           In the United States Court of Federal Claims
                                           No. 14-690
                                      Filed: August 4, 2020


 NATHAN SOMMERS,

                     Plaintiff,
                                                          Keywords: RCFC 12(b)(6);
 v.                                                       Reported Opinion; Military
                                                          Pay Act; Voluntary Retirement
 UNITED STATES,

                    Defendant.


John B. Wells, Military Veterans Advocacy, Inc., Slidell, LA, for the plaintiff.

Douglas K. Mickle, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,
Washington, D.C. for the defendant, with Lt. Col. Joshua W. Johnson, Litigation Division, U.S.
Army Legal Services Agency, Department of the Army, Department of Defense, Fort Belvoir,
VA, of counsel.

                                  MEMORANDUM OPINION

HERTLING, Judge

        The plaintiff, Army Master Sergeant (Retired) Nathan Sommers, brought this complaint
alleging that the defendant, the United States, acting through the United States Army, forced him
into early retirement by taking improper adverse actions against him due to the plaintiff’s
political views and religious beliefs.

         The defendant has moved to dismiss the case under Rule 12(b)(6) of the Rules of the
Court of Federal Claims (“RCFC”). Alternatively, the defendant has moved for judgment on the
administrative record under RCFC 52.1, asserting that the plaintiff is not entitled to any of the
relief requested. The plaintiff has filed a cross-motion for judgment on the administrative record,
claiming that his retirement from the Army was involuntary and seeking restoration to his rank
and the back pay and benefits he would have earned had the Army not forced him out of the
service.

         The Court finds that, under the governing law and precedents, the plaintiff’s retirement
was voluntary. Accordingly, the Court grants the defendant’s motion to dismiss for failure to
state a claim.
I.     BACKGROUND

       A.      Facts 1

       The plaintiff was an enlisted member of the Air Force from 1988 until his honorable
discharge on March 19, 1997. (ECF 87 at ¶¶ 5, 9.) He then enlisted in the Army on March 24,
1997, and was assigned to the United States Army Band as a featured tenor soloist. (Id. at ¶ 11.)
The plaintiff was promoted from Staff Sergeant (E-6) to Sergeant First Class (E-7) on September
1, 2001, then promoted to Master Sergeant (E-8) on September 1, 2012. (Id. at ¶¶ 10, 12, 15.)

               1.        Political and Religious Activity

        The plaintiff identifies as a religious Christian who adheres to conservative political
ideals. (ECF 87 ¶ 4.) He alleges that he has always expressed these beliefs “within the
constraints of” Department of Defense regulations. (Id.)

        In May 2012, the plaintiff expressed his political beliefs through bumper-stickers on his
privately-owned vehicle. (Id. at ¶ 16.) He was counseled against doing so and alleges he was
ordered to remove the bumper stickers. (Id. at ¶ 17.) In response, the plaintiff submitted
complaints to congressional offices and an equal employment opportunity counselor. (Id. at ¶
20.)

       The plaintiff alleges that he was observed by his commanding officer reading a book by a
conservative political author while backstage awaiting the start of a performance of the Army
Band at the U.S. Capitol in July 2012. (Id. at ¶ 21.) In September 2012, the plaintiff posted
twice on Twitter about the repeal of the “Don’t Ask, Don’t Tell” policy. On both occasions, his
Twitter posts noted that he had served Chick-fil-A at a reception held to recognize his promotion
to Master Sergeant. 2 (Id. at ¶¶ 23, 24.)




       1
          Because the Court grants the defendant’s motion to dismiss under RCFC 12(b)(6), the
facts as alleged in the amended complaint (ECF 87) are assumed to be true. This recitation of
the facts does not therefore constitute findings of fact; rather, the Court provides a recitation of
the facts as alleged by the plaintiff. For additional context, the Court also refers to facts derived
from the administrative record in the case. These facts are included only to add context and to
provide a more complete background; the Court does not rely on any factual claim aside from
those contained in the plaintiff’s amended complaint in deciding the defendant’s motion to
dismiss.
       2
         The plaintiff does not explicitly allege that these Twitter posts were an expression of his
religious or political beliefs. Because the Court is hearing this case on a motion to dismiss and
must construe the complaint and inferences drawn from the complaint in the manner most
favorable to the plaintiff, the Court assumes that these Twitter posts reflected the plaintiff’s
religious or political beliefs.



                                                  2
        In October 2012, the plaintiff was counseled by superiors in his chain-of-command for
engaging in political activity while in uniform. That counseling was recorded in a DA Form
4856 (Developmental Counseling Form). 3 (Id. at ¶ 28.) The plaintiff’s commanding officer,
Colonel Thomas Palmatier, the commander of the United States Army Band, initiated an Army
Regulation 15-6 investigation of the plaintiff. 4 (Id. at ¶ 29.) The plaintiff responded by filing a
request for administrative review (an Article 138 complaint) with COL Palmatier, requesting the
removal of the DA Form 4856 from his record and asserting that the Army Regulation 15-6
investigation was improper retribution for the plaintiff’s privileged communications with
congressional offices and the Army inspector general about his alleged mistreatment. 5 (Id. at ¶
32.)

        The Army Regulation 15-6 investigation appears to have ended after an interview with
the plaintiff and his counsel by COL Palmatier on February 14, 2013. (Id. at ¶ 37.)

       On July 9, 2013, the plaintiff filed another Article 138 complaint “seeking redress
because [COL] Palmatier was allowing a vehicle with ‘pro-Obama’ bumper stickers to park in
[the Colonel’s] parking space.” 6 (ECF 87 at ¶ 53; see also AR 419.) The plaintiff alleges that, at


       3
          DA Form 4856 is a “Developmental Counseling Form.” DA Forms, Army Publishing
Directorate (2020)
https://armypubs.army.mil/ProductMaps/PubForm/Details.aspx?PUB_ID=51938. The Army
Board for Correction of Military Records (“ABCMR”) summarized the counseling differently.
According to the ABCMR, the counseling noted that the plaintiff’s political comments led to
“Soldiers in his rating chain express[ing] fear” and advised the plaintiff that “Soldiers must
balance their personal feelings with the Army mission” and “he should express his opinions
while being aware of the overall ramifications.” (AR 414-15 (Citations to the Supplemental
Administrative Record submitted by the defendant (ECF 86, pages AR 407-1043) are
abbreviated “AR.”).) While the Court notes the parties’ different perspectives on the incident of
counseling, for purposes of the defendant’s motion to dismiss, the facts as alleged by the plaintiff
are accepted as true.
       4
        Army Regulation 15-6 investigations are informal investigations authorized by Army
Regulation 15-6, Procedures for Investigating Officers and Boards of Officers (October 2, 2006).
       5
        An Article 138 complaint is an administrative-review process. See Article 138
Complaints, https://sill-www.army.mil/usag/jag/ docs/LAOInfoPapers/MI/
Art%20138%20Complaints.pdf. Under the Article 138 process, “any member of the armed
forces who believes himself wronged by his commander, and refused redress, may make a
complaint to any superior commissioned officer, who will forward the complaint up to the
General Court Martial Convening Authority (GCMCA).” Id.
       6
         The ABCMR decision makes clear that the vehicle was parked in COL Palmatier’s
parking space. The decision recounts the Colonel’s response to the plaintiff’s argument and
notes that “[a]s a commander, [COL Palmatier] lives across the street and never uses that parking
space. Instead, it is awarded to the Soldier with the highest physical fitness score.” (AR 419.)


                                                 3
an unspecified later time, COL Palmatier revoked that vehicle’s parking permission. (ECF 87 at
¶ 55.)

               2.      Travel and Leave

        COL Palmatier authorized the plaintiff to take 30 days of convalescent leave at his home
address from March 23 through April 21, 2013, following the plaintiff’s foot surgery. (AR 91 at
3 (citing AR 71, 176).) 7 COL Palmatier had previously approved the plaintiff’s personal leave
request for the period April 18 to 21, 2013, during which the plaintiff traveled to Florida in
support of a religious music group. (ECF 87 at ¶ 41.)

         The parties disagree about both the propriety of travel while on convalescent leave and
when the plaintiff was supposed to report to work. According to the plaintiff, “there were no
restrictions while traveling in convalescent leave status with medical approval.” (ECF 87 at ¶
41.) The plaintiff further notes that on April 22, 2013, he was scheduled for an individual
practice session, which did not require him to report for duty and allowed him to practice his
singing at home. (ECF 94 at 25.) According to the defendant, on the other hand, the plaintiff
noted on his leave request that his location while on leave was his home address, but his personal
Facebook page showed that he had flown back from Florida on April 22, 2013, a duty day. (ECF
91 at 3 (citing AR 181-193).) The defendant notes that the plaintiff stopped at work on April 22
to prepare for an April 23 inspection. (Id. (citing AR 71-72).) For purposes of resolving the
defendant’s motion to dismiss, the Court accepts as true the plaintiff’s position that his travel was
appropriate and his physical location was irrelevant in light of of his individual practice session
on April 22, 2013.

        On May 4, 2013, the plaintiff contacted Command Sergeant Major Mitchell Spray to
notify him of the plaintiff’s medical appointment on April 22, 2013. (ECF 94 at 4 (citing AR
128-29).) In response, Sergeant Major Alec Maly asked the plaintiff to provide documentation
of that medical appointment. (ECF 91 at 4 (citing AR 72).) According to the defendant, the
plaintiff “provided a document signed by a licensed professional counselor (LPC) that he
attended several counseling appointments in April and May 2013, but this document did not
mention specific dates for these appointments.” (Id. at 5 (citing AR 119).) According to the
plaintiff, his email was sent in error and he had notified CSM Spray of that fact; the medical
appointment had occurred on April 23, 2013. (ECF 94 at 4 (citing AR 175).) The plaintiff
argues that providing documentation of the April 23 medical appointment would have required
him to disclose his son’s confidential medical information, and the Army had never provided a
Privacy Act release for those records. (ECF 94 at 4.)



The Court adds the ABCMR’s finding merely for clarity and does not rely on it in any respect in
resolving the motion to dismiss.
       7
          Citations to the Administrative Record submitted by the defendant (ECF 16) are also
abbreviated “AR.” As noted in footnote 1, this information is provided only for additional
context and supplements the factual allegations in the amended complaint, but the Court does not
rely on these facts in ruling on the motion to dismiss.


                                                 4
        On May 16, 2013, SGM Robert Petillo and SGM Maly counseled the plaintiff regarding
his work while on convalescent leave and for misrepresenting his location on his request for
leave, DA Form 31. (ECF 91 at 3.) The plaintiff received counseling for traveling during
convalescent leave status. (ECF 87 at ¶ 40.) The plaintiff alleges that he was informed that “‘no
further action’ would be taken concerning this matter.” (Id.)

        On June 7, 2013, COL Palmatier instituted non-judicial punishment proceedings pursuant
to Article 15 of the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. § 815, against the
plaintiff. The charges alleged that the plaintiff: 1) failed to go to his appointed place of duty
without authority on or about April 23, 2013; 2) failed to obey a lawful order by SGM Maly to
submit documentation by May 20, 2013, verifying the plaintiff’s whereabouts on April 23, 2013;
and 3) made a false official statement on April 5, 2013, when the plaintiff told his chain-of-
command that he had a doctor’s appointment on April 22, 2013. (ECF 87 ¶¶ 46-47; see also
ECF 94 at 5.) On June 12, 2013, the plaintiff asked that COL Palmatier be disqualified from
imposing the Article 15 because he was an accuser. (ECF 87 at ¶ 49; see also ECF 94 at 5
(citing AR 313, AR 367-69).) The request was denied. (ECF 87 at ¶ 50.)

        On June 20, 2013, the plaintiff was found guilty of all three specifications. (Id. at ¶ 51.)
According to the defendant, the plaintiff did not demand a trial by court-martial, requested a
closed hearing, and elected not to have someone speak on his behalf. (ECF 91 at 5 (citing AR
195).) COL Palmatier directed filing of the decision in the performance section of the plaintiff’s
official military personnel file and imposed an oral reprimand as punishment for the offenses.
(Id.) On June 24, 2013, the plaintiff appealed and submitted additional evidence to Major
General Jeffrey Buchanan, Commander of Military District Washington. (ECF 87 at ¶ 52; see
also ECF 91 at 5.) The plaintiff’s appeal was “summarily denied” on July 3, 2013. (ECF 87 at ¶
52; see also ECF 91 at 5 (citing AR 197).)

               3.      Enlisted Evaluation Reports

        On May 29, 2013, the plaintiff received his Enlisted Evaluation Report for the period of
March 1, 2012 to February 28, 2013. (ECF 87 at ¶ 42.) The plaintiff alleges that this evaluation
report was the first “substandard” one he had received during his military career. (Id.) Although
the plaintiff received a “success” rating for “values/NCO responsibilities, physical fitness and
military bearing, and training[,]” he received a “No” rating for upholding the “Army value of
respect and equal opportunity” and a “needs some improvement” rating for “leadership” and
“responsibility and accountability.” 8 (ECF 91 at 5-6 (citing AR 203-04).) The plaintiff was

       8
         The plaintiff’s Enlisted Evaluation Report also noted that the plaintiff had received
performance counseling on June 27, 2012, November 7, 2012, November 30, 2012, and February
6, 2013, and developmental counseling on June 27, 2012, August 16, 2012, October 11, 2012,
and November 7, 2012. (ECF 91 at 5 (citing AR 58-61; AR 55-57; AR 62; AR 72-76).) In
connection with this performance counseling, the plaintiff was counseled “regarding the
summary of his Army Soldier Leader Risk Reduction results[,]” and his strained relationships at
work. (ECF 91 at 6 (citing AR 62-63).) The plaintiff was also told that a subordinate soldier
“requested to be removed from [the plaintiff’s] rating chain.” (Id.) Again, the Court includes
these aspects of the administrative record for additional context but neither makes any finding


                                                 5
rated 3 out of 5 (with 1 being the best and 5 being the worst) overall, and 4 for overall potential
for promotion and service in position of greater responsibility. 9 (Id. at 6 (citing AR 204).)

       According to the plaintiff, the following statements in the 2013 evaluation were incorrect:

               “[S]ome of the Soldier’s actions appeared to have a negative impact on
               subordinates and eroded trust between himself and his section
               compromising his ability to lead.”

               [The plaintiff] “was late to a mission formation, which caused The Army
               Chorus undue concern and distraction just prior to mission execution.”

               [The plaintiff] “resisted written counseling, failing to lead by example and
               undermining his ability to hold his subordinates accountable.”

               [The plaintiff] “demonstrated difficulty accepting correction from his
               leadership and taking responsibility for his own actions.”

               [The plaintiff] “has demonstrated limited potential for positions of greater
               rank and responsibility.”

               [The plaintiff] “did not treat people as they should be treated.”




with respect to their accuracy nor relies on them in resolving the motion to dismiss; instead, the
Court accepts as true the plaintiff’s allegations and gives no weight to these factual elements in
the administrative record, whether supportive of or adverse to the plaintiff’s allegations, in
resolving the motion to dismiss.
       9
          The plaintiff’s Enlisted Evaluation Report for March 1, 2013, through February 28,
2014, was similar. (ECF 91 at 7 (citing AR 199-200).) The plaintiff again received performance
counseling and developmental counseling. (Id. (citing AR 64-68; AR 69-72).) The plaintiff was
rated as meeting the standards for competence, physical fitness and military bearing, and
leadership and training. (AR 200.) SGM Petillo found, however, that the plaintiff needed
improvement in the traits of responsibility and accountability, noting that “while on convalescent
leave, [the plaintiff] traveled out of state without his leadership’s knowledge and without
providing an accurate contact address,” and that the plaintiff “failed to properly document his
need to be absent during a Command Staff Assistance Visit inspecting his area of responsibility
in MEDPROS administration.” (Id. at 7-8 (citing AR 200; AR 69-72.) The evaluation rated the
plaintiff’s overall potential for promotion and/or service in positions of greater responsibility as
“marginal.” (Id. at 8 (citing AR 200).) The plaintiff was again rated 3 out of 5 overall, and 4 for
overall potential for promotion and service in position of greater responsibility. (Id. (citing AR
200).) The plaintiff’s amended complaint contains no allegations regarding this Enlisted
Evaluation Report. The Court includes these facts for additional context but does not rely on
them in ruling on the motion to dismiss.


                                                 6
(ECF 87 at ¶ 43 (quotation marks in original without citation).)

        On August 10, 2013, the plaintiff appealed this evaluation. (Id. at ¶ 56.) On August 15,
2013, the Army Human Resource Command returned his appeal without action due to
insufficient evidence. (ECF 94 (at 6 (citing AR 38-39).) On August 20, 2013, the plaintiff
resubmitted an appeal that was accepted on August 29, 2013. (Id. (citing AR 30, 34-37).) By
July 31, 2014, when the plaintiff retired, his appeal of his 2013 evaluation had still not been
acted on by the Army (ECF 87 at ¶ 75; ECF 94 at 6). On August 14, 2014, the Army Review
Board administratively closed the plaintiff’s evaluation appeal without action by the Enlisted
Special Review Board and advised the plaintiff that he could appeal to the ABCMR. (ECF 94 at
6.)

               4.      Qualitative Management Program and Retirement

        The Army’s Qualitative Management Program (“QMP”) identifies noncommissioned
officers whose performance, conduct, and/or potential for advancement do not meet the Army
standards, as determined by a centralized selection board responsible for QMP screening. See
Army Regulation 635-200, Active Duty Enlisted Administrative Separations (June 6, 2005,
Rapid Action Revision September 6, 2011), ¶ 19-2. On August 15, 2013, the plaintiff was
notified that he would be considered by the QMP for potential denial of continued service. (ECF
87 at ¶ 57.) On August 21, 2013, the plaintiff appealed the QMP referral and filed a
supplemental appeal on October 4, 2013. (ECF 87 at ¶¶ 58-59).

        On February 7, 2014, the plaintiff received a notification of denial of continued service
and was informed that he would be discharged not later than August 1, 2014. (ECF 87 at ¶ 60;
see also ECF 91 at 8 (citing AR 10-11; AR 27-280).) In lieu of separation, which would result
in the loss of benefits, the plaintiff was informed that he could request voluntary retirement in
order to preserve his retirement benefits. (ECF 87 at ¶¶ 61-62). The administrative record
reflects more fully that the plaintiff was provided the following options: 1) request voluntary
retirement in lieu of involuntary separation, 2) request voluntary discharge, or 3) appeal and
request retention. (ECF 91 at 8 (citing AR 10-11; AR 27-280.) On February 5, 2014, the
plaintiff had asked the Army to expedite consideration of the plaintiff’s appeal of his evaluation
report on account of the QMP referral, which, the plaintiff alleges, the Army agreed to do but
never did. (ECF 87 at ¶¶ 63, 64.) On February 10, 2014, the plaintiff acknowledged receipt of
the denial of continued service, notified the defendant that he intended to appeal the notification,
and requested retention on active duty. (ECF 91 at 8 (citing AR 12, 26).)

        On March 3, 2014, the plaintiff submitted a request for appeal. (ECF 87 at ¶ 65; see also
ECF 91 at 8 (citing AR 286-87).) His request for appeal of the QMP decision was denied on
March 26, 2014, after what the plaintiff alleges were procedural irregularities. (ECF 87 at ¶¶ 71,
72.) The administrative record reflects that the plaintiff’s appeal was found not to meet the
established Army criteria to overturn the decision because it did not identify material error, new
evidence, or subsequent removal of records. (ECF 91 at 9 (citing AR 9; AR 25; Army Reg. 600-
8-19, ¶ 4-13; Army Reg. 635-200, ¶ 19-11).) Following the denial of his appeal, the plaintiff
requested relief from the Secretary of the Army. (ECF 87 at ¶ 73.) The amended complaint does
not refer to any decision by the Secretary of the Army.


                                                 7
       Without apparent relief from the Secretary of the Army, the plaintiff submitted a DA
Form 4187 (“Personnel Action”), requesting voluntary retirement in accordance with Army
Regulation 635-200, chapter 12, to be effective July 31, 2014, with placement on the Army’s
retirement list on August 1, 2014. (ECF 91 (citing AR 6).) On the same day, April 4, 2014,
COL Palmatier recommended approval of the plaintiff’s request for retirement. (Id. (citing AR
6-7).) On April 11, 2014, the plaintiff completed the DA Form 2339 (“Application for Voluntary
Retirement”). (ECF 87 at ¶ 74.) On April 21, 2014, the Army Human Resources Command
approved the plaintiff’s request for retirement. (ECF 91 citing (AR 5).) The plaintiff was
discharged to the retired list on July 31, 2014, the last day he could have remained in the Army.
(ECF 87 at ¶ 75.)

       B.      Procedural Background

        The plaintiff filed this complaint on August 1, 2014. (ECF 1.) In October 2016, the
Court remanded the case to the ABCMR, sitting as a Special Board pursuant to 10 U.S.C. § 1558
and Army Directive 2016-33. (ECF 60.) During the remand period, in December 2016, the
Court stayed the case pending the United States Court of Appeals for the Federal Circuit’s
consideration in Santana v. United States, 732 Fed. Appx. 864 (Fed. Cir. 2017), of whether
exhaustion of the § 1558 remedy was a jurisdictional requirement. (ECF 65.) After the Federal
Circuit decided Santana in February 2017 without determining whether exhaustion under § 1558
was jurisdictional, the Court continued to stay the case pending the outcome of the § 1558
process before the ABCMR. (ECF 74.) The case was transferred to this judge in June 2019.
(ECF 77.)

        On December 3, 2019, the ABCMR convened as a special board to review the QMP
decision that denied the plaintiff’s continued service on active duty. (AR 408-31.) The Board
asked the plaintiff’s counsel if the plaintiff wanted a 10 U.S.C. § 1552 board first to review the
merits of the underlying derogatory information that served as the basis for the QMP decision,
but the plaintiff’s counsel only wanted the ABCMR to review the QMP decision. (AR 411.)
The ABCMR found no error and no injustice in the QMP decision and, on December 23, 2019,
denied the plaintiff’s petition. (AR 407.)

        The plaintiff filed an amended complaint (ECF 87) in February 2020, and the defendant
moved to dismiss the complaint or, alternatively, for judgment on the administrative record. The
plaintiff cross-moved for judgment on the administrative record. The Court held oral argument
on July 23, 2020.

II.    JURISDICTION AND STANDARD OF REVIEW

        The Tucker Act has been interpreted to limit this Court’s jurisdiction over statutory and
regulatory claims, even in the military pay context, to causes of action based on money-
mandating statutes and regulations. 28 U.S.C. § 1491; Metz v. United States, 466 F.3d 991, 995-
97 (Fed. Cir. 2006). A statute is money-mandating when it is “reasonably amenable to the
reading that it mandates a right of recovery in damages.” Fisher v. United States, 402 F.3d 1167,
1174 (Fed. Cir. 2005) (emphasis in original). The Military Pay Act is money-mandating as
applied to active-duty personnel or to involuntary-discharge claims in which a plaintiff seeks
“only . . . the salary of the rank to which he is appointed and in which he serves.” Smith v. Sec’y

                                                 8
of Army, 384 F.3d 1288, 1294 (Fed. Cir. 2004); Antonellis v. United States, 723 F.3d 1328, 1333
(Fed. Cir. 2013). The defendant does not contest that the Court has subject-matter jurisdiction
over the plaintiff’s claim for wrongful discharge.

        The defendant, however, argues that the Amended Complaint fails to state a claim for
relief and moves to dismiss all counts under RCFC 12(b)(6). (ECF 91.) In evaluating a motion
to dismiss for failure to state a claim under RCFC 12(b)(6), the Court must accept as true a
complaint’s well-pleaded factual allegations and construe them in the most favorable manner to
the plaintiff. Ashcroft v. Iqbal, 566 U.S. 662, 668 (2009). The Court must draw all reasonable
inferences in favor of the non-moving party. Sommers Oil Co. v. United States, 241 F.3d 1375,
1378 (Fed Cir. 2001).

        To avoid dismissal under RCFC 12(b)(6), a complaint must allege facts “plausibly
suggesting (not merely consistent with)” a showing that the plaintiff is entitled to the relief
sought. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). “The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).

III.   DISCUSSION

        The Court must first consider the defendant’s motion to dismiss. Only if the Court has
jurisdiction, and the amended complaint states a claim for relief does the Court need to proceed
to consider the parties’ cross-motions for judgment on the administrative record.

        The defendant argues that the plaintiff fails to state a claim because his voluntary
retirement—even if that retirement was merely a choice between two unappealing alternatives—
precludes relief. (ECF 94 at 15-16 (citing Sammt v. United States, 780 F.2d 31, 33 (Fed. Cir.
1985)).) The plaintiff disagrees, arguing that his retirement was involuntary under the test
announced in Carmichael v. United States, 298 F.3d 1367, 1372 (Fed. Cir. 2002), because the
plaintiff challenged the non-judicial punishment, his evaluation and the QMP process, and
ultimately retired on the last day he was permitted to be in service. (ECF 94 at 9-11.) The
plaintiff further argues that the defendant coerced the plaintiff to retire through religious
discrimination. (Id. at 12.)

        The question of whether the plaintiff’s amended complaint states a claim for relief comes
down to whether his retirement was involuntary. The Federal Circuit has held that a service
member retires voluntarily, even if that retirement is a least-bad choice because the service
member would otherwise face an involuntary discharge or a court-martial. See Sammt, 780 F.2d
at 33; Metz, 466 F.3d at 999-1000.

        The Court begins its analysis with the plaintiff’s own amended complaint. Nowhere in
the amended complaint does the plaintiff allege that his retirement was involuntary. Although
not a jurisdictional prerequisite, the failure of the plaintiff to allege anywhere in his amended
complaint that his retirement was involuntary leads to the conclusion that he has failed to allege a
necessary element of his claim, i.e., that his retirement was involuntary. Therefore, the amended
complaint fails to state a claim for relief. The amended complaint does, however, contain
allegations of actions that could support an inference that the plaintiff’s retirement was not


                                                 9
voluntary. Accordingly, the Court will analyze the plaintiff’s assertions that he has alleged facts
sufficient to overcome the defendant’s motion to dismiss for failure to state a claim.

        “Resignations or retirements are presumed to be voluntary.” Tippett v. United States, 185
F.3d 1250, 1255 (Fed. Cir. 1999), abrogated on other grounds by Metz, 466 F.3d 991. To
overcome the presumption that a retirement is voluntary, a plaintiff must show that “(1) he
involuntarily accepted the terms of the government; (2) circumstances permitted no other
alternative; and (3) said circumstances were the result of the government's coercive acts.”
Carmichael v. United States, 298 F.3d 1367, 1372 (Fed. Cir. 2002). “[T]he government’s failure
to follow its own rules may constitute coercive action sufficient to result in” an involuntary
retirement. Id. Whether a retirement decision was made under duress or coerced is determined
under an objective test. Id. (citing Christie v. United States, 207 Ct. Cl. 333, 518 F.2d 584, 587
(Ct. Cl. 1975).

        The plaintiff bases his argument that his retirement was involuntary on Carmichael’s
tests, which the Court now considers.

         With regards to the first prong of the Carmichael test, the plaintiff has failed to show that
he involuntarily accepted the terms of his retirement. The plaintiff did not allege in either his
initial or his amended complaint that his retirement was involuntary. (See ECF 1; ECF 87.) The
plaintiff argues that to require him to plead specifically that his retirement was involuntary would
be inconsistent with notice pleading requirements. (ECF 94 at 8.) Not so—the involuntariness
of the plaintiff’s retirement is central to his claim and failing to plead sufficient facts to show
involuntariness means that the plaintiff cannot show that he is entitled to the relief sought. See
Twombly, 550 U.S. at 558.

        The involuntariness of the plaintiff’s retirement also cannot be inferred from the
plaintiff’s appeals of his non-judicial punishment, Enlisted Evaluation Reports, and the QMP
determination. (ECF 94 at 11.) Considered alone or together, these appeals cannot show that the
plaintiff’s retirement was involuntary. A service member is entitled to pursue all procedural
avenues of relief available. Pursuing avenues of appeal should not be held against any service
member, but availing oneself of such avenues of relief also is insufficient to demonstrate that a
service member’s decision to retire when his appeals are rejected is involuntary. The
determination of whether a retirement is voluntary does not depend on a service member’s
pursuit of procedural avenues of possible relief that could, if successful, obviate the need to
retire.

        In addition to relying on Carmichael, the plaintiff argues that his resignation was
involuntary because he waited until the last day on which he could leave the service to do so.
The plaintiff’s distinction is of no legal consequence. In Adkins v. United States, 68 F.3d 1317,
1321-22 (Fed. Cir. 1995), for example, the Federal Circuit rejected the government’s argument
that the plaintiff’s selection of an earlier-than-required retirement date converted his otherwise
involuntary retirement under 10 U.S.C. § 638a(b)(2)(a) into a voluntary one. The Federal
Circuit’s decision reflects that the timing of a retirement is not an indication of its voluntariness.

       The fact that the plaintiff remained in the Army to the last possible day could reflect other
considerations besides the voluntariness of his retirement. For example, he might have held off

                                                  10
retiring in order to continue earning income and to maximize his retirement benefits. The fact
that the plaintiff remained in the Army until he no longer could sheds no light on whether his
retirement was voluntary. The date the plaintiff chose to retire does not offer the kind of direct
and objective proof going specifically to the issue of voluntarines needed to rebut the
presumption that his retirement was voluntary.

        Under the second prong of Carmichael, the plaintiff cannot show that he lacked
alternatives. The plaintiff acknowledges that he was provided the option either to retire or be
involuntarily discharged no later than August 1, 2014. (ECF 87 ¶¶ 60, 61 (“the QMP denied
Plaintiff continued active duty and ordered him involuntarily discharged not later than August 1,
2014. The notification letter informed Plaintiff that in lieu of involuntary discharge he could
request retirements to preserve his benefits and retirement pay.”).)

         The Court recognizes that the choice between retirement and involuntary discharge is
difficult and unpleasant. A choice, however, still exists. Even when a service member wanted
neither to retire nor be involuntarily discharged, the Federal Circuit has recognized that his
election to retire was voluntary. Sammt, 780 F.2d at 32. The Federal Circuit’s decision in
Sammt is effectively controlling in this case. The plaintiff in Sammt was notified that, after being
passed over twice by promotion boards, he would be placed on the retired list, as was required by
statute, unless he requested voluntary retirement. The plaintiff then requested and received
voluntary retirement. Id. After retiring, the plaintiff sued in this court, which entertained his
claim, finding that a choice between retiring or being forced out of the Army by operation of law
was no choice at all. On appeal, the Federal Circuit held “that the exercise of an option to retire
is not rendered involuntary by the imminent imposition of a less desirable alternative.” Id.

        Just as the plaintiff in Sammt was found to have had a choice to retire, so too must the
Court find that the plaintiff here had a choice. The choice was no doubt unpleasant: either
decision the plaintiff made led him to a place he did not want to be. In effect, the plaintiff was
confronted with a choice he had to make. In that respect, his having to make a choice, just as the
plaintiff in Sammt had to make a choice, was not voluntary. The choice he made between the
options available to him, however, must, under Sammt, be found to have been voluntary. The
plaintiff cannot establish that he did not have any alternatives when he chose to retire instead of
being involuntarily discharged. His decision to retire must be deemed voluntary.

        “The United States Court of Federal Claims consistently has followed Sammt v. United
States, barring claims for back pay when a plaintiff’s resignation or retirement was voluntary.”
Scarseth v. United States, 52 Fed. Cl. 458, 468 (2002) (citing cases). In Scarseth, the plaintiff
resigned from the Army to avoid a court-martial and subsequently sought to withdraw his letter
of resignation; the Army denied the request to withdraw the resignation. Even when the service
member could show objectively through evidence in the administrative record that he had sought
to withdraw a letter of resignation, this court found that the resignation was voluntary and had
not been coerced. 52 Fed. at 468-69.

       Finally, under the third prong of the Carmichael test, the plaintiff cannot establish duress,
coercion, or even the government’s failure to follow its own rules. The plaintiff argues that the
defendant failed to follow its own rules for religious accommodation. (ECF 94 at 13; ECF 87 at
¶¶ 80-93.) This case is unlike Carmichael, in which the Federal Circuit found that the plaintiff’s

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“voluntary” retirement was coerced because in that case the Navy failed to follow a Secretary of
the Navy Instruction and denied reenlistment to the plaintiff due to his religious beliefs. 298
F.3d at 1372-73.

         Here, on the other hand, the QMP determination was the basis for the choice the plaintiff
faced: retire or be discharged. That QMP determination was itself informed by the plaintiff’s
Enlisted Evaluation Reports and his non-judicial punishment. The plaintiff fails to identify any
way in which the Army failed to follow its own regulations or procedures with respect to the
initiation of the QMP referral or its outcome.

        The plaintiff took and continues to take issue with both his evaluation and his non-
judicial punishment, the factors that the plaintiff alleges informed the QMP decision. The
plaintiff could have continued to pursue avenues of administrative relief. He could have brought
his complaints with both the evaluation and the non-judicial punishment, and with the QMP
determination itself, before this Court had he accepted a discharge. He might have prevailed, but
there was risk in such an approach. He decided to retire. He had that option on account of his
many years of distinguished service. The procedural shortcomings he identifies, however, do not
implicate the decision he made when he opted to retire, even if they do implicate the reasons the
plaintiff was confronted with having to make a choice between two unappealing options. See
Kim v. United States, 47 Fed. Cl. 493, 497-98 (2000).

        The plaintiff has failed to allege that his retirement was involuntary and has failed to
allege facts in his amended complaint or point to any elsewhere in the record adequate to
overcome in an objective manner the presumption that his retirement was voluntary. Therefore,
the plaintiff does not state a claim for which relief could be granted under the Military Pay Act,
and his complaint must be dismissed with prejudice under RCFC 12(b)(6).

IV.    CONCLUSION

       Because the plaintiff voluntarily retired, the Court must grant the defendant’s motion to
dismiss for failure to state a claim on which relief can be granted. The plaintiff’s and
defendant’s cross-motions for judgment on the administrative record are denied as moot.

       The Court will issue an order in accordance with this memorandum opinion.

                                                                 s/ Richard A. Hertling
                                                                 Richard A. Hertling
                                                                 Judge




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