Davis v. United States

108 Fed. Cl. 331, 2012 U.S. Claims LEXIS 1447, 2012 WL 5921051
United States Court of Federal Claims·Decided November 21, 2012·No. No. 12-292C·Published·Cited by 7 cases

Opinion

[334] OPINION

HORN, J.

Plaintiff, Colie L. Davis, filed a complaint, followed by an amended complaint, in the United States Court of Federal Claims seeking “regular pay and allowances” in the grade of E5 for the period April 4, 1986 to, and including, June 1,1986, “retirement pay” from June 2, 1986 to the present, “and for the remainder of his natural life,” “back retired pay,” from June 2, 1986 to the present, “placement on the rolls of retired military personnel for retirement pay,” and correction of his military records. Plaintiff also requests a declaration that his discharge from the United States Army on April 4,1986 was unlawful and, according to plaintiff, “in contravention of 11 USC 1176(a) [sic],” and “10 U.S.C. Section 1176(a),” as well as of his right to extend his final enlistment term in order to remain in the military until he was eligible for retirement benefits. In addition, plaintiff seeks a court order reversing the August 3, 2010 decision by the Army Board for Correction of Military Records (ABCMR) denying plaintiffs application, and directing the ABCMR to expunge all references in his military records to his unlawful discharge, and to amend plaintiffs records to reflect constructive service from the date of his discharge on April 4, 1986 to, and including, June 1, 1986, the date plaintiff alleges he would have become eligible to receive retirement benefits had he been able to remain on active duty.1 Plaintiff also requests that he be placed on the rolls of the retired military, effective June 1, 1986. Plaintiffs complaint and amended complaint further allege that the admission of unsubstantiated testimony at his discharge hearing denied him due process of law.

In the amended complaint, plaintiff characterizes his claims as seeking “retired pay, placement on the rolls of retired military personnel for retirement pay, and for correction of military records.” (emphasis removed). Although plaintiffs amended complaint eliminates the specific reference to back pay contained in his original complaint, and plaintiffs response to defendant’s motion to dismiss describes the amended complaint as seeking “retirement pay,” plaintiffs amended complaint appears to continue to assert a claim for back pay because the amended complaint refers to plaintiffs entitlement to “regular pay and allowances” for constructive service and continues to refer to the Military Pay Act, 37 U.S.C. § 204 (2006), for “money he would have received but for his unlawful discharge.” In the amended complaint, plaintiff also alleges that “his claim is a continuing claim due and payable periodically.” (emphasis removed). In addition, the amended complaint adds a request for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (Supp. V 2011).

The amended complaint includes the following summary paragraph: “Plaintiff requests this court pursuant to 37 USC Section 204 order Plaintiff be awarded his regular pay and allowances for the grade of E5 for the period 4 April 1986 though [sic] and including 1 June 1986; that he be awarded retirement pay from 2 June 1986 to the present, or in the alternative that he be awarded back retired pay as a continuing claim pursuant to 28 U.S.C. Sec. 2501, and for the remainder of his natural life, and for his attorney [sic] fees pursuant to the Equal Access to Justice Act, 28 U.S.C.S. 2412(b).” (emphasis removed).

FINDINGS OF FACT

Plaintiff was inducted into the Army on December 10, 1965. He was released from active duty on November 8,1967, joining the Army Reserve, but returned to active duty on April 26, 1968. Plaintiff remained on active duty from April 26, 1968 until his discharge on April 4,1986. In a letter dated April 27, 1982, the Army informed plaintiff that he would be barred from reenlisting at the end of his current term of service, which was set to expire on September 28, 1985. The record before the court reflects that the bar was issued as part of a Qualitative Management Program. The record also includes references to four of plaintiffs Enlisted Evaluation Reports and nine Uniform Code of [335] Military Justice Article 15s issued to plaintiff as the basis for the bar to reenlistment. Although plaintiff signed a form acknowledging the bar to reenlistment, and indicated that he intended to appeal the bar, he never initiated an appeal. Plaintiff asserted at his discharge hearing that he contacted an attorney in the Judge Advocate General’s Corps to seek legal advice regarding his bar to reenlistment, but that by the time he was able to establish regular communications with the attorney, he was informed that his file did not contain the bar. Plaintiff testified at his discharge hearing that, “[i]t was never explained to me that I had to make a written request to DA [the United States Department of the Army]” in order to lift the bar. Instead, according to plaintiff, he “took for granted” that his reenlistment application would be interpreted as a request to lift the bar. During the discharge hearing, plaintiff also contended that he “did not try to file paperwork concerning the bar because it had been explained to me in Germany that no QMP [Qualitative Management Program] was in my records,” and that he did not formally appeal the bar because he believed “[t]here was nothing in my records to appeal.”

Plaintiff extended his enlistment on June 18, 1985 to May 31, 1986 in order to become eligible for retirement. Although plaintiffs bar to reenlistment currently appears in his military personnel file, the record suggests that plaintiffs file may not have contained the bar when plaintiff applied to extend his enlistment.2 The record reflects that, while still stationed in Germany, plaintiff disclosed that he had received the bar to the officer who initially counseled him on reenlistment. It is somewhat unclear, however, whether plaintiff disclosed the bar to Sergeant First Class William C. Bynum, Jr., the officer who extended plaintiffs enlistment when plaintiff returned to the United States, before Sergeant Bynum approved plaintiffs application to extend his enlistment. Moreover, plaintiff stated during his discharge hearing that he “said nothing about the bar when I arrived on Fort Jackson because of what I had been told by the career counselor in Germany.”

Before plaintiff completed the extended term, reenlistment personnel discovered that the Army had issued a bar to plaintiffs reenlistment. According to the ABCMR decision, at plaintiffs request, the Army appointed an Administrative Elimination Board on January 15, 1986, “to determine whether ... Davis ... should be discharged for fraudulent entry” for extending his term of service after he had received a bar to reenlistment. During plaintiffs discharge hearing, Sergeant Bynum testified:

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Davis v. United States, 108 Fed. Cl. 331, 2012 U.S. Claims LEXIS 1447, 2012 WL 5921051 (uscfc 2012).

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