  United States Court of Appeals
      for the Federal Circuit
                ______________________

            ERIC MARTIN MATTHEWS,
                Plaintiff-Appellant,

                           v.

                  UNITED STATES,
                  Defendant-Appellee.
                ______________________

                      2013-5109
                ______________________

    Appeal from the United States Court of Federal
Claims in No. 10-CV-0648, Judge Victor J. Wolski.
                 ______________________

                 Decided: May 5, 2014
                ______________________

   ERIC MARTIN MATTHEWS, of Seagoville, Texas, pro se.

    AUSTIN FULK, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for defendant-appellee. With
him on the brief were STUART F. DELERY, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
F. HOCKEY, JR., Assistant Director.
                 ______________________
 Before NEWMAN, MOORE, and TARANTO, Circuit Judges.
2                                          MATTHEWS   v. US



NEWMAN, Circuit Judge.
     Eric Martin Matthews appeals a decision of the Court
of Federal Claims dismissing his complaint seeking
military service back pay, retainer pay, and damages on
various grounds. 1 The court correctly found that Mr.
Matthews is not eligible for back pay or retainer pay, and
dismissed the other damages claims. The judgment is
affirmed.
                      BACKGROUND
    Mr. Matthews enlisted in the United States Navy in
1990. On September 29, 2006, while serving on active
duty, he was arrested and charged with computer pornog-
raphy and solicitation of a child. He pled guilty to both
charges and was sentenced to prison for a term of twenty-
one years and ten months, which he is currently serving.
On June 6, 2007, an administrative separation board
voted to discharge Mr. Matthews from the Navy with an
“other than honorable” characterization of service.
    On September 27, 2010, Mr. Matthews filed a com-
plaint with the Court of Federal Claims contending that
he was never properly discharged from the Navy, and
thus is owed back pay from the date of his arrest, when
his pay ceased. Mr. Matthews also claimed entitlement to
“retainer” pay, based on a total of twenty years of service
on active duty, reached while incarcerated. Mr. Matthews
also presented claims under four federal statutes: the
Government in the Sunshine Act, 5 U.S.C. § 552b; the
Freedom of Information Act, 5 U.S.C. § 552; the Military
Whistleblower Protection Act, 10 U.S.C. § 1034; and the
Administrative Procedure Act, 5 U.S.C. § 706.




    1   Matthews v. United States, 2013 WL 1909989
(Fed. Cl. 2013).
MATTHEWS   v. US                                        3



    The Court of Federal Claims held that it lacked juris-
diction over the claims founded on the four federal stat-
utes because they are not money-mandating; Mr.
Matthews does not appeal this aspect of the decision. The
court held that Mr. Matthews failed to state claims for
back pay under 37 U.S.C. § 204(a) and retainer pay under
10 U.S.C. § 6330(b), and thus dismissed those elements of
the complaint under Court of Federal Claims Rule
12(b)(6).
     With respect to back pay, the court found that 37
U.S.C. § 503 prohibits military service members from
receiving pay for absences without leave that are not
unavoidable, and that an absence due to civilian incarcer-
ation is not considered unavoidable. Thus the court
concluded that Mr. Matthews is not entitled to back pay
for the period for which he is incarcerated.
    The Court of Federal Claims also found that Mr. Mat-
thews is not eligible for retainer pay, because when he
was arrested he had not reached the twenty years of
active duty service required to receive such pay. The
court found that time served in civilian confinement
cannot count toward the twenty-year requirement. The
court concluded that even if the facts as pleaded are
viewed in the light most favorable to Mr. Matthews, he
had not reached twenty years of active duty.
    Thus the court dismissed the back pay claims for fail-
ure to state a claim on which relief can be granted, Rule
12(b)(6). This appeal followed.
                       DISCUSSION
    Dismissal for failure to state a claim under Rule
12(b)(6) receives plenary review on appeal. Hearts Bluff
Game Ranch, Inc. v. United States, 669 F.3d 1326, 1328
(Fed. Cir. 2012). To avoid dismissal under Rule 12(b)(6)
“a complaint must allege facts ‘plausibly suggesting (not
merely consistent with)’ a showing of entitlement to
4                                           MATTHEWS   v. US



relief.” Kam-Almaz v. United States, 682 F.3d 1364, 1367
(Fed. Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 557 (2007)). In considering the dismissal of
a pro se complaint, the pleading is held “to less stringent
standards than formal pleadings drafted by lawyers.”
Haines v. Kerner, 404 U.S. 519, 520 (1972). Mr. Matthews
brought this suit pro se.
    On appeal Mr. Matthews argues, as he did before the
Court of Federal Claims, that he was never properly
discharged from the Navy because the requirements of 10
U.S.C. § 1168 were not followed, and that the Department
of Defense Form 214 that the Navy re-issued to him is
fraudulent.
    10 U.S.C. § 1168 provides:
    (a) A member of an armed force may not be dis-
    charged or released from active duty until his dis-
    charge certificate or certificate of release from
    active duty, respectively, and his final pay or a
    substantial part of that pay, are ready for delivery
    to him or his next of kin or legal representative.
    Mr. Matthews states that he never received the requi-
site discharge certificate or an authentic Form 214. He
contends that he is still on active duty and is owed both
back pay and retainer pay.
   Mr. Matthews argues that in reaching its decision the
Court of Federal Claims violated Metz v. United States,
466 F.3d 991 (Fed. Cir. 2006). He argues that because he
was on active duty under Metz he is entitled to pay under
37 U.S.C. § 204, and that according to Metz the Court of
Federal Claims has jurisdiction to decide this claim on the
merits.
    Metz holds that 37 U.S.C. § 204 is money-mandating,
and thus can be a basis for Court of Federal Claims
jurisdiction. However, the government does not dispute
that § 204 provides a basis for jurisdiction in this case.
MATTHEWS   v. US                                          5



The Court of Federal Claims dismissed the claims at issue
here under Rule 12(b)(6) for failure to state a claim, not
for lack of jurisdiction under Rule 12(b)(1). Metz did not
change § 503’s requirement that service members are not
entitled to pay while on an unexcused absence without
leave.
Back pay
   A service member is precluded from receiving military
pay and allowances while in civilian confinement. 37
U.S.C. § 503 provides:
   § 503(a). [A service member] who is absent with-
   out leave or over leave, forfeits all pay and allow-
   ances for the period of that absence, unless it is
   excused as unavoidable.
Department of Defense Financial Management Regula-
tions (“DOD FMR”) state that the civilian confinement of
a service member who has been tried and convicted is not
deemed “unavoidable.” See DOD FMR, vol. 7A, chapter 1
Table 1–13 (“When member is absent from duty in con-
finement by civil authorities…and is tried and convicted
then absence may not be excused as unavoidable.”). Thus
Mr. Matthews, who is in federal prison after being tried
and convicted, is absent from duty without leave, and his
absence cannot be excused as unavoidable.
    Mr. Matthews concedes that under 37 U.S.C. § 503 he
would not be entitled to pay while incarcerated, but
argues that under 10 U.S.C. § 1168 he is entitled to pay
since he is still on active duty because he was improperly
discharged. However, even if there were a flaw in his
discharge papers, he is not eligible to receive pay while
absent without leave unless his absence is excused as
unavoidable, and civilian confinement after trial and
conviction is not deemed unavoidable.
6                                            MATTHEWS   v. US



    No theory supports Mr. Matthews’ claim for back pay.
The Court of Federal Claims correctly dismissed this
claim.
Retainer pay
     Mr. Matthews’ claim for retainer pay also must fail.
As the Court of Federal Claims explained, time spent in
civilian confinement cannot count toward the requirement
that a service member must complete at least twenty
years of active duty service to be eligible for retainer pay.
Mr. Matthews enlisted in the Navy in 1990, and was
placed in civilian confinement in 2006, where he remains.
In addition, Mr. Matthews’ most recent enlistment would
have expired on September 15, 2007, still short of the
required twenty years of active duty service. He has not
alleged that he could or did re-enlist while incarcerated.
    The denial of Mr. Matthews’ request for back pay and
retainer pay is affirmed.
    No costs.
                       AFFIRMED
