                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2008-5049

                                WILLIE RAY MAZON,

                                                     Plaintiff-Appellant,

                                          v.

                                  UNITED STATES,

                                                     Defendant-Appellee.


      Willie Ray Mazon, of La Grange, Texas, pro se.

      Michael D. Austin, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for defendant-appellee. With
him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Bryant G. Snee, Deputy Director.

Appealed from: United States Court of Federal Claims

Judge Francis M. Allegra
                     NOTE: This disposition is nonprecedential.


   United States Court of Appeals for the Federal Circuit


                                     2008-5049


                               WILLIE RAY MAZON,

                                                          Plaintiff-Appellant,


                                         v.


                                 UNITED STATES,

                                                          Defendant-Appellee.


Appeal from the United States Court of Federal Claims in case no. 06-518C, Judge
Francis M. Allegra.



                             DECIDED: August 5, 2008




Before MICHEL, Chief Judge, RADER and SCHALL, Circuit Judges.

PER CURIAM.

                                     DECISION

      Willie Ray Mazon appeals from the final decision of the United States Court of

Federal Claims dismissing, as barred by res judicata and the applicable statute of
limitations, his complaint seeking disability retirement pay. Mazon v. United States, No.

06-518C (Ct. Fed. Cl. Jan. 9, 2008) (“Mazon III”). We affirm.

                                      DISCUSSION

                                            I.

        On August 12, 1976, Mr. Mazon enlisted in the United States Army (“Army”).

Mazon v. United States, No. 03-264C, slip op. at 3 (Ct. Fed. Cl. Mar. 18, 2004) (“Mazon

I”).   Within two weeks of his enlistment, Mr. Mazon reported suffering psychotic

symptoms. Id. at 3–4. A Medical Evaluation Board provisionally diagnosed Mr. Mazon

as suffering from a “‘schizophrenia reaction.’” Id. at 4. Within a week of his diagnosis,

however, Mr. Mazon reported that he no longer suffered psychotic symptoms and

expressed an interest in returning to duty. Id. The Army agreed to a trial period of duty,

wherein Mr. Mazon’s service would be evaluated. Id.

        During the trial period of duty, on October 13, 1976, Mr. Mazon’s commanding

officer recommended that he be discharged from service. Id. The commanding officer

reported that Mr. Mazon had engaged in various acts of insubordination and had

attempted to manipulate a psychiatrist in order to obtain a medical discharge. Id. On

November 12, 1976, Mr. Mazon was involuntarily separated and given an honorable

discharge. Id. at 5.

        On November 19, 1991, the Army Review Board Agency (“ARBA”) received an

application from Mr. Mazon seeking review of his discharge.         Id. at 6.   The Army

Discharge Review Board (“ADRB”), a component of the ARBA, declined to consider the

application, however, as it was received outside of the fifteen year regulatory limitations




2008-5049                                   2
period established by Army Regulation 15-180. 1 Id. The ADRB returned Mr. Mazon’s

application to him on or around March 11, 1992. Id. Mr. Mazon received ADRB’s letter

notifying him of its inability to consider his application on March 16, 1992. Id.

       On August 11, 1992, Mr. Mazon applied to the Army Board for the Correction of

Military Records (“ABCMR”) seeking to have his service records changed to reflect a

medical discharge on the basis of physical disability. Id. at 6–7. On November 23,

1994, the ABCMR denied Mr. Mazon’s application, concluding that it was untimely

under a regulatory three year limitations period for seeking the correction of military

records. Id. at 7; see 32 C.F.R. § 581.3(d)(2) (2007). The ABCMR pointed out that the

application had been filed roughly eighteen years after Mr. Mazon’s discharge. Mazon

I, slip op. at 7. The ABCMR also concluded that Mr. Mazon had not demonstrated that

it would be in the interest of justice to excuse his failure to comply with the limitations

period. Id.

       Mr. Mazon twice sought reconsideration of the ABCMR’s decision to deny his

application for alteration of his discharge records. On August 13, 1998, Mr. Mazon

submitted a request for reconsideration of the ABCMR’s decision, arguing that his

original application was timely in that it was filed within three years of a decision of the

Board of Veterans’ Appeals granting him service connection for his psychiatric disorder.

Id. at 8. The ABCMR denied the request for reconsideration on October 28, 1998. Id.

On August 13, 2002, the ABCMR received a second request for reconsideration of its

decision not to alter Mr. Mazon’s discharge records. Id. The ABCMR director declined

       1
              Since Mr. Mazon was discharged from the Army on November 12, 1976,
the statute of limitations for seeking review of his discharge expired on November 12,
1991. The ARBA did not receive Mr. Mazon’s application until November 19, 1991, one
week after the expiration of the statutory period.


2008-5049                                    3
to submit the second request for reconsideration to the full ABCMR for review,

concluding that the request contained no new evidence. Id. at 8–9.

       On February 5, 2003, Mr. Mazon filed suit in the Court of Federal Claims,

seeking, inter alia, alteration of his discharge records to reflect a disability discharge and

the award of back pay. Id. at 9. The court determined that Mr. Mazon’s claims for

alteration of his discharge records and award of back pay accrued when the ADRB

declined to consider his application for review of his discharge on or around March 11,

1992. Id. at 15. Applying the six year statute of limitations for claims filed in the Court

of Federal Claims set forth at 28 U.S.C. § 2501, the court concluded that Mr. Mazon’s

claims, filed approximately eleven years after their accrual, were time-barred. Id. at 26.

The court also concluded that Mr. Mazon had not demonstrated that the Army withheld

evidence from him or that he was mentally incapable of comprehending his legal rights,

and therefore declined to toll the statute of limitations. Id. at 17. We affirmed the Court

of Federal Claims’ decision to dismiss Mr. Mazon’s claims as time barred in an

unpublished opinion dated October 5, 2004, concluding that he had failed to establish

entitlement to tolling of the statute of limitations due to legal disability. Mazon v. United

States, 112 Fed. Appx. 774 (Fed. Cir. Oct. 5, 2004) (“Mazon II”).

       In 2005, Mr. Mazon filed yet another application for reconsideration before the

ABCMR seeking alteration of his discharge records to reflect discharge on the basis of

disability. Mazon III, slip op. at 1. On February 2, 2005, the ARBA informed Mr. Mazon

that it could not locate his military records and that he could reapply for reconsideration

when such records became available. Id.




2008-5049                                     4
       On June 27, 2006, Mr. Mazon filed a second complaint in the Court of Federal

Claims, arguing that the Court of Federal Claims improperly upheld the ABCMR’s

denials of his requests for reconsideration and declined to toll the six year statute of

limitations.   Id.   The government moved to dismiss the complaint, asserting that

jurisdiction over the claims was barred, inter alia, by the res judicata effect of the Court

of Federal Claims’ decision in Mazon I and by the statute of limitations. Id. at 2.

       The Court of Federal Claims concluded that Mr. Mazon’s complaint, to the extent

it raised issues related to the 1994, 1998, and 2002 decisions of the ABCMR, was

barred by res judicata. Id. The court concluded that Mr. Mazon’s claims with respect to

those ABCMR rulings were identical to his claims raised in Mazon I and that his

presentation of “‘new medical evidence’” and evidence of his treatment with the drug

haldol did not alter the nature of his previous arguments so as to entitle him to a second

hearing on the claims.      Id. at 2–3.    The court also concluded that Mr. Mazon’s

complaint, to the extent it challenged the 2005 decision of the ABCMR, was time-barred

pursuant to 28 U.S.C. § 2501, as it arose more than six years after the ABCMR first

denied his claims in November of 1994. Id. at 3.

                                             II.

       We review de novo the Court of Federal Claims’ dismissal of Mr. Mazon’s suit.

Frazer v. United States, 288 F.3d 1347, 1351 (Fed. Cir. 2002) (“This court reviews de

novo all legal determinations, including a dismissal by the Court of Federal Claims for

lack of jurisdiction.”); Dureiko v. United States, 209 F.3d 1345, 1355 (Fed. Cir. 2000)

(reviewing de novo the application of collateral estoppel).




2008-5049                                    5
        On appeal, Mr. Mazon appears to argue that the Army failed to disclose that it

had treated him with the drug haldol during his three months of service and that the

statute of limitations on his claims for discharge record alteration and award of back pay

should be tolled until he learned of his having been treated with haldol in 2002. Mr.

Mazon also appears to argue that he possesses new medical evidence that supports

his claim to have his records changed to reflect discharge on the basis of medical

disability.

        To the extent that Mr. Mazon’s appeal can be construed to challenge the 1994,

1998, and 2002 determinations of the ABCMR, we agree with the Court of Federal

Claims that any challenge to those decisions is barred by res judicata. In Mazon I, the

Court of Federal Claims concluded that Mr. Mazon’s causes of action for alteration of

discharge records and back pay accrued on March 11, 1992, when the ADRB declined

to review his discharge, slip op. at 15, and the court therefore concluded that his claims

were barred by 28 U.S.C. § 2501 in that they were filed roughly eleven years after

accrual, well beyond the six year statutory period, id. at 26. The court also concluded

that the statute of limitations should not be tolled, as Mr. Mazon had failed to

demonstrate that the Army withheld evidence from him or that he was mentally

incapable of bringing a claim during the statutory period. Id. at 17. We subsequently

upheld that decision. See generally Mazon II. In Mazon III, the Court of Federal Claims

concluded that Mr. Mazon’s claims for disability retirement pay relating to the 1994,

1998, and 2002 decisions of the ABCMR were identical to his claims in Mazon I seeking

record alteration and back pay. Mazon III, slip op. at 2. The court also concluded that

Mr. Mazon’s arguments for tolling the statute of limitations and consideration of “‘new




2008-5049                                   6
medical evidence’” arose out of the same set of operational facts as his claims in Mazon

I and were therefore barred from consideration by res judicata. Id. at 2–3.

       Under the doctrine of res judicata, “a final judgment on the merits of an action

precludes the parties or their privies from relitigating issues that were or could have

been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94 (1980); Young Eng’rs,

Inc. v. Int’l Trade Comm’n, 721 F.2d 1305, 1314 (Fed. Cir. 1983). Mr. Mazon’s claims

in Mazon III are essentially identical to his claims in Mazon I; in both cases, he sought to

have his medical records changed to reflect medical discharge in order to obtain

additional pay. Mr. Mazon, however, cannot re-litigate the claims previously presented

before the Court of Federal Claims, regardless of whether he has now come forward

with “‘new medical evidence.’” See Young Engr’s, 721 F.2d at 1314–15 (previously

asserted claims arising out of the same set of transactional facts are barred under res

judicata regardless of the discovery of new evidence that was previously available).

With respect to his arguments for tolling the statute of limitations, Mr. Mazon has failed

to demonstrate that evidence of the government’s alleged withholding of the fact of his

treatment with haldol was unavailable at the time of his filing his claims in Mazon I.

Indeed, in that case, Mr. Mazon argued that his treatment with haldol supported a

negligence claim under the Federal Tort Claims Act.          Mazon I, slip op. at 26–27.

Accordingly, Mr. Mazon could have argued in Mazon I that the statute of limitations

should have been tolled due to the Army’s alleged failure to disclose his haldol

treatment, and he was therefore properly barred from arguing such in Mazon III under

the doctrine of res judicata. See Young Eng’rs, 721 F.3d at 1314–15.




2008-5049                                    7
       To the extent that Mr. Mazon’s appeal can be construed to challenge the 2005

decision of the ABCMR, we agree with the Court of Federal Claims that his claim is

barred by 28 U.S.C. § 2501. That statute provides in relevant part 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.” 28 U.S.C.

§ 2501 (2000). The Court of Federal Claims concluded that Mr. Mazon’s claim for

altering his discharge order to reflect a disability discharge accrued in November of

1994, when the ABCMR first dismissed his application on statute of limitations grounds,

and Mr. Mazon has produced no evidence to refute the correctness of that finding.

Since Mr. Mazon filed his complaint challenging the 2005 ABCMR decision in the Court

of Federal Claims in 2006, his complaint arose over eleven years after the 1994 accrual

of his claim and is clearly barred by the six year statute of limitations.

       We have considered Mr. Mazon’s remaining arguments and find them to be

without merit.

       No costs.




2008-5049                                     8
