Chambers v. United States

Error: Bad annotation destination
United States Court of Appeals for the Federal Circuit

04-5134

JAMES S. CHAMBERS,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

Thomas J. Reed, Widener University School of Law, of Wilmington, Delaware,
argued for plaintiff-appellant.

Gregory T. Jaeger, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General,
David M. Cohen, Director, and Franklin E. White, Jr., Assistant Director.

Appealed from: United States Court of Federal Claims

Judge Lawrence J. Block
 United States Court of Appeals for the Federal Circuit

04-5134

JAMES S. CHAMBERS,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

__________________________

DECIDED: August 1, 2005
__________________________

Before MICHEL, Chief Judge, MAYER and DYK, Circuit Judges.

Opinion for the court filed by Chief Judge MICHEL. Dissenting opinion filed by Circuit
Judge DYK.

MICHEL, Chief Judge.

James S. Chambers (“Chambers”) appeals the decision of the United States

Court of Federal Claims granting judgment upon the administrative record in favor of the

United States (“the government”). Chambers v. United States, No. 03-1767-C (Fed. Cl.

July 12, 2004). The trial court upheld the decision of the Army Board for Correction of

Military Records (“ABCMR” or “Board”) denying Chambers’ request to reopen his 1970

honorable discharge from the military to assess whether he suffered from post traumatic

stress disorder (“PTSD”) while on active duty such that he should have been retired for

disability under 10 U.S.C. § 1201 with disability retirement or severance pay.
 Although neither the parties nor the trial court considered whether the Court of

Federal Claims had jurisdiction to hear Chambers’ case, “[e]very federal appellate court

has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of

the lower courts in a cause under review,’ even though the parties are prepared to

concede it.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (citation

omitted). Given some thirty-three years separating Chambers’ discharge from the Army

and his suit in the Court of Federal Claims, we requested jurisdictional briefing from the

parties. We now hold that because the ABCMR was the first competent military board

to consider Chambers’ disability retirement claim arising under 10 U.S.C. § 1201, his

claim did not accrue until the Board rendered its final decision in September 2000.

Chambers’ 2003 suit in the Court of Federal Claims was, therefore, not barred by the

six-year statute of limitations in 28 U.S.C. § 2501. However, because the Court of

Federal Claims correctly held that the decision of the ABCMR was supported by

substantial evidence, we affirm.

BACKGROUND

I.

Chambers enlisted in the U.S. Army in July 1967. After completing training in

Fort Bliss, Texas, Chambers served in the Panama Canal Zone until he was reassigned

to Vietnam as a light air defense artillery crewman in December 1969. He was

promoted to the rank of sergeant (grade E-5) in March 1970.

Prior to his discharge from active duty in July 1970, Chambers was hospitalized

three times. In June 1968, Chambers was hospitalized for back pain resulting from a

car accident. At that time, he was also diagnosed with “transient stress reaction.” The

04-5134 2
attending psychiatrist, however, concluded that no follow-up treatment was necessary.

In January 1969, Chambers was readmitted to the hospital for headaches and chest

pain, diagnosed with “personality pattern disturbance, transient, situational,” and

prescribed Valium. He returned to regular duty after eleven days in the hospital. In

April 1970, approximately three months before Chambers’ discharge, Chambers

reported to a military hospital complaining of an earache and nervousness. Upon

referral to the Neurological Psychiatric Clinic, Chambers reported feeling agitated, short-

tempered, and experiencing difficulty interacting with his fellow soldiers and superiors.

Chambers was diagnosed with “mild situational anxiety” and prescribed Librium. He

returned to regular duty the same day.

Chambers returned to Fort Lewis, Washington in July 1970 to complete his

military obligation. At Fort Lewis, Chambers’ medical records were examined, and he

received a separation physical exam, which revealed no physical or psychological

abnormalities. Chambers was found medically qualified for separation and honorably

discharged.

After separation from active duty, Chambers first sought medical assistance from

the Veterans Administration (“VA”) in November 1972. At that time, he was diagnosed

with acute bronchitis, but made no mention of PTSD-related symptoms. From 1982 to

1983, Chambers served in the New York Army National Guard.

Chambers was diagnosed with PTSD in February 1987, while in the Drug

Rehabilitation Program at the VA Hospital in Montrose, New York. Chambers promptly

filed a claim for VA disability benefits based on PTSD and received a 30 percent PTSD

04-5134 3
rating in July 1987. That rating was ultimately increased to 100 percent, effective June

1990.

II.

In July 1999, Chambers applied to the ABCMR for disability retirement pay based

upon his 1987 diagnosis of PTSD. Specifically, Chambers asked that the ABCMR

reopen his discharge to reassess his mental condition and evaluate his entitlement to

disability retirement or severance pay. Chambers argued that the Army improperly

discharged him as physically and mentally qualified, despite his medical history. He

further claimed that the discharge was illegal, because he did not receive counseling

about his right to have a Medical Evaluation Board (“MEB”) review his fitness for duty or

his right to waive MEB review.

The Board denied Chambers’ claim on March 16, 2000. The ABCMR first

determined that under Army Regulation (“AR”) 635-40 in effect in 1970, only a soldier’s

commander, physician, or a Military Occupational Specialty/Medical Retention Board

(“MMRB”) could request MEB review or refer a soldier to an MEB. Chambers thus had

no right to request review by an MEB at the time of his separation. Accordingly,

“[Chambers’] rights were not violated by him not being counseled concerning his right to

a[n] MEB or requirement to waive a[n] MEB before he could be separated.”

Moreover, the Board determined that the three medical incidents suffered by

Chambers — all of them temporary in duration, medically treated, and followed by a

return to full military duty — did not meet the requirements for reference to an MEB.

The Board also noted that “[t]he medicines prescribed in these cases, Valium (5 mg

04-5134 4
twice a day) and Librium (10 mg three times a day for two weeks), are low

concentrations according to the Board’s medical doctor advisor.”

The ABCMR thus concluded that the physician administering Chambers’ physical

correctly found no basis for referring Chambers to an MEB based upon his medical

condition and medical records. First, the Board observed that Chambers was

performing his military duties at the time of separation and was thus presumed fit under

the standards set by the U.S. Army Physical Disability Agency. Second, according to

the 1970 version of AR40-501, “transient personality disruptions of a nonpsychotic

nature and situational maladjustments due to acute or special stress do not render an

individual unfit.” “As such,” the Board ruled, “the doctor was correct in stating that the

applicant was qualified for separation.”

The Board declined to reconsider Chambers’ claim on September 27, 2000.

III.

On July 24, 2003, Chambers filed a complaint in the Court of Federal Claims,

challenging the ABCMR decision as arbitrary and capricious. Chambers claimed, inter

alia, he was entitled to a judgment awarding him “disability retirement pay from 22 April

1970 through 1 June 2003 at the rate of 50% of pay for enlisted grade E-5,” amounting

to $344,000.00 plus costs.

On the parties’ cross-motions for judgment upon the administrative record, the

trial court ruled in favor of the government. The Court of Federal Claims explained that

despite its “arbitrary and capricious” standard of review for administrative decisions

affecting military pay, “[e]ssentially, plaintiff asks this court to conduct a de novo review

of the administrative record and find that the ABCMR impermissibly denied plaintiff’s

04-5134 5
claim. This court, however, may not reweigh the evidence but may only ascertain

whether the administration’s decision was based on substantial evidence.” Chambers,

No. 03-1767-C, slip op. at 2. The trial court concluded that “[t]he ABCMR reviewed the

record and rendered a rational decision that plaintiff was fit for duty at the time of his

separation.” Id.

Chambers timely appealed to this court. We have jurisdiction over an appeal

from a final decision of the Court of Federal Claims pursuant to 28 U.S.C. § 1295 (a)(3).

DISCUSSION

I.

We begin with subject matter jurisdiction. There is no dispute that Chambers

filed this suit under the Tucker Act, 28 U.S.C. § 1491 (2000), which authorizes certain

actions for monetary relief against the United States to be brought in the Court of

Federal Claims and waives the government’s sovereign immunity for those actions. As

we have explained, however, “[t]he Tucker Act does not itself provide the substantive

cause of action; instead a plaintiff must look elsewhere for the source of substantive law

on which to base a Tucker Act suit against the United States.” Martinez v. United

States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc) (citations omitted). That source

must be “money-mandating.” See Fisher v. United States, 402 F.3d 1167, 1172 (Fed.

Cir. 2005) (en banc in relevant part). Here, Chambers claims entitlement to military

disability pay under 10 U.S.C. § 1201, a money-mandating statute. See id. at 1174-75.

Section 1201 provides that upon the Secretary’s determination that a service member is

“unfit to perform the duties of the member’s office, grade, rank, or rating because of

04-5134 6
physical disability incurred while entitled to basic pay,” the service member may retire

for disability. 10 U.S.C. § 1201(a) (2000).

Claims under the Tucker Act are subject to the six-year statute of limitations in 28

U.S.C. § 2501, which provides that “every 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.” A Tucker Act claim accrues “as soon as all

events have occurred that are necessary to enable the plaintiff to bring suit, i.e., when

‘all events have occurred to fix the Government’s alleged liability, entitling the claimant

to demand payment and sue here for his money.’” Martinez, 333 F.3d at 1303 (citation

omitted). Accordingly, to ascertain whether the trial court had jurisdiction to hear

Chambers’ claim, we must determine when that claim accrued — upon his discharge

from the Army in 1970, when the ABCMR denied his claim in 2000, or at some point in

between those two dates.

This court recently held en banc that a claim for wrongful discharge accrues upon

the service member’s discharge rather than upon the final decision of the appropriate

military corrections board. See Martinez, 333 F.3d 1295. In view of Martinez, we asked

that the parties’ jurisdictional briefing address whether the same rule applies in

retirement disability cases. We now hold that it does not.

In Martinez, the Court of Federal Claims dismissed the plaintiff’s claim, filed more

than six years after his separation from active duty, as time-barred under 28 U.S.C.

§ 2501. This court affirmed. We explained that “[i]n a military discharge case, this court

and the Court of Claims have long held that the plaintiff’s cause of action for back pay

accrues at the time of the plaintiff’s discharge.” Id. at 1303 (citing, among other

04-5134 7
authorities, Real v. United States, 906 F.2d 1557, 1560 (Fed. Cir. 1990)). We observed

that:

[t]his court and the Court of Claims have frequently addressed and
rejected the argument that the cause of action for unlawful discharge does
not accrue until the service member seeks relief from a correction board
and the correction board enters a final decision denying relief. The
reasoning underlying that line of cases is that, since their creation, the
correction boards have been regarded as a permissive administrative
remedy and that an application to a correction board is therefore not a
mandatory prerequisite to filing a Tucker Act suit challenging the
discharge.

Id. at 1304 (citing, among other authorities, Friedman v. United States, 310 F.2d 381,

396 (Ct. Cl. 1962)). We thus reasoned that Martinez’s resort to the ABCMR was

permissive rather than mandatory to bringing a Tucker Act suit for monetary relief. Id. at

1306-08. Accordingly, we held that Martinez’s claim accrued not upon the Board’s final

decision, but upon his discharge. Id. at 1310.

Unlike claims for unlawful discharge, however, claims of entitlement to disability

retirement pay generally do not accrue until the appropriate military board either finally

denies such a claim or refuses to hear it. See Real, 906 F.2d at 1560 (citing Friedman,

310 F.2d 381). The decision by the first statutorily authorized board that hears or

refuses to hear the claim invokes the statute of limitations. Id. The difference between

the two types of claims stems from their respective money-mandating statutes. In

wrongful discharge cases brought under the Military Pay Act, 37 U.S.C. § 204, Martinez

explained, the service member can seek redress immediately upon separation from

service; an appeal to a Correction Board constitutes a “permissive” rather than a

mandatory remedy. 333 F.3d at 1303. Because the Tucker Act does not require

exhaustion of administrative remedies, a plaintiff’s invocation of such a permissive

04-5134 8
remedy neither prevents the accrual of his cause of action nor tolls the statute of

limitations.

Disability retirement cases, however, are governed by 10 U.S.C. § 1201.1 As

Friedman explained, in the context of section 1201, “Congress has entrusted the military

boards with the task of determining whether a serviceman should be retired for disability

and therefore . . . no cause of action arises (and the statute of limitations does not run)

until a proper board has acted or declined to act.” 310 F.2d at 389. As another decision

of the Court of Claims artfully reasoned:

The principle of these cases is: first, jurisdiction is conferred by Congress,
not on this court, but on retiring boards and the Secretaries of the three
armed services, to decide an officer’s right to retirement for physical
disability, and his consequent right to retired pay; second, it follows
therefrom that we cannot acquire jurisdiction of such a claim until after the
board and the Secretary have acted, or failed or refused to act, and not
then unless the board and the Secretary acted arbitrarily or capriciously or
contrary to law; third, since our jurisdiction could not be invoked until after
the retiring board and the Secretary had acted, the statute of limitations on
a suit in this court did not begin to run until they had acted . . . .

Furlong v. United States, 152 F. Supp. 238, 240-41 (Ct. Cl. 1957). In other words, 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. Therefore, if at the time of discharge, the service member requested review

by an appropriate board and the request was denied, or if the board heard the service

member’s claim and denied it, then the limitations period begins to run upon discharge.

1
“Upon a determination by the Secretary concerned that a member
described in subsection (c) is unfit to perform the duties of the member’s office, grade,
rank, or rating because of physical disability incurred while entitled to basic pay or while
absent as described in subsection (c)(3), the Secretary may retire the member, with
retired pay computed under section 1401 of this title [10 U.S.C. § 1401], if the Secretary
also makes the determinations with respect to the member and that disability specified
in subsection (b).” 10 U.S.C. § 1201(a) (2000).

04-5134 9
Real, 906 F.2d at 1560. But where the claimant “has not had or sought a Retiring

Board,2 his claim does not accrue until final action by the Correction Board (which in

that instance stands in the place of the Retiring Board as the proper tribunal to

determine eligibility for disability retirement).” Friedman, 310 F.2d at 396. Thus where

the service member was released from service without a board hearing and

subsequently files a claim for disability retirement before a military correction board, “the

Correction Board becomes the first proper board to act (or to be asked to act) on the

matter, and the claim does not ripen until that Board’s action is final.” Id. at 392. The

Correction Board proceeding “becomes a mandatory remedy; without it, the case in this

court would be dismissed as premature on the ground that the plaintiff did not seek or

obtain a final decision within the administrative hierarchy.” Id. (emphasis added).

Given the differences underlying claims for unlawful discharge and disability

retirement, our holding in Martinez did not disturb the so-called “first competent board

rule” of Friedman. Indeed, the government does not contend otherwise. The

government instead argues that Chambers’ case falls into an exception to the Friedman

rule addressed by this court in Real. This exception, according to the government,

applies to cases where “the service member is aware of the prospect of disability

retirement but does not obtain a decision entitling him to disability retirement from the

appropriate board during service.” The government contends that as of 1987,

Chambers knew he had PTSD and, based on his 30 percent disability rating from the

VA, knew that his PTSD was service connected. At that time, the government argues,

2
A Retiring Board, now called Physical Examination Board or PEB,
determines a service member’s fitness for duty and entitlement to disability retirement
once a Medical Examination Board or MEB finds the soldier does not meet the Army’s
standards for retention under its regulations.

04-5134 10
Chambers knew all of the facts supporting his disability retirement claim, yet failed to

apply to the ABCMR until 1999, twelve years later.

We do not read Real as broadly as the government. In Real, the trial court

dismissed the plaintiff’s claim for disability benefits as time-barred, holding that his claim

accrued upon discharge from the Navy in 1974, not upon the final decision of the Board

for the Correction of Naval Records in 1987. The Court of Federal Claims concluded

that, even though Real knew or should have known that he suffered from significant

medical problems prior to discharge and understood that he would be ineligible for

future disability benefits if he did not challenge the Navy’s finding that he was fit for duty,

he did not contest that determination and thus waived the right to further review. Real v.

United States, 18 Cl. Ct. 118, 128 (Ct. Cl. 1989).3

On appeal, this court began by restating the general rule of Friedman that if the

service member had neither requested nor been offered consideration by a disability

board prior to discharge, the later denial of his petition by a corrections board, not his

3
The Claims Court found a striking similarity between Real’s case and
Huffaker v. United States, 2 Cl. Ct. 662 (1983). In Huffaker, the plaintiff was examined
by Navy physicians upon discharge and found fit for duty. 2 Cl. Ct. at 663. He then
certified that he was informed of and understood the provision of BUMEDNIST
INSTRUCTION 6120.6, providing that “all personnel of the naval service be made
aware of the possibility of being denied any [disability] benefits . . . by reason of not
rebutting, under certain circumstances, a finding that they are fit for duty.” Id. at 664.
The Court of Claims held that

[p]laintiff’s failure to act in response to the Navy’s conditioning further
medical evaluation upon plaintiff’s objections, and assertion that absent an
objection plaintiff would receive no further consideration, amounted to a
waiver by plaintiff. In turn, the waiver of any further action triggered the
running of the limitations period.

Id. Huffaker’s certification thus amounted to a waiver of his rights to a physical
evaluation board and triggered the running of the statute of limitations.

04-5134 11
discharge, triggers the statute of limitations. “However,” we explained, “there are

circumstances under which the service member’s failure to request a hearing board

prior to discharge has been held to have the same effect as a refusal by the service to

provide board review.” 906 F.2d at 1560 (citing Miller v. United States, 361 F.2d 245,

175 Ct. Cl. 871 (1966); Huffaker, 2 Cl. Ct. 662). Specifically, such failure can invoke the

statute of limitations 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 discharge. Id. at 1562. Real thus framed the issue before it as “[w]hether the

veteran’s knowledge of the existence and extent of his condition at the time of his

discharge was sufficient to justify concluding that he waived the right to board review of

the service’s finding of fitness by failing to demand a board prior to his discharge.” Id.

Such knowledge, this court held, must be determined by reference to the statutory

requirements for disability retirement, namely, 10 U.S.C. § 1201. Id. Because the trial

court failed to gauge Real’s knowledge by reference to section 1201, we reversed and

remanded, noting that

[w]hen the state of Real’s knowledge of his condition is measured with
regard to [statutory] requirements, it is highly questionable whether he
should be found to have had either actual or constructive knowledge that
he was entitled to disability benefits. There is no indication in the record
before this court that Real could (let alone should) have known that he
was suffering from a permanently disabling disorder in 1974.

Id. at 1563.

Real thus concerned the service member’s knowledge at the time of discharge,

not, as here, many years after discharge. Real did not fashion a rule, as the

government suggests, that a service member’s claim accrues when he learns of his

disabling condition, whether before or after discharge. Indeed, such a rule would be

04-5134 12
untenable, given that a military board must determine eligibility for disability retirement

before such a claim accrues. There can be no waiver of board review absent an

opportunity for such review, as at discharge. Simply put, after discharge, a veteran has

nothing to waive. The appropriate inquiry under Real, therefore, is whether at the time

of his separation from the Army in 1970, Chambers knew that he was entitled to

disability retirement due to a permanent disability that was not a result of his intentional

misconduct and was service-connected. We hold that the record is bereft of any

evidence that Chambers possessed such knowledge. The medical diagnoses

Chambers received prior to discharge — “transient stress reaction,” “transient

situational stress,” and “mild situational anxiety” — all indicated that his condition was

minor, temporary, and circumstantial. Nothing in the record indicates that Chambers

considered these diagnoses to be erroneous. Chambers also knew that he was

returned to regular duty after his brief hospitalizations. Thus, in 1970, he had no basis

for concluding the Army erred in finding him fit for duty and hence suitable for discharge.

The Real exception does not apply.

We, therefore, follow the general rule in Friedman to hold that Chambers’ cause

of action for disability retirement benefits in the Court of Federal Claims did not accrue

until the ABCMR, the first competent board, finally denied his claim in September 2000.

Because Chambers filed his Tucker Act suit in 2003, within the six-year limitations

period of 28 U.S.C. § 2501, his claim for disability retirement pay was not time barred.

Jurisdiction in the Court of Federal Claims, as well as this court, was thus proper.

04-5134 13
 II.

We review a decision of the Court of Federal Claims granting or denying a

motion for judgment on the administrative record without deference. McHenry v. United

States, 367 F.3d 1370, 1377 (Fed. Cir. 2004). That is, we reapply the statutory review

standards. Accordingly, we will not disturb the decision of the corrections board unless

it is arbitrary, capricious, contrary to law, or unsupported by substantial evidence.

Haselrig v. United States, 333 F.3d 1354, 1355 (Fed. Cir. 2003).

We agree with the Court of Federal Claims that the decision of the Board had

substantial evidentiary support. As an initial matter, we note that the Army regulations

in effect at the time of Chambers’ discharge in 1970, rather than current regulations,

guide our analysis. At the time of discharge, and the pre-discharge medical

examination, Chambers was effectively performing his military duties. As the Board

correctly determined, therefore, under the standards set by the U.S. Army Physical

Disability Agency, Chambers was presumed fit.

Moreover, we cannot say that the physician who examined Chambers prior to his

separation from active duty erred in concluding, based on Chambers’ medical record

and the governing Army regulations, that Chambers suffered no psychological

abnormalities. After all, in 1970, AR40-501 provided that “transient personality

disruptions of a nonpsychotic nature and situational maladjustments due to acute or

special stress do not render an individual unfit.” Chambers’ pre-discharge diagnoses —

“transient stress reaction,” “transient situational distress,” and “mild situational anxiety”

— appear to fall squarely within the boundaries of AR40-501. The Board likewise did

not err in determining that Chambers’ symptoms lacked the criteria for referral to a

04-5134 14
Medical Examination Board set out in AR40-501, i.e., “persistence or recurrence . . .

sufficient to require extended or recurrent hospitalization, necessity for limitations of

duty or duty in protected environment or resulting in interference with effective military

performance.” Each of Chambers’ three medical incidents was of short duration and

had no effect on the scope or performance of his military duties. In sum, under the

standards in existence in 1970, Chambers was fit for duty. This is not to say that, in

retrospect, Chambers’ symptoms appear unrelated to PTSD. Indeed, the VA deemed

Chambers’ PTSD service-connected and, ultimately, awarded him a 100 percent

disability rating. Chambers, however, cannot now complain that the Army failed to

diagnose him in 1970 with a psychological condition unknown until 1980. This fact

alone distinguishes Chambers’ case from Proper v. United States, 154 F. Supp. 317

(Ct. Cl. 1957), which involved multiple sclerosis, a known disease with known

symptoms, which presented itself sufficiently during service member’s active duty to

warrant such a diagnosis at the time of his separation physical.

Chambers’ contention that the ABCMR wrongly relied on an undisclosed “off-the-

record” opinion of a Medical Doctor Advisor has little merit. We note that it is unclear

whether Chambers preserved this argument on appeal by raising it in his

reconsideration papers before the ABCMR or the Court of Federal Claims. In any

event, we see nothing nefarious in the Board’s limited reliance on the opinion of its own

medical advisor, as it is permitted to do under the statute. See 10 U.S.C. § 1555. The

ABCMR, moreover, appears to have relied on this advice only to observe that the doses

of Valium and Librium prescribed to Chambers as a result of his hospitalizations were

“low.” Finally, because we hold that substantial evidence supports the ABCMR’s denial

04-5134 15
of Chambers’ claim, any alleged error in the Board’s reliance on such advice is

harmless.

CONCLUSION

For the foregoing reasons, the decision of the Court of Federal Claims is

AFFIRMED.

04-5134 16
 United States Court of Appeals for the Federal Circuit

04-5134

JAMES S. CHAMBERS,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

DYK, Circuit Judge, dissenting.

In Fisher v. United States, 402 F.3d 1167 (Fed. Cir. 2005), we recently held that

military disability claims are justiciable. The majority now holds that such claims do not

accrue until a correction board has rejected a disability claim (where the service

member acquires knowledge of his disability after discharge). Thus, there is effectively

no statute of limitations with respect to such claims.1 In my view the result reached here

is inconsistent with our en banc decision in Martinez v. United States, 333 F.3d 1295,

1310 (Fed. Cir. 2003) (en banc), where we held that wrongful discharge claims accrue

at the time of the service member’s discharge and not when a correction board rejects

the claim. I respectfully dissent from the majority’s decision that the statute of

limitations has not expired.

In my view, no theory supports the majority’s conclusion.

1
The correction board does have a three-year statute of limitations. 10
U.S.C. § 1552(b) (2000). But that deadline is routinely waived. See Pl. App. at 51.
 First, the majority appears to rely on the fact that the Secretary has provided by

regulation that disability determinations are to be made by a series of medical boards.

Ante at 9. The pertinent provisions of the relevant Army regulation, AR 635-40 Physical

Evaluation for Retention, Retirement, or Separation, require a commander to refer a

solider “unable to perform the duties of his or her office” to the responsible medical

facility, which then refers the soldier to a Medical Evaluation Board, and then to a

Physical Evaluation Board to determine whether the service member should be

discharged for disability. AR 635-40 §§ 4-8, 4-9, 4-10, 4-13 & 4-17(a)(4). The ultimate

decision to discharge the service member is finally carried out by the Personnel

Command for the Secretary of the Army. Id. §§ 4-19(b), 4-22(g)(5) & 4-24. But there is

no provision for convening a Physical Evaluation Board after the discharge of a member

to address disability claims, and the statute itself does not mandate that only these

medical boards make such a determination. See id. § 4-17 (The Physical Evaluation

Board “is not a statutory board. Its findings and recommendations may be revised.”).

Even if review by a Physical Evaluation Board were available after discharge, we have

held that failure to resort to such a Board is a waiver of the right to seek a Board

determination. See Real v. United States, 906 F.2d 1557, 1560 (Fed. Cir. 1990) (citing

Miller v. United States, 361 F.2d 245 (Ct. Cl. 1966)). Thus, where knowledge of the

disability is obtained after discharge, the only administrative route open to the veteran is

to seek relief before a correction board—a mechanism that is equally available in

unlawful discharge and disability retirement cases. The same statute provides for

correction board relief in discharge cases and disability retirement cases. See 10

U.S.C. § 1552 (2000).

04-5134 2
 Second, we held in Martinez that the correction board is permissive only and not

essential to the accrual of the cause of action, stating that “an application to a correction

board is therefore not a mandatory prerequisite to filing a Tucker Act suit challenging

the discharge.” 333 F.3d at 1304. If resort to a correction board is permissive in

discharge cases, it is permissive in disability cases, and cannot toll the limitations

period. Under Martinez correction board exhaustion is not required. “A cause of action

cognizable in a Tucker Act suit accrues as soon as all events have occurred that are

necessary to enable the plaintiff to bring suit.” Id. at 1303.2

Third, the majority (correctly) notes that the 40-year-old decision in Friedman v.

United States, 310 F.2d 381 (Ct. Cl. 1962) held that a “judicial claim for disability

retirement pay does not accrue on release from active duty but rather on final action of

a board competent to pass upon eligibility for disability retirement (or upon refusal of a

request for such a board).” Id. at 395-96. But in my view Friedman is not consistent

with Martinez. It is true that we did not directly overrule Friedman in Martinez, and

indeed cited that case in the majority opinion. Martinez, 333 F.3d at 1304. But the

Martinez opinion cited Friedman for a proposition directly opposite to the majority’s

holding here. Martinez cited Friedman for the proposition that “[t]his court and the Court

of Claims have frequently addressed and rejected the argument that the cause of action

for unlawful discharge does not accrue until the service member seeks relief from a

2
The dissent in Martinez advocated a theory that a second cause of action
accrued under the correction board statute, which the dissent regarded as money
mandating. See id. at 1321 (Plager, J., dissenting). Chambers does not argue here
that a separate cause of action accrued in 2000, when the correction board denied his
claim.

04-5134 3
correction board.” Id. (citing Friedman, 310 F.3d at 396). Under these circumstances

Martinez can hardly be read as endorsing the majority’s view of Friedman.

Fourth, the majority holds that the difference between the result here and the

result in Martinez is justified by the statutory language of 10 U.S.C. § 1201, which

specifies that “[u]pon a determination by the Secretary concerned that [the] member . . .

is unfit to perform the duties of the member’s office . . . because of physical disability . . .

the Secretary may retire the member, with retired pay . . . .” 10 U.S.C. § 1201 (2000).

A secretarial determination is also required in the discharge of service personnel before

the expiration of their enlistment. 10 U.S.C. § 1169 (2000); Harmon v. Brucker, 355

U.S. 579, 582 (1958) (“Congress granted to the Secretary of the Army authority to issue

discharges.”). Thus both in the disability context and in Martinez, there is a challenge to

the Secretary’s determination, and that challenge is a predicate to success on the claim

for compensation. In Martinez, the plaintiff prayed that the Secretary’s determination of

misconduct in an Article 15 proceeding be expunged, that he be restored to active duty

and be retroactively promoted, and that he be awarded back pay as a consequence.

See 333 F.3d at 1300. In the present case, Chambers seeks to have the Secretary’s

determination of honorably discharging him converted to a disability retirement, and that

he be awarded disability retirement benefits as a consequence. The requirement of a

secretarial determination in § 1201 does not provide any basis to distinguish Martinez.

Finally, the majority’s holding today perpetuates a serious anomaly in our

disability retirement jurisprudence. Under Real, if a service member has knowledge of

his disability at the time of discharge and fails to demand a Physical Evaluation Board,

he is deemed to have waived the right to board evaluation and the cause of action

04-5134 4
accrues immediately upon discharge. 906 F.2d at 1562. Under the majority’s holding

today, however, if that same service member acquires knowledge of his disability the

day after discharge, he must resort to a correction board, and the cause of action does

not accrue until after a correction board has ruled.

Of course, it would be unfair to hold that a service member who was unaware of

a disability is nonetheless barred from suit by the passage of six years from the time of

discharge. This problem is solved by the doctrine that “the accrual of a claim against

the United States is suspended, for purposes of 28 U.S.C. § 2501, until the claimant

knew or should have known that the claim existed.” Martinez, 333 F.3d at 1319.

Chambers was diagnosed with Post-Traumatic Stress Disorder in 1987, and applied

(successfully) for veterans benefits. Despite having knowledge of his disability claim,

Chambers did nothing for the next 12 years, and did not file suit in the Court of Federal

Claims until 2003. In these circumstances his claim is barred.

In summary, under the majority’s holding, where the service member acquires

knowledge of disability after discharge, there is effectively no Tucker Act statute of

limitations. The majority’s holding opens the door to stale claims that are decades old.

I respectfully dissent from the majority’s holding as to the statute of limitations.

04-5134 5