                       Note: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                       2007-5162


                                BRENDA J. MARTINEZ,

                                                       Plaintiff-Appellant,

                                            v.


                                   UNITED STATES,

                                                       Defendant-Appellee.


      Brenda J. Martinez, of Arlington, Virginia, pro se.

       Gregg M. Schwind, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief was Bryant G. Snee, Deputy Director.

Appealed from: United States Court of Federal Claims

Judge Susan G. Braden
                      NOTE: This disposition is nonprecedential.


    United States Court of Appeals for the Federal Circuit


                                      2007-5162


                               BRENDA J. MARTINEZ,

                                                      Plaintiff-Appellant,


                                           v.


                                  UNITED STATES,

                                                      Defendant-Appellee.

      Appeal from the United States Court of Federal Claims in 06-CV-797,
      Judge Susan G. Braden.

                           __________________________

                           DECIDED: January 10, 2008
                           __________________________



Before LOURIE, SCHALL, and BRYSON, Circuit Judges.

PER CURIAM.

                                      DECISION

      Brenda J. Martinez appeals the final decision of the United States Court of

Federal Claims that granted judgment on the administrative record in favor of the United

States on her military pay claim. Martinez v. United States, 77 Fed. Cl. 318 (2007). At

the same time, Ms. Martinez moves for an order directing the Court of Federal Claims to
enter judgment on the administrative record in her favor. For the reasons set forth

below, we affirm the decision of the Court of Federal Claims and deny Ms. Martinez’s

motion.

                                       DISCUSSION

                                             I.

       Ms. Martinez enlisted in the United States Army in 1984, eventually attaining the

rank of staff sergeant. Id. at 319. However, on November 8, 2001, she was honorably,

but involuntarily, discharged from the Army pursuant to the Army’s Qualitative

Management Program (“QMP”). Id. at 320. As the Court of Federal Claims noted, the

Army implemented the QMP in order to “enhance the quality of the career enlisted

force; selectively retain the best qualified force members; deny continued service to

nonproductive force members; and encourage force members to maintain eligibility for

further service.” Id. at 319 n.2.

       Following her discharge, Ms. Martinez applied to the Army Board for Correction

of Military Records (“ABCMR” or “Board”) for relief. Id. at 320. In her application, she

requested that her discharge be set aside.        Id. at 320–21.   The Board denied her

application on November 24, 2003, and denied a request for reconsideration on August

16, 2005. Id. at 321.

       On November 28, 2006, Ms. Martinez filed suit in the Court of Federal Claims

challenging the Board’s denial of her application. Id. In her suit, she alleged that her

discharge was improper.       Id.   She sought constructive reinstatement in the Army,

retirement with 20 years of service, back pay and benefits, retroactive promotion to the

rank of sergeant first class, and administrative correction of her military records. Id. In




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due course, the government moved, pursuant to Court of Federal Claims Rule (“RCFC”)

12(b)(6), to dismiss for failure to state a claim upon which relief could be granted the

portion of Ms. Martinez’s suit seeking a retroactive promotion. Id. at 324–25. As to the

balance of the suit, the government moved for judgment on the administrative record

pursuant to RCFC 52.1. Id. at 321.

         On June 29, 2007, the Court of Federal Claims issued a decision ruling on the

government’s motions. See generally id. The court granted the government’s motion to

dismiss Ms. Martinez’s claim for a retroactive promotion. Id. at 326. The court did so

on the ground that it lacked jurisdiction to grant the equitable relief being sought and

that, even assuming arguendo it did have jurisdiction, it would decline to exercise its

authority because promotion is a matter left to the discretion of the military. Id. at 325–

26. At the same time, the court granted the government’s motion for judgment on the

administrative record. Id. at 330. The court determined that Ms. Martinez had failed to

establish that the decision of the ABCMR on her application was arbitrary, capricious,

unsupported by substantial evidence, or contrary to law. Id. at 326–30.

                                            II.

         We have jurisdiction over Ms. Martinez’s appeal pursuant to 28 U.S.C.

§ 1295(a)(3). Before us, Ms. Martinez does not challenge the decision of the Court of

Federal Claims insofar as it dismissed her claim for a retroactive promotion. Rather,

she contends that the Court of Federal Claims should not have granted the

government’s motion for judgment on the administrative record before the ABCMR, and

she in turn asks for an order directing judgment on the administrative record in her

favor.




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       As noted above, Ms. Martinez was discharged under the Army’s QMP. On

appeal, she argues that the ABCMR erred in denying her application for relief because

the evidence before the Board did not support the Army’s QMP discharge action. She

contends that, in lieu of receiving a QMP discharge, she should have been retired

pursuant to Temporary Early Retirement Authority (“TERA”).       Ms. Martinez states:

              Despite the claim of incompetence, not one single
              demonstrative example is ever cited anywhere, on any
              [Noncommissioned Officer Evaluation Report (“NCOER”)] or
              indeed indicated anywhere else. Appellant asserts that the
              legal burden of 50% and a feather has been met in the
              proceedings below. There is a plethora of demonstrative
              evidence to suggest appellant was everything but
              incompetent, by a wide variety of individuals and authorities.
              To deny . . . retirement . . . [under TERA was] improper. A
              separation code of incompetence is unwarranted in this
              instance.

       In addition, Ms. Martinez argues that the Court of Federal Claims erred by failing

to give sufficient weight to evidence in the record in her favor and by failing to apply the

doctrine of equitable estoppel. According to Ms. Martinez, application of the doctrine

would have prevented consideration of certain negative material in her record.

                                            III.

       Before the Court of Federal Claims, Ms. Martinez had the burden of establishing

that the decision of the ABCMR was arbitrary, capricious, contrary to law, or

unsupported by substantial evidence. See Roth v. United States, 378 F.3d 1371, 1381

(Fed. Cir. 2004); Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983). For our

part, we review the decision of the Court of Federal Claims granting the government’s

motion for judgment on the administrative record without deference, reviewing de novo

whether the plaintiff met her burden of proving that the ABCMR’s decision was arbitrary,




2007-5162                                    4
capricious, contrary to law, or unsupported by substantial evidence. Barnes v. United

States, 473 F.3d 1356, 1361 (Fed. Cir. 2007). Applying the applicable standards of

review, we see no error in the decision of the Court of Federal Claims granting the

government’s motion under RCFC 52.1 for judgment on the administrative record.

                                          IV.

      We turn first to Ms. Martinez’s argument that the decision of the ABCMR is not

supported by substantial evidence.

      The record before the Board included four NCOERs. The first NCOER, issued

during Ms. Martinez’s service in Korea in 1995, noted various competence issues.

Martinez, 77 Fed. Cl. at 319. The second NCOER, covering the period from late 1995

to early 1996, reflected concerns regarding Ms. Martinez’s leadership, responsibility,

and accountability. Id. at 320. The third NCOER, issued during Ms. Martinez’s service

at Fort Bragg, North Carolina, and covering the period from early 1998 to early 1999,

stated that Ms. Martinez required improvement in the areas of competence and

leadership. Id. Finally, the fourth NCOER, covering the period from early 1999 to early

2000, spoke of Ms. Martinez’s need for improvement in the areas of competence,

leadership, training, and responsibility/accountability. Id. These four NCOERs, which

noted deficiencies in Ms. Martinez’s performance, constitute substantial evidence in

support of the Board’s decision not to disturb the QMP discharge.

                                          V.

                                          A.

      We consider next Ms. Martinez’s arguments with respect to the decision of the

Court of Federal Claims. As noted, Ms. Martinez’s first claim is that, in sustaining the




2007-5162                                  5
decision of the ABCMR, the court failed to give sufficient weight to the evidence that

was before the Board that was in her favor. Specifically, she focuses on the court’s

alleged failure to properly consider recommendations that she be retained or promoted,

the lack of adverse disciplinary actions in her record, and other evidence that supports

her claim.

       Ms. Martinez’s argument that the Court of Federal Claims failed to give sufficient

weight to evidence in her favor is essentially a repetition of her argument that the

decision of the Board is not supported by substantial evidence, which we have

addressed above. In any event, the Court of Federal Claims did in fact conduct a

proper review of the record. The court noted that Ms. Martinez had received an Army

Good Conduct Medal, that the Army repeatedly promoted her, and that she had

received several positive character references.     Id. at 327. Having considered this

evidence, the court nevertheless concluded that the ABCMR’s decision to uphold Ms.

Martinez’s discharge was supported by substantial evidence. Id. at 329. We see no

error in that decision.

                                               B.

       Ms. Martinez’s equitable estoppel argument arises from the fact that, prior to the

Army deciding to discharge her under the QMP, she received a good conduct medal.

Under these circumstances, she argued to the Court of Federal Claims, the Army was

estopped from considering the negative NCOERs in her record.             In making this

argument, she relied on Watkins v. United States, 875 F.2d 699 (9th Cir. 1989). In that

case, a plaintiff who was discharged from the military on the basis of homosexuality

successfully argued that the military was estopped from denying him reenlistment when




2007-5162                                  6
it had repeatedly permitted him to serve notwithstanding the military’s regulations

requiring discharge of homosexual servicepersons. Id. at 703, 711. The court, applying

Ninth Circuit estoppel law, determined that equitable estoppel was available to the

plaintiff insofar as the government had acted wrongfully in permitting him to serve in

contravention of military regulations and insofar as the potential injury to him far

exceeded any potential detriment to the public that would arise from his reenlistment.

Id. at 707–09.

      We see no error in the Court of Federal Claims’ rejection of Ms. Martinez’s

equitable estoppel argument. First, the Court of Federal Claims correctly held that the

standards for the QMP review program differ substantially from the standards for the

award of a good conduct medal, so that the Army did not behave inconsistently in

awarding Ms. Martinez the good conduct medal yet later discharging her. Martinez, 77

Fed. Cl. at 328–29. Ms. Martinez’s negative NCOERs provided grounds for her QMP

discharge.

      Neither did the Court of Federal Claims err in rejecting Ms. Martinez’s Watkins

argument. Aside from the fact that Watkins is not binding precedent for the Court of

Federal Claims, the facts of that case are entirely different from those here. *        In

Watkins, the Ninth Circuit made the government subject to estoppel because it had

acted in contravention of its own policies in allowing Mr. Watkins to serve. 875 F.2d at

707–08. Here, the Army did not violate any of its policies. In addition, as already noted,

the fact that Ms. Martinez received a good conduct medal did not immunize her from a

QMP discharge in view of her negative NCOERs.



      *
             We express no views as to whether Watkins was correctly decided.


2007-5162                                   7
       For the foregoing reasons, the decision of the Court of Federal Claims granting

the government’s motion for judgment on the administrative record is affirmed. Ms.

Martinez’s motion for an order directing judgment on the administrative order in her

favor is denied.

       No costs.




2007-5162                                 8
