Kirwin v. United States

23 Cl. Ct. 497, 1991 U.S. Claims LEXIS 255, 1991 WL 110912
CourtUnited States Court of Claims
DecidedJune 21, 1991
DocketNo. 258-89C
StatusPublished
Cited by27 cases

This text of 23 Cl. Ct. 497 (Kirwin v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirwin v. United States, 23 Cl. Ct. 497, 1991 U.S. Claims LEXIS 255, 1991 WL 110912 (cc 1991).

Opinion

OPINION

LYDON, Senior Judge:

In this military pay case, plaintiff challenges a decision by the Board for Correction of Naval Records (BCNR)1 denying his request to have his military records corrected to reflect a medical discharge, rather than an honorable discharge, and denying his request to be placed on the permanent disability retirement list.2 Plaintiff alleges that he is currently suffering from Post-traumatic Stress Disorder (PTSD), precipitated by events that occurred during plaintiff’s service in the military for almost nine years, and that he was suffering from undiagnosed PTSD at the time of his military discharge in 1978. Consequently, plaintiff seeks to have his name placed on the permanent disability retirement list, with concomitant retroactive disability pay.

Defendant has moved for dismissal of plaintiff’s complaint for failure to state a claim upon which relief can be granted, pursuant to RUSCC 12(b)(4), and alternatively for summary judgment. Plaintiff opposes defendant’s motions, and has cross-moved for summary judgment. The par[498]*498ties have not requested oral argument and the court is of the view that oral argument is not necessary under the circumstances of this case. For the reasons discussed below, the court finds merit in defendant’s position.

FACTS

Plaintiff Lahti Patrick Kirwin was first diagnosed as suffering from PTSD in August of 1982 while hospitalized in a Veteran’s Administration (VA) hospital in Kansas.3 Since that time, he has been diagnosed as suffering from various personality disorders, alcohol and marijuana abuse, and PTSD. Plaintiff alleges his PTSD had its genesis in various traumas he suffered while serving in the military from 1969 to 1978, including combat duty in Vietnam and Thailand.

On October 10, 1969, plaintiff was drafted into the United States Marine Corps at eighteen years of age. The administrative record indicates that plaintiff’s childhood and youth were normal and he exhibited no unusual behavior problems. Having been raised as a Seventh Day Adventist, and having attended church schools for most of his youth, plaintiff requested military duty as a conscientious objector. Plaintiff’s mandatory entrance physical examination upon induction into the Marines revealed no physical or psychological abnormalities. Plaintiff contends that, during basic training, he suffered physical and verbal abuse from drill instructors as well as from other trainees, in an effort to compel plaintiff to surrender his conscientious objector status. Plaintiff believes that his PTSD began to manifest itself as a result of this harassment. Ultimately, plaintiff did surrender his status as a conscientious objector, and adapted well enough to military life to be promoted to Sergeant E-5.

During plaintiff’s first two tours of duty, he received “average” to “excellent” ratings for conduct and efficiency. He also received several military decorations, including the Vietnam Campaign Medal, the Service Medal and the Navy Unit Commendation. On August 6, 1971, plaintiff was released from active duty, but he reenlisted for another tour of duty on October 14, 1971. In 1972, plaintiff was sent to Da Nang, Vietnam, where he served as a security guard in supply for three months. Thereafter, he was sent to a combat zone in Thailand where he served six months as a perimeter guard. As a security guard, plaintiff claims he was repeatedly subjected to sniper, rocket and mortar attacks, but was under strict orders not to return fire. During one incident, plaintiff recalls being blown through a wall during rocket fire, but apparently he was not seriously injured. There is no corroboration for this episode in his military or medical records. Plaintiff characterizes his experience in Thailand as “light to heavy combat assault” in which he continuously faced life-threatening situations. Plaintiff admits to taking several human lives during the course of combat, which he claims caused him great emotional distress because killing conflicts with his religious upbringing.4

Plaintiff alleges that he first began to experience symptoms of PTSD at Camp [499]*499Pendleton, when he returned from Thailand. He began to drink alcohol heavily to avoid recurrent disturbing thoughts and nightmares about his experience in Thailand. Upon his return to Camp Pendleton, plaintiff nevertheless reenlisted for overseas duty and was sent to Okinawa, Japan. During his service in Japan, plaintiff was promoted to sergeant. When he again returned stateside, plaintiff began to have what he characterizes as “serious behavioral problems.” For example, within six months after his return to the United States, plaintiff was arrested for driving while under the influence of alcohol (DUI), and in 1972 he was sent to Long Beach Naval Hospital for sixty days of alcohol treatment. Upon his release from the hospital, although plaintiff was not diagnosed as an alcoholic, he was not permitted to return to his unit, and was transferred instead to the Alameda Naval Air Station, where he spent the last two years of his military career. During that time, plaintiff contends that he caused disciplinary problems, including possession of alcohol and marijuana, and was picked up three more times for DUI.

On May 20, 1978, plaintiff was given an honorable discharge from the military, although his discharge was classified as RE-4 to prevent plaintiff from reenlisting when he tried to do so. Plaintiff alleges that his RE-4 discharge supports the conclusion that he was suffering from PTSD at the time of his discharge, and was therefore “unfit for duty.” Defendant, on the other hand, concludes from his military records that plaintiffs disciplinary problems and poor work habits induced the RE-4 discharge.

On May 9, 1978, just prior to his discharge, plaintiff was given a pre-separation physical examination. In the Report of Medical History that plaintiff was required to complete as part of the examination, he answered “no” to the question of whether he had ever had, or presently had “nervous trouble of any sort.” Plaintiff also signed a mandatory Statement of Understanding indicating that he had been informed of his duty to advise the examining physician if he felt that he had a “serious defect or condition that interferes with the performance of [his] military duties.” Plaintiffs statement indicated only that he was currently taking no medication and that he was experiencing “bad back trouble.” As a result of the physical examination, plaintiff was declared “fit for full duty” and thus eligible for discharge. Although plaintiff now challenges that physical examination as “cursory,” he did not challenge it at any point in the prior administrative proceedings.5

After his discharge in 1978, plaintiff held a variety of law enforcement positions, beginning in October 1978, when he was hired by the Topeka, Kansas Police Department. In March 1980, plaintiff was hired to be the City Marshall of Rossville, Kansas, where he stayed until October 1981. In December 1981, plaintiff was hired by the Sabetha Police Department, where he worked until January 1982, when he became Deputy Sheriff in Nemeha County, a position he was forced to resign in July 1982 due to drunk driving charges which appear to be related to plaintiff’s motorcycle accident in July 1982, although the record is not clear on this point. As a result of his motorcycle accident, plaintiff was admitted to the VA hospital in Topeka, Kansas, where he underwent psychiatric evaluation.

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Bluebook (online)
23 Cl. Ct. 497, 1991 U.S. Claims LEXIS 255, 1991 WL 110912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirwin-v-united-states-cc-1991.