Peoples v. United States

• Decision Date: 27 October 2011
• Docket Number: No. 05-214 C,05-214 C
• Parties: MICHAEL R. PEOPLES, Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

MICHAEL R. PEOPLES, Plaintiff,

v.THE UNITED STATES, Defendant.

No. 05-214 C

United States Court of Federal Claims

Filed: October 27, 2011

RCFC 52.1; Correction of Military Records; Decision After Remand to Board; Mandatory Separation; Medical Evaluation Board; Physical Evaluation Board; Substantial Evidence; Injustice

James R. Klimaski and Lynn I. Miller, Washington, DC, for plaintiff.

Armando A. Rodriguez-Feo, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Judge

Plaintiff, a retired lieutenant commander with the United States Naval Reserve ("Naval Reserve"), alleges that the United States Navy ("Navy") was required to postpone his mandatory separation for medical reasons, and that the decision of the Board for Correction of Naval Records ("BCNR") to the contrary was arbitrary, capricious, contrary to law, and unsupported by substantial evidence. In a prior ruling, the court concluded that plaintiff's separation was legally proper, but remanded the case to the BCNR for a determination of whether plaintiff's separation was unjust. After the BCNR issued two decisions addressing the justness of plaintiff's separation, the parties cross-moved for judgment on the administrative record. For the reasons set forth below, the court enters judgment for defendant.

I. BACKGROUND

A. Factual History

Plaintiff enlisted in the Naval Reserve on February 2, 1987, with the intent of obtaining a commission as a reserve officer in the Navy.¹ AR Vol. II at 63, 67, 69-74. On September 25, 1987, upon his completion of Officer Candidate School, plaintiff was commissioned as an ensign in the Naval Reserve and began active duty in the Navy's Surface Warfare Division. Id. at 4, 59, 63, 67, 72-73, 80; Am. Compl. ¶ 6. He was subsequently promoted to the rank of lieutenant (junior grade) on September 25, 1989, AR Vol. II at 60, 80, and the rank of lieutenant on October 1, 1991, id. at 61-62. On April 4, 1995, plaintiff accepted a commission in the Regular Navy, where he served on active duty until his discharge. Id. at 61, 67, 80. During his active duty naval service, plaintiff served aboard the USS Gray (FF 1054), the USS George Washington (CVN 73), and the USS Paul Hamilton (DDG 60), and received exemplary evaluations from his commanding officers. Id. at 6-12, 15-28, 31-32, 35-46. Indeed, in all of his evaluations, he was only twice marked as not meeting a particular standard. Id. at 37 (reflecting that he was "progressing" in the category of "military bearing/character"), 39 (same). However, for both Fiscal Year 1998 and Fiscal Year 1999, plaintiff was not selected for promotion by the Selection Board. Id. at 80. As a result, pursuant to the applicable law, plaintiff was slated for separation from the Navy. See id. at 65; Am. Compl. ¶ 11. At the end of August 1998, in preparation for his separation, he was assigned temporary duty with the Commander of Destroyer Squadron Thirty-One in Pearl Harbor, Hawaii. AR Vol. II at 45-46 (indicating a transfer date of August 28, 1998), 110 (indicating a transfer date of August 31, 1998). The Navy issued, and plaintiff received, plaintiff's mandatory separation orders on October 15, 1998, indicating that plaintiff was to be separated by no later than March 1, 1999. AR Vol. I at 265, 287-89, 292; accord AR Vol. II at 80. But see Am. Compl. ¶ 11 (indicating that plaintiff received his mandatory separation orders on October 22, 1998).

Before joining the Naval Reserve in 1987, plaintiff underwent a physical examination at the Military Entrance Processing Station in Richmond, Virginia. AR Vol. II at 89-92. At the time, plaintiff weighed 228 pounds and stood 72.5 inches tall. Id. at 90. Plaintiff reported, among other things, that he had a history of "recurrent back pain," that he sustained a back injury playing lacrosse in high school that had no sequela, and that he suffered from Osgood-Schlatterdisease from the ages of thirteen to fifteen.² Id. at 91-92. Plaintiff subsequently received regular medical care throughout his naval service. See generally AR Vol. I at 16-235 (containing medical records from plaintiff's time in Officer Candidate School, on active duty, and postseparation). Among the problems that appear in the more than twelve years of records are knee pain, back pain, and a lack of sensation in his legs.³ See generally id. On various occasions during this time period, plaintiff's physicians recommended restrictions on plaintiff's physical activity. See, e.g., id. at 159b (May 15, 1995 restrictions due to back pain), 173b (April 1991 restrictions due to back pain), 190-91b (September 1989 restrictions due to knee pain, including restrictions on weightlifting), 192 (December 9, 1988 restrictions due to knee pain). He also underwent physical therapy. See, e.g., id. at 52 (March 9, 1999), 129 (February 23, 1999), 143 (December 15, 1998), 164 (August 13, 1993), 168 (July 6, 1993), 188 (September 12, 1989).

On September 14, 1997, plaintiff underwent his last periodic physical examination prior to his separation physical examination. Id. at 199-200b. But see id. at 243 (indicating, in a February 12, 1999 nonmedical assessment, that plaintiff's most recent physical fitness test/physical readiness test was in March 1998). At the time, he weighed 249 pounds. Id. at 199. He reported, among other things, a history of knee pain and intermittent back pain. Id. at 200b. However, the physician assistant's clinical assessment of plaintiff was normal, and plaintiff was deemed to be "qualified." Id. at 199-199b; cf. AR Vol. II at 44 (containing a July 1998 Fitness Report and Counseling Record prepared by plaintiff's commanding officer indicating that plaintiff "[s]cored an 'outstanding' on [his] most recent [physical readiness test]").

On October 22, 1998, shortly after plaintiff received his mandatory separation orders, he was seen at the Navy's Pearl Harbor Adult Clinic with, among other complaints, "lots of stress" over the last two months, back pain, and knee pain. AR Vol. I at 151; accord id. at 265. Because the Navy lacked an orthopedist on the island of Oahu, plaintiff was referred to Tripler Army Medical Center ("TAMC") in Honolulu for his knee and back pain. Id. at 265. He was ultimately able to obtain an appointment for November 20, 1998, at which time he also visited the Pain Clinic and had an x-ray of his lumbar spine. Id. at 116, 141, 145-49, 265. The orthopedist also ordered magnetic resonance images ("MRIs") of plaintiff's lumbar spine and right knee. Id. at 145. In addition to his treatment at TAMC, throughout November and into December plaintiff saw a number of medical personnel for his complaints, including physicians and physical therapists, at the Pearl Harbor Medical Clinic. See, e.g., id. at 143-44, 150, 156-58.

During this same time period, plaintiff decided to accept an inactive duty appointment in the Naval Reserve, which would apparently begin upon his separation from the Navy. AR Vol. II at 62; see also AR Vol. I at 272 (averring that plaintiff was "required to sign up with the reserves (in order to receive a severance)"). Plaintiff initially executed the Oath of Office on December 10, 1998, but it was not signed by the witnessing officer until March 2, 1999. AR Vol. II at 62.

Plaintiff underwent his separation physical examination on December 16, 1998, at the Pearl Harbor Medical Clinic.⁴ Id. at 97-98, 102-03; AR Vol. I at 230-33, 239-42. At the time of his examination, he weighed 265 pounds. AR Vol. II at 103. On his Report of Medical History, plaintiff highlighted a number of issues in his medical history, including his knee and back problems. Id. at 98; AR Vol. I at 232, 241; see also id. at 240 (containing the physician assistant's notes about plaintiff's medical history on a Report of Medical Assessment form). He also reported all of his recent consultations and the fact that he had consultations with an orthopedist prior to 1998. AR Vol. I at 241. The physician assistant reviewed and commented on plaintiff's reported medical history. Id.; AR Vol. II at 98. He then noted, in his Report of Medical Examination, that plaintiff had a history of, among other things: (1) decreased sensation radiating down the left leg; (2) chronic back pain; and (3) chronic knee pain. AR Vol. II at 102. The physician assistant recommended that plaintiff follow up with physicians at the Pearl Harbor Medical Clinic, TAMC, and the Department of Veterans Affairs ("VA") for all of his health issues. Id. at 103; AR Vol. I at 240. He then checked the box next to "is qualified for," next to which is a handwritten notation "separation board," with "separation" crossed out and "board" underlined.⁵ AR Vol. II at 103; see also AR Vol. I at 309 (averring that at his separation physicalexamination, he was declared "Fit for MEDBOARD," not "Fit for Separation"); cf. AR Vol. II at 103 (containing a stamp stating: "Separation examination completed[.] All appropriate treatment not completed within 180 days of separation.").

Three days later, on December 19, 1998, plaintiff had his scheduled MRIs taken at TAMC. AR Vol. I at 111-12, 114-15. The knee MRI revealed, among other things, "severe chondromalacia patella, Grade IV, with subchondral degenerative geodes in the lateral facet with diffuse cartilage narrowing." Id. at 112. The spine MRI revealed, among other things, "[m]ild rotary spondylolisthesis of L5 in relationship to S1 with bilateral pars defects and moderate canal stenosis." Id. at 115.

Plaintiff returned to the Orthopedic Clinic at TAMC on January 15, 1999, where he was provided the findings of the MRIs. Id. at 140; Am. Compl. ¶ 12. The orthopedist recommended arthroscopic surgery of plaintiff's right knee and a "possible" L5-S1 fusion procedure. AR Vol. I at 140. According to plaintiff, he was told that he needed to undergo both surgical procedures "as soon as possible," that "he was no longer fit for sea duty," that "he should avoid ladders and stairs," and...