Maxberry v. United States

,.

3Jn tbt Wnitth ~tatts ~ourt of jftheral ~!aims

No. 16-1256C

(Filed: May 8, 2017)

(NOT TO BE PUBLISHED)

FILED

**********************************

) MAY - 8 2017

DENNIS L. MAXBERRY,

)

U.S. COURT OF

) FEDERAL CLAIMS

Plaintiff,

)

)

v.

)

)

UNITED STATES,

)

)

Defendant.

)

********************************** )

Dennis L. Maxberry, prose, Chippewa Falls, Wisconsin. ·

Jessica R. Toplin, Trial Attorney, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, D.C., for defendant. With her on the briefs were

Chad A. Readier, Acting Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr.,

Director, and Deborah A. Bynum, Assistant Director, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washington, D.C. Of counsel was Major Patrick

McGrath, Litigation Attorney, Military Personnel Law Br;mch, United States Army Legal

Services Agency, Fort Belvoir, Virginia.

OPINION AND ORDER

LETTOW, Judge.

Plaintiff, Dennis L. Maxberry, brings suit against the United States ("the government"),

acting through the United States Army ("Army"), the Army Discharge Review Board ("Review

Board"), and the Army Board for Correction of Military Records ("Correction Board")

(collectively, "the Army Boards"). Mr. Maxberry alleges that he was wrongfully discharged

from the Anny in 1978, that he should have been discharged for physical disability, and that he

is entitled to disability retirement pay. He also raises miscellaneous claims under the United

States Constitution and various federal statutes and regulations. Pending before the court are the

government's motion to dismiss pursuant to Rules 12(b)(l) and 12(b)(6) of the Rules of the

Court of Federal Claims ("RCFC"), or alternatively for judgment on the administrative record,

ECF No. 12, plaintiffs cross-motion for judgment on the administrative record, ECF No. 16,

plaintiffs motion "for leave to file a statement concerning [and] clarifying the honorable

Attorney General's conflict of interest,".ECF No. 24, plaintiffs two motions "for leave to file a

7016 3010 DODO 4308 2740

discovery issue on the evidence," ECF Nos. 26 and 28, and plaintiffs motion to "suppress items

from the administrative record," ECF No. 29. For the reasons stated, the government's motion to

dismiss is granted and plaintiffs motions are denied.

FACTS'

A. Plaintiff's Military Service and Discharge

Mr. Maxberry served in the Army from September 29, 1976 to June 23, 1978. AR 39-

142.2 He was discharged because of"overall demonstrated poor performance," including an

Article 15 non-judicial punishment for possession of marijuana, after rehabilitative efforts failed.

See AR 32-111.

Prior to discharge, Mr. Maxbeny received physical and mental health evaluations. See

AR 39-152 to -57. He self-reported that he experienced "depression and excessive worry since

entering the Army," but did not report any other physical disabilities or mental conditions. See

AR 39-157. A mental health technician from the Army determined that Mr. Maxberry did not

suffer from any psychiatric disorders, and Mr. Maxberry was "psychiatrically cleared for

whatever action [was] deemed appropriate by command, to include discharge." AR 39-153.

On June 15, 1978, Mr. Maxberry received notice of his separation from the Army

pursuant to the Expeditious Discharge Program. AR 39-148 to -50. That program "provide[s]

for the expeditious elimination of substandard, nonproductive soldiers," wherein such soldiers

must voluntarily consent to separation from the Army and are subsequently discharged "under

honorable conditions." Army Reg. 635-200 ~i! 5-31(c), (f)(l), (f)(2) (filed with Def.'s Mot. to

Dismiss, or Alternative Mot. for Judgment on the Administrative Record ("Def. 's Mot."), App.

at A-6, A-7, ECF No. 12). Mr. Maxbeny signed the discharge notice, indicating his voluntary

consent to the discharge and acknowledging that he had "been provided the opportunity to

consult with an officer of the Judge Advocate General's Corps" and that he could withdraw

consent at any time prior to the approval of the discharge by the discharge authority. AR 39-149

to -50. On June 23, 1978, Mr. Maxbe1Ty was generally discharged from the Army under

honorable conditions pursuant to the Expeditious Discharge Program. AR 39-142, -145.

1

The recitations that follow constitute findings of fact by the court drawn from the

administrative record of proceedings before the Army Boards, filed pursuant to RCFC 52.1 (a).

See Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005) (explaining that

proceedings on the administrative record "provide for trial on a paper record, allowing fact-

findings by the trial court").

2Citations to the administrative record refer to the record as filed on February 6, 2017 and

amended on March 24, 2017. The record is divided into tabs and paginated sequentially. The

amended record reflects the correct tab designations. In citing to the administrative record, the

comi will first designate the tab, followed by the page number. For example, AR 39-142 refers

to tab 39, page 142 of the administrative record.

2

B. Proceedings before the Review Board and the Correction Board

Following his separation from the Army, Mr. Maxberry filed three applications with the

Review Board requesting an upgrade to his discharge status. AR 38-130 to -41. He claimed that

his discharge under honorable conditions was "completely and totally against [his] will, pride,

and judgment." AR 38-131. Upon review of Mr. Max berry's applications and service history,

the Review Board denied his requests on May 1, 1984. See AR Tab 32.

In 1985, Mr. Maxberry filed applications with both the Review Board and the Correction

Board, again requesting an upgrade to his discharge status and claiming that the circumstances

leading up to his discharge under honorable conditions were fictitious. See AR 31-101 to -05.

On October 15, 1986, the Correction Board denied these applications because they were not

timely filed and because Mr. Maxberry "ha[ d] not presented, nor [did] the records contain,

sufficient justification to establish that it would be in the interest of justice to excuse the failure

to file within the time prescribed by law." AR 29-97 to -98.

On June 2, 1987, Mr. Maxberry filed another application to the Correction Board,

requesting that his discharge status be changed to a medical disability discharge. See AR 26-90;

Def. 's Mot. at 4 n.2 (addressing the relevant Army Regulations governing discharges due to

medical disability). For the first time, Mr. Maxberry alleged that he suffered a "back injury from

a tank incident" during his service, and requested "reserves of his held back disability payment"

as a remedy from the Army for allegedly "causing" this injury. AR 26-91. On August 19, 1988,

the Correction Board deemed Mr. Maxberry's claim untimely and declined to hear it, and also

refused to disturb its earlier decision from 1986. AR 21-84.

Twenty years later, in 2008, Mr. Maxberry filed two more applications to the Correction

Board requesting reconsideration of its prior decisions as well as a change in discharge status.

See AR 19-82; 20-83. Both requests were denied as untimely in March 2009. AR 18-81. Mr.

Maxberry proceeded to file five additional applications to the Correction Board and the Review

Board between 2010 and 2012 to request that his discharge status be changed, all of which were

denied. See AR Tabs 10-17. In 2012, he also filed with the Review Board documents from a

case that he filed in the United States District Court for the Dish'ict of Columbia, which the

Review Board constmed as an additional request for reconsideration and summarily dismissed.

See AR Tab 9.

In 2014, Mr. Maxberry filed yet another application to the Couection Board, seeking to

change his discharge status to a medical discharge. AR 8-42. He was informed by the

Correction Board that "[i]n order for the [Correction Board] to consider [his] application, [he]

must provide a copy of [his] Army military medical record and any other records that support

[his] stated issue." AR 7-40A. There is no indication in the record that Mr. Maxbe1Ty filed any

such records with the Correction Board.

In 2015, Mr. Maxberry filed four additional applications to the Correction Board seeking

to alter his military records. See AR Tab 6. In those applications, he requested that the

Correction Board upgrade his discharge to an honorable discharge, update his records to reflect

medical separation or retirement, correct "his reentry eligibility (RE) code to an RE-1 or RE-2,"

award him the '"Presidential Citation' and the Sharpshooter Marksmanship Qualification Badge

with Rifle Bar," add a "secondary military occupational specialty" to his records, take action

3

with regard to "his family utilizing his name (and funds) for their personal gain," and delete

"information in his military records stating he was in a halfway house." AR 5-17. Waiving the

statute of limitations, the Correction Board considered these applications together on May 17,

2016 and denied all requested relief. See AR 5-21 to -22. The Correction Board specifically

noted that it had denied Mr. Maxbe1Ty's prior requests for an upgrade of his discharge status in

1986, 1988, and 2009, as well as all requests for reconsideration of those decisions. AR 5-19.

Additionally, the Correction Board concluded that Mr. Maxberry provided no evidence "that he

was treated for or suffered from any physical or mental conditions that interfered with the

performance of his assigned duties or were of a nature warranting processing through the

medical evaluation system," nor did he provide any evidence to support any of his other claims

for relief. AR 5-21 to -22. Mr. Maxberry filed an application for reconsideration of this

decision, see AR Tab 2, which the C01Tection Board denied for lack of new evidence, AR 1-1.

C. Proceedings in this Court

On October 3, 2016, Mr. Maxbeny filed suit in this court. See generally Comp!. In his

complaint, Mr. Maxberry argues that when he was separated from the Army in 1978, he should

have received either an honorable discharge or a medical retirement discharge rather than a

discharge under honorable conditions. See Comp!. at 3. He also asserts that the Army acted

fraudulently and in violation of his constitutional rights when discharging him under honorable

conditions. See Comp!. at 3-8. Finally, Mr. Maxben·y makes multiple claims under the United

States Constitution and federal statutes that are tangentially related to his Army service. See

Compl. at 9-11. For relief, he requests that his discharge status be changed to an honorable

discharge and that the court "impeach" the retirement of the commanding officers who prepared

his original discharge paperwork. Comp!. at 17. He also seeks back pay, disability pay,

retirement pay, retroactive promotions that he allegedly should have received during his Army

service, and punitive damages. Comp!. at 17.

The government filed a motion to dismiss and, in the alternative, for judgment on the

administrative record. See generally Def.'s Mot. Mr. Maxberry subsequently filed a motion to

be provided with the information the government received from the Army regarding his service

and discharge, ECF No. 15, and a motion to intervene on his own behalf, ECF No. 16. The court

denied the motion for information as moot and granted the motion to intervene in part, treating it

as a response and cross-motion for judgment on the administrative record. See Order of Mar. 24,

2017, ECF No. 22. Mr. Maxberry then filed three motions to file additional documents with the

court. In the first, Mr. Maxberry seeks to file a document to "clarify[] the ... Attorney General's

conflict of interest" in this case. See Pl.'s Statement for Leave to File a Statement Concerning

[and] Clarifying the Honorable Attorney General's Conflict of Interest ("Pl.'s First Mot. to

Suppl."), ECF No. 24. The second motion requests leave to file any documents that Mr.

Maxberry will receive from a Freedom of Information Act ("FOIA") request he had filed with

the Army. See Pl. 's Statement for Leave to File a Disc. Issue on the Evid. ("PL 's Second Mot. to

Suppl."), ECF No. 26. The third motion requests leave to file Mr. Maxberry's FOIA request

regarding his comt-martial records and the Army's response that it has no comt-mmtial records

on file for him. See Pl.'s Statement for Leave to File a Disc. Issue on the Evid. ("Pl.'s Third

Mot. to Suppl."), ECF No. 28. Each of these motions shall be construed as motions to

supplement the administrative record because each seeks to add documents to the existing record

for the court's review. See Def.'s Resp. to Pl.'s Mot. to Suppl. the Administrative Record

("Def. 's Resp.") at 1 n.1, ECF No. 27. Mr. Maxberry has also filed a motion seeking to exclude

4

certain pages of the administrative record from the court's consideration because these pages

have allegedly been altered by the Army. See PI. 's Mot. for Leave to File a Mot. and Support of

Mot. to Suppress Items from the Administrative Records ("Pl.'s Mot. to Suppress") at 2-3, ECF

No. 29. All of these motions have been fully briefed and are ready for disposition.

STANDARDS FOR DECISION

As plaintiff, Mr. Maxberry has the burden of establishing jurisdiction. See Reynolds v.

Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). 3 The Tucker Act provides

this court with jurisdiction over "any claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an executive department, or upon any

express or implied contract with the United States, or for liquidated or unliquidated damages in

cases not sounding in tort." 28 U.S.C. § 149l(a)(l). As a purely jurisdictional statute, however,

the Tucker Act does not provide a plaintiff with any substantive rights. United States v. Testan,

424 U.S. 392, 398 (1976). To perfect jurisdiction under the Tucker Act, "a plaintiff must

identify a separate source of substantive law that creates the right to money damages." Fisher v.

United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevant part) (citing United

States v. Mitchell, 463 U.S. 206, 216 (1983); Testan, 424 U.S. at 398).

In evaluating a motion to dismiss for failure to state a claim under RCFC 12(b)(6), the

court examines whether the complaint "contain[s] sufficient factual matter, accepted as true, to

'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell At/. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To avoid dismissal, the facts

alleged "must be enough to raise a right to relief above the speculative level, on the assumption

that all the allegations in the complaint are true (even if doubtful in fact)." Kam-Almaz v. United

States, 682 F.3d 1364, 1367-68 (Fed. Cir. 2012) (quoting Twombly, 550 U.S. at 555). The court

must accept all factual allegations in the complaint as true and draw "all reasonable inferences in

favor of the non-movant," Sommers Oil Co. v. United States, 241F.3d1375, 1378 (Fed. Cir.

2001) (internal citations omitted), but it need not accept legal conclusions, Rack Room Shoes v.

United States, 718 F.3d 1370, 1376 (Fed. Cir. 2013) (citing Iqbal, 556 U.S. at 678).

ANALYSIS

A. Subject Matter Jurisdiction

Mr. Maxbeny's claims regarding his discharge from the Army and the denial of

promotions are barred by the statute of limitations, and thus are outside the jurisdiction of this

comi. "Every claim of which the United States Comi of Federal Claims has jurisdiction shall be

barred unless the petition thereon is filed within six years after such claim first accrues." 28

U.S.C. § 2501. This statute oflimitations is jurisdictional and cannot be tolled for equitable

reasons. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34 (2008). Claims

3

Mr. Maxbe1Ty has appeared prose, and the submissions of such litigants are traditionally

held to "less stringent standards than formal pleadings drafted by lawyers." Estelle v. Gamble,

429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)).

"This latitude, however, does not relieve a prose plaintiff from meeting jurisdictional

requirements." Bernard v. United States, 59 Fed. Cl. 497, 499, aff'd, 98 Fed. Appx. 860 (Fed.

Cir. 2004) (per curiam); see also Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995).

5

based on unlawful discharge are deemed to accrue upon the plaintiffs discharge or separation

from the military, see Martinez v. United States, 333 F.3d 1295, 1304 (Fed. Cir. 2003), and

claims based on wrongful denial of promotion accrue "at the time the plaintiff is first and finally

denied promotion," or at the latest upon the plaintiffs discharge from the military, Coon v.

United States, 30 Fed. Cl. 531, 540 (1994) (citing Brownjieldv. United States, 589 F.2d 1035,

1038 (Ct. Cl. 1978)), ajj"d, 41F.3d1520 (Fed. Cir. 1994). Mr. Maxberry was discharged from

the A1my on June 23, 1978, see AR 39-142, giving him six years from that date within which to

file claims related to his discharge and promotion status, i.e., until June 23, 1984. As Mr.

Maxberry filed suit in 2016, nearly f01ty years after he was discharged from the Army, his claims

for unlawful discharge and unlawfully denied promotion are untimely and thus outside the

jurisdiction of this court.

Mr. Maxberry's disability retirement claims are also barred by the statute of limitations.

Military disability retirement pay claims fall under 10 U.S.C. § 120l(a), which allows a service

member to retire for disability when the member is deemed "unfit to perform the duties of the

member's office, grade, rank, or rating because of physical disability incurred while entitled to

basic pay." Claims for entitlement to disability pay accrue when "the appropriate military board

either finally denies such a claim or refuses to hear it. ... The decision by the first statutorily

authorized board that hears or refuses to hear the claim invokes the statute of limitations."

Chambers v. United States, 417 F.3d 1218, 1224 (Fed. Cir. 2005) (citations omitted). Mr.

Maxberry first sought disability pay from the Correction Board in 1987. See AR 26-90. On

August 19, 1988, the Correction Board refused to hear Mr. Maxberry's claim for disability pay

because it was untimely. AR 21-84. The Correction Board was the "first competent board" to

assess Mr. Maxberry's claim for disability pay; as such, this claim accrued for statute of

limitations purposes on August 19, 1988. See Chambers, 417 F.3d at 1224-25. The statute of

limitations expired on August 19, 1994, and therefore Mr. Maxberry's disability retirement claim

is untimely and outside the jurisdiction of this court.

Mr. Maxberry also alleges violations of the Fourth, Fifth, Sixth, Eighth, Thirteenth,

Fourteenth, and Fifteenth Amendments. The COUit lacks jurisdiction over these claims because

none of these amendments are money-mandating in the context of Mr. Maxberry's allegations.

See Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997) (holding that the Fourth

Amendment does not mandate payment and therefore such claims are not within the jurisdiction

of the COUit) (citing Mitchell, 463 U.S. at 218; Murray v. United States, 817 F.2d 1580, 1582-83

(Fed. Cir. 1987)); Murray, 817 F.2d at 1583 (holding that the Due Process Clause of the Fifth

Amendment is not money-mandating); Milas v. United States, 42 Fed. Cl. 704, 710 (1999)

(holding that the court lacks jurisdiction over Sixth Amendment claims because the Sixth

Amendment is not money-mandating) (citations omitted), ajj"d, 217 F.3d 854 (Fed. Cir. 1999);

Trafny v. United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) ("The CoUit of Federal Claims

does not have jurisdiction over claims arising under the Eighth Amendment as the Eighth

Amendment 'is not a money-mandating provision."') (citations omitted) (per curiam); Smith v.

United States, 36 Fed. Appx. 444, 446 (Fed. Cir. 2002) (holding that the Court of Federal Claims

lacks jurisdiction over "non-contractual monetary claims under the Thirteenth Amendment")

(citing Carter v. United States, 228 Ct. CL 898, 900 (1981)); LeB!anc v. United States, 50 F.3d

1025, 1028 (Fed. Cir. 1995) (holding that the Equal Protection and Due Process Clauses of the

Fourteenth Amendment do not provide "a sufficient basis for jurisdiction because they do not

mandate payment of money by the government") (citations omitted); Hernandez v. United States,

6

93 Fed. Cl. 193, 198 (2010) (holding that the Fifteenth Amendment does not support jurisdiction

in the Court of Federal Claims).

Further, Mr. MaxbetTy's statutory claims are not properly before this court. Mr.

Maxberry attempts to invoke 42 U.S.C. §§ 1983 and 1986, Comp!. at 4, 5, 11, 13, but

"jurisdiction over claims arising under the Civil Rights Act resides exclusively in the district

courts," Hardin v. United States, 123 Fed. Cl. 667, 671 (2015) (quoting Marlin v. United States,

63 Fed. Cl. 475, 476 (2005), appeal dismissed, 146 Fed. Appx. 491 (Fed. Cir. 2005)). He also

cites to numerous provisions of the federal criminal code, including the Speedy Trial Act, Pub.

L. No. 93-619, Title I,§ 101, 88 Stat. 2076 (codified at 18 U.S.C. § 3161), see Comp!. at iii,

which are outside the jurisdiction of the court, Joshua v. United States, 17 F.3d 378, 379 (Fed.

Cir. 1994) ("The court has no jurisdiction to adjudicate any claims whatsoever under the federal

criminal code."); see also McNutt v. United States, No. 11-798C, 2012 WL 1151549 at *2 n.2

(Fed. Cl. Mar. 30, 2012) (finding that "[n]othing in the Speedy Trial Act suggests that a violation

of its provisions would mandate payment to a criminal defendant" under the circumstances

presented in that case). Purported claims under the Defense of Marriage Act, I U.S.C. § 7, see

Comp!. at 8-9, and an immigration statute governing document fraud, 8 U.S.C. § 1324c, see

Comp!. at 9, 12, also are improper in this court because the statutes plainly are not money-

mandating. Mr. Maxberry's reliance on 31 U.S.C. § 3702(a)(l)(A), which delegates the

authority to settle military pay claims to the Secretary of Defense, is also not within the

jurisdiction of the court because this statute is only money-mandating "after there has been a

judgment or a settlement agreement establishing a plaintiffs right to payment." Duncan v.

United States, No. 04-1845C, 2007 WL 5160386, at *3 (Fed. Cl. Aug. 20, 2007) (emphasis in

original). Overall, Mr. Maxberry fails to identify any money-mandating statute that could

provide the court with jurisdiction under the Tucker Act.

Mr. Maxben-y's claims under the Uniform Code of Military Justice ("UCMJ") also do not

confer jurisdiction in this court. This court has limited jurisdiction to review court-martial

judgments under the UCMJ where the plaintiff presents a "'narrow collateral attack ... on

constitutional grounds' when traditional Tucker Act jurisdiction is present." Harris v. United

States, 102 Fed. Cl. 390, 408 (2011) (quoting Matias v. United States, 923 F.2d 821, 823 (Fed.

Cir. 1990) (in turn quoting Bowling v. United States, 713 F.2d 1558, 1560 (Fed. Cir. 1983))).

This claim by Mr. Maxberry is factually inappropriate because he was never subject to a court-

martial proceeding during his service in the Army. See Pl. 's Third Mot. to Suppl., Ex. 1 at I

(stating that the Army has no records of any court-martial proceedings involving Mr. Maxberry).

Therefore, as there is no court-martial record for Mr. Maxberry to collaterally attack, the court

lacks jurisdiction over Mr. Maxberry's claims under the UCMJ.

Because Mr. Maxberry fails to identify a money-mandating source of law to support his

claims, the comt also lacks jurisdiction over his claims for equitable relief, including changes to

his discharge status and promotions. See James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998)

(stating that under the Tucker Act, "equitable relief must be 'an incident of and collateral to' a

money judgment.") (quoting 28 U.S.C. § 149l(a)(2)). Further, Mr. Maxberry's claim for

punitive relief is improper because this comt has no authority to award punitive damages. See

Bussie v. United States, 96 Fed. Cl. 89, 96 (2011), ajj"d, 443 Fed. Appx. 542 (Fed. Cir. 2011)

(citations omitted).

7

In sum, the court lacks subject matter jurisdiction over plaintiffs claims for the

aforementioned reasons, and his complaint therefore shall be dismissed.

B. Failure to State a Claim

Mr. Maxberry's complaint also fails to state a claim upon which relief could be granted.

Most of his claims center on his allegation that his discharge from the Army under honorable

conditions was unlawful. See, e.g., Comp!. at 3-4. However, Mr. Maxberry voluntarily

consented to being discharged under these conditions. To receive relief under the Military Pay

Act, 37 U.S.C. § 204, a plaintiff must "establish that his separation was involuntary ... or else

his claim falls for failure to state a claim upon which relief can be granted." Metz v. United

States, 466 F.3d 991, 998 (Fed. Cir. 2006). Soldiers must voluntarily consent to separation under

the Expeditious Discharge Program, the circumstance under which Mr. Maxberry was

discharged. See Army Reg. 635-200 ifif 5-3 l(t)(l ); AR 39-149 to -50. Mr. Maxberry has not

presented any evidence to establish that his discharge under honorable conditions was anything

but voluntary. Plaintiff therefore fails to state a claim under the Military Pay Act upon which

relief could be granted, so his complaint must be dismissed. 4

C. Plaintiff's Motions to Supplement the Administrative Record

Mr. Maxberry further seeks to supplement the administrative record in this case with

additional documents he has received or expects to receive through FOIA requests that relate to

his Army service. See Pl.'s First Mot. to Suppl. at 1-2; Pl.'s Second Mot. to Suppl. at 1; Pl.'s

Third Mot. to Suppl. at 1. This court undertakes limited review of decisions by the Correction

Board and Review Board, determining only whether the decision is "arbitrary, capricious,

unsupported by substantial evidence, or contrary to law." Metz, 466 F.3d at 998 (quoting Porter

v. United States, 163 F.3d 1304, 1312 (Fed. Cir. 1998) (in turn citing Skinner v. United States,

594 F.2d 824 (Ct. Cl. 1979))). "[T]he focal point for judicial review should be the administrative

record already in existence, not some new record made initially in the reviewing comt." Florida

Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985) (quoting Camp v. Pitts, 411 U.S. 138,

142 (1973)). For this reason, the court's review of the Army Boards' decisions regarding Mr.

Maxberry's military service is limited to the administrative record that was before the Boards.

See Metz, 466 F.3d at 998 (citing Cunkelman v. United States, 229 Ct. Cl. 857 (1982)). The

record should only be supplemented "if the existing record is insufficient to permit meaningful

review," Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009), such as

"when an agency fails or omits to address or explore claims of bias or a conflict of interest,"

Riser v. United States, 93 Fed. Cl. 212, 217-18 (2010) (citing lmpresa Construzioni Geom.

Domenico Garufi v. United States, 238 F.3d 1324, 1338-39 (Fed. Cir. 2001)), recons. denied,

No. 09-712C, 2010 WL 3528894 (Fed. Cl. Sept. 2, 2010).

No circumstances exist in this case to justify the addition of Mr. Maxberry' s supplements

to the administrative record. The first request concerns the documents already submitted by the

government in its motion to supplement the administrative record, see Pl.'s First Mot. to Suppl.

at 5, which has been granted by the comt, see Order of Mar. 24, 2017. The second request seeks

4

As the comt grants the government's motion to dismiss pursuant to RCFC 12(b)(l) and

12(b)(6), it need not consider the government's alternative motion for judgment on the

administrative record.

8

to supplement the record in the future with information gleaned from pending FOIA requests.

Pl.' s Second Mot. to Suppl. at 2. As the government notes, the Army has since responded to

these requests and directed Mr. MaxbetTy to his Official Military Personnel File, which is held

by the National Personnel Records Center. Def. 's Resp. Ex. 2. This file is already part of the

administrative record, AR Tab 39, and therefore can be considered by the court without

supplementing the record. Finally, Mr. Maxberry seeks to add a FOIA response from the United

States Army Court of Criminal Appeals stating that there is no record that he was subject to any

court-martial proceedings. Pl. 's Third Mot. to Suppl., Ex. 1 at 1. This information is already in

the record and is not pertinent to the court's decision. Therefore, as all of the proposed

supplementary information is either already in the administrative record or is inapposite to the

court's assessment of the record, plaintiffs motions to supplement the administrative record are

denied. 5

CONCLUSION

For the reasons stated, the government's motion to dismiss is GRANTED, plaintiffs

motion for judgment on the administrative record is DENIED, plaintiffs motions to supplement

the administrative record are DENIED, and plaintiffs motion to suppress certain pages of the

administrative record is DENIED. The clerk shall enter judgment in accord with this disposition.

No costs.

It is so ORDERED.

Judge

5

Plaintiff s motion to suppress ce1iain pages from the administrative record is also

denied. Plaintiff seeks to exclude parts of the administrative record related to his Article 15

punishment for marijuana possession as well as other misdeeds during his Army service that

preceded his separation under the Expeditious Discharge Program. See AR 39-158 to -67, -171

to -72, -174, -177 to -79; Pl.'s Mot. to Suppress at 2. These documents are part of Mr.

Maxberry's Army personnel record and were considered by the Army Boards during Mr.

Maxberry's various petitions. Because these documents were part of the record before the Army

Boards and are relevant to the court's analysis here, and because Mr. MaxbetTy has not presented

a logical or compelling reason as to why they should be suppressed, the court maintains them as

part of the record and denies Mr. Maxberry's motion to suppress.

9