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Army must reconsider pilot’s disability retirement rating

Army must reconsider pilot’s disability retirement rating

Where a former Army pilot presented a significant amount of evidence showing that he suffers from chronic post-traumatic stress disorder, or PTSD, and that his PTSD was the result of the 1976 plane crash and/or his service in Vietnam, the Army acted arbitrarily and capriciously when it denied his application to correct his disability retirement rating from 50 percent to 100 percent retroactive to 1978.


John R. Harrison filed this civil action for declaratory and injunctive relief against the Secretary of the Air Force, to challenge the September 2019 decision of the Air Force Board for Correction of Military Records, or AFBCMR, denying his application to correct his disability retirement rating from 50 percent to 100 percent retroactive to 1978, when he retired from the Air Force on the basis of PTSD resulting from his service in Vietnam and a military plane crash in 1976. The parties have fully briefed their cross-motions for summary judgment, which they agreed would be based on the administrative record.


Defendant has moved to dismiss the complaint for lack of subject matter jurisdiction on the grounds that plaintiff’s claims are “in substance” claims for monetary relief and therefore fall within the exclusive jurisdiction of the Court of Federal Claims pursuant to the Tucker Act. At oral argument, defendant clarified that it contests jurisdiction only to the extent that Harrison requests that this court grant relief by correcting his disability retirement rating to 100 percent retroactive to 1978 and does not contest jurisdiction to the extent that the remedy sought is a remand to the AFBCMR.

Under the APA, a district court is authorized to “hold unlawful and set aside agency action, findings, and conclusions,” and the ordinary remedy upon a finding that final agency action violates the APA is vacatur of the decision and remand to the agency.

Accordingly, the court finds that it lacks the authority to grant Harrison’s request to change his military record. At oral argument, Harrison agreed to drop that form of relief from the complaint and agreed that remand is the appropriate remedy should he prevail on the merits. Nevertheless, the court is required to independently determine that jurisdiction exists under the APA.

Judicial review is proper under the APA if “the relief sought is nonmonetary and no adequate remedy exists in another court.” Here, the essence of the complaint is equitable relief. Harrison asks that this court set aside the AFBCMR’s decision as arbitrary and capricious and remand his application to the AFBCMR. which is “the heartland of equitable relief available under the APA, not money damages.” Accordingly, plaintiff’s claims are not “in essence” claims for money damages, and they fall within this court’s jurisdiction under the APA.


The court agrees with Harrison that the AFBCMR’s decision on his application was arbitrary and capricious and unsupported by substantial evidence. Harrison presented a significant amount of evidence, including diagnoses from Dr. Johnson, Dr. Cooper and VA physicians, showing that he suffers from chronic PTSD and that his PTSD was the result of the 1976 plane crash and/or his service in Vietnam. Harrison also provided evidence showing that he was experiencing PTSD symptoms in 1978 such that he was unfit for service.

Dr. Cooper, who had treated Harrison since 2009, met with him 126 times, and also spoke with his wife, reported that Harrison has been suffering from PTSD since the plane crash and provided a long list of psychiatric symptoms that he displayed at the time of discharge. Dr. Johnson also expressed that based on the horrific trauma that Harrison experienced in the 1976 plane crash, he was more likely than not suffering from PTSD symptoms that were unfitting for duty in 1978.

Despite this evidence, the AFBCMR and the Air Force’s medical advisors recommended against relief, and in doing so, they placed significant weight on clinical evidence from Harrison’s period of service and the absence of a contemporaneous record of PTSD symptoms, discounting the more recent opinions of Harrison’s physicians and treatment providers. There are several problems with the AFBCMR’s analysis.

Accordingly, the September 2019 decision is vacated and has been remanded to the AFBCMR for reconsideration of Harrison’s claims that his record should include a diagnosis of PTSD and that his disability rating should be increased to a higher percentage based on his PTSD retroactive to 1978.

Plaintiff’s motion for summary judgment granted. Defendant’s motion to dismiss, or in the alternative, for summary judgment denied.

Harrison v. Kendall, Case No. 1:22-cv-1298, April 20, 2023. EDVA at Alexandria (Brinkema). VLW 023-3-216. 38 pp.

VLW 023-3-216

Virginia Lawyers Weekly

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