Reaves v. United States

In the United States Court of Federal Claims
No. 16-141 C
(Filed: August 10, 2021)

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JOSEPH D. REAVES, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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Joseph D. Reaves, pro se, of Philadelphia, PA.

Mariana Teresa Acevedo, Trial Attorney, Civil Division, U.S. Department of Justice,
Washington, D.C., for defendant.

OPINION AND ORDER
SOMERS, Judge.

Pro se Plaintiff, Joseph Reaves, filed a complaint in this Court challenging the denial by
the Army Board for Correction of Military Records (“ABCMR”) of his application to correct his
military record. Plaintiff requested that the ABCMR correct his record to reflect that he was
discharged due to physical disability rather than as a result of his voluntary resignation for the
“good of the service.” The government has moved to dismiss Plaintiff’s complaint as time-
barred or, alternatively, for judgment on the administrative record. The case has been fully
briefed and the judge originally assigned to this case held oral argument on the government’s
motions on March 1, 2017. The Court finds re-argument unnecessary. For the reasons explained
below, the Court lacks subject matter jurisdiction over Plaintiff’s complaint.

BACKGROUND

A. Factual History

Plaintiff claims he is owed military disability pay under 10 U.S.C. § 1201. Plaintiff
enlisted for active duty in the United States Army on October 6, 1981. Administrative Record
(“AR”) 532, 609. On March 5, 1983, while on active duty, Plaintiff was diagnosed with a
duodenal ulcer. AR 414. Despite the diagnosis, Plaintiff continued on active duty and reenlisted
in the Army on September 20, 1984. AR 532, 594, 596. Plaintiff was later diagnosed with a pre-
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pyloric peptic ulcer on August 4, 1986. AR 206-207. On June 5, 1986, Plaintiff accepted
nonjudicial punishment for using marijuana between March and April of 1986, requiring he pay
$200.00 per month for two months, perform 45 days of extra duty, and accept a grade level
reduction from private first class to private. AR 347, 384. At some point between April and
November of 1986, Plaintiff faced more legal issues with the Army, resulting in the initiation of
court-martial proceedings. ECF No. 12 at 4 n. 4 (“Gov’t’s Mot. to Dismiss”). Although certain
records and information are unavailable regarding the court martial that he was facing, 1 it is clear
that Plaintiff submitted a request for discharge for the good of the service. AR 529. Because
Plaintiff was resigning for the good of the service, the Army regulation governing enlisted
personnel separations in effect at the time, Army Regulation 635-200, afforded Plaintiff a
military attorney who was required to apprise Plaintiff of the potential adverse consequences of
making such a request, including being discharged “under conditions other than honorable” and
thereby waiving a medical discharge claim. Army Reg. 635-200, chapter 10-2 (July 20, 1984);
see also Gov’t’s Mot. to Dismiss at 4-5. On November 10, 1986, Plaintiff was discharged from
the Army for the good of the service under conditions other than honorable. AR 529.

B. Procedural History

In May 2009, Plaintiff submitted an application to the ABCMR to request that his good
of the service discharge be changed to a physical disability discharge. AR 390. On February 17,
2010, the ABCMR notified Plaintiff that it was denying his claim. AR 343. The ABCMR
opinion, dated February 4, 2010, found no evidence to suggest Plaintiff should have been
medically discharged. AR 345-352 (“On the contrary, the evidence of record shows that after
exhaustive medical tests, examinations, and treatment [Plaintiff] was cleared for continued
service.”). Moreover, the ABCMR did not find any basis for Plaintiff’s claim that his medical
records should have been reviewed by the Medical Evaluation Board (“MEB”) or referred to the
Physical Evaluation Board (“PEB”). Id. In addition, the ABCMR found there was no evidence
to suggest Plaintiff “was not properly and equitably discharged in accordance with the
regulations in effect at the time.” Id.

On November 13, 2010, Plaintiff submitted a request for reconsideration of the
ABCMR’s February 2010 decision. AR 83-340. In an opinion dated June 2, 2011, the ABCMR
once again denied Plaintiff’s request to correct his military record to reflect a disability
separation. AR 36. The ABCMR found that although his medical condition could potentially
have been reviewed by the MEB, “his discharge was not the result of his inability to serve” in the
Army. Id. Moreover, the ABCMR stated that discharges like Plaintiff’s under “Army
Regulation 635-200 take precedence over medical separation processing . . . .” Id.

After the ABCMR denied Plaintiff’s correction request for a second time, he filed suit in
this Court, on January 29, 2016, requesting review of the ABCMR’s decisions. ECF No. 1
(“Compl.”). The government moved to dismiss Plaintiff’s complaint contending that because
Plaintiff was aware of his medical condition at the time of his discharge, the six-year statute of
limitations began to run at the time of his discharge in 1986, not when the ABCMR denied his

1
The government stated to the Court that certain records related to Plaintiff’s court-martial proceedings are
unavailable, including the court-martial charge sheet, Plaintiff’s request for discharge in lieu of court-martial, and
the discharge approval. See Gov’t’s Mot. to Dismiss at 4 n. 4.

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application for correction. See Gov’t’s Mot. to Dismiss at 14-16. Alternatively, the government
moved for judgment on the administrative record arguing that the ABCMR’s decision was not
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Id. at 16-
20.

DISCUSSION

A. Legal Standard

The United States Court of Federal Claims, like all federal courts, is a court of limited
jurisdiction. Under the Tucker Act, this Court may “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).
However, “[t]he Tucker Act does not, of itself, create a substantive right enforceable against the
United States . . . .” Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) (citing
Ferreiro v. United States, 501 F.3d 1349, 1351 (Fed. Cir. 2007)). Rather, to state a claim within
this Court’s jurisdiction, “the plaintiff must identify a separate contract, regulation, statute, or
constitutional provision that provides for money damages against the United States.” Id. Stated
differently, the plaintiff must state a claim that is based on a provision that “can fairly be
interpreted as mandating compensation by the Federal Government for the damages sustained,”
United States v. Mitchell, 463 U.S. 206, 216-217 (1983) (citing United States v. Testan, 424 U.S.
392, 400 (1976)), and is “reasonably amenable to the reading that it mandates a right of recovery
in damages,” United States v. White Mountain Apache Tribe, 537 U.S. 465, 473 (2003).

In addition, once a plaintiff identifies a money-mandating source, the claim asserted by
the plaintiff pursuant to that source must also have been brought within the applicable statute of
limitations to be within the Court’s jurisdiction. John R. Sand & Gravel Co. v. United States,
552 U.S. 130 (2008) (holding that the statute of limitations set forth in 28 U.S.C. § 2501 is
jurisdictional). The applicable statute of limitations in this case is 28 U.S.C. § 2501, which
provides that “[e]very claim of which the United States Court of Federal Claims has jurisdiction
shall be barred unless the petition thereon is filed within six years after such claim first accrues.”
28 U.S.C. § 2501.

Although a pro se plaintiff is held to “less stringent standards than formal pleadings by
lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), “the leniency afforded to a pro se litigant
with respect to mere formalities does not relieve the burden to meet jurisdictional requirements.”
Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). Accordingly, a pro se plaintiff still
“bears the burden of establishing the Court’s jurisdiction by a preponderance of the evidence.”
Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing Taylor v. United States, 303 F.3d
1357, 1359 (Fed. Cir. 2002)).

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B. Analysis

As explained below, this Court lacks jurisdiction over Plaintiff’s complaint for two
reasons. 2 First, Plaintiff’s voluntary request to be discharged for the good of the service in lieu
of facing a trial by court-martial, and his subsequent discharge, deprives this Court of jurisdiction
over Plaintiff’s complaint under Sammt v. United States, 780 F.2d 31 (Fed. Cir. 1985), and its
progeny. Second, even if the Sammt jurisdictional bar did not exist, his complaint would
nonetheless fall outside the Court’s jurisdiction as it was filed roughly 30 years after his claims
accrued and, therefore, is beyond the Tucker Act’s six-year statute of limitations.

1. Plaintiff’s Voluntary Discharge for the “Good of the Service” Deprives this Court
of Jurisdiction over His Claims

Plaintiff served on active duty in the Army from October 6, 1981, until November 10,
1986, when his request for a voluntarily discharge under Army Regulation 635-200, chapter 10,
for the good of the service in lieu of trial by court-martial was granted. AR 33, 529. In Sammt,
the Federal Circuit articulated the rule that a voluntary discharge bars this Court from having
jurisdiction over a military pay claim. 780 F.2d at 32-33 (“If his retirement was voluntary, no
jurisdiction resides in the Claims Court.”). This principle has been reaffirmed by the Federal
Circuit in several cases since Sammt, including Moyer v. United States, 190 F.3d 1314 (Fed. Cir.
1999), which applied the Sammt rule to a case involving a former member of the Army’s request
to correct his military records to receive the pay and allowances he would have received had he
been medically discharged instead of his requesting voluntary resignation to avoid a trial by
court-martial. See also Adkins v. United States, 68 F.3d 1317, 1321 (Fed. Cir. 1995) (“If . . .
Adkins’s retirement was ‘voluntary,’ he retained no statutory entitlement to compensation, and
thus no money-mandating provision would support Tucker Act jurisdiction over his claim.”).

In Moyer, the Federal Circuit, explained that “once found to be voluntary, retirement or
resignation generally eliminates the possibility of Tucker Act jurisdiction, thus depriving the
Court of Federal Claims of authority to decide liability . . . .” Moyer, 190 F.3d at 1318. In other
words, for the Sammt jurisdictional bar to apply, a court must find that the discharge was actually
voluntary and not coerced or otherwise requested under duress. Moreover, the Federal Circuit
has further explained that in addition to being truly voluntary, in order for this jurisdictional bar
to apply, the benefit to which a plaintiff is claiming entitlement had to be a benefit for which the
voluntary discharge ended the plaintiff’s entitlement: “there is no jurisdictional bar if the claim

2
In the government’s motion to dismiss, it argued that Plaintiff’s claim is barred by the applicable statute of
limitations under the accrual rule set forth in Real v. United States, 906 F.2d 1557, 1560 (Fed. Cir. 1990). While the
government is correct in its argument for the reasons explained in subsection B.2., Plaintiff’s claim is
jurisdictionally barred for the additional reason explained in subsection B.1. As “federal courts have an independent
obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore . . . must raise and decide
jurisdictional questions the parties either overlook or elect not to press,” Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428, 434 (2002), the Court addresses this additional jurisdictional defect with Plaintiff’s complaint before
turning to the government’s argument under Real. See also Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (“When a
requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties
have disclaimed or have not presented.”); Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) (“Courts have an
independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.”);
Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) (“[A] court has a duty to inquire into its
jurisdiction to hear and decide a case.”).

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for benefits would survive whether the retirement was voluntary or involuntary . . . .” McHenry
v. United States, 367 F.3d 1370, 1377 (Fed. Cir. 2004). Thus, if a benefit would continue to be
available to a plaintiff irrespective of whether the discharge was voluntary or involuntary, then
the Sammt bar does not apply. Moyer, 190 F.3d at 1319 (“[T]he claimant can hardly be said to
have waived entitlement to the provision by voluntarily retiring or resigning if it applies
irrespective of the manner in which the claimant leaves the service.”). In short, for the Sammt
bar to apply, the discharge from the service must have been voluntary, and, if found to be
voluntary, the discharge must have ended a claimant’s entitlement to the benefit in question. In
the instant case, both requirements are met.

A discharge for the good of the service is a type of voluntary separation. The Army
regulation in effect at the time Plaintiff was discharged makes this clear. In general, the relevant
regulation provided that “[a] soldier who has committed an offense or offenses, the punishment
for which, under the UCMJ and the MCM, 1984, includes bad conduct or dishonorable
discharge, may submit a request for discharge for good of the Service.” Army Regulation 635-
200, chapter 10 (emphasis added). In other words, a discharge for the good of the service is
requested by the soldier, not prescribed by the Army, and thus is a form of resignation.
“Resignations or retirements are presumed to be voluntary.” Tippett v. United States, 185 F.3d
1250, 1255 (Fed. Cir. 1999). The fact that good of the service resignations are requested while a
less pleasant alternative—a court-martial—is pending does not change this presumption. Sammt,
780 F.2d at 33 (“To the extent that the civilian pay cases articulate the rationale that a choice of
unpleasant alternatives does not make a choice involuntary, that rationale is applicable here.”);
see also Moyer, 190 F.3d at 1319 (“[T]he imposition of a less desirable alternative (mandatory
retirement) does not render an otherwise voluntary retirement involuntary.”).

Accordingly, the Court presumes that Plaintiff’s decision to request a good of the
service discharge was voluntary. Moreover, the Court also presumes that Plaintiff received all of
the protections provided by the regulation to ensure that his choice was voluntary. Butler v.
Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (“In the absence of clear evidence to the contrary,
the [presumption of regularity] presumes that public officers have properly discharged their
official duties.”). These protections include that “[c]ommanders will insure [sic] that a soldier
will not be coerced into submitting a request for the good of the Service” and that “[t]he soldier
will be given a reasonable time . . . to consult with consulting counsel . . . and to consider the
wisdom of submitting such a request for discharge.” Army Regulation 635-200, chapter 10.
Additionally, only after “receiving counseling” may the soldier “elect to submit a request for
discharge for the good of the Service.” Id. Furthermore, the soldier must “sign a written request,
certifying that he or she has been counseled, understands his or her rights, may receive a
discharge under other than honorable conditions, and understands the adverse nature of such a
discharge and the possible consequences.” Id. What is more, in that written request, the soldier
must specifically state that he or she understands that if the discharge is under other than
honorable conditions, one of the consequences is that “I shall be deprived of many or all Army
benefits.” Id. Plaintiff did not attempt to rebut or even argue that he did not receive these
procedural protections. See Gov’t’s Mot. to Dismiss at 4-5 (explaining all of the procedural
protections Plaintiff received before being permitted to request a discharge for the good of the
service).

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 Although the Court presumes that Plaintiff’s good of the service discharge was voluntary,
the Court does have jurisdiction to determine whether a servicemember’s resignation or
retirement was in fact voluntary. However, “[t]o be entitled to a hearing on a claim of
involuntariness, a plaintiff must make a threshold non-frivolous allegation that his discharge was
involuntary.” Tippett, 185 F.3d at 1255 (citing cases). “If the plaintiff alleges facts that would
make out a prima facie case of involuntariness if proven, then he is entitled to a hearing on the
voluntariness issue.” Id. (citing Dumas v. Merit Sys. Protection Bd., 789 F.2d 892, 894 (Fed.
Cir. 1986)). In other words, “the plaintiff bears the burden of coming forward with evidence to
demonstrate that his resignation or retirement was not voluntary.” Carmichael v. United States,
298 F.3d 1367, 1372 (Fed. Cir. 2002).

Plaintiff, however, made no allegations claiming his discharge was involuntary. In fact,
he has done nothing to allege, much less demonstrate, that his resignation was the product of
duress. Plaintiff makes no attempt to show: (1) that he involuntarily accepted the Army’s
resignation terms; (2) that circumstances permitted no other alternative; and (3) that said
circumstances were the result of the Army’s coercive acts. Christie v. United States, 207 Ct. Cl.
333, 338 (1975) (citing Fruhauf Southwest Garment Co. v. United States, 126 Ct. Cl. 51, 62
(1953)). Rather, Plaintiff appears to take no issue with the voluntariness of his discharge. His
argument rests instead on his claim that the Army should have discharged him prior to his
request for a voluntary dismissal for the good of the service because he was diagnosed in May
1983 with a duodenal ulcer (for which he was treated and returned to duty).

Although Plaintiff takes no issue with the voluntariness of his discharge, had he claimed
that his discharge was involuntary he would have had difficulty meeting the elements of the
duress test. This is because it is clear that Plaintiff had a choice. He could have stood pat and
fought the allegations against him at a trial by court martial. As the Court of Claims observed
regarding a servicemember’s choice to retire rather than challenge her discharge for cause:

[w]hile it is possible plaintiff, herself, perceived no viable alternative but to tender
her resignation, the record evidence supports [the Civil Service Commission]
finding that plaintiff chose to resign and accept discontinued service retirement
rather than challenge the validity of her proposed discharge for cause. The fact
remains, plaintiff had a choice. She could stand pat and fight. She chose not to.

Id. (emphasis added). The same is true of Plaintiff. Plaintiff was presented with a choice: allow
the Army to proceed with the court martial against him and prove its case or apply for a
discharge for the good of the service. Plaintiff voluntarily chose the latter course and was
discharged. Plaintiff does not now have the option of ignoring that choice and seeking an avenue
of relief in this Court that he himself gave up by choosing to be voluntarily discharged. Moyer,
190 F.3d at 1319 (“Sammt and cases following it are based on the common-sense notion that one
who voluntarily gives up any right to compensation and benefits cannot later claim entitlement to
such.”).

In addition, it is clear that Plaintiff’s request for a discharge for the good of the service, in
conjunction with the fact that his resulting discharge was under other than honorable conditions,
ended his entitlement to disability benefits. First, a discharge for the good of the service takes

6
precedence over a medical discharge, requiring the servicemember requesting such a discharge
to forfeit any right to a medical discharge in order to avoid a court martial. Second, a specific
consequence of being discharged under other than honorable conditions is the loss of Army
benefits. Army Regulation 635-200. As is discussed above, Plaintiff accepted the risk that he
would most likely be discharged under other than honorable conditions when he requested to be
discharged for the good of the service. Thus, his voluntary discharge was the direct cause of his
loss of disability benefits.

Accordingly, the jurisdictional bar set forth in Sammt applies here, and Plaintiff’s
complaint must be dismissed.

2. Statute of Limitations

Because Plaintiff’s complaint was brought over thirty years after his claims accrued, even
if his complaint was not covered by the Sammt jurisdictional bar, his claim would still
nonetheless fall outside the scope of this Court’s jurisdiction. See John R. Sand & Gravel Co.,
552 U.S. 130 (holding that the six-year statute of limitations set forth in 28 U.S.C. § 2501 is
jurisdictional). For purposes of the Tucker Act, a claim “accrues as soon as all events have
occurred that are necessary to enable the plaintiff to bring suit.” Martinez v. United States, 333
F.3d 1295, 1303 (Fed. Cir. 2003). In cases in which a Tucker Act claim is premised on a
wrongful discharge from the military, the general rule is that the claim “accrues upon the service
member’s discharge rather than upon the final decision of the appropriate military corrections
board.” Chambers v. United States, 417 F.3d 1218, 1223 (Fed. Cir. 2005) (citing Martinez, 333
F.3d 1295). However, in cases in which the military discharge claim is based on entitlement to
disability retirement pay, the claim generally does not “accrue until the appropriate military
board either finally denies such a claim or refuses to hear it.” 3 Id. at 1224 (citing Real v. United
States, 906 F.2d 1557, 1560 (Fed. Cir. 1990)).

This general rule of accrual for disability retirement claims is not without exceptions.
For instance, and most pertinent to this case, the statute of limitations on a disability retirement
claim may begin to run “when the service member has sufficient actual or constructive notice of
his disability, and hence, of his entitlement to disability retirement pay, at the time of his
discharge.” Id. at 1226 (citing Real, 906 F.2d at 1560). The inquiry then, under Real and
Chambers, is whether Plaintiff sufficiently knew at the time of his discharge that he was
suffering from a permanent disability that was service-connected and not the result of his
intentional misconduct. Unfortunately for Plaintiff, the record before the Court clearly
establishes that he had such knowledge. Therefore, his claim for disability retirement pay began
to accrue upon his discharge from the Army in 1986.

Plaintiff readily admits to the Court that he had full knowledge of his specific medical
disability prior to his discharge on November 10, 1986. In his complaint, he states that he was
diagnosed with and hospitalized for a duodenal ulcer in 1983. Compl ¶ 1. In addition, Plaintiff
provided the Court with multiple medical records documenting his duodenal ulcer from that year.

3
In fact, unless an exception applies, “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.”
Chambers, 417 F.3d at 1225.

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Compl. at Ex. C. Indeed, Plaintiff not only admits that he had knowledge of his disability at the
time, but he also admits and asserts that the Army did as well. In other words, rather than
arguing that he was unaware of a latent condition, Plaintiff’s entire argument is premised on his
and the Army’s knowledge of his ulcer dating back three years before his discharge. While this
argument may have stated a claim within this Court’s jurisdiction had Plaintiff brought it within
six years of his discharge, 4 it is jurisdictionally fatal to his complaint when raised now.

Because Plaintiff himself has established to the Court that he had “sufficient actual or
constructive notice of his disability” at the time of his discharge, Chambers, 417 F.3d at 1226,
the Court must apply the Real/Chambers exception, thereby starting the statute of limitations
clock on Plaintiff’s disability claim on the date of his discharge in 1986, not when the ABCMR
denied his claim in 2010. Accordingly, in addition to the Sammt jurisdictional bar discussed
above, the Court must dismiss Plaintiff’s disability pay claim because it became time-barred in
1992. Thus, this Court lacks subject matter jurisdiction.

CONCLUSION

For the forgoing reasons, this case is DISMISSED for lack of subject matter jurisdiction.
The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

s/ Zachary N. Somers
ZACHARY N. SOMERS
Judge

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Because the Court does not have jurisdiction over Plaintiff’s complaint, it does not need to address the
government’s motion for judgment on the administrative record. However, if the Court did have jurisdiction over
the complaint, it is highly likely that the government’s motion would have been granted. In short, Plaintiff’s claim
appears to be based on a misreading of the relevant Army regulations. Plaintiff argues that he should have been
referred to the MEB and then discharged as early as 1983 because he was diagnosed with a duodenal ulcer.
However, while a duodenal ulcer could have resulted in referral to the MEB and ultimately a discharge, MEB
referral and discharge are not the automatic result of a duodenal ulcer diagnosis. Rather, the relevant regulation in
effect at the time did not automatically entitle Plaintiff to MEB review because he did not satisfy the repeated
hospitalization or “sick in quarter” requirement. Army Regulation 40-501. The Administrative Record and the
exhibits attached to Plaintiff’s complaint establish that Plaintiff was treated for his condition, prescribed over-the-
counter medication, returned to duty, and continued on duty for an additional three years before running into the
legal problems that ultimately led to his voluntary discharge. As the ABCMR pointed out in its review of Plaintiff’s
application to have his record corrected, “the mere presence of an impairment does not, of itself, justify a finding of
unfitness because of physical disability.” AR 35.

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