OPINION AND ORDER
On January 25, 2011, Plaintiff Jeffery C. Miglionieo filed this suit following his retirement from the United States Marine Corps Reserves (“Reserves”) after he was found to have committed conduct “unbecoming of an officer and a gentleman” for submitting unauthorized temporary living allowance (“TLA”) requests. Plaintiff claimed and received per diem payments while residing on a boat owned by his corporation during his two-year period of temporary active duty. Defendant contends that Plaintiff is not entitled to $59,317.50 in living expenses because the Joint Federal Travel Regulations, which prohibit reimbursement for the cost of lodging with friends or relatives, do not permit Plaintiff to be reimbursed for rent he paid to a corporation owned by himself and his wife. Upon discovering these erroneous payments, the Government withdrew $8,295.30 that it had initially paid Plaintiff and issued a notice
Plaintiff also seeks equitable relief stemming from the Navy’s convening of a Board of Inquiry (“BOI”) to evaluate Plaintiffs continued retention in light of the alleged improper reimbursement claims for living on the boat. The BOI found that Plaintiff violated Article 133 of the Uniform Code of Military Justice (“U.C.M.J.”) and recommended that he be retired at his then current rank — a recommendation that the Secretary of the Navy accepted. Plaintiff then petitioned the Board for Correction of Naval Records (“BCNR”) to correct his personnel record, but the BCNR denied his request, finding no error in the BOI’s decision. Plaintiff contends that the BCNR’s decision is arbitrary and capricious and asks this Court for an order removing all references to the BOI and his retirement from his Official Military Personnel File, and reinstating him in the Marine Corps Reserves as of the date of his retirement.
Pursuant to Rule 52.1 of the Rules of the Court of Federal Claims (“RCFC”), the parties filed cross-motions for judgment on the administrative record. Plaintiff argues that the decisions of DOHA and BCNR were arbitrary and capricious. The Court cannot review Plaintiffs claims concerning the BCNR’s decision because they are nonjusticiable, but upholds DOHA’S decision, and grants Defendant’s motion for judgment on the administrative record. Further, because Plaintiff was not entitled to the reimbursements he received, Defendant’s counterclaim is granted.
Findings of Fact
Active Duty and Rental of Living Quarters
On May 30, 2006, Plaintiff, a lieutenant colonel in the Reserves, received an order to report to Miramar, California for 124 days of active duty-special work, beginning immediately and ending on September 30,2006. AR 354. The order authorized temporary quarters at $26 per day, or, if temporary quarters were unavailable, alternative housing at $127 per day for May 30-31 and $120 per day for June 1 through September 30. AR 355. When he reported to Miramar, Plaintiff could not obtain temporary quarters and began looking for off-base housing in the area. AR 16, 59.
Plaintiff is the registered agent and president of JKMIG, Inc., a California Subchapter S corporation formed in 2003.
Plaintiffs active duty service was subsequently extended by a series of orders, and he ultimately served on active duty until May 31, 2008. AR 34-41. He claims to have resided on the boat rented from JKMIG the entire time. AR 44. Plaintiff sought TLA reimbursements for the rent paid to his cor
On July 7, 2008, the Marine Corps Mobilization Command (“MOBCOM”) sent a memorandum to Plaintiff stating that an audit of his pay account indicated that he had received $51,022.20 in unauthorized TLA reimbursements. AR 375. The memorandum did not explain why the Marines determined that Lt. Col. Miglionico had been overpaid, but it requested repayment within 45 days of receipt. Id. The memorandum informed Lt. Col. Miglionico that he had the right to inspect government records related to the debt, review all decisions related to the debt, and seek a waiver or remission of the debt. Id. There is no evidence in the record that Plaintiff requested to review the decision or related records.
In October 2008, MOBCOM sent a letter to the Defense Finance and Accounting Service (“DFAS”), seeking a higher level opinion about Plaintiff’s receipt of TLA reimbursements when he “was renting a boat from his own business.” AR 83-84. On November 6, 2008, DFAS issued an opinion concurring with MOBCOM’s determination, finding that the transaction violated the Joint Federal Travel Regulations because it was not arm’s-length. AR 26-28. Chapter 4 of the Regulations provides: “[n]o cost for lodging is allowed if a member stays with friends/relatives ... even if payment of lodging is made to friend/relative.” U4129-E. DFAS reasoned:
[t]he member is correct that the corporation is a separate and distinct entity for tax purposes.... However, since the member is the president of the corporation, his wife is listed as the Secretary of the corporation, and there is no evidence that there are any other owners in the corporation, there is indication that the member is in fact renting the boat from himself and family members.
AR 27. DFAS’s opinion stated that if Lt. Col. Miglionico did not agree with the decision, he could file a rebuttal, which DFAS would forward to DOHA. Id. Plaintiff submitted a rebuttal in November 2008. AR 42-47.
Defense Office of Hearings and Appeals Proceedings
Plaintiff appealed DFAS’s decision to DOHA on November 26, 2008. AR 42-47. DOHA’S jurisdiction is derived from 31 U.S.C. § 3702(a)(1)(A) (2011), which states: “The Secretary of Defense shall settle claims involving uniformed service members’ pay, allowances, travel, transportation_” Department of Defense Directive 1340.20 vested the General Counsel of the Department of Defense with the authority to develop claim settlement and decision policies and directed heads of the Department of Defense components to establish procedures for processing claims. Department of Defense, Settling Personnel and General Claims and Processing Advance Decision Requests, Directive 1340.20 (2003).
Plaintiffs argument to DOHA focused on JKMIG and his belief that renting from a corporation was permissible. AR 42-47. He explained that he decided to rent the boat because rent was an allowable expense under the Joint Federal Travel Regulations, while only mortgage interest and property taxes were reimbursable for residing in purchased properties while on temporary duty. AR 43. Further, he reasoned that renting from JKMIG was permitted “because a service-member may have a familiar relationship with the renting entity ... provided the transaction in question was still conducted at arm’s-length.” AR 43-44. Plaintiff added that he never hid the fact that he was l’enting the boat from his S corporation, he did not receive a paycheck from JKMIG while living on the boat, and JKMIG paid taxes on the income received from leasing the boat. AR 44. Plaintiff also asserted that it was illegal for the Marines to withhold his pay without a court judgment because he had not admitted the debt and the Secretary of Defense did not submit a special order on the matter. AR 45.
On February 12, 2009, DOHA upheld DFAS’s determination, reiterating that Plaintiff was not entitled to TLA reimbursements. AR 16-22. DOHA explained that
You have emphasized that you rented the boat from JKMIG, Inc. But the record does not show that JKMIG has or has had any shareholders other than you and your wife. Your own memorandum of November 26, 2008, clearly shows that JKMIG purchased the boat for the specific purpose of providing you with quarters for your tour at MCAS Miramar, which establishes that JKMIG was acting as your agent. The record also does not show that JKMIG engages in, or has ever engaged in, the business of leasing either living quarters or water craft on a routine ba-sis_Finally, your memorandum of November 26, 2008, shows that you chose to rent the boat from JKMIG, rather than buy it outright, because rental reimbursement was more remunerative than purchases under [Joint Federal Travel Regulation],
AR 20.
In making its decision, DOHA cited DOHA Claims Case No. 04020603, February 18, 2004, a situation that presented facts similar to those in this case. AR 18, 22-25. In that matter, a member of the Air National Guard who lived in Vermont was directed to report for four months of temporary duty at a base in Arizona. AR 22. The service member signed a rental lease for a home in Tucson, Arizona. Id. However, similar to Lt. Col. Miglionieo’s arrangement, the service member and his wife jointly owned the house, and his wife signed the lease as the landlord. Id. When the lease was signed, a property management company was managing the property. Id. The service member submitted vouchers for reimbursement, which DFAS denied “on the grounds that he had essentially lodged in his own house.” AR 23. DOHA upheld DFAS’s determination, citing the Joint Federal Travel Regulations that prohibit reimbursement for lodging with a friend or relative and the Comptroller General’s interest in eliminating “potential abuses from occurring in connection with claims involving lodging with friends and relatives.” Id. In disallowing Lt. Col. Miglionico’s claim, DOHA cited its earlier decision for the premise that “a Government traveler cannot be reimbursed for quarters that were leased from the traveler and/or the traveler’s spouse.” AR 20. DOHA concluded that Plaintiff “rented the boat from [his] wife and [himself].” Id.
On February 25, 2009, Plaintiff requested reconsideration from DOHA, arguing that JKMIG satisfied the legal requirements to be treated as a separate entity, that JKMIG charged him for the expenses that it incurred in leasing the boat, that JKMIG had been in the real estate business for more than four years, and that he was in compliance with the Joint Federal Travel Regulations because rental from corporations was not excluded. AR 8-15. Lt. Col. Miglionico also provided copies of his monthly travel vouchers and JKMIG’s receipts. AR 8.
On March 30, 2009, DOHA issued a Claims Appeals Board Reconsideration decision and upheld DOHA’S initial determination that Lt. Col. Miglionico had been wrongfully reimbursed for unauthorized travel expenses. AR 3-7. Once again, DOHA rejected Lt. Col. Miglionico’s arguments that JKMIG was a distinct legal entity and that renting housing from it was within the parameters of the Joint Federal Travel Regulations. AR 5-6. DOHA’S opinion stated: “DFAS, the Marine Corps and our adjudicators did not find any distinction between the corporation (JKMIG) and the member and his wife.” AR 5. DOHA also noted that the lease allowed one additional adult and child, identified as Plaintiffs wife and child, to stay on the boat for “temporary use.”
The per diem allowance authorized by statute is for the purpose of reimbursing members for the more than normal expenses to which they are put in obtaining quarters and subsistence while in a transient status. In this ease, since the member was paying rent to a corporation owned by himself, there was no rental expense to reimburse .... The member has not provided information regarding business activities of the corporation other than the rental agreement leasing the yacht to himself. The existence of a corporation in which the member is the president does not satisfy the Comptroller General’s concern with the potential abuses that may occur in connection with claims involving lodging with friends or relatives. While the government reimburses costs of lodging which are incurred through a business relationship, we do not see this as such an arrangement.
AR 5-6 (citations omitted). DOHA concluded that Plaintiffs rental agreement with JKMIG was not an arm’s-length transaction. AR 6.
Board of Inquiry Proceedings
On May 29, 2008, just before Plaintiffs active duty was to end, Plaintiff received notice from the Marine Corps that he would be placed on legal hold pending a Naval Criminal Investigative Service inquiry into potential fraud against the government. AR 332. The investigation found that Lt. Col. Miglionico charged the government $115 per day for his temporary lodging on the boat when his actual expenses were approximately $20 per day. AR 286. Under the hold, Lt. Col. Miglionico’s orders were involuntarily extended until the investigation and any resulting criminal proceedings were complete. Id. The legal hold was terminated effective June 4, 2008, but Plaintiff was informed that he could still be subject to administrative action. AR 333.
On September 29, 2008, the Commander of the Marine Forces Reserves directed Lt. Col. Miglionico to show cause why he should be retained in the Reserves. AR 287. A BOI was convened and considered three charges against Plaintiff: (1) violation of Article 92, U.C.M.J. for failure to obey an order or regulation by “wrongfully claiming reimbursement for living on a boat that was purchased and owned by him and his wife,” (2) violation of Article 132, U.C.M.J., for fraud against the United States by preparing and submitting travel vouchers when he was not in fact paying rent, and (3) violation of A'ticle 133, U.C.M.J., for conduct unbecoming of an officer and a gentleman because he attempted to use a corporation to circumvent the Joint Federal Travel Regulations. AR 338.
The BOI found that Plaintiff committed misconduct with respect to the third charge when he circumvented the Joint Federal Trade Regulations by renting the boat from his closely held corporation.
The BOI recommended that Plaintiff be retired as a lieutenant colonel, which was his then current grade. AR 339. However, on June 22, 2009, the Commandant of the Ma
Board for Correction of Naval Records Proceedings
On December 17, 2009, Plaintiff petitioned the BCNR for correction of his record. AR 291-93. Specifically, Lt. Col. Miglionico requested: (1) elimination of all references to the BOI, (2) removal of all references to his retirement, (3) reinstatement to his prior position, and (4) elimination of his debt. AR 293. He argued that he should not have been found guilty of committing conduct unbecoming of an officer and a gentleman because he had not violated Article 92 or 132 of the U.C.M.J. AR 293.
On May 13, 2010, the BCNR issued an opinion denying Plaintiffs application for correction of his records. AR 278-79. The Board reviewed Plaintiffs application and attachments, his service record, applicable statutes and regulations, and two advisory opinions from Marine Corps Headquarters. Id. Both of the advisory opinions concluded that Plaintiff had been properly retired.
Discussion
Jurisdiction
The Tucker Act grants this Court jurisdiction to hear claims “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.” 28 U.S.C. § 1491(a)(1) (2011). The Tucker Act is only a jurisdictional statute. United States v. Testan,
In his amended complaint, Plaintiff invokes 37 U.S.C. § 204, the Military Pay Act, and 37 U.S.C. § 474,
Plaintiffs monetary claims are thus within this Court’s jurisdiction. Further, while the Court does not have general equity jurisdiction, it has the authority to grant the equitable relief that Plaintiff seeks pursuant to 28 U.S.C. § 1491(a)(2) (2011) because such relief is collateral to the action for monetary relief. See Roth v. United States,
The Court has jurisdiction over Defendant’s counterclaim under 28 U.S.C. §§ 1503 and 2508 (2011), which expressly give this Court jurisdiction to render judgment on any set-off or demand that the Government seeks from any plaintiff for actions in this Court. See Daff v. United States,
Because the Court has jurisdiction over Plaintiffs monetary claims for his temporary living allowances and Defendant’s counterclaim encompasses the same monies, the counterclaim is within the Court’s jurisdiction. Id.
Justiciability
When a court has jurisdiction to hear a claim, the court can still be prevented from adjudicating the claim if it concerns a nonjusticiable controversy. Justiciability depends on “whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.” Baker v. Carr,
Courts can review military decisions when the plaintiff argues that the military did not comply with a governing statute or regulation. See Roth,
In the ease at bar, Plaintiff challenges two distinct decisions of the Marine Corps. First, Plaintiff argues that DOHA was arbitrary and capricious in its interpretation and application of 37 U.S.C. § 474 and the Joint Federal Travel Regulations.
Plaintiff also challenges the BCNR’s decision to deny his application seeking correction of his records, elimination of the living-allowance related debt, and reinstatement to the Reserves. Plaintiff challenges the merits of the BCNR’s decision to maintain his debt, uphold the BOI’s findings, order mandatory retirement, and subsequently deny his request to reinstate him and correct his record. He seeks three forms of equitable relief: (1) reinstatement to the Marine Corps Reserve with credit for time served, (2) removal of any references to the BOI in his official military personnel file, and (3) removal of any reference to his retirement in his official military personnel file. For each form of relief sought, the Court must determine if the Court can identify the duty asserted, determine the breach, and grant appropriate relief. See Murphy,
First, Plaintiff faces a barrier in his request for reinstatement. While a court can review a challenge regarding whether the military followed a particular procedure, “[t]he merits of a service secretary’s decision regarding military affairs are unquestionably beyond the competence of the judiciary to review.” Adkins,
Second, Plaintiffs request to remove references to the BOI from his personnel file is nonjustieiable. Judges do not run the military. Orloff v. Willoughby,
Lastly, Plaintiff asks this Court to order the Marine Corps to remove all references to his retirement from his personnel file. Like his request to remove the BOI from his personnel file, this request is non-justiciable. See Voge,
Plaintiff further argues that his three claims for relief related to the BCNR are justiciable under a but-for causation theory. PL’s Supplemental Br. 10-12 (Feb. 17, 2012). Plaintiff argues:
The MOBCOM overstepped its bounds when it decided to retract Miglionico’s allowance. Subsequently, the DOHA and BOI overstepped their bounds in affirming the MOBCOM’s retraction of allowance by determining that Miglionico had not done arm’s-length business and was guilty of conduct unbecoming of an officer. Later, the BCNR decided that Miglionico’s convictions and records were true to the records. All of these decisions arose from a primary decision to take money that was rightfully Miglionico’s. Subsequent agency decisions inevitably became an abuse of discretion, arbitrary, and capricious because they were founded on a violation of law.
Id. at 11. Plaintiff cites Adkins,
Standard for Review of DOHA Decision
Under RCFC 52.1, the parties are limited to the administrative record, and the Court makes findings of fact from the record as if it were conducting a trial on a paper record. See Bannum, Inc. v. United States,
As Plaintiff argues, the Court reviews DOHA’S decision under the arbitrary and capricious standard. See Bevevino v. United States,
DOHA’S Decision Was Not Arbitrary, Capricious, or an Abuse of Discretion
Plaintiff argues that DOHA’S interpretation of the Joint Federal Travel Regulation was arbitrary and capricious, an abuse of discretion, and unsupported by substantial evidence. Plaintiff also alleges that DOHA erroneously used an arm’s-length analysis when it denied his request for TLA payments.
In 1996, the Department of Defense delegated the authority to settle service members’ claims concerning pay, allowances, travel, transportation, and other financial benefits to DOHA
In this case, DOHA found that Lt. Col. Miglionico violated Joint Federal Travel Regulation U4129-E, which provides: “[n]o cost for lodging is allowed if a member stays with
Plaintiff also argues that DOHA erred in applying the arm’s-length transaction standard to his rental agreement. However, nothing in the Joint Federal Travel Regulations bars DOHA from using this standard, and DOHA’S use of the arm’s-length analysis was a reasonable way to apply the Regulations. Other agencies have imposed the same standard in reviewing similar claims. The Comptroller General of the United States imposed the arm’s-length requirement when a Department of Education employee sought reimbursement under a regulation that allowed reimbursement on an actual expense basis for a private apartment instead of a hotel. Matter of Andres Tobar, B-209109,
Defendant’s Counterclaim
In its counterclaim, Defendant seeks $51,022.20, representing reimbursements Plaintiff received for travel and lodging from August 4, 2006, through June 6, 2008. Answer ¶¶ 30-36. Defendant asserts that Plaintiff was not entitled to receive the reimbursements under the Joint Federal Travel Regulations.
Defendant has the burden of proof on its counterclaim. Alli v. United States,
Conclusion
Defendant’s motion for judgment on the Administrative Record is GRANTED, and Plaintiffs motion is DENIED, consistent with the following rulings. Plaintiffs claim for repayment of $8.295.30 is DENIED, and Defendant’s counterclaim for $51,022.20 is GRANTED. The Court declines to exercise jurisdiction over Plaintiffs nonjustieiable claims concerning the BCNR’s actions, and said claims are DISMISSED. As a i’esult, Plaintiffs claims for (1) removal of all references to the BOI in his official record; (2) removal of all references to Plaintiffs retire
The Clerk of Court is directed to enter judgment against Plaintiff in the amount of $51, 022.20, representing Defendant’s counterclaim.
. On June 22, 2011, Plaintiff filed an amended complaint, adding the prayer for $8,295.30. Plaintiff’s original complaint sought only equitable relief.
. The findings are derived from the Administrative Record and the appendices to the parties’ motion papers.
.The original corporate entity was named Diet Delicious, Inc., and was in the diet and health food business. AR 9. In 2005, the corporation changed its business purpose to property rental and was renamed JKMIG, Inc. AR 5.
. The lease allowed Plaintiff to have his wife (the landlord) and child as temporary guests. AR 85.
. A closely held corporation is defined'as "[a] corporation whose stock is not freely traded and is held by only a few shareholders (often within the same family).” Black’s Law Dictionary (9th ed. 2009). As discussed above, Plaintiff is the president of JKMIG, his wife is the secretary, and there is no evidence that it has any other officers or shareholders.
. The time-in-grade waiver allowed Plaintiff to retire as a lieutenant colonel despite the fact that he held the rank for less than three years. 10 U.S.C. § 1370(2)(A) (2011) provides: "In order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years."
. The opinion dated February 25, 2010, stated that the BOI could have found that Plaintiff committed any of the three charges. AR 295. It characterized the reliance on Article 133 as “misplaced.” Id. It also declined to review Plaintiff’s claim for reimbursement because DOHA had already done so. Id. The second opinion, dated March 10, 2010, found no legal or procedural error in Plaintiff’s separation from the Marine Corps. AR 296.
. 37 U.S.C. § 404 was renumbered as 37 U.S.C. § 474 in December 2011. Pub.L. 112-81, Div. A, Title VI, § 631(d)(2), (e)(1), Dec. 31, 2011, 125 Stat. 1460, 1461. The complaint and the parties' papers referred to the statute as § 404, but this opinion uses the current numbering.
. Defendant admits that 37 U.S.C. §§ 204 and 474 are money-mandating. Def.'s Supplemental Br. 3-4.
. The Joint Federal Travel Regulations are issued under Title 37 of the United States Code, Department of Defense Directives 1315.07 and 5154.29, and Department of Defense Instructions 1315.18 and 1327.06.
. Defendant does not dispute that Plaintiff’s monetary claims are justiciable. Def.'s Supplemental Br. 7-9.
. The Office of Personnel Management was given the authority to settle claims involving Federal civilian employees’ compensation and leave under the same statute (31 U.S.C. § 3702 (2011)) that gave the Department of Defense similar authority over service members’ claims.
. In 1995, Congress transferred the authority to settle financial management claims from the Comptroller General to the Director of the Office of Management and Budget ("OMB”). Pub.L. 104-53, § 211, 109 Stat. 514, 535 (1999). OMB then transferred the authority to resolve service members’ claims to the Department of Defense. 61 Fed.Reg. 50285-01 (Sept. 25, 1996).