RIGINAL 

3Jn tbe Wniteb ~tates <!ourt of jfeberal <!laitns 

No. l 8-1076C 

(Filed: December 12, 2018) 

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MALACHI H. TOLAR, prose, 

Plaintiff, 

V. 

THE UNITED STATES, 

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* Statute of Limitations; Retroactive 

* Promotion; Military Pay; Non-Justiciable 

* Claims 

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* 

Defendant. * 

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Malachi H Tolar, prose, Kennesaw, Georgia, Plaintiff. 

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

Joseph H Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, Franklin 

E. White, Jr., Assistant Director, Washington, D.C., as well as LCDR Adam B. Yost, United 

States Navy, Office of the Judge Advocate General, General Litigation Division, for 

Defendant. 

OPINION AND ORDER 

WHEELER, Judge. 

Malachi H. Tolar is a pro se plaintiff who alleges that the Department of the 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 state claim on which relief can be granted, and is non-justiciable. For the 

following reasons, the motion is GRANTED. 

Background 

Mr. Tolar served as an enlisted Aviation Electrician's Mate in the Navy for twenty 

years. Mot. Dismiss App. 1 (redacted DD-214 form). He ultimately retired at the rank of 

7017 1450 DODO 1346 2366 
Management. Comp!. Ex. 1. Mr. Tolar retired on October 31, 1995. Mot. Dismiss App. 

2 (redacted DD-149 form). 

On July 23, 2018, Mr. Tolar filed a complaint with this 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. at 4. Mr. Tolar does not assert when he originally requested to be made a commissioned 

officer. However, according to a 2014 petition that Mr. Tolar submitted to the Board for 

Correction of Naval 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 that Mr. Tolar's claims are time barred, and the Court 

agrees. Parties must file claims in the United States Court of Federal Claims within six 

years of accrual. 28 U.S.C. § 2501. A claim accrues when "all events have occurred to fix 

the Government's alleged liability, entitling the claimant to demand payment 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, 4 7 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 BCNR petition 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 of the 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 of his retirement in 1995. Because Mr. Tolar brought 

these claims more than six years 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 rank that 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." Voge v. United States, 844 F.2d 776, 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). For a claim based on procedural error, a claimant must show a nexus 

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 whether his 

1990 and 1991 requests were approved or rejected. It is not clear whether Mr. Tolar alleges 

that the Navy committed a procedural or a substantive error, but Mr. Tolar's claim fails 

either way. IfMr. Tolar's claim is substantive, then it is non-justiciable because the Navy's 

substantive decision not to promote Mr. Tolar was committed to military discretion. IfMr. 

Tolar's claim is procedural, then Mr. Tolar fails to state a claim because he 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: "Could Administrative error be the reason?" Id. 

Finally, the Court of Federal Claims cannot order an award of money 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 and justiciable claim against the 

United States, the time to bring that claim has long since expired. The Court is thankful 

for Mr. Tolar's service, but the 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