OPINION
The United States appeals the judgment of the Claims Court awarding Matthew H. Sawyer disability benefits and ordering correction of his military records to reflect a medical discharge with thirty percent combined disability.
Background
During the damp and foggy early morning hours of October 4, 1981, Sawyer was severely injured when he apparently lost control of his motorcycle and crashed as he returned home from his birthday celebration near Coos Bay, Oregon. Other Navy personnel came upon the accident, administered first aid and called for help. The initial police report attributed the accident primarily to speeding and secondarily to wet pavement, but about an hour later, Sawyer’s blood alcohol level measured 0.23 percent. The Commander of the Naval Medical Command reported that his blood alcohol reading “is twice that of many state laws allowing prosecution for operating a motor vehicle while under the influence of alcohol and also exceeds the limit indicating intoxication.”
Thereafter, the Navy examined Sawyer’s fitness for duty and entitlement to disability benefits for which under 10 U.S.C. §§ 1201-1221 (1988) the secretaries of each military service make the final determination. Section 1201 enables a secretary to authorize disability retirement pay for a service member if the disability is not the result of the member’s intentional misconduct or willful neglect, * and section 1207 *1579 expressly prohibits a secretary from authorizing benefits to any member who becomes unfit for duty because of a physical disability that the secretary determines resulted from his “intentional misconduct or willful neglect.”
The regulations promulgated by the Secretary of the Navy pursuant to section 1216(a) define “intentional misconduct or willful neglect” and create review boards to conduct investigations and recommend findings on members’ fitness for duty and entitlement to disability benefits. The regulations establish a presumption, rebut-table by clear and convincing evidence, that an injury occurred in the line of duty and list circumstances, among them misconduct, that place a member’s injuries outside the line of duty and prevent him from receiving disability benefits. Misconduct includes voluntary intoxication when impairment of physical or mental faculties and the extent of that impairment can clearly be shown and it is clear that the impairment was the proximate cause of injury.
The regulations establish three boards to provide initial, intermediate and final review. The Central Physical Evaluation Board (CPEB) conducts the initial review of the member’s service and health records and the line of duty investigation which has been conducted in accordance with the Manual of the Judge Advocate General. That investigation of Sawyer’s accident initially recommended a finding that his injuries occurred in the line of duty because he was in authorized liberty status at the time of his accident. But the reviewing authority disapproved that finding and found clear and convincing evidence that Sawyer’s injuries resulted from his own misconduct. The CPEB reached the same result and submitted findings that Sawyer was unfit for military service as a result of his own misconduct.
Following the CPEB’s decision, Sawyer demanded a formal hearing before the intermediate Regional Physical Evaluation Board (RPEB). The RPEB also found Sawyer unfit for duty because of his own misconduct. The rationale for its conclusion was:
As to the accident investigation itself, the 'preponderance of the evidence indicates that member drove his motorcycle solo after leaving a bar in the early AM hours and the weather was damp and foggy. He apparently was wearing a helmet. A blood alcohol level shortly after the accident was reported as 0.23% which is indicative of significant intoxication and sufficient impairment of his faculties. There was no evidence of intervening causes in the accident such as other vehicles or a malfunctioning motorcycle. Thus, this board considers member unfit for duty in the United States Navy due primarily to his persisting diabetes insipidus. His disability is considered to be the result of his own misconduct or negligence and is therefore not ratable. (Emphasis added.)
Sawyer then secured review by the third board, the Physical Review Council (PRC), which also ruled that he was not fit for duty because of a physical condition caused by his intentional misconduct or willful neglect. After the Judge Advocate General reviewed the case for legal sufficiency and interposed no objection, the President of *1580 the PRC promulgated findings on behalf of the Secretary that resulted in denial of disability benefits.
Sawyer next applied to the Board for Correction of Naval Records (BCNR) to correct his service record and for retroactive and prospective disability benefits. The BCNR, like the review boards, acts on behalf of the Secretary, see 32 C.F.R. § 723.1(a) (1990), and under 10 U.S.C. § 1552(a) (1988), the Secretary may correct a military record when he deems it necessary to correct an error or remove an injustice.
The BCNR reviewed Sawyer's application and supporting materials, his service record and advisory opinions furnished by the Naval Medical Command and the Judge Advocate General. It rejected Sawyer’s first contention that the RPEB evaluated the evidence using an erroneous standard, preponderance of the evidence rather than clear and convincing. Alternatively, it examined the evidence for itself, as it was invited to in Sawyer’s application and rejected his argument that significant impairment as a result of voluntary intoxication had not been established by clear and convincing evidence. The BCNR decided that there was no reasonable explanation for the accident other than his willful neglect in operating a motor vehicle in a grossly intoxicated state, and that there was insufficient evidence to establish probable material error or injustice. See 32 C.F.R. § 723.3(e)(2) (1990).
Sawyer filed suit in the Claims Court alleging that the BCNR improperly denied him disability retirement. The court held that the review boards used the wrong standard to evaluate Sawyer’s conduct and determine his entitlement to disability benefits which rendered the Secretary’s denial of benefits based on their actions “a nullity.”
Discussion
Preliminarily, we dispose of the government’s argument that the Claims Court had no jurisdiction under the Tucker Act, 28 U.S.C. § 1491 (1988), because Sawyer’s claim was not founded on a statute which mandated the payment of money.
See United States v. Mitchell,
This scheme is similar to 10 U.S.C. §§ 1181 and 1184 which say the Secretary “may” separate officers for misconduct or *1581 poor performance. Cases based on those laws are, as the government says, “indisputably within the Claims Court’s jurisdiction ... [because] a discharged service member has the right to continued pay for that position until lawfully removed.” So, too, here. Sawyer is entitled to disability pay unless it is lawfully withheld, and that, of course, goes to the merits to which we now turn.
In our view, the Claims Court unduly restricted the authority of the BCNR when it reasoned that after review boards have acted, the BCNR may only act in an appellate capacity.
Here, the BCNR disagreed with Sawyer’s first point saying he presented insufficient evidence that the RPEB based its recommendations on the incorrect standard of proof. In the Claims Court, Sawyer argued that the BCNR did not even address his contention that the review boards violated the Navy’s regulations in denying his claim because they had used the wrong standard. But this is incorrect; the BCNR’s decision expressly stated that “[a]fter careful and conscientious consideration of the entire record, ... [y]our contention ] that the wrong standard of proof was employed by the [RPEB] ... w[as] rejected by the Board.” The BCNR simply did not accept Sawyer’s argument that the RPEB’s single use of the phrase “preponderance of the evidence” was enough to show that the review boards evaluated his claim under the wrong standard.
The Claims Court disagreed with the BCNR, saying that “[i]t is speculative to reason that the specialized review boards applied the incorrect standard while intending the higher standard of clear and convincing evidence.”
As Sawyer asked, the BCNR also reviewed his application together with supporting information and the advisory opinions from the Naval Medical Command and the Judge Advocate General and determined that there was clear and convincing evidence that Sawyer was voluntarily intoxicated and that his disabilities were the proximate result of that intoxication. The Claims Court thought the BCNR’s action on the case
de novo
was contrary to law because of a passage in
Sanders,
Moreover, if the court was correct that the review boards’ denial of disability benefits was a “nullity,” then the BCNR was
*1582
doing no more than exercising its authority as a “proper board” to hear the disability claim.
See Real v. United States,
The Claims Court admitted the BCNR’s evaluation was not “assailable,” that Sawyer “could not show by cogent and clearly convincing evidence that the record before the BCNR failed to demonstrate dear and convincing evidence of his misconduct.”
Conclusion
Accordingly, the judgment of the Claims Court is reversed.
COSTS
No costs.
REVERSED.
Notes
Section 1201 states:
Upon a determination by the Secretary concerned that a member of a regular component of the armed forces entitled to basic pay, or any other member of the armed forces entitled to basic pay who has been called or ordered to active duty (other than for training under section 270(b) of this title) for a period of more than 30 days, is unfit to perform the duties of his office, grade, rank, or rating because of physical disability incurred while entitled to basic pay, the Secretary may retire the member, *1579 with retired pay computed under section 1401 of this title, if the Secretary also determines that—
(1) based upon accepted medical principles, the disability is of a permanent nature and stable;
(2) the disability is not the result of the member’s intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; and
(3) either—
(A) the member has at least 20 years of service computed under section 1208 of this title; or
(B) the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Veterans’ Administration at the time of the determination; and either—
(i) the member has at least eight years of service computed under section 1208 of this title;
(ii) the disability is the proximate result of performing active duty; (iii) the disability was incurred in line of duty in time of war or national emergency; or
(iv) the disability was incurred in line of duty after September 14, 1978.
10 U.S.C. § 1201 (1988).