     3Tn tbe Wniteb ~tates
                                  I C!Court
                                      I of        jfeberal C!Claims
                                  No. 15-353C
                             (Filed: July 29, 2016)                     FILED
                           NOT FOR PUBLICATION
                                                                      JUL 2 9 2816
*******************                                                   U.S. COURT OF
                                                                     FEDERAL CLAIMS
KIBBIE P. PILLETTE,

              Plaintiff,               Military pay; Disability retirement;
                                       Army Board for Correction of
                                       Military Records ("ABCMR");
v.                                     Medical Evaluation Board ("MEB");
                                       Physical Evaluation Board ("PEB").

THE UNITED STATES,

              Defendant.

********************

                                  OPINION

       Plaintiff seeks review of a decision by the Army Board for Correction
of Military Records ("ABCMR") not to correct his record to reflect a medical
retirement. He seeks an order directing the Army to place him on the
Permanent Disability Retirement List and argues that he is entitled to the
retirement benefits that he would have received had he been given a disability
retirement. Defendant's earlier motion to dismiss was denied. The parties
have now submitted cross-motions for judgment on the administrative record
pursuant to Rule 52.1. Based on the administrative record, we find that the
decision of the ABCMR was not arbitrary, capricious, or in violation of any
applicable statute or law.

                               BACKGROUND

       Kibbie Pillete was shot in the jaw in Vietnam on November 12, 1965,
and was awarded the Purple Heart for his injuries. He was treated in various
military hospitals for the next 10 months, eventually ending up at Fort Sam
Houston in Texas. His term of enlisted service expired on June 7, 1966, but he



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was retained past that date to continue receiving treatment for his injuries. On
July 22, 1966, plaintiff signed an affidavit confirming his desire to be retained
on active duty beyond the scheduled date of the expiration of his enlistment
period. Administrative Record ("AR") 289.


        On September 8, 1966, the Army convened a Medical Evaluation Board
("MEB") to decide whether plaintiff was fit for active duty. The MEB
concluded that Mr. Pillette was fit for retention in the army with a permanent
limitation due to a speech impediment. The board recommended a normal
discharge, however, because his term of enlistment had expired. AR 285. The
MEB 's decision also stated that Mr. Pillete desired to be discharged, but it is
not clear on what that statement was based. On September 22, 1966, he was
honorably discharged and transferred to the active reserve.


       Immediately thereafter, Mr. Pillette sought treatment at the Veteran's
Affairs ("VA") hospital in New Orleans, Louisiana. On June 3, 1967, the VA
rated plaintiff 50 percent disabled, and he has received VA disability benefits
ever smce.


       In 2009, plaintiff filed a request with the ABCMR, asking that his
discharge be changed to a medical retirement resulting from injuries incurred
in Vietnam. The ABCMR denied his application for correction of records on
December 22, 2009, finding that procedurally there was no reason for plaintiff
to have been referred to a Physical Evaluation Board ("PEB") in view of the
fact that the MEB had found plaintiff fit for duty. AR 195. Only if he had
been found unfit for retention would a PEB have considered Mr. Pillette for
a disability retirement. Id. The board also found that plaintiff failed to present
any evidence that his condition at the time warranted a PEB. Mr. Pillette did
not appeal the MEB 's decision, and thus the board held that it had no basis
upon which to reopen the question decades later. It did not, however deem his
request untimely. 1




1
 Applicants to the ABCMR "must file an application within 3 years after an
alleged error or injustice is discovered," but, the ABCMR may excuse an
untimely filing if it is "in the interest of justice." 32 C.F.R. § 581.3(d)(2)
(2016); 10 U.S.C. § 1552(b) (2012). It did so here. AR 194.

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       Plaintiff filed the present complaint on April 8, 2015. Defendant
moved to dismiss on timeliness grounds, arguing that plaintiff was aware of
his injuries on the date of his discharge in 1966, did not appeal the MEB
decision that he was fit for retention in the army, and signed an affidavit
asking for a discharge. All of which indicate to defendant that Mr. Pillette's
claim accrued on his date of discharge rather than the date of denial of his
application to the ABCMR.


        We denied defendant's motion, holding that, under these circumstances,
the statute oflimitations commenced when Mr. Pillette was denied correction
by the ABCMR. Defendant also moved for judgment on the administrative
record on the basis that plaintiff did not present any evidence of injuries
entitling him to a PEB at the time of discharge. Though plaintiff briefly
addressed the alleged inadequacy of the ABCMR's findings in his response to
the motion to dismiss, his arguments were not fully fleshed out. Given his pro
se status, we granted him leave to file a cross-motion for judgment on the
administrative record. Now, having received plaintiffs cross-motion and
defendant's response, the case is fully briefed and ready for disposition. Oral
argument is unnecessary.

                                DISCUSSION

        When hearing military disability claims, this court must limit its review
to the decision of the military review board based on the record and arguments
that were before it. See Russell v. United States, 106 Fed.Cl. 696, 698(2012).
Under the "ordinary standard of review" for agency actions, our role is to
determine, based on the administrative record, ifthe decision of the board was
"arbitrary, capricious, unsupported by substantial evidence, or contrary to
law." Metz v. United States, 466, F.3d 991, 998 (Fed. Cir. 2006). In order to
meet this standard, claimants must present "cogent and clearly convincing
evidence" that the board acted in such a manner. Wronke v. Marsh, 787 F.2d
1569, 1576 (Fed. Cir. 1986).


       In this case, the administrative record consists, in relevant part, of the
affidavit signed before the decision of the MEB in 1966, the MEB's decision,
the 1967 post-MEB medical report from the VA hospital, the decision of the
ABCMR to deny plaintiffs request, and its denials of plaintiffs requests for
reconsideration. Upon review, this court's role is not to second guess the

                                       3
MEB 's conclusion 50 years ago, but rather to evaluate whether the decision of
the ABCMR was "arbitrary, capricious," unsupported by the evidence in the
administrative record, or "contrary to the applicable principles of law." De
Cicco v. United States, 667 F.2d 66, 70 (Ct. Cl. 1982). Thus, we confine
ourselves to the ABCMR's recent denials based on the record and arguments
before it.


        Plaintiff makes several arguments, most of which concern the affidavit
that he signed on July 22, 1966, and the board's treatment of it. The affidavit
appears to be a standard form used by the Army to reflect a service member's
intent either to stay in the service or be discharged. Plaintiff contends that the
board should have read his affidavit to communicate an intent to remain in
active duty, not be discharged as the MEB stated was his desire. He bases this
on a statement in the affidavit which reflects that plaintiff would be evaluated
for separation or retirement for physical disability "if eligible." AR 190
Plaintiff argues that the form guaranteed a consideration of whether he was
owed a disability retirement, i.e., a PEB, if he were to be discharged.


        We disagree. As the ABCMR noted, a PEB is only convened if the
MEB first decides that the soldier has failed the fitness standards necessary to
be retained in the military under Army Regulation 635-40. AR 6. The MEB in
this case concluded that plaintiff did meet the medical standards necessary to
be retained, and thus he remained on active duty until discharged shortly
thereafter. A PEB was unnecessary. AR at 23. Plaintiff cites no authority for
his argument that the affidavit would guarantee him a PEB, and we are aware
of none. A plain reading of it does not lead to such a conclusion. Thus,
plaintiffs allegations are insufficient to overcome his burden to show that the
ABCMR was arbitrary and capricious and unsupported by substantial
evidence.


         Plaintiff also argues that the ABCMR failed to acknowledge that the
army did not complete his medical care but instead discharged plaintiff and
directed him to the VA. If it had, it would have reached a different conclusion
as to plaintiffs fitness for duty in 1966, avers plaintiff. As an initial matter,
plaintiff did not present this argument in his original request to the ABCMR.
It is thus waived as an argument on appeal to this court. See Doyle v. United
States, 599 F.2d 984, 1000 (Ct. Cl. 1979). In any event, plaintiff has not


                                        4
shown how that fact calls into question the MEB's conclusion or the
ABCMR' s affirmance of it.


        Lastly, plaintiff points to an alleged inconsistency in the MEB's
decision, arguing that the ABCMR overlooked it and was therefore arbitrary
in it conclusion. The MEB recommended that Mr. Pillette "be separated from
the service which is his desire since he is past his ETS." AR 23. In the next
sentence, the MEB assigned Mr. Pillette a mild disability profile for active
duty. Id. These two statements appear, to plaintiff, to be inconsistent. This
portrayal of Mr. Pillette's intent is further contrasted, argues plaintiff, by the
affidavit he signed on July 22, 1966, two months before the MEB, indicating
he wished to "remain on active duty in the Army beyond the scheduled date of
expiration of [his] tour of service." AR 190. Plaintiff proposes that the
military officials purposefully submitted the pages of the MEB out of order so
that a medical retirement evaluation could be avoided.


        These two statements may appear contradictory on the surface, but they
are not. The MEB's duty is only to determine whether the soldier is fit for
active duty, not whether he should return to active duty. The recommendation
in the MEB 's report that he be separated from service because he wished to be
is not germane to the question actually presented to the MEB, and does not call
into question its finding regarding his fitness for duty. As plaintiff himself
points out, on its final page, the MEB recommends that Mr. Pillette be
"[r]eturned to duty," and directly adjacent to this phrase the word "separate"
is crossed out. AR 28. In the MEB report the "purpose of examination" box
shows the letters "PEB" crossed out. AR 59. This is all consistent and does
not suggest an ill-motive at the time or arbitrary conduct upon review at the
board.

                                CONCLUSION

       In sum, plaintiff has not shown that the ABCMR was arbitrary or
capricious in rejecting his claim for a disability retirement from the army.
Accordingly, plaintiffs motion for judgment on the administrative record is
denied. Defendant's motion for judgment on the administrative record is
granted. The clerk of court is directed to enter judgment for defendant. No
costs.



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    ~~ /
    ERICG.B~K
    Senior Judge




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