Hutchinson v. United States
| Docket Number | 20-895 C |
| Decision Date | 30 November 2023 |
| Parties | GEORGE BALDWIN HUTCHINSON, JR. Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Not To Be Published
George Baldwin Hutchinson, Jr., pro se, of Lithia Springs, GA.
Michael Duane Austin, Trial Attorney, Commercial Litigation Branch, United States Department of Justice, of Washington D.C., for Defendant.
ZACHARY N. SOMERS JUDGE.
Before the Court are the parties' cross-motions for judgment on the administrative record. ECF No. 72 ("Pl.'s MJAR"); ECF No. 77 ("Gov.'s MJAR"). Proceeding pro se, Plaintiff's allegations can be difficult to discern, but the Court held oral argument during which Plaintiff set forth his claims more clearly. Specifically, Plaintiff asserts that:
The Court has carefully considered the submissions by both parties and the arguments presented at oral argument and finds that Plaintiff is not entitled to any further relief on his claims. Accordingly, for the reasons set forth below, Plaintiff's motion for judgment on the administrative record is denied, and the government's cross-motion for judgment on the administrative record is granted.[1]
According to the administrative record, Plaintiff joined the Army in 1994 as a Signal Support Systems Specialist. AR 416, 586. After applying in October 2003, Plaintiff became a Second Lieutenant in the Army's Signal Corps in March 2004 and completed the Signal Officer Basic Course in October 2004. AR 40, 471, 474, 483-98, 501. The Army deployed Plaintiff a number of times from 2004 through 2013. AR at 204-205, 326, 441, 446.
From 2012 to 2013, Plaintiff worked at a training center in Kuwait, AR 41, 348, during which he was recommended for potential promotion to Major, AR 349. Plaintiff applied in September 2012 to the Position Vacancy Board ("PVB"), which is an alternative path to promotion from the standard Promotion Selection Board ("PSB"). AR 54-58, 152-156. As part of his application, Plaintiff submitted documentation that, although still a Captain, he served in a position typically held by a Major. AR 59, 61, 157, 159. However, Plaintiff was ineligible for consideration by the PVB unless he was off active duty within 120 days of the September PVB. ECF No. 73-2 at 2-3. After being given the opportunity to appear before the September PVB, Plaintiff opted ultimately to remain on active duty. Id. at 2.
In July 2014, U.S. Army Medical Command retained Plaintiff on active duty. AR 41. By April of 2015, an informal physical evaluation board ("PEB") determined that he was "physically unfit" for service and "recommended a disability rating of 70 percent and placement on the [Temporary Disabled Retired List ("TDRL")] with reexamination during December 2015." Id. The PEB found that Plaintiff was 70% disabled from post-traumatic stress disorder ("PTSD") and 10% disabled due to a joint issue in his right hip. AR 289. Plaintiff agreed with the findings and waived his right to have a formal hearing. AR 41.
In May 2015, after he had been placed on the TDRL, the Army retired Plaintiff effective July 15, 2015. AR 41, 293. Subsequently, in October 2015, Plaintiff's name appeared on the PSB list for promotion to the rank of Major. AR 41, 242, 255. That same month, Plaintiff applied to the Army Board for Correction of Military Records ("ABCMR" or the "Board") "asking that his military records be corrected to reflect a promotion to Major in June 2015, placement on the TDRL at the rank of Major, and retroactive retirement pay at the rank of Major." Gov.'s MJAR at 7 (citing AR 39, 137, 220, 222). Plaintiff claimed that he should have appeared before the PVB in September 2012 while stationed in Kuwait. AR 222. He applied again to the ABCMR in December 2015, adding a claim premised on 10 U.S.C. § 1372. AR 224.
On February 10, 2016, the Army's Human Resources Command ("HRC") provided an advisory opinion explaining that Plaintiff, whom it placed on the TDRL and retired because of physical disability, "could be retired in the next higher grade" if three prerequisites were met. AR 206. Plaintiff did not meet the first of three requirements because his name was "not on an approved [PSB or PVB] promotion list prior to the effective date of his retirement on 15 July 2015." Id. Plaintiff was, therefore, not eligible for retirement at the rank of Major according to the advisory opinion. Id. After Plaintiff received the advisory opinion, Plaintiff responded on March 22, 2016. AR 215. Plaintiff argued that he was entitled to have his retirement rank corrected to Major based on 10 U.S.C. §§ 1372 and 1375. AR 33-34, 43, 220. On April 10, 2017,the ABCMR denied Plaintiff's request to be retired at the rank of Major. AR 50.
While Plaintiff's retirement rank application to the ABCMR was pending, a PEB found that he was permanently disabled. AR 68-71. Plaintiff appealed this decision on December 10, 2018. Id. A week later, the PEB "adhere[d] to the original findings and recommendations of the informal proceedings," and determined that Plaintiff "remain[ed] unfit at 70% permanent disability retirement." AR 89. Furthermore, the PEB explained that his claims regarding concurrent receipt entitlement, the Temporary Early Retirement Authority ("TERA") program, rank and grade determinations, and calculation of active-duty days were outside the purview of the PEB. Id. The PEB also recommended that he discuss any further claims with his attorney from the Office of Soldier's Counsel. Id. In January 2019, Plaintiff waived his right to a formal PEB hearing through his then-attorney, but nonetheless requested that "his contentions [be] reviewed by the PDA to the extent they are able." AR 163. On August 23, 2019, Plaintiff was removed from the TDRL, and he was medically retired with a permanent disability rating of 70 percent. AR 7-8.
On November 13, 2019, Plaintiff submitted a request for reconsideration of the ABCMR's 2017 finding that he was not eligible for promotion in 2015 because he was retired before his name appeared on the promotion list. AR 2-99. After receiving denials from the PEB and the ABCMR, Plaintiff filed the present action on July 4, 2020. See ECF No. 1 at 3 ("Compl."). In his initial complaint, Plaintiff sought:
the correction of his military records in the form of back pay - to include back pay at the rank of Major rather than Captain, an adjustment to the calculation of his combat-related special compensation pay, and concurrent receipt of both VA disability and Army retirement pay, as well as correction of his military records to reflect retirement at a higher rank.
Gov.'s MJAR at 9 (citing Compl. at 3, ECF No. 1-1 at 1-2).
On February 17, 2021, the government moved to remand the action back to the ABCMR because of the discrepancy between the Board's 2017 decision, which found that Plaintiff was properly placed on the TDRL at the rank of Captain, and the Army's 2019 decision to remove Plaintiff from the TDRL and place him on the Permanent Disability Retired List ("PDRL") at the rank of Major. ECF No. 21 at 1-2. According to the government's motion to remand, "[t]here is no indication in the record of whether his retirement as a major alters the ABCMR opinion denying him any relief." Id. at 2. Plaintiff joined the government's remand request so that the ABCMR could reconsider his petition given that he was placed on the PDRL at the rank of Major. Id. at 1.
Several days later, the Court granted the motion to remand, directing the ABCMR to complete its review of Plaintiff's case on or before August 23, 2021. See ECF No. 22. The ABCMR issued its decision on August 19, 2021, affording Plaintiff partial relief, specifically recommending that Plaintiff's records "be corrected to reflect the retirement grade and rank of O-4/MAJ effective 25 September 2015, the date the FY15 Major Army Promotion Selection List was approved, with associated retroactive retired pay." ECF No. 40-1 at 12. However, the ABCMR recommended denial of the section of the application that pertained to Plaintiff's request of retroactive promotion to O-4/MAJ because the ABCMR lacked the authority to retroactively promote Plaintiff, as doing so would violate the Appointments Clause of the Constitution. Id. at 11-12.
After the ABCMR issued its recommendation, the Court issued an order directing...
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