                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                                         PUBLISH
                                                                             APR 22 1997
                     UNITED STATES COURT OF APPEALS
                                                                        PATRICK FISHER
                                                                                 Clerk
                                      TENTH CIRCUIT



 LEE C. BURKINS,

              Plaintiff - Appellee,
       v.
 UNITED STATES OF AMERICA; THE                             Nos. 96-1132
 NATIONAL GUARD BUREAU, Lt.                                 and 96-1208
 Gen. John B. Conaway, Director;
 UNITED STATES DEPARTMENT OF
 THE ARMY, Togo D. West, Secretary;
 ARMY BOARD FOR CORRECTION OF
 MILITARY RECORDS, David Kinneer,
 Executive Secretary,

              Defendants - Appellants,
       and

 JOHN L. PATRICK, JR.; DOUGLAS
 TOM,

              Defendants.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLORADO
                          (D.C. NO. 93-K-2125)



Mary K. Doyle (Barbara C. Biddle with her on the briefs), Attorneys, Department of
Justice, Washington, D.C., for Appellants.
Eva Camacho Woodard, Law Office of Eva Camacho Woodard, Lakewood, Colorado,
for Appellee.



Before ANDERSON, LUCERO, and MURPHY, Circuit Judges.


ANDERSON, Circuit Judge.



       Appellee Lee C. Burkins sued the United States; the National Guard Bureau,

Lieutenant General John B. Conaway, Director; the Department of the Army, Togo D.

West, Secretary; and the Army Board for Correction of Military Records (ABCMR),

David Kinneer, Executive Secretary (collectively the Defendants) in federal district court

seeking a writ of mandamus ordering the ABCMR to correct his military records to

reflect that he received a disability discharge,1 rather than an honorable discharge, from

active duty in the Army on November 4, 1970.2 Burkins claims that he should have

received a disability discharge in 1970 because he suffered from 100% disabling post

traumatic stress disorder (PTSD) which he incurred while serving in Vietnam. The

district court concluded that Burkins was entitled to such a disability discharge and


       1
        The terms “disability discharge” and “medical discharge” are used by Burkins,
and appear in the record, interchangeably. We use the term “disability discharge”
consistently throughout this opinion for the purpose of clarity.

       Burkins also brought claims under the Federal Tort Claims Act, Section 1983, the
       2

Freedom of Information Act, and the Privacy Act. However, all of these claims were
resolved in the district court and are not at issue in this appeal.

                                            -2-
directed the ABCMR to change his records and provide him with computations regarding

the disability retired pay3 he should have received from the Department of the Army from

November 1970 to March 1987. The court also awarded Burkins attorney’s fees, costs

and expenses.

       The Defendants assert on appeal that (1) the district court lacked jurisdiction, (2)

Burkins did not meet the requirements for the issuance of a writ of mandamus compelling

the ABCMR to correct his military records, (3) the district court erred in directing the

ABCMR to include interest in the computations of the retired pay, and (4) the district

court abused its discretion in awarding attorney’s fees and expenses under the Equal

Access to Justice Act. We conclude that the district court lacked jurisdiction, and we

direct that the action be transferred to the United States Court of Federal Claims.

Accordingly, we do not reach the other issues on appeal.



                                     BACKGROUND

       On January 19, 1968, Burkins entered the United States Army on active duty and

served in Vietnam as a Green Beret with the 5th Special Forces Group. On November 4,

1970, following his tour of duty, Burkins submitted to a separation physical examination.

Following the examination, he was found medically qualified for separation and was



       “Retired pay” is the term used by the Department of the Army to describe the
       3

payments made to a member who retires pursuant to a disability discharge. See 10 U.S.C.
§ 1201(a).

                                             -3-
honorably separated from active duty and transferred to the Reserve Control Group.

       More than a decade later, on February 18, 1982, Burkins enlisted in the Hawaii

Army National Guard (Guard) and the next year was promoted to staff sergeant. In June

of 1984, during a field training exercise, Burkins became hysterical. He made references

to the North Vietnamese Army, shouted in Vietnamese, attempted to tie up a fellow

Guard member, and fired blanks in the faces of other Guard members. Later that month,

Burkins told his supervisor that he was quitting the Guard because of stress. He was told

that he could not quit, but he did so anyway and became absent without leave or

permission. Burkins commenced psychiatric counseling on September 19, 1984, and

remained in continuous therapy until the end of 1989. After he left the Guard, a unit

administrator in his Guard unit transferred him to inactive duty status by forging his name

to a transfer request.

       After Burkins left the Guard and was fraudulently transferred to inactive duty, the

only formal involvement he had with the Guard was to submit to a periodic Guard

medical examination on March 18, 1987. During the examination, Burkins told the

physician that he was receiving treatment from a psychiatrist for combat-related stress, he

had frequent trouble sleeping, he suffered from depression or excessive worry, and he

suffered from nervous trouble. Nonetheless, the physician found him medically qualified

for duty. Burkins was separated from the Guard in February of 1989 upon the expiration

of his term of service.


                                            -4-
       Sometime after the 1984 training incident, Burkins decided to seek disability

benefits for PTSD. He had the option of pursuing benefits through two different agencies

and based on different standards. First, he would be entitled to retired pay from the

Department of the Army if he was “unfit to perform the duties of [his] office, grade, rank,

or rating” because of a physical disability which was at least 30% disabling under the

Department of Veterans Affairs disability rating schedule and the disability was “incurred

while [he was] entitled to basic pay.” 10 U.S.C. § 1201 (Supp. 1997). However, because

he was separated from the Army and the Guard without any determination that he was

unfit to perform his duties, he first had to apply for a change in his military records to

reflect that he was unfit and entitled to a disability discharge. The ABCMR is authorized

to correct military records if it finds that such a change is “necessary to correct an error or

remove an injustice.” 10 U.S.C. § 1552(a). After the ABCMR has corrected a veteran’s

military records, the Department of the Army may pay the veteran for the loss of retired

pay resulting from the correction. 10 U.S.C. § 1552(c). However, the Department of the

Army may not pay the veteran any benefit which he is entitled to receive from the

Department of Veterans Affairs (V.A.). 10 U.S.C. § 1552(e).

       Second, Burkins would be entitled to disability benefits from the V.A. if he had a

“disability resulting from . . . disease contracted in line of duty, or for aggravation of a . . .

disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime). If a

veteran is determined to have such a disability, he is assigned a disability rating and


                                               -5-
compensation amount based on the degree of impairment in the veteran’s ability to earn

income from civil occupations. 38 U.S.C. § 1155. In order to receive disability benefits,

a veteran must first file a claim with the V.A. 38 U.S.C. § 5101. If the veteran’s claim is

denied, the veteran may seek review from the Board of Veterans’ Appeals, then the Court

of Veterans Appeals, and finally the Federal Circuit. 38 U.S.C. §§ 7104, 7252, 7292.

However, even if a veteran qualifies for both retired pay from the Department of the

Army and disability benefits from the V.A., the veteran cannot receive the full amount of

each because 38 U.S.C. § 5304 prohibits duplication of benefits. In such a case, the

veteran may elect to waive the portion of retired pay that would be duplicative of

disability benefits and, thereby, become entitled to receive the disability benefits in

addition to the unwaived portion of retired pay. 38 U.S.C. § 5305.

       Burkins sought disability benefits from the V.A. The V.A. initially awarded him a

10% disability rating for PTSD, retroactive to March 11, 1987. However, the rating was

later increased to 100% and made permanent, retroactive to March 11, 1987. Burkins

requested an earlier effective date, but the Board of Veterans’ Appeals denied that

request. In August of 1988, Burkins requested copies of his Guard military record and

discovered the forged transfer document and thereafter requested an investigation. The

Inspectors General of the Guard and National Guard Bureau investigated his transfer to

inactive status. The Inspector General of the National Guard Bureau concluded that

Burkins’ unit commander had improperly transferred him, but that he was not denied any


                                             -6-
entitlements as a result. The Inspector General advised Burkins that if he wished to have

his military records changed to remove the fraudulent transfer, he would have to apply to

the ABCMR.

       In September of 1989, Burkins applied to the ABCMR for a correction of his

records to show that (1) his transfer to inactive status with the Guard was fraudulent, and

(2) when he was separated from the Army on November 4, 1970, he was unfit to perform

the duties of his military office and, thus, was entitled to a disability discharge. He

further requested “all benefits be provided as such separation of duty allows.”

Appellant’s App. Vol. II at 12, 19. On July 1, 1992, the ABCMR issued an opinion

recommending that Burkins’ records be changed to show that: (1) his transfer to inactive

status was void; (2) on March 18, 1987, he was medically unfit for duty because of 50%

disabling PTSD; (3) on March 18, 1987, he was relieved from active reserve duty due to

physical disability; and (4) effective March 19, 1987, he was permanently retired with

entitlement to retired pay.4 Thereafter, the Deputy Assistant Secretary of the Army

approved the recommendations.



       4
         The ABCMR found that Burkins was entitled to a 50% disability rating
retroactive to March 18, 1987, even though the V.A. found that Burkins was entitled to a
100% disability rating retroactive to March 11, 1987. The different ratings and different
dates are a result of different agencies awarding benefits based on different standards and
regulations. The Department of the Army awards retired pay based on a member’s
inability to continue his or her military career because of a disability, while the V.A.
awards disability benefits based on a member’s impaired ability to earn income from civil
occupations. See discussion supra pp. 4-6.

                                             -7-
       Following the ABCMR’s issuance of its final decision, Burkins filed this action in

district court seeking a finding that the decision is arbitrary and capricious and contrary to

law and a writ of mandamus ordering the ABCMR to correct his military records to show

a disability discharge as of November 4, 1970, or, alternatively, to show a disability

discharge as of June of 1984 “when Plaintiff advised his chain of command of his

medical problems.” Appellant’s App. Vol. I at 25-26 (Pl.’s First Am. Compl.). Burkins

further alleged that the ABCMR’s refusal to correct his records had “caused the Plaintiff

either the loss of approximately 17 years of Veterans Administration benefits

(approximately $200,000) or the loss of 33 months of Veterans Administration retirement

benefits (approximately 58,800.00) plus loss of the use of the benefits.” Id. at 17.

Burkins maintained that “without actually awarding the Veteran’s Administration

disability benefits,” the district court had “authority to order that Plaintiff’s military

records be corrected . . . which finding will cause the Veteran’s Administration . . . to

grant the Plaintiff the retroactive disability benefits sought.” Id. at 17-18.

       On May 12, 1995, the district court remanded to the ABCMR so it could consider

(1) a letter from Command Sergeant Major Franklin Miller, a soldier who served with

Burkins in Vietnam, regarding Burkins’ state of mind while he was serving in Vietnam,

and (2) a memorandum from the Guard regarding Burkins’ psychological problems in

1984. On June 28, 1995, the ABCMR found that while Burkins may have had PTSD

symptoms when he was separated from the Army in 1970, he was not unfit to perform his


                                               -8-
duties and was not entitled to a disability discharge. The ABCMR based its decision on

the lack of evidence that Burkins was unfit at that time and on the fact that he appeared fit

when he enlisted in the Guard in 1982 and performed his duties and was promoted.

Accordingly, the ABCMR denied further relief.

       Thereafter, the Magistrate Judge concluded that the ABCMR’s decision was not

arbitrary and capricious and recommended that Burkins’ request that the district court

order a further change in military records be denied. On January 25, 1996, the district

court concluded that the ABCMR’s decision was arbitrary and capricious. The court

ordered the ABCMR to correct Burkins’ military records to reflect that “[b]ased upon the

ABCMR record, retroactive to November 4, 1970, Lee C. Burkins should have been

granted a disability discharge because he suffered from the condition of Post Traumatic

Stress Disorder and the condition was 100% disabling.” Burkins v. United States, 914 F.

Supp. 408, 415 (D. Colo. 1996). The court further ordered the ABCMR to provide

Burkins with “computations showing the present value of the disability retirement pay

plus cost of living increases, plus statutory interest, compounded quarterly, that should

have been paid to . . . Burkins for the period of time from November 4, 1970 to March 18,

1987 had he properly received a ‘disability’ discharge at the 100% level.” Id. At oral

argument before the district court, Burkins’ counsel stated that “we wanted those

computations . . . so Mr. Burkins could compare the amount that he would have received




                                             -9-
under military retirement versus what he can receive at the VA.” Appellant’s App. Vol. I

at 395-96.

       The ABCMR complied with the court’s order by making the changes to Burkins’

military records and providing him with computations from the United States General

Accounting Office indicating that the present value of the retired pay, computed as

directed by the court, is $146,820.08. Id. at 387.



                                       DISCUSSION

       The Tucker Act, 28 U.S.C. §§ 1346, 1491, “vests exclusive jurisdiction” with the

Court of Federal Claims for claims against the United States founded upon the

Constitution, Acts of Congress, executive regulations, or contracts and seeking amounts

greater than $10,000. New Mexico v. Regan, 745 F.2d 1318, 1322 (10th Cir. 1984); see

also Southeast Kansas Community Action Program Inc. v. Secretary of Agric., 967 F.2d

1452, 1455 (10th Cir. 1992); Hamilton Stores, Inc. v. Hodel, 925 F.2d 1272, 1277 (10th

Cir. 1991). Tenth Circuit law is clear that the Court of Federal Claims’ exclusive

jurisdiction may not be avoided by “framing a complaint in the district court as one

seeking injunctive, declaratory, or mandatory relief when, in reality, the thrust of the suit

is one seeking money from the United States.” Regan, 745 F.2d at 1322; see also

Colorado Dept. of Highways v. United States Dept. of Transp., 840 F.2d 753, 755 (10th

Cir. 1988); Rogers v. Ink, 766 F.2d 430, 434 (10th Cir. 1985). We have adopted the test


                                             -10-
that even if a complaint does not explicitly seek monetary relief, if the plaintiff’s “prime

objective” or “essential purpose” is to recover money (in an amount in excess of $10,000)

from the federal government, then the Court of Federal Claims’ exclusive jurisdiction is

triggered. Southeast Kansas, 967 F.2d at 1455; Hamilton Stores, 925 F.2d at 1278;

Regan, 745 F.2d at 1322. A plaintiff’s prime objective or essential purpose is monetary

unless the non-monetary relief sought has “‘significant prospective effect’ or

‘considerable value’ apart from the claim for monetary relief.” Francis E. Heydt Co. v.

United States, 948 F.2d 672, 677 (10th Cir. 1991) (quoting Hahn v. United States, 757

F.2d 581, 591 (3d Cir. 1985)).

       In this case, Burkins did not explicitly seek monetary relief, but rather sought, and

was granted, an order from the district court requiring the ABCMR to change his records

to reflect that he received a disability discharge in 1970 and to provide him an accounting

of the retired pay he would have been entitled to had he received such a disability

discharge. Even though Burkins did not seek monetary relief, it is clear that his prime

objective was to obtain benefits exceeding $10,000 in the form of retired pay from the

Department of the Army, V.A. disability benefits, or a combination of both. Burkins only

brought this action after he was denied V.A. disability benefits retroactive to 1970 and

after the ABCMR refused to change his records to reflect a disability discharge in 1970, a

change which would entitle Burkins to retired pay retroactive to 1970 and would allow

him to seek V.A. disability benefits retroactive to 1970. Burkins’ Amended Complaint


                                            -11-
and the record below are replete with references to Burkins’ goal of obtaining the

retroactive benefits.

       In addition, Burkins has failed to articulate how the relief he sought and obtained

has any significant prospective effect or considerable value apart from entitling him to the

retroactive benefits. First, Burkins is no longer in the military and, thus, his records have

no effect on an ongoing relationship with the military. Furthermore, the V.A. has

awarded him a 100% disability rating retroactive to March 11, 1987, which entitles him to

future V.A. disability benefits. Likewise, the ABCMR has changed his records to reflect

a disability discharge retroactive to March 19, 1987. The only further relief Burkins

seeks is the payment of retroactive benefits from November 5, 1970, through March of

1987. Thus, this case is unlike those cases in which we determined that the plaintiff’s

primary objective was to have the court declare the nature of the prospective relationship

between the plaintiff and the government agency involved. See Southeast Kansas, 967

F.2d at 1456; Hamilton Stores, 925 F.2d at 1279.

       When pressed at oral argument to articulate how a change in his military records

would afford Burkins a non-monetary benefit, Burkins’ counsel explained that Burkins

seeks to correct the fraud perpetrated on him when the Guard administrator forged his

name in order to transfer him to inactive status. The problem with this argument is that

the ABCMR has already ruled that the fraudulent transfer is “void and of no force or

effect.” Appellant’s App. Vol. II at 9. The only further relief that Burkins seeks is a


                                            -12-
finding that, but for the fraudulent transfer, he would have received a mental health

examination in 1984 which would have produced an adequate record to show that he was

unfit for duty in 1970. Such a finding has no value except to entitle him to retroactive

benefits. See, e.g., Francis E. Heydt Co., 948 F.2d at 676-77 (holding that because the

equitable relief sought had already been obtained, such an order did not have any

significant prospective effect or considerable value apart from a claim for monetary

relief).5

        Because Burkins seeks a writ of mandamus ordering a change in his military

records for the primary purpose of obtaining benefits from the federal government in




        Burkins cites Smith v. Marsh, 787 F.2d 510 (10th Cir. 1986), in support of his
        5

argument that the district court has jurisdiction over his claim. Smith involved a veteran
who filed suit in district court seeking to have his undesirable discharge upgraded to
honorable. The district court concluded that the ABCMR’s refusal to change Smith’s
records was arbitrary and capricious and the district court ordered the Army to issue
Smith an honorable discharge. Id. at 511. The Army appealed the order, arguing that
Smith’s claims were time-barred and that the ABCMR’s decision should be upheld. We
affirmed. Id. at 512. The Smith opinion, however, does not aid Burkins. First, Smith
does not include any discussion of Tucker Act jurisdiction. Second, even if the
jurisdiction issue had been raised, Smith had a significant non-monetary interest in having
his discharge status changed from undesirable to honorable in order to remove the
ongoing stigma of a substandard discharge status. See, e.g., Kidwell v. Department of the
Army, 56 F.3d 279, 285 (D.C. Cir. 1995) (complaint seeking change in discharge status
from general to disability-related did not trigger Court of Federal Claims’ exclusive
Tucker Act jurisdiction because this change “would lift some of the shame associated
with failing to receive an honorable discharge”); Wolfe v. Marsh, 846 F.2d 782, 785 n.3
(D.C. Cir. 1988) (complaint seeking reinstatement or upgrade from bad conduct discharge
included a non-monetary benefit which “may far exceed his interest in a back pay
award”). Burkins does not have a similar interest in having his discharge status changed
from honorable to disability-related.

                                            -13-
excess of $10,000, the Court of Federal Claims has exclusive Tucker Act jurisdiction and

Burkins must pursue his claim in that court. If the Court of Federal Claims rules in

Burkins’ favor on the merits of his claim, the court can provide him complete relief. The

Tucker Act specifically provides that in order “[t]o provide an entire remedy and to

complete the relief afforded by the judgment, the court may, as an incident of and

collateral to any such judgment, issue orders directing . . . placement in appropriate . . .

retirement status, and correction of applicable records . . . .” 28 U.S.C. § 1491(a)(2).

Thus, if the court finds that Burkins was entitled to a disability discharge in 1970, the

court may order the Department of the Army to pay him retroactive retired pay and,

collateral to such a judgment, order the correction of Burkins’ military records.

Thereafter, Burkins could pursue disability benefits from the V.A., and if he received

such benefits, could elect to waive a portion of his retired pay in order to receive

disability benefits.6


       6
        Because the Court of Federal Claims can provide Burkins complete relief, this
case is distinguishable from Bowen v. Massachusetts, 487 U.S. 879 (1988). In Bowen,
the Supreme Court concluded that the district court had jurisdiction under the
Administrative Procedure Act to review a decision by the Department of Health and
Human Services to disallow certain reimbursements to Massachusetts under the Medicaid
program. Id. at 912. In a complicated analysis based in part on the specific nature of the
grant-in-aid program at issue, the Supreme Court decided that the Court of Federal
Claims did not have exclusive jurisdiction over Massachusetts’ claim. The Court noted
that the Court of Federal Claims cannot provide an adequate remedy for “[m]anaging the
relationships between States and the Federal Government that occur over time and that
involve constantly shifting balance sheets.” Id. at 904 n.39. The Court stated that while
the Court of Federal Claims now has “certain equitable powers in special kinds of
                                                                              (continued...)

                                             -14-
       Accordingly, we vacate the following: (1) the district court’s January 25, 1996,

order7 to the extent it relates to Burkins’ military correction claim, orders the ABCMR to

change Burkins’ military records, and orders the ABCMR to provide Burkins with retired

pay computations; (2) the district court’s April 12, 1996, order; (3) the district court’s

January 29, 1996, judgment to the extent it orders the ABCMR to change Burkins’

military records and present Burkins with retired pay computations; and (4) the district

court’s April 16, 1996, judgment. Furthermore, we remand to the district court with

directions that the court sever Burkins’ military records correction claim from his other

claims pursuant to Fed. R. Civ. P. 21, see F.D.I.C. v. McGlamery, 74 F.3d 218, 222 (10th

Cir. 1996); Chrysler Credit Corp v. Country Chrysler, Inc., 928 F.2d 1509, 1518-19 (10th

Cir. 1991), and transfer8 the action involving Burkins’ military records correction claim to



       6
         (...continued)
litigation,” id. at 905 n.40, the court “does not have the general equitable powers of a
district court to grant prospective relief.” Id. at 905. As noted above, however, Burkins’
claim is precisely the “special kind of litigation” for which Congress has given the Court
of Federal Claims specific equitable powers to afford complete relief. Cf. id. at 930
(Scalia, J. dissenting) (stating that the Court’s decision in Bowen is limited to the “single
type of suit” at issue in that case).
       7
        The memorandum opinion and order is reported at 914 F. Supp. 408.
       8
        In his amended complaint, Burkins requested that if the “Court determine[s] that
jurisdiction for any claims set forth below lies with the Court of Claims, . . . that those
claims and particularly Plaintiff’s mandamus claim to compel correction of military
records be found to have been timely filed and that this Court transfer this claim under 28
U.S.C. § 1631 or 28 U.S.C. § 1406 to the Court of Claims.” Appellant’s App. Vol. I at 7-
8. Burkins made the same request in his memorandum in opposition to the Defendants’
motion to dismiss or for summary judgment. Appellant’s App. Vol. I at 68-69.

                                             -15-
the United States Court of Federal Claims “in the interest of justice.” See 28 U.S.C.

§ 1631 (empowering federal courts to transfer an action to cure want of jurisdiction); see

also Rogers, 766 F.2d at 436 (remanding with directions that the district court transfer

action to former United States Claims Court which had exclusive Tucker Act

jurisdiction); Tafoya v. United States Dept. of Justice, 748 F.2d 1389, 1393 (10th Cir.

1984) (transferring petition to former United States Claims Court); Regan, 745 F.2d at

1323 (transferring action to former United States Claims Court which had exclusive

Tucker Act jurisdiction).




                                            -16-
