# RIGINAL 3Jn tbe Wniteb ~tates <!ourt ofjfeberal<!laitns

No. l8-1076C (Filed: December 12, 2018) 

### ************************************* * MALACHI H. TOLAR,

### prose, Plaintiff , V

. THEUNITED STATES, 

### * * * * Statute of Limitations; Retroactive 

### * Promotion;MilitaryPay;Non-Justiciable 

### * Claims 

### * * Defendant. 

### * * 

### ************************************* MalachiH Tolar,prose, Kennesaw, Georgia, Plaintiff. 

### James William Poirier, Civil Division, U.S. Department of Justice, with whom were, 

### Joseph H 

### Hunt, AssistantAttorney General,

### Robert

### E. Kirschman, Jr., Director, 

### Franklin 

### E. White, Jr., AssistantDirector, Washington, D.C., as well as

### LCDRAdam

### B. Yost, United States Navy, Office of the Judge Advocate General, General Litigation Division, for Defendant. OPINIONAND ORDER WHEELER, Judge. Malachi H. Tolar is a

### pro se plaintiffwho alleges thatthe Department ofthe Navy failed to process his request to be promoted and commissioned in the Medical Service Corps

. Mr. Tolar now wants the Navy to retroactively promote him and retire him at a higher rank. The Government has filed a motion to dismiss Mr. Tolar's suit because it is untimely, fails to stateclaimon whichreliefcanbe granted, andis non-justiciable

. Forthe following reasons, themotion is GRANTED. Background Mr. Tolar served as an enlisted Aviation Electrician's Mate inthe Navy for twenty years. Mot. Dismiss App. 1 (redacted DD-214 form). Heultimately retired atthe rank of



### 7017 1450 DODO 1346 2366Management. Comp!. Ex. 1. Mr. Tolar retired on October 31, 1995. Mot. Dismiss App. 2 (redacted DD-149 form). OnJuly 23, 2018, Mr. Tolar filed a complaintwiththis Court alleging that the Navy failed "to process original documents relating to direct commission in the U.S. Navy Medical Service Corps." Comp!. at 2. Mr. Tolar seeks to be "promoted to (01) Ensign." Id. at4. Mr. Tolar does not assertwhenhe originallyrequestedto be made a commissioned officer. However, according to a 2014 petition that Mr. Tolar submitted to the Board for Correction ofNaval Records ("BCNR"), and a 2016 petition for reconsideration that he submitted to the same, Mr. Tolar alleged that he requested this appointment in 1990 and again in 1991. Mot. Dismiss App. 2. Through this lawsuit, Mr. Tolar appears to be seeking: (I) retroactive promotion to Ensign (0-1); (2) retroactive concurrent appointment to the Medical Service Corps; and (3) retirement as an Ensign as of 1995. See Comp!. at 2-4. On October 15, 2018, the Government filed a motion to dismiss the complaint. On December 4, 2018, Mr. Tolar responded in opposition. Discussion The Government argues first thatMr. Tolar's claims are timebarred, and the Court agrees. Parties must file claims in the United States Court ofFederal Claims within six years ofaccrual. 28 U.S.C. § 2501. A claim accrues when "all events have occurred to fix the Government's alleged liability, entitling the claimantto demandpayment and sue" for the money owed. Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003). Retirement is the latest possible accrual date when a veteran challenges the military's failure to promote him during active service. Osborn v. United States, 47 Fed. Cl. 224, 233-34 (2000). Appeals to a correction board are irrelevant to the question of claim accrual. See Martinez, 333 F.3d at 1304-05. Although Mr. Tolar does not allege when he submitted his request for an officer commission, his 2014 BCNRpetition states that he applied for the Medical Service Corps program in 1990 and in 1991. Mot. Dismiss App. 2. Therefore, Mr. Tolar's claims for promotion and an officer commission accrued from the date ofthe Navy's decision not to act on his request in 1991. Further, Mr. Tolar's claim for any additional retirement pay under this higher rank accrued as ofhis retirement in 1995. Because Mr. Tolar brought these claims more than sixyears after they accrued, they are time barred. The Government also successfully argues that Mr. Tolar's claims for retroactive promotion and for pay based on the higher rankthat Mr. Tolar claims he is entitled to are non-justiciable and fail to state a claim on which relief can be granted. Thousands of
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### "routine personnel decisions regularly made by the services

. . . are variously held nonjusticiable." Vogev. United States, 844 F.2d776, 780 (Fed. Cir. 1988). Judicial review is only appropriate where the military's discretion is limited and Congress has established tests for measuring the military's conduct, or where a court reviews only whether the military properly followed its own procedures. Murphy v. United States, 993 F.2d 871, 873 (Fed. Cir. 1993). Fora claimbased on procedural error, aclaimantmust show anexus between the error and the adverse promotion decision. See Lindsay v. United States, 295 F.3d 1252, 1259 (Fed. Cir. 2002). According to Mr. Tolar's complaint, the Navy never notified him about whetherhis 1990 and 1991 requests were approved orrejected. It

### is not clearwhetherMr. Tolar alleges that the Navy committed a procedural or a substantive error, but Mr. Tolar's claim fails eitherway. IfMr.Tolar's claimis substantive, then itis non-justiciablebecausetheNavy's substantive decision notto promote Mr. Tolar was committedto military discretion. IfMr. Tolar's claim is procedural, then Mr. Tolar fails to state a claim becausehe cannot identify a nexus between a procedural error and his adverse promotion decision. See Comp!. at 3. Mr. Tolar merely questions why he was never notified about whether his request was approved or rejected: "CouldAdministrative error be the reason?" Id. Finally, the Court ofFederal Claims cannotorder an award ofmoney damages based on retroactive appointment or promotion. Dysart v. United States, 369 F.3d 1303, 1317- 18 (Fed. Cir. 2004). Therefore, with respect to Mr. Tolar's request for backpay based on retroactive promotion, Mr. Tolar also fails to state a claim for this reason. Conclusion Unfortunately for Mr. Tolar, ifhe ever had a valid andjusticiable claim against the United States, the time to bring that claim has long since expired. The Court is thankful for Mr. Tolar's service, butthe Court is not empowered to act on his claim. For the reasons above, the Court GRANTS the Government's motion to dismiss. The Clerk is directed to dismiss the complaint with prejudice. IT IS SO ORDERED.

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# w~~c.~ THOMAS C. WHEELER Judge