Holley v. United States

33 Fed. Cl. 454, 1995 U.S. Claims LEXIS 102, 1995 WL 302974
CourtUnited States Court of Federal Claims
DecidedMay 17, 1995
DocketNo. 92-254C
StatusPublished
Cited by6 cases

This text of 33 Fed. Cl. 454 (Holley 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
Holley v. United States, 33 Fed. Cl. 454, 1995 U.S. Claims LEXIS 102, 1995 WL 302974 (uscfc 1995).

Opinion

OPINION

LYDON, Senior Judge:

This opinion addresses John D. Holley’s retroactive entitlement to an overseas housing allowance (OHA) under 37 U.S.C. § 405(a) (1988).1 The court in its previous opinion granted Holley’s cross-motion for summary judgment, holding that the United States Army’s discharge of Holley, without a hearing, was invalid. Holley v. United States, 32 Fed.Cl. 265 (1994). In accordance with that determination the court held:

Plaintiff is entitled to be returned to active duty in the rank he was serving at the date of his discharge. Plaintiffs military records shall be corrected to show continuous constructive active duty service from the date of his improper discharge to the date of his reinstatement____ Plaintiff is entitled to recover back pay, allowances, and benefits, less appropriate offsets, for the period of his constructive active duty service.

Id. at 276.

Holley was commissioned as a second lieutenant in the Army on June 20, 1986, at which time he entered into active duty. On March 17, 1987, Holley was assigned to the 2nd Battalion 27th Field Artillery in Freidburg, Germany, where he served until his discharge from service at the rank of first lieutenant, twenty-six months later on June 2, 1989.

While stationed in Germany, Holly received OHA in addition to basic pay (BP) under 37 U.S.C. § 204 (1988), and basic allowances for subsistence (BAS) and quarters (BAQ) under 37 U.S.C. §§ 402 and 403 (1988). The Army concedes that Holley is entitled to retroactive BP, BAS, and BAQ as if he had never been discharged. The parties disagree as to whether or not Holley is entitled to an OHA in addition to the basic housing allowance provided for under 37 U.S.C. § 403, during the period of his constructive service. After considering the parties’ written and oral arguments, the court concludes that Holley is entitled to OHA.

I

Defendant advances two arguments in support of its contention that Holley is not entitled to OHA: 1) that the court lacks jurisdiction over a claim for OHA, and 2) that the [456]*456quantum determination of OHA is too speculative. Both arguments are without merit.

A

First, defendant argues that consideration of OHA is beyond the court’s jurisdiction because OHA has no bearing upon the Army’s decision to release Holley from active duty. The court, defendant maintains, does not have jurisdiction pursuant to 28 U.S.C. § 1491(a)(2) to rewrite a servicemember’s record to correct speculative injustices not “incident of and collateral to” the money judgment. Defendant contends that such review by the court would conflict with the Federal Circuit’s holding in Voge v. United States, 844 F.2d 776, 782 (Fed.Cir.1988), cert. denied, 488 U.S. 941, 109 S.Ct. 365, 102 L.Ed.2d 355 (1988), and the Supreme Court’s holding in United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976).

Defendant is correct in stating that, “no court is capable of reviewing the substantive merits of a decision to deny [OHA], so long as the decision comports with the procedural standards mandated by statute or regulation.” See Voge v. United States, 844 F.2d 776, 778-80 (Fed.Cir.1988) (holding that a decision to terminate additional special pay, to which a servicemember would otherwise be entitled, is subject only to review for compliance with established procedures and is not justiciable on the merits); Adair v. United States, 227 Ct.Cl. 345, 352, 648 F.2d 1318, 1323 (1981) (stating that a decision to award variable incentive pay is discretionary and beyond court review).

Defendant, however, mistakenly equates Holley’s denial of OHA' by virtue of his wrongful discharge with a discretionary decision by the Secretary. Therefore, defendant’s reliance on Voge, and Adair, is misplaced. The holdings in Voge and Adair are inapposite to the facts of this case because the court in the instant case did not review the substantive merits of a decision denying OHA. No such decision by the Secretary was ever made in this case.

The Federal Circuit in Groves v. United States, 47 F.3d 1140, 1144 (Fed.Cir.1995), recognized the difference between a ease where a servicemember challenges a military decision terminating an award of special pay or declining to award special pay in the first place, and where a servicemember, like in the instant case, seeks to be returned to the position that he would have enjoyed but for the wrongful separation. The plaintiff in Groves was receiving Variable Special Pay (VSP) at the time of the court-martial proceedings against him. VSP, like OHA, is awarded at the discretion of the Secretary of the Army. See 37 U.S.C. § 302(b) (Supp. V 1993). The Federal Circuit noted that Groves was denied his special pay by virtue of the court-martial conviction and sentence, later overturned, and not by virtue of any discretionary decision by the Secretary. Groves, 47 F.3d at 1144. Likewise, in the instant case, Holley was denied entitlement to OHA due to the wrongful discharge from service, and not by any discretionary decision by the Secretary.2

When a court determines that a military servicemember has been wrongfully discharged, relief [457]*457Dilley v. Alexander, 627 F.2d 407, 418 (D.C.Cir.1980); see also Schuenemeyer v. United States 776 F.2d 329, 332 (Fed.Cir.1985) (stating that a wrongfully discharged servicemember, “had the right to be treated as if he had been on active duty ... all during the period of his separation”). It is not disputed that Holley was receiving OHA at the time of his separation.

[456]*456has been premised upon one central principle: making the injured men Vhole’. Courts attempt to return successful plaintiffs to the position that they would have occupied ‘but for’ their illegal release from duty. Inorder to grant such relief, courts have not been reticent to apply the legal fiction of ‘constructive service’; as appellants have never been lawfully terminated from active duty, they are deemed to have served during the time of their illegal release.

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Bluebook (online)
33 Fed. Cl. 454, 1995 U.S. Claims LEXIS 102, 1995 WL 302974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holley-v-united-states-uscfc-1995.