            3Jn tbe Wniteb ~tates Qtourt of jfeberal Qtlaitrts
                                   No. 14-1236 C
                              (Filed August 20, 2015)              FILED
                                                                  AUG 2 0 2015
 * * * * * * * * * * * *** *                                     U.S. COURT OF
 ANTONIO JOHNSON,               *                               FEDERAL CLAIMS

                                *
              Pro Se Plaintiff, *             Military Pay and Disability
                                *             Retirement Claims; Accrual of
          v.                    *             Claims.
                                *
 THE UNITED STATES,             *
                                *
                Defendant.      *
  * *** ** ** * ** * * *

      Antonio Johnson, Lagrange, KY, pro se.

      Antonia R. Soares, United States Department of Justice, with whom were
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Robert E.
Kirschman, Jr., Director, Martin F. Hockey, Jr., Assistant Director, Washington,
DC, for defendant. Captain Christopher J Koschnitzky, United States Army
Legal Services Agency, Fort Belvoir, VA, of counsel.




                           OPINION AND ORDER


Bush, Senior Judge.

      This military pay and disability retirement benefits case is before the court
on defendant's motion to dismiss filed under Rule 12(b)(l) of the Rules of the
United States Court of Federal Claims (RCFC). Defendant's motion has been
fully briefed and is ripe for decision. 1 For the reasons stated below, defendant's
motion is granted in part and denied in part.

                                      BACKGROUND 2

I.     Overview of Claims

       The pro se complaint filed in this case contains two overarching claims.
First, plaintiff requests relief related to his involuntary discharge from the United
States Army in 1988. These requests for relief, as far as can be discerned from the
somewhat jumbled presentation of factual allegations and legal theories in the
complaint, include demands that certain disciplinary documents be expunged from
plaintiff's service record, that he be restored to his former "rank of E-4," and that
he receive a commensurate award of back pay for his service from June 14, 1988
to December 13, 1988. Compl. at 10. Plaintiff also asserts that his discharge in
1988 was void because it was illegal. Id. at 4-5. The court refers to any and all of
plaintiff's legal and equitable claims related to the circumstances of the Army's
disciplinary actions and the subsequent administrative discharge of Mr. Johnson as
his "wrongful discharge" claim.

       The complaint then presents a different claim which, like the wrongful
discharge claim, focuses on 1988 and the circumstances surrounding the
termination of Mr. Johnson's service in the Army. In this claim, however, plaintiff
asserts that he should have been discharged for medical reasons, not disciplinary
reasons. The relief requested for this claim is variously stated in the complaint but
may be succinctly summarized as a demand for "physical disability retirement with


       1
        / The court has before it: (1) the complaint, which includes an appendix of exhibits;
(2) defendant's motion to dismiss, which also includes an appendix; (3) plaintiff's response brief;
(4) defendant's reply brief; and, (5) plaintiffs "Motion for Leave to Grant Plaintiff Relief," filed
June 1, 2015, which the court deems to be plaintiff's sur-reply brief. Defendant reproduces the
complaint exhibits in its own appendix. See Def. 's Mot. at 1 n.1; Def. 's App. at 1-145. For these
documents the court cites to defendant's appendix because its index and pagination are less
confusing, and also because defendant's appendix is available to the public after having been
redacted to protect plaintiffs confidential information pursuant to RCFC 5.2.
       2
        /The facts upon which the parties rely are undisputed unless otherwise noted. The court
makes no findings of fact in this opinion other than to determine its jurisdiction over this suit.

                                                 2
pay as a sergeant E-5." Compl. at 23. The court refers to any and all of plaintiff's
legal and equitable claims related to his medical evaluation by the Army and his
alleged service-connected disabilities as his "disability retirement" claim.

II.    Factual History

       Mr. Johnson joined the Army on January 29, 1980. Compl. at 3. He
achieved the rank of sergeant (E-5). Def.' s App. at 103. In 1988 plaintiff still had
approximately three years left on an enlistment contract when disciplinary actions
were taken against him; these actions resulted in two reductions in rank, from E-5
to E-4, and then from E-4 to private (E-1 ). Compl. at 4; Def.' s App. at 105. Mr.
Johnson was then discharged on December 13, 1988 with a notation of
"Misconduct - Commission of a Serious Offense" on his discharge papers, Def.' s
App. at 1, and received a general discharge under honorable conditions, Compl. at
4. The court reserves further examination of the facts of Mr. Johnson's discharge
for the analysis section of this opinion.

III.   Procedural History

      According to the complaint exhibits, as supplemented by defendant's
motion and accompanying exhibits, Mr. Johnson initiated several attempts to
appeal his discharge once he was forced to leave the Army. None of these
attempts was successful. According to defendant's motion, Mr. Johnson's efforts
to appeal his discharge proceeded through several fora, including this court in
2001:

             Beginning with the filing of a complaint in this Court in
             2001 and then by filing applications with the Army
             Discharge Review Board (ADRB) in 2002 and the Army
             Board [for] Correction [of] Military Records (ABCMR
             or board) in 2003, Mr. Johnson has asserted that he was
             wrongfully discharged from the Army in 1988, and that
             he deserved various corrections to his military records.

Def. 's Mot. at 2 (footnotes and citations omitted). In this court, Mr. Johnson's suit
was dismissed because he contested his discharge twelve years after the claim
accrued, exceeding this court's six-year statute of limitations provided by 28


                                          3
U.S.C. § 2501 (2012). See Johnson v. United States, No. Ol-18C, slip op. at 4-6
(Fed. CL May 31, 2001) (Johnson!); see also Def.'s App. at 182-84.

       After this unsuccessful "first round" of wrongful discharge claims and
applications for relief, Mr. Johnson returned to the ABCMR in 2013. According
to the government,

              [o]ver ten years after Mr. Johnson filed his initial
              ABCMR application, in September 2013[] Mr. Johnson
              filed another application with the ABCMR, asserting the
              same claims as before, but this time also asserting that he
              should have received military disability benefits at the
              time of his discharge in 1988.

Def.'s Mot. at 2 (citing Def.'s App. at 90-92). Mr. Johnson's recent application
for relief from the ABCMR eventually included four letters sent to the board
(dated September 25, 2013, July 25, 2014, August 1, 2014 and August 15, 2014)
as well as numerous exhibits provided by plaintiff. See Def.'s App. at 102.

       All of Mr. Johnson's requests for relief were denied by the board on
October 7, 2014. Plaintiff appealed the ABCMR's decision by filing a complaint
in this court on December 24, 2014. Indeed, Mr. Johnson named the ABCMR as
the defendant in this suit. See Compl. at 1. Because the only proper defendant in
this court is the United States, Mr. Johnson's claims must be viewed as directed
against the United States. 3 In its motion to dismiss, the government asserts that
the claims in the complaint are untimely.

                                       DISCUSSION

I.     Standards of Review

       A.     Pro Se Litigants

       The court acknowledges that Mr. Johnson is proceeding prose and is


       3
        / Subsequent filings by Mr. Johnson have correctly listed the United States as the
defendant in this suit.

                                                4
therefore "not expected to frame issues with the precision of a common law
pleading." Roche v. US. Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987). Pro
se plaintiffs are entitled to a liberal construction of their pleadings. See Haines v.
Kerner, 404 U.S. 519, 520 (1972) (requiring that allegations contained in a prose
complaint be held to "less stringent standards than formal pleadings drafted by
lawyers"). Accordingly, the court has thoroughly examined the complaint,
plaintiffs response brief and his sur-reply brief and has attempted to discern all of
plaintiffs legal arguments.

      B.     RCFC 12(b)(1)

       In rendering a decision on a motion to dismiss for lack of subject matter
jurisdiction pursuant to RCFC 12(b)( 1), this court must presume all undisputed
factual allegations to be true and construe 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); Reynolds v. Army & Air
Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). However, plaintiff bears
the burden of establishing subject matter jurisdiction, including jurisdictional
timeliness. Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir.
1998) (citingMcNuttv. Gen. Motors Acceptance Corp. ofInd., 298 U.S. 178, 189
(1936)). To meet this burden, plaintiff must establish jurisdiction by a
preponderance of the evidence. Reynolds, 846 F.2d at 748 (citations omitted).

II.   Analysis

      A.     Wrongful Discharge Claim

       The complaint asserts that Mr. Johnson was wrongfully discharged by the
Army in 1988. It appears that at least one aspect of his discharge involved an
allegation that Mr. Johnson was apprehended by civilian authorities for driving
under the influence of alcohol. Compl. at 10-12. Other allegations mentioned in
the complaint include Mr. Johnson's involvement with a military vehicle accident
and absenting himself from duty without leave. Id. at 14-15. Plaintiff argues that
his discharge was illegal for a number of reasons, such as: (1) the facts did not
support the allegations against him; (2) he was subjected to unconstitutional
double jeopardy; and (3) there were regulatory improprieties in the procedures
used to discharge him from the Army. Id. at 9-12. The relief Mr. Johnson

                                          5
requests for his wrongful discharge claim, although the complaint is somewhat
difficult to decipher on this point, includes "E-4 back pay with daily compound
interest ... from June 14, 1988 to [the present] day." Id. at 11.

       The court cannot reach the merits of plaintiffs wrongful discharge claim
because it was filed too late. Military pay claims based on a theory of wrongful
discharge accrue at the time of discharge. Martinez v. United States, 333 F.3d
 1295, 1313-14 (Fed. Cir. 2003) (en bane). Any timely wrongful discharge claim,
in this case, would necessarily have been filed before December 13, 1994, i.e.,
within six years of Mr. Johnson's discharge from the Army. Because Mr.
Johnson's complaint was filed December 24, 2014, twenty years after the six-year
limitations period provided by 28 U.S.C. § 2501 had expired, this court lacks
jurisdiction over his wrongful discharge claim. John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 134-35 (2008). The court notes that Mr. Johnson's
previous wrongful discharge claim before this forum, Johnson I, was also
dismissed on timeliness grounds. For these reasons, the wrongful discharge claim
stated in the complaint must be dismissed. 4

       B.      Disability Retirement Claim

       Mr. Johnson relies upon his Army medical records as support for his
physical disability retirement benefits claim. Compl. at 17. Plaintiff argues that
he was diagnosed with "over 30 thirty combine[ d] injuries and diseases" during
his eight years of service in the Army. Id. at 18. He concludes, therefore, that he
should have received service-connected disability ratings related to his military
service. Further, Mr. Johnson argues that it was a violation of regulation when no
such disability findings were made by the Army at the time of his discharge. Id. at
20-21. In essence, plaintiff suggests that the Army was compelled by law and
regulation to award him a disability retirement in 1988 rather than an
administrative discharge. See id. at 21 ("If it was not for the illegal demotion and
discharge, I would have been medical[ly] retired with pay of a sergeant E-5 .").

       Plaintiff argues that there is no statute of limitations bar to his disability
retirement claim. Compl. at 23. The government disagrees. Def.'s Mot. at 16-18.


       4
          Plaintiff concedes that this court's statute of limitations bars some of the back pay
           /

reliefrequested in the complaint. Pl. 's Resp. at 3-4.

                                                 6
As discussed below, plaintiffs disability retirement claim is not barred by this
court's statute of limitations.

             1.    General Accrual Rule for Disability Retirement Claims

      In 2005, the United States Court of Appeals for the Federal Circuit issued
Chambers v. United States, 417 F.3d 1218 (2005), its seminal decision on the
accrual of military disability retirement claims. It is now well established that:

             Unlike claims for unlawful discharge, ... claims of
             entitlement to disability retirement pay generally do not
             accrue until the appropriate military board either finally
             denies such a claim or refuses to hear it.

Id. at 1224 (citations omitted). Here, the first claim submitted by Mr. Johnson for
disability retirement pay was presented to the ABCMR in 2013 and denied in
2014. Pursuant to the precedential rule of law stated in Chambers, the disability
retirement claim filed in this court in 2014 was filed well within this court's
six-year statute of limitations.

             2.    Exception to the General Accrual Rule for Disability
                   Retirement Claims

       The government notes that an exception exists to the general accrual rule
provided in Chambers. The court reproduces here the government's formulation
of this exception:

             A claim for medical disability benefits, however, will
             accrue on the date of discharge when a service member
             has knowledge of his medical condition at the time of
             discharge, and thus notice of the right to sue.

Def.'s Mot. at 16 (citing Real v. United States, 906 F.2d 1557, 1560 (Fed. Cir.
1990); Barney v. United States, 57 Fed. Cl. 76, 85 n.3 (2003)). In Chambers,
however, the Federal Circuit provided a somewhat more nuanced statement of the
Real exception to the general rule for the accrual of disability retirement claims:



                                          7
            Real did not fashion a rule, as the government suggests,
            that a service member's claim accrues when he learns of
            his disabling condition, whether before or after
            discharge. Indeed, such a rule would be untenable, given
            that a military board must determine eligibility for
            disability retirement before such a claim accrues. There
            can be no waiver of board review absent an opportunity
            for such review, as at discharge. Simply put, after
            discharge, a veteran has nothing to waive. The
            appropriate inquiry under Real, therefore, is whether at
            the time of his separation from the Army ... , [the
            plaintif!J knew that he was entitled to disability
            retirement due to a permanent disability that was not a
            result of his intentional misconduct and was
            service-connected.

417 F.3d at 1226 (emphasis added). Thus, in this case, the question is whether Mr.
Johnson knew, in 1988, that "he was entitled to disability retirement due to a
permanent disability that was not a result of his intentional misconduct and was
service-connected." Id.

        The Army determined that Mr. Johnson was not disabled and was medically
fit in 1988. Def.'s Mot. at 17; Def.'s App. at 68. As he was being processed for
separation, Mr. Johnson testified that "I have never stopped performing my duties
since [separation procedures were initiated]." Def. 's App. at 58. Although Mr.
Johnson did experience medical problems in 1988, and testified then that he had
"spots" on his lungs, his medical restrictions in 1988 were later characterized by
the ABCMR as temporary. Id. at 55, 105. Although plaintiff now claims that he
was permanently disabled in 1988, the record does not show that Mr. Johnson
knew, in 1988, that he was permanently disabled at that time.

     The facts in this case are somewhat analogous to those discussed in
Chambers:

            We hold that the record is bereft of any evidence that
            Chambers possessed such knowledge [of a permanent
            disability]. The medical diagnoses Chambers received


                                        8
              prior to discharge - "transient stress reaction," "transient
              situational stress," and "mild situational anxiety" - all
              indicated that his condition was minor, temporary, and
              circumstantial. Nothing in the record indicates that
              Chambers considered these diagnoses to be erroneous.
              Chambers also knew that he was returned to regular duty
              after his brief hospitalizations. Thus, in 1970, he had no
              basis for concluding the Army erred in finding him fit for
              duty and hence suitable for discharge. The Real
              exception does not apply.

417 F.3d at 1226-27. The government nonetheless attempts to analogize the facts
in this case to cases which pre-date Chambers and its precedential formulation of
the Real exception to the general accrual rule for disability retirement claims.
Def.' s Mot. at 16-18. The court finds these cases to be inapposite because the
crucial interpretation of the Real exception provided by Chambers did not yet
exist. 5

       Since Chambers issued in 2005, this court has been reluctant to apply the
Real exception when a service-member was found to be fit at the time of discharge
and that service-member's medical records were inconclusive as to permanent
disability. See, e.g., Colon v. United States, 71 Fed. Cl. 473, 482 (2006) (holding
that "Mr. Colon possessed insufficient knowledge that he suffered from a
disability that made him eligible for disability retirement when he was discharged
in 1975" (citing Chambers, 417 F.3d at 1226-27)); Van Allen v. United States, 70
Fed. Cl. 57, 63 (2006) (stating that "on the record before the court it cannot be
concluded that, upon his separation, plaintiff possessed the level of knowledge
required to cause a claim for disability retirement pay to accrue at that point,
absent Board action or refusal to act"). Following Chambers, Colon and Van
Allen, the court concludes that the Real exception does not apply here and that Mr.

       5
        /   To the extent that defendant might argue that earlier precedent provides different
guidance than the analysis of the Real exception presented in Chambers, the court notes that the
Federal Circuit in Chambers considered two of the "analogous" cases relied upon by defendant in
its motion. Chambers, 417 F.3d at 1225-26 (citing Miller v. United States, 361 F.2d 245 (Ct. Cl.
1966); Huffaker v. United States, 2 Cl. Ct. 662 (1983)). Following Chambers, this court must
reject defendant's overbroad view of the Real exception to the general rule for the accrual of
disability retirement claims.

                                               9
Johnson's disability retirement claim first accrued in October 2014 when the
ABCMR denied his claim and notified Mr. Johnson of the board's decision. 6
Because his claim accrued in October 2014 and his complaint before this court
was filed in December 2014, Mr. Johnson's disability retirement claim is not
barred by 28 U.S.C. § 2501.

                                      CONCLUSION

       Plaintiffs wrongful discharge claim is barred by this court's statute of
limitations. Plaintiffs disability retirement claim survives defendant's
jurisdictional challenge. Mr. Johnson's disability retirement claim appears to be
amenable to resolution on cross-motions for judgment on the administrative
record. 7 For the foregoing reasons, it is hereby ORDERED that:

       (1)     Defendant's Motion to Dismiss, filed April 24, 2015, is GRANTED
               in part as to

               (a)    Plaintiffs wrongful discharge claim, which is DISMISSED
                      without prejudice for lack of subject matter jurisdiction;



       6
           Defendant notes Mr. Johnson's mention of "service connected injuries that claim
           /

limited use of left arm" in a communication with the Army Discharge Review Board in 2002 and
appears to suggest that this comment signals an alternative accrual date for any disability
retirement claim. Def.'s Mot. at 18 (citing Def.'s App. at 73). The Federal Circuit in Chambers,
however, expressly excluded post-discharge events from the Real exception to the general
accrual rule. See Chambers, 417 F.3d at 1226 ("Real did not fashion a rule, as the government
suggests, that a service member's claim accrues when he learns of his disabling condition,
whether before or after discharge .... There can be no waiver of board review absent an
opportunity for such review, as at discharge. Simply put, after discharge, a veteran has nothing
to waive.").
       7
        /  The government should include any motion to dismiss pursuant to RCFC 12(b)(6) in a
combined brief along with its motion for judgment on the administrative record. Thus, the
parties will be expected to file the following sequence of briefs: (1) defendant's motion for
judgment on the administrative record, including any motion to dismiss pursuant to RCFC
12(b)(6); (2) plaintiffs cross-motion for judgment on the administrative record, including
plaintiffs response to defendant's motion(s); (3) defendant's response/reply brief; and, (4)
plaintiffs reply brief.

                                               10
      and DENIED in part as to

      (b)   Plaintiff's disability retirement claim;

(2)   Defendant is directed to FILE an Administrative Record
      pursuant to RCFC 52.1, as well as the government's Motion
      for Judgment on the Administrative Record, on or before
      October 20, 2015; and

(3)   Subsequent briefing on the administrative record shall follow
      pursuant to the rules of this court.




                                  11
