56 F.3d 279 (D.C. Cir. 1995), 94-5149, Kidwell v. Department of Army, Bd. for Correction of Military Records

Docket Nº:94-5149.
Citation:56 F.3d 279
Party Name:Billy Ray KIDWELL, Appellant v. DEPARTMENT Of the ARMY, BOARD FOR CORRECTION OF MILITARY RECORDS, Appellee.
Case Date:June 13, 1995
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 279

56 F.3d 279 (D.C. Cir. 1995)

Billy Ray KIDWELL, Appellant

v.

DEPARTMENT Of the ARMY, BOARD FOR CORRECTION OF MILITARY

RECORDS, Appellee.

No. 94-5149.

United States Court of Appeals, District of Columbia Circuit

June 13, 1995

Argued April 3, 1995.

Page 280

[Copyrighted Material Omitted]

Page 281

Appeal from the United States District Court for the District of Columbia (No. 93cv02238).

Christopher G. Smith, appointed by the court, Washington, DC, argued the cause for appellant. With him on the briefs was Charles F. Lettow, Washington, DC.

Marina U. Braswell, Asst. U.S. Atty., Washington, DC, argued the cause for appellee. With her on the brief were Eric H. Holder, Jr., U.S. Atty., and R. Craig Lawrence, Asst. U.S. Atty., Washington, DC. John D. Bates, Asst. U.S. Atty., Washington, DC, entered an appearance.

Before: WALD, WILLIAMS and TATEL, Circuit Judges.

TATEL, Circuit Judge:

Billy Ray Kidwell asked the Army Board for Correction of Military Records to change his military files to indicate a "medical" discharge rather than the general discharge they now reflect. When the Board refused, Kidwell filed suit in the district court under the Administrative Procedure Act. The district court dismissed his suit, concluding that Kidwell's claim was, in essence, one for money damages that he must bring in the Court of Federal Claims. In the alternative, the district court granted the government's motion for summary judgment, ruling that the Board had acted on substantial evidence and in a reasonable manner when it denied Kidwell's request. Although we conclude that the district court should not have dismissed the suit for lack of jurisdiction, we agree with its alternative ruling on the merits, and affirm the decision of the Board.

I.

Billy Ray Kidwell entered active duty with the Army in January, 1968. In August of that year, he was disciplined for being AWOL from his unit for four days. In January of 1969, he was detailed to Vietnam as an automotive repairman. While in Vietnam, he was disciplined for being AWOL for a day. He was also reduced in rank from private first class to private for carrying a pistol without authorization. Kidwell left Vietnam and returned to the United States in December of 1969, where his disciplinary problems continued. He was disciplined for speeding, and then for failing to report to duty. In September 1970, he was charged with being AWOL for several weeks during the summer, at which point he requested a discharge in lieu of a court-martial. The Army agreed, discharging him in October on "undesirable" grounds.

In 1977, Kidwell asked the Army Board for Correction of Military Records to upgrade his discharge to a "general discharge"--a step, but still a significant one, below "honorable." The Board, a civilian body authorized to "correct any military record ... when [it] considers it necessary to correct an error or remove an injustice," 10 U.S.C. Sec. 1552(a)(1) (Supp. V 1993), granted Kidwell's request.

Kidwell now claims that the disciplinary problems leading to his discharge were related to a psychological disorder, "post traumatic stress disorder" ("PTSD"), which he developed while in Vietnam. Many Vietnam veterans have been diagnosed with varying forms of PTSD, which is defined by psychiatrists as "the development of specific symptoms following a psychologically traumatic event that is beyond the range of usual human experience." Michael J. Davidson, Note, Post-Traumatic Stress Disorder: A Controversial Defense for Veterans of a Controversial War, 29 Wm. & Mary L.Rev. 415,

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421 (1988) (citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (3rd ed. 1980)). PTSD is triggered by a particularly traumatic "stressor" event. See id. According to Kidwell, his "stressor" occurred just two months before his return to the United States, when he observed a friend in his unit commit suicide by firing a grenade launcher into his head.

In the opinion of at least two federal agencies, Kidwell's conduct since his discharge has been indicative of a person afflicted with PTSD. In 1987, the Social Security Administration held a disability determination hearing at which an administrative law judge considered evidence regarding Kidwell's sporadic employment history, his various treatments for physical and psychiatric disorders, and his occasional imprisonment for various thefts and assaults. See Kidwell Claim Decision, Office of Hearing and Appeals, Social Sec. Admin., Dep't of Health & Human Servs. (Sept. 11, 1987) [hereinafter SSA Decision], in Joint Appendix [J.A.] at 7-14. The record suggests that the ALJ did not consider any evidence from the period prior to Kidwell's discharge, and little evidence from prior to 1974. The ALJ nonetheless concluded that Kidwell was disabled and entitled to disability insurance benefits dating back to October, 1970. In particular, he noted that "[t]he evidence strongly indicates the [applicant's] problems have been so severe as to preclude substantial gainful activity since 1970 when he was discharged from the Army, even though his signs, symptoms, and clinical findings were not diagnosed as [PTSD] until recently." Id. at 6, in J.A. at 12. The Department of Veterans' Affairs reached a similar conclusion in 1991, although it found only a 30% disability rating. In reviewing that decision, the Board of Veterans' Appeals found that Kidwell's "PTSD has been severe in degree since 1984, and that it probably has precluded him from securing or following a substantially gainful occupation since then." Kidwell Appeal, Bd. of Veterans' Appeals, Dep't of Veterans' Affairs, No. 89-40 917 at 3 (Oct. 5, 1994), in J.A. at 58. As a result, it ruled, Kidwell deserved a 100% disability rating. Id. at 10, in J.A. at 65.

Soon after the Social Security Administration determined that Kidwell had been disabled since 1970, Kidwell filed a second request with the Army Board for Correction of Military Records asking it to change his "general discharge" to a "medical discharge." Although the Board can consider requests filed at any time "in the interests of justice," 10 U.S.C. Sec. 1552(b) (Supp. V 1993), it ruled that no such interests existed in Kidwell's case and concluded that Kidwell had filed his request too late. Kidwell sued. The district court affirmed the Board, but a panel of this court directed the district court to remand the case for the Board to hear Kidwell's request. See Kidwell v. Surgeon General of the United States, No. 91-5192, 1993 WL 89062 (D.C.Cir. Feb. 1, 1993).

Reviewing Kidwell's request on the merits, the Board found "no evidence of record which would indicate that the applicant displayed any signs or symptoms of a mental illness [prior to his discharge], or that he was treated for a mental illness during his period of active duty." Kidwell Decision, Board for Correction of Military Records, Dep't of the Army, No. AC89-06719A at 8 (Apr. 7, 1993) [hereinafter Board Decision], in J.A. at 37. In support of its conclusion, the Board noted that neither Kidwell nor his Army doctors noted any physical or psychiatric difficulties at the time of his discharge. Although Kidwell complained of "nervous trouble" on a medical checklist he filled out during a routine separation medical exam, he denied having had nightmares, depression, difficulty sleeping, or excessive worry. He also wrote "I'm in good health" on the form. The examining physician concluded that he was "medically fit for any military assignment." Id. at 4, in J.A. at 33. Kidwell's company commander and other supervising officers concluded that they had no reason to believe that he was "mentally defective, deranged, or abnormal" at the time of his misconduct. Id. The Board also reviewed the report of a psychiatric consultant to the Surgeon General who, after reviewing Kidwell's records, concluded that "it would not be possible to support a diagnosis of PTSD at the time of discharge." Id. The Board agreed and rejected Kidwell's request.

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Acting pro se, Kidwell returned to the district court seeking an order requiring the Board to correct his records. Although Kidwell did not explicitly request monetary relief in his complaint, the government claimed that a district court order requiring the Board to change Kidwell's records to a "medical" discharge would entitle Kidwell to retroactive disability benefits that could exceed $50,000. Because the practical effect of Kidwell's request would be an award of money damages, the government argued, the district court had no jurisdiction over the complaint. Instead, Kidwell had to sue in the Court of Federal Claims under the Tucker Act, 28 U.S.C. Sec. 1491 (1988 & Supp. V 1993). The district court agreed with the government, concluding that it had no jurisdiction to hear the case. Even if it did have jurisdiction, however, the district court concluded that the Board had acted reasonably and on substantial evidence in rejecting Kidwell's request. Kidwell appeals, claiming that the district court did have jurisdiction and that the underlying Board decision was arbitrary and capricious.

II.

The Tucker Act, 28 U.S.C. Sec. 1491, gives the United States Court of Federal Claims jurisdiction

to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.

This grant of jurisdiction to the Court of Federal Claims is "exclusive," but "only to the extent that Congress has not granted any other court authority to hear the claims that may be decided by the [Court of Federal Claims]." Bowen v. Massachusetts, 487 U.S. 879, 910 n. 48, 108 S.Ct. 2722, 2740, 101 L.Ed.2d 749 (1988); see also Van Drasek v. Lehman, 762 F.2d...

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