Kosmo v. United States

72 Fed. Cl. 46, 2006 U.S. Claims LEXIS 216, 2006 WL 2079102
CourtUnited States Court of Federal Claims
DecidedJuly 25, 2006
DocketNo. 04-484C
StatusPublished
Cited by5 cases

This text of 72 Fed. Cl. 46 (Kosmo 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
Kosmo v. United States, 72 Fed. Cl. 46, 2006 U.S. Claims LEXIS 216, 2006 WL 2079102 (uscfc 2006).

Opinion

MEMORANDUM OPINION AND ORDER OF DISMISSAL

WILLIAMS, Judge.

Plaintiff, Thomas Kosmo, a retired Colonel in the United States Air Force Reserve (USAFR), seeks relief stemming from his reassignments to Non-Participating and Standby Reserves due to his alleged fraudulent claims for travel reimbursement. Although Plaintiff was exonerated of these charges and an audit determined that the government owed him money for travel reimbursement, the Air Force Board for the Correction of Military Records (AFBCMR) denied Plaintiffs petition for correction of his military record and related relief. Plaintiff claims the AFBCMR acted in an arbitrary and capricious manner by failing to follow the recommendations of a Discharge Board and the Directorate of Personnel Program Management to grant him relief. Plaintiff seeks correction of his record and damages, including back pay, allowances and credits toward retirement, promotions and awards.

This matter comes before the Court on Defendant’s motion to dismiss, or in the al[48]*48tentative, for judgment on the administrative record and Plaintiffs motion for judgment on the administrative record. Because this action is time-barred, Defendant’s motion to dismiss is granted.1

Background2

As of August 1989, Plaintiff was a Colonel in the USAFR3 In 1983, the United States Air Force Intelligence Service invited Plaintiff to make an inter-Service branch transfer from the United States Army Reserve (USAR) and become the Air Force Reserve Attache in Bonn, Germany, for service in both Europe and at Headquarters United States Air Force, Directorate of Plans and Operations, Air Force Doctrine and Concepts Division in the Pentagon.4 Compl. ¶ 14. Plaintiff “linked the Air Staff to counterparts at the Defense Intelligence Agency, Central Intelligence Agency, National Security Agency, and to European military attaches in Washington and in Europe.” Compl. ¶ 16. Plaintiffs duties involved extensive travel. Compl. ¶ 17. By the summer of 1984, Plaintiff was stationed at the Pentagon. Compl. ¶ 14.

On or about April 19, 1989, an anonymous complaint was submitted to the Department of Defense Hotline alleging that Plaintiff was a security risk, falsified Air Force forms, and used his official position for personal benefit. AR at 542-44. The sources of this complaint submitted a memorandum regarding Plaintiff, stating in part:

1. The authors of this memorandum regard LTC Kosmo as a dangerous security hazard. It is our goal to initiate a discreet but very serious investigation of his background, behavior, and contacts in the USSR. There is a slight but real possibility that Kosmo is engaged in espionage against the United States. Even if that suspicion proves groundless, his bizarre personal behavior already warrants loss of security clearance and expulsion from the U.S. Air Force Reserve in our considered professional judgement.
5. Kosmo has been described as a “pathological liar” by many of his colleagues. He often poses as a regular officer, although he is actually a reserve. He has been caught falsifying several Air Force forms in order to increase his compensation for reserve duty, and he is strongly suspected of falsifying others. Yet he also displays inexplicable wealth. He has made many trips to Europe and one to the USSR for which no clear source of payment exists. His corporation (of which he claims to be the president) seems too small and ill funded to explain his style of life.

AR at 28-29 ¶ ¶ 1, 5.5

In July 1989, the Air Force Office of Special Investigations (AFOSI) initiated an investigation of Plaintiffs travel voucher claims. AR at 97. On January 22, 1990, Plaintiff learned, via letter, that he was under investigation by AFOSI, and that his [49]*49access to classified information was suspended. Id.

On May 23,1990, Plaintiff was notified that he was being involuntarily reassigned to Inactive Reserve Status due to his lack of a security clearance, pending final disposition of the AFOSI investigation. Plaintiffs reassignment meant that he would “be curtailed in performing his normal USAFR duties as an Individual Mobilization Augmentee (IMA)6 assigned [to] the HQs USAF, Directorate of Plans, Force Assessment Division.” AR at 101. On July 6, 1990, the Director of Individual Reserve Programs at the Air Reserve Personnel Center Headquarters issued an order reassigning Plaintiff to the Non-Obligated, Non-Participating Ready Personnel Section (NNRPS) at the Headquarters Air Reserve Personnel Center in Denver, Colorado, effective August 1, 1990, for failure to meet Air Force standards. Id. at 102. The NNRPS consisted of:

officers and enlisted personnel without MSOs [military service obligations] who still qualify for worldwide duty. Officers are assigned to NNRPS when ... [t]hey are reassigned for failure to meet requirements of participating reserve assignments.

AFR 35-41, Vol. I, Chp. 2-7, at 8-9 (1990). The NNRPS is a Ready Reserve Section.7 10 U.S.C. § 10141; AFR 35-41, Vol. I, Chp. 2-7, at 7-8.

The AFOSI completed its investigation and issued a report on July 17,1990, concluding that Plaintiff owed the Government $11,022.50 as a result of submitting “false claims” in his travel vouchers. AR at 337-38.

Prior to his August 1, 1990 reassignment, Plaintiff had been “assigned to a point-gaining activity and could have earned points,” which determine eligibility for retention in Ready Reserves programs, active reserve status, and retirement.8 AR at 298. While assigned to NNRPS, Plaintiff was prohibited from “performing considerable active duty for training, gaining pay, allowances, and retirement credit.” Compl. ¶ 24; Def.’s Statement of Facts ¶ 8; AR at 102. Specifically, “members [of the USAFR who are assigned to the NNRPS] earn [base] membership points; however, they are not able to take part in point-gaining activities.” AR at 298.

On July 29,1991, the Air Force Accounting and Finance Office demanded that Plaintiff reimburse the Government for travel voucher overpayments, stating in pertinent part:

[Y]our travel vouchers have been reviewed by several government agencies, including the OSI, IG, JAG and the U.S. Attorney’s Office. Their investigations have concluded that you were overpaid $11,022.50 by the United States government for your travel done as a Reservist with the United States Air Force. These overpayments occurred because of your improper comple[50]*50tion of travel vouchers. This letter requests you to make immediate compensation to the government in the amount of $11,022.50 for these overpayments.

AR at 137. On August 6, 1991, Plaintiff responded to this letter requesting sufficient time to prepare an adequate response. AR at 138.

On or about September 27,1991, before he had filed an additional response, Plaintiff was reassigned to the Inactive Status List Reserve Section (ISLRS). Compl. ¶26. The reason specified for his reassignment was “unsatisfactory participation with over 20 years satisfactory service.” AR at 444. The ISLRS includes Standby Reservists9

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Bluebook (online)
72 Fed. Cl. 46, 2006 U.S. Claims LEXIS 216, 2006 WL 2079102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kosmo-v-united-states-uscfc-2006.