
    Carlos A. ALFORD, Plaintiff, v. The UNITED STATES, Defendant.
    No. 10-525C
    United States Court of Federal Claims.
    Filed 03/09/2011
   ORDER

GRANTING MOTION TO DISMISS

John P. Wiese, Judge

Plaintiff, a pro se litigant, is a former member of the United States Marine Corps who was discharged under “other than honorable” conditions on June 29, 1984, after having served three years and one month of a four-year enlistment period. In his complaint and two amended complaints, plaintiff challenges his 1984 discharge claiming that it was procedurally improper because it ignored a mental condition that had adversely affected his performance of duty and because it was based in part on a defectively administered-drug testing program. Plaintiff asks the court to vacate his other than honorable discharge; direct that his records be retroactively corrected to reflect a discharge on the ground of medical disability under honorable conditions; and enter judgment awarding disability retirement benefits measured from the date of discharge. Plaintiff additionally asks that the court grant back pay and allowances “as a Sergeant E-5 from May 26, 1984,” until the present. Defendant has moved to dismiss the complaint for lack of jurisdiction on the ground of untimeliness. For the reasons set forth below, we dismiss the complaint in part for lack of subject matter jurisdiction and in part for lack of timeliness.

I.

Plaintiff served as an enlisted member in the Marine Corps from May 29,1981, to June 29, 1984, when he was administratively discharged under “other than honorable conditions by reason of misconduct due to minor disciplinary infractions.” The record indicates that proceedings leading to plaintiffs involuntary separation from military service were initiated by his commanding officer on August 5, 1984, based on a service history that included four minor disciplinary infractions: (1) unauthorized absence from place of duty on May 5, 1983 (for which plaintiff received military non-judicial punishment); (2) wrongful use of a controlled substance (marijuana) on May 17, 1983 (for which plaintiff again received military non-judicial punishment); (3) arrest and conviction by civilian authorities on November 18, 1983, for driving while intoxicated; and (4) disobedience of a lawful written order on May 17, 1984 (for which plaintiff received his third non-judicial punishment). Plaintiffs separation from military service under other than honorable conditions was approved by the commanding general on June 25, 1984, and became effective on June 29,1984.

Following his discharge in 1984, plaintiff again enlisted in the Marine Corps by concealing his previous service history. Concerning this second period of service, the record indicates that on December 18,1985, plaintiff received a non-judicial punishment for an unauthorized absence from duty. The record also makes reference to a psychiatric evaluation conducted in June 1986 which diagnosed plaintiff as having a passive-aggressive personality disorder. Finally, the record notes that on June 30,1987, a special court-martial proceeding was convened which found plaintiff guilty of two periods of unauthorized absence from duty (totaling 327 days) and disrespect. The court sentenced plaintiff to confinement for 45 days, forfeiture of $900, reduction in pay grade, and a bad conduct discharge. The bad conduct discharge became effective on June 28,1988.

In 1997, almost thirteen years after his first discharge from the Marine Corps, plaintiff filed an application with the Naval Discharge Review Board (“the Board”) asking that his discharge be recharacterized as honorable. In support of this request, plaintiff asserted the following: “Discrimination based on race,” “Alcohol and Drug problem that began in the military,” “Mental state at time of discharge,” and “Awaiting medical discharge for Post-traumatic Stress Disorder.” The Board considered each of plaintiffs contentions but found no merit in any of them.

With respect to plaintiffs assertion that discrimination based on race had been a factor in his separation, the Board stated that plaintiff “presents no supporting documentation, specific incidents or substantive evidence to elucidate or support this claim.” The Soar'd further noted that its own independent review of the record revealed “no evidence of any discrimination against the applicant during his enlistment or that his discharge was unfair.”

As to plaintiffs reference to his alcohol and drug problems, the Board observed that plaintiff “[ajgain ... fails to clarify or elaborate on his statement.” Given this lack of explanation, the Board interpreted plaintiffs statement to mean “that alcohol and drug abuse impaired the applicant’s ability to serve and [should] somehow exculpate his misconduct.” The Board observed, however, that “Marine Corps policy on alcohol abuse and drug abuse is clear,” and concluded that plaintiff, having violated this policy, alone was responsible for his actions and the consequences to which those actions led.

Finally, as to plaintiffs third and fourth assertions, the Board found “no documentation to substantiate the applicant’s claim that he was suffering from any stress disorder or [was] being processed for a medical discharge” at the time of his separation. Rather, the Board noted that the only medical item in plaintiffs record was a counseling entry dated March 30, 1984, which cited a medical condition, specifically “somnambulism [sleepwalking] and enuresis [bed wetting],” that was affecting his job performance and for which he had been directed to seek psychiatric help at the base medical facility. In addition, the Board noted that a separation for misconduct takes precedence over a separation for medical reasons, so even if a physical disability process had been underway at the time plaintiffs separation proceedings began, that process would have continued only after a determination had been made regarding the separation for misconduct. As the Board explained, “[i]f the decision is to discharge the member for misconduct, the medical board is closed and placed in the medical record merely as documentation.” The Board thus concluded that “it was the applicant’s misconduct and not inappropriate command action that resulted in the applicant’s discharge.” Accordingly, on September 11,1997, the Board issued a unanimous decision holding that plaintiffs discharge is proper and shall remain under other than honorable conditions.

One' year later, on September 18, 1998, plaintiff filed an application for correction of his military records with the Board for Correction of Naval Records (“BCNR”). In his application, plaintiff once again requested that his discharge be recharacterized as honorable, this time on the ground that he had been afflicted since childhood with a mental disease, now incapacitating, that earlier had prevented him from performing his military duties. “My mental illness,” wrote plaintiff, “should have been considered—showing me at no fault.”

On March 12, 1999, the BCNR issued a decision denying plaintiffs' application for lack of evidence demonstrating the existence of probable material error or injustice. The BCNR rejected plaintiffs contention that his misconduct was caused by a mental disability or illness on the ground that “there is no evidence in your record, and you submitted none, to support your contention of a mental disability/illness.”

In October 2003, plaintiff again presented a request to the BCNR for the correction of his military records, this time asking that his other than honorable discharge be changed to a “medical discharge” Included as part of plaintiffs renewed application was a discharge summary dated April 10, 2003, from an in-patient admission to a civilian drug-treatment facility. Among the findings noted in this discharge summary was a diagnosis that included alcohol dependence, cocaine abuse, and paranoid schizophrenia with depression. Upon review of the entirety of his record, including the newly submitted medical data, the BCNR again found, in a decision issued on September 29, 2004, that the evidence submitted was insufficient to establish the existence of probable material error or injustice. The requested relief was accordingly denied.

In its decision, the BCNR noted “that there is no indication that in your second enlistment you were diagnosed with any seriously disabling mental illness that might have excused or mitigated the misconduct during your first enlistment.” The BCNR further noted that it “substantially concurred” with the comments contained in an advisory opinion evaluating plaintiffs medical evidence that had been prepared by the Naval Medical Center in Portsmouth, Virginia, at the BCNR’s request. In this advisory opinion, the Naval Medical Center noted that a diagnosis of schizophrenia made in April 2003, nineteen years after plaintiffs discharge from military service, was insufficient absent additional medical records covering plaintiffs period of active duty (May 29,1981, to June 29, 1984) to permit a retrospective diagnosis of schizophrenia to be made. (A copy of-the advisory opinion was attached to the BCNR’s decision.)

In 2006, plaintiff filed a second request for reconsideration with the BCNR. Plaintiff urged, as he had twice before, that the conduct that had led to his discharge in 1984 was caused by a mental illness. The BCNR again denied relief for lack of sufficient probative evidence.

On August 5, 2010, plaintiff filed suit in this court. His complaint challenges the 1984 discharge on essentially two grounds: first, that his discharge should have been based on medical disability and second, that the discharge was procedurally deficient because it was based in part on a defective drug testing program that falsely identified plaintiffs use of marijuana. By way of relief, plaintiff claims entitlement to both disability retirement pay and back pay. In an amendment to the complaint filed on September 2, 2010, plaintiff additionally asserts that the Navy withheld from public disclosure information establishing its knowledge of the faulty drug testing program. In a second amendment to the compliant, filed on September 8, 2010, plaintiff maintains that at the time of his discharge in 1984, he had requested but was denied the opportunity to consult with an attorney. Plaintiff identifies this alleged denial of consultation with an attorney as a factor that contributed to his ultimate discharge under other than honorable conditions. In this second amendment to his complaint, plaintiff also raises the contention that in instances where a service member’s less than honorable discharge is based in part on a laboratory-confirmed finding of illegal drug use, the BCNR has an obligation to verify independently the integrity of that finding, given that the service member himself does not have access to the laboratory test results.

H.

A.

Plaintiffs principal claim before this court is a claim for disability retirement pay. Defendant maintains that this claim first accrued on March 12, 1999—the date the BCNR first denied plaintiffs application for relief—and that plaintiffs filing of suit here on August 5, 2010, therefore occurred well past this court’s six-year limitations period set forth in 28 U.S.C, § 2501. Defendant thus asks the court to dismiss the claim for lack of timeliness.

We agree that plaintiffs claim cannot be heard by this court. A lack of timeliness, however, is not its defect; a lack of subject matter jurisdiction is. In Chambers v. United States, 417 F.3d 1218, 1224 (Fed. Cir. 2005), the Federal Circuit explained that under the statutory framework established by Congress, claims for disability retirement pay must be decided in the first instance by the Secretaries of the three armed services acting through their respective military boards. Based on this requirement, the court concluded that “the Court of Federal Claims has no jurisdiction over disability retirement claims until a military board evaluates a service member’s entitlement to such retirement in the first instance.” Id. at 1225,

The appellate court’s instruction—that this court is without jurisdiction to consider a claim for disability retirement pay absent the claim’s prior presentation to the Secretary— brings us immediately to the core problem in this case: plaintiff never presented a claim for disability compensation to either the Naval Discharge Review Board or the Board for Correction of Naval Records. Although plaintiff asked these boards to recognize that he was afflicted with a mental disability that impaired the performance of his military duties, his demand in this respect was offered as the basis for an upgrade of his discharge, not as the basis for an award of disability retirement pay. Plaintiff never presented a monetary claim to these boards and hence the boards’ decisions,reflect no consideration of such a monetary component. We are consequently left with a claim for disability retirement compensation that was never presented for administrative consideration and on that ground are precluded from exercising jurisdiction over the claim.

B.

In addition to a claim for disability retirement pay, plaintiffs complaint also presents a demand for back pay on the ground of erroneous discharge. Plaintiff contends that his separation from service was unlawful because it was based in part on an erroneous finding of illegal drug use that was the result of a maladministered and defective Navy drug testing program.

Defendant seeks dismissal of this claim, again relying on the ground of untimeliness. More particularly, defendant notes that pursuant to Martinez v. United States, 333 F.3d 1295 (Fed. Cir. 2003), and the cases cited therein, a service member’s claim for back pay based on allegations of erroneous discharge áccrues at the time of discharge, id. at 1303, not at the time of any later decision on the claim by a correction board, id. at 1311. “The service member ... has the right to sue immediately upon discharge for the funds improperly being withheld.... If the plaintiff does not file suit within the six-year limitation period prescribed in' 28 U.S.C. § 2501, the plaintiff loses all rights to sue for the loss of pay stemming from the challenged discharge.” Id. at 1303-04 (citations omitted). Plaintiff filed his complaint in this court more than 26 years after his discharge and thus, argues defendant, well past the six-year limitations period applicable to suits in this court.

In response to defendant’s motion; plaintiff filed a “Motion to Suppress Dispositive Motion” on November 30, 2010, requesting that the statute of limitations be- tolled “on the grounds that I am mentally ill. I have a legal disability.” In his motion, plaintiff contends that he has been deemed sick since May 1983 and suffers from “Paranoid Schizophrenia, Major Depression, and PTSD [presumably post-traumatic stress disorder] service-connected.”

Pursuant to 28 U.S.C. § 2501, the claim of a person “under legal disability ... at the time the claim accrues may be filed within three years after the disability ceases.” In order to establish a “legal disability” within the meaning of the statute, however, a plaintiff must demonstrate that his mental impairment “prevented] his comprehension of his legal rights ..., the necessity of prosecuting them by timely suit, and/or cause him to deliberately forgo the filing of a timely suit to vindicate his rights.” Goewey v. United States, 612 F.2d 539, 545 (Ct. Cl. 1979).

Plaintiff cannot satisfy this evidentiary burden. In its September 1997 report, the Naval Discharge Review Board (“NDRB”) noted a counseling entry in plaintiffs file dated March 30,1984, “which cited a physical condition, specifically somnambulism and enuresis,” and recommended that plaintiff receive “psychiatric help” to determine “the cause of his physical condition.” Significantly, however, the NDRB “found no documentation to substantiate [plaintiffs] claim that he was suffering any stress disorder.” Similarly, in its March 1999 report, the Board for the Correction of Naval Records, while noting that plaintiff had been counseled to obtain psychiatric help for his “somnambulism/sleepwalking and enuresis/bed wetting,” found “no evidence in your record, and you submitted none, to support your contention of a mental disability/illness.” In short, the record that plaintiff put before the NDRB and the BCNR offers no support for his contention that at the time of his discharge in 1984, he was suffering from a legal disability that rendered him incapable of acting in the protection of his own interests.

Nor does the record offer support for the contention that plaintiff became legally disabled within the six-year period following his discharge in 1984. Indeed, the filing of his applications with the NDRB in 1997 and with the BCNR in 1998 (in each instance seeking an upgrade of his discharge on the basis of a claimed mental condition that impaired the performance of his military duties) demonstrates that plaintiff possessed sufficient mental capacity at least through 1998 to pursue his legal rights. We therefore cannot accept plaintiffs contention that he has been afflicted with a legal disability since 1983 that would require us to toll the statute of limitations on his claim for back pay in connection with a 1984 wrongful discharge.

In the alternative, plaintiff argues that his wrongful discharge claim did not accrue in 1984 because the Navy “concealed” the defective character of its drug testing program, thus allowing plaintiffs discharge to go forward on the basis of unreliable test results that he had no means of challenging at the time. Plaintiff claims that it was not until 2009 that he learned about defects in the drug testing program administered by the Navy in the early 1980s; hence, plaintiff claims, his cause of action for unlawful discharge did not arise until he gained the knowledge necessary to sue.

Plaintiffs argument cannot succeed. As defendant notes, information about possible irregularities in the Navy’s drug testing program (during the period 1983 through 1984) has been publically available for over 25 years. Indeed, as defendant points out, plaintiffs own complaint is rife with press reports and other published documents dating from as early as 1981 describing the purported problems with the Navy’s urinalysis program during that time period.

Given the extensive public exposure of the shortcomings in the Navy’s drug testing program, plaintiffs own alleged lack of knowledge is irrelevant. With the means of knowledge so close at hand, plaintiff cannot plausibly argue that the Navy concealed the facts necessary to alert him to the possible invasion of his legal rights and the need to file suit within the court’s six-year limitations period.

C.

In addition to the arguments discussed above, plaintiff has also raised arguments concerning alleged deficiencies in the proceedings before the BCNR. We do not reach these issues. As we have noted, a claim for back pay based on allegations of erroneous discharge accrues at the time of discharge and must be brought here within six years of the date of discharge. A service member who elects to pursue relief on such a claim before a correction board does not thereby acquire a new and separate cause of action based on the correction board’s decision. Martinez, 333 F.3d at 1311. Rather, the service member’s claim remains a claim for back pay based on the provisions of the Military Pay Act, 37 U.S.C. § 204(a), and as such is subject to this court’s six-year statute of limitations. Consequently, claims of error relating to a correction board’s decision involving a claim for back pay may be heard here only if raised within six years of the service member’s discharge. The asserted errors that plaintiff ascribes to the 1999 and 2003 decisions of the BCNR are as untimely as his basic claim for back pay; we therefore can hear neither.

We are mindful of the fact that plaintiff is a pro se litigant whose incomplete understanding of the law may have resulted in deficiencies in his pleadings that justice and fairness would require us to ignore. Forshey v. Principi, 284 F.3d 1335, 1357 (Fed. Cir. 2002) (citing Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980), for the proposition that “the pleadings of pro se litigants should be held to a lesser standard than those drafted by lawyers when determining whether the complaint should be dismissed for failure to state a claim”). But generosity in the reading of a pro se claimant’s complaint may not go so far as to allow us to find in the alleged facts a basis for jurisdiction where, as here, it is so plainly missing. Kelley v. Secretary, U.S. Dep’t of Labor, 812 F.2d 1378, 1388 (Fed. Cir. 1987) (holding that “where the question is the calculation of the time limitations placed on the consent of the United States to suit, a court may not ... take a liberal view of that jurisdictional requirement and set a different rule for pro se litigants only”).

CONCLUSION

For the reasons set forth above, plaintiffs demand for disability retirement pay is dismissed for lack of subject matter jurisdiction; defendant’s motion to dismiss for lack of timeliness is granted with respect to all other demands set forth in the complaint. The Clerk is directed to enter judgment accordingly.  