Case: 22-1382 Document: 28 Page: 1 Filed: 07/20/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DEXTER E. CAMPBELL,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-1382
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-01531-MCW, Senior Judge Mary Ellen Cos-
ter Williams.
______________________
Decided: July 20, 2022
______________________
DEXTER E. CAMPBELL, Hampton, GA, pro se.
JANA MOSES, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for defendant-appellee. Also represented by BRIAN M.
BOYNTON, PATRICIA M. MCCARTHY, DOUGLAS K. MICKLE.
______________________
Before MOORE, Chief Judge, PROST and HUGHES, Circuit
Judges.
Case: 22-1382 Document: 28 Page: 2 Filed: 07/20/2022
2 CAMPBELL v. US
PER CURIAM.
Dexter E. Campbell appeals a decision of the United
States Court of Federal Claims dismissing-in-part his com-
plaint for failure to state a claim and granting-in-part the
United States’ motion for judgment on the administrative
record. Because Mr. Campbell is not entitled to an increase
in retirement pay or an increased Army disability rating,
we affirm.
I
Mr. Campbell served in the U.S. Army Reserve from
1988 to 2015. He was promoted to lieutenant colonel on
September 12, 2012. In March 2013, after Mr. Campbell’s
commander, a colonel, vacated his position due to a perma-
nent change of station, Mr. Campbell temporarily per-
formed the duties of his former commander’s colonel-
designated position for several months.
After Mr. Campbell underwent a surgical procedure in
September 2013, the Army convened a medical board to as-
sess his physical readiness for continued service. The Army
evaluated Mr. Campbell’s physical condition several times,
including during a Medical Evaluation Board proceeding,
multiple Physical Evaluation Board proceedings, and dur-
ing Army Board for Correction of Military Records
(ABCMR) proceedings. The Army ultimately concluded on
July 28, 2015, that four of Mr. Campbell’s conditions ren-
dered him unfit for duty and assigned him a final combined
disability rating of 70%.
On September 21, 2015, while Mr. Campbell was going
through the military disability evaluation process de-
scribed above, the Army issued a military personnel mes-
sage indicating that a promotion selection board would
convene in December 2015 to consider Reserve lieutenant
colonels for promotion to colonel. However, Mr. Campbell
was medically retired pursuant to
10 U.S.C. § 1201 with
the rank of lieutenant colonel, effective October 21, 2015,
Case: 22-1382 Document: 28 Page: 3 Filed: 07/20/2022
CAMPBELL v. US 3
before the selection board met. Thus, Mr. Campbell was
never considered or selected by that board.
Concurrent with the Army’s medical disability evalua-
tions, Mr. Campbell also filed disability claims with the De-
partment of Veterans Affairs, a process that is separate
and distinct from the Army’s disability determination. The
VA gave Mr. Campbell an initial disability rating in Feb-
ruary 2015. After Mr. Campbell requested reevaluation in
January 2016, the VA determined that his service-con-
nected conditions had worsened, and it awarded an overall
combined disability rating of 100% in August 2016.
In February and December of 2016, Mr. Campbell ap-
plied to the ABCMR for correction of his records to reflect
a promotion to the rank of colonel, citing
10 U.S.C. §§ 1372,
1375, and his temporary service in a colonel-designated po-
sition. In September of 2016, he also requested an increase
in his Army disability rating from 70% to 75% based on the
VA’s increased disability rating.
The ABCMR denied relief, finding that Mr. Campbell
was not screened or selected for promotion to colonel before
or during the medical disability process and therefore was
not eligible for promotion. It reasoned that § 1372 “allows
for retiring officers to retain their promotion when the of-
ficer successfully served in grade (actually promoted), or
[was] to be promoted to the next highest grade (selected by
a promotion board) if it were not for the disability that led
to retirement.” SAppx138. 1 “Serving in positions reserved
for higher grades is not equal to being selected or promoted
to the higher grade.” SAppx138. The ABCMR also denied
Mr. Campbell’s request for an increase in disability rating,
finding that although the VA had increased his disability
rating post-service, “the Army has neither the role nor the
1 “SAppx” refers to the supplemental appendix at-
tached to the Appellee’s brief.
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4 CAMPBELL v. US
authority to compensate for progression or complications of
service-connected conditions after separation.” SAppx11.
Mr. Campbell’s “medical conditions were thoroughly
screened, evaluated, and rated during the [medical disabil-
ity evaluation] process and resulted in a permanent mili-
tary disability rating of 70% at the time of [his] separation.”
SAppx11.
Mr. Campbell then filed this suit in the Court of Fed-
eral Claims, challenging the ABCMR’s denials and seeking
retroactive promotion with corresponding back pay and in-
creased military disability pay. The Court of Federal
Claims dismissed Mr. Campbell’s promotion claim, finding
that he “was never considered for a promotion to colonel by
a promotion board before his medical retirement and did
not satisfy all legal requirements for that promotion,” and
therefore had “not alleged facts that give rise to a viable
promotion claim.” Campbell v. United States,
No. 20-1531C,
2021 WL 6620150, at *3 (Fed. Cl. Dec. 29,
2021) (Decision). It also rejected Mr. Campbell’s disability
claim, granting judgment on the administrative record af-
ter holding that the ABCMR’s denial “was legally sound
and not arbitrary and capricious” because the VA’s sepa-
rate increased disability rating did not impact the Army’s
permanent disability determination made one year earlier,
at the time of Mr. Campbell’s discharge.
Id. at *5.
Mr. Campbell appeals. We have jurisdiction under
28
U.S.C. § 1295(a)(3).
II
We review de novo a Court of Federal Claims dismissal
for failure to state a claim upon which relief may be
granted. Mercier v. United States,
786 F.3d 971, 980 (Fed.
Cir. 2015). We also review de novo a Court of Federal
Claims decision granting or denying a motion for judgment
on the administrative record, “applying the same standard
of review as the trial court.” Prestonback v. United States,
965 F.3d 1363, 1368 (Fed. Cir. 2020) (citations omitted).
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CAMPBELL v. US 5
“Accordingly, we will not disturb the decision of the
ABCMR unless it is arbitrary, capricious, contrary to law,
or unsupported by substantial evidence.”
Id. (citations
omitted).
A
The Military Pay Act,
37 U.S.C. § 204, is a money-man-
dating statute that “provides for suit in the Court of Fed-
eral Claims when the military, in violation of the
Constitution, a statute, or a regulation, has denied military
pay.” Dysart v. United States,
369 F.3d 1303, 1315 (Fed.
Cir. 2004). However, a service member is generally “enti-
tled only to the salary of the rank to which he is appointed
and in which he serves,” and so the Act “ordinarily does not
give rise to a right to the pay of a higher rank for which the
[service member] was not selected.” Smith v. Sec’y of the
Army,
384 F.3d 1288, 1294 (Fed. Cir. 2004).
Here, Mr. Campbell argues that, under
10 U.S.C.
§ 1372, the highest grade at which he served was colonel.
Section 1372 dictates what grade a service member is enti-
tled to upon retirement for physical disability. Sec-
tion 1372(2) specifies that a service member is entitled to
“[t]he highest temporary grade or rank in which he served
satisfactorily, as determined by the Secretary of the armed
force from which he is retired.” Mr. Campbell argues that
because he temporarily performed the duties of a colonel-
designated role, he is entitled to the grade of colonel upon
retirement. We do not agree. Although “temporary grade or
rank” is not expressly defined, context makes clear it refers
to grades or ranks acquired by promotion. For example,
§ 1372(4) entitles a veteran to the temporary grade “to
which he would have been promoted” but for his disability.
10 U.S.C. § 1372(4); see also
id. § 1212(a)(D) (granting dis-
ability severance pay based on the “temporary grade or
rank to which [the veteran] would have been promoted”).
Temporarily performing the duties of a role authorized for
a particular grade or rank is not the same as being
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6 CAMPBELL v. US
promoted to that temporary grade or rank. Thus, while
Mr. Campbell temporarily performed the duties of a colo-
nel-designated position, he did not serve in the temporary
grade or rank of colonel, as required by § 1372(2). That un-
derstanding is consistent with our well-established case
law holding that in challenges to the military’s decision not
to promote a veteran, “the Military Pay Act ordinarily does
not give rise to a right to the pay of the higher rank for
which plaintiff was not selected.” Smith,
384 F.3d at 1294.
It also coincides with the Army’s long-standing interpreta-
tion of the similar term “highest grade served” to mean
“[t]he highest grade to which an individual on active duty
was actually and lawfully promoted and paid. It does not
include . . . serving in a position authorized a higher grade
than actually held.” See Appellant’s Br. at 94 (Army Regu-
lation 15-80, Army Grade Determination Review Board
and Grade Determinations, Glossary (July 2002)). 2
Mr. Campbell served in a position authorized a higher
grade, but he was never actually lawfully promoted to colo-
nel. Therefore, he does not fall within § 1372(2).
Nor does Mr. Campbell fall within § 1372(3) or (4). Sec-
tion 1372(3) provides that a service member is entitled to
“[t]he permanent regular or reserve grade to which he
would have been promoted had it not been for the physical
disability for which he is retired and which was found to
exist as a result of a physical examination.” Section 1372(4)
authorizes retirement to “the temporary grade to which he
would have been promoted had it not been for the physical
disability for which he is retired, if eligibility for that pro-
motion was required to be based on cumulative years of
service or years of service in grade and the disability was
discovered as a result of a physical examination.” But
again, Mr. Campbell had not been selected for a permanent
2 “Appellant’s Br. at __” refers to pages in Mr. Camp-
bell’s combined informal brief and appendix.
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CAMPBELL v. US 7
or temporary promotion before he was medically retired, so
he would not have been promoted to colonel absent his
physical disability. See SAppx129.
Mr. Campbell also cites to Friestedt v. United States in
support of his argument that he is entitled to a higher rank.
173 Ct. Cl. 447 (1965). But the plaintiff in Friestedt was
actually promoted to a higher rank before his release from
active duty.
Id. at 449. He eventually reenlisted and then
retired at a lower rank, and the Court of Claims deter-
mined he was entitled to the retired pay of the higher rank
from his prior service.
Id. at 449, 451. Mr. Campbell was
never promoted to colonel, temporarily or permanently,
and so he is ineligible for the retired pay of a colonel.
The Court of Federal Claims appropriately dismissed
Mr. Campbell’s promotion claim for failure to state a claim
upon which relief could be granted. The court considered
the two exceptions to the general rule that a service mem-
ber is generally entitled only to the salary of the rank to
which he is appointed and in which he serves: “1) ‘clear-cut
legal entitlement’ when a service member satisfied all legal
requirements for a promotion, but the military refused to
recognize his status and 2) when the decision not to pro-
mote the service member led to the service member’s dis-
charge.” Decision at *3 (quoting Smith,
384 F.3d at 1294–
95). Mr. Campbell falls into neither category. He was never
considered and selected by a promotion selection board be-
fore his medical retirement and therefore does not satisfy
all legal requirements for promotion. Nor was he dis-
charged due to a decision not to promote him; he was med-
ically discharged due to his disability. Therefore, he has not
alleged facts that give rise to a viable promotion claim.
Id.
(citing Reilly v. United States,
93 Fed. Cl. 643, 649–50
(2010)).
B
The Court of Federal Claims also appropriately af-
firmed the ABCMR’s denial of Mr. Campbell’s request for
Case: 22-1382 Document: 28 Page: 8 Filed: 07/20/2022
8 CAMPBELL v. US
an increased Army disability rating. The Army’s perma-
nent disability rating is determined at the time a service
member is found unfit for duty due to a physical disabil-
ity—i.e., when the service member is retired. See
10 U.S.C.
§ 1201. The VA disability rating system is separate and dis-
tinct from the Army’s permanent disability rating, compen-
sating a veteran for service-connected disabilities that
impair earning capacity in civil occupations after service.
38 U.S.C. § 1110;
38 C.F.R. § 4.1; see Bosch v. United
States,
27 Fed. Cl. 250, 265 (1992). “Although both the
Army and the VA use the VA Schedule for Rating Disabil-
ities, the Army disability rating is intended to compensate
the individual for interruption of a military career because
of an impairment. The VA awards ratings because a medi-
cal condition affects the individual’s civilian employment.”
Slesinski v. United States,
34 Fed. Cl. 159, 164 (1995). And
“while the Army must determine an appropriate perma-
nent disability rating before the individual can be sepa-
rated from the service, the VA can evaluate a veteran
throughout his or her lifetime, adjusting the percentage of
disability.”
Id.
Mr. Campbell received his permanent disability rating
of 70% from the Army’s Physical Evaluation Board in July
2015. The VA’s increased disability rating was awarded
over one year later, in August 2016, after the VA had de-
termined his conditions had worsened post-service. The
ABCMR correctly determined that the VA’s post-service
decision does not impact the permanent medical disability
rating Mr. Campbell received from the Army at the time of
his separation, and so Mr. Campbell is not entitled to an
Army disability pay increase. The ABCMR’s decision was
not arbitrary, capricious, or otherwise contrary to law.
III
We have considered Mr. Campbell’s remaining argu-
ments but find them unpersuasive. Mr. Campbell does not
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CAMPBELL v. US 9
raise a viable promotion claim, nor is he entitled to an in-
crease in disability pay. We affirm.
AFFIRMED
No costs.
