DocketNumber： No. 06-797C
Citation Numbers： 77 Fed. Cl. 318
Judges： Braden
Filed Date： 6/29/2007
Status： Precedential
Modified Date： 7/20/2022
MEMORANDUM OPINION AND FINAL ORDER
I. RELEVANT FACTS.
On August 15, 1984, Plaintiff enlisted in the United States Army and was assigned to work as a medical officer. See AR at 5. On August 31, 2000, following a “comprehensive review” of Plaintiffs Official Military Personnel Files (“OMPF”), pursuant to the Army’s Qualitative Management Program (“QMP”),
Plaintiffs first adverse NCOER was for the period of April 1—November 30, 1995 (“NCOER-I”), during which time Plaintiff was stationed in Korea. Id. at 173-74. The NCOER-I Raters noted competence issues, with other adverse comments, and recom
Plaintiffs second adverse NCOER was for the period of December 1, 1995—April 30, 1996 (“NCOER-II”). Id. at 170-71. The NCOER-II reflected continuing concerns about Plaintiffs leadership, responsibility, and accountability. Id. at 171. Accordingly, Plaintiff was not recommended for promotion. Id. The Reviewer of the NCOER-II submitted a memorandum of noneoncur-rence, to reflect “some good points that the [R]ater did not present.” Id. at 172. The Reviewer emphasized that “[Plaintiff] has good interpersonal trait that allows active interaction with patients, and she can accomplish a mission to standard when she sets her mind to it.” Id. Nonetheless, this Reviewer agreed with the recommendation not to promote, because of Plaintiffs need for improvement in the areas of competence, leadership and responsibility/accountability. Id.
On January 22, 1997, Plaintiff was promoted to Staff Sergeant (“SSG”) E-6. Id. at 3. On August 19, 1998, Plaintiff reenlisted for a six-year term. Id. Thereafter, Plaintiff received a third adverse NCOER for the period of May 1, 1998—April 30, 1999 (“NCOER-III”), during which time she was stationed at Fort Bragg, North Carolina. Id. at 166-67. The NCOER-III stated that Plaintiff needed improvement in the areas of competence and leadership. Id. The NCOER-III recommended that Plaintiff not be promoted, but instead be considered for QMP review. Id. Nevertheless, on June 14, 1999, Plaintiff received the Army Good Conduct Medal for her service from August 15, 1996 to August 14,1999. Id. at 142.
Subsequently, Plaintiff received a fourth adverse NCOER for the period of May 1, 1999—January 31, 2000 (“NCOER-IV”), while stationed at Fort Bragg, North Carolina. Id. at 164-65. The NCOER-IV noted that Plaintiff still required improvement in competence, leadership, training, and responsibility/aceountability. Id. Other adverse comments were made. Id. at 165. Again, the recommendation was for no promotion at that time. Id.
On October 17, 2000, to his credit, the Reviewer of the NCOER-III, Captain Hayes, forwarded a character reference to the Army Board for the Correction of Military Records Appeals Board (“ABCMR”), admitting that he had “issues with the harshness of [the NCOER-III],” but deferred to the judgment of the Rater and Senior Rater. Id. at 146. Significantly, Captain Hayes stated: “I feel it is in the best interest of the Army to allow [Plaintiff] to remain on active duty until retirement____Now, serving as a Company Commander, I see where I should have taken a harsher stance for [Plaintiff] and not allowed for such injustice.”
On December 20, 2000, Plaintiff appealed the QMP Board’s August 31, 2000 decision to discharge and bar her from reenlistment. Id. at 232. On April 9, 2001, the Department of the Army Standby Board denied Plaintiffs appeal. Id. On November 8, 2001, Plaintiff honorably was discharged with a Separation Code JGH
On September 19, 2002, Plaintiff appealed to the ABCMR, requesting that: 1) the NCOER-IV be removed from Plaintiffs record; 2) the August 31, 2000 QMP discharge be set aside; 3) Plaintiffs Reentry Code be changed from RE-4 to RE-1;
In support of her appeal, Plaintiff asserted that she was pressured to make a loan to the NCOER-IV Senior Rater, and that negative comments in the NCOER-IV were made in retaliation for attempts to collect payment. Id. at 126-27. Plaintiff provided the ABCMR with evidence of the loan and that Plaintiff received repayment, only after she retained counsel. Id. at 128-31. On November 24, 2003, the ABCMR denied Plaintiffs appeal. Id. at 95.
On October 28, 2004, Plaintiff asked the ABCMR for reconsideration, based on two supplements. Id. at 10, 13-23, 24-69, 70-74. Plaintiff requested that: 1) the August 31, 2000 QMP discharge be set aside; 2) Plaintiff constructively be reinstated to active duty through August 19, 2004 (the date when Plaintiff’s latest enlistment period would have ended); 3) Plaintiff be retired with over 20 years of military service; 4) Plaintiff be awarded back pay for the constructive active duty and retirement, and; 5) Plaintiffs discharge form be corrected to reflect a voluntary retirement. Id. at 13.
In Plaintiff’s March 1, 2005 Amended Supplemental Statement to the ABCMR, Plaintiff represented that the NCOER-III was backdated to May 26,1999, however, Plaintiff was not asked to sign until February 29, 2000, because the Senior Rater retired over the summer of 1999 and only returned to finish and sign the evaluation, after “prodding” by another Sergeant. Id. at 26. Plaintiff refused to sign the NCOER-III, because:
(a) . The [R]ater did not perform quarterly performance counseling beginning May 1998, but only one of record at the end of the rating period on 19 March 1999 signed by the rater without comment on 12 April 1999;
(b) The report was not “forwarded” to her to sign as alleged in May 1999, and she refused to authenticate that back-date. Therefore, the PSC official typed in “NCO refused to sign” and left the date blank. Martinez also recalls that there was “a big flap about having to submit a letter of lateness” when filing the [NCOER-III].8
Id. at 26.
On August 16, 2005, the ABCMR denied Plaintiffs request for reconsideration. Id. at 2-9.
II. PROCEDURAL HISTORY.
On November 28, 2006, a Complaint (“Compl.”) was filed in the United States Court of Federal Claims with Exhibits (“PX A—G”). The Complaint alleges that Plaintiffs termination from the United States Army was “without cause, justification or in accordance with the Army’s own regulations governing involuntary separation.” Compl. at 2. The Complaint requests that: 1) Plaintiffs August 31, 2000 QMP discharge be set aside; 2) Plaintiff constructively be reinstated to active duty through August 19, 2004; 3) Plaintiff be retired with over 20 years of military service; 4) Plaintiff be awarded back pay for constructive active duty and retirement; 5) Plaintiff’s discharge form be corrected to reflect a voluntary retirement; and 6) Plaintiff be promoted to the next highest rank of SFC/E7 for back pay and retirement allowances. Id at 2-3.
On December 22, 2006, Plaintiff filed an Addendum to the Complaint to include Exhibit H, Plaintiff’s returned appeal to remove the NCOER-IV from her OMPF. On March 8, 2007, Plaintiff filed an Exhibit List and Summary of Facts and Law.
On March 19, 2007, the Administrative Record was filed. On that same date, the Government filed a Motion for Judgment on the Administrative Record, together with a Statement of Facts (“Gov’t Mot. J. AR”) and Exhibits (“DX 1-6”). On May 21, 2007, Plaintiff filed a Cross-Motion for Judgment on the Administrative Record and Response to the Government’s Motion, together with a Statement of Facts (“Pl.Mot. J. AR”). On June 20, 2007, the Government filed a Reply
III. DISCUSSION.
A. Jurisdiction.
The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C. § 1491, “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.” 28 U.S.C. § 1491(a)(1). The Tucker Act, however, is “a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages ... the Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the substantive right exists.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (citations omitted). Therefore, in order to pursue a substantive right, under the Tucker Act, a plaintiff must identify and plead an independent contractual relationship, Constitutional provision, federal statute, and/or executive agency regulation that provides a substantive right to money damages. See Todd v. United States, 386 F.3d 1091, 1094 (Fed.Cir.2004) (“[JJurisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Aet[.]”); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc) (“The Tucker Act ... does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages. In the parlance of Tucker Act cases, that source must be ‘money-mandating.’ ” (citations omitted)).
For enlisted personnel, the money-mandating provisions of the Military Pay Act of 1992 (“MPA”) grant the United States Court of Federal Claims jurisdiction to adjudicate requests for reinstatement, back pay, or both. See 37 U.S.C. § 204 (Section 204(a) of the MPA provides in relevant part: “a member of the uniform service who is on active duty ... [is] entitled to the basic pay of the pay grade to which assigned”); see also Martinez v. United States, 333 F.3d 1295, 1303 (Fed.Cir.2003) (en banc) (“In the context of military discharge cases, the applicable ‘money-mandating’ statute that is generally invoked is the [MPA].”); Sargisson v. United States, 913 F.2d 918, 920 (Fed.Cir.1990) (holding claims for reinstatement and back pay stemming from allegedly unlawful separation from active duty in the military are within the United States Court of Federal Claim’s jurisdiction under 28 U.S.C. § 1491).
In addition, the United States Court of Federal Claims has authority to provide equitable relief if the action is “incidental of and collateral to” a claim for monetary damages. See 28 U.S.C. § 1491(a)(2); see also Passaro v. United States, 774 F.2d 456, 459 (Fed.Cir.1985) (“Equity, to the extent that it can be administered by the [United States Court of Federal Claims], exists as an incident of general jurisdiction under the Tucker Act[J” (citations omitted)). Specifically, in MPA cases, the court only has “power to order the correction of military records ... incidental of and collateral to its award of a money judgment.” Voge v. United States, 844 F.2d 776, 781 (Fed.Cir.1988) (quotation and citation omitted); see also Austin v. United States, 206 Ct.Cl. 719, 723 (1975) (In
In this case, the Complaint’s requests for back pay and retirement allowances, pursuant to the alleged illegal discharge, are claims for monetary relief within the jurisdictional bounds of the Tucker Act and MPA. Compl. at 2-3. In addition, the equitable relief requested, i.e., that the court: 1) set aside Plaintiffs QMP discharge; 2) constructively reinstate her to active duty to complete her last enlistment period; 3) voluntarily retire her at the end of her last enlistment period with over 20 years of service; and 4) correct her discharge form to reflect an honorable voluntary retirement with consistent codes, are “incidental of and collateral to” Plaintiffs claim for back pay. See Compl. at 2; see also 28 U.S.C. § 1491(a)(2).
B. Justiciability.
When final military decisions are challenged, the court is obligated first to consider the justiciability of the legal question presented. See Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 97 L.Ed. 842 (1953) (“[J]udges are not given the task of running the [military]. The responsibility for setting up channels through which such grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates.”). The United States Court of Appeals for the Federal Circuit specifically has held that “determining who is fit or unfit to serve in the armed services is not a judicial province.” Heisig v. United States, 719 F.2d 1153, 1156 (Fed.Cir.1983) (holding that the merits of the military’s decisions to release a service member from active duty are non-justieiable). Moreover, “[a] claim of error in a promotion decision presents a nonjustieiable controversy because there are no statutory or regulatory standards against which a court can review such a decision.” Fluellen v. United States, 225 F.3d 1298, 1304 (Fed.Cir.2000).
Nevertheless, the United States Court of Federal Claims has authority to ascertain the procedural validity of a military decision. See Murphy v. United States, 993 F.2d 871, 874 (Fed.Cir.1993) (‘When the military is given unlimited discretion by Congress, it is nevertheless bound to follow its own procedural regulations if it chooses to implement some.”). Therefore, when the military issues a final decision, the court can intervene only to ensure that the decision was made in a proper procedural manner. See Adkins v. United States, 68 F.3d 1317, 1323 (Fed.Cir.1995) (“[Although the merits of a decision committed wholly to the discretion of the military are not subject to judicial review, a challenge to the particular procedure followed in rendering a military decision may present a justiciable controversy.” (emphasis in original)).
C. Pro Se Pleading Requirements.
In the United States Court of Federal Claims, the pleadings of a pro se plaintiff are held to a less stringent standard than those of litigants represented by counsel. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (pro se complaints “however inartfully pleaded,” are held to “less stringent standards than formal pleadings drafted by lawyers.” (quotation and citation omitted)). Indeed, it has been the tradition of the court to examine the record “to see if [a pro se ] plaintiff has a cause of action somewhere displayed.” Ruderer v. United States, 188 Ct.Cl. 456, 412 F.2d 1285, 1292 (1969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiffs complaint, the court “does not excuse [the complaint’s] failures.” Henke v. United States, 60 F.3d 795, 799 (Fed.Cir.1995).
D. Standard For Failure To State A Claim Upon Which Relief Can Be Granted—RCFC 12(b)(6).
United States Court of Federal Claims’ Rule (“RCFC”) 12(b)(6) provides: “[dismissal for failure to state a claim under Rule 12(b)(6) ... is proper only when a plaintiff ‘can prove no set of facts in support of his claim which would entitle him to relief.’” Adams v. United States, 391 F.3d 1212, 1218 (Fed.Cir.2004) (quoting Leider v. United
E. Standard For Judgment On The Administrative Record—RCFC 52.1.
Review of a military correction board’s decision is “limited to the administrative record before the deciding official or officials.” Wyatt v. United States, 23 Cl.Ct. 314, 319 (1991) (citing Long v. United States, 12 Cl.Ct. 174, 177 (1987)). The standard of review for a motion for judgment on the administrative record, pursuant to RCFC 52.1, is similar but not identical to a motion for summary judgment under RCFC 56. Bannum, Inc. v. United States, 404 F.3d 1346, 1355 (Fed.Cir.2005). The standard for a motion for summary judgment is whether the moving party has proved its case as a matter of fact and law or whether a genuine issue of material fact precludes judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In contrast, the standard for judgment on the administrative record is narrower, i.e., given all the disputed and undisputed facts in the administrative record, whether the plaintiff has met the burden of proof to show that the decision was not in accordance with the law. See Bannum, 404 F.3d at 1357 (instructing the court to make “factual findings under RCFC 52.1 from the [limited] record evidence as if it were conducting a trial on the record.”). The existence of a material question of fact neither precludes granting a motion for judgment on the administrative record, nor requires the court to conduct evidentiary proceedings. Id.
Review is further limited to determining whether applicable procedures were followed and whether the military board’s decision was “arbitrary, capricious, unsupported by substantial evidence, or contrary to law.” Porter v. United States, 163 F.3d 1304, 1312 (Fed.Cir.1998) (citations omitted); see also Hoskins v. United States, 40 Fed.Cl. 259, 271-72 (1998) (“Once a plaintiff has sought relief from a correction board ... the plaintiff is bound by that board’s determination unless he can satisfy the difficult standard of proof that the correction board’s decision was illegal because it was arbitrary, capricious, or in bad faith, or unsupported by substantial evidence, or contrary to law, regulation or mandatory published procedure of a substantive nature by which plaintiff has been seriously prejudiced, or money is due.” (citations omitted)). Specifically, the court may not retry the case on the merits. See Heisig, 719 F.2d at 1156 (“Although the court might disagree with the board’s decision, it cannot substitute its own judgment for that of the board if reasonable minds could reach differing resolutions of the disputed matter.”); see also Watson v. Ark. Nat’l Guard, 886 F.2d 1004, 1011 n. 16 (8th Cir.1989) (Review of a military correction board’s decisions are limited to “whether the Board’s decisionmaking process was deficient, not whether the decision was correct.” (citations omitted)); Van Cleave v. United States, 70 Fed.Cl. 674, 678 (2006) (The United States Court of Federal Claims does not act as a “super correction board[.]”).
Moreover, the plaintiff bears the burden of proving any deficiency by “cogent and clearly convincing evidence.” Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed.Cir.1986). Such proof must also “overcome the strong, but rebutta-ble, presumption that the administrators of the military, like other public officials, discharge their duties correctly, lawfully, and in good faith.” Porter, 163 F.3d at 1316 (quoting Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 813 (1979)).
F. The Court’s Resolution Of The Government’s Motion To Dismiss.
The Complaint requests that Plaintiff be promoted to the next highest rank of SFC/E7 for retirement and pay purposes, because Plaintiff completed all training prerequisites for the promotion and believes that she “would have been promoted to the next highest rank at some point.” Compl. at 3-4.
The Government moves to dismiss for failure to state a claim, contending that a soldier has no affirmative right to a rank, unless the
The United States Court of Federal Claims is obligated to consider the jurisdictional basis of a claim sua sponte. See RCFC 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”); see also Consolidation Coal Co. v. United States, 351 F.3d 1374, 1378 (Fed.Cir.2003) (“[U]nder federal rules any court at any stage in the proceedings may address jurisdictional issues. Thus, even if the issue is not properly raised, this court sua sponte may consider all bases for the trial court’s jurisdiction.”).
Although the court has authority to provide equitable relief “incident of and collateral to” a claim for monetary damages, Plaintiffs request for promotion is independent of her claim for back pay and is not inextricably tied to the merits of the QMP discharge. See Carman v. United States, 221 Ct.Cl. 165, 602 F.2d 946, 949 (1979) (holding that there must be a “sufficient nexus” between the money and the equitable claim for the Claims Court to consider an equitable claim); see also Austin, 206 Ct.Cl. at 723 (holding that the court has no power “to grant affirmative non-monetary relief unless it is tied and subordinate to a monetary award”). Accordingly, the court has determined it does not have jurisdiction to adjudicate Plaintiffs claim for a promotion.
Assuming, arguendo, that the court had jurisdiction, the court would, nevertheless, decline to exercise that authority, because administration of military promotions are “left to the discretion of the military.” See Fluellen, 225 F.3d at 1304. In this case, Plaintiff was denied a promotion to SFC/E7 when the QMP Board discharged and barred her from reenlistment. See AR at 38. Considering the merits of Plaintiffs promotion request would place the court in an untenable position of substituting its judgment for that of the QMP Board and ABCMR. See Dysart v. United States, 369 F.3d 1303, 1315 (Fed.Cir.2004) (“[T]he subject of military promotions is beyond the competence of courts to review.”); see also Voge, 844 F.2d at 782 (“[A]bsent statute or regulation entitling a service member to promotion as a
Moreover, in this case, even assuming that Plaintiff fulfilled all the prerequisites for receiving a promotion and that Plaintiffs personal beliefs regarding the inevitability of her promotion are genuine, there is still the requirement that a promotion board recommend her for promotion. See Army Reg. 600-8-19 114—3(d) (“The selection board will recommend a specified number of Soldiers by MOS from the zones of consideration who are the best qualified to meet the needs of the Army.”). Because the QMP Board denied Plaintiff promotion, discharged and barred her from reenlistment, there is no set of facts or reasonable inferences that would justify Plaintiffs promotion. See RCFC 12(b)(6).
G. The Court’s Resolution Of The Government’s Motion For Judgment On The Administrative Record.
1. The ABCMR Decision Was Not Procedurally Deficient.
The Complaint also alleges that the original August 31, 2000 QMP Board decision should not have relied on the NCOER-IV, but instead should have considered Plaintiffs post-NCOERIV performance in Germany. See PXE at 10-11; see also AR at 121-22.
The Administrative Record indicates that the ABCMR was aware of and addressed the QMP Board’s reliance on NCOER-IV. See AR at 89-90. The Administrative Record also indicates that the ABCMR had knowledge of Plaintiffs improved performance after she left Fort Bragg, but did not consider this information to be dispositive. Id. at 149-151; see also Army Reg. 635-200 H19-11(d)(1) (“The mere fact that a soldier’s performance has improved or that the soldier’s file contains material error is not necessarily sufficient to overcome the reason for QMP selection. The appeal board may determine that the reason for QMP selection still applies even in light of the improved performance or correction of an error.” (emphasis added)).
2. The ABCMR Decision Was Not Arbitrary, Capricious, Unsupported By Substantial Evidence Or Contrary To Law.
a. The Decision Not To Remove The NCOER-IV From Plaintiffs OMPF.
Plaintiff challenges the ABCMR’s decision on the grounds that the NCOER-IV was adverse due to the Senior Rater’s bias. See AR at 112-14. Plaintiff provided evidence that she made a loan to the Senior Rater prior to the rating, but repayment did not occur until five months after the NCOER-IV was written, and only after Plaintiff was forced to retain a lawyer to recover. Id. at 113. Plaintiff contends that “[o]ne can certainly infer a certain amount of coercion or extortion,” and that the ABCMR’s belief that the transaction did not “taint the evaluations is simply inaccurate.”
The Government counters that Plaintiffs challenge to the NCOER-IV was known and addressed by the ABCMR and the ABCMR did not act in a manner that was “arbitrary, capricious, or contrary to law or regulation.” Gov’t Mot. J. AR at 15. Moreover, the Government argues that the NCOER-IV was consistent with a downward trend in Plaintiffs historical performance. Id. at 14-15.
b. The Decision Not To Set Aside Plaintiffs QMP Discharge And Bar To Reenlistment.
Plaintiff also challenges the validity of the QMP discharge, in light of Plaintiffs Army Good Conduct Medal (“AGCM”) for periods of service that coincide with the adverse NCOERs. See PI. Mot. J. AR at 4. Plaintiff contends that the award of an AGCM renders a soldier “immune ... from later attempts to discredit or portray the soldier’s service as below minimum standards or efficiency in decline [sic].” Id. In addition, Plaintiff asserts that the AGCM evaluation criteria and the QMP screening criteria are “effectively the same.” Id.
In addition, Plaintiff contends that the Army acted inconsistently by promoting and reenlisting her after issuing the adverse NCOER-I and NCOER-II. See Pl. Mot. J. AR at 3-4; see also AR at 13. Plaintiff argues that “[i]t follows that when the Army promoted her and allowed reenlistment, it was waiving any prior duty performance reports (NCOERs) as a source to later involuntarily discharge her on the basis of failing to meet minimum standards of retention.” AR at 13. Plaintiff further argues that the Army is equitably estopped from discharging and barring her from reenlistment based on evaluations in existence at the time she was awarded an AGCM, subsequently promoted, and then reenlisted. See Pl. Mot. J. AR at 3-4; AR at 13 (citing Watkins v. United States, 875 F.2d 699 (9th Cir.1989) (holding that the Army was estopped from denying a soldier’s pending reenlistment and issuing a discharge based on homosexuality, because the Army knew of soldier’s past admissions from official records and nevertheless enlisted him)).
Plaintiff also challenges the NCOER-III and the NCOER-IV in light of positive character references from: the Reviewer of NCOER-III; her First Sergeant Michael Choice (“1SG Choice”) during the period of NCOER-III and NCOER-IV; and a Colonel Calder who inspected her unit on two occasions. See AR at 19. Plaintiff contrasts the laudatory comments of the recommenders with the adverse comments in the NCOER-III and NCOER-IV, during the same period of time. Id. at 19.
The Government counters that the ABCMR addressed these arguments, explaining that the standard for QMP review encompasses the additional consideration of “potential for advancement,” while the AGCM only assess a soldier’s performance for his or her current rank. See Gov’t Mot. J.
In addition, the Government relies on 1SG Choice’s account of the circumstances surrounding Plaintiffs AGCM award that “ ‘there [was] nothing of sufficient magnitude to deny her the [AGCM].’ ” Id. (quoting AR at 32). The Government, therefore, concludes that “there were concerns with [Plaintiffs] performance, as reflected in her many substandard NCOERs, but [the Army] did not believe they were sufficient to deny her an award that only required meeting the minimum local performance standard.” Id. at 19 (emphasis added).
The Government addresses Plaintiffs equitable estoppel argument by asserting that Plaintiff did not allege affirmative misconduct, a traditional element of estoppel required to estop the government. See Gov’t Reply at 4 (citing United States v. Ford Motor Co., 463 F.3d 1267, 1279 (Fed.Cir.2006)). The Government also contends that the Administrative Record does not reflect “evidence sufficient to overcome the strong, but rebuttable, presumption that administrators of the military, like other public officials, discharge their duties correctly, lawfully, and in good faith.” Id. (quoting Sanders, 594 F.2d at 813). Moreover, the Government notes that the United States Court of Federal Claims consistently has declined to adopt the Watkins holding. Id. at 4-6 (citing McIntyre v. United States, 30 Fed.Cl. 207, 215 n. 6 (1993) (“[T]o apply estoppel here against the government ... would wreak havoc on the QMP, for any NJPs [non-judicial punishments], which at present are an important factor in QMP screening, would be ‘wiped clean’ at the start of each new term of enlistment, an effect unintended by the Army in its QMP screening and one which the court refuses to endorse.” (citations omitted)); Peters v. United States, 28 Fed.Cl. 162, 170 (1993) (“[T]o the extent that Watkins indicates that the military can ever be estopped from enforcing valid regulations based solely on its failure to enforce them with respect to a particular individual, we disagree.”)). The Government also contends that the governing regulations required the QMP Board to examine all of Plaintiffs NCOERs and the assertion that the Board should not have considered them contradicts this requirement. See Gov’t Reply at 6-7 (citing Army. Reg. 635-200, 1119—6(b)).
As to Plaintiffs positive character references, the Government contends that they were weighed by the QMP Board and the ABCMR on appeal. See Gov’t Mot. J. AR at 19; see also AR at 147-48, 151. In any event, the Government argues that Plaintiffs adverse NCOERs were not the exclusive factor relied upon in the QMP bar decision, citing Plaintiffs lack of “end of tour award[s],” as an additional example of her “substandard record.” Gov’t Mot. J. AR at 19
The court has determined that the apparent inconsistency between Plaintiffs AGCM award and subsequent discharge may be explained by the difference between the purposes and standards of evaluation associated with the award and the QMP program. The discretion to award the AGCM is vested solely in the immediate unit’s commander. See Army Reg. 600-8-22 1Í4-4. Although the “Character of service” requirements set guidelines for who qualifies, there is no authority above the unit commander to assess the merits of the award (after merely con-
In this case, the QMP Board examined the AGCM award, along with all of Plaintiffs other favorable characteristics, and weighed them against her unfavorable characteristics. See AR at 8-9. On appeal, the ABCMR concluded that there was no reason to disturb the QMP Board’s findings. Id. (“The evidence presented does not demonstrate the existence of a probable error or injustice.”); see also McIntyre, 30 Fed.Cl. at 215 (“The QMP was designed to advance productive and progressive soldiers and deny reenlistment to nonprogressive ones, thereby thinning the ranks to develop a smaller, more elite contingent of enlisted leaders[.]”).
For these reasons, the court has determined that the ABCMR’s decision to uphold Plaintiffs discharge and bar to reenlistment was not “arbitrary, capricious, unsupported by substantial evidence, or contrary to law.” Porter, 163 F.3d at 1312. Moreover, in this case, Plaintiff has not provided any evidence to show that the Army violated QMP guidelines to “overcome the strong, but rebuttable, presumption that the administrators of the military, like other public officials, discharge their duties correctly, lawfully, and in good faith.” Porter, 163 F.3d at 1316 (quoting Sanders, 594 F.2d at 813). Therefore, Plaintiff’s requests for: 1) constructive reinstatement to active duty through August 19, 2004; 2) retirement with over 20 years of military service; 3) back pay and retirement benefits consistent with reinstatement; and 4) administrative correction of military records to reflect voluntary retirement, are denied.
c. The Decision Not To Change Plaintiffs Reentry Code.
In addition, Plaintiff contends that her reentry code should be changed, because “no provision under Army Regulations ... provides for a fully Honorable Discharge with an RE Code of 4 absent misconduct.” Compl. at 2. The Government, however, cites Army Regulation 601-210 113-22(c), providing that RE-4 “[ajpplies to: ‘person separated from last period of service with a non-waivable disqualification. This includes anyone with a Department of the Army imposed bar t[o] reenlistment in effect at time of separation[.]’ ” Gov’t Mot. J. AR at 20 (citing Army Reg. 601-210 113-22(c)).
Because a QMP bar to reenlistment is a Department of the Army imposed bar to reenlistment and Plaintiffs QMP bar was properly decided, the court has determined that Plaintiff is not entitled to have her reentry code changed. Id. at 20-21; see also Army Reg. 601-210 113-22(e).
d. The Decision Not To Grant Plaintiff Temporary Early Retirement.
At the ABCMR, Plaintiff requested that she be retired, pursuant to the Temporary Early Retirement Authority (“TERA”),
To the extent that Plaintiff requests retirement pursuant to TERA, the court has determined that, because Plaintiffs attempt to apply for early retirement was unsuccessful, the ABCMR was correct in finding that the Army was under no duty to grant Plaintiff such relief.
e. The Decision Not To Grant Plaintiff Full Separation Pay In Lieu Of Half Separation Pay.
At the ABCMR, Plaintiff also requested full separation pay, in lieu of the half separation pay awarded to soldiers who are barred from reenlistment pursuant to the QMP. See AR at 112, 123-24; see also Army Circular 635-92-1 1f 2-3(a) (half separation pay will be paid to “[s]oldiers who are denied retention as a result of a DA QMP ... bar to reenlistment and who do not voluntarily separate under the provision of para 16-5, [Army Regulation] 635-200.”). Plaintiffs request was based on an exception to that provision that “[i]n extraordinary circumstances, the Secretary of the Army may award full separation pay to soldiers otherwise eligible for half separation pay when the specific reasons for separation and the overall quality of the soldier’s service have been such that denial of full pay would be clearly unjust.” Army Circular 635-92-1 U 2-3(a); see also AR at 123. Plaintiff, however, did not specifically request such relief from this court.
To the extent Plaintiff requests full separation pay, the court has determined that the ABCMR identified the controlling guidance and properly concluded that Plaintiff was only entitled to half separation pay. See AR at 87, 93.
IV. CONCLUSION.
For the aforementioned reasons, the Government’s March 19, 2007 Motion to Dismiss and Motion for Judgment on the Administrative Record are granted. Plaintiffs May 21, 2007 Cross-Motion for Judgment on the Administrative Record is denied. The Clerk of the United States Court of Federal Claims is directed to enter judgment for the Government.
IT IS SO ORDERED.
. The relevant facts recited herein were derived from the March 19, 2007 Administrative Record ("AR").
. The QMP was implemented to: enhance the quality of the- career enlisted force; selectively retain the best qualified force members; deny continued service to nonproductive force members; and encourage force members to maintain eligibility for further service. See AR at 7.
. The NCOER includes the substantive evaluation of: a Rater; a Senior Rater, who may provide additional comments; and a Reviewer, who either "concurs” or "nonconcurs” with the prior evaluations. See AR at 173-74. The NCOER is signed and dated by all three participants and can also be signed by the rated Noncommis-sioned Officer ("NCO”), although the NCO can decline to do so. Id. at 166.
. Plaintiff has submitted two other character references that don’t specifically address the adverse NCOERs and are not written by her Raters or Reviewers. See AR at 147-48. These reference the NCOER-III and NCOER-IV rating periods. Id. In addition, Plaintiff has submitted a favorable character reference from after she left Fort Bragg. Id. at 151.
. The Separation Code of “JGH’’ applies when an “applicant [is] discharged for not meeting retention standards of the Army.” AR at 92.
. The Reentry Code "RE-4” applies when a person is "separated from their last period of service with non-waivable disqualifications.” AR at 92. This includes anyone with "a [Department of the Army]-imposed bar to reenlistment in effect at the time of separation.” Id.
. The Reentry Code "RE-1” means “immediately eligible for reenlistment at time of separation.” Army Reg. 601-210, Table 3-1.
. Plaintiff also alleged that she never received the NCOER-III before she left Fort Bragg in April 2000, but this contradicts prior testimony that she refused to sign the NCOER-III on February 29, 2000, "the day before she [left for] Germany.” See AR at 26.
. Regarding the money-mandating requirement of the Tucker Act, the United States Supreme Court has held that: "This 'fair interpretation' rule demands a showing demonstrably lower than the standard for the initial waiver of sovereign immunity.... It is enough, then, that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages. While the premise to a Tucker Act claim will not be ‘lightly inferred' ... a fair inference will do.” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472-73, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003) (emphasis added). The United States Court of Appeals for the Federal Circuit has recognized, but not resolved, whether the United States Supreme Court, in restating the money-mandating test, may have made it less stringent. See Fisher, 402 F.3d at 1173-74 (citing White Mountain, 537 U.S. at 472-73, 123 S.Ct. 1126).
. In addition, Plaintiff’s failure to raise this issue either in the original request to the ABCMR or on reconsideration constitutes a waiver of those issues in future litigation. See Frecht v. United States, 25 Cl.Ct. 121, 131 n. 7 (1992) ("Failure to timely raise objections and issues to a board of inquiry constitutes a waiver of that right in subsequent litigation.” (citations omitted)); see also Martinez v. United States, 914 F.2d 1486, 1489 (1990) ("[Plaintiff] must have raised the claim itself, not merely have pointed to facts that, in his view and in hindsight, support it.”). The pro se nature of the Complaint, however, requires that the court examine the record "to see if [a pro se ] plaintiff has a cause of action somewhere displayed." Ruderer, 412 F.2d at 1292; see also Hughes, 449 U.S. at 9, 101 S.Ct. 173 (1980) (pro se complaints “however inartfully pleaded,” are held to "less stringent standards than formal pleadings drafted by lawyers” (quotation and citation omitted)). Nonetheless, in examining the Administrative Record, the court was unable to find a single instance where Plaintiff either requested promotion or asserted a right to promotion. Although significant leeway is given to the complaint of a pro se plaintiff with respect to procedural validity, the court cannot "excuse [the complaint’s] failures.” Henke, 60 F.3d at 799.
. Plaintiff also contends that the appeal of the NCOER-IV was rejected due to an outdated Personnel Qualification Form ("2-1 form”). See PI. Mot. J. AR at 6. Plaintiff asserts that the "record” indicates repeated attempts to rebut the NCOER-I, as well as the other NCOERs, all with the response that an updated 2-1 form was required. Id. Plaintiff states that this required form was “mysteriously no longer available for retrieval in an Army wide data base [sic], as it had been for the 17 years previous.” Id.; see also AR at 112 (referencing the unsuccessful appeal of the NCOER-IV). The Government counters that Plaintiff attempted to appeal the NCOER-IV in November of 2000, but that the appeal was returned for "noncompliance.” See Gov't Mot. J. AR at 7 (citing PXH).
The court notes that there is no evidence in the Administrative Record that Plaintiff further pursued the appeal. Moreover, Plaintiff's contention that impropriety surrounded the NCOER-IV appeal is irrelevant, because in reviewing the QMP Board's decision, the ABCMR reviewed and reasserted the validity of the NCOER-IV. See AR at 89-90.
. The ABCMR observed that the “[R]atee/[S]en-ior [R]ater relationship did not exist” at the time the loan was made. See AR at 89.
. Plaintiff compares: QMP selection criteria of: "[djecline in efficiency and performance over a continuing period;” with AGCM criteria for disqualification of: "when manner of performance or efficiency declines.” AR at 16. Plaintiff also compares the language from the QMP notice:
"[The QMP] requires that [NCOs] demonstrate professional ability by performance of duty and standards of conduct which set an example for junior soldiers;” with the AGCM character of service standard, i.e., soldiers must "[cjonduct themselves in such an exemplary manner as to distinguish them from their fellow soldiers.” Id. at 16-17.
. In support, the Government asserts that the QMP is designed to ensure that: " 'NCOs whose performance, conduct, and/or potential for advancement do not meet Army standards, as determined by the approved recommendations of HQDA centralized selection boards responsible for QMP screening, will be denied continued service.’ " Id. Gov’t Mot. J. AR at 18 (quoting Army Reg. 35-200 IT 19-2(a)) (emphasis added). In contrast, the AGCM standard for job performance is that a " 'soldier’s efficiency must be evaluated and must meet all requirements and expectations for that soldier’s grade, MOS, and experience.’ " Id. (quoting Army Reg. 600-8-22, 114—6(d)) (emphasis added).
. TERA was enacted by the Fiscal Year 1993 Defense Authorization Act as a draw-down tool effective through October 1, 1999. See Pub.L. No. 102-484, § 4403 (1992); see also Pub.L. No. 103-160, § 561 (1993). The authority provides for retirement of "soldiers who have served at least fifteen years but fewer than twenty years.” See Pub.L. No. 102-484, § 4403.
. The Complaint references a letter from Plaintiff's attorney to a Lieutenant-Colonel Olson at the U.S. Army Enlisted Records and Evaluation Center, alleging that the command in Germany illegally refused to process her TERA request. See PXC. Lieutenant-Colonel Polen also is identified as the officer who "orchestrat[ed] the illegal conduct." Id.
. The question of whether Plaintiff is actually deserving of retirement under TERA is non-justiciable. See Voge, 844 F.2d at 782 ("[S]trong policy reasons compel courts to allow the widest possible latitude to the armed services in their administration of personnel matters.” (citations omitted)). Furthermore, Plaintiff has provided no outside evidence that she has an affirmative right to early retirement benefits. See RCFC 12(b)(6).