Perez v. United States
| Decision Date | 03 January 2019 |
| Docket Number | No. 18-217C,18-217C |
| Parties | WILLIAM PEREZ, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Military Pay Case; Motion to Dismiss; Statute of Limitations; Appellate Review Leave; Restoration to Active Duty.
Charles W. Gittins, Law Offices of Charles W. Gittins, P.C., Middletown, VA, for plaintiff.
John S. Groat, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Steven J. Gillingham, Assistant Director, Robert E. Kirschman, Jr., Director, and Joseph J. Hunt, Assistant Attorney General, Department of Justice, Civil Division. Of counsel were Adam E. Frey, Civilian, United States Air Force, and Lt. Col. Charles J. Gartland, United States Air Force.
Plaintiff, William Perez, is a former, active duty Staff Sergeant in the United States Air Force who filed the above-captioned case seeking back-pay for the time he spent on unpaid confinement and on unpaid appellate leave, as well as back-pay stemming from an allegedly, wrongful discharge. Plaintiff was sentenced and charged by a general court-martial to one-year confinement and a bad-conduct discharge while on active duty. The Air Force, however, later dismissed plaintiff's court-martial sentence and charges, and ordered that plaintiff be restored "[a]ll rights, privileges and property" previously denied to him. Plaintiff alleges that following the reversal of his court-martial conviction, the Air Force never paid plaintiff the monies allegedly due to him and also wrongfully discharged plaintiff with a "bad-conduct" discharge. Defendant, the United States, has now moved to dismiss plaintiff's complaint, filed on February 13, 2018, as untimely because, allegedly, it was filed outside of the six-year statute of limitations contained in 28 U.S.C. § 2501 (2012). Defendant also moved to dismiss for lack of jurisdiction plaintiff's request to be restored to active duty.
Appellate review leave
When an accused servicemember is sentenced by a court-martial to a bad-conduct discharge, the court-martial sentence is subject to appellate review by the applicable, military branch, Court of Criminal Appeals. See 10 U.S.C. § 866(b) (2006)1 (). The accused servicemember "may be required to begin such leave on the date on which the sentence is approved . . . or at any time after such date," and such "leave may be continued until the date on which action under this subchapter is completed or may be terminated at any earlier time." 10 U.S.C. § 876(a) (2006). If the servicemember does not have sufficient accrued leave to cover the days of his or her appellate review leave, then the appellate review leave "shall be charged as excess leave." 10 U.S.C. § 706(a) (2006); see also Department of Defense Financial Management Regulation (DODFMR), Vol. 7A Ch. 1, § 010301.F.1 (Mar. 2009).
If the court-martial sentence of a bad-conduct discharge is "set aside or disapproved," "all rights, privileges, and property affected by an executed part of a court-martial sentence . . . except an executed dismissal or discharge, shall be restored." 10 U.S.C. § 875(a) (2006). In addition, "[i]f a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the Secretary concerned shall substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of his enlistment." 10 U.S.C. § 875(b) (2006). The law, as codified in 10 U.S.C. § 707 (2006), and implemented by the Department of Defense in DODFMR, Vol. 7A Ch. 1, § 010301.F, also requires that, when a servicemember's bad-conduct discharge has been "set aside or disapproved," the servicemember be paid for time spent on excess leave. See 10 U.S.C. § 707(a) (). Payment for excess leave is "reduced by the total amount of his income from wages, salaries, tips, other personal service income, unemployment compensation, and public assistance benefits from any Government agency during the period he is deemed to have accrued pay and allowances." Id. at § 707(b); see also DODFMR at § 010301.F.2.a (Mar. 2009). In order to compute the amount of pay due and owing to a servicemember, the military requires a servicemember to submit "information as to sources and amounts of income received by the member during periods of required appellate leave," which "should include, at a minimum, copies of all pertinent income tax returns, employer statements of income earned from wages, salaries, tips, and documentation of other personal service income." DODFMR at § 010301.F.3 (Mar. 2009).Notably, "[p]ay will be computed only on the basis of a written record." Id. Payment for excess leave "shall be made" to the servicemember as follows:
10 U.S.C. § 707(b)(2); see also DODFMR at § 010301.F.2.b (Mar. 2009).
The statute also provides:
If a member is entitled to be paid under this section but fails to provide sufficient information in a timely manner regarding his income when such information is requested . . . the periods of time described in paragraph (2) shall be extended until 30 days after the date on which the member provides the information requested.
10 U.S.C. § 707(b)(3); see also DODFMR at § 010301.F.2.b.5 (). Based on the above quoted statutory provision and DODFMR, the military will request from the servicemember the necessary income documentation. The servicemember's obligation to provide his or her income documentation to the military in a "timely manner" is triggered "when such information is requested" by the military. See 10 U.S.C. § 707(b)(3).
Plaintiff's service in the Air Force
Plaintiff initially enlisted as an active duty member in the United States Air Force on January 19, 1995. On August 28, 1998, plaintiff re-enlisted for an active duty a term of four years. Plaintiff re-enlisted for his third term of active duty for a term of six years on August 23, 2002.
In 2004, plaintiff had achieved the rank of Staff Sergeant and was serving out his third re-enlistment term on active duty, set to expire in August of 2008. Also in 2004, plaintiff was tried by a general court-martial composed of officer members at Moody Air Force Base, Georgia, on charges of assault and sodomy of his then two minor sisters-in-law, M.R.G. and E.M.G.2 Plaintiff was found guilty of sodomy of M.R.G., and of assault with intent to commit sodomy of E.M.G., in violation of Article 125 and 134 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 934 (2000). On July 2, 2004, plaintiff was sentenced to "[r]eduction to the grade of airman first class, confinement for 1 year, and bad conduct discharge."
On November 4, 2004, the convening authority3 issued General Court-Martial Order (GCMO) No. 1, in which the convening authority approved the July 2, 2004 findings and sentence of the general court-martial against plaintiff for assault and sodomy of M.R.G. and E.M.G. The convening authority also stated in GCMO No. 1 that "upon completion of the sentence to confinement, AIRMAN FIRST CLASS WILLIAM PEREZ, JR., will be required, under Article 76a, UCMJ, to take leave pending completion of appellate review of the conviction." (capitalization in original). On April 16, 2005, following plaintiff's completion of his confinement sentence, the Air Force placed plaintiff on unpaid appellate review leave while plaintiff's conviction and sentence were being reviewed by the Air Force. As noted in the form titled "Duty Status Change" dated April 16, 2005, which was attached to defendant's motion to dismiss, plaintiff was confined "FROM 2 Jul 2004 THRU 15 Apr 2005," for a total of "284" days. (capitalization in original).
Although no specific date was provided in plaintiff's complaint, plaintiff alleges that subsequent to the general court-martial's July 2, 2004 sentence, and "[d]uring the course of appellate review, M.R.G. sent an unsolicited letter to plaintiff's appellate defense counsel outlining the nature of her...
To continue reading
Request your trial