           In the United States Court of Federal Claims
                                          No. 20-520C
                                    (Filed: August 25, 2020)

************************************ *
LEWIS B. JONES,                      *
                                     *
             Plaintiff,              *
                                                       Military Disability Retirement Pay Claim,
                                     *
                                                       10 U.S.C. § 1201 (2018); Statute of
      v.                             *
                                                       Limitations, 28 U.S.C. § 2501 (2018);
                                     *
                                                       RCFC 12(b)(1); Informal Physical
THE UNITED STATES,                   *
                                                       Evaluation Board; Claim Accrued at Time
                                     *
                                                       of Discharge from the Military
             Defendant.              *
************************************ *


Lewis B. Jones, Kansas City, MO, pro se.

James W. Poirier, United States Department of Justice, Washington, DC, for defendant.

                                    OPINION AND ORDER

SWEENEY, Chief Judge

        Plaintiff Lewis B. Jones, proceeding pro se, was separated from the United States Air
Force (“Air Force”) with disability severance pay in 1988 after honorably serving his country for
approximately eight years. He contends that the Air Force should have retired him for disability
reasons instead and seeks disability retirement pay and benefits dating back to his discharge date.
Defendant moves to dismiss Mr. Jones’s complaint as barred by this court’s statute of
limitations. For the reasons set forth below, the court grants defendant’s motion and dismisses
the amended complaint for lack of jurisdiction.

                                      I. BACKGROUND

        Mr. Jones entered active duty service in the Air Force on January 29, 1981. 1 While
serving in Germany in 1982, he was struck in the eye by the door of an armored personnel
carrier. As his service continued, the eye injury caused a number of sequelae, including intense
headaches. Mr. Jones struggled to find relief from the pain through a variety of prescribed
medications and also through alcohol use. In 1986, he had a consultation for alcohol abuse. He

       1
          The court derives all background information from plaintiff’s amended complaint that
includes a number of supporting documents. Page references are provided by the court’s
electronic filing system.
eventually changed jobs from security policeman to recreation supervisor and was serving in the
Philippines when his health problems led to an evaluation of his fitness for continued duty.

       The primary contemporaneous documents supplied by Mr. Jones that address his medical
evaluation in late 1988 include: (1) a “Narrative Summary (Clinical Resume)” of consultations
with specialists in neurology, psychiatry, psychology, and ophthalmology at a medical center at
Travis Air Force Base in California, dated October 31, 1988; (2) a Medical Evaluation Board
(“MEB”) report dated November 18, 1988; (3) two statements from Mr. Jones responding to the
MEB report, dated November 22, 1988; and (4) a report from an Informal Physical Evaluation
Board (“IPEB”), dated December 6, 1988, which was convened upon the recommendation of the
MEB. 2 Am. Compl. 24-29. The IPEB recommended discharge with severance pay based on a
10% disability rating for “Post traumatic pain syndrome manifest[ing] as headaches.” Id. at 26.

      After Mr. Jones agreed with the IPEB’s recommendation he was honorably discharged on
December 29, 1988, and received an $18,000 severance payment, less taxes. His discharge was
amended in 1989 to reflect the fact that his injury was combat-related.

        Mr. Jones alleges that a number of his health conditions can be traced to his eye injury
and that these related problems should have been discerned at the time of his separation.
Specifically, he contends: “[Traumatic Brain Injury (“TBI”)] occurred June 8, 1982 and after six
years of TBI deteriorations and its mental disorders effects, the Plaintiff was discharged
December 29, 1988 after experiencing subsequent psychiatric illnesses such as post-traumatic
stress disorder [(“PTSD”)] manifested as fear of doors phobia, anxiety, depression, alcohol and
narcotics disorder, cognitive deficits and sleeping problems.” Id. at 9. Although no precise
chronology of Mr. Jones’s health problems is before the court, the Department of Veterans
Affairs (“VA”) record included with the complaint shows that Mr. Jones was repeatedly
evaluated by the VA over the last fifteen years, with various disability ratings or denials of
disability claims provided in 2006, 2009, 2013, 2015, 2017, and 2018. Effective December 8,
2017, the VA increased Mr. Jones’s rating to 100% disabled. This disability rating by the VA is
based on previous VA disability ratings that slowly grew from a 10% disability rating at the time
of discharge, attributed to migraine headaches, to a 50% disability rating as of 2005, also
attributed to headaches, and higher ratings starting in 2012 based on a combination of conditions
such as headaches, PTSD, TBI, and a number of other limitations either physical or mental in
nature.

        Once Mr. Jones received the 100% disability rating from the VA, he petitioned the Air
Force Board for Correction of Military Records (“AFBCMR”) for changes to his record that
would entitle him to a disability retirement dating back to 1988. His petition is dated February

       2
         Generally speaking, an MEB evaluates whether a service member meets retention
standards and, if not, refers the service member to an IPEB or formal Physical Evaluation Board
(“PEB”). Chambers v. United States, 417 F.3d 1218, 1225 & n.2 (Fed. Cir. 2005). The IPEB or
PEB then reviews the service member’s fitness for duty and any entitlement to a disability
retirement. Id.


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26, 2018. As part of the AFBCMR proceedings, he received memoranda indicating the Air
Force’s disagreement with his petition; he later amended his claim on October 16, 2019. Mr.
Jones’s request for correction of his military records to show that he should be paid disability
retirement benefits was denied by the AFBCMR on or after January 7, 2020.

        Mr. Jones now seeks review of the AFBCMR’s decision. His original complaint was
filed on April 23, 2020, followed by an amended complaint filed on July 1, 2020. Defendant
filed a motion to dismiss pursuant to Rule 12(b)(1) of the Rules of the United States Court of
Federal Claims (“RCFC”), alleging that the court lacks jurisdiction to entertain Mr. Jones’s claim
because it is barred by this court’s six-year statute of limitations, 28 U.S.C. § 2501 (2018).
Plaintiff responded to the motion with a document titled “Motion to Strike Defense’s Motion,”
which was docketed as plaintiff’s response brief. Once defendant filed its reply brief, the motion
to dismiss was ripe and the court deemed oral argument unnecessary.

                                        II. DISCUSSION

                                     A. Standard of Review

        When considering whether to dismiss a complaint for lack of jurisdiction pursuant to
RCFC 12(b)(1), the court assumes that the allegations in the complaint are true and construes
those allegations in the plaintiff’s favor. Trusted Integration, Inc. v. United States, 659 F.3d
1159, 1163 (Fed. Cir. 2011). However, plaintiffs proceeding pro se are not excused from
meeting basic jurisdictional requirements, Henke v. United States, 60 F.3d 795, 799 (Fed. Cir.
1995), even though the court holds their complaints to “less stringent standards than formal
pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In other words, a
plaintiff proceeding pro se must prove, by a preponderance of the evidence, that the court
possesses jurisdiction. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936);
Trusted Integration, 659 F.3d at 1163. If the court finds that it lacks subject matter jurisdiction
over a claim, RCFC 12(h)(3) requires the court to dismiss that claim.

                                         B. Jurisdiction

        Whether the court has subject matter jurisdiction to decide the merits of a case is a
threshold matter. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998).
“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to
declare the law, and when it ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1868). The parties or the court sua sponte may challenge the existence of subject matter
jurisdiction at any time. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006).

        The ability of the United States Court of Federal Claims (“Court of Federal Claims”) to
entertain suits against the United States is limited. “The United States, as sovereign, is immune
from suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584, 586 (1941).
The waiver of immunity “cannot be implied but must be unequivocally expressed.” United
States v. King, 395 U.S. 1, 4 (1969).

                                                -3-
        The Tucker Act, the principal statute governing the jurisdiction of this court, waives
sovereign immunity for claims against the United States that are founded upon the United States
Constitution, a federal statute or regulation, or an express or implied contract with the United
States. 28 U.S.C. § 1491(a)(1). However, the Tucker Act is merely a jurisdictional statute and
“does not create any substantive right enforceable against the United States for money damages.”
United States v. Testan, 424 U.S. 392, 398 (1976). Instead, the substantive right must appear in
another source of law, such as a “money-mandating constitutional provision, statute or regulation
that has been violated, or an express or implied contract with the United States.” Loveladies
Harbor, Inc. v. United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (en banc). Further, to fall
within the jurisdiction of the Court of Federal Claims, any claim against the United States filed
in the court must be “filed within six years after such claim first accrues.” 28 U.S.C. § 2501; see
also John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-35 (2008) (providing that
the limitations period set forth in 28 U.S.C. § 2501 is an “absolute” limit on the ability of the
Court of Federal Claims to reach the merits of a claim).

       In his complaint, Mr. Jones claims entitlement to disability retirement pay and benefits
pursuant to 10 U.S.C. § 1201 (2018). There is no dispute that 10 U.S.C. § 1201 is a money-
mandating statute. See Fisher v. United States, 402 F.3d 1167, 1174-75 (Fed. Cir. 2005) (panel
portion). Although Mr. Jones also references a variety of other authorities, his citation to 10
U.S.C. § 1201 is sufficient to establish this court’s jurisdiction over his claim for disability
retirement pay and benefits if that claim is not time-barred.

   C. Plaintiff’s Claim for Disability Retirement Pay and Benefits Is Barred by the Statute
                                         of Limitations

       “A cause of action cognizable in a Tucker Act suit accrues as soon as all events have
occurred that are necessary to enable the plaintiff to bring suit, i.e., when ‘all events have
occurred to fix the Government’s alleged liability, entitling the claimant to demand payment and
sue here for his money.’” Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en
banc) (quoting Nager Elec. Co. v. United States, 368 F.2d 847, 851 (Ct. Cl. 1966)). To
determine whether Mr. Jones’s claim was filed “within six years after such claim first accrue[d],”
28 U.S.C. § 2501, this court is guided by well-established precedent on the topic of the accrual of
claims for military disability retirement pay and benefits.

        The United States Court of Appeals for the Federal Circuit has succinctly summarized the
rule for determining when a claim for disability retirement pay and benefits accrues:

                 The generally accepted rule is that claims of entitlement to disability
       retirement pay do not accrue until the appropriate board either finally denies such
       a claim or refuses to hear it. The decision by the first statutorily authorized board
       which hears or refuses to hear the claim is the triggering event. If at the time of
       discharge an appropriate board was requested by the service member and the
       request was refused or if the board heard the service member’s claim but denied
       it, the limitations period begins to run upon discharge. A subsequent petition to

                                                -4-
       the corrections board does not toll the running of the limitations period; nor does a
       new claim accrue upon denial of the petition by the corrections board.

Real v. United States, 906 F.2d 1557, 1560 (Fed. Cir. 1990) (citing Friedman v. United States,
310 F.2d 381, 390, 396-98 (Ct. Cl. 1962)); accord Chambers, 417 F.3d at 1221, 1224-25, 1227;
Martinez, 333 F.3d at 1311-15. Statutorily authorized military boards whose decisions are
sufficient to trigger the running of the six-year limitations period include IPEBs and PEBs.
Chambers, 417 F.3d at 1225 & n.2; Schmidt v. United States, 89 Fed. Cl. 111, 120 (2009) (“An
‘informal’ [Central Physical Evaluation Board] decision is sufficient to start the running of the
statute of limitations.”).

        In this case, an IPEB was convened to consider Mr. Jones’s fitness for duty, and it
ultimately determined—in December 1988—that Mr. Jones should be separated, and not retired,
due to his disabling trauma manifesting as headaches. Thus, Mr. Jones’s claim for disability
retirement pay and benefits accrued on the date of his discharge—December 29, 1988. See, e.g.,
Garcia-Gines v. United States, 131 Fed. Cl. 689, 701 (2017) (holding that the decision of an
IPEB triggered the accrual of a disability retirement claim at the time the service member was
discharged, because the service member accepted the IPEB’s decision and was discharged with
severance pay instead of receiving a disability retirement). This accrual date, moreover, is not
affected by Mr. Jones’s subsequent application to the AFBCMR in 2018 for disability retirement
pay and benefits or by the AFBCMR’s denial or rejection of that application because that action
does not toll the statute of limitations. E.g., Real, 906 F.2d at 1560. In short, because Mr. Jones
did not file suit in this court within six years of his separation from the Air Force in 1988, but
instead filed suit more than thirty years later, his claim for disability retirement pay and benefits
is barred by 28 U.S.C. § 2501.

    D. There Are No Facts or Arguments that Overcome the Statute of Limitations Bar

        Because Mr. Jones is proceeding pro se and is battling a number of serious health
conditions, the court examined his amended complaint and response brief thoroughly in an
attempt to identify any relevant facts or legal theories that might overcome the statute of
limitations that bars his suit. Only two areas of inquiry were suggested by this review, and the
parties have focused their arguments in these two areas. 3 First, the court considers whether Mr.
Jones’s disabling conditions were essentially unknowable at the time of his discharge so that the
accrual date of his claim was suspended until he learned more about his conditions. Second, the
court discusses the policy documents issued by the Air Force or some other authority within the

       3
           The court also considered whether statutory tolling, pursuant to 28 U.S.C. § 2501 and
its “legal disability” provision, could assist Mr. Jones. No reasonable construction of the
amended complaint and Mr. Jones’s response brief could support statutory tolling under this
provision. His claims for VA benefits, for example, which were presented to the VA as early as
2006 and consistently through 2018, show that his capacity for “transacting business” was not
impaired to the extent and for the number of years that could establish statutory tolling due to
legal disability. Goewey v. United States, 612 F.2d 539, 544 (Ct. Cl. 1979).


                                                 -5-
United States Department of Defense (“Defense Department”) that, according to Mr. Jones,
should govern the question of whether his claim is timely. Unfortunately for Mr. Jones, neither
of these areas of inquiry permits the court to consider his time-barred claim.

                E. The Accrual Suspension Rule Does Not Apply in This Case

        Claims against the United States are subject to the doctrine of accrual suspension, which
directs “that the accrual of a claim against the United States is suspended, for purposes of 28
U.S.C. § 2501, until the claimant knew or should have known that the claim existed.” Martinez,
333 F.3d at 1319. The accrual suspension rule, however, is “strictly and narrowly applied,”
Welcker v. United States, 752 F.2d 1577, 1580 (Fed. Cir. 1985), and “it is not necessary that the
plaintiff obtain a complete understanding of all the facts before the tolling ceases and the statute
begins to run,” Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir.
1988) (citing Japanese War Notes Claimants Ass’n of the Phil., Inc. v. United States, 373 F.2d
356, 359 (Ct. Cl. 1967)). To take advantage of the accrual suspension rule for his disability
retirement claim, Mr. Jones must show that his “injury was ‘inherently unknowable’ at the
accrual date.” 4 Japanese War Notes Claimants Ass’n, 373 F.2d at 359 (quoting Urie v.
Thompson, 337 U.S. 163, 169 (1949)). The facts of this case do not show that Mr. Jones’s
disabling health problems were inherently unknowable in 1988.

        The amended complaint establishes a record of Mr. Jones’s knowledge of his various
health conditions in the months leading up to his discharge. The contemporaneous documents
provided by Mr. Jones show that he received neurologic, psychiatric, and psychological
consultations in 1988; that his headaches were increasing in frequency and were incapacitating;
that he felt psychologically deformed; that he was impatient, irritable, and had no tolerance for
stress or anxiety; that he had been prescribed a number of pain-killers but these were largely
ineffective; and that he sometimes used alcohol for pain relief. These documents also indicate
that the Air Force medical staff believed there was a psychological component to his health
problems but did not feel he suffered from a psychiatric disorder that should be treated with
narcotics. In addition, Mr. Jones told the Air Force in 1988 that he believed his injury, which
required that he avoid stressful situations, would hinder civilian employment after he left the Air
Force.

        In short, the record before the court reflects that while Mr. Jones may not have had a full
understanding of all of his health problems in 1988, he was aware of the evaluation of those
health issues by the MEB and the IPEB. He was also aware that his serious health problems

       4
          The other type of accrual suspension scenario is where the facts of the claim were
concealed by the defendant. Japanese War Notes Claimants Ass’n, 373 F.2d at 359. That
scenario is not present here. The MEB and IPEB proceedings, rather than concealing relevant
facts, confronted Mr. Jones with the topic of disabling health conditions. See, e.g., Joppy v.
United States, 123 Fed. Cl. 701, 706 (2015) (finding that claim accrual should not be suspended
where the service member knew of the facts that would support his claim at the time of
discharge), aff’d, 646 F. App’x 998 (Fed. Cir. 2016).


                                                 -6-
were deemed to be only 10% disabling in 1988, which determination was insufficient for the Air
Force to provide him with disability retirement pay and benefits. These facts establish that Mr.
Jones’s disability retirement claim was not inherently unknowable in 1988 and that the accrual
suspension rule does not apply in this case. See, e.g., Malcolm v. United States, No. 16-545C,
2017 WL 105946, at *5 (Fed. Cl. Jan. 11, 2017) (finding that the accrual suspension rule could
not apply where the service member “knew of his impaired mental condition and its effects on
his behavior at the time of his discharge”), aff’d, 690 F. App’x 687 (Fed. Cir. 2017); Dubsky v.
United States, 98 Fed. Cl. 703, 709 (2011) (citing Young v. United States, 529 F.3d 1380, 1385
(Fed. Cir. 2008); Catawba Indian Tribe v. United States, 982 F.2d 1564, 1572 (Fed. Cir. 1993))
(declining to apply the accrual suspension rule because, at the time of his discharge, the plaintiff
“possessed the factual information required to bring his claim in this Court, even if he lacked the
awareness of his legal right to do so”).

        In his response brief, Mr. Jones argues that the health conditions that underly his 100%
disability rating from the VA are “newly discovered with corrected diagnosis,” and appears to
suggest that the IPEB’s discharge decision in 1988 was founded on either a failure to uncover the
symptoms of his TBI, PTSD, and other mental health problems, or a misdiagnosis of those health
problems. Pl.’s Resp. 2. For the accrual suspension rule to be applied by this court, however, it
is not enough to show an error on the part of an IPEB. The service member must show, instead,
that his disabling health problems were unknowable at the time of discharge. See, e.g., Young,
529 F.3d at 1384-85 (agreeing with the trial court that accrual of a military pay claim should not
be suspended where the service member’s medical condition was not unknowable before his
discharge, notwithstanding the fact that examinations by the VA in later years provided more
information about his condition). In this case, the record shows that Mr. Jones recognized the
disabling nature of his health problems in 1988; thus, his claim accrued in 1988 when he was
discharged with severance pay rather than with disability retirement pay and benefits.

     F. Defense Department Policies Do Not Waive This Court’s Statute of Limitations

        In addition to invoking accrual suspension principles to avoid a statute-of-limitations
dismissal, Mr. Jones argues that Defense Department policies render his claim timely. Mr. Jones
references three documents disseminated by the Defense Department in his amended complaint.
The first is Inspector General Complaints Resolution, Air Force Instruction 90-301 (Dec. 28,
2018). Am. Compl. 41. The second is Clarifying Guidance to Military Discharge Review
Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans
for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual
Harassment, Office of the Under Secretary of Defense (Aug. 25, 2017), which addresses PTSD
and TBI as conditions warranting liberal consideration of the veteran’s evidence in such
proceedings. Am. Compl. 36-40. The third is Consideration of Discharge Upgrade Requests
Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records
(BCMRs/BCNR) by Veterans Claiming Post Traumatic Stress Disorder (PTSD) or Traumatic
Brain Injury (TBI), Principal Deputy Under Secretary of Defense (Feb. 24, 2016), which
instructs boards for correction of military records to waive statutes of limitation in appropriate
cases. Am. Compl. at 8.


                                                -7-
        None of these statements of Defense Department policies and instructions waives or
otherwise affects this court’s statute of limitations. See, e.g., John R. Sand & Gravel Co., 552
U.S. at 133-35 (holding that the government may not waive the six-year limitations period);
Martinez, 333 F.3d at 1312-13 (explaining that even if a service branch provides an ancillary
method for a service member to obtain relief through a corrections board, the service member’s
monetary claim before this court, as a general rule, retains the claim’s original accrual date and is
subject to this court’s six-year statute of limitations (citing Hurick v. Lehman, 782 F.2d 984, 984
(Fed. Cir. 1986))). The court is bound by these precedential decisions issued by the United
States Supreme Court and the United States Court of Appeals for the Federal Circuit, just as it is
bound by 28 U.S.C. § 2501. Because Mr. Jones’s disability retirement claim is time-barred, it
must be dismissed.

                                       III. CONCLUSION

        Mr. Jones asks this court to review what he believes were errors in his discharge in 1988
and errors in the AFBCMR’s decision rendered in 2020. Although it has great respect for Mr.
Jones’s service to the United States and sympathy for Mr. Jones’s health situation, the court is
powerless to reach the merits of Mr. Jones’s claim because that claim is barred by the statute of
limitations.

       Consequently, the court GRANTS defendant’s motion and DISMISSES plaintiff’s
amended complaint for lack of jurisdiction. No costs. The clerk is directed to enter judgment
accordingly.

       IT IS SO ORDERED.



                                                       MARGARET M. SWEENEY
                                                       Chief Judge




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