Real v. United States

18 Cl. Ct. 118, 1989 U.S. Claims LEXIS 175, 1989 WL 100576
CourtUnited States Court of Claims
DecidedAugust 31, 1989
DocketNo. 53-89C
StatusPublished
Cited by6 cases

This text of 18 Cl. Ct. 118 (Real 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
Real v. United States, 18 Cl. Ct. 118, 1989 U.S. Claims LEXIS 175, 1989 WL 100576 (cc 1989).

Opinion

OPINION

REGINALD W. GIBSON, Judge:

Introduction

Jerry Lynn Real (plaintiff), a former United States Navy serviceman, seeks disability retirement pay pursuant to 10 [120]*120U.S.C. § 1201 et seq. (1989).1 More specifically, plaintiff seeks review of a May 6, 1987 decision of the Board for the Correction of Naval Records (BCNR) which denied plaintiff’s application for permanent disability. This status was sought because plaintiff was later diagnosed with a condition, now known as Post Traumatic Stress Disorder (PTSD), eight years after his discharge from active duty on February 25, 1974. Plaintiff’s January 31, 1989 petition in this court seeks review on the grounds that the BCNR denial of his application for correction was arbitrary, capricious, and not otherwise authorized by law. Further, plaintiff seeks declaratory and injunctive relief.

Pursuant to RUSCC 12(b), the United States (defendant) moved to dismiss, alleging that plaintiff’s action is jurisdictionally barred by the six-year statute of limitations contained in 28 U.S.C. § 2501 (1989). This court’s jurisdiction is premised on 28 U.S.C. § 1491 (1989). Based on the pleadings, and without oral argument, plaintiff’s claim is barred by the six-year statute of limitations.

Facts

On November 11, 1966, plaintiff enlisted through a deferred entry program in the United States Navy at the age of 17. Thereafter, he entered the service on February 14, 1967, and was sent to Vietnam in December of that same year. A mandatory enlistment physical examination disclosed no physical or psychological defects. Plaintiff voluntarily extended his tour of duty in Vietnam three times. During this period, he served as a helicopter crew chief and door gunner in conjunction with Navy Special Forces Operations. While acting as gunship backup for covert missions carried out by Navy Intelligence and Riverine forces, plaintiff was repeatedly exposed to heavy combat which involved numerous firefights, heavy destruction, and extensive killing. Plaintiff was also exposed to the combat deaths of many fellow soldiers, some of which, according to plaintiff, were horrible experiences. On May 6, 1969, plaintiff re-enlisted in the Navy for a six-year term. His re-enlistment physical examination disclosed some physical injuries, but no psychiatric defects. Plaintiff was thus pronounced fit for re-enlistment. Although he requested to further extend his tour of duty in Vietnam, plaintiff was transferred stateside in August, 1970.

Upon return to the United States in 1970, plaintiff was stationed in Beeville, Texas. On July 12, 1971, plaintiff reported to the Naval Dispensary in Beeville complaining that he had been hearing things and that the noise bothered him severely. Further, plaintiff reported that he had been taking his anxieties out on his family and that they had recently filed assault charges against him. As a consequence, he received a psychiatric consultation on the next day and, on July 16, 1971, was placed on the psychotropic drug Thorazine. He returned to the dispensary for further consultation and observation on July 20, at which time his condition was described as [121]*121“about the same” as it had been the previous week.

Four days later, on July 24, 1971, plaintiff voluntarily went to the Naval Hospital emergency room in Corpus Christi, Texas. He reported urges to kill his wife, having found himself choking her immediately pri- or to reporting to the emergency room. Medical reports prepared by LCDR Kelley described plaintiff as having intense feelings of guilt and anger, as well as both visual and auditory hallucinations. Plaintiff described these experiences as “flashbacks.” Thereafter, he was admitted to the hospital where he remained until August 25, 1971. During this period of hospitalization, plaintiff reported that he had experienced an increased level of irritability and annoyance with third persons. Dr. Kelley diagnosed plaintiffs condition as drug-induced psychosis with flashbacks.2 Upon discharge from the hospital, plaintiff was considered fully rehabilitated and therefore fit for full active duty.

On June 6,1973, plaintiff was required to submit to another psychiatric examination for re-evaluation. The reason for the examination, according to the clinical record prepared by Dr. Kelley, was plaintiffs history of psychiatric problems. The consultation report stated that plaintiff had a history of difficulty in managing aggressive urges, and diagnosed plaintiff as having an aggressive personality with poor impulse control that had the potential to deteriorate into a psychotic state if under severe stress. Plaintiff did not receive any further psychiatric evaluation or treatment while in the Navy.

Plaintiff received an honorable discharge from the United States Navy on February 24, 1974. Concurrent with his discharge, he was examined by Navy physicians, who concluded that he was fit for full active duty. This conclusion was certified by Navy physicians in a February 25, 1974 Report of Medical Examination. In addition to the usual medical information, including a “normal” clinical evaluation of plaintiffs psychiatric condition in box 42, the report also contained the following certification signed by plaintiff: “I certify that I have been informed of and understand the provisions of BUMED INSTRUCTION 6120.6.”

This instruction provides that all personnel must be apprised of the possibility that disability benefits may be denied by reason of their failure to rebut, under certain circumstances, a finding of fitness for active duty.3 If, at the time of discharge, a service member is found fit for active duty, the medical officer conducting the examination is required to inform the person of the results, the unavailability of benefits after discharge, and the right to contest the results at that time. The service member is required to certify that he or she has been informed of and understands the provisions of the instruction.4 Plaintiff was found fit [122]*122for active duty, and failed to immediately object to this finding prior to discharge. He therefore certified that he had been informed of and understood BUMED INSTRUCTION 6120.6. Consequently, there was no further evaluation of plaintiffs condition and thus, his discharge was not the result of a disability.

Following his discharge in 1974, plaintiff was sporadically and inconsistently employed, primarily as a truck driver. Plaintiffs employment history is described as consisting of numerous jobs of short duration. Plaintiff acknowledged that during this period he had a tendency to abuse alcohol, and, to a lesser degree, some street drugs. On February 16,1979, plaintiff was alleged to have sexually assaulted a female relative. While plaintiff later stated that he was unable to recall any of the circumstances that were alleged to have taken place because of two days of heavy drinking, plaintiffs siblings attributed the incident to plaintiffs hostile attitude towards his family. Plaintiff was convicted and incarcerated in the Nebraska Penal and Correctional Complex in Lincoln, Nebraska, until he was paroled for diagnosis and treatment of his psychiatric problems on September 26, 1983.

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Cite This Page — Counsel Stack

Bluebook (online)
18 Cl. Ct. 118, 1989 U.S. Claims LEXIS 175, 1989 WL 100576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/real-v-united-states-cc-1989.