Campbell v. United States

ORIGINAL

3Jn tbe Wlniteb ~tates QCourt of jfeberal QClai1ns

No. 17-1142C

(Filed: July 9, 2018)

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

AUSTIN B. CAMPBELL, ) Military pay case; entitlement to retirement

) pay; service as an Army reservist;

Plaintiff, ) jurisdiction; computation of retirement

) points

v. )

)

UNITED STATES, )

FILED

)

Defendant. )

JUL -9 2018

) U.S. COURT OF

********************************** ) FEDERAL CLAIMS

Austin B. Campbell, prose, Euless, Texas.

Daniel S. Herzfeld, Trial Attorney, Commercial Litigation Branch, Civil Division, United

States Depa1tment of Justice, Washington, D.C., for defendant. With him on the briefs were

Chad A. Readier, Acting Assistant Attorney General, Civil Division, and Robe1t E. Kirschman,

Jr., Director, and Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Civil

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

Mazzone, Judge Advocate, Litigation Attorney, United States Army Legal Servies Agency.

OPINION AND ORDER

LETTOW, Judge.

This military pay case is before the comt on defendant's motion to dismiss pursuant to

Rule 12(b)(l) of the Rules of the Court of Federal Claims ("RCFC") or, in the alternative, for

judgment on the administrative record under RCFC 52. l(c). Plaintiff, Austin Campbell, seeks

retirement pay related to his service first on active duty in the United States Army and later in the

Army Reserve. For the reasons set out below, the court grants the government's motion to

dismiss for lack of subject matter jurisdiction and, in the alternative, grants its motion for

judgment on the administrative record.

BACKGROUND

Mr. Campbell was commissioned as an officer in the United States Army Reserve

subsequent to his graduation in June 1962 from the United States Army Reserve Officer Training

7012 3460 0001 7791 7982

Corps at Ohio State University. Comp!. ii 5; AR 734. 1 He served on active duty in the Army

until 1967. Comp!.~ 5; AR 543. After 1967, Mr. Campbell served in the Army Reserve,

including sporadic periods of active duty, until 1983. See AR 3, 90. On July 14, 2000, Mr.

Campbell turned 60 years old. Comp!.~ 5. In August 2004, he requested reserve retirement

benefits from the United States Army Reserve Personnel Center, providing a variety of

documents relating to his service. AR 161. The administrative record does not include the

Army's response to this request.

Retirement benefits are available under 10 U.S.C. §§ 12731-12732 to those reservists

who served in the armed forces and who have reached the age of 60 after having earned a

minimum of 50 points each year for at least 20 years of service. See Army Regulation 140-185,

~~ 1-7; 2 10 U.S.C. § 12731(a), (f); AR 59. Members of the armed forces earn one point for every

day of active or full-time service; reserve members earn 15 points yearly for membership. 10

U.S.C. § 12732(a)(2)(A), (C). Thus a year spent in full-time service would result in an

individual earning 365 points for that year. Comp!. ~ 26. There are multiple ways for reservists

to earn points, including serving in a reserve component, attending a drill or formal instrnction,

or performing funeral honors. See 10 U.S.C § 12732(a)(2).

In April 2014, Mr. Campbell requested that the Army Board for Correction of Military

Records ("Army Board" or "Board") amend his records in light of"numerous errors and

omissions" in the record of his service. AR 89. On May 15, 2014, the Board informed Mr.

Campbell that it could not consider his application until he had "exhausted all administrative

remedies," and in that regard to contact the United States Army Human Resources Command

("HR Command"). AR 88. The HR Command, which is responsible for maintaining retirement

records, 3 first received documents and records from Mr. Campbell on May 27, 2014. AR 9.

Over the next four years, the HR Command recalculated Mr. Campbell's retirement points on

three different occasions; 4 its last recalculation was produced on February 27, 2018 ("2018

Statement"). See AR 3, 14, 888.

1"AR" refers to the administrative record filed on March 19, 2018. Mr. Campbell

maintains that the administrative record omits thirteen significant documents. See Pl. 's Suppl.

Compl.'ll 2, ECF No. 15. The government responds that twelve of the thirteen documents are

included in the administrative record. See Def. 's Mot. to Dismiss and Mot. for Judgment on the

Administrative Record ("Def. 's Mot.") at 8, ECF No. 18.

2

Army Regulation 140-185 is available at:

https://armypubs.army.mil/epubs/DR__pubs/DR_a/pdf/web/r140_185.pdf (last visited July 5,

2018).

3See https://armypubs.army.mil/epubs/DR__pubs/DR_a/pdf/web/rl 40_185.pdf (last visited

July 5, 2018).

4

An accounting of Mr. Campbell's retirement points was prepared by HR Command on

October 30, 2014 ("2014 Statement"), AR 14, and on Febrnary 12, 2015, HR Command again

recalculated Mr. Campbell's retirement points ("2015 Statement"), AR 3. Notably, in the 2015

Statement, the HR Command made several other changes to Mr. Campbell's retirement

2

These relatively recent requests by Mr. Campbell for relief were preceded by requests

made throughout his military career and thereafter to correct alleged inaccuracies in his militmy

records as well as in his pay and allowances. See Comp!. if 9. 5 Although Mr. Campbell's

complaint currently before the court was filed on August 23, 2017, it reflects a summary issued

in 1982 of his retirement points concerning his Army career from June 8, 1968 to June 7, 1982;

see Comp!. iii! 5, 8-9, 14; AR 29. In alleging his claim, Mr. Campbell also relied on the HR

Command's 2014 Statement. See Comp!. 'ii 26. In a supplemental complaint, submitted after the

filing of the administrative record on March 20, 2018, Mr. Campbell acknowledged the HR

Command's 2018 Statement, which recognized that he had achieved a minimum of at least 50

points in each of 18 years of service, 2 years short of the 20 needed to be eligible for retirement

benefits. Pl. 's Suppl. Comp!. 'ii 3.

The parties agree that Mr. Campbell's service qualified towards retirement benefits from

June 8, 1962 to June 7, 1980. Comp!. 'iii! 6-7, 9-11, 14, 16, 19; AR 888. 6 Two immediately

subsequent years are at issue. Mr. Campbell contends that he earned more than 50 points in each

of the two years between June 8, 1980 and June 7, 1982, and thus netted over 50 points for 20

years to qualify for retirement benefits. See Comp! 17-19, 22. He claims that the administrative

record does not reflect several short tours of duty he undertook during the period between June 8,

1980 and June 7, 1981. Comp!. 'i!'il 17, 18. The 2018 Statement noted 44 points in that period.

AR 888. Mr. Campbell further alleges that several short tours of duty during the period from

June 8, 1981 to June 7, 1982 were also not included in the record. Comp!. ifi! 19, 22. The 2018

Statement reported that Mr. Campbell had earned 32 points during that period. AR 888. Despite

the deficiency in points for these two years, Mr. Campbell avers that he "is entitled to the

retirement pay of a major with over 18 years of service or one half of the cutTent rate." Comp!. 'ii

26. In response, the government contends that "the A1my Human Resources Command was

unable to verify any additional points" and that Mr. Campbell thus does not meet the criteria for

reserve retirement. Def.' s Mot. at 8. In effect, Mr. Campbell asks the court to recalculate the

points HR Command determined he emned in the 2018 Statement. Comp!. 'ii 26.

Mr. Campbell also claims that because "the Army [in the 2018 Statement] acknowledges

that [he] had accrued at least 18 years qualifying service, it had the duty by Army Regulation to

offer [him] the opportunity to be retained to complete 20 years of qualifying service." PL' s

Suppl. Comp!. 'ii 3. While maintaining that he never received notification in 1984 of his

discharge, see AR 613, Mr. Campbell contends that receipt of the discharge notice was

documentation beside point totals, including, among other things, correcting Mr. Campbell's

rank. See Def.' s Mot. at 4 & n.4.

5In particular, Mr. Campbell argues that corrections made in 1972 were not properly

reflected in later documentation. Comp!. if 9. Mr. Campbell also filed claims with this court's

predecessors in 1978 and 1981, which claims involved periods of service in which he was on

active duty for training. See Campbell v. United States, 228 Ct. Cl. 789 (1981) (claims for

allowances); Campbell v. United States, 2 CL Ct. 247 (1983) (claim for pay and allowances).

6Mr. Campbell's service in 1967 was not counted towards his retirement calculation until

the 2018 Statement. AR 888.

3

meaningless, as he would still have the right "by law and regulation" to complete 20 years of

service. Pl.' s Suppl. Com pl. if 3. He alleges that the Army mismanaged the administrative

record and that their "incompetence and indifference" resulted in an unfair early discharge.

Com pl. iJ 25.

Under the sanctuary statute, 10 U.S.C. § 12686, "a member of a reserve component who

is on active duty (other than for training) and is within two years of becoming eligible for retired

pay or retainer pay under a purely military retirement system ... may not be involuntarily

released from that duty before he becomes eligible for that pay." Mr. Campbell contends that

had the Army maintained colTect records, he would not have been discharged and "would have

stayed in the active reserves for at least 30 years." Comp!. iJ 25. Mr. Campbell seeks $775,220

in retirement back pay and future monthly retirement payments. Comp!. at 8.

STANDARDS FOR DECISION

Motion to Dismiss

In any action, the plaintiff has the burden of establishing jurisdiction. Reynolds v. Army

& Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). In ruling on a motion to dismiss

for lack of jurisdiction, the comi must construe the allegations of the complaint in the light most

favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other

grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). The leniency afforded a prose plaintiff

with respect to formalities does not relieve prose litigants of their obligation to satisfy

jurisdictional requirements. Kelley v. Secretary, United States Dep 't of Labor, 812 F.2d 1378,

1380 (Fed. Cir. 1987).

"[J]urisdiction under the Tucker Act exists ifthe statute, regulation, or constitutional

provision that is the basis for the complaint 'can fairly be interpreted as mandating compensation

by the Federal Government for the damage sustained,' and is 'reasonably amenable to the

reading that it mandates a right ofrecovery in damages." Jan's Helicopter Serv., Inc. v. F.A.A.,

525 F.3d 1299, 1307 (Fed. Cir. 2008) (quoting United States v. Mitchell, 463 U.S. 206, 217

(1983); United States v. White Mountain Apache Tribe, 537 U.S. 465, 473 (2003)) (additional

citation omitted). "Every claim of which [this court] has jurisdiction shall be barred unless the

petition thereon is filed within six years after such claim first accrues." 28 U.S.C. § 2501.

"Where th[ is] court has not been granted jurisdiction to hear a claim, the case must be

dismissed." Trevino v. United States, 113 Fed. Cl. 204, 207 (2013) (citing Arbaugh v. Y & H

Corp., 546 U.S. 500, 514 (2006)); see also RCFC Rule 12(h)(3) ("If the court determines at any

time that it lacks subject-matter jurisdiction, the court must dismiss the action.").

Judgment on the Administrative Record

For motions under RCFC 52.l(c), i.e., for judgment on an administrative record, "[t]he

standards and criteria ... vary depending upon the specific law to be applied in particular case."

RCFC 52.1 Rules Committee Note, 2006 Adoption. In challenges to decisions by military

boards, the scope of review "is limited to determining whether a decision of the ... Board is

arbitrary, capricious, unsuppmied by substantial evidence, or contrary to applicable statutes and

4

regulations." Melendez Camilo v. United States, 642 F.3d 1040, 1044 (Fed. Cir. 2011) (quoting

Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983)). The arbitrary and capricious

standard "requires a reviewing court to sustain an action evincing rational reasoning and

consideration ofrelevant factors." Advanced Data Concepts, Inc. v. United States, 216 F.3d

1054, 1058 (Fed. Cir. 2000).

As a general matter, this comt's role in military record cases is a limited one. It is

"beyond the institutional competence of courts to review" the substance of decisions that have

been left exclusively to the discretion of the military. Lindsay v. United States, 295 F.3d 1252,

1257 (Fed. Cir. 2002); see also Chappell v. Wallace, 462 U.S. 296, 301 (1983) ("It is clear that

the Constitution contemplated that the Legislative Branch has plenary control over rights, duties,

and responsibilities in the framework of the military establishment, including regulations,

procedures and remedies related to military discipline; and Congress and the courts have acted in

conformity with that view.").

ANALYSIS

I. Subject Matter Jurisdiction-Rule 12(b)(l)

Mr. Campbell's claim for retirement pay arguably matured when he turned 60 on July 14,

2000. See 10 U .S.C. § 12731 (a)(l )-(2) ("A person is entitled, upon application, to retired pay" if

they have "attained the eligibility age applicable under subsection (f)" and "perfo1med at least 20

years of service computed under [S]ection 12732 of this title."). The recognized eligibility age

under Subsection (f) "is 60 years of age," 10 U.S.C. § 1273 l(f), and Mr. Campbell alleges that

he had 20 years of qualifying service at that time. Mr. Campbell first brought his claim to this

comt in August 2017.

This court's statute of limitations extends six years after a claim first accrues. See 28

U.S.C. § 2501; John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 134 (2008).

Recognizing this time constraint, Mr. Campbell has requested that the statute of limitations be

tolled in light of his earlier attempts to secure administrative remedies. Mr. Campbell argues

that he "made numerous attempts to correct the record through administrative action and

appeals" well within the relevant statute of limitations for this court. Comp!. ii 27. He futther

contends that because the 2018 Statement was the first signal that he was "eligible for retention

to qualify for retirement," the statute oflimitations began to run upon its completion. Pl.'s

Suppl. Comp!. ii 4.

"As regards military retired pay, a cause of action accrues on the date upon which

plaintiff claims he became eligible for retired pay." Brooks v. United States, 70 Fed. Cl. 479,

484 (2006) (citing Garcia v. United States, 617 F.2d 218, 221 (Ct. Cl. 1980)). Mr. Campbell's

claim, therefore, accrued on July 14, 2000, his sixtieth birthday. Mr. Campbell did not file a

claim until seventeen years later, well outside the limitations period provided in 29 U.S.C. §

2501. And, in ordinary circumstances, Mr. Campbell's pursuit ofremedies before the Army

Board and the HR Command would not toll the statute of limitations. See Martinez v. United

States, 333 F.3d 1295, 1312 (Fed. Cir. 2003) ("It is well settled that the statute of limitations for

5

Tucker Act claims is not tolled by the claimant's exercise of his right to seek permissive

administrative review of his claim.").

Mr. Campbell implies that his allegedly wrongful discharge stopped the accrual of the

statute of limitations because he learned his service constituted 18 years for retirement-benefit

purposes upon receipt of the 2018 Statement. Pl. 's Suppl. Comp!. 'if 3; see also Def. 's Mot. at 11.

But, "[i]n a military discharge case, [the Federal Circuit] and [this court's predecessor] have long

held that the plaintiffs cause of action for back pay accrues at the time of the plaintiffs

discharge." Martinez, 333 F.3d at 1303. Because Mr. Campbell's service was terminated on

January 27, 1983, this court could only have reviewed his wrongful-discharge claim iffiled

before January 27, 1989. Even considering that Mr. Campbell was not formally notified of his

discharge in 1984, that does not preserve a related claim filed 34 years later.

In limited circumstances, the Federal Circuit has applied an "accrual suspension rule"

where "the accrual ofa claim against the United States is suspended, for purposes of28 U.S.C. §

2501, until the claimant knew or should have known that the claim existed." Young v. United

States, 529 F.3d 1380, 1384 (Fed. Cir. 2008) (quoting Martinez, 333 F.3d at 1319). But "to

achieve such suspension the plaintiff must either show that the defendant has concealed its acts

with the result that plaintiff was unaware of their existence or it must show that its injury was

inherently unknowable at the accrual date." Id. (internal citations and quotations omitted). Mr.

Campbell had personal knowledge of his service, and he has not provided any evidence that the

Army purposely concealed its decisions from him. 7 Rather, he bases his argument for tolling the

statute of limitations on the numerous attempts he made to remedy perceived errors in the

administrative record. See Pl. 's Comp!. 'if 27; Pl. 's Suppl. Comp!. 'if 4. Mr. Campbell's inclusion

of the 1982 account of his retirement points in his complaint emphasizes that in 1982 he became

aware that the Army did not believe he was eligible for retirement, see Comp!., Ex. A., and that

this circumstance has continued thereafter. Accordingly, because Mr. Campbell's claims did not

accrue during the six years before filed his complaint, this comi does not have subject matter

jurisdiction over his claim.

II. Judgment on the Administrative Record-Rule 52.1

Given the very recent action by the A1my's Human Resources Command, the

government alternatively has asked the court to enter judgment in the government's favor based

upon the administrative record. Mr. Campbell counters that request by endeavoring to show that

he in fact has 20 years of qualifying service under the retirement-benefit point system prescribed

in I 0 U.S.C. §§ 12731-12732. Mr. Campbell's complaint in pmi addressed alleged

miscalculation of points earned in his service between June 8, 1969 and June 7, 1980. See

generally Comp!. The 2018 Statement, however, determined that Mr. Campbell's service in

7

Notwithstanding Mr. Campbell's asse1tion that he never received notice that he was

denied a promotion and thus discharged from the Army Reserve, see Pl.'s Suppl. Comp!. 'if 3; AR

613, he acknowledged that denial in his complaint, Comp!. 'if 25 ("Plaintiff was due for

promotion to the next higher grade of LTC in October 1982 based upon seven years in grade as a

major, and this milestone was overlooked.").

6

those periods counted toward his retirement benefits. See AR 888. While earlier records may

have miscalculated the points Mr. Campbell earned, 8 subsequent records have included points for

those years in measuring Mr. Campbell's eligibility for retirement. AR 3, 14, 888.

Mr. Campbell is thus left to contend that the points for the two periods between June 8,

1980 and June 7, 1982 fail to properly account for his service. Comp!. ii 17, 18, 19, 22. Mr.

Campbell provided two pay vouchers to the HR Command for their consideration in making

calculations regarding the period from June 8, 1980 and June 7, 1981. AR 892-93. Upon

review, in the 2018 Statement, the HR Command increased the number of points Mr. Campbell

earned in those two periods. AR 888. The HR Command added 16 points to the 2018 Statement

for the 80-81 year after review of the first pay voucher. AR 888. The information provided by

the second voucher for the 81-82 year had already been included in the 2015 Statement. AR 3.

The HR Command did not find evidence of any further service in the period between June 8,

1981 and June 7, 1982. See AR 3, 888.

Mr. Campbell offers no evidence that the HR Command's actions in calculating

retirement benefit points for the periods between June 8, 1980 and June 7, 1982 were arbitra1y

and capricious or unsupported by substantial evidence. Retirement benefit points are based on

documentation and determined by Army Regulations. Army Regulation 140-185, ii 3-1; Army

Regulation 600-8-104, iiil 5-8. 9 The documents attached to Mr. Campbell's complaint-all but

one of which were already included in the administrative record-did not show that Mr.

Campbell had earned more than 50 points towards retirement benefits in the two periods

spanning 1980-1982. AR 888.

Mr. Campbell's attempt to bring a claim under the sanctuary statute, 10 U.S.C. §

l 2686(a), is similarly unsuccessful. That statute provides that "a member of a reserve

component who is on active duty (other than for training) and is within two years of becoming

eligible for retired pay or retainer pay under a purely military retirement system ... may not be

involuntarily released from that duty before he becomes eligible for that pay." 10 U.S.C. §

12686(a). To invoke Section 12686, a member of the reserve forces must be on active duty and

within two years of eligibility for retirement benefits. Active duty for training is not considered

active duty for purposes of 10 U.S.C. § 12686. See Wilson v. United States, 917 F.2d 529, 535-

36 (Fed. Cir. 1990). Mr. Campbell's service between June 8, 1979 and June 7, 1980 was

classified as active duty for training. AR 72, 137, 440; Comp!. ii 16 & Ex. R; see also Campbell,

2 Cl. Ct. at 248 (rejecting his claim for pay and allowance during active duty for training in

1981, taking into account a setoff attributable to an early release from an assigned duty in 1979).

8

The 2014 Statement, 2015 Statement, and 2018 Statement differ in the points earned in

the periods between June 8, 1969 and June 7, 1980. Most of the points awarded in those periods

had always been over 50, and thus counted towards Mr. Campbell's retirement pay. In the 2018

Statement, only the change in point totals between June 8, 1976 and June 7, 1977, and June 8,

1977 and June 7, 1978 affected Mr. Campbell's eligibility for retirement benefits.

9 Almy Regulation 600-8-104 is available at:

https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/r600 _ 8_ l 04.pdf (last visited July 5,

2018).

7

As a result, for the purposes of 10 U.S.C. § 12686, the period from June 8, 1979 to June 7, 1980,

does not qualify as a year spent on active duty because Mr. Campbell's active duty was only for

a limited part of that year-long period and then also was only for training.

Because Mr. Campbell has not demonstrated that the Army HR Command's

determination of his retirement points was not based on substantial evidence or that 10 U.S.C. §

12686 applied, the HR Command's decision that he is not eligible for a reserve retirement is

upheld. The court thus also grants the government's motion for judgment on the administrative

record under Rule 52. l(c).

CONCLUSION

For the reasons stated, the government's motion to dismiss plaintiffs complaint and, in

the alternative, its motion for judgment on the administrative record, are GRANTED. The clerk

shall enter judgment in accord with this disposition.

No costs.

It is so ORDERED.

Charles F. Lettow

Judge

8