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                                                                                                       No. l5-172C

                                                                                               (Filed: August 3,2015)
                                                                                                                                       FILED
                                                                                         (NOr        ro      BE   PUBLTSHED)         AUG   *3   2015
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                                                                                                                                     U.S. COURT OF
                                                                                                             )                      FEDERALCLAIMg
 KEITH L, SLOAN,                                                                                             )
                                                                                                             )
                                                                  Plaintiff,                                 )
                                                                                                             )
                                                                                                             )
                                                                                                             )
 UNITED STATES,

                                                                  Defendant.

 :1.   ****            r!   * :t *      t * * * :t :i'l. ti :* * * {. * + * !t * * * * * * * t( *


                       Keith L. Sloan, pro se, LaGrange, Kentucky.

        Christopher J. Camey, Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C., for defendant. With him on
the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division,
Robert E. Kirschman, Jr., Director, and Claudia Burke, Assistant Director, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Also
with him on the brief was Major Brian W. Song, United States Army, United States Army Legal
Services Agency, Fort Belvoir, Virginia.

                                                                                             OPINION AND ORDER

LETTOW, Judge.

        Plaintiff, Keith L. Sloan, seeks a change in his uncharacterized discharge from the Army
National Guard to a medical discharge. See Compl. at3; see a/so Def.'s Mot. to Dismiss Compl.
("Def.'s Mot.") at 3, ECF No. l2.r A change in his status would allow Mr. Sloan to receive

         rContemporaneously with his complaint, Mr. Sloan submitted an application to proceed
in forma pauperis. See Mot. to Proceed informa pauperls, ECF No. 2. Mr' Sloan is currently
incarcerated, and pursuant to 28 U.S.C. $ 1915(a)(2), he indicated on his application that his trust
fund account shows a balance of$1,370.00. 1d. In the circumstances, 28 U.S.C. $ 1915(b)
specifies the amount ofthe filing fee that Mr. Sloan is obliged to pay. The application to proceed
informa pauperls will consequently be granted, subject to Mr' Sloan's payment of the requisite
filing fee in installments. See 28 U.S.C. $ 1915(bXl)-(2).
medical disability retirement and a rank of private E-2 rather than E-1. Compl. al8;seealso
Def.'s Mot. at 3. Pending before the court is the govemment's motion to dismiss for lack of
subject matter j urisdiction pursuant to Rule 12(b)(1) ofthe Rules of the Court ofFederal Claims
f'RCFC'). Def.'s Mot. at l.

                                       BACKGROUND2

       Mr. Sloan enlisted in the Kentucky National Guard in September 1987. Compl. at2: see
a/so Dei's Mot. at 2. On November 9, 1987, he began initial active duty training at Fort
Jackson, South Carolina, and he injured his right knee during training on December 2, 1987.
Compl. at 2. Following discovery ofa vertical fracture ofthe right patella on December 9, 1987,
Mr. Sloan's right leg was placed in a cast on December 14, 1987. Compl. A4-5 (Medical Record
and Nanative Summary (Jan.6, 1988)). The cast was removed on January 4, 1988. Compl. A5.

        Mr. Sloan was separated from the Army on Jantary 29, 1988, under Army Regulation
(.'AR) 635-200, Chapter 5, fl 5-13 (Personality Disorder). See Def.'s Mot. at 2 (citing A32
(Memorandum Announcing Acting Commander's Approval of Mr. Sloan's Uncharacterized
Discharge (Jan,29,1988))). He was discharged from the Kentucky National Guard on February
3, 1988, with an uncharacterized discharge. Id. (citing ,A,31 (Orders from Department of Military
Affairs for Boone National Guard Center, Frankfort, Kentucky (F eb. 24, 1988))). OnMay 18,
2009, seeking to change his uncharacterized discharge to a medical discharge, Mr. Sloan filed an
application with the Army Discharge Review Board. A28 (Application for the Review of
Discharge from the Armed Forces of the United States (May 18, 2009). The Army Discharge
Review Board informed him on June 24,2009 that it did not have the authority to grant reliefon
a discharge that exceeded 15 years from the date of separation but that the Army Board for
correction of Military Records ("Army conection Board" or "conection Board") might be able
to provide reliei A27 (Letter t'rom Walter Avery, Chief, Case Management Division, Army
Review Boards Agency, Department of the Army, to Sloane (June 24, 2009)).


        2Although documents related to Mr. Sloan's service in the Kentucky National Guard are
appended to Mr. Sloan's complaint, the documents are neither labeled nor paginated. The
government has included many of those documents in a compilation attached to its motion to
dismiss. The govemment's appendix in effect serves as a record of Mr. Sloan's brief military
career and his subsequent applications seeking relieffrom the Army Discharge Review Board
and the Army Board for Correction of Military Records. Because that compilation of records is
not certified, it cannot serve as an administrative record within the meaning of RCFC 52.1. See
RCFC 52. 1(a). Nonetheless it will be considered by the court in connection with the
govemment's motion to dismiss on jurisdictional grounds. See Cedars-Sinai Med. Ctr. v.
Il/atkins,l l F.3d 1573, 1584 (Fed. Cir. 1993) ("ln establishing the predicate jurisdictional facts,
a court is not restricted to the face ofthe pleadings, but may review evidence extrinsic to the
pleadings, including affidavits and deposition testimony.") (citing Land v Dollar,330 U.S.73I,
735 n.4 (1947); St. Clair v. City ofChico,880 F.2d 199,201 (9th Cir' 1989); Reynolds v. Army &
Air Force Exch. Serv., 846 F .2d 746,747 (Fed. Cir. 1988); Indium Corp. of Am. v. Semi-Alloys,
Inc.,78t F.2d879,883-84 (Fed. Cir. 1985)).
          The court will cite the compilation of records appended to the govemment's motion to
dismiss as "A-," and the records appended to Mr. Sloan's complaint as "Compl. A.
                                                                                       -."
        Persisting in seeking to change his uncharacterized discharge to a medical discharge,
Mr. Sloan applied to the Army Correction Board on June 30, 2009. A26 (Application for
Correction of Military Record (June 30,2009)). The Correction Board responded on November
24,2009, informing Mr. Sloan that "[i]n order for the A[rmy Correction Board] to consider [his]
application, [he] need[s] to provide a copy of [his] DD Form 214 (Certificate ofRelease or
Discharge from Active Duty)." A25 (Letter from Avery to Sloan (Nov. 24,2009)). The
Conection Board advised that Mr. Sloan's case was "administratively closed" since it "[did] not
provide sufficient evidence to support [his] request;" however, the Board specified that
"[a]dministratively closing faf case does not mean that [the] application has been denied or thal
[Mr. Sloan] may not file again," and Mr. Sloan could "reapply at any time if [he] can submit a
copy of [his] DDForm2l4." Id. (emphasis added). Mr. Sloan replied on January 4,2010 and
enclosed a letter from the Department ofVeterans Affairs in Kentucky stating that they did not
have a DD Form 214 on file for him. A23 (Letter from Sloan to Avery (Jan.4,2010)), enclosing
 A24 (Letter from Department of Veterans Affairs to Sloan (Sept. 2,2008)).

        On May 6,2014, Mr. Sloan resubmitted his application to the Army Correction Board,
again requesting that his "uncharacterized discharge[] be change[d] to a'medical disability
retirement discharge with pay' with a promotion to private/E-2 for right knee injury in the line of
duty." .A3 (Application for Correction of Military Record (May 6,2014)). The Board responded
on December 5,2014, stating that "[i]n reviewing [Mr. Sloan's] records, [they] found no
evidence that [he] first appealed the characterization of [his] service to Kentucky State Adjutant
General before [he] applied to the A[rmy Conection Board] in accordance with Army
Regulation (AR) 15-135, Army Board for Conection of Military Records and AR 635-8,
Separation Processing and Documents." A.2 (Letter from Mr. Alejandro L. Champin, Chief,
Case Management Division, Army Review Boards Agency, Department of the Army, to Sloan
(Dec. 5,2014)). This letter indicated that Mr. Sloan's application to the Correction Board was
filed "without action and without prejudice" and said that if Mr. Sloan received a denial from the
Kentucky State Adj utant General's office that he believed was an error or caused injustice, he
might submit a new application to the Board. 1d

        Mr. Sloan's complaint was filed in the Court of Federal Claims on February 23'2015' A
copy of his complaint was sent to the Army Correction Board. Def.'s Mot. at 4. The Board
responded via letter on March 5, 2015, "again informing Mr. Sloan that he did not provide
suffrcient documentation, including medical records, for the A[rmy Correction Board] to
consider his application." Id. (citing Al (Letter from Champin to Sloan (March 5' 2015))). The
Board again indicated that the application was being "administratively closed . . . without action
and without prejudice[, which] d[id] not constitute a Board decision[,] and [Mr. Sloan] ha[d] the
right to reapply." A1.

                                  PROCEDURAL POSTURE

        At this juncture, Mr. Sloan requests a ruling that he was a "federal[ly] paid employee
during training at Fort Jackson and was injure[d] in the line of duty" such that he is entitled to
"disability retirement with pay" under l0 U.S.C. $ 1201(a). Compl . at3|, see a/so Def''s Mot. at
4. Mr. Sloan avers that "the A[rmy Correction Board] [is] refusing to hear [his] claim . . . in
violation of 10 U.S.C. $ 1552(a)." Compl. at 7. Mr. Sloan also asserts that "the A[rmy
Conection Boardl is trying to mislead [him] in [requiring] filing [of his] claim with Kentucky
State Adj utant General Office . . . because Kentucky has nojurisdiction . . . in [his] case[ since
hel was a federallyl paid employee during training." Compl. at 7.

                                 STANDARD FOR DECISION

        Before addressing the merits, the "court must satisfr itselfthat it has jurisdiction to hear
and decide a case." Hqrdie v. United States,367 F.3d 1288,1290 (Fed. Cir.2004) (intemal
quotation marks omitted) (quoting PIN/NIP, Inc. v. Platte Chem. Co.,304 F.3d 1235, 1241 (Fed.
Cir. 2002)). When assessing a motion to dismiss under RCFC l2(bX1) for lack of subject matter
jurisdiction, the court will "normally consider the facts alleged in the complaint to be true and
correct." Reynolds,846F.2dat747(citingScheuerv.Rhodes,416U.S.232,236(1974);Air
Prods. and Chems., Inc. v. Reichold Chems., lnc.,755 F.2d 1559, 1562n.4 (Fed. Cir. 1984)).
The plaintiffbears the burden of"alleg[ing] in his pleading the facts essential to show [subject
matterl jurisdiction" by a preponderance of the evidence. McNutt v. General Motors Acceptdnce
Corp. of 1nd.,298 U.S. 178, 189 (1936); see also M. Maropakis Carpentry, Inc. v. United States,
609 F.3d 1323,1327 (Fed. Cir. 2010); Reynolds,846F.2dat748.

          Mr. Sloan invokes the Tucker Act, which grants this court "jurisdiction to render
judgment upon any claim against the United States founded either upon the Constitution, or any
 Act of Congress or any regulation ofan 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. $ lagl(aXl). Although the Tucker Act waives sovereign immunity, enabling
 a claimant to sue the United States for monetary damages, United States v. Mitchell,463 U.S.
 206,212 (1983), it does not itselfprovide a substantive right to monetary relief against the
 United States, Llnited States v. Testan, 424 U .5. 392,398 (197 6); see also Martinez v. United
  States,333 F.3d 1295, i302-03(Fed.Cir.2003)(enbanc). Rather "[a] substantive right must be
 found in some other source of law." Mitchell,463 U.S. at216. To fulfill the jurisdictional
 requirements of the Tucker Act, a plaintiff must establish an independent right to monetary
 damages by identifying a substantive source oflaw that mandates payment from the United
 States for the injury suffered. See Teslan,424 U.S. at 400' see also Ferreirov. United States,
 501 F.3d 1349,1351-52 (Fed. Cir.2007)(citingFrsherv. UnitedStates,402F'3d1167'1172
 (Fed. Cir. 2005) (en banc in relevant part)).

                                            ANALYSIS

       Mr. Sloan correctly asserts that "[a] sewicemember can . . file a proper Tucker Act
claim for'entitlement to military disability pay under 10 U.S C' $ 1201,'" Fulbright v. United
States,97 Fed. Cl. 221, 228 (2011), aff'd,480 Fed. Appx. 998 (Fed.. Cir. 2012) (quoting
Chambers v. []nited States, 417 F.3d 1218, 1223 (Fed. cir. 2005)).r "[C]laims for disability


        3"The
               lcited statute] grants the Secretary authority to retire a disabled servicemember
who 'is unfit to perform the duties ofthe member's office, grade, rank[,] or rating because of
physicaldisabilityincurredwhileentitledtobasicpay."'Fulbright,9TFed.Cl.at228(quoting
l0 U.S.C. $ 1201(a)).
retirement accrue when the appropriate military board denies or refuses to hear the claim." Id.
(emphasis added) (citing Chambers,417 F .3d at 1224); see also Friedman v. United States,310
F.2d 381, 392 (Ct. Cr. 1962).

        The govemment nonetheless maintains that Mr. Sloan's suit is premature. Def.'s Mot. at
6-10. It contends that "[w]hen   a service member is released from service without a [physical
examination] board hearing and subsequently files a claim for disability retirement before a
military correction board, '[t]he Conection Board becomes the first proper board to act (or to be
asked to act) on the matter, and the claim does not ripen until that Board's action is frnal."' Id. aI
7 (quoting Friedman,310 F.2d at 392). As the government would have it, "without a board
decision, this [c]ourt does not possess jurisdiction and should dismiss the [c]omplaint." 1d. at 8.

          Mr. Sloan endeavors to avoid this result by asserting that the Army Correction Board is
refusing to act on his application. Compl. at 7. The Board's actions on his claim were not so
categorical as Mr. Sloan avers, however. The Board has repeatedly informed Mr. Sloan that his
"application . . . does not provide sufficient evidence to support [his] request." A25; see also A1.
By stating that Mr. Sloan's applications were "administratively closed," see e.g., AI, which was
done "without action and without prejudice," ld (emphasis added), the Army Conection Board
has indicated a willingness to consider Mr. Sloan's claim if submined with "sufficient evidence
. . . to make a fair, impartial and equitable determination on [his] application,"A25.

        Mr. Sloan also contends that the Army Conection Board has refused to act by "trying to
force [him] to file a (bogus claim) with Kentucky Adjutant General." Compl. at 9. The Board
has indeed indicated that Mr. Sloan must first appeal the characterization of his service "1o the
appropriate state Adjutant General[]" as a mandatory step prior to seeking relieffrom the Army
Conection Board. A2.a The Board's direction that Mr. Sloan seek relief from the Kentucky


        4The pertinent regulations include National Guard Regulation     ("NGR") 600-200, which
        provides in pertinent part:

       Soldiers administratively discharged from the ARNG [Army National Guard]
        and, ifapplicable, the Reserve ofthe Army, or discharged by sentence ofa
       special court-martial, may petition for a change to discharge. The appeal
       petition may address thal portion of the discharge concerning lhe State ARNG
       discharge. AGs [Adjutant Generals] may grant or deny the appeal. This
       authority will not be delegated. Changes to the Reserve of the Army portion
       of a discharge must be submitted to the Army Discharge Review Board.
       Soldiers may request a change to the reason for their discharges, to upgrade
       the characterization of service received. or both. See AR 15-185.

NGR 600-200 fl 6-23 (emphasis added). AR l5- 185 governs proceedings before the Army
Board for Conection of Military Records. It provides that applications to the Board may be
made by

        [members ofl the Active Army, the Army National Guard/Army National Guard
        of the United States, and the U.S. Army Reserve unless otherwise stated. Also, it
Adjutant General prior to processing his application does not necessarily constitute a refusal to
act. Rather as the govemment advises, "this [direction] only applies to 'that portion ofthe
discharge conceming the State ARNG discharge."' Def.'s Mot. at 9 (quoting NGR 600-200 fl 6-
23).

       At this juncture, Mr. Sloan has two options. He can apply to the Kentucky Adjutant
General for a change to his administrative discharge from the Kentucky National Guard, as
provided in NGR 600-200 fl 6-23. Altematively, he may renew his application to the Army
Correction Board respecting the federal portion ofhis discharge, while providing pe inent
medical records. In this latter respect, the govemment represents that:

       [t]o the extent that Mr. Sloan seeks to only change his discharge as a Reserve
       of the Army, the A[rmy Correction Board] can address the [flederal portion
       of his discharge without awaiting a decision from the Kentucky State
       Adjutant General. In fact, the latest letter from the A[rmy Conection Board]
       to Mr. Sloan - sent in response to his submission of the complaint he filed in
       this [c]ourt to the [B]oard - expressed a need for his medical records to process
       his application, and did not mention needing any'thing from the [S]tate. See
       A1. Mr. Sloan can clarifu that he is only seeking a change to his [flederal
       discharge when he reapplies. In any event, the [B]oard's request that he seek
       relief from the [Kentucky] [S]tate [A]djutant [G]eneral before processing his
       application does not constitute a refusal to act, but at most confusion as to the
       nature of the relief Mr. Sloan was requesting.

Def.'s Mot. at   9.


        In the circumstances presented, because the Army Correction Board has neither denied
nor refused to hear Mr. Sloan's application, this court does not have jurisdiction over his
complaint. As Chambers held, "without [final action by the Conection Board on a claim for
retirement for physical disability], the case in this court would be dismissed as premature on the
ground that the plaintiff did not seek or obtain a final decision within the administrative
hierarchy." 417 F.2d at 1225.

                                         CONCLUSION

        For the reasons stated, the govemment's motion to dismiss is GRANTED, and
Mr. Sloan's complaint is dismissed pursuant to RCFC 12(bxl) for lack of subject matter
jurisdiction. The dismissal is without prejudice, and Mr. Sloan may pursue applications for relief

       applies to lormer soldiers ofthese organizations . . . who are affected by a military
       record.

AR 15-185 (preambular page). AR 63 5-8 pertains to Separation Processing and Documents and
applies to the Army National Guard as well as the Active Army and Army Reserve. .See AR
635-8 (preambular page).
before the Army Correction Board or the Kentucky Adjutant General, or both, and, ifdissatisfied
with the result, may again seek redress in this court. If Mr. Sloan should eventually refile his
 claim in this court, the filing fee shall be waived, so long as Mr. Sloan has made the appropriate
 installment payments on the filing fee that is cunently due for this case. The clerk shall enter
judgment in accord with this disposition.

       Mr. Sloan's request to proceed   in   forma pauperis is GRANTED.S

       No costs.

       It is so ORDERED.


                                                    Judge




        5Pursuant to 28 U.S.C. 1915(bX2), the clerk shall assess, and
                                                                   Mr. Sloan shall make,
                              $
..monthly payments of20 percent of the preceding month's income credited to the prisoner's
account" over $ 10, until the filing fee has been paid.
