- I 

No. 16-672C 

(Filed: November 16, 2016) 

************************************* 

* 

JEROME RANDOLPH, * 

* 

FILED 

NOV 1 6 2016 

U.S. COURT OF 

FEDERAL CLAIMS 

Plaintiff, 

v. 

THE UNITED STATES, 

* Rule 12(b )( 1) Motion to Dismiss; 

* Motion for Judgment on the 

* Administrative Record; Review of 

* Military Board Decisions; Review 

* of Court-Martial Conviction; 

Defendant. 

Defamation Claim. * 

* 

* 

************************************* 

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. 

1 The 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 courtmartial 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 nonmovant'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!. if if 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 

4 
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 courtmartial 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 courtmartial 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 courtmartial 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. 

6 

~c.tML THOMAS C. WHEELER 

Judge