# OR!GI[{AL

REDACTED OPINION


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No. 12-649C Fifed: 

### June

# 25,2014 AUG 

### 14 2014 

### Reissued: 

### August 14, 20141 U.S' COURT OF 

# *** * : tEbtdeucLems

KATHRYNWALKER.



# Plaintiff, I pro 

### S" Plaintiff; Motion 

### to Dismiss;



# * Lack 

### of Subject Matter 

### Jurisdiction; 

# v'

. St"tute of Limitations; lncapacitation

uNrrED

# srATEs. - PaY'



# , * *

## * *

## * *

## *

# *.":::':T'.. :

Kathryn Walker, Middletown, MD, pro se.


### Austin Fulk, Trial Attorney, Commercial Litigation Branch, 

### Civil Division' 

### Department 

### of Justice, Washington, 

## D.C. With him 

### were 

### Martin F. Hockey' Jr., 

### Assistant Director, 

### Robert E. Kirschman, Jr,, Director, Commercial Litigation Branch' 

### stuart F. 

### Delery, Assistant 

### Attorney General, 

### civil Division. 

### captain Geoff Guska, U.S. Army Litigation Division, Department of the Army, of counsel.

1

### This opinion 

### was issued under seal 

### on June 25, 2014. 

### On June25, 2014,

### the court 

### inquired

## of both partieswhether 

### either party required redactions

## to the opinion. Defendant indicated

### that no redactions 

### were 

### required. Plaintifffailed 

### to indicate 

### if any redactions were required, but publicly filed a copy of the sealed opinion with her appeal
to

### the United States Court ofAppeals forthe Federal Circuit. 

## OPINION HORN. J.



### Pro

### se plaintiff Kathryn 

### walker filed 

### a complaint 

### in 

### the United 

### states 

### court of 

### Federal Claims alleging 

### that she was wrongfully discharged 

### from

### the United States 

### Army Reserve 

### on October 1, 2006, and 

### that she

### was wrongfully 

### denied incapacitation 

### pay. Prior

### to when defendant responded

### to her complaint, Ms.

### walker amended hercomplaint, and, thereafter, filed 

### a second amended complaint. In her second amended

complaint, Ms. Walker seeks "incapacitation pay pursuant

### to 37 U.S.C. 

### $ 204(gX1) for 

### the periodfrom September 2003 through February 2004,1'l reinstatement in

### the USAR [United States Army Reserve] inthe grade of major, and correction of military records to 

### set aside 

### her under 

### other

### than honorable conditions 

### discharge."' 

## In her second amended complaint, Ms.

### Walker also quotes 

### Army Regulation 135-175 

### fl 1-3a,4which states:



## a. Reserve component (RC) officers will be separated only

## by-

(1)The Secretary of the Army (SA). (2) Commanders 

### specified 

### in this regulation under conditions set forth inthis and other pertinent regulations. (3) Commanders 

### specified 

### in special directives 

### of 

### the SA under the conditions inthese directives. (4)

## In relation

## to paragraphs 

## (2) and (3), above,

## the discharge 

### authority delegated

## to commanders 

### bythis regulation

## will not 

### include authority 

## to discharge

### an officer under

## a court-martial 

### sentence

## to dismissal, 

### prior

## to completion 

### of appellate review' 

### unless

### the discharge 

### authority intends

### the discharge 

### to act as a remission ofthe conviction.

Army Reg. 135-175,

### fl 1-3a (Feb. 28,1987).

Ms. Walker 

### further alleges 

### in her second amended complaint.that according to 

### "Army Regulation 135-175

# lf 2-8a," 

### "theArmy's Headquarters, 7'

## ' Army .Reserve 

### command-lacked the authority 

### to discharge plaintiff," and, therefore, 

### "the plaintiff was 

### not legally 

### discharged

### on october 1, 2006 under 

### Army Regulation 

### 135-175." Army Regulation 135-175,

### fl 2-8a, "Discharge authority," provides' in pertinent part:

2 Previously Ms.

### walker had represented 

### to the Army Board 

### for correction 

### of Military Records (A-BCMR)that 

### the incapacitation pay due

### to her wasfor 

### a period beginning on August 20, 2003 through February 2004.

3

### The plaintiff failed 

### to keep the court appraised of her current address, so that the flow 

### of her multiple, improperly 

### filed motions 

### was interrupted 

### until 

### the court 

### was able to

secure 

### a coirect address

### for 

### plaintiff. In addition,

### the second amended complaintwas 

### not properly 

### filed in accordance 

### with 

### the Rules 

### of

### the United States 

### Court

### of Federal 

### Claims. In order 

### to move the case forward and given 

### plaintiffs pro

# g status, the court, nonetheless, 

### filed 

### the second amended complaint 

### by leave 

### of the court. Moreover, among 

### other relief, Ms.Walker seeks attorney'S 

### fees even though 

### she is representing herself pro se before this court.



### a Ms. Walker incorrectly 

### cites

### to Army Regulation 1

### 35-175

# fl 1-4a 

### in het second amended complaint, but quotes the regulation from Army Regulation 135-175 

### fl 1-3a.

### HQDA [Headquarters, Department 

### of theArmy]

### will take 

### final action on



### the recommendations 

## of boards 

## of officers

### and resignation in -lieu of involuntary separation, 

### based 

### on

### the reasons 10 through 

### 2-14.1') Area commanders 

### will forward 

### these cases, 

### with 

### the recommendations and remarks,to the Cdr,ARPERCEN, PAT-R.
Army Reg. 135-175,

### fl 2-8a (emphasis in original).



### In response, 

### the government 

### filed 

## a motion

### to dismiss Ms. Walker's second amended complaint, 

### or, in 

### the alternative, 

### forjudgment on 

### the administrative record. 

### Subsequently, 

### Ms. Walker

### filed 

## a cross-motion 

### for judgment 

### on 

### the administrative record 

### and

### a response 

### to the government's motion 

### to dismiss, after which 

### the parties exchanged further responsive briefs.

FINDINGS OF FACT



### OnAugust 

### 3, 1989, Ms.

### Walkerwas commissioned 

### a second lieutenant 

### in the United States 

### Army Reserve 

### and assigned 

### to the Transportation 

### Corps. Between her commissioning 

### and

### April 1

## , 1999, Ms. Walker 

### served 

### in various units 

### in the Army Reserve and 

### theArmy National Guard. On

### April 1, 1999, Ms. 

### Walkertransferred from 

### the Texas

### Army National Guard 

### to the Army Reserve. 

### On June 19, 2002, she was promoted to the rank of major intheArmy Reserve.

OnJanuary 13, 2003, Ms.Walker was mobilized into active duty 

### for one year in support of Operation Enduring Freedom. OnJanuary 

### 21,2003, Ms. Walker was ordered to Fort Hood, Texas. On May 30, 2003, while on active duty, Ms.Walker sought medical treatment for what 

### Army medical personnel described as "bilateral

### wrist pain and hand weakness 

### for 2

### to 3 months," and was diagnosed

### with carpal tunnel syndrome in both 

### hands. Ms.Walker's medical evaluation form indicated 

### that her condition may result in temporary disability. 

### OnAugust 

### 7,2003, she was 

### found unfit

### to perform 

### her assigned 

### duties 

### as

## a training officer, 

### and, 

### on August 

### 13, 2003, 

### an informal 

### Line

## of Duty 

### Investigation conducted 

### by Ms.Walker's commanding 

### officer determined 

### that she sustained 

### her injuries 

### inthe line of duty. Thereafter, 

### on August 

### 14,2003, Ms. Walker requested incapacitation payofrom 

### theArmy 

### for bilateral carpal tunnel 

### syndrome. On

5

### The reasons

### for involuntary discharge, referenced in

### Army Regulation 135-175' 112- 

### 8a, include, "substandard performance of duty," 

### Army Reg. 135-175, 

### fl 2-11, "Moral or professional dereliction," 

### Army Reg. 135-175,

### fl 2-12, "lnvoluntary separation of officers who 

### do not meet 

### the medical fitness standards at time of appointment

. 

### . .,"Army Reg. 135-175, 

### fl 2-13, and "lnthe interest of National security," Army Reg. 135-175,1'2-14.

6Section 204(gX1XA) oftitle 37 ofthe United States Code states:

A member of

### a reserve component of a uniformed service is entitled tothe 

### pay and allowances provided 

### by law

### or regulation 

### for

### a member

### of a

3

### August 18, 2003, 

### on United States 

### Army Reserve 

### Command Form 46-1-R (Soldier

Acknowledgement 

### of Incapacitation 

### Pay Counseling), 

### Ms.Walker acknowledged her understanding 

### of, and agreement 

### with,

### the requirements 

### for requesting incapacitation 

### pay. On 

### August 19, 2003, Ms.Walker completed her required service,

### was honorably released from active duty, andtransferred back totheArmy Reserve. 

# A September 

# 4, 2003, Military Physician's Statement

# of Soldier's Incapacitation/Fitness

### for Duty 

### form, United States

### Army Reserve Command Form 46- 

### 2-R, indicates

### that Ms. Walker 

### was found unfit

## to perform military duties from September 

### 4,2003 through March 

### 4,

### 2004. In aJanuary 26, 2004 memorandum from 

### Ms. Walker

## to her commanding 

### officer, plaintiff requested incapacitation 

### pay and allowances

### from March 

### 4,2004 through September 

### 4,2004, due

### to her bilateral carpal tunnel 

### syndrome. Plaintiff also stated that shewas unemployed, outside of her duties in the Army Reserve, andwithout any income from any source.



### On

### April 

### 1,2004, Ms. 

### Walker was transferred, 

### upon 

### her request, 

### tothe 317tn Support Center, anArmy Reserve unit in Germany, because her spouse, an active duty 

### Army officer, 

### was transferred 

### there. 

### On

## a June 10, 2004, Individual 

### Sick Slip, Department 

### of Defense Form 689, Ms. Walker was diagnosed with 

### a right knee sprain sustained in

### the line of duty, and

### was restricted 

### from running, jumping, 

### or marching for



### seven 

### days. A consult report,

### dated June 

### 22, 2004, indicates 

### that Ms.Walker was undergoing physicaltherapy for tricompartmental arthritis 

### in her right 

### knee. On July 7,



### regular component

### of 

### a uniformed 

### service

### of conesponding grade and 

### length

### of servicewhenever such member 

### is physically 

### disabled 

### as the result 

### of an injury, illness, 

### or disease incurred 

### or aggravated



### . . . in [the] line of duty while performing active duty.

. . .
37 U.S.C. S

### 2Oa(gxlXA) (2000). Army Regulation 135-381 states:



## a. Section 

### 204,

### title 

### 37, United States 

### Code provides authority for 

### continuation 

## of pay 

### and allowances 

### under certain circumstances to soldiers 

### who are disabled ILD [in 

### the line of duty]from injury, illness, or disease. b.This chapter implements policy for soldiers disabled by injury, illness, or disease after 29 September 1988. 

## c. For

### the purposes 

### of this regulation 

### such continuation 

## of pay and allowances is refened to as "incapacitation pay.

. . . 

### Army Regulation 135-381, 

### l[ 4-1a-c (June 

### 1, 1990) (emphasis 

### in 

### original). The 1990 

### version 

### of Army Regulation 135-381

### was in effect at 

### the time Ms. 

### Walker requested incapacitation 

### pay. The specific processing procedures governing incapacitation pay


### were later included in

### the Department of theArmy Pamphlet 135-381, lncapacitation 

### of Reserve Component So/diers Processing Procedures 

### (Sept.29,2005), which, however,

as discussed below, was not in effect atthe time pertinent to plaintiffs claims.2004, she

### was issued 

### atemporary physical profile "3,"7 Department of

### theArmy Form

3349, for 30 days, which indicated that Ms.Walkerwas restricted, untilAugust 

### 7,2004, from certain physical activities, namely running,jumping, and kneeling/squatting, among other things, due 

### to knee pain and osteoarthritis. An Individual Sick Slip, Department of 

### Defense 

### Form 

### 689, datedAugust 

### 3, 2004, indicates 

### that Ms. Walker's temporary restriction from certain physical activity was extended untilAugust 30, 2004, or until she had an orthopedic 

### consultation. On September 

### 1,2004, Ms. Walker 

### was re-evaluated 

### for her carpaltunnel syndrome 

### by an Army medical professional, 

### who prescribed "Motrin 800 mg" for the condition.


### By

### the fall 

### of 2005, Ms. 

### Walker's Army Reserve unit commander 

### in Germany became aware 

### that Ms. Walker continued 

### to receive active 

### duty pay in

### the aggregate approximate amount 

### of $55,000.00 after 

### she had been released 

### from her 2003 active duty 

### mobilization. An investigation commenced by her commanding officer pursuant to 

### Army Regulation 15-6, Procedures 

### for lnvestigating Officers 

### and Boards 

### of Officers (Sept. 30, 1996) (emphasis in original), found that


### the respondent 

### [Ms. Walker] mismanaged 

### her personal 

### affairs

### to the discredit of

### the service within 

### the meaning 

### of paragraph 

### 2-12(b ),

### AR 13 5-175, 

### by knowingly continuing 

### to receive military pay 

### to which 

### she was not entitled. Specifically, 

### a preponderance of the evidence shows: (a) that 

### the respondent 

### did not out-process Finance

### as ordered at

### the end 

### of her mobilization 

### in September 

### 2003, (b) 

### that 

### the respondent 

### failed

### to report



### 'As explained inWatson v. United States, 't 13 Fed. Cl.615 (2013):

The Army's physical profile system is "a system

### for classifying individuals according to functional abilities." 

### Army Reg. 

### 40-501 

### fl 

### 7-1. In an effort to "provide 

### an index 

### to overall functional capacity," individuals are assigned


### one 

### of four physical 

### profile numerical 

### designations

## /d

## fl 7-3(b). For example, 

### an individual assigned 

### a physical profile 

### ofthree "signifies that 

### the individual has one or more medical conditions or physical defectsthat
may require significant limitations," and that "[t]he individual should receive assignments commensurate 

### with his

### or her physical capability

### for military duty."

### /d 1T7-3(dX3)



### Individuals 

### are also assigned 

### either temporary 

### or permanent physical profiles. See 

### rd fl 7-4. Relevant here, "A temporary profile is given ifthe 

### condition 

### is considered temporary, 

### the correction 

### or treatment 

### of the 

### condition 

### is medically advisable, 

### and correction usually

### will result 

### in a higher physical capacity." 

### ld. 1174(b).

Watson v. United States, 113 Fed. Cl. at 623 n.8.continued receipt 

### of active-duty 

### payfrom September 

### 2003 through May



### 2004 after demobilization, 

### and (c)

### that 

### the respondent improperly stated the pay was incapacitation pay. 

### On December 

## 3, 2005, 

### Ms. Walker's commanding 

### officer testified 

## at her administrative separation proceeding that 

### the approximately $55,000.00 

### she had been paid 

### was identified during 

### the course 

### of the Article 15-6 investigation 

### by 

### a document 

### retrieved 

### from 

### the "military 

### pay and finance automated system," 

### as having been improperly 

### received. 

### In addition, Ms. 

### Walker had missed 

### each 

### of her Army Reserve 

### unit's battle assemblies every month between June 2004 and June 

### 2005. Ms. Walker 

### also missed 

### her unit's annual 

### training in February 

### 2005 and March 2005.

### As a result, 

### she had received eleven letters 

### of unsatisfactory attendance 

### from her commanding officer for her absences.


### On October 

### 20, 2005, 

### Ms.Walker 

### was notified 

### in

## a Notice

## of Elimination Proceedings 

### that an Administrative Separation Board 

### would convene

### to determine 

### whether 

### theArmy should separate 

### her from 

### the Armed 

### Services. The Notice of 

### Elimination Proceedings 

### stated

### that Ms. Walker 

### was required

## to be present at Headquarters, 7tn

### Army Reserve Command,

### on December 

### 3,

### 2005. The Notice of Elimination Proceedings 

### also contained language 

### from Army Regulation 135-175, stating that the Administrative Separation Boardwould appoint counsel to represent Ms. Walker, 

### in absentia, should she 

### fail

### to appear 

### at her 

### proceeding. Ms.

### Walker ignored additional attempts 

### to notify her of 

### the separation 

### proceedings. For example, she hung up the telephone on members of herArmy Reserve unit when they called to notify her 

### of 

### the unit's attempt 

### to mail her Notice 

### of Elimination 

### Proceedings. When Ms. Walker's 

### Army Reserve unit commander went 

### to her civilian workplace and attempted 

### to provide 

### her with 

### the Administrative 

### Separation Board documents, 

### she threatened 

### to call the military police.

Notification of Ms. Walker's elimination proceedings alsowas provided to Captain Udelgarde Alexandre, 

### a Senior Defense Counsel, 

### who had been assigned 

### to represent 

### Ms.

### Walker. Caotain 

### Alexandre contacted Ms. Walker 

### and explained 

### that she was 

### appointed

## to represent 

### Ms. Walker before

### the Administrative 

### Separation Board 

### proceeding. In aJuly 

### 29,2006 memorandum for record, Captain Alexandre stated:


### Itold her [Ms. Walker] 

### who 

### lwas and explained 

### that 

### lwas appointed to 

### represent 

### her 

## at the Administrative Separation 

### Board. Major Walker informed methat shewas not interested in my representation andthat she 

### did not require 

### my 

### services. In plain English, 

### she said "Ma'am 

### l'm not interested" twice and hung up

### the phone on me. MAJ Walker declined my 

### representation. 

### I accepted MajorWalker's 

### wishes and did not represent her atthe board.



### On December 

### 3, 2005,the Administrative Separation Board 

### was convened to consider whether to separate Ms.Walker fromtheArmy Reserve, andto determine the appropriate 

### type 

### of discharge. 

### After hearing 

### testimony, including testimony 

### from Ms.Walker's 

### Army Reserve unit commander, 

### the "Show-Cause Board rn 

### re MAJ Kathryn

Walker" found that Ms. Walker had
mismanaged 

### her personal affairs

### to the discredit of

### the servicewithin the meaning 

### of paragraph 2-12(b'), 

### AR 135-175, 

### by knowingly continuing to 

### receive military 

### pay

## to which 

### she

### was not 

## entitled. Specifically, a preponderance 

### ofthe evidence shows: (a)thatthe respondent did not outprocess Finance 

### as ordered at

### the end 

### of her mobilization 

### in September 

### 2003, (b) that 

### the respondent failed 

### to report continued receipt 

### of active

### duty pay 

### from September 

### 2003 through May 2004 after demobilization, 

### and (c) 

### that respondent improperly stated 

### the pay 

### was incapacitation 

### pay....

That 

### the respondent intentionally neglected or failed 

### to perform assigned duties withinthe meaning of paragraph 2-12(i)(1), 

### AR 135-175, by missing 

### unit battle assemblies 

### every month between 

### June 2004 and June 2005 

### and 

## by missing 

### unit annual 

### training

## in February 

### and March 2005. 

### specifically 

### [sic],

## a preponderance 

### of the evidence shows: 

### (a) that the respondent failed 

### to report

### for repeated battle assemblies between June 

### 2004 andJune 2005 

## as evidenced 

## by 11 letters

## of unsatisfactory 

### attendance, 

### and witnessed 

### by her unit commander, 

### and (b) that the respondent failed

### to reportfor mandatory annual training 

### on 11 September 

### 2004 and again from 

### 26 Februarythrough 11 March 2005, 

### as evidenced by notification letters from her unit commander.

. . . 

### That

### the respondent intentionally neglected 

### or failed 

### to reply

### to official correspondence 

### within 

### the meaning 

### of paragraph 2-12(iX3Xd), 

### AR 135- 175, 

### by refusing 

### to acknowledge letters

### from her unit 

### and by hanging up the telephone on an officer from 

### the unit who called

### to ascertainwhy she 

### was not present 

### for unit

### training. Specifically, 

### a preponderance 

### of the evidence shows: (a)that 

### the respondent on repeated occasions refused to 

### accept personally 

### delivered notifications 

### as stated by

### the witnesses, (b) 

### that

### the respondent 

### on repeated occasions refused 

### to accept delivery 

### of and 

### to sign 

### for mail as evidences [sic] by

### written statements, (c) that the respondent's husband, an active-duty officer, connived with her in refusing delivery of andto signfor mail as evidenced bywritten statements, and (d) that the respondent willfully changed her mailing address from Germany to Texas with intent to deceive and in order tofrustrate deliverv of mail to her while shewas living in Germany.



### Based 

### upon 

### its findings, 

### the Show-Cause 

### Board concluded

### that Ms. Walker 

### should 

### be separated 

### from 

### the Army Reserve 

### with a^

### discharge under other than honorable 

### conditions. Accordingly, 

### on October 1, 

### 2006,' in a decision signed by Col.,

o

### The court notesthat 

### the administrative record before

### the court includestwo different discharge orders 

### of Ms. Walker, the first with 

### the effective date 

### of September 

### 8, 2006,GS [General Staffl Albert J. Gardner, Ms. Walker was separated from theArmy Reserve

with an other than honorable discharge.



### Ms. Walker sought administrative 

### review

### of her discharge 

### on five separate occasions, 

### twice before 

### the Army Discharge Review 

### Board (ADRB), 

### and three times before 

### the 

### ABCMR. Ms. 

### Walker 

### first challenged 

### her discharge before 

### the ADRB on November 

### 8,2007, requesting 

### that theADRB upgrade her discharge characterization 

### from "UNDER 

### OTHER

### THAN HONORABLE' 

## to "HONORABLE." (capitalization in 

### original). On September 30, 2008, theADRB denied Ms.Walker's request, stating that 

### after reviewing 

### her application, 

### it determined Ms.Walker 

### was "properly 

### and equitably" discharged under other 

### than honorable 

### conditions. On January 

### 8, 2009, Ms. Walker 

### again challenged 

### her discharge before

### the ADRB 

### and repeated 

### her request 

### for an upgrade 

### in characterization. On May 

### 6, 2009, 

### theADRB 

### again rejected Ms.Walker's challenge 

### on the grounds 

### she 

### was "properly 

### and equitably" 

### discharged. The ADRB added 

### that Ms.Walker had exhausted her appeals with the 

### ADRB, but notedthat she could still apply to the ABCMR for relief.

Ms.

### Walker challenged her discharge before 

### theABCMR 

### on June 

### 2, 2009, this time represented by counsel. Ms.Walker requested that her involuntary separationwith 

## a discharge under 

### other

### than honorable conditions 

### be voided, 

### andthat she be 

### reinstated into 

### theArmy Reserve. Ms. Walker argued before 

### the ABCMR 

### that her discharge proceedings should bevoided because she was denied 

### due process as set 

### forth in

### Army Regulation 

### 135-175. According 

### to Ms. Walker, 

### an officer against whom 

### involuntary administrative 

### separation proceedings 

### have been initiated 

### should be 

### afforded 

### notice

### ofthe proceedings 

### and records

### which 

### are

### to be submitted

### to the Administrative Separation Board, has

### a right

### to representation by counsel, and should 

### have an opportunity 

### to present her case 

### to the Administrative Separation Board. Ms. Walker further stated that she was not notified of her involuntary separation action, and that she 

### did not execute anywaiver of her rights to appear for a hearing before 

### a Board 

### of officers. Ms. Walker also argued 

### that

### the presumption 

### of regularity 

### the ABCMR attributed 

### to theArmy adminishative separation process

### was erroneous, because "the 

### entire record is

### void of any

### facts and circumstances concerning 

### the events 

### that led to 

### her discharge 

### from theArmy 

### Reserve." On December 11, 2009, 

### the ABCMR denied Ms. 

### Walkeis challenge. In its record of proceedings, theABCMR stated that Ms.Walker bore the burden of proving an error or injustice by a preponderance ofthe evidence, but that she had failed to satisfy that burden.

and 

### the secondwith 

### the effective date 

### of October 1,

### 2006. The discharge orders bear different numbers, were issued on different dates and listdifferent effective dates of Ms. Walker's discharge, although both discharge orders 

### were signed by Col., GSAlbert J. Gardner, 

### both reference

### the HRC's September 

### 8, 2006 Memorandum 

### signed 

### by MG 

### [Major General] Hernandez, 

### and both note Ms. Walker's other 

### than honorable 

### discharge. Because 

### plaintifi and defendant 

### in 

### their respective 

### briefs agree

### that Ms. Walker's effective date of discharge is October 1,2006, the court will treat Ms.Walker's effective date of discharge as October 1
,2006.The ABCMR concluded that:



### The applicant's records 

## do not contain

### the facts and circumstances concerning 

### the events leading

### to her discharge

### from 

### the 

### USAR. Her 

### commander's notification

### of her separation 

### action, 

### her election 

### of her rights, and

### the recommendations 

### of a board 

### of officers

### were not available 

### for review. However, 

### her discharge 

### orders contain

## a reference

## to a 

### memorandum

### from HRC [Headquarters Reserve Command], 

### dated 8 

### September

### 2006, 

### and signed 

## by

## a major general. Therefore, 

# it is 

### reasonable 

# to conclude

# that 

# her separation 

### package and recommendations by a board of officers were infact submitted

### to HRCfor final approval.


### On April 

### 7,2011, the ABCMR denied 

## a petition

### filed 

### by Ms. Walker for reconsideration of its December 1 1,2009 decision and concluded that she hadfailedto 

### meet her burden 

### of oroof.The ABCMR stated 

### that "the overall merits 

### ofthis case are insufficient" 

### to amend its earlier 

### decision. In its April 

### 7. 20'11 decision, 

### the ABCMR noted 

### that 

### the evidence in

### the record demonstrated 

### that Ms.Walker's administrative discharge 

### was accomplished 

### in accordance 

### with

### the applicable regulations, 

### with no indications of any violations 

### of her 

### rights. TheABCMR also noted that Ms.Walkerwas afforded every opportunity 

### to participate 

### in her administrative separation proceedings, but hadfailed 

### to do

### so. Furthermore, theABCMR concluded 

### that based on 

### a review 

### of 

### Ms. Walker's separation proceedings, 

### her discharge under 

### other

### than honorable conditions properly characterized "her multiple acts of misconduct and overall service."


### On May

### 2, 2012, Ms. Walker petitioned 

### the ABCMR 

### for 

### a third time, again 

### seeking correction

### of her military records 

### to void her involuntary 

### separation and for reinstatement into the

### Army Reserve. Additionally, Ms.Walker requested evaluation 

### of her medical status by 

### a Medical Evaluation Board (MEB), as well as "incapacitation pay 

### and allowances 

### for the period 

### from 20 August 2003 through 

### the date 

### of completion 

### of her physical disability evaluation and separation fromthe 

### USAR.' Ms.Walker alleged in 

### her 

### third petition 

## to the ABCMR

### that she never 

### was

## fitfor duty after her 2003 mobilization; 

### that she was involuntarily discharged 

### without simultaneous process for administrative separation and physical disability evaluation towhich she claims she was entitled;that she was undergoing medical treatment atthe time she was separated; that she was separated withoutthe benefit of proper treatment and evaluation of her alleged medical condition; andthat she was denied 

### the opportunity 

### to submit documentation

### of 

### her medical condition 

### and have 

### a disability rating assigned, 

### all in violation 

### of Army Regulation 635-40.


### On November 

### 13, 2012, 

### the ABCMR returned Ms. 

### Walker's request without action. 

### The ABCMR stated 

### that according 

### to Army Regulation 15-185, 

### if 

### it receives a 

### request

## for reconsideration

### after

# it has already considered 

## one request for reconsideration, the case will be returned without 

### action. See Army Reg. 15-185,Army Board 

### for Conection 

### of Military Records, 112-15b (Mar. 31
,

### 2006). As discussed 

### in its 

## on April 

## 7. 2011 decision,

### the ABCMR 

### had reiected 

### Ms. Walker's request forreconsideration 

### of its denial 

### of her 

### first request 

### for 

### relief. Nonetheless, 

### on November



### 27.2012. theABCMR issued 

### a decision in which 

### it stated 

### it had decided 

### to conduct a substantive review 

### of Ms.Walker's 

### third oetition 

### to determine whether 

### the interests 

### of justice necessitated granting her 

### relief. Upon evaluation of 

### the evidence in

### the record, 

### the ABCMR, once again, determined 

### that there 

### was no basis 

### for granting 

### any

### of Ms. 

### Walker's requested relief. 

### TheABCMR noted

### thatwhile an August 

### 13,2004 Informal 

### Line

### of Duty Investigation 

### referenced 

### an August 

### 7, 2003 handwritten 

### letter 

### by Ms. Walker "Chief, Training," indicating that Ms.Walkerwas found to be unfit

### to perform her assigned duties, her

### August 14, 2003 request 

### for incapacitation pay 

### did not contain the proper documentation required for such claims to be 

### approved. The ABCMR noted that Department 

### of the 

### Army Pamphlet 135-381s details 

### the procedures bywhich 

### a soldier must apply

### for and be approved

### to receive incapacitation 

### pay. See Department of the Army Pamphlet 135-381 (Sept. 29, 2005). The ABCMR also heldthat "[o]n4 September 

### 2003,

### a military physician documented 

### that

### the applicant 

### was unfit 

### to perform military duties from

### 4 September 2003

### to

### 4 March2004. However, 

### the evidence 

### of record fails 

### to show

### the applicant provided 

### the documentation 

### to her commander

### for consideration 

## of her request." Furthermore, 

### the ABCMR 

### held

### that Ms. Walker's request for incapacitation pay 

### for the period

### from March

### 4, 2004 through September 

### 4, 2004 also 

### did not contain

### the required 

### documentation. The ABCMR concluded 

### there 

### was no evidence 

### to demonstrate 

### that Ms. Walker was excused from attending hervarious unit battle assemblies and annual training in 2004 and

### 2005. Accordingly,theABCMR held 

### that there

### was insufficient evidence 

## to support 

### Ms.Walker's claim 

### that she had 

### submitted

# a proper request

## for incapacitation 

### pay,

## or that she 

### was entitled to incapacitation pay retroactive toAugust 

### 20,2003, through the date of her separation.

s

### The court notes that 

### the ABCMR incorrectly references

### the Department 

### oftheArmy 

### Pamphlet 135-381 

### as applicable 

### to Ms. 

### Walker's case.

### The Department 

### of the Army 

### Pamphlet 135-381 

### was 

### first issued 

### in September

### 2005.

### The procedures described 

### therein, and, specifically, 

### in DA PAM 135-381

## ll 2-1

## ,lor a soldier 

### to "[c]omplete and submit 

### an lncapacitation Pay Monthly Claim Form (DA Form 7574 figure 2-2)) 

### for each calendar month claimed," are, therefore, 

### not applicable 

### to Ms. Walker, 

### as

### the alleged 

### processing 

### of her incapacitation

### claims must havetaken place 

### in thetime period between August 2003 and March 2004, long before theArmy Pamphlet 135-381 was in effect. 

### The defendant concedes that the ABCMR inconectly cited 

### tothe pamphlet, but 

### argues 

### it was,

### at most, "harmless 

### error" because 

### Army Regulation 135-381 already provides procedures for incapacitation pay andthe "pamphlet merely provides a greater 

### degree 

### of specificity." 

### The court notes, however, 

### Army Regulation 135-381 contains only general procedures regarding 

### the incapacitation pay process, and does not include


### a requirement 

### to submit 

### a monthly claim form. Had 

### the court reached 

### the merits 

### of Ms. 

### Walker's 

### claim and been able 

### to consider 

### if the ABCMR's decision 

### was "'arbitrary, capricious, contrary 

### to law, 

### or unsupported 

### by substantial evidence,"' Meidl 

### v. United 

### States, 108 Fed. 

### Cl. 570,575 (quoting Roth

### v. United States, 378 

### F.3d 1371, 1381 

### (Fed. Cir.), reh'q denied (Fed. 

### Cir. 2004)), mistakes, 

### such

### asthe citation 

## to the Department of the 

### Army Pamphlet 135-381, would have required closer scrutiny by the court.

'10

### Additionally, regarding Ms. Walker's request 

### for an evaluation

### of her medical

status by 

### an MEB,

### theABCMR noted 

### that "under

### the laws governing 

### theArmy PDES 

### [physical disability evaluations], 

## in order

## to be eligible

## to receive retirement and
severance 

### pay benefits, physically unfitting disabilities 

### must meet 

### certain LOD fiine of duty determinationl criteria." Seg Army Reg. 635-40, Physical Evaluation for Retention, Retirement, 

### or Separation,

### fl 3-4a (Sept. 

### 1, 1990).

### The ABCMR concluded 

### that there


### was no evidence establishing 

### that Ms.

### Walke/s alleged condition 

### was directly caused by either service on active duty or intheArmy Reserve. According tothe ABCMR,



### the evidence 

### of record shows 

### the period of time 

### the examining physician certified 

### the applicant [Ms. Walker] 

### was not

### fitto perform military duties
was from 

### 4 Seotember 2003 

### to

### 4 March

### 2004. The Evidence 

### of Record also shows the applicant [Ms. Walker] was administratively separated from 

### the USAR 

### more

### than

## 2

# /, years 

### after 

### the period 

### that

## a physician documented 

### the applicant 

### was unable 

### to perform military 

### duties. Since there 

### are no 

### other medical records showing she

### was unfit

### to perform her military 

### duties,.it 

### is reasonable 

### to conclude 

### that [Ms. 

### Walker's] condition had improved.['"]
Accordingly, 

### the ABCMR concluded Ms. Walker 

### was not entitled 

### to physical disability evaluation processing, 

### and her claim wasfound 

### to be without 

### merit. TheABCMR also highlighted that Ms.Walker bore

### the burden 

### of proving administrative impropriety in her 

### separation 

### by

### a preponderance 

### of the evidence, 

### and

### thatshe had failed 

### to do so. Therefore, 

### the ABCMR denied 

### all 

### of Ms. 

### Walker's requested relief, 

### and informed Ms. Walker that she

### was not eligible

### to request further action 

### on her claims

### to the ABCMR because 

### her request 

### for review 

### of her discharge had already 

### been reconsidered. The 

### ABCMR added, however, 

### that Ms. 

### Walker could seek relief 

### in 

### a court

### of appropriate jurisdiction.



### Ms. Walker ultimately 

### filed 

### a complaint 

### in

### the United States Court 

### of Federal Claims, followed by an amended complaint, and then a second amended 

### complaint. In 

### this court, Ms.

### Walker requests incapacitation pay for 

### the periodfrom September 2003 through February 2004, reinstatement into theArmy Reserve as a major, and correction of her military records to set aside her under other than honorable conditions discharge. 

### In response,

### the government

### filed 

## a motion 

## to dismiss, 

### or, 

### inthe alternative, for judgment onthe administrative 

### record. The government first argues thatthe court lacks subject matterjurisdiction to adjudicate Ms. Walker's incapacitation pay claim because it 

### is time-baned 

### bythe statute 

## of limitations. Second, 

### the government 

### argues that

10Several documents in

### the administrative record suggest 

### that Ms. 

### Walker may have suffered 

### a knee injury 

### in 2004, 

### and may have continued 

### to suffer 

### from Carpal Tunnel Syndrome 

### as 

### of September 

### 1,20O4. Nothing 

### in 

### the administrative 

### record, however, demonstrates 

### that Ms.Walker 

### was diagnosed by 

### a medical professional

### to be unfit to perform her military duties after March 

### 4, 2004, suchthat she might have been entitled to incapacitation pay.

11because 

### the court lacksjurisdiction 

### over Ms.Walker's incapacitation 

### pay claim, the



### court lacksjurisdiction

## to adjudicate 

### her remaining 

### claims

## for reinstatement and 

### correction

### of her military records because 

### they 

### are equitable claims,

### for which she cannot 

### be awarded relief 

### if not incident

### to, or collateral 

### to, a claim 

### for monetary relief. 

### Third, 

### the government 

### argues

### that even 

### if the court determines 

### it has

### jurisdiction to adjudicate Ms.Walker's claims, itshould limit its review to theABCMR's November 27, 

### 2012 decision, in

### which theABCMR concluded 

### thatthere

### was insufficient evidentiary 

### basis

## to support 

### Ms. Walker's 

### claim

### that she had submitted 

## a proper claim for incapacitation pay orthat she was entitled to incapacitation pay. Fourth, the government argues that the ABCMR correctly found 

### that Ms.

### walker was properly discharged from the Army Reserve and

### the Board properly concluded that Ms. 

### walker was not entifled to incapacitation pay, because shewas not entitled to simultaneous processing on medical grounds, and because 

### of her documented misconduct. The government also contends 

### that Ms.

### walker's argument that her discharge orders did not comply with regulations is 

### waived because 

### she 

### did not argue 

### it before 

### theABCMR, 

### andthat her disCharge was properly processed andthe orders properly authenticated.

In response, Ms. Walker asserts thatthis court hasjurisdiction to adjudicate all of her claims, including her request for incapacitation pay and her request to be reinstated into the Army 

### Reserve. Ms. 

### walker also argues that she isentiiled to incapacitatron pay because she alleges

### the claim accrued on 

### lhe date 

### of her improper dischargefrom the 

### Army Reserve, given 

### that her discharge was defective because itfailed 

### to comply with applicable regulations andwas not properly 

### approved. Ms. 

### walker also alleges that that 

### the ABCMR's November 

### 27,2012 rejections 

### of her requests 

### for relief 

### weie arbitrary, capricious, and contrary 

### to law.



### DtscusstoN

Ms.

### walkerfiled her 

### case in this court pro

## se. when determining 

### whether a complaint 

### filed by

### a oro 

### se plaintiff 

### is sufficient 

### to invoke review 

### by

### a c-ourt, 

### pro se plaintiffs 

### are entitled 

### to liberal construction 

### of their 

### pleadings. 

### see ijaines 

### v. Kerner: 

### 404 

### u.s. 519, 520-21 (requiring that allegations contained in a prq gc complaint be neta 

### to 'less stringent standards 

### than formal pleadings 

### drafted 

### by lawyers"), 

### ieh'q denied, 

### 405 U.S. 948 (1972): 

### see atgo Erickson 

### v. pardus, 

### 551 U.S. 

### 89, 94 (2007)., HlgXCS_lt 

### Rowe,449 

### U.S.5,9-10 (1980); Esteile

### v. Gambte,429 

### U.S.97, 106 

### tigZOl, 

## relg 9g!igd, 429 U

## S 1066 (1977); Matthews 

### v. United States, 

### 750 F.3d 

### rS)O 1ri:0. Cin 2014) (citing Haines v. Kerner, 404 

### u.s. at s20); Diamond v. United 

### states, 115 Fed. 

### cl. 516, 524 (2014). "However, "'[t]here 

### is no duty on 

### the part 

### ofirre triat court 

### to create a claim which [the plaintiffl has not spelled out in his [or her] pleading.""' Lenqen v. United 

## States,100Fed.C|.317,328(2011)(a|terationsinorigina|)(quotins@ states, 33 Fed.

### cl. 285,293 (1995) (quoting 

### ctark 

### v. 

### Nit't rraveterJLife

## tisj-o. s18 F.2d 

### 1167,1169 (6th 

### Cir. '1975))); see atso Bussie 

### v.

# U@, 94, 

# S,++l F.

### App'x 542(Fed. Cir.2011); Minehan 

### v. United States, Tb Fed. Ct. 

### 24g,253 (2007). "While a pro se plaintiff is held to a less stringent standaid than that of a plaintiff 

### represented

### by an attorney,

### the oro 

### se plaintiff, nevertheless, 

### bears 

### the buiden of establishing 

### the court's jurisdiction 

### by

### a preponderance 

### of the evidence.,, Riles v.

12United States, 

### 93 Fed. 

### Cl. 163, 165 (2010) (citing Huohes 

### v. Rowe,449 U.S. 

### at 9 and

Tavlor 

### v. United States, 

### 303 F.3d 

### 1357, '1359 (Fed. Cir.) ("Plaintiff bears

### the burden 

### of showing 

### jurisdiction by 

### a preponderance 

### of the evidence."), 

### reh'q

### and reh'q 

### en banc denied (Fed. 

### Cn.2002)); see also Harris 

### v. United States, 113 Fed. 

### C|.290,292(2013) ("Although 

### plaintiffs pleadings are held 

### to a less stringent standard, such leniency 'with 

### respect 

## to mere formalities 

### does 

### not relieve 

## the burden

## to meet jurisdictional requirements."' (quoting Minehan v. United States, 75 Fed. Cl. at 253)). 

## It is well established

### that "'subject-matter 

### jurisdiction, because 

## it involves a 

### court's power 

### to hear 

### a case, can never be forfeited 

### or

### waived."' Arbauqhv.

## y & H Corp., 

### 546 U.S. 500, 

### 514 (2006) (quoting United States 

### v. Cotton, 

### 535 U.S. 625, 630 

### (2002)). "[F]ederal 

### courts have 

### an independent obligation 

### to ensure 

### thatthey 

### do not 

### exceed

### the scope 

### of their jurisdiction, 

### and therefore 

### they must raise 

### and decide jurisdictional questions that the parties either overlook or elect not to 

### press." Henderson 

### ex rel. Henderson

### v. Shinseki, 131 

### S. Ct. 1197,1202 (2011); 

### see also Hertz Corp. v. Friend, 

### 559 U.S. 

### 77, 94 (2010) ("Courts have 

### an independent obligation 

### to determine 

### whether subject-matter 

### jurisdiction exists, even 

### when 

### no party challenges 

### it." (citing Arbauqh v. Y 

### & H Corp., 546 U.S. at 514)); Special Devices. Inc.v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. 

### cir.2001) ('[A] court has 

### a

### dutyto inquire into itsjurisdiction 

### to hear 

### and decide

### a case." (citing Johannsen 

### v. Pav Less Druq Stores 

### N.W., Inc., 

### g18 F.2d 160, 161 (Fed. 

### Cir. 1990))); View Enq'q. lnc. 

### v. RoboticVlsion Svs.. lnc., 115 F.3d 962, 963 (Fed. 

### cir. 1997) 

### ("[c]ourts must always look to theirjurisdiction, whetherthe parties 

### raise 

### the issue 

### or not."). "The objection 

### that

## a federal 

### court lacks subject-matter jurisdiction

. . . may be raised by 

### a party, or by a court on its own initiative, at any stage in

### the litigation, even after trial and the entry ofjudgment."Arbauqh v.

### y & H Corp., 546 U.S. 

### at 506; see also Cent. Pines Land 

### Co.. L.L.C.

### v. United 

### States,697 F.3d 1360, 1364 

### n.1 (Fed. 

### cir. 2012) ("An objection 

### to a court's subject matterjurisdiction 

### can be raised 

### by any party or the court

### at any stage 

### of litigation, including after 

### trial and the entry ofjudgment." (citing Arbauqh v. Y 

### & H Corp., 546 U.S. at 506)); Rick,s Mushroom S.erv.. 

### lnc.

### v. United 

### States,521 F.3d 1338, 

### 1346 (Fed. Cir. 2008) ("[A]ny 

### party may challenge, 

### or

### the court may raise 

### sua sponte, subject matter

### jurisdiction at any time." (citing 

### Arbauoh

### v.

### Y & H Corp., 546 U.S. 

### at 506; Folden 

### v. United 

### States, 379 F.3d 1344, 1354 (Fed. Cir.), 

### reh'q and reh'q 

### en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and Fanninq, Phillips & 

### Molnarv. West, 160 F.3d 

### 717,720 (Fed. 

### Cir 1998))); Pikulin v. United States, 97 Fed. CL 71, 76,appeat dismissed, 42S F.App,x 

### 902 (Fed. 

### Cir.2011). In

### fact, "[s]ubject matterjurisdiction 

### is 

### an inquiry 

### thatthis court must 

### raise sua sponte, evenwhere

. 

### . . neither party has raised 

### this 

### issue." Metabolite _Labs., Inc.

### v. Lab. Corp. of

### Am. Holdinos,3TO F.3d 1354, 1369 (Fed. Cir.) citing ICXtilC Prods., lnc.

### v. Mead Corp., 134 

### F.3d 1481,14A5 (Fed. Cir.), reh'q denied and

### en oanc 

### Slggesle! declined (Fed. Cir.), cert. denied, 

### 525 U.S. 826 (1998)), reh'q 

### and reh'q en 

### bancdenied (Fed. 

### Cir.2004),ceft. qranted in

### oartsub. nom Lab. Corp. of

### Am. Holdlnqs y. 

### Melalolite Labs.. lnc., 546 

### u.s. 975 (2005), cert. dismissed as improvidenflv qranted, 548 U.S. 124 (2006).

Pursuantto

### the Rules of

### the United States Court 

### of Federal Claims (RCFC) and 

### the Federal Rules of 

### civil Procedure, a plaintiff need only state inthe complaint "a short

13

### and plain statement 

### of the grounds 

### for the court'sjurisdiction," and 

### "a short and plain

statement of

### the claim showingthat 

### the pleader is entitled 

### to 

### relief." RCFC 8(a)(1), (2) (2014); Fed. R. Civ. P. 8(aX1), (2) (2014); see 

### alsoAshcroftv. lqbal,556 U.S. 

### 662,677- 

### 78 (2009) (citing Bell 

### Atl. Corp.

### v. Twomblv, 

### 550 U.S. 

### 544,555-57,570 (2007)). "Determination ofjurisdiction starts with 

### the complaint, 

### which must be well-pleaded in 

### that it must state

### the necessary elements 

### of the plaintiffs claim, independent 

### of any defense 

### that may 

### be interposed." Hollev

### v. United 

### States,124F.3d 1462, 1465 (Fed. Cir.) (citing Franchise 

### Tax Bd.

### v. Constr. Laborers Vacation 

### Trust,463 U.S. 1 (1983)), reh'q denied (Fed. 

### Cir. 1997); see also Klamath Tribe Claims Comm.

### v. United States, 

### 97 Fed. 

### C|.203, 208 (2011); Gonzalez-McCaullev Inv. 

### Grp., Inc.

### v. United 

### States,93 Fed. Cl. 

### 710,713 (2010). "Conclusory allegations of lawand unwarranted inferences 

### of fact do not suffice 

### to support 

### a 

### claim." Bradley

### v. Chiron 

### Corp., 136 

### F.3d 1317,1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextet 

### Corp.,501 F.3d 1354, 1363 n.9 (Fed. 

### Cir. 2007) (Dyk,

### J., concurring 

### in part, dissenting 

### in part) (quoting 

### C. Wright and A. Miller, Federal Practice and Procedure S 1286 (3d ed. 2004)).

"A 

### plaintiffs factual allegations must 'raise 

### a right 

### to relief above

### the speculative 

### level'and cross'the line from conceivable

### to plausible."' Three 

### S Consultinq

### v. United 

### States, 104 Fed. 

### C|.510,523 (2012) (quoting Bett 

### Att. Corp. 

### v.Twombtv,550 U.S. at 555), 

### aff'd, 562 F.

### App'x 964 (Fed.

### Ct.2014), reh'o denied (Fed. 

### Cir. June 

### 11,2014\. 

### As stated in Ashcroft 

### v. lqbal, 

### "[a] pleading 

### that offers 'labels and conclusions' 

### or 'a formulaic recitation 

### ofthe elements 

### of 

### a cause 

### of action 

### will not do.' 550 U.S. 

### at 555. Nor 

### does

### a complaint suffice 

### if it

### tenders 'naked assertion[s]' devoid 

### of 'further factual 

### enhancement."' Ashcroft 

### v. lqbal, 556 U.S. at 678 (quoting Bell 

### Atl. Corp.v. Twomblv, 550 U.S. at 555).

When deciding 

### a case based on 

### a lack of subject matterjurisdiction orfor failure 

## to state

## a claim,

### this court must assume 

### that

### all undisputed

### facts alleged 

### in the complaint are

### true and must draw 

### all reasonable inferences in

### the non-movant's favor. 

### See Erickson

## v. Pardus, 

### 551 U.S. 

### 89,

### 94 (2007) 

### ("ln addition, 

### when ruling

### on a defendant's motion to dismiss, a

### judge must accept astrue all of thefactual allegations contained inthe complaint." (citing Bell Atl. Corp. v. Twomblv, 550 U.S. at 555-56 (citing Swierkiewicz v. Sorema N.

### A.,534 U.S. 506, 508 n.1 (2002)))); 

### Scheuerv. Rhodes,416 U.S. 

### 232, 236 (1974) ("Moreover, 

### it is

### well established 

### that, in passing 

### on 

### a motion to 

### dismiss, whether on 

### the ground

### of lack ofjurisdiction over 

### the subject matter 

### or for failure 

### to state 

### a cause 

### of action,

### the allegations of

### the complaint should be construed favorably 

### tothe pleader."), abroqated 

### on other qrounds 

### by Harlow 

### v. Fitzqerald, 457 U.S. 800 ('1982), recoonized 

## !y Davis v. 

### Scherer,468 U.S. 183, 190, reh'q 

### denied,468 U.S. 1226 (1984); United Pac. Ins. Co. 

### v. United 

### States,464 F.3d 1325, 1327-28 (Fed. 

### Cir.2006); Samish Indian Nation

### v. United 

### States,419 F.3d 1355, 1364 (Fed. Cir. 

### 2005); Boise Cascade Corp. 

### v. United 

### States,296 F.3d 1339, 1343 

### (Fed. Cir.), reh'q and reh'q en banc denied (Fed. Cn.2002), cert. denied, 538 U.S. 906 (2003).

14The Tucker Act grantsjurisdiction tothis court asfollows:

The United States Court of Federal Claims shall havejurisdiction 

### to render 

### judgment upon 

### any claim against 

### the United States founded either upon 

### the Constitution, or any

### Act of Congress or any regulation of an executive 

### department, 

### or upon 

### any express 

### or implied contract 

### with

### the United States, orfor liquidated

### or unliquidated damages in cases not sounding in tort.

28 U.S.C. 

### $ 1491(a)(1) 

### (2012). As interpreted 

### bythe United States Supreme Court, the 

### Tucker 

### Act waives sovereign immunity 

### to allowjurisdiction 

### over claims against the United States (1) founded on an express or implied contract with

### the United States, (2) seeking 

### a refund from a prior payment made to the government, or (3) based on federal 

### constitutional, statutory, 

### or regulatory 

### law mandating compensation 

### by the federal government for damages 

### sustained. See United States 

### v. Navaio Nation, 556 U.S. 287, 289-90 (2009); United States

### v. Mitchell,

### 463 U.S. 

### 206,216 (1983); see also Greenlee Cntv.. 

### Ariz. 

### v. United 

### States,487 F.3d 

### 871,875 (Fed. Cir.), reh'q

### and reh'q en oanc 

### dgnied (Fed. Cn. 2007), cert. denied, 

### 552 U.S. 1142 (2008); patmer 

### v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).

"Not 

### every claim invoking 

### the Constitution, 

### a federal statute, 

### or 

### a regulation is cognizable under

### theTucker

### Act. The claim must be one

### for money damages against 

### the United 

### States.



### . .

# ." United States 

### v. Mitchell,463 U,S. 

### at 216; see 

### also United 

### States 

### v. White Mountain 

### ApacheTribe, 

### 537 U.S. 465,

### 472 (2003); Smith

### v. United 

### States, 

### 709 

### F.

## 3d 1114, 1116 

### (Fed. Cir.), cert. denied, 

### 134

## S. Ct. 2S9 (2013)r 

### Eadjeshack Corp. 

### v. United 

### States,566 F.3d 1358, 1360 

### (Fed. 

### Cir.2009); Rick,i Mushroom Serv., Inc.

### v. united 

### states, 521 F.3d

### at 1343 ("[p]laintiff must

. 

### . . identify

# i substantive source 

### of law

### that creates

### the right 

### to recovery 

### of money damages agarnsr 

### the United 

### States."). In Ontario Power Generation, 

### Inc.

### v. United States, 

### the United 

### states 

### court ofAppeals for the Federal 

### circuit identified three types of monetary claims for which jurisdiction is lodged in

### the United 

### states 

### court of Federal 

### claims. The court wrote:



### The underlying monetary claims 

### are of three

# types. First, claims 

### alleging 

## the existence 

## of

# a contract between

## the plaintiff

### and the government 

### fall within

### the Tucker 

### Act's waiver.



### . . . Second, 

### the Tucker Act's waiver encompasses claims where "the plaintiff has paid money over 

### tothe Government, directly 

### or in effect, and seeks return 

### of all or part of that

### sum." Eastport S.S. ICorp. 

### v. United States, 178 Ct. Cl. 599, 605-06,1 

### 372 F.2d [1002,] 1007-08 

### (1967)l (describing iilegal 

### exaction ctaims as claims 

### "inwhich 'the Government has

### the citizen's 

### money 

### in its pocket',' (quoting Claop 

### v. United 

### States,127 Ct.

### C|.505, 117 

### F. Supp. b76,58O (1954))

. . . .Third,the Court of Federal Claims hasjurisdiction over those claimswhere "money has not been paid but 

### the plaintiff assertsthat he is nevertheless entitled

### to a payment from the

### treasury." Eastport S.S., 372 

### F.2d

# at7. Claims 

### in this third category, 

### where 

### no payment has been

1q

### made

### to the government, 

### either directly 

### or in effect, require 

### that the

"particular provision of law relied upon grants the claimant, expressly or by implication, 

### a right

### to be paid 

### a certain

### sum." ld.; see also Testan [v United Statesl 

### ,424U.5.1392,1 401-02 [1976] 

### ("Wherethe United States is 

### the defendant and 

### the plaintiff 

### is not suing 

### for money improperly exacted
or retained, 

### the basis of thefederal claim-whether it be the Constitution, a 

### statute,

### or

## a regulation-does 

### not create 

## a cause

### of action

### for money damages unless, asthe Court of Claims has stated, that basis 'in itself

. . 

### can fairly 

### be interpreted 

### as mandating compensation 

### by

### the Federal Governmentfor the damage sustained."' (quoting Eastport S.S., 372 F.2d 

### at 1009)). This category is commonly referred

### to as claims brought under
a "money-m and ating "statute.

Ontario 

### PowerGeneration. Inc.

### v. United 

### States,369 F.3d.t298, 1301 (Fed. 

### Cir.2004):
see alsoTwp. of Saddle Brook v. United States, .,|04 Fed. Cl. 101, 106 (2012).


### To prove 

### that

## a statute

### or regulation 

## is money-mandating, 

## a plaintiff must demonstrate 

### that an independent source 

### of substantive 

### law relied upon "'can 

### fairlv be interpreted as mandating compensation by

### the Federal Government.';' United States v. Navaio Nation, 556 U.S. at 290 (quoting United Statesv. Testan


### , 424 

### U.5. at aOO); see 

### algq united states v.

### white Mountain Apache Tribe, 

### 537 

### u.s. at 

### 472; united stares v. 

### Mitchell,463 U.S. 

### at 217; Blueport 

### Co.. LLC 

### v. United States, SSg

## f3d 137a, 

### l3B3 (Fed. 

### Cir.2008), cert. 

### denied,555 U.S. 1153 

### (2009). The source 

### of law granting monetary relief must be distinct from the Tucker 

### Act 

### itself. See United States 

### v]Navaio N=ation, 556 

### u.s. at290 (The Tucker Act does not create "substantive rights; tit rs

### smply 

## al jurisdictional provision[] 

### that operatels] 

## to waive sovereign immunity 

### -for claims premised 

### on other sources 

### of law (e.9., statutes 

### or contracts)."). 

### "'lf the 

### itatute is not money-mandating, 

### the court 

### of Federal 

### claims lacksjurisdiction, 

### and

### the dismissal 

### should be 

### for lack 

### of subject matter

### jurisdiction."' Jan's Helicopter 

### serv., lnc.

### v. Fed. Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. ZOO8) (quoting 

### grcen!9C_.leAly-jlzJ United 

### states, 487 F.3d at 876); Fisher v. United states

,

### loz {.sa

## tlal

,

# llzl lrea.

# Ci 2005) (The absence 

### of

### a money-mandating 

### source 

### is "fatal 

### tothe court's jurisdiction under the Tucker Act."); Peoples v. United States, 87 Fed. Cl. SS3, 565-66 (2d09).
Incapacitation Pav Claim

The government asserts

### that Ms.

### walker's claim 

### for incapacitation pay is barred by 

### the statute 

### of limitations because Ms.

### walker failed

### to bring her incapacitation pay claim within six years ofthe accrual ofthe

### claim. Ms.

### walker's incapacitation pay claim, 

### iftimely, would 

### be brought pursuant

### totheTucker

### Act'swaiver 

### of sovereign immunity, 

### and premised 

### on the money-mandating 

### provisions

### ofthe Military 

### payAct. 

### see 

## iz u.s.c. s 204.

### The Military Pay

### Act allows reservists 

### in the Armed Foices 

### to recerve incapacitation pay 

### for injuries incurred inthe line of

### duty. see id. S

### 204(g)(1). Although 

### the Tucker 

### Act waives 

### federal sovereign immunity 

### and grants 

### this courtjurisdiction to 

### hear monetary claims against 

### the government, 

### such 

### as claims 

### for incapacitation pay pursuant to the Military PayAct, this court's jurisdiction isexpressly limited by28 

### u.s.c.

16S2501 (2012), which prescribes a six-year statute 

### of limitations for claims arising out 

### of

the Tucker Act'swaiver of sovereign immunity.
According to 28 U.S.C. g 2501:


### Every 

### claim 

### of 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 petition 

### on

### the claim 

### of a 

### person under legal disability 

### or beyond

### the seas 

### atthe time the claim
accrues may be filed within three years after the disability ceases. 

### ld. "The six-year 

### statute

## of limitations 

### set forth 

### in section

### 2501 

### is a jurisdictional requirement

### for a suit in

### the Court 

### of Federal 

### Claims." John R. Sand 

### & Gravel Co. v. United States, 457 

### F.3d 1345, 1354 (Fed. Cir.), reh'o 

### en banc denied (Fed. Cir. 2006), 

### affd,552 U.S. 130 (2008); Schnell

### v. United States, 115 

### Fed. Ct. 102, 104-05 (2014). 

### The United States Court of Appeals 

### for 

### the Federal Circuit 

### has indicated 

### that 

### a claim 

### accrues ""'when 

### all events have occurred

### to fix the Government's

### alleged liability, entitling 

### the claimant 

### to demand payment 

### and sue here

### for his 

### money.""' San Carlos 

### Aoache Tribe 

### v. United 

### States,639 F.3d 1346, 1358-59 

### (Fed. Cir.) (quoting Samish Indian Nation 

### v. United 

### States,419 F.3d 1355, 1369 (Fed. 

### Cir.2005) (quoting Martinez 

### v. United 

### States,333 F.3d 1295, 1303 

### (Fed. 

### Cir.2003), cert. 

### denied,540 U.S. 1177 (2004))), reh'q en banc denied (Fed. Cir. 2011); see also FloorPro, Inc.v. United States, 

### 680 F.3d 

### 1377,1381 (Fed. Cir. 2012); Martinez 

### v. United States, 333 F.3d

### at 1303) ("A 

### cause 

### of action cognizable 

### in 

### a Tucker 

### Act suit accrues 

### as soon 

### as all events have occurred 

### that 

### are necessary

### to enable 

### the plaintiff 

### to bring suit, r.e.,

### when 'all events have occurred to fix 

### the Government's alleged liability, entitling

### the claimant 

### to demand payment and 

### sue here

### for his money."' (quoting Naqer Elec. Co.

### v. United States, 177 

### Ct. Cl. 234, 240, 

### 368 F.2d 

### 847,851 (1966), motion denied, 184 

### Ct. Ct. 390, 

### 396 F.2d 

### 977 (1968)); Mildenberoer 

### v. United States, 

### 643 F.3d 

### 93A,94445 (Fed. Cir. 2011); Hopland Band 

### of Pomo Indians 

### v. United States. 855 F.2d 1573, 1577 (Fed. Cir. 1988); see also Eden lsle Marina, Inc.

### v. United States, 113 Fed. 

### C|.972,a81 e013); Brizuela 

### v. United 

### States, 103 Fed. 

### Cl. 635, 

### 639,

### affd,492 F. 

### App'x 97 (Fed. 

### Cir.2012), cert. 

### denied, 133 S. 

### Ct. 1645 (2013); see atso 

### Lew v. United States, 

### 83 Fed. 

### Cl.67,73,79 (2008) (dismissing a claim for military reserve retirement benefits because suits against 

### the United States are subject 

### to a six-year statute 

### of limitations and

### the claim was filed outside 

### the allotted timeframe); Barnev 

### v. United States, 

### 57 Fed. Cl. 

### 76, 83, 86 (2003) (dismissing former Airman's claims for wrongful discharge/unpaid wages and disability 

### retirement 

### because

### they were time-barred 

### bythe six-year statute 

## of limitations). A Judge ofthe United States Court of Federal Claims has noted that:



### It is well-established 

### that 

### a claim accrues under section 

### 2501 "when,all events have occurredto fix the Government's alleged liability, entiiling the claimant 

### to demand payment 

### and sue here 

### for his money."' Martinez v. 

### United 

### States,333 F.3d 1295, 1303 (Fed. 

### Cir.2003) (en banc), cert. denied, 

### 540 U.S. 1177 (2004) (quoting Naoer Elec. Co.

### v. United States, 

### 368 F.2d 

### 847,851 (Ct. 

### Cl. 1966)); 

### see atso Samish 

### flndian Nation v. United 

### Statesl,419 F.3d [1355,] 1369 (2005)1. Because, 

### as noted, this

17requirement 

### is jurisdictional, 

### plaintiff bears 

### the burden 

### of demonstrating



### that its claims were timely. SeeAlder Terrace. Inc.

### v. United States, 161 

### F.3d 1372, 1377 (Fed. 

### Cir. 1998); Entines

### v. United States, 

### 39 Fed. Cl 

### 673,678 (1997), 

### affd, 185 F.3d 

### 881 (Fed. Cir.), cert. 

### denied,526 U.S 1117 (1999); 

### see also 

### John R. Sand 

### & Gravel Co.

### v. United 

### States,457 F.3d 1345, 1362 

### (Fed. 

### Cir.2006) (Newman, 

### J., dissenting); Reynolds v. Armv &Air Force Exch. Serv., 846 F.2d

### 746,748 (Fed. Cir. 1988).

Parkwood 

### Assocs. Ltd. P'ship

### v. United States, 

### 97 Fed. Cl. 

### 809, 813-14 

### (2011), 

### affd, 465 F.App'x 952 (Fed. Cir. 2012); 

### see also Klamath 

### Tribe Claims Comm. 

### v. United 

### States,97 Fed. 

### C1.203,209 (201 

### 1)(citingAlderTerrace, lnc. v. United States, 161 F.3d 

### 1372, 1377 

### (Fed. 

### Cir. 

### 1998)). Accrual 

### of 

### a claim 

### is "'determined 

### under 

### an objective standard"' 

### and plaintiff 

### does not have

### to possess 

### actual knowledge 

### of all

### the relevant 

### facts in order for 

### a cause of action 

### to 

### accrue. FloorPro. Inc.

### v. United States, 680 F.3d 

### at 1381 (quoting Fallini 

### v. United 

### States,56 F.3d 1378, 1380 (Fed. 

### Cir. 1995), cert. denied, 517 U.S. 1243 (1996)).


### In her claim, Ms. Walkertries 

### to conflate 

### her incapacitation 

### pay claim and wrongful discharge claim, but she does not make 

### a claim

### for back pay due to wrongful 

### discharge. Moreover, as correctly noted by defendant, "her Tucker

### Act claim is not

### for wrongful discharge, 

### but rather 

### for non-payment 

### of incapacitation

## pay." Regarding 

### incapacitation 

### pay,

## Army Regulation 135-381,

## fl 4-1k instructs 

### that,,[t]here 

### is no automatic entitlement

### to incapacitation 

### pay. Each request is

### judged on 

### a case-by-case 

### basis 

### and 

## is based 

### on

## a soldier's inability 

## to perform normal military 

### duties or 

### demonstrated 

### loss

## of nonmilitary income." 

## ld. 

## "A prerequisite 

## for entiflement to incapacitation 

### pay 

### is

### a completed, 

### favorable 

### LD [line 

### of duty] investigation 

### of injury, illness, or

### disease. However, afinding of ILD [inthe line of duty] alone does not provide automatic entitlement 

### to pay." ld., lJ4-1d. "Prerequisites for entitlement 

### to incapacitation pay are inability to perform normal military duties or satisfactory demonstration of loss 

### of nonmilitary earned 

### income." ld.,

### fl 4-1e. To receive incapacitation pay, the

[o]ther requirements of law that must be met

### include-
(1) Inability

### to perform normal military duties 

### or demonstrated loss of nonmilitary income. (2) Afinding thatthe soldier was disabled "while so employed." (3)

### The injury, illness, or disease was incurred or aggravated while in a duty or travel status. (4) Eligibility to receive incapacitation pay.

rd., 114-1d(1)-(4). 

### Army Regulation 135-381 

### also lists

### the documents

### to be considered 

### by the Incapacitation Review Board for every request 

### for incapacitation pay, including

### a line 

### of 

### duty investigation report, together 

### with

### a final determination;

## a medical evaluation; medical records; memorandum authorizing medical treatment; commander's statement; documentation 

### to support loss 

### of non-military compensation, 

### if applicable; statements

18

### and documentation 

### submitted 

### by 

### the requesting 

### solider; 

### and

## a U.S. Army Accident

Investigation 

### Report. See 

### Army Reg. 135-381, 

### fl 5-5a 

### (1)-(8). Other documents, such 

### as

### the requesting soldier's 

### training schedule, record 

### of incapacitation payments, and entitlementverification memorandum, may be considered by

### the Board, as appropriate. SeeArmy Reg. 135-381, 1T5-5b (1), (5)-(6)

# "

The government argues that because Ms. Walker invokes the Military PayAct as 

### the money-mandating 

### statute 

### to support 

### her claim 

### that shewas wrongfully denied incapacitation 

### pay 

### from September 

### 2003 through February 

### 2004, her claim 

### filed on September 

### 27, 2012 in this court 

### is untimely. The government contendsthat, "a claim 

### for money damages arising under

### the incapacitation pay provisions 

### ofthe Military 

### pay 

### Act would accrue 

### on

### the date 

### that

### the application 

### was approved," 

### and argues that, "[c]onsequently, Ms. Walker's alleged claims

### for incapacitation pay were 

### fixed, known and claimsthat were due and payable upon 

### the end of each monththat she submitted
an application thatwas approved, but did not receive such payments."

Plaintiff acknowledges 

### that according

### to the "date 

### of discharge" rule established 

### by

### the united states 

### court of Appeals

### for 

### the Federal 

### circuit 

### in Martinez 

### v. United 

### States, improper military discharge 

### claims 

### are subject

## to the six-year statute of limitations, pursuant

### to 

### 28 U.S.C. S

### 2501. See Martinez

### v. United States, 

### 333 F.3d at 1314. Ms. Walker argues, however, that her claim for incapacitation pay is not barred by 

### the statute 

### of limitations because the government mischaracterized her claim as one of 

### a reservist 

### on active duty, and 

### that she 

### was in

### fact a parHime reservist, not on active 

### duty. Ms.Walker also argues thatthe applicable start date forthe accrual ofthe statute 

### of limitations regarding 

### her claim should be 

### the date 

### of her discharge 

### from theArmy Reserve, 

### October 

### 1,2006. Therefore, according 

### to plaintiff, 

### she had until October 1,


# " The administrative 

### record before 

### the court does 

### not include 

### any evidence 

### that an 

### Incapacitation 

### Review Board 

## was convened

# to review 

## Ms. walker's alleged incapacitation pay 

### claim. Defendant states that "there 

### is no indication

### that Ms.

### waiker actually applied

### for incapacitation 

### pay," because 

### Ms.

### walker cannot establish an 

### entitlement 

## to incapacitation 

### pay solely 

### onthe presentation 

## of some documenrs. 

### Approval

## of incapacitation 

### pay starts 

### with review 

### by either 

## a unit commanoer or Incapacitation Review Board 

### to determine whether 

### or not such claims 

### are meritonous. 

### The ABCMR decision noted 

### that "[o]n 14 

### August 2003, 

### the applicant submitted a request 

### for incapacitation pay. However, based on

### the evidence 

### of record, her request 

### did not contain

### the required documentation (i.e., physician's statement, 

### DA Form 7574, 

### or disclosure 

### of income 

### from nonmilitary earned 

### income)." Moreover, 

### Army Regulation 135-381


### ,

### fl

## 4-1( provides "[t]here 

### is no automatic entiflement 

### to incapacitation pay. Each request isjudged on 

### a case-by-case basis and 

### is based on 

### a soldier's inability io 

### q9{orT normal military duties or demonstrated loss 

### of nonmilitary income." 

### Army Reg. 135-381,

### fl 4-1k.The record before 

### theABCMR 

### did not reflect 

### that Ms.

### watker's unit commander certified any incapacitation pay 

### claim. Even 

### if plaintiffls claimswere 

### to be considered timely by this court, which, as determined below, they are not, it is not clear that Ms.Walker could demonstrate entitlement to incapacitation pay onthe merits.

192012 to

### file her claim in this court,for which reason she alleges her complaint, filed on

September 

### 27,2012, was timely filed.

Ms.

### Walker improperly attempts 

### to eltrapolate 

### a blanket rulefrom 

### the Martinez
case 

### that not only claims

### for back pay, but other claims as

### well, such 

### as her claim for incapacitation pay, 

### do not accrue until 

### the date 

### of discharge. 

### In Martinez,

### the Federal Circuit stated 

### the limitations period 

### was determined by

### the date 

### of accrual in

### the back 

### pay case brought 

### by plaintiff, 

### whichwasthe date on which

### the service member was denied the pay towhich he claimed 

### entitlement. See id.
By contrast, Ms.

### Walker's incapacitation pay claims 

### would have accrued when 

### all

### the events occurred which 

### were necessary 

### to enable 

### the plaintiff 

### to bring suit, the 

### date 

## of non-payment. 

### OnAugust 14, 2003, 

### Ms.Walker submitted 

## a request for 

### incapacitation 

### pay, 

## and

## on August 

### 18, 2003, 

### Ms. Walker acknowledged her understanding 

### of, and agreement with, 

### the requirements 

### for requesting incapacitation pay. Ms.Walker was examined by an Army medical professional and found unfitfor her 

### military 

### duty

### for the period 

### from September 

### 4, 2003 through March

### 4, 2004.12 Ms. 

### Walker now alleges 

### in this court 

### that she 

### is due "incapacitation 

### pay pursuant 

### to 37 U.S.C. S204(gX1) for

### the periodfrom September 2003 through February 

### 2004." tf, as Ms.Walker alleges, she was due incapacitation pay, she would have hadto not only file 

### a request 

### for such pay, 

### but also have received 

### an approval 

### of the incapacitation pay. 

### Given plaintiff's stated timeframe 

### for claiming incapacitation 

### pay, even assuming payment 

### a month after 

### a submitted request, at

### the latest, on

### April 

### 1,2004, she should have realized thatthe alleged incapacitation pay monies had failedto 

### arrive. Therefore, 

### when Ms. 

### Walker became aware, 

### or should 

### have become aware, 

### that she 

### did not receive 

### the incapacitation pay she thought shewas due, iswhen her cause of action for unpaid incapacitation pay began 

### to accrue, and 

### the statute 

### of limitations began

### to run. In plaintiff's case, itwould appear, at

### the latest, 

### April 1, 2004 was 

### the date Ms.Walker 

### should have become aware, 

### that she did not receive incapacitation pay. 

### As such, pursuant

### to 28 U.S.C. S2501, Ms. Walker had six yearsfrom

### April 1, 2004

### to bring her claim before this court. Instead, Ms. Walker filed her claim on September 

### 27,2012, well
over two years after the expiration ofthe six-year statute of limitations.
Although not addressed by either plaintiff or defendant, 

### even if Ms.Walker were 

### to have alleged she believed that 

### the approximately $55,000.00 in active duty pay she received

### from September 2003 

### through May 2004

### was, in fact, 

### the incapacitation pay she claims

### to have requested, once

### the payments ceased, she would have realized, or she should have realized, that thefurther incapacitation pay monies had failed to arrive inJune 

### 2004. As a result, under even the most generous interpretation offacts, and not 

### alleged 

### by Ms.Walker, 

### the statute 

### of limitations 

### for Ms.Walker's incapacitation pay would have begun to run on July 

### 1,2004. Therefore, pursuant to 28 U.S.C. g2501, Ms. Walker 

### was required 

### tofile her claim before

### theJuly 1, 2010, but, 

### as indicated above, Ms. Walkerfiled her claim on September 

### 27.2012



## '' The court notes 

### that, in her cross-motion forjudgment on

### the administrative record, Ms. Walker claims that shefirst requested incapacitation pay on June 13, 2003.

20While neither Ms. Walker nor

### the government cite

### to Joseph 

### v. United States, a



### 2004 decision from 

### this court, it is 

### a post-Mg(inCz opinion 

### which applies

### the Martinez precedent in an incapacitation pay claim 

### context. See Joseph

### v. United 

### States,62 Fed. Cl. 415 (2004). In Joseph, a pro gg former United States Marine Corps reservist brought suit seeking incapacitation pay, aswell as correction of his military 

### records. See 

### id. Mr. Joseph 

### was injured 

### on February

### 2, 1990, while traveling 

### to drill 

### with his Marine Corps Reserve unit. See 

### id. On October

### 25, 1995,

### the Board 

### for Conection 

### of Naval Records (BCNR) determined 

### that Mr.Joseph's personnel record 

### should be corrected 

### to show 

### that hewas entitled

### to incapacitation payfor

### the period from February 

### 2, 1990, through 

### May 12, 1992, and

### for the period

### from November '13, 1992, 

### through December 21,

1

### 992. See 

### id. at

### 416. Mr. 

### Joseph received 

### the incapacitation 

### pay and 

### was honorably discharged 

### on May 

### 29, 1996. 

### See 

## id. As noted by

### the court, "[o]n March 

### 17,1997, approximately

### ten months after his discharge, [Mr.Joseph] again petitioned

### the BCNR, asking 

### it

### to correct his records

### to reflect

### that he 

### was entitled 

### to receive incaoacitation payfrom December 

### 21, 1992, through the date of his discharge on March 

### 29, 1996, and to allow him

### to medically 

### retire." ld. The BCNR inJoseph denied his 

### claim. Mr. Joseph filed his incapacitation pay claim inthis court on March 

### 3,2004. see id. at 416-17. After 

### the government moved 

### to dismiss Mr. Joseph's incapacitation pay claim, the court held that his claim was barred bythe applicable six-year statute of limitations.

### see id. at 417. The court found 

### that Mr. Joseph's incapacitation pay claim had accrued before ne was discharged, as isthe case regarding Ms. Walker. See id.
Additionally, although, again, not cited by either party, Fuentes

### v. United States,

1

### 00 Fed. Cl. 85 (201 1), also speaks

### to incapacitation 

### pay. In Fuentes, a p1g Sli fonner member of an Indiana Army National Guard filed a complaint alleging he was entifled to 

### incapacitation 

### pay 

### intheform

### of back 

### pay because 

### the united statesArmy had improperly separated him

### from active duty 

### while he

### was 

### injured. Although 

### in Fuentes the plaintiff and the government disagreed as to whether plaintiff's claim

### wls a

### bicx pay claim, 

### as alleged 

### by plaintiff, 

### or 

### a disability retirement claim, 

### as argued by defendant, which 

### would not have accrued until 

### a military board 

### had acted on 

### the disability claim, 

### the court concluded that

### the plaintiff had "established all thejurisdictional predicates for a claim for back pay under the Military Pay

### Act." ld. at

### 92. unlike in Ms. 

### walker's case, however, 

### the Fuentes plaintiff argued 

### that he

### was "entiiled

### to back pay because the Army wrongfully separated him from active duty while hewas injured, and had theArmy properly processed him, hewould have remained on active duty for continued treatment or until a MEB acted on his case," citing to 37 

### u.s.c. S204(g)(1).

### see Fuentes v. United 

### states, 100 Fed.

### cl. at

### 90. As discussed below, Ms.

### walker

### wai not on actirre outv at the time of her seoaration.


## In the alternative, 

### Ms. Walker points

## to her discharge

### from

## the reserve component 

### as the start date 

### for 

### the limitations period, based 

### on

### the servicemembers Civil Relief

### Act. See 

### Soldiers'and Sailors,Civil Relief 

### Act

### of ,1940, S205, Ch. 988, 54 

### Stat. 1178, 1181, as amended Dec. 

### 19,2003, servicemembers 

### civil Relief 

### Act, pub. L. 108-189, S206, 117 

### Stat.2835, 2844 (2003) (codified at 50 U.S.C. App. g

### 526(a)). The

21Servicemembers Civil Relief Act tolls an applicable statute of limitations for a member 

### of

the Armed Forces while serving on active duty, and states, in relevant part:



### The period 

### of a servicemember's military service 

### may not be included in computing any period limited by law, regulation, or order for the bringing 

### of any action or proceeding in a court, or in any board, bureau, commission, department, 

### or other agency

### of a State (or political subdivision of 

### a State) 

## or the United States 

## by

# or against 

## the servicemember

## or the servicemember's heirs, executors, administrators, or assigns.

50 App. 

### U.S.c. S 526.

The provision ofthe Servicemembers Civil Relief 

### Act providing thatthe statute 

### of limitations does not begin

### to run until 

### the date of discharge would be applicable

### to Ms. 

### walker's case only 

### if Ms. 

### walker was on active duty at the time 

### of her 

### discharge. This tolling provision 

### is inapplicable

### to Ms.Walker's claim because 

### her last period 

### of active duty ended on August 19, 2003.

### see 50 App. 

### u.s.c. s 526; see also Freeman v. united States, 98 Fed. Cl. 

### 360,371-72 (2011). "Military service', is OetineO Oy SO

### npp.

## USEJ 511 as "active duty," which is defined 

### in 10 

### U.s.c. S 

### 101(d). section 101(d)of 

### riile 1o 

### of

### the United 

### states 

### code defines "active duty" 

### as 

### "full{ime duty inthe aciive military service of

### the united 

### states." 10 

### u.s.c. S 

### 101(d). Ms.

### walker's records before the coun 

### do not reflect 

### any active 

### duty service 

### after she

### was released

### from her active duty mobilization on

### August 19,

### 2003. Moreover, even though "military service," as defined 

### in 

### the servicemembers 

### civil Relief 

### Act, includes 

### the 

### ll;ited time required 

### for reserve component annual training duty, see id., Ms.

### walker did not perform her 

### Army Reserve duties even after

### the period during which she wasfound medically unfit 

### for her reserve 

### duty ended. specifically, 

### the administrative 

### record reflects

### that Ms.

### walker failed to 

### attend her annual required 

### training in 2oo4 and 2005, and missed every one 

### of her Army Reserve unit battle assemblies from June 2oo4 to June 

### 2005. consequenfly, Ms. 

### walker did not serve time on active duty after the end of her mobilization onAugust 19, 2003 through 

### when she 

### was discharged 

### on 

### october 1, 2006. The 

### tolling proviiions of the servicemembers 

### civil ReliefAct, therefore, are not applicable to 

### plaintifis claims.


### In addition,

### the statute 

### of limitations 

### was not tolled 

### when Ms.

### walker sought review 

### of her case by either the ADRB or 

### theABCMR. Because resort

### to a correction 

### board 

### is not mandatory 

### in military 

### pay cases, 

### but rather permissive, application 

### to a correction board 

### is not required before challenging 

### a wrongful discharge in

### the United 

### states 

### court of Federal 

### claims, and 

### the statuie 

### of limitations 

### is not Juspended. 

### see Qhalnb_ejs_v. United States, 

### 417 F.3d 1218, 

### 1224 (Fed. Cir.), cert. denied,

### 546 U-S, 1066 (2005); 

### scc also See !EUU!czJ_U-0Ied_S!ate9, 333 F.3d 

### at tSOa; WX4s

### v. Ua11eO 

### states, 101 Fed.

### cl. 673,677 (2011) ("plaintiff stopped receiving

### activeiuty!-ay when 

### h9 wa9 discharged 

### from

### the Navy 

### on Novembei 

### 22, 1g}g. c-onsequenily,'plaintitts claim

### for back pay arose on

### that date, and his subsequent invocation 

### of administrattve proce_d 

### ures 

### did not stop

### the

### 6 year statute 

### of limitations 

### from running. Nor 

### did the BCNR's denial of 

### Plaintiffs request to correct his military records create a second cause 

### of action."). Accordingly, 

### the six-year statute 

### of limitations setforth in 

### 2g 

### u.s.c. s 2501

22

### was running throughout 

### the period inwhich Ms. 

### Walker sought administrative review

before the ADRB and

### ABCMR. See Martinez 

### v. United States, 333 F.3d

### at 1304.

ln sum, Ms.Walker's incapacitation pay claims accrued byApril 

### 1,2004, or atthe 

### latest, 

### July 1, 2004. Based 

### on 

### the six-year 

### statute

### of limitations, 

### Ms. Walker was required to

### file her claim by

### April 1, 2010, or

### at best by 

### July 1, 2010, however, she filed her claim more than two years later, on September 27 

### ,2012. Accordingly, Ms.Walker's incapacitation 

### pay claims are time-barred by 

### the statute 

### of limitations, 

### and

### this court lacks subject matterjurisdiction to address her complaint.

Claims for Reinstatement and Conection of Militarv Records

The government also argues, citing Reillv 

### v. United States, 93 Fed. Cl. 643, 650 (2010), that Ms. Walker's remaining claims for reinstatement into the Army Reserve in a part-time reserve 

### status inthe grade 

### of major retroactive 

### to October 1, 

### 2006, and for 

### correction

## of her military record

## to void orders reflecting 

### her allegedly wrongful dischargefrom theArmy Reserve are outside thejurisdiction of this court because they 

### are separate

### from her incapacitation 

### pay claims 

### and are equitable claims 

### that are neither incident 

### of nor collateral 

### to a claim 

### for monetary relief. See James

### v. Caldera, 

### 159 F.3d 573, 580 (Fed. 

### Cir. "1998), 

### reh'q denied (Fed. 

### Cir. 1999). 

### The government 

### states 

### that while 

### this court could 

### have reviewed possible procedural violations in processing a military service member, it may do so onlyto provide an entire remedy and 

### to afford complete relief attendant 

### to ajurisdictionally 

### valid claim

### for entitlement 

### to a monetary 

### judgment. According 

### to the defendant, 

### absent

### a valid claim

### for monetary 

### relief,which

### this plaintiff 

### does not have, given 

### that her incapacitation 

### pay claims are time-barred, 

### this court lacksjurisdiction

### to modify Ms. Walker's service records, set aside her involuntary discharge, or order her reinstatement. See Reillv

### v. United States, 93 Fed. Cl. at 650.



### Ms.Walker argues 

### in response 

### that her remaining 

### claims 

### are not outside the jurisdiction of the 

### court. Ms.Walker claims that because this court hasjurisdiction over her incapacitation pay claim andwrongful discharge claim, this court hasjurisdiction to hear her ancillary equitable claims as well, and those claims should not be dismissed. According 

### to Ms.

### Walker, in order 

### to properly invoke 

### this court's jurisdiction, 

### a plaintiff must only identity 

### a separate source 

### of substantive law 

### that creates

### the right 

### to money 

### damages. 

### She adds 

### that she seeks incapacitation 

### pay and ancillary 

### equitable relief pursuant 

### to the Military Pay 

### Act, which 

### she asserts 

### is

### the money-mandating statute applicable 

### to injured reservists. 

### Ms. Walker, however, 

### does not address 

### this court's 

### jurisdiction absent 

### the validity 

### of jurisdiction 

### in the court 

### forthe incapacitation pay claims.

Ms.Walker seeks 

### the court declare 

### that olaintiff is entitled

### to reinstatement and 

### to have 

### various military records 

### voided and/or 

### corrected. The United States Court 

### of Federal 

### Claims, however, 

### has limitedjurisdiction 

### to grant declaratory 

### relief, absent a 

### claim 

### for monetary 

### damages. The United States Court 

### of Appeals 

### for the Federal Circuit stated, as follows:

23

### The Court

### of Federal Claims has never been granted general authority to

issue declaratory judgments, and 

### to hold that 

### the Court

### of Federal Claims 

### may issue

### a declaratory

### judgment inthis case, unrelated 

### to any money claim pending before it,would effectively override Congress's decision not 

### to make

### the DeclaratoryJudgment 

### Act applicable

### tothe Court 

### of Federar Claims.



### Nat'l

### Air Traffic Controllers 

### Ass'n

### v. United 

### States, 160 F.3d 714, 716-17 (Fed. Cir. 

### 1998); 

### see 

### also United States

### v. Tohono O'Odham Nation, 

### 131

### S. Ct. 1723, 1729 (2011) 

### (The united 

### states 

### court of Federal 

### claims "has no general power 

### to provide equitable relief against 

### the Government 

### or its officers."); Massie

### v. united States, 226 

### F.3d 1318, 1321 (Fed. 

### Cir. 2000) ("Except 

### in stricfly limited circumstances, 

### see 28 

# I s

# c s 1491(bx2),there 

### is no provision 

### in the Tucker

### Act authorizing 

### the 

### court of Federal Claims 

### to order equitable 

### relief." (citing United States 

### v. Kinq, 

### 395 U.S. 1, 4 (1969) ("cases seeking relief other than money damages from the court of claims nave never 

### been 'within itsjurisdiction"') 

### and placewav 

### constr. corp. 

### v. United 

### states, 920 F.2d 903, 

### 906 (Fed. 

### Cir. 1990))); James 

### v. Catdera, 

### 1b9 F.3d 

### at S80 

### (.[T]he Court 

### of Federal 

### claims has no 

### power'to grant affirmative non-monetary 

### relief unless 

### it is tied 

### and subordinate 

### to a money 

### judgment."' (quotingAustin 

### v. United 

### states. 206

### ct. cl. 

### 719,!23, cert. 

### denied,423 

### u.s. 911 (197s)); 

### wesflands 

### water Dist.

### v. United states, 109 

### Fed. 

### Cl. 

### 177,192 (2013); Halim 

### v. United 

### States, 106 Fed. Ct.

## ilZJ,aS eOlZ); 9malls v. United States, 87 Fed.

### cl. 300, 307 (2009); prvor v. United 

### states, 85 Fed. ct. 

### 97, 103 (2008) ("Apart from ordering relief under 

### 28 U.S.C. 

### gg 1491(a)(2) 

### or (b)(2), the 

### court of Federal 

### claims has no power to grant a declaratory judgment.

. . .The 

### court of fedgrat claims cannot adjudicate a complaint that seeks only declaratory 

### relief." (citing Nat'l 

### Air Traffic controllers 

### Ass'n

### v. United 

### states, '160 

### F.3d 

### aI 

### 717)). None

### of the exceptions which permit

### the United

### states 

### court of Federal 

### claims to grant declaratory relief apply

### to 

### plaintiff. This court,therefore, does not havejurisdiction 

### to grant plaintiff 

### the declaratory relief

### that he requests. In cases arising under

### the Military 

### Fay Act, the 

### court 

### only has

### the power 

### to grant equitable relief "'incidental 

### of and collateral 

### to its ?-ryqr! 

### of

### a money

### judgment."' See Martinez

### v. United 

### States,

### 77 Fed. Cl. 318, 322 (!Q07) (quoting Voqe

### v. United States, A44 F.2d 

### 776,781 (Fed Cir.), cert. denied, 488 

### 9

# s 941 (1988)), 

### affd,260 F.

### App'x 298 (Fed.

### cir. 2008); Hwanq 

### v. u-nited 

### states, 94 Fed- 

### Cl.

### 259,270 (2010), aff'd, 

### 405 F.

### App'x 348 (Fed. Cir.;, 

### 1s1g sn91

### lqhg cn banc 

### denied (Fed. 

### cir.2Q11). The government 

### further points 

### out that Ms.

### walkerinas no cognizable monetary 

### claim stemming 

### from any potential 

### wrongful

### discharge. This is 

### because 

## 37 u.s.c.

# s 206(gx1),t'rl governing 

### pay 

## for part-time 

### non-ictive duty

13The statute at 37 

### U.s.c. g206, effective January 

### 2g,2oog, governs pay for 

### part{ime non-active 

### duty reservists, 

### but that section

### does not contain 

### a suusbction

## (b)(t). lt 

### appears 

### that 

### the statute defendant 

### may have intended

## to citewas 

### s7'u.s.c. 

## $ 206(a)(1), governing 

### pay

### for members 

### "of

## a reserve component 

### of 

## a uniformed service," who are entitled

### to pay only "for each regular period of instruction, or period

### of appropriale duty" actually 

### performed. 37 

### u.s.c. g206(a)(1); see also palmer 

### v. United States, 168 F.3d

### at 1314.

24

### reservists, 

### is not money mandating." (citations omitted). 

### "The consequence 

### of this

difference in pay entitlement between full-time active duty personnel andthose serving part-time reserve duty isthat a member who isserving in 

### part{ime reserve duty in a pay billet, orwas wrongfully removedfrom one, has no lawful pay claim against

### the United Statesfor unattended drills or unperformed training duty." Palmer 

### v. United States, 168 F.3d 

### at 1314. Consequently, because Ms. Walker 

### was separated 

### as a non-active duty reservist, 

### she cannot allege 

### a money-mandating statute that would vest 

### this court with jurisdiction to entertain awrongful discharge claim.

Once Ms.Walker's incapacitation pay claim wasfound beyond thejurisdiction 

### of the court based on

### the statute 

### of limitations, plaintiff 

### is left without 

### a money mandating statute 

### or regulation on which 

### to base her remaining claims, and absent such 

### a money mandating, statutory basis, Ms. Walker cannot assert her equitable relief based claims 

### in this 

### court. As noted, 

### this court cannot 

### grant equitable 

### relief unless incident or 

### collateral

### to 

## a monetary 

### judgment. 

### See 

### 28 U.S.C. 

## S 1491(a)(2); 

### Reeves

### v. United 

### States,49 Fed. 

### C|.560,569-70 (2001); Brown

### v. United 

### States,3 Ct. 

### Ct.31 (1983), aff'd, 741 F.2d 1374 (Fed. Cir. 1984).

CONCLUSION



### As discussed above, plaintiff's incapacitation pay claims 

### aretime-barred by the statute 

### of limitations, and, 

### thus,this court lacks 

### subject matterjurisdiction 

### to consider 

### the claims plaintiff raised 

### in her second amended complaint. 

### Therefore, defendant's motion

### to dismiss is 

### GRANTED. Plaintiffs second amended complaint 

### is DlSMlssED. The Clerk of the Court shall enter JUDGMENT infavor of the defendant consistent with this opinion.

IT IS SO ORDERED. 

### /// z .'1/ ,.\ 

### 1 / 

# ,- 

# L.'k4'l/L1.4->--

MARIAN 

### BLANK HORN 

### Judge

25