Petition for Writ of Certiorari — Maxwell Jones, Petitioner v. United States

I

TABLE OF APPENDICES

Page

APPENDIX A — A MEMORANDUM OF THE

UNITED STATES COURT OF FEDERAL

CLAIMS, FILED APRIL 9,2024..................

la

APPENDIX B — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT, DECIDED

DECEMBER 6,2023......................................

5a

APPENDIX C — ORDER OF THE UNITED

STATES COURT OF FEDERAL CLAIMS,

FILED MAY 1,2023 ......................................

12a

APPENDIX D — ORDER OF THE UNITED

STATES COURT OF FEDERAL CLAIMS,

FILED FEBRUARY 24,2022 .......................

18a

APPENDIX E — PANEL REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE FEDERAL CIRCUIT,

)

DATED JANUARY 22,2024

21a

APPENDIX F — DEPARTMENT OF THE

ARMY CORRESPONDENCE WITH MR.

MAXWELL JONES......................................

,23a

la

APPENDIX A — A MEMORANDUM OF THE

UNITED STATES COURT OF FEDERAL CLAIMS,

FILED APRIL 9,2024

No. 21-801

MAXWELL JONES

Plaintiff(s),

v.

THE UNITED STATES,

Defendant.

For the reasons specified in the attached deficiency

memorandum, the submission identified shall be:

□ Filed by my leave.

□ Filed by my leave and the filing shall be

titled______________ .

□ Filed by my leave and the party is being

notified for the correction of the following

defect(s) in all future filings:_____________.

□ Filed by my leave and the party is required

to file a redacted version of the document for

the public record (Rule 5.2).

2a

Appendix A

□ Returned to the party for the correction

of defects. The party shall re-file the corrected

document on or before________________ .

Opposing counsel’s time to respond to the

filing is to run from the date of re-service.

□ Returned to the party unfiled.

IE! Rejected.

IT IS SO ORDERED.

Loren A. Smith

Judge

April 9. 2024

Date

\

\

3a

Appendix A

Docket No. 21-801

UNITED STATES COURT OF FEDERAL CLAIMS

DEFICIENCY MEMORANDUM

TO:

Judge Smith

FROM:

CLERK’S OFFICE

CASE NAME: MAXWELL JONES

DOCUMENT TITLE:

MOTION TO VACATE JUDGEMENTS

The attached was received on 3/21/24

following defect(s) is/are noted:

!.□ Untimely, due to be filed by

and the

[Rule 7.2]

2.D Not signed [ Rule 11 ]

3.D Does not comply with the provisions of Rule:

□ 5.2(a)

Re: redacted filings [Privacy

Protection]

□ 5.4(a)(2)(A)

Re: table of contents or index

to appendix is missing

(or in wrong location)

4a

Appendix A

□ 5.4(b)

Re: length of briefs or

memorandum

□ 5.5(g)

Re: Judge’s name on all filings

□ 10(a)

Re: incorrect caption; names of

parties

4.D Original affidavit(s)/declaration(s) is/are missing

5.1E1 No provision in the rules (or court order) for filing of

this item

6. IE1 Judgment entered 2/24/2022.

CAFC Mandate Affirming Issued 1/29/2024.

a.c.

Deputy Clerk’s Initials

Revised January 2024

5a

APPENDIX B — OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT,

DECIDED DECEMBER 6,2023

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

2023-1862

MAXWELL JONES,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

Appeal from the United States Court of

Federal Claims in No. l:21-cv-00801-LAS

Senior Judge Loren A. Smith.

Decided: December 6,2023

Before Lourie, Prost, and Reyna, Circuit Judges.

Per Curiam.

Maxwell Jones appeals an order of the U.S. Court of

Federal Claims denying his Rule 60(b)1 motion for relief

from a judgment. We affirm.

1. Unless otherwise noted, the Rules referenced in this

opinion are the Rules of the U.S. Court of Federal Claims.

6a

*

Appendix B

BACKGROUND

Mr. Jones sued the government in the Court of Federal

Claims in January 2021. He alleged in his complaint that

he was wrongfully discharged from the Army as a result of

an improper General Officer Memorandum of Reprimand

(“GOMOR”) that was included in his official personnel

record. He requested relief in the form of reinstatement,

back pay, and correction of his military records, including

removal of the GOMOR.

In June 2021, the Court of Federal Claims stayed Mr.

Jones’s case in light of concurrent proceedings at the Army

Board for Correction of Military Records (“Board”). In

July 2021, the Board granted Mr. Jones partial relief by

removing the GOMOR from his official personnel record.

Later, in a revised decision, the Board granted Mr. Jones

full relief, including reinstating him to Active Guard

Reserve status and authorizing back pay and allowances.

After the Court of Federal Claims was notified of

the revised Board decision, the government moved to

dismiss Mr. Jones’s complaint, arguing that it was moot

because the Board had given Mr. Jones all the relief he

had requested from the court. In February 2022, the

court granted the government’s motion, dismissed the

complaint as moot, and entered judgment accordingly. See

Order at 1, Jones v. United States, No. l:21-cv-801 (Fed.

Cl. Feb. 24, 2022), ECF No. 23 (“The court agrees that

the [Boardj’s corrected decision has granted all the relief

sought in plaintiffs complaint, leaving no justiciable issues

upon which this court can render a decision.” (cleaned up)).

7a

Appendix B

In September 2022, Mr. Jones filed a motion under

Rule 60(b) seeking relief from that judgment. The court

thereafter held several status conferences with the parties,

which culminated in an order that Mr. Jones “file a brief

detailing his outstanding allegations and identifying the

corresponding relief.” Order at 1, Jones v: United States,

No. l:21-cv-801 (Fed. Cl. Feb. 21, 2028), ECF No. 46.

In his court-ordered brief, Mr. Jones (1) questioned

the authenticity of the revised Board decision, (2) alleged

that he was still owed back pay, and (3) alleged that the

GOMOR had not been removed from his official personnel

record. The government’s response brief addressed each

contention. First, it characterized Mr. Jones’s suggestion

that the revised Board decision was inauthentic as “no

more than an unsubstantiated conspiracy theory. . . .

wholly unsupported by the record.” Def.’s Corrected

Resp. to Pl.’s Mar. 6, 2023 Filing at 6, Jones v. United

States, No. l:21-ev-801 (Fed. Cl. Apr. 7, 2023), ECF No.

53. The government deemed the suggestion particularly

implausible given that Mr. Jones’s official personnel record

also contained a memorandum explaining why the Board’s

decision was revised. Id. (referencing GApp’x2 19-20).

Second, the government explained that Mr. Jones was not

owed back pay because any back pay had to be reduced

by his separation payment and offset by his civilian

earnings since his discharge—leaving him with no back

pay owed. Id. at 7-8. Third, the government explained that,

although the GOMOR itselfwas removed from Mr. Jones’s

official personnel record, Army regulations required that

2. “GApp’x” refers to the appendix included with the

government’s informal brief.

8a

Appendix B

Board decisions remain in that record. That meant that

the revised Board decision referencing the GOMOR had

to stay (though the government represented that it was

placed in a restricted folder). Id. at 11-12.

The Court of Federal Claims heard oral argument

after this round of briefing, and in May 2023, it denied

Mr. Jones’s Rule 60(b)3 motion. The court noted that

Mr. Jones had “identifie[d] no mistake, newly discovered

evidence, or fraud, nor d[id] he demonstrate . . . any

other reason that justifies relief.” GApp’x 2 (addressing

standard for Rule 60(b) relief). Although the court did

not explicitly reference Mr. Jones’s suggestion that the

revised Board decision was inauthentic, it explained in

detail why Mr. Jones’s allegations concerning owed back

pay and the GOMOR lacked merit. As to the former, the

court explained that Mr. Jones had “accrued $92,401.56

of back pay and allowances for the separation period”

but that the Defense Finance and Accounting Service

“was required to deduct $92,401.56 from that amount

for separation pay already paid out to plaintiff, an offset

for plaintiffs civilian earnings during the separation

period, and other smaller deductions.” GApp’x 2. To do

otherwise, the court observed, would award Mr. Jones

3. Mr. Jones’s motion had also cited Rule 59 as supporting

relief, but the Court of Federal Claims concluded that the

potentially relevant provision of that rule could not apply because

Mr. Jones had filed his motion well out-side the applicable 28-day

timeframe. GApp’x 1 n.l (citing Rule 59(e)). The Court of Federal

Claims therefore evaluated the motion only under Rule 60(b). See

id. Mr. Jones does not dispute that treatment, so we will likewise

evaluate the motion and the Court of Federal Claims’ order only

under Rule 60(b).

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Appendix B

“an unearned windfall” instead of returning him “to

the same position he would have had if he had not been

separated from military service.” GApp’x 2 (cleaned up)

(citing Department of Defense Financial Management

Regulation Volume 7A, ch. 1,11 3.1.6, titled “Corrections

of Military Record”). As to the latter, the court credited

the declaration of a Paralegal Specialist with the Army

Legal Services Agency and found that, although “[t]hree

documents in a restricted folder... reference the removal

of the GOMOR ..., the GOMOR itself is gone.” GApp’x

3 (emphasis in original) (referencing GApp’x 34-36). The

court further explained that Army regulations required

that Board decisions and records of proceedings remain in

Mr. Jones’s record. See GApp’x 3 (citing Army Regulation

600-8-104). The court accordingly denied Mr. Jones’s

Rule 60(b) motion and denied all other pending motions

as moot. GApp’x 3.

Mr. Jones timely appealed the Court of Federal

Claims’ order denying his Rule 60(b) motion.4 We have

jurisdiction under 28 U.S.C. § 1295(a)(3).

4. Although some statements in Mr. Jones’s informal briefing

suggest that he considers the underlying February 2022 dismissal

judgment to be within the scope of this appeal, we lack jurisdiction

to review that judgment because this appeal was filed well beyond

60 days after that judgment. See, e.g., Peretz v. United States,

No. 21-1831, 2022 WL 1232118, at *3-5 (Fed. Cir. Apr. 26, 2022)

(as modified) (nonprecedential). And “an appeal from denial of

[Federal Rule of Civil Procedure] 60(b) relief does not bring up

the underlying judgment for review.” Browder v. Dir., Dep’t of

Corr. of III, 434 U.S. 257, 263 n.7 (1978); see Peretz, 2022 WL

1232118, at *4 (applying this principle in the context of Rule 60(b)

of the Court of Federal Claims). We will therefore not review the

February 2022 dismissal judgment.

10a

Appendix B

DISCUSSION

We review the Court of Federal Claims’ denial of a

Rule 60(b) motion for abuse of discretion. E.g., Progressive

Indus., Inc. v. United States, 888 F.3d 1248, 1255 (Fed.

Cir. 2018). “A court abuses its discretion when (1) its

decision is clearly unreasonable, arbitraryf,] or fanciful;

(2) the decision is based upon an erroneous construction

of the law; (3) its factual findings are clearly erroneous;

or (4) the record contains no evidence upon which the ...

court could have rationally based its decision.” Shell Oil

Co. v. United States, 896 F.3d 1299, 1306-07 (Fed. Cir.

2018) (cleaned up).

Mr. Jones fails to demonstrate that the Court of

Federal Claims abused its discretion in denying his

Rule 60(b) motion. To begin, he insists that the revised

Board decision was “forged,” and he criticizes the Court

of Federal Claims for not specifically addressing that

contention. See Appellant’s Informal Br. 2-6. Yet, although

the court’s order did not discuss this contention specifically,

cf. GApp’x 2 (concluding generally that Mr. Jones had not

identified fraud), none of Mr. Jones’s arguments persuade

us that its treatment of this issue was so unsatisfactory

as to give rise to an abuse of discretion in denying Rule

60(b) relief. Similarly, while Mr. Jones continues to object

to the reduction of his back pay, see Appellant’s Informal

Br. 8-9, and to documents referencing the GOMOR

remaining in his official personnel record, see id. at 5-6, his

arguments either lack meaningful engagement with the

Court of Federal Claims’ reasoning, are unsupported, or

are undeveloped. For example, he argues that “10 U.S.C.

11a

Appendix B

§§ 1174 [and] 1174a” “prohibit [] any collection of severance

or separationl] pay [to] be deducted from a service

member[’]s salary.” Id. at 9. But he does not provide any

explanation of how these statutory provisions support his

assertion, and on their face, it is not clear that they do.

In sum, the abuse-of-discretion standard is deferential.

And considering Mr. Jones’s arguments—particularly

against what appears to have been a diligent, sustained

effort by the Court of Federal Claims to ensure that his

salient concerns were heard and addressed—we cannot

say that the court abused its discretion by denying Rule

60(b) relief.

CONCLUSION

We have considered Mr. Jones’s remaining arguments

and find them unpersuasive. For the foregoing reasons,

we affirm.5

AFFIRMED

COSTS

No costs.

5. Mr. Jones filed a motion (ECF No. 20) seeking to

supplement the appellate record and offer materials for this court’s

judicial notice. The government did not file a response opposing

this motion. We grant the motion (albeit only insofar as it seeks to

supplement the record on appeal and make materials available for

this court to potentially judicially notice), but it does not change

our disposition of this appeal.

12a

APPENDIX C — ORDER OF THE UNITED

STATES COURT OF FEDERAL CLAIMS,

FILED MAY 1, 2023

IN THE UNITED STATES

COURT OF FEDERAL CLAIMS

No. 21-801

MAXWELL JONES,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

ORDER

Filed: May 1,2023

On January 25, 2021, plaintiff, proceeding pro se,

filed his Complaint with this Court, alleging, inter alia,

that he was wrongfully accused of sexual harassment and

discharged from the United States Army. See generally

Complaint, ECF No. 1. On June 24,2021, the Court stayed

the case pending resolution of plaintiff’s proceedings

before the Army Board for Correction of Military Records

(“ABCMR”). See June 24, 2021 Order, ECF No. 14. On

July 23, 2021, the ABCMR granted plaintiff partial

relief by removing the General Officer Memorandum of

Reprimand (“GOMOR”) from his Army Military Human

13a

Appendix C

Resource Record (“AMHRR”). See generally Defendant’s

Supplemental Administrative Record (ABCMR Record of

Proceedings), ECF No. 15. In a later revised decision, the

ABCMR vindicated plaintiff of the wrongful harassment

allegations and provided him additional relief, including

reinstating plaintiff to Active Guard Reserve status,

and paying him back pay and allowances. See Plaintiff’s

Supplemental Administrative Record (Corrected ABCMR

Record of Proceedings) at 8, ECF No. 20. On February

22,2022, defendant filed a motion to dismiss stating that

“neither party continues to have a legally cognizable

interest in the outcome of this litigation, rendering

the case moot.” See Defendant’s Motion for an Order

Dismissing the Case at 3, ECF No. 22. On February 24,

2022, the Court granted defendant’s motion to dismiss and

dismissed plaintiff’s Complaint as moot pursuant to Rule

12(b)(1) of the Rules of the United States Court of Federal

Claims (“RCFC”). See Order of Dismissal, ECF No. 23.

On September 6,2022, plaintiff filed a motion seeking

relief from the Court’s judgment pursuant to RCFC

60(b).1 See generally Plaintiff’s Motion for Relief from

Judgment, ECF No. 25. On February 21,2023, the Court

ordered plaintiff to “file a brief detailing his outstanding

1. Plaintiff also cites Rule 59 of the Rules of the United States

Court of Federal Claims (“RCFC”) in his motion. See Plaintiff’s

Motion for Relief from Judgment at 1, ECF No. 25. However, a

motion to alter or amend judgment pursuant to RCFC 59 must be

brought no later than twenty-eight days after entry of judgment,

see R. Ct. Fed. Cl. 59(e), and plaintiffs motion was brought more

than six months after the Court dismissed his Complaint. Thus,

plaintiff’s claim is untimely under this theory of relief; however,

the Court will evaluate plaintiff’s motion under RCFC 60(b).'

14a

Appendix C

allegations and identifying the corresponding relief.”

See February 21, 2023 Order, ECF No. 46. On March 6,

2023, plaintiff filed his brief of outstanding allegations

and corresponding relief. See Plaintiff’s Outstanding

Allegations and Corresponding Relief, ECF No. 48

[hereinafter Pl.’s Suppl. Br.]. On April 7,2023, defendant

filed a response to Plaintiff’s Brief. See Defendant’s

Corrected Response to Plaintiff’s March 6, 2023 Filing,

ECF No. 53 [hereinafter Def.’s Suppl. Br.]. Plaintiff’s

Motion for Relief from Judgment is fully briefed and ripe

for review.

RCFC 60(b) states that:

On motion and just terms, the court may

relieve a party or its legal representative from

a final judgment, order, or proceeding for the

following reasons: (1) mistake, inadvertence,

surprise, or excusable neglect; (2) newly

discovered evidence that, with reasonable

diligence, could not have been discovered in

time to move for a new trial under RCFC 59(b);

(3) fraud (whether previously called intrinsic or

extrinsic), misrepresentation, or misconduct by

an opposing party; (4) the judgment is void; (5)

the judgment has been satisfied, released, or

discharged; it is based on an earlier judgment

that has been reversed or vacated; or applying

it prospectively is no longer equitable; or (6) any

other reason that justifies relief.

R. Ct. Fed. Cl. 60(b). “Rule 60(b) enables a court to grant a

party relief from a judgment in circumstances in which the

15a

Appendix C

need for truth outweighs the value of finality in litigation.”

Curtis v. United States, 61 Fed. CL 511,512 (2004) (quoting

12 James Wm. Moore et al., Moore’s Federal Practice

§ 60.02 [2] (3d ed. 2003)). However, “[rjelief from judgment

will not be granted ‘if substantial rights of the party have

not been harmed by the judgment.’” Id. (quoting Dynacs

Eng’g Co. v. United States, 48 Fed. Cl. 240,241-42 (2000)).

In his Brief of Outstanding Allegations, plaintiff

argues (1) the Army owes him additional back pay, and

(2) the Army has not fully removed the GOMOR from his

record. See generally Pl.’s Suppl. Br. However, plaintiff

identifies no mistake, newly discovered evidence, or fraud,

nor does he demonstrate that the judgement is void, the

judgment has been discharged, nor any other reason that

justifies relief under RCFC 60(b). Plaintiff argues for that

which he already received: back pay and removal of the

GOMOR from his record.

On December 1, 2022, the Defense Finance and

Accounting Service (“DFAS”) sent plaintiff a letter

explaining DFAS’s calculation of plaintiff’s back pay

entitlements and deductions. See Def.’s Suppl. Br., Ex.

5. In that letter, DFAS explained that although plaintiff

accrued $92,401.56 of back pay and allowances for the

separation period of August 2,2020 through July 31,2021,

DFAS was required to deduct $92,401.56 from that amount

for separation pay already paid out to plaintiff, an offset

for plaintiff’s civilian earnings during the separation

period, and other smaller deductions. Id. at 1. In other

words, DFAS calculated that it did not owe plaintiff

additional back pay beyond the amount he earned during

16a

Appendix C

the separation period because any additional payments

would “award[ ] him an unearned windfall” rather than

return him “to the same position he would have had if

he had not been separated from military service.” Id.

(citing Department of Defense Financial Management

Regulation Volume 7A, ch. 1,11 3.1.6). Thus, plaintiff has

not demonstrated that he is entitled to any additional

backpay beyond the amount DFAS calculated.

Additionally, on November 10,2021, the Department

of the Army, Army Soldier Records Branch, sent plaintiff

a letter explaining that his “records have been corrected

by removing General Officer Memorandum of Reprimand

(GOMOR) dated 21 March 2019, from your Army Military

Human Resource Record.” Def.’s Suppl. Br., Ex. 6; see

also Def.’s Suppl. Br., Ex. 8 11 4 (Declaration of Kenneth

Clayton) (“There is no GOMOR in any folder of 1SG Jones’

AMHRR.”). Three documents in a restricted folder of

plaintiff’s AMHRR reference the removal of the GOMOR,

but the GOMOR itself is gone. See Def.’s Suppl. Br., Ex.

8 111 5-7. Indeed, army regulations require that ABCMR

decisions and records of proceedings (such as the one

that removed the GOMOR from plaintiff’s AMHRR) be

included in the AMHRR. See Army Regulation 600-8-104,

App’x B-l (establishing a list of documents required to

be included in the AMHRR, including ABCMR decisions

and records of proceedings). Thus, plaintiff’s records

have already been corrected by the removal of plaintiff’s

reprimand.

As such, plaintiff has not demonstrated that he is

entitled to relief from the Court’s judgment. Plaintiff

17a

Appendix C

identifies no mistake, newly discovered evidence, or fraud,

nor does he demonstrate that the judgement is void, the

judgment has been discharged, nor any other reason

that justifies relief under RCFC 60(b). In any event, the

Court will not relieve plaintiff from the Court’s dismissal

because plaintiff’s “substantial rights ... have not been

harmed by the judgment.” Curtis, 61 Fed. Cl. at 512

(quoting Dynacs Eng’g Co., 48 Fed. Cl. at 241-42).

Therefore, for the reasons set forth above, plaintiffs

Motion for Relief from Judgment is hereby DENIED.

Furthermore, all other pending motions are DENIED

AS MOOT.

IT IS SO ORDERED.

/&/ Loren A. Smith

Loren A. Smith,

Senior Judge

18a

APPENDIX D — ORDER OF THE UNITED

STATES COURT OF FEDERAL CLAIMS,

FILED FEBRUARY 24, 2022

IN THE UNITED STATES

COURT OF FEDERAL CLAIMS

No. 21-801

MAXWELL JONES,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

ORDER

Filed: February 24,2022

On January 25,2021, plaintiff, proceeding pro se, filed a

complaint with this Court, alleging that he was wrongfully

accused of sexual harassment and discharged from the

United States Army. See generally Complaint, ECF No.

1. In his complaint, plaintiff requested reinstatement,

back pay, and correction of his military records, including

removal of a General Officer Memorandum of Reprimand

(“GOMOR”). See id. at 36. On July 23,2021, the Army Board

for Correction of Military Records (“ABCMR”) granted

plaintiff partial relief by removing the GOMOR from

his official personnel record. See generally Defendant’s

19a

Appendix D

Supplemental Administrative Record (ABCMR Record of

Proceedings), ECF No. 15. The ABCMR concluded that

plaintiff’s petition “demonstrated by a preponderance

of evidence that a procedural error occurred that was

prejudicial to [plaintiff], and ... that the contents of the

GOMOR are substantially incorrect that would support

removal.” See id. at 9.

Later, in a revised decision, the ABCMR vindicated

plaintiff as he “provided evidence that clearly exonerates

him or shows that there was a clear injustice.” See Plaintiff’s

Supplemental Administrative Record (Corrected ABCMR

Record of Proceedings) at 8, ECF No. 20. Accordingly,

the ABCMR granted full relief, including: (1) removing

the GOMOR from plaintiff’s official personnel file; (2)

removing plaintiff from the Qualitative Management

Program; (3) reinstating plaintiff to Active Guard Reserve

status; (4) voiding plaintiff’s date of separation and paying

all back pay and allowances; and (5) presenting plaintiff’s

military record before a Special Selection Board, if

eligible, for promotion consideration. See Plaintiff’s

Supplemental Administrative Record at 9, ECF No. 20.

On February 22, 2022, defendant filed a motion to

dismiss on the basis that “neither party continues to have a

legally cognizable interest in the outcome of this litigation,

rendering the case moot.” See Defendant’s Motion for an

Order Dismissing the Case at 3, ECF No. 22. The Court

agrees that the ABCMR’s corrected decision has granted

all the relief sought in plaintiff’s Complaint, leaving no

justiciable issues upon which this Court can render a

decision.

20a

Appendix D

For the reasons set forth above, defendant’s

Motion to Dismiss is hereby GRANTED. Accordingly,

plaintiff’s Complaint is DISMISSED, pursuant to Rule

12(b)(1) of the Rules of the Court of Federal Claims. The

outstanding motions remaining in this case—defendant’s

Second Motion for Extension of Time to Respond to

the Complaint, ECF No. 10 and plaintiff’s Motion for

Entry of Default Judgment, ECF No. 12—are DENIED

AS MOOT. The Clerk of Court is directed to take the

necessary steps to dismiss this matter.

IT IS SO ORDERED.

/s/ Loren A. Smith

Loren A. Smith,

Senior Judge

21a

APPENDIX E — PANEL REHEARING OF THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT,

DATED JANUARY 22, 2024

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

2023-1862

MAXWELL JONES,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

Appeal from the United States Court of

Federal Claims in No. l:21-cv-00801-LAS,

Senior Judge Loren A. Smith.

ON PETITION FOR PANEL REHEARING

AND REHEARING EN BANC

Before Moore, Chief Judge, Lourie, Dyk, Prost, Reyna,

Taranto, Chen, Hughes, Stoll, Cunningham, and Stark,

Circuit Judges.1

Per Curiam

1

Circuit Judge Newman did not participate.

22a

Appendix E

ORDER

On December 18,2023 Maxwell Jones filed a combined

petition for panel rehearing and rehearing en banc [ECF

No. 26]. The petition was referred to the panel that heard

the appeal, and thereafter the petition was referred to the

circuit judges who are in regular active service.

Upon consideration thereof,

It Is Ordered That:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue January 29,2024.

For the Court

/s/ Jarrett B. Perlow

Jarrett B. Perlow

Clerk of Court

January 22. 2024

Date

23a

APPENDIX F — DEPARTMENT OF THE

ARMY CORRESPONDENCE WITH

MR. MAXWELL JONES

DEPARTMENT OF THE ARMY

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

251 18TH STREET SOUTH, SUITE 385

ARLINGTON, VA 22202-3531

SAMR-RBA

23 July 2021

MEMORANDUM FOR Commander, US Army Human

Resources Command, 1600 Spearhead Division Avenue,

Department 100, Fort Knox, KY 40122-5100

SUBJECT: Army Board for Correction of Military

Records Record of Proceedings for Jones, Maxwell, SSN

AR20200005522

1. Under the authority of Title 10, United States Code,

section 1552, the recommendation of the Army Board

for Correction of Military Records is approved, and I

direct that all the Department of the Army records of

the individual concerned be corrected as shown under

Board Determination/Recommendation in the Record of

Proceedings in the subject case enclosed.

2. Request necessary administrative action be taken

to effect the correction of records as indicated no later

than 27 December 2021. Further, request that the

individual concerned and counsel, if any, as well as

any Members of Congress who have shown interest be

advised of the correction and that the Army Board for

24a

Appendix F

Correction of Military Records be furnished a copy of

the correspondence.

BY ORDER OF THE SECRETARY OF THE ARMY:

7/23/2021

Sincerely,

laL

FOR DENNIS W. DINGLE

Director

Signed by: PLOOSTER.LESLIE.D.1146614740

25a

Appendix F

DEPARTMENT OF THE ARMY

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

251 18TH STREET SOUTH, SUITE 385

ARLINGTON, VA 22202-3531

July 27,2021

Dear Mr. Jones:

The Army Board for Correction of Military Records

rendered a decision on your application to correct your

military records. Partial relief to your request was

granted. Enclosed is a copy of the Record of Proceedings

of the Board for your information.

The decision in your case is final. You may request

reconsideration of that portion of your application which

was denied by the Board only if you can present new

evidence or argument that was not considered by the

Board when it denied that part of your original application.

The approved Record of Proceedings has been

forwarded to the U.S. Army Human Resources Command.

They will take action to correct your records and will

provide you with official notification as soon as the directed

correction has been made. However, due to the large

number of cases in process, please be advised that it may

be several months before corrections are completed. Any

inquiry concerning your case should be addressed to the

Commander, US Army Human Resources Command,

1600 Spearhead Division Avenue, Department 100, Fort

Knox, KY 40122-5100.

26a

Appendix F

A copy of the Board’s decision and proceedings

has been furnished to the counsel you listed on your

application, Law Office of Philip D. Cave, 1318 Princess

Street, Suite 200, Alexandria, VA 22314.

7/27/2021

Sincerely,

/s/

FOR DENNIS W. DINGLE

Director

Signed by: PLOOSTER.LESLIE.D.1146614740

27a

Appendix F

DEPARTMENT OF THE ARMY

U.S. ARMY HUMAN RESOURCES COMMAND

1600 SPEARHEAD DIVISION AVENUE, DEPARTMENT 420

FORT KNOX, KY 40122-5400

November 10,2021

Army Soldier Records Branch

Dear Mr. Jones:

This letter is in reference to the Army Board

for Correction of Military Records, Docket Number

AR20200005522. Under the provisions of Title 10 of the

United States Code, Section 1552, your records have been

corrected by removing General Officer Memorandum of

Reprimand (GOMOR) dated 21 March 2019, from your

Army Military Human Resource Record.

The point of contact for this action is Galen L.

Erisman, at galen.l.erisman.civ@mail.mil.

Sincerely,

/s/

Dean M. Hiza

Chief, Army Soldier Records Branch

28a

Appendix F

BOARD VOTE:

Mbr 1 Mbr 2 Mbr 3

:

:

:

RCS JNM KJS

:

:

:

:

:

:

GRANT FULL RELIEF

GRANT PARTIAL RELIEF

GRANT FORMAL HEARING

DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient

to warrant a recommendation for partial relief. As a result,

the Board recommends that all Department of the Army

records of the individual concerned be corrected to show

removal of general officer memorandum of reprimand

(GOMOR), dated 21 March 2019, from his Army Military

Human Resource Record (AMHRR). Recommend

referring the applicant’s records to Human Resources

Command (HRC) to be reviewed for re-boarding of

Qualitative Management Program (QMP) to determine

if he should have been discharged.

7/19/2021

/s/ Rhonda Cunningham-Still

CHAIRPERSON

Signed by. CUNNINGHAM-STILL.RHONDA.E.1229659134

I certify that herein is recorded the true and complete

record of the proceedings of the Army Board for

Correction of Military Records in this case.

29a

Appendix F

REFERENCES:

1. Army Regulation 15-185 (Army Board for Correction

of Military Records) prescribes the policies and procedures

for correction of military records by the Secretary of the

Army acting through the ABCMR. The ABCMR begins

its consideration of each case with the presumption of

administrative regularity. The applicant has the burden

of proving an error or injustice by a preponderance of the

evidence.