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                                                   No. 14-1236 C
                                              (Filed March 10,2016)               FILED
                                                                                MAR   I 0 20t6
 ,. {(   ,1.   + * {. *    ,1.   1. 1. * **,}                                   U.S. COURT OF
 ANTONIO JOHNSON,                                                              FEDERAL CLAIMS


                          Pro Se Plaintffi                 Disability Retirement Benefits; 10
                                                           U.S.C. $ l20I (2012); No Error in
                                                           Decision of Military Records
                                                           Correction Board.
 THE UNITED STATES,

                            Defendant.
  ,i<   ,* ,i< * * ,k ,t ,k       ,1.   ,k t< ,& *


         Antonio Johnson, LaGrange, KY, pro se.

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




                                                     OPINION


Bush, Senior Judge.

       This military disability retirement benefits case is before the court on cross-
motions for judgment on the administrative record filed pursuant to Rule 52.1(c)
of the Rules of the United States Court of Federal Claims (RCFC). The parties'
motions have been fully briefed. For the reasons stated below, defendant's motion
is granted and plaintiff s cross-motion is denied.
                                       BACKGROUND

I.     Overview of Complaint

       The pro se complaint filed in this case focuses on Mr. Johnson's involuntary
discharge from the United States Army in 1988 and the circumstances surrounding
the termination of Mr. Johnson's service in the Army. In his military disability
retirement claim, plaintiffasserts that he should have been separated from the
service for medical reasons, not disciplinary reasons.r The reliefrequested for this
claim is variously stated in the complaint but may be succinctly summarized as a
demand for "physical disability retirement with pay as a sergeant E-5." Compl. at



II.    Factual History

      Mr. Johnson served in the Army from January 29, 1980 until his discharge
on December 13, 1988. Administrative Record (AR) at 402. His certificate of
discharge contained a notation of "Misconduct - Commission of a Serious
Offense." Id. The only issue before the court is whether the Army Board for
Correction of Military Records (ABCMR or Board) erred by not converting Mr.
Johnson's involuntary discharge for disciplinary reasons into a disability
retirement.

UI.    Procedural History

       Although Mr. Johnson contested the nature of his discharge for a number of
years, it was only in 2013 that he submitted a disability retirement claim to the
ABCMR.2 In August and September of 201 3 plaintiff sent letters to the ABCMR
broaching the subject of his entitlement to disability retirement benefits, followed


        1/ In a prior opinion, the court dismissed all claims in plaintiff s complaint, except his
military disability retirement claim, for lack of subject matter jurisdiction. Johnson v. United
States, 123 Fed. Cl. I 74 (2015). Although plaintiff s briefs touch upon claims that were
dismissed for lack ofjurisdiction, the court's focus here is solely on his disability retirement
claim.
       2/ In a previous communication with the Army, Mr. Johnson had inquired         as to   how one
would proceed with a "service connected iniuries" claim. AR at 205.
by a formal appiication for the correction of his military records in this regard filed
on November 14,2013. AR Tabs 9-11. These initial submissions regarding
plaintiff s claim for disability retirement benefits were supplemented by further
communications from plaintiff in August of 2014. Id. Tabs 3-4. The ABCMR
denied plaintiff s disability retirement claim in October 2014 and let stand Mr.
Johnson's separation for disciplinary reasons and his general discharge "under
honorable conditions." Id. l-11,402. Plaintiff s sole remaining claim in this suit,
filed on December 24,2014, is that this court should strike down the ABCMR's
denial of his disability retirement claim because it is arbitrary and capricious.
Comol. at 3: Pl.'s Mot. at 5.

                                   DISCUSSION

I.    Standards ofReview

      A.     Pro Se Litigants

       The court acknowledges that Mr. Johnson is proceeding pro se and is
therefore "not expected to frame issues with the precision of a common law
pleading." Roche v. U.S. 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,404U.S.5l9,520 (1972)(requiringthatallegationscontainedinaprose
complaint be held to "less stringent standards than formal pleadings drafted by
lawyers"). Accordingly, the court has thoroughiy examined the complaint and
plaintiff s briefs and has attempted to discern all of plaintiff s legal arguments.

      B.     RCFC 52.I

      RCFC 52.1 provides for judgment on the administrative record. To review
a motion under RCFC 52.1, the court asks whether, given all the disputed and
undisputed facts, a party has met its burden ofproofbased on the evidence in the
record. Bannum, Inc. v. United States,404 F.3d 1346, 1356 (Fed. Cir. 2005). The
court must make fact findings where necessary . Id. The resolution of cross-
motions filed under RCFC 52.I is akin to an expedited trial on the paper record.
Id.

      C.     Decisions of Correction Boards
        The court does not review the issue before a board for correction of military
records de novo; rather, this court "will not disturb the decision of the corrections
board unless it is arbitrary, capricious, contrary to law, or unsupported by
substantial evidence." Chambers v. United States, 4 1 7 F.3d l2l8, 1227 (Fed. Cir.
2005) (citing Haselrigv. Uniled States,333 F.3d 1354, 1355 (Fed. Cir. 2003)).
Plaintiff s burden is to show by "'cogent and clearly convincing evidence"'that
the decision of the board fails this standard. Wronke v. Marsh,787 F .2d 1569,
 i 576 (Fed. Cir. 1986) (quoting Dorl v. United States,200 Ct. Cl. 626,633 (1973)).
Plaintiff must also overcome the presumption of regularity which attaches to the
actions of the ABCMR. See Richey v. United States, 322 F .3d 1317, 1326 (F ed.
Cir. 2003) (noting "the presumption of regularity that attaches to all administrative
decisions" of the United States (citing Impresa Construzioni Geom. Domenico
Garufi v. United States,238 F.3d 1324,1338 (Fed. Cir. 2001))).

II.    Analysis

       The court's task is to determine whether the ABCMR's decision not to
correct Mr. Johnson's military records fails the standard of review described
supra. lt is important to distinguish this task from ade novo review ofall ofthe
evidence in the administrative record, as well as any additional documentary
evidence provided by plaintiff, in order to determine whether Mr. Johnson was, in
fact, disabled and eligible for military disability retirement benefits in 1988
pursuant to 10 U.S.C. $ l20i (20i2).t E,g., de Cicco v. United States,677 F.2d
66, 70 (Ct. Cl. 1982) (citations omitted). The court tums first to the retirement
benefits claim presented by Mr. Johnson to the ABCMR.

       A.      Claim of Entitlement to Disabilifv Retirement Benefits

       Mr. Johnson's first communication to the ABCMR regarding disability
retirement benefits stated that at the time of his discharge he "was never
inform[ed] [he] could file for disability retirement with pay [for] all [his] diseases
and injuries incurred in the line of duty" while in the Army. AR at 114. Plaintiff               s
second letter stated in relevant part that



       3/ The cou( has nevertheless carefully
                                                considered all ofthe documents included within
the administrative record and the exhibits attached to plaintiff s briefs.
               I'm seeking for relief a . . . medical disability retirement
               pay discharge with a[n] over all combinefd] rating of 70
               to 90 %l;l that I be granted medical disability retirement
               with the appropriate rank[; and,] that my medical
               disability retirement pay startl] on the date ofthis letter."

Id. at | 12. A few weeks later Mr. Johnson submitted his formal application for
relief on form DD 149 ("Application for Correction of Military Record"), dated
November 14,2013, to which he attached a lengthy narrative and a number of
exhibits. Id. at 42-109.

       Thirty-eight ailments are listed in Mr. Johnson's ABCMR application,
including lower back pain, neck pain and strain, pleuritic chest pain, a finger scar,
wheezing, hearing loss, lung scarring, fatigue, headaches, weakness, vertigo,
shoulder pain, lower back muscle spasms, spine tenderness, upper lumbar region
pain, a shoulder abrasion, head injury, chronic obstructive pulmonary disease,
multifocal air trapping, pleuristic lung disease, pneumonitis disease, airway
obstructive disease, coughing up blood, granulomatous disease, sarcoid disease,
coccoides disease, blastomycosis disease, atelectasis disease, embolus disease,
enlarged right hilar node, dizziness, shortness of breath, chronic interstitial lung
disease, and lower back tendemess. AR at 48-50. Mr. Johnson assigned disabling
percentage ratings to these ailments and estimated his disabling conditions on
December 13, 1988 to qualiff him as 100 % disabled.a Id. at 53,58-59. Mr.
Johnson also claimed that the diseases and injuries he received during active duty
service were and are permanently disabling. Id. at 54.

       On August 1,2014, Mr. Johnson supplemented his disability retirement
benefits claim with a letter stating that his benefits should be calculated at the E-5
rank, not at the E-l rank he held at the time of his discharge. AR at 34. On
August 15,2014, plaintiff submitted a new form DD 149 with additional exhibit
pages. Id. at 12-32. This submission included another narrative to accompany his
claim, which stated that Mr. Johnson was injured during active duty and that he
continues to suffer from these iniuries todav. Id. at 77 .




        "/ In one letter to the Army sent on January 7,2014,Mr. Johnson stated that he believed
his disability rating to be 190 %. AR at 40.
      B.     ABCMR's Decision on Plaintiff s Retirement Benefits Claim

       The ABCMR considered whether Mr. Johnson's records should be
corected to show that he was "medically retired with disability" on December 13,
1988. AR at 3. Among the records considered by the ABCMR were medical
records in plaintiff s service file. Importantly, the following two factual findings
of the Board were based on this documentary evidence:

             On 14 April, 1988, [Mr. Johnson] completed a separation
             physical and was found to be qualified for separation.
             On 15 April 1988, [Mr. Johnson] completed a mental
             status evaluation and was found to be mentally
             responsible and to have the mental capacity to
             understand and participate in board proceedings.

Id. at 6-7 (formatting removed). The Board acknowledged that during his years of
service Mr. Johnson had received various medical evaluations, some of which had
resulted in either temporary or permanent limitations on activities due to health
problems. Id. at 5 (noting that in 1986 Mr. Johnson was evaluated as having a
permanent health condition affecting his lower extremities due to lower back
pain);7 (noting that in June 1988 Mr. Johnson was temporarily restricted in
physical activity due to chest or side pain). The Board did not view the evidence
before it, however, to show that any probable error or injustice had occuned in
Mr. Johnson's discharge.

      Instead, the Board determined that Mr. Johnson, at the time of his
separation, was correctly judged to be fit for duty and for separation:

            The applicant is not authorized a medical disability
            discharge or a medical disability retirement because he
            was considered medically and psychiatrically fit for
            military service and there is no evidence a medical
            condition contributed to the misconduct that preceded
            his discharge. Furthermore, he received a pre-separation
            medical evaluation that noted his mental status was
            within normal limits and he was medically qualified for
            separation. Additionally, there are no records to show he
             suffered from, was diagnosed with, or treated for an
             illness or injury that merited entry into fthe Physical
             Disability Evaluation Systeml.

AR at I 1. In other words, after considering the documentary evidence in Mr.
Johnson's service file, as well as the materials submitted by Mr. Johnson, the
Board found no effor in the Army's decision to discharge Mr. Johnson for
disciplinary reasons rather than to retire him for medical disability reasons. The
record of the Board's decision is dated October 7,2014; notice to Mr. Johnson of
the denial of his application for relief was dated October 15,2014.

      C.     This Court's Review of the ABCMR's Decision

      The court first considers whether the Board's October 7,2014 decision was
supportedbysubstantialevidence. Chambers,4l7F.3dat1227. Thiscourt'srole
is limited:

             (T)he traditional role ofthe court on review is to
             determine not whether the claimant was unfit for service
             at the time of his release but rather whether the finding
             of the Secretary . . . that the serviceman was fit was so
             arbitrary, capricious or unsupported by evidence as to be
             contrary to the applicable principles of law.

de Cicco,677 F.2d at 70 (alterations in original) (citations and internal quotations
omitted). Under this standard, the ABCMR's denial of Mr. Johnson,s claim
cannot be overtumed because that decision is supported by substantial evidence in
plaintiff s service record.

      Plaintiff   s service record shows that the
                                                Army's medical evaluation of Mr.
Johnson did not find him in 1988 tobe 30o/o disabled, the minimum disability
required under the statute for a medical disability retirement, 10 U.S.C.
S 1201(b)(3XB), and there is substantial evidence within that record to support the
ABCMR's decision to leave plaintiff s discharge unaltered. Not only did the
Army's physicai and mental examinations of Mr. Johnson in April 1988 find him
fit for separation, AR at640-43,706, but subsequent medical problems
experienced by Mr. Johnson in June 1988 merely produced temporary restrictions
on physical activities, not pernanent disability ratings based on an evaluation of
his ability to perform his job in the military. On this record, the tlpes of ailments
noted in Mr. Johnson's 1988 medical records are not grave enough to invalidate
the Army's determination that Mr. Johnson was fit for duty and for separation at
that time.

       The court also finds that the Board's decision was not contrary to law, and
was neither arbitrary nor capricious. Upon careful review, the court sees no error,
either procedural or logical, in the ABCMR's denial of Mr. Johnson's military
disability retirement claim. The Board examined the relevant evidence and
discussed the regulatory framework for evaluating a service member's health
problems which might merit a disability retirement. AR at 4-9, 11. The Board's
analysis of the evidence was rational. The Board also noted that among the
exhibits submitted by Mr. Johnson in 2013, in support of his claim, was a
document which appeared to be an altered version ofa document dated June 6,
1988 in his service record. Id. at7. The Board rationally excluded this document
as evidence of disability.s Under the standard of review applicable here, the
ABCMR decision was neither arbitrary nor capricious. nor was it contrarv to law.

       D.     Plaintiff s Arguments

        The court has thoroughly considered all ofplaintiffs substantive arguments
related to his disability retirement benefits claim. The court turns first to Mr.
Johnson's argument that the Army, in bad faith, altered his military records to
defeat his claim. Plaintiff suggests that the Army's record of his service is suspect
because certain of his credentials are missing and because the Army has
"fabricated" documents. Pl.'s Mot. at 2. Defendant counters that the
administrative record filed in this case contains no evidence of document
falsification by the govemment. Def.'s Reply at 5-6. The government's
arguments on this point are persuasive. Plaintiff s contention that the Army tried
to "erase" evidence of disability in Mr. Johnson's service record, Pl.'s Mot. at 2,
fails to overcome the presumption of regularity accorded the records provided to


       '/  The government notes that there are two examples of documents submitted by Mr.
Johnson to the ABCMR in 2013 which appear to have been altered to substantiate his claim for
disability benefits. Def.'s Mot. at 9 (comparing AR at 646 to id. aI72);17 n.14 (comparing AR
at 723 with id. at 73).
this court by the Army. E,g., Richey,322F.3d at 1326. The court cannot agree
with plaintiff that the records before the ABCMR and before this court contain an
inaccurate service file.

        Second, Mr. Johnson argues that his active duty medical records show that
he was disabled in 1988. Pl.'s Mot. at 3-4. The court does not ignore or downplay
the fact that Mr. Johnson had a number of medical interventions while he served in
the Army. The issue before the court, however, is whether such evidence of
medical treatment renders the Board's decision that Mr. Johnson was fit for duty
and separation in 1988 arbitrary or capricious. It does not. When a service
member experiences during active duty the initial and relatively mild symptoms of
an illness that may become in later years a more serious health condition, medical
treatment while in the service does not provide clearly convincing evidence of a
disability so as to overcome a denial of military disability retirement benefits. See,
e.g., Boraiko v. United States,146 Ct. Cl. 814, 819 (1959) (holding that because
"the nature and degree of the disease [at the time of discharge] must be considered
in order to determine eligibility for retirement for physical disability, . . . we
cannot say as a matter of law that the Air Force was arbitrary and capricious in
denying plaintiff s claim ffor disability retirement benefits]"). Thus, even if Mr.
Johnson now suffers from disabling conditions that began to affect him while he
was still in the Army, Mr. Johnson's service record does not contain clearly
convincing evidence that he suffered from a serious disabling condition in 1988.
Nor does the record show that plaintiff was unfit for duty or separation for
disciplinary reasons in 1988. Mr. Johnson's medical records from 1980-88 do not
persuade this court that the Board's denial of his disability retirement claim was in
erTor.

       Third, Mr. Johnson argues that he was eligible for disability retirement in
1988 because he was too sick at the time of his discharge to perform his regular
duties.6 Pl.'s Mot. at7. A plaintiff seeking military disability retirement benefits,
however, bears a substantial burden ofproofto overcome a finding that he was fit
for duty at the time of discharge:

              The issue before us is whether the Secretary's deciston


       6/ At his discharge hearing on November 3, 1988, Mr. Johnson testified that "I have
never stopped performing my duties since [separation proceedings were initiated]." AR at 334.
               that plaintiff was physically fit to perform duties
               commensurate with his rank and office at the time of his
               release from service was so arbitrary and capricious as to
               constitute a violation of his legislative mandate. In order
               to establish that the Secretary's action was so arbitrary
               and capricious, plaintiff must discharge a very
               substantial burden of proof.

de Cicco,,677 F.2d at 71 (quoting Johnston v. United States, 157 Ct. Cl. 474,478
(1962)). Ifthere is conflicting evidence ofthe service member's fitness for duty,
the court must affirm the denial of disability retirement benefits where there is
substantial evidence that supports the Board's decision and the Board's decision
has not been shown to be arbitrary or capricious. Id. at72. Here, the documentary
evidence of Mr. Johnson's medical treatment, physical examination and mental
examination provides substantial evidence that Mr. Johnson was fit for duty in
 1988 despite his health issues. Following precedent binding on this court, plaintiff
has not met his substantial burden of proof and the ABCMR's decision survives
review.

                                    CONCLUSION

      Plaintiff                       of his disability retirement claim has not
                  s challenge to the denial
shown that the ABCMR's decision was arbitrary, capricious, contrary to law, or
unsupported by substantial evidence. Accordingly, it is hereby ORDERED that:

      (I   )   Defendant's Motion for Judgment on the Administrative Record' filed
               October 20,2015, is GRANTED;

       (2)     Plaintiff  Cross-Motion for Judgment on the Administrative
                           s
               Record, filed November 17,2075, is DENIED;

       (3)     The Clerk's Office is directed to ENTER final judgment in favor   of
               defendant, DISMISSING the complaint with prejudice; and

       (4)     No costs.

                                                   L


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