Van Allen v. United States

70 Fed. Cl. 57, 2006 U.S. Claims LEXIS 55, 2006 WL 488601
CourtUnited States Court of Federal Claims
DecidedFebruary 27, 2006
DocketNo. 05-166 C
StatusPublished
Cited by10 cases

This text of 70 Fed. Cl. 57 (Van Allen 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
Van Allen v. United States, 70 Fed. Cl. 57, 2006 U.S. Claims LEXIS 55, 2006 WL 488601 (uscfc 2006).

Opinion

OPINION

MEROW, Senior Judge.

Plaintiff, Harold W. Van Allen, served on active duty in the United States Navy from 1973 to 1978. The prior Opinion and Order reported at 66 Fed.Cl. 294 (2005), dismissed plaintiffs health care reimbursement claims as not within the jurisdiction of this court to resolve and provided for the filing of a more detailed statement of plaintiffs military pay claims. On September 12, 2005, plaintiff filed an amended complaint seeking military disability retirement benefits retroactive to his 1978 Navy discharge. Defendant responded by filing a motion to dismiss the amended complaint as barred by the Statute of Limitations, 28 U.S.C. § 2501. The matter is before the court on defendant’s motion.

FACTS

Together with its motion to dismiss, defendant filed plaintiffs official personnel file and a certified copy of the five-volume administrative file of the Board for Correction of Naval Records (“BCNR”). This record covers the Board’s proceedings on plaintiffs requests for record corrective action to change his 1978 discharge from active duty to disability retirement with resulting compensation. The following facts are derived from plaintiffs personnel file and the BCNR record.

Plaintiff served on active duty in the Navy from June 10, 1973 to June 20, 1978. He held the ranks of Ensign and Lieutenant Junior Grade (“LTJG”). He was qualified as a diver and during his active duty incurred several injuries while diving.

In January of 1978 the Commanding Officer, USS Bolster (ARS 38), the ship to which LTJG Van Allen was assigned, commenced the process for his detachment for unsatisfactory performance. The Commanding Officer’s memo concluded with the recommendation that:

LTJG VAN ALLEN’s retention in the Naval Service should be brought under close scrutiny. It is the recommendation of this Command, that since LTJG VAN ALLEN has proven himself either incapable or non-desirous of performance as an officer and of qualifying in those areas requisite for the Surface Warfare Officer, his reassignment to a new command would be impractical and non productive.

[59]*59(Def. Mot. Dism.App. at DA 130, filed November 2, 2005.)

LTJG Van Allen’s response on February 1, 1978, to his commanding officer’s detachment request stated that “[t]he state of affairs under discussion is the culmination of approximately a year of personality conflict and philosophical differences on the part of myself and my superior officers.” (Id. at DA 131.) LTJG Van Allen stated that he looked forward to fulfilling the remainder of his active duty service obligation “to the maximum extent allowed and in an honorable manner,” and “will gladly accept no cost orders to another [d]iving billet anywhere.” (Id.)

By memorandum, dated March 24, 1978, the Chief of Naval Personnel notified LTJG Van Allen that the request for his detachment for cause from the USS Bolster (AES 38) had been accorded extensive review and was approved. The memo also notified LTJG Van Allen that “[b]ased upon an assessment of the needs of the Navy and your potential for continued service, there is no billet wherein your services can be utilized. Consequently, you will be in receipt of orders shortly directing your release to inactive duty.” (Id. at DA 128.) On June 6, 1978, LTJG Van Allen was examined by Navy physician LCDR G. Weinstein and found qualified for separation. (Id. at DA 119.)

Plaintiff was honorably discharged from active duty on June 20, 1978. No medical reason was provided for this action and there is no evidence in the record that a medical board or a physical evaluation board medically evaluated plaintiff. Plaintiff was transferred to the Naval Reserve on inactive duty and was honorably discharged, effective November 10, 1979, pursuant to 10 U.S.C. § 6389, “for having twice failed of selection for promotion to the next higher grade.” (Id. at DA 78.)

The BCNR file contains records indicating that commencing in 1983 plaintiff sought disability compensation from the Veterans Administration. (Vol. II, BCNR file at 00569.) Also, plaintiff filed an application for Social Security disability insurance benefits on September 17, 1985. (Vol. I, BCNR file at 00046.)

On February 25, 1985, plaintiff initially petitioned the BCNR to correct his record to reflect “the apparent fact that my release from active duty was inreality [sic] due to medical conditions, (undiagnosed systemic lupus E. symptoms).” Plaintiff requested that he “be considered for retro-active benefits from the above condition.” (Vol. I, BCNR file at 271.) By a letter, dated March 21, 1986, the BCNR Executive Director notified plaintiff that the BCNR had denied the February 25,1985 application as follows (in part):

A panel of three members of the Board for Correction of Naval Records, the names and final votes of whom will be furnished upon request, considered your application on 20 March 1986. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion furnished by the Commander, Naval Medical Command dated 4 March 1986, a copy of which is attached, your rebuttal thereto and rating decisions of the Veterans Administration.
After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish probable material error or an injustice. In this connection, the Board substantially concurred with the comments contained in the advisory opinion. Accordingly, your application has been denied.

(Vol. I, BCNR file at 268.)

On January 29, 1988, plaintiff obtained an MRI of the head from the College of Physicians & Surgeons of Columbia University with the result that a large suprasellar arachnoid cyst was seen and reported to the referring physician, Dr. Lucien J. Cote, Department of Neurology. (Vol. I, BCNR file at 206.) By letter, dated June 24, 1988, plaintiff forwarded this information to the BCNR stating, in part, that “[t]his previously [60]*60undiagnosed large cyst can reasonably be assumed to have caused the neurologic active duty symptoms detailed at length in my numerous prior appeal letters and service medical/personnel records.” (Id. at 202.) Plaintiff noted that his immediate concern was “gaining full disability retirement recognition for this cerebral lesion including CHAMPUS coverage.” (Id.) The BCNR Executive Director responded by letter, dated November 7, 1988, that the material submitted was “carefully reviewed.” (Id. at 199.) Plaintiff was informed that:

The fact that you were diagnosed as having an arachnoid cyst in 1988 is not probative of your contention that you were unfit for further service in 1978. Inasmuch as you have not submitted any new material evidence of error or injustice in your record, your request must be denied.

(Id.)

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Cite This Page — Counsel Stack

Bluebook (online)
70 Fed. Cl. 57, 2006 U.S. Claims LEXIS 55, 2006 WL 488601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-allen-v-united-states-uscfc-2006.