Pillette v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KIBBIE P. PILLETTE,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-2632
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00353-EGB, Senior Judge Eric G.
Bruggink.
______________________
Decided: January 18, 2017
______________________
KIBBIE P. PILLETTE, Abbeville, LA, pro se.
HEIDI L. OSTERHOUT, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
DEBORAH A. BYNUM.
______________________
Before LOURIE, WALLACH, and HUGHES, Circuit Judges.
2 PILLETTE v. US
PER CURIAM.
Kibbie Pillette (“Pillette”) appeals from the decision of
the Court of Federal Claims (“the Claims Court”) on cross-
motions for judgment on the administrative record deny-
ing Pillette’s request for an order directing the Army to
correct his military record to reflect a medical retirement.
See Pillette v. United States, No. 15-353C, 2016 WL
4059172 (Fed. Cl. July 29, 2016) (“Decision”). For the
following reasons, we affirm.
BACKGROUND
In November 1965, Pillette was shot in the jaw in Vi-
etnam. For the next ten months, he was treated in vari-
ous military hospitals, and he was awarded the Purple
Heart.
On June 7, 1966, Pillette’s term of enlisted service
(“ETS”) expired. The Army retained him past that date to
continue treating his injuries. On July 22, 1966, Pillette
signed an affidavit confirming his desire to be retained on
active duty beyond his ETS (“July 1966 Affidavit”). The
affidavit stated, inter alia:
I, SGT E5 KIBBIE P. PILLETTE, have been fully
advised by the undersigned officer of the ad-
vantage that may accrue to me by voluntarily re-
maining on active duty in the Army beyond the
scheduled date of expiration of my term of service
for the purpose of continuing medical care or hos-
pitalization and, if eligible, subsequent separation
or retirement for physical disability under the pro-
visions of chapter 61, title 10, U.S.C., and have
been further advised that if I elect instead to be
discharged or released from active duty as sched-
uled I will not, after such discharge or release
from active duty, be eligible for separation or re-
tirement for physical disability. . . . I (do) desire
PILLETTE v. US 3
retention on active duty in the Army beyond the
scheduled date of expiration of my tour of service.
Supplemental Appendix (“S.A.”) 8 (emphases added).
On September 8, 1966, an Army Medical Evaluation
Board (“MEB”) convened to determine whether Pillette
was fit for active duty. The MEB found Pillette fit for
duty with certain limitations based on a speech impedi-
ment. S.A. 31–32. The report recommended that he be
“[r]eturned to duty” and “be separated from the service
which is his desire since he is past his ETS.” Id. The
findings and recommendations of the MEB were approved
on September 16, 1966.
On September 19, 1966, Pillette acknowledged that he
had “been informed of the approved findings and recom-
mendations of the [MEB]” and he crossed out and ini-
tialed the statement “I do not agree with the Board’s
action and desire to appeal.” Id. at 32. Pillette did not
appeal the MEB decision. On September 22, 1966, Pil-
lette was honorably discharged from active duty due to
the expiration of his term of service and transferred to the
active reserve.
Immediately following his discharge, Pillette sought
treatment at a Veterans Affairs (“VA”) hospital. On June
3, 1967, the VA awarded him a 50% disability rating
effective September 23, 1966.
In 2009, Pillette filed a request with the Army Board
for Correction of Military Records (“ABCMR”) to change
his discharge from honorable to a medical retirement
resulting from the injuries he incurred in Vietnam.
In December 2009, the ABCMR denied Pillette’s re-
quest. The ABCMR first “determined it is in the interest
of justice to excuse [Pillette’s] failure to timely file” and
4 PILLETTE v. US
conducted a substantive review. 1 In re Pillette, No.
AR20090010260, slip op. at 2 (ABCMR Dec. 29, 2009).
The ABCMR found that the Army had properly followed
its procedures in not issuing Pillette a medical discharge.
Id. at 3 (citing Army Regulation (“AR”) 635-40). The
ABCMR found that (1) the MEB determined Pillette was
fit for retention; (2) the MEB recommended that Pillette
be returned to duty; and (3) Pillette did not contest the
MEB’s findings. Because the MEB found Pillette fit, he
was not referred to a Physical Evaluation Board (“PEB”),
and without a PEB, Pillette could not have been issued a
medical discharge. The ABCMR also found that Pillette
did not provide any evidence to show that his medical
condition warranted consideration by a PEB.
Pillette requested reconsideration of the ABCMR’s de-
cision three times between 2010 and 2014. The ABCMR
denied all of those requests.
On April 8, 2015, Pillette filed a complaint in the
Claims Court challenging the ABCMR’s decision. He
sought correction of his military record to reflect a disabil-
ity retirement rather than an honorable discharge and
back pay for retirement benefits that he would have
received had he been given a disability retirement.
The government moved to dismiss, or, in the alterna-
tive, for judgment on the administrative record. The
Claims Court denied the motion to dismiss and directed
Pillette to file a cross-motion for judgment on the admin-
istrative record.
1 Generally, applicants to the ABCMR “must file an
application within three years after an alleged error or
injustice is discovered or reasonably should have been
discovered.” 32 C.F.R. § 581.3(d)(2) (2016). However, as
the ABCMR did here, it “may excuse untimely filing in
the interest of justice.” Id.
PILLETTE v. US 5
On the cross-motions, the Claims Court granted the
government’s motion and denied Pillette’s motion. The
court held that Pillette “ha[d] not shown that the ABCMR
was arbitrary or capricious in rejecting his claim for a
disability retirement from the [A]rmy.” Decision, 2016
WL 4059172, at *3. The Claims Court agreed with the
ABCMR that the MEB’s finding of fitness for retention
made a PEB unnecessary. The court rejected Pillette’s
argument that the July 1966 Affidavit guaranteed him a
PEB as unsupported by authority and a plain reading of
the document. The court held that Pillette’s argument
that the Army would have reached a different conclusion
regarding his fitness for duty if it had completed his
medical care was waived because it was not raised at the
ABCMR. The court also noted that Pillette had not
“shown how [this] calls into question the MEB’s conclu-
sion or the ABCMR’s affirmance of it.” Id.
The Claims Court also found that the MEB’s recom-
mendations were not contradictory. On the final page of
the report, the MEB recommended that Pillette be
“[r]eturned to duty.” S.A. 32. But the report also “rec-
ommended that [Pillette] be separated from the service
which is his desire since he is past his ETS.” Id. at 31.
The court explained “[t]he recommendation in the MEB’s
report that [Pillette] be separated from service because he
wished to be is not germane to the question actually
presented to the MEB, and does not call into question its
finding regarding his fitness for duty.” Decision, at *3.
Pillette timely appealed to this court. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(3) (2012).
DISCUSSION
We review a Claims Court decision granting or deny-
ing a motion for judgment on the administrative record
without deference, applying the same standard of review
that the Claims Court applied. Roth v. United States, 378
F.3d 1371, 1381 (Fed. Cir. 2004). We will not disturb the
6 PILLETTE v. US
ABCMR’s decision unless “the decision is arbitrary or
capricious, unsupported by substantial evidence, or oth-
erwise not in accordance with law.” Fisher v. United
States, 402 F.3d 1167, 1180 (Fed. Cir. 2005). Generally,
arguments not raised before the ABCMR are waived. See
Metz v. United States, 466 F.3d 991, 999 (Fed. Cir. 2006).
The Secretary of the Army, acting through the
ABCMR, “may correct any military record . . . when the
Secretary considers it necessary to correct an error or
remove an injustice.” 10 U.S.C. § 1552(a)(1). “The
ABCMR begins its consideration of each case with the
presumption of administrative regularity.” AR 15-185
¶ 2–9 (Mar. 31, 2006). To overcome this presumption, the
“applicant has the burden of proving an error or injustice
by a preponderance of the evidence.” Id.
A member of the Army may be retired with retired
pay if the member “is unfit to perform the duties of his
office, grade, rank, or rating because of physical disability
incurred while entitled to basic pay” under certain cir-
cumstances. 10 U.S.C. § 1201 (1964). AR 635-40 imple-
ments provisions of Title 10 relating to eligibility and
processing for physical disability benefits. AR 635-40A
§ 1 ¶ 1 (Aug. 13, 1957); AR 635-40 ¶ 1–1 (Feb. 8, 2006).
The “Army regulations in effect at the time of [Pillette’s]
discharge in [1966], rather than current regulations,
guide our analysis.” Chambers, 417 F.3d at 1227.
Pillette argues that the Claims Court erred in denying
his motion for judgment on the administrative record.
Pillette asserts that various provisions of AR 635-200 and
the July 1966 Affidavit demonstrate that his medical
condition warranted the completion of his medical treat-
ment prior to his discharge and evaluation by a PEB.
Pillette contends that the July 1966 Affidavit guaranteed
him a PEB. Pillette also contends that an MEB should
not have been convened and that AR 635-40 did not apply
to him when the MEB convened because the Army had
PILLETTE v. US 7
retained him past his June 7, 1966 ETS. Pillette further
asserts that his retention in the army for 45 days past his
scheduled ETS without his prior consent violated his
rights under AR 635-200. 2
The government responds that the Claims Court did
not commit reversible error. The government contends
that the ABCMR’s decision was not arbitrary, capricious,
unsupported by substantial evidence, or contrary to law.
We agree with the government that the Claims Court
did not err. The ABCMR’s determination that Pillette
received proper processing under AR 635-40 was not
arbitrary and capricious or unsupported by substantial
evidence. When Pillette’s case was referred to the MEB,
it was charged with evaluating his condition and recom-
mending an appropriate disposition. See AR 635-40A § III
¶ 10 (Aug. 13, 1957). Because the MEB found him fit for
duty, referral to a PEB was not required. Indeed, only
“[w]hen the approved action of the [MEB] d[id] not provide
for either final medical disposition of the case (e.g., return
to duty . . . ) or deferment of disposition pending transfer
or further observation, [was] the case . . . referred to the
jurisdiction of a [PEB] for disposition.” Id. (emphasis
added); see also id. § IV ¶ 19 (stating cases of members
who appeared to be “medically unfit for active duty” were
“referred to a [PEB] for disposition”). The MEB recom-
mended that Pillette be returned to duty, a final medical
disposition from which Pillette did not appeal. The Army
thus followed proper procedure in not referring Pillette to
a PEB.
2 Pillette appears to cite currently effective AR 635-
200. Our analysis, however, is based on the regulation in
effect at the time of Pillette’s ETS and discharge in 1966.
See Chambers, 417 F.3d at 1227.
8 PILLETTE v. US
Although we question whether the ABCMR properly
applied the version of AR 635-40 that was in effect in
1966, 3 to the extent the ABCMR incorrectly applied the
current AR 635-40, any such error was harmless. Under
both the Army regulations in effect now and those in
effect in 1966, the procedure for evaluating a soldier’s
medical fitness for duty and eligibility for a disability
retirement is substantially the same in relevant part. An
MEB must first find a soldier medically unfit before
referral to a PEB. AR 635-40A § III ¶ 10, § IV ¶ 19 (Aug.
13, 1957); AR 635-40 ¶¶ 4–10, 4–13 (Feb. 8, 2006). Upon
referral, a PEB makes disability findings and recommen-
dations that can lead to a medical retirement. See AR
635-40A § IV ¶ 28 (Aug. 13, 1957); AR 635-40 ¶ 4–19 (Feb.
8, 2006).
Additionally, we can discern no error in the ABCMR’s
finding of a lack of evidence that Pillette’s medical condi-
tion warranted consideration by a PEB. Compliance with
AR 635-200 did not require Pillette to be evaluated by a
PEB. See AR 635-200 § IV ¶ 14(d) (Apr. 8, 1959) (explain-
ing that a member “may, with his consent, be retained in
service beyond the expiration of his period of service in
order that he may complete the required medical care or
hospitalization and, if required, be brought before a
[PEB]” (emphasis added) (citing AR 635-40A)); AR 635-
200 ¶ 2–6 (July 15, 1966) (same). As contemplated by AR
635-200, the Army retained Pillette past his scheduled
ETS to continue providing him with medical care and had
him sign the July 1966 Affidavit consenting to his reten-
tion. See AR 635-200 § IV ¶ 14(d) (Apr. 8, 1959); AR 635-
200 ¶ 2–6 (July 15, 1966). Although Pillette signed the
3 Compare Pillette, No. AR20090010260, slip op. at
3, with AR 635-40 ¶¶ 4–9, 4–10 (Feb. 8, 2006); compare In
re Pillette, No. AR20100009820, slip op. at 3 (ABCMR
Sept. 21, 2010), with AR 635-40 ¶ 3–2(b)(1) (Feb. 8, 2006).
PILLETTE v. US 9
July 1966 Affidavit 45 days after his scheduled ETS,
there was no harm to Pillette’s eligibility for a disability
retirement as a result of this delay. See AR 635-200 § IV
¶ 14(d) (Apr. 8, 1959); AR 635-200 ¶ 2–6 (July 15, 1966).
We also do not agree with Pillette’s contentions that
the MEB was improperly convened and that AR 635-40
did not apply to him when it was convened. Pillette
consented to his retention on active duty past his sched-
uled ETS “for the purpose of continuing medical care or
hospitalization and, if eligible, subsequent separation or
retirement for physical disability.” S.A. 8. AR 635-40
implemented Title 10 eligibility and processing for physi-
cal disability benefits and specified that members of the
Regular Army, like Pillette, “will be processed under
these regulations” except in situations inapplicable here.
AR 635-40A § 1 ¶¶ 1, 2 (Aug. 13, 1957). Thus, AR 635-40
applied to Pillette when the MEB was convened and he
has shown no impropriety by the MEB.
Furthermore, we do not agree with Pillette that the
July 1966 Affidavit guaranteed him a PEB. This affidavit
appears to be a form affidavit used by the Army to con-
firm a service member’s intent to remain in the service or
be discharged. Compare S.A. 8, with AR 635-200 § IV ¶
14(d)(5) (Apr. 8, 1959) and AR 635-200 ¶ 2–6 (July 15,
1966). The July 1966 Affidavit made clear that Pillette
would be considered for “retirement for physical disabil-
ity” “if eligible.” S.A. 8 (emphasis added). The affidavit
did not mention a PEB, or indicate that it superseded the
provisions of AR 635-40. As discussed above, we can
discern no error in the ABCMR’s finding that the Army
properly processed Pillette under AR 635-40. Nothing in
the affidavit or any authority of which we are aware
supports Pillette’s position that the affidavit guaranteed
him a PEB.
Finally, we find no reversible error in the Claims
Court’s holding that Pillette waived his argument regard-
10 PILLETTE v. US
ing the Army’s alleged failure to complete his medical
care prior to his discharge. Pillette does not contest the
waiver holding before this court, and the ABCMR did not
pass on this issue. In any event, as the Claims Court
noted, Pillette “has not shown how [this] calls into ques-
tion the MEB’s conclusion or the ABCMR’s affirmance of
it.” Decision, 2016 WL 4059172, at *3.
In sum, Pillette has not shown that the ABCMR erred
in holding that he had not established any error or injus-
tice in his military record. Pillette is therefore not enti-
tled to correction of his military record.
CONCLUSION
We have considered Pillette’s remaining arguments
and conclude that they are without merit. For the forego-
ing reason, the decision of the Claims Court is affirmed.
AFFIRMED
COSTS
No costs.