 In the United States Court of Federal Claims
                                          No. 15-1163
                                    Filed: October 13, 2017

****************************************
                                                     10 U.S.C. § 1204 (Retirement for
                                       *
                                                         Military on Active Duty for 30 days
                                       *
                                                         or less or on Inactive-duty Training);
                                       *
                                                     25 U.S.C. § 2501 (Statute of Limitations);
                                       *
                                                     28 U.S.C. § 1491 (Tucker Act
                                       *
                                                         Jurisdiction);
MALCOLM PIPES,                         *
                                                     Air Force Instruction (“AFI”);
                                       *
                                                         AFI 10-248 (Fitness Program);
      Plaintiff,                       *
                                                         AFI 36-2254 (Reserve Personnel
                                       *
                                                             Participation);
                                       *
                                                         AFI 36-2910 (Line of Duty
v.                                     *
                                                             Determination, Medical
                                       *
                                                             Continuation (MEDCON) and
                                       *
                                                             Incapacitation (INCAP) pay);
THE UNITED STATES,                     *
                                                         AFI 36-3212 (Physical Evaluation for
                                       *
                                                             Retention, Retirement, and
      Defendant.                       *
                                                             Separation);
                                       *
                                                         AFI 48-123 (Medical Examinations
                                       *
                                                             and Standards);
                                       *
                                                     Rules of the United States Court of
                                       *
                                                         Federal Claims (“RCFC”)
                                       *
                                                         12(b)(1) (Subject Matter Jurisdiction);
****************************************
                                                     RCFC 12(b)(6) (Failure to State a Claim
                                                          Upon Which Relief Can Be Granted);
                                                     RCFC 52.1 (Judgment on the
                                                          Administrative Record).

Matthew E. Hughes, Tully Rinckey PLLC, Washington, D.C., Counsel for Plaintiff.

David Alan Levitt, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for the Government.



       
         On September 29, 2017, the court forwarded a sealed copy of this Memorandum Opinion
And Final Order to the parties to redact any confidential and/or privileged information from the
public version and note any citation or editorial errors that required corrections. The parties had
until October 13, 2017 to file proposed redactions and/or corrections. Neither party filed
redactions. The court incorporated all appropriate corrections.
                     MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Chief Judge.

I.     RELEVANT FACTUAL BACKGROUND.1

        In 1983, Staff Sergeant (“SSgt”) Malcolm Pipes enlisted in the United States Air Force
(“USAF”). Compl. ¶ 7. Mr. Pipes served in the USAF for approximately sixteen years: seven on
active duty and nine in the USAF Reserve. Compl. ¶ 7; see also AR at 39. Most recently, SSgt
Pipes served as a Transportation Officer/Logistics Readiness Officer for the 917th Reserve Wing
at Barksdale Air Force Base in Louisiana. Compl. ¶ 7.

     On May 26, 2004, the USAF began to phase in stringent physical fitness standards for
USAF Reserve, requiring:

       [a]ll members of the Air Force must be physically fit to support the Air Force
       mission. Health benefits from an active lifestyle will increase productivity,
       optimize health, and decrease absenteeism while maintaining a higher level of
       readiness. The goal of the Fitness Program (FP) is to motivate all members to
       participate in a year-round physical conditioning program that emphasizes total
       fitness, to include proper aerobic conditioning, strength/flexibility training, and
       healthy eating. Commanders and supervisors must incorporate fitness into the AF
       culture to establish an environment for members to maintain physical fitness and
       health to meet expeditionary mission requirements and deliver a fit and ready force.
       The annual fitness assessment provides commanders with a tool to assist in the
       determination of overall fitness of their military personnel.

3/21/16 Pl. Resp. Ex. 1 at 1–2 (Air Force Instruction (“AFI”) 10-248, dated May 26, 2004) (“AFI
10-248”).

       To serve in the USAF Reserve, an annual fitness assessment (“FA”) was required that
included a “1.5 mile run for aerobic assessment.” AFI 10-248 at 2, 45. In a memorandum, dated
October 1, 2004, SSgt Pipes’ Flight Commander informed SSgt Pipes that:




       1
          The relevant facts discussed herein were derived from: the October 9, 2015 Complaint
(“Compl.”); the Appendix attached to the Government’s January 27, 2016 Motion To Dismiss
(“AR i, ii, 1–251, Form 40A”); Exhibits attached to Plaintiff’s March 21, 2016 Response (“3/21/16
Pl. Resp. Exs. 1–4”); and the Appendix attached to the Government’s October 21, 2016 Response
to the court’s August 30, 2016 Order. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir.
1999) (“Fact-finding is proper when considering a motion to dismiss where the jurisdictional facts
in the complaint . . . are challenged.”) (citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d
746, 747 (Fed. Cir. 1988)).



                                                2
       Members who score in the Marginal or Poor fitness levels will be entered into the
       Self-paced Fitness Improvement Program (SFIP)2 and the information will be
       documented on the AF Form 108 and maintained until the member scores greater
       or equal to numerical score, 75.

AR at 55.

        On November 7, 2004,3 SSgt Pipes failed the FA and received a “poor” rating. AR at 30.
As a result, he received verbal counseling, was enrolled in the SFIP that same day, and ordered to
begin running five days per week. Compl. ¶ 9, 13; see also AR at 17.

       On August 7, 2005, SSgt Pipes failed a second FA and received additional verbal
counseling. Compl. ¶ 14; see also AR at 30.

       On November 18, 2005, SSgt Pipes saw his private physician, who observed that SSgt
Pipes’ blood pressure was 165/105; several days later, his blood pressure dropped to 124/90.
Compl. ¶ 15.

        On February 5, 2006, SSgt Pipes was evaluated by a doctor from the 917th Medical
Squadron and cleared for continued participation in the SFIP. AR at 19–20. That same day, SSgt
Pipes failed a third FA and became ill during the running portion of the test. Compl. ¶ 16; see also
AR at 30. Later that day, a USAF physician noted in SSgt Pipes’ medical record that his blood
pressure ranged between 151/94, when sitting, and 146/99, when standing. AR at 104. SSgt Pipes’
Squadron Commander expressed concern about SSgt Pipes’ high blood pressure and was
concerned a vigorous fitness program could lead to injury, stroke, and heart attack. AR at 56–57.
None of these observations were disclosed to SSgt Pipes. Compl. ¶ 16.

        On May 7, 2006 and July 10, 2006, SSgt Pipes failed two more FAs. Compl. ¶¶ 17, 18;
see also AR at 30.


       2
           AFI 10-248 defines the SFIP as:

       A remedial intervention program recommended for traditional Reservists . . .
       identified with a composite poor fit score. Since they are in a no-duty status, their
       participation in the FIP is not mandated. Members are highly encouraged to take
       part on a voluntary basis in all available intervention programs to include
       individualized fitness prescription, heart rate-monitored exercise, supervised
       unit/fitness center physical training, and documented exercise participation to assist
       in administrative recommendation for those remaining poor fit >12 months[.]

AFI 10-248 at 46.
       3
        The October 9, 2015 Complaint states that SSgt Pipes failed the FA on November 4, 2004.
Compl. ¶ 13. SSgt Pipes’ USAF records, however, state that he failed the FA on November 7,
2004. AR at 30. Therefore, the court considers the reference to November 4, 2004 as a
typographical error.



                                                 3
        On September 3, 2006, SSgt Pipes became ill while running and experienced “a headache,
difficulty breathing, dizziness, an impression of being overheated, and a general feeling of
malaise.” Compl. ¶ 19. These symptoms continued into the night, requiring him to go to the
hospital around 2:00 AM on September 4, 2006. Compl. ¶ 19. SSgt Pipes was diagnosed with a
Cerebrovascular Accident,4 i.e., a stroke. AR 211–33. On September 6, 2006, SSgt Pipes
informed the USAF of this diagnosis. Compl. ¶ 21.5

        On December 5, 2006, the USAF informed SSgt Pipes that he was not eligible to receive
disability benefits, because his stroke did not occur during inactive duty training (“IDT”).6 Compl.
¶ 23; 10/21/16 Gov’t Resp. App’x 1 at 5–6.

       On February 4, 2007, a USAF doctor examined SSgt Pipes and reported that:

       SSgt Pipes sustained a significant vascular injury which caused dysarthria7 and
       right-sided weakness secondary to uncontrolled hypertension.8

                                              *       *       *

       According to AFI 48-123, page 54, A2.12.16, the persistent numbness of important
       muscle groups, and incoordination of the right extremities as well as inability to

       4
         A Cerebrovascular Accident is “a sudden loss of brain function caused by a blockage or
rupture of a blood vessel to the brain, resulting in necrosis of brain tissue and characterized by loss
of muscular control, diminution or loss of sensation or consciousness, dizziness, slurred speech,
or other symptoms that vary with the extent and severity of brain damage.” THE AMERICAN
HERITAGE MEDICAL DICTIONARY 141 (2007).
       5
         The Government claims that, because Mr. Pipes never claimed the stroke was attributed
to the SFIP, USAF regulations did not require an adverse event report and apparently no report
was filed. ECF No. 20 ¶ 4.
       6
           Section 101 of Title 10 of the United States Code defines “IDT” as:
       (A) duty prescribed for Reserves by the Secretary concerned under section 206 of
           title 37 or any other provision of law; and
       (B) special additional duties authorized for Reserves by an authority designated by
           the Secretary concerned and performed by them on a voluntary basis in
           connection with the prescribed training or maintenance activities of the units
           to which they are assigned.
10 U.S.C. § 101(d)(7).
       7
         Dysarthria is “difficulty in articulating words due to emotional stress or to paralysis,
incoordination, or spasticity of the muscles used in speaking.” THE AMERICAN HERITAGE
MEDICAL DICTIONARY 244.

       Hypertension is “persistent high blood pressure.” THE AMERICAN HERITAGE MEDICAL
       8

DICTIONARY 386.



                                                  4
       fulfill his employment in the military service . . . would prevent continuation in his
       present traditional reserve occupation as a Wing Historian.                It is my
       recommendation that SSgt Pipes be evaluated for a medical board and eventual
       medical discharge from the Air Force Reserve Program[.]

AR at 153–54.

       On that same day, a Technical Sergeant informed SSgt Pipes that he was not eligible to
receive disability retirement benefits. Compl. ¶ 24; see also AR at 78.

       On February 4, 2007, SSgt Pipes signed a Medical Evaluation (“ME”) For Military Duty
Fact Sheet that, in relevant part, states:

       I understand that if not approved for retention in the Air Force Reserve because of
       a medically disqualifying non-duty related medical/dental condition(s), I’m eligible
       to have my case reviewed by the Physical Evaluation Board (PEB) solely for a
       fitness determination. By completing and signing the “PEB Election Form,” I am
       making my election to have or not have my case reviewed by the PEB.

AR at 147.

         The Physical Evaluation Board (“PEB”) Election Form (“PEB Election Form”), in relevant
part, states:

             1. I understand that I may request my case be forwarded to the Physical
                Evaluation Board (PEB)9 for review in the event I am medically disqualified
                for worldwide duty . . . and not retained for continued military duty[.] The
                review by the PEB is only to determine my “fitness” for continued military
                duty and not to determine if I am entitled to disability processing. By
                completing and signing this form, I am making my selection for PEB
                review.
             2. If I elect to have my case reviewed by the PEB solely for a “fitness”
                determination, I understand referral of my case does not constitute a


       9
           AFI 36-3212, in relevant part, provides:

       A PEB is a fact-finding body that investigates the nature, origin, degree of
       impairment, and probable permanence of the physical or mental defect or condition
       of any member whose case it evaluates. The disability system provides for two
       PEBs: an Informal PEB and a Formal PEB. If either board finds a member unfit, it
       recommends appropriate disposition based on the degree of impairment caused by
       the disabling condition, the date incurred, and the member’s line of duty status. A
       PEB is not a statutory board, and there is no statute of limitations in considering
       evidence.

AFI 36-3212 at 14.



                                                  5
               disability evaluation, and an “unfit” decision does not entitle me to
               disability compensation from the Air Force.
                                            *       *      *
            5. My PEB selection is indicated below:
               ___ I desire to have my non-duty related, medical disqualification case
               referred to the [Informal Physical Evaluation Board (“IPEB”)10] solely for
               a fitness determination. I understand I can submit a statement for
               consideration by the PEB.

               ___ I do not desire to have my case referred to the IPEB. I understand, in
               the even that [the USAF] determines I am medically disqualified for
               worldwide duty and I am not retained by [the USAF], I will be processed
               for involuntary separation without my case being reviewed by the PEB. If
               I am eligible for retirement, I understand I will be afforded the opportunity
               to apply for retirement in lieu of separation.

AR at 146 (internal correction omitted).

       On February 4, 2007, SSgt Pipes initialed next to the block of the PEB Election Form that
begins “I do not desire to have my case referred to the IPEB.” AR at 146. As a result, no review
was performed by the PEB. Compl. ¶ 26.

       On November 4, 2007, SSgt Pipes’ Commander informed the United States Air Force
Reserve Command (“AFRC”) that SSgt Pipes “has not been able to perform any duties since his
stroke” and therefore should be “medically retired.” AR at 140–41.

       On November 26, 2007, SSgt Pipes was determined to be “medically disqualified for
continued military duty.” AR at 139.

       On December 20, 2007, pursuant to AFI 36-3209, paragraph 3.14, the USAF initiated a
“separation action” to discharge SSgt Pipes from the Air Force Reserve and assigned him legal
counsel. AR at 133. In lieu of an administrative discharge, the USAF informed SSgt Pipes that
he was eligible for retirement. AR at 133.

       On January 30, 2008, the USAF received from SSgt Pipes an “application for transfer to
the Retired Reserve . . . in lieu of administrative discharge for physical disqualification.” AR at




       10
          AFI 36-3212, in relevant part, provides that, “The IPEB reviews appropriate medical and
personnel records, and related documentation to determine fitness for duty. Neither the member nor
counsel may be present at the informal hearing.” AFI 36-3212.



                                                 6
127. The USAF noted that SSgt Pipes had “over 16 years of satisfactory services and [was] eligible
for early Reserve retirement under Title 10, USC Section 12731.”11 AR at 127.

       On September 15, 2008, SSgt Pipes was assigned to the Retired Reserves, but the
assignment was backdated, effective September 4, 2006. AR at 126.12

        On September 23, 2009, SSgt Pipes filed an application for benefits with the Department
of Veteran Affairs (“VA”). Compl. ¶ 29. In September 2010, the VA informed SSgt Pipes that
his application for VA benefits demonstrated he was not evaluated for Reserve Service. Compl. ¶
30.

       On or about October 5, 2010, SSgt Pipes obtained a copy of his USAF medical records.
Compl. ¶ 30; see also AR at 104. Upon review of these records, he first learned that on February
4, 2006, the USAF Medical Examiner observed that his blood pressure was abnormally high during
his medical clearance exam. Compl. ¶ 30; see also AR at 104.

       On August 10, 2011, SSgt Pipes filed an Application For Correction Of Military Record
with the Air Force Board for Correction of Military Records (“AFBCMR”). AR at 11.

       On June 4, 2012, the AFBCMR issued a Memorandum “recommending denial of the
change in medical records to reflect [Plaintiff] was permanently medically retired.” Compl. ¶ 34.

       11
            Section 12731(a) of Title 10, in relevant part, provides:

            (a) Except as provided in subsection (c), a person is entitled, upon application, to
                retired pay computed under section 12739 of this title, if the person
                  (1) has attained the eligibility age applicable under subsection (f) to that
                      person;
                  (2) has performed at least 20 years of service computed under section 12732
                      of this title;
                  (3) in the case of a person who completed the service requirements of
                      paragraph (2) before April 25, 2005, performed the last six years of
                      qualifying service while a member of any category named in section
                      12732(a)(1) of this title, but not while a member of a regular component,
                      the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the
                      case of a person who completed the service requirements of paragraph
                      (2) before October 5, 1994, the number of years of such qualifying
                      service under this paragraph shall be eight; and
                  (4) is not entitled, under any other provision of law, to retired pay from an
                      armed force or retainer pay as a member of the Fleet Reserve or the Fleet
                      Marine Corps Reserve.

10 U.S.C. § 12731(a).
       12
            SSgt Pipes, however, cannot receive retirement benefits until he is 60 years old;
currently, SSgt Pipes is 58. Compl. ¶ 28; see also 10 U.S.C. § 12731(f)(1) (“Subject to paragraph
(2), the eligibility age for purposes of subsection (a)(1) is 60 years of age.”).



                                                    7
On July 5, 2012, Plaintiff responded to the June 4, 2012 Memorandum by providing supplemental
documentation to the AFBCMR. Compl. ¶ 35.

       On February 28, 2013, the AFBCMR denied SSgt Pipes’ Application For A Correction Of
Military Records, because he “did not demonstate the existence of a material error or injustice.”
Compl. ¶ 36; see also AR at 2.

       On April 30, 2013, and again on July 3, 2013, SSgt Pipes requested reconsideration, but
on August 11, 2014, the USAF Office of the Assistant Secretary affirmed the AFBCMR’s denial.
AR at 1.

II.    RELEVANT PROCEDURAL HISTORY.

       On October 9, 2015, SSgt Pipes (“Plaintiff”) filed a Complaint in the United States Court
of Federal Claims for “military pay, disability retirement pay, reimbursement of expenses, and
other benefits,” pursuant to 10 U.S.C. § 1204.13 Compl. ¶¶ 1, 2; ECF No. 1. Specifically, the


       13
            Section 1204 of Title 10 provides:

       Upon a determination by the Secretary concerned that a member of the armed forces
       not covered by section 1201, 1202, or 1203 of this title is unfit to perform the duties
       of his office, grade, rank, or rating because of physical disability, the Secretary may
       retire the member with retired pay computed under section 1401 of this title, if the
       Secretary also determines that:

       (1) based upon accepted medical principles, the disability is of a permanent nature
       and stable;

       (2) the disability
                 (A) was incurred before September 24, 1996, as the proximate result of--
                         (i) performing active duty or inactive-duty training;
                         (ii) traveling directly to or from the place at which such duty is
                         performed; or
                         (iii) an injury, illness, or disease incurred or aggravated while
                         remaining overnight, immediately before the commencement of
                         inactive-duty training, or while remaining overnight between
                         successive periods of inactive-duty training, at or in the vicinity of
                         the site of the inactive-duty training, if the site of the inactive-duty
                         training is outside reasonable commuting distance of the member's
                         residence;
                 (B) is a result of an injury, illness, or disease incurred or aggravated in line
                 of duty after September 23, 1996
                         (i) while performing active duty or inactive-duty training;
                         (ii) while traveling directly to or from the place at which such duty
                         is performed; or


                                                    8
October 9, 2015 Complaint requests “[i]njunctive relief and/or declaratory relief,” “[p]ayment of
all wrongfully denied pay and allowances due . . . under the law, including military disability
retirement pay,” “[p]ayment of all out-of-pocket medical expenses,” an “[a]ward of reasonable
attorney fees and costs under the Equal Access to Justice Act,” and “[a]ll other relief this court
deems just and proper.” Compl. at Section VI, Prayer for Relief.

       On November 30, 2015, the Government filed an Unopposed Motion For A 45 Day
Enlargement Of Time To File A Response. ECF No. 5. The court granted the November 30, 2015
Motion on December 1, 2015. On January 19, 2016, the Government filed an Unopposed Motion
For Leave To File Documents Under Seal And For A Protective Order. ECF No. 6.

       On January 27, 2016, the Government filed a Motion To Dismiss, pursuant to Rules of the
United States Court of Federal Claims (“RCFC”) 12(b)(1), for lack of subject matter jurisdiction,
and 12(b)(6), for failure to state a claim on which relief can be granted. (“1/27/16 Gov’t Mot.”)
ECF No. 7. On January 28, 2016, the court issued a Protective Order prohibiting the disclosure of
personal information protected by the Privacy Act of 1974, 5 U.S.C. § 552a. ECF No. 7.

       On March 21, 2016, Plaintiff filed a Memorandum Of Points And Authorities In Support
Of Plaintiff’s Opposition To Defendant’s Motion To Dismiss (“3/21/16 Pl. Resp.”). ECF No. 11.
On March 22, 2016, the Government filed an Unopposed Motion For Extension Of Time By 14-

                      (iii) while remaining overnight, immediately before the
                      commencement of inactive-duty training, or while remaining
                      overnight between successive periods of inactive-duty training, at or
                      in the vicinity of the site of the inactive-duty training; or
               (C) is a result of an injury, illness, or disease incurred or aggravated in line
               of duty
                      (i) while the member was serving on funeral honors duty under
                      section 12503 of this title or section 115 of title 32;
                      (ii) while the member was traveling to or from the place at which
                      the member was to so serve; or
                      (iii) while the member remained overnight at or in the vicinity of
                      that place immediately before so serving, if the place is outside
                      reasonable commuting distance from the member's residence;
       (3) the disability is not the result of the member’s intentional misconduct or willful
       neglect, and was not incurred during a period of unauthorized absence; and
       (4) either
               (A) the member has at least 20 years of service computed under section
               1208 of this title; or
               (B) the disability is at least 30 percent under the standard schedule of rating
               disabilities in use by the Department of Veterans Affairs at the time of the
               determination.

10 U.S.C. § 1204.



                                                  9
Days To Reply. ECF No. 12. The court granted the March 22, 2016 Motion on March 23, 2016.
On April 21, 2016, the Government filed a Reply (“4/21/16 Gov’t Reply”). ECF No. 13.

        On May 18, 2016, Plaintiff filed a Motion For Leave To File Sur-Reply, attaching a Sur-
Reply thereto (“5/18/16 Pl. Sur-Reply”). ECF No. 14. On May 20, 2016, the court granted
Plaintiff’s May 18, 2016 Motion. ECF No. 15.

        On August 30, 2016, the court issued an Order denying the Government’s January 27, 2016
Motion To Dismiss, because there were a number of jurisdictional facts at issue. ECF No. 16. In
addition, the court requested that the Government produce six categories of records, including the
February 5, 2006 USAF Medical Clearance Exam Report from the 917th Medical Squadron. ECF
No. 16.

        On October 21, 2016, the Government filed a Response to the August 30, 2016 Order
(“10/21/16 Gov’t Resp.”), informing the court that “the process in place at the time [Plaintiff]
retired was to send service treatment records (“STRs”) to the VA on a [service] member’s
separation.” ECF No. 20 ¶ 3.

        On November 9, 2016, the court issued an Order requiring the VA to provide all of
Plaintiff’s STRs and the USAF Reserve medical records. ECF No. 21. On January 11, 2017, the
Government filed a Notice of Compliance (1/11/17 Gov’t Notice Of Compliance), informing the
court that it received the requested records from the VA. ECF No. 22.

        On May 8, 2017, the Government filed a Second Motion To Dismiss (“5/8/17 Gov’t
Mot.”), pursuant to RCFC 12(b)(1) and 12(b)(6), or, in the alternative, for Judgment On The
Administrative Record, pursuant to RCFC 52, because the AFBCMR’s decision denying
Plaintiff’s disability retirement payments was supported by substantial evidence and was not
arbitrary, capricious, or contrary to law. ECF No. 25.

       On June 8, 2017, Plaintiff filed a Cross-Motion for Judgment On The Administrative
Record and Response to the Government’s May 8, 2017 Motion (“6/8/17 Pl. Resp.”). ECF No.
26. On June 9, 2017, Plaintiff filed an Affidavit in support of the June 8, 2017 Response. ECF
No. 27. On June 22, 2017, the Government filed a Reply (“6/22/17 Gov’t Reply”). ECF No. 28.
On June 29, 2017, Plaintiff filed a Sur-Reply (“6/29/17 Pl. Sur-Reply”). ECF No. 29.

III.   DISCUSSION.

       A.      Jurisdiction.

        The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C.
§ 1491, “to render judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive department, or upon any
express or implied contract with the United States, or for liquidated or unliquidated damages in
cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act, however, is “a jurisdictional
statute; it does not create any substantive right enforceable against the United States for money
damages. . . . [T]he Act merely confers jurisdiction upon [the United States Court of Federal
Claims] whenever the substantive right exists.” United States v. Testan, 424 U.S. 392, 398 (1976).



                                               10
         Therefore, to pursue a substantive right under the Tucker Act, a plaintiff must identify and
plead an independent contractual relationship, Constitutional provision, federal statute, and/or
executive agency regulation that provides a substantive right to money damages. See Todd v.
United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) (“[J]urisdiction under the Tucker Act requires
the litigant to identify a substantive right for money damages against the United States separate
from the Tucker Act[.]”); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)
(“The Tucker Act . . . does not create a substantive cause of action; . . . a plaintiff must identify a
separate source of substantive law that creates the right to money damages. . . . [T]hat source must
be ‘money-mandating.’”). Specifically, a plaintiff must demonstrate that the source of substantive
law on which he relies “can fairly be interpreted as mandating compensation by the Federal
Government[.]” United States v. Mitchell, 463 U.S. 206, 217 (1983) (quoting Testan, 424 U.S. at
400). The plaintiff bears the burden of establishing jurisdiction by a preponderance of the
evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)
(“[O]nce the [trial] court’s subject matter jurisdiction [is] put in question . . . [the plaintiff] bears
the burden of establishing subject matter jurisdiction by a preponderance of the evidence.”).

         In this case, the October 9, 2015 Complaint invokes the jurisdiction of the United States
Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491(a)(1) and 10 U.S.C. § 1204.
Compl. ¶ 2. For these reasons, the court has subject matter jurisdiction over the claims alleged for
disability retirement compensation therein. See Fisher, 402 F.3d at 1174 (holding that a similar
statute, “[10 U.S.C.] § 1201[,] is understood as money-mandating”).

        To invoke the court’s jurisdiction in a military pay case, a plaintiff also must file a
complaint within six years after such a claim accrues. See 28 U.S.C. § 2501 (providing that actions
brought under the Tucker Act are time-barred unless the claim “is filed within six years after such
claim first accrues”). The Tucker Act’s statute of limitations is jurisdictional. See John R. Sand
& Gravel Co. v. United States, 552 U.S. 130, 134 (2008) (“This Court has long interpreted the
court of claims limitations statute as . . . ‘jurisdictional.’”). Therefore, a plaintiff’s failure to satisfy
the requirements of 28 U.S.C. § 2501 places a claim beyond the court’s jurisdiction. See
Soriano v. United States, 352 U.S. 270, 272 (1957) (“[T]he Congress[,] in the Act creating the
Court of Claims[,] gave the Government’s consent to be sued therein only in certain classes of
claims and that no others might be asserted against it, including claims which are declared barred
if not asserted within the time limited by the statute.”) (internal quotation marks omitted).

        B.      Standing.

        The United States Supreme Court has held that “the question of standing is whether the
litigant is entitled to have the court decide the merits of the dispute or of particular issues.”
Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing must be determined “as of the commencement
of suit.” Rothe Dev. Corp. v. Dep’t of Def., 413 F.3d 1327, 1334 (Fed. Cir. 2005) (internal
quotations omitted). The party invoking federal jurisdiction bears the burden of establishing
standing. See Lujan v. Def.’s of Wildlife, 504 U.S. 555, 561 (1992). Specifically,

        a plaintiff must show [that] it has suffered an ‘injury in fact’ that is . . . concrete and
        particularized and . . . actual or imminent, not conjectural or hypothetical; . . . the
        injury is fairly traceable to the challenged action of the defendant; and . . . it is



                                                     11
        likely, as opposed to merely speculative, that the injury will be redressed by a
        favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 180–81 (2000) (internal
citations omitted).

        The October 9, 2015 Complaint alleges that Plaintiff has suffered an injury in fact that: is
traceable to the USAF’s denial of disability retirement pay and benefits; can be determined in a
specific amount; and is likely to be redressed by a favorable decision of the court. Compl. ¶¶ 42–
43. For these reasons, the court has determined that Plaintiff has standing to bring the claims
alleged in the October 9, 2015 Complaint.

        C.      Standard Of Review For Motion To Dismiss Under RCFC 12(b)(1).

        A challenge to the United States Court of Federal Claims’ “general power to adjudicate in
specific areas of substantive law . . . is properly raised by a [Rule] 12(b)(1) motion[.]”
Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC 12(b)(1) (“Every
defense to a claim for relief in any pleading must be asserted in the responsive pleading. . . . But a
party may assert the following defense[] by motion: (1) lack of subject-matter jurisdiction[.]”).
When considering whether to dismiss an action for lack of subject matter jurisdiction, the court
“must accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all
reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d
1159, 1163 (Fed. Cir. 2011).

        D.      Standard Of Review For Motion To Dismiss Under RCFC 12(b)(6).

       A challenge to the United States Court of Federal Claims’ “[ability] to exercise its general
power with regard to the facts peculiar to the specific claim . . . is raised by a [Rule] 12(b)(6)
motion[.]” Palmer, 168 F.3d at 1313; see also RCFC 12(b)(6) (“Every defense to a claim for relief
in any pleading must be asserted in the responsive pleading . . . . But a party may assert the
following defense[] by motion: . . . (6) failure to state a claim upon which relief can be granted[.]”).

        When considering whether to dismiss an action for failure to state a claim, the court must
assess whether the complaint adequately states a claim and whether the plaintiff can allege facts
“plausibly suggesting (not merely consistent with)” a showing of entitlement to relief. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007). The plaintiff’s factual allegations must be substantial
enough to raise the right to relief “above the speculative level,” id. at 555, accepting all factual
allegations in the complaint as true and “draw[ing] all reasonable inferences in favor of the non-
movant.” Julian v. United States, 658 Fed. App’x 1014, 1016 (Fed. Cir. 2016) (quoting Adams v.
United States, 39 F.3d 1212, 1218 (Fed. Cir. 2004).

        E.      Standard Of Review For Judgment On The Administrative Record.

        Review of a military correction board’s decision is “limited to the administrative record
before the deciding official or officials.” Wyatt v. United States, 23 Cl. Ct. 314, 319 (Cl. Ct. 1991).
The standard for judgment on the administrative record, pursuant to RCFC 52.1, is whether the
plaintiff has met the burden of proof to show that the decision was without a rational basis or not
in accordance with the law, given all the disputed and undisputed facts in the administrative record.


                                                  12
See Bannum, Inc. v. United States, 404 F.3d 1346, 1357 (Fed. Cir. 2005) (instructing the court to
make “factual findings under RCFC 52.1 from the [limited] record evidence as if it were
conducting a trial on the record”). Where the parties have filed cross-motions for judgment on the
administrative record, RCFC 52.1 provides a procedure for parties to seek the equivalent of an
expedited trial on a “paper record, allowing fact-finding by the trial court.” Id. at 1356. Unlike
summary judgment, genuine issues of material fact do not preclude a judgment on the
administrative record. See id. at 1355–56.

        The standard of review is limited to determining whether the agency decision is “arbitrary,
capricious, unsupported by substantial evidence, or contrary to law.” Porter v. United States, 163
F.3d 1304, 1312 (Fed. Cir. 1998); see also Hoskins v. United States, 40 Fed. Cl. 259, 271–72
(1998) (“Once a plaintiff has sought relief from a correction board . . . the plaintiff is bound by
that board’s determination unless he can satisfy the difficult standard of proof that the correction
board’s decision was illegal because it was arbitrary, capricious, or in bad faith, or unsupported by
substantial evidence, or contrary to law, regulation or mandatory published procedure of a
substantive nature by which plaintiff has been seriously prejudiced, or money is due.”) (citations
omitted). The court, however, may not retry the case on the merits. See Chayra v. United States,
23 Cl. Ct. 172, 178 (Cl. Ct. 1991) (“While the court might disagree with the board’s decision, it
cannot substitute its own judgment for that of the board if reasonable minds could reach differing
resolutions of the disputed matter.”).

        The plaintiff bears the burden of proving any deficiency by “cogent and clearly convincing
evidence.” Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986) (internal citations omitted).
Such proof also must “overcome the strong, but rebuttable, presumption that the administrators of
the military, like other public officers, discharge their duties correctly, lawfully, and in good faith.”
Porter, 163 F.3d at 1316 (quoting Sanders v. United States, 596 F.2d 804, 813 (Ct. Cl. 1979)).

        F.      Whether The Claims Alleged In The October 9, 2015 Complaint Are Barred
                By The Statute Of Limitations.

                1.      The Government’s Argument.

        The Government argues that the court does not have jurisdiction to adjudicate the claims
alleged in the October 9, 2015 Complaint, because the statute of limitations has run. 5/8/17 Gov’t
Mot. at 7. Generally, “claims of entitlement to disability retirement pay . . . do not accrue until the
appropriate military board either finally denies such a claim or refuses to hear it.” 5/8/17 Gov’t
Mot. at 7 (quoting Chambers v. United States, 417 F.3d 1218, 1224 (Fed. Cir. 2005)). But, when
a veteran, with “knowledge of the existence and extent of his [or her] condition,” declines to be
heard by a medical examination board prior to discharge, “such a waiver can invoke the statute of
limitations[.]” 5/8/17 Gov’t Mot. at 7–8 (quoting Real v. United States, 906 F.2d 1557, 1562 (Fed.
Cir. 1990)).

       On February 4, 2007, Plaintiff signed the PEB Form declining the USAF’s offer to provide
a medical board. 5/8/17 Gov’t Mot. at 8. If the stroke occurred in the course of the SFIP, as the
October 9, 2015 Complaint alleges, “[Plaintiff] knew [that he had suffered a stroke] when the
USAF processed his discharge.” 5/8/17 Gov’t Mot. at 8. Therefore, “when [Plaintiff] waived a
medical board on February 4, 2007 . . . , or, at the latest, when he was separated from service on


                                                   13
September 15, 2008 . . . , he had complete knowledge of the USAF’s position[.]” 5/8/17 Gov’t
Mot. at 8. Therefore, Plaintiff’s cause of action accrued “when he waived the medical board or at
the time of discharge, when he could have challenged the USAF’s position but failed to do so[.]”
5/8/17 Gov’t Mot. at 9.

         Like the plaintiff in Miller v. United States, 361 F.2d 245, 249–50 (Ct. Cl. 1966), Plaintiff
insists that he was entitled to a disability discharge, because his first opportunity to present his
claim was before the AFBCMR. 5/8/17 Gov’t Mot. at 9. In Miller, however, because the court
found that the plaintiff was aware of his disability when it occurred, but did not challenge the
separation proceeding, “[t]he fact that the Army’s determination not to refer the plaintiff’s case to
a retiring board was erroneous (according to the petition) did not deprive such determination of
finality or affect the running of the 6-year limitations period[.]” 5/8/17 Gov’t Mot. at 9 (see Miller,
361 F.2d at 250). Plaintiff also fails to challenge the USAF’s separation decision as triggering
accrual of his claim. 5/8/17 Gov’t Mot. at 9; see also Real, 906 F.2d at 1563 (holding that because
there was no confusion about “the nature or the extent of the disability which resulted from [the
plaintiff’s] wound,” the statute of limitations period was not tolled)).

        In sum, Plaintiff was aware of the facts surrounding the stroke on February 4, 2007, when
he rejected a medical board and accepted a regular Reserve retirement, instead of challenging the
USAF’s determination. 5/8/17 Gov’t Mot. at 9. As such, Plaintiff’s claim accrued on February 4,
2007. 5/8/17 Gov’t Mot. at 9. Therefore, because the Tucker Act’s six-year statute of limitations
had run when Plaintiff filed the October 9, 2015 Complaint, the court does not have subject matter
jurisdiction to adjudicate Plaintiff’s claims. 5/8/17 Gov’t Mot. at 9.

               2.      Plaintiff’s Response.

        Plaintiff responds that the October 9, 2015 Complaint is timely, because the statute of
limitations period began to run on February 23, 2013, when the AFBCMR issued the denial of
Plaintiff’s claim for disability retirement. 6/8/17 Pl. Resp. at 11. This is true, because the United
States “Court of Federal Claims has no jurisdiction over disability retirement claims until a military
board evaluates a service member’s entitlement to such retirement.” 6/8/17 Pl. Resp. at 11–12
(citing Chambers v. United States, 417 F.3d 1218, 1225 (Fed. Cir. 2005)).

        Plaintiff was never offered a hearing before a statutorily authorized medical board
competent to determine eligibility for disability retirement, because Plaintiff’s Commander
determined, without conducting a Line of Duty (“LOD”)14 investigation, that Plaintiff’s stroke
occurred “off duty” and therefore could not have occurred during IDT. 6/8/17 Pl. Resp. at 12–13
(citing Real, 906 F.2d at 1560). Plaintiff did not waive review by a statutorily authorized board
competent to determine his eligibility for disability retirement. 6/8/17 Pl. Resp. at 12. Instead,
Plaintiff opted not to challenge his fitness for duty, because his unit made that finding in December

       14
          LOD investigations are used to determine medical benefits. 03/21/16 Pl. Resp. at 12 n.7
(citing AFI 36-2910). “Members who are not given [LOD] determination, but are disqualified
from service due to an impairment unrelated to the member’s military status, are only afforded
access to the disability system for fitness for duty determinations and not given the opportunity to
be afforded disability benefits.” 03/21/16 Pl. Resp. at 13 (citing AFR 36-3212, ¶ 8.1).



                                                  14
2006. 6/8/17 Pl. Resp. at 12. In addition, the PEB Election Form Plaintiff signed provided that
the purpose of the PEB review is only to determine Plaintiff’s “fitness” for continued service “and
not to determine if [Plaintiff is] entitled to disability processing.” 6/8/17 Pl. Resp. at 12–13
(quoting AR at 146) (internal correction omitted). Therefore, the only statutorily authorized board
available to Plaintiff was the AFBCMR. 6/8/17 Pl. Resp. at 13. And, Plaintiff could not pursue
his cause of action in the United States Court of Federal Claims until the AFBCMR finally denied
his claim. 6/8/17 Pl. Resp. at 13; see also Friedman v. United States, 310 F.2d 381, 396 (Ct. Cl.
1962).15 Therefore, Plaintiff’s claim did not accrue until the AFBCMR denied his claim on
February 23, 2013, starting the six-year statute of limitations period. 6/8/17 Pl. Resp. at 13.

                 3.     The Government’s Reply.

        The Government replies that the statute of limitations period has run, because Plaintiff
knew that he had suffered a stroke and was no longer fit for military service prior to his discharge,
but failed to challenge the USAF’s determination. 6/22/17 Gov’t Reply at 6–7. It is well-
established that “[a] cause of action cognizable in a Tucker Act suit accrues . . . when ‘all events
have occurred to fix the Government’s alleged liability, entitling the claimant to demand payment
and sue [in the United States Court of Federal Claims] for his money.’” 6/22/17 Gov’t Reply at 6
(quoting Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003)). Yet, prior to discharge,
Plaintiff knew that he suffered a stroke and was no longer fit for military service, and, as such he
was ineligible for a disability retirement, if the stroke did not occur in the line of duty. 6/22/17
Gov’t Reply at 6. Nevertheless, Plaintiff waived the opportunity to be heard by IPEB and any
rights of appeal he may have had for a formal PEB. 6/22/17 Gov’t Reply at 6–7. Moreover, AFI
36-321216 authorized Plaintiff to challenge the USAF and argue for a LOD determination. 6/22/17
Gov’t Reply at 7. These options, however, were never pursued, because Plaintiff “never contended
he was on orders or engaged in IDT.” 6/22/17 Gov’t Reply at 7. Instead, Plaintiff accepted regular
reserve retirement, pursuant to 10 U.S.C. § 12731b, because his physical disabilities did not incur
in line of duty, i.e., prior to September 15, 2008. 6/22/17 Gov’t Reply at 7.

       The facts of this case are similar to those in Miller and Huffaker, in that Plaintiff was “well
aware of the operative facts relating to his disability well before the date of discharge.” 6/22/17
Gov’t Reply at 7. But, the court should bear in mind that Plaintiff, who is an attorney and was
offered and utilized the assistance of another attorney provided by the USAF, was a sophisticated

       15
           “The normal rule, where a proper administrative tribunal has denied or refused to
consider a claim and further administrative remedies are permissive not mandatory, is that the
judicial cause of action arises immediately upon the initial tribunal’s action and does not start again
upon a subsequent administrative decision affirming that holding.” Friedman, 310 F.2d at 396.
       16
            Paragraph 3.37.2.1. of AFI 36-3212 provides:

       If, upon special review, the IPEB issues an unfit finding and recommends disability
       separation or retirement, an AF Form 356 will be referred to the evaluee, and the
       case will proceed in the same manner as other unfit cases.

AFI 36-3212, ¶ 3.37.2.1.



                                                  15
reservist who was or should have been fully aware of his right to challenge the USAF’s position
and demand a hearing. 6/22/17 Gov’t Reply at 7. His failure to act in a timely fashion does not
toll the statute of limitations. 6/22/17 Gov’t Reply at 7–8 (citing Menominee Tribe of Indians v.
United States, 726 F.2d 718, 720–21 (Fed. Cir. 1984) (“28 U.S.C. § 2501 is not tolled by the
[plaintiffs’] ignorance of their legal rights”); Dion v. United States, 137 Ct. Cl. 166 (1956)
(“ignorance of [one’s] legal rights does not toll the statute” of limitations)). Therefore, the October
9, 2015 Complaint is untimely and the Government’s May 8, 2017 Motion to Dismiss for lack of
subject matter jurisdiction should be granted. 6/22/17 Gov’t Reply at 8.

               4.       Plaintiff’s Sur-Reply.

        Plaintiff replies that the Tucker Act’s six-year statute of limitations has not expired,
because it does not accrue until a properly charged military board evaluates the service member’s
entitlement to retirement and Plaintiff’s claim was denied by the AFBCMR on February 23, 2013.
6/29/17 Pl. Sur-Reply at 2, 9. The Government concedes that the USAF did not make a LOD
determination or provide a statutorily authorized board to evaluate Plaintiff’s entitlement to
disability retirement. 6/29/17 Pl. Sur-Reply at 3. Instead, the IPEB evaluation was solely to
determine Plaintiff’s fitness for continued military duty. 6/29/17 Pl. Sur-Reply at 3. Nevertheless,
the Government “completely ignores the long-standing rule established by Friedman [v. United
States, 310 F.2d 381 (Ct. Cl. 1962)] that a claim for disability retirement accrues on action by the
first duly authorized board,” that is the AFBCMR in this case. 6/29/17 Pl. Sur-Reply at 3.

         Second, the Government cites inapplicable case law to advance an adoption of an exception
to the “first competent board rule.” 6/29/17 Pl. Sur-Reply at 3, 6. Specifically, Miller and Huffaker
are distinguishable, because they involve plaintiffs who were active duty service members.
6/29/17 Pl. Sur-Reply at 3–5. But, active duty service members “automatically receive a board
that consists of two parts”: the first determines fitness and the second assigns a disability rating
that separates a service member, with severance pay, or retires a service member, with disability
pay. 6/29/17 Pl. Sur-Reply at 6. These cases cited by the Government involve active duty service
members and are not relevant to Reserve forces. 6/29/17 Pl. Sur-Reply at 6. The active duty
plaintiffs in Miller and Huffaker were deemed fit for duty during the discharge process and
therefore ineligible for disability retirement, but they did not challenge the determination at the
time it was made. 6/29/17 Pl. Sur-Reply at 5. In this case, however, Plaintiff was “determined
unfit for duty and as a reservist” was never provided an opportunity or determination to challenge
his disability retirement until the AFBCMR denied his claim[.]” 6/29/17 Pl. Sur-Reply at 5.

        Third, the Government’s argument that Plaintiff waived his right to a formal PEB or a LOD
determination is “illogical and simply impossible.” 6/29/17 Pl. Sur-Reply at 6. Plaintiff was not
provided with an opportunity to deny or otherwise contest or request a LOD determination and
therefore could not have waived such a determination. 6/29/17 Pl. Sur-Reply at 7. The USAF
only offered Plaintiff an IPEB to “determine one issue: [Plaintiff’s] fitness for continued military
duty.” 6/29/17 Pl. Sur-Reply at 7. The fact that Plaintiff did not challenge his fitness for continued
military duty cannot be construed as a refusal or waiver of his right to disability benefits. 6/29/17
Pl. Sur-Reply at 7. The Government contends that “a board that considers solely fitness for duty
is legally the same as a board that can decide fitness for duty AND provide a disability rating for
those conditions which ultimately leads to disability retirement.” 6/29/17 Pl. Sur-Reply at 7. This
argument is erroneous, because the Government conceded in the April 21, 2016 Reply that


                                                  16
Plaintiff’s case “was handled differently than active duty or ARC members on orders[,] because
he was deemed ineligible for disability processing” so the IPEB evaluation would “be processed
for a fitness for duty determination only.” 6/29/17 Pl. Sur-Reply at 7–8 (citing 4/21/16 Gov’t
Reply at 4). In addition, the Administrative Record shows that “review by the PEB is only to
determine [Plaintiff’s] ‘fitness’ for continued military duty and not to determine if [Plaintiff is]
entitled to disability processing.” 6/29/17 Pl. Sur-Reply at 9 (quoting AR at 146) (internal
correction omitted). Therefore, the Administrative Record belies the Government’s April 21, 2016
Reply, because Plaintiff “could not waive any rights to his entitlement to disability by refusing a
fitness determination.” 6/29/17 Pl. Sur-Reply at 8, 9.

        Fourth, the Government incorrectly argues that Plaintiff should have known he was
waiving his rights to a disability determination or initiated the process sooner, because he was a
“sophisticated reservist” and an attorney. 6/29/17 Pl. Sur-Reply at 8. At the time the USAF
requested Plaintiff’s waiver of the IPEB, he was “an acknowledged recent stroke victim with
physical and mental impairment, had no particular training in military law, and was not a JAG
officer.” 6/29/17 Pl. Sur-Reply at 8 (citing 6/8/17 Pl. Resp. Ex. 6 at ¶ 3). Plaintiff also was
informed that the IPEB “was solely to determine his fitness for military duty and that the IPEB
would not affect any other rights he might have.” 6/29/17 Pl. Sur-Reply at 8–9 (citing 6/8/17 Pl.
Resp. Ex. 6 at ¶ 39). Therefore, the Government’s argument that Plaintiff should have known that
he was waiving the rights to a disability determination is unfounded. 6/29/17 Pl. Sur-Reply at 9.

                  5.     The Court’s Resolution.

        It is well-established that a cause of action “accrues as soon as all events have occurred
that are necessary to enable the plaintiff to [file] suit, i.e., when all events have occurred to fix the
Government’s alleged liability[.]” Martinez, 333 F.3d at 1303 (internal quotation marks omitted).
A claim for wrongful discharge accrues at the time a service member is discharged from the
military. Id. (“In a military discharge case, . . . the Court of Claims ha[s] long held that the
plaintiff’s cause of action for back pay accrues at the time of the plaintiff’s discharge.”); see also
Johnson v. United States, 123 Fed. Cl. 174, 177 (2015) (“Military pay claims based on a theory of
wrongful discharge accrue at the time of discharge.”). But, “[u]nlike claims for unlawful
discharge, . . . claims of entitlement to disability retirement pay generally do not accrue until [an]
appropriate military board either finally denies such a claim or refuses to hear it,” i.e., until the
“first competent board” takes “final action.” Chambers, 417 F.3d at 1224–25 (emphasis added)
(citations omitted).17 A military board is competent if it is “statutorily authorized” to hear the
claim. See Real, 906 F.2d at 1560.


        17
             The “first competent board” rule states:

        (a). The judicial claim for [D]isability [R]etirement [P]ay does not accrue on release
        from active duty but rather on final action of a board competent to pass upon
        eligibility for [D]isability [R]etirement [Pay] (or upon refusal of a request for such
        a board).

        (b). Normally, the Retiring Board is the proper board, but where the claimant has
        not had or sought a Retiring Board, his claim does not accrue until final action by


                                                   17
         An exception to this rule has been recognized by the United States Court of Appeals for
the Federal Circuit in a case where our appellate court considered, “[w]hether the veteran’s
knowledge of the existence and extent of his condition at the time of his discharge was sufficient
to justify concluding that he waived the right to board review of the service’s finding of fitness by
failing to demand a board prior to his discharge[.]” Real, 906 F.2d at 1562. Subsequently, in
Chambers, the application of this exception was clarified further:

       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 plaintiff] 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.

Chambers, 417 F.3d at 1226 (emphasis added).


       the Correction Board (which in that instance stands in the place of the Retiring
       Board as the proper tribunal to determine eligibility for [D]isability [R]etirement
       [Pay]).

       (c). A board’s action (or failure to act) is not final if (i) the claimant has been
       misled, (ii) the board’s decision is tentative and invites reopening, (iii) the armed
       service itself reopens the case, or (iv) there are other circumstances depriving the
       action or non-action of finality.

       (d). Once a final decision is had, the claim accrues, the limitations period begins to
       run, and there is no tolling of the statute by reason of further applications to other
       boards or agencies (including the Correction Board).

       (e). Once a final decision is had, adverse determinations by other boards, including
       the Correction Board, do not give rise to a new cause of action.

       (f). A claim for entitlement to [D]isability [R]etirement [Pay]—of the type
       requiring discretionary action by a board and the Secretary—is not a “continuing
       claim” but accrues as a whole (once it accrues). However, other types of pay claims
       not dependent on a board finding—including claims for increased retirement pay
       because of new legislation, etc.—are “continuing” claims.

Friedman, 310 F.2d at 395–96; see also Chambers, 417 F.3d at 1225 n.2 (“A Retiring Board, now
called Physical Examination Board or PEB, determines a service member’s fitness for duty and
entitlement to [D]isability [R]etirement [Pay] once a Medical Examination Board or MEB finds
the soldier does not meet the [service]’s standards for retention under its regulations.”).



                                                 18
        Therefore, to determine if Plaintiff “knew he was entitled to disability retirement,” the court
first must determine whether the statutory requirements for disability retirement benefits are met,
set forth in 10 U.S.C. § 1204. See Chambers, 417 F.3d at 1226 (“the issue [is] whether the
[plaintiff’s] knowledge of the existence and extent of his condition at the time of his discharge was
sufficient to justify concluding that he waived the right to board review of the service’s finding of
fitness by failing to demand a board prior to his discharge. . . . Such knowledge . . . must be
determined by reference to the statutory requirements for disability retirement”) (internal quotation
marks, corrections, and citations omitted).

        In this case, the Government argues that Plaintiff waived the right to board review, when
he signed the PEB Election Form. 6/22/17 Gov’t Reply at 6–7. The Administrative Record,
however, is not clear as to whether the USAF gave proper “consideration to the question of whether
such a reference [to a Disability Retirement Board] should be made,” since no LOD investigation
was performed. See Miller, 175 Ct. Cl. at 878 (“although the plaintiff did not himself request that
his case be referred to an Army retiring board . . . the Army itself gave consideration to the question
of whether such a reference should be made, and the determination was negative”). A PEB
traditionally “determines a service member’s fitness for duty and entitlement to disability
retirement[.]” Chambers, 417 F.3d at 1225 n.2. But, in this case, the USAF prematurely
determined that Plaintiff’s injury did not occur in the line of duty, so it referred Plaintiff “into the
[Disability Evaluation System] solely for a fitness determination,” pursuant to Section 8E of AFI
36-3212. 3/21/16 Pl. Resp. Ex. 4 at 72 (AFI 36-3212 ¶ 8.19.2.); see also AR at 146 (“The review
by the PEB is only to determine my ‘fitness’ for continued military duty and not to determine if I
am entitled to disability processing. . . . If I elect to have my case reviewed by the PEB solely for
a ‘fitness’ determination, I understand referral of my case does not constitute a disability
evaluation, and an ‘unfit’ decision does not entitle me to disability compensation from the Air
Force.”) (internal correction omitted). Consequently, when Plaintiff was discharged into the
Retired Reserves on September 15, 2008, effective September 4, 2008, he “neither requested nor
[was] offered consideration by a disability board prior to discharge,” to determine whether he was
eligible to be retired for disability. See Chambers, 417 F.3d at 1226. Nevertheless, the
Government insists that the Real exception applies and the statute of limitations on Plaintiff’s
claim accrued the day of his discharge in 2008, because Plaintiff was aware of his permanent
disability at that time. 5/8/17 Gov’t Mot. at 8. In addition, Plaintiff’s failure to request a disability
retiring board, when he was discharged in 2008, waived his right to review by a competent board.
Id. at 8–9.

        The appropriate inquiry in this case is whether, at the time of his separation from the USAF
in 2008, Plaintiff knew he was entitled to disability retirement—even though his permanent
disability was not caused by intentional misconduct and was “service-connected”—but he
nevertheless waived his right to review by the IPEB. See Chambers, 417 F.3d at 1226; see also
10 U.S.C. § 1204. Plaintiff concedes that he was aware that he suffered from a permanent
disability at the time of his discharge. 6/29/17 Pl. Sur-Reply at 13 (“[Plaintiff suffered a
permanently disabling stroke on September 3, 2006[.]”). And, neither party contends that the
disabling injury occurred as a result of Plaintiff’s intentional misconduct or willful neglect. More
importantly, the October 9, 2017 Complaint alleged, that on two separate occasions, Plaintiff was
informed by the USAF that, since his disabling injury occurred during the SFIP, he was not entitled
to disability retirement, because participation in the SFIP did not qualify as IDT. Compl. ¶¶ 23,
24. Therefore, at the time of his discharge in 2008, Plaintiff was not aware that he was entitled


                                                   19
disability retirement and, based on his reliance on the USAF’s misinformed or mistaken advice,
he did not request review by the IPEB. Under these circumstances, Plaintiff did not waive his right
to board review and his claim is not time barred, since the October 9, 2015 Complaint was filed
less than six years after the AFBCMR issued a final decision on February 28, 2013.

        G.      Whether The October 9, 2015 Complaint Fails To State A Claim On Which
                Relief Can Be Granted.

                1.      The Government’s Argument.

        The Government argues that the October 9, 2015 Complaint fails to allege a claim on which
relief can be granted, because: (1) Plaintiff’s stroke did not occur in the line of duty, i.e., “while
performing active duty or in active duty training”; and (2) Plaintiff does not have at least 20 years
of service nor is his stroke “at least 30% . . . based on the standard . . . in use by the VA at the time
of the [determination].” 5/8/17 Gov’t Mot. at 12, 17–18 (quoting 10 U.S.C. § 1204(2)(B), (4)(A)–
(B)).

       First, Plaintiff was not entitled to a LOD determination. 5/8/17 Gov’t Mot. at 10. The
relevant USAF regulation is the 2002 version of AFI 36-2910, that provides:

        1.4 Personnel Who May Be Subject to LOD Determinations.

                1.4.1 Active Duty Air [F]orce members

                1.4.2 Members of the ARC who die, incur or aggravate an illness, injury, or
                disease while:

                        1.4.2.1 On published orders for any period of time, or while on
                        inactive duty.

                        1.4.2.2. Traveling directly to or from the place the member performs
                        active duty, or inactive duty for training.

5/8/17 Gov’t Mot. at 10 (quoting AFI 36-2910 ¶ 1.4).

         Plaintiff’s argument that the USAF deprived him of an LOD determination is incorrect,
because Plaintiff was not on orders or in military status when he was engaged in the SFIP. 5/8/17
Gov’t Mot. at 10. As noted by Plaintiff’s Master Sergeant (“MSgt”), “[Plaintiff] was not on orders
or in a military status at the time he suffered his stroke. . . . [I]n my experience[, the SFIP] by
itself has never been considered [to require a LOD determination,] because [a service] member is
not on orders or in a military status when he is exercising on his own.” 5/8/17 Gov’t Mot. App’x
at 26–27.

      Second, Plaintiff’s participation in the SFIP does not qualify as IDT. 5/8/17 Gov’t Mot. at
11. IDT is defined under 10 U.S.C. § 101(d)(7) as:

        (A) duty prescribed for Reserves by the Secretary concerned under section 206 of
        title 37 or any other provision of law; and


                                                   20
        (B) special additional duties authorized for Reserves by an authority designated by
        the Secretary concerned and performed by them on a voluntary basis in connection
        with the prescribed training or maintenance activities of the units to which they are
        assigned.

10 U.S.C. § 101(d)(7).

        Plaintiff’s contention that a LOD proceeding would have determined that his participation
in the SFIP was IDT, because it was a “special additional dut[y] authorized for Reserves . . . by
the Secretary . . . and performed . . . on a voluntary basis” is incorrect, because participation in the
SFIP does not require authorization by the Secretary. 5/8/17 Gov’t Mot. at 11 (quoting 10 U.S.C.
101(d)(7)); see also Compl. ¶¶ 9–10). As noted by Plaintiff’s Senior Master Sergeant (“SMSgt”):

        [S]ince the inception of [the] SFIP, it has always been a voluntary program that
        cannot be enforced when a military [service] member is not on orders or in a
        military status. It is a program that is used to encourage [service] members to
        remain fit for duty . . . but not something that can be made a requirement when they
        are off-duty like [Plaintiff] was when he suffered his stroke. Meaning, a person
        who is exercising on his own while off-duty has never, in my experience, been
        characterized to have been performing [IDT].

5/8/17 Gov’t Mot App’x at 24. Since Plaintiff was not in military status or on orders when he
engaged in the SFIP, the SFIP was not IDT performed in the LOD. 5/8/17 Gov’t Mot. at 11–12.

        Third, because Plaintiff was not in a military status or on orders when he engaged in the
SFIP, he failed to satisfy the requirement of 10 U.S.C. § 1204(2)(B)(i) to demonstrate that he
suffered a disability injury “in the line of duty while performing active duty or inactive duty
training.” 5/8/17 Gov’t Mot. at 12. The USAF Secretary also has defined IDT in AFI 36-2254,
Reserve Personnel Participation, at Ch. 4, that in relevant part, provides: “All IDT must . . . [h]ave
advance written authorization from the [service] member’s commander[.] A signature is required
in Block III of Form 40A[.]” AFI 36-2254 ¶ 4.2.1.1. In addition, IDT must be “performed for pay
and points[.]” AFI 36-2254 ¶ 4.2.1.3.

        Therefore, a commander’s authorization is a condition precedent for any activity performed
as an IDT. 5/8/17 Gov’t Mot. at 12; see also 5/8/17 Gov’t Mot. App’x at 27 (“In order for a service
member to be considered on inactive duty status, it is a requirement that he get advance approval
by his commander via an AF From 40A[.] Because [Plaintiff] lacked such documentation covering
the time he suffered his stroke, he was not in inactive duty status when it occurred.”). The parties
do not dispute that Plaintiff failed to produce a Form 40A to demonstrate that he was authorized
by his Commander to engage in off-duty exercise in IDT status. 5/8/17 Gov’t Mot. at 12. In
addition, the USAF’s fitness regulation expressly requires that the SFIP cannot be IDT without
military status or a commander’s authorization: “ARC members may not apply personal physical
fitness activities for the purpose of obtaining participation credit for AT, UTA, IDT, or additional
training periods.” AFI 36-2905 ¶ 7.3.5. “Since [service members] are in non-duty status, their
participation in the [S]FIP is not mandated.” AFI 10-248. The SFIP is not considered as “special
additional duties authorized for Reserves,” because Reserves participation is encouraged, not
mandated. 5/8/17 Gov’t Mot. at 13; see also AFI 10-248 ¶ 1.12.9.4 (“Member participation in


                                                  21
non-duty status is encouraged.”). Therefore, without a Form 40A authorizing Plaintiff to engage
in the SFIP in a military status, Plaintiff could not qualify for a disability retirement. 5/8/17 Gov’t
Mot. at 13.

         Fourth, even if Plaintiff could demonstrate he was on orders when participating in the SFIP,
his claim fails, because he did not incur the stroke while participating in the SFIP. 5/8/17 Gov’t
Mot. at 14. The Administrative Record and the supplemental medical records establish that
Plaintiff did not suffer a stroke as a result of the SFIP. 5/8/17 Gov’t Mot. at 14. A medical record
of Plaintiff’s initial visit to the hospital generated by Plaintiff’s physician on September 4, 2006
states, “[h]e was in his usual state of health until about midnight prior to hospitalization, at which
time he began having these symptoms of dysarthria and right-sided weakness.” 5/8/17 Gov’t Mot.
App’x at 79. One of Plaintiff’s SMSgt also indicated that Plaintiff did not mention collapsing
and/or crawling after exercising in the hours prior to experiencing a stroke. 5/8/17 Gov’t Mot. at
14. This claim—made for the first time in the October 9, 2015 Complaint—is directly contrary to
what Plaintiff told his doctors when he was admitted to the emergency room, received in-patient
treatment, and engaged in rehabilitation following the stroke. 5/8/17 Gov’t Mot. at 14.
Specifically, Plaintiff’s September 4, 2006 medical record reported:

        [Plaintiff] was up playing cards with some friends. He had drunk two beers. He
        developed the acute onset of some clumsiness and weakness of his right upper
        extremity. Subsequently, he also noted some clumsiness and weakness in his right
        lower extremity. He initially attributed the symptoms to some medication that he
        had been taking for an upper respiratory tract infection.

5/8/17 Gov’t Mot. App’x at 23, 84.

        After Plaintiff offered details of late-night drinking alcohol and playing cards with friends,
he did not mention any physical collapse or persistent worsening of a headache or other pain.
5/8/17 Gov’t Mot. at 15. Another medical record on September 9, 2006—five days after the
stroke—also reports that “[Plaintiff] was doing well until midnight prior to the hospitalization date
of 9/4/06. He began having symptoms and came to the emergency room.” 5/8/17 Gov’t Mot. at
16; 5/8/17 Gov’t Mot. App’x at 76.

       On November 26, 2006, Plaintiff was asked to describe “When, Where and How [The]
Accident Happened” and he replied that he was “[o]ut with friends, about 12:30am began having
clumsiness on right side, [went] to hospital – No previous problems.” 5/8/17 Gov’t Mot. at 16;
5/8/17 Gov’t Mot. App’x at 74. Plaintiff’s SMSgt remembered Plaintiff’s case, but “[did] not
remember [Plaintiff] ever mentioning that he suffered the stroke following performing exercise[,]
pursuant to [the SFIP].” 5/8/17 Gov’t Mot. at 16–17; 5/8/17 Gov’t Mot. App’x 22.

         Indeed, it was not until almost five years after his stroke that Plaintiff stated for the first
time in his AFBCMR petition that the stoke resulted from exercise performed during the
September 3, 2006 SFIP. 5/8/17 Gov’t Mot. at 17; 5/8/17 Gov’t Mot. App’x at 77. Accordingly,
the Government concluded that the “natural conclusion from the timeline of events . . . is that
[Plaintiff] contrived the claim in order to persuade the AFBCMR that he was entitled to a disability
retirement[.]” 5/8/17 Gov’t Mot. at 17. The stroke, however, resulted from independent events
later in the day or early the next morning, not the SFIP. 5/8/17 Gov’t Mot. at 17


                                                  22
        Finally, Plaintiff fails to meet the requirement of 10 U.S.C. § 1204(4)(A)–(B), because he
does not have 20 years of qualifying service or at least a 30 percent VA disability rating for the
stroke. 5/8/17 Gov’t Mot. at 17. The October 9, 2015 Complaint represents that Plaintiff had 16
years of service, and failed to qualify for a disability retirement under 10 U.S.C. § 1204(4)(A).
5/8/17 Gov’t Mot. at 18. Second, in an Affidavit In Support Of Application For Correction Of
Military Records, dated May 7, 2011, Plaintiff stated: “I am currently rated as 20% disabled by
the VA, and a claim for my [stroke] remains pending with the VA.” 5/8/17 Gov’t Mot. at 18;
5/8/17 Gov’t Mot. App’x at 38. Plaintiff contends that the stroke would have been rated in excess
of 30% under VA standards, if the USAF had found that it occurred while in the LOD. 5/8/17
Gov’t Mot. at 18.

                2.     Plaintiff’s Response.

        Plaintiff responds that the October 9, 2015 Complaint pled sufficient facts to state a claim
for disability retirement benefits, pursuant to 10 U.S.C. § 1204, i.e., (1) Plaintiff suffered a
permanent injury; (2) the injury was incurred while performing IDT; (3) the injury was not the
result of intentional misconduct or willful neglect; and (4) the injury is rated by the VA at 30%, or
higher. 6/8/17 Pl. Resp. at 13–14.

        First, Plaintiff suffered a permanent injury while engaged in the SFIP. 6/8/17 Pl. Resp. at
14. The Government does not contest that Plaintiff suffered a stroke, that left Plaintiff disqualified
for military duty and permanently disabled. 6/8/17 Pl. Resp. at 14. Plaintiff began the SFIP
training at about 3:30 PM on September 3, 2006, and collapsed while running during the SFIP.
6/8/17 Pl. Resp. at 14–15. Several hours later, Plaintiff had a few drinks with his friends and began
experiencing dexterity problems, and was subsequently diagnosed with a stroke. 6/8/17 Pl. Resp.
at 15. Plaintiff initially did not relate the afternoon collapse to later symptoms, since “they were
different in nature and he believed the prior episode to merely be a bout of heat exhaustion.” 6/8/17
Pl. Resp. at 15. Statements from Dr. Early and Dr. Goodyear report that when Plaintiff’s prior
blood pressure spikes are combined with vigorous exercise, such as running, a stroke or heart
attack is highly likely. 6/8/17 Pl. Resp. at 15–16 (citing AR at 45–49 (Dr. Early); 6/8/17 Pl. Resp.
Ex. 11 at 77) (Dr. Goodyear)). Therefore, the Government incorrectly assumes that the stroke did
not result from participating in the SFIP by stating it was not until almost five years after the stroke
that Plaintiff stated, for the first time in the AFBCMR petition, that the stoke resulted from exercise
performed during the SFIP earlier that day. 6/8/17 Pl. Resp. at 16. The Government relies on
Plaintiff’s SMSgt’s interpretation of a limited medical record addressing only what Plaintiff
reported at the emergency room. 6/8/17 Pl. Resp. at 16.

        In addition, Plaintiff’s entire medical squadron had been updated with his medical situation
in December 2006. 6/8/17 Pl. Resp. at 16. In fact, the Government’s physician, Colonel Savory,
has admitted that Plaintiff’s stroke was caused by the SFIP. 6/8/17 Pl. Resp. at 17 (citing AR at
151–54 (“On September 4, 2006, [Plaintiff] noted a right sided weakness and ‘clumsiness’ with
lack of coordination. This started approximately mid-day and as the day progressed he noted he
had increasing problems signing his name.”)). Diagnostic Notes, dated February 4, 2007, also
report that Plaintiff suffered a stroke, due to high blood pressure caused by elevated homocysteine
levels and vasospasms. 6/8/17 Pl. Resp. at 17. In addition, the February 4, 2017 Diagnostic Notes
report that the stroke occurred mid-afternoon, during the SFIP run, and not later in the day. 6/8/17
Pl. Resp. at 17.


                                                  23
        Second, as to the IDT requirement, Plaintiff responds that the stroke falls within the
definition of IDT, because his participation in the SFIP was ordered by the Command and
sufficient facts have been alleged to establish that Plaintiff was performing IDT at the time of his
stroke. 6/8/17 Pl. Resp. at 19. Specifically, the SFIP is “special additional duties authorized for
Reserves by an authority designated by the Secretary concerned and performed by them on a
voluntary basis in connection with the prescribed training or maintenance activities of the units to
which they are assigned,” 6/8/17 Pl. Resp. at 19 (quoting 10 U.S.C. § 101(d)(7)), i.e., because
Plaintiff “received orders to participate in the SFIP and was expected to meet the daily SFIP
requirements.” 6/8/17 Pl. Resp. at 19.

        On November 4, 2004, Colonel Moton enrolled Plaintiff in the SFIP after he failed the FA.
6/8/17 Pl. Resp. at 20. Plaintiff received a letter enrolling him in the SFIP that included an
attachment—a page with the required frequency and performance standards applicable to Plaintiff
for each of the specified exercises. 6/8/17 Pl. Resp. at 20. Despite the court’s August 30, 2016
Order requesting the November 4, 2004 letter, the USAF failed to produce this document. 6/8/17
Pl. Resp. at 20. Since, the Government does not contest that Plaintiff was enrolled in the SFIP or
that such a letter was issued, the court is entitled to assume the allegations in the Complaint are
accurate. 6/8/17 Pl. Resp. at 20.

        In addition to being ordered by the November 4, 2004 letter to engage in the SFIP exercises,
Plaintiff was routinely verbally ordered to engage in the SFIP exercises, as affirmed by Plaintiff’s
Commander. 6/8/17 Pl. Resp. at 20; 6/8/17 Pl. Resp. Ex. 7 at 1 (Rowlands) (“[Plaintiff] was
formally enrolled in the Self-Paced Fitness Improvement Program (SFIP) [and] was ordered to
exercise at least five times per week performing the exercises mandated by the Fitness Program.”).
In fact, Plaintiff’s Commander referred to AFI 10-248, that permitted him to order members to
enroll in the SFIP to exercise five times a day. 6/8/17 Pl. Resp. at 20; see also 6/8/17 Pl. Resp.
Ex. 7 at 2. Plaintiff’s direct supervisor also was aware that Plaintiff “was ordered to perform the
exercises mandated by the fitness program[.]” 6/8/17 Pl. Resp. at 20; 6/8/17 Pl. Resp. Ex. 8 at 1
(Snowman). In addition, “[Plaintiff] was performing ordered military training in the SFIP when
he suffered his stroke. Because the SFIP meets the definition of 10 U.S.C. § 101(d)(7)(B),
[Plaintiff] was in [military] status doing [IDT].” 6/8/17 Pl. Resp. at 20; 6/8/17 Pl. Resp. Ex. 8 at
6 (Snowman). In addition, the USAFR’s Chief Customer Support affirmed that Plaintiff was
ordered to exercise under the SFIP. 6/8/17 Pl. Resp. at 21; 6/8/17 Pl. Resp. Ex. 9 at 1 (Bingham)
(“[Plaintiff] reports he was ordered to run, and this was consistent with the wing’s emphasis on
running and directing members to exercise[.]”). Therefore, “[b]ecause [Plaintiff] was ordered to
exercise, he was performing IDT, as defined in 10 U.S.C. § 101(d)(7)(B).” 6/8/17 Pl. Resp. at 21.

       The Government incorrectly argues that Plaintiff was not engaged in IDT, because the
foundation for the Government’s argument is Plaintiff’s SMSgt’s statement, that relies on no
documented authority or regulation and only expressed a personal opinion that the SFIP is
voluntary and cannot be enforced. 6/8/17 Pl. Resp. at 21; see also Pl. Resp. Ex. 7. The
Government adds that a service member cannot be on IDT without filing a Form 40A that provides
compensation in pay or points for service, but this assertion is “simply factually and legally
incorrect and is supported by no authority[.]” 6/8/17 Pl. Resp. at 21. The definition of IDT in 10
U. S.C. § 101(d)(7) does not mention any requirement for compensation or Form 40A. 6/8/17 Pl.
Resp. at 22. In fact, a Form 40A can only issue compensation for a four-hour block of time, so
any IDT under four hours, such as the SFIP, is not required to be and is not documented by a Form


                                                24
40A. 6/8/17 Pl. Resp. at 22. Plaintiff’s affidavit cites IDT examples that do not require a Form
40A, because they were less than four hours. 6/8/17 Pl. Resp. Ex. 6 at ¶¶ 16–22. In any event, a
Form 40A does not constitute authority for determining whether a Reservist is in IDT. 6/8/17 Pl.
Resp. at 22.

        The Government also relies on AFI 10-248 ¶ 1.12.9.4, stating that participation in the SFIP
is “encouraged,” but this argument overlooks the fact that the AFI sets the minimum requirements
for those who fall under its authority and does not control the extent to which the AFI is
implemented, i.e., that participation can be mandated. 6/8/17 Pl. Resp. at 22 (citing AFI 10-248 ¶
1.12.9.4). As Plaintiff’s MSgt notes, however, the SFIP was imposed on members more forcefully
than the AFI’s language suggests. 6/8/17 Pl. Resp. at 22; 6/8/17 Pl. Resp. Ex. 9 at 1 (Bingham)
(“The AFI 10-248 in effect between 26 May 2004 and 24 Sep[tember] 2006 did not prohibit
ordering or otherwise requiring [service] members to exercise.”). Moreover, Attachment 15 to
AFI 10-248 contemplates potential adverse consequences, as the title “Fitness Program Adverse
Event Reporting Format” suggests, and the requirement to document any significant injury
associated “with either fitness program assessment, unit physical training or [the] SFIP exercise,
on or off duty.” 6/8/17 Pl. Resp. at 23 (quoting AFI 10-248, Attachment 15 at 84) (internal
correction omitted). Therefore, the USAF anticipated injuries related to the SFIP, so that injury
reports were required in the event LOD determinations were required—but no injury report was
made regarding Plaintiff’s injury for a LOD determination. 6/8/17 Pl. Resp. at 23.

        Third, Plaintiff was entitled to a LOD determination under AFI 36-2910, because he
suffered a permanent disability while on inactive duty. 6/8/17 Pl. Resp. at 24. The Government
relies on MSgt Westmoreland’s statement that he never experienced the SFIP to require a LOD,
but his experience does not address the circumstances where the SFIP was required and mandated
by Command in writing and verbally. 6/8/17 Pl. Resp. at 24. MSgt Westmoreland also
mischaracterizes the use of Form 40A and its use in determining whether a member is on IDT.
6/8/17 Pl. Resp. at 24. In fact, the Command requires a Form 40A when a service member is
training or working for four or more hours, so that any lesser amount of time would not be
documented. 6/8/17 Pl. Resp. at 25.

       Plaintiff was also entitled to an LOD determination under AFI 36-2910 ¶ 1.5, that provides:

       1.5.    When an LOD Determination is Required. The LOD determination process
       must be initiated when a member, whether hospitalized or not, has an illness, injury
       or disease that results in:

                                             *        *     *

               1.5.2. The member’s inability to perform military duties for more that 24
               hours,

               1.5.3. The likelihood of a permanent disability[.]

AFI 36-2910 ¶ 1.5.

       Plaintiff has an illness that renders him unable to perform military duties for more than 24
hours and there is likelihood of a permanent disability; therefore, the Government cannot argue


                                                 25
that Plaintiff was not entitled to a LOD determination. 6/8/17 Pl. Resp. at 25. AFI 36-2910
¶ 3.4.2.1, however, requires that “[a]n [i]nformal [LOD] . . . rather than an administrative, must be
initiated . . . [w]hen the case involves service aggravated [existing prior to service (“EAPTS”)]
medical conditions.” 6/8/17 Pl. Resp. at 26 (quoting AFI 36-2910). In this case, Plaintiff was
entitled to a LOD determination, because the stroke qualifies as an EAPTS medical condition,
because Plaintiff is required to undergo years of treatment for hypertension. 6/8/17 Pl. Resp. at
26–27. If the USAF had conducted a LOD determination as required by regulation, Plaintiff’s
duty status and eligibility for a medical retirement would be settled. 6/8/17 Pl. Resp. at 27.

        Fourth, Plaintiff’s VA Disability Rating meets the requirements set forth in 10 U.S.C. §
1204(4)(B). 6/8/17 Pl. Resp. at 27. Although the VA has not considered the stroke when providing
Plaintiff with a disability rating, Plaintiff received a 40% disability rating from the VA. 6/8/17 Pl.
Resp. at 28; see also 6/8/17 Pl. Resp. Ex. 5 at 2. Therefore, Plaintiff’s 40% disability rating
exceeds the statutorily required 30% rating under 10 U.S.C. § 1204(4)(B). 6/8/17 Pl. Resp. at 28.

               3.      The Government’s Reply.

        The Government replies that Plaintiff ignores AFI 10-248. Namely, paragraph 1.12.9.4
provides: “Member participation in non-duty status is encouraged.” Gov’t Reply at 16 (quoting
AFI 10-248, ¶ 1.12.9.4.); see also AFI 10-248 at 45 (“Since [Reserves] are in a non-duty status,
their participation in the [Fitness Improvement Program (“FIP”)]18 is not mandated. Members are
highly encouraged to take part on a voluntary basis in all available intervention programs to include
an individualized fitness prescription[.]”). These references make clear that Plaintiff was not
compelled by the USAF to exercise at the time he suffered the stroke. Gov’t Reply at 16.
Therefore, Plaintiff was on non-duty status at that time. Gov’t Reply at 16.

               4.      Plaintiff’s Sur-Reply.

       Plaintiff does not raise any new arguments in the May 18, 2016 Sur-Reply.

               5.      The Court’s Resolution.

        The October 9, 2015 Complaint alleges that Plaintiff is entitled to disability retirement,
pursuant to 10 U.S.C. § 1204. Compl. ¶¶ 22, 42. Section 1204 of Title 10 of the United States
Code provides that the Air Force Secretary “may retire [a service] member, with retired pay
computed under section 1401 of this title,” if the member meets the requirements of 10 U.S.C. §
1204; see also Asbury v. United States, 30 Fed. Cl. 417, 419 (1994) (“Members of the Air Force
Reserves are entitled to be retired for disability and to receive disability retirement pay after they
retire under 10 U.S.C. § 1204[.]”). The service member, however, must: (i) be permanently
disabled; (ii) have incurred an injury “while performing active duty or [IDT]”; (iii) not become
disabled during a period of unauthorized absence or as a result of the member’s intentional
misconduct or willful neglect; and (iv) receive a disability rating of at least 30%, if the military
       18
          AFI 10-248, dated May 26, 2004, in relevant part, provides that “FIP is applicable to
AGR and activated Reservists,” i.e., it is different than the SFIP. Compare 3/21/16 Pl. Resp. Ex.
1 at 45 (AFI 10-248), with 3/21/16 Pl. Resp. Ex. 1 at 46 (AFI 10-248 (explaining that SFIP is
applicable to traditional Reservists).



                                                 26
[service] member does not have twenty years of service. See 10 U.S.C. § 1204(1), (2)(B)(i), (3),
(4).

       The Government does not dispute that Plaintiff’s injury is permanent in nature or that his
injury was not the result of intentional misconduct or willful neglect. The October 9, 2015
Complaint alleges, however, that Plaintiff’s stroke occurred while participating in the SFIP and
therefore during IDT. Compl. ¶¶ 10, 19, 43. Section 101(d)(7), in relevant part, defines the term
“IDT” as:

       (A) duty prescribed for Reserves by the Secretary . . . under section 206 of title 37
           or any other provision of law; and
       (B) special additional duties authorized for Reserves by an authority designated by
           the Secretary concerned and performed by them on a voluntary basis in
           connection with the prescribed training or maintenance activities of the units to
           which they are assigned.

Compl. ¶ 10 (quoting 10 U.S.C. § 101(d)(7)) (emphasis added).

        The October 9, 2015 Complaint alleges that Plaintiff’s participation in the SFIP was a
“special additional dut[y],” because he was ordered by his Commander to participate in the SFIP
after failing the FA. Compl. ¶¶ 9, 43. Therefore, the October 9, 2015 Complaint alleges that
Plaintiff was fulfilling a duty instead of being encouraged to voluntarily participate in an
unauthorized activity. Compl. ¶ 9. Drawing a “reasonable inference” in favor of Plaintiff, the
court has determined that the October 9, 2015 Complaint pled sufficient facts to satisfy the
elements of 10 U.S.C. § 1204(2)(B)(i).

        In addition, the October 9, 2015 Complaint alleges that the USAF failed to “report an
adverse event related to [Plaintiff’s] participation in the USAF SFIP,” that caused no LOD
investigation to be performed, although it was required. Compl. ¶¶ 21, 43. But for this error, as
alleged in paragraphs 21 and 43 of the October 9, 2015 Complaint, a 30% disability rating was
warranted, entitling Plaintiff to disability retirement, instead of regular retirement. Therefore, the
court has determined that the October 9, 2015 Complaint alleged sufficient facts to satisfy the
elements of 10 U.S.C. § 1204(4).

      For these reasons, the court has determined that the facts alleged in the October 9, 2015
Complaint state a claim on which relief can be granted under 10 U.S.C. § 1204.

       H.      Whether The Government Is Entitled To Judgment On The Administrative
               Record.

               1.      The Government’s Argument.

          In the alternative, the Government argues that it is entitled to judgment on the
Administrative Record, because the AFBCMR’s rejection of Plaintiff’s claim is supported by
substantial evidence. 5/8/17 Gov’t Mot. at 19. As a matter of law, military personnel decisions
may be reviewed only as to whether they are arbitrary, capricious, in bad faith, unsupported by
substantial evidence, or contrary to law, regulation, or published procedure. See Heisig v. United
States, 719 F.2d 1153, 1156 (Fed. Cir. 1989) (“Review of the administrative decision is limited to


                                                 27
determining whether the action was arbitrary, capricious, or in bad faith, or unsupported by
substantial evidence, or contrary to law, regulation, or mandatory published procedure of a
substantive nature by which the [Plaintiff] has been seriously prejudiced.”) (citations and
corrections omitted). The AFBCMR, in denying Plaintiff’s claim, concluded that, “other than his
own assertions, [Plaintiff] has provided no evidence showing his substantial rights were violated,
his case was not properly processed, or he was miscounseled in any way.” 5/8/17 Gov’t Mot. at
20, App’x at 34–35. The AFBCMR found the AFBCMR Medical Consultant’s opinion to be
reasonable, because “there [was] no evidence . . . to validate the accuracy or truthfulness of
[Plaintff’s] allegation after over five years since the alleged events occurred,” and, as such, “the
evidence presented did not demonstrate the existence of material error or injustice[.]” 5/8/17 Gov’t
Mot. at 21, App’x at 35. These findings are supported by substantial evidence. 5/8/17 Gov’t Mot.
at 21.

         The AFBCMR found Plaintiff’s post hoc claims that he suffered a stroke after running
earlier that day credible, but that made no difference, because Plaintiff failed to meet his burden
to show that he was in a military status when he was engaged in the SFIP activity. 5/8/17 Gov’t
Mot. at 21 (citing 5/8/17 Gov’t Mot. App’x at 56 (“[T]here is no documentation to show [Plaintiff]
was in a military status at the time of [the stroke].”)).

        In addition, the Government argues that Plaintiff’s pre-discharge medical and personnel
records produced in response to the court’s August 30, 2016 Order should end this case. See 5/8/17
Gov’t Mot. at 21 (citing 5/8/17 Gov’t Mot. App’x at 22–25, 74, 76, 77, 79, 84). These documents
did not discuss Plaintiff’s SFIP activity on the day of the stroke. 5/8/17 Gov’t Mot. at 21. This
affirms that the AFBCMR’s decision was adequately supported in finding that “the evidence
presented did not demonstrate the existence of material error of injustice.” 5/8/17 Gov’t Mot. at
21, App’x at 35.

               2.      Plaintiff’s Response.

        Plaintiff responds that he is entitled to judgment on the Administrative Record since the
AFBCMR’s denial of Plaintiff’s claim was arbitrary, capricious, and unsupported by substantial
evidence. 6/8/17 Pl. Resp. at 29. In ruling on such a motion, “correction boards must examine
relevant data and articulate satisfactory explanations for their decisions.” 6/8/17 Pl. Resp. at 29
(quoting Van Cleave v. United States, 70 Fed. Cl. 674, 679 (2006)). But, the AFBCMR decision
reported that the Medical Consultant did not have sufficient medical records or documentation to
determine whether the USAF provided Plaintiff with an adequate medical assessment prior to
entering the SFIP. 6/8/17 Pl. Resp. at 30 (citing AR at 77–81). This situation was “entirely [due
to the USAF]’s failure to maintain [Plaintiff]’s medical records.” 6/8/17 Pl. Resp. at 30. Indeed,
the Medical Consultant to the Board stated that “the more appropriate venue for validation of these
alleged failures would have been . . . in a Court of Law.” 6/8/17 Pl. Resp. at 30 (quoting AR at
80). The AFBCMR also stated that an independent analysis of the adequacy or appropriateness of
Plaintiff’s care could not be made. 6/8/17 Pl. Resp. at 30 (citing AR at 80). In fact, the VA
awarded Plaintiff disability benefits after the AFBCMR’s decision, due to his high blood pressure
during active duty. 6/8/17 Pl. Resp. at 30 (citing 6/8/17 Pl. Resp. Ex. at 5).

        The AFBCMR also incorrectly refused to make a determination with respect to the USAF’s
denial of Plaintiff’s request for a LOD determination, stating, “[s]hould the [AFBCMR] determine,


                                                28
through separate legal analysis of Air Force policies, that the applicant’s participation in the SFIP
should have been considered IDT . . . the Medical Consultant is prepared to re-address the
applicant’s eligibility for processing.” 6/8/17 Pl. Resp. at 31. Although the record before the
AFBCMR was replete with testimony and documentation indicating that Plaintiff was ordered to
engage in the SFIP exercise that was the proximate cause of the stroke, the AFBCMR’s decision
was arbitrary, because it did not address the evidence and reached a conclusion without any
analysis. 6/8/17 Pl. Resp. at 31.

        Finally, Plaintiff’s Command submitted sufficient evidence to the AFBCMR to confirm
that Plaintiff was on IDT. 6/8/17 Pl. Resp. at 31. Plaintiff cites to Wood v. Nicholson,
U.S.C.A.V.C., No. 04-2359, July 14, 2006, wherein the Veterans Affairs Board determined there
was IDT, based on the testimony of plaintiff’s Command. 6/8/17 Pl. Resp. at 31 (citing 6/8/17 Pl.
Resp. Ex. at 191–93). In Wood, the appellant was injured in a motorcycle accident. 6/8/17 Pl.
Resp. Ex. at 191. The Administration Officer at the appellant’s Reserve Office submitted a letter
stating that the appellant was on his way traveling to a meeting site for active duty assignment, but
the Board denied the appellant’s claim for a service-related injury. 6/8/17 Pl. Resp. Ex. at 191.
The United States Court of Appeals for Veterans Claims, however, reversed the Board’s ruling
that statements from an Administration Officer were insufficient to establish the member’s duty
status. 6/8/17 Pl. Resp. Ex. at 192–93. In another case, the Veteran’s Appeals Board also found
that service members commuting from a voluntary function were in IDT status, based on the
supporting testimony of the veteran’s Commanding Officer. 6/8/17 Pl. Resp. at 32 (citing Citation
Nr. 9808022 (March 18, 1998)). In this case, Major Rowlands and Captain Snowman both
submitted signed statements indicating that Plaintiff was ordered to engage in the SFIP exercises.
6/8/17 Pl. Resp. at 32 (citing AR at 56–60). These statements constitute sufficient evidence to
determine that a service member is on IDT, as defined by 10 U.S.C. § 101(d)(7)(B). 6/8/17 Pl.
Resp. at 32–33. Therefore, the AFBCMR should have provided Plaintiff with a LOD
determination, instead of disregarding the issue and denying him a disability retirement. 6/8/17
Pl. Resp. at 33. Plaintiff therefore requests judgment on the Administrative Record in his favor,
because the AFBCMR’s decision was arbitrary and capricious, and unsupported by substantial
evidence. 6/8/17 Pl. Resp. at 33. If the court elects not to grant the Cross-Motion, Plaintiff requests
that the AFBCMR’s decision be returned below for a LOD determination that will trigger a
reexamination of the records and medical opinions. 6/8/17 Pl. Resp. at 33.

               3.      The Government’s Reply.

        The Government replies that substantial evidence exists to demonstrate the AFBCMR’s
decision was proper and Plaintiff’s persistence “only demonstrates his claim is contrived and he
failed to meet his burden of production.” 6/22/17 Gov’t Reply at 12 (corrections omitted). First,
the conclusion the AFBCMR reached was that Plaintiff did not provide sufficient relevant evidence
to demonstrate the existence of an error or injustice, because “other than his own assertions, he
provided no evidence showing his substantial rights were violated, his case was not properly
processed, or he was miscounseled in any way.” 6/22/17 Gov’t Reply at 13 (quoting AR at 8–9).
The AFBCMR reached this conclusion by adopting the opinions from the Office of Primary
Responsibility (OPR), and the AFBCMR Medical Consultant. 6/22/17 Gov’t Reply at 13 (citing
AR at 9). The AFBCMR observed that the OPR stated that “there is no documentation to show
[Plaintiff] was in a military status at the time of [the stroke].” 6/22/17 Gov’t Reply 13 (quoting
AR at 76); see also AR at 80 (the Medical Consultant stating that “his participation was not likely


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considered IDT”). This conclusion is supported by the fitness regulation in effect at the time, that
defines the SFIP as non-duty status. 6/22/17 Gov’t Reply at 13; see also AFI 10-248, ¶ 1.12.9.4
(“Member participation in non-duty status is encouraged.”). It is also supported by the lack of any
written authorization to show that Plaintiff was otherwise on IDT. 6/22/17 Gov’t Reply at 13–14;
see also AFI 36-2254 ¶ 4.2.1.1 (stating that all IDT must “[h]ave advance written authorization
from the member’s [C]ommander”). Moreover, the burdens of production and proof are on the
service member seeking correction of records. 6/22/17 Gov’t Reply at 14; see also AFI 36-2603
¶ 4.1. As the Administrative Record undisputedly contained no evidence that Plaintiff was in a
duty status, substantial evidence exists that Plaintiff failed to meet his burden. 6/22/17 Gov’t Reply
at 14.

               4.      Plaintiff’s Sur-Reply.

        Plaintiff replies that the AFBCMR’s decision is not supported by substantial evidence and
he is entitled to Judgment On The Administrative Record. 6/29/17 Pl. Sur-Reply at 14–15.
Plaintiff can show that the “[AFBCMR]’s decision [is] arbitrary and capricious if the Board fails
to consider an important aspect of a problem, offers an explanation for its decision that runs counter
to the evidence before the Board[,] or is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.” 6/29/17 Pl. Sur-Reply at 15 (quoting Frey v. United
States, 112 Fed. Cl. 337, 346 (2013) (internal quotation marks omitted)). The Government has not
and cannot excuse the fact that the AFBCMR decision was rendered without substantial evidence,
that was solely within the USAF’s control. 6/29/17 Pl. Sur-Reply at 15. Specifically, the
AFBCMR decision did not consider Plaintiff’s medical records and Plaintiff’s Command provided
sworn statements that Plaintiff was on IDT at the time of the stroke. 6/29/17 Pl. Sur-Reply at 15.

        First, there are certain “exceptional circumstances where the court may consider new
evidence that was not before the corrections board,” Miller v. United States, 119 Fed. Cl. 717, 730
(2015) (citing Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006)), and this case is one
where exceptional circumstances exist. 6/29/17 Pl. Sur-Reply at 15–16. Specifically,
supplementation of the record is permitted in cases in which “the omission of extra-judicial
evidence precludes effective judicial review.” 6/29/17 Pl. Sur-Reply at 16 (quoting Axiom
Resource Mgt. Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009)). Here, despite the
court’s August 30, 2016 Order, the USAF did not provide the full breadth of Plaintiff’s records
and the AFBCMR Medical Consultants rendered their opinions without the substantial amount of
medical records in Plaintiff’s file. 6/29/17 Pl. Sur-Reply at 16. Therefore, this has not changed
the fact that the Medical Consultant’s memorandum to the AFBCMR recommending denial
summarily stated that an independent analysis of the adequacy or appropriateness of his case
cannot be made “without adequate evidence predating the stroke.” 6/29/17 Pl. Sur-Reply at 17
(quoting AR at 81). But, most of the medical and other evidence in the record was never reviewed
by the consultants. 6/29/17 Pl. Sur-Reply at 17. “It appears that the USAF’s submission to the
[c]ourt is merely the aggregate of unofficial records that [Plaintiff] originally produced to the
AFBCMR or the VA, and not any Air Force records in existence, but which have somehow gone
missing.” 6/29/17 Pl. Sur-Reply at 17. To the best of his ability, Plaintiff provided those missing
records, but the AFBCMR never produced these records for the consultants. 6/29/17 Pl. Sur-Reply
at 17.




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        Second, the Government incorrectly argues that the reports of Dr. Goodyear and Dr. Early
carry no weight. 6/29/17 Pl. Sur-Reply at 18. This contention is based on the fact that these
doctors reviewed the limited unofficial records provided to them by Plaintiff and were not
contemporaneous with the events at issue in 2006. 6/29/17 Pl. Sur-Reply at 17. But, this statement
of the situation does not affect the validity of their conclusions, because the time at which medical
records are reviewed and interpreted does not affect the ultimate conclusion, based on careful
review and evaluation. 6/29/17 Pl. Sur-Reply at 17. Thus, the Government’s argument lacks
weight in this regard. 6/29/17 Pl. Sur-Reply at 17.

        Third, the USAF attacks its own doctor’s credibility by stating that Colonel Savory’s notes
contained obvious errors. 6/22/17 Gov’t Reply at 19. It is true that Dr. Savory confuses the dates
on which the stroke occurred, but it does not change the fact that Dr. Savory admits that Plaintiff’s
symptoms “started approximately mid-day and as the day progressed [Plaintiff] noted he had
increasing problems.” 6/29/17 Pl. Sur-Reply at 18 (quoting AR at 154). Therefore, Plaintiff
clearly discussed his afternoon symptoms with Dr. Savory who attributed the stroke to Plaintiff’s
afternoon run, but the Government did not acknowledge this testimony. 6/29/17 Pl. Sur-Reply at
18.

        Fourth, the USAF incorrectly argues that Plaintiff’s claim is contrived and that Plaintiff’s
counsel is engaging in “semantic gymnastics.” 6/29/17 Pl. Sur-Reply at 18. The Government
merely notes that Plaintiff’s earlier recitations of his injury event in September 2006 became more
detailed over time, but this is because Plaintiff has been asked repeatedly over time by medical
providers and others to explain what happened. 6/29/17 Pl. Sur-Reply at 18. Therefore, Plaintiff
provided more details in response to the questions. 6/29/17 Pl. Sur-Reply at 18. At no point has
Plaintiff’s explanation ever been inconsistent with any other explanation. 6/29/17 Pl. Sur-Reply
at 18. Plaintiff’s symptoms upon arriving at the hospital were much different than his symptoms
during his afternoon run, and therefore he did not immediately consider the two related. 6/29/17
Pl. Sur-Reply at 19. He began to understand his situation further once the official diagnosis had
been presented. 6/29/17 Pl. Sur-Reply at 19. The Government fails to recognize, however, that
Plaintiff did explain the afternoon running incident to Colonel Savory, who documented it in his
February 4, 2007 notes. 6/29/17 Pl. Sur-Reply at 19 (citing AR at 151–54).

               5.      The Court’s Resolution.

        The United States Court of Appeals for the Federal Circuit has held that the United States
Court of Federal Claims “will not disturb the decision of [a board for correction of military
records,] unless it is arbitrary, capricious, contrary to law, or unsupported by substantial evidence.”
Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005). Although the court “might
disagree” with a correction board’s decision, that is not a sufficient basis on which to conduct a de
novo review in order to overturn that decision. See Storey v. United States, 531 F.2d 985, 987 (Ct.
Cl. 1976) (A decision of a “[c]orrection [b]oard is entitled to finality and may not be overturned,
even if the court might disagree with it[.]”). In this case, Plaintiff submitted his claim of
entitlement to disability benefits to the AFBCMR, but subsequently, both parties have submitted
supplemental declarations of relevant witnesses. 6/8/17 Pl. Resp. Exs. 10, 11; 6/22/17 Gov’t
Reply App’x at 102–03. In addition, pursuant to the court’s November 9, 2011 Order, the VA
provided Plaintiff with his STRs and USAF medical records. See 1/11/17 Gov’t Notice Of



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Compliance. The examination of these new witnesses and relevant records warrants review and
reconsideration by the AFBCMR.

IV.    CONCLUSION.

        For these reasons, the Government’s May 8, 2017 Motion to Dismiss is denied. The
Government’s May 8, 2017 Motion For Judgment On The Administrative Record is denied.
Plaintiff’s June 8, 2017 Cross-Motion For Judgment On The Administrative Record is granted.

       The AFBCMR’s February 28, 2013 decision denying Plaintiff’s Application For A
Correction Of Military Records is vacated and remanded for 120 days to the AFBCMR, at 1500
West Perimeter Road, Suite 3700, Joint Base Andrews NAF, Washington, Maryland 20762, to
reconsider Plaintiff’s Application For A Correction Of Military Records in light of the new
evidence presented by the parties. See RCFC 52.2(a), (b)(1)(B).

         On December 22, 2017, the parties will file a Joint Status Report with the court advising
the status of the remand and reconsideration proceedings, pursuant to RCFC 52.2(b)(1)(D). Within
ten days of the AFBCMR’s reconsideration decision, the parties will file a Joint Status Report with
the court advising whether: (1) the remand affords a satisfactory basis for disposition of the case;
or (2) further proceedings are required. See RCFC 52.2(b)(1)(D), (f)(1). This case is stayed during
the remand and reconsideration period. See RCFC 52.2(b)(1)(C).

       The Clerk is directed to enter judgment accordingly.

       IT IS SO ORDERED.

                                                     s/ Susan G. Braden
                                                     SUSAN G. BRADEN
                                                     Chief Judge




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