Banks v. United States

ORIGINAL

3511 the fiHm’teh gatates @uurt of filtered (Elaine;

No. 13-864C FILED

(Filed: December 5, 2014) DEC ' 5 2014

U.S. COURT OF

JON J. BANKS, *

*

. . *

Plamtlff’ * Action for Improper Military Discharge;

V * Jurisdiction Under Military Pay Act;

' * Voluntary Separation; Failure to State a

THE UNITED STATE S, * Clalm on Which Relief Can Be Granted.

*

Defendant. *

*

*************>|<***********************

Jon J. Banks, Chamblee, Georgia, pro se, Plaintiff.

William J Grimaldi, with whom were Stuart F. Delery, Assistant Attorney General,

Robert E. Kirschman, Jr., Director, and Steven J. Gillirtgham, Assistant Director,

Commercial Litigation Branch, Civil Division, US. Department of Justice, Washington,

DC, for Defendant.

OPINION AND ORDER

WHEELER, Judge.

Plaintiff Jon J. Banks is before this Court seeking redress for his treatment during

the time he enlisted in the US. Army and served 31 days of active duty before his

discharge by the Army for medical reasons. Prior to filing in this Court, Mr. Banks

unsuccessfully sought relief twice from the Army Board for Correction of Military

Records (ABCMR). He then filed suit in the US. District Court for the Northern District

of Georgia, seeking cancellation of his military discharge together with back pay and

benefits due under his enlistment contract, or in the alternative, damages for breach of his

enlistment contract and fraud in the inducement of the contract and a change of his

military discharge from “uncharacterized” to “honorable.” The District Court found that

Mr. Banks’ claims were Tucker Act (28 U.S.C. § 1491) claims exceeding $10,000, thus

precluding subject matter jurisdiction in that Court, and it transferred the suit to this

Court. Banks V. McHugh, No. 12-03192 (N. D. Ga. Aug. 30, 2013). For the reasons

explained below, the Court dismisses Mr. Banks’ action for failure to state a claim upon

which relief can be granted.

Background

Mr. Banks enlisted in the officer candidate program of the U.S. Army in July

2008. Administrative Record (AR) 160-162. At that time, the Army conducted a

medical screening of Mr. Banks and cleared him for enlistment. AR 107-114. On

August 12, 2008, Mr. Banks entered active duty and the Army assigned him to Fort

Benning, Georgia, for initial training as an E-4 under the delayed entry program, with

officer candidate training to follow after completion of basic training. Within a week of

arrival, Mr. Banks sought medical care for injury due to carrying equipment, AR 117, and

in a subsequent examination including an x-ray, the Army found him to have curvature of

the lower spine together with degeneration of lumbar discs. AR 115. The Army referred

his case to an Entry Physical Standards Board, which determined on August 20, 2008,

that Mr. Banks had a medical condition which existed prior to his enlistment, and

recommended that he be separated from service due to the condition. lg. A week after

that recommendation, Mr. Banks signed DA Form 4707, consenting to separation from

service. AR 115-116. On September 11, 2008, after 31 days of active duty, Mr. Banks

was separated from the Army with a medical discharge showing an “entry level

(uncharacterized) characterization of service”. AR 135, 300-301.

Shortly after his departure from the Army, Mr. Banks wrote a letter of complaint

to his Congressman, describing his view of the mistreatment he experienced in Echo

Company during his time in the Army, and asking him to review the matter. AR 396-

406. The Congressman forwarded his letter to the Army, which prompted an “Army

Regulation 15-6” investigation. (Pl’s Resp. to Def.’s Mot. to Dismiss, app.) That

investigation led to a finding of misconduct in treatment of soldiers by three of the drill

sergeants commanding Echo Company, and recommendations for disciplinary action. I_d.

No evidence of mistreatment of Mr. Banks specifically was included in the investigation.

Mr. Banks also filed a complaint with the U.S. Army Office of the Inspector General,

alleging improprieties in his recruitment as well as mistreatment at Echo Company. AR

93-139. These allegations started a second investigation, this time by the Army Training

and Doctrine Command Inspectors General (“TMDOC”). AR 311. That investigation

led to findings that his claims of recruitment improprieties and of mistreatment at Echo

Company were not substantiated. AR 349—35 1, 355.

In March 2009, Mr. Banks sought review of his discharge by the ABCMR,

seeking cancellation of the discharge, back pay and benefits due as a commissioned

officer under his enlistment contract, compensation for losses incurred in preparation for

enlistment, and change of his discharge status from “uncharacterized” to “honorable.”

AR 17, 91. On December 15, 2009, the ABCMR issued its decision denying relief. AR

17-27. Mr. Banks then sought reconsideration of the ABCMR decision, submitting

additional evidence. On July 19, 2011, the ABCMR again denied relief. AR 3-15.

Mr. Banks maintains that he was induced to enlist by an Army recruiter who

advised him to conceal his history of back problems, and that he incurred substantial

monetary losses in preparation for his enlistment. Further, he claims he was subjected to

such severe mistreatment while in basic training that he was forced under duress to

consent to separation from service. In his complaint he seeks money damages for losses

in reliance on his enlistment contract, back pay and benefits due under the enlistment

contract as if it had been performed, and issuance of an honorable discharge in place of

the uncharacterized discharge he received.

Counsel for the Government filed a motion to dismiss the complaint on the

grounds that this Court lacks subject matter jurisdiction over Plaintiff s claims of

fraudulent inducement and breach of enlistment contract under Rule 12(b)(1) of the Rules

of the Court of Federal Claims (RCFC), or in the alternative, should this Court find it has

subject matter jurisdiction, the case should be dismissed for failure to state a claim upon

which relief can be granted under RCFC 12(b)(6). If the Court finds it has jurisdiction

under Rule 12, Defendant has also filed a Motion for Judgment on the Administrative

Record, arguing that the two decisions by the ABCMR affirming Plaintiff s separation

from service should be upheld.

Analysis

A. Subject Matter Jurisdiction.

Pursuant to the Tucker Act, 28 U.S.C. § 1491, the U.S. Court of Federal Claims

has jurisdiction over claims for money damages “not sounding in tort” against the United

States. But the Tucker Act does not create any substantive right; the Act merely confers

jurisdiction on the Court whenever a source of substantive right exists. That source must

be “money-mandating.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005).

Plaintiff in this case is proceeding pro se, and his claims for relief are not based

specifically on a “money-mandating” source of law. For this reason, the Government

argues that this Court lacks subject matter jurisdiction. (Regrettably, in defending against

Mr. Banks” claims, the Government has argued both ways: in the U.S. District Court

3

proceeding where this case originated, the Government argued the opposite approach,

maintaining that this same complaint should be liberally construed and viewed as a

Tucker Act claim in order to invoke exclusive Court of Federal Claims jurisdiction.)

This Court finds that, because Mr. Banks is proceeding pro se, he is entitled to a liberal

construction of his pleading. Erickson v_. Pardus, 551 U.S. 89 (2007); Haines v. Kemer,

404 U.S. 519, 520 (1972); Forshey v. Principi, 284 F.3d 1335, 1357-1358 (Fed. Cir.

2002). The complaint alleges a wrongful discharge and includes a money damages claim

for back pay, giving this Court jurisdiction under the Military Pay Act, 37 U.S.C. § 204.

Smith v. Sec’y of Army, 384 F.3d 1288, 1294 (Fed. Cir. 2004). Thus, even though

Plaintiff did not cite the Military Pay Act in his complaint, the Court will accept

jurisdiction as if it had been cited, and Defendant’s motion to dismiss for lack of

jurisdiction under RCFC 12(b)(1) must fail.

B. Jurisdiction under RCFC 12gb )t 6 1.

Rule 12(b)(6) provides for dismissal of an action for “failure to state a claim upon

which relief can be granted.” Thus, the complaint must state a right for which this Court

can provide a remedy, and also must plausibly suggest an entitlement to relief. Ashcroft

v. Igbal, 556 US 662, 678 (2009). Rights conferred by the Military Pay Act are limited:

they are governed by statute and regulation, and are not based upon a contract of

enlistment. Bell v. United States, 366 U.S. 393, 401 (1961); Sonnenfeld v. United States,

62 Fed. C1. 336, 338 (2004). When reviewing a pay claim pursuant to that statute, the

voluntariness of a plaintiffs discharge must be examined. In Metz v. United States, 466

F.3d 991 (Fed.Cir. 2006), the Federal Circuit instructed that a plaintiff seeking relief

under the Military Pay Act “must assert and ultimately establish that his separation was

involuntary in order to fit within the scope of, and take advantage of, the money-

mandating status of §204, or else his claim falls for failure to state a claim upon which

relief can be granted.” E. at 998. Where a member of the military resigns or retires, his

decision is presumed to be voluntary. House v. United States, 99 Fed. C1. 342, 347

(2011) (citing Moyer v. United States, 190 F.3d 1314, 1320 (Fed. Cir. 1999), Tippett v.

United States, 185 F.3d 1250, 1255 (Fed. Cir. 1999), and v. United S'Eé‘itfi, 58

Fed. Cl. 522, 524 (2003)). To overcome the presumption of voluntary separation from

service, “[i]t is a plaintiff’s burden to demonstrate otherwise, essentially showing that his

decision was not freely made.” House, 99 Fed. Cl. at 347. A plaintiff may show his

separation was involuntary as a result of government misrepresentation, coercion, or

duress. Murphy v. United States, 69 Fed. Cl. 593, 604 (2006), affd on other grounds, 22

F. Appx. 966 (Fed.Cir. 2007).

At the time of Mr. Banks’ separation from the Army, he filled out and signed a

portion of DA Form 4707, which is the Army’s report of the Entrance Physical Standards

Board Proceedings in his case, showing its medical findings and recommendation for

separation from military service. AR 115, 116. The portion of the Form 4707 addressed

to the service member states that “I understand that legal advice of an attorney employed

by the Army is available to me or that I may consult civilian counsel at my own

expense.” The form then provides four choices, one of which is to be selected by the

service member. Mr. Banks chose the first one, concurring with the proceedings and

requesting to be discharged “without delay.” The other three choices were: (2)

concurrence, with a request to remain on active duty; (3) disagreement that the medical

condition existed prior to service and a request for reconsideration; and (4) disagreement

that the condition was disqualifying on entry and a request for reconsideration. AR 116.

A plain reading of this section would lead to the conclusion that Mr. Banks’ choices were

made clear to him at the time he chose to sign the Form 4707. However, Mr. Banks

argues that, because he was under duress at the time due to mistreatment by the drill

sergeants overseeing his basic training, he felt compelled to agree to separation. The

question before this Court is then, whether Plaintiff has alleged sufficient facts supporting

a claim of duress, to overcome the presumption of voluntariness of his separation from

service, and thus to avoid dismissal under Rule 12(b)(6).

In Christie v. United States, 518 F.2d 584 (Ct. C1. 1975), the Court of Claims

noted that duress is not measured by a plaintiff’s “subjective evaluation of a situation.

Rather, the test is an objective one.” I_d. at 587. An objective examination of the facts set

forth by Mr. Banks in his pleadings leads to the conclusion that the presumption of

voluntary separation from service has not been overcome. Mr. Banks is educated and

intelligent enough to have qualified for officer candidate school, and it is clear from his

pleadings that he was aware of his choice to consult legal counsel prior to signing the

Form 4707. (Compl. 11 29, 30). Further, that form presented his options, and he could

have challenged the medical conclusions of the Entrance Physical Standards Board while

remaining in service. As the Court observed in Christie, “[m]erely because plaintiff was

faced with an inherently unpleasant situation...does not obviate the voluntariness of her

resignation.” 1; See also House, 99 Fed.Cl. at 351, (a claimant must show he had “no

reasonable alternative” to resigning). Here it is clear that Mr. Banks had alternatives and

that he understood them. For these reasons, the Court finds that Plaintiff has failed to

overcome the presumption of voluntariness of his separation from service, and his

complaint must be dismissed under Rule 12(b)(6). It should be noted that, had the Court

reached the merits of this case, invoking a review of the two ABCMR decisions in the

administrative record, it would have reached the same result.

,anglusion

For the reasons set forth above, Defendant’s Motion to Dismiss under Rule

12(b)(1) is DENIED, but its Motion to Dismiss under Rule 12(b)(6) is GRANTED.

Accordingly, the Clerk of Court is directed to dismiss the complaint.

IT IS SO ORDERED.

I i" {k I

Trim—5:0. WHEELE

Judge