Harrison v. Kendall

670 F.Supp.3d 280

John R. HARRISON, Plaintiff, v. Frank KENDALL III, Secretary of the Air Force, Defendant.

1:22-cv-1298 (LMB/JFA)

United States District Court, E.D. Virginia, Alexandria Division

Signed April 20, 2023

Elizabeth Diane Ferrill, Doris Johnson Hines, Paul W. Browning, Pro Hac Vice, Thomas E. Sullivan, Pro Hac Vice, Nicholas A. Cerulli, Thomas Eric Sullivan, Pro Hac Vice, Paul Browning, Finnegan, Henderson, Farabow, Garrett & Dunner LLP, Washington, DC, Emilia Ward VandenBroek, Pro Hac Vice, Connecticut Veterans Legal Center, West Haven, CT, for Plaintiff.

Brendan Thomas Moore, DOJ-CIV, Washington, DC, Robert Aaron Caplen, United States Attorney's Office, Washington, DC, Peter B. Baumhart, United States Attorney's Office, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

Leonie M. Brinkema, United States District Judge

Before the Court is Plaintiff's Motion for Summary Judgment [Dkt. No. 43] and Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment [Dkt. No. 46]. For the reasons stated in open court and as further explained in this Memorandum Opinion, Plaintiff's Motion for Summary Judgment was granted, Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment was denied, and the Air Force Board for Correction of Military Records' ("AFBCMR") September 2019 decision was remanded for reconsideration.¹

I. BACKGROUND

Plaintiff John R. Harrison ("Harrison" or "plaintiff") filed this civil action for declaratory and injunctive relief against the Secretary of the Air Force, Frank Kendall III ("defendant"), to challenge the AFBCMR's September 2019 decision denying his application to correct his disability retirement rating from 50% to 100% retroactive to 1978, when he retired from the United States Air Force ("Air Force"), on the basis of post-traumatic stress disorder ("PTSD") resulting from his service in Vietnam and a military plane crash in 1976.

A. Statutory and Regulatory Background

A service member ordinarily must serve 20 years to retire from the Air Force with retirement benefits, but pursuant to 10 U.S.C. § 1201, the Secretary of the Air Force may grant early retirement with retired pay to a service member who is determined to be "unfit to perform the duties of the member's office, grade, rank, or rating because of physical disability incurred while entitled to basic pay[.]" 10 U.S.C. § 1201(a). Among other requirements, the disability must be "at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination" and, as relevant here, "the proximate result of performing active duty[.]" Id. § 1201(b).

The Air Force's Physical Evaluation Board determines the fitness of service members. The Air Force Manual in effect at the time of Harrison's fitness evaluation provided that "[a] member is unit [sic] because of physical disability when [the] member is clearly unable to perform the duties of his or her office, grade, or rank, in such a manner as to reasonably fulfill the purpose of [the] member's employment on active duty." Air Force Manual 35-4, ¶ 3-26(c) (Apr. 12, 1976). The Air Force Manual defined a physical disability as "any manifest or latent impairment due to disease or injury, regardless of degree, which reduces or precludes an individual's actual or presumed ability to engage in gainful or normal activity," including "mental disease but not such inherent defects as behavior disorders, personality disorders, and primary mental deficiency." Id. ¶ 3-26(d). Although "[t]he mere presence of defects is not sufficient to justify a finding of unfitness," "the aggregate effect of all defects present must be considered both from the standpoint of the effect on the member's performance, and requirements which may be imposed on the Service concerned to maintain and protect [the] member during future duty assignments." Id. ¶ 3-26(c). Once a member has been determined to be unfit because of physical disability, the Physical Evaluation Board is responsible for identifying, categorizing, and assigning a percentage rating for each ratable condition or defect in accordance with the Veterans Administration Schedule for Rating Disabilities. Id. ¶¶ 3-26(e), 3-27. The Physical Evaluation Board then determines whether a service member is entitled to disability benefits, which are based on the combined percentages of all listed compensable defects. Id. ¶ 3-34; see 10 U.S.C. § 1401 (detailing computation of disability retired pay).

Under 10 U.S.C. § 1552, the secretaries of the military departments, including the Air Force, are authorized to correct a military record "when the Secretary considers it necessary to correct an error or remove an injustice." Id. § 1552(a)(1). These determinations are to be "made by the Secretary acting through boards of civilians of the executive part of that military department." Id. A request for correction must be filed within three years of the discovery of the error or injustice; however, the board may excuse a failure to file within this period "if it finds it to be in the interest of justice." Id. § 1552(b). The Secretary is authorized to make payments for a claim of pecuniary benefits if "as a result of correcting a record . . . the amount is found to be due the claimant on account of his . . . service . . . in the Air Force[.]" Id. § 1552(c)(1).

The AFBCMR acts in three-member panels, 32 C.F.R. § 865.4(c), and may obtain advisory opinions on an application from "any Air Force organization or official," id. § 865.4(a)(1). When the AFBCMR obtains a medical advisory opinion with respect to a "former member of the armed forces who was diagnosed while serving in the armed forces as experiencing a mental health disorder" and the request for correction of records relates to a mental health disorder, the opinion must include "the opinion of a clinical psychologist or psychiatrist[.]" 10 U.S.C. § 1552(g)(1).

Ultimately, the applicant bears the burden of "providing sufficient evidence of material error or injustice." 32 C.F.R. § 865.4(a). The AFBCMR "will recommend relief only when a preponderance (more likely than not) of evidence substantiates that the applicant was a victim of an error or injustice." Air Force Instruction 36-2603, ¶ 4.1 (Sept. 18, 2017).

B. Harrison's Service in the Air Force

After serving in the United States Army Reserve from 1966 to 1968, Harrison joined the Air Force in 1969, where he served as a pilot. Administrative Record ("AR") 51-54, 62. Between 1971 and 1973, Harrison fought in the Vietnam war, flying B-52 bombing runs out of Guam, Cambodia, and Thailand, during which he was subjected to heavy enemy fire and near-misses with missiles and witnessed the shooting down of many fellow pilots. AR 66. Harrison received several honors and awards during his service and ultimately rose to the rank of captain. AR 62. In November 1973, Harrison was transferred back to Massachusetts and then to Michigan, where he served as a flight instructor and then became chief of training. AR 66.

On September 26, 1976, Harrison was a passenger on a KC-135 Air Force Tanker, along with 14 other passengers and five crew, en route to a Strategic Air Command training session in Nebraska, when the plane crashed near Alpena, Michigan. AR 79-80, 217-18. As Harrison recalled the crash, everything suddenly went white from "arcing electricity everywhere," the auxiliary power unit blew up sending shrapnel and fuel fumes through the plane, the plane dropped from 15,200 feet, and "then we hit the ground and it was like a blow torch." AR 85, 217-18. Harrison was trapped in the burning plane and could see his hands and body burning, while others around him were "screaming and writhing in the flames, being burned beyond recognition," "like they were melting," and he "assumed this was the end." AR 66. He escaped the wreckage after his seatbelt had melted through, and he was able to crawl through an opening in the fuselage. AR 67, 85, 229. The plane then exploded. Id. Ten passengers and all five crew members were killed; Harrison was one of only five survivors. AR 218.

After crawling out of the wreckage, Harrison had to wait in 38-degree temperatures with open burn wounds with the other survivors until they were rescued about four hours later and medevacked to Alpena General Hospital. AR 67, 117. According to Harrison, he was placed in the " 'dying' room" for three days because the hospital did not think he would survive. AR 67. He was subsequently flown to the Brooke Army Medical Center in San Antonio, Texas, where he was treated in the burn unit for five months. AR 67, 117. Harrison had second-and third-degree burns over 25% of his body, including on his face, back, thighs, arms, and hands. AR 88-89. He received multiple surgeries and skin grafts for his anterior thighs, forearms, and hands, which helped save his hands from amputation. AR 89, 149. Harrison also had facial reconstruction surgery for his mouth and lips. Id. During his stay in the hospital, he refused to let his young son and newborn daughter see him because of his appearance. AR 67.

On January 13, 1977, an Air Force medical examination signed by Dr. Hugh Peterson found that Harrison had "complete healing of all burns with significant scarring in many areas" but that "the skin coverage of his hands are not suitable for use required by a pilot," anticipating that "his hands will never be serviceable for activity as a pilot or any form of heavy work." AR 90. As a result, the Medical Evaluation Board recommended that Harrison be found not qualified for duty and that he be presented to the Physical Evaluation Board. AR 224-25. On January 31, 1977, the Physical Evaluation Board placed Harrison on the Temporary Disability Retirement List with a 100% disability rating, effective February 22, 1977. AR 226-28. Harrison moved his family to Connecticut and worked for his father's industrial lumber business in sales; however, he...