Tippett v. United States

28 F. App'x 942, 51 Fed. Cl. 942
CourtCourt of Appeals for the Federal Circuit
DecidedDecember 5, 2001
DocketNo. 00-5133
StatusPublished
Cited by5 cases

This text of 28 F. App'x 942 (Tippett v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tippett v. United States, 28 F. App'x 942, 51 Fed. Cl. 942 (Fed. Cir. 2001).

Opinions

DECISION

SCHALL, Circuit Judge.

This is the second time this case has been before us. In Tippett v. United States, 185 F.3d 1250 (Fed.Cir.1999) (Tippett I), David E. Tippett appealed the decision of the United States Court of Federal Claims that had dismissed his suit seeking back pay and reinstatement in the United States Army. See Tippett v. United States, No. 96-308 C (Fed.Cl. Aug. 21, 1997). In Tippett I, we held that, in the Court of Federal Claims, Tippett had presented non-frivolous allegations of involuntariness with respect to his discharge from the Army. We therefore vacated the decision of the court dismissing Tippett’s suit [943]*943and remanded the case for further proceedings. In so doing, we stated that Tippett was “entitled to an evidentiary hearing on the voluntariness issue.” 185 F.3d at 1258.

On remand, the Court of Federal Claims found that Tippett was in fact misinformed by his Army counsel as to the consequences of his discharge pursuant to the provisions of Army Regulation (“AR”) 635-120, chapter 8. Tippett v. United States, No. 96-308 C (Fed.Cl. July 24, 2000). The court determined, however, that the misinformation was not material so as to render Tippett’s discharge involuntary. Id. It therefore entered judgment in favor of the United States and ordered Tippett’s complaint dismissed. Id. Tippett now appeals the court’s decision and resulting judgment. We reverse and remand.

DISCUSSION

I.

In claiming that his discharge was involuntary, Tippett made two claims. First, he alleged that his second Army lawyer, Lieutenant Colonel Terry E. Bathen, misinformed him by failing to tell him that Department of Defense Form 214, titled “Certificate of Release or Discharge from Active Duty” (“DD Form 214”), would indicate that his discharge, although honorable, was for a moral transgression. Tippett I, 185 F.3d at 1255. Second, he alleged that Bathen misinformed him by telling him that, if he received an honorable discharge, he would be entitled to an appointment in the Reserves. Id. In fact, before he could become eligible for an appointment in the Reserves, Tippett had to obtain a waiver from the Secretary of the Army. Because of the circumstances of Tippett’s discharge, a waiver was required under two separate provisions of AR 135-100: U 1-7e(3) and 11 l-7e.

Since it was undisputed that Tippett was not informed that his DD Form 214 would contain a negative notation, we said in Tippett I that, as far as what Tippett was told by Bathen, the only issue to be decided on remand was whether Tippett “was incorrectly advised that if he was granted an honorable discharge, he would be entitled to an appointment in the Reserves.” Tippett I, 185 F.3d at 1258. We also said that there was a second factual issue relating to the voluntariness question that should be addressed on remand. We stated that if the Court of Federal Claims found that Captain Thomas Barth, Tippett’s first Army lawyer, “cured any misinformation that Tippett received while Tippett had the option to withdraw his request for discharge, then Tippett’s discharge was not based on misinformation and was not involuntary.” Id.

II.

On remand, a trial was held. Following the trial, the Court of Federal Claims found that “[njeither Bathen, Barth, nor Tippett had any contemporaneous understanding that Tippett’s DD Form 214 would bear the adverse notation ‘misconduct, moral, or professional dereliction.’ ” Tippett v. United States, No. 96-308# C, slip op. at 7 (Fed.Cl. July 24, 2000). The court also found that “Bathen was not aware that a chapter 8 discharge made Tippett ineligible for a Reserve appointment without a waiver of approval from the Secretary of the Army. See AR 135-100, H 1-7c(3) and H l-7e. Neither Bathen, Barth, nor any of the Army attorneys who were contacted by Bathen for advice were aware of this ineligibility.” Id. In short, on remand, the Court of Federal Claims found, as a matter of fact, that Tippett was misinformed about the consequences of be[944]*944ing discharged from the Army under AR 635-120, chapter 8, and that Barth had not corrected the misinformation.

The court concluded, however, that “Bathen’s omission of this information was not material.” Id. at 8. The court stated that “[d]espite the omission by his attorney, [Tippett] knew that his negative [officer efficiency reports] could prevent him from receiving a commission in the Reserves.” Id. The court pointed out that Bathen had told Tippett that he would face several obstacles in obtaining a commission in the Reserves. The court reasoned that “[t]he advice given [to Tippett] was not misleading and did not materially affect [Tippett’s] decision regarding his discharge.” Id. Based upon its findings, the court ruled that Tippett had failed to establish that his discharge was rendered involuntary by ineffective assistance of counsel. It therefore ordered that his complaint be dismissed.

III.

We review the trial court’s conclusions of law de novo and its findings of fact for clear error. Barrett Refining Corp. v. United States, 242 F.3d 1055, 1057 (Fed.Cir.2001). A finding of fact is clearly erroneous “when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Landmark Land Co., Inc. v. F.D.I.C., 256 F.3d 1365, 1373 (Fed.Cir.2001). In the Court of Federal Claims, Tippett had the burden of establishing by a preponderance of the evidence that his discharge was involuntary. See McEntee v. United States, 30 Fed.Cl. 178, 183 (Fed.Cl.1993).

On appeal, Tippett makes several arguments. The only one we need address, however, is his contention that the evidence at trial established that his discharge was rendered involuntary by Bath-en’s failure to inform him that he would be ineligible for an appointment in the Reserves unless he obtained a waiver from the Secretary of the Army.

After he was ordered to show cause why he should be retained on active duty, Tippett had three options: (i) submit a resignation in lieu of separation, pursuant to AR 635-120, chapter 4; (ii) request a discharge in lieu of separation, pursuant to AR 635-120, chapter 8; or (iii) in lieu of resignation or discharge, request an appearance before a Board of Inquiry in order to show cause for retention. See Tippett I, 185 F.3d at 1252. After he eliminated (i) as an option, Tippett had to decide between (ii) and (iii). Tippett states that the evidence shows that, at the time he was deciding whether to accept a discharge under chapter 8 or to stand before the Board of Inquiry, he made it clear that his most important consideration was being able to enter the Reserves after his discharge.

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28 F. App'x 942, 51 Fed. Cl. 942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tippett-v-united-states-cafc-2001.