Ford v. United States

In the United States Court of Federal Claims
No. 17-1168C
(Filed: September 30, 2020)
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ANTOINE FORD, *
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Judicial Review of Board for
Plaintiff, *
Correction of Naval Records;
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Cross-Motions for Judgment on the
v. *
Administrative Record; Military
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Disability Retirement and
THE UNITED STATES, *
Incapacitation Pay.
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Defendant. *
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Jason W. Manne, Manne Law Office, Pittsburgh, Pennsylvania, for Plaintiff.
Douglas T. Hoffman, with whom were Joseph H. Hunt, Assistant Attorney General,
Robert E. Kirschman, Jr., Director, and Douglas K. Mickle, Assistant Director,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington,
D.C., and Jonathan Dowling, LCDR, JAGC, USN, General Litigation OJAG (Of
Counsel), for Defendant.
OPINION AND ORDER
WHEELER, Judge.
In this case, Plaintiff LCDR Antoine Ford, a retired member of the U.S. Navy
Reserve, seeks medical disability retirement benefits as well as incapacitation benefits (also
known as Line of Duty or LOD benefits) he maintains are due him as a result of injuries
incurred during his service. LCDR Ford seeks review of a decision of the Board for
Correction of Naval Records (BCNR) which determined he was ineligible for disability
retirement benefits. He also challenges the subsequent denial of his incapacitation benefits
claim by the Navy for failure to submit adequate documentation. In addition, he challenges
the Navy’s 2016 denial of LOD benefits for back and PTSD injuries. The parties have
each moved for judgment on the administrative record pursuant to Rule 52.1 of this Court.
In addition, the Government has moved to dismiss LCDR Ford’s claim for incapacitation
benefits beyond the first six months of that program on the grounds that this Court is
without jurisdiction over extended benefits.
Background
Claims for military disability retirement are governed by Department of Defense
Instruction (“DoDI”) 1332.38, and those regulations have been tailored for the Navy by
Secretary of the Navy Instruction (“SECNAVINST”) 1850.4E. Under those regulations, a
Reservist such as LCDR Ford may be eligible for disability retirement if a Physical
Evaluation Board determines he is not “fit” to continue naval service. “Fit” is defined as
“based on evidence that establishes that the member is reasonably able to perform the
duties of his or her office, grade, rank or rating, to include duties during a remaining period
of Reserve obligation.” SECNAVINST 1850.4E ¶ 2033. It is noted that a finding of fit
includes “the understanding that the mere presence of a diagnosis is not synonymous with
a disability.” Id. Incapacitation benefits are available prior to retirement and are governed
by 37 USC § 204(g)–(h). They are available to currently serving Reservists who are
physically disabled as the result of an injury incurred in the line of duty. They can include
health care benefits and active duty pay, with adjustments for civilian employment income.
LCDR Ford entered service with the U.S. Navy Reserve in July 1989, and served a
total of 20 years and 10 months of qualifying service, making him eligible for placement
on the Reserve Retirement List. 1 He served successfully without incident until 2014.
During that year he was mobilized and sent to Djibouti to support operations there.
Although he initially received a positive fitness report, he then took an unauthorized trip to
Ethiopia and while he was away, there was a terrorist bombing in Djibouti City. Due to
his unauthorized absence during an emergency, he was given a written reprimand and 30
days restriction. Shortly afterwards, he was returned to the United States and received an
adverse fitness report.
After his return to the United States, LCDR Ford sought medical treatment for
shoulder and back pain. He also complained of adverse effects of witnessing death and
trauma while deployed. He had surgery on his right shoulder in October 2014, and was
found fit for duty (“cleared for full duty and demobilization from orthopedics standpoint”)
in November 2014. He later returned to medical to complain about his treatment, and
raised new complaints about his back and mental health. In January 2015, he was released
from active duty and placed back into reserve status. In 2015 LCDR Ford continued to
complain of shoulder pain, and in March 2015 he applied for LOD benefits. Also in 2015,
the Navy held a Board of Inquiry and recommended that LCDR Ford be retired based on
his substandard performance, which was approved by the Assistant Secretary of the Navy
(Manpower and Reserve Affairs) on February 18, 2016, effective March 1, 2016.
1
Except as otherwise noted, the facts in this Background section are taken from the BCNR Decision of September
25, 2018. Dkt. No. 23.
2
On March 15, 2016, 15 days after LCDR Ford was retired, the Navy issued an
approval letter for LCDR Ford’s LOD benefits for the period from January 2015 through
September 14, 2016 for “right shoulder impingement.” Administrative Record (AR) 14-
16. The letter also directed that as part of the LOD process, a medical board be convened
unless LCDR Ford was determined to be fit for duty. Id. 14. On March 29, 2016, the Navy
issued a related letter denying LOD benefits for LCDR Ford’s back and PTSD conditions,
ruling that submitted documents did not support the claim that these were incurred or
aggravated in the line of duty. AR 17. LCDR Ford reports that he never received a copy
of the letter denying LOD for his back and PTSD claims, which although not addressed to
him, by its terms requires that the member receive a copy by certified mail, with return
receipt retained. Id. There seems to be no such proof of service in the record. The approval
for LOD benefits for his shoulder injury came significantly later than required by the LOD
regulations, which required an interim LOD determination be made by the Navy within 30
days of the date the injury was reported. See Opinion of Office of Legal Counsel to BCNR,
citing DODI 1241.1, May 30, 2011. AR 1361–62.
LCDR Ford subsequently filed an application with the BCNR to rescind his
retirement in order to participate in the Line of Duty program and to pursue disability
claims. The BCNR denied his request in a decision dated March 27, 2017, finding that he
was properly retired and could not claim any LOD benefits. AR 1128–29. The Board also
found him ineligible for disability benefits because he was retired for substandard
performance. LCDR Ford subsequently filed this action, claiming that he was prematurely
retired before the Navy acted upon his application for Line of Duty benefits and without
properly addressing his opportunity for disability processing.
This Court remanded LCDR Ford’s case to the BCNR for further consideration in
April 2018. Dkt. No. 19. On September 25, 2018, the BCNR issued their second decision
in LCDR Ford’s case. Dkt. No. 23. The Board noted that in its 2017 review, the Board
had “erroneously” found LCDR Ford was not eligible for disability benefits because he
had been retired for substandard performance. However, the Board again found that he did
not qualify for disability benefits because, based on his medical record, a Physical
Evaluation Board would have found him fit for service. The Board also denied LCDR
Ford’s request to rescind his retirement in order to allow him to participate in the LOD
program, concluding that he had been properly retired despite the Navy’s failure to process
his LOD application in a timely manner. However, the Board did find that because of the
late approval, he was never given a chance to apply for the benefits. Therefore, the Board
concluded that the Navy’s error created “an injustice warranting relief.” Id. at 5. The
Board directed the Navy to allow LCDR Ford to submit the necessary documents to
establish eligibility for retroactive LOD benefits for the 14 months from his release from
active duty to his retirement from the Navy Reserve. The Board also moved his official
date of retirement from March 1, 2016 to April 1, 2016.
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Following the BCNR decision on remand, LCDR Ford filed with this Court a
renewal of his objections to the Navy’s disposition of both his disability and LOD claims.
Dkt. No. 25. The parties agreed that the Navy would assign a representative to assist LCDR
Ford in completing the documentation required for approval of LOD benefits, including
medical records and information from civilian employment. Dkt. No. 30. However, LCDR
Ford was unable to provide the required information to the Navy’s satisfaction and
ultimately refused to pursue it further. AR 574-78. He then obtained legal counsel in
October 2019. In a Joint Status Report, Dkt. No. 57, the parties agreed that newly-
appointed counsel would help with the documentation process; however, this effort
ultimately proved to be unsuccessful. On January 22, 2020, the Navy denied LCDR Ford’s
incapacitation benefits request due to lack of documentation, citing “inconsistencies
regarding the requested pay and the approved injury” as well as missing civilian earning
statements. AR 13.
LCDR Ford has now filed a Motion for Judgment on the Administrative Record.
He challenges the BCNR determination that he does not qualify for a military disability,
and disputes the Navy’s denial of his documents for LOD benefits for his shoulder injury
as well as the original denial of LOD eligibility for his back and PTSD claims. The Navy
has filed a Cross Motion for Judgment on the Administrative Record and a Motion to
Dismiss LCDR Ford’s claim for LOD benefits beyond the first six months of the period at
issue, arguing that this Court lacks jurisdiction over extended LOD benefits.
Arguments
Disability Determination
LCDR Ford argues that the Board’s decision to deny disability benefits was
arbitrary and capricious because the Board failed to consider all relevant facts. He cites
the guidelines in DoDI 1332.18, which govern disability decisions for all military
retirements, and urges that the BCNR should have specifically addressed all of the
unfitness criteria set out in those regulations. For example, the Board should have
discussed his occupation as a Navy human resources officer and how his shoulder and back
injuries might have limited his office activities. Further, the Board should have considered
his deployability and readiness for active duty with a review of all of his disabilities as
rated by the Veterans Administration (VA). Also, LCDR Ford maintains that the Board
did not sufficiently weigh evidence that he was no longer fit for duty in the months
following the November 14, 2014, fit for duty determination.
The Navy counters that LCDR Ford is trying to create a new standard of review for
Board decisions regarding fitness for duty, requiring the Board to make a specific, written
analysis of every factor set forth in DODI 1332.18. The Navy maintains that this approach
would require the Court to go beyond a determination whether a decision is supported by
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substantial evidence, which is the current standard. The Navy also observes that the Board
did discuss many factors relating to fitness for duty. For example, the Board discussed but
was not persuaded by LCDR Ford’s arguments regarding his fitness for human resources
duties. Further, with regard to the importance of the VA rating of his service-connected
disabilities, the Navy points out that the Board discussed LCDR Ford’s VA records and
rating in the opinion, but was not persuaded to alter the Board’s conclusions. The Navy
maintains that the Board set forth substantial evidence to support its conclusions.
Discussion
In reaching the conclusion that disability benefits should be denied, the Board
“found insufficient evidence Petitioner was unfit for continued naval service due to any
disability condition at the time he was released from active duty.” Dkt. No. 23 at 4. In
reaching its conclusions, the Board relied on advisory opinions from the Senior Medical
Advisor of the Navy Council of Review Boards (CORB), the Director of CORB, and the
Office of Legal Counsel of the Navy Bureau of Personnel. Rebuttal evidence from LCDR
Ford was also considered. The Board cited the Senior Medical Advisor (CORB)’s opinion,
which reached the same conclusion. The Board also pointed to the opinion of Director
CORB which endorsed the Senior Medical Advisor opinion and stated that had Petitioner
been referred to the Physical Evaluation Board, “a finding of fit to continue naval service
would have been the likely result.” Id. The Board described specific pieces of evidence:
LCDR Ford’s medical record on November 14, 2014, showed he was declared “fit for full
duty” and “demobilization” from an “orthopedics standpoint” after his shoulder surgery.
Id. The Board found no subsequent medical evidence to override that determination. They
also found that LCDR Ford’s VA rating for a 20% back disability remained the same both
before and after active duty service, constituting “evidence that his back condition
remained relatively static” and did not prevent performance of his duties. Id. The Board
also found no evidence that LCDR Ford was unfit to serve due to mental health issues.
While he was referred for various options for mental health treatment, the Board found no
evidence that his condition prevented performance of his duties. The Board also noted that
LCDR Ford’s PTSD condition “was not determined to be service connected by the VA.”
Id. at 5.
When reviewing a motion for judgment on the administrative record under Rule
52.1 of this Court, the Court determines if a party has met its burden of proof based on the
evidence in the record in light of all disputed facts. Anderson v. United States, 111 Fed.
Cl. 572, 578 (2013). Here, the BCNR has supported its decision with specific findings
based on LCDR Ford’s medical record. This Court will not disturb a decision of a military
corrections board unless it is “arbitrary, capricious, contrary to law, or unsupported by
substantial evidence.” Barnick v. U.S., 591 F.3d 1372, 1377 (Fed. Cir. 2010), citing
Chambers v. U.S., 417 F.3d 1218, 1227 (Fed. Cir. 2005). If the Court finds that the board’s
decision was reasonable and supported by substantial evidence, it will not overturn the
board’s decision. Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986). Courts may
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not “substitute their judgment for that of the military board” when reasonable minds may
differ. Banerjee v. United States, 77 Fed. Cl. 522, 533 (2007). In this case, the Court finds
that the BCNR decision of 2018 is reasonable and supported by the record.
LOD Benefits
LCDR Ford disputes the Navy’s refusal to accept the documents he submitted in
support of his LOD benefit claim for his shoulder injury. He points out that the reasons
for denial in the Navy’s January 22, 2020 letter are quite brief and therefore difficult to
challenge. He maintains that he has substantially complied with the documentation
required by the Navy, and that some information has been difficult to locate due to the
Navy’s delayed approval of his LOD eligibility. He also objects to the Navy’s denial of
eligibility for LOD benefits for his back injury and PTSD, and points out that because he
was never given notice of that denial, he lost an opportunity to seek review of the decision
as explained in the Navy letter of denial. AR 17.
The Navy describes a long history of attempts by LCDR Ford, working with Navy
representatives, to provide information required by the Navy to assess which benefits he is
entitled to receive. The form at issue is the Line of Duty (LOD) Incapacitation Pay
Request, which must be completed for each month during the LOD benefit period. The
Navy cited examples of “errors and discrepancies” including omission of an employer
letter, missing hours, and missing pay stubs reflecting regular hours worked and hourly
civilian wages. Dkt. No. 69 at 30-35.
Discussion
The Court notes that LCDR Ford’s reported difficulties with securing records from
2015 and 2016 may have been partially caused by the Navy’s failure to timely rule on his
entitlement to LOD benefits for his shoulder injuries. Because he was denied LOD benefits
by the first BCNR decision in 2017, it was not until the 2018 BCNR decision that his
eligibility was clear. The Navy letter of January 22, 2020, denying award of those benefits
for lack of documentation, states that an appeal of the decision can be made to the Office
of the Judge Advocate General. However, because LCDR Ford is already retired, the
BCNR is the more appropriate forum for an appeal. 2 It is appropriate that LCDR Ford
have the opportunity to seek review of Navy decisions in the same manner he would have
if the LOD process had operated according to the timing set forth by law. Similarly, LCDR
Ford should have the opportunity to seek review by the BCNR of the Navy’s denial of
2
See the discussion of appeal of a Navy decision after retirement in the parties’ Joint Status Report of October 28,
2019 (Dkt. No. 57), at footnote 2: “In the event that LCDR Ford is dissatisfied with the determination, the Navy
agrees he may appeal such determination directly to BCNR (because Plaintiff is no longer on active duty) instead of
appealing to the Office of the Judge Advocate General….”
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LOD benefits for back and PTSD conditions, set forth in its letter of March 29, 2016, since
there is no record that he received notice of that denial. AR 17.
Conclusion
For the reasons stated above, the Court GRANTS IN PART the Government’s
Motion for Judgment on the Administrative Record as to LCDR Ford’s claim for military
disability benefits. The Court DENIES LCDR Ford’s Motion for Judgment on the
Administrative Record, and REMANDS LCDR Ford’s LOD claims to the BCNR for a
period of 180 days. On remand, the BCNR is directed to reconsider LCDR Ford’s
documentation for his LOD shoulder injury, as well as his claim for wrongful denial of his
LOD application for back and PTSD injuries. Due to the remand, the Court DISMISSES
as moot the Government’s Motion for Partial Dismissal. All pending motions not
otherwise disposed of here are DISMISSED as moot.
Pursuant to RCFC 52.2, it is ORDERED (1) that this case is STAYED pending the
outcome of the BCNR’s review; (2) that Defendant shall file a status report every 90 days
to advise the Court of the progress of the remand proceedings, and (3) that within 30 days
following the BCNR decision on remand, both LCDR Ford and the Government shall file
a statement with this Court indicating how they wish to proceed.
IT IS SO ORDERED.
s/ Thomas C. Wheeler
THOMAS C. WHEELER
Judge
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