Greene v. United States

65 Fed. Cl. 375, 2005 U.S. Claims LEXIS 121, 2005 WL 1023514
CourtUnited States Court of Federal Claims
DecidedApril 29, 2005
DocketNo. 03-1677 C
StatusPublished
Cited by43 cases

This text of 65 Fed. Cl. 375 (Greene 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
Greene v. United States, 65 Fed. Cl. 375, 2005 U.S. Claims LEXIS 121, 2005 WL 1023514 (uscfc 2005).

Opinion

OPINION AND ORDER

WOLSKI, Judge.

The plaintiff, William P. Greene, filed this action, pro se, against the United States regarding his involuntary separation from the United States Army Reserve. This case has been transferred to this Court from the United States District Court for the District of Connecticut. The United States has moved to dismiss Mr. Greene’s Complaint pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”) for failure to state a claim upon which relief may be granted or, in the alternative, for judgment on the administrative record pursuant to RCFC 56.1.

I. BACKGROUND1

Mister Greene, a former officer in the United States Army Reserve, was involuntarily separated for substandard performance of duty and given an honorable discharge on September 24, 1996. Compl. U 39. Mister Greene initially enlisted in the Army Reserve on September 22, 1981. Admin. R. 30. He was appointed a Reserve Commissioned Officer of the Army in the rank of Second Lieutenant on February 25, 1988. Admin. R. 62-63. At Mr. Greene’s request he was voluntarily assigned to “C” Company, 3d Battalion, 18th Infantry, located in Lawrence, Massachusetts, on May 26, 1992. Compl. H 4. In the 18th Infantry Mr. Greene served as a rifle platoon leader, responsible for the health, welfare, and training of the soldiers in his platoon. When Mr. Greene transferred into the 18th Infantry he lived in Willington, Connecticut, approximately 115 miles from where the unit trained in Law[377]*377rence, Massachusetts. Compl. 113. He then moved to Smithfield, Massachusetts, sixty-five miles from Lawrence, Massachusetts, so that he could care for his mother. Compl. 1f 3. In March 1993, Mr. Greene again moved his residence, this time to Cheshire, Connecticut, which is approximately 170 miles from the Lawrence, Massachusetts. Compl. U 5.

After his relocation to Cheshire, Mr. Greene attended all required active duty training with “C” Company for the months of March through June 1993. Admin. R. 186. On April 4,1993, Mr. Greene received orders to attend Annual Training with his unit from July 24, 1993 to August 6, 1993. Admin. R. 299. During the unit’s May and June drills, Mr. Greene made a verbal request to Capt. Michael Schwed, his commanding officer, that he be transferred to a unit closer to his residence in Cheshire. Compl. If 6. Captain Schwed denied Mr. Greene’s request for a transfer, informing Mr. Greene that he would not entertain transfer requests until after Annual Training. Compl. 116. Mister Greene called Capt. Schwed on July 24, 1993, to tell him that he intended to interview with a new unit on July 25, 1993. Compl. 117. Mister Greene further informed Capt. Schwed that by not granting his transfer request, he violated Army Regulation 135-9 para. 5-5, which, according to Mr. Greene, made any orders given to him by Capt. Schwed unlawful. Compl. 117. Accordingly, on July 24, 1993, Mr. Greene failed to report for Annual Training without obtaining proper leave. Admin. R. 195.

As a result of Mr. Greene’s failure to report to Annual Training, Capt. Schwed placed an administrative “flag” on Mr. Greene’s records so that he was unable to obtain favorable actions such as awards or promotions. Admin. R. 300. Moreover, Captain Schwed, on October 14, 1993, requested that Mr. Greene be involuntarily separated from the Army Reserve. Compl. If 8; Admin. R. 107. On June 7, 1995, Mr. Greene appeared before an Administrative Separation Board, represented by counsel, to adjudicate Capt. Schwed’s request that Mr. Greene be separated involuntarily from the Army Reserve. Compl. 1132. Following the Board’s adjudication, it recommended the involuntary separation of Mr. Greene. Admin. R. 170. The Board reconvened on October 24, 1995, to clarify its findings and recommend the type of discharge Mr. Greene was to receive. Admin. R. 162-63. The Board found that Mr. Greene: 1) “failed to take the necessary steps to ensure he wore proper rank”; 2) exercised poor judgment by failing to execute a planned training directive during a field training exercise; 3) “failed to assert leadership in his platoon by disregarding the commander’s policy and intent [that he] remain alert and awake until all soldiers and equipment were accounted for after a field training exercise”; 4) “failed to follow instructions and was negligent in his failure to secure” equipment; 5) received a written reprimand on August 26, 1993, for “wrongful failure to report to active duty”; 6) received a “Relief for Cause” Officer Evaluation Report for the period May to August 1993 relieving him from his position due to substandard performance; and 7) gave testimony explaining his pay and promotion problems that was “not credible.” Admin. R. 165. The Board determined that Mr. Greene should be honorably discharged. Id. The Army Reserve Command approved the Board’s recommendation and, effective September 24, 1996, Mr. Greene was honorably discharged. Compl. If 39.

On June 20, 1996, Mr. Greene filed a complaint in the United States District Court for the District of Connecticut. Compl. If 37. The district court dismissed the complaint for failure to exhaust administrative remedies, because Mr. Greene had not filed an application for correction of military record with the Army Board for Correction of Military Records (“ABCMR”). Compl. If 40. Therefore, on March 31, 1997, Mr. Greene filed an application for correction of his military record, DD Form 149, with the ABCMR. Admin. R. 305. In section nine of DD Form 149, which asks the applicant to state why he believes his record to be in error, Mr. Greene referred the ABCMR to an attached affidavit and 1996 district court complaint. Admin. R. 305. Mister Greene’s explanation as to why his record should be corrected centered around the Annual Training he was scheduled to attend from July 24, 1993, to August 6, 1993, and his inability to [378]*378receive a transfer from the 18th Infantry to a unit closer to his residence in Cheshire, Connecticut. See Admin. R. 306-08; Admin. R. Add.2 238 — 11. Mister Greene asserted that Army Regulation 135-91 paragraph 5-5, titled “Maximum involuntary travel distance,” set the maximum involuntary travel distance for Army Reserve soldiers at a fifty-mile radius relative to the soldier’s drill site. Compl. If 7; Admin. R. 308. According to Mr. Greene, because his commuting distance was 170 miles from Lawrence, Massachusetts, he should have been granted a transfer. Compl. If 7; Admin. R. 308. From this Mr. Greene reasoned that had the Army Reserve not violated its regulation by refusing his transfer request, he would not have been obligated to report to Annual Training with the 18th Infantry and, therefore, he would not have received the letter of reprimand and eventual dismissal from the Army Reserve. Admin. R. 308. Thus, Mr. Greene argued, the ABCMR should correct his military record and reinstate him in the Army Reserve. Id.

The ABCMR issued its decision and Memorandum of Consideration of Mr. Greene’s claims on November 24, 1998. Admin. R. 297-304. In summarizing Mr. Greene’s requests, the ABCMR stated that “[i]n effect, [Mr. Greene seeks] reinstatement in the Reserve, promotion to captain effective 23 February 1995 and all back pays and allowances due him as a result thereof.” Admin. R. 298. The ABCMR concluded that Mr. Greene “failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.” Admin. R. 303. In support of its conclusion, the ABCMR found, inter alia, that: 1) Mr.

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Bluebook (online)
65 Fed. Cl. 375, 2005 U.S. Claims LEXIS 121, 2005 WL 1023514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-v-united-states-uscfc-2005.