Pillette v. United States
675 F. App'x 1006
| Fed. Cir. | 2017Background
- Pillette was shot in Vietnam in Nov. 1965, treated in military hospitals, and awarded the Purple Heart; his enlistment term expired June 7, 1966, but he remained in service for continued treatment.
- On July 22, 1966, Pillette signed an affidavit consenting to retention for continued medical care and stating he could be considered for disability retirement “if eligible.”
- An Army Medical Evaluation Board (MEB) convened Sept. 8, 1966, found Pillette fit for duty (with speech limitations), recommended return to duty, and noted separation was permissible because he was past his ETS; Pillette did not appeal the MEB and was honorably discharged Sept. 22, 1966.
- The VA later awarded a 50% disability rating effective Sept. 23, 1966. In 2009 Pillette sought correction of his record to a medical retirement; the Army Board for Correction of Military Records (ABCMR) denied relief and refused reconsideration requests through 2014.
- Pillette sued in the Court of Federal Claims; the court granted the government’s motion for judgment on the administrative record, finding the ABCMR’s decision supported by the MEB’s fitness finding and applicable Army regulations; Pillette appealed to the Federal Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pillette was entitled to a medical retirement/correction of record | Pillette argues the July 1966 affidavit and AR 635-200 required completion of medical care and a PEB, entitling him to disability retirement | Government: MEB found Pillette fit, so PEB referral not required; Army followed AR 635-40 procedures | Court: Affirmed — MEB fitness finding precluded PEB referral; ABCMR decision not arbitrary or capricious |
| Whether the July 1966 affidavit guaranteed a PEB | Pillette contends the affidavit guaranteed PEB consideration | Government: Affidavit only consented to retention for care and possible consideration “if eligible,” did not override AR 635-40 | Court: Affidavit did not guarantee a PEB; it did not supersede governing regulations |
| Whether AR 635-40 applied or was improperly applied (and whether any regulatory error was reversible) | Pillette argues AR 635-40 did not apply because he was retained past ETS and AR 635-200 controls | Government: AR 635-40 governed disability processing for Regular Army; procedures followed were proper | Court: Even if ABCMR cited a later version, any error was harmless; material procedures were the same and MEB entry/finding was proper |
| Waiver of argument that Army failed to complete medical care before discharge | Pillette asserts Army’s failure to complete care undermines MEB/ABCMR conclusions | Government: Argument waived because not raised before ABCMR; no showing how it undermines MEB findings | Court: Argument waived and in any event Pillette did not show it would alter the MEB’s conclusion |
Key Cases Cited
- Roth v. United States, 378 F.3d 1371 (Fed. Cir. 2004) (standard of review for Claims Court judgment on administrative record)
- Fisher v. United States, 402 F.3d 1167 (Fed. Cir. 2005) (ABCMR decisions reviewed for arbitrary, capricious, unsupported by substantial evidence, or not in accordance with law)
- Chambers v. United States, 417 F.3d 1218 (Fed. Cir. 2005) (use of regulations in effect at time of discharge governs analysis)
- Metz v. United States, 466 F.3d 991 (Fed. Cir. 2006) (arguments not raised before the ABCMR are generally waived)