OPINION AND ORDER
The plaintiff, William P. Greene, filed this action, pro se, against the United States regarding his involuntary separation from the United States Army Reserve. This case has been transferred to this Court from the United States District Court for the District of Connecticut. The United States has moved to dismiss Mr. Greene’s Complaint pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”) for failure to state a claim upon which relief may be granted or, in the alternative, for judgment on the administrative record pursuant to RCFC 56.1.
I. BACKGROUND
Mister Greene, a former officer in the United States Army Reserve, was involuntarily separated for substandard performance of duty and given an honorable discharge on September 24, 1996. Compl. U 39. Mister Greene initially enlisted in the Army Reserve on September 22, 1981. Admin. R. 30. He was appointed a Reserve Commissioned Officer of the Army in the rank of Second Lieutenant on February 25, 1988. Admin. R. 62-63. At Mr. Greene’s request he was voluntarily assigned to “C” Company, 3d Battalion, 18th Infantry, located in Lawrence, Massachusetts, on May 26, 1992. Compl. H 4. In the 18th Infantry Mr. Greene served as a rifle platoon leader, responsible for the health, welfare, and training of the soldiers in his platoon. When Mr. Greene transferred into the 18th Infantry he lived in Willington, Connecticut, approximately 115 miles from where the unit trained in Law
After his relocation to Cheshire, Mr. Greene attended all required active duty training with “C” Company for the months of March through June 1993. Admin. R. 186. On April 4,1993, Mr. Greene received orders to attend Annual Training with his unit from July 24, 1993 to August 6, 1993. Admin. R. 299. During the unit’s May and June drills, Mr. Greene made a verbal request to Capt. Michael Schwed, his commanding officer, that he be transferred to a unit closer to his residence in Cheshire. Compl. If 6. Captain Schwed denied Mr. Greene’s request for a transfer, informing Mr. Greene that he would not entertain transfer requests until after Annual Training. Compl. 116. Mister Greene called Capt. Schwed on July 24, 1993, to tell him that he intended to interview with a new unit on July 25, 1993. Compl. 117. Mister Greene further informed Capt. Schwed that by not granting his transfer request, he violated Army Regulation 135-9 para. 5-5, which, according to Mr. Greene, made any orders given to him by Capt. Schwed unlawful. Compl. 117. Accordingly, on July 24, 1993, Mr. Greene failed to report for Annual Training without obtaining proper leave. Admin. R. 195.
As a result of Mr. Greene’s failure to report to Annual Training, Capt. Schwed placed an administrative “flag” on Mr. Greene’s records so that he was unable to obtain favorable actions such as awards or promotions. Admin. R. 300. Moreover, Captain Schwed, on October 14, 1993, requested that Mr. Greene be involuntarily separated from the Army Reserve. Compl. If 8; Admin. R. 107. On June 7, 1995, Mr. Greene appeared before an Administrative Separation Board, represented by counsel, to adjudicate Capt. Schwed’s request that Mr. Greene be separated involuntarily from the Army Reserve. Compl. 1132. Following the Board’s adjudication, it recommended the involuntary separation of Mr. Greene. Admin. R. 170. The Board reconvened on October 24, 1995, to clarify its findings and recommend the type of discharge Mr. Greene was to receive. Admin. R. 162-63. The Board found that Mr. Greene: 1) “failed to take the necessary steps to ensure he wore proper rank”; 2) exercised poor judgment by failing to execute a planned training directive during a field training exercise; 3) “failed to assert leadership in his platoon by disregarding the commander’s policy and intent [that he] remain alert and awake until all soldiers and equipment were accounted for after a field training exercise”; 4) “failed to follow instructions and was negligent in his failure to secure” equipment; 5) received a written reprimand on August 26, 1993, for “wrongful failure to report to active duty”; 6) received a “Relief for Cause” Officer Evaluation Report for the period May to August 1993 relieving him from his position due to substandard performance; and 7) gave testimony explaining his pay and promotion problems that was “not credible.” Admin. R. 165. The Board determined that Mr. Greene should be honorably discharged. Id. The Army Reserve Command approved the Board’s recommendation and, effective September 24, 1996, Mr. Greene was honorably discharged. Compl. If 39.
On June 20, 1996, Mr. Greene filed a complaint in the United States District Court for the District of Connecticut. Compl. If 37. The district court dismissed the complaint for failure to exhaust administrative remedies, because Mr. Greene had not filed an application for correction of military record with the Army Board for Correction of Military Records (“ABCMR”). Compl. If 40. Therefore, on March 31, 1997, Mr. Greene filed an application for correction of his military record, DD Form 149, with the ABCMR. Admin. R. 305. In section nine of DD Form 149, which asks the applicant to state why he believes his record to be in error, Mr. Greene referred the ABCMR to an attached affidavit and 1996 district court complaint. Admin. R. 305. Mister Greene’s explanation as to why his record should be corrected centered around the Annual Training he was scheduled to attend from July 24, 1993, to August 6, 1993, and his inability to
The ABCMR issued its decision and Memorandum of Consideration of Mr. Greene’s claims on November 24, 1998. Admin. R. 297-304. In summarizing Mr. Greene’s requests, the ABCMR stated that “[i]n effect, [Mr. Greene seeks] reinstatement in the Reserve, promotion to captain effective 23 February 1995 and all back pays and allowances due him as a result thereof.” Admin. R. 298. The ABCMR concluded that Mr. Greene “failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.” Admin. R. 303. In support of its conclusion, the ABCMR found, inter alia, that: 1) Mr. Greene’s “administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors”; 2) his assertions regarding commuting distance “do not demonstrate an injustice”; 3) there is no evidence that he ever “formally requested reassignment to another [unit] because of his commuting distance”; 4) he “was not excused from annual training and was therefore AWOL”; 5) he did not “show to the satisfaction of the Board ... that the record is in error or unjust”; and 6) “there is no basis for granting [Mr. Greene’s] request.” Admin. R. 303.
As a result of the ABCMR’s decision Mr. Greene again filed a complaint in the district court. The district court dismissed Mr. Greene’s complaint for lack of subject matter jurisdiction as the court found that it was “highly likely” that the relief Mr. Greene sought translated into monetary damages in excess of $10,000, which under the Tucker Act must be brought in our Court. Greene v. United States Army Reserve,
The Government has moved, under RCFC 12(b)(6), to dismiss Mr. Greene’s Complaint for failure to state a claim upon which relief may be granted. The Government argues that the claims are non-justiciable because
II. DISCUSSION
Although this Court accords a pro se plaintiff leniency in presenting his case, Mr. Greene’s pro se status does not immunize him from the requirement that he plead facts upon which a valid claim can rest. Paalan v. United States,
A. This Court’s Jurisdiction
In order for this Court to have jurisdiction over a claim for money damages (other than pursuant to a contract) under the Tucker Act, 28 U.S.C. § 1491, a plaintiff must base its claim on a money-mandating statute; that is, one that creates a “substantive right enforceable against the United States for money damages.” United States v. Testan,
One of Mr. Greene’s claims is clearly beyond the jurisdiction of this Court — his request for punitive damages in the amount of ten million dollars. It is well-established that this Court lacks authority to grant punitive damages. See, e.g., Garner v. United States,
B. Motion to Dismiss for Failure to State a Claim
Even though this Court has jurisdiction over Mr. Greene’s case, Mr. Greene must, nonetheless, state a claim upon which relief may be granted. RCFC 12(b)(6). When the Court considers a motion to dismiss for failure to state a claim “the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes,
Mister Greene has asserted three back pay claims. The first is for back pay for service he performed between February 24, 1991, and October 19, 1995, for which he was paid as a Second Lieutenant rather than at the higher pay grade of a First Lieutenant. Admin. R.
As this Court’s and the Federal Circuit’s precedents acknowledge, “[t]he military pay statutes [and] the military’s administration of those statutes, ... recognize that there are two basic categories of pay entitlements for military service.” Palmer,
The second basic category of pay entitlement covers those members of the armed forces who do not serve on full-time active duty status. These members of the armed forces, generally members of the Reserve or the National Guard, are only “entitled to compensation for ... each regular period of instruction, or period of appropriate duty, at which the member is engaged in for at least two hours.” 37 U.S.C. 206(a) (2000). The only exception to this rule is for service members who were scheduled to perform duty but were unable to because of a physical disability resulting from an injury, illness, or disease that was incurred or aggravated in the line of duty. See 37 U.S.C. 206(a)(3); Dehne,
As a consequence of the different pay entitlements created by section 204(a) and section 206(a), members of the armed forces serving in a non-active duty capacity are unable to state a back pay claim against the United States, under the Tucker Act, for unattended drills or unperformed training duty. Palmer,
1. Back pay for duty performed as a First Lieutenant
Mister Greene’s first back pay claim is for the difference in pay between the lower pay grade of Second Lieutenant and the higher pay grade of First Lieutenant for duty performed between February 24, 1991, the effective date of his promotion, and October 19, 1995, the date he was given the retroactive promotion. Admin. R.
2. Back pay for drills performed from July 1991, to January 1992
The second back pay claim of Mr. Greene is for money he asserts the Army collected from him erroneously for failure to attend drills from July 1991, to January 1992. Admin. R.
3. Back pay claim for constructive service and ancillary relief
Although Mr. Greene’s first and second back pay claims survive the Government’s Motion to Dismiss for Failure to State a Claim, his third back pay claim, which is in essence for constructive service from September 24, 1996, to the present, does not survive. As Mr. Greene did not perform any duties for which he was not compensated from the date that he was honorably discharged, September 24, 1996, to the present, he cannot state a claim under 37 U.S.C. § 206(a) for which relief may be granted. The Government’s motion to dismiss as to Mr. Greene’s claim for constructive service is, therefore, GRANTED.
Furthermore, as Mr. Green fails to state a claim for back pay for constructive service from September 24, 1996, to the present, his claims for relief that are an incident of and collateral to this back pay claim must also be dismissed. Palmer,
Moreover, even if this Court were to rule that Mr. Greene’s claims were incident of and collateral to any money damages that
Consequently, Mr. Greene’s equitable claims are “like thousands of other routine personnel decisions which are variously held nonjusticiable or beyond the competence or the jurisdiction of the courts to wrestle with.” Voge v. United States,
C. Motion for Judgment on the Administrative Record
Court review of military benefits decisions involving Correction Boards typically are based on an administrative record consisting of the documents and evidence that were before the Correction Board, any transcripts of proceedings, and the documents memorializing the board’s determinations. See Bishop v. United States,
A motion under RCFC 56.1 for judgment upon the administrative record differs from a motion for summary judgment under RCFC 56, as the existence of genuine issues of material fact does not preclude judgment under the former. Compare RCFC 56.1(a) (incorporating only the standards of RCFC 56(a)-(b)) with RCFC 56(c) (containing the disputed facts standard). A motion for judgment on the administrative record examines whether the administrative body, given all the disputed and undisputed facts appearing in the record, abused its discretion. See Gulf Group Inc. v. United States,
In this case, therefore, the Government, in moving for judgment on the administrative record, must show that the decision of the ABCMR — with regard to Mr. Greene’s claims that are within this court’s jurisdiction and survive the Government’s Motion to Dismiss — was not arbitrary, capricious, unsupported by substantial evidence, or contrary to law or regulation. See, e.g., Wronke v. Marsh,
1. Back pay attendant to promotion to First Lieutenant
The ABCMR’s decision makes no reference to Mr. Greene’s claim that he was never compensated as a First Lieutenant for service he performed between February 24, 1991, and October 19, 1995, when he was retroactively promoted. In a 1996 complaint before the U.S. District Court for the District of Connecticut, No. 96-1129, which was incorporated by reference in his application for correction before the ABCMR, Mr. Greene asserted, inter alia, that the Army Reserve resolved his promotion issue but did not give him the back pay attendant to that promotion. Admin. R.
Because the decision of the ABCMR provides no explanation as to why Mr. Greene’s claim was denied, or even any indication that it was considered,
2. Pay the USAR collected
As with Mr. Greene’s claim for back pay attendant to his retroactive promotion to First Lieutenant, the ABCMR’s decision makes no reference to Mr. Greene’s claim that the Army Reserve erroneously collected money from him for duty he actually performed. Admin. R. 296-304. Again, the ABCMR either denied Mr. Greene’s claim sub silentio or never addressed it. Mr. Greene asserts that the “USAR collected money for drills performed from July 1991 to January 1992 due to fraudulent dates placed on a transfer document. The USAR failed to pay the drills after submission of corrected documents verifying the drill performance.” Admin. R.
Because the ABCMR does not discuss Mr. Greene’s claim for this money collected from him and there is little documentation related to the claim in the Administrative Record, the Court cannot, at this time, determine whether the ABCMR abused its discretion in denying Mr. Greene’s claim. The Government’s motion for judgment upon the administrative record as to this claim is, therefore, DENIED. The Court will discuss further proceedings on this matter in a status conference with Mr. Greene and counsel for the Government.
3. Student Loan Repayment
Finally, in Mr. Greene’s 1996 district court complaint, which as noted above was incorporated by reference in his application to the ABCMR, Mr. Greene claimed that the Army Reserve failed to “fulfill its obligation to repay my student loans in accordance with my initial enlistment contract,” presumably under the Student Loan Repayment Program (“SLRP”) or its equivalent. Admin. R.
The Administrative Record, however, contains little evidence bearing on Mr. Greene’s
Given the fact that Mr. Greene was aware that he could submit evidence to both the ABCMR and this Court,
III. CONCLUSION
For the foregoing reasons, the Government’s Motion to Dismiss for Failure to State a Claim is GRANTED-IN-PART and DENIED-IN-PART. All back pay related claims in Mr. Greene’s Complaint, except as to back pay attendant to Mr. Greene’s retroactive promotion to the rank of First Lieutenant and for drills performed between July 1991 and January 1992, are hereby dismissed for failure to state a claim upon which relief may be granted. Mister Greene’s claim for punitive damages is DISMISSED sua sponte for want of subject matter jurisdiction. The Government’s Motion for Judgment on the Administrative Record with regard to Mr. Greene’s claim for student loan repayment is GRANTED; and with regard to his claims for back pay attendant to his retroactive promotion to the rank of First Lieutenant, and for back pay for drills performed between July 1991 and January 1992, is DENIED.
IT IS SO ORDERED.
Notes
. For purposes of the Government's motion to dismiss, the Court takes as true the allegations in the complaint. See Scheuer v. Rhodes,
. The Addendum to the Administrative Record contains Mr. Greene’s 1996 complaint that he filed in the U.S. District Court for the District of Connecticut and the exhibits he attached in support of his complaint. The Addendum was added to the Administrative Record by motion of the Government on November 9, 2004.
. Our Court’s convention of restricting review to the administrative record seems to conflict with the express holding of the Federal Circuit that plaintiffs challenging Correction Board determinations are "entitled” to supplement this record with additional evidence. See Heisig v. United States,
. The only reference to Mr. Greene’s promotion in ABCMR’s decision is in the "Evidence of Record” section, which notes that on August 16, 1995 the flag on Mr. Greene's record was removed per the USARC Inspector General and that Mr. Greene was informed on October 19, 1995 that he had been promoted to the rank of First Lieutenant. Admin. R. 302.
. The Government's motion to dismiss does not address this Court's jurisdiction over Mr. Greene's student loan repayment claim.
. The Administrative Record clearly demonstrates that Mr. Greene was retroactively promoted to the rank of First Lieutenant and, therefore, is entitled to back pay. Additionally, the record clearly demonstrates that money was collected from Mr. Greene. Conversely, the record provides little evidence with regard to student loan repayment.
. The Army corrections board regulations direct that a record may only be corrected if "sufficient evidence exists on the record” to demonstrate an "error or injustice." 32 C.F.R. § 581.3(b)(4)(ii). Further, the regulations state that "[t]he ABCMR will decide cases on the evidence of record. It is not an investigative body." Id. at § 581.3(c)(2)(iii). Thus, to the extent that the Administrative Record does not contain sufficient evidence to demonstrate an error or injustice, Mr. Greene had the burden of submitting relevant evidence to the ABCMR to support his claim for student loan repayment.
. Mr. Greene attached numerous exhibits to both his application for correction of military record and to his complaint in this Court.