Doyon v. United States

1

ROBERT L. DOYON, Plaintiff, v. THE UNITED STATES, Defendant.

No. 19-1964C

United States Court of Federal Claims

August 19, 2024

Michael Clemente, Jordan R. Goldberg, and Dean W. Baxtresser Latham & Watkins LLP, and Eugene Elrod, Bracewell LLP all of Washington, D.C., for the plaintiff.

Elizabeth A. Speck, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, D.C., for the defendant.

OPINION & ORDER

BOHDAN A. FUTEY, Senior Judge

I. Introduction

This military pay case has been ongoing since December 27, 2019. Pl.'s Compl., ECF No. 1. Plaintiff Mr. Robert L. Doyon served in the United States Navy during the Vietnam War and was separated therefrom for unsuitability upon being diagnosed with personality disorder(s). Id. at 1. He challenges the propriety of his separation and alleges he actually developed then-unrecognized Post-Traumatic Stress Disorder (PTSD) that was twice misdiagnosed as a personality disorder. Id. at 9-12. In turn, Plaintiff alleges he should have been medically retired by the Navy. Id. at 12. He petitioned the Board for Correction of Naval Records (BCNR) to that end and, upon failing to obtain the relief he sought, filed suit in this Court. Id. at 3-4. The Court ruled in the Government's favor, Doyon v. United States, No. 19-1964C, 2021 WL 120923, at *14 (Fed. Cl. Jan. 13, 2021), but that decision was vacated by the U.S. Court of Appeals for the Federal Circuit, Doyon v. United States, 58 F.4th 1235, 1237 (Fed. Cir. 2023). Plaintiff's case was remanded to this Court with certain instructions by the Federal Circuit. Id. Upon joint motion by the parties, ECF No. 38, the Court remanded to the BCNR, Order (May 9, 2023), ECF No. 39. Upon again failing to obtain relief by petitioning the BCNR, see ECF No. 43, Plaintiff persisted with litigation against the Government before this Court, Pl.'s Am. Compl., ECF No. 48. At issue now are Plaintiff's motion for judgment on the administrative record, ECF No. 49, and the Government's cross-motion, ECF No. 52. In his motion, Plaintiff seeks to invalidate the BCNR's decision on remand as arbitrary and capricious, and also requests that the Court grant him certain equitable relief, including record correction to reflect medical retirement by the Navy and the benefits associated with it. ECF No. 49 at 40. The Government request that the Court deny Plaintiff's prayer for relief and uphold the BCNR's decision. ECF No. 52 at 18. In the event the Court finds the BCNR's decision to be arbitrary and capricious, the Government seeks remand. Id. at 41.

II. Background

A. Plaintiff's Separation

Plaintiff served in the Navy between March 17, 1966 and November 21, 1968, primarily aboard the U.S.S. Intrepid, a storied aircraft carrier that is now decommissioned and permanently docked in New York City as the centerpiece of the Intrepid Museum. Supp. A.R., ECF No. 45 at SA0132, SA0260-61.

He states that, during his service, he witnessed the U.S.S. Forrestal fire on July 29, 1967, in which 134 Navy servicemembers (Sailors) perished and 161 were injured. Id. at SA0252-53.^[1] Furthermore, he states that he maintained friendships with two of the "Intrepid Four," a group of Sailors who deserted the ship in protest of the Vietnam War on October 23, 1967. Id. at SA0253. Those Sailors fled to the Soviet Union with assistance from Japanese anti-war activists and were ultimately granted asylum by Sweden. Id. Inter alia, Plaintiff maintains he was shunned and harasse d by ship mates during his service owing to his actual or perceived affiliation with the Intrepid Four as well as his fraternization with Black Sailors against the backdrop of racial bigotry displayed by many White Sailors of the day. Id. at SA0253-54. He states that certain shipmates threatened to kill him. Id. at SA0254.

Plaintiff was absent without leave between and including May 18 and May 20, 1968. Id. at SA0026, SA0244. He received non-judicial punishment (NJP) for the latter unauthorized absence (UA). Id.

On August 15, 1968, Plaintiff underwent a medical evaluation by the U.S.S. Intrepid Medical Officer upon being referred by his command owing to "his inability to get along with his peers, his recent mental agitation and deteriorating work habits, and his expression of admiration for" the Sailors who had deserted the ship, that is, the Intrepid Four. Id. at SA0270. The Officer who initially evaluated Plaintiff emphasized the role of Plaintiff's personal opposition to the Vietnam War in the mental deterioration he exhibited. Id. Plaintiff was admitted to the psychiatric ward at Naval Hospital Subic Bay (NHSB) in the Philippines on August 16, 1968 for further observation and evaluation. Id. at SA0272-73. The NHSB Chief of NP Service diagnosed him with passive-aggressive personality disorder pursuant to the Second Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-II).^[2] Id. On or after August 30, 1968, Plaintiff was, however, returned to full duty owing to the Chief of NP Service concluding Plaintiff was capable of readjustment. Id. at SA0273.

Plaintiff states that, on September 23, 1968, he witnessed the deaths of two Sailors in a gruesome airplane crash, one of whom was his friend. Id. at SA0009. In the course of providing other details of what he witnessed, Plaintiff recounts his friend's "body was never recovered, but his legs were sent to the [r]eefers, to later be sent home to his family." Id. at SA0254.

On September 26, 1968, Plaintiff received notice that he was being considered for administrative separation due to his earlier diagnosis at the NHSB psychiatric ward. Id. at SA0278. On September 30, 1968, the U.S.S. Intrepid Commanding Officer recommended Plaintiff's separation for unsuitability to the Chief of Naval Personnel in view of his passive-aggressive personality diagnosis. Id. at SA0277. Plaintiff underwent a second psychiatric evaluation in accordance with Bureau of Naval Personnel Manual (BUPERSMAN) Article C-10310. Id. at SA0277, SA0280. Upon evaluation, he was diagnosed with emotionally unstable personality disorder with noted paranoid traits by a clinical psychologist and psychiatrist at the Naval Station Treasure Island (NSTI) Neuropsychiatric Clinic on October 28, 1968. Id. at SA0280. The two providers deemed administrative separation for unsuitability appropriate under BUPERSMAN Article C-10310. Id. Co nse que ntly, o n No ve mbe r 21, 1968, Plaintiff was administratively separated from the Navy for unsuitability rather than being medically retired. Id. at SA0008.

In response to a good offices inquiry regarding Plaintiff's separation by the late Senator Edward M. Kennedy, on December 20, 1968, Rear Admiral Norris, Assistant Chief of Personnel, explained that "[d]uring the course of hospitalization, [Plaintiff] exhibited a personality best described as a passive-aggressive type. This is not a mental illness, but a personality defect acquired during the formative years. As such, it pre-existed his entry into the Naval Service and made his adjustment to the Naval Service difficult." Id. at SA1323.

B. Post-Separation Developments

Post-separation, Plaintiff enrolled in a Bachelor of Fine Arts program at the University of Massachusetts Amherst but left it prematurely. Id. He states the latter decision was spurred by anguish following the suicide of a close friend from the Navy. Id.

In 1980, the American Psychiatric Association officially recognized PTSD as a diagnosable disorder in the Third Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-III), which was published that year. Id. at SA0027.

On July 20, 2013, Plaintiff was evaluated by a Department of Veterans Affairs (VA) psychiatrist and provisionally diagnosed with Anxiety (Not Otherwise Specified) and Depressive Disorder (Not Otherwise Specified) pursuant to the Fifth Edition of the DSM (DSM-V). Id. at SA0008. Plaintiff filed an Application for Disability Compensation and Related Compensation Benefits with the VA later that year, claiming PTSD as well as "Passive-Aggressive" Diagnosis NP Evaluation, "Unsuitability," and "Personality Disorder" among his disabilities. Id. at SA0402. On June 11, 2014, Plaintiff underwent a Compensation and Pension (C&P) Examination by the VA. Id. at SA0265-73.

In her "C&P Examination Note," Dr. Gayani K. Leonard, a psychiatrist, identified "Witness to a plane crash and a ship accident with multiple casualties" as "Stressor #1" (the sole stressor listed), id. at SA0315, and, applying the diagnostic criteria for PTSD, determined Plaintiff met the DSM-V criteria for PTSD whereas he "developed PTSD symptoms soon after the plane crash, starting with nightmares per his history . . . related to the stressors of the plane crash and the ship accident t hat he w as a w i t ne ss to," id. at SA0319. Dr. Leonard expressly did not incorporate Plaintiff's belief in a conspiracy against him during his service in the Navy in the PTSD diagnosis. Id. She noted Plaintiff "states that after his friends deserted, he felt alienated and lonely. He states that he was huffing Trichloroethylne [sic] and tried to kill himself."^[3] Id. at SA0314.

Plaintiff was granted service-connection for PTSD (with alcohol use disorder) with a 50 percent disability rating, effective December 9, 2013, on September 16, 2014. Id. at SA0009. He was again diagnosed with PTSD following a second C&P Examination by the VA on October 21, 2015. Id. at SA0404. The latter diagnosis was made by Dr Kelly A. Gorman, a clinical psychologist, in conjunction with diagnoses of "Alcohol Use Disorder; Moderate in sustained remission" and "Cannabis Use Disorder; Moderate in sustained remission." Id. at SA0404-05. In turn, the VA increased his disability rating...