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No. l5-309C 

# FILED (Filed: October 30, 2015) 

### ocT 3

### 0 20t5

{<:t :i,} {. :}* * * * * * * *,i( )t* {. :t :t :} + + +* * * **'i *,f * * * ** U.S. COURT OF 

### KEVIN P.

# FRITZ, * Feornru Cr_niri4S ,fi 

# Plaintiff, * Military Pay; Nonselection 

### for Promotion;



# * Motion to Dismiss; Statute 

### of Limitations; 

# v. * Accrual: Effect 

### ofCorrection Board 

# * Decision: 

### Martinez: 

### Motion for Sanctrons 

### THE LINITED

# STATES, ]



# Defendant. *

:t*,t,t * {, + rf* * * * *'1. :t {, rf*,t * *,1. * :f* * * * * :t :+ r. :** * +,r



### Kevin P. 

### Fritz, Chesterfield, 

### VA, plq se.

Jessica R.

### Toplin, United States Department 

### of Justice, Washington, 

### DC, for defendant.


### OPINION AND ORDER
SWEENEY, Judge


### Plaintiff Kevin P. 

### Fritz, proceeding p1e se, is a retired 

### major of the 

### United States 

### Army 

### ("Army") Judge 

### Advocate General's 

### Corps.' He alleges that the

### Army Board 

### for Correction 

### of Military Records 

### C'ABCMR') improperly denied his applications 

### for the 

### conection of his 

### military records. Defendant moves 

### to dismiss 

### plaintiff s

### complaint as 

### untimely, and

### plaintiff

moves 

### for sanctions against defendant 

### for defendant's purported misrepresentation 

### of facts alleged inthe

### complaint. Forthe reasons set

### forth below, the court grants defendant's 

### motion and denies 

### plaintiffls motion. 

## I. BACKGROUND

Plaintiff was commissioned as a second lieutenant 

### in the

### Army Reserves 

### in 1984, and then promoted to the rank

### offirst lieutenant 

### in 1986.': The 

### following year, 

### plaintiff was recommissioned as a

### first lieutenant 

### in the

### Army Judge

### Advocate General's Corps, entering


# ' Although 

### plaintiff is a licensed attomey, he is proceeding pgq 59 because he is not admitted to practice before the 

### United States Court 

### of Federal

### Claims 

### ("Court of Federal 

### Claims").
2 The court derives thefacts 

### in this section

### from plainti{P s

### complaint.active 

### duty. Plaintiff wasthen promoted to the rank 

### ofcaptain 

### in 1988 and the rank 

### of major 

### in

199s.


### Plaintiff was considered, but 

### not selected, 

### for promotion tothe rank 

### oflieutenant colonel bythe Fiscal 

### Year 1998 and Fiscal 

### Year 1999 Judge Advocate Lieutenant 

### Colonel Promotion Selection 

### Boards. 

### After hewas 

### notified that he had not been selected 

### for promotion a second time, 

### plaintiff reviewed his 

### Promotion Selection Board 

### file and discovered that 

### it contained an unsigned and 

### incorrect 

### Officers' Record 

### Brief. He therefore requested that a Special Selection Board reconsider 

### him for 

### promotion. The

### Army denied his 

### request. 

### Plaintiff thereafter was considered, but 

### not selected, 

### for promotion bythe Fiscal Year 2000 Judge Advocate Lieutenant Colonel 

### Promotion Selection 

### Board. Instead, 

### in 2001, hewas selected 

### for continuation on active duty and was continued 

### until October 

### 31,2007, when he retired atthe rank 

### of major.

Prior 

### to his retirement, 

### in January 2003, 

### plaintiff submitted an

### application to the

### ABCMR in 

### which he sought the 

### correction of his 

### military records to 

### reflect a 

### promotion tothe rank

### of lieutenant colonel retroactive to his nonselection 

### for promotion by the Fiscal 

### Year 1999 Judge Advocate Lieutenant 

### Colonel Promotion Selection 

### Board. He contended thatthe 

### Promotion Selection 

### Board's decision wastainted by the erroneous 

### Officers' Record 

### Brief contained 

### in his 

### file and by improper race and gender preference 

### instructions. The

### ABCMR denied

### plaintiff s application 

### in September 2003, and 

### notified 

### plaintiff of its decision 

### in October 2003.
Nevertheless, 

### in June 2004, a Special Selection Board was convened 

### to determine whether 

### plaintiff should have been promoted bythe Fiscal 

### Year 1999 Judge Advocate Lieutenant Colonel 

### Promotion Selection 

### Board. The Special Selection Board declined to recommend 

### plaintiff for 

### promotion. Plaintiff received notice 

### of that decision on November 21, 2005.

On 

### November 17,2008, after his retirement, 

### plaintiff submitted a second application 

### for the 

### conection of his 

### military records tothe

### ABCMR. Inthis 

### application, 

### plaintiff contended that
new 

### information revealedthat the

### ABCMR's September 2003 decision was incorrect as 

### it related 

### to the 

### inclusion 

### ofan erroneous 

### Ofhcers' Record 

### Brief in his 

### Promotion Selection Board 

### file. 

### Plaintiff further alleged defects in the June 2004 Special Selection Board 

### proceedings. In a 

### Much26,2009 letter, the

### ABCMR advised 

### plaintiff that 

### it considered

### plaintiff s

### applicalion to be a request 

### for reconsideration, and because the request wassubmitted more than one year after the

### ABCMR's original decision, 

### it was 

### untimely. The 

### ABCMR's letter 

### did not address 

### plaintiff scontentions regarding the June 2004 Special Selection Board.



### Plaintiff filed a

### complaint in this court on March 25, 2015, challenging the

### ABCMR's September 2003 denial 

### of hisfirst application and the

### ABCMR's March 2009 

### rejection of his second

### application. He seeks the correction 

### of his 

### military records 

### to reflect a 

### promotion to the rank 

### of lieutenant colonel retroactive 

### to his nonselection 

### for promotion bythe Fiscal 

### Year 1999 JudgeAdvocate Lieutenant 

### Colonel Promotion Selection Board, and 

### continuing 

### until his retirement, as

### well as

### all back pay and allowances that

### would result 

### from such acorrection. 

### Alternatively, 

### plaintiff requests the 

### conection 

### ofthe records 

### in his 

### Promotion Selection Board



### -2-

### file, the convening 

### of Special Selection Boards 

### to reconsider his 

### promotion to the rank

### of

lieutenant 

### colonel, and, 

### ifsuch a 

### promotion is recommended,

### all resulting back pay and allowances.

Defendant moves 

### to dismiss the 

### complaint as

### untimely. Plaintiff moves 

### for sanctions against defendant

### for defendant's purported misrepresentation 

### offacts alleged in the complaint. The motions are

### fully briefed and the court deems oral argument unnecessary.



# II. DEFENDANT'S 

### MOTION TO DISMISS


## A. Standard of Review

Defendant moves

### to dismiss 

### plaintiff s

### complaint for lack

### ofjurisdiction pursuant 

### to Rule 

### l2(b)(1) ofthe Rules

### of the 

### United States Court 

### of Federal

### Claims 

### ("RCFC"). When considering whether

### to dismiss a

### complaint for lack 

### ofjurisdiction, a court assumes that the allegations in the complaint are true and construes those allegations in the 

### plaintiff s

### favor. Henke v. 

### United States, 60 F.3d 795, 797 (Fed. 

### Cir. 1995). Plaintiffs proceeding 

### plq se are not excused 

### from meeting basic

### jurisdictional requirements, |d. at 799, even though the court holds 

### their complaints 

### to "less stringent standards than

### formal pleadings drafted 

### by lawyers," Haines v. 

### Kemer,404 U.S. 519, 520-21 

### (1974.3 In otherwords, a

### plaintiff proceeding 

### plq se must prove, by a preponderance 

### ofthe evidence, thatthe court possesses 

### jurisdiction. See

### McNuttv. Gen. 

### MotorsAcceptance Corp., 298 

### U.S. 178, 189 (1936); Reynolds 

### v.

### Army

### &Air Force Exch. Serv., 846 

### F.2d746,748 (Fed. 

### Cir. 1988). 

### If the court finds that 

### it lacks subject matter 

### jurisdiction over a

### claim, RCFC 12(hX3) requires the court

### to dismiss that 

### claim.



## B. Jurisdiction andthe Statute of 

### Limitations

Whether the court has

### jurisdiction to decide the merits 

### ofa case is athreshold 

### matter. See Steel Co. 

### v. Citizens 

### for a Better 

### Env't, 523 

### U.S. 83,94-95 

### (1998). "Withoutjurisdiction the court cannot proceed at

### all in any cause. 

### Jurisdiction is power 

### to declare the 

### law, andwhen 

### it

ceasesto exist, the

### only function remaining 

### to the court isthat 

### of announcing thefact and dismissing the 

### cause." Ex parte 

### McCardle, 74 

### U.S. (7

### Wall.) 506, 514 

### (1868). The parties or the court sua sponte may challenge the existence 

### of subject matter

### jurisdiction at any

### time. Arbaugh


### v. Y 

### & H Com., 546 

### U.S. 500, 506 (2006).



### 3 As noted above,

### plaintiff is a licensed atlomey 

### who served 

### in the

### Army Judge Advocate General's 

### corps. He therefore is not a

### typical p1q se 

### litigant. Nevertheless, the court recognizes that 

### "[e]ven a

### skilled lawyer 

### who represents 

### himself is at a disadvantage 

### in contested 

### litigation" because 

### "[h]e is deprived 

### ofthejudgment ofan independent 

### third party 

### inframing the theory 

### of the case, evaluating alternative methods 

### ofpresenting the evidence, cross-examining hostile witnesses, 

### formulating legal arguments, and 

### in making surethat reason, rather than emotion, dictates the proper 

### tactical response 

### to unforeseen developments in the

### courtroom." Kay v. 

### Ehrler,499 

### U.S.432, 437 (1991).



### -3-The 

### ability 

### ofthe Court 

### ofFederal Claims 

### to entertain suits against the 

### United States is



### limited. "The United States, as sovereign, is immune 

### from suit save as 

### it consents to be sued." 

### United States 

### v. Sherwood, 312 

### U.S. 584, 586 

### (1941). The

### waiver of immunity "cannot be 

### implied but must be 

### unequivocally expressed." United States 

### v. 

### King, 395 

### U.S. 

## l,4 (1969). Further, 

### "[w]hen waiver legislation contains a statute 

### of limitations, the 

### limitations provision constitutes a

### condition onthe

### waiver of sovereign 

### immunity." Block v. 

### North Dakota ex rel. Bd. 

### ofUniv. 

### & Sch. 

### Lands,461 U.S. 

### 273,287 (1983).

The Tucker 

### Act, the 

### principal statute governing 

### thejurisdiction of this court, waives sovereign 

### immunity for claims against the 

### United States that arefounded uponthe 

### Constitution,

afederal statute or regulation, or an express 

### or implied contract 

### with the 

### United States. 28 U.S.C. $ 1491(a)(1) 

### (2012). However, the Tucker 

### Act is merely a

### jurisdictional statute and "does not create any substantive 

### right enforceable against the 

### United States 

### for money damages." 

### United States 

### v.

### Testan,424U.5.392,398 (1976). Instead, the substantive 

### right must appear 

### in another source 

### of law, such as a "money-mandating 

### constitutional provision, statute or regulation that has been

### violated, or an express or 

### implied contract 

### with the 

### United States." Loveladies Harbor. Inc.

### v. United States,27 F.3d 1545, 1554 (Fed. 

### Cir. 1994) (en 

### banc). In addition, 

### to

### fall within the court's 

### jurisdiction, any 

### claim against the 

### United States 

### filed in the Court 

### of Federal Claims must be 

### "filed 

### within six years after such

### claim 

### first accrues." 28 

### U.S.C. $2501; see also John R. Sand

### & Gravel Co.

### v. United States, 552 

### U.S. 130, 133-35 

### (2008) (providing that the 

### limitations period set

### forth in 28 

### U.S.C. $2501 is an 

### "absolute" 

### limit on the

### ability ofthe 

### Court of Federal Claims 

### to reach the merits 

### of a

### claim).



## C. Plaintiff s

### Claim Arises 

### Under 37 

### U.S.C. S204



### In his 

### complaint, 

### plaintiff challenges the

### ABCMR's September 2003 denial 

### of his 

### first application and the

### ABCMR's March 2009 

### rejection of his second 

### application. He contends that had the

### ABCMR properly acted on his applications, he

### would have been selected 

### for promotion to the rank 

### of lieutenant 

### colonel. And, 

### with such a

### promotion, 

### plaintiffwould have been 

### entitled to ahigher rate 

### ofpay and presumably 

### would not have been continued on active duty and then 

### retired. 

### Plaintiff sallegations amount 

### to a

### claim that hewas 

### improperly retired 

### from the

### Army with a rank 

### lower thanthe one to

### which hewas

### entitled. See 

### Martinez v. 

### United States, 333 F.3d 

### 1295,1314 (Fed. 

### Cir. 2003) (en banc) ("Because [the 

### plaintiff] is entitled 

### to monetary 

### reliefonly 

### if he can show that hewas 

### improperly separated, a suit in the Court 

### ofFederal Claims that purports to challenge the 

### conection board decision is in essence an action challenging his 

### separation."). Such a

### claim arises under 37 

### U.S.C. $

### 204,the statute that govems 

### military service members' entitlement 

### to basic pay

### while they areon active 

### duty. See Smith 

### v. Sec'v 

### of the 

### Army, 384 

### F.3d 1288, 1294 (Fed. 

### Cir. 2004) 

### ("[A]n action 

### for money arises under [37 U.S.C. $204] when the decision not to promote the service member leadstothe service member's compelled 

### discharge. 

### If, in such a case, the effect 

### of an order

### voiding the 

### nonpromotion decision 

### would be

### to give the service member a

### right to continue in the service at his previous rank, he 

### would have a

### claim for the pay lost because 

### ofhis improper separation."); Roth 

### v. United States, 378 

### F.3d 1371, 1384 (Fed. 

### Cir. 2004) 

### ("In order 

### to bring [an 

### involuntary separation case under 37



### -4-

### U.S.C. $2041 

### in the Court 

### ofFederal Claims, the 

### plaintiff must allegethat because the separation

was 

### unlawful, he or she is entitled to the pay that 

### would have been received 

### butfor the 

### unlawful action."); Holle), 

### v. 

### united states, 124 F .3d, 1462, 1465 (Fed. 

### Cir. 1997) 

### ("37 U.S.C. $204 'confers on an

### officer the 

### right to the pay 

### ofthe rank hewas appointed 

### to up 

### until he is 

### properly separated 

### from the

### service"' (quoting Sandersv. 

### United States,594F.2d 804, 810 (1979) (en banc), abrogated 

### in part on other grounds by Defense 

### Officer Personnel Management 

### Act, Pub. 

### L. 

### No.96-513, S 

### 105,94 Stat.2835,2859-60 (1980) 

### (codified as amended ar 

### l0 U.S.C. g 628(b) 

### (2000)))); see also 

### Metz v. United States, 466 F.3d 

### 991,998 (Fed. 

### Cir. 2006) (noring that 37 U.S.C. $204 is amoney-mandating statute).


## D. Plaintiff s

### Claim Is 

### Untimely


### "A cause 

### ofaction cognizable 

### in aTucker 

### Act suit accrues as soon as

### all events have occurredthat are necessary 

### to enable the

### plaintiffto bring suit, i.e.,

### when'all events have occuned 

### to

### fix the 

### Government's alleged 

### liability, entitling the claimant 

### to demand payment and
sue here

### for his 

### money."' Martinez, 333 F.3d 

### at 1303 

### (quoting Nager Elec. Co. v. 

### United States, 368 F.2d 

### 847,851 

### (Ct.Cl. 1966D. Consequently, asthe 

### United States 

### Court 

### ofAppeals for the Federal 

### Circuit held 

### in Martinez, a

### claim for back pay arising under 37 

### U.S.C. $204 accrues no later than the date on

### which the service member was separated

### from the 

### military. See 

### id. at 1303- 04; accord Roth, 378 F.3d 

### at 1384 

### ("[A]n involuntarily discharged or 

### mandatorily retired 

### officer must 

### bring his or her 

### Tucker

### Act action in the Court 

### of Federal Claims 

### within six years 

### of the date

### of discharge or 

### retirement.").



### After the

### Army did not select 

### him for promotion to the rank 

### of lieutenant colonel, 

### plaintiff was continued on active duty 

### until his retirement on October 

### 31,2007. By that date,

### all of the events 

### fixing the

### Army's 

### liability for back pay under 37 

### U.S.C. g204 had

### occunedplaintiffhad not been selected 

### for promotion and the

### Army had reieased 

### him from active duty. Thus, 

### plaintiff s

### claim for back pay under 37 

### U.S.C. $204 accrued no laterthan October 3 I

, 2007, rendering his 

### complaint, 

### filed morethan six years later, 

### untimely under 28 

### U.S.C. g 2501. 

### Plaintiff, seeking 

### to avoid this result, advances 

### two arguments. First, he contends that the 

### holding in Martinez regarding the accrual date

### ofa claim for back pay is inapplicable 

### to his circumstances because the

### plaintiff in Martinez alleged an improper discharge, and hewas retired, not discharged, 

### from the

### Army. Plaintiff is correct that retirement is 

### different from discharge. 

### However,for the purposes 

### ofhis present claim, his parsing 

### of terminology raises a 

### distinction without a

### difference.

### A claim for back pay under 37 

### U.S.C. $204 accrues upon a service member's release

### from active duty regardless 

### ofwhether the releasewas due 

### to retirement or 

### discharge. See. e.g., 

### Roth, 378 F.3d 

### at 1384

### ("[A]n involuntarily discharged or mandatorily retired 

### officer must 

### bring his or her Tucker 

### Act action in the Court 

### ofFederal Claims 

### within six years

### ofthe date 

### ofdischarge or 

### retirement."); 

### Martinez,333

### f.3d at 1313 

### ("The cause 

### ofaction in [the

### plaintiffls] Tucker 

### Act suitwas

### for the denial 

### ofmoney; that cause 

### ofaction therefore accrued when hewas separated

### from active duty and his monetary 

### injury began."); 

### Adkins v. 

### United States, 68 

### F.3d 1317,1321 (Fed. 

### Cir. 1995) 

### (notingthat the 

### plaintiff, a retired

### Army officer, was entitled 

### to basic pay under 37 U.S.C. g204 

### prior to his retirement, and 

### holding

that 

### if the

### plaintiffs "discharge was

### voluntary and 

### improper, 

### [his] statutory 

### right to pay was 

### not extinguished, andthus serves as a basis

### for Tucker Act

### jurisdiction"); see also 

### Brownfield v. 

### United States, 589 

### F.2d 1035, 1038-40 

### (Ct.

### Cl. 1978) 

### (holding thatthe

### plaintiff s

### claim that he was

### wrongfully denied a

### promotion prior to his retirement accrued on the datethat he was

### finally denied that 

### promotion-the date

### ofhis retirement atthe 

### lower rank); Coon v. 

### United States, 30 Fed. 

### Cl. 531, 540

## ("[]n wrongful denial 

### of promotion cases, the 

### claim accrues atthe time the 

### plaintiff is

### first and 

### finally denied a

### promotion.

. .

## . By the date 

### of retirement, atthe very least, 

### all events had occurred 

### fixing the govemment's potential 

### liability for a

### wrongful denial

### of promotion.

. .

# . [P]laintiffs wrongful denial 

### of promotion claim accrued, atthe latest,

. . .upon discharge."), 

### aff d oer 

### curiam,4l F.3d 1520 (Fed. 

### Cir. 1994) 

### (mem.). 

### Plaintiff scontention that the 

### holding in Martinez does 

### not apply to his circumstances therefore lacks merit.


### Plaintiff ssecond argument is equally 

### unavailing. Plaintiff contends that his 

### claim did not accrue 

### until the

### ABCMR rejected 

### his second

### application in March 

### 2009. However, 

### it is

### well settled that in the 

### pursuit 

### ofback pay based on an improper release

### from active duty,

correction boards have been regarded as a permissive 

### administrative remedy and that an

### applicationto a correction board istherefore 

### not a

### mardatory prerequisite to

### filing a

### Tucker

### Act suit challenging the

### discharge.Accordingly, the

### failure to seek 

### relief from a correction board not 

### only does not prevent the 

### plaintiff from suing 

### immediately, but also does not prevent the cause 

### ofaction from accruing.


### Martinez, 333 F.3d 

### at 1304 

### (citations omitted); accord 

### id. 

### ("[I]n Tucker

### Act suits, a

### plaintiff is not required to exhaust a permissive administrative remedy before 

### bringing 

### suit. As a

### corollary 

### ofthat rule,

. . . a

### plaintiffs invocation of apermissive administrative remedy does not prevent the accrual 

### of the

### plaintiffls cause 

### ofaction, nor does 

### it

### toll the statute 

### of limitations pending the exhaustion 

### ofthat 

### administrative remedy.");Antonellis v. 

### United States

### ,123 F

### .3d 1328, l3 33 (Fed. 

### Cir. 2013) 

### ("[T]here is generally no requirement that a

### plaintiff exhaust remedies 

### with the applicable 

### Conections Board before

### filing suit 

### in the 

### Claims Court

. . .

### ."). Further, an application 

### to a correction board does not create a newTucker 

### Act cause 

### ofaction with a separate accrual 

### date. Martinez, 333 F.3d 

### at 1312; accord 

### id. at 1311 

### ("[T]he cause 

### of action 

### for back pay stemming 

### from [the 

### plaintiffs] separation 

### from active duty 

### first accrued on the date

### of his separation 

### from active 

### duty. It did not accrue 

### for a second

### time when the 

### Conection Board refused to grant [the

### plaintiffs] request 

### for relief, including back pay 

### tothe date

### ofhis separation."), I 3 13 

### ("[The 

### plaintiff s] cause 

### of action did 

### not accrue when the 

### Conection Board declined to 

### overtum his separation, because that action did 

### not cause 

### him monetary 

### injury, but merely failed 

### to remedy the 

### injury he had 

### previously 

### suffered."). Because 

### plaintiff was not required 

### to seek 

### relief from the

### ABCMR, his November 2008 

### application to the

### ABCMR neither prevented the accrual 

### of his 

### claim nor 

### tolled the statute 

### of limitations. And, the

### ABCMR's March 2009 

### rejection of that 

### application did not create a new cause 

### ofaction with its own accrual 

### date. 

### Plaintiffs claim accrued on October 

### 31.2007. the date

### ofhis retirement.

-6-

# III. PLAINTIFF'S MOTION FOR SANCTIONS

The 

### court's resolution of defendant's 

### motion to dismiss bears

### directly upon 

### plaintiffs motion for sanctions. In his 

### motion, 

### plaintiff asserts that defendant mischaracterized certain allegations 

### in his 

### complaint. Specifically, 

### plaintiff objects

### to defendant's use

### ofthe term "discharge," because, 

### in fact, he was retired 

### from active duty, and contends that defendant used theterm 

### "discharge"to improperly shoehorn the allegations 

### in his 

### complaint into the factual and legal

### framework of 

### Ma(inez. Plaintiff brings his 

### motion under 

### RCFC 11, 

### which obligates attomeys 

### to ensure that

### their 

### filings are not being presented 

### to the court 

### for an improper purpose, and that the representations in those 

### filings are

### factually and 

### legally sound.a See 

### RCFC 11(b). To avoid 

### running afoul 

### ofRCFC 11, attorneys must engage 

### in afactual and legal 

### inquiry, reasonable underthe circumstances, 

### prior to presenting 

### filings tothe

### court. Id.

As reflected above, defendant

### correctly relied upon 

### Martinez for the 

### proposition that a 

### claimfor back pay arising under 37 

### U.S.C. $204 accrues no later thanthe service member's improper separation 

### from the 

### military. Although Martinez is a

### military discharge case, 

### its holding is equally applicable 

### to situations in 

### which the 

### improper separation is a retirement rather than a dischaxge. See 

### Roth,378 F.3dat 138a 

### ("[A]n involuntarily discharged or 

### mandatorily retired 

### officer must 

### bring his or her Tucker 

### Act action in the Court 

### of Federal Claims 

### within six years

### ofthe date 

### ofdischarge or 

### retirement."); Martinez, 333 F.3d 

### at 1313 

### ("The cause 

### ofaction in [the 

### plaintiffs] Tucker

### Act suit was

### for the denial 

### ofmoney; that cause

### ofaction therefore accrued when hewas separated 

### from active duty and his monetary 

### injury began."); 

### Adkins, 68 F.3d 

### at 1321 

### (noting that the 

### plaintiff, a retired 

### Army officer, was entitled 

### to basic pay under 37 U.S.C. S204 

### prior to his retirement, and 

### holding that 

### if the 

### plaintiffs "discharge was

### voluntary and 

### improper, 

### [his] statutory 

### right to pay was not extinguished, and thus serves as a basis

### for Tucker Act

### jurisdiction"). Thus, defendant's use 

### ofthe term 

### "discharge"-while technically



## " If aparty believes that an opponent

### violated RCFC I 1(b) and should be sanctioned as a result, 

### it may prepare a 

### motion "describIing] the specific conduct that allegedly violates RCFC I 

### 1(b)" and servethat 

### motion on its 

### opponent. RCFC 1 I

### (c)(2). After twenty-one days, the 

### parfy may 

### file the 

### motion 

### with the court, 

### butonly 

### if its opponent has not 

### "withdrawn or appropriately corrected" the alleged

### violation. 

### Id. The service requirement 

### in this safe harbor 

### provision is 

### strictly construed. See Coastal 

### Enrtl. Gm.. Inc. v. 

### United States, 118 Fed. 

### Cl. 15,29 (2014) (citing supporting 

### decisions). 

### Plaintiff served his 

### motion for sanctions on defendant on 

### July 17, 

### 20i5. Defense counsel responded to 

### plaintiffby letter, dated luJy 

### 24,2015, indicating defendant's 

### position that sanctions were not 

### appropriate. 

### Plaintiff filed his 

### motion with the court onAugust 

### 3,2015, seventeen days after serving the 

### motion on 

### defendant. Although 

### plaintiff did not 

### waittwenty-one days before 

### filing the 

### motion with the court, the court 

### will not dispose 

### of plaintiff s

### motion onthis ground, 

### for two reasons. First, defense counsel

### formally advised 

### plaintifl in her July 24, 2015 letter, 

### ofdefendant's positionthat there was no basis

### for sanctions, 

### effectively declining the

### opportunity created bythe safe harbor 

### provision to conect the purported 

### violation. Second, defendant did not raise the 

### violation 

### ofthe service requirement 

### in its response in opposition to

### plaintiffs motion for sanctions.



### -7-inaccurate-is 

### legally inconsequential under

### tle circumstances presented 

### in this case.s There is no



### RCFC 1

### I violation. 

## IV. CONCLUSION

Forthe

### foregoing reasons,the court 

### DENIES plaintifP s

### motion for sanctions and 

### GRANTS defendant's 

### motion to dismiss 

### plaintiff s

### complaint

### for lack 

### of subject matter 

### jurisdiction. PlaintifPs complaint is 

### DISMISSED without 

### prejudice. No costs. The 

### clerk is directed

### to enter

### judgment accordingly.


### IT IS SO 

### ORDERED.

s Indeed, even courts use the term 

### "discharge" when 

### referring to retired service members. See. e.9.,

### Stqith, 384 F.3d 

### at 1296 (addressing the 

### possibility thatthe 

### plaintifPs retirement 

### could be characterized as an 

### "involuntary discharge[]" (emphasis added));

### Adkins,68 F.3d 

### at 1321 

### (holding,

### with respect to

### tle plaintiff, a retired 

### Army officer, that 

### ifthe plaintiffs "disghalgg was voluntary and 

### improper, 

### [his] statutory 

### right to pay was 

### not extinguished, andthus serves as a basis

### for Tucker Act

### jurisdiction" (emphasis added)); Coon, 30 Fed. 

### Cl. at 540 

### ("By the date

### of retirement, atthe very least, 

### all events had occuned 

### fixing the 

### govemment's potential 

### liability 

### for

a

### wrongful denial 

### of 

### promotion.

. .

# . p]laintiff s

### wrongful denial 

### of promotion claim accrued, at the latest,

. . .upon discharge." (emphasis 

### added).