Bowersox v. United States

L
3Jn tbe mtniteb ~tates QCourt of jfeberal QClaitns
(Pro Se)
(Not for Publication)
) No. 18-750C
BRANDON JAYMS BOWERSOX, ) (Filed: September 7, 2018)
)
Plaintiff, )
) FILED
V. )
)
SEP - 7 2018
THE UNITED STATES OF AMERICA, ) U.S. COURT OF
) FEDERAL CLAIMS
Defendant. )
- - - -- - - - - - - - - -- - )
Brandon Jayms Bowersox, Springhill, TN, Plaintiff prose.
Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, Washington, D.C., for Defendant, with whom were Douglas K. Mickle,
Assistant Director, Robert E. Kirschman, Jr., Director, and Chad A. Readier, Acting Assistant
Attorney General.
OPINION AND ORDER
KAPLAN, Judge.
Brandon Bowersox, a former member of the United States Army, has filed a prose
complaint challenging aspects of his discharge from the Army. He primarily complains about the
discharge status and code the Army assigned, but he also appears to challenge the discharge
itself. The government has filed a motion to dismiss, asserting that the Court lacks subject matter
jurisdiction over Mr. Bowersox's claims. Mr. Bowersox has not filed a response to the
government's motion. For the reasons set fo1th below, the government' s motion is GRANTED
and Mr. Bowersox's complaint is DISMISSED without prejudice.
BACKGROUND 1
Mr. Bowersox began serving on active duty in the United States Anny on September 17,
2008. Compl. at 2, Docket No. 1. In July 2009, he was admitted to a hospital for "Cannabis,
1
The Comt relies upon the allegations in Mr. Bowersox's complaint for purposes of this opinion.
In deciding a motion to dismiss, the court accepts as true all undisputed facts in the pleadings and
draws all reasonable inferences in favor of the plaintiff. Trusted Integration, Inc. v. United
States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).
7016 301 • DODD 4308 4911
Alcohol and prescription abuse." Id. In August 2009, he was discharged from the hospital after
completing a rehabilitation program. Id.
Less than a month later, however, Mr. Bowersox was admitted to another hospital for
similar issues. See id. At that time, Mr. Bowersox had apparently been participating in a
substance abuse program run by the Atmy. See id. As a result of his second hospitalization, the
Army concluded that Mr. Bowersox had failed the program. Id. It thus discharged Mr. Bowersox
from the Army on November 16, 2009, "as an Alcohol Rehabilitation Failure." Id. His discharge
status was "General, Under Honorable Conditions with a separation code of JPD, RE Code 4."
Id.
After his discharge, Mr. Bowersox submitted an application to the Army Board for
Conection of Military Records (ABCMR), seeking conection of the Atmy's description of his
discharge. See id. As a result, the ABCMR conected his records to reflect a "Drug Abuse"
discharge rather than "Alcohol Rehabilitation Failure." Id. Afterward, Mr. Bowersox filed
additional applications with the ABCMR and the Army Discharge Review Board, apparently
challenging other aspects of his discharge. See id. On January 8, 2015, he received a final
decision from the ABCMR denying his requests. Id.
On May 25, 2018, Mr. Bowersox filed a complaint here. He characterizes his complaint
as an "appeal" of the ABCMR's January 8, 2015 decision. Id. at 1. But Mr. Bowersox also states
that he "challenges the decision to separate him from the US Army with a discharge of General,
Under Honorable Conditions." Id. As relief, Mr. Bowersox seeks "an upgrade to an Honorable
Discharge, RE Code Changed to 1, natrative discharge reason change[ d] to for the convenience
of the government," as well as "backpay and damages in the amount of$100,000." Id. at 3.
On July 24, 2018, the government filed a motion to dismiss for lack of subject matter
jurisdiction. Docket No. 5. It asserts that any claims relating to Mr. Bowersox's discharge are
time-baned by the statute of limitations, and that absent any valid money-mandating claim, his
requests for equitable relief (in the form of a change in his discharge code) are outside the
Court's jurisdiction. Mr. Bowersox's response was due August 21, 2018, but he has failed to file
one.
DISCUSSION
Mr. Bowersox's complaint primarily focuses upon the characterization and coding of his
discharge. But at bottom, his complaint is a challenge to the discharge itself and he seeks back
pay as a consequence. That challenge, however, is baned by the statute of limitations and beyond
the subject matter jurisdiction of this Couti. 2
2
It is well established that complaints that ai·e filed by pro se plaintiffs, like this one, are held to
"less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S.
519, 520 (1972). Nonetheless, even prose plaintiffs must persuade the court that jurisdictional
requirements have been met. Bernard v. United States, 59 Fed. Cl. 497, 499, affd, 98 F. App'x
860 (Fed. Cir. 2004) (per curiam).
2
The statute of limitations governing claims in this court provides that"[e ]very claim of
which the United States Court of Federal Claims has jurisdiction shall be baned unless the
petition thereon is filed within six years after such claim first accrues." 28 U.S.C. § 2501. "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 for his
money."' Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en bane) (quoting
Nager Elec. Co. v. United States, 368 F.2d 847, 851 (Ct. Cl. 1966)). In military discharge cases
such as this one, the Federal Circuit has "long held that the plaintiff's cause of action for back
pay accrues at the time of the plaintiffs discharge." Id. "That is, the claim accrues 'at one time,
once and for all,' on the date of the discharge." Id. at 1304 (quoting Mathis v. United States, 391
F.2d 938, 939 (Ct. Cl. 1968)).
Here, Mr. Bowersox was discharged on November 16, 2009. Comp!. at 2. He did not file
his complaint until May 25, 2018, more than eight-and-a-half years later. See id. at 1.
Accordingly, his claims are barred by the statute of limitations.
Mr. Bowersox seeks to avoid this conclusion by pointing to his filings with the ABCMR
and noting that his complaint was filed within six years of the ABCMR's decision. See id. But
the en bane Federal Circuit addressed this precise argument in Martinez. The court stated that it
"and the Court of Claims have frequently addressed and rejected the argument that the cause of
action for unlawful discharge does not accrue until the service member seeks relief from a
correction board and the correction board enters a final decision denying relief." Martinez, 333
F.3d at 1304. The reason, the court noted, is because "the correction boards have been regarded
as a pe1missive administrative remedy and that an application to a correction board is therefore
not a mandatory prerequisite to filing a Tucker Act suit challenging [a] discharge." Id. As a
result, "a plaintiff's invocation of a permissive administrative remedy does not prevent the
accrual of the plaintiff's cause of action, nor does it toll the statute oflimitations pending the
exhaustion of that administrative remedy." Id. Moreover, the cause of action does not "accrue for
a second time" when a corrections board refuses to grant relief. Id. at 1311. The claim for money
damages stems from the discharge, not any action by a cmTection board. Id.; see also id. at 1310
(holding that the "cause of action for recovery of the monetary losses ... suffered as a result
of ... discharge from active duty, and for the ancillary equitable relief ... accrue[] on the date
of ... discharge" (emphasis added)).
Accordingly, Mr. Bowersox's complaint, challenging various aspects of a discharge that
took place nearly nine years ago, is barred by the statute of limitations. It is therefore
DISMISSED for lack of subject matter jurisdiction.
CONCLUSION
For the reasons set forth above, the government's motion to dismiss is GRANTED and
Mr. Bowersox's complaint is DISMISSED without prejudice. The Clerk's Office is directed to
enter judgment accordingly. Each side shall bear its own costs.
3
IT IS SO ORDERED.
ELAINE D. KAPLAN
Judge
4