Alonge v. United States

30 Fed. Cl. 519, 1994 U.S. Claims LEXIS 46, 1994 WL 67187
CourtUnited States Court of Federal Claims
DecidedMarch 8, 1994
DocketNo. 93-450C
StatusPublished
Cited by2 cases

This text of 30 Fed. Cl. 519 (Alonge v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alonge v. United States, 30 Fed. Cl. 519, 1994 U.S. Claims LEXIS 46, 1994 WL 67187 (uscfc 1994).

Opinion

ORDER

NETTESHEIM, Judge.

This case, before the court on defendant’s motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to RCFC 12(b)(4), involves a claim for back pay and constructive service credit allegedly due plaintiff for time spent in graduate studies. Argument is deemed unnecessary.

FACTS

John L. Alongé (“plaintiff’) is an active duty officer in the United States Air Force (the “Air Force”). Plaintiff began study for a master’s degree in Anatomy at the University of Maryland in the fall semester of 1978. He was a full-time student from that time through the summer of 1979. During fall 1979 plaintiff matriculated in the University of Maryland Dental School. At that time plaintiff had completed the “didactic requirements” for his M.S. degree in Anatomy. From the fall semester of 1980 through the fall semester of 1982, plaintiff completed the remaining requirements for the program, receiving his M.S. degree on January 31, 1983. Plaintiff alleges that he completed the last six credits for his M.S. degree during vaca[520]*520■tion periods and did not earn the degree concurrent with his Doctor of Dental Surgery degree.

During the course of his studies, plaintiff decided to enter the Air Force Dental Corps upon graduation from dental school. Plaintiff contends that he entered the Air Force because of representations made by Air Force recruiters that he would be granted constructive service credit for the time that he spent completing his professional degree. Plaintiff received a letter of appointment from the Air Force on November 30, 1982, indicating that his appointment was accepted as of December 10, 1982. The letter noted that plaintiff began accruing service credit for purposes of promotion on December 10, 1978,1 and began accruing credit for purposes of pay on December 10, 1981.2

In October 1983 plaintiff received an Air Force form AF 1613 dated August 9, 1983, indicating that plaintiff began accruing service credit on May 21, 1979. In June 1984 plaintiff received a corrected AF 1613 showing a TYSD of May 21, 1978. This change was made to include one year of credit for a Masters degree completed prior to completion of dental school.

On June 5,1986, plaintiff applied to the Air Force Board for the Correction of Military Records (the “AFBCMR”) to adjust his PSD to reflect his four years of dental school and to grant an additional year to his TYSD for his Masters degree in Anatomy. Plaintiff asserted that, although he completed the requirements of his M.S. degree in one year, he should receive two years of credit because the M.S. degree was a two-year program. The AFBCMR denied plaintiff relief by letter dated July 23, 1987. On July 21, 1993, plaintiff filed suit in the Court of Federal Claims seeking $48,000.00 in monetary benefits that plaintiff asserts he would have received had these years of constructive service credits been granted upon his commissioning.

DISCUSSION

In evaluating a motion to dismiss for failure to state a claim under RCFC 12(b)(4), the facts alleged in the complaint are construed in the light most favorable to the non-moving party. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). If no set of facts exists that would entitle plaintiff to relief, the claim should be dismissed. Mostowy v. United States, 966 F.2d 668, 672 (Fed.Cir.1992).

In order to state a claim under the Tucker Act, a plaintiff must “find a substantive right in the Constitution, an act of Congress, or an executive department regulation on which to base his claim that ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” Dehne v. United States, 970 F.2d 890, 893 (Fed.Cir.1992) (quoting United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 2967-68, 77 L.Ed.2d 580 (1983)).

Defendant contends that plaintiff has failed to point to a money mandating statute in his claim and therefore does not satisfy the jurisdictional requirement of the Tucker Act, 28 U.S.C.A. § 1491 (West Supp.1993).

Plaintiff responds that 10 U.S.C. § 533 (1988)3 — providing for constructive service credit for time spent earning a professional degree — when viewed in conjunction with 37 U.S.C. § 204 (1988) — providing for payment of active members of the armed forces at their basic pay rate — mandate compensation to plaintiff with respect to his first claim. Plaintiff asserts that his second claim, for correction of his military records, is based on this court’s jurisdiction to review denial of constructive service credit by military review boards.

[521]*521Defendant replies that 10 U.S.C. § 533 is inapplicable to plaintiff and is not a money-mandating statute. The statute merely allows constructive service credit to be used in determining an officer’s initial grade, rank, and service in grade.4 While 37 U.S.C. § 204 does mandate payment, plaintiff has failed to establish that he is entitled to any additional payment under that statute. Since plaintiff has faded to establish jurisdiction under the Tucker Act, this court cannot review plaintiff’s claim for correction of his military records.

Plaintiff’s claim that 10 U.S.C. § 533 creates a right to payment when viewed in conjunction with 37 U.S.C. § 204, is incorrect. 10 U.S.C. § 533(b)(1) applies only to officers commissioned in the regular armed forces and not the reserves. Plaintiff was commissioned as a reserve officer. Even if plaintiff had cited to the statute covering the award of constructive service credit to individuals commissioned as reserve officers, 10 U.S.C. § 8353(b), the result would be the same. The provisions allowing the award of such credit in section 8353(b) are substantively the same as section 533(b). 10 U.S.C. § 8353(b)(1) mandates only that constructive service be granted “[ujnder regulations prescribed by the Secretary of Defense.” Under the regulations promulgated by the Air Force pursuant to this statute, the award of constructive service credit is discretionary.5 As the United States Court of Claims noted in Adair v. United States, 227 Ct.Cl.

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Related

Sloan v. United States
36 Fed. Cl. 163 (Federal Claims, 1996)
Sanford v. United States
32 Fed. Cl. 363 (Federal Claims, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
30 Fed. Cl. 519, 1994 U.S. Claims LEXIS 46, 1994 WL 67187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alonge-v-united-states-uscfc-1994.