Jim Garcia v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JIM GARCIA,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1216
______________________
Appeal from the United States Court of Federal Claims
in No. 1:22-cv-01222-RTH, Judge Ryan T. Holte.
______________________
Decided: May 9, 2024
______________________
J IM G ARCIA , Visalia, CA, pro se.
MEREDYTH COHEN HAVASY , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for defendant-appellee. Also repre-
sented by BRIAN M. BOYNTON, WILLIAM J AMES G RIMALDI,
P ATRICIA M. MC CARTHY .
______________________
Before D YK, P ROST , and STARK, Circuit Judges.
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GARCIA v. US 2
P ER CURIAM .
Mr. Jim Garcia, an Army veteran, appeals a decision of
the Court of Federal Claims. In the Court of Federal
Claims, Mr. Garcia sought an increase in his combat-re-
lated special compensation (“CRSC”) and associated back
pay as well as compensation for emotional and psychologi-
cal stress caused by the Defense Finance and Accounting
Service (“DFAS”). The trial court dismissed Mr. Garcia’s
emotional and psychological stress claims for lack of sub-
ject matter jurisdiction. It also granted judgment against
Mr. Garcia on his request to increase his CRSC payment.
We affirm.
I
Mr. Garcia joined the United States Army in 1986. He
was medically retired in 2001, after having been found
physically unfit because of a cognitive disorder. Following
his retirement, the Department of Veterans Affairs (“VA”)
granted Mr. Garcia a 70% disability rating. However, be-
cause Mr. Garcia also received an individual unemploya-
bility (“IU”) rating, he became entitled to disability
compensation at the same level as a veteran who has a
100% disability rating. In November 2014, Mr. Garcia ap-
plied for CRSC based on his cognitive disorder and associ-
ated depression, anxiety, and delusional disorder. He was
granted CRSC in December 2017.
In January 2018, DFAS sent Mr. Garcia a letter ac-
knowledging his eligibility for CRSC and listing his CRSC
entitlement “at 70% plus IU.” I.A. 24.1 This DFAS letter
also stated that Mr. Garcia’s CRSC was capped at $1,197
1 “I.A.” refers to the “Informal Brief Appendix,” ECF
No. 8, filed by Mr. Garcia. “S.A.” refers to the supplemental
appendix, ECF No. 9, filed by the government.
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GARCIA v. US 3
per month. See id. In February 2018, in response to corre-
spondence from Mr. Garcia, DFAS provided an explanation
for the $1,197 CRSC cap: he was subject to a “[s]pecial rule
for retirees with fewer than 20 years of service,” under 10
U.S.C. § 1413a, limiting CRSC payment to the retired pay
percentage (here, 2.5%) multiplied by the number of cred-
itable years of service (14.91 years) and his retired base pay
($2,348.26 per month), which equaled $875. S.A. 43. After
application of Cost-of-Living Adjustments (“COLA”), that
payment as of February 2018 had grown to $1,197
monthly.
The DFAS letter expressly rejected Mr. Garcia’s con-
tention that Department of Defense Financial Manage-
ment Regulation (DoD 7000.14-R) Volume 7B (“DoD FMR
7B”), Chapter 63 ¶630801.C entitles him to a higher
amount of CRSC.2 DFAS explained that while Mr. Garcia’s
“gross disability percentage for purposes of CRSC” is 100%,
2 Mr. Garcia and DFAS refer to the 2017 version of
DoD FMR 7B, which provides:
Retired Members Considered Unemployable. DFAS
must coordinate with VA to ascertain whether a
member is compensated by VA under 38 USC
§ 1114(j) by virtue of a rating of Individual Unem-
ployability on the basis of being unemployable under
the provisions of 38 CFR 4.16 or 4.18, for any mem-
ber whose current combined combat-related disabil-
ity percentage is 60 percent or greater. Such
member will be given a combined gross CRSC disa-
bility, which is rated as total or 100 percent.
DoD FMR 7B at 63-12, ¶630801.C (Oct. 2017). The most
recent version of DoD FMR 7B has modified this language.
See DoD FMR 7B at 63-13, ¶8.1.3 (May 2022).
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GARCIA v. US 4
because he “retired with fewer than 20 years of service un-
der Chapter 61 of Title 10, the Special Rule still applies to
limit the amount of CRSC that [he] may receive.” S.A. 44.
In January 2020 and May 2021, DFAS sent Mr. Garcia ad-
ditional letters addressing the same issue.
In June 2019, Mr. Garcia petitioned the Army Board
for Correction of Military Records (“Board”) to correct his
records to change his “CRSC pay from 70% to 100%.” S.A.
42. On November 2, 2019, the Board denied the request
because Mr. Garcia did not provide “any documentary evi-
dence of VA adjudication showing Individual Unemploya-
bility with a total disability compensation rating greater
than 70%.” I.A. 10. In November 2020, Mr. Garcia filed
another application with the Board, attaching to it a VA
document showing that he was assigned a 70% disability
rating with an IU rating. S.A. 39-40. The Board denied
this application as well, noting that Mr. Garcia was receiv-
ing “the maximum permitted amount under the statute.”
I.A. 18.
In September 2022, Mr. Garcia filed his complaint in
the Court of Federal Claims, seeking an increase in his
CRSC pay as well as compensation for emotional and psy-
chological stress he alleged was caused by DFAS. The
court granted the government’s motion for judgment on the
administrative record on the pay claim and dismissed the
two tort claims for lack of subject matter jurisdiction.
Mr. Garcia timely appealed. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(3).
II
We review a decision of the Court of Federal Claims
granting a motion for judgment on the administrative rec-
ord de novo. See Haselrig v. United States, 333 F.3d 1354,
1355 (Fed. Cir. 2003). Hence, we apply the same standard
as the trial court. See id. Accordingly, we will affirm the
Court of Federal Claims unless the Board’s decision is
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GARCIA v. US 5
arbitrary, capricious, contrary to law, or unsupported by
substantial evidence. See id. Mr. Garcia, as appellant,
bears the burden to prove one of the foregoing by “cogent
and clearly convincing evidence.” Wronke v. Marsh, 787
F.2d 1569, 1576 (Fed. Cir. 1986) (internal quotation marks
omitted).
III
The principal issue raised by Mr. Garcia is whether
DoD FMR 7B, Chapter 63 ¶630801.C exempts a veteran
with a total disability based on IU from the CRSC cap im-
posed by 10 U.S.C. § 1413a.3 We agree with the Court of
Federal Claims that it does not. Nothing in ¶630801.C
states nor even suggests that a veteran with an IU rating
is not subject to the cap imposed by 10 U.S.C. § 1413a. On
the contrary, the regulation imposes the same cap as the
one imposed by 10 U.S.C. § 1413a.
Specifically, ¶6308 provides that the “amount pre-
scribed in paragraph 630801 [is] reduced as prescribed in
paragraph 630805.” DoD FMR 7B at 63-12. Paragraph
630805.B.2, in turn, states that “[m]embers retired . . .
with less than 20 years of creditable service . . . will have
the maximum CRSC payment restrictions . . . . [Thus, t]he
CRSC payment amount . . . will not exceed the amount that
is equal to 2 1/ 2 percent of the member’s years of creditable
service multiplied by the member’s retired pay base . . . .”
DoD FMR 7B at 63-15. This language mirrors that of 10
U.S.C. § 1413a. Accordingly, as the Court of Federal
Claims rightly held, the Board’s decision to deny correction
of Mr. Garcia’s CRSC pay was not arbitrary and capricious.
3 Mr. Garcia does not challenge the dismissal of his
tort claims for lack of subject matter jurisdiction.
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GARCIA v. US 6
While DFAS has been neither clear nor consistent in
its terminology – using the terms “disability rating,” “total
disability,” “IU rating,” and “special compensation” in a
confusing manner – the record is clear that DFAS correctly
recognized Mr. Garcia’s IU rating entitled him to disability
compensation at the same level as a veteran having a 100%
disability rating. See, e.g., I.A. 9 (Board’s initial decision
indicating “the attached [VA] decision shows Individual
Unemployability”) (internal emphasis omitted); I.A. 16
(Board’s second decision noting Mr. Garcia “is rated at 70%
[but] is paid at the 100% rate due to Individual Unemploy-
ability”) (internal emphasis omitted); S.A. 44 (explaining
DFAS used 100% disability percentage for purposes of
CRSC). Even for the purposes of determining the maxi-
mum potential CRSC, DFAS correctly used the compensa-
tion amount that corresponded to a 100% disability rating.
See Gov’t Br. at 13 n.10 (noting Mr. Garcia’s maximum po-
tential entitlement to CRSC of $3,319.67 corresponds to
100% disability for veteran with spouse and no children as
of 2018). Again, the reason why Mr. Garcia’s CRSC pay is
capped is because 10 U.S.C. § 1413a imposes a cap on
CRSC for veterans having fewer than 20 years of creditable
service. In other words, the cap on Mr. Garcia’s CRSC is
not based on Mr. Garcia’s disability rating or his IU rating;
it is based on his years of service.4 Mr. Garcia has at no
point alleged that DFAS miscalculated his number of years
of creditable service. Thus, we affirm the grant of
4 While Mr. Garcia’s disability compensation is the
same as a veteran with a 100% disability rating because of
his IU rating, Mr. Garcia’s disability rating is, nonetheless,
70%.
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GARCIA v. US 7
judgment for the government on Mr. Garcia’s claim for in-
creased CRSC.5
IV
We have considered Mr. Garcia’s remaining arguments
and find them unpersuasive.6 Because Mr. Garcia failed to
demonstrate that the Court of Federal Claims erred in
granting judgment on the administrative record to the gov-
ernment, we affirm.
AFFIRMED
COSTS
No costs.
5 To the extent there was any procedural error by the
Board, as Mr. Garcia alleges – and even the government
concedes “it is possible that there was a violation of the re-
quirement of the board to notify the claimant of any miss-
ing information,” Gov’t Br. at 21 – it was harmless, as the
document he contends the Board failed to consider is the
VA letter showing that his disability rating was 70% disa-
bility with IU, see I.A. 9, 16.
6 Mr. Garcia alleges that the Board colluded with
DFAS in violation of a federal criminal statute, 18 U.S.C.
§ 242. See Opening Br. at 18. The Court of Federal Claims
“has no jurisdiction to adjudicate any claims whatsoever
under the federal criminal code.” Joshua v. United States,
17 F.3d 378, 379 (Fed. Cir. 1994). We, too, lack jurisdiction
over this contention. See 28 U.S.C. § 1295.
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