BOYLE v. USA

Filing 33

PUBLISHED OPINION -Denying Plaintiff's 19 Motion for Judgment on the Administrative Record and granting defendant's cross-motion. The Clerk of the Court is directed to enter judgment for defendant. No costs. Signed by Judge Christine O.C. Miller. (smg) Copy to parties.

In the United States Court of Federal Claims
No. 10-853C
(Filed October 31, 2012)
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ADAM M. BOYLE,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
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Military pay; motion for judgment on the
administrative record; review of military
correction board action; disability pay;
remand pursuant to RCFC 52.1; Army
Reg. 635-200 ¶ 14-17.g.(1) (June 6,
2005); post-traumatic stress disorder;
presumption of regularity.

Jason E. Perry, Cheshire, CT, for plaintiff.
Russell J. Upton, Washington, DC, with whom was Assistant Attorney General Stuart
F. Delery, for defendant. Major Wayne H. Williams, U.S. Army Litigation Division,
Arlington, VA, of counsel.
MEMORANDUM OPINION AND ORDER
MILLER, Judge.
This review of a rejection of a former servicemember’s request to the Army Board for
Correction of Military Records (the “ABCMR” or the “correction board”) to set aside his
discharge, to reinstate him for continued disability processing, and to award him back pay
is before the court after a second remand to the ABCMR. The key issue presented is whether
the ABCMR properly has determined that plaintiff’s post-traumatic stress disorder (“PTSD”)
was not the direct or substantial contributing cause of the actions that led to plaintiff’s
discharge from the United States Army (the “Army”). Further argument is deemed
unnecessary.

FACTS
I. Background and facts
In a previous memorandum opinion, the court set forth the facts underlying this action.
See Boyle v. United States, 101 Fed. Cl. 592, 594-95 (2011). For purposes of this opinion,
it suffices to recount the following.
Plaintiff served in the Army from January 2000 to January 2009, when he was
discharged pursuant to an administrative separation. Id. at 594-95. Plaintiff was diagnosed
with PTSD in May 2007 after returning from his second deployment in Iraq. Id. at 594.
Plaintiff began having disciplinary problems, including failing to report to his assigned place
of duty and being absent without leave from his unit, and engaging in violent altercations
starting in September 2007 and continuing through early April 2008. Id.
Plaintiff was referred to a Medical Evaluation Board (the “MEB”) in June 2008 after
a medical evaluation revealed that plaintiff no longer met retention standards. Id. at 594-95.
In July 2008 plaintiff’s commanding officer initiated separation proceedings against plaintiff
based on various acts of misconduct. Id. at 595. After plaintiff exercised his rights to
counsel and an administrative hearing, a separation board convened on October 29, 2008.
Id. The MEB convened the same day, concluding that plaintiff did not meet retention criteria
and referring him to the Physical Evaluation Board (the “PEB”) for further evaluation. Id.
Because plaintiff was facing both medical-based and administrative separation, Army
regulations required the General Court-Martial Convening Authority (the “GCMCA” or the
“separation authority”) to elect the channel through which plaintiff’s discharge would be
processed. Id. On December 11, 2008, the GCMCA approved plaintiff’s administrative
separation without issuing written findings. Id. The GCMCA’s decision did not state
whether or not plaintiff’s PTSD caused the acts of misconduct that resulted in his separation.
Id. Plaintiff was discharged on January 6, 2009. Id.
In May 2009 plaintiff sought review by the ABCMR of his discharge, arguing that he
should be reinstated and evaluated for physical disability. Id. The ABCMR denied the
application on March 4, 2010, finding that there was no evidence that plaintiff’s PTSD
caused him not to know the difference between right and wrong and concluding that plaintiff
was properly discharged. Id.

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II. Procedural history
Plaintiff filed the complaint in this case on December 10, 2010, alleging that the
decision to discharge him—and thus deny him pay to which he would otherwise be entitled
pursuant to 37 U.S.C. § 204 (2006)—was arbitrary, capricious, and contrary to law in that
it violated Army regulations and plaintiff’s constitutional due process rights. Id.
On November 7, 2011 the court ruled on the parties’ cross-motions for judgment on
the administrative record. See id. at 592. The court ruled in favor of defendant on six of the
seven grounds for error asserted by plaintiff. See id. at 596-603. With respect to the seventh
ground—that the GCMCA was required to process plaintiff’s separation through medical,
rather than administrative, channels—the court found that neither the GCMCA nor the
ABCMR had made a proper determination whether plaintiff’s PTSD was the direct or
substantial contributing cause of plaintiff’s misconduct leading to plaintiff’s separation
pursuant to Army Regulation 635-200 ¶ 14-17.g.(1) (June 6, 2005), which requires separation
via medical channels if such a direct or substantial contributing cause is found. See 101 Fed.
Cl. at 603. Consequently, the court remanded the matter to the ABCMR for a determination
on whether plaintiff’s PTSD was a direct or substantial contributing cause of his misconduct.
See id. at 604.
On February 3, 2012 the ABCMR filed its decision on remand, dated January 17,
2012, and the parties filed a joint status report on February 8, 2012. On February 9, 2012 the
court entered a scheduling order requiring defendant to supplement the administrative record
with the ABCMR’s decision and setting a briefing schedule for cross-motions for judgment
on the supplemented administrative record. Defendant supplemented the administrative
record on February 16, 2012. After an intervening order entered on June 19, 2012 requiring
supplemental briefing addressing Sawyer v. United States, 930 F.2d 1577 (Fed. Cir. 1991),
rev’g 18 Cl. Ct. 860 (1989), the parties completed briefing on June 26, 2012.
The court entered an order on July 6, 2012 remanding the matter a second time to the
ABCMR. Looking to Sawyer’s guidance that “in disability cases either the review boards
or the corrections board is competent to make a disability determination in the first
instance[,]” the court noted that neither the ABCMR nor the GCMCA had determined in the
first instance, or “two instances,” prior to plaintiff’s filing his complaint that plaintiff’s PTSD
was not the direct or substantial contributing cause of the actions that led to plaintiff’s
discharge. Boyle v. United States, No. 10-853C, at 2 (Fed. Cl. July 6, 2012) (“Second
Remand Order”) (quoting Sawyer, 930 F.2d at 1581). The court then found that the ABCMR
had failed on remand to make a de novo determination as to whether plaintiff’s PTSD was
a direct or substantial contributing cause of plaintiff’s misconduct. Id. at 4. The court
therefore remanded the matter to the ABCMR for such a determination. Id.

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On August 29, 2012 the ABCMR filed its decision on second remand, dated August
13, 2012, and the parties filed a joint status report on September 11, 2012, in which plaintiff
requested further briefing and defendant took the position that further briefing was
unnecessary. On September 21, 2012 the court entered an order requiring defendant to
supplement the administrative record with the ABCMR’s decision on second remand and
memorializing that the parties’ motions were fully briefed and required no further
supplementation. Defendant supplemented the administrative record on September 25, 2012.
DISCUSSION
I. Jurisdiction
Plaintiff’s complaint and the subsequent cross-motions for judgment on the
administrative record are grounded in 37 U.S.C. § 204 (the “Military Pay Act”). It is well
established that the Military Pay Act is a money-mandating statute and that claims for back
pay based on the Military Pay Act are within the jurisdiction of the Court of Federal Claims.
Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006).
II. Standard of review
1. Judgment on the administrative record
The parties filed cross-motions for judgment on the administrative record pursuant to
RCFC 52.1, which provides a procedure for parties to seek an expedited trial on a “paper
record, allowing fact-finding by the trial court.” Bannum v. United States, 404 F.3d 1346,
1356 (Fed. Cir. 2005). The parties are limited to the agency record and individual statements
of fact submitted under RCFC 52.1. The court must make its findings of fact from this
record as if it were conducting a trial. Id. at 1357.
2. Decisions of boards for correction of military records
Plaintiff challenges the decision rendered by a correction board. The court reviews
such decisions under a deferential standard so as not to “disturb the decision of the
[correction board] unless it is arbitrary, capricious, contrary to law, or unsupported by
substantial evidence.” Barnick v. United States, 591 F.3d 1372, 1377 (Fed. Cir. 2010) (citing
Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005)). “This [standard of
review] necessarily limits the Court of Federal Claims’ review to the administrative record,”
except in extremely limited circumstances when the court may consider “‘extra-record’
evidence.” Metz, 466 F.3d at 998. Plaintiff’s burden is to show by “cogent and clearly
convincing evidence” that the decision of the correction board fails this standard. Wronke
v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986) (citation omitted) (internal quotation marks
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omitted). Plaintiff also must overcome the presumption of regularity that attaches to the
actions of a correction board. See Richey v. United States, 322 F.3d 1317, 1326 (Fed. Cir.
2003) (noting “the presumption of regularity that attaches to all administrative decisions” in
the context of military board action).
III. Whether the Army was required to process plaintiff through medical channels
Plaintiff contends that the decision of the correction board not to set aside plaintiff’s
administrative discharge and reinstate him for disability processing was “arbitrary,
capricious, contrary to law, or unsupported by substantial evidence.” See Barnick, 591 F.3d
at 1377. More specifically, plaintiff puts forward that, when a soldier is simultaneously
processed for administrative separation and subject to a medical evaluation, Army Reg. 635200 ¶ 14-17 provides that the GCMCA will decide whether he will be administratively or
medically discharged. This determination is at the discretion of the GCMCA unless Army
Reg. 635-200 ¶ 14-17.g.(1) applies. The latter regulation states that separation via medical
channels “is required if the [s]oldier has an incapacitating physical or mental illness that was
the direct or substantial contributing cause of the conduct, and action under the [Uniform
Code of Military Justice] is not initiated.” Id. ¶ 14-17.g.(1). As discussed above, the court
remanded this matter on a second occasion to the ABCMR for a determination whether
plaintiff’s PTSD was the direct or substantial contributing cause of the conduct that led to
plaintiff’s separation.
On second remand the ABCMR noted that the acts of misconduct found to be the
reasons for plaintiff’s separation in October 2008 included “being AWOL [absent without
leave][,] acting disorderly and resisting arrest[,] assaulting a female[,] failing to go at the
time prescribed to his place of duty[,] assaulting a second female[, and] violating his profile
by consuming alcohol.” ABCMR Rec. of Prdgs. dated Aug. 13, 2012, at 3. 1/ With respect
to the first of what the ABCMR referred to as plaintiff’s “accountability offenses,” the
ABCMR found that plaintiff’s administrative separation board testimony “reflects that he
knew when and where he was supposed to be, thought that if he asked to be excused from
duty his request would be denied, and, with knowledge that he would be punished in some
way upon his return, chose to leave rather than report.” Id. at 6. The ABCMR noted that
plaintiff did not offer any explanation that suggested his PTSD symptomology caused his
actions, and found that “[h]e weighed the consequences of his choice and elected to remain
away.” Id.

1/ Defendant did not separately number the pages of the document submitted as the
second supplement to the administrative record, and the court accordingly refers to the
ABCMR Record of Proceedings dated August 13, 2012, as that document is paginated.
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The first incident in which plaintiff assaulted a female involved plaintiff’s thengirlfriend. Id. The ABCMR noted that plaintiff did not deny assaulting her, and his
testimony offered only the explanation that their relationship was “complicated,” including
plaintiff’s suspicions of infidelity and a false allegation that the woman had been
impregnated by plaintiff. Id.
The second incident of assault occurred at a New Year’s Eve party in plaintiff’s home,
at which plaintiff had been drinking. Id. Plaintiff fought with a male guest and grabbed a
female guest. Id. The ABCMR found that plaintiff offered no testimony implicating PTSD
as having caused or contributed to plaintiff’s behavior. Id.
The ABCMR referred to an April 3, 2008 incident in which plaintiff was arrested for
disorderly conduct and resisting arrest as “[p]erhaps the most significant act of misconduct
in [plaintiff’s] pattern of misconduct[.]” Id. Plaintiff had been drinking at a bar and accepted
drinks purchased by another patron. Id. Plaintiff did not remember anything beyond that
point and was arrested by an officer “who required assistance from other officers both at the
bar and en route to the police station[.]” Id. at 6-7. Pointing to the arresting officer’s
observation of plaintiff’s “highly-intoxicated state,” the ABCMR found that nothing in his
testimony suggested PTSD symptomology as a factor in plaintiff’s actions. Id. at 7.
Following the April 3, 2008 incident, plaintiff failed to return from leave when
directed by his commander. Id. at 6. The ABCMR noted that plaintiff’s testimony did not
address this misconduct, but the record indicated that plaintiff accepted non-judicial
punishment pursuant to Article 15 of the Uniform Code of Military Justice and did not appeal
the findings or punishment. Id. The ABCMR further noted that plaintiff “did not attribute
his absence to PTSD symptomology.” Id.
Plaintiff was prescribed antidepressants and sleep medications to treat his PTSD and
depression. Id. at 7. The ABCMR found that, despite plaintiff’s PTSD diagnosis, no
evidence suggested that plaintiff engaged in significant misconduct when present for duty,
citing the testimony of plaintiff’s supervisor that plaintiff was helpful at work. Id. The
ABCMR further cited testimony of plaintiff’s first sergeant that plaintiff’s conduct improved
after the April 3, 2008 incident. Id.
The ABCMR remarked that plaintiff “repeatedly” was advised to avoid alcohol due
to negative interactions with his medication and its effects on his judgment and conduct. Id.
The ABCMR found no evidence of record that plaintiff drank as a means of self-medication
or that his drinking was otherwise related to his PTSD. Id. Nor had plaintiff offered any
evidence that his PTSD caused him to drink. Id. The ABCMR further noted that plaintiff’s
misconduct ceased after he was notified of separation action. Id. The ABCMR concluded

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that plaintiff “showed he was able to comply with [doctor’s orders not to drink] when he
chose.” Id.
The ABCMR similarly found that plaintiff “was able to avoid engaging in misconduct
when he so chose[,]” pointing out that his misconduct “occurred in the context of deliberate
decisions not to appear for duty, a sour ending to his relationship with a then girlfriend, and
his poor choices regarding alcohol use in social settings.” Id. The ABCMR therefore found
no causal connection between plaintiff’s PTSD and his pattern of misconduct. 2/ Id.
The court finds that the ABCMR complied with the requirements of Army Reg. 635200 ¶ 14-17.g.(1) in concluding that plaintiff’s PTSD was not a direct or substantial
contributing cause of the misconduct that led to plaintiff’s separation. The ABCMR has
applied the standard called for in Army Reg. 635-200 ¶ 14-17.g.(1) and has set forth the
factual underpinnings of its findings in a clear, logical manner. The ABCMR has addressed
fully the matters previously signaled by the court. See 101 Fed. Cl. at 603; Second Remand
Order, at 4. Accordingly, the ABCMR did not act in an arbitrary or capricious manner, or
in a manner contrary to law, in denying plaintiff’s application for correction of records.
Plaintiff also contends that the ABCMR’s decision is unsupported by substantial
evidence, arguing that the evidence in the administrative record shows that plaintiff’s PTSD
was the direct or substantial cause of plaintiff’s misconduct. See Pl.’s Br. filed Mar. 19,
2012, at 7. Plaintiff puts forth the statements of plaintiff’s MEB physician that plaintiff had
“[i]ntrusive thoughts with feelings of stress, fear, anger, and an overall feeling of
aggression,” and “a significant Post Traumatic Stress Disorder [that] appears to have been
refractory to treatment, though he has noted mild improvement. . . . He experiences
flashbacks which cause him to ‘zone out’ whenever he is around weapons fire. He continues
to suffer from anger management issues[.]” Id. at 7 (quoting AR 239-40). Plaintiff also cites
statements of plaintiff’s former commander indicating that the charges against plaintiff were
contrary to his observations of plaintiff’s pre-diagnosis character. Id. at 8.
Plaintiff does not argue that there was insufficient evidence in the record for the
ABCMR to conclude that plaintiff’s PTSD had no causal connection with the actions that led
to plaintiff’s separation. Rather, plaintiff argues that evidence in the record is sufficient to
find that there was such a causal connection. The evidence that plaintiff has put forth,
however, is not “cogent and clearly convincing.” Wronke, 787 F.2d at 1576 (citation
omitted). That a former commanding officer observed a difference in plaintiff’s character
prior to plaintiff’s PTSD diagnosis does not establish any causal link between plaintiff’s

2/ Per the court’s second remand order, the ABCMR also clarified that its reference
to “any medical condition [plaintiff] now claims” in the ABCMR’s first decision on remand
referred only to plaintiff’s PTSD. ABCMR Rec. of Prdgs. dated Aug. 13, 2012, at 7.
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PTSD and the actions that led to his separation. The statements of plaintiff’s MEB physician
are somewhat more convincing in that they provide evidence that plaintiff’s PTSD increased
his feelings of anger and aggression, which are relevant to the incidents of assault and to
plaintiff’s arrest. They do not establish a causal link, however, between plaintiff’s PTSD and
those actions, particularly in light of the evidence in the record that other factors—the “sour
ending” of a relationship and plaintiff’s action to consume alcohol despite medical orders to
abstain—played a substantial role in plaintiff’s behavior. Moreover, the MEB physician’s
statements do not bear on plaintiff’s accountability offenses, which do not appear to have
been motivated by any increased feelings of anger or aggression on plaintiff’s part.
Therefore, the court finds that the ABCMR’s decision is supported by substantial evidence.
CONCLUSION
The decision of the ABCMR on second remand is not arbitrary, capricious, or contrary
to law, and it is supported by substantial evidence in the record. Defendant’s cross-motion
for judgment on the administrative record is therefore granted, and plaintiff’s motion for
judgment on the administrative record is denied. Accordingly, the Clerk of the Court shall
enter judgment for defendant.
IT IS SO ORDERED.
No costs.

/s/ Christine O.C. Miller
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Christine Odell Cook Miller
Judge

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