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                                               No. 16-672C
                                                                                        FILED
                                        (Filed: November 16, 2016)
                                                                                       NOV 1 6 2016
        *************************************                                         U.S. COURT OF
                                                      *                              FEDERAL CLAIMS
        JEROME RANDOLPH,                             *
                                                     **   Rule 12(b)( 1) Motion to Dismiss;
                                 Plaintiff,
                                                     *    Motion for Judgment on the
        v.
                                                     *    Administrative Record; Review of
                                                     *    Military Board Decisions; Review
        THE UNITED STATES,
                                                     *    of    Court-Martial   Conviction;
                                                          Defamation Claim.
                                                     *
                                 Defendant.          *
                                                     *
        *************************************
        Jerome Randolph, Baton Rouge, Louisiana, pro se Plaintiff.

        Alexis J Echols, with whom were Benjamin C. Mizer, Deputy Principal Assistant Attorney
        General, Robert E. Kirschman, Jr. , Director, Douglas K Mickle, Assistant Director,
        Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington,
        D.C., and Dawn M Steinberg, Litigation Attorney, Office of the Judge Advocate General,
        U.S. Department of the Navy, for Defendant.

                                         OPINION AND ORDER

        WHEELER, Judge.

               Jerome Randolph, a prose plaintiff, received a dishonorable discharge from the U.S.
        Navy following a court-martial conviction. Mr. Randolph seeks review and reversal of the
        decision of the Board of Correction for Naval Records ("BCNR") not to upgrade his
        discharge status to honorable. He also requests back pay, applicable promotions and
        retirement associated with the corrected discharge. In addition, Mr. Randolph seeks the
        expungement of his court-martial conviction and damages against the Government for
        defamation. The Government has filed a motion to dismiss for lack of jurisdiction, or in
        the alternative, a motion for judgment on the administrative record. For the reasons
        explained below, the Court GRANTS the Government's motion to dismiss Mr. Randolph's
        request for review of his court-martial conviction and his defamation claim for lack of
jurisdiction, but DENIES the Government's motion to dismiss Mr. Randolph's request to
upgrade his discharge status. However, the Court GRANTS the Government's motion for
judgment on the administrative record as to Mr. Randolph's request to upgrade his
discharge status and to grant applicable back pay because the BCNR's decision was
reasonable and supported by substantial evidence.

                                             Background

        Mr. Randolph served as a naval officer from June 2000 until his release in 2011.
Administrative Record ("AR") 124. In 2009, a Seaman Recruit reported that Mr. Randolph
had sexually assaulted her. AR 58. Mr. Randolph at first denied the allegation and further
denied having any sexual contact whatsoever with the Seaman Recruit. AR 63. During an
investigation, the Navy forensic examiner found Mr. Randolph's semen on the Seamen
Recruit's clothing and genitalia. Id. Mr. Randolph was brought before a court-martial for
three violations of the Unifonn Code of Military Justice ("UCMJ") including Article 107
(making a false official statement), Article 133 (conduct unbecoming an officer and a
gentleman) and Article 120 (rape and carnal knowledge). See 10 U.S.C. §§ 907, 933, 920.
On September 9, 2009, Mr. Randolph pied guilty to violating Articles 107 and 133. AR
124-29. Specifically, Mr. Randolph admitted that he did have sexual contact with the
Seaman Recruit and it was "particularly prejudicial to good order and discipline" because
Mr. Randolph was her department head. AR 126. In addition, Mr. Randolph admitted to
making false official statements with "the intent to deceive." AR 128. The charge for
violating Article 120 was dropped. AR 359. Mr. Randolph was sentenced to confinement
for 24 months and he received a dishonorable discharge from the Navy. AR 359-61.

        On December 13, 2011, Mr. Randolph submitted his first petition to the BCNR
requesting the expungement of his general court-martial, back pay with applicable
promotions, and an upgraded discharge characterization to honorable. 1 AR 32, 116-17.
Mr. Randolph argued that he was entitled to relief because the allegations of rape were
false and the Article 120 charge was dismissed. AR 116. In reviewing Mr. Randolph's
petition, the BCNR considered Mr. Randolph's naval record, the record of trial, the
Stipulation of Fact in which Mr. Randolph admitted to misconduct, and mitigating
evidence of Mr. Randolph's good military character. AR 27, 118-348. On January 24,
2013, the BCNR denied Mr. Randolph's petition for relief stating that "the evidence
submitted was insufficient to establish the existence of probable material error of injustice
     " AR 28.

      Mr. Randolph twice petitioned the BCNR for reconsideration, and wrote letters to
his Senator and the Secretary of Defense to request further assistance. AR 5-6, 10, 15.
1The BCNR administratively closed Mr. Randolph's petition without prejudice because "there [was] no
documentation of a court martial" but informed Mr. Randolph that his request could be re-opened if
evidence of a court-martial was filed in his record. AR 114. Mr. Randolph filed the record of his court-
martial with the BCNR and his case was re-opened in July of 2012. Id.
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Each time the BCNR denied Mr. Randolph's request, and informed Mr. Randolph that he
had provided no new information that was likely to have a substantial effect on the outcome
of the case. AR 6, 15. Finally, following a request from the Secretary of the Navy, the
BCNR informed Mr. Randolph that his case was closed and that his next "remedy is [to]
appeal to the court of appropriate jurisdiction." AR 6.

        On June 30, 2016, Mr. Randolph filed his complaint in this case asserting claims
similar to those asserted before the BCNR. Primarily, Mr. Randolph argues that since
"Article 120 ... was dismissed, [] the case itself should have been dismissed in that the
entire case stemmed from the accusations made." Comp!. if 4. On September 2, 2016, the
Government filed a motion to dismiss for lack of subject matter jurisdiction or,
alternatively, for judgment on the administrative record. On October 20, 2016, Mr.
Randolph filed his response in opposition to the Government's motion. On November 8,
2016, the Government filed its reply it support of its motion. The matter is now fully
briefed.

                                        Discussion

        The Tucker Act gives the Court of Federal Claims "jurisdiction to render judgment
upon any claim against the United States founded ... 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. § 149l(a)(l); Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir.
2005). Failure to establish jurisdiction under the Tucker Act requires this Court to dismiss
under Rule 12(b)(l). Outlaw v. United States, 116 Fed. Cl. 656, 658 (2014). Although the
Court has jurisdiction to hear claims for money damages, the Tucker Act itself "does not
create a cause of action for those claims." RHI Holdings, Inc. v. United States, 142 F.3d
 1459, 1461 (Fed. Cir. 1998). Thus, a plaintiff must identify a "separate source of
substantive law that creates the right to money damages" in order to invoke this Court's
jurisdiction over a claim. Greenlee County, Ariz. v. United States, 487 F.3d 871, 875 (Fed.
Cir. 2007) (quoting Fisher, 402 F .3d at 1172)). Pursuant to this standard, Mr. Randolph
must identify a money-mandating source of law as the basis for his claims.

        When deciding a Rule 12(b)(l) motion to dismiss, a court must assume all the
undisputed facts in the complaint are true and draw reasonable inferences in the non-
movant's favor. Erikson v. Pardus, 551U.S.178, 189 (1936). Courts hold pleadings made
by a pro se plaintiff to a less stringent standard and liberally construe language in the
plaintiff's favor. Erickson, 551 U.S. at 94; Haines v. Kerner, 404 U.S. 519, 520 (1972).
Applying this standard, Mr. Randolph's complaint can be interpreted to assert three
separate claims. First, Mr. Randolph requests that his dishonorable discharge be upgraded
to an honorable discharge and he seeks "back pay, applicable promotions and retirement."
Comp!. ifif 1, 7. Second, Mr. Randolph requests "that [his] record of General Court Martial
be expunged." Id. if 6. Third, Mr. Randolph asserts that the Government committed
defamation by accusing him of a crime. Id. if 4. As related to Mr. Randolph's first claim,

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the Court DENIES the Government's motion to dismiss but GRANTS the Government's
motion for judgment on the administrative record. As related to Mr. Randolph's remaining
two claims, the Court GRANTS the Government's motion to dismiss for lack of subject
matter jurisdiction.

       A. The Government is Entitled to Judgment on the Administrative Record as to
       Mr. Randolph's Request for an Upgraded Discharge and Back Pay.

        Section 204 of the Military Pay Act is money-mandating and may serve as the basis
for jurisdiction in this Court under the Tucker Act. 37 U.S.C. § 204; Tippet v. United
States, 185 F.3d 1250 1255 (Fed. Cir. 1999) (citing Sanders v. United States, 594 F.2d 804,
810 (Ct. Cl. 1979) (en bane)). Section 204 guarantees an officer pay appropriate to his
military status until the officer is properly separated from service. Id. This Court has
jurisdiction to adjudicate requests for upgraded military discharge status so long as the
plaintiff alleges that "because of the unlawful discharge, the plaintiff is entitled to money
in the form of the pay that the plaintiff would have received but for the unlawful discharge."
Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003); see also Tippett, 185 F.3d
at 1254-55. When a plaintiff asserts that his discharge was involuntary or improper, he
also generally asserts a violation of his statutory right to pay. Adkins v. United States, 68
F.3d 1317, 1321 (Fed. Cir. 1995). Mr. Randolph claims that he was improperly discharged
on the basis of false accusations. Comp!. iJ 4. Mr. Randolph's complaint can be reasonably
interpreted to request the back pay, promotions and retirement he would have received had
he not been dishonorably discharged. Comp!. i!i! 1, 7; see also Pl.'s Resp. at 2 ("Plaintiffs
cause of action is authorized under the Military Pay Act, 37 U.S.C. § 204."). Thus, the
Government's motion to dismiss Mr. Randolph's claim for an upgraded discharge status is
DENIED.

        However, the Government's motion for judgment on the administrative record as to
Mr. Randolph's improper discharge claim is GRANTED. In reviewing a motion for
judgment on the administrative record, a court must determine whether a party has met his
burden ofproofbased upon the evidence in the record. A&D Fire Protection, Inc. v. United
States, 72 Fed. Cl. 126, 131 (2006). Any questions of fact should be resolved by reference
to the administrative record "as if [a court] were conducting a trial on [that] record."
Bannum, Inc. v. United States, 404 F.3d 1346, 1357 (Fed. Cir. 2005). Mr. Randolph has
the burden of proving that the BCNR's decision was arbitrary, capricious, unsupported by
substantial evidence or contrary to the law. Lewis v. United States, 458 F.3d 1372, 1376
(Fed. Cir. 2006). As long as the board's decision was reasonable and based upon
substantial evidence, this Court will not disturb the result. Wronke v. Marsh, 787 F.2d
1569 (Fed. Cir. 1986); Van Cleave v. United States, 70 Fed. Cl. 674, 678-79 (2006).

       The BCNR only has the authority to correct a naval record to reflect actions taken
by reviewing authorities within the court-martial system or to grant clemency. 10 U.S.C.
§ 1552(f); AR 28. The BCNR does not have the authority to expunge general court-martial

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convictions. 10 U.S.C. § 1552(f). In reviewing Mr. Randolph's petition, the BCNR
considered Mr. Randolph's naval record, applicable law, an executive summary of the
Naval Criminal Investigative Service investigation, the record of trial from the general
court-martial, Stipulations of Fact signed by Mr. Randolph, and mitigating evidence
submitted by Mr. Randolph. AR 27, 57-59, 118-348. Mr. Randolph argues that since his
Article 120 rape charge was dropped, his discharge was improper. Comp. i!4. However,
the record shows that Mr. Randolph pied guilty to violating Article 107 and 133 by making
a false statement and having sexual relations with the Seaman Recruit. AR 124-29. It was
reasonable for the BCNR to conclude that under these facts Mr. Randolph's case did not
warrant upgrading his discharge status and granting back pay. AR 28. The January 24,
2013 decision states that the board "carefully weighed all potentially mitigating factors"
but found these factors insufficient to warrant upgrading Mr. Randolph's discharge status.
Id. Moreover, when Mr. Randolph subsequently requested reconsideration, the board
notified him that there was no new evidence that would substantially effect the board's
decision. AR 6, 15.

       The Court is satisfied that the BCNR's decision was reasonable and supported by
ample evidence, including Mr. Randolph's own guilty pleas. Mr. Randolph has not met
his burden to show that the BCNR's decision was arbitrary, capricious or contrary to law,
and thus judgment upon the administrative record in favor of the Government is
appropriate.

       B. This Court does not have Subject Matter Jurisdiction over Mr. Randolph's
       remaining Claims.

          Next, Mr. Randolph requests that the Comi expunge the record of his general court-
 martial conviction, and opposes the Government's motion to dismiss this claim. Comp!. i!
 7; Pl.' s Resp. at 3. It is well established law that a plaintiff cannot seek review of a court-
martial conviction except before the United States Comi of Appeals for the Armed Forces
 or the Supreme Court. Pub. L. 98-209, 97 Stat. 1393 (1983); Bowling v. United States,
 713 F .2d 1558, 1560 (Fed. Cir. 1990). As an exception to this rule, the Tucker Act provides
that this Court may "issue orders directing ... correction of applicable records" in addition
to a monetary remedy. 28 U.S.C. § 149l(a)(2). Mr. Randolph argues that this language
grants the Court the authority to expunge his conviction because he is simultaneously
seeking monetary relief in the form of back pay. Pl.'s Resp. at 3. However, Mr. Randolph
misunderstands the scope of the Tucker Act. This Court only has the authority to grant
equitable relief, in the form of correction of records, when that relief is collateral to a money
judgment. Watson v. United States, 113 Fed. Cl. 615, 626 (2013). It does not have the
authority to review a court-martial convictions simply because the plaintiff simultaneously
seeks related monetary relief.

       To raise a collateral attack on a court-martial conviction, "the pleader must state
facts showing a lack of such fundamental fairness in the military proceedings as to impair

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constitutional guarantees of due process." Tindle v. United States, 56 Fed. CI. 337, 342
(2003) (citing United States v. Augenblick, 292 U.S. 348, 356 (1969) ("[A] constitutionally
unfair trial take[ s] place only where the barriers and safeguards are so relaxed or forgotten
... that the proceeding is more a spectacle .... ")). Mr. Randolph has not alleged any
constitutional violations, nor can any allegation be reasonably inferred by the language of
the complaint. Mr. Randolph simply states that the rape allegations were false and should
have "negated further action or punishment as the allegations themselves came from a false
accusation." Comp!. if 4. Further Mr. Randolph was represented by counsel during his
court-martial and voluntarily pied guilty to violating Articles 107 and 133. AR 495-503.

       Absent allegations that his constitutional due process rights were violated, this Court
does not have the authority to review Mr. Randolph's court-martial conviction. Thus, the
Government's motion to dismiss Mr. Randolph's request for the expungement of his court-
martial conviction is GRANTED.

        Finally, this Court does not have the authority to hear defamation claims. 28 U.S.C.
§ 1491(a)(l) (stating that this Court has jurisdiction over claims "not sounding in tort.");
Shearin v. United States, 992 F.2d I 195, 1197 (Fed. Cir. 1993). The Federal Tort Claims
Act grants jurisdiction to hear tort claims, such as defamation, exclusively to federal district
courts. 28 U.S.C. § 1346(b)(l). Insofar as Mr. Randolph's complaint may be construed to
assert a defamation claim, the Government's motion to dismiss is GRANTED.

                                         Conclusion

        For the reasons stated above, the Government's motion to dismiss is GRANTED as
to Mr. Randolph's request for review of his court-martial conviction and defamation
claims. Those claims are DISMISSED without prejudice. In addition, the Government's
motion for judgment on the administrative record is GRANTED as to Mr. Randolph's
request for an upgraded discharge status, back pay, applicable promotions and retirement
status. The Clerk of the Court shall enter judgment accordingly. No costs.

       IT IS SO ORDERED.

                                                           ~c.tML
                                                          THOMAS C. WHEELER
                                                          Judge




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