TERRY v. USA

Filing 54

UNREPORTED ORDER denying 50 Motion for Reconsideration - Rule 59(a). Signed by Senior Judge Eric G. Bruggink. (jpk1) Service on parties made.

In the United States Court of Federal Claims
No. 17-1100C
(Filed: October 28, 2019)
******************
EDGAR A. TERRY,
Plaintiff,

Military pay;
Failure
to
promote; Wrongful discharge;
ABCMR; Reconsideration.

v.
THE UNITED STATES,
Defendant.
******************
ORDER
On July 31, 2019, we issued an Opinion and Order, granting
plaintiff’s motion for judgment on the administrative record in part and
remanding the case to the Army Board for Correction of Military Records.
On July 28, 2019, plaintiff filed a motion for reconsideration concerning
two of the grounds on which we did not order relief. We ordered
defendant to respond, which it has done. Because plaintiff has not shown a
change in the law, new evidence, or a clear error of law or fact that would
result in a manifest injustice, we deny the motion.
A. Failure to Promote
We held for plaintiff on the issue of the Army’s failure to promote
plaintiff, finding that the neither the Army nor the Army Board for
Correction of Military Records (“ABCMR”) had explained why plaintiff’s
education waiver had expired. Terry v. United States, 144 Fed. Cl. 150,
158 (2019). Plaintiff raised a separate issue concerning the procedural
appropriateness of the letter of reprimand that was present in his personnel
file reviewed by the promotion boards. If the reprimand was procedurally
deficient and thus not properly part of his file, that error would constitute a
separate basis upon which relief could be ordered.

Plaintiff argued to the ABCMR and the court, and now argues again,
that he was not provided with some of the supporting information to the
reprimand as required by Army regulations because they were not also
present in his personnel file. The board, however, held that plaintiff’s
signature on the third enclosure indicated that he had received the
reprimand and supporting documentation (first two enclosures). We
upheld this finding as neither arbitrary nor capricious. Id. at 157.
Although plaintiff’s argument on the point is more fulsome in his motion
for reconsideration, it amounts to speculation, asking the court to read into
the record presumptions of irregularity and to reweigh the evidence already
considered by the board. We decline to do so.
As we stated in our July opinion, we recognize the difficulty that
plaintiff faces in attempting to disprove receipt of something he argues he
did not receive, but we cannot reweigh the evidence for the board. The
ABCMR considered the issue, found that plaintiff’s signature confirming
receipt of the reprimand and documentation to be sufficient indication that
plaintiff received the required documents. We cannot and will not second
guess that conclusion now.
B. Wrongful Discharge
We held against plaintiff on the issue of wrongful discharge, finding
neither a legal requirement that the Army retain plaintiff for further
treatment nor the factual predicate that he was not medically fit to
demobilize and discharge. Id. at 159. The ABCMR considered the
evidence and found it unavailing for plaintiff. We found no irrationality in
that conclusion. Id. Plaintiff now argues that the record is in error,
particularly that the meeting with an Army doctor on December 23, 2014, at
which he was cleared to demobilize, did not in fact take place. Plaintiff
avers that he was demobilized on December 17, 2014, and traveled to
California on that same day, making it a factual impossibility that he was
seen by Dr. Srey in Texas six days later. Plaintiff thus alleges that Dr. Srey
signed off on his release without having fully evaluated him and that, in any
event, the record of his medical clearance is unreliable and should not have
been relied on by the board or the court.
Plaintiff also argues that the Army erred in failing to process his
medical retention evaluation orders. Had the Army done so, plaintiff
argues that he would have received an evaluation that may have resulted in
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an extension of his mandatory release date to allow for treatment of his
bunions should that have been found to be warranted.
Defendant answers that plaintiff is again asking the court to reweigh
the evidence for the ABCMR, which is not a proper basis for
reconsideration. Defendant also avers that plaintiff’s medical retention
orders were not processed because the Army had already completed the
medical evaluation of plaintiff before discharge, pointing to the December
2014 and February 2015 evaluations. We agree with defendant on both
points.
Although there is a discrepancy with the date of plaintiff’s December
2014 medical evaluation, we do not believe that the issue of the precise
timing of Dr. Srey’s conclusion undercuts the merits of it. Plaintiff was
demobilized prior to December 23, 2014, making it unlikely that he was
seen by Dr. Srey in Texas on that date. It is clear from the medical record,
however, that plaintiff was examined by Dr. Srey on November 25, 2014,
and that on December 23, 2014, Dr. Srey recorded his conclusion that
“[p]atient is clear to demobilize.” AR 13.d. Surgical options were
discussed but not mandated by Dr. Srey. Instead a “[r]eturn to the podiatry
clinic in 2-3 months for follow up care” is all that was indicated in his
record. Id. Likely, on December 23, the doctor was recording his
impressions in the electronic recording system from the earlier November
visit. Whether Dr. Srey actually saw plaintiff on that date is immaterial to
his ultimate conclusion that plaintiff was medically cleared. 1
When seen in California on February 18, 2019, the treating physician
there recorded that plaintiff’s bunions were “relatively minor” and would
“probably be made worse with surgery.” AR 13.g. The doctor further
noted that such a surgery would be “largely cosmetic in nature” and might
even “lead to decreased function.” Id. “It is hard to imagine why he
We are unconvinced that the record of the date casts a shadow on the
conclusions of the treating doctor. The record reveals that the doctor
reviewed plaintiff’s medical history, plaintiff’s own report of his symptoms,
and x-rays taken of his feet. Further, the fact that this medical record states
that plaintiff was a reservist from Alabama, rather than California, does not
cause us to doubt its reliability. The record from the doctor’s visit in
February 2015 notes that plaintiff resided in California but was originally
from Alabama. AR 13.g.
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would need cosmetic surgery on this. But, if he wants surgery, I’m sure he
can get surgery from somewhere.” Id.
The record is clear that, despite plaintiff’s insistence otherwise, the
two physicians that evaluated plaintiff contemporaneous with his
demobilization and discharge found that surgery was unnecessary and
believed that he was medically clear to demobilize. The board relied on
these statements and found against plaintiff on his claim that he should have
been retained in service for medical treatment. As at the time of our
opinion, we have no basis on which to question this conclusion. It was
neither arbitrary, capricious, nor contrary to law. Because plaintiff has not
established grounds for reconsideration, the motion is denied.

Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge

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