             In the United States Court of Federal Claims
                                           No. 14-1158C

                                    (Filed: December 15, 2015)

                                                )      Military pay dispute; claim by dental
 ROBERT M. LAUGHLIN,                            )      surgeon for monetary relief stemming
                                                )      from the Navy’s alleged miscalculation of
                Plaintiff,                      )      his obligated service period; retention
                                                )      bonus; 37 U.S.C. § 301e; incentive special
        v.                                      )      pay; 37 U.S.C. § 302b
                                                )
 UNITED STATES,                                 )
                                                )
                Defendant.                      )
                                                )

       Eric S. Montalvo, The Federal Practice Group, Washington, D.C. for plaintiff.

       Devin A. Wolak, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C. for defendant. With him on the briefs were
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Robert E.
Kirschman, Jr., Director, and Deborah A. Bynum, Assistant Director, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, D.C.

                                     OPINION AND ORDER

LETTOW, Judge.

        In this military pay case, plaintiff Robert M. Laughlin challenges the determination by
the United States Navy (“Navy” or “government”) and the Board for Correction of Naval
Records (“Navy Board”) of his active duty service obligation to the Navy following his military-
funded medical training. Commander Laughlin received extensive training in dental medicine
and related surgical specialties for a continuous period from August 1998 to June 2007. As a
condition of receiving military-funded training, Navy medical and dental officers such as
plaintiff are required to serve in an active duty status for a certain number of years, as defined by
statute and regulations of the Department of Defense.

        Commander Laughlin contends that in the summer of 2003, after the first year of his
medical residency, he was told he was being transferred to a military funding program that would
allow him to fulfill his active duty service obligation concurrently with both his continued
training and other service obligations incurred as a result of such training. By plaintiff’s
calculations, his service obligation to the Navy extended only to July 1, 2011. Conversely, the
Navy asserts that plaintiff’s active duty obligation was to be served consecutively to the
completion of his training programs, and that consequently plaintiff’s training-related service
obligation will not end until July 1, 2017. Commander Laughlin seeks this court’s review of a
decision by the Navy Board affirming the Navy’s calculation of plaintiff’s obligated service date.

        Commander Laughlin also asserts that because of the Navy’s miscalculation of his
obligated service date, he is entitled to additional multiyear retention bonuses and incentive
special pay available to officers in the Navy’s Dental Corps. In 2013, plaintiff agreed to extend
his service obligation for three years–from July 1, 2017 to July 1, 2020–in return for a Dental
Officer Multiyear Retention Bonus and the associated Multiyear Incentive Special Pay. Plaintiff
contends that if the Navy had accurately concluded that his training-related service obligation
ended on July 1, 2011, he would have been able to apply for two separate four-year extensions of
his service obligation–bringing his obligated service date to 2019–which would in turn have
entitled him to additional special pay.

        The government has moved to dismiss Commander Laughlin’s complaint under Rule
12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”) for lack of subject
matter jurisdiction. Def.’s Mot. to Dismiss or, Alternatively, for Judgment upon the
Administrative Record (“Def.’s Mot.”), ECF No. 22. 1 Alternatively, the government has moved
for judgment on the administrative record under RCFC 52.1(c), to which Commander Laughlin
has responded by submitting a cross-motion for judgment on the administrative record. Def.’s
Mot. at 13-16; Pl.’s Opp’n to Def.’s Mot. . . . and Pl.’s Cross-Mot. for Judgment on the
Administrative Record and Pl.’s Mot. to Supplement the Administrative Record (“Pl.’s Cross-
Mot.”), ECF No. 26. These motions have been fully briefed and are ready for disposition. The
court has concluded that the government’s motion to dismiss should be denied, but that the
government is entitled to judgment in its favor on the administrative record.

                                            FACTS 2

              A. Plaintiff’s Medical Training and Active Duty Service Obligation

      Commander Laughlin entered the Navy through the Health Professions Scholarship
Program (“HPSP”) on May 8, 1998. AR 434-40; 3 Am. Compl. ¶ 7, ECF No. 21; Def.’s Mot. at


       1
         The government’s motion refers only to RCFC 12(b). However, from the substance of
the motion, the court understands it to be a motion to dismiss for lack of subject matter
jurisdiction under RCFC 12(b)(1). See Def.’s Mot. at 12-13 (addressing this court’s subject
matter jurisdiction under the Tucker Act).
       2
         The recitations that follow constitute the court’s findings of fact based on the
administrative record filed pursuant to RCFC 52.1(a). See Bannum, Inc. v. United States, 404
F.3d 1346, 1355-57 (Fed. Cir. 2005); Santiago v. United States, 75 Fed. Cl. 649, 653 (2007) (“In
accord with RCFC 52.1, the court ‘is required to make factual findings . . . from the record as if
it were conducting a trial on the record.’” (quoting Acevedo v. United States, 216 Fed. Appx.
977, 979 (Fed. Cir. 2007)).
       3
        Plaintiff was a member of the United States Air Force and United States Air Force
Reserve from November 1990 to May 1998. AR 161, 215, 217.


                                                2
7. As part of this program, plaintiff signed a service agreement that stated, in relevant part, “I
understand that in return for . . . 4 year[s] of scholarship in the [HPSP], I shall serve 4 years . . .
on extended active duty.” AR 437-40. The agreement also stated that “I may not serve all or
any part of the [active duty service obligation] incurred by participation in this program
concurrently with any other military obligation.” AR 439 ¶ 17(b). After being accepted to the
HPSP, plaintiff attended the University of Pittsburgh’s School of Dental Medicine from August
1998 to May 2002. Am. Compl. ¶ 7; Def.’s Mot. at 7.

        Following completion of his training at the University of Pittsburgh, Commander
Laughlin began an oral and maxillofacial surgery residency at Louisiana State University’s New
Orleans Charity Hospital through the Navy’s Financial Assistance Program (“FAP”). Am.
Compl. ¶ 8; Def.’s Mot. at 7. Under the provisions of the FAP, plaintiff incurred an additional
five years of obligated active duty service–one year for each of his four years of residency, plus
one additional year. Am. Compl. ¶ 8; see also AR 111-12 (plaintiff’s statement to the Navy
Board, quoting Department of Defense Instruction (“DoDI”) 6000.13, § 6.4.9: “The [active duty
service obligation] for a FAP participant shall be . . . the actual number of years of FAP
sponsorship, plus one year.”). Like the HPSP, the regulations for the FAP state that “[n]o
portion of an [active duty service obligation] may be satisfied . . . [c]oncurrently with any other
[active duty service obligation] or with an obligation incurred for DoD-subsidized pre-
professional (undergraduate) education or training, or prior long-term health or health-related
education or training, unless otherwise specified in this Instruction.” DoDI 6000.13, § 6.6.2. 4
The instruction also states that “[t]ime spent in military internship or residency training shall not
be creditable in satisfying the [active duty service obligation].” DoDI 6000.13, § 6.4.9.

        On July 1, 2003, after completing the first year of his residency, Commander Laughlin
transferred from the FAP to the Navy’s Duty Under Instruction (“DUINS”) program. AR 203-
212; Am. Compl. ¶ 11; Def.’s Mot. at 7. This transfer did not substantively change plaintiff’s
residency; rather, it shifted the funding for his residency from one graduate dental education
program to another. Am. Compl. ¶ 11; Pl.’s Cross-Mot. at 2-3 (stating that plaintiff was
transferred because “there was an extra line of accounting” for the DUINS program). The FAP
and DUINS programs have the same requirements for obligated active duty service, including
the same prohibition on satisfying an active duty service obligation incurred through the program
concurrently with any other training-related service obligation. See AR 522-23 (letter to
plaintiff’s counsel from the Assistant General Counsel, Navy Office of the Assistant Secretary
(Manpower and Reserve Affairs), discussing active duty service obligations for all “long-term
health or health-related education or training” under DoDI 6000.13, including HPSP, FAP, and
DUINS). 5

       Citations to the administrative record (“AR”) refer to the record filed on July 7, 2015,
ECF No. 19. That record is paginated sequentially. See AR 112.

        Plaintiff’s statement to the Navy Board quoted this regulation in part but omitted the first
        4

clause (“[n]o portion . . . may be satisfied”); as a result, his statement suggested that the FAP
obligation could be served concurrently with other service obligations.
        5
        In his letter, the Assistant General Counsel noted that DoDI 6000.13, § 6.6.3.1 contains
an exception stating that active duty service obligations incurred for residencies or fellowships in


                                                   3
        Following the completion of his residency in July 2006, Commander Laughlin attended a
one-year head and neck surgery and microvascular fellowship at the University of Michigan.
Am. Compl. ¶ 17. The Navy accepted plaintiff’s application for funding of this program. AR
213-235. In his funding application, plaintiff stated “[m]y commitment thus far to the Navy is
nine years. I fully understand that if accepted to proceed with a fellowship in head and neck
trauma and reconstruction this will increase my overall commitment.” AR 215. The training
agreement included with plaintiff’s notification of acceptance for the fellowship indicated that he
would incur one additional year of obligated active duty service. AR 234. 6 The agreement also
stated: “Time spent in any [graduate professional education] program does not fulfill previously
incurred [active duty service] obligation. [The active duty service obligation] incurred from this
agreement and any other [active duty service obligation] will be satisfied concurrently for
training in a [m]ilitary [f]acility and consecutively for training in a [c]ivilian [f]acility at the
conclusion of the training program.” Id. (emphasis in original).

       On July 9, 2007, Commander Laughlin reported for duty at the Naval Medical Center in
San Diego. AR 479-80; Am. Compl. ¶ 18; Def.’s Mot. at 8. Plaintiff continued to serve at this
same duty station for the next few years. AR 481-94. He was promoted to his current rank of
Commander and selected to lead the San Diego Naval Medical Center’s dental department in
2014. AR 495-96.

B. Plaintiff’s Dispute Over His Active Duty Obligated Service Date and Subsequent Request for
                                           Resignation

       According to Commander Laughlin, personnel at the Navy Bureau of Medicine’s Special
Pay Office informed him on two occasions, once in 2007 and again in 2008, that he would
complete his active duty service obligation on July 1, 2011. Am. Compl. ¶¶ 18-19. 7 Plaintiff

a military facility “may be served concurrently with other [active duty obligations] or with
obligations incurred for DoD-sponsored . . . training or prior long-term health or health-related
education or training.” See AR 522-23. This exception did not apply to plaintiff because all of
his dental training was in civilian facilities. See Am. Compl. ¶¶ 8, 17 (reciting plaintiff’s training
at Louisiana State University and the University of Michigan); Pl.’s Cross-Mot. at 3.
       6
         The copy of the notification letter in the administrative record includes two enclosures:
an active duty obligation agreement and a declination of training. Neither copy of the enclosures
is signed by plaintiff.
       7
         Plaintiff asserts that an obligated service date of July 2011 is consistent with what he
was told by Captain Barton Welbourn (Ret.), former deputy chief of the Navy Dental Corps,
when plaintiff entered the DUINS program in 2003. Am. Compl. ¶¶ 11, 20. According to
plaintiff, he was told he would begin satisfying his four-year HPSP obligation on July 1, 2003
when he entered the DUINS program. Am. Compl. ¶ 20; Pl.’s Cross-Mot. at 4. He also asserts
that he incurred a two-year obligation based on his one year of residency funded through the
FAP, which he would begin serving on July 1, 2007 (after fulfilling his HPSP obligation) and
would complete on June 30, 2009. Am. Compl. ¶ 20; Pl.’s Cross-Mot. at 4; see also supra, at 3
(noting the additional one-year obligation associated with FAP sponsorship). Finally, plaintiff


                                                  4
also claims he was informed by the Special Pay Office in 2009 that his obligated service date
was in fact July 1, 2012. Am. Compl. ¶ 20. On March 3, 2009, plaintiff contacted Captain
Andrew Peters in the Navy Medicine Manpower, Personnel, Training & Education Command for
clarification on this date. Am. Compl. ¶ 21; see also AR 406 (e-mail from plaintiff to Captain
Peters stating “I spoke with special pays HM2 Haney and he has my HPSP payback done on July
31, 2007, and my residency and fellowship payback completed on July 31, 2012 which sounds
great.”). Plaintiff also asked Captain Peters for a copy of his service agreement for his one-year
fellowship at the University of Michigan because, according to plaintiff, “[t]his was done during
Hurricane Katrina and a lot of [plaintiff’s personal] records were ruined.” AR 406. Captain
Peters responded that he had a copy of the agreement in plaintiff’s file, but it was not signed; he
sent plaintiff the unsigned copy and recommended that plaintiff sign it for his records. Am.
Compl. ¶ 22; AR 406. Plaintiff did not sign this copy of the agreement. Am. Compl. ¶ 22.

        Over a year later, on July 21, 2010, Commander Laughlin contacted Captain Peters to
request that his active duty obligated service date be changed to June 2011. AR 409-10.
Plaintiff asserted that he never signed a service agreement for his one-year fellowship at the
University of Michigan, and therefore should not have incurred a service obligation for this time
period. Id. 8 Plaintiff stated that changing the date of his active duty obligation would “allow
[him] the option to explore signing a multi-year [retention] bonus a year earlier.” AR 410; Am.
Compl. ¶ 23.

        Captain Peters responded to plaintiff on September 3, 2010 after doing additional
research on Commander Laughlin’s active duty service obligation. AR 383-85. Am. Compl.
¶ 26. Captain Peters informed plaintiff that the database maintained by the Navy Medicine’s
Special Pay Office contained an error, and that plaintiff’s obligated service date was in fact July
2016 (calculated based on plaintiff’s nine years of military-funded training ending in July 2007).
AR 383; Am. Compl. ¶ 26; Def.’s Mot. at 9. On September 8, 2010, the Navy further corrected
plaintiff’s obligated service date to July 2017 because the Navy Bureau of Medicine had failed to
account for the additional year of obligation that plaintiff incurred during the first year of his
residency in the FAP. AR 381-82; see also AR 111-12 (plaintiff’s statement to the Navy Board,
quoting the provision in DoDI 6000.13, § 6.4.9 requiring an additional one-year service
obligation for FAP-sponsored training). The following day, Captain Ed Reeg, deputy chief of
the Navy Dental Corps, discussed the revised obligated service date with plaintiff and advised
him that if plaintiff disagreed with the revision, he should appeal to the Navy Board. AR 320-
22; Am. Compl. ¶ 30.




asserts that he had a three-year “DUINS residency” obligation and a one-year fellowship
obligation (for a total of four years), which he also began satisfying on July 1, 2007 and
completed on June 30, 2011. Am. Compl. ¶ 20; Pl.’s Cross-Mot. at 4; see also AR 324-25
(plaintiff’s summary of his calculations regarding his obligated service).
       8
        Plaintiff appears now to concede that he incurred a service obligation for his one-year
fellowship, but asserts that his obligated service date should nevertheless be July 1, 2011. Am.
Compl. ¶ 20; Pl.’s Cross-Mot. at 4.


                                                5
        Instead of seeking review by the Navy Board, plaintiff, through counsel, sent a letter to
Captain Elaine Wagner, chief of the Navy Dental Corps, on November 3, 2010 contesting the
Navy Bureau of Medicine’s calculation of his obligated service date. AR 129-30; Am. Compl.
¶ 36. Captain Wagner reiterated that the correct obligated service date was July 2017, based on
the statutory requirements of 10 U.S.C. § 2123 and the regulations in DoDI 6000.13. AR 129.
Captain Wagner also advised plaintiff that the best way to contest this determination was to
appeal to the Navy Board. Id.

        On December 21, 2010, Commander Laughlin, through counsel, submitted an application
to the Navy Board, requesting that his active duty obligated service date be changed to July 2011
“or at the maximum July[] 2012 should the Board interpret that there was mutual consent
regarding an additional year of [service obligation] pursuant to the [University of Michigan]
fellowship.” AR 109. Plaintiff indicated that the revised obligated service date of July 2017 had
a “direct impact on [his] ability to separate from the service,” and therefore he requested an
“expedited review.” AR 109-10. 9

        On November 16, 2011, while his request for relief was pending with the Navy Board,
plaintiff submitted an Unqualified Resignation Request from Active Duty. AR 22-24. Plaintiff
indicated he would complete his active duty obligation on September 30, 2012 because he had
accepted the Navy’s incentive special pay for fiscal year 2012, and thereby agreed to remain on
active duty until that date. AR 24. Plaintiff stated that his “training obligation payback is
currently with the [Navy Board] for review,” but that his calculation of his active duty obligated
service date was based on the “Special Pays Office original documented calculation of 30 JUN
2011.” Id.

        The Navy Board concluded on November 28, 2011 that there was insufficient evidence
“to establish the existence of probable material error or injustice” in the Navy’s calculation of
Commander Laughlin’s active duty obligated service date as July 1, 2017. AR 43; Am. Compl.
¶ 46; Def.’s Mot. at 10. In coming to this conclusion, the Navy Board reviewed an advisory
opinion submitted by Captain Wagner on February 14, 2011 and her revised opinion submitted
on September 14, 2011. AR 47-48, 51-55. It also considered an advisory opinion by Captain
Peters submitted on June 30, 2011. AR 49-50. The Navy Board found that even if plaintiff had
received erroneous information that his active duty obligation would be satisfied concurrently
once he transferred to the DUINS program, “such erroneous information should not serve as a
basis to change the obligated service requirements provided by law and regulation.” AR 44. The
Navy Board also pointed to plaintiff’s fellowship application in 2005, in which he stated “[m]y
commitment thus far to the Navy is nine years,” as evidence that plaintiff not only knew his
obligation extended beyond 2011, but also knew he was incurring an additional obligation by
pursuing the fellowship. AR 45, 215.




       9
         This statement about separating from the Navy suggests that as of December 2010,
plaintiff was no longer interested in “explor[ing] signing a multi-year bonus” (which would
require an additional service obligation), as he had indicated to Captain Peters in July 2010.
See AR 410; Am. Compl. ¶ 23.


                                                 6
        On May 25, 2012, Commander Laughlin, through counsel, asked Robert Woods,
Assistant General Counsel, Navy Office of the Assistant Secretary (Manpower and Reserve
Affairs), to review “the circumstances surrounding the [Navy Board’s] decision.” AR 9; Am.
Compl. ¶ 50; Def.’s Mot. at 11. Mr. Woods replied on September 13, 2012, concluding that the
Navy Board did not handle plaintiff’s case “in an erroneous or fraudulent manner or in bad
faith.” AR 9. Mr. Woods also stated that after reviewing the relevant statutes and regulations,
he agreed with the Navy Board’s calculation of plaintiff’s active duty obligated service date as
July 1, 2017. AR 10-12.

        In the interim, Commander Laughlin’s request for resignation was addressed by various
officials within the Navy’s Personnel Command. AR 26-32. In light of the Navy Board’s
decision and the Navy Bureau of Medicine’s calculation of plaintiff’s active duty obligated
service date as July 1, 2017, the officials recommended disapproval of plaintiff’s request because
a waiver of plaintiff’s remaining service requirement would be excessive. Id. The Chief of
Naval Personnel disapproved plaintiff’s resignation request in March 2013. AR 34.

    C. Plaintiff’s Application for a Dental Officer Multiyear Retention Bonus and Multiyear
                                      Incentive Special Pay

        In November 2012, while his request for resignation was still pending, Commander
Laughlin applied for dental incentive special pay for fiscal year 2013. AR 7; Am. Compl. ¶ 58 &
n.15; Def.’s Mot. at 11. This request was approved, and plaintiff received $30,000 in exchange
for his agreement to remain on continuous active duty for one year, or until September 30, 2013.
AR 7-8.

        On May 7, 2013, after his request for resignation was denied, Commander Laughlin
applied for a three-year Dental Officer Multiyear Retention Bonus and accompanying Multiyear
Incentive Special Pay. AR 1-2; Am. Compl. ¶ 64; Def.’s Mot. at 11. In his request, plaintiff
stated that “[t]his obligation shall be for a period of 3 years beyond any existing active military
service obligation for education or training.” AR 1. Plaintiff also indicated that his obligated
service date for education or training was July 1, 2017. AR 2. Plaintiff’s application was
approved and he was authorized to receive $38,000 per year for the retention bonus and $50,000
per year for the incentive special pay, and his obligated service date was adjusted to July 1, 2020.
AR 4; Am. Compl. ¶ 65; Def.’s Mot. at 11.

        Commander Laughlin filed his complaint on December 1, 2014, asking the court to set
aside the Navy Board’s findings from November 2011, declare that plaintiff’s active duty
obligated service date should be amended to July 1, 2011, and award plaintiff certain retention
bonus amounts and incentive special pay to which he allegedly would be entitled but for the
Navy’s miscalculation of his service obligation. Compl. ¶ 1. His amended complaint was filed
on July 28, 2015. Am. Compl. On August 14, 2015, the government moved to dismiss the
amended complaint for lack of subject matter jurisdiction, or alternatively, for judgment on the
administrative record. Def.’s Mot. at 1. Plaintiff’s cross-motion for judgment on the
administrative record and motion to supplement the administrative record were filed on




                                                 7
September 21, 2015. Pl.’s Cross-Mot. at 1. 10

                                STANDARDS FOR DECISION

                                  A. Subject Matter Jurisdiction

        The plaintiff must establish this court’s jurisdiction over the subject matter of his claim
before the court can proceed to the merits of the claim. Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 88-89 (1998); Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002);
Anderson v. United States, 59 Fed. Cl. 451, 454-55 (2004). In this instance, the court’s subject
matter jurisdiction is defined by the Tucker Act, 28 U.S.C. § 1491, which grants jurisdiction over
claims “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.” 28
U.S.C. § 1491(a)(1). Because the Tucker Act “does not confer any substantive rights upon a
plaintiff,” the plaintiff also “must establish an independent substantive right to money damages
from the United States – that is, a money-mandating source within a contract, regulation, statute
or constitutional provision – in order for the case to proceed.” Volk v. United States, 111 Fed.
Cl. 313, 323 (2013) (citing United States v. Testan, 424 U.S. 392, 398 (1976); Jan’s Helicopter
Serv., Inc. v. FAA, 525 F.3d 1299, 1306 (Fed. Cir. 2008)).

         In considering a motion to dismiss for lack of subject matter jurisdiction under RCFC
12(b)(1), the court must construe the allegations of the complaint in the light most favorable to
the non-moving party. Anderson, 59 Fed. Cl. at 455 (citing Scheuer v. Rhodes, 416 U.S. 232,
236 (1974); Vanalco, Inc. v. United States, 48 Fed. Cl. 68, 73 (2000)). If the court determines
that it does not have jurisdiction over a claim, it must dismiss the claim. See RCFC 12(h)(3).

                            B. Judgment on the Administrative Record

        RCFC 52.1 governs motions for judgment on the administrative record. When, in a
motion under RCFC 52.1(c), this court is called upon to address a decision of a military
correction board, to obtain relief, the plaintiff must show that the board’s decision was “arbitrary,
capricious, unsupported by substantial evidence, or contrary to law.” Anderson, 59 Fed. Cl. at
455 (quoting Porter v. United States, 163 F.3d 1304, 1312 (Fed. Cir. 1998)); see also Volk, 111
Fed. Cl. at 325 (citing Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Wronke v.
Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986)). “Thus, correction board decisions ‘may be
reviewed for failure to correct plain legal error committed by the military,’ including ‘the
military's violation of statute, or regulation, or published mandatory procedure, or unauthorized


       10
          In a motion to supplement the administrative record, plaintiff offered three exhibits
containing e-mails not previously included in his appeal to the Navy Board to “provide necessary
context for this [c]ourt’s review.” The exhibits provide additional threads to e-mails and
documents already included in the administrative record. Plaintiff’s motion is GRANTED
because these exhibits serve to complete documents contained in partial form in the
administrative record, but the additional exhibits do not affect the court’s findings regarding the
relevant facts in the case.


                                                 8
act.’” Volk, 111 Fed. Cl. at 325 (quoting Dodson v. United States, 988 F.2d 1199, 1204 (Fed.
Cir. 1993) (internal quotation marks omitted)).

                                            ANALYSIS

                  A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

        In its motion to dismiss, the government asserts that this court does not have subject
matter jurisdiction over Commander Laughlin’s complaint because the relevant statues
governing military bonuses and incentive special pay for dentists and dental surgeons (37 U.S.C.
§§ 301e and 302b) are not “money-mandating.” Def.’s Mot. at 12-13 (citing Fisher v. United
States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (requiring plaintiffs seeking relief in this court
under the Tucker Act to identify a separate source of substantive law that creates a right to
money damages)). Plaintiff’s complaint includes two causes of action: (1) that the government
incorrectly calculated his active duty service obligation, and (2) that he is owed additional
multiyear retention bonuses and incentive special pay because of this miscalculation. Am.
Compl. ¶¶ 66-78. Plaintiff is seeking both declaratory relief and money damages. Am. Compl.
at 19-20.

       1. Declaratory relief to adjust plaintiff’s active duty obligated service date.

       In his first cause of action, plaintiff claims that the government’s calculation of his active
duty obligation was “arbitrary, capricious, unsupported by evidence, and contrary to law.” Am.
Compl. ¶ 6. As relief, plaintiff is seeking a declaratory judgment that his training-related active
duty obligation terminated on July 1, 2011. Am. Compl. at 19.

        Under the Tucker Act, the court has authority to award equitable relief in the form of a
declaratory judgment “only when such an award would be ancillary to an affirmative obligation
of the federal government to pay money damages.” Anderson, 59 Fed. Cl. at 456 (citing James v.
Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (“[E]quitable relief [in Tucker Act suits] must be
‘an incident of and collateral to’ a money judgment.” (quoting 28 U.S.C. § 1491(a)(2)))). For
government employees, including members of the military, the Tucker Act gives this court
jurisdiction to “issue orders directing restoration to office or position, placement in appropriate
duty or retirement status, and correction of applicable records,” but only when such an order
would “provide an entire remedy and . . . complete the relief afforded by the judgment [on a
claim for monetary damages under the Act].” 28 U.S.C. § 1491(a)(2); see also Mercier v. United
States, 114 Fed. Cl. 795, 800 (2014) (discussing the requirement under the Tucker Act for
declaratory judgments to be attendant to an award of a money damages), rev’d in part on other
grounds, 786 F.3d 971 (Fed. Cir. 2015). Accordingly, the court has jurisdiction over cases
where the plaintiff is claiming a monetary entitlement as a result of a correction board’s failure to
correct legal and factual errors in a service member’s records. See, e.g., Richey v. United States,
322 F.3d 1317, 1323 (Fed. Cir. 2003) (“If an officer elects to pursue a remedy before the
Corrections Board, after the Board renders a final decision, the officer may effectively obtain
review of that decision in the Court of Federal Claims by filing suit under the Tucker Act.”);
Laningham v. United States, 30 Fed. Cl. 296, 304 (1994) (“[I]t is a well-settled principle of law
that the [Court of Federal Claims] has jurisdiction over military pay cases involving parties who



                                                  9
allege that they are due back pay because a military [c]orrection [b]oard . . . fail[ed] to correct
legal and factual errors in the record.”).

         Here, plaintiff’s active duty obligated service date is not directly tied to monetary
damages. In other words, Commander Laughlin would not automatically be entitled to
additional military pay if his obligated service date was changed. Nonetheless, the court must
assume for the sake of the government’s motion to dismiss on jurisdictional grounds that plaintiff
has stated a valid claim in his second cause of action—namely, that the Navy precluded plaintiff
from applying for and receiving additional multiyear retention bonuses and incentive special pay
because of the incorrect calculation of his obligated service date. To restate the matter, the court
has to address the Navy Board’s alleged failure to correct plaintiff’s military records in the
court’s consideration of plaintiff’s second cause of action claiming monetary damages.
Therefore, under 28 U.S.C. § 1491(a)(2), the court has subject matter jurisdiction over plaintiff’s
first cause of action so long as a money-mandating source of law is involved respecting the
second cause of action.

       2. Monetary damages for “earned” multiyear retention bonuses and incentive special
          pay.

        The salient question regarding plaintiff’s second cause of action is whether the statute
governing the Dental Officer Multiyear Retention Bonus, 37 U.S.C. § 301e, and that pertaining
to the Multiyear Incentive Special Pay, 37 U.S.C. § 302b, are money-mandating.

        The statute governing the Dental Officer Multiyear Retention Bonus states that “[a]
dental officer . . . who executes a written agreement to remain on active duty for two, three, or
four years after completion of any other active-duty service commitment may, upon acceptance
of the written agreement by the Secretary of the military department concerned, be paid a
retention bonus.” 37 U.S.C. § 301e(a)(1) (emphasis added). The government argues that
because this statute uses the permissive term “may” and the relevant Navy regulation,
OPNAVINST 7220.17, describes this as a “discretionary bonus,” there is not an entitlement to
military pay sufficient to invoke this court’s jurisdiction under the Tucker Act. Def.’s Mot. at 13
(citing Adair v. United States, 648 F.2d 1318, 1322 (Ct. Cl. 1981) (“[A] statute providing for
solely discretionary payment of money does not give rise to a ‘right to recover money damages
from the United States.’” (quoting United States v. Testan, 424 U.S. 392, 396 (1976)))).

        The use of the permissive “may” ordinarily creates the presumption that a statute is
discretionary and not mandatory. See, e.g., Doe v. United States, 463 F.3d 1314, 1324 (Fed. Cir.
2006) (“There is a presumption that the use of the word ‘may’ in a statute creates discretion.”).
However, the court in Doe also noted that this presumption may be overcome “when an analysis
of congressional intent or the structure and purpose of the statute reveal one of the following: (1)
the statute has ‘clear standards for paying’ money to recipients, (2) the statute specifies ‘precise
amounts’ to be paid, or (3) the statute compels payment once certain conditions precedent are
met.” Id. (quoting Samish Indian Nation v. United States, 419 F.3d 1355, 1364-65 (Fed. Cir.
2005) (in turn citing Perri v. United States, 340 F.3d 1337, 1342-43 (Fed. Cir. 2003))).




                                                  10
        The court also must take into account the Supreme Court’s ruling that statutes involving
military reenlistment bonuses are money-mandating because of their long history and the
attendant expectation that the bonus will be paid if the service member otherwise meets the
applicable requirements. See United States v. Larionoff, 431 U.S. 864, 865 n.1, 868-73 (1977)
(concluding that the statute providing a reenlistment bonus for active duty soldiers, 37 U.S.C.
§ 308, was money-mandating, noting that “[t]he Court of Appeals opinion traces the history of
this [reenlistment bonus] policy from 1795”); see also Hale v. United States, 107 Fed. Cl. 339,
345-46 (2012) (finding that Chapter 5 of Title 37, 37 U.S.C. §§ 301-374, titled “Special and
Incentive Pays” includes a number of statutes using the word “may” that are nevertheless money-
mandating under the rationale in Larionoff). 11

        Section 301e of Title 37 satisfies the first factor identified in Doe (originating in Perri
and Samish Indian Nation) to overcome the presumption that a statute using the word “may” is
discretionary. The Section provides “clear standards” that must be met by dental officers to
receive the retention bonus. See 37 U.S.C. § 301e(b) (identifying five requirements for dental
officers to be “automatically eligible” for the bonus). The second factor is also met. The statute
does not provide a precise amount of bonus to be paid, but it does set a maximum amount per
year covered by a four-year service agreement, and directs that the yearly retention bonus
amount “shall be reduced” for two-year and three-year agreements. 37 U.S.C. § 301e(a)(2). 12 A
comparative statutory analysis illuminates an assessment of the third factor. Although the statute
does not explicitly “compel payment” of the retention bonus once a dental officer has met the
specified requirements, it does state that dental officers who meet specified requirements are
“automatically eligible” for the bonus, as contrasted to other officers who may receive a similar
bonus at the Secretary’s discretion. Compare 37 U.S.C. § 301e(b) (describing officers who are
automatically eligible), with 37 U.S.C. § 301e(c) (giving the Secretary discretion to extend the
bonus to other dental officers). 13 Therefore, the provisions of 37 U.S.C. § 301e are sufficient to



       11
         In its reply in support of its motion to dismiss, the government “acknowledges that,
under the Hale analysis, [its] motion to dismiss should be denied. However, because Hale is not
binding upon this [c]ourt, [the government] respectfully take[s] the position that this [c]ourt
should not follow it.” Def.’s Reply in Support of Def.’s Mot. & Resp. to Pl.’s Cross-Mot.
(“Def.’s Reply”) at 3, ECF No. 27. The court rejects this position, adopts the analysis in Hale,
and agrees that it is dispositive of the precise issue raised in the present case.
       12
       Of note, 37 U.S.C. § 308, which was the subject of Larionoff, also only specifies a
maximum bonus amount. See 37 U.S.C. § 308(a)(2).
       13
         Subsection 301e(b) sets out five particular requirements that must be met for
dental officers to be “automatically eligible” for a multiyear retention bonus. See 37 U.S.C.
§ 301e(b)(1)-(5). Although plaintiff does not specifically address this third Doe factor in his
response to the government’s motion, his complaint inferentially alleges that he falls within the
category of dental officers who would be “automatically eligible” for the retention bonus. See
Am. Compl. ¶¶ 8, 77 (identifying plaintiff as an “Oral and Maxillofacial Surgery Dental
Officer,” which is the key distinction between officers who are automatically eligible for the
bonus and those who are not). A closer question would arise respecting whether 37 U.S.C.


                                                11
overcome the presumption that the use of the word “may” renders the statute discretionary and
not mandatory.

         Furthermore, the language of the provisions for the Dental Officer Multiyear Retention
Bonus in 37 U.S.C. § 301e parallels that of other statutes for reenlistment bonuses in Chapter 5
of Title 37. Compare 37 U.S.C. § 308(a)(1) (“The Secretary concerned may pay a bonus . . . to a
member of a uniformed service who . . . reenlists or voluntarily extends the member’s enlistment
for a period of at least three years”) (emphasis added), with 37 U.S.C. § 301e(a)(1) (“A dental
officer . . . who executes a written agreement to remain on active duty for two, three, or four
years . . . may, upon acceptance of the written agreement by the Secretary of the military
department concerned, be paid a retention bonus.”) (emphasis added). Therefore, under the
rationale of Larionoff and Hale, 37 U.S.C. § 301e is a money-mandating statute for the purposes
of this court’s jurisdiction because of the long-standing tradition associated with providing
bonuses to military members who voluntarily agree to extend their service obligations, coupled
with application of the Doe, Samish Indian Nation, and Perri criteria.

        The same rationale applies to the provisions for the Multiyear Incentive Special Pay in 37
U.S.C. § 302b. 14 The statute provides that an active duty dental officer “who is an oral or
maxillofacial surgeon may be paid incentive special pay at the same rates, and subject to the
same terms and conditions, as incentive special pay available for medical officers under
[Sub]section 302(b) of this title.” 37 U.S.C. § 302b(a)(6) (emphasis added). 15 Subsection
302(b) in turn provides that an active duty medical officer who signs a one-year active duty
service agreement “may be paid incentive special pay for any twelve-month period during which
the officer is not undergoing medical internship or initial residency training.” 37 U.S.C. §
302(b)(1) (emphasis added); see also § 302(a) (stating the active duty requirement), § 302(c)

§ 301e would be considered “money-mandating” for officers not within this “automatically
eligible” category.
       14
          Section 302b and the associated Section 302 do not use the term “multiyear incentive
special pay.” Rather, the Navy, through regulation, has used these statutory provisions to
distinguish between “incentive special pay” for medical officers who sign a one-year service
agreement and “multiyear incentive special pay” for those who sign longer-term agreements.
See OPNAV Instruction 7220.17, Enclosure 1 at 2-9 to 2-18 (discussing separate requirements
for the incentive special pay and multiyear incentive special pay programs); see also Navy
Bureau of Medicine and Surgery, Fiscal Year 2015 Dental Corps Officer Special Pay
Implementation Guidance, http://www.med.navy.mil/bumed/Special_Pay/ (specifying that in the
2015 fiscal year, the incentive special pay for a one-year service agreement was $30,000, but the
multiyear incentive special pay for longer-term contracts was $50,000 per year).
       15
          Section 302b of Title 37 applies specifically to special pay for dental officers of the
armed forces. Section 302 of the same title applies more generally to special pay for medical
officers of the armed forces. The purpose of Paragraph 302b(a)(6) is to specify that oral or
maxillofacial surgeons are considered “medical officers” as contrasted to “dental officers” for the
purposes of this incentive special pay, and thus the applicable pay rates for medical officers and
dental surgeons are the same.



                                                12
(stating the active-duty-agreement requirement). 16 Because the incentive special pay is tied to
the execution of a one-year active duty service agreement, it is equivalent to the reenlistment and
retention bonuses provided in Sections 301e and 308 of Title 37. Like those sections, Sections
302 and 302b also provide “clear standards” to be eligible to receive such payments, and
although these statutes do not dictate a precise amount of payment, they do provide an annual
payment maximum. See 37 U.S.C. §§ 302(a)-(c), 302b(a)(6). Therefore, the statutes governing
incentive special pay for medical officers and dental surgeons are also money mandating for
purposes of this court’s subject matter jurisdiction.

        Accordingly, this court has subject matter jurisdiction over both of plaintiff’s causes of
action, and the government’s motion to dismiss is DENIED.

                            B. Judgment on the Administrative Record

       Plaintiff and the government have submitted cross-motions for judgment on the
administrative record under RCFC 52.1(c).

   1. Review of the Navy Board’s determination of plaintiff’s active duty obligated service
      date.

        The court has the power to correct military records where the agency has violated its own
regulations or procedures. See Voge, 844 F.2d at 779. However, the military’s determination of
a factual matter is given great deference, and the court will only overturn such a determination
when it is “arbitrary, capricious, unsupported by substantial evidence, or contrary to law.”
Anderson, 59 Fed. Cl. at 455 (quoting Porter, 163 F.3d at 1312); see also Voge, 844 F.2d at 779
(“Judicial deference must be at its apogee in matters pertaining to the military and national
defense.” (citing Rostiker v. Goldberg, 453 U.S. 57, 70 (1981))).

        In this instance, there is no evidence that the Navy’s records are inaccurate to the point of
injustice to Commander Laughlin, or that the Navy Board’s determination of plaintiff’s active
duty obligation was arbitrary, capricious, or unsupported by substantial evidence. There is also
no evidence that the Navy violated any applicable law, regulation, or procedure in calculating
plaintiff’s service obligation. To the contrary, the relevant Department of Defense Instruction


       16
           The Federal Circuit has ruled that the provision in 37 U.S.C. § 302(a) for “additional
special pay” is money-mandating. Voge v. United States, 844 F.2d 776, 778-79 (Fed. Cir. 1988)
(“There is no dispute that the Claims Court had jurisdiction under the Tucker Act . . . to entertain
this suit because the [additional special pay] statute, 37 U.S.C. § 302, requires the payment of
money to military medical officers.”). And, additional special pay is similar to incentive special
pay in that both are available to medical officers who are on active duty, are not undergoing
medical internship or initial residency training, and execute a one-year active duty service
agreement. Compare 37 U.S.C. § 302(a)(4) (provisions for additional special pay), with § 302(b)
(provisions for incentive special pay). However, Paragraph 302(a)(4) states that an officer “is
entitled to additional special pay,” as contrasted to Subsection 302(b) which states that the
officer “may be paid incentive special pay.” Id. (emphasis added). Consequently, the rationale
in Voge is not necessarily dispositive of the present case.


                                                 13
(DoDI 6000.13) unequivocally states that active duty service obligations incurred through
military-funded training programs cannot be satisfied concurrently with any other service
obligation, except obligations incurred for residencies or fellowships conducted at a military
facility. See AR 112 (quoting DoDI 6000.13, § 6.6.2.3); AR 522-23 (quoting DoDI 6000.13,
§ 6.6.3.1). The instruction also states that time spent in a residency “shall not be creditable in
satisfying the [active duty service obligation].” Pl.’s Cross-Mot. at 23 (quoting DoDI 6000.13,
§ 6.4.9).

        Despite his present allegations, Commander Laughlin had notice that he could not satisfy
his active duty service obligation concurrently either with other service obligations or his
medical residency and fellowship. When he was accepted to the HPSP at the University of
Pittsburgh, he signed a service agreement acknowledging that he “may not serve all or any part
of the [active duty service obligation] incurred by participation in this program concurrently with
any other military obligation.” AR 439 ¶ 17(b). In 2006, well after his medical training began,
plaintiff also stated in the funding application for his fellowship that his “commitment thus far to
the Navy is nine years” and that he “fully understand[s] that if accepted to proceed with a
fellowship in head and neck trauma and reconstruction this will increase [his] overall
commitment.” AR 215. Therefore, plaintiff cannot plausibly claim there was no “mutual
agreement” for his service obligation to extend beyond 2011. See Pl.’s Cross-Mot. at 23-24.

        Commander Laughlin’s case rests primarily on his allegation that he was told by Captain
Welbourn in 2003 that by moving to the DUINS program, plaintiff could begin satisfying his
active duty service obligation. See, e.g., Pl.’s Cross-Mot. at 25-26 (claiming there was an
“implied-in-fact contract” between plaintiff and the Navy based on Captain Welbourn’s alleged
statements). Plaintiff asserts that “[t]he record is replete with written communication[s]
corroborating the veracity of [plaintiff’s] position that he entered into a mutual agreement [to
satisfy his service obligation concurrently].” Id. at 26. The evidence to which plaintiff points
merely shows that when plaintiff raised the dispute over his obligated service date in 2010–years
after the alleged implied-in-fact contract was made–some Navy officers thought that plaintiff’s
claims might be credible. Id. at 26-27 (citing AR 322, 330 (in which Captain Reeg stated in
2010 that plaintiff might not have been “lying” about what he was told in 2003, but noting that
plaintiff would normally be “expected to know the rules as a student no matter what he was
told”)); AR 47 (advisory opinion from Captain Wagner in 2011, postulating that a “claim of
concurrent payback may have been the main driver” for plaintiff to have switched from the FAP
to DUINS in 2003, “though there may be other reasons”)). In particular, plaintiff points to an e-
mail from September 2010, in which Commander Michael Carson summarized a conversation
with (then-retired) Captain Welbourn, as conclusive evidence of an implied-in-fact contract for
plaintiff to serve his obligation concurrently. Pl.’s Cross-Mot. at 26-27. However, this e-mail
shows nothing of the sort. It states that Captain Welbourn remembered that plaintiff transferred
to the DUINS program and that this process required “the approval of the ADM” (which
according to plaintiff referred to Rear Admiral Dennis Woofter, the former chief of the Navy
Dental Corps). AR 125; Pl.’s Cross-Mot. at 26-27. Commander Carson went on to state that
Captain Welbourn “would like to see [plaintiff] not have to pay back more than 2012, but
understands that the current instruction would have [plaintiff’s] payback [until] 2016.” AR 125.
At most, the e-mail suggests that Captain Welbourn was supportive of plaintiff’s continued




                                                 14
medical training, but it does not establish that plaintiff was promised he could satisfy his active
duty obligation during this training.

        Most significantly, even if Captain Welbourn (or another Navy officer other than the
Secretary) told plaintiff at some point that he could satisfy his active duty service obligation
concurrently with his training or other obligations, plaintiff has provided no evidence that these
officers had the authority to override the Navy’s regulations or procedures in this regard.
Plaintiff notes that 10 U.S.C. § 2005 (which governs advanced educational assistance by the
military and related active duty agreements) and DoDI 6000.13 provide the Secretary of the
Navy “latitude in altering [active duty service obligations] by mutual agreement.” Pl.’s Cross-
Mot. at 24. Even if these provisions applied in the present case, plaintiff has neither provided
evidence that the Secretary of the Navy approved an exception allowing plaintiff to satisfy his
service obligation concurrently with his training or other obligations, nor shown that the
Secretary authorized any other officer to do so.

       In short, based on the administrative record, the Navy’s and the Navy Board’s
determination of plaintiff’s active duty service obligation was not arbitrary, capricious, or
unsupported by evidence, nor did it violate applicable statutes and regulations.

   2. Monetary damages for multiyear retention bonuses and incentive special pay.

         Because this court has found that the Navy and the Navy Board did not err in determining
that plaintiff’s training-related active duty obligated service date is July 1, 2017, it need not reach
the issue raised in plaintiff’s second cause of action regarding multiyear retention bonuses and
incentive special pay allegedly due. Nonetheless, the court notes that, based on the
administrative record, plaintiff is not entitled to monetary damages for bonuses or incentive pay
for which he never applied, and for which he never intended to apply prior to 2013. In 2011,
when plaintiff contends his service obligation should have ended, plaintiff was not applying for
multiyear retention bonuses or incentive special pay; he was trying to resign from the Navy. See
AR 22-24 (plaintiff’s Unqualified Resignation Request from Active Duty); AR 26-34 (reflecting
continued pendency of that request through March 2013). Remarkably, this effort did not
prevent plaintiff from receiving the single-year incentive special pay for fiscal years 2012 and
2013. AR 7, 24. Only once plaintiff’s resignation request was denied in March 2013 did he
apply for a multiyear retention bonus and incentive special pay and sign an accompanying three-
year service agreement. AR 1-2. The government concurs that plaintiff was eligible for a
multiyear retention bonus and incentive special pay starting in July 2011, not because he had
fulfilled his active duty obligation, but because he had completed the requisite years of creditable
service. Def.’s Mot. at 15. To receive a multiyear bonus and incentive special pay, however,
plaintiff would have had to apply for these benefits and agree to the accompanying multiyear
service obligation. He did not.

      Accordingly, based on the administrative record, plaintiff is not entitled to monetary
damages for multiyear retention bonuses or incentive special pay.




                                                  15
                                        CONCLUSION

        For the reasons stated, defendant’s motion to dismiss for lack of subject matter
jurisdiction is DENIED, defendant’s motion for judgment on the administrative record is
GRANTED, and plaintiff’s cross-motion for judgment on the administrative record is
DENIED. 17 The clerk is directed to issue final judgment in accord with this disposition.

       No costs.

       It is so ORDERED.

                                                 s/ Charles F. Lettow
                                                 Charles F. Lettow
                                                 Judge




       17
         Plaintiff’s motion to supplement the administrative record is GRANTED for the reasons
stated supra, at 8 n.10.


                                               16
