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No. l5-309C FILED

(Filed: October 30, 2015)

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U.S. COURT OF KEVIN P. FRITZ, * Feornru Cr_niri4S

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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. *

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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 in the complaint. For the 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 the facts in this section from plainti{P s complaint.
active duty. Plaintiff was then promoted to the rank ofcaptain in 1988 and the rank of major in

199s.

Plaintiff was considered, but not selected, for promotion to the rank oflieutenant colonel

by the Fiscal Year 1998 and Fiscal Year 1999 Judge Advocate Lieutenant Colonel Promotion

Selection Boards. After he was 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 by the Fiscal Year 2000 Judge Advocate Lieutenant

Colonel Promotion Selection Board. Instead, in 2001, he was selected for continuation on active

duty and was continued until October 31,2007, when he retired at the 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 to the rank of

lieutenant colonel retroactive to his nonselection for promotion by the Fiscal Year 1999 Judge

Advocate Lieutenant Colonel Promotion Selection Board. He contended that the Promotion

Selection Board's decision was tainted 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 by the 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 to the ABCMR. In this application, plaintiff contended that

new information revealed that 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 was submitted more than one year after

the ABCMR's original decision, it was untimely. The ABCMR's letter did not address

plaintiff s contentions 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 his first 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 by the Fiscal Year 1999

Judge Advocate Lieutenant Colonel Promotion Selection Board, and continuing until his

retirement, as well as all back pay and allowances that would result from such a correction.

Alternatively, plaintiff requests the conection ofthe records in his Promotion Selection Board

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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) of the 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 other words, a plaintiff proceeding plq se must prove,

by a preponderance ofthe evidence, that the court possesses jurisdiction. See McNuttv. Gen.

Motors Acceptance 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 and the Statute of Limitations

Whether the court has jurisdiction to decide the merits ofa case is a threshold matter. See

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,94-95 (1998). "Without jurisdiction the

court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it

ceases to exist, the only function remaining to the court is that of announcing the fact 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 in framing the theory of

the case, evaluating alternative methods ofpresenting the evidence, cross-examining hostile

witnesses, formulating legal arguments, and in making sure that reason, rather than emotion,

dictates the proper tactical response to unforeseen developments in the courtroom." Kay v.

Ehrler,499 U.S.432, 437 (1991).

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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 on the 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 are founded upon the Constitution,

a federal 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 of the Court

of Federal Claims to reach the merits of a claim).

C. Plaintiff s Claim Arises Under 37 U.S.C. S 204

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 a higher rate ofpay and presumably would not have been continued on active duty and then

retired. Plaintiff s allegations amount to a claim that he was improperly retired from the Army

with a rank lower than the one to which he was 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 he was 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 are on 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 leads to the 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

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U.S.C. $ 2041 in the Court ofFederal Claims, the plaintiff must allege that because the separation

was unlawful, he or she is entitled to the pay that would have been received but for 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 he was appointed to up until he is properly

separated from the service"' (quoting Sanders v. 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 a money-mandating statute).

D. Plaintiff s Claim Is Untimely

"A cause ofaction cognizable in a Tucker Act suit accrues as soon as all events have

occurred that 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, as the 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. g 204 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 later than October 3 I 

,

2007, rendering his complaint, filed more than 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 he was

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 release was 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 suit was for the denial ofmoney; that cause ofaction

therefore accrued when he was separated from active duty and his monetary injury began.");

Adkins v. United States, 68 F.3d 1317,1321 (Fed. Cir. 1995) (noting that the plaintiff, a retired
Army officer, was entitled to basic pay under 37 U.S.C. g 204 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"); see also Brownfield v.

United States, 589 F.2d 1035, 1038-40 (Ct. Cl. 1978) (holding that the plaintiff s claim that he

was wrongfully denied a promotion prior to his retirement accrued on the date that he was finally

denied that promotion-the date ofhis retirement at the lower rank); Coon v. United States, 30

Fed. Cl. 531, 540 ("[]n wrongful denial of promotion cases, the claim accrues at the time the

plaintiff is first and finally denied a promotion. . . . By the date of retirement, at the 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, at the latest, . . . upon

discharge."), aff d oer curiam,4l F.3d 1520 (Fed. Cir. 1994) (mem.). Plaintiff s contention that

the holding in Martinez does not apply to his circumstances therefore lacks merit.

Plaintiff s second 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 application to a correction board is therefore 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 a permissive administrative remedy does not prevent

the accrual of the plaintiffls cause ofaction, nor does it toll the statute of limitations pending the

exhaustion of that 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 new Tucker 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 to the 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.

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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

the term "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 1 1(b).

To avoid running afoul ofRCFC 11, attorneys must engage in a factual and legal inquiry,

reasonable under the circumstances, prior to presenting filings to the court. Id.

As reflected above, defendant correctly relied upon Martinez for the proposition that a

claim for back pay arising under 37 U.S.C. $ 204 accrues no later than the 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 he was 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. S 204 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 a party 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 serve that motion on its opponent. RCFC 1 I (c)(2). After twenty-one days, the parfy

may file the motion with the court, but only 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

on August 3,2015, seventeen days after serving the motion on defendant. Although plaintiff did

not wait twenty-one days before filing the motion with the court, the court will not dispose of

plaintiff s motion on this ground, for two reasons. First, defense counsel formally advised

plaintifl in her July 24, 2015 letter, ofdefendant's position that there was no basis for sanctions,

effectively declining the opportunity created by the 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.

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inaccurate-is legally inconsequential under tle circumstances presented in this case.s There is no

RCFC 1 I violation.

IV. CONCLUSION

For the 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 that the 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, and thus serves as a

basis for Tucker Act jurisdiction" (emphasis added)); Coon, 30 Fed. Cl. at 540 ("By the date of

retirement, at the 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).