Petition for Writ of Certiorari — Fraser v. United States, 111 S. Ct. 785 (1991) (No. 90-840)

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IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1990

DAVID LARRY FRASER, Petitioner,

Vv.

UNITED STATES, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

D. Larry Fraser

10850 SW 112 Ave.

Miami, FL 33176

(305) 595-5533

Pro Se

November 21, 1990

QUESTIONS PRESENTED

1. Does a Military Reservist have

a legally protected right to participate

in those activities which the statutes

and regulations require for the maintenance

of Military readiness, for continued

membership in the Reserves, for the

receipt of pay, and/or to qualify for

deferred retirement benefits?

2. Is it error for the United

States Claims Court to dismiss a complaint,

by Summary Judgment, when there are

important allegations in the complaint

which can not, or have not, be resolved

by the facts in the record and where

the loss of ancillary jurisdiction may

preclude litigation of some of these

unresolved issues.

3. Are the standards of the "half-

a-loaf" doctrine, in the Claims Court,

too broad to be applied with consistency?

TABLE OF CONTENTS

QUESTIONS PRESENTED...... ecoceeeld

TABLE OF AUTHORITIES.........ili

OPINIONS BELOW..-........ ccoeold

JURISDICTION. .ccccccccccccsceed

CONSTITUTIONAL PROVISIONS,

STATUTES, AND REGULATIONS

ESSE ST CTT TCT Eee

STATEMENT OF THE CASE.........8

REASONS FOR GRANTING THE WRIT

I. The right of milit@ry

reservists to participate in

the Reserves is fundamental

to the accomplishment of

National objectives and to

the welfare of all Reservists.

2. ee ee ne ew ae oD ee eee ee eee eee es Se 8 24

II. Judicial Efficiency and

fundamental fairness dictate that

all important issues must be

resolved or remanded, particularly

where loss of ancillary jurisdiction

may preclude future litigation.

TEPEVTECCECEETTLEP ET TEE ee

III. The standards of the

Half-a-loaf doctrine in the claims

court are too broad to be

DEE cc ke wecnccnseescese cH

ran eee |

APPENDIX.... —e

TABLE OF AUTHORITIES

Cases:

Armstrong v. United States, 205

i a a a754 tobi S98. 8 8 © ee eseeee#ee#ee#e#« 34

Collins v. United States, 14 Cl.

Ct. 746, aff'd,865 F.2d 269 (Fed. Cir.

1968 ) 0 655000 6600086660680086865 -43, 48

Debow v. United States, 193 Ct.

Cl. G99 CAP TOJcccccecsseecssceces s0+0042

Denton v. United States, 204 Ct.

Cl. JOB CEP lGs & 60.0:66006666060 606006658 48

Duhon v. United States, 198 Ct.

Cl. 566 CAPO 6 06660666 66660006666 00888 47

Hankins v. United States, 183 Ct.

Cl. JG Gems 66666066 6e 6h 6b OR SES OSE COs 42

Herzog v. United States, 167 ee

Cl, B22 CHOOS) 66560666 666666666660606% 34

Homcy v. United States, 210 Ct.

Cl. 332 CSP seb ccceceecceseces veeeneee4®

Olenick v. Brucker, 173 F.Sup.

Q93 (EPRee 60 66 606666666666 06666 be 86H 8% 24

Sanders v. United States, 219 Ct.

Cl. 269 Cael ehecescdeeewcsecececeS@sy 42

Skinner v. United States, 219 Ct.

Cl. 324 ShUU90 6000005600606 Sees béeens 23

United States v. Testan, 424 U.S.

392 CAP FO) 4 on 6686656646 6068 666.006 em 80888 33

Yee v. United States, 210 Ct. 3

TS2 (FFs) 66 66006 deco ceases sccondSe 47

Miscellaneous:

Coast Guard Law Buliiten, June,

iii

Note: References to the appendix

are indicated by (App. X), where "X"is

the page number.

OPINIONS DELIVERED BELOW

There are no reported opinions.

The following opinions are reprinted

in the Appendix:

1. The July 24, 1990 Decision

of the United Stated Court of Appeals

for the Federal Circuit. (App. 4)

2.; Orders of the United States

Claims Court dated October 24, 1989

(App. 66); September 14, 1989 (App.

63); me 17, 1989 (App. 65); April

3, 1989 (App. 22); and May 9, 1988 (App.

14).

3. The November 21, 1880 Board

for Corrections of Naval Records review

and recommendation report (App. 4).

’

JURISDICTION

The date of entry of the Judgment

of the United States Court of Appeals

for the Federal Circuit is July 24,

1990. The decision there affirmed a

October 25, 1989 Judgment of the United

States Claims Court which had jurisdiction

under 28 U.S.C. 1491.

On October 17, 1990, Chief Justice

Renguist ordered that the time for filing

this petition be extended to and including

November 21, 1990.

The Jurisdiction of this Court

to review the judgment of the Federal

Circuit is invoked under 28 U.S.C. 1254(1).

——E——eeeeEeE ee

Constitutional Provisions, Statutes,

and Regulations involved

Amendment V of the United States

Constitution

No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a Grand Jury, except in

cases arising in the land or naval forces,

Or in the Militia when in actual service

in time of War or public danger; nor

Shall any person be subject for the

same offence to be twice put in jeopardy

of life or limb; nor shall be compelled

in any criminal case to be a witness

against himself, nor be deprived of

life, liberty, or property, without

due process of law; nor shall private

property be taken for public use, without

just compensation.

28 U.S.C. 1491. Claims against United

States generally; actions involving

Tennessee Valley Authority

(a)(1) The United States Claims

Court shall have jurisdiction to render

judgment upon 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 damages in cases not

sounding in tort. For the purpose of

this paragraph, an express or implied

contract with the Army and Air Force

Exchange Service, Navy Exchanges, Marine

Corps Exchanges, Coast Guard Exchanges,

or Exchange Councils of the National

Aeronautics an Space Administration

shall be considered an express or implied

contract with the United States.

= 3 «

(2) To provide an entire remedy

and to complete the relief afforded

by the judgment, the court may, as an

incident of and collateral to any such

judgment, issue orders directing

restoration to office or position,

placement in appropriate duty or retirement

status, and correction of applicable

records, and such orders may be issued

to any appropriate official of the United

States. In any case within its

jurisdiction, the court shall have the

power to remand appropriate matters

to any administrative or executive body

Or Official with such direction as it

may deem proper and just. The Claims

Court shall have jurisdiction to render

judgment upon any claim by or against,

Or dispute with, a contractor arising

under section 10(a)(1) of the Contract

Disputes Act of 1978.

(3) To afford complete relief on

any contract claim brought before the

contract is awarded, the court shall

have exclusive jurisdiction to grant

declaratory judgments and such equitable

and extraordinary relief as it deems

proper, including but not limited to

injunctive relief. In exercising this

Jurisdiction, the court shall give due

regard to the interests of national

defense and national security.

(b) Nothing herein shall be construed

to give the United States Claims Court

jurisdiction of any civil action within

the exclusive jurisdiction of the Court

of International Trade, or of any action

against or founded on conduct of, the

Tennessee Valley Authority, or to amend

or modify the provisions of the Tennessee

Valley Authority Act of 1933 with respect

to actions by or against the Authority.

10 U.S.C. 1552. Correction of military

records: claims incident thereto

(a) The Secretary of a military

department, under procedures established

by him and approved by the Secretary

of Defense, and acting through boards

of civilians of the executive part of

that military department, may correct

any military record of that department

when he considers it necessary to correct

an error or remove an injustice. Under

procedures prescribed by him, the Secretary

of Transportation may in the same manner

correct any military record of the Coast

Guard. Except when procured by fraud,

a correction under this section is final

and conclusive on all officers of the

United States.

(b) No correction may be made under

subsection (a) unless the claimant or

his heir or legal representative files

a request therefor before October 26,

1961, or within three years after he

discovers the error or injustice, whichever

is later. However, a board established

under subsection (a) may excuse a failure

to file within three years after discovery

if it finds it to be in the interest

of justice.

pay, from applicable current

appropriations, a claim for the loss

of pay, allowances, compensation,

emoluments, or other pecuniary benefits,

or for the repayment of a fine or

forfeiture, if, as a result of correcting

a record under this section, the amount

is found to be due the claimant on account

of his or another's service in the Army,

Navy, Air Force, Marine Corps, or Coast

Guard, as the Case may be. If the claimant

is dead, the money shall be paid, upon

demand, to his legal representative.

ene

However, if no demand for payment is

made by a legal representative, the

shall be paid--(1l) to the surviving

spouse, heir, or beneficiaries, in the

order prescribed by the law applicable

to that kind of payment; (2) if there

is no such law covering order of payment,

in the order set forth in section 2771

of this title; or (3) as otherwise

prescribed by the law applicable to

that kind of payment. A claimant's

acceptance of a settlement under this

section fully satisfies the claim

concerned. This section does not authorize

the payment of any claim compensated

by private law before October 25, 1951.

(d) Applicable current appropriations

are available to continue the pay,

allowances, compensation, emoluments,

and other pecuniary benefits of any

person who was paid under subsection

(c), and who, because of the correction

of his military record, is entitled

to those benefits, but for not longer

than one year after the date when his

record is corrected under this section

if he is not reenlisted in, or appointed

Or reappointed to, the grade to which

those payments relate. Without regard

to qualifications for reenlistment,

Or appointment or reappointment, the

Secretary concerned may reenlist a person

in, Or appoint or reappoint him to,

the grade to which payments under this

section relate.

(e) No payment may be made under

this section for a benefit to which

the claimant might later become entitled

under the laws and regulations administered

by the Administrator of Veterans' Affairs.

10 U.S.C. 262. Purpose

The purpose of each reserve component

is to provide trained units and qualified

persons available for active duty in

the armed forces, in time of war or

national emergence and at such other

times as the national security requires,

to fill needs of the armed forces whenever,

during, and after the period needed

to procure and train additional units

and qualified persons to achieve the

planned mobilization, more units and

persons are needed than are in the regular

components.

10 U.S.C. 278. Dissemination of

information

The Secretary of Defense shall

require the complete and current

dissemination, to all Reserves and to

the public, of information of interest

to the reserve components.

10 U.S.C. 273. Standby Reserve:

composition; inactive status list

(a) The Standby Reserve consists

of those units or members , or both,

of the reserve components, other than

those in the Ready Reserve or Retired

Reserve, who are liable for active duty

only as provided in sections 672 and

674 of this title.

(b) An inactive status list shall

be maintained in the Standby Reserve.

Whenever an authority designated by

the Secretary concerned considers that

it is in the best interest of the armed

force concerned, a member in the Standby

Reserve who is not required to remain

a Reserve, and who cannot participate

in prescribed training, may, if qualified,

be transferred to the inactive status

list under regulations to be prescribed

» > =

inact teaiieaemlle

by the Secretary concerned. These

regulations shall fix the conditions

under which such a member is entitled

to be returned to an active status.

@ Reserve is not eligible for pay or

promotion.

10 U.S.C. 277. Regular and reserve

components: discrimination prohibited

Laws applying to both Regulars

and reserves shall be administered without

discrimination---(1) among Regulars;

(2) among Reserves; and (3) between

Regulars and Reserves.

STATEMENT OF THE CASE

After five years of active duty,

and completion of all obligated duty,

petitioner was discharged from the U.S.

Marine Corps in September of 1967 and

accepted a Captain's commission in the

Marine Corps Reserve. He was provided

no specific information regarding his

Reserve obligations or how to fulfill

them but informed the Marine Corps that

his remoteness (about 350 miles) from

an active Marine Reserve Aviation unit,

and the nature of his work, would inhibit

his potential USMCR activity.

In August of 1988, petitioner went

to work as a pilot for Air America in

S.E. Asia. That September he informed

the USMCR that his work and his remote

location would make him unavailable

for Reserve training sessions and stated

that the fact that he and his family

were now located in S.E. Asia could

impose a personal hardship if he were

mobilized, but he did not request exemption

or delay if mobilized. In late 1987,

and at several other times until 1971,

petitioner contacted the USMCR to ask

if there was anything he could do to

become an active participant in the

Reserve. He was informed (erroneously)

that, as long as he was outside the

United States, there was no way to

participate.”

In the summer of 1971, petitioner

was notified by the USMCR that they

were planning to discharge him because

of inactivity. He reminded them of

his situation, asked to be retained,

and indicated that he would attempt

to do whatever was necessary to be

retained. In September, 1971, he was

notified that a disposition board had

recommended that he be discharged.

| He replied that he wished to appeal

the recommendation and that "Once again,

I am more that willing to participate

with an active unit in the Far East

1. Petitioner had been moved from an

Active Status List (ASL) to an Inactive

Status List (ISL) in Sept., 1968. A

Reservist must be in the ASL to participate

(10 U.S.C. 273). A Reservist requesting

participation is, therefor, necessarily,

requesting membership in the ASL, whether

he knows it of not. There are several

ways to participate when in the ASL:

1. Belong to an active reserve unit,

2, occasional duty with active or reserve

units, 3. Take correspondence courses.

Or otherwise gualify for retention in

= 16 «

any way possible. I need, however,

your advisement on how I may do this

and the procedures involved." On November

4th he was notified that there was no

provision for appeal, and on November

17, 1971 he was discharged.

In 1974, petitioner returned to

the United States. He became a member

of the U.S. Army National Guard in January

of 1976 as a Chief Warrant Officer.

In 1977 Petitioner was invited

by the Commander of a Marine Corps Reserve

Rifle Company to affiliate with his

Command. Petitioner attempted, therefor,

to transfer to the USMCR at his old

rank of Captain, and he obtained a release

from the ARNG conditioned upon his entry

into the USMCR. The Marine Corps, however,

would not consider his request unless

and until he became discharged from

the Army National Guard, and they refused

to indicate how they would respond to

- 22 «=

such an application once a discharge

from the ARNG was completed. When asked

for an explaination, Headquarters, Marine

Corps responded:

"The Director, Judge Advocate

Division, has advised that you

may not be reinstated in the Marine

Corps Reserve (as opposed to

reappointment) because to do so

would be in violation of the statute

which forbids a person from holding

a commission in two branches of

the service at the same time.

The Director, Judge Advocate Division,

has further advised that a conditional

release from the National Guard

would not suffice in that it would

not sever you from your present

; status as a Chief Warrant Officer

in the Nation Guard.

"Therefore, the two options

which remain available to you are

those which have been described

in previous correspondence, i.e.

inter-service transfer as a CWO,

resignation of your commission

as a CWO in the Guard and application

for reappointment in the Marine

Corps Reserve."

(All this is recorded here because

there has been much confusion by

the Government, and the Courts

below, regarding what the petitioner

could have, or should have, done

to resolve his status of being

commissioned in two services at

the same time. This "dual-status"

resulted from a Military Corrections

= {2 «

i —

Board action that will be detailed

in the next few paragraphs. There

was no dual-status before the

Corrections board and the Corrections

Board's actions had nothing to

do with this 1977-1979 transfer

application.) (App. 26, 61)

On June 10, 1979, the petitioner,

having learned that the Marine Corps

had misinformed him A. that there was

no means for participation in the Reserves

while outside the U.S., and B. that

there was no means to appeal the discharge

decision, submitted an application to

the Board for Correction of Naval

re ae This Correction Board

application requested to be put, as

nearly as possible, in

2. The petitioner also learned that

there were serious procedural deficiencies

in the Disposition Board's proceedings-

- likely made inevitable by processing

scores, sometimes hundreds, of files

with a Disposition Board assembled every

four months for a single day.

the position the petitioner would have

been if he had received accurate

information by: a. an invalidation

of the discharge and reinstatement in

the USMCR, b. instatement of rank and

retirement credit as though full

satisfactory participation in the Reserves

had actually occurred, and c. compensation

for loss of pecuniary benefits which

would have been received if he had

satisfactorily accomplished the Reserve

participation he could reasonably have

completed if he had been correctly advised

of his options. (Military Corrections

Boards have the power to change records

so as to give credit for service not

actually performed--this is called

"constructive" credit or service.)

The Corrections Board first summarily

dismissed the application (the petitioner

has reason to believe that this was

because of the mistaken belief that

o 16 «

the Marine Corps would not recommend

corrective action), then, when Headquarters

Marine Corps submitted a recommendation

for remedial action, the Board withdrew

the dismissal and recommended to the

Secretary of the Navy that the petitioner

be reinstated but that all other requests

be denied. The Board's findings concluded:

"Upon review and consideration

of all the evidence of record the

Board now finds the existence of

an injustice warranting corrective

action(.) (T)he Board's finding

in this regard is based upon

petitioner's overall record and

particularly the fact that he was

never made aware of either his

Reserve Obligations or options

available for fulfilling those

obligations, despite his attempts

to discover them."

The Board also recommended that

the Secretary take action with regard

to the Marine Corps' recommendation

(presumably this is with regard to the

sstatement in the USMC's letter to the

Board that:

"since Mr. Fraser currently is

o 3% «

a member of the Army National Guard,

it its recommended that this request,

after a determination is made,

be returned to this Headquarters

(Code RESP-3) for resolution

concerning his dual status.").

(emphasis added)

The petitioner was notified of

the Board's decision, and it's approval

by the Secretary of the Navy, ina letter

dated January 26, 1981. By September,

1981, petitioner had received

documentation demonstrating that he

was again a Captain in the USMCR. He

took these documents to HMA-773, the

USMCR Attack Helicopter Squadron in

Atlanta, and made application for

membership in the squadron. (App.71)

The Squadron Commander stated that the

petitioner would be a welcome member,

but that the paperwork had to be processed

by higher authority, and that no one

knew what to do to get the petitioner

out of the Army Reserve and into the

Marine Reserve.

’

Many phone calls and additional

correspondence ensued. Headquarters

Marine Corps and the Marine Reserve

Support Center in Kansas City continued

to state that they would take care of

it. Nothing was done. More calls were

made, HMA-773 became tired of dealing

with it, personnel changed, and the

process continued. One clerk at the

Reserve Support Center confided that

she didn't think anyone knew what to

do and that it would probably take Court

action.

In the meanwhile administrative

actions were occuring. Petitioner was

put on the Active Status List (ASL)

of the USMCR (7/81), removed from the

ASL for failure to participate (3/83)

(although the application to HMA-773

had been ongoing for about 18 months),

He was considered and rejected in '83

for promotion to Major (without any

« $9 «

Wii

performance records or any explanation

of their absence), and he was discharged

in 1987 (without notice of the discharge

Disposition Board or opportunity to

contest or comment, and after the

institution of this suit in the Ciaims

Court).

Petitioner filed a complaint with

the Claims Court on January 20, 1987

invoking jurisdiction under 28 U.S.C.

1491. Defendant moved for dismissal

On jurisdictional and statute of

limitations bases. On May 9, 1988 the

Claims Court issued an order denying

dismissal and directing the Defendant

to serve a response. (App. 14)

The Government, on June 8, 1988,

renewed it's motion to dismiss, or in

the alternative, a motion for summary

judgment, and petitioner responded with

a cross motion for summary judgment

on September 4, 1988.

o 22. «

On April 3, 1989, the Claims Court

ordered dismissal of all

petitioner/plaintiff's claims except

for an additional increment of longevity

pay resulting from the constructive

inactive service indicated by the

reinstatement. (App. 22) This increment

to be added to pay received for Army

Reserve and Army National Guard duty

performed between 1976 and 1968. Parties

were ordered to file briefs regarding

this longevity pay. The

petitioner/plaintiff moved for

reconsideration of the Court's order

on May 12, 19869 and the Government

responded on August 10, 1969, together

with @ proposed accounting of the pay

Gue the plaintiff as a result of the

increased longevity. The Court denied

the motion for reconsideration by an

August 17, 1989 order (App. 55), and

on September 14, 1969 ordered a plan

- i9 -

for final resolution of the amount of

the longevity pay due. (App.63)

The parties filed status reports

on October 12 (plaintiff) and October

16 (defendant) of 1989. The plaintiff

agreed not to contest the defendant's

accounting of moneys due, gave notice

of appeal, and stated the ancillary

issues which remained unresolved: 1.

reconciliation of retirement points

between the Army and the Marine Corps

for the time while he was a member of

both services,

2. a claim for invalidation of the

removal of the plaintiff from the USMCRK

Active Status List for inactivity while

he was actively attempting to participate

with HMA-773, 3. the issue of plaintiff

had a legal right to participate with

HMA-773 (or, somehow, participate in

the Marine Corps Reserves) as he was

attempting to do while in the dual status,

» 20 «

—" |

4. a ciaim for invalidation of the

1987 discharge from the USMCR without

notice and while the Court action was

in progress, 5. a claim for invalidation

of the 1982 Promotion Board proceeding

where there were no document in the

record upon which to make a selection

judgment nor any explanation of their

absence, 6. a4 claim of right to be

heard on the contentions of due process

violations in the Corrections Board

and in the 197] Disposition Board

proceedings, as the evidence to

Substantiate these claims was not apparent

on the record and would require discovery,

maybe trial, to prove.

The Claims Court ordered, on October

24, 19869 that final judgment be entered

for $1,484.65 (the agreed longevity

pay amount) and that plaintiff had

established entitlement to no other

Claims. (App.66) This decision was

= 2) e«

—"

reflected in an October 25, 1989 Judgment.

(App. 68)

Plaintiff/petitioner provided notice

of appeal to the United States Court

of Appeals for the Federal Circuit on

December 12,1989 and filed an appellant's

informal brief on January 1, 1990.

The Government filed an appellee's informal

brief on February 7, 1990 to which

petitioner replied by letter to the

Clerk on February 17th.

The United States Court of Appeals

for the Federal Circuit issued an opinion

on July 24, 1990. (App. 69) This opinion

aftirmed, on the basis of the Claims

Court's opinion" and a Judgment was

entered the same day. (App. 70)

REASONS FOR GRANTING THE WRIT

Petitioner now respectfully comes

to this Court t% attempt to demonstrate:

A. that there are important and

fundamental rights embodied in the

relationship between a military Reservist

and his Country which warrant strong

legal protection, and B. that there

has been a failure of the systems

established for the protection of these

rights which warrants intervention by

this Court for the clarification and

preservation of the unique and significant

relationship between military Reservists

and their country.

*This great nation does not wish

to treat the personnel of its armed

services with dishonor and indifference,

and the law will not permit it. Skinner

v. United States, 219 Ct. Cl. 322, 331.

(1979)

The right of Military Reservists

to participate in the Reserves

is fundamental to the accomplishment of

National Objectives

and to the welfare of all Reservists

The purpose of the military Reserves,

as stated in 10 U.S.C. 262, is to provide

trained units and gualified persons

for war, national emergency, and other

national security reguirements. The

obligation of the individual inactive

Reservist to this plan was made clear

by then District Judge Sirica when he

wrote: "The reservist on inactive duty,

on the other hand, is in a status of

relatively reduced military responsibility.

But he has an obligation to maintain

himself ina state of readiness for

full-time military duty", Olenick v.

Brucker, 173 F.Sup. 493, 496 (1959)

This obligation on the part of

the Reservist implicitly demands, a

» 28 «

return obligation on the part of the

Military to provide an opportunity for

the Reservist to fulfill his duty.

The Military has addressed this by

providing monthly training drills for

Reserve Unit members, active duty for

training (ADT) opportunities (usually

on an annual basis for 2-4 weeks), "points-

only" drill projects where the individual

has the opportunity to do various things

toward maintaining readiness and acquiring

retirement points, though not in a paid

Status, and military correspondence

courses which provide instruction on

topics pertinent to readiness training.

Having provided these mechanisms

for readiness training doesn't accomplish

the the national objectives, however,

if the Reservists aren't made aware

of them. Many, maybe most Military

personnel being discharged into the

Reserves from active duty are only aware

» 28 @

of Active Reserve Unit drill mechanisms

for participation in the Reserves.

If they don't goon join an Active Unit,

and if no one makes them aware of the

other possibilities, they may never

fulfill their obligation (they may never

even become aware of them). The next

question, therefor, is: what is the

extent of the obligation of the Military

Reserves to make its members aware of

their readiness responsibility and their

option for fulfilling them?

This question is addressed by 10

U.S.C. 27%. which states: “The Secretary

of Defense shall require the complete

and current Gissemination, to all Keserves

and to the public, of information of

interest to the Keserve components.

The intent of this statute, with respect

to the questions under examination here,

is clarified by the legislative history

of the Armed Services Reserve act of

- 26 -

1952, from which section 278 came.

Senate Report No. 1795, reported in

1952 U.S. Cong. and Ad. News 2005, 2045

states:

"This section requires the

dissemination of information to

members of the reserve components

and to the general public, since

it is essential that all interested

persons be informed of their

obligations and the manner in which

Obligations may be fulfilled."

Precisely what the denomination

Or the magnitude of the right that this

invests in an individual Reservist,

petitioner will not presume to advise

this court. He has been unable to find

it specifically defined. It 1s, however,

a right that is implicitly of great

importance, to the public interest as

well as to any given Reservist.

One of the reasons that this right

is so important to the public is that

many of the the motivations that prompt

a military man to remain in the Reserves,

« 29 «

once he has fulfilled his commitment,

are abstract, and hard to explain.

They are wound up with concepts of duty,

service, and patriotism. These important

motivations are, however, also tangled

in perceptions of fair play and

anticipations associated with more tangible

things.

The tangible benefits of fulfilling

his readiness obligations are easily

identified, even if the degree of

motivation they produce is not. They

are the only things for which the Military

has clearly provided a real or implied

promise of delivery in return for his

dutiful service. The expectation of

these tangibles is, as mentioned, snarled

back into the incentive of the intangible

motivators, as well as providing their

Own inducement to continue service.

If the Reservist knows, or believes,

that the Government has no obligation

= 28 «

to provide him a reasonable opportunity

to satisfy his reserve commitment, and,

concomitantly, to receive the material

benefits of doing so, his entire

motivational orientation will, almost

certainly change. The effects this

could have on the Reserves and the

satisfaction of their National purpose

is very great.

This brings us to the situation

of the petitioner. From September of

1969 to November of 1971 he was actively

attempting to discover a means of

participation in his Reserve organization.

He didn't know precisely what his

Obligations were, but he attempted to

find out by asking the organization

to which he owed them. The Marine Corps

failed in their duty to inform him of

his obligations and how to fulfill them.

They erroneously told him there was

no way. This failure was the default

- 20 «

ton Cs Ae AA an gh apell

Wate e ‘oy

of obligation from which all the other

lamentable things that have occurred

over the past twenty-odd years arose.

The petitioner had a duty to maintain

readiness and the Marine Corps had a

duty to inform him how to accomplish

this. He made a reasonable effort to

satisfy his duty and they flatly failed

in theirs. The Corrections Board action

of reinstating him into the ISL did

nothing to correct the USMCR error because

it did not provide, constructively,

the satisfaction of the readiness

obligation he was attempting to fulfill.

Petitioner now asks you to declare that

his right to do his duty, and to recieve

the benefits thereof, is a legally

enforceable right.

Whatever you decide the magnitude

and legal designation of a Resevist's

right to participate in the Reserves

to be, the petitioner was possessed

» 6 «

of it in 1971 and he was possessed of

it againin 1981, after reinstatement

by the Corrections Board. When he

attempted to participated with an active

unit in 1981, however, the Marine Corps

would not permit him to do so. They

would not take the steps necessary to

remove him from the very dual status

position about which they had noted

to the Corrections Board a need for

resolution. (App. 2, 17) In the

Headquarters Marine Corps recommendation

letter to the Board they wrote: "since

Mr. Fraser is currently a member of

the Army National Guard, it is recommended

that this request, after a determination

is made, be returned to this

Headquarters...for resolution concerning

his dual status."

In 1981,the petitioner made formal

application to an active Reserve unit

which was willing to take him in. (App.

~ $2 «

i ee ee

net AL Uke

71) He offered his resignation from

the Army Reserve and the Army indicated

that they would release him. The Marine

Corps, however, did nothing. Meanwhile,

they moved him back off the Active Status

List because of inactivity in 1983,

and they rejected him for promotion

in 1982 on the basis of a record that

showed fifteen solid years of inactivity.

Then in 1987 they discharged him without

providing him notice of the discharge

disposition Board, and while this suit

was underway.

The Claims Court has found no

1968-1971 military readiness participation

right, of a nature which the Corrections

Board was legally bound to protect,

nor any 1981-1987 right which the Claims

Court must protect. The Federal Circuit

agrees. If Reservists have the legally

protected right to do what they are

duty bound to do, therefor, this court

« 23>'-

must so declare.

; Regarding jurisdiction of the Claims

Court: There has been much to do with

regard to the jurisdiction of this case

in the Claims Court, particularly with

‘ respect to the necessity of a statute

authorizing compensation, as spelled

out in United States v. Testan, 424

U.S. 392 (1976). Petitioner believes

Testan is misapplied here, as it dealt

with a situation where there was a claim

for compensation for work performed

at a higher pay grade level than the

grade held by the worker, while here

the petitioner was prevented from doing

work he had an right and a duty to perform

within the position he held.

The petitioner asserts that the

Corrections Board had a legal duty,

imposed by 10 U.S.C. 1552, to protect

the petitioner's rights and the Claims

Court has a duty, through their review

— :

authority,Armstrong v. United States,

205 Ct. Cl. 754, 761 (1976); citing

Herzog v. United States, 167 Ct. Cl.

SSR GAIA sen bas al te

337, 383-384 (1964); and cases cited

therein, to assure that the Board fulfills

its statutory mandate. The Claims Court

aiso has avthority to provide equitable

relieve authorized by the Public Law

92-415, 86 Stat. 651, amendment to the

Tucker Act, U.S.C. 1491, and to fashion

a complete remedy where appropriate,

Yee v. United States, 206 Ct. Cl. 388,

398 (1975). The Claims Court also has

the ancillary jurisdiction and remand

authority of 10 U.S.C. 1491 (2) for

cases wienin its jurisdiction (here,

jurisdiction over the additional increment

of longevity pay is not disputed).

The keystone of the entire

controversy, however, is the degree

of legal protection that a Reservist's

right to perform his duty is due. If

o» 90 «

the right to perform Reserve obligations

is a right that the Corrections Boards

are bound to protect, failure to do

so must amount to action contrary to

; law.

Petitioner urges the court, for

the far reaching public policy and national

security reasons outlined above, to

find that a military Reservist's right

to fulfill his military readiness

obligations is protected by the due

process clause of the Fifth Amendment.

II.

Judicial efficiency

and fundamental fairness

dictate that all important issues must be

resolved or remanded,

rather than dismissed,

particularly when loss of

ancillary jurisdiction may preclude

future litigation

Upon dismissal of the fundamental

claim for relief, from the effects of

the petitioner's being denied participation

ee ee Te ee Siendstie 2 he

in the Reserves in the 1968-1971 period,

other important issues arise which must

be dealt with:

1. The petitioner, as discussed

in reason I., aS a member of the Active

Status List of the USMCR had some degree

of right to participate in the Reserves

and to fulfill his Reserve membership

duties. He made application for membership

in an Active Reserve Unit that was willing

to take him in (App. 71), he demonstrated

a willingness to leave the Army Reserve,

and the Army indicated they would not

attempt to hold him. Headquarters Marine

Corps, however, although indicating,

to the Corrections Board, the necessity

of their taking action on this matter,

stood by and did nothing.

The Government, and the Claims

Court, believe that the petitioner did

not shoulder enough responsibility for

the resolution of the dual status situation

— oe

faa tem owt Mee

eink AE

and they point to a letter that originated

in the Corrections Board that indicates

that the petitioner had been advised

that it was illegal to be a member of

two services, and indicating that this

warning was a part of what was considered

by the Board when they placed petitioner

in that very status. What they seem

unable to believe is that the illegality

advice came from Headquarters USMC (HQMC)

and originated before the petitioner

ever came to the Corrections Board.

(App. 26, 61) The HQMC letter advising

the petitioner about dual status illegality

was with regard to a reappointment

application completly unrelated to the

Situation following the Board action

Or to anything the board was considering

except the petitioners past efforts

to reaffiliate with the USMCR. (App.

73) Mistakes of time and relevency are

understandable, but what is unfathomable

« 37 «

is how the petitioner's being advised

of dual status illegality becomes a

rationale for the belief that his being

80 advised is a reason that the Board

(Secretary of the Navy) placed him in

that position, or for the view that

he didn't do enough to extradite himself

from that status when the Marine Corps

placed him in it.

Anyway, the rights and benefits

of the petitioner perp his 1961-1967

dual-statue period need to be resolved.

The Claims Court has decided that, even

sf it ons mistaken about the facts,

the petitioner can still not point to

4 statute authorizing money relief and

the claim is, properly dismissed. (APP.

46)

The petitioner's claims, related

to this period, are: 1]. A reconciliation

of the retirement points petitioner

received for beiny on the USMCR Active

—

2x : ope. sy es ws

& “it hy

: oe

207 > ome RS eee

ALS

Peas

Status List with the retirement points

he received from the Army Reserve for

this period. (Petitioner fully fulfilled

his readiness obligatrons to the Army-

-and has done so every year since 1976

but addition of the USMC retirement

points will make a quantitative difference

in the ultimate retirement authorization);

2. Invalidation of the petitioner's

removal from the ASL for inactivity

when he was actively attempting to

participate and being prevented from

doing so by the failure of tne USMCR

to do tneir duty to advise and support

him. (this would result in an adécitional

15 retirement points per year to be

reconciled with #1 -- 50 point per year

are require for a qualifying year, 20

qualifying years are reguired for a

deferred retirement at age 60, and each

365 points produce 2.5% of base pay

48 4 retirement benefit) 3. Invalidation

—. oe

of the 1987 discharge which resulted

without notice to petitioner and while

this suit was in progress. (In combination

with #'s 1 = 3, this results in 45 -

60 more retirement points and completes

the 20 qualifying years) 4. Invalidation

of the 1982 promotion Board which nade

their non-selection judgment base upon

a record showing 16 years of total

inactivity. The law requires a record

that is substantially complete and fair.

Sanders v. United States, 219 Ct. Cl.

285, 302 (1979) (This, if selection

is accomplished, increases the base

pay for retirement computations) (see

App. 67) 5S To be permitted discovery’

and trgal on the contention that the

Corrections Board results are invalid

because of serious due process

shortcomings. These shortcomings include

the apparent subjugation of the independent

judgment of the Board to the will of

= £00

the Military Services, as evidenced

by the Board's initial dismissal of

petitioner's application upon belief

that Headquarters Marine Corps wished

no favorable recommendation. Allegations

of due process violations were made

in the original complaint, and were

encompassed in contenticas of illegality

of Corrections Board action in almost

every paper filed by the petitioner

since then, even though most of the

discussion of the illegality argument

was devoted to the failure of the Board

to fulfill their statutory mandate to

provide corrective action. Again,

discovery and trial are necessary to

— these eebeadkions.

The interest of Judicial efficiency

dictates that all claims arising from

a common Corey of facts should be

adjudicated in one action. The interest

of fairness demands that they be resolved

o.£1 ©

in this action, as the retirement benefit

claims may not mature into another

actionable complaint for another ten

years (petitioner's eligibility for

the deferred retirement). The above

issues, requiring production and appraisal

of evidence, are genuine issues of material

fact and they simply should not have

been disposed of by summary judgment.

The petitioner beseeches you to find

that this warrants reversal.

SER

The standards of the half-a-loaf doctrine

in the Claims Court

are too broad to be consistent

The “half-a-loaf" or “half-a-legal-

loaf" doctrine is discussed in Sanders

v. United States, 19 Ct. Cl. 285 (1979);

Debow v. United States, 193 Ct. Cl.

499 (1970); Hankins v. United States,

183 Ct. Cl. 34 (1968); among others.

It is a doctrine that provides that,

e 42 «

where an Administrative Tribunal has

recognized error or injustice but failed

to grant the full measure of appropriate

relief requested by the aggrieved person,

the Court will step in and complete

the remedy, and a new cause of action

is created.

In this case, the Claims Court

—

deemed the doctrine inapplicable, Collins

v. United States,14 Cl. Ct. 746, aff'd,

865 F.2d 269 (Fed. Cir. 1558)- having

emphasized that the key to tn*s doctrine

in the failure to grant “appropriate

monetary relief." (empnasis py tne

Court). (App. f.n. 49-50)

The problem with a naked

“aseresriasanene" standard is that it

is too broad to be a standard at all.

It needs more definition. The petitioner

believes that a reasoned attempt to

place an aggrieved person in the position

he would have been had the error or

~ £m

injustice not occurred is appropriate.

(App. 15) He premised each of his claims

on that rational and it is likely that

most Claimants do the same. What is

clearly not appropriate is Correction

Board action that not only stops short

of the relief requested but provides

no reasoned analyses of why the non-granted

requests were not “appropriate” to the

error Or injustice being corrected.

Please remember that this is

not an erroneous discharge case! This

a case where the petitioner was attempting

to do his duty and was prevented from

doing so. One of the consequences of

the failure of the Marine Corps to fulfill

their obligation to advise the petitioner

of his Reserve obligations and his options

for satisfying them was an improper

discharge, but it was onl one of the

consequences and if the petitioner's

Claims for ameliorating them are to

» 48 «

be "appropriate" there must be some

standard by which to fashion them.

Here the Board (and the Court) simply

declared that, since the petitioner

had not actually performed duty in the

capacity he was being returned to, and

Since the status of that reinstatement

was ILS, there was no basis for awarding

lost pay, promotion, or retirement points.

(App. 7-9, 41-42, 59)

The non-performance of duties is

meaningless in this circumstance. Of

course the duties were not performed!

The petitioner tried to, though. This

is why the Board has the authority to

provide "constructive" service.

When the Corrections Board has

determined the nature of the error

Or injustice, they fashion a fitting

relief by changing the record so

as to constructively reflect new

facts and provide new entitlements

appropriate to the relief. The

Board corrects the record so as

to undo that which has been done

or to what should have been done

and, as a result of the Board's

- 45 -

REO See se NE EY |

action, the individual whose records

have been corrected becomes entitled

to pay or benefits which would

have been due him if error or

injustice had not occurred,..."

See: G-LGL Memo, 3 Oct 79. CoGuard

Law Bulletin, June 1980.

The purvose of this discussion

is to demonstrate that Corrections Boards

have a strong mechanism for providing

"appropriate" relief. The Court then

has a strong doctrine, in the haif-a-

loaf doctrine, for ensuring that

“appropriate” relief has in fact been

provided. If the application of the

half-a-loaf doctrine to the Court's

review of the Board's action is to be

meaningful, however, there must be some

Standards provided for the determination

of what is "appropriate" in the context

of this doctrine. To be placed in the

position one would be absent the error

Or injustice is a well worn standard

and it is capable of being both flexable

and rationally determinable. It should

« 46 <

serve well here.

Corrections Boards have a moral

sanction to determine, insofar as possible,

the true nature of the error and injustice

and to grant full and fitting relief.

Duhon v. United States, 198 Ct. Cl.

564 (1972); and they have a Congressional

mandate to determine the true nature,

the effects, and the ramifications of

an alleged injustice and to fashion

a fitting relief. Yee v. United States,

(1975).

210 Ct. Cl. 752, , The legal configuration

of this sanction/mandate, however is

often obscure when overlain with the

arbitrary and capricious standard.

In this case for, for instance, the

petitioner believes it to be

incomprehensible that the board action,

which resulted in no objective remedial

effect, should be regarded as satisfaction

of the above sanction/mandate. The

Claims Court, however, believes that

ee te

MMS EA Ab WILE ai AY

mene.

ah Naat Aap 9° 0s 8 ee WA

the Board action was not arbitrary and

that the sanction/mandate was satified,

largely because the Court feels the

Board understood the true nature of

the error or injustice and that the

petitioner had not cited a statute,

regulation, or procedure entitling him

to relief. (App. 36, 38, 49-50, 57-60)

There are two rational interpretations

one can reach regarding the half~-a-loaf

doctrine, base upon the information

available in this case: A. That

“appropriate” is determined by whether

Or not the Board action is arbitrary

and capricious, (see footnote App. 49-

50), or B. that the full range of the

claimants legal claims are “appropriate"

if the Board grants him any of them.

Ihe case relied upon by the Claims Court

here is Collins v. Untited States, 14

Cl. Ct. 746, aff'd, 865 F.2d 269 (Fed.

Cir. 1988). On page 754,quoting Denton

» 28

v. United States, 204 Ct. Cl. 188 (1974),

is stated “once an administrative body

decides relief is proper on the claim

and representation then made, it should

not be free to illegally or arbitrarily

award less relief than that requested

by the claimant..."

Looking elsewhere: “Where a

Corrections Board in its discression

grants favorable relief to an applicant,

it may not stop short of granting full

relief to the applicant..." Homcy v.

United States, 210 Ct. Cl. 332 (1976).

It appears that the Claims Court

is, in the same operation, applying

the arbitrary and capricious standard

to the half-a-loaf doctrine and to the

the sanction/mandate that a Board has

to formulate fitting relief. The result

is an obscuration of all three principles.

There are also matters of

permissive/mandatory prior administrative

« 40 «

es |

hearings (e.g. App. 32, 49) and

distinctions between applications of

the new cause of action portion of the

doctrine versus application of the

incomplete remedy portion of the doctrine.

If the half-a-loaf doctrine is

to have utility it must be identifiable

and capable of application by it's own

Clear standards. The standard of

“appropriate"™ simply must have more

definition. The doctrine is in place.

It has the potential to help guide

Claimants, Boards, and Courts alike.

That can't happen, however, unless it

becomes capable of application upon

identifiable criterion that clearly

delineate the doctrine.

The legal community needs your

guidance.

het oo lag th al!

CONCLUSION

For these various reasons, this petition

for certiorari should be granted.

Respectfully submitted,

D. Larry Fraser

10850 SW il2 Ave.

Miami, FL 33176

(305) 595-5533

Pro se

November 21, 1990

DEPARTMENT OF THE NAVY

HEADQUARTERS OF U.S. MARINE CORPS

WASHINGTON, D.C. 20380

1 JUN 1979

Mr. David L. Fraser

Stouffer Place, 26-34

Lawrence, Kansas 606044

Dear Mr. Fraser:

At the request of Mr. Alves, I am for-

warding to you a DD Form 149, a set of

instructions for petitioning the Board

for Correction of Naval Records, and a

copy of the procedures of the Board for

Correction of Naval Records. Mr. Alves

indicated that you desired these materials

in order to submit an application for

relief concerning your discharge from

the Marine Corps Reserve and your subsequent

efforts to obtain a reappointment in the

Marine Corps Reserve.

Since the Board cannot reinstate any person

into the naval service, it appears that your

request should be for the following:

1. Reappointment in the Marine Corps Reserve

App.l

in such a manner as to allow your

retention of your current status in

Army National Guard until such time

you are actually reappointed in che

Marine Corps Reserve;

the

U.S-

+ Correction of your records to show

that the discharge from the Marine Corps

Reserve in your case was erroneous;

3. Correction of your record to show

that your prior USMCR service, your

ployment in the aviation field in Southeast

Asia, and your service in the Army Nationa

2 | | i

Guard are all creditable service; and

. Specific directions to Headquarters,

U.S. Marine Corps that upon reappointment

as a Captain in the U.S. Marine Corps

Keserve, you are to be considered by the

next selection board convened as an

being considered for selection to the grade

of major for the first time.

I trust -that the foregoing information has

App.2

officer

shee

proven helpful.

Sincerely,

James E. L. Seay

Captain, U.S. Marine

Judge Advocate

Corps

App. 3

DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

WASHINGTON, D.C. 203/70

21 NOV 1980

From: Chairman, Board for Correction

of Naval Records

To: Secretary of the Navy

Subj: ex-Capt. David L. FRASER,

516-44-8700/089627, USMCk;

Review of naval record

Ret: (a) Title 10 U.S.C. 1552

Encl: (1) DD Form 149 w/attachment

(2) Case Summary

(3) Officer Qualification Record

(4) Comment of CMC

1. Pursuant to the provisions of reference

(a), Petitioner, a former member of the

United States Marine Corps Reserve filed

enclosure (1) with this Board, requesting

that his naval record be corrected to show

he was not discharged on 16 November 19/7/.

2. The Board reviewed Petitioner's alle-

Weertons of error and injustice on 9 July

1980 and, pursuant to its regulations,

determined that the corrective action

indicated below should be taken on the

App.4

being 2A ba lls

available evidence of record. Documen-

tary material considered by the Board

considered by the Board consisted of the

enclosures, naval records, and applicable

statutes, regulations and policies.

3. The Board, having reviewed all the

facts of record pertaining to Petitioner's

allegations of error and injustice finds

as follows:

a. Prior to filing his application with

this Board, Petitioner exhausted all admin-

istrative remedies afforded him under existing

law and regulations within the Department

of the Navy.

b. Enclosure (2) is a case summary

which sets forth some of the more signifi-

cant facts and circumstances of Petitioner's

military and civilian record. Additionally,

the Board in its deliberations considered

Petitioner's application, enclosure (1),

together with all material submitted in

Support thereof, naval records, and

App.5

applicable statutes, regulations and

policies.

c. Petitioner entered the U.S.

Marine Corps on 17 August 1960 and was

commissioned a Second Lieutenant on 12

May 1964. Having successfully completed

both flight and helicopter training,

Petitioner was designated a naval aviator.

He served in Vietnam from 31 August 1965

to 14 September 1966 and was awarded a

Purple Heart for wounds received in action.

Upon his return from the Republic of

Vietnam, Petitioner was assigned duties as

a flight instructor. However, upon the

death of his father, Petitioner requested

a hardship discharge. On 8 September 1967

he was allowed to resign his commission in

the U.S. Marine Corps to accept appointment

in the U.S. Marine Corps Reserve. Petitioner

was then transferred from the Standby

Reserve (Class III) to the inactive status

list on 12 September 1968. Following the

App.6

resolution of his father's estate

Petitioner returned to South East Asia as

a pilot for Air America. He contacted the

Marine Corps Reserve headquarters in

Kansas City and inquired as to the procedures

for maintaining his affiliation with the

Marine Corps. He was told there was no

method by which he could participate in

reserve while outside the United States.

On 16 November 1971 Petitioner was referred

to a dispostion board and was discharged

for inactivity.

d. The comments of the Commandant

of the Marine Corps have been solicited in

this matter. In the process of examining

the record the Commandant has determined

that Petitioner was not properiy advised

of his status or impending separation by

the Commanding Officer Class III Forces,

U.S. Marine Corps Reserve. Accordingly

the Commandant was of the opinion that the

Petitioner should be tendered a reserve

App./7

commission and his discharge cancelled

(see enclosure 4).

e. The Board, mindful of the long

standing limitation on its authority to

order the reinstatement, is in accord

with the opinion of the Commandant that

petttiondés discharge was not proper under

the then existing procedures. However, it

defers any opinion as to the appropriate

relief. In this regard as a collateral

matter it recommends that the Secretary

take action with regard to the recommenda-

tion of the Commandant of the Marine Corps

and that the record be returned to the

Commandant upon action by the Secretary.

f. As to the remainder of the

Petitioner's requests, the Board found

that it was without power to direct any

promotion. It further found that since

Petitioner had not in fact participated

in any reserve activities, no basis exists

to award retirement points for any of the

App.8

years during which he held no reserve

status. Accordingly it recommends that

those requests be denied.

CONCLUSION:

Upon Review and consideration of all the

evidence of record the Board now finds

the existence of an injustice warrantiny

corrective action the Board's finding

in this regard is based upon Petitioner's

overall record and particularly the fact

that he was never made aware of either his

Reserve obligations or options available

for fulfilling these obligations, despite

his attempts to discover them.

RECOMMENDATION:

A. In view of the foregoing the Board

recommends as a matter collateral to the

instant petition that the Secretary of the

Navy take action to tender a commission in

the United States Marine Corps Reserve in

the grade of Captain to the Petitioner.

App.9

B. For the reasons set forth In

paragraph 3f above it recommends that the

remainder of the Petitioner's requests be

denied,

4, It is certified that a quorum was

present at the Board's review and deliber-

ations, and that the forepoing is a true

and complete record of the Board proceedings

in the above-entitled matter.

ROBERT D. ZSALMAN JAMES S. RICHARDSON, SE.

Recorder Acting Recorder

5. The forepotng action of the Board is

submitted for your review and action.

SAMUEL SCHULMAN

13 Jan 198)

Rey j ewedand approved :

By copy of this endorsement the Cormandant

of the Marine Corps is authorized to

reinstate David L. Fraser SS No. 516-44-4/00

in the U.S. Marine Corps Reserve as though

he had never been discharged and that his

discharged of 16 November 19/7] be cancelled.

(sizned)

J. A. (unable to read)

Assistant Secretary of the Navy

(Manpower, Reserve Affairs

& Logistics)

App. 10

DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

WASHINGTON D.C,

l:JR:ka

2384-79

26 January 198)

FROM: Chairman, Board for Correction

Of Naval Records

TO: Commandant of che Marine Corps

SUBJ: Ex-Capt. David L. FRASER,

516-44-8/00/089627, USMCR;

Review of naval record

Rib: (a) 1O U.S.C, 1552

ENCL: (1) Approved findings, conclusions

and recommendations of BCNR,

less enclosures

(2) Copy of BCNR ltr to subject

this date

Ll. In accordance with reference (a), the

joard for Correction of Naval Records

has reviewed allegations of error and

injustice and the naval record of the

subject.

2. The Secretary of the Navy has reviewed

the proceedings and approved the recommen-

dation of the Board as contained in enclosure

(1).

App. 1]

3. The regulations approved by the

Secretary of the Navy require that the

naval record of subject be changed, where

appropriate, in acccrdance with the final

decision.

4. The Board has advised subject of the

final decision.

5. It is requested that this letter and

enclosures be placed in the subject's

official record and that this Board be

furnished a copy of any correspondence

relating to this decision.

6. It is requested that the Veterans

Administration be advised, upon request,

that subject's application was received

on 14 June 1979,

JAMES S. RICHARDSON, SK.

By direction

App.12

ee ee

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

WASHINGTON, D.C. 20380

In reply refer to

MMSR-3-ned

16 MAR 1981

Mr. David L. Fraser

263 Sharney Place

Kennesaw, Georgia 30144

Dear Mr. Fraser:

In accordance with the decision of the

Secretary of the Navy, your records have

been corrected,

You have been reinstated in the United

States Marine Corps Reserve as though you

had never been discharged. Your discharge

of 16 November 1971 is cancelled.

Please return your discharge documents

to this headquarters (Code MMSR-3).

Sincerely,

R.L. SONGER \

Captain, U.S. Marine Corps

Head, Separation Section

Separation and Retirement Branch

Personnel Management Division

App.13

IN THE UNITED STATES CLAIMS COURT

No. 25-87C

(Filed May 9, 1988)

DAVID LARRY FRASER

THE UNITED STATES

ORDER

Plaintiff entered the United States

Marine Corps (USMC) on August 17, 1960.

He was commissioned a second lieutenant

on May 12, 1964 and served in Viet Nam

until 1966. On September 8, 1967, he was

allowed to resign his commission in the

USMC and to accept appointment in the

USMC Reserve. Subsequently, on September

12, 1968, plaintiff was transferred from

the Standby Reserve (Class II1) to the

inactive status list. Following resolution

of some personal business, plaintiff returned

to Southeast Asia as a pilot for Air America.

Pursuant to his inquires, the USMC Reserve

App.14

informed him that he could not participate

in the Reserve while he was located outside

the United States. Subsequently, on

November 16, 1971, a disposition board

discharged plaintiff from the Reserve for

inactivity. In 1976 plaintiff became a

member of the U.S. Army Reserves.

In 1979, plaintiff requested that the

Board for Correction of Naval Records (Board)

review his discharge and that, in essence,

"he be placed in the position he would have

been in" if he had participated in the Reserve

since the date of his discharge in 1971.

The Board found that corrective action was

warranted based upon the plaintiff's overall

record and "particularly the fact that he

was never made aware of either his Reserve

obligations or options available for ful-

filling those obligations, despite his

attempts to discover them." The Board

recommended that action be taken to tender

App.15

a commission in the USMC Reserve in the

grade of captain to plaintiff and denied

his requests for promotion and for award

of retirement points for years he held

no Reserve status. According to plaintiff,

the Board did not specifically address

his request for compensation for loss

of pecuniary benefits. On January 13,

1981, the Office of the Secretary of the

Navy reviewed and approved the Board's

recommendation and authorized the Commandant

of the Marine Corps to reinstate plaintiff

in the USMC Reserve "as though he had

never been discharged" and "that his

discharge of 16 November 1971 be cancelled."

By letter of January 26, 1981, plaintiff

was informed that “the Commandant of the

Marine Corps will take the necessary action

to issue a new discharge certificate"

and that "the Marine Corps Finance Center

* * * is authorized to pay all monies

App.16

lawfully found to be due as a result of

this decision. Any questions concerning

the amount computed to be done should

be addressed to that Finance Center."

It was also suggested in that letter that

plaintiff contact the nearest Veterans

Administration Office since he might now

be eligible to receive veteran's benefits.

According to plaintiff, since 1981

wnen the Board and the Secretary of the

Navy authorized his commission, he has

tried to begin participation in the USMC

Reserve. However, he has been a member

of the U.S. Army Reserve since 19/76.

The Navy has been on notice since, at

least, December 1979 that a decision to

tender plaintiff a commission in the USMC

Reserve and cancel his 1971] discharge

would result in his having commissions

both in the Army and the Navy or “dual

status,” a matter which would have to

be resolved before plaintiff could be

App.1/7

allowed to participate in the USMC

Reserve. Failure to resolve this "dual

status'' matter appears to be part of

plaintiff's claim before this court that

he has been denied full relief from his

improper discharge by the Board and the

Secretary of the Navy which he claims

would flow from the Board's authorization

to reinstate him in the USMC Reserve and

cancel the 1971 discharge.

Defendant, rather than filing an

answer to plaintiff's complaint, moved

for dismissal on the grounds that the

Claims Court did not have jurisdiction

over the claim pursuant to the Tucker

Act, 28 U.S.C. § 1491, and that the

Statute of limitations bars this action.

See 28 U.S.C. §2501.

After careful review of the filings

in the record, it is determined that

additional analysis is necessary to

resolve matters reasonably raised by the

App.18

pro se complaint and defendant's motion.

In particular, the record does not provide

information whether plaintiff, during

any relevant period, would be entitled

to retirement pay stemming from his military

service, i.e., whether he is of the appro-

priate age and has the requisite years

of service, actual or constructive. In

addition, plaintiff has apparently been

voluntarily serving in the U.S. Army Reserve

since 1976. The Board's/Secretary's apparent

decision to cancel his Marine Corps discharge

so as to reflect continuous service by

plaintiff in the USMC Reserve from 19/71,

which is somewhat unclear from the present

record, may raise a question regarding

the legality of the Board's/Secretary's

decision. Whether a person may be placed

in a position where he is serving under

two commissions needs further review as

to legal authority. See Bridgman v.

United States, 185 Ct. Cl. 133, 139, 399

App.19

F.2d 186, 190 (1968). Also unclear from

the record is whether the USMC Reserve

has taken any steps to resolve plaintiff's

"dual status" and, if so, where the matter

now stands in relation to implementing

the Board's 1981 authorization. If any

Board/Secretary relief extends only to

plaintiff's entry into the Army Reserve,

this could have relevance with respect

to the application of 28 U.S.C. § 2501.

Thus, since this matter presents

a somewhat unusual situation concerning

the possible monetary impact of a favorable

Correction Board/Secretary decision, and

questions in this respect exist which

cannot be resolved on the filings to date,

it is ORDERED:

(1) Defendant's motion to dismiss

the complaint is denied without prejudice;

(2) Defendant will have 30 days

from the date of this order to serve its

App. 20

response to the complaint.

James F. Merow

Judge

App.21

IN THE UNITED STATES CLAIMS COURT

NO. 25-87C

(Filed: April 3, 1989)

DAVID LARRY FRASER

THE unrtep STATES

ORDER

This case is before the court on

defendant's motion to dismiss the complaint

for lack of jurisdiction or, in the alter-

native, motion for summary judgment.

Plaintiff has cross-moved for summary

judgment. Plaintiff seeks retroactive

promotion, back pay and award of retirement

points.

Plaintiff, who entered the United

States Marine Corps (USMC) on August 17,

1960, was allowed to resign his regular

commission on September 8, 1967, due to

personal hardship, to accept appointment

in the USMC Reserve (USMCR). At the time

of his resignation, plaintiff held the

App.22

rank of Captain. On September 12, 1968,

plaintiff was transferred from the Standby

Reserve active status list (ASL) to the

inactive status list tiSL). Following

resolution of personal business, plaintiff

relocated to Southeast Asia as a pilot

for Air America. Pursuant to his inquiries,

he was notified that he could not participate

in the Reserve while he was located outside

the United States. Thereafter, a Disposition

Board recommended Captain Fraser be involun-

tarily discharged from the Reserve because

he had been a member of the ISL in excess .-

of three years. In response to this recom-

mendation, plaintiff requested that he

be retained on the ISL of the Marine Corps

Reserve, indicative that he wished to

qualify for retention in any way possible.

Captain Fraser was honorably discharged

from the Reserve on November 16, 1971.

Subsequently, plaintiff became affiliated

App. 23

with the Army National Guard in

January 1976.

On June 10, 1979, Plaintiff peti-

tioned the Board for Correction of Naval

Records (Board) requesting a correction

of his records to invalidate his 19/]

discharge, to be reinstated in the Reserve

as though he had never been discharged,

to preserve his status of rank as if he

had fully and satisfactorily participated

in the Selected Marine Corps Reserve (SMCR),

and to be compensated for loss of applicable

pecuniary benefits. The Board found the

existence of an injustice warranting corrective

action, basing its decision on “({pletitioner's

overall record and particularly the fact

that he was never made aware of either

his Reserve obligations or options avaiiable

for fulfilling those obligations, despite

his attempts to discover them." The Board

recommended that plaintiff be tendered

a commission in the USMC Reserve in the

App. 24

grade of Captain. On January 13, 1981,

the Assistant Secretary of the Navy

authorized the réinstatement of plaintiff

in the USMC Reserve "as though he had

never been discharged and that his dis-

charge of 16 Nov 1971 be cancelled."

Plaintiff was notified that he had been

reinstated in the USMCR (ISL) on March

16, 1981. Thereafter, he was reinstated

into the Individual Ready Reserve (ASL),

effective July 6, 1981. He was given

a new anniversary date of July 6, 1981,

with eligibility for promotion after

July 5, 1982.

With respect to Captain Fraser's

other requests, the Board found that,

as he had not in fact participated in

any Reserve activities, there existed

no basis for award of retirement points

for the years during which he held no

Reserve status. In addition, the Board

App.25

did not find it appropriate to grant

his request for Marine Corps credit for

his Army National Guard service since,

after being informed that he could not

simultaneously hold commissions in the

Army National Guard and the Marine Corps

Reserve, Captain Fraser failed to take

appropriate action. The Board also noted

that, if Captain Fraser had been reinstated

as of November 16, 19/71, his original

discharge date, he would have become imme-

diately eligible for consideration for

promotion without the benefit of fitness

reports or participation in the Marine

Corps .Reserve (MCR), which could only

have resulted in his failure for selection.

On August 2, 1982, Captain Fraser was

considered, but not selected, for promotion

to Major. -He transferred from the ASL

to the ISL of the Reserve, effective March

10, 1983. Subsequently, on July 13, 198/7,

App. 26

Captain Fraser was honorably discharged

from the USMCR.

Plaintiff filed his complaint with

this court on January 20, 1987. Defendant

moved for dismissal on the grounds that

the court did not have jurisdiction over

the claim pursuant to the Tucker Act,

26 U.S.C. § 1491, and that the statute

of limitations, 28 U.S.C. § 2501, bars

this action. In the alternative, defendant

moved for summary judgment. As mentioned,

plaintiff cross-moved for summary judgment.

Plaintiff claims that he is owed

back pay for drills and active duty which

he could have performed during the period

from September 196/ to the present, but

was erroneously prevented from performing

by the USMCR. He claims payment is due

him pursuant to 37 U.S.C. §§ 204, 205,

206 and 30la. In addition, plaintiff,

who has received payments for drills and

active duty performed in the U.S. Army

App.2/

Reserve and the Army National Guard

between January 19/76 and the present,

is claiming entitlement to an additional

increment (back pay) to these payments,

based on increased longevity and higher

rank that would have been included in

the calculation of these payments had

the Board corrected his records. He cites

to 37 U.S.C. §§ 204, 205, 206 and 301 (a)

as authority for this claim. Plaintiff

is also requesting military reserve retire-

ment points for the years from the time

of his discharge from active duty to the

present.

With respect to the statute of

limitations issue, plaintiff argues that

when the Board granted him only partial

relief, i.e., cancellation of his 1971

discharge but no promotion, back pay,

or retirement points, a cause of action

accrued under the “half-a-loaf" doctrine,

with the date the plaintiff became aware

App.28

of the Board's decision the accrual

date of his claim for purposes of deter-

mining when the time period for filing

his claim began to run. In addition,

he claims the running of the time period

would be tolled by the intervening periods

of plaintiff's active military duty.

Furthermore, plaintiff argues that he

has a “continuing claim" since he has

been paid for his periods of active duty

in the Army Reserve and/or Army National

Guard every year between 1976 and the

present. Plaintiff states that a claim

accrues on each date a payment was made

or should have been made which is different

in amount than that claimed.

In response, defendant argues that

the court lacks jurisdiction over the

complaint because plaintiff did not allege

that a particular statute, as opposed

to general pay statutes or regulations,

entitles him to relief. See United States

App.29

v. Testan, 424 U.S. 392 (19/6). The

yovernment claims, as a Reserve Officer

(ISL), no statute or repzulation entitles

plaintiff to the compensation he requests

without his being ordered to active duty

or training. According to the government,

plaintiff's request for retroactive credit

for duty he was not ordered to perform

and, in fact, did not perform does not

create a monetary entitlement so that

jurisdiction would lie in this court.

in addition, the yvovernment argues chat

plaintiff does not become entitled to

the payment of money by the action of

the Assistant Secretary of the Navy rein-

stating Captain Fraser to the same position

he was in prior to his discharge since,

as a member of the Reserve (ISL), he was

not eligible for pay, promotion, or assignment

to any mobilization position. In addition,

members of the ISL are not permitted to

participate in RKeserve training or earn

App. 30

Reserve Retirement credits. Only

Reserve members assigned to the ASL are

eligible for promotion and mobilization

assignments.

In sum, according, to defendant,

plaintiff fails to allege that any statute

or regulation entitles him to monetary

compensation because he received inaccurate

information regarding his participation

in the Reserve, with the result that he

was discharged for inactivity. According

to defendant, although the basis of plaintiff's

claim is that he was only granted partial

relief by the Board, plaintiff has not

shown the existence of a legal entitlement

to the relief the Board denied. Consequently,

in the absence of a legal entitlement

to the requested relief, plaintiff has

not stated a claim within the court's

jurisdiction pursuant to 28 U.S.C. § 1491.

With respect to whether the statute

of limitations bars this suit, the government

App. 51

argues that, since this complaint was

filed on January 20, 198/, plaintift did

not file his claim within 6 years of when

he resigned his commission in the USMC

in 196/ or of when he was involuntarily

discharged in 19/71] and, thus, 25 U.S.C.

§ 2501 bars any claim based on these actions,

Since claims ‘or military pay and allowances

accrue when the pay or allowance sought

is withheld, According to the government,

plaintiff's resort to the Board for correc-

tion of his records could not revive a

time-barred claim or create a new cause

of action based on the Board's action(s).

Defendant argues that the "half-a-loat"

doctrine, on which plaintiff relies, has

usually been applied only in cases in

which it was mandatory to seek administrative

relief prior to coming to this court,

and resort to a Correction Board is not

mandatory. In the alternative, the govern-

ment argues that, even if plaintiff's

App. 32

resort to the Board revived the time

period for filing a complaint with this

court, plaintiff's complaint is still

untimely as the Assistant Secretary of

the Navy approved the Board's decision

to grant Captain Fraser reliet on January

13, 1981, and this complaint was tiled

on January 20, 198/,

Since plaint if raises his complaint

pro se (although he hac legal training),

the matter has been considered in the

light most tavorable to plaintiff in

determining whether he has stated a claim

for which reliet can be granted under

any theory within the court's jurisdiction.

See Haines v. Kerner, 404 U.S. 519, 520-

Zk ALTA d.

As mentioned, plaintiff, for personal

reasons, voluntarily resigned his commission

in the USMC in 196/. Thus, it is clear

that plaintiff was not wrongfully discharged

from active duty service in the USMC,

He transferred to the USMC Reserve (ASL).

App. 33

Thereafter, he was transferred to the

ISL and subsequently was discharged because

he had been ISL for over three years.

The government claims plaintiff had remained

on the ISL because he indicated he was

unavailable for active duty participation

in the Reserve. Plaintiff's response

is that, although he inquired, he was

not given adequate or accurate information

regarding how he could participate in

an active duty status while living overseas

working for Air America.

The Board's decision to cancel his

discharge was based upon plaintiff's

“overall record and particularly the fact

that he was never made aware of either

his Reserve obligations or options available

for fulfilling those obligations, despite

his attempts to discover them.” However,

the Board denied plaintiff's other requests

regarding promotion and retirement points,

and his request for compensation for loss

App. 34

of pecuniary benefits was not specific-

ally addressed by the Board. Thus,

plaintiff claims the Board's actions were

arbitrary and capricious because, even

though the Board recognized that his dis-

charge was improper under the circumstances,

the Board failed to grant him the total

relief he requested. Consequently, plaintiff

argues that, under the “half-a-loaf" theory

of recovery, he has a cause of action.

The Board has discretion to take

such action as necessary to correct an

error or remove an injustice. 10 U.S.¢.

§ 1552. The Claims Court has jurisdiction

to review a decision of a Board for correction

of military records having pay consequences.

See Hertzog v. United States, i6/ Ct.

Cl. 377 (1964). Although the Court of

Claims held in Kirby v. United States,

201 Ct. Cl. 527 (1973), cert. denied,

417 U.S. 919 (1974), that exhaustion of

administrative remedies by resort to

correction Board procedures is permissive,

App.°5

if a plaintiff seeks relief from the

Correction Board, “such plaintiff is bound

by the Board's determination unless he

can meet the difficult standard of proof

that the Correction Board's decision was

illegal because it was arbitrary, or

capricious, or in bad faith, or unsupported

by substantial evidence, or contrary to

law, regulation, or mandatory published

procedure of a substantive nature by which

plaintiff has been seriously prejudiced,

or money is due." See Sanders v. United

States, 219 Ct. Cl. 285, 298, 594 F.2d

804, 811 (1979).

Although plaintiff argues the Board

acted illegally or arbitrarily in refusing

to promote him or to award him back pay ~

and retirement credit, he cites to no

Statute, regulation or procedure entitling

him to such relief based on the Board's

authorization of a correction of his records

to reflect cancellation of his 1971 discharge.

In Collins v. United States, 14 Cl. Ct.

App. 36

146, aff'd, 865 F.2d 269 (Fed. Cir. 1988),

a discharged Army officer was later reinsta-

ted upon a Correction Board's determination

that his discharge had been improper,

but he was not awarded back pay for the

period in issue. The plaintiff in that

case was in a nonpay status when discharyed.

The Board had ordered that that plaintiff

be promoted, effective on a date which

was during the period of his nonpay status.

The court determined that the Board's

actions in voiding Collins' discharge,

and retroactively promoting him, did not

result in any right under law or regulation

to back pay since, during the relevant

time period, Collins was in 4 nonpay status.

Consequently, it was determined that the

Board did not act arbitrarily, capriciously,

or contrary to law in denying back payy

to that plaintiff.

Similarly, in the present case, plaintiff

was in a nonpay status, and had been on

the ISL since 1968, when discharged in

App. 3/

1971. The Board authorized the correction

of his records to reflect cancellation

of his discharge and the plaintiff's rein-

statement in the USMC Reserve to the same

position he would have been in if he had

not been discharged. Plaintiff does not

argue that, upon his reinstatement, he

was in an active duty status. In fact,

he was officially reinstated to the ASL

in July 1981, months after the Board's

action to cancel his discharge, which

demonstrates that plaintiff was reinstated

into an inactive duty, nonpay status

upon the Board's action and the Assistant

Secretary of the Navy's approval thereof.

Since plaintiff is not entitled per se

to back pay for any period when he was

in a nonpay status, the Board did not

act arbitrarily, capriciously or contrary

to law when it corrected plaintiff's military

records to cancel his discharge yet denied

his requests for compensation and for

App. 38

retirement credit with respect to the

time period between the date of his

transfer from active duty pay status to

the date of the Board's decision. Plaintiff's

specific claims will now be addressed,

In particular, plaintiff argues that

once the Board ordered his records corrected

to reflect the cancellation of his 19/1

discharge, his records should also reflect

credit for constructive service from the

date of his discharge to the date of the

Board's decision, and that such service

should be considered to have been successfully

performed so that he would have merited

promotion. Therefore, plaintiff argues

he is entitled to back pay based on this

retroactive promotion.

In Voge v. United States, 844 F.2d

1/76 (Fed. Cir. 1988), the court stated,

at 782, regarding a request for retroactive

promotion, "strong policy ‘réasons compel

courts ‘to allow the widest possible

latitude to the armed services in their

App. 39

administration of personnel matters’

* * * absent a statute or regulation

entitling a service member to a promotion

as a matter of law, the Claims Court has

no authority to entertain this claim."

Plaintiff cites to no statute or regulation

entitling him to be granted retroactive

promotion by this court. Since, as a

matter of law, courts do not have the

authority to direct the promotion of military

personnel, this court cannot direct the

retroactive promotion of plaintiff. Thus,

plaintiff's claim for back pay based upon

a failure to to promote is not allowed.

Plaintiff's back pay claim also includes

a request for a)l compensation he would

have received had. he fully participated

in the Reserve, i.e, at drills and training,

from the time of his discharge from active

duty to the present. The government's

response is that plaintiff voluntarily

transferred from active duty in the USMC

App.40

and subsequently, for various reasons,

made himself unavailable for active duty

participation in the Reserve. Defendant

notes that plaintiff was in an inactive

duty, nonpay status when discharged for

inactivity in 19/1, and plaintiff, upon

cancellation of his discharge, was returned

to the Reserve in an inactive duty, nonpay

status,

until he was reinstated in the Reserve

(ASL), which was effective July 6, 1981.

This part of plaintiff's claim for

back pay based on constructive service,

as a result of the Board's action in

cancelling plaintiff's discharge, must

fail because plaintiff's service would

have to be considered as served while

in an inactive duty, nonpay status (ISL). 1/

1/ According to the Marine Corps Reserve

Adminfstrative , t Marual (MCRAMM), reservists,

While assigned to ISL, are not eligible for

pay or promotion, will not be assigned to any

mobilization position and may not participate

in Reserve training, or earn Reserve retirement credits.

App.4]

nna

Moreover, pursuant to 3/7 U.S.C.

§ 206, a reservist is not entitled to

compensation at the prescribed rate unless

he/she is ordered to perform and does

perform the work. Since plaintiff did

not actually perform any drilla, training,

instruction or other appropriate duties

during the time period in issue, he may

not be compensated therefor, 2/

With respect to plaintiff's claim

for retirement credit, he is requesting

retirement points or credit for years

of constructive service (active duty)

which he did not serve. The Board determined

2/ Plaintiff claims that he should have

heen informed that he could have prevented his

19/1) discharge for inactivity by taking correspon

dence courses while he was living and working

ins Southeast Asia. Under 37 U.S.C. § 206(d),

compensation is not authorized for work or study

performed by a reserve member in conmection with

correspondence courses of an armed force. Thus,

ever, if plaintiff had performed correspondence

course work, his nonpay status would not have

heen altered,

App.42

that plaintiff did not, in fact, parti-

cipate in any activities for which reserve

retirement credit could be awarded. Thus,

the Board found there was nothing upon

which to base an award of retirement credits

for those years. In Kirby v. United States,

201 Ct. Cl. 527 (1973), the court held,

at 536, that with respect to the retirement

claim there in issue, "the plaintiff must

allege that he [she] has received credit

(actual or constructive) for 20 years

of service before he [she] has stated

a sufficient cause of action." In this

case, plaintiff has done neither. Plaintiff

has not alleged that he has actually served

20 years of service or that he has received

constructive credit therefor. See 10

U.S.C. § 1331(a); MCRAMM ¥ 6000. The

Board specifically did not grant plaintiff

constructive credit towards his retirement

requirements. Therefore, plaintiff has

not stated a cause of action upon which

he may be granted relief by this court

App.43

at thin time, See, e.p., Jankovic

Vv. United States, 204 Ct. Cl. BO/ C1974),

ln addition, plaintiff claima that,

fHubsequent to the Board's correction of

his records to cancel his discharge, and

to reinstate plaintiff! to his former position

ln the USMC Reserves, he was prevented

from participation in the Reserve as a

commissioned officer because he had con

tinued his attiliatiou in the Army National

puard/KReserve, which he had joined in

19/6, Because his “dual status" position

was not resolved by the USMC Reserve after

the Koard's aetion, plaintitt claifaa the

effect of the Board's decision has been

to prevent him from "enjoying present

and future benefits of performing in the

position to which the board returned nim

*n @.™

The government responds that plaintiff’

reinstatement into the Reserve, by itselt,

App 244

does not create an entitlement to pay. 3/

Since plaintiff has not established

entitlement to perform and never per-

formed reserve drills or active duty for

training, he was not entitled to pay therefor,

As concluded with regard to plaintiff's

back pay claim for work he did not perform,

with respect to the years prior to the

Board's decision, this claim has no merit.

Under 37 U.S.C. § 206a, “a member of the

3/° The record Indicates that piaintiff's

USMC Reserve records have been corrected to reflect

continuous service beyinning in August 1960,

hurthennore, plaintiff was considered but not

selected for promotion to the rank of Major by

the FY-43 tlarine Corps Keserve Major Selection

Board convened on Auyust 2, 1962. These examples

lndicate that, although he remained affiliated

with the Anny Nat Lonal Guard/Keserve, his reine

statement into the USW Keserve was given effect.

App.45

National Guard or a member of a re-

serve component or a uniformed service

‘ * * is entitled to compensation * * 4

(1) for each regular period of instruction,

or period of appropriate duty, at which

the member is engaged." Plaintiff states

directly that he did not perform drills

Or active duty for training, although,

as mentioned, he claims the USMC Reserve

is responsible for his lack of participa-

tion. However, plaintiff cites to no

statute or reyulation entitling him to this

pay. See generally Panzarella v. United

states, 214 Ct. Cl. 815, 816 (1977).

("[T]he mere possibility of earning

k * *® compensation does not amount to

the current entitlement or right to pay

which is the prerequisite to a successfully

pleaded pay-and-reinstatement claim in

this court.")

Plaintiff's final claim is for an

additional increment to payments he has

received for drills and active duty he

App.46

performed as a warrant officer in the

Army National Guard and Army Reserve

between January 19/6 and the present.

Plaintitf claims entitlement to this pay

“arising from the increased longevity

and higher rank that would have been

included in the calculation of these

payments had the errors and injustices

* * * truly been corrected." As already

mentioned, the Claims Court does not have

the authority to retroactively promote

plaintiff. Thus, that part of plaintiff's

claim for money which arises from the

higher rank which he claims should have

been included in the calculations of these

payments may not be further considered

herein. However, plaintiff may have

stated a cause of action, pursuant to

37 U.S.C. § 205, based on his claim for

an additional increment to payments he

has received for active duty in the Army

National Guard/Reserve. In essence,

App.4/

" 7 EE aa

plaintiff! te claiming that years of

constructive service, based on the

J ,

Board s actions, should be ineluded in

the computation of creditable service

for purposes of computing his payments

from the Asay tor active a.ty and drills. 4/

Sinee plaintiff claims he continuen to

be affiliated with the Army National

Guard/Reserve and to perform yearly

active duty and drills for which he

recelven payments which are lesa than

what he should receive based on his total

4/) Plaintiff had also requested that. the

Board prant him Marine Corps credit: for hin Anny

National Guard/Reserve service, The Naval

Correction Board found no relief was appropriate

since plaintiff had failed to take appropriate

action after being advised that he had to either

resign his commission in the Anny National Quard

and request appointnent in the USMC Reserve unde

a special program or request an interservice

transfer in the prade of Chief Warrant Officer.

Plaintiff did not pursue either option so the

Board, “which relies en equity,” denied this

request. This request to the Board appears to

be the opposite side of plaintiff's request to

this court for additional pay for his active duty

in the Army National Quard/Reserve based on

constructive service in the USMC Reserve arising

fram the Board's decision to cancel plaintiff's

1¥Y/7] discharve.

App. 4%

years of service, he may have stated

a claim for back pay within the court!

jurisdiction. However, since there

payments are for active duty service and

were made to plaintiff be,inning in 19/76

continuing to the present, the running

of the 6 year statute of Limitations

period may bar any claim based on some

of these payments, 1.6., taonse payments

which were not made, or due to be paid,

within 6 yearn of the date the complaint

wan filed. 286 U.S.C. § 2501. 5/

5/ Defendant arpues that plaintiff's

other claims are barred by 26 U.S.ce. § 2501, the

6 year jurisdictional statute of limitations.

In peneral, claims for military pay and allowances

acerue When the pay or allowanee is withheld, See

Hurick v. Lehman, /62 F.2d 964 (Fed, Cir, 1966).

Plaintiff urpes that his claims arose when the

Correction Board declined to grant the full re “

souyt. Plaint —* bases his claim on the “half-:

loaf" doctrine. Pes Vv. United States, 10,

Ct. Cl. 332, 536 Foo (1976), cer cert. . denied,

429 U.S. 964 (19/6), on rein the court held, at

210 Ct. Cl. 338, "If Jai lure of the Board to prant

full relief results in what thu: court has tern d

‘a new cause of action’ or a ‘cont Lina iry, Claim’

Which revives the >ow-*; perios. In Collins

v. Unitead States, 14 Cl. 46, aff'd, 865

F.2d 269 (Fed. Cir. 1988). ‘it was dete mined that

the key to the “half-a-loaf™ doctrine is that a (cont'd)

App.49

aii 4

In this connection, plaintiff asserts

his claim falls within the "continuing

claim doctrine. If a claim is a

continuing claim, as delineated in Friedman

v. United States, 159 Ct. Cl. 1 (1962),

a plaintiff may be able to state a claim

for that amount coming due within 6 years

of when the complaint is filed. See also

Carver v. United States, 159 Ct. Cl. 67,

74 (1962); Kutz v. United States, 168

Ct. Cl. 68, 77 (1964). As mentioned,

the complaint in this case was filed on

January 20, 1987. Defendant has not

specifically responded to this aspect of

5/ (cont'd)

Correction Board has failed to grant an applicant

appropriate monetary relief. In the present

case, as discussed above, the Board did not act

arbitrarily or illegally in denying plaintiff's

claims for promotion, retirement credit points

and back pay. The Board's actions did not

resurrect plaintiff's claims or create a new

time period for the running of the state of

limitations.

App. 50

plaintiff's suit. 6/ Thus, further

discussion and analysis are required

regarding this matter.

Accordingly, it is ORDERED:

(1) Defendant will have 30 days

from the date of this order to file a

supplemental brief in response to

plaintiff's claim that he is entitled

to an additional increment, based on

years of service, to the payments he

6/ In plaintiff's response of September

4, 1988, plaintiff states that he did not

specifically pray for longevity adjustment

to his Amy Reserve and National Guard pay,

but it can be inferred in paragraphs 2 and

7 of the prayers and demands section of the

complaint." In paragraph (2), plaintiff asks

for "damages in the amount plaintiff would have

been compensated had he fully participated in

the USMC Reserves from the time of his discharge

from active duty to the present;'' and paragraph

(7) requests "other" relief as may be just and

equitable.

App.51

han received for active duty service

in the U.S. Army National Guard/Reserve

and whether the statute of limitations

bars further consideration of this claim

or any part thereof ;

(2) Plaintiff will then have 1%

days from the date of receipt of any

response filed by defendant to file a

supplemental brief in response;

(3) Upon the final conelusion of

this matter, judgment shall be entered

dismissing the complaint, except with

reapect to the matter referred to in

(1) which remains to be considered and

renolved;

(4) Plaintiff's cross-motion for

fummary judgment, except as it relates

to the matter referred to in (1) above,

which remains to be considered, is denied.

James F. Me row

Judge

App.

IN THR UNITED STATES CLAIMS COURT

No. 25-870

(Filed: May 5, 1989)

DAVID LARRY FRASER

THE UNTTED STATES

ORDIEK

Plaintiff moves tor an enlarpement

Of time to seek reconsideration of the

order of April 3, 1989. Plaintiff

Hlso seeks a stay of defendant’

Oblipvation to respond to the cited

order,

However, by its submission filed

May 2, 1969, defendant has responded

to the order,

In the above circumstances, it is

ORDERED:

(1) The time for plaintiff to seek

reconsideration of the order of April 3,

1969 is enlarged to and including May

Ap] .

AZ CRIS IRIN SIs aR aren ace arses aeons

(2) A re] ponse to any reconsidey

ation motion filed by plaintif—{ shall be

filed by detendant within 20 days afte)

its service.

P ,

AV] y? 4

IN THE UNITED STATES CLAIMS COUR’

No. 29°8/C

(Filed August 1/7, 1989)

DAVID LARRY FRASER

THE UNDTTED STATES

ORDER

Plaintitt has moved tor recon

sideration of the court's order of April

§, 1989, dismissing his complaint except

with respect to a Claim for back pay in

relation to his active duty service in

the U.S. Army National Guard/Reserve,

Defendant has opposed plaint iff's motion.

Plaintiff requests reconsideration

on bases he has already presented before

the court. He offers no new evidence o1

leyal support for his position that the

court has not recognized the Board for

Correction of Naval Records (Board) failed

in its lepal obligation to fully correct

Ap". >

ann NDE i A a

errors and injustices in his record

after the Board recommended plaintiff's

reinstatement into the U.S. Marine Corps

Reserve (USNCR) .} Although the Board

decided that his discharge should be

cancelled, it denied his other requests

relating to promotion, retirement points

1 plaintiff had been honorably discharged

from the Reserve on November 16, 1971, because

he had been in an inactive duty status in

excess of three years. Plaintiff had requested

the Board to correct his records to invalidate

his 1971 discharge, to be reinstated in the Reserve

and to be compensated for loss of related pecuniary

benefits.

2plaintiff was subsequently tendered a

commission in the grade of Captain.

App.56

and compensation tor loss of pecuniary

benefite., This, plaintift—{ contends

and hein previously contended before

that the Koard acted bllepally

thin Court,

because he was not vranted the full relief

lies requested,

As was discussed in the April 4,

19RD ordet

Hince plaintift! sought relied

from the Correction sourd, he is bound

v 4 ‘

by the Board #s determination unless he

' ——

Cat demonstrate the Hoard s decision

4 ; ; ' j

lacked validity because it was arbitrary,

or capricious, or in bad taith, or un

hupported by substantial evidence, o1

contrary to law, repulation, or mandatory

published procedure of a substantive

nature by which plaintiff has been seriously

prejudiced, or money is due.’ See Sanders

v. United States, 219 Ct. Cl. 2865, 296,

994 F.2d BOS, BIL C1979),

ln essence, plaintif—{ argues the

tjoard acted illevally and/or arbitrarily,

App.o/

but cites to no statute, regulation

or procedure entitling him to promotion,

back pay and retirement credit based

on the Board's authorization of a

correction of his records to reflect

cancellation of his 1971 discharge

and his consequent reinstatement into

a non-pay status.> In this regard,

plaintiff claims that, upon his reinstate-

ment, he was entitled to constructive

3 Plaintiff argues that his reinstate-

ment to the Inactive Status List (ISL) by the

Board did not remedy the injustice he suffered

when the USMCR had prevented him from partici-

pating in active duty for training, drills and

correspondence courses which had then resulted

in his discharge for inactivity. Thus, accord-

ing to plaintiff, any remedy to make him "whole"

would include credit for active duty partici-

pation, which he had requested to be allowed

to perform but which he did not perfom.

App.58

credit for active duty participation

in the reserves throughout the period

between the date of his discharge and

the date of his reinstatement, which

was authorized by the Assistant Secretary

of the Navy, “as though he had never been

discharged." However, since he cites to

no legal or regulatory entitlement to

reinstatement with credit for active

duty participation which he did not perform,”

’ Furthermore, he cites to no legal

entitlement to be allowed to participate, as

a reservist, in active duty training or drills

upon his request. The basis of his claim, he

contends, is not that his 1971 discharge was

illegal but that he had received inaccurate

information from the USMCR that he could not

participate in active duty training or drills

while living overseas. Since the Board recognized

that plaintiff had not received complete, accurate

information or advice, and plaintiff argues that,

had he received correct information, he would

have participated and fulfilled his active duty

requirements, plaintiff contends the Board should

have given him credit therefor. Plaintiff ac-

knowledges that a Correction Board has discretion

in this regard, i.e., it may determine “the true

nature of an alleged injustice and * * * determine

"the true nature of an alleged injustice and * “sy

take steps to grant thorough and fitting relief.'

(cont. )

App.59

Plaintiff's motion for reconsideration

on this ground is not valid.

Plaintiff also restates his claim

that he was prevented from participatin

in active duty training and drills

after his reimstatement into the

USMCR because he had been put in the

position of holding dual commissions

by the Board's action, as he had joined

the U.S. Army Reserve/National Guard

in January 1976. Plaintiff contends

the USMCR should have resolved any

problems resulting therefrom. Instead,

he was not allowed to participate as

an active duty reservist and was

. (...continued)

Yee v. United States, 206 Ct. Cl. 388, 398,

512 F.2d 1383 (1975). Moreover, as mentioned,

plaintiff does not argue there is specific

legal entitlement to such credit. Therefore,

plaintiff" s contention that the court did not

recognize the Board acted illegally in can-

celling plaintiff's discharge but denying his

other requests does not providea basis for

reconsideration of the April 3, 1989 order.

App.60

ultimately discharged on July 13, 1987.

This is not a new contention and does not

provide a basis for granting plaintiff's

reconsideration motion. See, e.g.,

Prestex, Inc. v. United States, 4 Cl. Ct.

317 (1984) (order denying motion to re-

consider) (post-opinion motions to re-

consider are not favored especially where

a party has had a fair opportunity to

argue the point in issue).

; Plaintiff points out that the April 3,

1989 order mistakenly indicated that the Board

did not grant certain of plaintiff's requests

because of plaintiff's failure to resign from

the Army National Guard/Reserve or his failure

to request an interservice transfer. However,

even assuming the Board's decision was not

partially based on such an assumption and,

furthermore, it was not plaintiff's responsi-

bility to resolve his dual status dilemma, it

does not follow from such assumptions, and plaintiff

has not otherwise shown, that the Board acted

arbitrarily and/or contrary to law in denying

plaintiff's requests for promotion, retirement

credits and compensation for active duty he

did not perform.

App.6l

Consequently, it is ORDERED:

(1) Plaintiff's motion for

reconsideration is denied;

(2) Since defendant's response of

August 10, 1989 contains the government's

accounting of the monies to which Mr.

Fraser would be entitled, on or before

September 5, 1989, plaintiff shall file

a response indicating any specific

objection, if any, to the amount(s)

stated.

James F. Merow

Judge

App.62

IN THE UNITED STATES CLAIMS COURT

No. 25-87C

(Filed: September 14, 1989)

DAVID LAKRY FRASER

THE UNITED STATES

ORDER

The order of April 3, 1989 indicated

that plaintiff may be owned additionai

pay for service performed to reflect

increased longevity based upon constructive

service.

Defendant's response filed May 2,

1989 recognized that some additional back

pay was owed. Defendant's response filed

August 10, 1989 included a schedule of

additional back pay. By his response

filed September 12, 1989, plaintiff,

generally, but not completely, agrees with

the sums set forth by defendant.

App.63

In the above circumstances, it

is ORDERED:

(1) Defendant is liable to

plaintiff for additional back pay for

services performed by plaintiff within

the six years prior to the date suit

was commenced herein, to the extent

the pay actually received by plaintiff

| did not reflect plaintiff's constructive

service longevity;

(2) The parties shall promptly

confer to ascertain if agreement can be

reached as to the sum involved so that

a final judgment can be entered;

(3) If agreement as to the amount

due plaintiff can be reached, a Status

Report or stipulation so reporting sha}l

be filed;

(4) Absent prior agreement, on or

before October 14, 1989 a Status Report(s)

shall be filed indicating the ssnupbinwie?

proposed to resolve the matter of the

amount of additional pay due plaintiff

App.64

for his service actually performed

within the statute of limitations period.

James F. Merow

Judge

App.65

IN THE UNITED STATES CLAIMS COURT

No. 25-8/7C

(Filed: October 24, 1989)

DAVID LARRY FRASER

THE UNITED STATES

ORDER

The orders filed April 3, 1989 and

August 17, 1989 determined that, with

the exception of the question of entitle-

ment to an additional increment of pay to

reflect increased longevity based upon

constructive service, plaintiff's com-

plaint would be otherwise dismissed.

Proceedings were then initiated to resolve

the longevity pay issue raised.

Subsequently, defendant recognized

that some additional back pay was owed to

plaintiff and submitted a schedule support-

ing an additional payment of $1,484.65.

Plaintiff initially questioned the

amount but, by the Status Report filed

App. 66

October 16, 1989, notes that the

amount will not be contested. The

Status Report also notes issues plaintiff

considers unresolved, but it is concluded

that, as decided previously in the cited

orders, plaintiff has establaished enti-

tlement only to an additional increment

in pay, for the service he actually per-

formed, to reflect constructive service

longevity. This sum is now agreed to be

$1,484.65.

Thus, it is ORDERED that final

judgment now be entered in favor of

plaintiff in the amount of $1,484.65

for back pay owed, with all other claims

to be dismissed, and no costs to be

assessed.

James F. Merow

Judge

App.6/7

OOO VO

UNITED STATES CLAIMS COURT

DAVID LARRY FRASER

VS No. 25-87C

THE UNITED STATES

At the Claims Court held in the

City of Washington, on the 25th day

of October, A.D. 1989, judgment was

ordered to be entered as follows:

that plaintiff recover of and from the

United States the sum of $1,484.65 and

all other claims are dismissed. No

Costs.

A true copy of record.

In testimony whereof I have hereunto set

my hand and affixed the seal of said

Court at Washington, this 25th day

of October, A.D. 1989.

Frank Peachtree,

Clerk, Claims Court

Attest: James F. Merow,

Acting Chief Judge

App. 68

eee

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

90-5938

DAVID LARRY FRASER, PLAINTIFF-APPELLANT,

THE UNITED STATES, DEFENDANT-APPELLEE.

DECIDED: July 24, 1990

Before NIES, Chief Judge,* PLAGER,

Circuit Judge, and WILL, Senior Judzge.**

PER CURIAM.

DECISION

The judgment of the Claims Court,

Fraser v. United States, No. 25-8/7C

(Cl. Ct. Oct. 25, 1989), awarding

Plaintiff-Appellant Fraser $1,484.65

and dismissing all other claims is affirmed,

on the basis of the Claims Court's opinion.

See Banks v. Garreté, No. 89-1485

(Fed. Cir. February 9, 1990).

* Chief Judge Nies assumed the position of

Chief Judge on June 27, 1990.

** The Honorable Hubert L. Will, Senior

Judge, United States District Court for the

Northern District of Illinois, sitting by designation.

| App. 69

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

90-5038

DAVID LARKY FRASER, PLAINTIFF-APPELLANT,

THE UNITED STATES, DEFENDANT-APPELLEE.

JUDGMENT

ON APPEAL FROM THE UNITED STATES CLAIMS

COURT IN CASE NO(S). 25-87 C. THIS

CAUSE HAVING BEEN HEARD AND CONSIDERED,

IT IS ORDERED AND ADJUDGED: AFFIRMED.

Entered by ORDER OF THE COURT

Francis X. Gindhart, Clerk

DATED Jul 24 1990

Issued as a Mandate: August 14, 1990.

App. /9

senate nil

UNITED STATES MARINE CORPS

2nd Marine Amphibious Brigade

4th Marine Division (REIN), FMF, USMCR

4400 Dauphine Street

New Orleans, Louisiana 7/0146

29 JUL 88

To Whom It May Concern:

The undersigned served as Commanding

Officer, Marine Attack Helicopter

Squadron-773 (HMA-773), USMCR from

January 1980 until January 1982.

This is to certify that, during this

period, D. Larry Fraser made application

to join the above unit. He was unable

to join because of an unresolved ad-

ministrative issue concerning his Army

Reserve Status.

L. Taylor

Col. USMCR

Col. L. S. Taylor

| 47 South Prado

Atlanta, GA 30309

App./1

———————E

Application for Correction

of Military Records

ATTACHMENT #1 To DD Form 149, D. L. Fraser

10 JUN 79

4. That I be compensated for loss of

pecuniary benefits applicable to the

periods under examination: .

App. 72

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

WASHINGTON, D.C. 20380

11 Apr 1979

Mr. David L. Fraser

Stouffer Place, 26-8

Lawrence, Kansas 66044

Dear Mr. Fraser:

This is in response to your letter

concerning reenstatement of your

commission in the Marine Corps Reserve.

The Director, Judge Advocate Division,

has advised that you may not be reinstated

in the Marine Corps Reserve (as apposed

to reappointment) because to do so would

be in violation of the statute which

forbids a person from holding a commission

in two branches of the service at the

same time. The Director, Judge Advocate

Division, has further advised that a

App. 73

a iaatee neal

conditional release from the National

Guard would not suffice in that it

would not sever you from your present

status as a Chief Warrant Officer in

the Wational Guard.

Therefore, the two options which remain

available to you are those which have

been described in previous correspondence,

i.e. inter-service transfer as a CWO,

resignation of your commission as a CWO

in the guard and application for re-

appointment in the Marine Corps Reserve.

Please be assured that your unique dilemma

is understocd and appreciated. However,

I am sure that you recognize that we

are bound by the statutes in matters such

as these.

I regret that a more favorable response

is not possible and trust that the above

information will be of assistance to you

in determining the course of action you

App. 74

choose to pursue.

Sincerely,

H.C. Campbell

Head, Personnel Branch

Reserve Division

By direction of the Commandant

of the Marine Corps

Copy to:

Colonel D. W. SANTEE

Box 550

Lawrence, Kansas 66044

App. 7/5

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.