Philippeaux v. United States

In the United States Court of Federal Claims
No. 20-275
Filed: December 1, 2020
(**Not for Publication**)

EDDY JEAN PHILIPPEAUX,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

MEMORANDUM OPINION AND ORDER

TAPP, Judge.

In this military pay suit, pro se Plaintiff, Eddy Jean Philippeaux, a former United States
Navy servicemember, Air Force Reservist, and Air National Guardsman, seeks alteration of his
military records and other, miscellaneous injunctive and compensatory relief. Mr. Philippeaux
suffered a minor head injury in 1977, to which he now attributes several current physical and
mental conditions, as well as socioeconomic hardship. However, a military review board found
that Mr. Philippeaux did not establish that he was unfit for service at the time of his honorable
discharge from the Navy. This conclusion was bolstered by Mr. Philippeaux’s subsequent
service in the Air Force Reserves, and later, the Air National Guard, which required a physical
examination prior to enlistment. Mr. Philippeaux moves for judgment on the administrative
record seeking entry of an order that sets aside that decision. The United States maintains that the
decision of the military review board was correct.

For the reasons explained below, the United States’ Cross-Motion for Judgment on the
Administrative Record (ECF No. 61) is GRANTED, and Mr. Philippeaux’s Motion for
Judgment on the Administrative Record (ECF No. 52) is DENIED. Because the Court finds the
United States is entitled to judgment on the administrative record, it need not address Mr.
Philippeaux’s Motion for Declaratory Judgment (ECF No. 11), Motion for Permanent Injunction
(ECF No. 23), and Motion to Strike (ECF No. 25). Therefore, those motions are DENIED AS
MOOT.
 I. Background

A. Mr. Philippeaux’s Military Service

Mr. Philippeaux enlisted in the United States Navy in 1972. (AR1, 965). 1 He served as a
Storekeeper and Procurement Clerk. On October 12, 1977, while onboard a frigate, the U.S.S.
McCandless, Mr. Philippeaux sought medical attention for a minor laceration to his face
sustained from “hitting a wall.” (AR268). He was treated with two sutures and returned to full
duty. (Id.). The Navy honorably discharged Mr. Philippeaux on October 1, 1980, and assigned
him a RE-1 reenlistment code indicating his fitness for reenlistment and retention in the Naval
Reserves. (AR1, 3, 725, 1352). As part of his discharge, the Navy performed a physical
examination of Mr. Philippeaux on September 16, 1980. (AR1, 1311–12, 1314). Mr. Philippeaux
self-reported that he was “healthy” and “not [taking] any medication[.]” (AR1311). On this same
form, Mr. Philippeaux indicated that he was not currently suffering, nor had he ever suffered,
from a litany of medical conditions including head injury, unconsciousness, depression,
dizziness, eye trouble, or amnesia. (Id.). The examining physician did not list any medical
abnormalities. (AR1312–13).

On October 2, 1980, the day following his discharge from the Navy, Mr. Philippeaux
enlisted in the United States Air Force Reserves as a Staff Sergeant. (AR974–77). Just over three
years later, in 1983, Mr. Philippeaux enlisted in the Air National Guard. (AR1). On November
19, 1983, Mr. Philippeaux presented for an enlistment physical examination. (AR1300). Again,
he reported that he was not currently suffering, nor had he ever suffered, from a myriad of
medical conditions including head injury, unconsciousness, depression, dizziness, eye trouble, or
amnesia. (Id.). Mr. Philippeaux, again, self-reported that he was “presently in very good health”
and “under no medications.” (Id.). After being medically cleared for enlistment, Mr. Philippeaux
joined the Air National Guard for the District of Columbia. (AR978–80). The Air National
Guard discharge Mr. Philippeaux for “unsatisfactory participation” on October 27, 1989. (AR2,
970, 978, 972).

B. Records from the Department of Veterans Affairs, the Board for Veterans Appeals,
and the United States Court of Appeals for Veterans Claims

Seven years following his discharge from the Air National Guard, and nineteen years
following his injury while onboard the U.S.S. McCandless, on July 12, 1996, Mr. Philippeaux
presented to a Department of Veterans Affairs (“VA”) Outpatient Clinic where he was evaluated
for mental disorders. (AR173–77). The examining physician recorded extensive notes about Mr.
Philippeaux’s service, and evaluated his mental fitness, but made no mention of Mr.
Philippeaux’s 1977 injury or a possible connection to his observed mental state. (Id.). The VA
diagnosed Mr. Philippeaux with dysthymic depression and assessed his psychiatric incapacity as
“moderate to severe.” (AR176). Much later, in 2017, the VA retroactively determined that Mr.
Philippeaux was 70 percent disabled and unemployable effective February 27, 1995. (AR204).

1
The Court cites to the Administrative Record, (ECF No. 41), and the Supplement to the
Administrative Record, (ECF No. 51), as “(AR_).”

2
On May 9, 2011, the VA upgraded that disability assessment to 100 percent, effective July 1,
2008. (AR2, 256).

In December of 2009, Mr. Philippeaux filed an informal claim with the VA asserting
entitlement to service connection for a traumatic brain injury (“TBI”). (AR12). The VA denied
that claim in May of 2010. (Id.). Mr. Philippeaux appealed his claim to the Board for Veterans’
Appeals (“the Board”), which also denied his claim, finding that “the competent evidence of
record, including 2010 neurological testing and a February 2015 VA examination report, did not
establish a diagnosis of a TBI or residuals thereof.” (AR13). Mr. Philippeaux appealed this
denial to the United States Court of Appeals for Veterans Claims. (Id.). The Veterans Claims
Court set aside that denial and remanded Mr. Philippeaux’s case to the Board, finding “the Board
did not address favorable material evidence[.]” (AR15); see also Philippeaux v. Wilkie, 814 F.
App’x 603 (Fed. Cir. 2020).

C. Military Corrections Boards Proceedings

On March 26, 2018, Mr. Philippeaux applied for correction of his military records to
reflect a disability discharge under 10 U.S.C. § 1201. (AR168). The Board for the Correction of
Naval Records (“BCNR”) evaluated his application and ultimately denied the request, finding
that “the evidence submitted was insufficient to establish the existence of probable material error
or injustice.” (AR165). The BCNR explained that “[t]here was no medical evidence that [Mr.
Philippeaux] [was] diagnosed with a mental health condition or a Traumatic Brain Injury after
[the] 1977 injury to [his] face[.]” (AR165–66). Notably, the BCNR also found that because Mr.
Philippeaux received both a discharge physical examination from the Navy and an enlistment
physical from the Air National Guard, there was “strong objective evidence” that Mr.
Philippeaux was fit for active duty when he was discharged from the Navy, and thus, not entitled
to a change in his records to reflect a qualifying disability discharge. (AR166). However, the
BCNR failed to consider Mr. Philippeaux’s Air Force service records from October 2, 1980,
until his enlistment in the Air National Guard in 1983, and incorrectly found that period to be a
break in service. (See AR164).

On October 29, 2019, Mr. Philippeaux petitioned the BCNR for reconsideration of its
decision. (AR5, 35). However, on reconsideration, the BCNR found that Mr. Philippeaux had
failed to submit “new and material evidence” necessary to overturn the decision of the BCNR.
(AR6).

D. Court of Federal Claims Proceedings

On March 6, 2020, Mr. Philippeaux filed a Complaint in this Court alleging he suffered a
TBI connected to the injuries he sustained in 1977. (Compl., ECF No. 1). Mr. Philippeaux
alleges that this injury occurred during his naval service and resulted in numerous medical
complications and other harms. (See generally, Compl.). Notably, Mr. Philippeaux contends he
“did not receive the standard, proper and appropriate care” following his head injury, that the
Navy improperly discharged him from service without a permanent disability designation, and
that the BCNR’s denial of his application to change the character of his discharge was arbitrary,
capricious, and contrary to law. (Compl. at 2–3, 16). Mr. Philippeaux’s Complaint contains an

3
extended discussion of his alleged medical conditions, all of which, he alleges, are connected to
his service in one way or another.

Helpfully, Mr. Philippeaux distills his grievances into two counts. Count I alleges that the
Navy “provided Mr. Philippeaux an erroneous character of discharge which has left him with the
inability to earn a living while he is not receiving disability payments” and the United States “has
failed to pay [him] the pay and allowances that he is entitled to receive” under 10 U.S.C. § 1201.
(Compl. at 27). Count II alleges that the United States’ actions “resulted in [Mr. Philippeaux]
being deprived of property interests, pain and suffering, homelessness, loss of his mother,
poverty to his children, aggravation of health, deprivation of social standing and [the] wrongful
death of his mother due to homelessness[.]” (Compl. at 28). Mr. Philippeaux brings Count II
under the Due Process and Equal Protection clauses of the Fifth Amendment to the United States
Constitution. (Id.).

On June 10, 2020, in light of the BCNR’s factually incorrect findings regarding Mr.
Philippeaux’s service history, the Court remanded Mr. Philippeaux’s claims to the BCNR.
(Remand Order, ECF No. 28). On remand, the Court directed the BCNR “to (1) reconsider
whether [Mr.] Philippeaux is entitled to correction of his military records denied by the BCNR in
its original decision dated October 1, 2018, taking into account the correct chronology of Mr.
Philippeaux’s service history; and (2) consider any additional records submitted by Mr.
Philippeaux.” (Id.).

On June 29, 2020, the BCNR issued a second decision denying Mr. Philippeaux relief.
(AR1–4). The BCNR determined that “no change to [Mr. Philippeaux’s] record was warranted”
and he was “being appropriately compensated for [his] service connected disability conditions
based on [his] 100% VA rating that entitles [him] to a significant tax-free monthly payment, free
VA medical treatment, and other related disability benefits[.]” (AR4). In support of its decision,
the BCNR cited Mr. Philippeaux’s discharge examination, his RE-1 discharge code specifying he
was fit for reenlistment, his reenlistment in the Air Force Reserves, and his enlistment in the Air
National Guard, which included a physical examination that determined Mr. Philippeaux was fit
for service. (AR3–4). The BCNR concluded that Mr. Philippeaux’s post-discharge medical
diagnoses and disability ratings were too far removed from his discharge to be probative of
whether he was symptomatic or unfit for naval service at the time of his discharge on October 1,
1980. (AR3). The BCNR ultimately opined that “any changes in [Mr. Philippeaux’s] military
record should be from [his] time after [his] Navy service since [he] allege[s] [his] disability
symptoms later resulted in [his] ‘demotion’ and ‘involuntary discharge’ from the Air National
Guard.” (AR4).

On July 23, 2020, the United States filed notice of this BCNR decision. (ECF No. 35).
Prior to setting a schedule for the parties to move for judgment on the administrative record, the
Court requested Mr. Philippeaux’s consent to appoint pro bono counsel. (ECF No. 37). Mr.
Philippeaux declined the Court’s invitation and elected to proceed pro se. (ECF No. 39).
Thereafter, the parties filed cross-motions for judgment on the administrative record. (ECF Nos.
52, 61). Briefing is now complete and this matter stands submitted for decision.

4
 II. Discussion

A. Legal Standards

i. Military Discharge

Military retirement for disability is governed by 10 U.S.C. § 1201, a money-mandating
statute. Chambers v. United States, 417 F.3d 1218, 1223 (Fed. Cir. 2005). Congress amended §
1201 after Mr. Philippeaux’s separation from the Navy. At the time of his discharge, § 1201
provided:

Upon a determination by the Secretary concerned that a member of a regular
component of the armed forces entitled to basic pay, or any other member of
the armed forces . . . is unfit to perform the duties of his office, grade, rank,
or rating because of physical disability incurred while entitled to basic pay,
the Secretary may retire the member [for disability.]

10 U.S.C. § 1201 (1976).

SECNAV Instruction 1850.4 spells out the personnel involved in the Secretary’s making
of this determination of unfitness and disability:

The Secretary of the Navy performs his statutory responsibility by means of
the Department of the Navy Physical Disability Evaluation System. His
principal agent in this regard is the Director, Naval Council of Personnel
Boards. The Central Physical Evaluation Board, regional physical evaluation
boards, Physical Review Council and Disability Evaluation System
Counselors, together with other Navy and Marine commands and activities,
comprise the Department of the Navy Disability Evaluation System.

(DA1, ECF No. 61-1). 2 Thus, the Disability Evaluation System was “designated and directed to
act on behalf of the Secretary of the Navy in making determinations as to fitness for active duty, .
. . entitlement to disability benefits, and disposition of members properly referred for physical
disability evaluation[.]” (DA2). Servicemembers were not referred for a disability evaluation
unless their “fitness for continued active service [was] in question.” (DA7, 8). But not all
physical defects “justify referring a case for disability evaluation.” (DA8). Referral was deemed
appropriate “only when in the opinion of the medical board the defect materially interferes with
the member’s ability to reasonably fulfill the purpose of [the member’s] employment on active
duty.” (DA8).

2
Defendant’s Appendix is attached to the United States’ Cross-Motion for Judgment on the
Administrative Record, (ECF No. 61). Helpfully, Defendant’s Appendix contains several former
military regulations pertinent to Mr. Philippeaux at the time of his discharge from the Navy. For
simplicity, rather than cite to each of these historical regulations, the Court cites to this appendix
as “(DA_).”

5
 Under SECNAVINST 1850.4, the Disability Evaluation System might deem a
servicemember “unfit” if he was “unable to perform the duties of his office, grade, rank, or rating
in such a manner as to reasonably fulfill the purpose of his employment on active duty.” (DA5).
The mere presence of a disability did not mean a servicemember must have been found “unfit,”
but rather the “nature and degree of the functional impairment produced by the disability” was
compared with “the requirements of the duties to which the member may reasonably expect to be
assigned[.]” (DA5).

Congress has created several administrative boards to adjudicate claims brought by
current and former military servicemembers. Under 10 U.S.C. § 1552, Congress created
administrative boards for the correction of military records. Congress created administrative
boards “to review the discharge or dismissal” of a servicemember under 10 U.S.C. § 1553.

In 2014, then-Secretary of Defense Charles Hagel issued a memo (the “Hagel Memo”)
providing supplemental guidance to the § 1552 corrections boards. (DA29–32). The Hagel
Memo recognized that numerous Vietnam veterans had sought upgrade of their discharge
characterizations 3 for Post-Traumatic Stress Disorder, which was not recognized at the time of
service “and in many cases, diagnoses were not made until decades after service was complete.”
(DA29). The result was that servicemembers’ records often “did not contain substantive
information concerning medical condition in either Service treatment records or personnel
records” and “[i]t has therefore been extremely difficult to document conditions that form a basis
for mitigation in punitive, administrative, or other legal actions or to establish a nexus between
PTSD and the misconduct underlying” other than honorable discharge conditions. (DA29). The
memo attached medical guidance “intended to ease the application process for veterans who are
seeking redress[.]” (DA29). The attached medical guidance advocated for “[l]iberal
consideration [of] petitions for changes in characterization of service to Service treatment record
entries which document one or more symptoms which meet the diagnostic criteria of [PTSD] or
related conditions.” (DA31). In other words, where a servicemember’s discharge was
characterized as “Other Than Honorable,” the military corrections boards were to give special
consideration to symptoms that indicated PTSD and were to consider whether PTSD may have
caused the misconduct related to that servicemember’s discharge.

In 2017, then-Under Secretary of Defense Anthony Kurta issued a memo (the “Kurta
Memo”) clarifying the Hagel Memo and expanding its scope to encompass § 1553 discharge and
dismissal administrative boards. (See Mot. for Judicial Notice at 3, 6, ECF No. 42). 4 The Kurta

3
A servicemember’s discharge “characterization” relates to whether the servicemember was
discharged for misconduct. A Navy servicemember’s discharge may be characterized as
“Honorable,” “General,” or “Other Than Honorable.” Wisotsky v. United States, 69 Fed. Cl. 299,
310 (2006). “When the [servicemember’s] separation is solely for reasons constituting
substandard performance of duty . . . the characterization must be Honorable.” Id. (citing
SECNAVINST 1920.6A, encl. 5, ¶ 1a, Guidelines on Characterization of Service (Nov. 21,
1983)).
4
On Motion from Mr. Philippeaux, the Court took judicial notice of the Kurta Memo. (ECF No.
51).

6
Memo specified that the guidance from the Hagel Memo was not limited to “Other Than
Honorable” discharge characterizations, “but rather apply to any petition seeking discharge relief
including requests to change the narrative reason, re-enlistment codes, and upgrades from
General to Honorable characterizations.” (Id. at 6). Importantly, by their own terms, neither the
Hagel Memo nor the Kurta Memo applied to the fitness for duty or disability determinations.

ii. Judgment on the Administrative Record

Where, as here, 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.” Bannum, Inc. v. United States, 404
F.3d 1346, 1356 (Fed. Cir. 2005). Unlike summary judgment standards, genuine issues of
material fact do not preclude a judgment on the administrative record. See id. at 1355–56.
Questions of fact are resolved by reference to the administrative record. Id. at 1356.
In challenging determinations of a military corrections board, a plaintiff must
demonstrate “by cogent and clearly convincing evidence,” Wronke v. Marsh, 787 F.2d 1569,
1576 (Fed. Cir. 1986), that the military board’s decision was “arbitrary, capricious, unsupported
by substantial evidence, or contrary to law.” Metz v. United States, 466 F.3d 991, 998 (Fed. Cir.
2006). It is well settled that “responsibility for determining who is fit or unfit to serve in the
armed services is not a judicial province; and that courts cannot substitute their judgment for that
of the military departments when reasonable minds could reach differing conclusions on the
same evidence.” Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983) (citations
omitted). Moreover, “military administrators are presumed to act lawfully and in good faith like
other public officers, and the military is entitled to substantial deference in the governance of its
affairs.” Dodson v. United States, 988 F.2d 1199, 1204 (Fed. Cir. 1993). Even if a plaintiff
identifies error in the administrative proceedings, the plaintiff still must “establish that the error
was prejudicial, i.e., that it affected the Board’s ultimate conclusion[.]” Fisher v. United States,
81 Fed. Cl. 155, 159 (2008), aff’d, No. 2008-5094, 2010 WL 4009437 (Fed. Cir. Oct. 14, 2010);
see also Wagner v. United States, 365 F.3d 1358, 1365 (Fed. Cir. 2004) (recognizing that
although harmless error review is not appropriate in all cases, “[w]here reviewable standards or
factors constrain the exercise of discretion, harmless error continues to be the appropriate test.”).
A court may set aside an agency’s decision if the agency “entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or the decision is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Ala. Aircraft Indus., Inc. v. United States,
586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983)). However, “[w]hen substantial evidence supports the
board’s action, and when that action is reasonable in light of all the evidence presented, the court
will not disturb the result.” Pope v. United States, 16 Cl. Ct. 637, 641 (1989). The court’s review
“does not require a reweighing of the evidence, but a determination whether the conclusion being
reviewed is supported by substantial evidence.” Heisig, 719 F.2d at 1157.
iii. Motion to Dismiss

The Court recognizes that pro se plaintiffs’ pleadings are generally held to “less stringent
standards” than those of a professional lawyer. Haines v. Kerner, 404 U.S. 519, 520–21 (1972).

7
However, the Court cannot extend this leniency to relieve Mr. Philippeaux of his jurisdictional
burden. Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987). Whether a
court has jurisdiction is a threshold matter in every case. See Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94–95 (1998). “If the Court determines at any time that it lacks subject-
matter jurisdiction, the court must dismiss the action.” RCFC 12(h)(3).

“The Court of Federal Claims is a court of limited jurisdiction.” Marcum LLP v. United
States, 753 F.3d 1380, 1382 (Fed. Cir. 2014). This Court resolves disputes over access to the
federal government’s wallet. The Tucker Act is the primary statute conferring jurisdiction on this
Court. The Tucker Act waives sovereign immunity for claims (1) founded on an express or
implied contract with the United States; (2) seeking a refund for a payment made to the
government; or (3) arising from federal constitutional, statutory, or regulatory law mandating
payment of money damages by the United States government. Ontario Power Generation, Inc. v.
United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see also United States v. Navajo Nation,
556 U.S. 287 (2009); United States v. Mitchell, 463 U.S. 206 (1983). Standing alone, however,
the Tucker Act does not itself create a substantive right enforceable against the United States.
Ferreiro v. United States, 501 F.3d 1349, 1351 (Fed. Cir. 2007). To come within jurisdictional
reach, “a plaintiff must identify a separate source of substantive law that creates the right to
money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005).

B. The United States is Entitled to Judgment on the Administrative Record with Respect
to Count I

In Count I of his Complaint, Mr. Philippeaux raises allegations related to his discharge
condition. (Compl. at 27). In his Motion for Judgment on the Administrative Record, Mr.
Philippeaux seeks an order from this Court setting aside the second BCNR decision finding him
not disabled while on active duty. (Pl.’s MJAR, ECF No. 52). Mr. Philippeaux supports his
request by raising numerous allegations which he scatters throughout his Motion; the Court
construes these allegations liberally. See Kerner, 404 U.S. 519. First, he contends that the BCNR
“failed to comply with the criteria set by DODI 1332.18 in determining whether or not [Mr.
Philippeaux] was fit to reenlist.” (Id. at 20). Second, he alleges that he was “permanently
disabled on active duty . . . because of his demonstrated endocrine and mental disorders[.]” (Id.
at 2). Third, he highlights that the VA awarded him a 100 percent disability rating and declared
him permanently disabled unemployable. (Id.). Fourth, Mr. Philippeaux asserts that his medical
examination on discharge indicated he had cognitive and memory defects stemming from his
1977 head injury which should have entitled him to a disability discharge. (Id. at 18). Fifth, he
argues that the Navy erred by failing to refer him for a Disability Evaluation System Board based
on the Kurta Memo and his 1980 medical evaluation. (Id. at 2–3, 20). Sixth, Mr. Philippeaux
summarily asserts that he met the criteria for disability retirement based on the Kurta Memo, but
the BCNR nevertheless failed to heed that guidance. (Id. at 3, 19).

In its Response, the United States contends that the first four arguments “attempt[] to
have the Court impermissibly reweigh the evidence and substitute its judgment for that of the
BCNR.” (Def.’s Mot. at 20, ECF No. 61). As to the fifth, the United States argues that “Mr.
Philippeaux has not demonstrated that the Navy improperly failed to refer him to the [Disability
Evaluation System], but in any event, the error was not prejudicial.” (Id. at 21). As to Mr.

8
Philippeaux’s sixth substantive argument, the United States responds that the Kurta Memo does
not apply to Mr. Philippeaux’s case, but even if it did, the BCNR complied with it. (Id.).

For the reasons that follow, the Court agrees with the United States and finds that the
United States is entitled to judgment on the administrative record with respect to Count I.

i. The BCNR Applied the Correct Standard to Determine Fitness for Service and
the Court Cannot Reweigh the Evidence Presented to the BCNR

As to the first of Mr. Philippeaux’s allegations the Court was able to identify—that the
BCNR failed to comply with Department of Defense Directive (“DODI”) 1332.18 in reaching its
decision on Mr. Philippeaux’s fitness to reenlist —Mr. Philippeaux is incorrect. DODI 1332.18
states that:

The primary requisite for eligibility for retirement or separation under
reference (a) is that the member must be unfit, because of physical disability,
to perform the duties of his office, grade, rank or rating.

(DA10). The BCNR relied on SECNAVINST 1850.4 (1977) in determining that “a
service member is unfit due to a disability when the member is unable, because of the disease or
injury, to perform the duties of their office, grade, rank or rating.” (AR2; DA5). The Secretary of
the Navy issued SECNAVINST 1850.4 “[t]o define a system for the evaluation of physical
disability and the directives and policies pertaining to it[.]” (DA1). “Physical evaluation
determinations are made independently and are . . . controlled by regulations contained in the
Disability Evaluation Manual (SECNAVINST 1850.4.).” Chayra v. United States, 23 Cl. Ct.
172, 181 (1991) (quoting JAG Manual 0801d); see also McCray v. United States, 3 Cl. Ct. 253,
256 (1983) (clarifying that “10 U.S.C. § 1216 (1976) directed the Secretary of the Navy to
prescribe regulations relative to disability retirement determinations. Such regulations were
issued by the Secretary of the Navy under the heading Disability Evaluation Manual,
SECNAVINST 1850.4”). It is clear that the BCNR did not err in applying SECNAVINST
1850.4 to review Mr. Philippeaux’s fitness determination. But in any event, the standards are
nearly identical. Thus, even if SECNAVINST 1850.4 were not the correct standard for making a
disability determination, the error would be harmless because Mr. Philippeaux would not have
been prejudiced by the mistake. See Sargisson v. United States, 913 F.2d 918, 922–23 (Fed. Cir.
1990) (finding harmless error where there was no risk of prejudice to the serviceman due to the
violation).

The second, third, and fourth grounds for Mr. Philippeaux’s challenge to the BCNR
decision would all require the Court to reweigh the evidence before the BCNR. In its decision
dated June 29, 2020, the BCNR stated that it considered all the record evidence and determined
that Mr. Philippeaux was fit for duty at the time of his discharge. (AR1–4). The BCNR
considered the report of medical treatment following Mr. Philippeaux’s October 12, 1977 injury,
his medical examination upon his discharge from the Navy, his discharge with a determination
that he was fit for reenlistment, his enlistments with the Air Force Reserves and Air National
Guard, his Air National Guard enlistment physical examination, his nine years of service in those
branches after his discharge from the Navy, his VA records establishing and adjusting his
disability ratings, and other evidence. (AR1–4).

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 In considering Mr. Philippeaux’s post-discharge diagnoses, the BCNR determined those
diagnoses “were not probative on the issue of whether [Mr. Philippeaux] was symptomatic on 1
October 1980[,]” the date of his discharge from the Navy. (AR3). The BCNR concluded that the
VA’s medical evaluation “was too distant in time from [Mr. Philippeaux’s] discharge date” and
determined that “the results of the medical examination conducted contemporaneously with [his]
discharge from the Navy was better evidence in determining [his] fitness for continued naval
service at the time.” (AR3). The BCNR evaluated the form completed during that medical
examination and noted that Mr. Philippeaux self-reported that he was “healthy” and “not [taking]
any medication[.]” (AR1311). Furthermore, the BCNR noted that on that same form, Mr.
Philippeaux indicated that he was not currently suffering, nor had he ever suffered, from a
catalog of medical conditions including head injury, unconsciousness, depression, dizziness, eye
trouble, or amnesia. (Id.). The examining physician did not list any medical abnormalities,
contrary to Mr. Philippeaux’s assertions in his Complaint. (Compare AR1312–13 with Compl.
(alleging a plethora of mental and physical disorders and conditions throughout)).

Substantial evidence supports the BCNR’s conclusion and the Court declines Mr.
Philippeaux’s invitation to supplant the BCNR’s judgment with its own. Mr. Philippeaux has
offered nothing to rebut the presumption that military administrators act in good faith and are
entitled to deference in determining who is fit or unfit to serve in the armed services. The BCNR
determined that at the time of his discharge, Mr. Philippeaux’s records showed he was “not
symptomatic for any disability conditions at the time of his discharge and that [his] performance
issues were not disability related,” thus he was “more likely than not, fit for continued active
duty on 1 October 1980 and, therefore, not eligible for assignment of physical disability as [his]
narrative reason for separation from the Navy.” (AR4).

In summary, the BCNR applied the correct standard to assess Mr. Philippeaux’s fitness at
the time of his discharge, and reasonably concluded he was fit for service and therefore not
entitled to a modification to his naval records. Mr. Philippeaux has not otherwise met his burden
to demonstrate “by cogent and clearly convincing evidence that the [BCNR’s] decision was
arbitrary, capricious or unlawful.” Dorl v. United States, 200 Ct. Cl. 626, 633 (1973). Because
“substantial evidence supports the [BCNR’s] action, and . . . that action is reasonable in light of
all the evidence presented, the court will not disturb the result.” Pope v. United States, 16 Cl. Ct.
637, 641 (1989).

ii. The Navy Did Not Err in Failing to Refer Mr. Philippeaux to the Disability
Evaluation System

To the extent Mr. Philippeaux asserts the Navy erred by failing to refer him for a
Disability Evaluation System Board, he is again incorrect. As the BCNR made clear, “[t]he
purpose of the separation physical was to determine whether [Mr. Philippeaux] [was] physically
qualified for discharge from active duty and whether any physical conditions existed that
required a referral for treatment” or whether Mr. Philippeaux was “unable to perform [his] duties
due to a disability condition” such that referral to the Disability Evaluation System was
appropriate. (AR3). Referral to the Disability Evaluation System is only required if the
servicemember is found to be unfit for service by a medical board. (DA7, 8). As discussed in
detail above, there was no indication that Mr. Philippeaux was unfit for service at the time at the
time of his separation physical conducted immediately prior to his discharge on October 1, 1980.

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Therefore, the Navy did not err when it did not refer Mr. Philippeaux to the Disability Evaluation
System.

iii. The Kurta Memo is Not Applicable to Mr. Philippeaux’s Claims

Mr. Philippeaux summarily asserts that he met the criteria for disability retirement based
on the Kurta Memo, but the BCNR erroneously failed to heed that guidance in considering
modification to his characterization of discharge. (Pl.’s MJAR at 3, 19). As explained above, the
Kurta Memo was an expansion and clarification of the Hagel Memo. The purpose of the Hagel
Memo was to give more weight to mitigating factors in evaluating a servicemember’s
misconduct leading to an “Other than Honorable” or “General” discharge characterization.
(DA29–32). Petitions for modification were to be construed liberally to take into account the
effects of previously undiagnosed Post Traumatic Stress Disorders on servicemembers, and
review boards were directed to acutely consider whether a servicemember’s PTSD motivated
conduct that led to an other than honorable discharge. (DA31). Significantly, neither the Hagel
Memo nor the Kurta Memo mention disability determinations.

Mr. Philippeaux received an honorable discharge from the Navy. (AR725). Thus, there is
no misconduct to mitigate and no service characterization to change. By its own terms, the Kurta
Memo applies to petitions for changes in discharge characterizations, not to BCNR
determinations with respect to disability benefits. (See Mot. for Judicial Notice at 3, 6).
Therefore, the Kurta Memo has no application to the relief Mr. Philippeaux seeks and provides
no legal basis to disturb the determinations and conclusions of the BCNR.

C. Count II of Mr. Philippeaux’s Complaint Must Be Dismissed Under RCFC 12(b)(1)

The United States moves for dismissal of Count II under RCFC 12(b)(1). (Def.’s Mot. at
15–18). Because Mr. Philippeaux’s Due Process and Equal Protection Clause claims are not
money mandating, the Court lacks subject matter jurisdiction and the United States’ motion must
be granted.

A constitutional provision or statute is money mandating if it “can fairly be interpreted as
mandating compensation by the Federal Government.” United States v. Navajo Nation, 556 U.S.
at 290 (quoting United States v. Testan, 424 U.S. 392, 400 (1976)). Mr. Philippeaux alleges
violations of his constitutional rights to Due Process and Equal Protection under the Fifth
Amendment to the United States Constitution. However, these constitutional provisions are not
money-mandating. Leblanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995); Carruth v.
United States, 627 F.2d 1068, 1081 (Ct. Cl. 1980) (holding that the Court “has no jurisdiction
over claims based upon the Due Process and Equal Protection guarantees of the Fifth
Amendment, because these constitutional provisions do not obligate the Federal Government to
pay money damages.”).

Put simply, Count II does not present a dispute over monies owed by the United States
Government. Where, as here, the Constitutional and statutory provisions relied upon by a
plaintiff are not money-mandating, the Court of Federal Claims lacks jurisdiction and those
claims must be dismissed for lack of subject matter jurisdiction. Jan’s Helicopter Serv., Inc. v.

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Fed. Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (citing Greenlee Cnty., Ariz. v.
United States, 487 F.3d 871, 876 (Fed. Cir. 2007)).

III. Conclusion

The BCNR’s decision that Mr. Philippeaux is not entitled to a modification of his naval
records is not arbitrary, capricious, unsupported by evidence, or contrary to law. The BCNR
considered all important aspects of Mr. Philippeaux’s claims, and its decision was both
reasonable and supported by substantial evidence. Therefore, the United States is entitled to
judgment on the administrative record with respect to Count I. The Court lacks subject matter
jurisdiction to adjudicate the Fifth Amendment Due Process and Equal Protection claims Mr.
Philippeaux brings under Count II, so those claims must be dismissed.

In summary, the Court ORDERS the following:

1. The United States’ Cross-Motion for Judgment on the Administrative Record with
respect to Count I, (ECF No. 61) is GRANTED.

2. The United States’ Motion to Dismiss Count II, (ECF No. 61), is GRANTED.

3. Mr. Philippeaux’s Motion for Judgment on the Administrative Record, (ECF No.
52) is DENIED.

4. Mr. Philippeaux’s Motion for Declaratory Judgment (ECF No. 11), Motion for
Permanent Injunction (ECF No. 23), and Motion to Strike (ECF No. 25) are
DENIED AS MOOT.

5. No costs or fees awarded.

The Clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

David A. Tapp
DAVID A. TAPP, Judge

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