Hoffman v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JON T. HOFFMAN,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5106
______________________
Appeal from the United States Court of Federal
Claims in No. 11-CV-0904, Judge Nancy B. Firestone.
______________________
Decided: March 31, 2014
______________________
JON T. HOFFMAN, of Springfield, Virginia, pro se.
MICHELLE R. MILBERG, Trial Attorney, Commercial
Litigation Branch, Civil Division, United State Depart-
ment of Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief were STUART F. DELERY,
Assistant Attorney General, BRYANT G. SNEE, Acting
Director, and FRANKLIN E. WHITE, JR., Assistant Director.
______________________
Before MOORE, REYNA, and WALLACH, Circuit Judges.
2 HOFFMAN v. US
PER CURIAM.
In this military pay case, U.S. Marine Corps Col. Jon
T. Hoffman claims that he is entitled to a disability re-
tirement under 10 U.S.C. § 1201 (2006 & Supp. II 2008)
for a disease that he alleges was incurred in-service. The
Navy processed Col. Hoffman through its disability eval-
uation system. On April 8, 2008, Col. Hoffman was
denied a disability retirement by a Formal Physical
Evaluation Board (“PEB”). The Formal PEB determined
that although Col. Hoffman suffers from amyloidosis, his
illness was in remission and he was otherwise “Fit” for
service. Col. Hoffman appealed the ruling to the Board of
Corrections for Naval Records (“BCNR”). The BCNR
affirmed the PEB’s “Fit” determination. He subsequently
filed a military pay complaint at the United States Court
of Federal Claims seeking retroactive disability retire-
ment pay. On cross-motions for judgment on the adminis-
trative record, the Court of Federal Claims held in favor
of the government. This court affirms.
BACKGROUND
Col. Hoffman began his career with the Marine Corps
in 1976 as an infantry officer. He remained on active
duty until 1992, and later in his active service, Col. Hoff-
man served as a Field Historian within the Marine Corps
History Division. During his time in the reserves after
1992, Col. Hoffman was periodically placed on active duty,
and on September 30, 2008, he was transferred to the
retired reserves list. Col. Hoffman was credited with
more than twenty-eight years of service, seventeen of
which were on active duty.
Col. Hoffman’s diagnosis with amyloidosis that he al-
leges was incurred during active duty underlies his claim
for disability retirement. Amyloidosis
is a rare disease striking 2500–4000 patients an-
nually in the continental United States. It is a
HOFFMAN v. US 3
deposition disease caused by the production of ab-
normal light chains by clonal plasma cells in the
bone marrow. . . . [T]he accumulation of amyloid
deposits in the heart, kidneys, liver, GI tract and
autonomic nervous system leads to progressive
disability, organ failure, and early death.
J.A. 80. The record reflects that Col. Hoffman may have
had symptoms related to amyloidosis beginning in 1999,
and in December 2005, doctors performed a heart biopsy
and concluded that he was suffering from amyloidosis.
Soon after his diagnosis, he reported his condition to
the Navy on December 29, 2005. Over the next month, a
cardiologist and a hematologist at Bethesda Naval Hospi-
tal examined Col. Hoffman. On March 6, 2006, Col.
Hoffman’s command unit prepared a non-medical assess-
ment indicating, inter alia, “that he was not worldwide
deployable and did not have good potential for continued
military service” due to his disease. Hoffman v. United
States, 108 Fed. Cl. 106, 112 (2012).
Col. Hoffman’s case was referred to the Navy’s Chief
of Bureau of Medicine and Surgery (“CHBUMED”) on
March 27, 2006. On June 7, 2006, CHBUMED deter-
mined that Col. Hoffman was “not physically qualified”
for retention in the reserves due to his amyloidosis—a
decision that was subsequently endorsed by the Marine
Corps Mobilization Command on November 15, 2006. A
“not physically qualified” determination indicates that a
reservist is unable to continue service due to non-duty
related disease or injury which precludes the service
member from performing his or her duties. U.S. Dep’t of
Navy, Sec’y of the Navy Instr. (“SECNAVINST”) 1850.4E
¶ 2055 (April 30, 2002).
Upon receipt of the November 15, 2006 decision, Col.
Hoffman requested that Marine Corps Mobilization
Command grant him a notice of eligibility (“NOE”) and
find that he had incurred his illness in the line of duty.
4 HOFFMAN v. US
An NOE is of significance in this context because a reserv-
ist without an NOE is not normally eligible to receive
disability retirement, see id. 1850.4E ¶ 3408, whereas a
reservist with an NOE and found to be “Unfit” will be
eligible for disability benefits, see id.1850.4E ¶ 3201(b)(2).
An NOE is issued if it is determined that the injury or
disease was incurred or aggravated in the line of duty. Id.
1770.3D ¶ 6(k). A reservist who has received an NOE will
be processed into the DES differently from one who does
not have an NOE. See id. 1850.4E ¶ 3201(b)(2); ¶ 2055.
A reservist without an NOE, like Col. Hoffman, may
still obtain disability benefits, if upon referral to the PEB,
the PEB finds that the reservist is “Unfit” and further
finds that the disabling condition was incurred “[w]hile . .
. the member was ordered to active duty and serve[d] a
period of active duty greater than 30 days; and . . .
[his/her] medical records contain documentation as to the
nature of the member’s conditions including the approxi-
mate date of its incurrence [or] aggravation.” Id. 1850.4E
¶ 3201(b)(3); ¶ 2055. The PEB is permitted to make a
“Fit” or “Unfit” determination if it determines that the
condition was incurred or aggravated during a period of
active duty (duty related impairment). Id. If the PEB
cannot determine that the member’s condition was in-
curred or aggravated during active duty pursuant to ¶
3201(b)(3), the PEB will not make “Fit” or “Unfit” finding,
but rather, the PEB will make a “physically qualified” or
“not physically qualified” determination for active duty or
retention, id., and disability benefits will not be awarded.
If a “not physically qualified” for retention determination
is made, the service member will be discharged from
service.
Accordingly, on December 18, 2006, the Marine Corps
Mobilization Command rejected Col. Hoffman’s request
for an NOE, and instructed that he had the option to
appeal the CHBUMED finding that he was “not physical-
ly qualified” to the PEB. He did so and on April 4, 2007,
HOFFMAN v. US 5
an Informal PEB convened to consider Col. Hoffman’s
case.
On April 18, 2007, Col. Hoffman was notified that he
had been found “Unfit,” with a recommended disposition
that he was “not physically qualified to continue reserve
status.” J.A. 335. The Informal PEB further found that
the disability was “not a proximate result of performing
military duty,” id., and that the disability may be perma-
nent. Col. Hoffman sought reconsideration which the
Informal PEB denied.
Col. Hoffman requested that his case be heard by a
Formal PEB. “A Formal PEB hearing provides an oppor-
tunity for the member to present additional material to
support his or her case. Once a hearing has convened,
any preliminary findings of the Informal PEB are null
and void and are of no precedential value to the Formal
PEB or the member.” SECNAVINST 1850.4E ¶ 4301(c).
On July 12, 2007, a Formal PEB determined that Col.
Hoffman should undergo additional medical evaluation.
As a result, Col. Hoffman was examined by an orthopedist
on July 30, 2007, a cardiologist on August 9, 2007 (where
he received an echocardiogram), and he underwent a
treadmill stress test on September 10, 2007. Col. Hoff-
man also testified before the Formal PEB on February 14,
2008, and on April 8, 2008, the Formal PEB issued its
final decision, finding that Col. Hoffman was “Fit” to
continue naval service.
On April 25, 2008, Col. Hoffman filed a petition for re-
lief from the Formal PEB determination with the Navy
Council of Review Boards (“NCRB”). He alleged that he
was not “Fit” for service and that he was entitled to
disability retirement benefits. On May 30, 2008, the
NCRB denied the petition. In denying the petition for
relief the NCRB explained that the medical evidence
established Col. Hoffman would be able to continue to
engage in a level of activity consistent with the duties of
6 HOFFMAN v. US
his pay grade. The NCRB noted although Col. Hoffman
“may not be world-wide deployable, able to complete the
[Physical Fitness Test], or perform certain tasks . . . the
evidence strongly indicates that [he] can continue to
perform duties similar to those [he had] done in the past,
which are appropriate for [his] pay grade.” J.A. 304. By
letter dated September 16, 2008, the Marine Corps,
conducting a Mobilization Potential Screening Board,
placed Col. Hoffman on the list for retired reservists
awaiting pay at age sixty.
On July 7, 2009, Col. Hoffman sought review from the
Board of Corrections for Naval Records (“BCNR”) request-
ing relief from the Formal PEB decision and that the
BCNR correct his record reflecting that he is “unfit for
duty” and to place him on permanent disability. J.A. 153.
On December 21, 2010, the BCNR informed Col. Hoffman
that after considering all of the information provided,
including an advisory opinion by the NCRB, his applica-
tion had been denied. The BCNR found the evidence
supported the Formal PEB’s conclusion that Col. Hoffman
was “Fit” for duty. It also found that the record did not
support a finding of incurrence of amyloidosis while on
active duty. Col. Hoffman sought reconsideration of the
BCNR decision on February 22, 2011, which was denied
on July 11, 2011. Thereafter, Col. Hoffman appealed
directly to the Secretary of the Navy for reconsideration.
On September 7, 2011, the Secretary rejected his request.
On January 19, 2012, Col. Hoffman instituted the un-
derlying suit invoking the jurisdiction of the Court of
Federal Claims under the Tucker Act, 28 U.S.C. § 1491
(2006) and 10 U.S.C. § 1201. See Fisher v. United States,
402 F.3d 1167, 1174–75 (Fed. Cir. 2005) (“Section 1201
enables the Secretary of a military branch to authorize
disability retirement pay for service members on active
duty . . . . [Therefore, § 1201 is money-mandating suffi-
cient to trigger Tucker Act jurisdiction] when the re-
quirements of the statute are met.”). The parties filed
HOFFMAN v. US 7
cross-motions for judgment on the administrative record.
Col. Hoffman argued that the BCNR decision was both
procedurally and substantively flawed and should be set
aside. In particular, he contended that the Court of
Federal Claims reverse the “Fit” determination, that he
should be placed on the Permanent Disability Retired List
with a rating of 100 percent disabled effective January 3,
2006, and that he was entitled to retroactive disability
retirement pay from January 3, 2006 forward. The gov-
ernment argued that the fitness determination is sup-
ported by substantial evidence. The Court of Federal
Claims found in favor of the government.
On January 17, 2013, Col. Hoffman filed a motion for
reconsideration, which was denied on April 17, 2013. Col.
Hoffman appeals, pro se, the decision of the Court of
Federal Claims. This court has jurisdiction under 28
U.S.C. § 1295(a)(3) (2012).
DISCUSSION
This court reviews legal determinations of the Court
of Federal Claims, such as a judgment on the administra-
tive record, de novo. Roth v. United States, 378 F.3d
1371, 1381 (Fed. Cir. 2004). We therefore apply the same
standard of review as the Court of Federal Claims: we will
not disturb the BCNR’s decision unless we find it to be
arbitrary, capricious, contrary to law, or unsupported by
substantial evidence. Id.
Section 1552 of title 10 gives military secretaries pow-
er to correct military records using civilian boards. It
reads, in relevant part:
(a)(1) The Secretary of a military department may
correct any military record of the Secretary’s de-
partment when the Secretary considers it neces-
sary to correct an error or remove an injustice.
Except as provided in paragraph (2) [dealing with
enlistment and promotion of enlisted soldiers]
8 HOFFMAN v. US
such corrections shall be made by the Secretary
acting through boards of civilians of the executive
part of that military department. The Secretary
of Homeland Security may in the same manner
correct any military record of the Coast Guard.
10 U.S.C. § 1552 (2006).
“Each military department has issued regulations
that govern the operation and procedures of its board for
the correction of military records.” Porter v. United
States, 163 F.3d 1304, 1311 (Fed. Cir. 1998). In rendering
a decision, a military records corrections board, like the
BCNR, must determine “[w]hether the applicant has
demonstrated the existence of a material error or injustice
that can be remedied effectively through correction of the
applicant’s military record.” 32 C.F.R. § 865.4(l)(4). Here,
in order to obtain disability retirement benefits, Col.
Hoffman seeks to correct the determinations the BCNR
made when reviewing the Formal PEB findings; specifi-
cally, the “Fit” determination and the finding that his
disease was not incurred during active duty.
In that vein, Col. Hoffman’s appeal raises the follow-
ing issues: (1) whether the Court of Federal Claims
properly sustained BCNR’s decision that Col. Hoffman
was “Fit” notwithstanding his amyloidosis; (2) whether
the Court of Federal Claims properly sustained BCNR’s
determination that Col. Hoffman did not incur amyloido-
sis while on active duty; and (3) whether the Court of
Federal Claims properly held that Col. Hoffman was not
prejudiced by alleged delays and procedural errors in his
disability processing. We turn to these issues seriatim.
The record supports BCNR’s “Fit” determination. The
“responsibility for determining who is [F]it or [U]nfit to
serve in the armed services is not a judicial province; and
[ ] courts cannot substitute their judgment for that of the
military departments when reasonable minds could reach
differing conclusions on the same evidence.” Heisig v.
HOFFMAN v. US 9
United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983). “Fit”
and “Unfit” are terms of art within the Department of
Defense Disability Evaluation System (“DES”). “A
[s]ervice member shall be considered [U]nfit when the
evidence establishes that the member, due to physical
disability, is unable to reasonably perform the duties of
his or her office, grade, rank, or rating . . . to include
duties during a remaining period of [r]eserve obligation.”
Department of Defense Instructions (“DoDI”) 1332.38 ¶
E3.P3.2.1 (November 1996).
Here, the Court of Federal Claims took note of the
“administrative . . . nature” of Col. Hoffman’s billet as a
Field Historian, and determined that there was evidence
supporting the opinion that Col. Hoffman was capable of
performing the tasks of that billet. Hoffman, 108 Fed. Cl.
at 117. Significant to this determination was that the
advisory opinion from the NCRB to the BCNR indicated
Col. Hoffman had recovered from amyloidosis “to a suffi-
cient degree that he was capable of fulfilling administra-
tive duties appropriate for his office, grade, rank or
rating, despite certain limitations on physical activities
described at the time of the contested Formal PEB deter-
mination and Col[.] Hoffman’s long-term prognosis.” Id.
Specifically, as the Court of Federal Claims noted, treat-
ing physicians reported Col. Hoffman’s excellent response
to stem-cell transplant and chemotherapy by June 2006,
and recommended that he begin exercising. By April
2007, Col. Hoffman was in complete remission. Despite
some residual side effects, the treating physicians indi-
cated that they expected Col. Hoffman’s “cardiac function
to stabilize and possibly improve over time.” Id.
Col. Hoffman contends that it was improper for the
BCNR to consider the 2008 Formal PEB “Fit” decision
without considering earlier decisions by the Marine Corps
Mobilization Command and CHBUMED that found him
“not physically qualified.” As the Court of Federal Claims
found, however, Col. Hoffman’s “reliance on these earlier
10 HOFFMAN v. US
evaluations ignores the improvements to his health.” Id.
Indeed, the record reflects that Col. Hoffman had been
working as a civilian historian for the Department of the
Army, similar to his Marine Corps billet as a Field Histo-
rian, during much of the relevant time period. This fact
alone may be reasonably adequate to support the Formal
PEB “Fit” determination. See Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938) (Substantial evidence
“means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”).
That the record lacks “a comprehensive physical ex-
amination” is also not convincing. Appellant’s Br. 48. We
agree with the Court of Federal Claims that “[t]here is no
evidence in the record to suggest that the Formal PEB or
the BCNR did not have a thorough and complete under-
standing of Colonel Hoffman’s health status on which to
find him ‘Fit’ for continued service.” Hoffman, 108 Fed.
Cl. at 120. The record informs this court that the PEB
and the BCNR had a complete understanding of Col.
Hoffman’s health. For example, the Formal PEB noted
Col. Hoffman’s amyloidosis, back and shoulder issues, and
periodic numbness in both arms. The Formal PEB de-
termined that Col. Hoffman was not “impaired by his
disease process to the point that he [was] disabled in the
performance of his duties.” J.A. 119. It was also deter-
mined that Col. Hoffman was in “remission and that [he]
experiences only occasional cardiac conduction abnormali-
ties due to the amyloid fibrils in the heart . . . [that] are
not disabling.” Id. The PEB presumably had “all medical
and non-medical information necessary to evaluate” Col.
Hoffman’s case as required by Navy regulations.
SECNAVINST 1850.4E ¶ 3102(c).
The BCNR likewise noted “despite limitations on
physical activities . . . neither an inability to deploy,
complete a [physical fitness test], or perform more ardu-
ous physical tasks associated with an Infantry [military
operational specialty], nor the prognosis of possible future
HOFFMAN v. US 11
deterioration precludes a determination of Fit.” J.A. 170.
Similar to the PEB, the BCNR presumably had the full
record and considered it to the extent necessary. Melen-
dez Camilo v. United States, 642 F.3d 1040, 1045 (Fed.
Cir. 2011) (“We presume that actions taken by the Correc-
tion Board are valid, and the burden is upon the com-
plainant to show otherwise. We further presume that the
Correction Board performed its function according to the
regulations and considered all of [Appellant’s] records.”)
(citation omitted). Based on this record, the BCNR’s
decision sustaining the Formal PEB’s finding that Col.
Hoffman is “Fit” for continued service was not arbitrary,
capricious, or otherwise not supported by substantial
evidence.
In addition to the “Fit” determination, Col. Hoffman
disputes the BCNR’s finding that his disease was not
incurred during active duty service. Because a service
member is only entitled to disability benefits if found
“Unfit,” SECNAVINST 1850.4E ¶ 2014, the issue of
whether or not Col. Hoffman’s illness was properly char-
acterized as incurred during active duty is moot in light of
the “Fit” finding. In any event, when reviewing the
BCNR’s determination that Col. Hoffman’s amyloidosis
was not incurred during active duty from 2000 through
2002, we discern no error. The BCNR considered evi-
dence of symptoms Col. Hoffman suffered during the
relevant period and did not find them dispositive. For
instance, the BCNR noted that there was evidence in the
record of “swelling of the lower extremities,” but deter-
mined that it “is a common side-effect of the use of [ibu-
profen]” and that “gingivitis is common among the middle
aged . . . includ[ing] those who follow good oral hygiene
practices.” J.A. 175. The BCNR’s decision was not arbi-
trary, capricious, or otherwise unsupported by substantial
evidence.
Col. Hoffman points to procedural errors, but the
Court of Federal Claims is correct that no such errors
12 HOFFMAN v. US
were committed. Specifically, Col. Hoffman contends that
he should have been afforded a Medical Evaluation Board
(“MEB”) during his DES processing. As the Court of
Federal Claims determined, however, inactive duty re-
servists, like Col. Hoffman, are not entitled to an MEB. A
medical evaluation by an MEB is required for a service
member with an NOE or when, among other things, the
member is on active duty for a period of more than 30
days or the reservist is referred to the DES for a duty-
related impairment. DoDI 1332.38 ¶ E3.P1.2.2. By
contrast, “either a physical examination or a[n] MEB is
sufficient when a reserve component member is referred
for a condition unrelated to the member’s military status
and performance of duty.” Id. At the time of his initial
processing, Col. Hoffman was an inactive reservist with-
out an NOE on file, and the CHBUMED June 7, 2006,
letter finding Col. Hoffman as “not physically qualified”
indicates that it was understood he suffered from non-
duty related conditions under SECNAVINST 1850.4E ¶
3201(b)(2) (“[A]n inactive duty reservists who has not
been given an NOE and who has been determined by the
CHBUMED to be ‘Not Physically Qualified’ (NPQ) for
active duty or retention will be referred . . . to the Infor-
mal PEB for final determination of physical condition.”).
Accordingly, Col. Hoffman’s DES processing did not
require him to receive an MEB.
Lastly, Col. Hoffman argues that he was not afforded
a full and fair hearing. The record reflects that three
review boards and the Court of Federal Claims provided
opportunities for Col. Hoffman to state his case and to
present evidence. Col. Hoffman’s allegations of procedur-
al errors and undue emphasis on administered medical
tests (or the lack thereof) do not give rise to a failure of a
full and fair hearing. On the contrary, the record shows
substantial evidence supporting the BCNR’s decision that
there was no probable material error or injustice when
the Formal PEB determined that Col. Hoffman was “Fit”
HOFFMAN v. US 13
for service. We have considered Col. Hoffman’s remaining
arguments and find them unpersuasive or waived. Cf.
Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420,
1426 (Fed. Cir. 1997) (“[T]his court does not ‘review’ that
which was not presented to the district court.”).
CONCLUSION
We appreciate Col. Hoffman’s plight throughout this
long, difficult administrative and judicial process. How-
ever, “questions of the fitness of an officer to serve on
active duty, and in what capacity the officer should serve,
are [generally] not for the courts to decide” anew. Lewis
v. United States, 458 F.3d 1372, 1377 (Fed. Cir. 2006).
We look to the record and examine whether the BCNR’s
decision is supported. Here, the BCNR, in its capacity as
a tribunal specializing in these matters, made a determi-
nation that, on this record, was not arbitrary or capri-
cious, and supported by substantial evidence. This court
is bound by law to limit our inquiry as such, and in this
case, as the Court of Federal Claims concluded, the
Board’s decision cannot be disturbed.
AFFIRMED
No costs.