NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MORRIS SHELKOFSKY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5083
______________________
Appeal from the United States Court of Federal
Claims in No. 11-CV-0765, Senior Judge Robert H. Hodg-
es, Jr.
______________________
Decided: October 11, 2013
______________________
MORRIS SHELKOFSKY, Tallahassee, Florida, pro se.
BARBARA E. THOMAS, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for defendant-appellee.
With her on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and CLAUDIA BURKE, Assistant Director.
______________________
2 SHELKOFSKY v. US
Before RADER, Chief Judge, LOURIE, and O’MALLEY,
Circuit Judges.
PER CURIAM.
Plaintiff Morris Shelkofsky appeals the decision of the
United States Court of Federal Claims (“Claims Court”)
granting the Government’s motion for judgment on the
administrative record. In granting the motion, the
Claims Court found that the Air Force Board for Correc-
tion of Military Records’ (“AFBCMR”) decision to deny
Shelkofsky’s requests for age-based retirement pay based
on a previous final decision and his explicit waiver was
neither arbitrary, capricious, contrary to law, nor unsup-
ported by substantial evidence. Shelkofsky v. United
States, 110 Fed. Cl. 15, 18 (2013).
For the reasons below, we affirm the judgment of the
Claims Court.
BACKGROUND
Shelkofsky is a former judge advocate in the Air Force
Reserve. In 1997, he was involved in a car accident that
left him with substantial injuries. As a result, he was
removed from active duty and placed on the Temporary
Disability Retired List (“TDRL”) on May 27, 1998. In a
letter dated June 12, 2000, the Air Force informed
Shelkofsky that it was removing him from the TDRL
because he did not qualify for transfer to the Permanent
Disability Retired List (“PDRL”) and could not continue
on the TDRL due to his recently decreased 20 percent
disability rating.
When he was discharged, the Air Force provided him
with two options: disability severance pay or inactive
reserve status. If Shelkofsky had elected inactive reserve
status, he would have been eligible for reserve retirement
pay at sixty years of age. Instead, Shelkofsky elected
disability severance pay and signed a form that stated “I
SHELKOFSKY v. US 3
elect to be discharged with severance pay as provided
under Section 1203, Chapter 61, Title 10 USC. I under-
stand that I forfeit all right to receive retired pay under
Chapter 1223, 10 USC, at age 60.” Appellant Appendix
A45-46. In a letter dated July 10, 2000, the Air Force
stated that it would remove Shelkofsky from the TDRL
and discharge him with entitlement to disability sever-
ance pay as of July 30, 2000.
Shelkofsky, however, never received the disability
severance pay he elected. By an administrative error, the
Air Force transferred him from the TDRL to the PDRL.
Since his disability rating at retirement was only 20
percent, he should not have been transferred to the
PDRL, which requires a rating of at least 30 percent. The
Administrative Record did not contain an explanation for
his transfer to the PDRL. He continued to receive disabil-
ity retirement payments for more than seven years.
In 2008, after reaching the age of 60, Shelkofsky filed
for a correction of his military records at the AFBCMR
asking for placement on the inactive status list. If listed,
he would be eligible to collect reserve retirement pay. In
his request, he explained that he never received severance
pay, but did not mention at the time, that he had been
collecting disability retirement pay instead. After verify-
ing that Shelkofsky never received severance pay, the
AFBCMR granted the request to correct his records to
allow him to move to the inactive status list in 2008.
While attempting to implement the AFBCMR’s deci-
sion, the Defense Finance and Accounting Service
(“DFAS”) realized Shelkofsky’s erroneous inclusion on the
PDRL when it attempted to move him to the inactive
reserve list. The DFAS informed Shelkofsky that he was
already listed on the PDRL, and that compliance with the
AFBCMR decision would require him to pay back the
disability retired pay he received for the previous seven
years.
4 SHELKOFSKY v. US
In response, Shelkofsky asked the AFBCMR to with-
draw its approval of his request to correct his records to
move to the inactive status list, explaining his desire not
to incur such a debt. The AFBCMR agreed to void its
earlier decision. In 2009, the DFAS then stopped sending
disability retirement payments after determining
Shelkofsky had never been eligible for the PDRL.
Shelkofsky then asked for reinstatement of the re-
cently voided AFBCMR order to again obtain age-based
reserve retired pay, or in the alternative, for an adjust-
ment to his assigned disability percentage so that he
would be eligible to stay on the permanent disability
retired list. The AFBCMR denied his request, finding
that the previous decision to withdraw its prior approval
was final and conclusive, unless obtained by fraud.
Shelkofsky then asked for reconsideration of his request
for placement on the PDRL based on a more recent disa-
bility rating of 60 percent awarded by the Department of
Veterans Affairs. The AFBCMR denied his request,
finding he submitted no evidence to show that his medical
condition warranted permanent disability retirement at
the time of his removal from the TDRL, when he had only
a 20 percent disability rating.
In November 2011, Shelkofsky filed a complaint in the
Claims Court asserting claims only for reserve retirement
pay and back reserve retirement pay. Complaint at 1-3,
Shelkofsky v. United States, No. 11-0765 (Fed. Cl. Nov. 14,
2011), ECF No. 1. 1 In a March 20, 2013 decision, the
Claims Court ordered judgment on the administrative
record in favor of the United States finding that the
AFBCMR’s decision to deny retirement pay was not
arbitrary, capricious, or contrary to law. Shelkofsky, 110
1 Shelkofsky did not seek the unpaid severance pay
in this proceeding; his right to severance is, thus, not at
issue in this appeal.
SHELKOFSKY v. US 5
Fed. Cl. at 18. In reaching this conclusion, the Claims
Court, concluding both that the AFBCMR had found its
decision voiding the original decision “final and conclusive
on all officers of the government, unless obtained by
fraud,” and that Shelkofsky had waived his right to age-
based retirement pay when he elected to be discharged
with severance pay. Id. The Claims Court also noted
that “the pay that plaintiff chose at the time of his sepa-
ration is not a subject of this appeal.” Id.
Shelkofsky appeals that ruling to this Court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
I. Standard of Review
As a judgment on the administrative record by the
Claims Court is a legal determination, we review the
judgment de novo. Roth v. United States, 378 F.3d 1371,
1381 (Fed. Cir. 2004). This Court may disturb the deci-
sion of the Board only if it was “arbitrary, capricious,
contrary to law, or unsupported by substantial evidence.”
Id.
II. Waiver of Retirement Pay
A member of a military reserve component is entitled,
upon application, to retired pay if he: (1) has attained the
applicable eligibility age; (2) has performed at least 20
years of service; and (3) is not entitled, under any other
provision of law, to retired pay from an armed force. See
10 U.S.C. § 12731(a). Here, the applicable eligibility age
is 60 years. Id. § 12731(f)(1). In the proceedings below,
the Government did not dispute that Shelkofsky meets all
of these criteria. Shelkofsky, 110 Fed. Cl. at 17. Nonethe-
less, the Claims Court found that, “[w]hile Mr. Shelkofsky
appears to meet the statutory requirements for retire-
ment pay eligibility, he waived his right to age-based
retirement pay when he was separated from the Air Force
in 2000.” Id. at 18. Therefore, while the Claims Court
6 SHELKOFSKY v. US
noted that this case had been “infected by an odd series of
government errors,” it concluded that the AFBCMR’s
decision not to award retirement pay was not arbitrary,
capricious, or contrary to law. Id. We agree.
In an August 2008 memorandum, the AFBCMR
granted Shelkofsky’s request to correct his military rec-
ords to place him on the inactive status list reserve sec-
tion. Shortly thereafter, DFAS informed Shelkofsky that
this correction could not be accomplished because he was
already retired on the PDRL and would need to return
seven years of disability retirement pay. A60-61. In
response, he asked to withdraw his previous request to
correct his military records. A59. In a Corrected Di-
rective, the AFBCMR then declared the previous memo-
randum void. A64. After the memorandum was declared
void, DFAS notified Shelkofsky that he was also going to
be removed from the PDRL as he never qualified for the
PDRL. A65. Shelkofsky, again, approached the
AFBCMR, this time asking it to reinstate his previous
request to place him on the inactive status list reserve
section. In a March 15, 2011 decision, the AFBCMR
found that:
After a thorough review of the available evidence,
we are not persuaded any corrective action is war-
ranted. In this respect, we note that on 30 Jul 00,
the applicant’s name was removed from the TDRL
and he was discharged by reason of physical disa-
bility, with entitlement to severance pay. At that
time, he had the option to transfer to [the inactive
status list] and instead elected to be discharged
with severance pay, acknowledging that he under-
stood that he would forfeit all rights to receive re-
tired pay at age 60, under the governing statute.
A73. The AFBCMR also found the previous decision to
void the memorandum “final and conclusive on all officers
SHELKOFSKY v. US 7
of the government, unless obtained by fraud.” Id. And,
the AFBCMR noted no showing of fraud. Id.
Electing severance pay in lieu of retirement pay
waives any right to military retirement. Barnick v.
United States, 80 Fed. Cl. 545, 557 n.10 (2008) (“When
Mr. Barnick made his election to accept severance pay, in
lieu of retirement pay, he waived any right to a military
retirement.”). Here, Shelkofsky has forfeited his right to
age-based retirement pay, not once, but twice. He first
forfeited his right when he elected severance pay and
signed a form that stated “I elect to be discharged with
severance pay as provided under Section 1203, Chapter
61, Title 10 USC. I understand that I forfeit all right to
receive retired pay under Chapter 1223, 10 USC, at age
60.” When Shelkofsky requested AFBCMR to void the
memorandum correcting his records by moving him to the
inactive status list reserve section, he again forfeited his
right to age-based retirement pay. The AFBCMR’s deci-
sion to void the memorandum also became final and
conclusive. Based on this reasoning, we find the
AFBCMR’s decision denying retirement pay was not
arbitrary, capricious, or contrary to law.
III. Non-Revocation Provision
Shelkofsky argues that the judgment below is clearly
erroneous as it ignores his entitlement to the non-
revocation provisions of 10 U.S.C. § 12738. Section
12738(a) states:
After a person is granted retired pay under this
chapter, or is notified in accordance with section
12731(d) of this title that the person has complet-
ed the years of service required for eligibility for
retired pay under this chapter, the person's eligi-
bility for retired pay may not be denied or revoked
on the basis of any error, miscalculation, misin-
formation, or administrative determination of
years of service performed as required by section
8 SHELKOFSKY v. US
12731(a)(2) of this title, unless it resulted directly
from the fraud or misrepresentation of the person.
10 U.S.C.A. § 12738(a) (West 2013). The Claims Court
acknowledged the Government’s argument that Shelkof-
sky failed to raise § 12738 before the AFBCMR, but did
not further address this issue, apparently agreeing it had
been waived. See Metz v. United States, 466 F.3d 991, 999
(Fed. Cir. 2006) (“general rule that courts should not
topple over administrative decisions unless the adminis-
trative body not only has erred but has erred against
objections made at the time appropriate under its prac-
tice.” (quoting United States v. L.A. Tucker Truck Lines,
Inc., 344 U.S. 33, 37 (1952)). Here, Shelkofsky argues
that he did raise § 12738 before the AFBCMR. In sup-
port, he points to a memorandum written by the Air Force
Personnel Center for the AFBCMR regarding transfer to
the inactive status list reserve section under 10 U.S.C.
§ 12732. A50. Despite Shelkofsky’s suggestion to the
contrary, mere reference to 10 U.S.C. § 12732 does not
invoke the non-revocation provision of 10 U.S.C. § 12738.
The memorandum provides no mention of the non-
revocation provision and does not cite 10 U.S.C. § 12738.
Nor has Shelkofsky pointed to any other place in the
AFBCMR record where he asserted non-revocation, or
non-revocation was even discussed. As such, we find that
the Claims Court did not err in not addressing the non-
revocation provision.
IV. Disability Retirement Pay
Shelkofsky argues that the Claims Court’s decision
that the Air Force erred in placing him on the PDRL was
unsupported by substantial evidence. Shelkofsky never
made any claim for disability-based retired pay in his
complaint before the Claims Court, however. He con-
cedes, moreover, that this “appeal deals with the entitle-
ment of a long serving Reservist to Reserve Retirement
and Pay under 10 U.S.C. §§ 12731-12739. The scope of
SHELKOFSKY v. US 9
the decision of the Honorable Court below was clearly
limited to Reserve Retirement and Pay and excluded
Disability Retirement and Pay and Severance Pay.”
Appellant Reply Br. 3. Given this record and these con-
cessions, we decline to address these arguments.
V. Administrative Record
Shelkofsky also attacks the Administrative Record di-
rectly. He alleges the record cannot support the judgment
because it is deficient in certain material respects; he
asserts the record is uncertified, undated, missing pages,
and missing documents. The Government responds that
Shelkofsky’s complaints of deficiencies in the Administra-
tive Record were either immaterial, or not presented to
the Claims Court, and therefore, waived. We agree.
Shelkofsky does not identify any material finding of
the AFBCMR that lacks substantial evidentiary support
in the record. He alleges that the record is missing docu-
ments regarding advice on severance pay and the
AFBCMR’s consideration of the non-revocation statute.
As noted above, however, the documents regarding the
advice on severance pay and non-revocation are not
relevant to any properly preserved claim. Shelkofsky is
not seeking severance pay in this appeal and he failed to
raise the non-revocation argument before the AFBCMR.
Further, Shelkofsky has not established that the missing
documents, or any other listed deficiency, affected the
AFBCMR’s decision. We find accordingly, that any gaps
in the Administrative Record had no impact on the deci-
sions below.
CONCLUSION
For these reasons and because we find that Shelkof-
sky’s remaining arguments are without merit, we affirm
the judgment of the Claims Court.
AFFIRMED