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                                                                                     No. l5-959C
                                                                         (Filed October 27, 2016)

                                                                                                                       FILED
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                                                                                                  1.                  ccT 2 i   20t6
CAREY L. JOHNSON,                                                                                                    U.S. COURTOF
                                                                                                                    FEDERAL CLAIMS
                                                       Plaintiff,                                 *

                                        v.

THE UNITED STATES,

                                                       Defendant.

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                                                                             OPINION & ORDER


         In this action, Plaintiff Carey LeVonne Johnson, acling pro se, seeks to overtum a
decision by the Board of Corrections for Naval Records C'BCNR') denying plaintiff s
petition for correction of military records, medical retirement, and back pay. Defendant
United States ("the Govemment") moves to dismiss Plaintiff s complaint on grounds that
Plaintiff failed to bring his claim within the permissible time-frame, or in the altemative,
seeks judgment on the administrative record.l For the reasons set forth below, the
Government's motion to dismiss is hereby GRANTED.

          I.                      Background

          A. Military                         Service and Militar.y Board Reviews

         Plaintiff Carey L. Johnson is a veteran of the United States Marine Corps, who
served from June 1995 to December 1997. ARVoI II at 1 $ 12. On September 12, 1997,
the United States Navy convened a Medical Evaluation Board (MEB) and diagnosed
Plaintiff with scoliosis and "nonradicular back pain ofmechanical nature." 1d. aIlT-19.
The MEB referred Plaintiff s case to the Physical Examination Board (PEB). Id. at 17,
20. Thereafter, a flight surgeon performed a medical evaluation and concurred with the
MEB's diagnoses ofscoliosis and chronic back pain. Id. at34-35. The physician also

I The two-volume administrative record ("AR")
                                              filed under seal on March 22.2016 contains Plaintiffs
BCNR file ("AR Vol I") and Plaintiffs personnel file ("AR Vol II").




                                                                                                       ?El,q l,aDE 8000 1893 lbal,
indicated that Plaintiffs psychiatric clinical evaluation was "normal." Id. at34. On
November 10,1997, an informal PEB found Plaintiff unfit for duty with a 10% disability
rating, assigned for Plaintiffs back pain but not scoliosis. ARVollatl2$$8, 11. The
PEB recommended separation with severance pay. Id. at 12 $ 9. Plaintiff accepted the
frndings and waived all rights to a formal hearing. Id. at 14-15. On December 23, 1997,
Plaintiff was honorably discharged with severance pay. AR Vol II at 1. In the final two
months ofservice, Plaintiff received three nonjudicial punishments Q.,IPJs) and was
reduced two pay grades. AR Vol I at 4.

        On February 14,2014, sixteen years after his discharge, Plaintiff ftled an
application with the Board of Corrections for Naval Records (BCNR) alleging an
undiagnosed bipolar disorder while in service. AR Vol1 at 66-73 . In support, Plaintiff
presented a 2011 medical opinion stating that Plaintiff suffered from bipolar disorder
while in service and an April 2012 Department of Veterans Affairs (VA) Mental
Disorders Disability Benefits Questionnaire. 1d The BCNR denied Plaintiff s petition
on July 6, 2015, reasoning that the evidence was insufficient to conclude that the bipolar
disorder existed fourteen years earlier. Id. at54-56. OnJuly3l,20l5,Plaintiff
petitioned the BCNR to reconsider. Id. at 42-53. The BCNR solicited an advisory
opinion from the Director ofthe Secretary of the Navy Council ofReview Boards
(CORB), which was rendered on November I 8, 201 5. Id. at 9-22,23. The CORB agreed
with the BCNR's denial, finding insufficient evidence to support Plaintiffs assertion. 1d
ar9-22. On December 23,2015, Plaintiff flled a response, arguing that the BCNR should
disregard the CORB opinion. Id. at 4-6. The BCNR reviewed Plaintills case again on
January 7,2016, but similarly found the evidence insufficient and rejected Plaintiffs
request to disregard the CORB opinion. Id. at 1-3. The BCNR reasoned that fourteen
years was too distant in time to accurately diagnose bipolar disorder and Plaintiff s
successful complelion of undergraduate study in 2004 suggested that he was not suffering
from bipolar disorder when he was discharged in 1997. Id. at 1-2.

   B.   Present Action

        On August 31,2015, Plaintiff, acting pro se, filed his complaint in the Court of
Federal Claims. Plaintiffseeks to reopen and challenge his 1997 honorable discharge
from the U.S. Marine Corps based on a l0% disability for back pain, in order to obtain
full disability retirement based on service-connected bipolar disorder, back pay, and
correction of his records. Specifically, the Plaintiffasks the Court to: (l) conect his
discharge to retlect medical retirement based on bipolar disorder with a 100% disability
rating; (2) award full disability retirement benefits retroactive to discharge; (3) remove
the offenses and punishments from his record; (4) reinstate him to the rank ofLance
Corporal (E-3); and (5) award back pay associated with reinstatement. See Compl. 1.

         On May 12,2016, the Govemment filed a Motion to Dismiss or, Altematively,
For Judgment on the Administrative Record ("Def. Mot."). The Govemment moves to
dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(l) of the Rules of
the United States Court ofFederal Claims ("RCFC"), arguing the six-year statute of
limitations set forth in 28 U.S.C. $ 2501, has expired. Alternatively, the Govemment
argues thatit is entitled to judgment on the administrative record "because the board's
denial of Mr. Johnson's claims . . . is supported by substantial evidence." Def. Mot. at 2.

        On September 2, 2016, Plaintiff filed a Motion to Supplement the Record, and a
Motion to Expand Time. In his Motion to Supplement the Record, Plaintiff seeks to
introduce: (1) a Board of Veterans Appeals' decision dated March 9,2016, finding an in
service connection for his bipolar disorder; and (2) a Department of Veterans Affairs
notice dated August, 17,2016, reflecting Plaintiffs entitlement to a 100% disability
rating for his bipolar disorder, effective September 8, 2016. In his Motion to Expand
Time, Plaintiff requests the Court to reconsider an earlier ruling and to issue a timely
order regarding his Motion to Supplement the Record. On September 19, 2016, the
Govemment filed responses, opposing the Motion to Supplement the Record on grounds
of relevance, and opposing the Motion to Expand Time.

    II.       Standard of Review

     Under the Tucker Act, 28 U.S.C. $ 1491, the Court of Federal Claims has jurisdiction
to hear military pay claims. The Tucker Act, 28 U.S.C. $ i491, "confers jurisdiction
upon the Court ofFederal Claims over the specified categories ofactions brought against
the United States. . . ." Fisherv. UnitedStates,402F.3d1167,1l72 (Fed. Cir.2005)(en
banc) (cilati.ons omitted). Further, every claim within thejurisdiction of the United
States Court ofFederal Claims is subject to the statute of limitations set fo(h in 28
U.S.C. $ 2501, which is "an express limitation on the Tucker Act's waiver of sovereign
immunity." Hartv. United States,9l0F.2d 815,818-19 (Fed. Cir. 1990). Here, Plaintiff
relies on the Military Disability Retirement Statute, l0 U.S.C. $ 1201, and the Military
Pay Act, 37 U.S.C. $ 204(a).

         Pursuant to 28 U.S.C. $ 2501, "[e]very claim of which the United States Court of
 Federal Claims hasjurisdiction shall be baned unless the petition thereon is filed within
 six years after such claim first accrues." Thus, a cause of action for military disability
 retirement pay claims accrues when "the first statutorily authorized board . . . hears or
 refuses to hear the claim." Van Allen v. United States,66 Fed. Cl. 294,297 (2005)
 (quoting Real v. United States,906 F.2d 1557, 1560 (Fed. Cir. 1990)). Typically, this
 would be a retiring board who sees the plaintiff prior to discharge. See id. Additionally,
 the United States Court ofAppeals for the Federal Circuit expressly rejected the notion
 that "a servicemember's claim accrues when he leams ofhis disabling condition, whether
 before or after discharge." Chambers v. United Stqtes, 417 F.3d 1218, 1226 (Fed. Cir.
 2005) (discussing the scope ofthe holding in Real v. United States,906 F.2d 1557 (Fed.
 Cir. 1990)). Further, a cause ofaction for back pay accrues "at the time ofthe plaintiffs
 discharge." Martinez v. United States,333 F.3d 1295,1303 (Fed. Cir. 2003). Finally, the
 Tucker Act, "[t]o provide an entire remedy and to compiete the relief afforded by the
judgment," grants the court discretionary authority to "issue orders directing restoration
to office or position, placement in appropriate duty or retirement status, and correction of
applicable records." 28 U.S.C. $ 1a91(a)(2). However, this limited authority may only
be exercised "as an incident ofand collateral to" a monetary judgment. See id
         The Court recognizes that Plaintiffis proceedingpro se and cannot be "expected
to frame issues with the precision of a common law pleading." Roche v. United States
PostalServ.,828F.2d 1555, 1558(Fed.Cir. 1987). Thus, when a complaint is filed pro
se, the Court holds the pleadings ofsuch plaintifls to "less stringent standards than formal
pleadings drafted by lawyers" and liberally consfues those pleadings. Haines v. Kerner,
404 U.S. 519, 520 (1972); see also Erickson v. Pardus,551 U.S. 89,94 (2007). The
Court, however, cannot extend this leniency to relieve plaintifTs of their jurisdictional
burden ofestablishing subject matter jurisdiction by a preponderance ofthe evidence.
Knighr v. United Srates,65 Fed. App'x 286,289 (Fed. Cir. 2003); Kelley v. Sec'y, United
Stctes Dep't of Labor,8l2F.2d 1378, 1380(Fed.Cir. 1987). In ruling on a motion to
dismiss for lack of subject matter jurisdiction, the Court must accept as true all
undisputed factual allegations and construe all reasonable inferences in favor of the
plaintiff; however, ifjurisdiction is found to be lacking, this Court must dismiss the
action. RCFC 12(h)(3); Scheuer v. Rhodes,4l6 U.S. 232,236 (197 4), abrogated on
other grounds by Harlow v. Fitzgerald,4sT U.S.800,814-15 (1982).

        The United States Supreme Court noted that the Court of Federal Claims
limitation statute has long been interpreted as a "more absolute" limitations period. See
John R, Sand & Gravel Co. v. United States, 552 U.S. I 30, I 34 (2008). These types of
limitation statutes "seek not so much to protect a defendant's case-specific interest in
timeliness as to achieve a broader system-related goal, such as facilitating the
administration of claims, limiting the scope of govemmental waiver of sovereign
immunity, or promoting judicial efficiency." Id. at 133 (citations omitted). As such, the
six-year statute of limitations is not susceptible to equitable tolling. 1d at 133-34.

    III.   Discussion

     Plaintiffargues that, based on the 201 1 medical opinion linding him 100% disabled
from bipolar disorder, he is entitled to full disability retirement benefits, removal of
off'ences and punishments from his military record, reinstatement to the rank ofLance
Corporal, back pay associated with reinstatement, and correction ofhis discharge
paperwork to reflect full disability. Given the nature of these claims, this Court will first
address Plaintiff s military disability retirement benefits claim and back pay claim.

    Regarding Plaintiff s military disability retirement benefits claim, this cause of action
accrued when he met with the Physical Examination Board in 1997. This was the first
board authorized to hear Plaintiff s claim. Thus, the statute of limitations for this claim
began running after this examination and expired six years later in 2003. Similarly,
Plaintiff's back pay claim accrued when he was discharged in 1997. After discharge, the
statute of limitations for the Plaintiffto bring this claim began running and expired six
years later in 2003. Accordingly, the running of the statute of limitations has taken these
claims outside the Court's jurisdiction and they must be dismissed.

   With respect to Plaintiff s remaining claims regarding removal of offenses and
punishments lrom his record, reinstatement of rank, and correction of discharge
paperwork, the Court does not have authority to provide relief. The Court may only
provide this type ofrelief"as an incident ofand collateral to any [monetary] judgment."
28 U.S.C. $ 1491(aX2). Here, Plaintiff s monetary relief claims are time-baned. That
being the case, the Court has no authority to provide the requested non-monetary relief
because this type of relief may only be granted in addition to a monetary judgment.

    Finally, with respect to Plaintiff s Motion to Expand Time and Motion to Supplement
the Record, these motion are now moot in light of the holdings today. Although the
Court is sympathetic to Plaintiffs bi-polar disorder, the Court is precluded from
providing relief after the applicable statute of limitations has run. The Federal Circuit has
rejected the argument that a claim for military disability retirement benefits accrues when
"a servicemember's . . . leams of his disabling condition, whether before or after
discharge." Chambers v. United States, 417 F .3d 1218, 1226 (Fed. Cir. 2005). The
Court need not address the Government's altemative motion for Judsment on the
Administrative Record in light of this order.

   IV.     Conclusion

  For the reasons set forth above, the Govemment's motion to dismiss is hereby
GRANTED. The Clerk is directed to enter judgment accordingly.




                                                              Senior Judge
