                                     ORIGINAL
              3Jn tbe Wlniteb ~tates QCourt of jfeberal QClai1ns
                                           No. 17-1142C

                                        (Filed: July 9, 2018)

 **********************************
 AUSTIN B. CAMPBELL,                            )    Military pay case; entitlement to retirement
                                                )    pay; service as an Army reservist;
                        Plaintiff,              )    jurisdiction; computation of retirement
                                                )    points
         v.                                     )
                                                )
 UNITED STATES,                                 )
                                                                               FILED
                                                )
                        Defendant.              )
                                                                             JUL -9 2018
                                                )                           U.S. COURT OF
 ********************************** )                                      FEDERAL CLAIMS



        Austin B. Campbell, prose, Euless, Texas.

        Daniel S. Herzfeld, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Depa1tment of Justice, Washington, D.C., for defendant. With him on the briefs were
Chad A. Readier, Acting Assistant Attorney General, Civil Division, and Robe1t E. Kirschman,
Jr., Director, and Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C. of counsel was Major Danel
Mazzone, Judge Advocate, Litigation Attorney, United States Army Legal Servies Agency.

                                     OPINION AND ORDER

LETTOW, Judge.

       This military pay case is before the comt on defendant's motion to dismiss pursuant to
Rule 12(b)(l) of the Rules of the Court of Federal Claims ("RCFC") or, in the alternative, for
judgment on the administrative record under RCFC 52. l(c). Plaintiff, Austin Campbell, seeks
retirement pay related to his service first on active duty in the United States Army and later in the
Army Reserve. For the reasons set out below, the court grants the government's motion to
dismiss for lack of subject matter jurisdiction and, in the alternative, grants its motion for
judgment on the administrative record.

                                         BACKGROUND

       Mr. Campbell was commissioned as an officer in the United States Army Reserve
subsequent to his graduation in June 1962 from the United States Army Reserve Officer Training




                                                                7012 3460 0001 7791 7982
Corps at Ohio State University. Comp!. ii 5; AR 734. 1 He served on active duty in the Army
until 1967. Comp!.~ 5; AR 543. After 1967, Mr. Campbell served in the Army Reserve,
including sporadic periods of active duty, until 1983. See AR 3, 90. On July 14, 2000, Mr.
Campbell turned 60 years old. Comp!.~ 5. In August 2004, he requested reserve retirement
benefits from the United States Army Reserve Personnel Center, providing a variety of
documents relating to his service. AR 161. The administrative record does not include the
Army's response to this request.

         Retirement benefits are available under 10 U.S.C. §§ 12731-12732 to those reservists
who served in the armed forces and who have reached the age of 60 after having earned a
minimum of 50 points each year for at least 20 years of service. See Army Regulation 140-185,
~~ 1-7; 2 10 U.S.C. § 12731(a), (f); AR 59. Members of the armed forces earn one point for every
day of active or full-time service; reserve members earn 15 points yearly for membership. 10
U.S.C. § 12732(a)(2)(A), (C). Thus a year spent in full-time service would result in an
individual earning 365 points for that year. Comp!. ~ 26. There are multiple ways for reservists
to earn points, including serving in a reserve component, attending a drill or formal instrnction,
or performing funeral honors. See 10 U.S.C § 12732(a)(2).

        In April 2014, Mr. Campbell requested that the Army Board for Correction of Military
Records ("Army Board" or "Board") amend his records in light of"numerous errors and
omissions" in the record of his service. AR 89. On May 15, 2014, the Board informed Mr.
Campbell that it could not consider his application until he had "exhausted all administrative
remedies," and in that regard to contact the United States Army Human Resources Command
("HR Command"). AR 88. The HR Command, which is responsible for maintaining retirement
records, 3 first received documents and records from Mr. Campbell on May 27, 2014. AR 9.
Over the next four years, the HR Command recalculated Mr. Campbell's retirement points on
three different occasions; 4 its last recalculation was produced on February 27, 2018 ("2018
Statement"). See AR 3, 14, 888.


       1"AR"   refers to the administrative record filed on March 19, 2018. Mr. Campbell
maintains that the administrative record omits thirteen significant documents. See Pl. 's Suppl.
Compl.'ll 2, ECF No. 15. The government responds that twelve of the thirteen documents are
included in the administrative record. See Def. 's Mot. to Dismiss and Mot. for Judgment on the
Administrative Record ("Def. 's Mot.") at 8, ECF No. 18.

       2
         Army Regulation 140-185 is available at:
https://armypubs.army.mil/epubs/DR__pubs/DR_a/pdf/web/r140_185.pdf (last visited July 5,
2018).
       3See https://armypubs.army.mil/epubs/DR__pubs/DR_a/pdf/web/rl 40_185.pdf (last visited
July 5, 2018).
       4
        An accounting of Mr. Campbell's retirement points was prepared by HR Command on
October 30, 2014 ("2014 Statement"), AR 14, and on Febrnary 12, 2015, HR Command again
recalculated Mr. Campbell's retirement points ("2015 Statement"), AR 3. Notably, in the 2015
Statement, the HR Command made several other changes to Mr. Campbell's retirement
                                                2
        These relatively recent requests by Mr. Campbell for relief were preceded by requests
made throughout his military career and thereafter to correct alleged inaccuracies in his militmy
records as well as in his pay and allowances. See Comp!. if 9. 5 Although Mr. Campbell's
complaint currently before the court was filed on August 23, 2017, it reflects a summary issued
in 1982 of his retirement points concerning his Army career from June 8, 1968 to June 7, 1982;
see Comp!. iii! 5, 8-9, 14; AR 29. In alleging his claim, Mr. Campbell also relied on the HR
Command's 2014 Statement. See Comp!. 'ii 26. In a supplemental complaint, submitted after the
filing of the administrative record on March 20, 2018, Mr. Campbell acknowledged the HR
Command's 2018 Statement, which recognized that he had achieved a minimum of at least 50
points in each of 18 years of service, 2 years short of the 20 needed to be eligible for retirement
benefits. Pl. 's Suppl. Comp!. 'ii 3.

        The parties agree that Mr. Campbell's service qualified towards retirement benefits from
June 8, 1962 to June 7, 1980. Comp!. 'iii! 6-7, 9-11, 14, 16, 19; AR 888. 6 Two immediately
subsequent years are at issue. Mr. Campbell contends that he earned more than 50 points in each
of the two years between June 8, 1980 and June 7, 1982, and thus netted over 50 points for 20
years to qualify for retirement benefits. See Comp! 17-19, 22. He claims that the administrative
record does not reflect several short tours of duty he undertook during the period between June 8,
1980 and June 7, 1981. Comp!. 'i!'il 17, 18. The 2018 Statement noted 44 points in that period.
AR 888. Mr. Campbell further alleges that several short tours of duty during the period from
June 8, 1981 to June 7, 1982 were also not included in the record. Comp!. ifi! 19, 22. The 2018
Statement reported that Mr. Campbell had earned 32 points during that period. AR 888. Despite
the deficiency in points for these two years, Mr. Campbell avers that he "is entitled to the
retirement pay of a major with over 18 years of service or one half of the cutTent rate." Comp!. 'ii
26. In response, the government contends that "the A1my Human Resources Command was
unable to verify any additional points" and that Mr. Campbell thus does not meet the criteria for
reserve retirement. Def.' s Mot. at 8. In effect, Mr. Campbell asks the court to recalculate the
points HR Command determined he emned in the 2018 Statement. Comp!. 'ii 26.

        Mr. Campbell also claims that because "the Army [in the 2018 Statement] acknowledges
that [he] had accrued at least 18 years qualifying service, it had the duty by Army Regulation to
offer [him] the opportunity to be retained to complete 20 years of qualifying service." PL' s
Suppl. Comp!. 'ii 3. While maintaining that he never received notification in 1984 of his
discharge, see AR 613, Mr. Campbell contends that receipt of the discharge notice was

documentation beside point totals, including, among other things, correcting Mr. Campbell's
rank. See Def.' s Mot. at 4 & n.4.
       5In  particular, Mr. Campbell argues that corrections made in 1972 were not properly
reflected in later documentation. Comp!. if 9. Mr. Campbell also filed claims with this court's
predecessors in 1978 and 1981, which claims involved periods of service in which he was on
active duty for training. See Campbell v. United States, 228 Ct. Cl. 789 (1981) (claims for
allowances); Campbell v. United States, 2 CL Ct. 247 (1983) (claim for pay and allowances).

       6Mr. Campbell's service in 1967 was not counted towards his retirement calculation until
the 2018 Statement. AR 888.
                                                 3
meaningless, as he would still have the right "by law and regulation" to complete 20 years of
service. Pl.' s Suppl. Com pl. if 3. He alleges that the Army mismanaged the administrative
record and that their "incompetence and indifference" resulted in an unfair early discharge.
Com pl. iJ 25.

         Under the sanctuary statute, 10 U.S.C. § 12686, "a member of a reserve component who
is on active duty (other than for training) and is within two years of becoming eligible for retired
pay or retainer pay under a purely military retirement system ... may not be involuntarily
released from that duty before he becomes eligible for that pay." Mr. Campbell contends that
had the Army maintained colTect records, he would not have been discharged and "would have
stayed in the active reserves for at least 30 years." Comp!. iJ 25. Mr. Campbell seeks $775,220
in retirement back pay and future monthly retirement payments. Comp!. at 8.

                                STANDARDS FOR DECISION

                                         Motion to Dismiss

        In any action, the plaintiff has the burden of establishing jurisdiction. Reynolds v. Army
& Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). In ruling on a motion to dismiss
for lack of jurisdiction, the comi must construe the allegations of the complaint in the light most
favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other
grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). The leniency afforded a prose plaintiff
with respect to formalities does not relieve prose litigants of their obligation to satisfy
jurisdictional requirements. Kelley v. Secretary, United States Dep 't of Labor, 812 F.2d 1378,
1380 (Fed. Cir. 1987).

         "[J]urisdiction under the Tucker Act exists ifthe statute, regulation, or constitutional
provision that is the basis for the complaint 'can fairly be interpreted as mandating compensation
by the Federal Government for the damage sustained,' and is 'reasonably amenable to the
reading that it mandates a right ofrecovery in damages." Jan's Helicopter Serv., Inc. v. F.A.A.,
525 F.3d 1299, 1307 (Fed. Cir. 2008) (quoting United States v. Mitchell, 463 U.S. 206, 217
(1983); United States v. White Mountain Apache Tribe, 537 U.S. 465, 473 (2003)) (additional
citation omitted). "Every claim of which [this court] has jurisdiction shall be barred unless the
petition thereon is filed within six years after such claim first accrues." 28 U.S.C. § 2501.

       "Where th[ is] court has not been granted jurisdiction to hear a claim, the case must be
dismissed." Trevino v. United States, 113 Fed. Cl. 204, 207 (2013) (citing Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006)); see also RCFC Rule 12(h)(3) ("If the court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the action.").

                             Judgment on the Administrative Record

        For motions under RCFC 52.l(c), i.e., for judgment on an administrative record, "[t]he
standards and criteria ... vary depending upon the specific law to be applied in particular case."
RCFC 52.1 Rules Committee Note, 2006 Adoption. In challenges to decisions by military
boards, the scope of review "is limited to determining whether a decision of the ... Board is
arbitrary, capricious, unsuppmied by substantial evidence, or contrary to applicable statutes and

                                                 4
regulations." Melendez Camilo v. United States, 642 F.3d 1040, 1044 (Fed. Cir. 2011) (quoting
Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983)). The arbitrary and capricious
standard "requires a reviewing court to sustain an action evincing rational reasoning and
consideration ofrelevant factors." Advanced Data Concepts, Inc. v. United States, 216 F.3d
1054, 1058 (Fed. Cir. 2000).

        As a general matter, this comt's role in military record cases is a limited one. It is
"beyond the institutional competence of courts to review" the substance of decisions that have
been left exclusively to the discretion of the military. Lindsay v. United States, 295 F.3d 1252,
1257 (Fed. Cir. 2002); see also Chappell v. Wallace, 462 U.S. 296, 301 (1983) ("It is clear that
the Constitution contemplated that the Legislative Branch has plenary control over rights, duties,
and responsibilities in the framework of the military establishment, including regulations,
procedures and remedies related to military discipline; and Congress and the courts have acted in
conformity with that view.").

                                            ANALYSIS

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

       Mr. Campbell's claim for retirement pay arguably matured when he turned 60 on July 14,
2000. See 10 U .S.C. § 12731 (a)(l )-(2) ("A person is entitled, upon application, to retired pay" if
they have "attained the eligibility age applicable under subsection (f)" and "perfo1med at least 20
years of service computed under [S]ection 12732 of this title."). The recognized eligibility age
under Subsection (f) "is 60 years of age," 10 U.S.C. § 1273 l(f), and Mr. Campbell alleges that
he had 20 years of qualifying service at that time. Mr. Campbell first brought his claim to this
comt in August 2017.

        This court's statute of limitations extends six years after a claim first accrues. See 28
U.S.C. § 2501; John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 134 (2008).
Recognizing this time constraint, Mr. Campbell has requested that the statute of limitations be
tolled in light of his earlier attempts to secure administrative remedies. Mr. Campbell argues
that he "made numerous attempts to correct the record through administrative action and
appeals" well within the relevant statute of limitations for this court. Comp!. ii 27. He futther
contends that because the 2018 Statement was the first signal that he was "eligible for retention
to qualify for retirement," the statute oflimitations began to run upon its completion. Pl.'s
Suppl. Comp!. ii 4.

        "As regards military retired pay, a cause of action accrues on the date upon which
plaintiff claims he became eligible for retired pay." Brooks v. United States, 70 Fed. Cl. 479,
484 (2006) (citing Garcia v. United States, 617 F.2d 218, 221 (Ct. Cl. 1980)). Mr. Campbell's
claim, therefore, accrued on July 14, 2000, his sixtieth birthday. Mr. Campbell did not file a
claim until seventeen years later, well outside the limitations period provided in 29 U.S.C. §
2501. And, in ordinary circumstances, Mr. Campbell's pursuit ofremedies before the Army
Board and the HR Command would not toll the statute of limitations. See Martinez v. United
States, 333 F.3d 1295, 1312 (Fed. Cir. 2003) ("It is well settled that the statute of limitations for



                                                  5
Tucker Act claims is not tolled by the claimant's exercise of his right to seek permissive
administrative review of his claim.").

        Mr. Campbell implies that his allegedly wrongful discharge stopped the accrual of the
statute of limitations because he learned his service constituted 18 years for retirement-benefit
purposes upon receipt of the 2018 Statement. Pl. 's Suppl. Comp!. 'if 3; see also Def. 's Mot. at 11.
But, "[i]n a military discharge case, [the Federal Circuit] and [this court's predecessor] have long
held that the plaintiffs cause of action for back pay accrues at the time of the plaintiffs
discharge." Martinez, 333 F.3d at 1303. Because Mr. Campbell's service was terminated on
January 27, 1983, this court could only have reviewed his wrongful-discharge claim iffiled
before January 27, 1989. Even considering that Mr. Campbell was not formally notified of his
discharge in 1984, that does not preserve a related claim filed 34 years later.

         In limited circumstances, the Federal Circuit has applied an "accrual suspension rule"
where "the accrual ofa claim against the United States is suspended, for purposes of28 U.S.C. §
2501, until the claimant knew or should have known that the claim existed." Young v. United
States, 529 F.3d 1380, 1384 (Fed. Cir. 2008) (quoting Martinez, 333 F.3d at 1319). But "to
achieve such suspension the plaintiff must either show that the defendant has concealed its acts
with the result that plaintiff was unaware of their existence or it must show that its injury was
inherently unknowable at the accrual date." Id. (internal citations and quotations omitted). Mr.
Campbell had personal knowledge of his service, and he has not provided any evidence that the
Army purposely concealed its decisions from him. 7 Rather, he bases his argument for tolling the
statute of limitations on the numerous attempts he made to remedy perceived errors in the
administrative record. See Pl. 's Comp!. 'if 27; Pl. 's Suppl. Comp!. 'if 4. Mr. Campbell's inclusion
of the 1982 account of his retirement points in his complaint emphasizes that in 1982 he became
aware that the Army did not believe he was eligible for retirement, see Comp!., Ex. A., and that
this circumstance has continued thereafter. Accordingly, because Mr. Campbell's claims did not
accrue during the six years before filed his complaint, this comi does not have subject matter
jurisdiction over his claim.

                     II. Judgment on the Administrative Record-Rule 52.1

        Given the very recent action by the A1my's Human Resources Command, the
government alternatively has asked the court to enter judgment in the government's favor based
upon the administrative record. Mr. Campbell counters that request by endeavoring to show that
he in fact has 20 years of qualifying service under the retirement-benefit point system prescribed
in I 0 U.S.C. §§ 12731-12732. Mr. Campbell's complaint in pmi addressed alleged
miscalculation of points earned in his service between June 8, 1969 and June 7, 1980. See
generally Comp!. The 2018 Statement, however, determined that Mr. Campbell's service in


       7
        Notwithstanding Mr. Campbell's asse1tion that he never received notice that he was
denied a promotion and thus discharged from the Army Reserve, see Pl.'s Suppl. Comp!. 'if 3; AR
613, he acknowledged that denial in his complaint, Comp!. 'if 25 ("Plaintiff was due for
promotion to the next higher grade of LTC in October 1982 based upon seven years in grade as a
major, and this milestone was overlooked.").


                                                  6
those periods counted toward his retirement benefits. See AR 888. While earlier records may
have miscalculated the points Mr. Campbell earned, 8 subsequent records have included points for
those years in measuring Mr. Campbell's eligibility for retirement. AR 3, 14, 888.

        Mr. Campbell is thus left to contend that the points for the two periods between June 8,
1980 and June 7, 1982 fail to properly account for his service. Comp!. ii 17, 18, 19, 22. Mr.
Campbell provided two pay vouchers to the HR Command for their consideration in making
calculations regarding the period from June 8, 1980 and June 7, 1981. AR 892-93. Upon
review, in the 2018 Statement, the HR Command increased the number of points Mr. Campbell
earned in those two periods. AR 888. The HR Command added 16 points to the 2018 Statement
for the 80-81 year after review of the first pay voucher. AR 888. The information provided by
the second voucher for the 81-82 year had already been included in the 2015 Statement. AR 3.
The HR Command did not find evidence of any further service in the period between June 8,
1981 and June 7, 1982. See AR 3, 888.

       Mr. Campbell offers no evidence that the HR Command's actions in calculating
retirement benefit points for the periods between June 8, 1980 and June 7, 1982 were arbitra1y
and capricious or unsupported by substantial evidence. Retirement benefit points are based on
documentation and determined by Army Regulations. Army Regulation 140-185, ii 3-1; Army
Regulation 600-8-104, iiil 5-8. 9 The documents attached to Mr. Campbell's complaint-all but
one of which were already included in the administrative record-did not show that Mr.
Campbell had earned more than 50 points towards retirement benefits in the two periods
spanning 1980-1982. AR 888.

        Mr. Campbell's attempt to bring a claim under the sanctuary statute, 10 U.S.C. §
l 2686(a), is similarly unsuccessful. That statute provides that "a member of a reserve
component who is on active duty (other than for training) and is within two years of becoming
eligible for retired pay or retainer pay under a purely military retirement system ... may not be
involuntarily released from that duty before he becomes eligible for that pay." 10 U.S.C. §
12686(a). To invoke Section 12686, a member of the reserve forces must be on active duty and
within two years of eligibility for retirement benefits. Active duty for training is not considered
active duty for purposes of 10 U.S.C. § 12686. See Wilson v. United States, 917 F.2d 529, 535-
36 (Fed. Cir. 1990). Mr. Campbell's service between June 8, 1979 and June 7, 1980 was
classified as active duty for training. AR 72, 137, 440; Comp!. ii 16 & Ex. R; see also Campbell,
2 Cl. Ct. at 248 (rejecting his claim for pay and allowance during active duty for training in
1981, taking into account a setoff attributable to an early release from an assigned duty in 1979).


       8
         The 2014 Statement, 2015 Statement, and 2018 Statement differ in the points earned in
the periods between June 8, 1969 and June 7, 1980. Most of the points awarded in those periods
had always been over 50, and thus counted towards Mr. Campbell's retirement pay. In the 2018
Statement, only the change in point totals between June 8, 1976 and June 7, 1977, and June 8,
1977 and June 7, 1978 affected Mr. Campbell's eligibility for retirement benefits.

       9  Almy Regulation 600-8-104 is available at:
https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/r600 _ 8_ l 04.pdf (last visited July 5,
2018).
                                                 7
As a result, for the purposes of 10 U.S.C. § 12686, the period from June 8, 1979 to June 7, 1980,
does not qualify as a year spent on active duty because Mr. Campbell's active duty was only for
a limited part of that year-long period and then also was only for training.

       Because Mr. Campbell has not demonstrated that the Army HR Command's
determination of his retirement points was not based on substantial evidence or that 10 U.S.C. §
12686 applied, the HR Command's decision that he is not eligible for a reserve retirement is
upheld. The court thus also grants the government's motion for judgment on the administrative
record under Rule 52. l(c).

                                        CONCLUSION

        For the reasons stated, the government's motion to dismiss plaintiffs complaint and, in
the alternative, its motion for judgment on the administrative record, are GRANTED. The clerk
shall enter judgment in accord with this disposition.

       No costs.

       It is so ORDERED.



                                                    Charles F. Lettow
                                                    Judge




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