Piotrowski v. United States, 13-760C

CourtCourt of Federal Claims
Writing for the CourtCAMPBELL-SMITH, Chief Judge
Docket NumberNo. 13-760C,13-760C
Decision Date30 December 2014


No. 13-760C

United States Court of Federal Claims

December 30, 2014



RCFC 12(b)(1); Subject Matter Jurisdiction; Military Pay Act (37 U.S.C. § 204); 10 U.S.C. § 3911; Statute of Limitations (28 U.S.C. § 2501); 28 U.S.C. § 1491 (a)(2); Administrative Procedures Act; Fifth Amendment; Eighth Amendment; Promissory Estoppel; Fraudulent Misrepresentation; Collateral Attack on Court-Martial Proceedings

Joseph Frank Piotrowski, Cross City, FL, pro se.

William P. Rayel, Trial Attorney, with whom were Stuart F. Delery, Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, for defendant. Maj. Nicole L. Fish, Litigation Attorney, Military Personnel Branch, United States Army Litigation Division, of counsel.



Pro se plaintiff Joseph Frank Piotrowski (plaintiff or Mr. Piotrowski) filed this military pay action against the United States Army (Army or defendant).1 Plaintiff

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asserts several claims arising out of his twenty-four years of service in the Army and a 2001 court-martial conviction resulting in plaintiff's imprisonment, forfeiture of pay, and dismissal from service. Plaintiff argues, inter alia, that the Army acted contrary to law by not approving his request to retire by December 1, 2000—prior to the events leading to his court-martial conviction. Plaintiff seeks past and future retirement pay as well as other relief.

Before the court are the Complaint,2 ECF No. 1, attached to which are plaintiff's exhibits3 (Pl.'s Ex.), ECF Nos. 1-1 through 1-3, filed September 30, 2013; defendant's Motion to Dismiss or, in the Alternative, Motion for Judgment on the Administrative Record (Def.'s Mot.), ECF No. 12, filed February 11, 2014, and its corrected appendix (Def.'s App.),4 ECF No. 15-1, filed February 27, 2014; the Administrative Record (AR),

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ECF No. 13, filed under seal February 11, 2014; plaintiff's Response (Pl.'s Resp.), ECF No. 20, filed May 2, 2014; defendant's Reply (Def.'s Reply), ECF No. 27, filed July 17, 2014; plaintiff's Sur-Reply (Pl.'s Sur-Reply), ECF No. 29, filed August 19, 2014; and defendant's Sur-Surreply (Def.'s Sur-Reply), ECF No. 30, filed September 2, 2014.

For the reasons stated below, defendant's Motion to Dismiss is GRANTED.

I. Background

Plaintiff began serving in the Army on February 22, 1977. Compl. ¶ 13. By early 2000, plaintiff had served seven of his approximately twenty-four years of service as a commissioned reserve officer in the rank of Captain and was stationed at the MacDill Air Force Base in Tampa, Florida. See id. ¶¶ 13-14; Pl.'s Resp. 3-4.

On August 5, 2000, plaintiff was charged with Driving Under the Influence (DUI) while off-base. Compl. ¶ 15. Two days later, plaintiff's Unit Commander, Lt. Col. Robert Bethea, Jr. (LTC Bethea), initiated an inquiry regarding plaintiff's DUI and an alleged misuse of a government-issued credit card. See id. ¶ 17. As a result, a "flag" was placed in plaintiff's personnel file. See Pl.'s Sur-Reply 18; Pl.'s Ex. C at 6. Army regulations define a "flag" as "[a]n abbreviated term used to describe the initiation or removal of a suspension of favorable personnel actions." Army Reg. 600-8-2, Glossary (1987). "Flags will be submitted when an unfavorable action or investigation (formal or informal) is started against a soldier by military or civilian authorities." Id. ¶ 1-11.

On August 10, 2000, the investigating official concluded that plaintiff had engaged in misconduct and recommended that action be taken pursuant to the Uniform Code of Military Justice (UCMJ). Compl. ¶ 18; Pl.'s Ex. C at 3 (Investigative Findings). The Army issued plaintiff a letter of reprimand on August 24, 2000. Compl. ¶ 19; Pl.'s Ex. C at 4 (Mem. of Reprimand).

Also on August 10, 2000, plaintiff requested voluntary retirement at his rank of 03-E (Captain); plaintiff specifically asked to "be released from active duty and assignment on 30 November 2000 and [to be] placed on the retired list on 1 December 2000." Id. ¶¶ 14-15; Pl.'s Ex. A at 2-3 (Voluntary Retirement Mem.). Plaintiff contends that the timely out-processing for his retirement was inhibited by the unlawful presence of a flag in his personnel file. See Pl.'s Sur-Reply 18-19; cf. Army Reg. 600-8-2 ¶ 1-14.h (providing that the presence of a flag prohibits retirement); Def.'s Reply 12 (conceding that a flag inhibits retirement but arguing that plaintiff's retirement was

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denied for reasons independent of the flag). Plaintiff contends that the Army should have removed the flag from his personnel file on August 24, 2000—the date on which the Army issued plaintiff the letter of reprimand. See Pl.'s Sur-Reply 18-19, 23; cf. Army Reg. 600-8-2 ¶ 1-12(6) (indicating that a flag should be removed from a service member's personnel file upon the signing of a letter of reprimand). However, the Army did not remove the flag from plaintiff's personnel file until October 30, 2000. Pl.'s Sur-Reply 18; see Compl. ¶¶ 20-23 (explaining the procedures taken to remove the flag from plaintiff's personnel file).

On November 3, 2000, plaintiff met twice with LTC Bethea regarding plaintiff's retirement request. Compl. ¶ 26. Following these meetings, LTC Bethea initiated a second flag against plaintiff, the basis for which the parties dispute. See Def.'s Mot. 4 n.3 (claiming the second flag was a result of plaintiff's failure "to take the requisite steps toward retirement"); Pl.'s Resp. 4-7 (claiming the second flag was a result of plaintiff's failure to agree "that a disciplinary action under UCMJ should hinge on whether . . . he retired by [December 1, 2000]"); Compl. ¶¶ 27-28 (similar).

Also on November 3, 2000, plaintiff's retirement request was denied by Personnel Command (PERSCOM). AR 159. Because plaintiff only had seven years of commissioned service, he was not eligible to retire as a Captain. Id. PERSCOM advised that if plaintiff wished to retire with less than ten years of commissioned service, he must revert to enlisted status and resubmit a voluntary retirement application with the correct retirement grade. Id.

That same day, plaintiff submitted a Personnel Action form, in which he asked to revert to enlisted status and to be retired at the rank of Sergeant first class as of December 1, 2000, consistent with the advice of PERSCOM. Pl.'s Ex. C at 9 (Personnel Action Form); see Compl. ¶ 29; cf. Def.'s Mot. 23 n.16 (claiming that a "Personnel Action form is not the appropriate method of requesting retirement"). Plaintiff's second retirement request was denied four days later, on November 7, 2000. See Compl. ¶ 29; Pl.'s Ex. C at 9 (Personnel Action Form).

In early 2001, the Army initiated a court-martial action against plaintiff related to his DUI. See Compl. ¶ 30; Def.'s Mot. 4; AR 80 (General Court-Martial Order (GCMO)). While this action was pending, plaintiff was charged on February 11, 2001 with a second DUI. See Def.'s Mot. 4; AR 80 (GCMO). Two months later, on April 18, 2001, plaintiff was involved in a third, and fatal, DUI. See Compl. ¶ 30; AR 80 (GCMO).

On June 7, 2002, plaintiff was convicted by general court-martial of, inter alia, involuntary manslaughter and three instances of drunk driving. AR 82 (GCMO). Plaintiff was sentenced "[t]o be reprimanded, to forfeit all pay and allowances, to be confined for 13 years and six months and to be dismissed from the service." Id. Pursuant to a plea agreement, the convening authority suspended all prescribed confinement in

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excess of twelve years for a period of eight years. Id. at 80, 83. The convening authority also approved the execution of plaintiff's sentence with the exception of his dismissal from service, which was stayed pending the completion of the appellate process. Id. at 83.

On January 31, 2006, the United States Army Court of Criminal Appeals substantially affirmed plaintiff's conviction and sentence.5 See AR 84-89. The United States Court of Appeals for the Armed Forces denied plaintiff's petition for review on February 8, 2007. AR 247. On April 10, 2007, the Assistant Secretary of the Army for Manpower and Reserve Affairs approved the decision of the United States Army Court of Criminal Appeals, AR 244; see also AR 248, and on May 24, 2007, the Chief of Staff of the Army ordered that plaintiff be dismissed from the Army at midnight on June 7, 2007, AR 245.

In the interim, back in May 2002, while serving his military sentence, plaintiff was indicted by the state of Florida on the charges of DUI manslaughter and vehicular homicide. See AR 78-79. Plaintiff subsequently was found guilty and was sentenced to two consecutive fifteen-year terms, to run concurrently with his military sentence. Id.; Compl. ¶ 31. Plaintiff's military confinement ended in July 2008, but he is currently serving the remainder of his state sentence at Cross City Correctional Institution in Florida. Def.'s Mot. 6; see Pl.'s Resp. 21 (listing Cross City Correctional Institution as plaintiff's address).

On March 31, 2011, plaintiff filed an application with the Army Board for Correction of Military Records (the Board) requesting certain corrections be made to his Certificate of Release or Discharge from Active Duty (DD Form 214), see AR 21-65, including that his Dismissal be changed to Retirement and his Dishonorable characterization of service be upgraded to Honorable, see AR 31-32. On January 18, 2012, the Board granted partial relief by correcting three items on his DD Form 214: the length of his total inactive service, the length of his foreign service, and his military education training. See AR 20. The Board denied the remaining relief requested by plaintiff, including all relief pertaining to retirement and upgrading his discharge to honorable. Id.

Plaintiff filed the instant action on September 30,...

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