Labonte v. United States ( 2024 )

In the United States Court of Federal Claims
No. 18-1784C
Filed: November 4, 2024
NOT FOR PUBLICATION
ROBERT J. LABONTE, JR.,
Plaintiff,
v.
UNITED STATES,
Defendant.
AMENDED MEMORANDUM OPINION AND ORDER
HERTLING, Judge
The plaintiff, Robert J. LaBonte Jr., served in the United States Army (“Army”) from
2002 until his involuntary separation in 2008. His Army service included a deployment in 2003
to Tikrit, Iraq. The plaintiff alleges that he developed post-traumatic stress disorder (“PTSD”)
and a traumatic brain injury (“TBI”) during his deployment. The plaintiff went absent without
leave (“AWOL”) in 2005 to avoid a second deployment to Iraq, causing the Army to court-
martial and discharge him for bad conduct. Due to the plaintiff’s PTSD and TBI, however, the
Army has upgraded the characterization of the plaintiff’s discharge status to general, under
honorable conditions.
The plaintiff sued the defendant, acting through the Army, to alter his service records to
allow him to receive retirement benefits for his disabilities. On the most recent remand, the
Army Board for Correction of Military Records (“ABCMR”) held on September 7, 2023, that the
plaintiff is entitled to disability-retirement benefits with an 80 percent disability rating effective
from March 13, 2008. On August 9, 2024, the plaintiff filed a motion for judgment on the
administrative record challenging the ABCMR’s determination of the effective date of his
disability-retirement benefits. He argues that the effective date of his retirement and benefits
should be June 30, 2004, or in either 2006 or 2007. The defendant opposes the plaintiff’s motion
and has cross-moved for judgment on the administrative record.
The plaintiff has abandoned his claim that his retirement benefits should begin no later
than June 30, 2004. Further, his failure to assert either the 2006 or the 2007 dates before the
ABCMR has resulted in the waiver of his challenge the ABCMR’s decision.
Accordingly, the plaintiff’s motion for judgment on the administrative record is denied.
The defendant’s motion for judgement on the administrative record is granted.
I. FACTUAL BACKGROUND
A. The Plaintiff’s Military Service
The following is an abbreviated version of the factual background. A fuller version of
the facts is provided in LaBonte v. United States, 43 F.4th 1357 (Fed. Cir. 2022) and in the
opinion on remand. LaBonte v. United States, No. 18-1784C, 2023 WL 3197825 (Fed. Cl. May
2, 2023).
The plaintiff enlisted in the U.S. Army in 2002, at the age of 18 years old. (AR 792-93.)
After completing training, he was deployed to Tikrit, Iraq, in 2003. (Id. at 796.) The plaintiff’s
duties included providing convoy security as a gunner, guarding enemy prisoners of war, and
manning guard towers. (AR 797.) The plaintiff asserts that he endured traumatic experiences
while in Iraq. He engaged in several firefights with insurgent groups, and his base was regularly
mortared. The convoy vehicles often ran into improvised explosive devices, which killed some
of the plaintiff’s fellow soldiers.
On one night in February 2004, the plaintiff alleges that he fell from a 30-foot-tall guard
tower. Another soldier found the plaintiff unconscious and lying in a pool of his own blood at
the base of the tower. The plaintiff was taken to a medical-aid station and given stitches and
over-the-counter pain medication but no further medical treatment. The plaintiff returned to
guard-tower duty the following night. (AR 800, 817-818, 2465.) The Army has no record of the
plaintiff’s fall or the medical treatment the plaintiff received that night. The main evidentiary
record consists of the plaintiff’s affidavit, an affidavit of the soldier who found the plaintiff, and
a photograph from the scene.
The plaintiff’s demeanor changed after his fall, and he started to believe that he would
not survive his tour in Iraq. He experienced nightmares, panic attacks, mood swings, paranoia,
and bouts of depression. His communications with family became erratic and infrequent. (AR
801-02.) After returning from his deployment, the plaintiff sought help for his mental-health
problems from his chain of command but was told “to toughen up.” (AR 804.) In June 2004, the
plaintiff sought treatment at the Fort Hood Mental Health Clinic, where he was diagnosed with
an adjustment disorder. The record does not reflect that he received any treatment, and there is
no indication that a psychologist or psychiatrist saw the plaintiff. (See AR 117.)
Shortly after that visit to the mental health clinic, the plaintiff learned that his unit would
redeploy to Iraq. In February 2005, the plaintiff completed a pre-deployment health assessment
and checked boxes describing his health as excellent and indicating that he had not sought
counseling or care for his mental health in the past year. (AR 1424.) The plaintiff subsequently
challenged this latter indication, explaining to the ABCMR that he had told his chain of
command that he was mentally unfit to return to Iraq. (AR 805.) The plaintiff went AWOL
rather than return to Iraq; he was AWOL from November 16, 2005, until June 5, 2006. (AR
1176.)
The plaintiff was court-martialed for desertion. He pleaded guilty and was sentenced to
forfeit $849 per month for four months, to be confined for four months, and to be discharged
2
from the Army with a bad-conduct discharge. (Id.) The plaintiff was confined for 100 days and
discharged from the Army on March 13, 2008. (AR 1597.)
B. Subsequent Medical Diagnoses
In 2012, the plaintiff sought treatment from a private psychologist, Mark Hall, Ph.D. Dr.
Hall diagnosed the plaintiff with PTSD. (AR 810.) Dr. Hall also believed the plaintiff had
“sustained some degree of closed-head injury when he fell from the guard tower, the evidence
being the head wound, the loss of consciousness, amnesia, disorientation at the time, and perhaps
also the ringing of the ears.” (Id.)
In 2014, the plaintiff was evaluated by a psychiatrist, Bandy Lee, M.D. Dr. Lee reported
that after the plaintiff was injured, he experienced “debilitating cluster headaches (a severe form
of migraine) twice weekly and constant tinnitus (ringing in the ears).” (AR 765.) Dr. Lee
diagnosed the plaintiff with Major Depressive Disorder and PTSD, noting that “his actions of
AWOL are entirely consistent with PTSD and to be expected.” (AR 767-68.)
In 2015, the plaintiff was evaluated by a neurologist, Sanjay P. Rathi, M.D. After
evaluating the plaintiff’s symptoms and an MRI of the plaintiff’s brain, Dr. Rathi concluded that
the plaintiff’s “headaches are causally related to the original traumatic brain injury and . . . the
patient suffered with what today would be defined as concussive head injury with attendant
sequelae consistent with ‘post concussive’ changes in behavior and personality, further
complicating his development of depression, anxiety, insomnia, and also potentially contributing
to the cognitive and behavioral difficulties that he has had.” (AR 187.)
C. Application to Correct Military Records
In 2014, the plaintiff applied to the Army Discharge Review Board to upgrade his
discharge status to general, under honorable conditions. During the Army’s review of the
plaintiff’s discharge status, the plaintiff’s medical history was evaluated by an Army psychiatrist,
Cynthia M. Shappell, M.D. (AR 116-18.) Dr. Shappell noted that the plaintiff’s military records
were “void of documentation of PTSD symptoms,” but that the plaintiff had been diagnosed with
an adjustment disorder by an Army behavioral-health specialist in June 2004. (AR 117.) Dr.
Shappell noted that “based on the symptoms documented in [the June 2004 intake form], it is
clear that the applicant was suffering from a diagnosis more severe than [a]djustment [d]isorder,
most likely PTSD.” (Id.) Dr. Shappell recommended that the plaintiff be referred to the Army’s
disability evaluation system (“DES”) for processing for a possible medical retirement. (Id.)
The Discharge Review Board voted to grant the plaintiff clemency by upgrading his
characterization of service to general, under honorable conditions. (AR 641.) The Discharge
Review Board noted that there was “clear evidence of PTSD.” (AR 647.)
The plaintiff also applied for benefits from the Department of Veterans Affairs (“VA”).
A VA psychologist, Brian Crandall, Ph.D, found that the plaintiff “was experiencing PTSD,
3
Depression, Anxiety, and mTBI symptoms post his deployment from Iraq in 2004.”1 (AR 1957.)
Dr. Crandall noted that the plaintiff “continues to severely struggle with his symptoms as evident
by mood variability, poor sleep and appetite, low motivation and energy, poor concentration and
focus, and frequent headaches, ringing in his ears, and periodic vomiting.” (Id.) Dr. Crandall
further noted that those “symptoms inter[fere]d with his sleep, appetite, concentration, focus,
energy, and ability to perform his duties.” (Id.) The VA currently rates the plaintiff’s PTSD as
70-percent disabling and the plaintiff’s headaches as 50-percent disabling; the plaintiff is
therefore rated as 100-percent disabled. (AR 123.)
Upon review of the Army Discharge Review Board’s findings, Deputy Assistant
Secretary of the Army Francine C. Blackmon directed the plaintiff’s case to the Office of the
Surgeon General “to determine if [the plaintiff] should have been retired or discharged by reason
of physical disability through the Integrated Disability Evaluation System (IDES).”2 (AR 11.)
Before forwarding the plaintiff’s case to the Office of the Surgeon General, an Army
Physical Evaluation Board Liaison Officer (“PEBLO”) submitted the plaintiff’s case directly to a
Medical Evaluation Board (“MEB”), which is the first processing step in the Disability
Evaluation System (“DES”). (AR 1771-72.) The MEB drafted a Narrative Summary
(“NARSUM”) indicating that the plaintiff had PTSD, Generalized Anxiety Disorder, Major
Depressive Disorder (which was recurrent and moderate), and TBI (with residuals of migraine
headache and cognitive impairment). (AR 1777.) Each of these conditions independently
caused the plaintiff to fail to meet retention standards. (AR 1778-82.)
Following the MEB’s determination, reflected in the NARSUM, the PEBLO forwarded
the plaintiff’s case to a senior MEB official, Eric Doane, D.O., for approval. Dr. Doane refused
to approve the MEB’s determination. (AR 1793.) Dr. Doane noted that the “Army Board of
Military Records was sent to your IDES to determine whether PDES WAS WARRENTED [sic]
at the time of separation. Clearly it was NOT warranted.” (Id. (capitalization in original).) Dr.
Doane prepared a response to the ABCMR recommending that the ABCMR determine that the
plaintiff was not entitled to disability processing at the time of separation. (AR 77-79.) Dr.
Doane explained that the plaintiff’s medical records reflected that the plaintiff had been in good
health at the time he separated.
1
The term “mTBI” likely stands for “mild Traumatic Brain Injury.” See C. Lefevre-Dognin
et al., Definition and epidemiology of mild traumatic brain injury, PubMed (May 6, 2020),
https://pubmed.ncbi.nlm.nih.gov/32387427/ (last visited Apr. 27, 2023).
2
The plaintiff has explained that IDES exists for servicemembers who are currently
separating, but that the plaintiff is entitled to processing under the Legacy Disability Evaluation
System (“LDES”). (ECF 104 at 6-7.)
4
Following its receipt of Dr. Doan’s opinion, the Army Review Boards Agency sent the
plaintiff a letter explaining that the plaintiff was not entitled to disability processing at the time
of separation from active duty. (AR 73.)
II. PROCEDURAL HISTORY
The plaintiff filed suit on November 20, 2018, seeking back pay, retirement pay, and
disability benefits and allowances. (ECF 1.) The defendant moved to dismiss and moved for
judgment on the administrative record. (ECF 24.) On June 21, 2019, the case was transferred to
the undersigned. (ECF 30.) The plaintiff filed a cross-motion for judgment on the
administrative record and responded to the defendant’s motion. (ECF 52.)
After oral argument on the motions, all claims except the one for medical retirement were
dismissed for lack of subject-matter jurisdiction under RCFC 12(b)(1) due to the plaintiff’s
conviction by court martial. On the claim that the plaintiff should have been considered for
medical retirement it was determined that “the ABCMR [had] relied on a medical opinion that
failed to consider medical evidence as required by 10 U.S.C. § 1552(h)(2)(B).” (ECF 57.)
Accordingly, the ABCMR’s “decision to reject the plaintiff’s claim for medical retirement [was]
contrary to law.” (Id.) The case was remanded to the ABCMR with instructions to “obtain a
further medical opinion that considers the medical evidence as required by law and thereafter
resolve the plaintiff’s claim.” (Id.)
The ABCMR completed the remand in 2020. The ABCMR determined that the plaintiff
“has not demonstrated by a preponderance of evidence an error or injustice warranting the
requested relief, specifically, that the record be corrected to reflect a disability retirement with a
disability rating of at least 80 percent.” (AR 2408.) The ABCMR noted that the plaintiff had
been diagnosed with PTSD and TBI related to his service but found that the plaintiff was not
eligible for disability processing because of his bad-conduct discharge.
The ABCMR considered the NARSUM and believed that it was “based on the state of
[the plaintiff’s] disabilities in 2018 and not prior to service separation in 2008.” (AR 2409.) The
ABCMR acknowledged “the diagnosed PTSD and TBI that existed prior to service separation”
but believed “a preponderance of the evidence reflected that the applicant met medical retention
standards prior to service separation and referral into DES or disability separation/retirement was
not warranted.” (Id.) The ABCMR noted that it had to give the plaintiff’s arguments “liberal
consideration and clemency,” but reasoned that the PTSD and TBI should be used only as
evidence of mitigation of the characterization of the plaintiff’s service and were not related to
disability benefits. (AR 2409.) The plaintiff’s application was denied. (AR 2410.)
When the case was returned to the court, the parties filed a second round of cross-motions
for judgment on the administrative record. The defendant also moved to dismiss the plaintiff’s
claim for lack of jurisdiction under RCFC 12(b)(1) and for failure to state a claim pursuant to
RCFC 12(b)(6). The Court held that subject-matter jurisdiction over the plaintiff’s claim existed.
LaBonte v. United States, 150 Fed. Cl. 552, 557-59 (2020). Additionally, Army Regulation 635-
40 did not preclude the plaintiff from disability-retirement processing. Id. at 560-61. Under
5
10 U.S.C. § 1552(f), however, the ABCMR lacked statutory authority to change the reason of the
plaintiff’s separation. Id. at 561-64. The plaintiff’s claim was thus dismissed.
The plaintiff appealed, and the Federal Circuit reversed the dismissal. The Federal
Circuit held that § 1552(f) does not prohibit the correction of the plaintiff’s records if he is
entitled to disability retirement benefits for PTSD and TBI. LaBonte v. United States, 43 F.4th
1357, 1374 (Fed. Cir. 2022).
The case was remanded, and the parties filed a third round of cross-motions for judgment
on the administrative record. The plaintiff moved for judgment on the administrative record.
(ECF 100.) The plaintiff requested that the ABCMR’s decision be overturned, and that he be
awarded medical retirement by the court from March 13, 2008. The defendant cross-moved for
judgment on the administrative record. (ECF 103.) Oral argument was held on May 2, 2023,
and that same day, the case was remanded to the ABCMR with the instructions that the plaintiff
be referred for DES processing. LaBonte, 2023 WL 3197825, at *12. The ABCMR was
instructed to give the plaintiff’s claim liberal consideration regarding his diagnosis of PTSD and
TBI. Moreover, the ABCMR was ordered to determine “whether the plaintiff is entitled to
disability-retirement benefits under 10 U.S.C. § 1201, Army Regulation 635-40, Army
Regulation 40-501, and any other applicable laws.” (Id.)
After the second remand order, on July 6, 2023, ABCMR received a new medical
advisory opinion from the ARBA medical advisors. (AR 2527.) On July 10, 2023, a copy of the
ARBA medical advisory opinion was provided to the plaintiff and for comment. (AR 2536.)
The plaintiff responded on July 28, 2023, to provide an independent medical examination and a
VA rating decision. (AR 2536.) On August 17, 2023, a copy of the ARBA medical advisory
opinion addendum was provided to the ABCMR. (AR 2542.) The plaintiff was also provided
with the addendum. The plaintiff responded, providing further additional documentation. (Id.)
On September 7, 2023, the ABCMR issued its decision granting the plaintiff’s request for
medical retirement. (AR 2487.) The ABCMR found that at the time of the plaintiff’s separation
in March 2008, he was suffering from PTSD, major depressive disorder (“MDD”), and
generalized anxiety disorder (“GAD”). (Id.) The ABCMR concluded “that, had [Mr. LaBonte]
been separated for disability in 2008, he would have been assigned an 80% rating and eventually
placed on the permanent disability retired list.” (AR 2546.) The ABCMR therefore granted
retirement with an 80% disability rating effective March 13, 2008, the date of discharge. (AR
2547.)
On August 9, 2024, the plaintiff filed a motion for judgement on the administrative
record arguing that ABCMR acted arbitrarily and capriciously by failing to award him backpay
and retirement benefits from an earlier effective date than March 13, 2008. (ECF 126.) On the
same day, the defendant filed a renewed motion for judgment on the administrative record.
(ECF 127). The parties’ filed their responses and replies on September 20, 2024, and their
replies on October 10, 2024. (ECF 131; ECF 132; ECF 136; ECF 137.) A hearing on the
motions was held on October 30, 2024.
6
III. JURISDICTION
Subject-matter jurisdiction over the plaintiff’s claim exists. LaBonte, 150 Fed. Cl. at 559.
That holding was not disturbed on appeal. LaBonte, 43 F.4th at 1363.
IV. STANDARD OF REVIEW
The parties have cross-moved for judgment on the administrative record under RCFC
52.1. In consideration of such motions, the court’s review is limited to the administrative record,
and the court makes findings of fact as if it were conducting a trial on a paper record. See Young
v. United States, 497 F. App’x 53, 58-59 (Fed. Cir. 2012) (per curiam), cert. denied, 569 U.S.
964 (2013). A party must meet its burden of proof based solely on the evidence in the
administrative record. Bannum, Inc. v. United States, 404 F.3d 1346, 1355 (Fed. Cir. 2005).
In reviewing decisions of military corrections boards, the courts apply the standard of the
Administrative Procedure Act (“APA”). Under this standard, the court must uphold a decision of
a military corrections board unless it is “‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” Sharpe v. United States, 935 F.3d 1352, 1358 (Fed. Cir.
2019) (quoting 5 U.S.C. § 706(2)(A)). A court’s scope of review of a correction board’s
decision is narrowly confined to “‘whether the agency examined the relevant data and articulated
a satisfactory explanation for its decision, including a rational connection between the facts
found and the choice made.”” Sharpe, 935 F.3d at 1358 (quoting Dep’t of Com. v. New York,
139 S. Ct. 2551, 2569 (2019)) (cleaned up). A court cannot substitute its judgment for that of the
agency but can determine whether the agency decision was “‘within the bounds of reasoned
decisionmaking.’” Sharpe, 935 F.3d at 1358 (quoting Dep’t of Com., 139 S. Ct. at 2569).
The failure by a claimant to assert a claim “in either [an] initial or reconsideration
petition before [a corrections b]oard” risks waiving the ability to challenge the corrections
board’s decision in court. Metz v. United States, 466 F.3d 991, 999 (Fed. Cir. 2006); see
Murakami v. United States, 398 F.3d 1342, 1354 (Fed. Cir. 2005) (affirming determination that a
plaintiff who fails to raise an argument before a military corrections board is precluded from
raising that issue for the first time before the Court of Federal Claims).
A plaintiff also must raise before a corrections board “the claim itself, not merely have
pointed to facts that, in his view and in hindsight, support it.” Martinez v. United States,
914 F.2d 1486, 1489 (1990). Moreover, “[s]imple fairness to those who are engaged in the tasks
of administration, and to litigants, requires as a general rule that courts should not topple over
administrative decisions unless the administrative body not only has erred but has erred against
objection made at the time appropriate under its practice.” United States v. L.A. Tucker Truck
Lines, Inc., 344 U.S. 33, 37 (1952); see also Frecht v. United States, 25 Cl. Ct. 121, 131 n.7
(1992) (“Failure to timely raise objections and issues to a board of inquiry constitutes a waiver of
that right in subsequent litigation.”).
7
V. DISCUSSION
The plaintiff’s current motion for judgment on the administrative record challenges only
whether ABCMR erred by setting March 13, 2008, as the effective date for the plaintiff’s
retroactive medical retirement. The plaintiff argues that the ABCMR’s decision is arbitrary and
capricious because it failed to afford liberal consideration to the plaintiff’s arguments and did not
consider: (1) “that Mr. LaBonte was unfit for duty long before his official separation date”; (2)
that the Army failed to refer the plaintiff for “an MEB as required by its own regulations” during
his service; and (3) that between March 7, 2007 and March 13, 2008, the plaintiff was in unpaid
military service while on terminal leave. (ECF 126 at 12.) The plaintiff argues, for the first
time, that he is entitled to backpay and benefits retroactive from either June 5, 2006, or in the
alternative, March 7, 2007.3 (Id. at 4.)
The first date, June 5, 2006, is the date the plaintiff returned to Ft. Hood after going
AWOL. The plaintiff claims that upon his return to Ft. Hood, the Army had a duty to reassess
his fitness for duty and refer him for DES processing. (ECF 126 at 12.) The plaintiff cites the
Army Regulation 635-40, requiring that “soldiers who fail to meet medical retention standards . .
. be referred for an MEB to determine their ability to continue service. (ECF 126 at 15.) The
plaintiff argues that the 2018 NARSUM provides evidence that the plaintiff would have failed
the Army’s retention standards “well before March 2008” and, as a result, he is entitled to
backpay and retirement benefits from June 5, 2006. (ECF 126 at 14). The plaintiff argues that
the ABCMR’s failure to consider this evidence resulted in a decision that is arbitrary and
capricious.
In the alternative, the plaintiff argues that the ABCMR should have granted retirement as
of the beginning of his excess leave on March 7, 2007. At this point, the plaintiff claims, he had
fulfilled his court-martial sentence and had been placed on excess leave. He argues that between
March 7, 2007, and March 13, 2008, he was “on active duty but not receiving any
compensation.” (ECF 126 at 16.) As a result, for more than a year he was deprived of wages,
retirement benefits, and healthcare to which he was otherwise entitled. He claims that the
ABCMR has a responsibility to correct this year-long administrative delay that deprived him of
retirement benefits and cause a significant financial hardship at a time when it was evident the
plaintiff was unfit for continued military service. (ECF 126 at 17.)
A party that fails to pursue a claim or argument cannot later raise a claim based on that
abandoned claim or argument. This waiver can occur when a plaintiff “asserts a claim in its
complaint but then fails to pursue it in a dispositive motion.” Chromalloy San Diego Corp. v.
3
The plaintiff did note in passing in a status report (ECF 120 at 1) that he had “determined that
the effective date of his disability rating should be nearly four years earlier,” but he did not mention
specifically either the 2006 or the 2007 date and never requested consideration by motion before
either the administrative or judicial tribunal of either of these dates as the effective date of his
medical retirement. That passing reference in a status report is insufficient to preserve the
argument.
8
United States, 145 Fed. Cl. 708, 740 (2019); see also Ulman v. United States, 214 Ct. Cl. 308,
314 (1977) (claim raised in a complaint but not in a motion for summary judgment was waived).
Parties likewise may not raise an issue or argument not previously raised to an
administrative agency and then presented in court on a claim of error by the agency. See Lewis v
United States, 476 F. App’x 240, 244 (Fed. Cir. 2012) (“claims not presented [to a correction board]
are waived and that issue cannot be raised for the first time before the Claims Court”); Gant v. United
States, 417 F.3d 1328, 1332 (Fed. Cir. 2005) (“Arguments not made in the . . . tribunal whose order
is under review are normally considered waived.”); Guardado v. United States, No. 22-33C, 2023
WL 5426590, at *3 n.7 (Fed. Cl. Aug. 23, 2023) (“The plaintiff never raised any claim to the
ABCMR that he was due promotion to E-3, and he has not pursued it in his motion for judgment on
the administrative record. That claim is therefore waived.”); see also Conn. Steel Corp. v. United
States, 462 F. Supp. 2d 1322, 1323 (Ct. Int’l Trade 2006) (“Where a plaintiff made the strategic
decision in the administrative proceeding, for whatever reason, not to raise the issue, it is
estopped from changing that strategy later.”); Calabrian Corp. v. U.S. Int'l Trade Comm'n,
794 F. Supp. 377, 383 (Ct. Int’l Trade 1992) (a party may not reverse the position it took before
an agency and raise contrary arguments on appeal); Mason v. Shinseki, 25 Vet. App. 83, 95
(2011) (“the Court will not invent an argument for a represented party who had ample
opportunity and resources to make that same argument, but, for whatever reason—be it strategy,
oversight, or something in between—did not do so”).
The parties do not dispute that the plaintiff abandoned the relief sought in his complaint
for retroactive medical retirement effective from June 30, 2004.4 When the plaintiff renewed his
motion for judgment on the administrative record following remand from the Federal Circuit, he
specifically sought relief from March 13, 2008, the date of his discharge. The ABCMR decision
was vacated, and the plaintiff’s claim was remanded so that the ABCMR could reconsider that
claim presented by the plaintiff in court. The plaintiff now proposes, however, one of two
different possible dates, “a retirement date of June 5, 2006, when [the plaintiff] voluntarily
returned to Fort Hood, or, at the latest, of March 7, 2007, when he completed his court-martial
sentence.” (ECF 131 at 17.)
Throughout the prior proceedings before the ABCMR and in court, the plaintiff
consistently presented one of two dates from which the medical retirement he was seeking would
become effective: either June 30, 2004, the date requested in his complaint, or March 13, 2008,
the date he himself proposed in his motion for judgment on the administrative record. Prior to
the ABCMR granting the plaintiff the full relief he had theretofore been seeking, the plaintiff had
4
In his initial ABCMR application, the plaintiff requested an effective date of June 30, 2004.
He alleged that “[a]t the latest, his retroactive medical retirement should take effect as of 30 June
2004, the date he sought help at the Fort Hood Mental Health Clinic.” (AR 31.) The plaintiff
supported his claim by pointing out that by that date “his PTSD, TBI, and headaches,
[i]ndividually and in combination, had made him unfit to perform the duties required of him.”
He concluded that he was “entitled to back retirement pay from 30 June 2004 through 20
November 2012.” (Id.)
9
never proposed or argued for any other effective date. Throughout the course of the remand that
resulted in his obtaining relief, following his request in court for medical retirement effective
March 13, 2008, when the ABCMR was considering that date, the plaintiff never objected to that
date and never proffered any other effective date. By forgoing the opportunity to present any
date, the plaintiff has waived his chance to make the argument now. Metz, 466 F.3d at 999 (a
failure to assert a claim “in either [an] initial or reconsideration petition before [a military
corrections b]oard” risks waiver of a party’s ability to challenge the correction board’s decision).
The record is devoid of any indication that the plaintiff requested the ABCMR apply
either the 2006 or 2007 date as the correct effective date for his medical retirement. In the
extensive briefing in this case spanning more than a decade, the plaintiff only mentions the June
5, 2006, once in his initial application as the date when he returned to Fort Hood after being
AWOL for five months. (AR 675.) The plaintiff neither discussed nor argued to the ABCMR
that this date was the date on which his medical retirement should become effective. As for the
date of March 7, 2007, the only time this date appears in the administrative record is to document
that date as when the plaintiff was placed on his terminal, excess leave. (AR 328; AR 2388)
Instead of presenting these alternatives dates to the ABCMR for its reasoned
consideration, the plaintiff obtained the relief he sought from the ABCMR and, only thereafter,
claimed in the present motion for judgment on the administrative record that either of his
alternatives dates was the appropriate date rather than the March 13, 2008, date. He argues
further than the ABCMR had an independent responsibility to search the record, without being
prompted by the plaintiff, to apply an appropriate date that the record would support. Under the
Federal Circuit’s relevant precedents of Metz, 466 F.3d at 999, Murakami, 398 F.3d at 1354, and
Martinez, 914 F.2d at 1489, the plaintiff may not proceed in this manner.
The reason is obvious. The court sits to review a decision of a corrections board. The
scope of a court’s review is narrow, and the decision of a corrections board will be upheld unless
it is arbitrary and capricious. How can a decision be arbitrary and capricious if a corrections
board was not given an opportunity to consider and determine an argument subsequently
presented to a court. Such an approach would set courts up as super-corrections boards, roving
without limit to impose their own view of what law and justice require. Courts are especially ill-
suited to that role, especially where the military departments are concerned. Dodson v. United
States, 988 F.2d 1199, 1204 (Fed.Cir.1993) (“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.”); Knightly v. United States, 227 Ct. Cl. 767, 769
(1981) (“It is not the business of the court to run the Army.”) (citing Orloff v. Willoughby,
345 U.S. 83 (1953)).
In his 2023 motion for judgment on the administrative record the plaintiff repeatedly
argued that he “failed to meet retention standards at the time of his separation.” (Emphasis
added.) (ECF 100 at 28.) His briefs presented no date other than his 2008 date of separation
from the Army as the effective date of his medical retirement. He even acknowledged in a status
report that the ABCMR’s determination, with an effective date of March 13, 2008, “grants [him]
the full relief that he sought.” (ECF 114 at 1.) The plaintiff only alluded to other potential dates
10
by noting in his reply brief that he “did not meet retention standards prior to separation.” (ECF
108 at 16.) These statements are insufficient to preserve a claim for a date other than 2008.
The plaintiff also never objected to the ARBA medical advisory opinion or the
ABCMR’s determinations despite having ample opportunities to do so. The plaintiff’s failure to
object further supports a finding of waiver. See Frecht, 25 Cl. Ct. at 131 n.7.
Specifically, the plaintiff’s decision not to object to the medical advisory opinion would
make it unfair for the court to override the administrative decision without providing the
administrative body an opportunity to consider and adjudicate in the first instance the plaintiff’s
argument. L.A. Tucker Truck Lines, Inc., 344 U.S. at 37.
The plaintiff had ample opportunity to object to the 2008 effective date. A new medical
advisory opinion was obtained from the ARBA on July 6, 2023. (AR 2527.) On July 10, 2023, a
copy of that advisory opinion was provided to the plaintiff with an opportunity to comment. (AR
2536.) The ARBA medical advisory opinion, while not concluding that the plaintiff should
receive medical retirement as of 2008, made clear that its consideration was regarding the 2008
date of discharge. The advisory opinion noted that “[h]ad the applicant been discharged due to
physical disability in 2008 rather than administratively discharged, he would have been placed
on TDRL (Temporary Disability Retirement List) per 38 CFR Part 4, section 4.129 Mental
disorders due to traumatic stress.” (AR 2648.)
The plaintiff responded on July 28, 2023, providing an independent medical examination
and a VA rating decision. (AR 2536.) The plaintiff’s response noted that he only “disagree[d] in
one respect: the [Advisory Opinion] failed to properly evaluate the evidence of TBI.” (AR 2536-
37.) The plaintiff made no mention of the advisory opinion’s consideration of the 2008 date and
did not challenge the ARBA’s consideration of the plaintiff’s date of discharge as the
presumptive effective date.
The plaintiff had another opportunity to object upon receiving an updated ARBA
addendum, which addressed the plaintiff’s response to the initial advisory opinion. (AR 2542.)
On August 25, 2023, the plaintiff once again responded, providing still further documentation for
the ARBA’s consideration. (Id.) As before, the plaintiff did not raise any issue regarding the
dates for the evaluation of the plaintiff’s medical disability.
Only after the ABCMR determined the plaintiff was entitled to the full relief he had been
seeking did the plaintiff decide that the March 2008, date should be extended back to some
earlier date.
The plaintiff abandoned the initial proposed effective date of June 30, 2004. The plaintiff
has also waived the 2006 and 2007 effective dates by failing to present either date to the
ABCMR and by failing to object to the use of the 2008 date by the ARBA in its medical
advisory opinion. The plaintiff will not be allowed to abandon one argument, waive another, and
then challenge the ABCMR’s decision to grant him the relief that by he had previously been
requesting, including specifically to this Court.
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The plaintiff claims that the ABCMR’s decision is arbitrary, capricious, and not
supported by substantial evidence because the ABCMR failed to consider the evidence that the
plaintiff should have been medically retired prior to his separation date. Because the plaintiff did
not present the issue of alternative effective dates to the ABCMR, he may not raise it now.
Davis v. Dep’t of Agric., No. 2024-1086, 2024 WL 4503669 at *2 (Fed. Cir. Oct. 16, 2024)
(argument not raised before an administrative agency is not preserved for review under the
arbitrary and capricious standard).
In any event, the ABCMR’s decision on its face is reasonable, granting the plaintiff the
relief he had requested. Upon remand, the plaintiff was able to supplement the record twice to
include additional documentation. The plaintiff’s additional evidence was considered by the
ARBA medical advisors, which addressed the plaintiff’s additional information in an addendum
to their earlier medical advisory opinion. (AR 2542.) The plaintiff’s disability status on the date
of his separation from the Army was specifically considered during this process, and the plaintiff
raised no objection. (AR 2648.) That effective date was then considered by the ABCMR (AR
2535) and incorporated into its conclusions. (AR 2546.) That conclusion reflected precisely
what the plaintiff had requested. No other possible effective date was considered because the
plaintiff proposed no other date. With the record devoid of any evidence supporting another date
on which the plaintiff’s medical retirement because the plaintiff never supplied such evidence,
the decision of the ABCMR is reasonable and not arbitrary and capricious.
The plaintiff may disagree with the ABCMR’s conclusions, but disagreement is not
enough to allow a court to substitute its judgment for that of the agency under the applicable
APA standard of review. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co.,
463 U.S. 29, 43 (1983).
VI. CONCLUSION
The plaintiff’s abandonment of his argument that his medical retirement should begin no
later than June 30, 2004, and his failure to assert either of his proposed alternative dates of 2006
or 2007 result in the waiver of any challenge to the ABCMR’s determination awarding the
plaintiff relief as of March 13, 2008.
The plaintiff’s motion for judgment on the administrative record (ECF 126) is DENIED.
The defendant’s motion for judgment on the administrative record (ECF 127) is GRANTED.
By November 13, 2024, the parties shall jointly propose the text of the final judgement to be
entered granting the plaintiff relief in accordance with the ABCMR’s decision.
It is so ORDERED.
s/ Richard A. Hertling
Richard A. Hertling
Judge
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