ALFORD v. USA

Filing 19

(Re-Docketed for Administrative Purposes Only) REPORTED ORDER: Granting in part with regard to the back pay claim but otherwise Denied 5 Motion to Dismiss - Rule 12(b)(1) and (6), and Remanded to the Board for Correction of Naval Records for a period not to exceed six months. The case is stayed pending the results of the remand. Signed by Judge Charles F. Lettow. (vdw) Copy to parties.

fJRi (!Court of jfeberal (!Claims
INAL
3Jn tbe Wniteb
~tates

No. 15-1583C
(Filed: June 23, 2016)

FILED
JUN 2 3 2016
U.S. COURT OF
FEDERAL CLAIMS

)
)
)
)
Plaintiff,
)
)
v.
)
)
UNITED ST A TES,
)
Defendant.
)
~~~~~~~~~~~~~~~ )

Military back pay and disability retirement
claims; applicability of the six-year statute
of limitations set out at 28 U.S.C. § 2501 to
the back pay claim; issue preclusion as to
that claim; jurisdiction over the disability
retirement claim; remand.

CARLOS A. ALFORD,

Carlos A. Alford, prose, Wilmington, North Carolina.
Ida Nassar, Trial Attorney, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C., for defendant. With her on the briefs were Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr.,
Director, and Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C. Of counsel was Major Cindie
Blair, General Litigation Division, Office of the Judge Advocate General, United States Marine
Corps, Department of the Navy, Washington, D.C.
ORDER
LETTOW, Judge.
Mr. Carlos A. Alford, a former United States Marine, seeks to reopen his 1984 otherthan-honorable discharge and obtain a determination whether he should have been retired
honorably for disability owing to service-connected post-traumatic stress disorder and
schizoaffective disorder. He also seeks restoration ofrank from private to sergeant and
correction of his records. The United States ("government") has filed a motion to dismiss the
action pursuant to Rule 12(b) of the Rules of the Court of Federal Claims ("RCFC"), arguing the
court lacks jurisdiction over the complaint. Def. 's Mot. to Dismiss ("Def. 's Mot."), ECF No. 5.
BACKGROUND
The facts of this case are recounted in a show-cause order previously issued by the court,
Alfordv. United States, No. 15-1583C, 2016 WL 1085108, at *1 (Fed. Cl. Mar. 18, 2016)
("Alford VIII"), and are restated briefly here. Mr. Alford enlisted in the United States Marine
Corps in 1981. Alford VIII, 2016 WL 1085108, at * 1. He was then allegedly deployed multiple
times to a post where he was "placed in harm's way," Compl. at 1-2, "shot at on several
1

occasion[s]," and "run over" by a vehicle, Pl.'s Suppl. Br. at 1, ECF No. 10. During that time,
Mr. Alford experienced depression. Compl. at 4. He would also walk in his sleep and wet the
bed. Compl. at 4. He was evaluated by a flight surgeon in 1984, who prescribed an antidepressant. Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n") at 4, ECF No. 7.
Subsequently, the Marine Corps discharged him on other-than-honorable conditions for
"misconduct due to minor disciplinary infractions." Alford VIII, 2016 WL 1085108, at *1 (citing
Compl. at 11 ). The partial record before the court neither identifies nor delineates those
infractions, but it does show that Mr. Alford had been drinking alcohol and that he was charged
with at least one infraction involving marijuana. See Def. 's Resp. to Show-Cause Order ("Def.'s
Resp.") Ex. A, at AR-14, -15, ECF No. 16. 1 He re-enlisted in 1985 by concealing his prior
discharge, and he was dishonorably discharged in 1988 for bad conduct. Alford VIII, 2016 WL
1085108, at* 1. In 1997, he filed a petition with the Naval Discharge Review Board ("Discharge
Board"), apparently arguing that his discharge was motivated by racial discrimination or,
alternatively, that his misconduct was excused or exculpated by either mental illness or alcohol
and drug abuse. See Alfordv. United States, No. 10-525C, slip op. at 2 (Fed. Cl. Mar. 9, 2011)
("Alford I"). The Discharge Board denied his petition that same year, finding Mr. Alford was
"responsible for his actions" and that there was no evidence "to substantiate the applicant's claim
that he was suffering from any stress disorder." Id. at 2-3.
In 1998, Mr. Alford again challenged the culpability of his misconduct in a petition
before the Board for Correction of Naval Records ("Navy Correction Board" or "Board"), which
denied his petition in 1999. Alford L slip op. at 3. The Board found that his misconduct was not
caused by a mental disability or illness because Mr. Alford submitted no evidence to support
such a finding. Id. at 3-4. Following that decision, in 2003 and 2006 Mr. Alford filed renewed
petitions challenging his other-than-honorable discharge, which the Navy Correction Board
denied in 2004 and 2006, respectively, for insufficient evidence. Id. at 4.
In 2010, Mr. Alford filed suit pro se in this court seeking correction of his unfavorable
discharge, disability retirement, and restoration of rank. Alford I, slip op. at 1. The court
construed his complaint in part as claiming back pay pursuant to the Military Pay Act, 3 7
U.S.C. § 204(a), and on that basis the court dismissed the claim as time-barred under the
applicable six-year statute of limitations because the claim had accrued upon his discharge in
1984. Id. at 6-8 (citing 28 U.S.C. § 2501). The court further construed his complaint as seeking
disability retirement benefits pursuant to 10 U.S.C. § 1201. Id. at 5. That claim was dismissed
on the ground that Mr. Alford had not raised it in his petitions to either the Discharge Board or
Navy Correction Board, which is a jurisdictional prerequisite to presentation of such a claim in
this court. Id. (citing Chambers v. United States, 417 F.3d 1218, 1224 (Fed. Cir. 2005)); see also
infra, at 7-8 (addressing the court's jurisdiction over disability retirement claims). Although Mr.
Alford had alleged mental illness in his board petitions, the court in Alford I held that those
petitions did not present a disability claim because "his demand in this respect was offered as the

1

Exhibit A to defendant's response to the show-cause order contains excerpts from the
Administrative Record attendant to a prior case brought by Mr. Alford in this court, viz., Alford
v. United States, 123 Fed. Cl. 62 (2015) ("Alford VII").

2

basis for an upgrade of his discharge, not as the basis for an award of disability retirement pay."
Alford I, slip op. at 5. 2
Mr. Alford then filed suit prose in the Eastern District of North Carolina, asserting the
same claims. See Compl., Alford v. Pfeiffer, No. 7:11-cv-38-BR (E.D.N.C. Feb. 2, 2011)
("Alford JJI") . To support his claims, Mr. Alford submitted the results of a polygraph test
regarding non-use of marijuana while in the Marine Corps, mental health records from an
examination conducted on November 18, 2011, and mental health records from a examination
conducted at a Veterans Affairs ("VA") hospital on January 20, 2012. See Alford VIII, 2016 WL
1085108, at *1 (citing Alford 111, No. 7:11-cv-38-BR, 2012 WL 548806, at *4 (E.D.N.C. Feb. 21,
2012)). In particular, the purpose of the examination on January 20, 2012 was to "determine
whether [Mr. Alford] was 'insane' due to a mental health disease when he committed the
offenses that [led] to his" discharge in 1984. Id. (quoting Alford III, 2012 WL 548806, at *4).
"The VA examiner opined that 'it is at least as likely as not that Mr. Alford was "insane" due to
a mental health disease when he committed the offenses that led to his dishonorable discharge
from service in June 1984 and in June 1988."' Id. (quoting Alford III, 2012 WL 548806, at *4).
The district court reviewed this evidence and found that it was "new evidence," which had not
been presented in any of Mr. Alford's prior petitions to the Navy Correction Board. Id. For that
reason, the district court dismissed the action on the ground that Mr. Alford's administrative
remedies had not been exhausted. Id.
Three days after that dismissal, Mr. Alford filed a petition with the Navy Correction
Board on Department of Defense Form 149. See Def.'s Resp. Ex. A, at AR-2189. In Box 5 of
that form, Mr. Alford requested that "[m]y discharge be upgraded." Id. Additionally, in a letter
attached to the form, Mr. Alford also claimed that he suffered a "mental health disease" prior to
his 1984 discharge. Id. at AR-2190. The Navy Correction Board then issued a six-sentence
letter denying reconsideration of its 1999, 2004, and 2006 decisions in his case, but it did not say
what that case was, nor did it address whether Mr. Alford suffered from a service-connected
mental disability that might support a claim for disability retirement. Compl. Ex. 1, Alford v.
Mabus, No. 7:13-cv-15-D (E.D.N.C. Jan. 22, 2013) (appending the Navy Correction Board's
letter dated January 10, 2013 denying his petition) ("Alford IV''). The Board's letter shows that
the Board did not consider the new evidence. See United States' Motion to Remand, Alford JV,
No. 7:13-cv-15-D (E.D.N.C. Aug. 23, 2013) (conceding the Board's letter was in error because it
failed to consider new evidence submitted by Mr. Alford).
Unsatisfied with the letter, Mr. Alford again filed suit pro se in district court, raising the
same claims and expressly requesting a "full medical discharge." Second Am. Compl. at 4,
Alford IV, No. 7:13-cv-15-D (E.D.N.C. Feb. 13, 2013); see also Am. Compl., Alford JV, No.
7:13-cv-15-D (E.D.N.C. Feb. 8, 2013). In response, government counsel conceded that the Navy
Correction Board's review of Mr. Alford's case was erroneous and filed a motion to remand the
matter to the Board. See United States' Motion to Remand, Alford JV, 7:13-cv-15-D (E.D.N.C.
2

While Alford I was pending, Mr. Alford filed a premature notice of appeal, which the
Court of Appeals for the Federal Circuit dismissed for lack of a final order by the trial court.
Alford v. United States, No. 2011-5048, slip op. at 2 (Fed. Cir. Apr. 5, 2011) (per curiam)
("Alford IF'). After the trial court entered judgment, Mr. Alford did not again appeal.
3

Aug. 23, 2013). The district court agreed, ordering a remand to allow the Board to address all of
the issues raised in Mr. Alford's complaint. Alford IV, No. 7:13-15-D, slip op. at 3 (E.D.N.C.
Jan. 10, 2014). 3 The district court noted that "[a]ccording to defendant[], remand will allow the
[Board] to review the other matters included in [Mr.] Alford's complaint that the [Board] did not
previously consider and permit the [Board] to make a final determination based on all available
information." Id. at 2-3. The court's order thus contemplated not only reconsideration of the
new evidence provided in Alford III, but also "any other matters presented that were not
previously considered." Id. at 3. 4
On remand, the Navy Correction Board apparently construed Mr. Alford's claims as a
request for reconsideration of petitions that he had previously submitted to the Board regarding
his discharge, i.e., whether his misconduct was culpable. See Alford VIII, 2016 WL 1085108, at
*2 (citing Pl.'s Suppl. Br. Ex. 3 (setting out initial pages of a decision by the Board rendered July
7, 2014)). The Board denied any relief to Mr. Alford on the ground that this new evidence was
neither "new" nor "material." Id. The Board did not address or comment on his claim for
disability retirement, which was raised in his petition dated February 24, 2012 and which was
encompassed by the remand order in Alford JV. Id.
Not accepting that result, Mr. Alford again filed suit pro se in the Eastern District of
North Carolina, which dismissed the action after concluding that jurisdiction was proper only in
the Court of Federal Claims because Mr. Alford sought money damages. Alford v. Mabus, No.
7:14-cv-195-D, 2015 WL 3885730, at *3 (E.D.N.C. June 23, 2015) ("Alford VI"). Perhaps
anticipating that dismissal, Mr. Alford had already filed a complaint in this court on March 2,
2015. See Alford VII, 123 Fed. Cl. at 65. But because he filed his complaint in the Court of
Federal Claims before the district court dismissed the action, he fell afoul of 28 U.S.C. § 1500,
and the court dismissed his case for that reason. Id. at 66.

While Alford IV was pending, but prior to the court's remand order, the Department of
Veterans Affairs concluded on December 23, 2013 that Mr. Alford "was insane at the time[s] in
question," i.e., May 29, 1981 to June 29, 1984 and May 29, 1985 to June 28, 1988. Pl.'s Supp.
Br. Ex. 1, at 3 (VA Rating Decision (Dec. 23, 2013)). Its conclusion was based, at least in part,
on the VA mental health examination conducted on January 20, 2012. Id. On March 22, 2014,
the VA wrote Mr. Alford a letter concluding that "for VA purposes" the "discharge for the
period of May 29, 1981 to June 29, 1984 is determined to be honorable." Id. at 1-2 (Letter from
VA Winston-Salem Regional Office to Mr. Alford (Mar. 22, 2014)). The letter did not explain
why the Department had reached this conclusion, except that the VA Rating Decision dated
December 23, 2013 had said "VA Rating Decision finds you meet the criteria for insanity at the
time in question, both periods of service." Id. at 2. The Department's letter further stated "[t]he
claimant is entitled to health care benefits under Chapter 17, Title 38 USC, for any disability
determined to be service connected for the period May 29, 1981 to June 29, 1984." Id. at 1.
3

4

Mr. Alford opposed the remand order in Alford IV and filed an appeal with the United
States Court of Appeals for the Fourth Circuit, which concluded that the remand order was a
non-final order over which it lacked appellate jurisdiction. Alford v. Mabus, 575 Fed. Appx. 170
(4th Cir. 2014) (per curiam) ("Alford V'').

4

Undaunted by these procedural obstacles, Mr. Alford filed this action on December 28,
2015. He alleges that he suffers from service-connected post-traumatic stress disorder and
schizoaffective disorder and that he should have been retired honorably for disability. Compl. at
2. He also alleges that his discharge was improper and that it should be upgraded with rank
restored, thereby inferentially alleging entitlement to back pay. Compl. at 7. In response, the
government filed a motion to dismiss, arguing that the court lacks jurisdiction over the
complaint. Def.' s Mot. at 3-6. The government construed the complaint as seeking back pay,
and it argued that such a claim is outside the court's six-year statute of limitations as determined
by Alford I. Id The government further argued that the court lacks jurisdiction over Mr.
Alford's claim for disability retirement because he still has not presented it to a military board.
Id On March 18, 2016, the court ordered the United States to show cause why the motion
should not be denied with respect to the disability retirement claim, due to the fact that Mr.
Alford had raised the issue in his cases before the District Court for the Eastern District of North
Carolina, which had remanded the matter to the Navy Correction Board, which in turn denied all
relief to Mr. Alford. The United States responded on April 28, 2016. Def.'s Resp. at 1.

JURISDICTION
A. Standards for Decision

1. Jurisdictional rules.
A plaintiff has the burden of establishing the court's jurisdiction. Reynolds v. Army &
Air Force Exch. Servs., 846 F.2d 746, 748 (Fed. Cir. 1988). Pursuant to the Tucker Act, codified
at 28 U.S.C. § 1491 (a)(l), the court has jurisdiction in pertinent part "to render judgment upon
any claim against the United States founded either upon ... any Act of Congress or any
regulation of an executive department ... for liquidated or unliquidated damages." Under this
portion of the Tucker Act, a plaintiff must show that his or her claim is based upon a statute or
regulation that "can fairly be interpreted as mandating compensation by the Federal Government
for the damages sustained." United States v. Mitchell, 463 U.S. 206, 216-17 (1983) (quoting
United States v. Testan, 424 U.S. 392, 400 (1976)). In addition, a plaintiff seeking to establish
jurisdiction in this court under this Act must show that his or her claim accrued within six years
of the date upon which the action is filed. See John R. Sand & Gravel Co. v. United States, 552
U.S. 130, 134-36 (2008) (citing 28 U.S.C. § 2501). If at any time the court concludes that it does
not have jurisdiction, it must dismiss the action. RCFC 12(h)(3).
2. Issue preclusion.
A threshold procedural issue is raised by the government's invocation of the doctrine of
issue preclusion, also called collateral estoppel. That doctrine "bars 'successive litigation of an
issue of fact or law actually litigated and resolved in a valid court determination essential to [a]
prior judgment."' Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New Hampshire v.
Maine, 532 U.S. 742, 748-49 (2001)). Issue preclusion applies to a litigant only if (1) "the issue
is identical to one decided" in a prior action to which that litigant was a party; (2) "the issue was
actually litigated in the first action;" (3) its resolution "was essential to a final judgment in the
first action;" and (4) the "plaintiff had a full and fair opportunity to litigate the issue in the first

5

action." In re Freeman, 30 F.3d 1459, 1465 (Fed. Cir. 1994) (citingA.B. Dick Co. v. Burroughs
Corp., 713 F.2d 700, 702 (Fed. Cir. 1983)). Even if these four elements are present, the court
retains limited discretion "to decide whether a particular case is appropriate for application of the
doctrine," id. at 1467, upon consideration of various exceptions regarding non-party status,
inability to obtain review, or unforeseeability as to whether the issue might arise again, see
Restatement (Second) Judgments § 28 (1982). This doctrine encompasses jurisdictional issues
and merits issues. Ackerman v. United States, 107 Fed. Cl. 612, 617-18 (2012) (dismissing case
after concluding plaintiff had previously litigated a statute-of-limitations issue) (citing Young v.
United States, 92 Fed. Cl. 425, 433-34 (2010), reconsid. denied, 94 Fed. Cl. 671 (2010), aff"d
417 Fed. Appx. 943 (Fed. Cir. 2011)).
B. Mr. Alford's Claim for Back Pay

Construing Mr. Alford's pleadings leniently owing to his prose status, see Telzrow v.
United States,_ Fed. Cl._,_, 2016 WL 3034436, at *5 (2016), his complaint seeks money
damages in the form of back pay pursuant to the Military Pay Act, 37 U.S.C. § 204. This statute
is money-mandating within the jurisdictional grant of the Tucker Act. See Martinez v. United
States, 333 F.3d 1295, 1315 (Fed. Cir. 2003). The government nonetheless argues that the court
lacks jurisdiction over this claim because it accrued upon Mr. Alford's discharge in 1984, and
thus that it is outside the six-year statute oflimitations set out in 28 U.S.C. § 2501. Def.'s Mot.
at 7. The government further argues that Mr. Alford is collaterally estopped from relitigating the
applicability of the statute of limitations because he previously litigated this issue and lost in
Alford I. Id. at 6; see also Alford I, slip op. at 7.
The court agrees that Mr. Alford is collaterally estopped from relitigating the
applicability of the statute of limitations to this claim. Alford I expressly ruled on this issue,
holding that Mr. Alford's back pay claim accrued in 1984 and thus was time-barred because he
filed his first complaint in this court in 2010. Alford I, slip op. at 7 (citing Martinez, 333 F.3d at
1311, which held that back pay claims accrue upon discharge). This issue was actually litigated
and essential to the judgment because the government moved to dismiss the action as outside the
statute of limitations, and the court dismissed the action in part on that ground. Id. at 6-7.
Further, Mr. Alford had a full and fair opportunity to litigate the issue in Alford I. After the
government filed its motion to dismiss, he filed a responsive brief arguing that the statute of
limitations should have been tolled due to a legal disability. Id. at 7; see also Pl. 's Opp'n to Mot.
to Dismiss at 2, Alford I, No. 10-525C (Fed. Cl. Jan. 20, 2011 ). The court in Alford I addressed
that argument, holding that Mr. Alford's 1997 and 1998 petitions to the Discharge Board and
Navy Correction Board showed that Mr. Alford "possessed sufficient mental capacity at least
through 1998 to pursue his legal rights." Alford I, slip op. at 7. Mr. Alford also argued that he
lacked knowledge of the unlawful discharge until 2009, when he allegedly "learned about defects
in the drug testing program administered by the Navy in the early 1980s." Id. at 7. The court
rejected that argument as well, finding that this information "ha[d] been publically available for
over 25 years." Id. Overall, this court has no "reason to doubt the quality, extensiveness, or
fairness of procedures followed in the prior litigation." Freeman, 30 F.3d at 1467. And, no
other considerations about or exceptions to the doctrine of issue preclusion suggest a different
result. For example, Mr. Alford was able to obtain appellate review, and he could have foreseen
that the statute of limitations would bar his case in the future if raised his back pay claim again.

6

See id. at 1467-68 (discussing exceptions and citing Restatement (Second) of Judgments§§ 2829). This court accordingly shall not revisit Alford I's determination that Mr. Alford's back pay
claim is time-barred. Accord Ackerman, 107 Fed. Cl. at 617 (dismissing plaintiff's back pay
claim on grounds of issue preclusion after finding that a previous decision had ruled that the
claim was outside the court's statute of limitations). 5
C. Mr. Alford's Claim for Disability Retirement Benefits
Again construing Mr. Alford's complaint leniently, the court understands his disability
allegations as an assertion of entitlement to disability retirement benefits under 10 U.S.C. § 1201,
which is a money-mandating statute within the meaning of the Tucker Act. Fisher v. United
States, 402 F.3d 1167, 1174 (Fed. Cir. 2005). If Section 1201 is invoked, this court "has no
jurisdiction over disability retirement claims until a military board evaluates a service member's
entitlement to such retirement in the first instance." Chambers, 417 F.3d at 1225 (citing Furlong
v. United States, 152 F. Supp. 238, 240-41 (Ct. Cl. 1957)). Accordingly, the court may not
exercise jurisdiction unless "the appropriate military board either finally denies such a claim or
refuses to hear it." Id. at 1224. Relying on Chambers, the government initially sought dismissal
of Mr. Alford's disability claim on the ground that Mr. Alford has never presented it to a board.
Def.' s Mot. at 6. The government further argued that because Alford I dismissed this claim in
2011 for lack of jurisdiction, Mr. Alford is collaterally estopped from relitigating it. Id.
The record does not support these arguments. First, Mr. Alford's petition filed on
February 24, 2012 to the Navy Correction Board implicitly raised the issue of disability
retirement benefits. In responding to the court's order to show cause, the government now
concedes that Mr. Alford did "complain that the Navy has failed to recognize his mental illness"
and acknowledges that "one might assume that Mr. Alford was seeking all benefits that
recognition of his mental illness might bring him," meaning disability retirement benefits. Def.'s
Resp. at 7. Second, Mr. Alford's complaint in Alford IV presented a claim for disability
retirement to the District Court for the Eastern District of North Carolina, along with other
claims for relief, and that court's remand order in Alford IV directed the Navy Correction Board
to consider all of Mr. Alford's claims in that case. Alford IV, slip op. at 2 ("[R]emand will allow
the [Board] to review the other matters included in [Mr.] Alford's complaint."). As a result, the
Board should have considered whether Mr. Alford was entitled to disability retirement benefits,
but it did not do so. Its July 7, 2014 denial of Mr. Alford's disability claim was therefore either a
refusal to consider it or a denial without explanation. Accordingly, the court has jurisdiction
over Mr. Alford's disability claim. His remaining claims for equitable relief are redressable in
this court to the extent they are subordinate to this claim for money damages. See James v.
Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998). Moreover, because Mr. Alford has now presented
his claim to the Navy Correction Board, the government's collateral estoppel argument is
inapposite. See, e.g., Murthy v. Vilsack, 609 F.3d 460, 466 (D.C. Cir. 2010) (holding that
dismissal of an action for failure to exhaust administrative remedies does not preclude refiling of
the action after exhaustion).
5

Even if issue preclusion did not apply, the court would still find the claims time-barred
pursuant to Section 2501 of Title 28. Mr. Alford alleges that he was discharged in 1984 and
1988, roughly 32 and 28 years ago, respectively.
7

REMAND
The government concurs that if the court does have jurisdiction, then it should remand
this claim to the Navy Correction Board. Def.'s Resp. at 8. Notably, the court has discretion to
grant the government's request for a remand, without admitting error, so long as the request is
not "frivolous or in bad faith." Bias v. United States, 124 Fed. Cl. 663, 667 (2016) (quoting SKF
USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001 )). Accordingly, on the merits of
Mr. Alford's claim for disability retirement benefits, the court remands the action to the Navy
Correction Board to decide that claim in the first instance. Because the Board previously did not
address this claim with any particularity, there is virtually no agency record for the court to
review, and in these circumstances a court should remand the matter to the agency rather than
develop a new record. See Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009) (citing
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985)); see also 28 U.S.C. §
1491 (a)(2) (providing a procedural authorization for the court "[i]n any case within its
jurisdiction, ... to remand appropriate matters to any administrative or executive body or official
with such direction as it may deem proper and just."); RCFC 52.2(a) (addressing procedural
aspects of a remand of a matter to the appropriate agency). The court expresses no opinion as to
the merits of Mr. Alford's claim for disability retirement benefits.

CONCLUSION
The government's motion to dismiss is GRANTED with regard to the back pay claim,
but it is otherwise DENIED. Mr. Alford's claim for disability retirement pay is REMANDED to
the Board for Correction of Naval Records for a period not to exceed six months. See RCFC
52.2(b)(l)(B). The Board is ORDERED to decide whether Mr. Alford is entitled to disability
retirement pay or benefits on the basis of his allegedly service-connected post-traumatic stress
disorder and schizoaffective disorder.
This case is stayed pending the results of the remand. See RCFC 52.2(b )(1 )(C). The
court requests that the government submit status reports every 90 days during the pendency of
the remand, regarding the progress of the ensuing proceeding before the Board. See RCFC
52.2(b )(1 )(D).
It is so ORDERED.

8