Burkins v. US, Civ. A. No. 93-K-2125.

• Decision Date: 04 October 1994
• Docket Number: Civ. A. No. 93-K-2125.
• Citation: 865 F. Supp. 1480
• Parties: Lee C. BURKINS, Plaintiff, v. UNITED STATES of America; Lt. Gen. John B. Conaway, Director, National Guard Bureau; Department of the Army, Togo D. West, Secretary; Army Board for Correction of Military Records, David Kinneer, Executive Secretary; Douglas Tom, and John L. Patrick, Jr., Defendants.
• Court: U.S. District Court — District of Colorado

865 F. Supp. 1480

Lee C. BURKINS, Plaintiff, v.UNITED STATES of America; Lt. Gen. John B. Conaway, Director, National Guard Bureau; Department of the Army, Togo D. West, Secretary; Army Board for Correction of Military Records, David Kinneer, Executive Secretary; Douglas Tom, and John L. Patrick, Jr., Defendants.

Civ. A. No. 93-K-2125.

United States District Court, D.Colorado.

October 4, 1994.

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Eva Camacho Woodard, Lakewood, CO, for plaintiff.

Chalk S. Mitchell, Ass't U.S. Atty., for U.S.

MEMORANDUM OPINION AND ORDER

KANE, Senior District Judge.

This matter is before me on Defendants' motion to dismiss or in the alternative for summary judgment and PlaintiffLee Burkins' cross-motion for summary judgment.Plaintiff has filed five claims requesting mandamus and injunctive relief to correct his military records, damages pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680("FTCA"), or 42 U.S.C. § 1983, and access to and correction of his records under the Freedom of Information Act("FOIA") and the Privacy Act.The action stems from Plaintiff's attempts to show that his post traumatic stress disorder ("PTSD") was incurred before his release from the U.S. Army in Vietnam and that his honorable discharge should be changed to one for medical disability.

I.Background.

Lee Burkins entered active duty on January 19, 1968, serving in Vietnam as a Green Beret with the 5th Special Forces Group.Defs.' Ex. DX1at 5.By the end of his tour of duty, he had attained the rank of sergeant and had been awarded the Bronze Star, the Army Commendation Medal and the Combat Infantryman Badge.Id.Following a separation physical on November 4, 1970he was found medically qualified for separation and was transferred to the Reserve Control Group.Id.Plaintiff claims he began to develop hives, sweats, panic attacks, sleep disturbance, irritability and considered himself to be "very violent" immediately before separation.Pl.'s Mem.Br.Opp.Defs.' Mot. Summ.J. ("Pl.'s Mem.")at 3.Although Plaintiff was hospitalized for several days before his separation with an unspecified fever, at the time of his examination in 1970, he stated "I feel that I am presently in good physical condition."Defs.' Ex. DX1at 5.

On February 18, 1982Plaintiff enlisted in the Hawaii Army National Guard ("HARNG").He was promoted to the rank of staff sergeant on November 6, 1983.Id.During a field exercise in June 1984he became hysterical, screaming "NVA in the compound" and firing blanks from his M-16 in the faces of his fellow soldiers.Id. at 5, 23, 24.He also grabbed another HARNG member and attempted to tie him up while shouting in Vietnamese.Id. at 23.Later that month, Burkins told one of his superiors that he was quitting the National Guard because of stress problems.Id. at 22.Plaintiff said his feelings were "out of control," and that training had become "too real" for him.Id.He said he felt like he was back in Vietnam and was worried that he would hurt someone.Id.Although he was told he could not quit the HARNG for these reasons, Burkins left, going absent without leave ("AWOL").In his absence, Plaintiff was added to the inactive duty rolls on July 2, 1984 when unit administrator Douglas Tom allegedly signed Burkins' name to a transfer request without his permission.Defs.' Mem.at 3.

On March 18, 1987, during a periodic physical examination, Burkins told the physician that he was seeing a psychiatrist for combat-related stress.Defs.' Ex. DX1at 5.Burkins received therapy from September 1984 to the end of 1989, with several doctors diagnosing his PTSD as caused during his service in Vietnam.SeeDefs.'Ex. DX1 28-41, Pl.'s Ex. PXA.The examining physician still found Plaintiff medically qualified for retention.Defs.' Ex. DX1at 5.

On November 24, 1987, the Veterans Administration awarded Burkins a 10 percent disability rating for PTSD, retroactive to March 11, 1987.Id. at 6.In a decision dated July 18, 1991, his rating was increased to 100 percent.Id.Plaintiff's request for a physical disability retirement or separation retroactive to November 4, 1970 was denied.The Office of the Surgeon General determined Plaintiff may have been suffering delayed onset of PTSD, but had met medical retention standards at the time of his separation, making its recommendations to Defendant Army Board for Correction of Military Records(ABCMR)¹Id.The ABCMR was told by the Physical Disability Agency(USAPDA) that Burkins was suffering from PTSD in 1984, but was ineligible for disability processing at that time because his disability was caused by an "illness" rather than an "injury."Id.

The ABCMR concluded that although Plaintiff presently has PTSD, there was no evidence to indicate that he had it before his separation from active duty on November 4, 1970.Id. at 8.The ABCMR decided that Plaintiff, as a member of the reserves, was not eligible for disability processing for PTSD until after November 15, 1986.Id.Had Burkins been referred for disability processing after the facts of his PTSD were revealed in his March 18, 1987 physical examination, his condition would have been rated 50 percent disabling by Army standards, the ABCMR ruled.Plaintiff's records were corrected to reflect a 50 percent disability retroactive to March 18, 1987.Id.Plaintiff has requested injunctive and mandamus relief to compel the ABCMR to correct his records to reflect a disability discharge, asserting its decision was arbitrary and capricious.

II.Applicable Standards.

Dismissal of an action pending in federal district court is appropriate where the federal court lacks subject matter jurisdiction over the action.Fed.R.Civ.P. 12(b)(1);Stewart v. U.S.,199 F.2d 517, 519(7th Cir.1952).Dismissal of an action is also appropriate where the complaint fails to state a claim upon which relief may be granted.Fed.R.Civ.P. 12(b)(6).

When ruling on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the complaint is construed in the light most favorable to the plaintiff and the allegations are taken as true.Scheuer v. Rhodes,416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90(1974).In determining the sufficiency of the complaint, a complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Conley v. Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80(1957).

Summary judgment is appropriate if the pleadings and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.Fed.R.Civ.P. 56(c);seeCelotex Corp. v. Catrett,477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265(1986).The opposing party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts showing that there is a genuine issue for trial.Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202(1986).Summary judgment will be granted against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial.Celotex Corp.,477 U.S. at 322, 106 S.Ct. at 2552.

III.Motion to Dismiss

A.Jurisdiction as to the first claim for mandamus and injunctive relief.

Plaintiff's first claim seeks mandamus and injunctive relief against the ABCMR for correction of his military records.Defendants first challenge this court's jurisdiction over this claim.Therefore, I address Defendants' motion to dismiss in light of Fed.R.Civ.P. 12(b)(1).

Defendants contend Plaintiff's first claim must be dismissed because he has not established a federal question and the United States has not waived its sovereign immunity.Defs.' Mem.at 8.It is well established, however, that military decisions and actions are reviewable by the judiciary to determine whether the secretary has acted within the sphere of his statutory and constitutional authority.Kalista v. Secretary of Navy,560 F.Supp. 608, 611(D.Colo.1983)(finding jurisdiction under 28 U.S.C. §§ 1331and1361 in action to compel Board for Corrections of Naval Records to upgrade discharge).As a preliminary matter, a person must first exhaust the administrative remedies provided by the military service before seeking to have a military record reviewed and corrected in civil court.SeeThornton v. Coffey,618 F.2d 686, 692(10th Cir.1980).

Plaintiff has exhausted all administrative remedies with the ABCMR in attempting to correct his records.²He has also alleged the ABCMR's decision is arbitrary and capricious and not in conformity with duties created by the board's own regulations.³Plaintiff claims the fundamental mistake made by the ABCMR is that it failed to consider his assertions that the unconstitutional and illegal acts of Defendants prevented the board from being able to determine whether his non-medical discharge was correct.Thus, having exhausted all administrative remedies, Plaintiff's action to compel the ABCMR to correct his records properly presents a federal question over which this court has jurisdiction.

Defendants next challenge this court's jurisdiction by asserting Plaintiff's first claim for relief is essentially one for money damages since he ultimately seeks a retroactive disability discharge, with the appropriate back disability pay.Mem.Supp.Defs.' Mot.at 11.Since this back pay would exceed $10,000, Defendants argue the Tucker Act should give the Court of Claims exclusive jurisdiction under 28 U.S.C. § 1346(a)(2).Plaintiff counters that any later attempt by him to seek benefits from the VA is an administrative matter — all he is asking...