Aubre v. United States

40 Fed. Cl. 371, 1998 U.S. Claims LEXIS 31, 1998 WL 86719
CourtUnited States Court of Federal Claims
DecidedFebruary 20, 1998
DocketNo. 97-363C
StatusPublished
Cited by6 cases

This text of 40 Fed. Cl. 371 (Aubre v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aubre v. United States, 40 Fed. Cl. 371, 1998 U.S. Claims LEXIS 31, 1998 WL 86719 (uscfc 1998).

Opinion

OPINION

MILLER, Judge.

This military pay case is before the court on defendant’s motion to dismiss pursuant to RCFC 12(b)(1) for failure to file a claim within the applicable six-year statute of limitations. Defendant alternatively moved for judgment on the administrative record pursuant to RCFC 56.1, and plaintiff cross-moved. The issue to be decided is whether plaintiff, discharged in 1968, is entitled to a correction of his military record to indicate a disability discharge based on newly discovered evidence of service-connected trauma. After plaintiff was given an opportunity to file a supplemental brief, the court deems argument to be unnecessary.

FACTS

The facts are drawn from the administrative record. On November 17, 1966, Eli Jah Aubre1 (“plaintiff’) enlisted in the United States Naval Reserves. Approximately 13 months later, on December 4, 1967, plaintiff began what was to be a six-year term of active duty service. After completing training as a hospital corpsman, plaintiff was stationed aboard the U.S.S. Wasp, where he served from April 4, 1968, through August 1968.

While he was on leave, in July 1968, plaintiffs wife suffered a serious injury that effectively disabled her. As a result plaintiff requested a transfer that would preclude him from being sent overseas and would allow him to be closer to his injured wife. Although plaintiff received a transfer, it was not what he had anticipated; the Navy transferred plaintiff to a destroyer, the U.S.S. Robert L. Wilson (the “U.S.S. Wilson”), which was being sent to Vietnam. Although plaintiff was to serve as a hospital corpsman while on board the U.S.S. Wilson, he claims that he was unqualified for this position because he was not a First Class Corpsman and had not completed Independent Duty School.

In concert with three other destroyers, the U.S.S. Wilson departed for Vietnam in early September 1968. On September 7, 1968, off the coast of South Carolina, a fire and explosion occurred on board the U.S.S. Douglas H. Fox (the “U.S.S. Fox”), killing three crew members and injuring five others. As soon as the fire broke out, the other ships sent immediate medical assistance. According to the U.S.S. Wilson’s logs, plaintiff was not among the crew members who were sent to the U.S.S. Fox to render emergency assistance. Plaintiff disputes the log entries and contends that he did board the U.S.S. Fox and rendered unsupervised medical assistance to numerous injured crewmen. Furthermore, plaintiff asserts that, because of his lack of training, the medical assistance he provided directly resulted in the deaths of certain crewmen.2 [374]*374When his ship reached the Panama Canal, plaintiff received an honorable discharge from the United States Navy (the “Navy”) on September 24, 1968, for hardship reasons associated with his injured wife. Although plaintiffs pre-September 24, 1968 service record indicated three incidents on which he complained of “nervousness,”3 no mention is made of any mental illness. Moreover, although plaintiff disputes this fact, his records reveal that the Navy conducted a military separation physical exam on September 17, 1968. During this examination plaintiff was asked to inform the attending physician of any problems that he thought were relevant. Plaintiff did not mention, and the doctor did not detect, any mental problems.

After his discharge plaintiff was employed by a private ambulance company for approximately one year and by United Parcel Service for approximately nine months. Plaintiff alleges that throughout this period he was unable to discuss the alleged trauma he underwent aboard the U.S.S. Fox, he suffered from nightmares, and he was subject to emotional outbursts.

At some point, the exact time period is disputed by the parties, plaintiff began abusing narcotics. Plaintiff contends that he was attempting to self-medieate to cope with the effects of the emotional trauma allegedly incurred while he was on board the U.S.S. Fox. Defendant contends that plaintiffs substance abuse began as early as 1966, when he was still in high school, and continued throughout his Navy service. Defendant’s position is supported by plaintiffs then-wife, who was reported as stating in connection with a 1975 social service review of plaintiffs background that plaintiff had been abusing narcotics pri- or to his enlistment in the Navy.

In October 1971 plaintiff entered the Veteran’s Administration (the “VA”) hospital at Northampton, MA, where lie was diagnosed as a narcotic dependant schizophrenic. Soon thereafter plaintiff was committed to the Northampton State Hospital as a result of criminal proceedings stemming from narcotics charges. After his release plaintiff lived without incident for the next several years, although he continued to abuse narcotics during this period. Plaintiff again was admitted to the VA hospital in December 1975 and was once again diagnosed as a narcotic dependent schizophrenic. His records show that during this 1975 stay at the VA hospital, plaintiff made no mention of the alleged incident on board the U.S.S. Fox.

After his 1975 hospitalization, plaintiff sought a disability rating from the VA. This request was denied on the ground that plaintiffs mental problems were not the result of his active duty service, but were caused by his narcotics abuse. In rendering this decision, the VA was not aware of the alleged incident on board the U.S.S. Fox, as plaintiff had made no mention of it in his discussion with staff physicians. Plaintiff was again admitted to the VA hospital in 1980 for problems related to his drug dependence. On both this occasion and in 1975, the VA determined that despite his narcotics addiction, plaintiff was competent and employable.

Plaintiff alleges that he began to discuss the alleged U.S.S. Fox incident in 1978 when he was a patient at the Northampton State Hospital under the care of Dr. Richard Sette. Defendant contends that plaintiff did not mention the U.S.S. Fox incident until 1980 and even then did so only as an aspect of recurrent nightmares, not as an actual event. Plaintiff remains an outpatient at Northampton under the care of Dr. Timothy O. Rowe, who submitted an affidavit to the effect that plaintiff no longer abuses narcotics, but is suffering from post-traumatic stress disorder (“PTSD”) as a result of the alleged 1968 incident on board the U.S.S. Fox.

Plaintiff submitted an application to the Board for Correction of Naval Records (the [375]*375“BCNR”) in 1982 seeking to amend Ms 1968 honorable discharge to a disability discharge on the ground that he had been suffering from undiagnosed PTSD as of the date of his 1968 discharge. The BCNR denied this request on June 15,1982. Subsequently, plaintiff filed a second application on December 29, 1987, wMch the BCNR treated as a request for reconsideration and denied on March 22,1988.

On June 13, 1988, plaintiff filed suit in the United States Claims Court, predecessor to the Court of Federal Claims, challenging the BCNR’s June 1982 decision. The court stayed this suit until the BCNR had decided yet another request for reconsideration.4 Although plaintiff was ordered to inform the court of the BCNR’s disposition within two weeks of its issuance, he failed to comply with the court’s order, and his suit was dismissed without prejudice in 1991.

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Cite This Page — Counsel Stack

Bluebook (online)
40 Fed. Cl. 371, 1998 U.S. Claims LEXIS 31, 1998 WL 86719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aubre-v-united-states-uscfc-1998.