Brooks v. United States

70 Fed. Cl. 479, 2006 U.S. Claims LEXIS 84, 2006 WL 950210
CourtUnited States Court of Federal Claims
DecidedFebruary 28, 2006
DocketNo. 05-1129C
StatusPublished
Cited by5 cases

This text of 70 Fed. Cl. 479 (Brooks 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
Brooks v. United States, 70 Fed. Cl. 479, 2006 U.S. Claims LEXIS 84, 2006 WL 950210 (uscfc 2006).

Opinion

MEMORANDUM OPINION AND ORDER

CHRISTINE O.C. MILLER, Judge.

This case is before the court after briefing on defendant’s motion to dismiss. The issues for decision are (1) whether the United States Court of Federal Claims lacks subject matter jurisdiction pursuant to RCFC [481]*48112(b)(1) where plaintiffs claims for military retirement pay are brought outside the six-year period prescribed for actions under the Tucker Act, 28 U.S.C. § 1491(a)(1) (2000), or, alternatively, whether plaintiffs claims should be dismissed pursuant to RCFC 12(b)(6) for failure to state a claim upon which relief may be granted where plaintiff has failed to allege facts demonstrating that he is entitled to military retirement pay; (2) whether plaintiffs claim for $20,000,000.00 in compensatory damages for libel, slander and defamation of character should be dismissed in accordance with RCFC 12(b)(1) for lack of subject matter jurisdiction; and (3) whether plaintiffs claim for a $300,000.00 life insurance policy should be dismissed under RCFC 12(b)(6) for failure to state a claim upon which relief may be granted. Argument is deemed unnecessary. While the court notes plaintiffs record of long-standing commitment to serving in the Armed Forces of the United States, statute and binding precedent dictate that plaintiffs claims be dismissed.

FACTS

Jimmie D. Brooks (“plaintiff’) is a former commissioned officer in the United States Army. On February 28, 1995, in recognition of his honorable service, plaintiff was transferred to the Retired Reserves. Believing himself entitled to military retirement pay, plaintiff contacted the United States Army Personnel Command (the “USARPERCOM”).1 Plaintiff claims that a clerk informed him, via telephone, that he had verified plaintiffs records and plaintiff was eligible for military pay. The unidentified clerk instructed plaintiff to complete an application packet and submit it following his sixtieth birthday.

On June 28, 1997, plaintiff submitted his Application for Retired Pay Benefits. Nicholas J. Ryan, Production Control Chief at the USARPERCOM replied in a letter dated July 8, 1997. The letter informed plaintiff of his “point of contact” and noted that his certification would be passed along to Retire Pay, Defense Finance and Accounting Service, Cleveland, Ohio. Plaintiff maintains that this language, along with the letter’s assertion that he would “become eligible” for his first retirement payment one month after his sixtieth birthday, clearly indicate that plaintiff is “certified for and will receive retired pay.” Complaint filed Oct. 20, 2005, 115. However, as plaintiff acknowledges, subsequent calls to the USARPERCOM for status reports revealed that his application was still “being processed and would be completed soon.” Id.

Bob Jennings, Retirement Services Chief, wrote plaintiff on January 14, 1998, that he was ineligible to receive retired pay. The letter explained:

To be eligible for retired pay at age 60, under Title 10, United States Code, Sections 12731-12737, a Reserve soldier or former Reserve soldier must have completed a minimum of 20 qualifying years of service, the last 8 years of which must have been in a Reserve component....
An audit of your military records show[s] that you completed 8 years, 7 months, and 6 days of qualifying service for retirement ____ Accordingly, you are ineligible to receive retired pay.

Mr. Jennings further explained that a qualifying year of service was one in which a reserve soldier has earned at least fifty retirement points. While it is undisputed that plaintiff has earned 3,022 retirement points, the majority of these points were earned between 1960 and 1967; plaintiff did not earn the points at a minimum of fifty per year.

Plaintiff appealed this decision in an April 30, 1998 letter to President Clinton and a July 7, 1998 letter to the Office of the Assistant Secretary of Defense for Reserve Affairs. Henry J. Schweiter, Deputy Assistant Secretary of Manpower and Personnel, Office of the Assistant Secretary of Defense, replied to plaintiffs April letter in a letter dated July 6,1998. Mr. Schweiter bolstered the reasoning set forth in Mr. Jennings’s letter with further explanation of the retirement system.

To be eligible for retired pay for non-regular service, a member must complete a [482]*482minimum of 20 years of qualifying service and serve the last eight years of qualifying service ... as a member of a Reserve component. A satisfactory year of qualifying service is any year in which the member is awarded at least 50 retirement points____
[Y]ou have 22 years of total service for longevity purposes of which only 16 years were served as a member of the Army Reserve. In addition, your point totals indicate that you did not train regularly for 12 of those 16 years that you served in the Army Reserve. Consequently, you have not achieved 20 years of qualifying service and are therefore not eligible for retired pay under the law____
[Y]ou note that you have earned over 3,000 retirement points during 22 years of the military service... [T]he total number of retirement points accumulated, during a career, [is] not considered in determining eligibility for Reserve retired pay____
You also contend that written communications from [USARPERCOM] acknowledging receipt of your application for retired pay and extending congratulations on the occasion of your retirement, constitutes entitlement to retired pay at age 60. In fact, the law (10 U.S.C. 12731) very clearly states that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay under chapter 1223. This notice, frequently referred to as the “20-year letter,” must be sent in writing within one year after the individual completes the satisfactory service. It is my understanding that you have not received such a notice. Had you received such written notice of eligibility for retired pay, section 12738 of title 10, United States Code, stipulates that it could not be denied or revoked on the basis of any error, miscalculation, misinformation or administrative determination, unless it resulted directly from fraud or misrepresentation.

Plaintiff’s July 7 letter was forwarded to the Office of the Assistant Secretary of Manpower and Reserve Affairs, and on July 14, 1998, Todd A. Weiler, Acting Principal Deputy Assistant Secretary, replied. Albeit in less detail, Mr. Weiler reiterated the sentiments of Mr. Schweiter. He also disagreed that the July 8,1997 USARPERCOM memorandum that plaintiff received, acknowledging receipt of his Application for Retired Pay, implied that the application had been approved and certified. As Mr. Weiler plainly stated to plaintiff, “There is no evidence you were ever issued official notification of eligibility for retired pay in accordance with Title 10, U.S.Code, Chapter 1223 that would entitle you to retired pay at age 60.”

On August 17, 1998, plaintiff submitted an Application for Correction of Military Record to the Army Board for Correction of Military Records (the “ABCMR”).

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Cite This Page — Counsel Stack

Bluebook (online)
70 Fed. Cl. 479, 2006 U.S. Claims LEXIS 84, 2006 WL 950210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brooks-v-united-states-uscfc-2006.