OPINION AND ORDER
Before the court are defendant’s “Motion to Dismiss or, in the Alternative, for Judgment Upon the Administrative Record, in Part, and for Summary Judgment” (“Def.’s Mot.”), plaintiffs “Cross-Motion for Judgment Upon the Administrative Record or[,] in the Alternative[,] Motion for Summary Judgment and Opposition and [sic] to Defendant’s Motion to Dismiss or, in the Alternative, for Judgment Upon the Administrative Record, in Part, and for Summary Judgment, in Part; and Affidavit of Marshall K. Flowers” (“Pl.’s Mot.”), defendant’s reply (“Def.’s Reply”), and plaintiffs response (“Pl.’s Resp.”). In Flowers v. United States,
I. BACKGROUND
A. Factual Background
The court previously detailed the underlying facts in this case in its opinion dated March 1, 2007. See Flowers,
1. Plaintiff’s Military Service
Plaintiff Marshall K. Flowers entered the United States Army (“Army”) in Jacksonville, Florida on April 30,1971. AR 336, 570. On May 14, 1997, plaintiff reenlisted for a period of two years, with his term of enlistment expiring on May 13,1999. Id. at 1148-53. Plaintiff was honorably discharged from the Army on February 1, 2000. Id. at 1155-57. When he left the Army, plaintiff was serving with the 25th Infantry Division as a food service sergeant major. Id. at 908, 1031, 1155. Throughout his service, plaintiff received several commendations for outstanding performance. Id. at 908, 1159-83.
The Army began investigating plaintiff for theft after plaintiff allegedly returned items to the Army and Air Force Exchange Service and Navy Exchange (collectively “exchange systems”) between September 1996 and December 1997 without receipts and in exchange for cash. Id. at 661-63. On December 13, 1997, security personnel at the exchange systems detained plaintiff. Id. at 662. Five days later, on December 18, 1997, the Army authorized a search warrant of plaintiffs quarters, id. at 677-80, and seized numerous items valued at $17,923.59, id. at 665, 667. The Army also found and seized fourteen exchange systems sales receipts, two of which appeared authentic, one of which “contained white out over the area which described the item purchased,” and the remainder of which “had the item description blank.” Id. at 665-66. In a report dated March 27, 1998, the Army’s Criminal Investigation Command determined that probable cause existed to believe that plaintiff conspired with his wife to steal from and to defraud the exchange systems by returning stolen property for cash. Id. at 661-74. On April 8, 1998, plaintiffs commander preferred charges against plaintiff for forty-two counts of larceny under the Uniform Code of Military Justice (“UCMJ”). Id. at 686-91.
Article 32 of the UCMJ requires that an investigative proceeding occur before a court-martial may be convened. 10 U.S.C. § 832 (2000). An Article 32 proceeding is “the military counterpart to a civilian grand jury.” Morgan v. Perry,
On July 26, 1998, ten days following the issuance of the Article 32 investigation report, plaintiff signed a plea bargain agreement entitled “Memorandum of Agreement for Alternative Disposition of Charges” (“July 26 agreement”) in which he accepted nonjudicial punishment (“NJP”) pursuant to Article 15 of the UCMJ and agreed to retire from the Army. Id. at 708. In exchange, the Army would “withdraw with prejudice all charges against [plaintiff] upon imposition of Article 15, UCMJ punishment” and return specific items that had been seized from plaintiffs quarters. Id. The agreement indicated that plaintiff “consulted with his military and civilian counsel prior to entering this agreement.” Id.; see also id. at 571 (indicating same).
The Army’s Division Support Command (“DISCOM”) commander rejected the offer to dispose of the case by NJP. Id. at 571. But see id. at 706 (stating, in a memorandum from Colonel Eddie Coleman to plaintiff on July 29,1998, that “the Forty-Two Specifications of the Charge, violations of the UCMJ Article 121, preferred on 9 April 1998, are hereby withdrawn and dismissed”). Plaintiff subsequently requested trial by court-martial.
[Disposition by article 15 is a total victory for the defense in this case. You will not have to face trial by court-martial, and you will be permitted to retire with the rank and privileges of a Sergeant-Major with 28 years of experience.
a. Consequences of Article 15. You will not face trial by court-martial. The maximum penalty you may receive is an admonition/reprimand, forfeiture of 1/2 of 1 month’s pay for 2 months, and 45 days of extra duty and restriction. By regulation, such extra duty cannot demean your position as a noncommissioned officer. You would not have a federal conviction.
b. Consequences of a Court-martial. If convicted of the Charge and all specifications, you could lawfully receive a dishonorable discharge, reduction to the lowest enlisted grade, confinement for up to 183 years, and afíne____
AR 709-10. After reading this memorandum, plaintiff indicated a desire to proceed to trial by court-martial. Id. at 710; see also id. at 571 (“[0]n 17 August 1998, [plaintiff] demanded trial by court-martial.”). The memorandum is part of the administrative record because plaintiff included it as an exhibit in his application for correction of military records dated May 7, 2002. See id. at 578-83 (containing plaintiffs cover letter, table of contents, and list of enclosures); infra Part I.A.2. Thus, any attorney-client privilege that would have attached to the memorandum has been waived.
A new DISCOM commander subsequently assumed command and accepted the terms of the July 26 agreement. AR 571. On August 22, 1998, a second plea bargain agreement entitled “Memorandum of Agreement for Alternative Disposition of Court Martial Charges” (“August 22 agreement”) was executed by plaintiff, plaintiffs civilian counsel, and Colonel Coleman. Id. at 738. The August 22 agreement, which superseded but was similar to the July 26 agreement, provided that plaintiff would “take whatever steps are required to out-process for retirement” and would not participate in any retirement ceremony. Id. In exchange, the Army would withdraw the charges against plaintiff and return specific items that had been seized from plaintiffs quarters. Id. The August 22 agreement also indicated that plaintiff “consulted with military and civilian counsel prior to entering this agreement.” Id.
In accordance with the August 22 agreement, plaintiff accepted his punishment under Article 15, id. at 830-32, 878, and applied for voluntary retirement on August 28, 1998, id. at 571, 790. In his application for retirement, plaintiff requested that he be placed on the retired list effective March 1, 1999. Id. at 571. Plaintiffs NJP was imposed and consisted of a formal reprimand, id. at 871, 1190, and forfeiture of $1,788 per month for two months, id. at 830, 871. On August 31, 1998, three days after accepting his punishment, plaintiff filed an Article 15 appeal in which he sought relief from “unjust, prejudicial,] and inappropriate punishment.” Id. at 591. Plaintiffs appeal was denied on September 2,1998. Id. at 832.
The Army also imposed upon plaintiff a bar to reenlistment, which became effective on May 12, 1999. Id. at 572, 871. The bar was imposed in April 1999 rather than in August 1998 because the commander “only recently learned that a bar had not been imposed previously, as would have been appropriate.” Id. at 871. The basis for the bar to reenlistment was the Article 15 punishment imposed upon plaintiff on August 28, 1998. Id. at 878; see also id. at 895 (“[Plaintiff] was barred from reenlistment for misconduct that resulted in his punishment under Article 15.... The bar is final. He may not reenlist.”). Plaintiff appealed this bar, id. at 878-79, but commanding officers ad
Although his Article 15 punishment was imposed on August 28, 1998, plaintiff apparently “chose not to put in his retirement paperwork,” and charges were repreferred for the same underlying conduct. Id. at 878; see also id. at 829 (stating, on a routing and transmittal slip dated April 5, 1999, that charges were “re-preferred after SGM F [lowers] did not put in his retirement” and that, “[a] far as SGM F[lowers] is eon-cemed[,] this Article] 15 should not be processed”). These charges included plaintiffs wife as an accomplice. Id. at 572; see also id. at 804-06 (alleging on a charge sheet dated November 13, 1998, that plaintiff and his wife had conspired to commit larceny); id. at 807 (containing the November 13 charge sheet allegations that plaintiffs wife “scanned” copies of receipts obtained from the exchange systems, “whited out and then made multiple photo copies” of an exchange systems receipt, and stole various items of property). Another Article 32 hearing was held on November 25, 1998,
During the period of time in which charges were repreferred against plaintiff, the Army authorized plaintiff to remain on active duty past May 13, 1999, the date his term of service expired, because its investigation into whether plaintiff violated Article 121 of the UCMJ remained pending. Am. Compl. 11113-5; AR 327-28. On June 28, 1999, the Army revoked its authorization to extend plaintiffs expiration of his term of service. AR 333, 469; see also id. at 475 (“[T]he Army has no authority to retain [plaintiff] in the Army any longer. His current term of service has expired----”).
Following its revocation of the authorization to extend plaintiffs term of service, the Army offered plaintiff the choice of either submitting a request for retirement or being discharged from the Army for expiration of term of service.
2. Plaintiffs Requests for Correction of Military Records
In April 2000, plaintiff submitted an appeal to the Enlisted Special Review Board (“ESRB”) seeking correction of his Noncom-missioned Officer Evaluation Report (“NCOER”) covering the period from July 1997 through August 1998. AR 572. Plaintiff maintained that the report should be removed from his record because it was intentionally and illegally changed. Id. On November 30, 2000, the ESRB concluded that plaintiff failed to submit sufficient evidence and denied his appeal. Id. at 573.
In May 2002, plaintiff applied for correction of his military records with the Army Board for Correction of Military Records (“Correction Board”). Id. at 578-971. In a July 25, 2002 memorandum, id. at 569-75, the Correction Board determined that plaintiff “failed to submit evidence” showing that the record was “in error or unjust.” Id. at 573. The Correction Board further found that plaintiff’s NCOER was “administratively correct,” that plaintiff was not denied effective assistance of counsel, and that plaintiff had the opportunity to demand trial by court-martial but instead accepted NJP. Id. at 574. It explained that “the command took the appropriate steps to ensure that the applicant’s rights were protected.” Id. With respect to plaintiffs contention that his NJP was unjustly imposed upon him, the Correction Board determined that argument was “without merit.” Id. at 574. It added:
The applicant had the opportunity to demand trial by court-martial and while he exercised that option at one point, after consulting with his military and civilian counsel, he subsequently withdrew his demand and entered into an agreement to accept NJP and request retirement in return for the government’s dismissal of charges. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the seriousness of the charges against him.
Id.; see also id. at 538 (indicating that plaintiff, “in accordance with a plea agreement, agreed to accept [NJP] ... and to submit his request for retirement. In return, the government agreed to withdraw all charges against him upon imposition of the [NJP]”).
Plaintiff filed a second application with the Correction Board on July 30, 2002, id. at 542-66, alleging that the NCOER was “prejudicial and resulted from prejudices, failure to follow regulations and improper and unsupported allegation of wrong doing [sic],” id. at 544. The Correction Board denied plaintiffs request for correction of his military records on January 30, 2003. Id. at 536-39. Although it found that plaintiff was not provided counseling and was not advised of his specific duties as required under applicable regulations, id. at 538B, the Correction Board nonetheless concluded that “there is no evidence[,] and the applicant has not provided any, to show that the report is unfair and unjust.” Id. at 538B-39. Moreover, the Correction Board noted that plaintiffs record contained a favorable evaluation and demonstrated no prejudicial conduct on the part of any official rating plaintiffs performance. Id. at 539.
On May 31, 2003, plaintiff appealed the Correction Board’s decisions of July 25, 2002, and January 30, 2003, id. at 9-533 (containing plaintiffs application, statement, and exhibits), and the Correction Board denied the appeal on March 30, 2004, id. at 2-8. It noted that it “had already determined in its 26 July 2002 review of this case that there was no error or injustice in the imposition of [plaintiffs] NJP” and that “there was no evidence or injustice in the imposition of the applicant’s NJP and [Memorandum of Reprimand].” Id. at 7. Furthermore, the Correction Board stated that plaintiff “did not submit any new evidence or argument which would overcome the Board’s previous conclusion that there were no errors or injustices in
3. Plaintiffs United States Savings Bond Purchases
During Ms service m the Army, plamtiff purchased United States Savings Bonds (“savings bonds”) m the names of his daughters. Am. Compl. ITU 95, 97-99; Def.’s App. 2 (indicating that plaintiff purchased twelve savings bonds, all of which were registered in the names of his daughters, between June 1986 and January 1987). According to plaintiff, Army personnel, or others acting at the direction of the Army, confiscated his suitcase containing approximately $23,000 in savings bonds following a military flight from CaliforMa to South Carolina on August 30, 2000. Am. Compl. 11104. But see Def.’s App. 18 (stating, in an “Affidavit of Loss/ Theft” executed by plaintiff on November 3, 2000, that the estimated amount of the savings bonds was $21,000). On September 7, 2000, plamtiff notified the UMted States Department of the Treasury Bureau of Public Debt (“Bureau of Public Debt”) that these savings bonds were “removed without [his] knowledge and/or consent” and requested assistance for having the savings bonds “replaced and placed in another name.” Def.’s App. 17.
On October 5, 2000, plaintiff submitted a claim with the Bureau of Public Debt re-questmg replacement of the savmgs bonds in his son’s name. Am. Compl. U 111. Plaintiff acknowledged in Ms claim that, although he was not the registered owner, he filed the claim because he “[purchased bonds and retained [them].” Def.’s App. 20. Plaintiffs claim was subsequently denied because the savings bonds were listed m plaintiffs daughters’ names. Am. Compl. UU112-13; see also Def.’s App. 23-24 (indicatmg, in a letter from the Bureau of Public Debt to plaintiff dated July 24, 2002, that plaintiff previously acknowledged in correspondence dated December 7, 1999, that plaintiffs daughters owned the bonds); id. at 25 (stating that plaintiff was advised that his daughters had to request any change in the bond registrations and that plaintiffs application was rejected because plaintiffs daughters did not join in the claim). Plaintiffs daughters, the registered owners of the bonds, submitted claims for the stolen bonds on their own and were reimbursed. Def.’s App. 62.
On December 17, 2001, plaintiff filed a lawsuit in state court against his daughters seeking a judicial determination that he was the rightful owner of the savings bonds. Id. at 66. Lacking the knowledge that plaintiffs daughters previously received payments on the stolen bonds, the trial court issued a default judgment against plaintiffs daughters, concluded that plaintiff was the rightful owner of the bonds, and ordered that the stolen bonds be replaced m plaintiffs name. Id. On January 14, 2003, plaintiff then filed a complaint in the UMted States District Court for the District of Hawaii seeking an order requiring that the Secretary of the Treasury reissue the bonds in plaintiffs name. Id. at 42. The court ruled that it lacked jurisdiction over plaintiffs claim relating to the savings bond valued in excess of $10,000 since jurisdiction rested exclusively with the United States Court of Federal Claims (“Court of Federal Claims”).
B. Procedural Background
The court provided a detailed recitation of the procedural background in this case in its earlier ruhng. See Flowers,
II. LEGAL STANDARDS
A. Pro Se Plaintiff
The Court of Federal Claims holds pleadings of a pro se plaintiff to less stringent standards than litigants represented by counsel. Haines v. Kerner,
B. Subject Matter Jurisdiction
Subject matter jurisdiction is “an inflexible threshold matter that must be considered before proceeding to evaluate the merits of a ease.” Matthews v. United States,
The Court of Federal Claims is a court of limited jurisdiction. Jentoft v. United States,
The Tucker Act, 28 U.S.C. § 1491 (2000), confers upon the Court of Federal Claims jurisdiction to “render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” Id. § 1491(a)(1). Although the Tucker Act waives the sovereign immunity of the United States for claims for money damages, it “ ‘itself does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.’ ” Greenlee County, Ariz. v. United States,
The separate source of substantive law must constitute 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,
The United States Court of Appeals for the Federal Circuit (“Federal Circuit”) has stated:
When a complaint is filed alleging a Tucker Act claim[,] ... the trial court at the outset shall determine ... whether the Constitutional provision, statute, or regulation is one that is money-mandating.
*211 If the court’s conclusion is that the Constitutional provision, statute, or regulation meets the money-mandating test, the court shall declare that it has jurisdiction over the cause, and shall then proceed with the case in the normal course. For purposes of the case before the trial court, the determination that the source is money-mandating shall be determinative both as to the question of the court’s jurisdiction and thereafter as to the question of whether, on the merits, plaintiff has a money-mandating source on which to base his cause of action.
If the court’s conclusion is that the source as alleged and pleaded is not money-mandating, the court shall so declare, and shall dismiss the cause for lack of jurisdiction, a Rule 12(b)(1) dismissal—the absence of a money-mandating source being fatal to the court’s jurisdiction under the Tucker Act.
Fisher,
The Court of Federal Claims lacks jurisdiction to entertain tort claims. The Tucker Act expressly provides that the “United States Court of Federal Claims shall have jurisdiction ... in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (emphasis added); see also Alves v. United States,
C. Motion to Dismiss—RCFC 12(b)(1)
The court’s “general power to adjudicate in specific areas of substantive law ... is properly raised by a [Rule] 12(b)(1) motion.” Palmer v. United States,
D. Motion to Dismiss—RCFC 12(b)(6)
The United States Supreme Court (“Supreme Court”) recently clarified the standard with respect to the degree of specificity with which a plaintiff must plead facts sufficient to survive a Rule 12(b)(6) motion. Bell Atl. Corp. v. Twombly, — U.S. —,
E. Judgment on the Administrative Record
Pursuant to RCFC 52.1, the Court of Federal Claims reviews an agency decision based on the administrative record. Bannum, Inc. v. United States,
F. Review of Correction Board Decisions
Where a plaintiff appeals to the Court of Federal Claims after having been denied relief by a Correction Board, the Court of Federal Claims “necessarily serves as a reviewing body to the [Correction Board] when it adjudicates plaintiffs complaint.” Longhofer v. United States,
III. DISCUSSION
A. Counts I, II, and III of Plaintiffs Amended Complaint
In Count I, entitled “Coerion [sic] Through Obstruction of Justice,” plaintiff alleges,
In Count III, entitled “Violation of Fifth Amendment-Due Process and Liberty Interest,” plaintiff alleges that his bar to reenlistment was improper, id. HH 75, 77, and constituted double jeopardy absent due process, id. H 85. Plaintiff claims that the Army engaged in illegal tortious conduct used to coerce plaintiff into accepting NJP. Id. HH81, 86. Additionally, plaintiff alleges that the Army’s issuance of illegal subpoenas injured plaintiffs reputation by causing plaintiff to suffer “stigma” beyond the military environment as well as other emotional harms, id. HH 87, 89-90, 93; violated plaintiffs liberty absent due process in violation of the Fifth Amendment, id. H 90; and violated its own regulations and practices, id. H 92.
1. Plaintiffs Tort Allegations
Plaintiff alleges that the Army engaged in specific criminal acts, including obstructing justice, id. HH 3-4, 7, 11-12, 14, 30, 39, 46-47, 50, 69 -70, 72, 81, 86, Wherefore H16; manufacturing, concealing, and tampering with evidence, id. HH6-7, 11-13, 16-17, 30-33, 37, 46-50, 53, 58, 67-71, 81, 86, 88, 90-92, Wherefore HH 2,16; coercing plaintiff into retirement, id. HH 3-5, 23, 25, 28, 31, 37, 39-40, 51-52, 62, 71, 81, 83, 86, 90; and subjecting plaintiff to double jeopardy absent due process, id. H85. Plaintiff also alleges that the Army discriminated against him on the basis of race. Id. HH 20-21, 51, 53. As a result of the Army’s alleged conduct, plaintiff claims that he suffered various forms of emotional distress. Id. HH 59,72, 89, 93.
Insofar as plaintiffs amended complaint includes tort allegations, it must be dismissed as to those allegations because they fall outside the scope of the court’s jurisdiction. The Court of Federal Claims “lacks jurisdiction over any and every kind of tort claim.” Cottrell v. United States,
Although plaintiff alleges racial discrimination, Am. Compl. HH 3, 51, he does not cite a particular statute or provision upon which these allegations are based. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2000), prohibits the government from engaging in discrimination, but it does not apply to military personnel. Gonzalez v. Dep’t of the Army,
Finally, plaintiffs allegations of emotional distress and anguish, which also sound in tort, fall outside the jurisdiction of the Court of Federal Claims. Bolduc v. United States, No. 06-5144,
2. Plaintiff’s Fourth Amendment and Fifth Amendment Due Process and Double Jeopardy Clause Allegations
The court cannot adjudicate plaintiffs allegations that his Fourth Amendment rights were violated by the Army’s alleged “concealing and omitting evidence from the military judge” in order to obtain a search warrant.
3. Plaintiffs Military Pay Allegations
Plaintiff argues that the Court of Federal Claims possesses jurisdiction over his military pay allegations because, “[a]s a former service member forced into involuntary retirement from the United States Army, plaintiff was entitled to his pay as ‘a member of a uniformed service on active duty' ” under the Military Pay Act, 37 U.S.C. § 204 (2000). Am. Compl. H10 (quoting 37 U.S.C. § 204(a)(1)); see also Pl.’s Mot. 38-39 (citing 37 U.S.C. § 204). Plaintiff claims that his discharge was unlawful because he was coerced into accepting NJP, which included “a fine of one half basic pay for two months, a letter of reprimand, and involuntary retirement,” as well as a bar to reenlistment. Am. Compl. til 31, 37. Plaintiff requests that the court “declare ... that he is granted military service of thirty years for retirement purposes, afforded and granted back pay, entitlement, and all benefits,” id. Wherefore H 4, and seeks “[p]ayment of monies that Plaintiff would have received from defendant had he not been involuntary [sic] retired from service with a 28 year active duty status from February 2000 through [the] present, reduced by the difference in retirement pay he actually received during that same period,” id. Wherefore 115.
Defendant argues that plaintiffs military pay allegations fall outside the scope of section 204 and therefore do not confer jurisdiction upon the court. Def.’s Mot. 6-8. Section 204 does not apply, defendant maintains, because plaintiff does not present a claim for presently due money damages. Id. at 8. Alternatively, defendant seeks judgment on the administrative record with regard to these allegations in the event that the court does possess jurisdiction. Id. at 8-9 (noting that, because defendant “is relying upon evidence outside the pleadings,” the court may not dismiss plaintiffs military pay claims pursuant to RCFC 12(b)(6)); Def.’s Reply 4.
It is “well established that claims for back pay stemming from allegedly unlawful separation from active duty in the armed services are within the jurisdiction of the Court of Federal Claims under 28 U.S.C. § 1491(a).” Spehr v. United States,
Some confusion developed in the case law with regard to whether the court’s jurisdiction over military pay claims is dependent upon the voluntary or involuntary discharge of a plaintiff from one of the armed services. See, e.g., Murphy v. United States,
In the en banc portion of Fisher, the Federal Circuit explained that whether the Court of Federal Claims possesses subject matter jurisdiction in a Tucker Act case constitutes a one-step inquiry:
When a complaint is filed alleging a Tucker Act claim based on a Constitutional provision, statute, or regulation, see 28 U.S.C. § 1491(a)(1), the trial court at the outset shall determine, either in response to a motion by the Government or sua sponte (the court is always responsible for its own jurisdiction), whether the Constitutional provision, statute, or regulation is one that is money-mandating.
If the court’s conclusion is that the Constitutional provision, statute, or regulation meets the money-mandating test, the court shall declare that it has jurisdiction over the cause, and shall the proceed with the ease in the normal course. For purposes of the case before the trial court, the determination that the source is money-mandating shall be determinative both as to the question of the court’s jurisdiction and thereafter as to the question of whether, on the merits, plaintiff has a money-mandating source on which to base his cause of action.
If the court’s conclusion is that the source as alleged and pleaded is not mon*216 ey-mandating, the court shall so declare, and shall dismiss the cause for lack of jurisdiction, a Rule 12(b)(1) dismissal—the absence of a money-mandating source being fatal to the court’s jurisdiction under the Tucker Act.
Fisher,
Based upon the foregoing discussion, the court possesses jurisdiction over those allegations contained in Counts I through III of plaintiffs amended complaint that are grounded in section 204 of the Military Pay Act. See Am. Compl. ¶¶ 52, 60-62, 75, 77; see also Holley,
b. Plaintiffs Allegations Fall Outside the Scope of Section 204 of the Military Pay Act
Section 204 “‘confers on an officer the right to the pay of the rank he was appointed to up until he is properly separated from the service.’ ” Holley,
Plaintiff is no longer on active duty and claims that his separation from the Army was involuntary. Pl.’s Mot. 37 (“Plaintiff ... was forcefully retired on February 1, 2000.”). Plaintiff alleges that his separation was involuntary because he “was barred from reenlistment, [was] issued Expiration of Term of Service (ETS) orders[,] and [was] ordered to leave the Army installation since [he was] no longer a servicemember.” Am. Compl. II5. Plaintiffs bar from reenlistment is a separate issue from his claims under section 204 and is addressed below. The court’s sole focus here is whether plaintiffs military pay claims fall within the scope of section 204.
Section 204 does not provide the appropriate mechanism for the relief plaintiff seeks. Jurisdiction in the Court of Federal Claims for back pay arises under section 204. How
Plaintiff, however, has neither a right to thirty years of active service nor a claim of entitlement for pay after January 31, 2000. A plaintiff “who seeks redress in the Court of Federal Claims must present a claim for ‘actual, presently due money damages from the United States.’ ” Terran v. Sec’y of HHS,
As recounted above, plaintiff reenlisted in the Army for a period of two years on May 14, 1999, AR 1148-53, and that period expired on May 13, 1999, id. at 332; see also Am. Compl. 118. Plaintiff was permitted to remain on active duty past May 13, 1999, only because the Army’s investigation of plaintiff remained pending. Am. Compl. 11113-5; AR 327-28. That authorization was revoked on June 28,1999, when the Army no longer possessed authority to retain plaintiff. AR 333, 469, 475. Plaintiff applied for and was granted voluntary retirement effective January 1, 2000, id. at 336-37, although that date was ultimately extended to January 31, 2000, id. at 538. Plaintiff was compensated up to and including his last day on active duty, which was January 31, 2000. AR Vol. IV at 28-29.
Section 204 does not confer upon plaintiff a right to receive pay for any period after January 31, 2000, because he was no longer serving in the Army after that date. See Thomas v. United States,
Plaintiff also fails to cite any regulative authority granting him a right to reenlist. To the extent that plaintiff relies upon Army Regulation 635-200 to argue that the Army extended his enlistment, Am. Compl. 11F, plaintiff would have only been entitled to military pay through January 31, 2000. “If [plaintiff] was wrongfully discharged before the end of his extended term of enlistment, his right to pay continued____” James,
Lastly, plaintiffs allegations that his retirement was involuntary are unsubstantiated. Although section 204 “requires that a plaintiffs separation be involuntary,” Metz,
As the administrative record makes clear, plaintiff, lacking any right to reenlist after the expiration of his term of enlistment, was afforded two options: he could either apply for voluntary retirement or accept discharge for expiration of term of service.
The court concludes that plaintiffs retirement was voluntary and that plaintiff has failed to rebut the presumption of voluntariness on account of duress or coercion. First, plaintiff knowingly and voluntarily entered into a plea bargain memorialized in the August 22 agreement, wherein he accepted NJP and agreed to apply for retirement in exchange for dismissal of all charges against him. Second, plaintiff had an opportunity to consult with counsel prior to entering into the August 22 agreement. Third, plaintiff was furnished at least one alternative to voluntary retirement with benefits: discharge for expiration of term of service. Both of these options were more favorable than facing trial by court-martial, and neither can be considered unpleasant under the circumstances. Fourth, plaintiff participated in setting the terms of his retirement when, on at least two occasions, he requested modification to the date upon which his retirement would become effective. Lastly, notwithstanding various allegations that his retirement was involuntary, Am. Compl. HIT 31, 37, 39, 51, 62, 72, 77, plaintiff simply does not prove that any separation, whether voluntary or involuntary, occurred prior to either the expiration of his term of service on May 13, 1999, or the Army’s revocation of its extension to plaintiffs expiration of his term of service on June 28,1999.
Because plaintiff does not allege that his service ended prior to either May 13,1999, or June 28, 1999, his claims are distinguishable from those cases in which an enlistee claimed an improper discharge prior to the end of the then-current enlistment period. E.g., McEniry,
4. Plaintiffs Ineffective Assistance of Counsel Allegations
Linked to plaintiffs military pay claims is plaintiffs allegation that his separation was involuntary because he received ineffective assistance of counsel. Am. Compl. 11113, 57-59, 81. Specifically, plaintiff claims that military counsel “failed to properly investigate the case,” id. H 57, allegedly “caused unknown persons to enter Plaintiffs automobile and remove a document from [his] files,” id. 1158, and that “due to inadequate and ineffective legal assistance ... Plaintiff was ... ultimately coerced retirement [sic],” id. 113. Plaintiff also maintains that his military counsel’s departure from his case in July 1998 “left plaintiff vulnerable to deception and more harassment.” Pl.’s Mot. 50. Additionally, plaintiff argues that new military counsel engaged in misrepresentations and “deceit.” Id. at 51. As discussed below, plaintiff fails to prove that he was furnished deficient counsel.
The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. In Strickland v. Washington,
*220 First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This required showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is rehable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.
This standard is “no different in military proceedings than in other federal courts____” Longval v. United States,
The court has previously considered whether, during court-martial proceedings, a serviceperson has received ineffective assistance of counsel in connection with military pay claims. See, e.g., Scarseth v. United States,
In this case, no court-martial proceeding occurred because plaintiff entered into an agreement, which was tantamount to a plea agreement, with the Army, thereby disposing of all charges against him. Plaintiff accepted NJP pursuant to Article 15, AR 830-32, but claims that NJP was imposed upon him as a result of his counsel’s “coercive actions that included threats, harassment, dispensing of insensitive remarks, and degradation,” PL’s Mot. 24. In Moody v. United States,
Imagine, for a moment, an individual facing serious charges that could result in his being imprisoned for a lengthy period— according to defendant, up to 46 years. Then, flash forward to that same person no longer facing charges, with an honorable discharge and ... severance benefits in hand____ Judging from results, then, there is no indication that ... the performance of plaintiff’s counsel here was remotely outside the range of professionally competent assistance, let alone prejudicial. Indeed, while courts have rejected the notion that lack of success is indicative of ineffective assistance, the reverse cannot be gainsaid-—a relatively successful result suggests reasonably competent representation.
The same may be said in this case. As the administrative record demonstrates, plaintiffs counsel presented to plaintiff the consequences of proceeding to trial by court-martial as well as the benefits of accepting NJP pursuant to Article 15. AR 709-10. According to his military counsel, plaintiff initially faced the prospect of “a dishonorable discharge, reduction to the lowest enlisted grade, confinement for up to 183 years, and a fine” if convicted. Id. But see PL’s Mot. 53 (arguing that, “the maximum punishment for a conviction of larceny of ‘[mjilitary property of a value of more than $100.00 is a [dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years’” (quoting Manual for Courts-Martial United
I can find no reason for you to demand trial by court-martial in this case. As your legal advisor, I genuinely believe that your decision to demand trial by court-martial in this case is irresponsible and totally unsound. It will assuredly spell disaster for you, your wife, and your children. You are risking so much of your family’s future, and you cannot hope to achieve a better result than your article 15 offer. I urge you to reconsider and accept the article 15 offered to you in this case.
AR 710 (emphasis added). Rather than face court-martial proceedings, plaintiff entered into the August 22 agreement, wherein he acknowledged consultation with military and civilian counsel before executing that agreement. Id. at 738. Under the terms of the August 22 agreement, plaintiff accepted NJP, was not tried by court-martial, received an admonishment as his “maximum penalty,” forfeited one-half of one month’s pay for two months, was honorably discharged, and retired “with the rank and privileges of a Sergeant-Major with 28 years of experience.” Id. at 709-10. Under these circumstances, it is apparent that plaintiff’s military counsel achieved a highly desirable result such that plaintiff could retire with benefits and would not have a federal conviction, see Strickland,
Additionally, with respect to plaintiffs allegations that his military counsel provided ineffective assistance “[pjrior to the Article 32 hearing,” Am. Compl. f 57, plaintiff similarly fails to prove that counsel’s performance was both deficient and prejudicial. Plaintiff alleges that his military counsel “failed to properly investigate” his case, id., and removed a document from his files, id. II58, but does not demonstrate that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed” under the Sixth Amendment and that those errors deprived him of a fair hearing during the Article 32 hearing, Strickland,
5. Plaintiffs Request for Correction of Military Records
Plaintiff requests that this court correct various portions of his military records. Am. Compl. Wherefore 113 (requesting that the “Article 15 be expunged and all references stricken from the record”); id. Wherefore H 6 (seeking deletion of “all references of derogatory information to include the reviewer’s non-concurrence dated September 16, 1998”); id. Wherefore U 8 (requesting “[e]xpurgation of all references to Plaintiff's] separation in lieu of court-martial from his records”); id. Wherefore 119 (seeking correction of the Army’s “annual congressional report (CY 2002) submitted to the U.S. Congress that incorrectly states that Plaintiff retired in lieu of court martial”); id. Wherefore 1116 (seeking declaration that the decision to deny plaintiffs request to correct his military records by the Corrections Board “was arbitrary, capricious, and unsupported by substantial evidence”). As stated above, judicial review of Correction Board decisions is limited, and a decision may only be set aside if it was arbitrary, capricious, contrary to law, or unsupported by substantial evidence. Wronke,
The Court of Federal Claims lacks the power to grant general equitable relief. Doe
[t]o provide an entire remedy and to complete the relief afforded by the judgment, the court may, as an incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records, and such orders may be issued to any appropriate official of the United States.
28 U.S.C. § 1491(a)(2). The court, therefore, may correct applicable records only “as an incident of and collateral to” a judgment against the United States for money damages. Id; see also James,
As the court determined above, plaintiff is entitled to no monetary judgment for military pay. He was not separated from the Army prior to the expiration of his term of service on May 13, 1999, and he was never denied compensation while on active duty. Plaintiff lacked authorization to reenlist after May 13, 1999, had no right to reenlist for another term in order to attain thirty years of active duty service, and is not entitled to any military pay following his retirement from the Army on January 31, 2000. Without an ability to award plaintiff money damages, the court is unable to “complete the relief afforded by the judgment” by correcting his military records because such equitable relief is not “an incident of and collateral to” a monetary award. 28 U.S.C. § 1491(a)(2).
Alternatively, assuming, arguendo, that the court had the ability to correct plaintiffs military records “as an incident of and collateral to” a judgment against defendant for money damages in this case, id., it would be unable to do so. In denying plaintiffs petition, the Correction Board reiterated that “there was no error or injustice in the imposition of the applicant’s NJP.” AR 7. Plaintiff, it concluded, “has not submitted any evidence which shows fraud, mistake of law, mathematical miscalculation, manifest error; nor did he submit any substantial relevant new evidence....” Id. at 6. Furthermore, the Correction Board determined that “[i]t must be presumed that a soldier of the applicant’s rank and years of service consciously, after consulting with legal counsel, made the decision to accept NJP and to submit his retirement instead of demanding trial by court-martial.” Id. at 7. To the extent that plaintiffs complaint in this court challenges the merits of the Army’s decisions, those decisions are “committed wholly to the discretion of the military [and] are not subject to judicial review____” Adkins,
6. Plaintiffs Bar to Reenlistment Allegations
The previously discussed decision in McEniry is, once again, instructive. With regard to a reenlistment claim, the court’s characterization of the complaint at issue in that case aptly describes plaintiffs complaint here: it “is essentially requesting the court to act affirmatively to order defendant to permit plaintiffs reenlistment.” McEniry, 7
A claim for reinstatement is a claim for equitable relief. James,
Assuming, arguendo, that plaintiff did assert a cognizable claim under section 204, the issue of plaintiffs bar to reenlistment is “entirely unrelated to [a] back pay issue.” Id. at 581. Thus, review of plaintiffs bar to reenlistment is wholly distinct from the question of whether plaintiff involuntarily retired from or was deprived pay during his enlistment period in the Army. See Voge v. United States,
7. Plaintiffs Fifth Amendment Liberty Interest Allegations
In Count III of plaintiffs amended complaint, entitled “Violation of Fifth Amendment-Due Process and Liberty Interest,” plaintiff may be asserting, in addition to Fifth Amendment due process allegations, see supra Part III.A.2, a claim that the Army violated his Fifth Amendment liberty interest in his employment. A liberty interest under the Due Process Clause “is implicated when the employer puts a person’s good name, reputation, honor, or integrity at stake.” Florentino v. United States,
Although “an enlisted member of the armed forces does not have a property interest in his employment because he may be discharged ‘as prescribed by the Secretary’ of his service,” Canonica,
In this case, plaintiff alleges that the Army “permanently stigmatized [his] reputation and imparted a ‘status change’ upon him,” Am. Compl. 1189, by, among other things, “compiling and disseminating inaccurate, derogatory information about [him] ...
Notwithstanding his allegations, plaintiff fails to demonstrate that the Army, “in the course of his discharge ... prepared a discharge form which was ... stigmatizing____” Lee,
Additionally, “due process rights are typically fulfilled by notice of the government act and an opportunity to respond before or after the act.” Canonica,
B. Count IV of Plaintiffs Amended Complaint
In Count IV of plaintiffs amended complaint, entitled “Violation of Fifth Amendment by the Army Seizure of United [States] Saving[s] Bonds,” plaintiff alleges that military personnel, “without Plaintiffs permission[,] removed and carried away Plaintiffs suitcasef, which] included personal clothing, a passport[,] and over $23,000 in U.S. Saving[s] Bonds” during a military flight departing from San Diego and arriving in South Carolina. Am. Compl. UH103-04; see also id. H107 (accusing Captain John Ohlweiler of “orchestrating] removal of the suitcase that included U.S. Savingfs] Bonds and personal items”); id. If 108 (“The Army’s illegal taking and depriving Plaintiff of ... U.S. Saving[s] Bonds violated Plaintiffs Fifth Amendment protection____”). Plaintiff seeks a declaration from the court (1) confirming that he is the lawful owner of the savings bonds, id. Wherefore 1111; (2) determining that the Army’s alleged seizure of the savings bonds “w[as] illegal and in violation of the Fifth Amendment,” id. Wherefore f 10; and (3) ordering the Secre
The court previously addressed plaintiffs savings bond allegations in the context of plaintiffs discovery motion and defendant’s motion for summary judgment on plaintiffs breach of contract allegations regarding the savings bonds contained in Count V of plaintiffs amended complaint. See Flowers,
It is well-settled that only the owner of the property on the date of a taking may bring a taking claim in this court. See, e.g., Cienega Gardens v. United States,
Additionally, the Tucker Act “does not create jurisdiction in the Court of Federal Claims for a party contesting the propriety of a taking.” Crocker v. United States,
C. Plaintiffs Request for Transfer Pursuant to 28 U.S.C. § 1631
Plaintiff requests that, “[i]f this Court should determine it lacks jurisdiction on any or part of the claims as an alternative, ... jurisdiction be transferred to the appropriate United States District Court pursuant to 28 U.S.C. § 1631.” PL’s Mot. 74. “When a court lacks jurisdiction, the ordinary course is ... to dismiss____” Phillips v. Seiter,
*226 Whenever a civil action is filed in a court as defined in section 610 of this title ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action ... could have been brought.15
28 U.S.C. § 1631 (footnote added). The court may transfer the case even in the absence of a request by one of the parties. Phillips,
Section 1631 “requires the transferor court to determine both that it lacks jurisdiction and that the transferee court possesses jurisdiction.” Fisherman’s Harvest, Inc. v. PBS & J,
Feres seems best explained by the ‘peculiar and special relationship of the solider to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits ... were allowed for negligent orders given or negligent acts committed in the course of military duty____’
Id. at 162,
The primary question is whether plaintiffs tort claims are transferable to another forum or are barred by the Feres doctrine because they “arise out of or ... [are] in the course of activity incident to [military] service.” Feres,
has become a talisman____ Courts have sought to determine whether an injury was incident to service by asking whether it occurred on a military facility, whether it arose out of military activities or at least military life, whether the alleged perpetrators were superiors or at least acting in*227 cooperation with the military, and—often stressed as particularly important—whether the injured party was himself in some fashion on military service at the time of the incident. No single element in the equation, the Supreme Court has said, is decisive.
Day v. Mass. Air Nat’l Guard,
Based upon the foregoing, the court concludes that plaintiffs claims fall within the parameters of the Feres doctrine’s bar to suit, and a transferee court would lack jurisdiction to entertain them. Therefore, the court is unable to grant plaintiffs transfer request.
Alternatively, even if a transferee court were to possess jurisdiction over these claims, the court denies plaintiffs request for transfer. The term “interests of justice” contained in section 1631 “is vague, [and] district courts have a good deal of discretion in deciding whether to transfer a ease.” Phillips,
IV. CONCLUSION
Because Counts I, II, and III contain interwoven and various tort, constitutional, and statutory military pay claims, the court must separately enumerate its disposition of these claims such that an appropriate judgment may be entered. For the reasons discussed above and with respect to Counts I, II, and III, plaintiffs cross-motion is DENIED and defendant’s motion is GRANTED. The Clerk of the Court is directed to dismiss Counts I, II, and III as follows:
1. Judgment on the administrative record pursuant to RCFC 52.1 with respect to all military pay claims (see supra Part III. A.3).
2. Dismissal for lack of jurisdiction, pursuant to RCFC 12(b)(1), of all claims:
a. sounding in tort (see supra Part III. A.1);
b. alleging Fourth Amendment and Fifth Amendment Due Process and Double Jeopardy Clause violations (see supra Part III.A.2); and
c. seeking removal of plaintiffs bar to reenlistment from the Army (see supra Part III.A.6).
3. Dismissal for failure to state a claim upon which relief can be granted, pursuant to RCFC 12(b)(6), of all claims:
a. alleging ineffective assistance of counsel (see supra Part III.A.4);
b. requesting correction of military records (see supra Part III.A.5); and
c. asserting a Fifth Amendment liberty interest (see supra Part III.A.7).
Additionally, plaintiffs cross-motion is DENIED and defendant’s motion is GRANTED with respect to Count IV. The Clerk of the Court is directed to dismiss Count IV for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1).
IT IS SO ORDERED.
Notes
. The facts are derived from the administrative record ("AR”), plaintiff's amended complaint ("Am.Compl.”), plaintiffs cross-motion, and defendant’s appendix (''Def.’s App.”).
. In his amended complaint, plaintiff states that “[b]etween June 26-29, 1998[,] Plaintiff informed ... [military defense counsel] of the desire to withdraw the document bearing his signature titled 'Memorandum of [A]lternate [Disposition.’ ” Am. Compl. 11 60; see also id. H 62 (indicating that plaintiff was not permitted to withdraw a document dated June 26, 1998). But see
. Although plaintiff's civilian counsel apparently withdrew his representation at the commencement of the Article 32 hearing, plaintiff was represented by military counsel. AR 815.
. The Army's withdrawal of the larceny and conspiracy charges against plaintiff and his wife had no effect upon plaintiff's NJP, which stemmed from the earlier charges filed solely against plaintiff. But see AR 803 (suggesting, in an electronic mail message from Lieutenant Colonel D. Head to Major Myron Reineke dated February 18, 1999, that the Article 15 punishment "has been technically withdrawn”).
. If plaintiff elected retirement, then he was required to retire "on or before 1 August 1999.” AR 333, 469. It is unclear whether plaintiff was required to set a retirement date on or before August 1, 1999, or to retire on or before that date. The administrative record contains conflicting statements. Plaintiff acknowledged, on or about June 28, 1999, that his “request for retirement must be for a date on or before 1 August 1999.” Id. at 471; see also Am. Compl. V 38 (stating that plaintiff was given notice to "put in for retirement with a retirement date effective August 1, 1999”). Nonetheless, according to a letter from the Staff Judge Advocates to plaintiff’s civilian counsel dated July 12, 1999, plaintiff "ha[d] until the end of today, July 12, 1999, not August I, 1999, to submit his request for voluntary retirement.” AR 474 (emphasis added). Regardless of this discrepancy, the August 1 date is later than both May 13, 1999, the date on which plaintiff's enlistment term expired, and June 28, 1999, the date on which the Army revoked its authorization to extend plaintiff's expiration of his term of service.
. Volume IV of the administrative record, which contains plaintiff's payroll statements, is paginated separately from plaintiff's personnel records contained in Volumes I through III of the administrative record.
. Plamtiff requested that the district court order the United States government to reissue the savings bonds in his name under the Little Tucker Act, 28 U.S.C. § 1346(a)(2)(2000). Def.'s App. 42-61. The Little Tucker Act provides:
The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of ... [ajny ... civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the*209 United States, or for liquidated or unliquidated damages in cases not sounding in tort....
28 U.S.C. § 1346(a)(2). The Court of Federal Claims possesses exclusive jurisdiction for claims exceeding $10,000, "unless Congress has withdrawn the Tucker Act grant of jurisdiction in the relevant statute.” E. Enters. v. Apfel,
. The court replaced RCFC 56.1 with RCFC 52.1. See RCFC 52.1, Rules Committee Note (June 20, 2006). At the time defendant filed its motion, the court had not ordered that this case would be governed by the new rules. Def.’s Mot. In. 1. In its Order dated September 5, 2006, the court applied the new rules to proceedings in this case. Therefore, defendant’s motion for judgment on the administrative record is governed by RCFC 52.1.
. In so holding, the Supreme Court determined that the "no set of facts” language set forth in Conley v. Gibson,
. The decision in Bannum was based upon RCFC 56. 1, which was abrogated and replaced by RCFC 52.1. See supra note 8. However, RCFC 52.1 was designed to incorporate the decision in Bannum. See RCFC 52.1, Rules Committee Note (June 20, 2006).
. In its reply brief, defendant asserts that plaintiff's cross-motion "for the first time raises a Fourth Amendment argument” and argues that the court should not consider this claim. Def.'s Reply 4 n. 6. Construing plaintiff's amended complaint liberally, McSheffrey v. United States,
. Discharge for expiration of term of service would constitute a discharge without retirement. AR 387. According to a letter from Lieutenant Colonel John L. Charvat, Jr. to plaintiff's civilian counsel dated July 19, 1999, a retired soldier receives a "substantial” benefits package, including retired pay, a survivor benefit plan, medical and dental care, and access to on-post services. Id. A retired soldier’s pay "is equivalent to a pension [and] continues for life.” Id.
. A bar to reenlistment "is not necessarily a mark of discredit or disgrace ... [and] the mere fact that he cannot reenlist is not a stigma." Keef,
. Plaintiff did not address the takings claim contained in Count IV of the amended complaint in his opposition to defendant’s motion to dismiss.
. Under 28 U.S.C. § 610 (2000), the term "courts” includes "the courts of appeals and district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, the District Court of the Virgin Islands, the United States Court of Federal Claims, and the Court of International Trade.”