The Honorable Fernando J. Gaitan, Jr., United States 1

District Judge for the Western District of Missouri.

___________________

No. 95-3306/95-3687

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James Frederick Newport, *

 *

Appellant, *

 * Appeals from the United States

v. * District Court for the

 * Western District of Missouri.

Secretary Stone, Department of * [UNPUBLISHED]

the Army, *

 *

Appellee. *

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 Submitted: August 23, 1996

 Filed: September 5, 1996

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Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.

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PER CURIAM.

In this consolidated appeal, James F. Newport appeals the district

court's orders disposing of his action against United States Army

1

Secretary Stone, and denying his motion filed under Rule 60 of the Federal

Rules of Civil Procedure. We affirm. 

Newport, a former member of the Army Reserve, instituted this action

in an effort to compel the Army to investigate alleged incidents of

subversion and espionage directed against the Army (SAEDA). Newport

asserted that the Army was obligated by its own regulation, AR 381-12, to

process his SAEDA complaint. He also sought, as relevant on appeal, backpay for drill sessions he was ordered not to attend, and correction of his

military records to remove reported allegations of his unstable and

disruptive
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behavior. In four separate orders, the district court denied mandamus

relief, affirmed the decision of the Army Board for Correction of Military

Records (ABCMR) relating to Newport's request to expunge his military

records and the Army's refusal to process his SAEDA report, granted

judgment in favor of the Army on Newport's remaining claims, and denied

postjudgment relief. 

We agree with the district court that Newport did not state a

cognizable claim that he was entitled to back-pay. See Banks v. Garrett,

901 F.2d 1084, 1086-87 (Fed. Cir.) (Naval reservist who performed no drills

not entitled to pay; reservist not entitled to compensation unless he is

ordered to perform and actually performs work), cert. denied, 498 U.S. 821

(1990); Wardle v. Northwest Investment Co., 830 F.2d 118, 122 (8th Cir.

1987) (finding Eighth Circuit appellate jurisdiction proper where claimant

did not state cognizable claim and Little Tucker Act jurisdiction was thus

not properly invoked). 

As to the ABCMR's rulings, Newport has not shown the decision to deny

his request to expunge certain documents from his record was arbitrary and

capricious. See Neal v. Secretary of Navy and Commandant of Marine Corps,

639 F.2d 1029, 1037 (3rd Cir. 1981) (standard of review; strong presumption

that personnel involved in decisionmaking process faithfully discharged

duties); Horn v. Schlesinger, 514 F.2d 549, 551 (8th Cir. 1975)

(acknowledging and adopting traditional judicial reluctance to interfere

with military establishment unless grave constitutional rights appear

imperiled). Assuming, without deciding, that Newport properly exhausted

his administrative remedies concerning his objection to the Army's

interpretation of its SAEDA-reporting regulation, Newport has shown no

basis for requiring the Army to investigate that which he is required to

report. 

Last, we find no abuse of discretion in the denial of postjudgment

relief. See Sanders v. Clemco Indus., 862 F.2d 161,
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169 (8th Cir. 1988) (standard of review). 

The judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.