                                                                       mr,FBihts a r
                                                                {'}    l! $U lltd#til
         lln           tbe @nf                          te!      b     tsted @ourt of :feDerat @tsfmg
                                                                           No.l5-ll22c             FILED
                                                                            Filed: June 30,2016
                                                                           TO BE PUBLISHED                                                    JUN 3 0 20t6
                                                                                                                                          U.S. COURT OF
**       't
              * * * :i * :i * *   't'
                                        :t'   ****    *******   * * * * * * * * * * * * +,t   t   '*                                     FEDERAL CLAIMS
                                                                                                  *    Military Pay Act, 37 U.S.C.   $ 204;
                                                                                                  *    28 U.S.C. $ 2501 (Time for Filing Suit);
JOHNNY L. SQUIRES,                                                                                +    RCFC 12(b)(1) (Subject Matter Jurisdiction).

                    Plaintiff, pro se,



THE UNITED STATES,

                    Defendant.


*   l.   * * * * * i. * * * * *               {.   *************************                      *

Johnny L, Squires, Walterboro, South Carolina, pro                                                      se.

Joshua D. Schnell, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for the Govemment.

                                                     MEMORANDUM OPINION AND FINAL ORDER

BRADEN, /adge.

I.                  RELEVANT F'ACTUAL BACKGROUND.'

      Johnny L. Squires was enlisted in the United States Marine Corps on May 27, 1969.
Compl. App. at A1.2 Mr. Squires served in the United States Marine Corps for over fourteen

        I The relevant facts were derived from Plaintiff s October 5,2015 Complaint ("Compl.")
and the exhibits attached thereto ("Compl. App. A1-2"); the Govemment's February 2,2016
Motion To Dismiss ("Gov't Mot.") and the exhibits attached thereto ("Gov't App. Al-36"); and
Plaintiff s March 4,2016 Response ("P1. Resp.") and the exhibits attached thereto ("P1. Resp. App.
41-37"). See Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir. 1999) ("Fact-frnding is
proper when considering a motion to dismiss where the jurisdictional facts in the complaint . . .
are challenged.").

                    2 Because
                              in Plaintiff s October 5, 2015 Complaint incorrectly were numbered,
                              the pages
the court herein cites the page numbers assigned by the court when filed.
months before he was discharged "under conditions other than honorable."3 Compl. App. at A1 ;
Gov'tApp.atA1. During his term of service, Mr. Squires became ill and was granted a leave pass
onMay 22,1970. Pl. Resp. App. at,45. Mr. Squires was hospitalized from May 23, 1970 toMay
30, 1970, at Colleton Medical Center in Walterboro, South Carolina. Pl. Resp. at 1; Pl. Resp. App.
at 41, A2. Mr. Squires was diagnosed with pneumonia and hemoptysis. Pl. Resp. App. at A2.
Between May 31, 1970 and September 24, 1970, Mr. Squires accrued 116 days of continuous
unauthorized leave, which subjected him to the possibility oftrial by court martial. Gov't App. at
A7, At4.4

        On November 5,1970,    Mr. Squires submitted a request for an undesirable discharge after
he consultedwith a military lawyer. Pl. Resp. App. at A26; Gov't App. at A5, A7.s On November
25,1970, Mr. Squires's request was approved. Compl.App.atAl. The discharge waived a trial
by court martial. Gov't App. at A7.

         On July 11, 1979, Mr. Squires asked the Naval Discharge Review Board ("NDRB") to
upgrade his discharge status, because Mr. Squires believed that he could update his discharge
status at a later date. Gov't App. at 42; Compl. at 3. In his application to the NDRB, Mr. Squires
represented that, following his unauthorized leave, he was presented with a choice between re-
enlisting for six years or accepting an undesirable discharge. Gov't App. at 42. The NDRB
considered Mr. Squires's request, but denied it on November 26, 1979, finding that Mr. Squires
failed to provide "reliable, credible evidence to support [his] assertions." Gov't App. at A3, A7.

       On March 3,2003, Mr. Squires filed a petition with the Board for Correction of Naval
Records C'BCNR') to correct his military record. Gov't App. at A12.6 The petition represented
that Mr. Squires was not aware of the type of discharge he received. Gov't App. at A12. And,
when Mr. Squires requested a discharge on November 5, 1970, he was told by United States
Marine Corps personnel that he would receive a general discharge under honorable conditions.



       3
          Although the Government's February 2, 2016 Motion To Dismiss indicated that Plaintiff
served in the Marine Corps for approximately eighteen months, Form DD-214 lists that Plaintiff s
total service was fourteen months and two days. Compl. App. at Al; Gov't App. at A1.
       a
         The record does not clearly indicate where Plaintiffwas during the period ofunauthorized
leave between May 3 1, 1970 and September 24, I 970.

       5 The United States Nary formerly referred to a "discharge under other than honorable
conditions" as an "undesirable discharge." See 32 C.F.R. $ 742.109(3). An undesirable discharge,
now referred to as a discharge under conditions other than honorable, is an administrative
discharge. 1d. A dishonorable discharge is a punitive discharge ordered by court martial. ,See 32
c.F.R. $ 742.t11(b).
       6  Although the petition is, in fact, an appeal of the NDRB's decision, the application is
titled "Application for Correction of Military Record," and is referred to as an application for the
correction of his record by the BCNR. The NDRB's decision is not referenced in the BCNR
decision.
Gov't App. at A12. In addition, Mr. Squires claimed that he was suffering from a lung injury
received while on active duty and required disability benefits. Gov't App. at A12.

         On December 8, 2003, the BCNR denied Mr. Squires's petition, because "the evidence and
materials submitted were not sufficient to warant [re-characterization]" of his discharge. Gov't
App. at A15. The BCNR also found that Mr. Squires submitted his request for an undesirable
discharge on November 5, 1970 to be "spared the stigma of a court-martial conviction and the
potential penalties ofa punitive discharge and confinement at hard labor." Gov'tApp. atA14.

        On four occasions between 2010 and 2015, Mr. Squires requested that the BCNR
reconsider the December 8, 2003 decision. Gov't App. at 416-35. The BCNR denied each of
these requests. Gov't App. at 416-35.

IL       PROCEDURALHISTORY.

         On October 5,2015,Mr. Squires ("Plaintiff') filed a Complaint in the United States Court
of Federal Claims, alleging that: he was wongfully discharged from the United States Marine
Corps; his medical records were never included in his military record; and his discharge status
should be upgraded. Compl. at 3, 7.

        On October 19,2015, Plaintiff filed a Motion For Leave To Proceed In Forma Puuoerts.
that the court granted on October 21, 2015.

      On December 4,2015, the Govemment filed a Motion For Extension Of Time To File             An
Answer To The Complaint, that the court granted on December 7, 2015.

        On February 2, 2016, the Govemment filed a Motion To Dismiss, pursuant to Rule 12(bX1)
of the Rules of the United States Court of Federal Claims C'RCFC). On March 4,2016, Plaintiff
filed a Response. On March 21, 2016, the Government filed a Reply.

      On April 7 , 2016, Plaintiff filed a Memorandum under seal, requesting permission to file
documents in support of his case, that the court granted on May 12,2016.

III.     DISCUSSION.

         A.     Jurisdiction.

        The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C.
$   1491, "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 or unliquidated damages in
cases not sounding in tort." g 1a91(a)(l). The Tucker Act, however, is "only a jurisdictional
statute; it does not create any substantive right enforceable against the United States for money
               .
damages . . . [T]he Act merely confers jurisdiction upon [the United States Court of Federal
Claimsl whenever the substantive right exists." United States v. Testan,424IJ.S.392,398 (1976).

       To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an
independent contractual relationship, constitutional provision, federal statute, or executive agency
regulation that provides a substantive right to money damages. See Todd v. United States,386
F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker Act requires the litigant to
identifu a substantive right for money damages against the United States separate from the Tucker
Act[.]"); see also Fisherv. UnitedStates,402F.3d1167,1172 (Fed. Cir.2005)(enbanc)("The
Tucker Act . . . does not create a substantive cause of action; ... a plaintiff must identifu a separate
source of substantive law that creates the right to money damages . . . . [T]hat source must be
'money-mandating."'). Specifically, a plaintiff must demonstrate that the source of substantive
law upon which he relies "can fairly be interpreted as mandating compensation by the Federal
Govemment[.]" Testan, 424 U.S. at 400 (citing Eastport S.S. Corp. v. (Jnited States, 178 Ct. Cl.
599, 607 (1967)). And, the plaintiff bears the burden of establishing jurisdiction by a
preponderance ofthe evidence. See Reynolds v. Army & Air Force Exch. Serv.,846 F.2d746,748
(Fed. Cir. 1988) ("[O]nce the [trial] court's subject matter jurisdiction [is] put in question . . . [the
plaintiffl bears the burden of establishing subject matter jurisdiction by a preponderance of the
evidence."). This court has long recognized that the Military Pay Act, 37 U.S.C. g 204, "serves as
the money-mandating statute applicable to military personnel claiming damages and ancillary
relief for wrongful discharge . . . . [and] 'confers on an officer the dght to the pay of the rank he
was appointed to up until he is properly separated from the service. "' Holley v. United States, l24
F.3d 1462, 1465 (Fed. Cir. 1997) (quoting Sanders v. United States, 219 Ct. Cl. 285 (1979) (en
banc)). This right to pay serves as the basis for the court's Tucker Act jurisdiction. 1d To invoke
this court's jurisdiction in a military pay case, a plaintiff must file a complaint within six years
after such a claim accrues. 28 U.S.C. $ 2501.

        B.      Standard Of Review For Pro Se Litigants.

        Pro se plaintiffs' pleadings are held to a less stringent standard than those of litigants
represented by counsel. See Haines v. Kerner,404 U.S. 519,520 (1972) (holding thar pro se
complaints, "however inartfully pleaded," are held to "less stringent standards than formal
pleadings drafted by lawyers"). This court traditionally examines the record "to see if [apro se]
plaintiff has a cause of action somewhere displayed." Ruderer v. United Starcs, 188 Cl. Ct. 456,
468 ( 1969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiff s complaint,
the court "does not excuse [a complaint's] failures." Henke v. United \tates,60F.3d795,799
(Fed. Cir. 1995).

       C.      Standard For Motion To Dismiss Under RCFC 12(bxl).

        A challenge to the United States Court ofFederal Claims' "general power to adjudicate in
specific areas of substantive law .          is properly raised by a [Rule] l2(bx1) motion[.]"
Palmer v. United States,l68 F.3d 1310, 1313 (Fed. Cir. 1999); see a/so RCFC 12(b)(1) ("Every
defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . . But
a party may assert the following defense[] by motion: (1) lack of subject-matter jurisdictionf.]").
When considering whether to dismiss an action for lack of subject matter jurisdiction, the court
"must accept as true all undisputed facts asserted in the plaintiffs complaint and draw all
reasonable inferences in favor ofthe   plaintiff."   Trusled Intesration,   Inc.v. tlnited States.659 F.3d
1159, 1163 (Fed. Cir. 2011).

        D.     The Government's February 2, 2016 Motion To Dismiss.

                1.     The Government's Argument.

        The Govemment argues that the court does not have jurisdiction to adjudicate Plaintiff s
 wrongful discharge claim. Gov't Mot. at 6. Although Plaintiff s claim is subject to the Military
 Pay Act, it is now barred by the statute of limitations. Gov't Mot. at 6-7. Plaintiffls claim accrued
 in 1970 when he was undesirably discharged. Govlt Mot. at 7. Plaintiff s appeals to the BCNR
do not toll the statute of limitations. Gov't Mot. at         7. Therefore, the court does not have
jurisdiction to adjudicate Plaintiffs wrongful discharge claim, as the October 5, 2015 Complaint
was filed nearly 40 years after the six-year statute of limitations period. Gov't Mot. at 7.

        If the October 5, 2015 Complaint is construed as "seeking revision ofhis military records
to qualifu him for disability pay and benefits,"
                                              Plaintiff s claim also is baned by the six-year statute
of limitations. Gov't Mot. at 7. A claim for disability benefits accrues when a service member
first seeks and is denied disability benefits from a competent board. Gov't Mot. at 7. The
Government contends that Plaintiffs potential disability claims accrued on December 8,2003,
when the BCNR denied the request to change his discharge to a medical one and to find that he
incurred a lung injury during his service. Gov't Mot. at 7. Since Plaintiffs potential disability
claims accrued more than fourteen years ago, the court does not have jurisdiction to adjudicate
Plaintiff s disability claims. Gov't Mot. at 7-8.

               2.      PlaintiffsResponse.

       Plaintiff responds by urging the court not to dismiss this case, because sufficient evidence
was presented to show that: (1) Plaintiff s undesirable discharge was due to a conspiracy planned
by high ranking officers of the United States Marine Corps; and (2) the wrong medicine was
administered to Plaintiff when he was stationed at Guantanamo Bay, Cuba, causing his pneumonia
and leading to the accrual of I 16 days of unauthorized leave. Pl.Resp.at3.

               3.      The Court's Resolution.

       The court is cognizant of the obligation liberally to construe prc) se plaintiffs' pleadings.
See Estelle v. Gamble,429U.S.97,106 (1976) (holding thatthe "pro se document is to be liberally
construed"). Brtt, pro se plaintiffs must still "comply with the applicable rules ofprocedural and
substantive law." lValsh v. United States,3 Cl. Ct. 539, 541 (1983).

         Plaintiff requests that the court change his undesirable discharge status to a discharge for
medical reasons. Compl. at 7. Section 2501 of Title 28 provides that all claims of which the
United States Court ofFederal Claims has jurisdiction "shall be barred unless the petition thereon
                                                                                      .
is filed within six years after such claim first accrues." 28 U.S.C. $ 2501 This statute sets
'lurisdictional limits" on claims that the United States Supreme Court has held are "not susceptible
to equitable tolling." John R. Sand & Gravel Co. y. United States,552 U.S. 130, 136 (2008).
        It is well established that a claim "accrues as soon as all events have occurred that are
necessary to enable the plaintiff to bring suit, i.e., when 'all events have occured to fix the
Govemment's alleged liabilityf.j"' Martinez v. United States,333 F.3d 1295, 1303 (Fed. Cir.
2003) (en banc) . A claim for back pay accrues at the time the service member is discharged from
the military. Id. ("In a military discharge case . . . the Court of Claims ha[s] long held that the
plaintiffs cause of action for back pay accrues at the time of the plaintiffs discharge."); see also
Johnson v. United States, 123 Fed. Cl. 174, 177 (2015) C'Military pay claims based on a theory of
wrongful discharge accrue at the time of discharge."). In this case, the statute of limitations is not
tolled by Plaintiffs petitions to the NDRB or BCNR. See Martinez,333 F.3d at l3l2 ("The
creation ofa permissive administrative remedy, either by statute or by regulation, does not affect
the time period for which Congress has waived sovereign immunity and permitted judicial relief
to be sought."); see also Friedman v. United States, 159 Ct. Cl. 1, 11 (1962) ("Where . . . an
administrative remedy is permissive . . . the running of limitations is not deferred or tolled by such
optional administrative consideration."). Plaintiff s claims for wrongful discharge accrued in
November 1970. Compl. App. at A1. Plaintiff did not file a Complaint until October 5,2015,
almost 40 years after the six-year statute of limitations period. As such, Plaintiff s claim for
wrongful discharge is barred by the statute of limitations. Moreover, even ifthe October 5, 2015
Complaint is construed as a claim for disability benefits, that claim accrued in 2003, after the
BCNR denied Plaintiffs request to upgrade his discharge to a medical one and consider him for
disability benefits. See Friedman, 159 Cl Cl. at 13.

        For these reasons, the court must dismiss the claims alleged in the October 5, 201 5
Complaint. Although Plaintiff s claims are barred in this court, the United States Navy on June 1,
2016, adopted a policy that may be relevant to Plaintiff s claims. Under this new policy, the United
States Navy will consider diagnosed mental health conditions in determining a service member's
discharge characterization and disability status when the service member is processed for any type
of involuntary administrative separation. If a diagnosed medical condition contributed to
misconduct by the service member, the medical condition will take precedence over the
misconduct issues. A service member who believes that this policy affects his current discharge
or disability status may file a petition with the BCNR to have his status reviewed, and no statute
of limitations applies to such an appeal.T




         'See Memorandum from Ray Mabus, Secretary of the United States Navy, to the Chief of
Naval Personnel (June l, 2016) (on file with the United States Navy); Press Release, United States
Navy, SECNAV Announces New Administrative Separation Policy, No. NNSI60601-18 (June l,
20 1 6), www.navy.miVsubmiVdisplay.asp?story_i d=9 4996.
IV.   CONCLUSION.

     For these reasons, the Government's February 2, 2016 Motion to Dismiss is granted.
RCFC 12(bxl). The Clerk is directed to dismiss the October 5, 2015 Complaint.

      IT IS SO ORDERED.
