Freeman v. United States

WILLIAM P. FREEMAN, Plaintiff, v. UNITED STATES, Defendant.

No. 10-270C

United States Claims Court.

Filed: April 21, 2011

Claims by federally recognized National Guard officer for back pay, aviation career

incentive pay, and correction of military records; request for voluntary dismissal;

RCFC 41(a)(2); subject matter jurisdiction; statute of limitations; tolling under the

Servicemembers Civil Relief Act; 50 U.S.C. app. § 526; failure to state a claim

Dale F. Saran, West Greenwich, Rhode Island, for plaintiff.

Michael P. Goodman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him on the briefs were Tony West, Assistant Attorney General, Civil Division, and Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel was Captain John G. Doyle, Department of the Army, U.S. Army Litigation Division, Arlington, VA.

OPINION AND ORDER

LETTOW, Judge.

In this military pay case, plaintiff, Major William Freeman, seeks review of decisions by the National Guard Bureau and the Army Board for Correction of Military Records upholding the termination of his aviation service and entitlement to aviation career incentive pay. Major Freeman also requests that this court order that his military records be amended to reflect promotion to Major earlier than the date on which he received federal recognition of that promotion, and progressive promotions to Lieutenant Colonel and Colonel, along with back pay attendant to those promotions. Alternatively, Major Freeman requests back pay for his promotion to Major from his date of rank. The government has filed a motion to dismiss for lack of subject matter jurisdiction, for failure to state a claim, and for judgment upon the administrative record. In response to the government's motion, Major Freeman has altered his posture in this case significantly and now requests that the court allow him to voluntarily withdraw his complaint, or, alternatively, that the court transfer his case to the United States District Court for the District of Columbia.

FACTS¹

A. The National Guard and the Active Guard Reserve

National Guard officers such as Major Freeman have a dual state and federal status. See Def.'s Mot. to Dismiss ("Def.'s Mot.") Ex. C (Commissioned Officers: Federal Recognition and Related Personnel Actions, National Guard Regulation 600-100 ("NGR 600-100") ¶¶2-1, 2-2 (Apr. 15, 1994)). The regulations of the National Guard explain the relationship between a member's state and federal status:

The appointment of officers in the [Army National Guard] is a function of the State concerned, as distinguished from the Federal recognition of such appointment. Upon appointment in the [Army National Guard] of a State and subscribing to an oath of office, an individual has a State status under which to function. Such individuals acquire a Federal status when they are federally recognized and appointed as a Reserve of the Army.

Id. ¶ 2-2(a). "Officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the Army National Guard of the United States (ARNGUS)...." Id. ¶ 2-1. A member of a state's National Guard serves in his state status, while possessing inactive federal status, until he is called to federal duty, at which time he is relieved of his state status for the period of federal service. See Bowen v. United States, 49 Fed. Cl. 673, 674, 676 (2001), aff'd, 292 F.3d 1383 (Fed. Cir. 2002) (explaining the duality of the National Guard system).

The Active Guard Reserve ("AGR") consists of

Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) personnel serving on active duty (AD) and Army National Guard of the United States (ARNGUS) personnel serving on full time National Guard [duty] (FTNGD). These personnel are on FTNGD or AD (other than for training or AD in the Active Army) for 180 days or more for the purpose of organizing, administering, recruiting, instructing, or training the Reserve components and are paid from National Guard personnel, Army, or Reserve personnel appropriations.

Def.'s Mot. Ex. B. (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers, Army Regulation 135-155 ("Army Reg. 135-155") at 92 (July 13, 2004)). Thus, the AGR includes a member of the ARNGUS serving on full-timeNational Guard duty in state status, and it also includes the same member when he or she is called to active duty in his or her federal status.

B. Major Freeman's Service and Promotions

William Freeman is a Major in the AGR component of the Georgia Army National Guard. Compl. ¶ 1. As such, he is also a Major in the Reserve with appointment to the Army National Guard of the United States. See id. After beginning service as an enlisted man in September 1984, Major Freeman was commissioned in the Georgia National Guard effective June 13, 1986 as a second lieutenant concurrently with receipt of his commission as an officer in the Reserve. Id. ¶¶ 1, 7; AR-297 (Orders 123-4, State of GA, Dep't of Defense, Military Div., Office of the Adjutant General (June 25, 1986)).² Major Freeman was promoted to Captain effective October 20, 1994, Compl. ¶ 1, and in December of 1998, he became a member of an AGR unit. Id.

On April 5, 2001, a reserve-component selection board selected Major Freeman for promotion to Major. See AR-236 (Mem. re: "Eligibility for Promotion as Reserve Commissioned Officer Not on Active Duty," Dep't of the Army (July 26, 2001)). The selection memorandum stated that the promotion would be effective upon one of the following dates: May 25, 2000 (the date Major Freeman was eligible for promotion), the date federal recognition was extended in the higher grade of Major, or the date following the date federal recognition was terminated in his current Reserve grade. Id. On November 29, 2001, pursuant to 10 U.S.C. § 14311(e), Major Freeman's promotion was delayed due to his status as an AGR officer. AR-233 ("Notification of Involuntary Delay," Dep't of the Army, Georgia Army National Guard (Nov. 29, 2001)); AR-232 ("AGR Delay Approval on CPT William P. Freeman," Dep't of the Army, Georgia Army National Guard (Feb. 6, 2002)).

Effective February 15, 2005, Major Freeman was ordered to active duty as a member of the Reserve in support of Operation Iraqi Freedom. AR-194 (Orders 039-386, State of GA, Dep't of Defense, Military Div., Office of the Adjutant General (Feb. 8, 2005)). Consequently, effective February 14, 2005, Major Freeman was relieved from his AGR status with the Georgia National Guard. AR-188 (Orders 081-006, State of GA, Dep't of Defense, Military Div., Office of the Adjutant General (Mar. 22, 2005)). Major Freeman remained on active duty until he returned to AGR status on May 16, 2006. AR-173 (Orders 127-0007, Dep't of the Army (May 7, 2006)). On October 20, 2008, Major Freeman elected voluntarily to delay further his still-pending promotion to Major. AR-137 ("Delay of Promotion as a Reserve of the Army and Army National Guard Officer," Dep't of the Army, Georgia National Guard Element (Oct. 20, 2008)).³

Major Freeman was finally promoted to Major in his state status as a member of the Georgia National Guard on November 21, 2008. AR-128 (Orders 326-127, Adjutant General, State of GA (Nov. 21, 2008)). The orders notifying him of that promotion specified, however, that he was not to be paid at that higher rank until federal recognition of his change in grade. Id. Major Freeman was extended federal recognition of his state-status elevation to Major on December 2, 2008, with an effective date of promotion of December 2, 2008. AR-126 (Mem. re: "Promotion as a Reserve Commissioned Officer of the Army," Dep'ts of the Army and the Air Force (Dec. 2, 2008)). The federal memorandum specified that Major Freeman's "promotion and authorization for pay and allowances in the higher grade [of Major] are effective on [December 2, 2008]." Id. The memorandum also explained that Major Freeman's "[t]ime in grade for promotion to the next grade will be computed from [his] [p]romotion [e]ligibility [d]ate (which is [his] [d]ate of [r]ank) of this promotion[,]" and set that date of rank as October 19, 2001. Id.

C. Major Freeman's Earlier Flight History

Fourteen years after joining the Georgia National Guard, on September 17, 1998, the National Guard Bureau ("NGB") placed Major Freeman on flight status as an Army aviator entitled to aviation career incentive pay ("ACIP") effective August 29, 1998. AR-255 (Orders 260-03, Dep'ts of the Army and the Air Force (Sept. 17, 1998)).⁴ In August 2000, Major Freeman successfully completed a UH-60 Blackhawk aviator qualification course. AR-246 (Service School Academic Evaluation Report (Sept. 6, 2000)); Compl. ¶ 14. In February 2001, however, Major Freeman failed an instrument check ride. AR-15 ("Supporting Narrative of CPT William Freeman to the ABCMR" (Oct. 30, 2007)). As a result of that failure, Major Freeman's flying duties were suspended, id., and he was ordered to present himself to a Flight Evaluation Board ("FEB") to determine whether his flight status should be revoked. Compl.¶ 14.

The FEB convened on May 10, 2001, and it ultimately determined that although Major Freeman demonstrated a lack of proficiency in his flying duties, he was qualified for aviation service. AR-82 to 89 (Georgia National Guard, FEB (May 10, 2001)). The Board recommended that Major Freeman's flight status be restored to allow him ninety days within which to progress in his flight capabilities. Id. at 86-87. This first FEB was convened by Colonel Dennis Livingston, the Georgia State Aviation Officer. Compl. ¶ 15.

On December 18, 2001, the Georgia Adjutant General, David Poythress, determined that the first FEB had been improperly appointed in contravention of Army...