Burkins v. U.S., s. 96-1132

• Decision Date: 22 April 1997
• Docket Number: Nos. 96-1132,96-1208,s. 96-1132
• Citation: 112 F.3d 444
• Parties: 97 CJ C.A.R. 580 Lee C. BURKINS, Plaintiff--Appellee, v. UNITED STATES of America; The National Guard Bureau, Lt. Gen. John B. Conaway, Director; United States Department of the Army, Togo D. West, Secretary; Army Board for Correction of Military Records, David Kinneer, Executive Secretary, Defendants--Appellants, and John L. Patrick, Jr.; Douglas Tom, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 444

112 F.3d 444

97 CJ C.A.R. 580

Lee C. BURKINS, Plaintiff--Appellee, v. UNITED STATES of America; The National Guard Bureau, Lt.

Gen. John B. Conaway, Director; United States Department of

the Army, Togo D. West, Secretary; Army Board for

Correction of Military Records, David Kinneer, Executive

Secretary, Defendants--Appellants,

and

John L. Patrick, Jr.; Douglas Tom, Defendants.

Nos. 96-1132, 96-1208.

United States Court of Appeals, Tenth Circuit.

April 22, 1997.

Rehearing Denied May 20, 1997.

Mary K. Doyle (Barbara C. Biddle with her on the briefs), Attorneys, Department of Justice, Washington, DC, for Appellants.

Eva Camacho Woodard, Law Office of Eva Camacho Woodard, Lakewood, CO, for Appellee.

Before ANDERSON, LUCERO, and MURPHY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Appellee Lee C. Burkins sued the United States; the National Guard Bureau, Lieutenant General John B. Conaway, Director; the Department of the Army, Togo D. West, Secretary; and the Army Board for Correction of Military Records (ABCMR), David Kinneer, Executive Secretary (collectively the Defendants) in federal district court seeking a writ of mandamus ordering the ABCMR to correct his military records to reflect that he received a disability discharge, ¹ rather than an honorable discharge, from active duty in the Army on November 4, 1970. ² Burkins claims that he should have received a disability discharge in 1970 because he suffered from 100% disabling post traumatic stress disorder (PTSD) which he incurred while serving in Vietnam. The district court concluded that Burkins was entitled to such a disability discharge and directed the ABCMR to change his records and provide him with computations regarding the disability retired pay ³ he should have received from the Department of the Army from November 1970 to March 1987. The court also awarded Burkins attorney's fees, costs and expenses.

The Defendants assert on appeal that (1) the district court lacked jurisdiction, (2) Burkins did not meet the requirements for the issuance of a writ of mandamus compelling the ABCMR to correct his military records, (3) the district court erred in directing the ABCMR to include interest in the computations of the retired pay, and (4) the district court abused its discretion in awarding attorney's fees and expenses under the Equal Access to Justice Act. We conclude that the district court lacked jurisdiction, and we direct that the action be transferred to the United States Court of Federal Claims. Accordingly, we do not reach the other issues on appeal.

BACKGROUND

On January 19, 1968, Burkins entered the United States Army on active duty and served in Vietnam as a Green Beret with the 5th Special Forces Group. On November 4, 1970, following his tour of duty, Burkins submitted to a separation physical examination. Following the examination, he was found medically qualified for separation and was honorably separated from active duty and transferred to the Reserve Control Group.

More than a decade later, on February 18, 1982, Burkins enlisted in the Hawaii Army National Guard (Guard) and the next year was promoted to staff sergeant. In June of 1984, during a field training exercise, Burkins After Burkins left the Guard and was fraudulently transferred to inactive duty, the only formal involvement he had with the Guard was to submit to a periodic Guard medical examination on March 18, 1987. During the examination, Burkins told the physician that he was receiving treatment from a psychiatrist for combat-related stress, he had frequent trouble sleeping, he suffered from depression or excessive worry, and he suffered from nervous trouble. Nonetheless, the physician found him medically qualified for duty. Burkins was separated from the Guard in February of 1989 upon the expiration of his term of service.

became hysterical. He made references to the North Vietnamese Army, shouted in Vietnamese, attempted to tie up a fellow Guard member, and fired blanks in the faces of other Guard members. Later that month, Burkins told his supervisor that he was quitting the Guard because of stress. He was told that he could not quit, but he did so anyway and became absent without leave or permission. Burkins commenced psychiatric counseling on September 19, 1984, and remained in continuous therapy until the end of 1989. After he left the Guard, a unit administrator in his Guard unit transferred him to inactive duty status by forging his name to a transfer request.

Sometime after the 1984 training incident, Burkins decided to seek disability benefits for PTSD. He had the option of pursuing benefits through two different agencies and based on different standards. First, he would be entitled to retired pay from the Department of the Army if he was "unfit to perform the duties of [his] office, grade, rank, or rating" because of a physical disability which was at least 30% disabling under the Department of Veterans Affairs disability rating schedule and the disability was "incurred while [he was] entitled to basic pay." 10 U.S.C. § 1201 (Supp.1997). However, because he was separated from the Army and the Guard without any determination that he was unfit to perform his duties, he first had to apply for a change in his military records to reflect that he was unfit and entitled to a disability discharge. The ABCMR is authorized to correct military records if it finds that such a change is "necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a). After the ABCMR has corrected a veteran's military records, the Department of the Army may pay the veteran for the loss of retired pay resulting from the correction. 10 U.S.C. § 1552(c). However, the Department of the Army may not pay the veteran any benefit which he is entitled to receive from the Department of Veterans Affairs (V.A.). 10 U.S.C. § 1552(e).

Second, Burkins would be entitled to disability benefits from the V.A. if he had a "disability resulting from ... disease contracted in line of duty, or for aggravation of a ... disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime). If a veteran is determined to have such a disability, he is assigned a disability rating and compensation amount based on the degree of impairment in the veteran's ability to earn income from civil occupations. 38 U.S.C. § 1155. In order to receive disability benefits, a veteran must first file a claim with the V.A. 38 U.S.C. § 5101. If the veteran's claim is denied, the veteran may seek review from the Board of Veterans' Appeals, then the Court of Veterans Appeals, and finally the Federal Circuit. 38 U.S.C. §§ 7104, 7252, 7292. However, even if a veteran qualifies for both retired pay from the Department of the Army and disability benefits from the V.A., the veteran cannot receive the full amount of each because 38 U.S.C. § 5304 prohibits duplication of benefits. In such a case, the veteran may elect to waive the portion of retired pay that would be duplicative of disability benefits and, thereby, become entitled to receive the disability benefits in addition to the unwaived portion of retired pay. 38 U.S.C. § 5305.

Burkins sought disability benefits from the V.A. The V.A. initially awarded him a 10% disability rating for PTSD, retroactive to March 11, 1987. However, the rating was later increased to 100% and made permanent, retroactive to March 11, 1987. Burkins requested an earlier effective date, but the Board of Veterans' Appeals denied that request. In August of 1988, Burkins requested copies of his Guard military record and discovered In September of 1989, Burkins applied to the ABCMR for a correction of his records to show that (1) his transfer to inactive status with the Guard was fraudulent, and (2) when he was separated from the Army on November 4, 1970, he was unfit to perform the duties of his military office and, thus, was entitled to a disability discharge. He further requested "all benefits be provided as such separation of duty allows." Appellant's App. Vol. II at 12, 19. On July 1, 1992, the ABCMR issued an opinion recommending that Burkins' records be changed to show that: (1) his transfer to inactive status was void; (2) on March 18, 1987, he was medically unfit for duty because of 50% disabling PTSD; (3) on March 18, 1987, he was relieved from active reserve duty due to physical disability; and (4) effective March 19, 1987, he was permanently retired with entitlement to retired pay. ⁴ Thereafter, the Deputy Assistant Secretary of the Army approved the recommendations.

the forged transfer document and thereafter requested an investigation. The Inspectors General of the Guard and National Guard Bureau investigated his transfer to inactive status. The Inspector General of the National Guard Bureau concluded that Burkins' unit commander had improperly transferred him, but that he was not denied any entitlements as a result. The Inspector General advised Burkins that if he wished to have his military records changed to remove the fraudulent transfer, he would have to apply to the ABCMR.

Following the ABCMR's issuance of its final decision, Burkins filed this action in district court seeking a finding that the decision is arbitrary and capricious and contrary to law and a writ of mandamus ordering the ABCMR to correct his military records to show a disability discharge as of November 4, 1970, or, alternatively, to show a disability discharge as of June of 1984 "when Plaintiff advised his chain of command of his medical problems." Appellant's App. Vol. I at 25-26 (Pl.'s First Am. Compl.). Burkins further alleged that the ABCMR's refusal to correct his records had "caused the Plaintiff either the loss of approximately 17 years of Veterans Administration benefits (approximately $200,000) or the loss of 33 months of Veterans Administration retirement benefits (approximately 58,800.00) plus loss of the use of the benefits." Id. at 17. Burkins maintained that ...