          In the United States Court of Federal Claims
                                         No. 18-1541C
                                   (Filed: February 11, 2019)


                                             )
 JEFFREY R. KUNTZ,                           )
                                             )
                      Plaintiff,             )      Military Pay Act; Failure to State a
                                             )      Claim; Reserve Soldier; RCFC
 v.                                          )      12(b)(6).
                                             )
 THE UNITED STATES,                          )
                                             )
                      Defendant.             )
                                             )


Samuel C. Moore, Alexandria, VA, for plaintiff.

Ann Camille Motto, Civil Division, United States Department of Justice, Washington,
DC, with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman,
Jr., Director, and Steven J. Gillingham, Assistant Director, for defendant.

                                   OPINION AND ORDER

FIRESTONE, Senior Judge

       The plaintiff, Jeffery R. Kuntz (“Mr. Kuntz”), a former United States Army Reserve

Soldier, filed this action on October 4, 2018, seeking correction of his military record, back

pay under the Military Pay Act, 37 U.S.C. § 206, and other relief. The defendant, the United

States (“government”), has moved to dismiss Mr. Kuntz’s claims under Rule 12(b)(6) of

the Rules of the Court of Federal Claims (“RCFC”) on the grounds that the plaintiff has

failed to state a claim upon which relief can be granted. For the reasons stated below, the

court agrees with the government and grants the motion to dismiss.
                                BACKGROUND FACTS

       The following facts are taken from Mr. Kuntz’s complaint. Mr. Kuntz is a former

United States Army Reserve Soldier, and a current domiciliary of the State of Wisconsin.

Compl. at ¶ 1. On August 21, 2010, Mr. Kuntz, an Army Reservist, attended a Family Day

event, pursuant to specific reserve training orders, as a member of Detachment One,

Company B, 452nd Combat Support Hospital, in Neenah, Wisconsin. Id. at ¶¶ 1, 9, 47, 16.

At the end of Family Day, Mr. Kuntz went to a friend’s house, where he engaged in actions

that led to his being court martialed. Id. at ¶¶ 20-21, 28. During this time period, he was

not on active duty.

       Based on the events that occurred on the evening of August 21, 2010, Mr. Kuntz

was investigated by the military, and on June 14, 2013, Mr. Kuntz was charged with

aggravated sexual assault and forcible sodomy in violation of Articles 120 and 125 of the

Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 920, 925 (2008). Id. at ¶ 30.

Mr. Kuntz pled guilty to these charges and was court martialed based on his guilty plea. Id.

He was thereafter discharged from the Army Reserves. Id. at ¶ 40.

       Following his discharge, on December 20, 2013, Mr. Kuntz filed an appeal before

the Army Court of Criminal Appeals challenging his court martial on various grounds. Id.

at ¶ 31. On July 21, 2014, the Army Court of Criminal Appeals upheld Mr. Kuntz’s

conviction and sentence. Id. at ¶ 32. On August 19, 2014, Mr. Kuntz petitioned the Court

of Appeals for the Armed Forces to grant review of his case, arguing for the first time, that

the military lacked jurisdiction under Article 2(a)(3) of the UCMJ on the grounds that his




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misconduct occurred during a period when Mr. Kuntz was not under training orders or

otherwise on active duty. Id. at ¶ 34. The Court of Appeals for the Armed Forces rejected

Mr. Kuntz’s petition for review on October 27, 2014. Id. at ¶ 35. Mr. Kuntz then petitioned

the Army Court of Criminal Appeals for extraordinary relief in the form of a writ of error

coram nobis. Id. at ¶ 36. On October 6, 2016, the Army Court of Criminal appeals rejected

Mr. Kuntz’s petition. Id. at ¶37. Mr. Kuntz thereafter filed a writ-appeal petition to the

Court of Appeals for the Armed Forces, arguing based on his status at the time of his

wrong-doing that he was not under the Army’s jurisdiction. Id. at ¶ 38. This petition was

also denied.

       Mr. Kuntz filed the pending action on October 4, 2018. In his complaint, Mr. Kuntz

seeks correction of his military record, back pay, allowances and other benefits from the

United States Army, including restoration of his rank and grade in the Army. Id. at 8, 9.

On November 9, 2018, the government moved to dismiss Mr. Kuntz’s complaint for failure

to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6). Def.’s Mot.

To Dismiss at 1 (ECF No.5 ). Briefing was completed on December 18, 2018 and the court

has determined that oral argument is not necessary.

                                 LEGAL STANDARDS

I.     Standard of Review for Motion to Dismiss for Failure to State a Claim

       A complaint will survive a motion to dismiss for failure to state a claim if it

“contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff


                                             3
pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” See id. When considering such a motion,

“the court must accept as true the complaint’s undisputed factual allegations and should

construe them in a light most favorable to the plaintiff.” Cambridge v. United States, 558

F.3d 1331, 1335 (Fed. Cir. 2009). Legal conclusions and “recitals of the elements of a

cause of action,” however, are not entitled to a presumption of truth. See Iqbal, 556 U.S.

662, 678 (2009). Under the Tucker Act, if a plaintiff’s claim does not fall within the scope

of a money mandating source, the court must dismiss the case for failing to state a claim

on which relief can be granted. Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309

(Fed. Cir. 2008).

II.    The Military Pay Act

       Military pay claims are divided into two categories: those brought by “service

members serving on full-time active duty[,]” and those brought by “persons not in full-

time active duty service[,]” or, in other words, members of the reserves or National Guard.

Palmer v. United States, 168 F.3d 1310, 1312-14 (Fed. Cir. 1999). While the full-time

service members are entitled to pay “[b]y virtue of their status,” the part-time service

members are “paid by the military only for drills actually attended, see 37 U.S.C. § 206(a)(1)

(1994) and training actually performed, see 37 U.S.C. § 204(a)(2) (1994).” Id. at 1314.

“The consequence of this difference in pay entitlement between full-time active duty

personnel and those serving part-time reserve duty is that a member who is serving in part-

time reserve duty in a pay billet or was wrongfully removed from one, has no lawful pay



                                             4
claim against the United States for unattended drills or for unperformed training duty.” Id.;

see also Dehne v. United States, 970 F.2d 890, 894 (1992); Reilly v. United States, 93 Fed.

Cl. 643, 649 (2010); Greene v. United States, 65 Fed. Cl. 375, 380-81 (2005). These rules

apply even when a reservist alleges that the military has acted unlawfully and the reservist

was wrongfully prevented from performing his or her reservist duties. See Palmer, 168

F.3d at 1313. An exception to this general rule applies only for reservists who cannot attend

drills or training due to a physical disability. See 37 U.S.C. § 206(a)(3).

                                         ANALYSIS

       The government argues in its motion to dismiss under RCFC 12(b)(6) that Mr.

Kuntz cannot state a claim for back pay under the Military Pay Act and for this reason his

case must be dismissed. 1 Specifically, the government argues that Mr. Kuntz, as a non-

active duty service member, is entitled to back pay only for duties or training performed or

for the time he was on active duty. Here, Mr. Kuntz is claiming a right to back pay under

the Military Pay Act for duties he would have performed had he not been “wrongfully”

court martialed. Mr. Kuntz admits that he was not on active duty for any time he seeks back

pay and he does not allege that he was not paid for training or duties he actually performed

for the Army. In addition, Mr. Kuntz does not allege that he could not perform his duties

because of a disability. In such circumstances, the government argues, Mr. Kuntz cannot

state a claim for back pay under the Military Pay Act.


1
  The government concedes and this court agrees that it has jurisdiction to hear Mr. Kuntz’s
claims under § 206 of the Military Pay Act on the grounds that claims under the Military Pay Act
are money-mandating. Def.’s Mot. to Dismiss at 4.


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       The court agrees with the government. As discussed above, the Federal Circuit has

made clear that a reservist can only recover pay under the Military Pay Act for time on

active duty or for drills and training actually performed, regardless of whether he was

wrongfully removed from duty. See Palmer, 168 F.3d at 1314. Because Mr. Kuntz was not

on active duty for the period he seeks pay and does not allege that he was not paid for drills

or training he actually performed, Mr. Kuntz cannot a state a claim for relief. In Palmer,

the Federal Circuit made clear that a reservist wrongfully removed from duties cannot

claim back pay under the Military Pay Act for drills and training he did not perform but

would have performed had he not been wrongfully removed from his duties. See id. Given

the Federal Circuit’s clear directive in Palmer, the court has no choice but to dismiss Mr.

Kuntz’s claim for back pay under the Military Pay Act.

       Having concluded that Mr. Kuntz cannot state a claim under the Military Pay Act,

the court finds that Mr. Kuntz’s wrongful discharge and accompanying request to correct

his military record must be dismissed for lack of jurisdiction. For the court to consider Mr.

Kuntz’s wrongful discharge claim and his request for correction of his military record

together with collateral relief, he needed to establish that this court had jurisdiction under

the Tucker Act. See Palmer, 168 F.3d at 1314 (“Before the trial court could grant [the

plaintiff’s] collateral remedies such as correction of records and reinstatement to a position

from which he was wrongfully removed, he must first establish that, under the Tucker Act,

he has a money-mandating statute that entitles him to a pay remedy.”). Therefore, to

establish jurisdiction under the Tucker Act, Mr. Kuntz needed to establish that he was




                                              6
entitled to pay under the Military Pay Act. 2 Because his money-mandating claim under

the Military Pay Act must be dismissed for the above-stated reasons, this court no longer

has Tucker Act jurisdiction to hear his wrongful discharge claim and his request to correct

his military record.

                                       CONCLUSION

       For all of the foregoing reasons, the government’s motion to dismiss is GRANTED.

The Clerk is directed to enter judgement accordingly. Each party shall bear its own costs.

       IT IS SO ORDERED.



                                                              s/Nancy B. Firestone
                                                              NANCY B. FIRESTONE
                                                              Senior Judge




2
  Mr. Kuntz has also asserted a Due Process claim under the Fifth Amendment and a claim for
military retirement pay under 10 U.S.C. § 12731. With regard to Mr. Kuntz’s Due Process claim,
this court does not have jurisdiction over claims based on the Due Process clause because it is
not money-mandating. Maxberry v. United States, 722 Fed. Appx. 997, 1000 (Fed. Cir. 2018)
(citing LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995)). With regard to Mr.
Kuntz’s claim for military retirement pay, the court does not have jurisdiction to review Mr.
Kuntz’s retirement pay claim because Mr. Kuntz raised this claim improperly before the court by
raising it for the first time in his response to the government’s motion to dismiss. See Austin v.
United States, 118 Fed. Cl. 776, 790 (2014). Moreover, even if Mr. Kuntz had properly raised his
claim, he is not entitled to relief because he is not yet 60 years old and only those “60 years of
age” are eligible for military retirement pay under 10 U.S.C. § 12731(f).

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