           Jfn tbt Wnittb          ~tatts ~ourt           of jfebtral ~laims
                                              Pro Se                                     FILED
                                           No. 14-528C
                                       Filed: April 8, 2016                            APR - 8 2016
                          )                                                          U.S. COURT OF
                                                                                    FEDERAL CLAIMS
RUSSELL J. YOUNG,         )
                          )                            Keywords: RCFC 12(b)(l); Motion to
               Plaintiff, )                            Dismiss; Statute of Limitations; Money
                          )                            Mandating Statute; Veterans' Judicial
v.                        )                            Review Act; 38 U.S.C. § 7252.
                          )
THE UNITED STATES,        )
                          )
               Defendant. )
                          )
~~~~~~~~~)

Russell J Young, Syracuse, NY, Plaintiff, prose .

Anand R. Sambhwani, Trial Attorney, with whom were, Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Martin Hockey, Assistant
Director, United States Department of Justice, Washington, DC, for Defendant. Steven M
Meyers, Office of the Judge Advocate General, Of Counsel.


                                    OPINION AND ORDER

KAPLAN, Judge.

        Plaintiff, Rev. Russell J. Young, brought this action pro se to challenge a decision by the
Board of Correction of Naval Records (BCNR or "the Board"), declining to upgrade his Bad
Conduct Discharge from the Navy to an Honorable Discharge, based on his Post-Traumatic
Stress Disorder (PTSD). Rev. Young seeks an award of back pay and disability benefits in
addition to the correction of his records.

        The case is currently before the Court on the government's motion to dismiss for lack of
subject matter jurisdiction pursuant to Rule 12(b)(l) of the Rules of the Court of Federal Claims
(RCFC), and in the alternative, motion for judgment on the administrative record. Rev. Young
has filed his own cross-motion for judgment on the administrative record. For the reasons set
forth below, the government's motion to dismiss is GRANTED, and the complaint is
DISMISSED without prejudice.
                                       BACKGROUND 1

I.     Rev. Young's Discharge from the Navy

        Rev. Young began serving in the United States Navy on March 20, 1987. AR at 21.
While serving on the USS Carl Vinson in 1990, Rev. Young injured his knee. Id. at 147-48. Rev.
Young was subsequently sent to the Naval Medical Center in San Diego, California to receive
out-patient treatment for his injury. Id. at 148.

        After completing treatment, Rev. Young reported for duty in San Diego. Id. But on July
28, 1990, after an argument with his wife, Rev. Young left the base and decided not to report
back for duty as required. Id.; id. at 236. Instead, knowing that he was not authorized to take
leave from the Navy, he drove to La Grande, Oregon to visit his father and mother. Id. at 237-
38; id. at 149. Rev. Young was "UA,'' or on unauthorized absence, for the next fifty-four days.
Id. at 167.

       During his period of unauthorized absence from the Navy, Rev. Young wrote fifty-nine
checks that he knew would not clear because "there was no money in the account to cover the
checks." Id. at 149. Because he was on active duty at the time, his conduct violated the Uniform
Code of Military Justice, which prohibits active duty service members from knowingly issuing
bad checks. Id. at 169.

        On September 20, 1990, Rev. Young was taken into custody by military police. Id. at
239. He was charged with violations of 10 U.S.C. § 866 based on his unauthorized absence, and
with violations of 10 U.S.C. § 932a for issuing checks without sufficient funds. Id. 328-33. After
a hearing before a General Court Martial (GCM) at which he pled guilty to the charges, Rev.
Young was sentenced to twelve months of confinement, was required to pay a $482 fine,
suffered a reduction in his rank, and was ordered to be discharged from the Navy with a bad
conduct designation. Id. at 76-80.

        Thereafter, Rev. Young's case was reviewed by the U.S. Navy-Marine Corps Court of
Military Review. Id. at 58. Rev. Young elected to be represented by an appellate defense counsel
provided by the Navy. Id. at 71. The reviewing court found that the GCM applied an incorrect
standard when it evaluated Rev. Young's alleged violations of 10 U.S.C. § 932a. Id. at 59. It
found that the evidence was insufficient to support a conviction in twelve of the fifty-nine counts
of issuing checks without sufficient funds. Id. As a result, it reduced Rev. Young's sentence to
eleven months of confinement. It affirmed all other aspects of the sentence. Id. On March 3,
1992, Rev. Young was discharged from the Navy with a bad conduct discharge designation. Id.
at 338.



1
  The facts set forth in this Opinion are based on the allegations in the complaint, ECF No. 1,
which the Court accepts as true for purposes of ruling on the government's motion to dismiss,
and on the Administrative Record, ECF No. 22. Citations to the Administrative Record are
referenced as "AR at - "



                                                 2
II.    BCNR Decision

        Rev. Young submitted applications to the BCNR seeking the correction of his military
records on April 1 and October 29, 2012. Id. at 13-14. He contended that the court martial's
sentence was "too harsh" and complained that he could not receive veterans benefits as a result
of his bad conduct discharge. Id. He requested that the Navy "upgrade" his discharge to
honorable. Id.

        On March 13, 2013, the BCNR denied Rev. Young's applications. The BCNR found that
"the evidence submitted was insufficient to establish the existence of probable material error or
injustice." Id. at 21. It also "carefully weighed all potentially mitigating factors" and concluded
that "these factors were not sufficient to warrant recharacterization of [Rev. Young's] discharge
given [his] GCM conviction of very serious offenses." Id.

       On March 31, 2014, Rev. Young requested that the BCNR reconsider its decision. Id. at
24-25. He alleged that the court martial "did not consider that this Veteran may have had PTSD
because of the war 2 and the injury he sustained;" nor did it consider other personal issues involving
his marriage and family. Id. at 24a. He also argued that "bad checks [are] a problem for the civilian
community, not for the military." Id. at 25. He asked the Board to reconsider his request and
upgrade his discharge to honorable so that he could "receive the medical attention he needs and
the benefits that he has earned." Id.

       The BCNR responded to Rev. Young's letter on April 27, 2014, denying his request for
reconsideration. Id. at 26. The BCNR stated that the new evidence Rev. Young submitted "[was]
not material" and that the Board's decision "would inevitably be the same." Id.

       Rev. Young then sent the BCNR a second letter requesting that the BCNR again
reconsider its decision. Id. at 350. Rev. Young included with his request a Department of
Veterans Affairs "Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire"
form that was filled out and signed by a psychiatrist. Id. at 353-58. Within the form, the
psychiatrist noted that he diagnosed Rev. Young with chronic PTSD. Id. at 353.

         On April 30, 2014, the BCNR denied Rev. Young's new request for reconsideration. Id.
at 32. It stated that it had reviewed Rev. Young's PTSD Disability Benefits Questionnaire and
concluded that the new evidence was not material to his bad conduct discharge. Id.

III.   This Action

        Rev. Young filed a complaint in this Court on June 20, 2014. See Compl., ECF No. 1. He
alleges that the Navy "did not take into consideration that [he] may have had P.T.S.D." when he
was originally convicted by the court martial, and that as a result, he was "unjustly and
maliciously convicted." Id. at 1, 3. Similarly, he alleges that when it reviewed his conviction,
"the BCNR did not consider that [he] may have had PTSD." Id. at 4. He requests that the Court

2
 It appears that Rev. Young's reference to war-related PTSD is based upon his involvement in
what he refers to as "the Panama City Conflict, aka Operation Just Cause." AR at 24-24a.



                                                  3
order the Navy to "upgrade [his] discharge to Honorable under medical conditions so [he] can
receive better treatment for [his] knees and [his] PTSD" and so that he can receive veterans
benefits. Id. at 5. He also requests "[monetary] damages" and the "back pay" he would have
received as a disabled veteran. Id.

       The government responded to the complaint by filing an unopposed request that the
Court stay the case pending a remand to the BCNR. See Def.'s Mot. to Remand, ECF No. 8. The
government stated that a remand was necessary "out of an abundance of caution" in light of
guidance issued by the Secretary of the Defense on September 3, 2014, which instructs the
BCNR to consider discharge upgrade requests by veterans claiming post-traumatic stress
disorder. Id. at 3. In particular, the guidance instructs that the BCNR should give "liberal
consideration" to cases where "civilian providers confer diagnoses of PTSD" and in which the
PTSD "might have mitigated the misconduct" that led to the other than honorable discharge. Id.
Ex. 1at3.

        This Court granted the motion by an Order of October 20, 2014, in which it remanded the
case to the BCNR and instructed the Board to "consider plaintiffs request for the correction of
his Naval records in accordance with supplemental guidance issued by the Secretary of the
Defense." Order at 1, ECF No. 10.

        The BCNR reviewed Rev. Young's application again on December 12, 2015. AR at 3-5.
A three member panel of the BCNR, sitting in executive session, considered Rev. Young's
request in light of the guidance from the Secretary of the Defense. Id. The Board found that Rev.
Young's "PTSD was not a causal factor in [his] extended unauthorized absence or 59 separate
instances of uttering bad checks" and that the offenses "substantially outweighed the mitigation
provided by the existence of PTSD." Id. at 4.

       As permitted by regulation, Rev. Young requested that the BCNR reconsider its decision.
See Joint Status Report, ECF No. 11. On June 5, 2015, the Board considered Rev. Young's
request and again concluded that Rev. Young had not shown that "writing 59 bad checks was
connected to [his] PTSD" and that "the severity of [his] combined misconduct of a long-term
unauthorized absence and the aforementioned bad check writing outweighs the mitigation
provided by [his] PTSD condition." AR at 1.

        On September 28, 2016, the government filed the Administrative Record. ECF No. 22.
And on December 4, 2016, the government filed a motion to dismiss under Rule 12(b)(l) or in
the alternative, motion for judgment on the administrative record. ECF No. 24. Rev. Young filed
his cross-motion for judgment on the administrative record and response to the government's
motion on January 21, 2016. ECF No. 26.

                                          DISCUSSION

        In ruling on a motion to dismiss, the Court assumes that all factual allegations are true
and construes all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S.
232, 236 (1974) (abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)). In
considering a motion to dismiss for lack of subject matter jurisdiction, the court may "inquire
into jurisdictional facts" to determine whether it has jurisdiction. Rocovich v. United States, 933


                                                 4
F .2d 991, 993 (Fed. Cir. 1991 ). The plaintiff bears the burden of establishing subject matter
jurisdiction by a preponderance of the evidence. Brandt v. United States, 710 F.3d 1369, 1373
(Fed. Cir. 2013).

       Pro se plaintiffs are held to "less stringent standards than formal pleadings drafted by
lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Nonetheless, even prose plaintiffs must
persuade the Court that jurisdictional requirements have been met. Kelley v. Sec'y, U.S. Dep't of
Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987).

        Pursuant to the Tucker Act, the United States Court of Federal Claims has 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). The Tucker Act thus waives the sovereign immunity of
the United States to allow a suit for money damages. United States v. Mitchell, 463 U.S. 206,
212 (1983). However, the Tucker Act does not confer any substantive rights on a plaintiff.
United States v. Testan, 424 U.S. 392, 398 (1976). Therefore, a plaintiff cannot invoke the
court's Tucker Act jurisdiction unless he or she can identify an independent source of a
substantive right to money damages from the United States arising out of a contract, statute,
regulation, or constitutional provision. Jan's Helicopter Serv., Inc. v. Fed. Aviation Admin., 525
F.3d 1299, 1306 (Fed. Cir. 2008); see also Golden Pacific Bancorp v. United States, 15 F.3d
1066, 1076 (Fed. Cir. 1994).

        The Military Pay Act, 37 U.S.C. § 204, "provides for suit in [the Court of Federal
Claims] when the military, in violation of the Constitution, a statute, or a regulation, has denied
military pay." Antonellis v. United States, 723 F.3d 1328, 1331 (Fed. Cir. 2013) (quoting Dysart
v. United States, 369 F.3d 1303, 1315 (Fed. Cir. 2004)). But the Court's jurisdiction to hear Rev.
Young's claim under the Military Pay Act is subject to the six year statute oflimitations set forth
in 28 U.S.C. § 2501. Section 2501 provides that "[e]very 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."

        Because the BCNR's review is "a permissive administrative remedy," a claim for
unlawful discharge from the armed services first accrues when the member is discharged from
active duty status, and not upon the Board's final decision. Martinez v. United States, 333 F.3d
1295, 1303 (Fed. Cir. 2003) (en bane); id. at 1310. Here, Rev. Young's discharge from the Navy
occurred in 1992. AR at 338. As noted, his complaint was filed more than two decades later in
2014, well beyond the six-year limitations period. This Court, accordingly, lacks jurisdiction to
consider his claim for back pay based on unlawful discharge from the Navy.

        The Court also lacks jurisdiction to review the BCNR' s refusal to upgrade Rev. Young's
discharge to an honorable discharge for an independent reason. The Court of Federal Claims may
order the correction of military records if it is "incident of and collateral to" a money judgment.
28 U.S.C. § 1491(a)(2). But this Court cannot "grant affirmative non-monetary relief unless it is
tied and subordinate to a money judgment." James v. Caldera, 159 F.3d 573, 580 (Fed. Cir.
1998). Here, because the Court lacks jurisdiction over Rev. Young's claim for back pay resulting




                                                 5
from an unlawful discharge, it cannot independently order the BCNR to upgrade his discharge to
honorable.

        Rev. Young also cites 38 U.S.C. § 5107(a) as a source ofreliefin his complaint. Title 38
of the U.S. Code provides the statutory scheme under which veterans are entitled to benefits.
However, to the extent that Rev. Young claims an entitlement to disability benefits based on his
status as a veteran, this Court does not have jurisdiction to hear his claim. Kalick v. United
States, 109 Fed. Cl. 551, 556-57 (2013), affd, 541 Fed. App'x 1000 (Fed. Cir. 2013). 3

        Finally, to the extent that Rev. Young's complaint could be construed as including a
claim for disability retirement pay under IO U.S.C. § 1201, such claims "do not accrue until the
appropriate board either finally denies such a claim or refuses to hear it." Real v. United States,
906 F.2d 1557, 1560 (Fed. Cir. 1990); see also Chambers v. United States, 417 F.3d 1218, 1227
(Fed. Cir. 2005). Because Rev. Young has not exhausted his administrative remedies with regard
to such a claim, this Court lacks jurisdiction to hear it.

                                          CONCLUSION

        For the reasons stated above, the Court GRANTS the government's motion to dismiss,
and DISMISSES Plaintiffs complaint for lack of jurisdiction, without prejudice. The Clerk is
directed to enter judgment accordingly. 4

       IT IS SO ORDERED.




                                                      ELAINE D. KAPLAN
                                                      Judge


3
  Claims to disability pay are subject to the Veterans' Judicial Review Act, 38 U.S.C. §§ 7251-
99, which creates the sole statutory scheme under which former service members may challenge
VA decisions denying access to veterans benefits. Under that Act, a veteran must first appeal the
denial of his or her application to the Board of Veterans Appeals (BVA). 38 U.S.C. § 7104.
Following an adverse decision by the BVA, the veteran can seek judicial review by the Court of
Veterans Appeals. 38 U.S.C. § 7252(a). Finally, it is the Federal Circuit that has jurisdiction to
review a decision by the Court of Veterans Appeals, not the Court of Federal Claims. Ledford v.
West, 136 F.3d 776, 782 (Fed. Cir. 1998).
4
  Rev. Young has also filed a "Motion for Recognition," ECF No. 32, in which he requests that
the Court recognize him as a pauper, a prose litigant and a veteran of the United States Navy.
This motion-whose purpose is somewhat unclear-is DENIED as moot. The Court notes,
however, that it has already granted Plaintiffs motion to proceed in forma pauperis, that it
understands that he is a pro se litigant, and that the record confirms his status as a veteran of the
Navy.



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