Kelly v. United States

Decision Date19 November 2021
Docket Number20-579C
PartiesMATTHEW R. KELLY, Plaintiff, v. THE UNITED STATES, Defendant.
CourtCourt of Federal Claims
OPINION AND ORDER

KATHRYN C. DAVIS Judge

Plaintiff Matthew Kelly alleges that a decision by the Board for Correction of Naval Records ("BCNR" or "Board") denying his request for disability retirement was arbitrary and capricious, contrary to law and/or unsupported by substantial evidence. Before the Court is Plaintiff's Motion for Judgment on the Administrative Record and Defendant's Cross-Motion for Judgment on the Administrative Record. For the foregoing reasons, the Court DENIES Plaintiff's Motion and GRANTS Defendant's Cross-Motion.

I. BACKGROUND
A. Statutory and Regulatory Framework for Disability Retirement

The Secretary of each branch of the armed services possesses the authority to retire a service member with retired pay if the Secretary determines the service member is "unfit to perform the duties of the member's office, grade, rank or rating because of physical disability incurred while entitled to basic pay." 10 U.S.C. § 1201(a).[1] To be eligible for disability retirement, the service member's disability must be of a permanent nature and not the product of the member's own misconduct or neglect. Id. §§ 1201(b)(1), (b)(2). Additionally, disability retirement is available only to members who have either 20 years of service or whose disability is at least 30 percent under the Department of Veterans Affairs ("VA") Schedule for Ratings Disabilities and was incurred in, among other circumstances, the line of duty. Id. § 1201(b)(3). Congress has authorized the Secretary concerned to prescribe regulations implementing the statutory provisions governing retirement or separation due to physical disability. Id. § 1216(a).

The relevant regulation in Plaintiff's case is Secretary of the Navy Instruction ("SECNAVINST") 1850.4E, which defined the applicable standards and procedures used by the Navy to adjudicate disability cases at the time of Plaintiff's separation. Pursuant to the instruction, a Physical Evaluation Board ("PEB") acts on behalf of the Secretary of the Navy to determine a member's fitness to continue naval service and entitlement to disability benefits. See Department of Navy (DON) Disability Evaluation Manual, SECNAVINST 1850.4E, encl. (1), ¶ 1004.a (Apr. 30, 2002) (describing PEB procedures as part of the Navy's Disability Evaluation System ("DES")). In assessing whether a service member is eligible for disability retirement, SECNAVINST 1850.4E provides that:

The sole standard to be used in making determinations of physical disability as a basis for retirement or separation is unfitness to perform the duties of office, grade, rank or rating because of disease or injury incurred or aggravated while entitled to basic pay. Each case is considered by relating the nature and degree of physical disability of the member to requirements and duties that member may reasonably be expected to perform in his or her office, grade, rank or rating.

Id., encl. (3), ¶ 3301.[2] The instruction provides four considerations for the PEB to assess in determining whether a service member can reasonably perform his or her duties: (1) common military tasks, i.e., whether the member is unable to reasonably perform routine assignments expected of his or her office, grade, rank or rating; (2) physical readiness/fitness tests, i.e., whether the member's condition prohibits him or her from taking all or part of physical readiness/fitness tests; (3) deployability, i.e., whether the member's condition prevents him or her from being positioned outside the continental United States for an unspecified amount of time; and (4) special qualifications, i.e., whether the member's condition causes the loss of any specialized qualifications. Id. ¶ 3304. Notably, the standards utilized for a disability determination and for considering common military tasks are effectively interchangeable: both assess whether the member can reasonably perform the duties of his or her office, grade, rank, or rating. See id. ¶¶ 3301, 3302.a, 3304.a. (1). Therefore, a finding that a service member cannot perform his or her common military tasks is dispositive to the ultimate question of the member's unfitness. By contrast, the considerations of deployability, physical fitness test, and special qualifications cannot be used individually as the sole basis for a finding of unfitness. See id. ¶ 3307.

In addition to the four considerations, the instruction also provides that the PEB may evaluate other general criteria when determining a member's unfitness, including, as relevant here, whether a member's condition poses a medical risk to the member (or other members) were the member to be retained on active duty and whether the condition imposes unreasonable requirements on the military to maintain or protect the member. Id. ¶¶ 3302.b. (1), (2).

"[I]n assessing service member fitness, including the circumstances of referral [to the DES]," SECNAVINST 1850.4E instructs the PEB to "[c]onsider all relevant evidence," id. ¶ 3303, and make a finding of fitness or unfitness based on a preponderance of the evidence, id. ¶ 3306.b.

The instruction recognizes that in certain circumstances performance evaluations "may provide better evidence than a clinical estimate by a physician of the service member's ability to perform his or her duties." Id. ¶ 3303.b; see id. ¶ 3205. It also provides that a member can be determined fit based on a finding that he or she adequately performed duties until the time of referral for DES processing, even if medical evidence calls into question his or her physical ability to continue to perform those duties. Id. ¶ 3303.c.

Notably, SECNAVINST 1850.4E does not apply to a member who is pending administrative discharge for misconduct. See id., encl. (1), ¶ 1002.b. According to the instruction, "processing for administrative discharge for misconduct takes precedence over processing for disability." Id.

Although Plaintiff was never referred to the PEB for evaluation before the Navy discharged him, the standard and related considerations established in SECNAVINST 1850.4E, as discussed above, guide the Court in evaluating the propriety of the BCNR's decision-making process. See Sawyer v. United States, 930 F.2d 1577, 1581 (Fed. Cir. 1991) (recognizing the BCNR "is competent to make a disability determination in the first instance"); Beckham v. United States, 392 F.2d 619, 622 (Ct. Cl. 1968) (recognizing the BCNR, "like other administrative bodies, is bound by its own regulations").

B. Findings of Fact

Plaintiff enlisted in the United States Navy and entered active duty on November 12, 2008. Admin. R. 146, 153, ECF No. 8 ("AR"). Within a year of enlisting, Plaintiff graduated from diving school and qualified as a Second Class Navy Diver. Id. at 401-02. Plaintiff was then assigned to Mobile Diving and Salvage Company Two where he performed numerous dives as part of salvage operations and joint naval exercises from at least January 2009 until October 2012. Id. at 160-66.

A performance evaluation report from this period characterizes Plaintiff as a "devoted and tireless performer," reflecting the integral and admired nature of his skills as a diver. See id. at 165; see also id. at 163 (describing Plaintiff as an "effective team member with job accomplishment as a top priority"); id. at 161 (praising, among other qualities, Plaintiff's diving and management skills). In March 2010, Plaintiff earned the Navy and Marine Corps Achievement Medal and the Humanitarian Service Medal for the superior performance of his duties during a deployment to Haiti where he cleared and assisted in the re-opening of critical commercial seaports damaged during the earthquake that occurred there earlier that year. Id. at 167, 400.

After his deployment to Haiti, Plaintiff was deployed to the Persian Gulf in September 2010 where he conducted 41 anti-terrorism force protection dives and served as lead diver for three other dives. Id. at 165. In July 2012, he participated in a mission to Canada where his efforts proved "vital" in a diving operation, in which he successfully excavated, recovered, and repatriated three U.S. Army Air Corps personnel lost since 1942 in 120 feet of water off the coast of Nova Scotia. Id. at 39, 161.

Diving is a hazardous occupation in the Navy and, unfortunately, Plaintiff suffered two diving-related medical events during his military service. In 2010, he experienced a head trauma as a result of striking his head during a dive.[3] Id. at 8, 39, 77. Additionally, during a dive in support of the mission to Nova Scotia, Plaintiff suffered from hypoxia and type 2 decompression sickness. Id. at 39, 78. In relation to the latter event, crew members pulled Plaintiff out of the water after he lost consciousness, and a doctor examined him before he returned to service later that same day. Id. at 39. Following this event of hypoxia, Plaintiff reportedly began experiencing emotional and behavioral changes and consuming alcohol excessively. Id. at 39, 78. It was during this time in 2012 that Plaintiff also separated from his wife. Id. at 39.

In October 2012, the Navy transferred Plaintiff to the United States Naval Academy in Annapolis, Maryland. Id. at 158. Within months, Plaintiff's conduct began to suffer. In January 2013, he was counseled for an unauthorized absence from a command physical fitness session and substandard appearance during a command indoctrination course. Id. at 417. Plaintiff received further counseling in March 2013 after being cited by local law enforcement for reckless driving after he was stopped for speeding in a government-issued vehicle. Id. at 418. Then, on April 14, 2013, Plaintiff was cited...

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