             Wniteb $fates <!Court of jfeberal <!Claints
                                         No. 18-225C
                                   Filed: November 7, 2018



MONROE QUAILES, JR.,

              Plaintiff,

              v.

UNITED STATES OF AMERICA,

              Defendant.



                           ORDER DISMISSING COMPLAINT


HODGES, Senior Judge.


       Monroe Quail es Jr., a pro se plaintiff, seeks con-ections to his military record. He
challenges his 1979 military discharge from the United States Navy and a 1989 adverse
disability retirement determination by the Board of Corrections of Naval Records. The
Government moved to dismiss for lack of subject matter jurisdiction and for failure to state
a claim upon which relief can be granted. The bases for defendant's motions are that Mr.
Quailes' complaint is barred by the statute of limitations and res judicata. Plaintiff filed a
cross-motion for judgment on the administrative record.


       We grant the Government's motion to dismiss for lack of subject matter jurisdiction
because Mr. Quail es' claim is time barred. This court does not have jurisdiction over
plaintiffs complaint, so we do not address defendant's additional dispositive motion or Mr.
Quailes' motion for judgment on the administrative record.


                                     BACKGROUND


      Mr. Quailes served in the United States Army from 1969 until 1975; then he enlisted
in the Navy in 1976. Shortly after, the Navy court-martialed him for a period of


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unauthorized absence during which he pied guilty to grand larceny and breaking and
entering in a civilian court. During those proceedings, his counsel requested a medical and
psychiatric board evaluation. The Board noted that plaintiffs psychiatric history began
prior to his service and that he suffered from schizophrenia but concluded that he was
competent to participate in his defense.

       Based on this evaluation, the Navy withdrew the charges and referred him to a
medical board, which in 1979 diagnosed him with schizophrenia and recommended that
his case be referred for a disability determination. In exchange for waiving his right to
challenge the discharge, the Navy in 1979 gave him a "general discharge by reason of
misconduct" for his conviction during his military service, instead of an "other than
honorable" discharge.

       Eight years after, Mr. Quailes challenged his discharge before the Board of
Corrections of Naval Record alleging that his mental condition was incurred while in the
Navy and that the discharge was illegal. He maintained that he was entitled to disability
retirement with pay, including all lost time. The BCNR denied his petition in 1989 and
denied his application for reconsideration in 1991. He petitioned for reconsideration in
2012 and 2017, but both petitions were denied.


       Since the BCNR's initial decision, Ms. Quailes has filed three complaints before
this court. He first filed a complaint in 1991 before the Claims Court, which found that he
had failed to demonstrate that BCNR's determination was arbitrary, capricious, or
unsupported by substantial evidence. See Quailes v. United States, 25 Cl. Ct. 659, 664
(1992), aff'd, 979 F.2d 216 (Fed. Cir. 1992). He then filed a second complaint in 2012 once
more challenging the 1979 discharge and 1989 BCNR determination. This court dismissed
those claims as time barred. Quailes v. United States, 109 Fed. Cl. 651 (2013).

       Plaintiffs third and present complaint, styled as a motion for reconsideration,
essentially seeks a declaration that his discharge was illegal and that he should have been
acquitted of his conviction due to his mental condition. He maintains that he was diagnosed
with post-traumatic stress disorder in 2014 and that this diagnosis was inherently
unlmowable. He requests back pay, disability retirement benefits and correction to his
military record. The Government moved to dismiss, contending that his claim is barred by




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    the statute of limitations and the doctrine of res judicata. Ms. Quailes filed a cross-motion
    for judgment on the administrative record. 1


                                            DISCUSSION

           Mr. Quailes' claims regarding his 1979 military discharge and 1989 BCNR
    determination are time barred. This court's statute oflimitations is jurisdictional and claims
    barred by the statute of limitations must be dismissed for lack of subject matter jurisdiction
    under Rule 12(b)(l) of the Rules of the Court of Federal Claims. Edwards v. United States,
    92 Fed. Cl. 277, 282 (2010). Every claim of which this court has jurisdiction must be filed
    within six years after such claim first accrues. 28 U.S.C. § 2501.

            Back pay claims under the Military Pay Act, 37 U.S.C. § 204, accrue upon discharge
    from active duty. See Feliciano v. United States, 114 Fed. Cl. 584, 588 (2014) (citation
    omitted). Mr. Quailes' back pay claim accrued when he was discharged in 1979, and it
    expired six years later in 1985. Mr. Quailes' complaint was filed in 2018, clearly beyond
    the statutory period.

            Mr. Quailes' claim regarding the BCNR's 1989 determination is likewise time
    barred. Disability retirement claims generally accrue when an appropriate military board
    either finally denies the claim or refuses to hear it. See Chambers v. United States, 417 F .3 d
    1218, 1224 (Fed. Cir. 2005) (citation omitted). The determination by "the first statutorily
    authorized board that hears or refuses to hear the claim invokes the statutes of limitations."
    Id. (citation omitted) (distinguishing between claims for unlawful discharge and disability
    retirement pay). Mr. Quailes' claim accrued when the BCNR issued its decision in 1989
    and expired six years later in 1995; his claim is therefore time barred.

            The BCNR's decisions denying his petitions for reconsideration in 1991, 2012, and
    2017 do not affect the accrual of his claim. A relatively short or reasonable period of time
    is generally contemplated for reconsideration of an administrative decision. Van Allen v.
    United States, 70 Fed. Cl. 57, 63 (2006) (citation omitted). Nearly thirty years have passed
    since the BCNR's 1989 decision, a period too long to deprive the BCNR's decision of its
    finality. Cf Van Allen, 70 Fed. Cl. at 63-64 (finding that a period of four years was too
    long to deprive the administrative determination of finality).

           Plaintiff contends that his diagnosis of post-traumatic stress disorder in 2014 was
    inherently unknowable at the accrual date. This argument is equally unavailing to suspend

1
    Ms. Quailes' complaint and cross-motion are styled as motions for reconsideration and
    refer to Rule 59 of the RCFC. The Clerk of Court, however, has docketed his filings
    properly as a new complaint under case no. 18-225C.
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the limitations period. As the court's statute of limitations is jurisdictional, it cannot be
equitably tolled. FloorPro, Inc. V United States, 680 F.3d 1377, 1380-81 (Fed. Cir. 2012)
(citation omitted). Mr. Quailes' claim, moreover, does not satisfy the requirements of the
"accrual suspensions doctrine," which requires him to demonstrate that the Government
has concealed its acts such that he was unware of their existence or that his injury was
"inherently unknowable" at the accrual date. See Martinez v. United States, 333 F .3d 1295,
1319 (2003) (quoting Welcker v. United States, 752 F.2d 1577, 1580 (Fed. Cir. 1985)); see
also Young v. United States, 529 F.3d 1380, 1385 (Fed. Cir. 2008) (stating that it is
knowledge of the facts of the claim, not their legal consequences, that determines the
accrual date). There is no evidence of wrongful conduct by the Government and the record
reveals that Mr. Quailes was aware of his PTSD as early as 1982. Admin. R. at 483.
Plaintiff's PTSD therefore cannot suspend the limitations period. Ms. Quailes' claim for
disability retirement benefits was filed outside the statutory period and must be dismissed
as time barred.

       Plaintiff also asks that we correct his military record to show an honorable discharge
with a disability retirement rather than a general discharge for misconduct. This court may
grant non-monetary relief only if it is "an incident of and collateral to" an award of money
judgment. See Pellegrini v. United States, 103 Fed. Cl. 47, 53 (2012) (quoting 28 U.S.C. §
 149l(a)(2) (2006)). We must deny that request as well.


                                      CONCLUSION

       The Government's motion to dismiss plaintiffs complaint for lack of subject matter
jurisdiction is GRANTED. Defendant's res judicata claim and plaintiffs motion for
judgment on the administrative record are moot. The Clerk of Court will DISMISS Mr.
Quailes' complaint. No costs.


       IT IS SO ORDERED.




                                           1£~,,:.frv'-
                                           Senior Judge




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