ORIGINAL

3511 the ﬁHm’teh gatates @uurt of ﬁltered (Elaine;
No. 13-864C FILED

(Filed: December 5, 2014) DEC ' 5 2014
U.S. COURT OF

JON J. BANKS, *
*
. . *

Plamtlff’ * Action for Improper Military Discharge;

V * Jurisdiction Under Military Pay Act;

' * Voluntary Separation; Failure to State a

THE UNITED STATE S, * Clalm on Which Relief Can Be Granted.

*
Defendant. *
*

*************>|<***********************

Jon J. Banks, Chamblee, Georgia, pro se, Plaintiff.

William J Grimaldi, with whom were Stuart F. Delery, Assistant Attorney General,
Robert E. Kirschman, Jr., Director, and Steven J. Gillirtgham, Assistant Director,
Commercial Litigation Branch, Civil Division, US. Department of Justice, Washington,
DC, for Defendant.

OPINION AND ORDER
WHEELER, Judge.

Plaintiff Jon J. Banks is before this Court seeking redress for his treatment during
the time he enlisted in the US. Army and served 31 days of active duty before his
discharge by the Army for medical reasons. Prior to filing in this Court, Mr. Banks
unsuccessfully sought relief twice from the Army Board for Correction of Military
Records (ABCMR). He then ﬁled suit in the US. District Court for the Northern District
of Georgia, seeking cancellation of his military discharge together with back pay and
benefits due under his enlistment contract, or in the alternative, damages for breach of his
enlistment contract and fraud in the inducement of the contract and a change of his
military discharge from “uncharacterized” to “honorable.” The District Court found that
Mr. Banks’ claims were Tucker Act (28 U.S.C. § 1491) claims exceeding $10,000, thus
precluding subject matter jurisdiction in that Court, and it transferred the suit to this

Court. Banks V. McHugh, No. 12-03192 (N. D. Ga. Aug. 30, 2013). For the reasons
explained below, the Court dismisses Mr. Banks’ action for failure to state a claim upon

which relief can be granted.

Background

Mr. Banks enlisted in the ofﬁcer candidate program of the U.S. Army in July
2008. Administrative Record (AR) 160-162. At that time, the Army conducted a
medical screening of Mr. Banks and cleared him for enlistment. AR 107-114. On
August 12, 2008, Mr. Banks entered active duty and the Army assigned him to Fort
Benning, Georgia, for initial training as an E-4 under the delayed entry program, with
ofﬁcer candidate training to follow after completion of basic training. Within a week of
arrival, Mr. Banks sought medical care for injury due to carrying equipment, AR 117, and
in a subsequent examination including an x-ray, the Army found him to have curvature of
the lower spine together with degeneration of lumbar discs. AR 115. The Army referred
his case to an Entry Physical Standards Board, which determined on August 20, 2008,
that Mr. Banks had a medical condition which existed prior to his enlistment, and
recommended that he be separated from service due to the condition. lg. A week after
that recommendation, Mr. Banks signed DA Form 4707, consenting to separation from
service. AR 115-116. On September 11, 2008, after 31 days of active duty, Mr. Banks
was separated from the Army with a medical discharge showing an “entry level
(uncharacterized) characterization of service”. AR 135, 300-301.

Shortly after his departure from the Army, Mr. Banks wrote a letter of complaint
to his Congressman, describing his view of the mistreatment he experienced in Echo
Company during his time in the Army, and asking him to review the matter. AR 396-
406. The Congressman forwarded his letter to the Army, which prompted an “Army
Regulation 15-6” investigation. (Pl’s Resp. to Def.’s Mot. to Dismiss, app.) That
investigation led to a ﬁnding of misconduct in treatment of soldiers by three of the drill
sergeants commanding Echo Company, and recommendations for disciplinary action. I_d.
No evidence of mistreatment of Mr. Banks speciﬁcally was included in the investigation.
Mr. Banks also ﬁled a complaint with the U.S. Army Ofﬁce of the Inspector General,
alleging improprieties in his recruitment as well as mistreatment at Echo Company. AR
93-139. These allegations started a second investigation, this time by the Army Training
and Doctrine Command Inspectors General (“TMDOC”). AR 311. That investigation
led to ﬁndings that his claims of recruitment improprieties and of mistreatment at Echo
Company were not substantiated. AR 349—35 1, 355.

In March 2009, Mr. Banks sought review of his discharge by the ABCMR,
seeking cancellation of the discharge, back pay and beneﬁts due as a commissioned
ofﬁcer under his enlistment contract, compensation for losses incurred in preparation for
enlistment, and change of his discharge status from “uncharacterized” to “honorable.”
AR 17, 91. On December 15, 2009, the ABCMR issued its decision denying relief. AR
17-27. Mr. Banks then sought reconsideration of the ABCMR decision, submitting
additional evidence. On July 19, 2011, the ABCMR again denied relief. AR 3-15.

Mr. Banks maintains that he was induced to enlist by an Army recruiter who
advised him to conceal his history of back problems, and that he incurred substantial
monetary losses in preparation for his enlistment. Further, he claims he was subjected to
such severe mistreatment while in basic training that he was forced under duress to
consent to separation from service. In his complaint he seeks money damages for losses
in reliance on his enlistment contract, back pay and beneﬁts due under the enlistment
contract as if it had been performed, and issuance of an honorable discharge in place of
the uncharacterized discharge he received.

Counsel for the Government ﬁled a motion to dismiss the complaint on the
grounds that this Court lacks subject matter jurisdiction over Plaintiff s claims of
fraudulent inducement and breach of enlistment contract under Rule 12(b)(1) of the Rules
of the Court of Federal Claims (RCFC), or in the alternative, should this Court ﬁnd it has
subject matter jurisdiction, the case should be dismissed for failure to state a claim upon
which relief can be granted under RCFC 12(b)(6). If the Court ﬁnds it has jurisdiction
under Rule 12, Defendant has also ﬁled a Motion for Judgment on the Administrative
Record, arguing that the two decisions by the ABCMR afﬁrming Plaintiff s separation
from service should be upheld.

Analysis

A. Subject Matter Jurisdiction.

 

Pursuant to the Tucker Act, 28 U.S.C. § 1491, the U.S. Court of Federal Claims
has jurisdiction over claims for money damages “not sounding in tort” against the United
States. But the Tucker Act does not create any substantive right; the Act merely confers

jurisdiction on the Court whenever a source of substantive right exists. That source must
be “money-mandating.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005).

Plaintiff in this case is proceeding pro se, and his claims for relief are not based
speciﬁcally on a “money-mandating” source of law. For this reason, the Government
argues that this Court lacks subject matter jurisdiction. (Regrettably, in defending against
Mr. Banks” claims, the Government has argued both ways: in the U.S. District Court

3

proceeding where this case originated, the Government argued the opposite approach,
maintaining that this same complaint should be liberally construed and viewed as a
Tucker Act claim in order to invoke exclusive Court of Federal Claims jurisdiction.)
This Court ﬁnds that, because Mr. Banks is proceeding pro se, he is entitled to a liberal
construction of his pleading. Erickson v_. Pardus, 551 U.S. 89 (2007); Haines v. Kemer,
404 U.S. 519, 520 (1972); Forshey v. Principi, 284 F.3d 1335, 1357-1358 (Fed. Cir.
2002). The complaint alleges a wrongful discharge and includes a money damages claim
for back pay, giving this Court jurisdiction under the Military Pay Act, 37 U.S.C. § 204.
Smith v. Sec’y of Army, 384 F.3d 1288, 1294 (Fed. Cir. 2004). Thus, even though
Plaintiff did not cite the Military Pay Act in his complaint, the Court will accept
jurisdiction as if it had been cited, and Defendant’s motion to dismiss for lack of
jurisdiction under RCFC 12(b)(1) must fail.

 

 

B. Jurisdiction under RCFC 12gb )t 6 1.

Rule 12(b)(6) provides for dismissal of an action for “failure to state a claim upon
which relief can be granted.” Thus, the complaint must state a right for which this Court
can provide a remedy, and also must plausibly suggest an entitlement to relief. Ashcroft
v. Igbal, 556 US 662, 678 (2009). Rights conferred by the Military Pay Act are limited:
they are governed by statute and regulation, and are not based upon a contract of
enlistment. Bell v. United States, 366 U.S. 393, 401 (1961); Sonnenfeld v. United States,
62 Fed. C1. 336, 338 (2004). When reviewing a pay claim pursuant to that statute, the
voluntariness of a plaintiffs discharge must be examined. In Metz v. United States, 466
F.3d 991 (Fed.Cir. 2006), the Federal Circuit instructed that a plaintiff seeking relief
under the Military Pay Act “must assert and ultimately establish that his separation was
involuntary in order to ﬁt within the scope of, and take advantage of, the money-
mandating status of §204, or else his claim falls for failure to state a claim upon which
relief can be granted.” E. at 998. Where a member of the military resigns or retires, his
decision is presumed to be voluntary. House v. United States, 99 Fed. C1. 342, 347
(2011) (citing Moyer v. United States, 190 F.3d 1314, 1320 (Fed. Cir. 1999), Tippett v.
United States, 185 F.3d 1250, 1255 (Fed. Cir. 1999), and  v. United S'Eé‘itﬁ, 58
Fed. Cl. 522, 524 (2003)). To overcome the presumption of voluntary separation from
service, “[i]t is a plaintiff’s burden to demonstrate otherwise, essentially showing that his
decision was not freely made.” House, 99 Fed. Cl. at 347. A plaintiff may show his
separation was involuntary as a result of government misrepresentation, coercion, or
duress. Murphy v. United States, 69 Fed. Cl. 593, 604 (2006), affd on other grounds, 22
F. Appx. 966 (Fed.Cir. 2007).

 

 

At the time of Mr. Banks’ separation from the Army, he filled out and signed a
portion of DA Form 4707, which is the Army’s report of the Entrance Physical Standards

Board Proceedings in his case, showing its medical ﬁndings and recommendation for
separation from military service. AR 115, 116. The portion of the Form 4707 addressed
to the service member states that “I understand that legal advice of an attorney employed
by the Army is available to me or that I may consult civilian counsel at my own
expense.” The form then provides four choices, one of which is to be selected by the
service member. Mr. Banks chose the ﬁrst one, concurring with the proceedings and
requesting to be discharged “without delay.” The other three choices were: (2)
concurrence, with a request to remain on active duty; (3) disagreement that the medical
condition existed prior to service and a request for reconsideration; and (4) disagreement
that the condition was disqualifying on entry and a request for reconsideration. AR 116.
A plain reading of this section would lead to the conclusion that Mr. Banks’ choices were
made clear to him at the time he chose to sign the Form 4707. However, Mr. Banks
argues that, because he was under duress at the time due to mistreatment by the drill
sergeants overseeing his basic training, he felt compelled to agree to separation. The
question before this Court is then, whether Plaintiff has alleged sufﬁcient facts supporting
a claim of duress, to overcome the presumption of voluntariness of his separation from
service, and thus to avoid dismissal under Rule 12(b)(6).

In Christie v. United States, 518 F.2d 584 (Ct. C1. 1975), the Court of Claims
noted that duress is not measured by a plaintiff’s “subjective evaluation of a situation.
Rather, the test is an objective one.” I_d. at 587. An objective examination of the facts set
forth by Mr. Banks in his pleadings leads to the conclusion that the presumption of
voluntary separation from service has not been overcome. Mr. Banks is educated and
intelligent enough to have qualiﬁed for ofﬁcer candidate school, and it is clear from his
pleadings that he was aware of his choice to consult legal counsel prior to signing the
Form 4707. (Compl. 11 29, 30). Further, that form presented his options, and he could
have challenged the medical conclusions of the Entrance Physical Standards Board while
remaining in service. As the Court observed in Christie, “[m]erely because plaintiff was
faced with an inherently unpleasant situation...does not obviate the voluntariness of her
resignation.” 1; See also House, 99 Fed.Cl. at 351, (a claimant must show he had “no
reasonable alternative” to resigning). Here it is clear that Mr. Banks had alternatives and
that he understood them. For these reasons, the Court ﬁnds that Plaintiff has failed to
overcome the presumption of voluntariness of his separation from service, and his
complaint must be dismissed under Rule 12(b)(6). It should be noted that, had the Court
reached the merits of this case, invoking a review of the two ABCMR decisions in the
administrative record, it would have reached the same result.

 

 

,anglusion

For the reasons set forth above, Defendant’s Motion to Dismiss under Rule
12(b)(1) is DENIED, but its Motion to Dismiss under Rule 12(b)(6) is GRANTED.
Accordingly, the Clerk of Court is directed to dismiss the complaint.

IT IS SO ORDERED.

  
    

 
 

I i" {k I 

Trim—5:0. WHEELE
Judge

