Perez v. United States ( 2019 )

In the United States Court of Federal Claims
No. 18-217C
Filed: January 3, 2019
* * * * * * * * * * * * * * * ** *
*
WILLIAM PEREZ,
*
Plaintiff, * Military Pay Case; Motion to
* Dismiss; Statute of Limitations;
v. Appellate Review Leave;
*
UNITED STATES, * Restoration to Active Duty.
*
Defendant.
*
* * * * * * * * * * * * * * * * ** *
Charles W. Gittins, Law Offices of Charles W. Gittins, P.C., Middletown, VA, for
plaintiff.
John S. Groat, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With him were Steven J.
Gillingham, Assistant Director, Robert E. Kirschman, Jr., Director, and Joseph J.
Hunt, Assistant Attorney General, Department of Justice, Civil Division. Of counsel were
Adam E. Frey, Civilian, United States Air Force, and Lt. Col. Charles J. Gartland, United
States Air Force.
OPINION
HORN, J.
Plaintiff, William Perez, is a former, active duty Staff Sergeant in the United States
Air Force who filed the above-captioned case seeking back-pay for the time he spent on
unpaid confinement and on unpaid appellate leave, as well as back-pay stemming from
an allegedly, wrongful discharge. Plaintiff was sentenced and charged by a general court-
martial to one-year confinement and a bad-conduct discharge while on active duty. The
Air Force, however, later dismissed plaintiff’s court-martial sentence and charges, and
ordered that plaintiff be restored “[a]ll rights, privileges and property” previously denied to
him. Plaintiff alleges that following the reversal of his court-martial conviction, the Air
Force never paid plaintiff the monies allegedly due to him and also wrongfully discharged
plaintiff with a “bad-conduct” discharge. Defendant, the United States, has now moved to
dismiss plaintiff’s complaint, filed on February 13, 2018, as untimely because, allegedly,
it was filed outside of the six-year statute of limitations contained in 28 U.S.C. § 2501
(2012). Defendant also moved to dismiss for lack of jurisdiction plaintiff’s request to be
restored to active duty.
BACKGROUND
Appellate review leave
When an accused servicemember is sentenced by a court-martial to a bad-conduct
discharge, the court-martial sentence is subject to appellate review by the applicable,
military branch, Court of Criminal Appeals. See 10 U.S.C. § 866(b) (2006)1 (“The Judge
Advocate General shall refer to a Court of Criminal Appeals the record in each case of
trial by court-martial—(1) in which the sentence, as approved, extends to . . . bad-conduct
discharge . . . .”). The accused servicemember “may be required to begin such leave on
the date on which the sentence is approved . . . or at any time after such date,” and such
“leave may be continued until the date on which action under this subchapter is completed
or may be terminated at any earlier time.” 10 U.S.C. § 876(a) (2006). If the servicemember
does not have sufficient accrued leave to cover the days of his or her appellate review
leave, then the appellate review leave “shall be charged as excess leave.” 10 U.S.C.
§ 706(a) (2006); see also Department of Defense Financial Management Regulation
(DODFMR), Vol. 7A Ch. 1, § 010301.F.1 (Mar. 2009).
If the court-martial sentence of a bad-conduct discharge is “set aside or
disapproved,” “all rights, privileges, and property affected by an executed part of a court-
martial sentence . . . except an executed dismissal or discharge, shall be restored.” 10
U.S.C. § 875(a) (2006). In addition, “[i]f a previously executed sentence of dishonorable
or bad-conduct discharge is not imposed on a new trial, the Secretary concerned shall
substitute therefor a form of discharge authorized for administrative issuance unless the
accused is to serve out the remainder of his enlistment.” 10 U.S.C. § 875(b) (2006). The
law, as codified in 10 U.S.C. § 707 (2006), and implemented by the Department of
Defense in DODFMR, Vol. 7A Ch. 1, § 010301.F, also requires that, when a
servicemember’s bad-conduct discharge has been “set aside or disapproved,” the
servicemember be paid for time spent on excess leave. See 10 U.S.C. § 707(a) (noting
that a servicemember “whose sentence by court-martial to a . . . bad-conduct discharge
is set aside or disapproved . . . shall be paid . . . for the period of leave charged as excess
leave”). Payment for excess leave is “reduced by the total amount of his income from
wages, salaries, tips, other personal service income, unemployment compensation, and
public assistance benefits from any Government agency during the period he is deemed
to have accrued pay and allowances.” Id. at § 707(b); see also DODFMR at
§ 010301.F.2.a (Mar. 2009). In order to compute the amount of pay due and owing to a
servicemember, the military requires a servicemember to submit “information as to
sources and amounts of income received by the member during periods of required
appellate leave,” which “should include, at a minimum, copies of all pertinent income tax
returns, employer statements of income earned from wages, salaries, tips, and
documentation of other personal service income.” DODFMR at § 010301.F.3 (Mar. 2009).
1The court cites to the versions of the United States Code and the Department of Defense
Financial Management Regulation (DODFMR) in effect at the time of plaintiff’s appellate
review leave in the above-captioned case.
2
Notably, “[p]ay will be computed only on the basis of a written record.” Id. Payment for
excess leave “shall be made” to the servicemember as follows:
(A) Payment shall be made within 60 days from the date of the order setting
aside or disapproving the sentence by court-martial to a dismissal or a
dishonorable or bad-conduct discharge if no rehearing or new trial has been
ordered.
(B) Payment shall be made within 180 days from the date of the order
setting aside or disapproving the sentence by court-martial to a dismissal or
a dishonorable or bad-conduct discharge if a rehearing or new trial has been
ordered but charges have not been referred to a rehearing or new trial within
120 days from the date of that order.
(C) If a rehearing or new trial has been ordered and a dismissal or a
dishonorable or bad-conduct discharge is not included in the result of such
rehearing or new trial, payment shall be made within 60 days of the date of
the announcement of the result of such rehearing or new trial.
(D) If a rehearing or new trial has been ordered and a dismissal or a
dishonorable or bad-conduct discharge is included in the result of such
rehearing or new trial, but such dismissal or discharge is not later executed,
payment shall be made within 60 days of the date of the order which set
aside, disapproved, or otherwise vacated such dismissal or discharge.
10 U.S.C. § 707(b)(2); see also DODFMR at § 010301.F.2.b (Mar. 2009).
The statute also provides:
If a member is entitled to be paid under this section but fails to provide
sufficient information in a timely manner regarding his income when such
information is requested . . . the periods of time described in paragraph (2)
shall be extended until 30 days after the date on which the member provides
the information requested.
10 U.S.C. § 707(b)(3); see also DODFMR at § 010301.F.2.b.5 (“If a member who is
entitled to be paid under this section fails to provide sufficient information in a timely
manner regarding his/her income when such information is requested under
subparagraph 010301.F.3, then the periods of time prescribed in this paragraph shall be
extended until 30 days after the date on which the member provides the requested
information.”). Based on the above quoted statutory provision and DODFMR, the military
will request from the servicemember the necessary income documentation. The
servicemember’s obligation to provide his or her income documentation to the military in
a “timely manner” is triggered “when such information is requested” by the military. See
10 U.S.C. § 707(b)(3).
3
Plaintiff’s service in the Air Force
Plaintiff initially enlisted as an active duty member in the United States Air Force
on January 19, 1995. On August 28, 1998, plaintiff re-enlisted for an active duty a term of
four years. Plaintiff re-enlisted for his third term of active duty for a term of six years on
August 23, 2002.
In 2004, plaintiff had achieved the rank of Staff Sergeant and was serving out his
third re-enlistment term on active duty, set to expire in August of 2008. Also in 2004,
plaintiff was tried by a general court-martial composed of officer members at Moody Air
Force Base, Georgia, on charges of assault and sodomy of his then two minor sisters-in-
law, M.R.G. and E.M.G.2 Plaintiff was found guilty of sodomy of M.R.G., and of assault
with intent to commit sodomy of E.M.G., in violation of Article 125 and 134 of the Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 934 (2000). On July 2, 2004, plaintiff
was sentenced to “[r]eduction to the grade of airman first class, confinement for 1 year,
and bad conduct discharge.”
On November 4, 2004, the convening authority3 issued General Court-Martial
Order (GCMO) No. 1, in which the convening authority approved the July 2, 2004 findings
and sentence of the general court-martial against plaintiff for assault and sodomy of
M.R.G. and E.M.G. The convening authority also stated in GCMO No. 1 that “upon
completion of the sentence to confinement, AIRMAN FIRST CLASS WILLIAM PEREZ,
JR., will be required, under Article 76a, UCMJ, to take leave pending completion of
appellate review of the conviction.” (capitalization in original). On April 16, 2005, following
plaintiff’s completion of his confinement sentence, the Air Force placed plaintiff on unpaid
appellate review leave while plaintiff’s conviction and sentence were being reviewed by
the Air Force. As noted in the form titled “Duty Status Change” dated April 16, 2005, which
was attached to defendant’s motion to dismiss, plaintiff was confined “FROM 2 Jul 2004
THRU 15 Apr 2005,” for a total of “284” days. (capitalization in original).
Although no specific date was provided in plaintiff’s complaint, plaintiff alleges that
subsequent to the general court-martial’s July 2, 2004 sentence, and “[d]uring the course
of appellate review, M.R.G. sent an unsolicited letter to plaintiff’s appellate defense
counsel outlining the nature of her perjury, the reasons therefore, and describing the
subornation by her mother.” Plaintiff states in his complaint that, on April 12, 2006, plaintiff
filed a “request for a new trial” with the United States Air Force Court of Criminal Appeals,
“based on fraud on the court and evidence discovered after trial that would, if had been
available at trial, led to a different result.” The United States Air Force Court of Criminal
2 Plaintiff’s complaint only provides the initials of plaintiff’s two then minor sisters-in-law.
3 See 10 U.S.C. § 860(c)(2)(A)-(B) (2012) (“Action on the sentence of a court-martial shall
be taken by the convening authority or by another person authorized to act under this
section. . . . [T]he convening authority or another person authorized to act under this
section may approve, disapprove, commute, or suspend the sentence of the court-martial
in whole or in part.”).
4
Appeals ordered a post-trial fact finding hearing by a military judge to hear testimony from
M.R.G. and several other witnesses. The military judge presiding over the fact-finding
hearing collected evidence and found the following:
Based on the evidence presented, my evaluation of the credibility of the
witnesses, and the totality of the circumstances, the court finds that the trial
testimony of MRG was untruthful and that her subsequent recantation is
true. Without being able to personally observe the witness, the court is
reluctant to make the same finding regarding EMG’s testimony, although
circumstantial evidence strongly suggests that her recantation is true as
well.
On March 17, 2008, the United States Air Force Court of Criminal Appeals, after
review of the military judge’s findings and conclusions, granted plaintiff’s petition for a
new trial. The United States Air Force Court of Criminal Appeals stated that “grounds for
a new trial exist” because of “newly discovered evidence and fraud on the court-martial,”
and found the following:
(1) the evidence that M.R.G. and E.M.G were committing perjury by
fabricating their allegations against the appellant/petitioner was not
discovered until well after completion of the trial;
(2) this evidence could not have been discovered at the time of trial because
the girls were still under the control and influence of their mother, who
was essentially directing their actions; and
(3) given that the testimony of the two girls was the primary evidence
against the appellant/petitioner at trial, the newly discovered evidence
showing the stories of the girls were fabricated would have probably
produced a substantially more favorable result for the accused.
On August 23, 2008, plaintiff’s six-year active duty enlistment term was set to
expire, based on the six-year reenlistment term of service in plaintiff’s August 23, 2002
reenlistment document. Plaintiff, however, was continued on unpaid leave because
plaintiff’s case had been remanded for a new trial. On July 31, 2009, the convening
authority for plaintiff’s general court-martial issued GCMO No. 13, which was attached to
defendant’s motion to dismiss. GCMO No. 13 stated that, although “the Air Force Court
of Criminal Appeals has ordered a new trial,” a “new trial was found impractical,” and that,
“[p]ursuant to the authority of Rule of Courts-Martial (R.C.M.) 1107(e), the charges are
dismissed without prejudice. All rights, privileges and property of which the accused was
deprived by virtue of the findings of guilty and the sentence imposed will be
restored . . . .”
For reasons unexplained in the record before the court, following the July 31, 2009
dismissal of charges and restoration of rights and privileges, the Air Force did not attempt
to discharge plaintiff until June 18, 2013, did not pay plaintiff for the time he had spent on
unpaid confinement and unpaid appellate review leave, and did not request from plaintiff
any income information, such as plaintiff’s income tax returns, employer statements, and
5
documentation of other personal service income, in order to determine the amount of pay
due to plaintiff. In fact, for reasons unexplained in the record before the court, based on
the June 18, 2013 DD Form 214, the Air Force delayed approximately four years before
preparing and issuing plaintiff’s actual discharge papers on June 18, 2013. The record
before the court does not address plaintiff’s service status following the July 31, 2009
dismissal of charges by the Air Force. According to plaintiff’s complaint:
Plaintiff was never restored, nor was he paid the pay due as a result of his
unpaid confinement as was required by law and the Convening Authority’s
order and plaintiff remained on unpaid appellate leave (without payment as
required by 10 U.S.C. [§] 707) until his final discharge, effected by DD-214,
which was prepared for delivery on June 18, 2013.
Based on the record before the court, it appears that, on September 20, 2012, a
“Request and Authorization for Separation” form, which was attached to plaintiff’s
complaint, was completed with respect to the plaintiff by the Air Force.4 The September
20, 2012 Request and Authorization for Separation form contains the electronic
signatures of “the Orders Authenticating Official,” who is listed as United States Air Force
Master Sergeant Donovan H. Thomas, Superintendent, AFPC Retirements and
Separations Branch, as well as the “Orders Issuing/Approving Official,” who is listed as
United States Air Force Staff Sergeant Aidaliz Laguex. The September 20, 2012 Request
and Authorization for Separation form states that plaintiff held a grade of “SSG [Staff
Sergeant]” and that the “type of separation” was to be “discharge,” with an included
retroactive, effective date of July 31, 2009. The September 20, 2012 Request and
Authorization for Separation form states that plaintiff’s “character of service” was
“honorable.” The Request and Authorization for Separation form also has boxes checked
for “certificate issued:” for a DD Form 256 AF, titled “Honorable Discharge Certificate,” as
well as a DD Form 214, titled “Certificate of Release or Discharge from Active Duty.” The
September 20, 2012 Request and Authorization for Separation form does not provide any
specificity regarding to whom the DD Form 256 AF and DD Form 214 were issued and
does not contain copies of these two forms. The Request and Authorization for Separation
form also does not give any indication that plaintiff reviewed or received a copy of the
Request and Authorization for Separation form, a DD Form 256 AF, or the DD Form 214
referred to in the Request and Authorization for Separation form at the time the Request
and Authorization for Separation form was issued. The September 20, 2012 Request and
Authorization for Separation form does not contain plaintiff’s signature, nor does it contain
a signature line for plaintiff to sign.
4 The September 20, 2012 Request and Authorization for Separation form issued by the
Air Force to plaintiff, as well as plaintiff’s June 18, 2013 DD Form 214, titled “Certificate
of Release or Discharge from Active Duty,” are standardized, military forms which display
typed-in written text in the “All Caps” format with boxes to be filled in applicable to the
particular individual referenced. In this Opinion, direct quotes from the September 20,
2012 Request and Authorization for Separation form and the June 18, 2013 DD Form 214
are not displayed in “All Caps,” but, instead, conform to general standards of
capitalization.
6
The record reflects that the Air Force did not prepare or issue a DD Form 214 on
the date of discharge listed on the DD Form 214, July 31, 2009, in the record before the
court, but included a backdated discharge date of July 31, 2009 when it issued the DD
Form 214 on June 18, 2013. The backdated DD Form 214 also stated that plaintiff’s
“character of service” was “bad conduct.” The record before the court also contains no
explanation as to the approximate nine-month delay from when the Air Force prepared
the September 20, 2012 Request and Authorization for Separation form to when the Air
Force prepared plaintiff’s June 18, 2013 DD Form 214, with the retroactive July 31, 2009
date. Plaintiff alleges that he never received notice of the June 18, 2013 DD Form 214,
which was prepared for plaintiff regarding plaintiff’s service, and that plaintiff was not
aware that the DD Form 214 existed until August 13, 2017, when he, for an unspecified
purpose, “downloaded [his] military records” from the “Defense Personnel Records
Information Retrieval System.” Plaintiff states, in the May 22, 2018 declaration attached
to his response to defendant’s motion to dismiss, that “I was never contacted by the Air
Force and advised that a DD-214 had been prepared and I never received a DD-214. I
believed I could still be on appellate review leave/active duty status in the United States
Air Force awaiting a final disposition.” Plaintiff also attached the June 18, 2013 DD Form
214 to his complaint in the above-captioned case. According to plaintiff’s complaint, the
DD Form 214 was completed in plaintiff’s name, without his involvement or knowledge.
Plaintiff’s complaint further states:
Plaintiff was never restored, nor was he paid the pay due as a result of his
unpaid confinement as was required by law and the Convening Authority’s
order and plaintiff remained on unpaid appellate leave . . . until his final
discharge, effected by DD-214, which was prepared for delivery on June
18, 2013.
The June 18, 2013 DD Form 214 was signed by Nancy L. Schmitz, United States
Air Force Contractor, Separations Documentation Technician.5 The June 18, 2013 DD
Form 214, unlike the September 20, 2012 Request and Authorization for Separation form,
contains a section which appears to be a designated section for plaintiff to sign, titled
“Member Signature.” The section, however, was filled in to indicate that “Member not
available to sign.” The June 18, 2013 DD Form 214 also provides information regarding
plaintiff’s service in the Air Force, stating that plaintiff’s “primary specialty” was “Aviation
Resource MGT Craftsman,” for “9 years and 3 months.” In addition, the June 18, 2013
DD Form 214 lists plaintiff’s “decorations, medals, badges, citations and campaign
ribbons awarded or authorized,” which included:
AF Achievement Medal, AF Outstanding Unit Award with 1 oak leaf cluster,
AF Good Conduct Medal with 1 oak leaf cluster, National Defense Service
Medal with 1 service star, Afghanistan Campaign Medal with 1 service star,
Global War On Terrorism Expeditionary Medal, //SEE REMARKS//
5 If Ms. Schmitz was a contractor, it is not clear from the record whether she had authority
to sign a discharge document.
7
(capitalization in original). In a section titled “Remarks,” the June 18, 2013 DD Form 214
states in relevant part, “[m]ember has completed first full term of service. Continuous
Honorable Active Military Service from 19 January 1995 to 22 August 2002. Appellate
Leave 1567 Days (From 16 April 2005 to 31 July 2009. [sic]” Notably, the June 18, 2013
DD Form 214 states that plaintiff received a “bad conduct” discharge to be effective July
31, 2009 and that the “reason for separation” was “court martial (other).” The June 18,
2013 DD Form 214 then states that the “separation authority” was “GCMO # 1, 4 Nov
2004” and that the “dates of time lost during this period” were “20040702 - 20050415.”
(capitalization in original). No mention of the restoration of plaintiff’s rights ordered by July
31, 2009 GCMO No. 13 appears in the June 18, 2013 DD Form 214.
Based on the record before the court, the Air Force appears to have provided
plaintiff with military health care for some time following his July 31, 2009 court-martial
reversal. According to a May 18, 2018 letter filed in the record before the court from the
Manpower Data Center within the Department of Defense to plaintiff, plaintiff seems to
have remained enrolled in TRICARE, the military’s program for providing health care
benefits to servicemembers, until October 20, 2012. According to the May 18, 2018 letter,
“[m]ilitary health care benefits are provided to active duty, retired and Reserve Service
members, as well as authorized family members.”6 The May 18, 2018 letter notes that
plaintiff was first enrolled in TRICARE on January 19, 1995, the same day when plaintiff
first enlisted in active duty service in the Air Force. The letter also notes that plaintiff’s
enrollment ended on October 20, 2012. The letter, however, does not explain why
plaintiff’s enrollment ended on October 20, 2012. The May 18, 2018 letter also displays
the enrollment period in TRICARE for five other individuals with the surname Perez, who,
although not stated in the letter as such, may be family members of the plaintiff. The date
of enrollment varies for these five individuals, however, a common termination date from
TRICARE of October 20, 2012 is included in the May 18, 2018 letter. The most recent
enrollee in TRICARE was Daniel J. Perez, who was first enrolled on October 11, 2009,
more than two months after plaintiff’s bad-conduct discharge was reversed on July 31,
2009 by GCMO No. 13.
Procedural history
On February 13, 2018, plaintiff filed a complaint in the above-captioned case in
this court, seeking “back-pay, reinstatement and collateral injunctive relief.” Plaintiff
alleges that the “money mandating statutes undergirding Tucker Act jurisdiction” of
plaintiff’s complaint are 10 U.S.C. § 707, which requires payment upon reversal of certain
court-martial sentences, and “the Military Pay Act,” 37 U.S.C. § 204(a) (2006), which
entitles members of the Armed Forces to pay while on active duty status. Plaintiff’s
6Judges of this court have stated that a “service member on appellate leave is entitled to
military benefits such as health care . . . but not military pay and allowances.” See
Johnson v. United States, 41 Fed. Cl. 190, 192 n.1 (1998); see also Combs v. United
States, 50 Fed. Cl. 592, 607 (2001) (quoting Johnson v. United States, 41 Fed. Cl. at 192
n.1).
8
complaint contains five counts, which stem in large part from plaintiff’s allegations that,
despite the reversal of plaintiff’s court martial conviction and that “[a]ll rights, privileges
and property of which the accused was deprived by virtue of the findings of guilty and the
sentence imposed will be restored,” the Air Force did not provide to plaintiff “the pay and
allowances” withheld from him while on unpaid confinement and unpaid appellate review
leave, and that, on June 18, 2013, the Air Force “wrongfully discharged plaintiff with a
Bad Conduct Discharge,” rather than an honorable discharge, as directed by GCMO No.
13.
The first count in plaintiff’s complaint alleges that:
The AFBCMR [Air Force Board for Correction of Military Records] acted
arbitrarily, capriciously and contrary to law and regulation where [sic] it
imposed a duty on plaintiff to first submit plaintiff’s Application for Correction
of Military Record to the Air Force Discharge Review Board, which was
statutorily prohibited from considering a discharge awarded at a general
court-martial and where [sic] the AFDRB [Air Force Discharge Review
Board] has no jurisdiction or authority to consider or decide plaintiff’s claims
for back-pay, reinstatement and retirement.
In a footnote in its motion to dismiss plaintiff’s complaint, defendant references an
Application for Correction of Military Record by him to the Air Force Discharge Review
Board and states:
Following the filing of Mr. Perez’s compliant [sic], the Air Force Board for
Correction of Military Records advised us that it has reconsidered its prior
refusal to consider Mr. Perez’s application case and is prepared to reopen
his application and consider the matter.
No evidence has been provided to the court regarding plaintiff’s Application or whether
the Air Force Board for Correction of Military Records has reopened or acted upon such
an Application by plaintiff.
Plaintiff’s second count alleges that the Air Force acted arbitrarily and capriciously
and in contravention to “Article 75, UCMJ, 10 U.S.C. § 875” when it failed to “carry out”
GCMO No. 13 to “dismiss charges and restore plaintiff to [a]ll rights privileges and
property of which [he] was deprived by virtue of the findings of guilty and the sentence
imposed.” (alterations in original).
Plaintiff’s third count alleges that the Air Force’s June 18, 2013 discharge of plaintiff
was arbitrary, capricious, and contrary to law. According to plaintiff, he “had been on
active duty for 18 years and 6 months,” as of June 18, 2013, and, thus, that “10 U.S.C.
§ 1176, required that he be retained on active duty until he qualified for retirement at 20
years active duty.”
9
Plaintiff’s fourth count alleges that the Air Force acted arbitrarily, capriciously and
contrary to law when, on June 18, 2013, the Air Force prepared the June 18, 2013 DD-
214 Form
with material factual errors unsupported by law, purported to effect
plaintiff’s discharge with a punitive “Bad Conduct” discharge that had not
been approved and ordered executed by any proper authority as is
required by 10 U.S.C. § 866 and then purported to actually effect plaintiff’s
discharge without a final accounting of pay and required clearing
procedures.
Plaintiff’s fourth count also alleges that, on June 18, 2013, the Air Force acted arbitrarily,
capriciously and contrary to law when it purported to discharge plaintiff “without
performing a final accounting of pay and delivering same to plaintiff” pursuant to 10 U.S.C.
§ 1168(a) (2012).
Plaintiff’s fifth count alleges that the Air Force acted
fraudulently, arbitrarily, capriciously and contrary to law and regulation
when, on June 18, 2013, the Air Force prepared a DD-214 that [almost four
years later] purported to discharge plaintiff [retroactively] on July 31, 2009,
which improperly and materially affected plaintiff’s rights to veteran’s
benefits and other emoluments of military service and, which ultimately, was
false.
Plaintiff’s complaint requests that the court “[o]rder that plaintiff’s discharge be set
aside” and that “plaintiff be immediately restored to active duty in the United States Air
Force pending final decision in this case.” In addition, plaintiff’s complaint further requests
that the court “[r]emand to the Air Force Secretary and Order the Secretary acting through
the Air Force Board for Correction of Military Records to make the following corrections
to plaintiff’s military record,” including:
a) [R]estoration to active duty and return of all rights, privileges and property
to which he was denied by the findings of guilty and sentence as a result of
General Court Martial Order No. 13 of July 31, 2009;
b) Order plaintiff be paid back-pay and allowanced [sic] required by law as
a result of the dismissal of charges by the Air Force Court of Criminal
Appeals and order of the Convening Authority within 60 days as is required
by law;
c) Ascertain the highest grade plaintiff would have achieved had he not
been arbitrarily and capriciously denied restoration and return to active duty
on or about July 31, 2009 and the likely effective dates of those promotions;
d) Ascertain, with the Assistance of the Defense Finance and Accounting
Office the amount of back pay allowances and entitlements plaintiff is
entitled to as a result of 10 U.S.C. § 875 and 10 U.S.C. § 707 in the rank
10
and grade he should have achieved according to the AFBCMR had he been
restored as required by law and GCMO #13;
e) Order plaintiffs [sic] retirement upon 20 years of active duty service in
light of the provisions of 10 U.S.C. § 1176. [sic]
f) Order that the Court shall retain jurisdiction of this matter during the
remand and the Secretary shall report back progress on the remand in
accordance with RCFC [Rules of the United States Court of Federal Claims]
52.2(b)[.]
Finally, plaintiff’s complaint requests that the court award “Attorney’s Fees and Costs,”
judgment in plaintiff’s favor, and “such additional relief as may be required.”
Defendant filed a motion to dismiss plaintiff’s complaint pursuant to RCFC 12(b)(1)
(2018), because, according to defendant, plaintiff’s “monetary claims” are time-barred
under the six-year statute of limitations contained in 28 U.S.C. § 2501. Defendant also
argues in its motion to dismiss that this court lacks subject matter jurisdiction over
plaintiff’s “request to restore him to active duty.”
Plaintiff filed a response to defendant’s motion to dismiss, in which he argues that
his request for active duty restoration is collateral to plaintiff’s “well-pleaded” claim for
“back-pay,” and, thus, that this court has jurisdiction over plaintiff’s active duty restoration
request. Plaintiff also argues that his “[c]omplaint was filed within the 6 year statute of
limitation [sic],” and not time-barred under 28 U.S.C. § 2501. Thereafter, defendant filed
a reply in support of its motion to dismiss, reiterating that plaintiff’s active duty restoration
request is “not within this court’s jurisdiction” because it is a request for equitable relief
that is not collateral to plaintiff’s claims and that plaintiff’s complaint is time-barred by the
court’s general six-year statute of limitations contained in 28 U.S.C. § 2501. On November
21, 2018, the parties simultaneously filed supplemental briefing addressing DODFMR,
Vol. 7A Ch. 1, § 010301.F and its applicability to the timeliness of plaintiff’s monetary
claim for back-pay for time spent on unpaid confinement and unpaid appellate review
leave.
DISCUSSION
“Subject-matter jurisdiction may be challenged at any time by the parties or by the
court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (citing
Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)); see also Int’l
Elec. Tech. Corp. v. Hughes Aircraft Co., 476 F.3d 1329, 1330 (Fed. Cir. 2007). The
Tucker Act, 28 U.S.C. § 1491 (2012), grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United States,
or for liquidated or unliquidated damages in cases not sounding in tort.
11
28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, the Tucker
Act waives sovereign immunity to allow jurisdiction over claims against the United States
(1) founded on an express or implied contract with the United States, (2) seeking a refund
from a prior payment made to the government, or (3) based on federal constitutional,
statutory, or regulatory law mandating compensation by the federal government for
damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90 (2009);
see also United States v. Mitchell, 463 U.S. 206, 216 (1983); Alvarado Hosp., LLC v.
Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cnty., Ariz. v. United States, 487
F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied,
552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).
“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable
under the Tucker Act. The claim must be one for money damages against the United
States . . . .” United States v. Mitchell, 463 U.S. at 216; see also United States v. White
Mountain Apache Tribe, 537 U.S. 465, 472 (2003); N.Y. & Presbyterian Hosp. v. United
States, 881 F.3d 877, 881 (Fed. Cir. 2018); Smith v. United States, 709 F.3d 1114, 1116
(Fed. Cir.), cert. denied, 571 U.S. 945 (2013); RadioShack Corp. v. United States, 566
F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d
1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must . . . identify a substantive source of law that
creates the right to recovery of money damages against the United States.”); Golden v.
United States, 118 Fed. Cl. 764, 768 (2014). In Ontario Power Generation, Inc. v. United
States, the United States Court of Appeals for the Federal Circuit identified three types of
monetary claims for which jurisdiction is lodged in the United States Court of Federal
Claims. The court wrote:
The underlying monetary claims are of three types. . . . First, claims alleging
the existence of a contract between the plaintiff and the government fall
within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver
encompasses claims where “the plaintiff has paid money over to the
Government, directly or in effect, and seeks return of all or part of that sum.”
Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d
[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims “in
which ‘the Government has the citizen’s money in its pocket’” (quoting
Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) . . . .
Third, the Court of Federal Claims has jurisdiction over those claims where
“money has not been paid but the plaintiff asserts that he is nevertheless
entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007.
Claims in this third category, where no payment has been made to the
government, either directly or in effect, require that the “particular provision
of law relied upon grants the claimant, expressly or by implication, a right to
be paid a certain sum.” Id.; see also [United States v. ]Testan, 424 U.S.
[392,] 401-02 [1976] (“Where the United States is the defendant and the
plaintiff is not suing for money improperly exacted or retained, the basis of
the federal claim-whether it be the Constitution, a statute, or a regulation-
does not create a cause of action for money damages unless, as the Court
of Claims has stated, that basis ‘in itself . . . can fairly be interpreted as
mandating compensation by the Federal Government for the damage
12
sustained.’” (quoting Eastport S.S., 372 F.2d at 1009)). This category is
commonly referred to as claims brought under a “money-mandating”
statute.
Ont. Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see
also Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); Twp.
of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).
To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon “‘can fairly be
interpreted as mandating compensation by the Federal Government.’” United States v.
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. at 400); see
also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United States v.
Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed.
Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting monetary relief
must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S.
at 290 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional
provision[] that operate[s] to waive sovereign immunity for claims premised on other
sources of law (e.g., statutes or contracts).”). “‘If the statute is not money-mandating, the
Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject
matter jurisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299,
1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876);
see also N.Y. & Presbyterian Hosp., 881 F.3d at 881; Fisher v. United States, 402 F.3d
1167, 1173 (Fed. Cir. 2005) (noting that the absence of a money-mandating source is
“fatal to the court’s jurisdiction under the Tucker Act”); Price v. United States, 133 Fed.
Cl. 128, 130 (2017); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).
When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the complaint
are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson
v. Pardus, 551 U.S. at 94 (“[W]hen ruling on a defendant’s motion to dismiss, a judge
must accept as true all of the factual allegations contained in the complaint.” (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 508 n.1 (2002)))); see also Frankel v. United States, 842 F.3d 1246, 1249
(Fed. Cir. 2016) (“In deciding a motion to dismiss, a court is required to accept as true all
factual allegations pleaded.” (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))); Fid. &
Guar. Ins. Underwriters, Inc. v. United States, 805 F.3d 1082, 1084 (Fed. Cir. 2015);
Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).
“Determination of jurisdiction starts with the complaint, which must be well-pleaded
in that it must state the necessary elements of the plaintiff’s claim, independent of any
defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh’g
denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.
Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710,
713 (2010). A plaintiff need only state in the complaint “a short and plain statement of the
13
grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing
that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2018); Fed. R. Civ. P. 8(a)(1), (2)
(2019); see also Ashcroft v. Iqbal, 556 U.S. at 677-78 (citing Bell Atl. Corp. v. Twombly,
550 U.S. at 555-57, 570). To properly state a claim for relief, “[c]onclusory allegations of
law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v.
Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel
Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in
part) (quoting C. W RIGHT AND A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1286 (3d
ed. 2004)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) (“[C]onclusory allegations
unsupported by any factual assertions will not withstand a motion to dismiss.”), aff’d, 460
U.S. 325 (1983). “A plaintiff’s factual allegations must ‘raise a right to relief above the
speculative level’ and cross ‘the line from conceivable to plausible.’” Three S Consulting
v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. at 555), aff’d, 562 F. App’x 964 (Fed. Cir.), reh’g denied (Fed. Cir. 2014). As stated
in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ 550 U.S. at 555. Nor does a
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555).
I. Timeliness of plaintiff’s claim for back-pay.
Defendant seeks to dismiss plaintiff’s claim for back-pay stemming from plaintiff’s
time spent on unpaid confinement and unpaid appellate review leave as time-barred
under the six-year statute of limitations contained in 28 U.S.C. § 2501. Although the
Tucker Act waives federal sovereign immunity and grants this court jurisdiction to hear
monetary claims against the government, this court’s jurisdiction is expressly limited by
28 U.S.C. § 2501, which prescribes a six-year statute of limitations for claims arising
under the Tucker Act’s waiver of sovereign immunity. According to 28 U.S.C. § 2501:
“Every claim of which the United States Court of Federal Claims has jurisdiction shall be
barred unless the petition thereon is filed within six years after such claim first accrues.”
Id. “The six-year statute of limitations set forth in section 2501 is a jurisdictional
requirement for a suit in the Court of Federal Claims.” John R. Sand & Gravel Co. v.
United States, 457 F.3d 1345, 1354 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2006),
aff’d, 552 U.S. 130 (2008); see also Schnell v. United States, 115 Fed. Cl. 102, 104-05
(2014).
Generally, a claim accrues “‘when all events have occurred to fix the Government’s
alleged liability, entitling the claimant to demand payment and sue here for his money.’”
Samish Indian Nation v. United States, 419 F.3d at 1369 (quoting Martinez v. United
States, 333 F.3d at 1303); see also FloorPro, Inc. v. United States, 680 F.3d 1377, 1381
(Fed. Cir. 2012); Martinez v. United States, 333 F.3d at 1303 (“A cause of action
cognizable in a Tucker Act suit accrues as soon as all events have occurred that are
necessary to enable the plaintiff to bring suit, i.e., when ‘all events have occurred to fix
the Government’s alleged liability, entitling the claimant to demand payment and sue here
[in the United States Court of Federal Claims] for his money.’” (emphasis in original)
(quoting Nager Elec. Co. v. United States, 177 Ct. Cl. 234, 240, 368 F.2d 847, 851 (1966),
14
motion denied, 184 Ct. Cl. 390, 396 F.2d 977 (1968))); Mildenberger v. United States,
643 F.3d 938, 944-45 (Fed. Cir. 2011); Hopland Band of Pomo Indians v. United States,
855 F.2d 1573, 1577 (Fed. Cir. 1988); Eden Isle Marina, Inc. v. United States, 113 Fed.
Cl. 372, 481 (2013); Brizuela v. United States, 103 Fed. Cl. 635, 639, aff’d, 492 F. App’x
97 (Fed. Cir. 2012), cert. denied, 568 U.S. 1251 (2013). A Judge of the United States
Court of Federal Claims has noted that:
It is well-established that a claim accrues under Section 2501 “when ‘all
events have occurred to fix the Government’s alleged liability, entitling the
claimant to demand payment and sue here for his money.’” Martinez v.
United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc), cert. denied,
540 U.S. 1177 (2004) (quoting Nager Elec. Co. v. United States, 368 F.2d
847, 851 (Ct. Cl. 1966)); see also Samish, 419 F.3d at 1369. Because, as
noted, this requirement is jurisdictional, plaintiff bears the burden of
demonstrating that its claims were timely. See Alder Terrace, Inc. v. United
States, 161 F.3d 1372, 1377 (Fed. Cir. 1998); Entines v. United States, 39
Fed. Cl. 673, 678 (1997), aff’d, 185 F.3d 881 (Fed. Cir.), cert. denied, 526
U.S. 1117 (1999); see also John R. Sand & Gravel Co. v. United States,
457 F.3d 1345, 1362 (Fed. Cir. 2006) (Newman, J., dissenting); Reynolds
v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
Parkwood Assocs. Ltd. P’ship v. United States, 97 Fed. Cl. 809, 813-14 (2011), aff’d, 465
F. App’x 952 (Fed. Cir. 2012); see also Klamath Tribe Claims Comm. v. United States,
97 Fed. Cl. 203, 209 (2011) (citing Alder Terrace, Inc. v. United States, 161 F.3d 1372,
1377 (Fed. Cir. 1998)). Accrual of a claim is “‘determined under an objective standard’”
and plaintiff does not have to possess actual knowledge of all the relevant facts in order
for a cause of action to accrue. FloorPro, Inc. v. United States, 680 F.3d at 1381 (quoting
Fallini v. United States, 56 F.3d 1378, 1380 (Fed. Cir. 1995), cert. denied, 517 U.S. 1243
(1996)). Rather, “[a] cause of action against the government has first accrued ‘when all
the events which fix the government’s alleged liability have occurred and the plaintiff was
or should have been aware of their existence.’” San Carlos Apache Tribe v. United States,
639 F.3d at 1350 (quoting Hopland Band of Pomo Indians v. United States, 855 F.2d at
1577); see also FloorPro, Inc. v. United States, 680 F.3d at 1381 (stating that a plaintiff
had “‘a complete and present cause of action’” when the plaintiff was aware that “all
events necessary to fix the alleged liability of the government for the failure to comply with
Modification P00001 had occurred” (quoting Bay Area Laundry & Dry Cleaning Pension
Trust Fund v. Ferbar Corp., 522 U.S. 192, 201 (1997))); Lynch v. United States, 135 Fed.
Cl. 494, 500 (2017) (stating, in a military pay case, that “a claim accrues when the plaintiff
becomes aware ‘of the existence of his injury and the acts giving rise to his claims’”
(quoting Martinez v. United States, 333 F.3d at 1319)); Myers v. United States, 50 Fed.
Cl. 674, 683 (2001) (stating, in a military pay case, that “‘a cause of action against the
government has ‘first accrued’ only when all the events which fix the government’s alleged
liability have occurred and the plaintiff was or should have been aware of their existence’”
15
(emphasis in original) (quoting Hopland Band of Pomo Indians v. United States, 855 F.2d
at 1577)).7
Generally, the relevant courts have held that when “the underlying basis for the
suit is the denial of back pay, we have consistently held that the limitations period is
established by the date of accrual, which is the date on which the service member was
denied the pay to which he claims entitlement.” Martinez v. United States, 333 F.3d at
1314 (internal citation omitted); see also Chisolm v. United States, 82 Fed. Cl. 185, 198
(2008) (“In military pay cases, generally, a claim accrues on the date on which the service
member was denied the pay to which he claims entitlement.” (internal quotation marks
omitted)). In Martinez, the appellant alleged that he had suffered monetary losses as a
result of his discharge from active duty. See Martinez v. United States, 333 F.3d at 1310.
The court, therefore, found that the appellant’s “cause of action” accrued on the date of
his discharge. Id. The Martinez court also explained that
the courts have made clear that a Tucker Act claim for back pay accrues all
at once at the time of discharge; the claim for back pay is not a “continuing
claim” that accrues each time a payment would be due throughout the
period that the service member would have remained on active duty.
Id. at 1303 (citing Longhine v. United States, 230 Ct. Cl. 920, 922 (1982); Vincin v. United
States, 199 Ct. Cl. 762, 468 F.2d 930, 933 (1972); and Mathis v. United States, 183 Ct.
Cl. 145, 391 F.2d 938, 939, vacated, 183 Ct. Cl. 145, 394 F.2d 519 (1968)).
The statute of limitations contained at 28 U.S.C. § 2501, however, can be
suspended in limited circumstances. For purposes of 28 U.S.C. § 2501, “accrual of a
claim against the United States is suspended . . . until the claimant knew or should have
known that the claim existed.” Martinez v. United States, 333 F.3d at 1320; see also
Ackerman v. United States, 107 Fed. Cl. 612, 617 (2012) (“A claim accrues only if the
claimant ‘knew or should have known’ that the claim existed.” (quoting Goodrich v. United
States, 434 F.3d 1329, 1333 (Fed. Cir. 2006))). This “accrual suspension” rule is “strictly
and narrowly applied: . . . [The plaintiff] must either show that defendant has concealed
its acts with the result that plaintiff was unaware of their existence or it must show that its
injury was ‘inherently unknowable’ at the accrual date.’” Martinez v. United States, 333
F.3d at 1319 (quoting Welcker v. United States, 752 F.2d 1557, 1589 (Fed. Cir. 1985))
(alteration in original); see also Hopland Band of Pomo Indians v. United States, 855 F.2d
at 1577 (“[T]he statute of limitations can be tolled where the government fraudulently or
7In an unpublished Opinion involving a claim alleged to be brought under the Military Pay
Act, the United States Court of Appeals for the Federal Circuit stated that “[a] claim
against the government generally accrues ‘[“]when all the events which fix the
government’s alleged liability have occurred and the plaintiff was or should have been
aware of their existence.[”]’” Malcolm v. United States, 690 F. App’x 687, 688-89 (Fed.
Cir. 2017) (quoting San Carlos Apache Tribe v. United States, 639 F.3d at 1350 (quoting
Hopland Band of Pomo Indians v. United States, 855 F.2d at 1577)).
16
deliberately conceals material facts relevant to a plaintiff’s claim so that the plaintiff was
unaware of their existence and could not have discovered the basis of his claim.”).
The parties dispute the accrual date of plaintiff’s claim for back-pay for time spent
on unpaid confinement and unpaid appellate review leave. Defendant asserts:
Mr. Perez brings two distinct money claims associated with his release from
confinement and associated unpaid leave status. First, he contends, he was
entitled to “the pay due as a result of his unpaid confinement,” citing 10
U.S.C. § 707. Second, he contends he is entitled to pay for “unpaid
appellate leave,” also citing Section 707. Service members who are
required to take “excess” (unpaid) leave awaiting conclusion of their court-
martial review and whose court-martial discharges were set aside are
entitled to pay accrued while in that status. Both of these claims are subject
to Martinez’s general accrual rule, as neither are based upon a claim of
unlawful discharge; rather, they are based [sic] Mr. Perez’s active duty
status while on appellate leave.
(internal references omitted). According to defendant, plaintiff’s claims for back-pay for
time spent on unpaid confinement and unpaid appellate review leave accrued on July 31,
2009, when the Air Force issued GCMO No. 13, because that is “the date on which the
Air Force: (1) took final action under the Uniform Code of Military Justice (UCMJ) to
dismiss all charges against him; and (2) had not paid him any monies allegedly then due.”
(internal reference omitted).
Plaintiff asserts that his claim for back-pay for time spent on unpaid confinement
and unpaid appellate review accrued, at the earliest, if at all, on June 18, 2013, when the
Air Force first made “any effort” to “actually discharge plaintiff from active duty” by issuing
plaintiff’s DD Form 214, albeit with a retroactive discharge date of July 31, 2009 and an
incorrect notation that plaintiff’s discharge was for “Bad Conduct.” Plaintiff claims that, “in
a military discharge case, the plaintiff’s cause of action for back pay accrues at the time
of the plaintiff’s discharge.” (emphasis in original) (citing Martinez v. United States, 333
F.3d at 1303). Plaintiff alleges that he was placed on unpaid confinement between July
2, 2004 and April 15, 2005, and then placed on unpaid appellate review leave, beginning
on April 16, 2005, the day after he was released from unpaid confinement, “until at least
June 18, 2013,” when the Air Force issued plaintiff’s Certificate of Release or Discharge
from Active Duty DD Form 214.8
Defendant’s position that plaintiff’s claim accrued on July 31, 2009, the date on
which the Air Force issued GCMO No. 13, fails. After the Air Force issued its order setting
8 Plaintiff argues, alternatively, that he currently remains on active duty, on unpaid
appellate review leave, because he was never properly discharged from the Air Force,
given the retroactive and unsigned DD Form 214. In a May 22, 2018 declaration signed
by plaintiff and submitted to the court, plaintiff states “l believed I could still be on appellate
review leave/active duty status in United States Air Force awaiting a final disposition.”
17
aside plaintiff’s conviction and bad-conduct discharge by restoring all his rights and
privileges denied by his conviction, the Air Force was required to address plaintiff’s
restoration status. Based on the record before the court, the Air Force failed to act on
plaintiff’s status for almost four years, until the Air Force retroactively issued the DD Form
214 on June 18, 2013. The Air Force was required to pay a servicemember in plaintiff’s
situation within a set amount of time, see 10 U.S.C. § 707(b)(2); see also DODFMR at
§ 010301.F.2.b, given that the Air Force Court of Criminal Appeals had ordered a new
trial, which the convening authority subsequently found to be impractical, as indicated in
the July 31, 2009 GCMO No. 13. Theoretically, the Air Force had 180 days from the
issuance of the July 31, 2009 GCMO No. 13 to pay plaintiff, with an option to extend the
period of time within which to make payment to plaintiff, as discussed below. See 10
U.S.C. § 707(b)(2)(B) (“Payment shall be made within 180 days from the date of the order
setting aside or disapproving the sentence by court-martial to a dismissal or a
dishonorable or bad-conduct discharge if a rehearing or new trial has been ordered but
charges have not been referred to a rehearing or new trial within 120 days from the date
of that order.”); see also DODFMR at § 010301.F.2.b.2. Before payment can be made,
however, the Air Force must exclude from the amount due to the servicemember “the
total amount of his income from wages, salaries, tips, other personal service income,
unemployment compensation, and public assistance benefits from any Government
agency during the period he is deemed to have accrued pay and allowances.” 10 U.S.C.
§ 707(b)(2); see also DODFMR at § 010301.F.2.a. In order for the Air Force to exclude
such income, the Air Force generally requests from the servicemember documentation of
income received during his or her time on appellate review leave. See 10 U.S.C.
§ 707(b)(3); see also DODFMR at § 010301.F.2.b.5. Once the information is requested,
the servicemember is required to provide to the Air Force in a “timely manner,” “at a
minimum, copies of all pertinent income tax returns, employer statements of income
earned from wages, salaries, tips, and documentation of other personal service income”
during the relevant period of time. See DODFMR at § 010301.F.3. If the servicemember
does not provide such “requested information” in a “timely manner,” the deadline for
payment, in plaintiff’s case, the 180-day deadline, “shall be extended until 30 days after
the date on which the member provides the requested information.” 10 U.S.C. § 707(b)(3);
see also DODFMR at § 010301.F.2.b.5. In sum, only after the Air Force has taken the
final step of computing the amount of pay due to the servicemember can the Air Force
then actually pay the servicemember.
Therefore, on July 31, 2009, when the Air Force “dismissed without prejudice”
plaintiff’s bad-conduct discharge and issued GCMO No. 13, the Air Force had not yet
made a final determination of the amount of pay due to plaintiff. Contrary to defendant’s
position, plaintiff’s claim for back-pay could not have accrued on July 31, 2009 because
the Air Force still needed to address plaintiff’s status, calculate the amounts due to
plaintiff, and provide compensation to plaintiff. Moreover, there is no evidence in the
record before the court indicating that, on July 31, 2009, plaintiff was aware or should
have been aware that the Air Force was not calculating the amount of compensation owed
to plaintiff and would not provide compensation to plaintiff. The Air Force is required to
follow its own regulations. Although government agencies are presumed to act in
accordance with the law, see Peoples v. United States, 101 Fed. Cl. 245, 264 (2011)
18
(stating that a military branch “is presumed to act in accordance with its regulations”); see
also Dodson v. United States, 988 F.2d 1199, 1204 (Fed. Cir.) (stating that “military
administrators are presumed to act lawfully and in good faith”), reh’g denied (Fed. Cir.
1993), that presumption can be rebutted. See Doe v. United States, 132 F.3d 1430, 1434
(Fed. Cir. 1997) (stating that the presumption that military officials act in good faith can
be rebutted); see also Peterson v. United States, 104 Fed. Cl. 196, 204 (2012).
Following the issuance of the July 31, 2009 GCMO No. 13, the Air Force does not
appear to have taken action to provide compensation to plaintiff under 10 U.S.C. § 707(b)
or to discharge plaintiff, until it issued the June 18, 2013 DD Form 214 purporting to
discharge plaintiff from the Air Force, with a retroactive discharge date of July 31, 2009
and an improper designation of plaintiff’s character of service as “bad conduct.” In
defendant’s supplemental brief, defendant acknowledges that “Air Force officials” failed
“to address Mr. Perez’s status and to request such information” relevant to compensation
under 10 U.S.C. § 707(b). In plaintiff’s opposition, plaintiff asserts that it is
undisputed that no final accounting of pay was conducted or delivered to
plaintiff at any time, up to and including the date that this Opposition is filed.
Finally, it is undisputed that at no time was plaintiff directed, or provided an
opportunity to undergo a ‘clearing’ process prior to June 18, 2013.
Indeed, based on the documents in the record, in a May 18, 2018 letter sent by the
Department of Defense to plaintiff, the Department of Defense appears to have
considered the plaintiff to be enrolled in the TRICARE health program, which provided
“health care benefits” to “active duty, retired and Reserve Service members, as well as
authorized family members,” until October 20, 2012. Based on the record before the court,
after issuing the July 31, 2009 GCMO No. 13, the Air Force failed to take any action
consistent with providing plaintiff with compensation which plaintiff was entitled to receive,
and the Air Force did not take any action indicating to plaintiff that the Air Force was not
going to provide compensation to plaintiff until June 18, 2013, notwithstanding the
directives in the July 31, 2009 GCMO No. 13.
On June 18, 2013, the Air Force issued the DD Form 214 attempting to discharge
plaintiff from the Air Force retroactively. At that point, on June 18, 2013, when the Air
Force attempted retroactively to document its discharge of plaintiff, the government’s
liability to provide compensation to plaintiff under 10 U.S.C. § 707(b) was fixed, as the Air
Force indicated, for the first time, that the Air Force was discharging plaintiff and there
was no indication then or thereafter that the Air Force intended to process compensation
in accordance within GCMO No. 13 to plaintiff. At that time, June 18, 2013, plaintiff
possibly could have become aware that the Air Force was not going to provide plaintiff
with any of the awardable compensation the Air Force was required to process in
accordance with 10 U.S.C. § 707(b), given that the Air Force had issued a DD Form 214.
In plaintiff’s opposition, plaintiff asserts that “no discharge certificate, valid or invalid, was
delivered to plaintiff,” that the “the address on the DD 214 was incorrect and plaintiff did
not receive a copy until he requested a digital copy of his military record on or in August
2017,” for an unidentified, apparently unrelated reason. Regardless, plaintiff filed his
19
February 13, 2018 complaint within six years of the Air Force’s issuance of the June 18,
2013 DD Form 214.
Defendant’s argument that the undersigned’s “reasoning” in Walker v. United
States, 117 Fed. Cl. 304, aff’d, 587 F. App’x 651 (Fed. Cir. 2014), cert. denied, 136 S. Ct.
409 (2015), “applies here” and “requires dismissal of Mr. Perez’s claims, all of which
accrued in 2009,” is misplaced. In Walker v. United States, the parties did dispute whether
a former servicemember’s claim for incapacitation pay was barred by the statute of
limitations. Walker v. United States, 117 Fed. Cl. at 317. The Walker court stated:
Ms. Walker improperly attempts to extrapolate a blanket rule from the
Martinez case that not only claims for back pay, but other claims as well,
such as her claim for incapacitation pay, do not accrue until the date of
discharge. In Martinez, the Federal Circuit stated the limitations period was
determined by the date of accrual in the back-pay case brought by plaintiff,
which was the date on which the service member was denied the pay to
which he claimed entitlement. See id. [Martinez v. United States, 333 F.3d
at 1314.]
By contrast, Ms. Walker’s incapacitation pay claims would have accrued
when all the events occurred which were necessary to enable the plaintiff
to bring suit, the date of non-payment. On August 14, 2003, Ms. Walker
submitted a request for incapacitation pay, and on August 18, 2003, Ms.
Walker acknowledged her understanding of, and agreement with, the
requirements for requesting incapacitation pay. Ms. Walker was examined
by an Army medical professional and found unfit for her military duty for the
period from September 4, 2003 through March 4, 2004. Ms. Walker now
alleges in this court that she is due “incapacitation pay pursuant to 37 U.S.C.
§ 204(g)(1) for the period from September 2003 through February 2004.” If,
as Ms. Walker alleges, she was due incapacitation pay, she would have had
to not only file a request for such pay, but also have received an approval
of the incapacitation pay. Given plaintiff’s stated timeframe for claiming
incapacitation pay, even assuming payment a month after a submitted
request, at the latest, on April 1, 2004, she should have realized that the
alleged incapacitation pay monies had failed to arrive. Therefore, when Ms.
Walker became aware, or should have become aware, that she did not
receive the incapacitation pay she thought she was due, is when her cause
of action for unpaid incapacitation pay began to accrue, and the statute of
limitations began to run. In plaintiff’s case, it would appear, at the latest,
April 1, 2004 was the date Ms. Walker should have become aware, that she
did not receive incapacitation pay. As such, pursuant to 28 U.S.C. § 2501,
Ms. Walker had six years from April 1, 2004 to bring her claim before this
court. Instead, Ms. Walker filed her claim on September 27, 2012, well over
two years after the expiration of the six-year statute of limitations period.
Id. at 320 (footnote omitted).
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In the above-captioned case, however, there is no evidence currently before the
court indicating that plaintiff either had notice, should have been aware, or was aware
that the Air Force would not take any of the actions consistent with the Air Force’s
responsibility to provide compensation under 10 U.S.C. § 707(b) to plaintiff on July 31,
2009, after the Air Force issued GCMO No. 13. Mr. Perez, however, could have become
aware that the Air Force was not going to provide compensation pursuant to 10 U.S.C. §
707(b) on June 18, 2013, when the Air Force issued the DD Form 214 purporting to
discharge plaintiff from the Air Force, although his uncontroverted statement is that he
did not become aware that the DD Form 214 had been issued until August 13, 2017. The
unique facts of the above-captioned case, in which plaintiff was confined based on two
minor girls’ apparently false testimony, which the Air Force subsequently found to be
“fabricated,” and the Air Force’s failure to take any steps to provide compensation to
plaintiff after dismissing the claims against plaintiff, differ from the facts in Walker, in which
the court found that the servicemember was aware or should have been aware that she
had not received “the incapacitation pay she thought she was due.” See Walker v. United
States, 117 Fed. Cl. at 320. Based on the facts presented in the case brought by Mr.
Perez, the court finds that plaintiff’s complaint is timely under 28 U.S.C. § 2501.
II. Plaintiff’s request for restoration to active duty.
Although this Opinion primarily addresses the issue of whether plaintiff’s complaint
was timely filed, plaintiff also argues that the Air Force wrongfully discharged plaintiff “with
a Bad Conduct Discharge,” as indicated in the June 18, 2013 DD Form 214 and that his
records should be corrected. Plaintiff further alleges that he was denied a “20 year
retirement;” that his rights to “veteran’s benefits and other emoluments of military service”
were “materially affected;” and that he should be returned to active duty. Defendant
responds that, even if plaintiff’s active duty restoration request was within this court’s
jurisdiction, this court would still lack jurisdiction because plaintiff’s enlistment period
ended in 2008. According to defendant, servicemembers are “not entitled to relief under
the Tucker Act reflecting constructive service beyond the expiration of their enlistment,
absent a statutory right to re-enlist.”
The court notes that, with respect to plaintiff’s request to be returned to active duty,
his request is outside the jurisdiction of this court. Which individuals should be in the
military is a decision that should be left to the expertise and discretion of the military. See,
e.g., Orloff v. Willoughby, 345 U.S. 83, 93 (1953) (“[J]udges are not given the task of
running the Army”). The military has the discretion to allow an individual to reenlist. See
10 U.S.C. § 505 (2012) (“The Secretary [of the service branch] concerned may accept a
reenlistment in the Regular Army, Regular Navy, Regular Air Force, Regular Marine
Corps, or Regular Coast Guard, as the case may be, for a period determined under this
subsection.” (emphasis added)); see also Craft v. United States, 210 Ct. Cl. 170, 187,
544 F.2d 468, 477 (1976) (“Normally, reenlistment is a matter within the discretion of the
Secretary of a given military branch.”). Unless an individual can point to a specific
statutory or regulatory right to be reenlisted, an individual is not entitled to be reenlisted
in the military. See Dodson v. United States, 988 F.2d at 1203-04 (noting that “no one
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has a right to enlist or reenlist in the armed forces, unless specially given one by statute
or regulation”); see also Maier v. Orr, 754 F.2d 973, 980 (Fed. Cir. 1985) (“No one has an
individual right, constitutional or otherwise, to enlist in the armed forces, the composition
of those forces being within the purview of the Congress and the military.”); Thompson v.
United States, 221 Ct. Cl. 983, 983 (1979) (“[W]e have no jurisdiction over claims for
refusal of reenlistment absent some special provision of law giving a right to reenlist.
Plaintiff has not cited any such special provision. Thus, the petition must be dismissed for
lack of jurisdiction.”); Harper v. United States, 104 Fed. Cl. 287, 293 (2012) (dismissing
plaintiff’s request for reinstatement in the Marine Corps in a case in which plaintiff’s term
of enlistment had expired and plaintiff had not alleged any statutory or regulatory right to
reenlistment); Hwuang v. United States, 94 Fed. Cl. 259, 271 (2010) (“[N]o serviceperson
has a right to enlist or to reenlist in the armed forces unless specially granted one.”
(internal quotation marks omitted)), aff’d, 409 F. App’x 348 (Fed. Cir.), reh’g and reh’g en
banc denied (Fed. Cir. 2011); Flowers v. United States, 80 Fed. Cl. 201, 217 (2008)
(“Unless a statute or regulation confers upon a serviceperson the right to reenlist, ‘an
enlisted man has no right to reenlist when his previous enlistment period ends . . . .’”
(omission in original) (quoting McEniry v. United States, 7 Cl. Ct. 622, 626 (1985)));
Thomas v. United States, 42 Fed. Cl. 449, 453 (1998) (“No one has a right to enlist or re-
enlist in the armed forces unless specially granted a right by statute or regulation.”), aff’d,
217 F.3d 854 (Fed. Cir. 1999). For example, in Craft v. United States, the court ordered
the Secretary of the Army to reenlist plaintiff to active duty service, having found that
plaintiff had a statutory right to re-enlistment pursuant to 10 U.S.C. § 1211(a)(3), which
provided at that time that an enlisted member on the Temporary Retired Disability List
“shall . . . be reenlisted” if found fit to perform his or her duties. See Craft v. United States,
210 Ct. Cl. at 186. In contrast, in Dodson v. United States, the United States Court of
Appeals for the Federal Circuit did not order that plaintiff be reinstated to active duty
service when plaintiff did not invoke any statutory or regulatory right to be reinstated into
active duty service, and his enlistment term of service had expired years before. See
Dodson v. United States, 988 F.2d at 1208. The Dodson court explained:
Because no one has a right to enlist or reenlist in the armed forces unless
specially granted one, an enlisted serviceman who has been improperly
discharged is entitled to recover pay and allowances only to the date on
which his term of enlistment would otherwise have expired had he not been
so discharged.
Id. The Dodson court noted that “[w]e can however remedy the legally defective process
so as to put Dodson into the position that he would have been had the proper procedures
been followed at the relevant times.” Id. The Dodson court concluded that former staff
sergeant Dodson “is entitled to back pay and allowances to May 19, 1985, the date of his
proper ETS [expiration of term of service date],” and instructed the United States District
Court for the Middle District of Florida to order that the correct enlistment evaluation form
be included in Mr. Dodson’s official military personnel file, and that if Mr. Dodson sought
reenlistment, “the bar to his reenlistment be lifted and his application for reenlistment be
considered anew.” Id. Although Mr. Perez requests that his “discharge be set aside” and
that he be “restored to active duty,” plaintiff’s enlistment in the Air Force expired in 2008.
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Therefore, as in Dodson, this court lacks the authority to reinstate plaintiff into active duty
service and dismisses plaintiff’s request for restoration to active duty for lack of
jurisdiction. See Dodson v. United States, 988 F.2d at 1208; see also Harper v. United
States, 104 Fed. Cl. at 293; Thompson v. United States, 221 Ct. Cl. at 983.
CONCLUSION
Defendant’s motion to dismiss plaintiff’s claims as time-barred by 28 U.S.C. § 2501
is DENIED. The court, however, finds that plaintiff’s request for active duty restoration
falls outside this court’s jurisdiction. The court, therefore, GRANTS IN PART defendant’s
motion to dismiss as to plaintiff’s active duty restoration request. The case is remanded
to the Air Force for initial determinations as to the amount of back-pay, if any, and other
monies due and owing to plaintiff.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
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