with entitlement to severance pay. At that 

time, he had the option to transfer to [the inactive 

status list] and instead elected to be discharged 

with severance pay, acknowledging that he understood that he would forfeit all rights to receive retired pay at age 60, under the governing statute.

A73. The AFBCMR also found the previous decision to 

void the memorandum “final and conclusive on all officers 
SHELKOFSKY v. US 7

of the government, unless obtained by fraud.” Id. And, 

the AFBCMR noted no showing of fraud. Id.

Electing severance pay in lieu of retirement pay 

waives any right to military retirement. Barnick v. 

United States, 80 Fed. Cl. 545, 557 n.10 (2008) (“When 

Mr. Barnick made his election to accept severance pay, in 

lieu of retirement pay, he waived any right to a military 

retirement.”). Here, Shelkofsky has forfeited his right to 

age-based retirement pay, not once, but twice. He first 

forfeited his right when he elected severance pay and 

signed a form that stated “I elect to be discharged with 

severance pay as provided under Section 1203, Chapter 

61, Title 10 USC. I understand that I forfeit all right to 

receive retired pay under Chapter 1223, 10 USC, at age 

60.” When Shelkofsky requested AFBCMR to void the 

memorandum correcting his records by moving him to the 

inactive status list reserve section, he again forfeited his 

right to age-based retirement pay. The AFBCMR’s decision to void the memorandum also became final and 

conclusive. Based on this reasoning, we find the 

AFBCMR’s decision denying retirement pay was not 

arbitrary, capricious, or contrary to law.

III. Non-Revocation Provision

Shelkofsky argues that the judgment below is clearly 

erroneous as it ignores his entitlement to the nonrevocation provisions of 10 U.S.C. § 12738. Section 

12738(a) states: 

After a person is granted retired pay under this 

chapter, or is notified in accordance with section 

12731(d) of this title that the person has completed the years of service required for eligibility for 

retired pay under this chapter, the person's eligibility for retired pay may not be denied or revoked 

on the basis of any error, miscalculation, misinformation, or administrative determination of 

years of service performed as required by section 
8 SHELKOFSKY v. US

12731(a)(2) of this title, unless it resulted directly 

from the fraud or misrepresentation of the person.

10 U.S.C.A. § 12738(a) (West 2013). The Claims Court 

acknowledged the Government’s argument that Shelkofsky failed to raise § 12738 before the AFBCMR, but did 

not further address this issue, apparently agreeing it had 

been waived. See Metz v. United States, 466 F.3d 991, 999 

(Fed. Cir. 2006) (“general rule that courts should not 

topple over administrative decisions unless the administrative body not only has erred but has erred against 

objections made at the time appropriate under its practice.” (quoting United States v. L.A. Tucker Truck Lines, 

Inc., 344 U.S. 33, 37 (1952)). Here, Shelkofsky argues 

that he did raise § 12738 before the AFBCMR. In support, he points to a memorandum written by the Air Force 

Personnel Center for the AFBCMR regarding transfer to 

the inactive status list reserve section under 10 U.S.C. 

§ 12732. A50. Despite Shelkofsky’s suggestion to the 

contrary, mere reference to 10 U.S.C. § 12732 does not 

invoke the non-revocation provision of 10 U.S.C. § 12738.

The memorandum provides no mention of the nonrevocation provision and does not cite 10 U.S.C. § 12738. 

Nor has Shelkofsky pointed to any other place in the 

AFBCMR record where he asserted non-revocation, or 

non-revocation was even discussed. As such, we find that 

the Claims Court did not err in not addressing the nonrevocation provision. 

IV. Disability Retirement Pay

Shelkofsky argues that the Claims Court’s decision 

that the Air Force erred in placing him on the PDRL was 

unsupported by substantial evidence. Shelkofsky never 

made any claim for disability-based retired pay in his

complaint before the Claims Court, however. He concedes, moreover, that this “appeal deals with the entitlement of a long serving Reservist to Reserve Retirement 

and Pay under 10 U.S.C. §§ 12731-12739. The scope of 
SHELKOFSKY v. US 9

the decision of the Honorable Court below was clearly 

limited to Reserve Retirement and Pay and excluded 

Disability Retirement and Pay and Severance Pay.” 

Appellant Reply Br. 3. Given this record and these concessions, we decline to address these arguments.

V. Administrative Record

Shelkofsky also attacks the Administrative Record directly. He alleges the record cannot support the judgment 

because it is deficient in certain material respects; he 

asserts the record is uncertified, undated, missing pages, 

and missing documents. The Government responds that 

Shelkofsky’s complaints of deficiencies in the Administrative Record were either immaterial, or not presented to 

the Claims Court, and therefore, waived. We agree. 

Shelkofsky does not identify any material finding of 

the AFBCMR that lacks substantial evidentiary support 

in the record. He alleges that the record is missing documents regarding advice on severance pay and the 

AFBCMR’s consideration of the non-revocation statute. 

As noted above, however, the documents regarding the 

advice on severance pay and non-revocation are not 

relevant to any properly preserved claim. Shelkofsky is 

not seeking severance pay in this appeal and he failed to 

raise the non-revocation argument before the AFBCMR. 

Further, Shelkofsky has not established that the missing 

documents, or any other listed deficiency, affected the 

AFBCMR’s decision. We find accordingly, that any gaps 

in the Administrative Record had no impact on the decisions below.

CONCLUSION

For these reasons and because we find that Shelkofsky’s remaining arguments are without merit, we affirm

the judgment of the Claims Court. 

AFFIRMED