JOSLYN v. USA

Filing 28

PUBLISHED OPINION granting 22 defendant's Motion to Dismiss - Rule 12(b)(1); or, in the alternative, granting 22 defendant's Motion for Judgment on the Administrative Record and denying plaintiff's Cross-Motion for Judgment on the Administrative Record. Signed by Chief Judge Emily C. Hewitt. (kl)

J O S L Y N v. USA

D o c . 28

In the United States Court of Federal Claims
N o . 08-925 C (E -F ile d : November 30, 2009) ) ) ) ) ) ) ) ) ) ) )

C A P T A IN ROSS E. JOSLYN, P la in tif f , v. T H E UNITED STATES, Defendant.

M o tio n to Dismiss; MoneyM a n d a tin g Statute; Motion for J u d g m e n t upon the Administrative R e c o rd ; 10 U.S.C. § 1201; 37 U .S .C . § 204

M ic h a el D.J. Eisenberg, Washington, DC, for plaintiff. J a m e s P. Connor, Washington, DC, with whom were Tony West, Assistant Attorney G en era l, Jeanne E. Davidson, Director, and Reginald T. Blades, Assistant Director, C o m m e rc ia l Litigation Branch, Civil Division, United States Department of Justice, W a sh in g to n , DC, for defendant. Major Kelly L. McGovern, Military Personnel Branch, A rm y Litigation Division, United States Army, Arlington, VA, of counsel. OPINION H E W IT T , Chief Judge B e f o re the court are Defendant's Motion to Dismiss or, in the Alternative, Motion fo r Judgment upon the Administrative Record (defendant's Motion or Def.'s Mot.); P la in tif f 's Opposition to Defendant's Motion to Dismiss or, in the Alternative, Motion for J u d g m e n t upon the Administrative Record (plaintiff's Response or Pl.'s Resp.); and D e f en d a n t's Reply in Support of Motion to Dismiss and Motion for Judgment upon the A d m in is tra tiv e Record, and Response to Plaintiff's Motion for Judgment upon the A d m in i str a tiv e Record (defendant's Reply or Def.'s Reply). Plaintiff's Response c o n ta in s a cross-motion for judgment upon the Administrative Record. Pl.'s Resp. 1, 15 (re q u e stin g judgment in favor of plaintiff based on the Administrative Record). For the re a so n s stated below, defendant's Motion to Dismiss is GRANTED; or, in the alternative,

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d e f en d a n t's Motion for Judgment upon the Administrative Record is GRANTED, and p la in tif f 's Cross-Motion for Judgment upon the Administrative Record is DENIED. I. B a c k g ro u n d

P lain tiff 's claims stem from his discharge from the United States Army (Army) in D ec em b er 2008. See Complaint (Compl.) ¶ 1. To set the dispute in context, the court w ill summarize the process the Army uses to determine when it is appropriate to d is c h a rg e a soldier by reason of medical disability, describe the circumstances of p la in tif f 's discharge and review the procedural history that led to plaintiff's Complaint. A. The Army's Disability Evaluation System

C o n g re ss provided the Secretaries within the Department of Defense, including the S e c re ta ry of the Army (Secretary), with general guidelines for the retirement or separation o f military personnel due to physical disability in 10 U.S.C. §§ 1201-1222 (2006), but e a ch Secretary has broad discretion to design the regulations for the disability system, see 1 0 U.S.C. § 1216 (a)-(b), (d) (2006) ("The Secretary concerned shall prescribe regulations to carry out this chapter within his department. . . . Except [for reasons of age or length o f service] the Secretary concerned has all powers, functions, and duties incident to the d e te rm in a tio n under this chapter . . . ."). Army Regulation (Army Reg.) 635-40 e sta b lish e s the Army Physical Disability Evaluation System under the provisions of Title 1 0 , United States Code, Chapter 61 and Department of Defense Instruction 1332.18. Army Reg. 635-40, ¶ 1-1 (Feb. 8, 2006). Army Reg. 635-40 "sets forth policies, re sp o n sib ilities , and procedures that apply in determining whether a Soldier is unfit b e c au s e of physical disability to reasonably perform the duties of his or her office, grade, ra n k , or rating." Id. The Army Physical Disability Evaluation System (DES) consists of several phases o f evaluation and review that result in a final disability determination for a soldier. When a question arises as to a soldier's ability to perform the duties of his or her office, grade, ra n k or rating because of physical disability, the soldier's commander, the commander of th e medical treatment facility (MTF) treating the soldier, or the Commander, U.S. Army H u m a n Resources Command (HRC), may refer the soldier to the responsible MTF for m e d ic a l evaluation. Army Reg. 635-40, ¶¶ 4-6 to 4-8. Upon referral, the MTF c o m m a n d e r will conduct an examination of the soldier and, if it appears the soldier is not m e d ic a lly qualified to perform duty, will refer the soldier to a Medical Examination B o a rd (MEB). Id. ¶ 4-9. The MTF commander will also appoint a Physical Examination B o a rd Liaison Officer (PEBLO) to counsel a soldier undergoing physical disability p ro c e s s in g . Id. ¶ 2-8. 2

A n MEB is convened to document a soldier's medical status and duty limitations a n d make a decision as to the soldier's medical qualification for retention based on the c rite ria in Army Reg. 40-501, chapter 3. Id. ¶ 4-10. The Narrative Summary prepared for th e MEB by the referring physician is "the heart of the disability evaluation system." Id. ¶ 4-11. The Narrative Summary describes a soldier's conditions, including the "history of the [s]oldier's illness, objective findings on examination, results of X-ray and laboratory tes ts, reports of consultations, response to therapy, and subjective conclusions with ra tio n a le ." Id. The Narrative Summary must also establish a correlation between the s o ld ie r's medical defects and physical capabilities, and if the soldier is diagnosed with a m e n tal disorder, must include a statement indicating whether the soldier is mentally c o m p e te n t and capable of understanding the nature of, and cooperating in, Physical E v a lu a tio n Board (PEB) proceedings. Id. Narrative Summaries will not reflect a c o n c lu s io n of unfitness, and therefore, should not include terms such as "unfitting" or " d is q u a lif yin g ." Id. If the MEB determines that the soldier does not meet medical re te n tio n standards, it will recommend referral to a PEB, which then determines whether th e soldier is fit or unfit for duty. Id. ¶¶ 4-10, 4-19. The PEBLO advises the soldier of the MEB results, and the soldier is given the o p p o rtu n ity to read and sign the MEB proceedings. Id. ¶ 4-12. If the soldier does not a g re e with any item in the MEB report or Narrative Summary, he or she is advised re g a rd in g appeal procedures. Id. The MTF commander notifies the soldier's unit c o m m a n d e r of the PEB referral and obtains a written statement from the unit commander c o n f irm in g whether any adverse personnel action is being considered against the soldier a n d describing the soldier's current duty performance. Id. ¶ 4-15. In addition, the soldier m a y provide additional information to the MTF commander to forward to the PEB, in c lu d in g information from the unit commander, supervisor, or other persons who have k n o w le d g e regarding the effect the condition has on the soldier's ability to perform his or h e r duties. Id. ¶ 4-13. The role of PEBs is "to evaluate all cases of physical disability equitably for the [ s]o ld ie r and the Army." Id. ¶ 4-17. A PEB is a fact-finding board, and its findings and re c o m m e n d a tio n s may be revised. Id. Its purpose is to: (1) investigate "the nature, c a u s e , degree of severity, and probable permanency" of the referred soldier's disability; (2 ) evaluate "the physical condition of the [s]oldier against the physical requirements of th e [s]oldier's particular office, grade, rank, or rating"; (3) provide "a full and fair h e a rin g " for the soldier as required by 10 U.S.C. § 1214; and (4) make "findings and re c o m m e n d a tio n s required by law to establish the eligibility of a [s]oldier to be separated o r retired because of physical disability." Id. All PEB findings must be based on a p re p o n d e ra n c e of the evidence, and its recommendations must be supported by the f in d in g s . Id. ¶ 4-19a. 3

" T h e first and most important determination" the PEB makes is whether the soldier is physically fit or unfit to perform the duties of the soldier's office, grade, rank, or rating. Id. ¶ 4-19d(1). "The mere presence[] of an impairment does not, of itself, justify a f in d in g of unfitness because of physical disability. In each case, it is necessary to c o m p a r e the nature and degree of physical disability present with the requirements of the d u tie s the [s]oldier reasonably may be expected to perform because of [his or her] office, g ra d e , rank, or rating." Id. ¶ 3-1. All other actions are directly or indirectly tied to this f in d in g of fitness or unfitness. Id. ¶ 4-19d(1). Only after establishing that the soldier is u n f it because of physical disability does the PEB decide the percentage rating for each u n f ittin g compensable disability. Id. ¶ 4-19i. E a c h case is first considered by an informal PEB, a process designed to reduce o v e ra ll DES processing time without sacrificing the detailed and uniform evaluation of e a ch case. Id. ¶ 4-20a. The informal PEB's findings and recommendations are presented o n DA Form 199, which also lists the election options available to the soldier: (1) c o n c u rre n c e and waiver of a formal hearing; (2) nonconcurrence, submission of a rebuttal a n d waiver of a formal hearing; (3) demand for formal hearing with or without personal a p p e a ra n c e ; and (4) choice of counsel if a formal hearing is demanded. Id. ¶ 4-20b-c. The PEB must receive the election within ten days from the soldier's receipt of the in f o rm a l findings. Id. ¶ 4-20c(3). The PEBLO, acting as counselor for the soldier during th is process, is primarily concerned with the soldier's interests, and should consult and o b ta in legal advice as needed. Id. ¶ 4-20d. The soldier should be made fully aware of the e lec tio n options available to him or her, the processing procedures, and the benefits to w h ic h the soldier will be entitled if separated or retired for physical disability. Id. ¶ 42 0 d (1 ). A soldier is entitled to a formal hearing, with counsel, if requested after informal c o n sid e ra tio n by a PEB. Id. ¶ 4-21a. The formal PEB board is normally composed of the s a m e members who considered the case informally. Id. ¶ 4-21b. The purpose of the f o rm a l hearing is "to afford the [s]oldier the opportunity to present views, testimony, and n e w evidence," which the board members must consider "with open minds despite their e a rlie r decisions." Id. Immediately after deliberation, the formal PEB informs the soldier, via DA Form 1 9 9 , of its findings and recommendations, which it may change, modify, or correct at any tim e before the record of proceedings is delivered to the U.S. Army Physical Disability

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A g e n c y (PDA) or HRC.1 Id. ¶ 4-21r. The soldier may respond with an election on DA F o r m 199-1 and a letter of rebuttal, both of which must be received at the PEB within ten d a ys after the soldier's receipt of formal findings, unless the PEB approves a request for a n extension of time. Id. ¶ 4-21s. If the PEB does not receive the soldier's election or re q u e st for an extension of time within the ten-day period, the PEB will deem the soldier to have waived the right to an election and will forward the proceedings to the HRC for f in a l disposition. Id. ¶ 4-21s(2). A soldier who fails to make an election or submit a s ta te m e n t of rebuttal within the allotted time forfeits the opportunity for PDA review of h is or her case. Id. ¶ 4-21s(3). A letter of rebuttal must be prepared and processed according to the guidance p rov ided in Army Reg. 635-40. Id. ¶ 4-21t. A rebuttal may be based only on one or more o f the following issues and must provide rationale in support of the issue: (1) the PEB d e c is io n was based on fraud, collusion, or mistake of law; (2) the soldier did not receive a f u ll and fair hearing; (3) substantial new evidence exists and is submitted that, by due d ilig e n c e, could not have been presented before the PEB disposition of the case. Id. ¶ 42 1 t(1 ). If the PEB receives a letter of rebuttal after it has forwarded the soldier's case to H R C for final disposition, and if consideration of the rebuttal does not result in a change to the findings and recommendations, the PEB will advise the soldier in writing that no c h a n g e is warranted and that the rebuttal and reply have been forwarded to HRC for in c lu s io n in the case proceedings. Id. ¶ 4-21t(4). If consideration of the rebuttal does re su lt in a change to the findings and recommendations, the PEB will recall the case and e f f e c t the necessary changes by preparing a new DA Form 199. Id. The PDA provides review and confirmation of PEB action in certain cases. Id. ¶ 4-22a. The purpose of review is to ensure that: (1) the soldier received a full and fair h e a rin g ; (2) the MEB and PEB proceedings were conducted according to governing re g u latio n s; (3) the MEB's and PEB's findings and recommendations were just, e q u ita b l e , consistent with the facts, and in keeping with legal and regulatory provisions; (4 ) due consideration was given to the facts and requests contained in any rebuttal s u b m itte d ; and (5) the records of the case are accurate and complete. Id. ¶ 4-22b. Based u p o n review of the PEB proceedings, the PDA may concur with the PEB's findings and re c o m m e n d a tio n s , return the case to the PEB for reconsideration or other action, issue The U.S. Army Physical Disability Agency (PDA) is under the operational control of the U.S. Army Human Resources Command (HRC). Army Reg. 635-40, ¶ 2-4 (Feb. 8, 2006). The PDA operates the Army Physical Disability Evaluation System (DES), including development of policies, procedures and programs of the system and review of Physical Evaluation Board (PEB) proceedings, id., while HRC accomplishes final administrative actions in processing physical disability cases and issues needed orders or other instructions for the Secretary of the Army based on decisions of the PDA, id. ¶ 2-3. 5
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re v ise d findings providing for a change in disposition of the soldier, or refer the case to th e Army Physical Disability Appeal Board. Id. ¶ 4-22c. If the PDA issues revised f in d in g s , a soldier must submit an election or rebuttal within ten days after receiving the rev ised findings, unless an extension of time is requested and approved. Id. ¶ 4-22d. If th e soldier fails to submit an election or rebuttal within the allotted time, the PDA will d e e m the soldier to have waived his or her right to file a rebuttal to the revised findings a n d will forward the proceedings to HRC for final action. Id. ¶ 4-22f. T h e HRC resolves the case by publishing orders or issuing proper instructions to s u b o rd in a te headquarters. Id. ¶ 4-24. HRC-issued retirement orders or other disposition in s tru c tio n s may include, inter alia, permanent retirement for physical disability, s e p a ra tio n for physical disability with or without severance pay, and return of the soldier to duty when he or she is determined physically fit. Id. ¶ 4-24b. B. Circumstances of Mr. Joslyn's Case 2

O n August 10, 1992, Mr. Joslyn enlisted in the Army for a five-year period from N o v e m b e r 1992 through November 1997. AR 218-21. He served on active duty from N o v e m b e r 1992 to November 1996, when he was granted a release from active duty after the Army reduced his rank. Compl. ¶ 10; AR 175, 195, 197, 209, 211. In 1999, Mr. Jo slyn enrolled in the Army Reserve Officer Training Corps (ROTC) Scholarship P ro g ra m while he was a student at the University of Texas at Arlington. AR 161-74. After completing the ROTC program, he was commissioned as a second lieutenant on D e c em b e r 15, 2001 and served as a military intelligence officer. AR 157-60. From May 3 1 , 2003 to April 6, 2004, Mr. Joslyn deployed to Iraq and served in support of Operation Iraq i Freedom. AR 132. From June 2004 to June 2005, he served as a Brigade military in te llig e n c e officer at Fort Hood, Texas. AR 99-102, 132. He was then transferred to the U n iv e rs ity of Texas at Arlington to serve as an assistant ROTC instructor for a p p ro x im a te ly three years. AR 94-98, 132, 134. In June 2008 Mr. Joslyn was reassigned to the Fort Hood separation transfer point and in July 2008 was placed in the Warrior T ra n sitio n Unit until transitioning out of the Army. Compl. ¶ 22; AR 132, 134, 137. A c c o rd in g to plaintiff, on or about May 1, 2007, Lt. Col. Scott Baker informed p la in tif f that "if he did not retire out of the military he would receive a negative Officer E v a lu a tio n Report," which would be detrimental to plaintiff's career. Compl. ¶ 16. On

The facts are taken from plaintiff's Complaint (Compl.) and the Administrative Record (AR). Although reference to the Administrative Record was not necessary for the court to reach its legal conclusions, the court cites the Administrative Record to explain more fully what occurred in plaintiff's case. 6

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J u n e 27, 2007,3 Mr. Joslyn submitted his unqualified resignation "due to family concerns" to the Army. AR 154-55. Lt. Col. Baker recommended approval of Mr. Joslyn's re sig n a tio n with an honorable discharge that same day. AR 152. Lt. Col. Baker noted th a t Mr. Joslyn was physically qualified for an unqualified resignation and that he would b e scheduled for the required medical examination prior to discharge. Id. Mr. Joslyn was c o u n s e le d regarding his voluntary resignation as required by Army Reg. 600-8-24. AR 1 4 9 , 153. Colonel James M. House also recommended approval of Mr. Joslyn's re sig n a tio n request, AR 150, and the resignation request was approved on August 7, 2 0 0 7 , AR 144-46. Mr. Joslyn was scheduled to separate from the Army on May 1, 2008. Id. O n December 12, 2007, Dr. Marie A. Adams, a psychiatrist at the Carl R. Darnall A rm y Medical Center at Fort Hood, Texas, determined that Mr. Joslyn failed to meet m e d ica l retention standards. AR 120-23. Dr. Adams noted that it was her opinion "with a reasonable degree of medical certainty given the above clinical presentation that CPT Jo slyn is suffering from chronic post-traumatic stress disorder and it is affecting his a b ility to function in the military setting." AR 122. She also noted that Mr. Joslyn had b e e n receiving treatment from a civilian doctor in Dallas for chronic post-traumatic stress d is o rd e r (PTSD) since May of 2006. AR 121. In the "Psychiatric MEB Narrative S u m m a ry," Dr. Adams wrote that Mr. Joslyn's "current symptoms have interfered with h is ability to function in his job." Id. Dr. Adams referred Mr. Joslyn to an MEB 4 to begin A rm y DES processing. AR 122-23. Dr. Adams determined that Mr. Joslyn was co m p eten t to participate in the proceedings. Id. Dr. Adams also referenced Mr. Joslyn's b a c k and knee injuries as requiring medical addendums. AR 121. Dr. Kimberly Kesling, a physician on the orthopedic staff of the Darnall Medical C en ter, provided a Medical Evaluation Board report dated March 13, 2008, in which Mr. J o s lyn was diagnosed with "[l]umbar degenerative disk disease with facet arthrosis," " [ l]e f t anterior knee pain," and "[r]ight knee status post anterior cruciate ligament re c o n stru c tio n ." AR 127. All three diagnoses were denoted as developing in the line of d u ty and as service-aggravated. Id. The right knee status was specifically listed as "not u n f ittin g ." Id. Dr. Kesling noted, under the heading "Present Condition," that Mr. Joslyn " is unable to fulfill the requirements of his [military occupational specialty] secondary to
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Plaintiff's Complaint states that Mr. Joslyn submitted his resignation on or about May 8, 2007. Compl. ¶ 17. According to the Administrative Record, however, his resignation was submitted on June 27, 2007, and it was to be made effective May 1, 2008. AR 154-55. In her December 12, 2007 recommendations, Dr. Adams mistakenly wrote that she was referring Mr. Joslyn to a PEB, AR 123, although she actually and properly referred Mr. Joslyn to an MEB, AR 130. 7
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th e pain in his back and now in his left knee." Id. Dr. Kesling completed a separate MEB re f erra l notification form. AR 131. T h e MEB Proceedings DA Form 3947 for Mr. Joslyn, dated March 31, 2008, listed th re e medically unacceptable conditions, as well as four medically acceptable conditions. AR 54. The three medically unacceptable conditions listed were chronic PTSD, lumbar d e g e n e ra tiv e disk disease with facet arthrosis and left anterior knee pain. Id. Dr. Adams an d Dr. Kesling signed the form, recommending referral to a PEB; and the MEB's f in d in g s and recommendation were approved by the Approving Authority on May 5, 2 0 0 8 . AR 55. On May 6, 2008, Mr. Joslyn also signed the form, confirming that he had b e e n informed of and agreed with the approved findings and recommendation of the b o a rd . Id. On May 26, 2008, Mr. Joslyn signed the form again, this time confirming that h e had reviewed the MEB packet including the MEB proceedings form (DA Form 3947), N a rra tiv e Summary and the physical profile (DA Form 3349); that the MEB accurately c o v e re d all of his medical conditions; and that he understood that "the [PEB] may d e te rm in e that some or all of the conditions listed in [his] MEB are not unfitting." 5 Id. Inc lu d ed with the medical documents forwarded to the PEB on May 6, 2008, were m e m o ra n d a from Mr. Joslyn's previous commanders and his Officer Evaluation Reports. AR 29. On February 14, 2008, Major Matthew J. Weinrich provided a memorandum a d d re ss e d to the PEB verifying Mr. Joslyn's combat stressors, AR 92, and another m e m o ra n d u m verifying Mr. Joslyn's combat experience and medical history while d e p lo ye d , AR 93. Major Weinrich was Mr. Joslyn's Company Commander from June 2 0 0 3 to November 2003 while Mr. Joslyn served as a platoon leader in Iraq. AR 92. The co m p an y received mortar and small arms fire from one to several times per week, and Mr. J o s lyn was involved in many combat patrols, both day and night. Id. In August 2003, M r. Joslyn's Bradley Fighting Vehicle ran off the road and flipped upside down during a n ig h t combat patrol. AR 93. Mr. Joslyn was treated for possible neck and back injuries a n d was medevaced to another location for further evaluation. Id. Although Major W e in ric h stated that he was unaware of Mr. Joslyn's current condition, he "believe[d] the a c cid e n t may have caused injuries that now affect his ability to perform his current duties to his utmost potential." Id. According to Major Weinrich, on October 3, 2003, one of M r. Joslyn's soldiers was killed by a rocket-propelled grenade during a firefight e n g a g em e n t with enemy combatants. AR 92. Mr. Joslyn's Bradley Fighting Vehicle was a ls o hit by a rocket-propelled grenade with no resulting damage. Id. In his memorandum, M a jo r Weinrich wrote:

The court notes that the MEB proceedings had been forwarded to the informal PEB and the informal PEB had issued its finding of fitness on May 8, 2008, before Mr. Joslyn signed this acknowledgment. See AR 28, 55. 8

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[ M r. Joslyn's] platoon received in[-]theater treatment through a Combat S tre ss Detachment to deal with the incident. [Mr.] Joslyn was having d if f ic u lty leading his platoon at that point. In November 2003, [Mr.] Joslyn w a s removed from his platoon at my request from the Battalion Commander a n d transferred to Headquarters, 2 n d Brigade, 4 th Infantry Division as his p e rf o rm a n c e as a leader and infantryman deteriorated as the enemy contact a n d combat stress increased. A R 92. In addition to Major Weinrich's memorandum, the PEB received a performance statem en t letter dated March 10, 2008 from Lt. Col. Scott R. Baker, Mr. Joslyn's c o m m a n d e r while he was assistant ROTC instructor at the University of Texas at A rlin g to n . See AR 36-37. Lt. Col. Baker stated that Mr. Joslyn's "current duty p e rf o rm a n c e has been satisfactory . . . over the past rating period," and then referenced M r. Joslyn's last Officer Evaluation Report (OER), which was completed by Lt. Col. B a k e r for the period from June 14, 2006 through June 13, 2007 and was dated June 15, 2 0 0 7 . AR 37, 94-95. According to Lt. Col. Baker's letter, Mr. Joslyn "has the current a b ility to perform the duties normally expected of a junior Captain in the US Army," in c lu d in g performing in a satisfactory manner those tasks specifically listed.6 AR 36-37. L t. Col. Baker also noted that Mr. Joslyn was no longer working at the University of T e x a s at Arlington as he was supposed to start his terminal leave effective February 28, 2 0 0 8 . AR 36. T h e PEB reviewed and sent back Dr. Adams's Narrative Summary regarding Mr. J o s lyn 's conditions so that she could include Lt. Col. Baker's letter and opine whether

The listed tasks were: a. Remember locations, work-like procedures and instructions. b. Maintain an acceptable level of attention and concentration to carry out instructions and comp[l]ete tasks in a timely manner. c. Communicate with others on work-related matters. d. Relate civilly to supervisors and other workers. e. Sustain an ordinary routine without special supervision. f. Work with/near others without being unduly distracted by them. g. Make simple work-related decisions. h. Perform without an unreasonable number and ration of rest periods. i. Ask simple questions and request[] help when appropriate. j. Respond appropriately to changes in the work setting; and k. Be aware of normal hazards and tak[e] appropriate precautions. AR 37. 9

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M r. Joslyn could function in a civilian setting. AR 53. In response, Dr. Adams submitted a memorandum to the PEB dated April 23, 2008 that stated that she had reviewed both the c o m m a n d e r's letter and the Narrative Summary. Id. She concurred with the assessment th a t Mr. Joslyn's performance was "sub-optimal and significantly impaired by his current P T S D symptoms," and she opined that Mr. Joslyn had "deficiencies in occupational f u n c tio n in g including difficulty in adapting to work" and "an inability to establish and m a in ta in effective work relationships." Id. Dr. Adams reiterated her December 2007 o p in io n that Mr. Joslyn did not meet Army retention standards. Id. T h e informal PEB Proceedings DA Form 199 was dated May 8, 2008, two days a f te r the case was referred by the MEB. AR 28. "Based on a review of the objective m e d ic a l and personnel evidence of record and considering the physical requirements for re a s o n a b le performance of duties required by grade and military specialty," Mr. Joslyn w a s found "fit for duty within the limitations of the profile." Id. The narrative portion of th e form further stated: [ M r. Joslyn] has performed his duties in an exceptional manner as e v id e n c e d by his Commander's letter dated 10 March 2008 and his OERs. His Commander states that he can adequately perform the duties of his o f f ic e and grade. His medical conditions of PTSD, degenerative disc d isease and left knee pain did not prevent him from completing his military o b lig a tio n or performing assigned duties. The mere presence of a condition d o e s not automatically constitute an unfit finding. Id . On May 13, 2008, within the allotted ten-day period, Mr. Joslyn completed his e lec tio n in Block 13 on DA Form 199. AR 24. His initials appear beside the statement: "I do not concur and request a formal hearing. I understand that I am not entitled to a f o rm a l hearing, and that the decision to grant a formal hearing is at the discretion of the P E B president." 7 Id. Mr. Joslyn also indicated that he would make a personal appearance a t the formal hearing with counsel of his own choice. Id. Additionally, on May 13, 2008,

Although not an issue necessary to the court's resolution of this case, the court notes that there is a discrepancy between the language on the DA Form 199 that Mr. Joslyn signed and the governing Army Regulation, which clearly states: "A [s]oldier is entitled to a formal hearing if requested after informal consideration by a PEB." Army Reg. 635-40, ¶ 4-21a. The Army appears to have afforded soldiers rights additional to those provided by Department of Defense Instruction (DoDI) 1332.38, which implements policy, assigns responsibilities, and prescribes procedures under DoDI 1332.18 and Title 10 of the United States Code. See DoDI 1332.38, ¶ 1 (Nov. 14, 1996). DoDI 1332.38 states: "Active duty and Ready Reserve members determined fit do not have an entitlement to a formal PEB since a finding of fit does not cause involuntary separation for physical disability." DoDI 1332.38, ¶ E3.P1.3.3.1.2. 10

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M r. Joslyn signed a "PEBLO Counseling Checklist/Statement," acknowledging that Mr. J o h n D. Grimnes, his PEBLO, had counseled him regarding MEB proceedings, PEB a d ju d ic a tio n , PDA Review, Temporary Retirement Disability List, and benefits/programs. AR 25-26. On June 11, 2008, Mr. Joslyn appeared, with counsel Mr. Thomas Kickler, at a f o rm a l hearing before the PEB. AR 17, 19. Two of the three board members at the f o rm a l hearing were the same as had constituted the informal PEB. See AR 23, 27. The f o rm a l PEB's DA Form 199, dated June 27, 2008, restated the narrative portion from the in f o rm a l PEB form. AR 17. It then added: "During formal proceedings, the PEB re e v alu a te d all available medical records and sworn testimony by the [s]oldier. Based on th is review, the board considered the [s]oldier most appropriately rated [Fit for Duty]." Id. The formal PEB also addressed counsel's contention, stating: [ M r. Joslyn's] record demonstrates that he has performed his duties in a s a tis f a cto ry manner during the entire timeframe that he has had the s ym p to m s of PTSD, low back pain, and left knee pain. His OERs and C o m m a n d e r's letter show no adverse impact on his performance. Although [ M r. Joslyn] states that he has no responsibilities other than to check on the s u p p ly room, this is not unexpected since he put in his resignation in May 2 0 0 7 with anticipated transfer to the transition point in February 2008 with p ro jec ted release 1 May 2008. [Mr. Joslyn] stated that as he was doing his o u t-p ro c e ss in g physical he discussed all of his physical complaints with the p ro v id e r who then recommended a Medical Board. There was no d e c re m e n t in his performance due to these conditions. In addition, there is n o evidence that his conditions or their treatment have altered the status of h is Top Secret Security Clearance. Id. That same day, June 11, 2008, Mr. Joslyn signed an acknowledgment that he had re c eiv e d the formal PEB Proceedings (DA Form 199), which was printed at the bottom of a letter detailing instructions for the attached election form (DA Form 199-1). AR 21. The letter stated that Mr. Joslyn must complete and return the election form within ten d a ys . Id. It also made clear that if the PEB did not receive the signed DA Form 199-1 or re q u e st for an extension of time within the allotted time period, PEB would presume that M r. Joslyn agreed with the board's recommendation and forward the case to PDA for f in a l action. Id. M r. Joslyn failed to submit the election form within the ten-day period, and his c a se was forwarded to PDA on June 25, 2008. AR 20. The PEB findings were approved b y PDA in a memorandum dated July 1, 2008, and his case was closed. AR 15. The m e m o r a n d u m "constitute[d] final administrative action regarding the disability processing 11

o f [Mr. Joslyn]." Id. The memorandum noted that "[f]indings of fit are based on the p rep o n d era n ce of the evidence provided by the PEB," and instructed that if Mr. Joslyn's c o n d itio n was determined to have worsened, the soldier's command or MTF should in itia te a new MEB and forward it to the PEB for a new fitness determination. Id. According to Mr. Joslyn's Chronological MEB Case Status log kept by PEBLO Jo h n D. Grimnes, Mr. Grimnes spoke with Mr. Joslyn on Monday, June 23, 2008 to see if h e had submitted his election, which was due at 8:00 a.m. that day.8 AR 7. Mr. Grimnes th e n called the PEB, speaking with Ms. Steiner, to inform the board that Mr. Joslyn would b e submitting his election that day, and confirmed with Mr. Joslyn the next day that he h ad indeed faxed his rebuttal to the PEB on June 23, 2008. Id. On June 26, 2008, Mr. G rim n e s called Ms. Steiner at the PEB to ensure that Mr. Joslyn's rebuttal had been re c eiv e d and left a voicemail message. Id. On June 27, 2008, Mr. Grimnes heard from M s . Steiner that Mr. Joslyn's rebuttal had not been received at the PEB and that his case h ad been forwarded to the PDA the day before, that is, on June 26, 2008. Id. Mr. G rim n e s immediately called Mr. Joslyn to inform him of his case status, "e-mailed/faxed" M r. Joslyn's "rebuttal/election" to the PEB and again spoke with Ms. Steiner at the PEB w h o confirmed that the rebuttal/election had been received and would be forwarded to the P D A for consideration. Id. On July 2, 2008 after receiving the PDA memorandum d e te rm in in g Mr. Joslyn fit for duty, Mr. Grimnes called the PDA and learned that the P D A had not received Mr. Joslyn's rebuttal/election. Id. Mr. Grimnes again faxed Mr. J o s lyn 's rebuttal/election to the PDA on July 3, 2008.9 Id. On July 11, 2008, Mr. Joslyn e-m ailed Mr. Albert Whitlock of the PDA. AR 11. Mr. Joslyn's e-mail stated: "Sir, here a re the new memos. And my rebuttal. The PEB never received these supposedly. They n e v e r looked at any of these documents. Thank you for your assistance." Id. In a reply e -m a il, Mr. Whitlock confirmed that he had received the e-mail and would "submit it to [ s]e n io r staff for review." AR 9-10. T h e "new memos," dated July 2, 2008, were written by Major (Retired) Ricardo D iaz, the Commandant of Cadets at the University of Texas at Arlington, describing Mr.

Ten days from June 11, 2008 fell on Saturday, June 21, 2008. If an election deadline falls on a Saturday or Sunday, the soldier must return the DA Form 199-1 to the PEB no later than 8:00 a.m. the following Monday. AR 21. The court notes that Mr. Grimnes's actions in assisting Mr. Joslyn with the submission of his election and rebuttal came after the deadline and were therefore not as helpful as they might have been had they occurred even a few days before. Mr. Joslyn does not claim that the PEBLO counseling and assistance he received were ineffective. Despite the untimely submission, the PDA considered the election and rebuttal and declined to change its findings. See AR 7. 12
9

8

J o s lyn 's duty performance over roughly two years beginning in November 2005. AR 121 4 . Major Diaz wrote: [ M r. Joslyn] was either late or not prepared to run the morning's exercises f o r the cadets. He complained about back problems and his inability to k e e p up with the cadets at physical fitness. The drill team asked me to c o m e to PT . . . which I did, eventually taking over the whole morning PT p ro g ra m . I also had to take over duties as the Budget Officer, which n o rm a lly would have been his job[,] because of deficiencies in his attention to detail. I had to take over the logistics, also his job, because of his f o rg e tf u ln e s s and inability to keep track of equipment and supplies. Finally, a f te r we missed a few suspenses, he was removed from the job and used sp arin g ly as the Special Projects Officer. A R 12. Major Diaz further opined that "[Mr. Joslyn] does not seem to have the physical o r mental ability to perform as a leader and a mentor. I do not believe he will be able to p erf o rm the duties expected of his grade and branch." Id. Major Diaz concluded that Mr. Jo slyn "performed his duties in a[n] unsatisfactory manner," specifically stating that Mr. J o s lyn required supervision, was often tardy, had a hard time remembering instructions, lo s t focus and concentration, lacked attention, needed reminders to get work done, and w a s difficult to deal with more often than not. AR 13. O n August 1, 2008, Mr. Grimnes received a phone call from Mr. Whitlock at the P D A confirming that the rebuttal/election had been received and considered by PDA and that the findings were unchanged. AR 7. That same day Mr. Grimnes informed Mr. J o s lyn of the status of his rebuttal, id., and Mr. Joslyn e-mailed Mr. Whitlock, stating: S ir, based on the treatment and new care that I have received at the Warrior T ra n sitio n Unit, I have new developments in my medical conditions that w a rra n t a new review to begin at the MEB. I have been advised by my n u rs e case manager of documents that were missing which need to be e n te re d in or updated and replaced. My PEBLO, Mr[.] Grimnes, would like to know of the status and see if it is even possible to recall my packet back to him. A R 9. On August 28, 2008, Mr. Grimnes received further confirmation from the PDA th a t the PEB's finding of fitness for Mr. Joslyn remained unchanged. AR 7. O n November 7, 2008, Mr. Joslyn requested to withdraw his previously approved re s ig n a tio n request in order to participate in the Critical Skills Retention Bonus program. AR 3. Mr. Joslyn's commanders did not support his request. Id. At the bottom of Mr. 13

J o s lyn 's resignation withdrawal request, Battalion Commander William N. Greene circled " n o n c o n cu r" and wrote: "Soldier is currently being considered for [Uniform Code of M ilita ry Justice (UCMJ)] for adverse actions." 1 0 Id.; see AR 620-31. Brigade C o m m a n d e r David Thompson also circled "nonconcur" and wrote, "[Mr. Joslyn] can not a c co m p lis h the simplest of task[s]." AR 3. Mr. Joslyn's request was formally denied by th e Army on January 5, 2009. AR 1. O n December 12, 2008, Mr. Joslyn spoke with Dr. Kathryn C. Trosky at the D a rn a ll Medical Center. AR 269. Dr. Trosky noted that Mr. Joslyn expressed a need for a "not fit" memo because he was having his medical board resubmitted. Id. Dr. Trosky c o m p le te d an evaluation form, checking the option "Not Fit For [D]uty - (NFFD) soldier m e e ts retention standards per AR 40-501 and is not deployable." AR 259. One week la te r, after meeting with Mr. Joslyn, she revised her assessment based on additional in f o rm a tio n . AR 252-53. She completed a new evaluation form, this time checking the o p tio n "Fit For [D]uty - (FFD) soldier meets retention standards per AR 40-501 and is d e p lo ya b le ." AR 249. On Mr. Joslyn's chronological record of medical care, Dr. Trosky w ro te: Previous notes reviewed and integrated. . . . I did not have all the accurate in f o rm a tio n when I deem[e]d this soldier not FFD last week. I was under th e impression that he was appealing his Medical Board, whereas he had a lre a d y appealed and the original ruling was not overturned. . . . He had Mr. Joslyn ultimately received a General Officer Memorandum of Reprimand dated December 17, 2008 and filed permanently in his Official Military Personnel File on January 20, 2009. See AR 620-23. The reprimand was "imposed as an administrative measure and not as punishment pursuant to the Uniform Code of Military Justice." AR 623. Mr. Joslyn was "reprimanded for repeatedly failing to go to [his] appointed place of duty between . . . September 2008 and November 2008." Id. "Even after being counseled and ordered by [his] Battalion Commander to go to [his] appointments, [Mr. Joslyn] still missed appointments. . . [showing] a disregard to orders and [his] obligations as an officer." Id. Mr. Joslyn submitted a rebuttal dated December 23, 2008, explaining that he was struggling with medical conditions that had caused him to miss appointments and that he was taking necessary steps not to miss any more. AR 625. He stated that he missed one appointment because of a scheduling error made by his nurse case manager and missed four early morning therapy appointments because he overslept while on a new dosage of sleep medication. Id. He admitted to forgetting about one of the six missed appointments. Id. During this time, Mr. Joslyn said he was taking new medications for his depression, anxiety, and sleep disorders. Id. In an effort not to miss any more appointments, he stated that he was no longer making appointments earlier than 9:00 a.m. Id. The Filing Recommendation, dated December 24, 2008 and signed by Warrior Transition Brigade Commander George J. Salerno, noted: "CPT Joslyn had similar issues with his previous unit (ROTC-UTA). There was no medical evidence to support or mitigate his misconduct." AR 621. 14
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n e u ro p syc h o lo g ica l testing done in Oct 2008 which showed very mild c o g n itiv e impairment which was not a medical boardable condition. AR 252-53. Dr. Trosky concluded, "[Mr. Joslyn] is deemed FFD and will [separate from th e Army] on 30 Dec and follow-up with the VA." AR 253. Although Mr. Joslyn's medical records contain numerous references to medical b o a rd s and a pending appeal to the MEB, the Administrative Record does not contain any e v id e n c e that a physician or other authority referred Mr. Joslyn to a second MEB. Throughout his DES processing, Mr. Joslyn had received three incremental extensions of h is separation date to allow completion of DES processing and medical care, or until fit f o r separation, whichever came first. See AR 103, 109-11, 114. Ultimately his separation d a te was extended from May 1, 2008 to December 31, 2008. AR 103-04. Mr. Joslyn was h o n o ra b ly discharged from the Army on December 31, 2008. AR 2. While the Army c le a re d him from the installation on January 5, 2009, his out-processing date remained D e c em b e r 31, 2008. AR 137. Mr. Joslyn filed his Complaint in this court on December 3 0 , 2008, immediately prior to his discharge. See Compl. 1. II. L e g a l Standards A. T u c k e r Act Jurisdiction

T h e Tucker Act is the primary statute establishing the jurisdiction of the United S ta te s Court of Federal Claims (Court of Federal Claims). See 28 U.S.C. § 1491 (2006). In relevant part, the statute provides that this court "shall have jurisdiction to render ju d g m e n t upon any claim against the United States founded either upon the Constitution, o r any Act of Congress or any regulation of an executive department, or upon any express o r implied contract with the United States." Id. § 1491(a)(1). The Tucker Act provides th e waiver of sovereign immunity necessary to sue the United States for money damages, b u t a plaintiff must establish an independent substantive right to money damages from the U n ite d States, that is, a money-mandating source within a contract, regulation, statute, or c o n stitu tio n a l provision itself, in order for the case to proceed. See United States v. T e s ta n , 424 U.S. 392, 398 (1976). The burden of proof to establish jurisdiction is borne by the plaintiff. McNutt v. G e n . Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Russell v. United States, 78 F e d . Cl. 281, 285 (2007). If the defendant challenges jurisdictional facts, the plaintiff m u st support them with "competent proof." McNutt, 298 U.S. at 189. The plaintiff bears th e burden to show by a preponderance of the evidence that jurisdiction is proper. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). Jurisdiction is a threshold matter and a case can proceed no further if the court lacks 15

jurisd iction to hear it. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). When a federal court concludes that it lacks subject matter jurisdiction, "the court must d is m is s the complaint in its entirety." Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (20 0 6 ). B. M o t io n to Dismiss

R u le 12(b) of the Rules of the United States Court of Federal Claims (RCFC) g o v e r n s motions to dismiss. Specifically, RCFC 12(b)(1) provides for motions to dismiss b a se d on lack of subject matter jurisdiction, RCFC 12(b)(1), and RCFC 12(h)(3) states: "If the court determines at any time that it lacks subject-matter jurisdiction, the court must d is m is s the action," RCFC 12(h)(3). In evaluating a claim pursuant to RCFC 12(b)(1) for la c k of jurisdiction, the court must accept as true any undisputed allegations of fact made b y the non-moving party and draw all reasonable inferences from those facts in the n o n -m o v in g party's favor. Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995); see a ls o Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (discussing RCFC 1 2 (b )(6 )); Reynolds, 846 F.2d at 747. T o determine whether the court has jurisdiction over a plaintiff's claims, the court m u st ascertain whether any of the statutes identified in the plaintiff's complaint are m o n e y-m a n d a tin g . Loveladies Harbor, Inc. v. United States (Loveladies), 27 F.3d 1545, 1 5 5 4 (Fed. Cir. 1994). In order to find that a statute or regulation is money-mandating, " th e allegation must be that the particular provision of law relied upon grants the c la im a n t, expressly or by implication, a right to be paid a certain sum." Eastport S.S. C o rp . v. United States, 372 F.2d 1002, 1007 (Ct. Cl. 1967), abrogated in part on other g ro u n d s by Malone v. United States, 849 F.2d 1441, 1444-45 (Fed. Cir. 1988). "If the c o u rt's conclusion is that the Constitutional provision, statute, or regulation meets the m o n e y-m a n d a tin g test, the court shall declare that it has jurisdiction over the cause, and s h a ll then proceed with the case in the normal course." Fisher v. United States, 402 F.3d 1 1 6 7 , 1173 (Fed. Cir. 2005) (en banc portion). In other words, if a plaintiff has identified a money-mandating statute, the court's jurisdictional inquiry ends and a merits d eterm inatio n begins. See Adair v. United States, 497 F.3d 1244, 1251 (Fed. Cir. 2007). C. M o tio n for Judgment upon the Administrative Record

R u le 52.1 of the Rules of the United States Court of Federal Claims provides for ju d g m e n t upon the administrative record. See RCFC 52.1. A motion for judgment upon th e administrative record is distinguishable from a motion for summary judgment. Bannum, Inc. v. United States (Bannum), 404 F.3d 1346, 1355 (Fed. Cir. 2005); see R u le s Committee Notes to RCFC 52.1 ("Summary judgment standards are not pertinent to judicial review upon an administrative record."). The standards and criteria governing 16

th e court's review of agency decisions in response to a motion for judgment on the a d m in is tra tiv e record under RCFC 52.1 vary depending upon the specific law to be a p p lie d in the particular case. See Rules Committee Notes to RCFC 52.1. In reviewing a m o tio n for judgment upon the administrative record, the court must determine whether a p a rty has met its burden of proof based on the evidence in the record. See Bannum, 404 F .3 d at 1356. Review of military disability cases is limited to "determining whether a decision of th e Correction Board is arbitrary, capricious, unsupported by substantial evidence, or c o n tra ry to applicable statutes or regulations." 1 1 Heisig v. United States, 719 F.2d 1153, 1 1 5 6 (Fed. Cir. 1983). "[T]he standard of review does not require a reweighing of the e v id e n c e, but a determination whether the conclusion being reviewed is supported by su b sta n tial evidence." Id. at 1157 (emphasis omitted). The court cannot substitute its ju d g m e n t for that of the examining physicians, medical evaluation board, physical e v a lu a tio n board or the Army Board for the Correction of Military Records. See id. at 1 1 5 6 -5 7 ; Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979) ("[W]hile [the court] m a y disagree with a correction board about whether or not a specific situation was unjust, [ th e court] will not substitute [its] judgment for the board's when reasonable minds could rea ch differing conclusions.").

As the government states: "Mr. Joslyn's case is somewhat unusual because, while he has been evaluated by the PEB, he has not availed himself of the administrative appeal process through the Army Board for Corrections of Military Records (ABCMR)." Def.'s Mot. 20 (citing 10 U.S.C. § 1552 (2006)). Here, the court is not reviewing a decision of a military correction board, but rather reviewing the PEB's decision directly. The government also correctly notes that Mr. Joslyn is not required to exhaust his administrative remedies prior to pursuing judicial review of his military discharge proceedings. See Heisig v. United States, 719 F.2d 1153, 1155 (Fed. Cir. 1983). The judicial claim for disability retirement pay accrues upon final action of a board competent to pass upon eligibility for disability retirement, or upon refusal of a request for such a board. Friedman v. United States, 310 F.2d 381, 395-96 (Ct. Cl. 1962). The PEB is such a "first competent board" because it determines a service member's fitness for duty and entitlement to disability retirement. See Chambers v. United States, 417 F.3d 1218, 1225 & n.2 (Fed. Cir. 2005). When this court has reviewed the decision of a military disability evaluation board, this court has employed the same standard of review as for a correction board decision: whether the decision was "arbitrary, capricious, not supported by substantial evidence, or contrary to applicable statutes and regulations." See Santiago v. United States, 71 Fed. Cl. 220, 226 (2006) (finding PEB's decision of "not unfitting" and PDA's affirmance of that decision to be arbitrary for failing to consider and address relevant evidence); see Bernard v. United States, 59 Fed. Cl. 497, 501 (2004), aff'd, 98 Fed. App'x 860 (Fed. Cir. 2004) (reviewing PEB and PDA proceedings); Heisig, 719 F.2d at 1156. 17

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P la in tif f bears the burden to overcome the "strong, but rebuttable, presumption that a d m in is tra to rs of the military . . . discharge their duties correctly, lawfully, and in good f a ith ." Sanders, 594 F.2d at 813. The burden is on plaintiff to demonstrate that the a c tio n s of the Army were arbitrary and capricious, contrary to law, or unsupported by s u b s ta n tia l evidence, by producing "cogent and clearly convincing evidence." Wronke v. M a rs h (Wronke), 787 F.2d 1569, 1576 (Fed. Cir. 1986). III. D is c u ss io n A. M o tio n to Dismiss for Lack of Subject Matter Jurisdiction

T o determine whether jurisdiction lies over plaintiff's claims, the court must a sc e rta in whether any of the statutes identified in plaintiff's Complaint are money m a n d a tin g . Loveladies, 27 F.3d at 1554. Plaintiff's Complaint cites four statutes: 28 U .S .C . § 1491(a)(1) (Tucker Act), 28 U.S.C. § 2501 (Statute of Limitations), 28 U.S.C. § 1346(a)(2) (Little Tucker Act), and 5 U.S.C. § 706 (Administrative Procedure Act). Compl. ¶¶ 2, 3, 4-8, 9. The Tucker Act, 28 U.S.C. § 1491(a)(1), provides jurisdiction o n ly where there is a "substantive right enforceable against the United States for money d a m a g e s ." Testan, 424 U.S. at 398. The Tucker Act is not, in itself, money mandating. See id.; supra Part II.A. Thus, the Tucker Act, standing alone, does not support this c o u rt's exercise of jurisdiction over plaintiff's claim. Section 2501 of title 28 of the United States Code limits the court's jurisdiction to tho se claims that accrue no longer than six years before the complaint is filed: "Every c la im of which the United States Court of Federal Claims has jurisdiction shall be barred u n le ss the petition thereon is filed within six years after such claim first accrues." 28 U .S .C . § 2501 (2006); see Young v. United States, 529 F.3d 1380, 1382 (Fed. Cir. 2008). Plaintiff asserts that the Complaint was filed "within six years of the action in question," a n assertion of fact not disputed in this case. See Compl. ¶ 3; Def.'s Mot. 15. Although th e statute of limitations is "jurisdictional," see John R. Sand & Gravel Co. v. United S tate s, 552 U.S. 130, 135 (2008), plaintiff must still establish a money-mandating statute f o r this court to have subject matter jurisdiction over his claim, Testan, 424 U.S. at 398. T h e Little Tucker Act, 28 U.S.C. § 1346(a)(2), states: "The district courts shall h a v e original jurisdiction, concurrent with the United States Court of Federal Claims, of . . . [a]ny other civil action or claim against the United States, not exceeding $10,000 in a m o u n t, founded either upon the Constitution, or any Act of Congress, or any regulation o f an executive department, or upon any express or implied contract with the United S ta te s . . . ." 28 U.S.C. § 1346(a)(2) (2006). The Little Tucker Act waives sovereign im m u n ity and grants the district courts original jurisdiction over claims against the 18

g o v e r n m e n t not exceeding $10,000 in amount.1 2 Gonzales & Gonzales Bonds & Ins. A g e n c y, Inc. v. Dep't of Homeland Sec., 490 F.3d 940, 943 (Fed. Cir. 2007). The Little T u ck er Act therefore has no relevance to a case brought in this court.1 3 Plaintiff's C o m p la in t asserts that the "amount in controversy is over $10,000 of back benefits, pay, an d interest if said interest is permissible by Congress." Compl. ¶ 9. If plaintiff's a s s e rtio n is taken as true, 28 U.S.C. § 1346(a)(2) is not applicable to this case. Finally, plaintiff seeks "judicial review under § 706 of the Administrative P r o c e d u re Act," asserting that the MEB, PEB, and Army acted "arbitrarily and c a p ric io u s ly" in making various decisions. Compl. ¶¶ 4-8. In his prayer for relief, p lain tiff asks that, after holding those decisions to be arbitrary and capricious, the court: (1) "evaluate [his individual identified conditions] in accordance with proper re g u la tio n s " ; (2) "complete the MEB in accordance with proper regulations"; (3) "grant th e necessary medical extensions" or, in the alternative, "grant [p]laintiff's request to w ith d ra w his resignation papers"; (5) "[i]n the alternative, find [p]laintiff medically r e tir e d at a rating consistent with the highest disability ratings for each of [p]laintiff's first M E B findings"; (6) award plaintiff his costs and attorneys' fees; and (7) grant such other re lie f as the court deems just and proper. Compl. ¶¶ 40-45. The Administrative Procedure Act (APA) is not a money-mandating statute. Wopsock v. Natchees, 454 F.3d 1327, 1333 (Fed. Cir. 2006) (noting that "the APA does n o t authorize an award of money damages at all; to the contrary, section 10(a) of the A P A , 5 U.S.C. § 702, specifically limits the Act to actions `seeking relief other than m o n e y damages'"); Banerjee v. United States, 77 Fed. Cl. 522, 534 (2007) ("The A d m in is tra tiv e Procedure Act is not a money mandating statute, since the APA waives

The Little Tucker Act recognizes the concurrent jurisdiction of the United States Court of Federal Claims (Court of Federal Claims) over claims against the government not exceeding $10,000 in amount. 28 U.S.C. § 1346(a)(2) (2006). The court does not view the Little Tucker Act as creating jurisdiction in the Court of Federal Claims. Rather, 28 U.S.C. § 1346(a)(2) grants jurisdiction to the district court over certain claims and recognizes the separate grant of jurisdictional authority to the Court of Federal Claims contained in 28 U.S.C. § 1491. See 28 U.S.C. §§ 1346(a)(2), 1491. Further, the Little Tucker Act is not a money-mandating statute. Like § 1491(a)(1), § 1346(a)(2) does not create any substantive right of action against the United States for money damages. Litzenberger v. United States, 89 F.3d 818, 820 (Fed. Cir. 1996) ("Although [28 U.S.C. § 1346(a)(2)] waives sovereign immunity, it does not create any substantive right enforceable against the United States for money damages. . . . Thus, for a claim to be based on the Little Tucker Act, it must be founded on a provision that can fairly be interpreted as mandating compensation from the United States." (citations omitted)). 19
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s o v e re ig n immunity only for claims seeking `relief other than money damages.'" (quoting 5 U.S.C. § 702)). Further, this court lacks general APA jurisdiction. See Martinez v. U n ite d States, 333 F.3d 1295, 1313 (Fed. Cir. 2003) (noting that the Court of Federal C laim s does not have APA jurisdiction to consider non-monetary suits to correct military re c o rd s); McNabb v. United States, 54 Fed. Cl. 759, 767 (2002) ("In general, APA r e v ie w s are conducted in federal district court rather than the Court of Federal Claims, s in c e the APA itself addresses `relief other than money damages[,]' and money damages a re the cornerstone of this court's Tucker Act jurisdiction." (citation omitted)). "If the court's conclusion is that the source as alleged and pleaded is not m o n e y-m a n d a tin g , the court shall so declare, and shall dismiss the cause for lack of ju ris d ic tio n , a Rule 12(b)(1) dismissal--the absence of a money-mandating source being f a ta l to the court's jurisdiction under the Tucker Act." Metz v. United States, 466 F.3d 9 9 1 , 997 (Fed. Cir. 2006). In his Complaint, plaintiff fails to invoke a money-mandating sta tu te and therefore fails to meet his burden of proving that jurisdiction in this court is p ro p e r. For these reasons, the court grants defendant's motion to dismiss for lack of s u b je c t matter jurisdiction. B. M o tio n for Judgment upon the Administrative Record

If the court limits its analysis to those jurisdictional bases set forth in the C o m p la in t, plaintiff has made no claim within the jurisdiction of this court. However, as a llu d e d to by the parties in their motions and supporting briefs, plaintiff's Complaint can b e read to suggest other statutory bases for his monetary claims. In particular, as the g o v e rn m e n t discusses in its Motion, plaintiff's Complaint could be interpreted as im p lica tin g several alternative statutory bases for this court's jurisdiction. See Def.'s M o t. 18. Although plaintiff did not include these jurisdictional allegations in his C o m p lain t, the court will discuss these statutes in order to address Mr. Joslyn's case more f u l l y. A s the government acknowledges, Mr. Joslyn's Complaint could be construed to in c lu d e a claim for retirement pay under the money-mandating provisions of 10 U.S.C. § 1201. See Compl. ¶¶ 33, 40, 43; Def.'s Mot. 18. In addition, plaintiff's allegation that h i s request to withdraw his resignation was wrongfully denied could be construed as a w ro n g f u l discharge claim. See Compl. ¶¶ 39, 42; Def.'s Mot. 18; Pl.'s Resp. 2-3. Wrongful discharge claims are generally brought under the money-mandating Military P ay Act, 37 U.S.C. § 204. Martinez, 333 F.3d at 1303. However, even if plaintiff's C o m p lain t were construed to allege claims under these statutes--so that the court would h a v e subject matter jurisdiction over his claims--for the reasons discussed below, the c o u rt finds that defendant is entitled to judgment upon the Administrative Record. Defendant is entitled to judgment upon the Administrative Record on Mr. Joslyn's claims 20

th a t the Army arbitrarily and unlawfully denied him a second MEB and a medical e x te n sio n past December 31, 2008 because such claims are not supported by the A d m in is tra tiv e Record. 1. C la im for Disability Retirement Pay

M r. Joslyn's Complaint could be construed to include a claim for retirement pay u n d er the money-mandating 10 U.S.C. § 1201. See Compl. ¶¶ 1, 4, 33, 40, 43; Def.'s M o t. 18. In his Response to the government's motion to dismiss, Mr. Joslyn argues that h e "implicitly sues under the Military Pay Act, 37 U.S.C. § 204." Pl.'s Resp. 2. Referencing 37 § U.S.C. 204(h)(1), plaintiff states that he is "clearly stating a claim under h is retirement pay, e.g.[,] his military medical retirement." Pl.'s Resp. 3. As the g o v e rn m e n t correctly points out, disability retirement pay claims, such as the one asserted b y Mr. Joslyn, are not governed by the Military Pay Act but by 10 U.S.C. § 1201. Def.'s R e p ly 2. Section 1201 of title 10 of the United States Code authorizes the Secretary of th e Army to retire a soldier with retirement pay after a determination that the soldier is u n f it to perform the duties of his or her office, grade, rank, or rating because of physical d isab ility incurred while entitled to basic pay. 10 U.S.C. § 1201 (2006). Mr. Joslyn's im p lie d argument is that he should not have been separated from the Army but rather re tir e d after being found unfit to perform his duties due to physical disability, a c irc u m sta n c e which would have entitled him to disability retirement pay under 10 U.S.C. § 1201. See Compl. ¶¶ 1, 4, 33, 40, 43. a. L eg al Standard

W h e n this court is asked to review the decision of a military disability evaluation b o a rd , the standard of review is whether the decision was "arbitrary, capricious, not s u p p o rte d by substantial evidence, or contrary to applicable statutes and regulations." Santiago v. United States, 71 Fed. Cl. 220, 226 (2006); Bernard v. United States, 59 Fed. C l. 497, 501 (2004), aff'd, 98 Fed. App'x 860, 862 (Fed. Cir. 2004); see Heisig, 719 F.2d a t 1156. "[T]he standard of review does not require a reweighing of the evidence, but a d e te rm in a tio n whether the conclusion being reviewed is supported by substantial e v id e n c e." Heisig, 719 F.2d at 1157. The court cannot substitute its judgment for that of th e examining physicians, medical evaluation board, physical evaluation board or the A rm y Board for the Correction of Military Records. See id. at 1156-57; Sanders, 594 F .2 d at 813 ("[W]hile [the court] may disagree with a correction board about whether or n o t a specific situation was unjust, [the court] will not substitute [its] judgment for the b o ard 's when reasonable minds could reach differing conclusions."). T h e plaintiff bears the burden to overcome the "strong, but rebuttable, presumption th a t administrators of the military . . . discharge their duties correctly, lawfully, and in 21

g o o d faith." Sanders, 594 F.2d at 813. The plaintiff must demonstrate that the actions of th e Army were arbitrary and capricious, contrary to law, or unsupported by substantial e v id e n c e, by producing "cogent and clearly convincing evidence." Wronke, 787 F.2d at 1 5 7 6 . Under the substantial evidence standard, "all of the competent evidence must be c o n sid e re d , whether original or supplemental."1 4 Heisig, 719 F.2d at 1157. Substantial e v id e n c e is defined as "more than a mere scintilla." Consol. Edison Co. v. Nat'l Labor R e la tio n s Bd., 305 U.S. 197, 229 (1938). Substantial evidence is "such relevant evidence a s a reasonable mind might accept as adequate to support a conclusion." Id.; see also J e n n in g s v. Merit Sys. Prot. Bd., 59 F.3d 159, 160 (Fed. Cir. 1995); Heisig, 719 F.2d at 1 1 5 6 . To prevail under the arbitrary and capricious standard, plaintiff must demonstrate th a t evidence was ignored or unreasonably construed, or that designated duties were not

The phrase "whether original or supplemental," often quoted in other cases, raises the question of what constitutes supplemental evidence. The court understands "supplemental evidence" in this context to be evidence taken de novo by the reviewing court and not included in the Administrative Record. See Brown v. United States, 396 F.2d 989, 991-92 (Ct. Cl. 1968) (describing "evidence over and above that presented before the administrative boards" as separate from "record evidence"); Walls v. United States, 582 F.3d 1358, 1367, 1368 & n.13 (2009) (differentiating between "the administrative record already in existence" and "some new record made initially in the reviewing court" and noting that the administrative record may be supplemented in "extremely limited situations"). The court notes the possible uncertainty that exists regarding the continued appropriateness of the court's accepting de novo evidence in military pay cases except in certain circumstances. See Walls, 582 F.3d at 1369, 1376 (Newman, J., dissenting) (questioning the panel majority's view of Brown because no Federal Circuit en banc decision or Supreme Court decision has overruled Brown). Compare Brown, 396 F.2d at 991-92, 996-97 (describing and reaffirming the court's practice in military pay cases of regularly considering under the substantial evidence standard "evidence over and above that presented before the administrative boards if a party wishes to offer it" along with record evidence) with Walls, 582 F.3d at 1367-68 (interpreting Supreme Court and Federal Circuit decisions since Brown to establish that "review under the Administrative Procedure Act [(APA)] is generally limited to the administrative record," which should be supplemented "only if the existing record is insufficient to permit meaningful review consistent with the APA"). The issue of supplemental evidence received de novo by the court is not implicated in this case because all of the evidence is contained in the Administrative Record. Although some evidence in the Administrative Record--namely, the memorandum from Major Diaz--was not originally before the