Appeal from the United States Court of Federal Claims.
Before Newman, Lourie and Clevenger, Circuit Judges.
Ronald Black appeals the April 28, 1993 order of the United States Court of Federal Claims granting the Government's motion for summary judgment, denying Mr. Black's request for correction of his military records and dismissing his claim for veteran disability retirement benefits. Black v. United States, 28 Fed. Cl. 177, 186-87 (1993). The Court of Federal Claims also dismissed Mr. Black's due process claim under the Fifth Amendment for lack of subject matter jurisdiction. Id. at 186. We affirm.
Mr. Black entered the United States Air Force in July 1978. After successfully completing Officer Training School (OTS) at Lackland Air Force Base, Mr. Black received a commission at the rank of second lieutenant. While in route to his initial duty station, Mr. Black was admitted on October 30, 1978 to the Veterans Administration (VA) Hospital in Albuquerque, New Mexico, where he was provisionally diagnosed as suffering from "suspected paranoid schizophrenia." Mr. Black had no history of prior psychiatric disability or illness.
On November 4, 1978, Mr. Black was transferred to the hospital at Sheppard Air Force Base. After 18 days of observation, his diagnosis was downgraded to "paranoid personality." The Air Force conducted a medical examination of Mr. Black for the purpose of separation from active duty, and initiated an administrative separation action on January 17, 1979. Mr. Black elected to resign rather than challenge the proceedings, and declined the Air Force's offer of physical and psychiatric examinations upon separation. The Air Force honorably discharged Mr. Black on March 30, 1979. Based upon his medical records, the Air Force rated Mr. Black as "severe paranoid personality, chronic," a noncompensable condition. See 32 C.F.R. § 725.228 (1981).
On February 1, 1980, Mr. Black requested reinstatement as a second lieutenant, claiming that he was now capable of performing the duties and fulfilling the responsibilities of an Air Force officer. The Air Force Board for Correction of Military Records (Board) denied this request. Upon Mr. Black's petition for reconsideration, the Board sought an advisory opinion from the Medical Standards Division of the Office of the Surgeon General (OSG). The OSG concluded that letters from two private psychiatrists submitted by Mr. Black "reveal[ed] no evidence to justify altering the action, Disposition or diagnosis in this case." The Board thus denied Mr. Black's petition on April 20, 1982.
Mr. Black had also sought relief with the VA, filing a veteran disability benefits claim on April 9, 1979. The VA denied Mr. Black's claim on April 19, 1979, based on a diagnosis of "severe paranoid personality." On March 3, 1986, Mr. Black refiled for VA benefits, claiming an incorrect diagnosis. On February 2, 1989, the VA diagnosed Mr. Black as suffering from paranoid schizophrenia and awarded him a 30 percent service connected disability rating. Mr. Black then applied to the Board on March 17, 1989 to correct his military records pursuant to 10 U.S.C. § 1552 (1988 & Supp. IV 1992) and to request that the Government pay Mr. Black benefits to which he was allegedly entitled since April 1979 as a result of his disability. Relying on the OSG once again for an advisory opinion recommendation, the Board denied Mr. Black's claim on November 21, 1989.
Mr. Black, pro se, filed a complaint in the United States Claims Court*fn* on February 21, 1990, challenging the Board's denial of relief as arbitrary, capricious and contrary to the clear evidence of nine medical authorities. Mr. Black later amended his complaint to claim that he was the victim of covert intelligence activity aimed at convincing Mr. Black that he was insane. In addition, Mr. Black sought to recover $222,652 in disability retirement benefits pursuant to 10 U.S.C. § 1201 (1988 & Supp. IV 1992), which Mr. Black never received because the Air Force allegedly failed to diagnose him correctly in March 1979 as suffering from paranoid schizophrenia. The Court of Federal Claims dismissed Mr. Black's complaint as barred by the statute of limitations under 28 U.S.C. § 2501 (1988 & Supp. IV 1992). Black v. United States, No. 90-171 C (Cl. Ct. Feb. 23, 1990). On appeal, this court vacated the order and remanded the case. Black v. United States, 928 F.2d 412 (Fed. Cir. 1991) (table). The Court of Federal Claims remanded the case to the Board with instructions, inter alia, to investigate whether Mr. Black had been the subject of covert intelligence activity and to hold a hearing of record permitting Mr. Black to call and cross-examine witnesses and produce any relevant evidence. Black v. United States, 24 Cl. Ct. 465, 470 (1991).
At the Board's request, the Air Force Office of Inspector General (IG) conducted the investigation. The IG reviewed relevant Board files, examined military police and intelligence records, and conducted telephone interviews with Mr. Black and seven former members of his military unit that Mr. Black identified as witnesses. The IG thus concluded that there was no evidence of any covert intelligence activity aimed at convincing Mr. Black that he was insane. On May 1, 1992, Mr. Black failed to appear at a hearing scheduled by the Board to comply with the remand order from the Court of Federal Claims. In Mr. Black's absence, the Board examined the IG report and the entire administrative record and concluded that there was insufficient relevant evidence to find error or inJustice which would warrant correction of Mr. Black's military record. On April 28, 1993, the Court of Federal Claims granted the Government's motion for summary judgment, concluding that substantial evidence existed to support the Board's decision to deny Mr. Black's petition for correction of his military records and to dismiss his claim for disability retirement benefits. The Court of Federal Claims also concluded that it lacked subject matter jurisdiction over Mr. Black's due process claim under the Fifth Amendment.
This court reviews judgments of the Court of Federal Claims to determine whether they are premised on clearly erroneous factual determinations or otherwise incorrect as a matter of law. Transamerica Ins. Corp. v. United States, 973 F.2d 1572, 1576 (Fed. Cir. 1992). As a matter of law, the grant of summary judgment by the Court of Federal Claims receives de novo review by this court. Confederated Tribes of Colville Reservation v. United States, 964 F.2d 1102, 1107 (Fed. Cir. 1992). In this case, the Court of Federal Claims made no additional factual ...