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                                           No. 15-1583C
                                                                                     iuN - I   20t7
                                       (Filed: June 1,2017)
                                                                                    U.S. COURT OF
                                                                                   FEDERAL CLAIMS

  CARLOS A. ALFORD,                                  Claim for military disability benefits;
                                                     review of a decision by the Board for
                        Plaintiff,                   Conection of Naval Records; potential
                                                     applicability of statutory requirement for an
                                                     opinion by a clinical psychologist or
                                                     psychiatrist; l0 U.S.C. g 1552(g); grant of
 UNITED STATES,                                      voluntarv remand

                        Defendant.


        Carlos A. Alford, pro se, Wilmington, North Carolina.

        Mollie L. Finnan, Trial Attomey, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With her on the briefs were
chad A. Readler, Acting Assistant Attomey General, civil Division, Robert E. Kirschman. Jr.,
Director, and Steven J. Gillingham, Assistant Director, commercial Litigation Branch, civil
Division, United States Departrnent of Justice, Washington, D.C. Of counsel was Major
Matthew P. Banks, General Litigation Division, office of the Judge Advocate General, United
States Marine Corps, Department of the Navy, Washington, D.C.

                                     OPINION AND ORDER

LETTOW, Judge.

         Plaintiff, carlos A. Alford, a former United States Marine, brings suit to challenge his
 other-than-honorable discharge and receive disability retirement benefits. Mr. Alford's disability
 retirement claim, which is based upon his allegations of service-connected post-traumatic stress
 disorder and schizoaffective disorder, was remanded by this court to the Board for Correction of
 Naval Records ("conection Board" or "Board") in June 2016. see generally Alford v. united
 States, L2T Fed. Cl. 345 (2016) ("Alftrd X'). The Conection Board denied his claim
 approximately six months later. In doing so, the correction Board relied upon an advisory
 opinion that did not include an opinion from a clinical psychologist or psychiatrist with respect
 to Mr. Alford's health. The court subsequently set a briefing scheduling for motions for
judgment on the administrative record, but the govemment now requests a second remand to
allow the Correction Board to consider an opinion from a clinical psychologist or psychiatrist.

       Pending before the court is Mr. Alford's motion for judgment on the administrative
record and the govemment's motion for remand to the Conection Board pursuant to Rule 52.2       of
the Rules of the Court of Federal Claims ("RCFC"). For the reasons stated, the govemment's
motion is granted and Mr. Alford's motion is denied as moot.

                                         BACKGROUND

         The background of this case has been stated in this court's most recent opinion
addressing Mr. Alford's claim, see AIfurd X, 127 Fed. Cl. 345, and is described briefly here.l
Mr. Alford enlisted in the United States Marine Corps ("Marine Corps") in 1981. Id. at 347 . He
alleges that he served on multiple deployments that "placed [him] in harm's way;' Id. (quoting
Compl. at 1-2). While enlisted, Mr. Alford experienced depression, sleepwalking, and
bedwetting. Id. In 1984, he received an other{han-honorable discharge from the Marine Corps
due to multiple disciplinary infractions. 1d According to Mr. Alford, those infractions included
(l) arriving "30 minutes late for formation," (2) testing positive for marijuana in a urinalysis, and
(3) possessing alcohol in the "[b]arracks [a]rea." Pl.'s Mot. for Judgment on the Administrative
Record ("P1.'s Mot.") at l-2, ECF No. 35. He concealed his 1984 discharge and reenlisted in the
Marine Corps in 1985, but was again dishonorably discharged due to misconduct in 1988.
Alfurd X,127 Fed. Cl. at347.

        In 1997 , Mr. Alford filed a petition with the Naval Discharge Review Board ("Discharge
Board"), asserting that his 1984 discharge was the result ofracial discrimination or excused "by
either mental illness or alcohol and drug abuse." Alford X, 127 Fed. CL at 347 . The Discharge
Board denied the petition after finding no evidence to substantiate Mr. Alford's claims. 1d. Mr.
Alford also filed petitions before the Correction Board, including a petition in 1998 to challenge
"the culpability ofhis misconduct," and petitions in 2003 and 2006 to challenge his discharges.
1d The Correction Board denied each petition due to insufficient evidence. Id.

        Mr. Alford filed suit in this court in 2010 to request "correction ofhis unfavorable
discharge, disability retirement, and restoration of rank." Alford X, I27 Fed, Cl. at 347 (citing
AIfurd I, slip op. at 1). The court construed the complaint as including a back pay claim under
the Military Pay Act, 37 U.S.C. g 20a(a), and a claim for disability retirement benefits under 10
U.S.C. $ 1201. See id. (citing Alford 1, slip op. at 5-8). The court dismissed the back pay claim
as time-barred by the six-year statute of limitations set forth in 28 U.S.C. g 2501, and dismissed
the disability retirement benefits claim on the ground that it had not been previously raised


         lMr. Alford's claims have been the subject often previous
                                                                   decisions from this court, the
Federal Circuit, the United States District Court for the Eastem District of North Carolina, and
the Fourth Circuit. See Alfurd v. United Stares, No. 10-525C, slip op. (Fed. Cl. Mar. 9, 201 1)
("Aford I'); Alfurd v. United Stares,416 Fed. Appx. 901 (Fed. Cir. 2011) (per curiam) (,,Alfurd
It'); Alfurdv. Pfeffir, No. 7:11-CV-38-BR,2012 WL 548806 (E.D.N.C. Feb.21,2012) (,,Atfurd
III'); AIfurd v. Secretary of the Navy, No. 7:13-CV-15-D, 2014 WL 12495274 (E.D.N.C. Jan. 10,
2014) ("Alford IIt'), appeal dismissed, Alfurd v. Mabus, 575 Fed. Appx. 170 (4th Cir. 2014) (per
curiam) ("Alford Ir'); AIfurd v. Mabus,No.7:14-CY-195-D,2015 WL 3885730 (E.D.N.C. June
23,2015) ("Alfurd VI'), aff'd,622Fed. Appx.249 (4th Cir. 2015) (per curiam) (,,Atfurd VIt,);
Alftrd v. United States,123 Fed. Cl.62 (2015) (Alford VII|'); Alford v. United States,No. 15-
I 583C, 2016 WL 1085108 (Fed. Cl. Mar. 1 8, 2016) ("Alfurd IX'); AIfurd X, 127 Fed. Ct. 345.
before either the Discharge Board or Correction Board. Id. at347-48 (citingAlford I, slip op. at
5-8).

        Mr. Alford subsequently raised the same claims, among others, in a suit filed in the
Eastern District of North Carolina. Alfurd III,2012WL 548806, at *1. He submitted multiple
documents, including a polygraph regarding his drug use, a 201 I mental health examination, and
health records from an examination at a Veterans Affairs ("VA") hospital in Jnuuy 2012. Id. at
 *4. The VA examiner stated that it was "[at] least as likely as not that Mr. Alford was 'insane'
due to a mental health disease when he committed the offenses that [ed] to his dishonorable
discharges from service in June 1984 and in June 1988," Id. (intemal quotation marks and
citations omitted). The district court determined that such records had not been presented to the
Conection Board, and thus dismissed Mr. Alford's claim for failure to exhaust administrative
remedies.  Id  Mr. Alford then filed another petition with the Conection Board in 2012. See
Alford X, 127 Fed. Cl. at 348. The Conection Board denied his request for reconsideration of its
 1999,2004, and 2006 decisions, but did not consider the new evidence presented by Mr. Alford.
Id.

        Mr. Alford thereafter filed another suit in the Eastem District of North Carolina. Alford
IV,2014 WL 12495274. At that j uncture, the district court remanded the case to the Conection
Board, directing the Board to consider the polygraph and health records submitted by Mr.
Alford, as well as "any other matters presented that were not previously considered." Id. at *2.
on remand from the district court, the correction Board considered Mr. Alford's claim to be a
request for reconsideration regarding his discharge, and denied the request on the ground that the
additional evidence was not new or mateial. see Alftrd X,127 Fed. cl. at 349. "The Board did
not address or comment on his claim for disability retirement, which was raised in his petition
dated February 24,2012 and which was encompassed by the [district court's] remand order ]' Id.
Mr. Alford then filed suit again in the Eastem District of North carolina, but his claims were
dismissed after the district court found that jurisdiction was only proper in the Court ofFederal
Clatms. Alford VI,2015 WL 3885730, at *3.

         Mr. Alford filed suit in this court on December 28, 2015, after the dismissal of his district
court complaint. A$ordX, 127 Fed,.cl. at349.2 He alleged that "he suffers from service-
connected post-traumatic stress disorder and schizoaffective disorder and that he should have
been retired honorably for disability." Id. (citing Compl. at 2). He also alleged that,,his
discharge was improper and that it should be upgraded with rark restored, thereby inferentially
alleging entitlement to back pay." Id. (citingcompl. at 7). The court construed Mr. Alford's
complaint as raising a back pay claim pursuant to the Military Pay Act and a disability retirement
benefits claim pursuanl to 10 u.s.c. S 1201. Id. ar350-52. The court dismissed the back pay
claim, holding that Mr. Alford was "collaterally estopped from relitigating the applicability of
the statute of limitations to this claim" because the covt in Alford I had found the claim time-
barred when it addressed his first complaint tlat was filed in 2010. Id. at350-51. Mr. Alford's
disability retirement benefits claim under Section 1201, however, was not dismissed,. Id. ar35r-


         2Mr. Alford also filed
                                suit in this court in March 2015 while his district court claim was
still pending, but that complaint was dismissed pursuant to 28 u.s.c. g 1500. Atford vlll,123
Fed. Cl. at 65-66.
 52. Section 1201 , a money-mandating statute under the Tucker Act, provides the court with
jurisdiction after "the appropriate military board either finally denies such a claim or refuses to
hearit." Id.aL35l (quotingChambersv.UnitedStates,4l7F.3dl2l8, 1224(Fed.Cir.2005)).
In examining Mr. Alford's previous petitions before the Conection Board, the court found that
his 2012 petition had "implicitly raised the issue of disability retirement benefits." /d The
district court's 2014 remand had also included that claim because the district court directed the
Conection Board "to consider all of Mr. Alford's claims." Id. at351-52 (citing Alford IV,2014
WL 12495274, at *2). This court accordingly explained:

        As a result, the Board should have considered whether Mr. Alford was entitled to
        disability retirement benefits, but it did not do so. Its July 7 ,2014 denial of Mr.
        Alford's disability ctaim was therefore either a refusal to consider it or a denial
        without explanation. Accordingly, the court has jurisdiction over Mr. Alford's
        disability claim.

Id. at352.3 Because the Conection Board had not considered Mr. Alford's disability retirement
claim, the court stayed the case and "remand[ed] the action to the Navy correction Board to
decide that claim in the first instance ." Id. The court ordered the correction Board ,,to decide
whether Mr. Alford is entitled to disability retirement pay or benefits on the basis of his allegedly
service-connected post-traumatic stress disorder and schizoaffective disorder." 1d

        In accord with this court's remand order, the conection Board considered Mr. Alford's
slaims, including additional information submitted by Mr. Alford. AR 2660 to -61.4 The
correction Board also relied upon an advisory opinion from the Director of the Secretary
council of Review Boards, where the Director determined that "the evidence d[id] not suppon
[Mr. Alford's] request." AR2664. The correction Board largely agreed with ihai advisory
opinion, finding that Mr. Alford was not entitled to disability benefits or a disability retirement.
AR 2661. The correction Board explained that (1) the evidence did not indicate Mr. Alford
suffered from post-traumatic stress disorder or schizoaffective disorder while on active duty, (2)
no nexus existed between Mr. Alford's claimed disorders and his misconduct, (3) the second
enlistment occuned fraudulently and thus did not warrant any benefits, and (4) 1116 evidence did
not support Mr. Alford's claim that he was unfit for naval service because his submitted
psychiatric diagnoses occurred after his discharge. /d

        The court subsequently lifted the stay and set a schedule regarding motions forjudgment
on the administrative record. scheduling order of Jan. 30,2017, ECF No. 29. on Maich g,
2017       Alford filed a motion for judgment on the administrative record, seeking disability
      'Mr.
retirement benefits and requesting that the court upgrade his I 9g4 discharge to hoiorable. see
Pl.'s Mot. at l-2. The govemment responded by requesting a second remand to the conection

       rBecause
.the government'sMr. Alford presented his disability retirement claim to the Correction
                 collateral
                                                                                        Board,
                           estoppel argument was "inapposite" with respect to that claim.
A(ord X, 127 Fed Cl. at 352 ("[D]ismissal of an action for failure to exhaust administrative
remedies does not preclude refiling ofthe action after exhaustion.") (citing Murthy v. vilsack,
609 F.3d 460,466 (D.C. Cir.2010)).

       acitations to the administrative
                                        record refer to the record as filed on Febru ary 14,2017.
Board. Def.'s Mot. for a Second Voluntary Remand ("Def.'s Mot.") at 1, ECF No. 40. The
government asserts that such a remand is appropriate because it will allow the Conection Board
"to obtain a medical advisory opinion that includes an opinion of a clinical psychiatrist or
psychologist, pursuant to 10 U.S.C. g 1552(g)." 1d at 3.

                                            ANALYSIS

        [n2014, Congress enacted a new statutory provision specifying that under certain
circumstances, an advisory opinion presented to a military board must include an opinion from a
clinical psychologist or psychiatrist:

        Any medical advisory opinion issued to a board established under subsection
        (a)(l) with respect to a member or former member of the armed forces who was
        diagnosed while serving in the armed forces as experiencing a mental health
        disorder shall include the opinion of a clinical psychologist or psychiatrist if the
        request for correction ofrecords concemed relates to a mental health disorder.

Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year
2015, Pub. L. No. 113-291, Div. A, Title V, g 521(a), 128 Stat. 3292,3360 (codified at 10 U.S.C.
$ I 552(g)). Relevant here, this court had ordered the Conection Board on remand to consider
Mr. Alford's disability retirement claim in light of his alleged post{raumatic stress disorder and
schizoaffective disorder. Alford X, 127 Fed. Cl. at 352. Significantly, in rendering its decision,
the Conection Board relied upon an advisory opinion that did not include an opinion from a
clinical psychologist or psychiatrist. See AR 2663 to 64. The goverffnent notes that Mr.
Alford's claim may not fall "squarely" within Section 1552(9) because he was only diagnosed
with sleepwalking, bedwetting, and a personality disorder while enlisted in the Marine Corps.
Def.'s Mot. at 4. Nonetheless, the govemment states, without admitting error, that a second
remand is appropriate "to enable Mr. Alford to benefit from the additional protections imposed
by $ 1552(9)." Id. at3-4,

       The govemment is permitted to seek a remand, without confessing error, for a number     of
reasons, including "to consider further the goveming statute, or the procedures that were
followed." sKFUSAInc.v.UnitedStates,254F.3d,1022, 1029(Fed.Cir.2001). Ifthe
 administrative record is inadequate in reviewing a military correction board, "[t]he reviewing
 court is not generally empowered to conduct a de novo inquiiry into the matter being reviewed,"
 and the "the proper course, except in rare circumstances, is to remand to the agency for
 additional investigation or explanation." ll'alls v. UnitedStates,5B2 F.3d 1358, 1367(Fed. Cir.
 2009) (quoting Florida Power & Light Co. v. Lorion,470 U.S. 729,744 (1985)); see also SKF
 USA,254 F.3d at 1029 (explaining that "a remand is usually appropriate" when the,,the agency,s
 concem is substantial and legitimate"). Because the advisory opinion issued to the conection
 Board did not include an opinion from a clinical psychologist or psychiatrist with respect to Mr.
 Alford's health, a remand is appropriate here. See 28 U.S.C. g 1a9l(a)(2) (.,In any case within
 its jurisdiction, the court shall have the power to remand appropriate matters to any
 administrative or executive body or official with such direction as it may deem proper and
just."); RCFC 52.2 (setting forth the procedural requirements for the remand of a matter to the
appropriate agency). In remanding the case, the court expresses no opinion as to the merits   of
Mr. Alford's claim. See Alford X, 127 Fed. Cl. at 352.

                                        CONCLUSION

         For the reasons stated, the govemment's motion for remand is GRANTED and Mr.
Alford's motion for judgment on the administrative record is DENIED as moot. Mr. Alford's
claim for disability retirement benefits is REMANDED to the Board for Conection of Naval
Records for a period not to exceed six months. See RCFC 52.2(bX1)(B). The Board is
ORDERED to obtain a medical advisory opinion that includes an opinion of a clinical
psychologist or psychiatrist pursuant to 10 U.S.C. $ 1552(9), and to reconsider Mr. Alford's
disability retirement claim in light of that opinion and any further evidence that Mr. Alford
chooses to submit.

        This case is stayed pending the results of the remand. See RCFC 52.2(b)(1)(C). The
court requests that the govemment submit a status report every 90 days during the pendency of
the remand, regarding the progress of the ensuing proceeding before the Board. See RCFC
s2.2(b)(lxD).

       It is so ORDERED.



                                            Judge
