Furthermore, the constructive service doctrine is inapplicable where a former service member claims that "he should have been retained on active duty merely for disability evaluation . . . ." Barnick v. United States, 591 F.3d 1372, 1379-80 (Fed. Cir. 2010). Because plaintiff has not made a showing that his separation was involuntary, plaintiff cannot invoke the constructive service doctrine.
The main issues in this case are the nature of Plaintiff's claim and under which statute he is requesting relief. According to the Federal Circuit, a service member who is injured in the line of duty may claim entitlement to two different types of pay: "incapacitation pay — active duty pay during a period of physical incapacitation — and also . . . disability payments, including disability retirement, if the disability is permanent." Barnick v. United States, 591 F.3d 1372, 1374-1375 (Fed. Cir. 2010). Plaintiff characterizes his claim as one for back pay for improperly denied incapacitation pay. A claim for back pay arises under the Military Pay Act, 37 U.S.C. § 204.
The main issues in this case are the nature of Plaintiff's claim and under which statute he is requesting relief. According to the Federal Circuit, a service member who is injured in the line of duty may claim entitlement to two different types of pay: "incapacitation pay – active duty pay during a period of physical incapacitation – and also . . . disability payments, including disability retirement, if the disability is permanent." Barnick v. United States, 591 F.3d 1372, 1374-1375 (Fed. Cir. 2010). Plaintiff characterizes his claim as one for back pay for improperly denied incapacitation pay. A claim for back pay arises under the Military Pay Act, 37 U.S.C. § 204.
We review a decision of the Claims Court granting judgment on the administrative record without deference, applying the same standard of review as the trial court. Barnick v. United States , 591 F.3d 1372, 1377 (Fed. Cir. 2010). We therefore will not disturb the decision of the AFBCMR denying a special board to correct the decision of the Selective Continuation Board "unless it is arbitrary, capricious, contrary to law, or unsupported by substantial evidence."
Id. (citing SECNAVINST 1850.4E, § 3201(a)); see also Barnick v. United States, ,591 F.3d 1372, 1375 (Fed. Cir. 2010) ("A claim for disability is first considered by a [MEB], which reviews the individual's medical records to determine the nature of the disability."). The MEB "is comprised of physicians and is convened to 'evaluate and report on the diagnosis; prognosis for return to full duty; plan for further treatment, rehabilitation, or convalescence; estimate of the length of further disability; and medical recommendation for disposition of such members.'"
The Secretary concerned may extend such period in any case if the Secretary determines that it is in the interests of fairness and equity to do so."). While Mr. McGhee claims that, based on the Military Pay Act, he is entitled to additional incapacitation pay beyond the 14 months and 11 days that ABCMR awarded him, see ECF No. 22, the Federal Circuit has expressly held that a statute governing incapacitation pay is not money-mandating because it provides the government with plenary discretion to determine an individual's eligibility for more than six months of incapacitation pay. Barnick v. United States, 591 F.3d 1372, 1378 (Fed. Cir. 2010) ("Any additional incapacitation pay under 37 U.S.C. § 204(g) is wholly at the discretion of the Air Force, and courts lack jurisdiction over such a claim[.]"). Because Mr. McGhee seeks incapacitation pay for a period greater than six months, his Military Pay Act claim, based, as it is, upon 37 U.S.C. § 204 (g)-(h), is not a money mandating claim and, thus, is not within this Court's jurisdiction.
As the Claims Court explained, "[t]he ABCMR and ADRB both concluded [Mr. Sanders] was fit for duty at the time of his discharge" and both Boards "found that no support existed for the notion that referral to a Medical Evaluation Board, the first step towards establishing entitlement to medical retirement, was indicated at any time during [Mr. Sanders'] service." Sanders, 2023 WL 6307661, at *9 (footnote omitted); see, e.g., SAppx173-74 (December 2002 mental health evaluation resulted in "no evidence of treatable psychiatric disorder that warranted disposition through medical channels or a Medical Evaluation Board"); SAppx221 ("[Mr. Sanders'] medical records do NOT at the time of his discharge reasonably support his having had a boardable medical condition" and "he did meet mental-health standards"); see also Barnick v. United States, 591 F.3d 1372, 1375 (Fed. Cir. 2010) ("A claim for disability is first considered by a Medical Evaluation Board ('MEB'), which reviews the individual's medical records to determine the nature of the disability.")
"We review a decision of the [Court of Federal Claims] 'granting or denying a motion for judgment on the administrative record without deference.'" Bader v. UnitedStates, 97 F.4th 904, 909 (Fed. Cir. 2024) (quoting Barnick v. United States, 591 F.3d 1372, 1377 (Fed. Cir. 2010)). We will not disturb the Army's decision unless "it is arbitrary, capricious, contrary to law, or unsupported by substantial evidence."
We review a decision of the Claims Court "granting or denying a motion for judgment on the administrative record without deference." Barnick v. United States, 591 F.3d 1372, 1377 (Fed. Cir. 2010); see also Lewis v. United States, 458 F.3d 1372, 1376 (Fed. Cir. 2006). Applying the same standard of review as the Claims Court, "we will not disturb the decision of the AFBCMR unless it is arbitrary, capricious, contrary to law, or unsupported by substantial evidence."
"Under the constructive service doctrine, ‘military personnel who have been illegally or improperly separated from service are deemed to have continued in active service until their legal separation.’ " Barnick v. United States , 591 F.3d 1372, 1379 (Fed. Cir. 2010) (quoting Christian v. United States , 337 F.3d 1338, 1347 (Fed. Cir. 2003) ). "The basic premise of the constructive service doctrine is to ‘return successful plaintiffs to the position that they would have occupied "but for" their illegal release from duty.’ "