3Jn tbe Wniteb ~tates (!Court of jfeberal QClaints 

No. 16-l 133C FILED 

(Filed: October 3, 2017) 

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

* 

OCT - 3 2017 

U.S. COURT OF 

FEDERAL CLAIMS 

MORRIS M. HARRIS, 

Plaintiff, 

v. 

THE UNITED ST A TES, 

Defendant. 

* * Judicial Review of Army Board for 

* Correction of Military Records Decision; 

* Review of Military Records; Rule 

* 12(b)(l) Motion to Dismiss for Lack of 

* Subject Matter Jurisdiction; Cross-

* Motions for Judgment on the 

* Administrative Record. 

* 

* 

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Morris M Harris, Beaufort, North Carolina, pro se Plaintiff. 

Joshua Ethan Kurland, with whom were Chad A. Readier, Acting Assistant Attorney 

General, Robert E. Kirschman, Jr., Director, and Steven Gillingham, Assistant Director, 

Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, 

D.C., for Defendant. 

OPINION AND ORDER 

WHEELER, Judge. 

Morris M. Harris, a pro se plaintiff and former serviceman in the United States 

Army Reserves Active Guard Reserve program, brings this action alleging wrongful 

discharge from the Army. In separate proceedings, the Army Board for Correction of 

Military Records ("ABCMR" or "the board") denied Mr. Harris's claims and sustained his 

separation from the Army, finding he was properly discharged. The Government has 

moved to dismiss for lack of jurisdiction and for failure to state a claim upon which relief 

can be granted. 1 The Government has also moved for a judgment on the administrative 

record, arguing that the ABCMR's decision was supported by substantial evidence. Mr. 

Harris has cross-moved for judgment on the administrative record, arguing that the record 

1 The Government argues that the Court lacks jurisdiction to hear tort, whistleblower, and claims concerning 

punitive damages; it also argues that Mr. Harris fails to state a claim for reinstatement, promotion, and back 

pay. 

7017 1450 ODDO 1346 2502 
fully supports his relief. For the reasons explained below, the Court GRANTS the 

Government's motion to dismiss as to certain claims and GRANTS the Government's 

motion for judgment on the administrative record as to the remainder. The Court DENIES 

Mr. Harris's motion for judgment on the administrative record. 

Factual and Procedural Background2 

Mr. Harris first enlisted in the United States Army Reserve ("USAR") in April 1998 

and entered active duty in May 1998. AR 539. After a break in service, Mr. Harris enlisted 

in the USAR and entered the USAR Active Guard Reserve ("AGR") program. Id. While 

in the USAR AGR program, Mr. Harris was promoted to the rank of Staff Sergeant 

General. AR 540. In March 2010, Mr. Harris last reenlisted to active duty for a three-year 

period, effective May 26, 2010. AR 540. 

In 2010, Mr. Harris encountered performance and behavioral problems. Id. The 

administrative record highlights that Mr. Harris received Developmental Counseling 

Forms pertaining to issues including defiance of direct orders, failure to attend annual 

training and make scheduled payments on his government-issued credit card, and 

disrespect toward officers. Id.; see also AR 975-987, 1167-68 (Developmental Counseling 

Forms). 

For example, in May 2010, Mr. Harris was counseled for sending a disrespectful 

message to supervisors in his command group. AR 977. The message stated, "All I know 

is that I am not signing a dumb ass counseling [form]." Id. The recommended plan of 

action was that Mr. Harris "learn to control [himself]," and the counselor indicated that 

going forward, he would recommend "adverse action" against Mr. Harris. AR 978. Later 

that month, Mr. Harris was also counseled for providing false information to a commanding 

officer. AR 984-85. 

Also in May 2010, Mr. Harris admitted himself into a mental-health facility after 

traumatic personal events. AR 178. In June 2010, Mr. Harris's battalion commander 

referred him to a psychologist for a mental health evaluation; the psychologist diagnosed 

Mr. Harris with "an adjustment disorder with disturbance of emotion and conduct." AR 

540. In August 2010, Mr. Harris received a permanent physical profile for asthma and 

depression with anxiety, indicating a medical limitation. Id. This limitation affected Mr. 

Harris's ability to deploy, but his health did not otherwise interfere with his duties. AR 

1047-48. 3 Mr. Harris's counseling continued in September and October 2010 for 

2The facts in this opinion refer to the administrative record ("AR"). The Cami's citations to the 

administrative record are to the AR page numbers. 

3 Mr. Harris's final medical profile in April 2011 indicated a history of asthma but no current limitations. 

It also stated a history of depression with anxiety that has since been resolved. AR 439-40. 

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"engaging in a pattern of poor, disruptive, disrespectful, dishonest, and unacceptable 

behavior" including disobeying direct orders, leaving duty without permission, and 

communicating a threat of physical harm to officers in command. AR 1167, 1212-17 

(counseling form and witness testimony). 

In September 2010, Mr. Harris's commander expressed intent to commence a 

separation action against Mr. Harris under the provisions of Army Regulation 635-200, 

Chapters 13 and 14. AR 541. In October 2010, Mr. Harris initiated a complaint alleging 

whistleblower reprisals and other issues. AR 558, 563. The investigation found that Mr. 

Harris's allegations concerning whistleblower reprisals were unsubstantiated, and the 

Army Inspector General decided that his separation was appropriate. AR 581-83. 

Further, on January 21, 2011, an administrative separation board convened to 

consider Mr. Harris's actions. AR 541. Mr. Harris, represented by legal counsel, 

presented evidence to the board, and during the proceeding, witnesses testified about Mr. 

Harris's conduct since May 2010. AR 1205; see generally 1204-39 (involuntary separation 

board testimony). Witnesses spoke about Mr. Harris's responsibilities, sometimes 

combative responses to criticism, and family issues. AR 1206, 1213. After review of the 

evidence and testimony, the board found that Mr. Harris was unqualified for further 

military service because of unsatisfactory performance, a demonstrated pattern of 

misconduct, and his commission of a serious offense. AR 1239. The board determined 

that Mr. Harris violated Army Regulation 635-200, Chapter 13, paragraph 2a(1)(6); 

Chapter 14, paragraph 12b(2), and Chapter 14, paragraph 12c and recommended that Mr. 

Harris be separated from military service with a characterization of service as General, 

Under Honorable Conditions. AR 1239-40. 

On February 3, 2011, an administrative law attorney reviewed the board process and 

determined that the January 2011 proceedings were legally sufficient and contained no 

errors. AR 1242-44. The attorney also found that sufficient evidence supported the board's 

findings and the recommendation was consistent with the findings. Id. On February 9, 

2011, the separation authority approved the board's findings and recommendations, and 

directed Mr. Harris to receive General, Under Honorable Conditions discharge. AR 1199, 

1203, 1282, 1291. Despite separation, in March 2011, Mr. Harris was placed on a list for 

promotion to the rank of Sergeant First Class. AR 323. 

Before promotion could take place, however, Mr. Harris was discharged from the 

USAR AGR on May 6, 2011, under Army Regulation 635-200, paragraph 14-12b, citing 

a pattern of misconduct. AR 1272-73. This discharge occutTed weeks prior to his threeyear reenlistment period was scheduled to begin. AR 540. In April 2011, Mr. Harris 

unsuccessfully sought an upgrade of his discharge. AR 1146-1150. After reviewing all 

evidence, including military records, the Army Discharge Review Board determined that 

Mr. Harris was properly and equitably discharged. AR 543, 1110-11. 

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Mr. Harris applied to the ABCMR on April 6, 2012, requesting reinstatement in the 

USAR AGR program; correction of records; payment of back pay from May 6, 2011 until 

his potential reinstatement date; and promotion to the rank of Sergeant First Class, for 

which he was placed on the promotion list. AR 1001. The ABCMR, finding that Mr. 

Harris's separation was in compliance with applicable regulations and his service record 

was void of evidence indicating an unjust release, denied Mr. Harris's application on July 

11, 2013. AR 916-17. It further concluded that Mr. Harris was not entitled to reinstatement 

or back pay due to lack of evidence regarding procedural error, and as discharge was 

proper, he was not entitled to promotion. AR 916. The ABCMR reached this conclusion 

after examining supporting documentation and Mr. Harris' s extensive military personnel 

file. AR 906-917. 

Mr. Harris sought ABCMR reconsideration on August 20, 2013; this time, he 

requested that this second application be processed through the Army Physical Disability 

Evaluation System ("PDES"), asking that his record reflect that he was separated for 

medical disability rather than misconduct. AR 552. His application was denied in June 

2014, and the board highlighted the fact that Mr. Harris was medically cleared to return to 

duty, without limitation, despite prior medical issues. AR 537-3 8, 542-43, 547. Therefore, 

processing through PDES would have been improper, and the separation authority did not 

err. AR 548. 

Mr. Harris filed a third application with the ABCMR on January 3, 2016. AR 369-

76. His requests, including processing through PDES, remained the same. Id. During 

ABCMR review, the Senior Medical Advisor for the Army Review Boards Agency 

provided an advisory opinion, concluding that Mr. Harris met medical standards at the time 

of separation; his medical conditions were duly considered; and there was no evidence of 

a medical disability that would support a change in the record. AR 292-94. 

Mr. Harris commenced this action with the Court on September 13, 2016 requesting 

reinstatement in the USAR AGR program, a promotion to the Sergeant First Class rank, 

back pay from the time of discharge until potential reinstatement, correction of his military 

records, and punitive damages. Dkt. No. I. As Mr. Harris had an open ABCMR case with 

common claims, the Court granted a stay in proceedings pending resolution of the ABCMR 

consideration. Dkt. No. 12. 

After reviewing the evidence, on November 15, 2016, the ABCMR again denied 

relief to Mr. Harris. The board explained that the 2014 decision regarding reinstatement, 

back pay, and promotion was final. AR 13-14. Therefore, the board primarily focused on 

the DPES processing request. Id. The board explained that DPES processing is appropriate 

when the Army authority considers the medical condition at hand to be a direct or 

substantial cause of the conduct that led to the separation recommendation. AR 32. The 

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board did not find this to be the case with Mr. HatTis. AR 33. Instead, the board explained 

that the reasons for separation were all based on behavior, and there was no evidence 

suggesting that a medical issue contributed to Mr. Harris's conduct at the time of 

separation. Id. The board noted that Mr. Harris' s record showed no medical limitations at 

the time of separation and therefore did not alter the more recent 2014 ABCMR decision. 

Id. 

Following the ABCMR decision, Mr. HatTis filed an amended complaint with the 

Court, again seeking reinstatement, back pay, promotion, processing through the DPES, 

correction of military records, and punitive damages for pain, suffering, and the death of 

his mother, whom Mr. Harris alleges could not receive proper medical care after his 

discharge. Am. Comp!. at 61, Dkt. No. 19. Mr. Harris also seeks to bring class action 

claims on behalf of his family. Id. at 21, 25, 51-52. Lastly, he claims that he was 

wrongfully discharged due to medical conditions. Id. at 2, 6-7. The Government filed the 

Administrative Record concurrently with its motion to dismiss and motion for judgment 

on the administrative record. Dkt. No. 27. Mr. Harris filed a response and cross-motion 

for judgment on the administrative record on July 5, 2017. Dkt. No. 30. The parties 

completed briefing on August 30, 2017, and the Court heard oral argument on September 

15, 2017. 

Discussion 

A. The Court Lacks Jurisdiction to Hear Mr. Harris's Tort, Whistleblower Reprisal, 

and Punitive Damages Claims. 

The Government has moved to dismiss Mr. Harris' s tort, whistleblower reprisal, and 

punitive damages claims under Rule 12(b )( 1 ), for lack of subject matter jurisdiction. When 

deciding a 12(b )( 1) motion, the Court treats the undisputed facts in the complaint as true 

and must draw reasonable inferences in favor of the non-moving party. Erikson v. Pardus, 

551 U.S. 89, 91 (2007). 

The Tucker Act, which is generally the focus of subject matter jurisdiction in this 

Court, grants jurisdiction over claims "against the United States founded either upon the 

Constitution, or any Act of Congress or any regulation of an executive department, or 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. §1491(a)(l) (emphasis added). The 

Tucker Act itself"does not create a cause of action." RHI Holdings, Inc. v. United States, 

142 F.3d 1459, 1461 (Fed. Cir. 1998). Therefore, a plaintiff must identify a "separate 

source of substantive law that creates a right to money damages" in order to invoke the 

Court's jurisdiction over a claim. Greenlee County, Ariz. v. United States, 487 F.3d 871, 

875 (Fed. Cir. 2007) (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 

2005)). Further, the Court lacks jurisdiction to award punitive damages claims. See 

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Greene v. United States, 65 Fed. Cl. 375, 379 (2005) (citing Garner v. United States, 230 

Ct. Cl. 941, 943 (1982)); Vincin v. United States, 468 F.2d 930, 932, 199 Ct. Cl. 762 (Ct. 

Cl. 1972)). 

Mr. Harris alleges that he is entitled to monetary damages as a result of pain and 

suffering and the loss of his mother. These constitute tort claims, which are outside of this 

Court's purview. Similarly, Mr. Harris's contentions regarding whistleblower reprisal are 

not within this Court's jurisdiction; Mr. Harris' s amended complaint does not ground these 

allegations in a separate source of substantive law, so he does not have a right to money 

damages in this Court. Finally, due to the Court's limited jurisdiction, punitive damages 

are unrecoverable. Thus, the Government's motion to dismiss these claims is GRANTED. 

B. The Administrative Record Fully Supports the Government's Claims. 

When reviewing a motion for judgment on the administrative record under Rule 

52.l of this Court, the Court determines if a party has met its burden of proof based on the 

evidence in the record in light of all disputed facts. Anderson v. United States, 111 Fed. 

Cl. 572, 578 (2013). The Court makes factual findings from the record, "as if it were 

conducting a trial on the record." Peterson v. United States, 104 Fed. Cl. 196, 204 (2012) 

(citing Bannum v. United States, Inc., 404 F.3d 1346, 1357) (Fed Cir. 2005)). 

The administrative decision to discharge a military officer is granted great deference 

by this Coutt. Doe v. United States, 132 F.3d 1430, 1433-34 (Fed Cir. 1997). The Court's 

standard when reviewing the decision of a corrections board, is whether the decision is 

"arbitrary, capricious, unsupported by substantial evidence, or contrary to law." Skinner 

v. United States, 594 F .2d 824, 830 (1979). If the Court finds that the board's decision was 

reasonable and suppmted by substantial evidence, it will not overturn the board's decision. 

Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986). Coutts may not "substitute their 

judgment for that of the military board" when reasonable minds may differ. Banerjee v. 

United States, 77 Fed. Cl. 522, 533 (2007). 

1. The Evidence in the Record does not Suppmt Mr. Harris' s Claims. 

In this case, Mr. Harris alleges that the Army's separation action was inconsistent 

with Army regulations, values, customs, and traditions. Am. Comp!. at 23. While Mr. 

Harris cites at least eight army regulations, there is no suppmting evidence in the record to 

show that the Army violated these regulations. Am. Comp!. at 24. Rather, Mr. Harris 

simply claims an abuse of authority, without support. Id. at 24, 32, 53. The Court must 

determine if a party has met its burden of proof based on the evidence in the record, and 

Mr. Harris does not present any evidence on this matter. Similarly, Mr. Harris mentions 

that his alleged wrongful separation was inconsistent with Army values. Id. at 23. He does 

not, however, cite these values or traditions, or explain how the Army's decision 

6 
contradicts these customs. He has not met his burden of proof to show that the board's 

decision was improper. 

2. The ABCMR's Decision 1s Supported by Substantial Evidence m the 

Administrative Record. 

Mr. Harris contends that the board's decision was arbitrary, capricious, and an abuse 

of discretion because the board failed to consider his many career accomplishments. Am. 

Comp!. at 3, 32. The record reflects these accomplishments, but there is no evidence to 

show that the board overlooked these facts. Rather, the record reflects that in making 

decisions regarding Mr. Harris's applications, the board analyzed the entire military record 

and documents. AR 10-33, 534-48, 906-909. In its final reconsideration, the ABCMR 

looked at the complete record, including the advisory opinion, emails provided by Mr. 

Harris, and medical documentation. 

The record also suggests that in considering all the evidence, the board supported 

its allegation that Mr. Harris was properly separated. Documentation also included Mr. 

Harris's Developmental Counseling Forms, testimony from the separation board 

proceedings, and Mr. Harris's own admissions of misconduct. AR 547-48, 581-83, 1167-

68. It is noteworthy that an administrative law attorney found the initial separation 

proceedings to be legally sufficient, and the ABC MR considered Mr. Harris 's 

circumstances three times-seemingly affording full and proper review each time. 

The ABCMR was obligated to consider Mr. 1-Iarris's extensive military file and 

review the prior decisions for accuracy. Based on the evidence provided, the ABCMR 

decisions were fully supported by the record. 

Conclusion 

For the reasons stated above, the Court GRANTS the Government's motion to 

dismiss as to Mr. 1-Iarris's tort, whistleblower, and punitive damages claims, and GRANTS 

the Government's motion for judgment on the administrative record as to the remainder. 

The Court DENIES Mr. Harris's motion for judgment on the administrative record. Mr. 

Harris' s attempt to bring a class action claim in this matter is not appropriate under Rule 

23 of this Court. The Clerk of the Court shall enter judgment accordingly. No costs. 

IT IS SO ORDERED. 

7 

"b,<!_,4£t 

THOMAS C. WHEELER 

Judge