OR!GI[{AL

REDACTED OPINION

lJn tltt @nfte! $ltstts tourt of ftUerul gflgtr

No. 12-649C

Fifed: June 25,2014 AUG 14 2014

Reissued: August 14, 20141

U.S' COURT OF *** * 

: 

tEbtdeucLems

KATHRYN WALKER.

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 June 25, 2014, the court

inquired of both parties whether either party required redactions to the opinion.

Defendant indicated that no redactions were required. Plaintiff failed to indicate if any

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

to the United States Court of Appeals for the 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 her
complaint, 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 period from September 2003 through February 2004,1'l reinstatement in the USAR

[United States Army Reserve] in the 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,4 which

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

in this and other pertinent regulations.

(3) Commanders specified in special directives of the SA under the

conditions in these directives.

(4) In relation to paragraphs (2) and (3), above, the discharge

authority delegated to commanders by this 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 of the 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," "the Army'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 was for 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 complaint was

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 the Army] 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, for judgment 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

On August 3, 1989, Ms. Walker was 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 the Army 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 in the Army Reserve.

On January 13, 2003, Ms. Walker was mobilized into active duty for one year in

support of Operation Enduring Freedom. On January 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. On August 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 in the line of duty. Thereafter, on August 14,2003, Ms. Walker

requested incapacitation payo from the Army for bilateral carpal tunnel syndrome. On

5 The reasons for involuntary discharge, referenced in Army Regulation 135-175' 11 2-

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 "ln the interest of National security," Army Reg. 135-175,1'2-14.

6 Section 204(gX1XA) of title 37 of the United States Code states:

A member of a reserve component of a uniformed service is entitled to the

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, and transferred back to the Army 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 a January 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 she was unemployed, outside of her duties in

the Army Reserve, and without any income from any source.

On April 1,2004, Ms. Walker was transferred, upon her request, to the 317tn

Support Center, an Army 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 physical therapy for tricompartmental arthritis in her right knee. On July 7,

regular component of a uniformed service of conesponding grade and

length of service whenever 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 the Army Pamphlet 135-381, lncapacitation of

Reserve Component So/diers Processing Procedures (Sept.29,2005), which, however,

as discussed below, was not in effect at the time pertinent to plaintiffs claims.
2004, she was issued a temporary physical profile "3,"7 Department of the Army Form

3349, for 30 days, which indicated that Ms. Walker was restricted, until August 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, dated August 3, 2004, indicates that Ms. Walker's temporary

restriction from certain physical activity was extended until August 30, 2004, or until she

had an orthopedic consultation. On September 1,2004, Ms. Walker was re-evaluated

for her carpal tunnel 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 in Watson 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 of three "signifies that

the individual has one or more medical conditions or physical defects that

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 if the

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 pay from 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 the Army 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 Board would 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 her Army 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 also was 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 a July 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 me that she was not interested in my representation and that 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 Major Walker's wishes and did not represent

her at the board.

On December 3, 2005, the Administrative Separation Board was convened to

consider whether to separate Ms. Walker from the Army Reserve, and to 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 service within 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) that the 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 activeduty 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 within the 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 and June 2005 as evidenced by 11 letters of unsatisfactory

attendance, and witnessed by her unit commander, and (b) that the

respondent failed to report for mandatory annual training on 11 September

2004 and again from 26 February through 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 ascertain why 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 and to sign for mail as evidenced by written statements, and (d)

that the respondent willfully changed her mailing address from Germany to

Texas with intent to deceive and in order to frustrate deliverv of mail to her

while she was 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 notes that the administrative record before the court includes two 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 the Army 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 the ADRB upgrade her discharge characterization

from "UNDER OTHER THAN HONORABLE' to "HONORABLE." (capitalization in

original). On September 30, 2008, the ADRB 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, the ADRB 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 noted that she

could still apply to the ABCMR for relief.

Ms. Walker challenged her discharge before the ABCMR on June 2, 2009, this

time represented by counsel. Ms. Walker requested that her involuntary separation with

a discharge under other than honorable conditions be voided, and that she be

reinstated into the Army Reserve. Ms. Walker argued before the ABCMR that her

discharge proceedings should be voided 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 of the 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 any waiver 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 the Army 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 the Army Reserve." On December 11, 2009, the ABCMR denied

Ms. Walkeis challenge. In its record of proceedings, the ABCMR stated that Ms. Walker

bore the burden of proving an error or injustice by a preponderance of the evidence, but

that she had failed to satisfy that burden.

and the second with the effective date of October 1 , 2006. The discharge orders bear

different numbers, were issued on different dates and list different effective dates of Ms.

Walker's discharge, although both discharge orders were signed by Col., GS Albert 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 in fact submitted to HRC for

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 had failed to

meet her burden of oroof. The ABCMR stated that "the overall merits of this 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. The ABCMR also noted that Ms. Walker was

afforded every opportunity to participate in her administrative separation proceedings,

but had failed to do so. Furthermore, the ABCMR 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 from the USAR.' Ms. Walker alleged in

her third petition to the ABCMR that she never was fit for duty after her 2003

mobilization; that she was involuntarily discharged without simultaneous process for

administrative separation and physical disability evaluation to which she claims she was

entitled; that she was undergoing medical treatment at the time she was separated; that

she was separated without the benefit of proper treatment and evaluation of her alleged

medical condition; and that 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, 11 2-15b (Mar. 31 , 2006). As discussed in its

on April 7. 2011 decision, the ABCMR had reiected Ms. Walker's request for
reconsideration of its denial of her first request for relief. Nonetheless, on November

27.2012. the ABCMR 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. Walker was 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 by which 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 held that "[o]n 4 September

2003, a military physician documented that the applicant was unfit to perform military

duties from 4 September 2003 to 4 March 2004. 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 her various unit

battle assemblies and annual training in 2004 and 2005. Accordingly, the ABCMR 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 to August 20,2003, through the date of her separation.

s The court notes that the ABCMR incorrectly references the Department of the Army

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 have taken place in the time period

between August 2003 and March 2004, long before the Army Pamphlet 135-381 was in

effect. The defendant concedes that the ABCMR inconectly cited to the pamphlet, but

argues it was, at most, "harmless error" because Army Regulation 135-381 already

provides procedures for incapacitation pay and the "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 as the 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, the ABCMR noted that "under the laws governing the Army 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 in the Army Reserve. According to the ABCMR,

the evidence of record shows the period of time the examining physician

certified the applicant [Ms. Walker] was not fit to 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 was found to be without merit. The ABCMR also

highlighted that Ms. Walker bore the burden of proving administrative impropriety in her

separation by a preponderance of the evidence, and that she 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 period from September 2003

through February 2004, reinstatement into the Army 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, in the alternative, for

judgment on the administrative record. The government first argues that the court lacks

subject matter jurisdiction to adjudicate Ms. Walker's incapacitation pay claim because it

is time-baned by the statute of limitations. Second, the government argues that

10 Several 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, such that she might have been entitled

to incapacitation pay.

11
because the court lacks jurisdiction over Ms. Walker's incapacitation pay claim, the

court lacks jurisdiction 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, it should limit its review to the ABCMR's November 27,

2012 decision, in which the ABCMR concluded that there was insufficient evidentiary

basis to support Ms. Walker's claim that she had submitted a proper claim for

incapacitation pay or that 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 she was 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 the ABCMR, and that her disCharge was

properly processed and the orders properly authenticated.

In response, Ms. Walker asserts that this court has jurisdiction 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 is entiiled to incapacitatron pay

because she alleges the claim accrued on lhe date of her improper discharge from the

Army Reserve, given that her discharge was defective because it failed to comply with

applicable regulations and was 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. walker filed 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.

12
United 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."' Arbauqh v. 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 that they 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 its jurisdiction 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 their jurisdiction, whether the 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 of judgment." 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 matter jurisdiction can be

raised by any party or the court at any stage of litigation, including after trial and the

entry of judgment." (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 matter jurisdiction is an inquiry that this court

must raise sua sponte, even where . . . 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).

Pursuant to the Rules of the United States Court of Federal Claims (RCFC) and

the Federal Rules of civil Procedure, a plaintiff need only state in the complaint "a short

13
and plain statement of the grounds for the court's jurisdiction," and "a short and plain

statement of the claim showing that 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 of jurisdiction 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 law and 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 of the 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 matter jurisdiction or for 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 as true all of the factual allegations

contained in the 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 of jurisdiction over the subject matter or for

failure to state a cause of action, the allegations of the complaint should be construed

favorably to the 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).

14
The Tucker Act grants jurisdiction to this court as follows:

The United States Court of Federal Claims shall have jurisdiction 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, or for 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 allow jurisdiction 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 the Tucker 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 Apache Tribe, 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 of Appeals 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

to the 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 "in which '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 has jurisdiction over those

claims where "money has not been paid but the plaintiff asserts that 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 the federal claim-whether it be the Constitution, a

statute, or a regulation-does not create a cause of action for money

damages unless, as the Court of Claims has stated, that basis 'in itself . .

can fairly be interpreted as mandating compensation by the Federal

Government for the damage sustained."' (quoting Eastport S.S., 372 F.2d

at 1009)). This category is commonly referred to as claims brought under

a "m oney-m and ating " statute.

Ontario PowerGeneration. Inc. v. United States,369 F.3d.t298, 1301 (Fed. Cir.2004):

see also Twp. 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 States v. 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. at 290 (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 lacks jurisdiction, 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 to the 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 of the accrual of the claim. Ms. walker's incapacitation pay claim,

if timely, would be brought pursuant to the Tucker Act's waiver of sovereign immunity,

and premised on the money-mandating provisions of the Military pay Act. see iz

u.s.c. s 204. The Military Pay Act allows reservists in the Armed Foices to recerve

incapacitation pay for injuries incurred in the line of duty. see id. S 204(g)(1). Although

the Tucker Act waives federal sovereign immunity and grants this court jurisdiction to

hear monetary claims against the government, such as claims for incapacitation pay

pursuant to the Military Pay Act, this court's jurisdiction is expressly limited by 28 u.s.c.

16
S 2501 (2012), which prescribes a six-year statute of limitations for claims arising out of

the Tucker Act's waiver 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 at the 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 by the six-year statute of limitations).

A Judge of the United States Court of Federal Claims has noted that:

It is well-established that a claim accrues under section 2501 "when,all

events have occurred to 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

17
requirement is jurisdictional, plaintiff bears the burden of demonstrating

that its claims were timely. See Alder 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. Walker tries 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, a finding of ILD [in the line of duty] alone does not provide

automatic entitlement to pay." ld., lJ 4-1d. "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) A finding that the 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

entitlement verification memorandum, may be considered by the Board, as appropriate.

See Army Reg. 135-381, 1T 5-5b (1), (5)-(6) "

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

the money-mandating statute to support her claim that she was wrongfully denied

incapacitation pay from September 2003 through February 2004, her claim filed on

September 27, 2012 in this court is untimely. The government contends that, "a claim

for money damages arising under the incapacitation pay provisions of the 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 claims that were due and payable upon the end of each month that she submitted

an application that was 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 that the applicable start date for the accrual of the statute

of limitations regarding her claim should be the date of her discharge from the Army

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 on the 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 is judged 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 the ABCMR did not reflect that Ms. watker's unit

commander certified any incapacitation pay claim. Even if plaintiffls claims were 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 on the merits.

19
2012 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 rule from 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, which was the date on which the service member was

denied the pay to which 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. On August 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 unfit for 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. S 204(gX1) for the period from September 2003 through February 2004." tf, as

Ms. Walker alleges, she was due incapacitation pay, she would have had to 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 that the alleged incapacitation pay monies had failed to arrive. Therefore,

when Ms. Walker became aware, or should have become aware, that she did not

receive the incapacitation pay she thought she was due, is when her cause of action for

unpaid incapacitation pay began to accrue, and the statute of limitations began to run.

In plaintiff's case, it would 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. S 2501, Ms. Walker had six years from 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 of the 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 the further incapacitation pay monies had failed to arrive

in June 2004. As a result, under even the most generous interpretation of facts, 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. g 2501, Ms.

Walker was required to file her claim before the July 1, 2010, but, as indicated above,

Ms. Walker filed her claim on September 27.2012

'' The court notes that, in her cross-motion for judgment on the administrative record,

Ms. Walker claims that she first requested incapacitation pay on June 13, 2003.

20
While 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, as well 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 he was entitled to incapacitation pay for 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

pay from December 21, 1992, through the date of his discharge on March 29, 1996, and

to allow him to medically retire." ld. The BCNR in Joseph denied his claim. Mr. Joseph

filed his incapacitation pay claim in this 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 by the 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 is the 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 in the form of back pay because the united states Army 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 the jurisdictional 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 he was injured, and had the Army

properly processed him, he would have remained on active duty for continued treatment

or until a MEB acted on his case," citing to 37 u.s.c. S 204(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, 

S 205, Ch. 988, 54

Stat. 1178, 1181, as amended Dec. 19,2003, servicemembers civil Relief Act, pub. L.

108-189, S 206, 117 Stat.2835, 2844 (2003) (codified at 50 U.S.C. App. g 526(a)). The

21
Servicemembers 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 of the Servicemembers Civil Relief Act providing that the 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 in the 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 was found 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 on August 19,

2003 through when she was discharged on october 1, 2006. The tolling proviiions of

the servicemembers civil Relief Act, 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 the ABCMR. 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 set forth in 2g u.s.c. s 2501

22
was running throughout the period in which 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 by April 1,2004, or at the

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 matter jurisdiction 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 in the grade of major retroactive to October 1, 2006, and for

correction of her military record to void orders reflecting her allegedly wrongful

discharge from the Army Reserve are outside the jurisdiction 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 only to provide an entire remedy and

to afford complete relief attendant to a jurisdictionally 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 lacks jurisdiction 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 has jurisdiction over

her incapacitation pay claim and wrongful discharge claim, this court has jurisdiction 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 for the 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 limited jurisdiction 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 in this case, unrelated to any money

claim pending before it, would effectively override Congress's decision not

to make the Declaratory Judgment Act applicable to the 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 its jurisdiction"') 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."' (quoting Austin 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 have jurisdiction 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

13 The statute at 37 U.s.c. g 206, 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 cite was 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. g 206(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 and those serving

part-time reserve duty is that a member who is serving in part{ime reserve duty in a pay

billet, or was wrongfully removed from one, has no lawful pay claim against the United

States for 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 a wrongful discharge claim.

Once Ms. Walker's incapacitation pay claim was found beyond the jurisdiction 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 are time-barred by the

statute of limitations, and, thus, this court lacks subject matter jurisdiction 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 in favor of the defendant consistent with

this opinion.

IT IS SO ORDERED. /// z .'1/ ,.\ 1 /

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

MARIAN BLANK HORN

Judge

25