Strother v. Baldwin et al

Filing 1

COMPLAINT against All Defendants by Bryan J. Strother. Attorney Lasser, Samuel Milgrom added. (Filing fee $ 400, receipt number 0972-6309634) (Attachments: # 1 Civil Cover Sheet, # 2 Order Retention Seminar, # 3 Military-MOS-Strother, # 4 Cover, # 5 DFAS-Response, # 6 Code used by DFAS, # 7 Memorandum FRCP 65 Motion, # 8 Pro Hac Vice Application, # 9 Michigan Bar Cert Daniel C. Willman)(Lasser, Samuel) Modified on 2/10/2016 (Kaminski, H).

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DANIEL C. WILLMAN MI (P55867) Pro Hac Vice Admission to be Sought
248-231-0705
PO 118 South Lyon, MI 48178
Attorney for Plaintiff (Lead Counsel)
[e-mail]
SAMUEL M. LASSER CA (252754)
415-994-9930
1934 Divisandero St
San Francisco, ca 94115
Attorney for Plaintiff (Co-Counsel)
[e-mail]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
NORTHERN DIVISION
Sgt. Bryan James Strother
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(California Army National Guard)

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JUDGE:

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individually and on behalf of all other

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NO:

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Similarly Situated (Plaintiffs),

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Plaintiff,

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-VAdjunct General David S. Baldwin

PLAINTIFF F.R.C.P. 23
CLASS ACTION COMPLAINT

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(successor to Maj.Gen William H. Wade II) |
of the State of California National Guard,
Mike McCord Pentagon Comptroller

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(successor to Robert Hale)

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United States Department of Defense,

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Defense Finance and Accounting Service

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(DFAS) both individually and

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in their official capacities,

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Defendants.

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CLASS ACTION COMPLAINT

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Now comes Plaintiff SGT. BRYAN JAMES STROTHER (California Army National

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Guard), individually and on behalf of all others Similarly Situated Plaintiffs via (FRCP 23), by and

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through his attorney Daniel C. Willman and asserts the following:

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JURISDICTION AND VENUE

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1.

Defendant General David S. Baldwin is a resident of the State of California, Defendant Mike

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McCord Pentagon Comptroller oversees the United States Department of Defense, Defense

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Finance and Accounting Service DFAS and has sufficient minimal contacts within this Courts

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jurisdiction, and has a branch office located in the State of California.

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2.

Plaintiff is a resident of the State of California.

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3.

This Court has Jurisdiction to hear this matter under 28 U.S.C. § 1331 (Federal Question)

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via the 14th Amendment to the Constitution of the United States and Article VI, Sec 2 Supremacy

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Clause. 28 U.S.C. § 2202 (Further relief) 28 U.S.C. § 1391 Venue generally, 28 U.S.C.§1361

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Compel, 28 U.S.C.§ 1361, Mandamus. F.R.C.P. 4(e) and California long-arm statute C.C.P. §

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410.10 Jurisdiction Exercisable.

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CLASS ACTION STATUS

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4.

This matter involves the illegal actions of the California Army National Guard and its

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recoupment of retention and other bonuses paid to over 16,000 service personnel, said personnel

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who acted in good-faith when entering into legal binding contracts with the California Army

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National Guard, resulting in said members being retained in the California Army National Guard.

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5.

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Contracts had long expired yet the California Army National Guard has knowingly engaged in

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ignoring the applicable SOL, and has acted to recoup bonus monies.

In most all cases the Statue of Limitations (California Code of Civil Procedure § 3371) for

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California Code of Civil Procedure § 337 Within four years: 1. An action upon any contract,

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obligation or liability founded upon an instrument in writing.
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applicable SOL statue in regard to these Contracts is 4 years.

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ORDERED to go to a retention seminar (Exhibit #1 ), Plaintiff Sgt. Byran James Strother and other

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Similarly Situated Plaintiffs were advised and counseled to accept the retention bonus monies.

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Most actions for recoupment are from retention bonuses given in 2006-2007. The longest

Plaintiff Sgt. Byran James Strother signed his contract and received his bonus after being

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Plaintiff Sgt. Byran James Strother acted in good-faith when given the retention bonus.

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The class of Plaintiffs is so numerous that joinder is impracticable.

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10.

Common question/ issues of law and fact are common among the class.

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The claims and defenses of Plaintiff Sgt. Byran James Strother are representative and typical

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of the class.

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13.

The class is so vast that the risk of creating inconsistent or varying adjudications would

establish incomparable standards of review resulting in a severe burden and waste of judicial
resources on a National level, infra.

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14.

Plaintiff Sgt. Byran James Strother has maintained a file in this matter which fills two

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binders.

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matter then most Similarly Situated Plaintiffs’ in this class, an would be a excellent representative.

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the course of 2 (two) years and the appointment of any other counsel would prejudice Plaintiff.

In all probability Plaintiff Sgt. Byran James Strother has maintained more paper work in this

Plaintiff Sgt. Byran James Strother and his counsel have worked closely on this matter over

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Based upon the 11th Amendment and supporting case law this is not a typical class action

against a corporation that will end with Plaintiffs getting a cash settlement.

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18.

Plaintiff has also brought State claims that could result in a cash settlement but such claims

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are brought here now to preserve any possible rights and not to waste time and resources in seeking

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at a later date leave to amend to bring such claims.

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bonus monies and the repayment of bonus monies illegally taking from all Plaintiffs.

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The relief sought is declaratory in nature, seeking a complete stop of the recoupment of

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The basic thrust of Plaintiffs Complaint is 42 U.S.C. 1983 Failure to Train.

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DFAS
HISTORY OF INTENTIONAL
SIGNIFICANT INSTITUTIONAL DEFICIENCIES
INCLUDING BUT NOT LIMITED TO FALSE DOCUMENTATION

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Via a 1990 federal law every department of the United States Government is to be held

accountable for all expenses annually.

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Since 1996 (the first year it was to be audited) the United States Department of Defense has

not accounted for $8.5 trillion in spending.

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The DFAS . . . .ran, and still runs, on COBOL, a computer language that dates to 1959. Most

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of the COBOL code the Pentagon uses for payroll and accounting was written in the 1960s,

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according to 2006 congressional testimony by Zack Gaddy, director of DFAS from May 2004 to

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September 2008 . . . “"seven million lines of COBOL code that hasn't been updated" in more than

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a dozen years. (Source see footnote #3)

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24.

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Department inspector general [which] found "significant deficiencies" in DFAS's own internal

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auditing organization . . . failure to "exercise sufficient professional judgment," ineffective quality-

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control monitoring and failure to comply with required accounting standards.

The DFAS has scores of archaic accounting systems leading to a report by the “Defense

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The secretary of defense’s office and the heads of the military and DFAS have for years

knowingly signed off on false entries. “I don't think they're lying and cheating and stealing
necessarily, but it's not the right thing to do,” [former] Pentagon Comptroller Robert Hale. 2

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Unaccountable “The high cost of the Pentagons’s bad bookkeeping. Part 2. Faking It Behind the

Pentagon's ledgers a running tally of epic waste Scot J. Paltrow November 18, 2013;
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States invaded Iraq the DFAS, stopped his retirement checks, he did not get paid for months, DFAS

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sent a letter to his wife offering condolences, and the letter spelled his name three (3) different ways.

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Source footnote #2 infra...

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When retired four-star general Peter Schoomaker returned to active duty after the United

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All of the above led General Shoomaker to state: “If the Chief of Staff of the Army is

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treated that way," . . . . "you can imagine how a private is treated."3

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The DFAS cannot account for $8.5 trillion in military spending since 1996 except for one

class of items, enlistment bonuses, bonuses given to some 100,000 military personnel including over
16,000 in the California National Guard, bonuses that do not come close to the cost of the failed and
abandoned $1 billion accounting system once heralded by the DFAS.4
DFAS did sanctimoniously and without impunity, burdened5 service personnel for some $300.

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http://www.reuters.com/investigates/pentagon/#article/part2

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Unaccountable "The high cost of the Pentagon's bad bookkeeping. Part 1. Number Crunch July

2, 2013 How the Pentagon’s payroll quagmire traps America’s soldiers By Scot J. Paltrow and Kelly

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Carr http://www.reuters.com/investigates/pentagon/#article/part1

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The Defense Integrated Military Human Resources System, or DIMHRS (pronounced DIME-

ers), a decade long failed attempt to implement a new integrated accounting system. Source see
footnote 4-Paltrow, Carr.

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Unaccountable "The high cost of the Pentagon's bad bookkeeping.

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Part 1. Number Crunch July 2, 2013

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How the Pentagon’s payroll quagmire traps America’s soldiers By

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Scot J. Paltrow and Kelly Carr
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million it alleges it can trace with undeniable accuracy.
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The DFAS has a long history of using fake number “Plugging” (plugs)to justify accounting

actions.

In 2011 then Secretary of Defense Robert Gates described the Pentagon's business

operations as "an amalgam of fiefdoms with out centralized mechanisms to allocate resources, track
expenditures, and measure results . . . . Which is true today. 6-7

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COUNT I
VIOLATION
42 U.S.C. 1983 FAILURE TO TRAIN

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Plaintiff incorporates by reference all preceding and following paragraphs.

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33.

Acting under Color of Law the California Army National Guard offered retention bonuses to

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thousands of it’s members and now seeks to recoup those monies even though the applicable statute

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of limitations has long since passed.

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http://www.reuters.com/investigates/pentagon/#article/part1
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Scot J. Paltrow : November 18, 2103 Part 2 supra

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a) The Pentagon has lost track of over half a trillion dollars in unaudited venders contracts.

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b) The Army has lost track of billions in supplies.

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c) They still use COBOL and old mainframes from the 1970's to track accounting

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The Center for Strategic and International Studies said that while the Defense

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Department was spending “in excess of $10 billion per year on business systems modernization and

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maintenance, (o)verall the result is close to business as usual.”

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Paltrow Part 2 Supra.

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34.

The California Army National Guard members (that were not recruiters, those splitting

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bounties or officers) that received retention bonus monies did so in good-faith.

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35.

Plaintiff Sgt. Byran James Strother joined the California Army National Guard in 2001.

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36.

In March 2006 Plaintiff Sgt. Byran James Strother and other California Army National Guard

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members were by Order of the Adjunct General ordered to go to a retention seminar (Exhibit # 1).

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into an assembly line were they signed contracts to stay in the California Army National Guard.

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At the above mentioned retention seminar California Army National Guard members were put

Acting “Under Color of Law” California Army National Guard members were given advice

and counsel by superiors to extend their time in the guard (AR 135-parg 5-1.41(b)(2) Exhibit #5, pg
1). California Army National Guard members then signed the contracts acting in good-faith in
reliance from California Army National Guard superiors in attendance.

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required him to remain in the same MOS (job) for 3 (three) years.

The California Army National Guard contract signed by Plaintiff Sgt. Byran James Strother

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(Exhibit#2).

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Plaintiff Sgt. Byran James Strother at the time held a MOS of a 25C and still is a 25C

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As the 20 plus pages in Exhibit #2 clearly and unmistakably show Plaintiff Sgt. Byran James

Strother has been a Radio operator for decades. Starting in 1986 Plaintiff had a MOS of 31C, 31C
then became a 35C, 35C became 25C. Other pages in Exhibit #2 show Plaintiff was a 25C20, 25C30
etc... the 20 or 30 following the C indicate a change in Rank such as going from a E4 to a E5, the
MOS is still the same.

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42.

The California Army National Guard and The Department of Defense, Defense Finance and

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Accounting Service herein (DFAS) falsely contends Plaintiff Sgt. Byran James Strother , violated AR

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135-parg 5-1.41(b)(2), DODI 1205.21 Sec E5.1.1.7/Pre 20081003, DODI 1205.21 Sec E8.1.1.3, NGR
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600-7 para 5-7 (a), Title 37 USC 16301/NDAA05 (Exhibit #4.pg 2).

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The California Army National Guard and The Department of Defense, Defense Finance and

Accounting Service (DFAS) falsely contends that Plaintiff Sgt. Byran James Strother switched his
MOS within the 3 (three) year period, In violation of ,Title 37 USC Sec § 331.

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as cited supra and is still a 25C.

Plaintiff Sgt. Byran James Strother has never switched his MOS or sought to switch his MOS

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Plaintiff did go to a school to receive additional training (11B) but upon completion he still

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held a MOS of 25C (see Exhibit #2. Pg 7). The 11B training was a school offered to many, but not

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for the purpose to obtain a new MOS, the school was offered as additional training to help troops

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prepare to handle other duties in the field of combat.

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California Army National Guard via The Department of Defense, Defense Finance and

Accounting Service (DFAS) also has contended that Plaintiff Sgt. Byran James Strother was a 21n
but there is zero proof to even show he went to school to be a 21n (Exhibit #4, 13 ).

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Accounting Service (DFAS) has alternatively asserted Plaintiff Sgt. Byran James Strother held a MOS

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of 25C Radio Operator in March 2007, then switched to MOS 11B Infantry and a 13E Echo (Field

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Artilleryman ) also in March 2007.

The California Army National Guard The Department of Defense, Defense Finance and

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48.

With in months of signing the retention bonus, Plaintiff Sgt. Byran James Strother was sent

to Iraq as were other Similarly Situated Plaintiffs.
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Orders calling Plaintiff Sgt. Byran James Strother to active duty dated May 15, 2007 clearly

show he was a 25C. (Exhibit #2. Pg 9, 11).

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50.

February 25. 2006, DA FORM 1059 box 5. shows Plaintiff Sgt. Byran James Strother had

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a SPECIALTY/ MOSC of 25C20. Box 6. COURSE TITLE 11B10 MOSQ Basic Infantry Course
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#06004. Box 3. (Exhibit #2, pg 7).

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In NCO EVALUATION REPORT form DA Form 2166-8, Part I box e. shows Plaintiff Sgt

.Byran James Strother PMOS (the P is for Primary) as 25C30. Part III box .b of the same form shows
Duty Mos 13B30 (Exhibit #2, pg 12 ).

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in active service June 6, 2007 to June 6, 2008.

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Plaintiff Sgt. Byran James Strother 25C30 Radio Oper/Maint- 21 Yrs 7 MOS.

Plaintiff Sgt. Byran James Strother DD 214 discharge from active duty paper, show that he was
Box 11. clearly indicates Primary Specialty of

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that the California Army National Guard deemed his bonus to be in error that the bonus must be

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recouped.

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54.

In 2012 the California Army National Guard sent notice to Plaintiff Sgt. Byran James Strother,

The California Army National Guard has starting recouping bonus monies from Plaintiff Sgt

.Byran James Strother and other Similarly Situated Plaintiffs.

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the contention of the California Army National Guard that Plaintiff Sgt. Byran James Strother did not

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keep the same (MOS), contrary to - Title 37 Pay and Allowances § 331. General bonus authority for

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enlisted members (Exhibit #4 pg 22-25).

The California Army National Guard did allow Plaintiff to contest the matter internally. It is

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56.

Plaintiff Sgt. Byran James Strother has given the California Army National Guard and The

Department of Defense, Defense Finance and Accounting Service (DFAS) the proper documentation
several times but they refuse to admit/acknowledge that Plaintiff never change his MOS.
57.

The refusal to acknowledge Plaintiff Sgt. Byran James Strother did not change his MOS is

either intentional or shows a complete lack of understanding (Training) by The Department of
Defense, Defense Finance and Accounting Service (DFAS) of how to track the MOS of a California
Army National Guard member.

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The failure of The Department of Defense, Defense Finance and Accounting Service (DFAS)

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to keep proper records and in fact plug in to documents whatever they wish is well established and

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documented .

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59.

The collection/recoupment is well beyond the Statute of Limitations (SOL) and Plaintiff Sgt.

Byran James Strother and other Similarly Situated Plaintiffs, do not owe any monies to the California
Army National Guard because the running of the SOL makes the matter moot as a matter of law.

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recruiting.

There has been wide spread corruption in the California Army National Guard in regard to

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sign up, to other recruiters processing thousands of claims, including handing out bonuses to the very

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Top Brass of the California Army National Guard, a General who was forced into retirement.

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The Corruption has ranged from, recruiters collecting bonus bounties8 for recruits they did not

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The wide spread recruiting fraud of the California Army National Guard was due to a complete

failure to train, failure to oversee and actual participation and illegal scheming by recruiters and Top
Brass, including Adjunct General in charge of the Guard includes Generals, Majors, Captains,9 some
receiving in excess of $100,000 .

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Recruiter pleaded guilty wire fraud..Source attorneys Office Eastern District of California.

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http://www.justice.gov/usao-edca/pr/california-army-national-guard-member-pleads-guiltycharges-

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recruiting-fraud-0 http://www.justice.gov/usao-edca/file/771176/download

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Guard audits . . . . found that at least 115 service members – most of them officers – committed

fraud or acted improperly. Following are some of key players who benefitted from or led the

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problem program.
http://www.sacbee.com/news/investigations/article2580420.html
By Charles Piller - [e-mail]
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The failure to train is not isolated to a few instances but instead was part of a series of

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intentional acts of, greed, illegal activity, gross systematic incompetence indifference and fraud,

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,reaching to all corners of the United States National Guard, from North10 to South11 from East12 to

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West.13

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64.

As noted by USA TODAY Pentagon correspondent Tom Vanden Brook, February 3rd, 2014:

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The Army National Guard launched the Recruiting Assistance Program in 2005 to

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bolster its ranks, which had thinned during the wars. It was later expanded to the Army
Reserve and active-duty Army. In essence, it paid soldiers for referrals of recruits. After audits
turned up evidence of potential fraud, the program was canceled in 2012. . . .

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An Army audit found that 1,200 recruiters had received payments that were potentially

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fraudulent, and another 2,000 recruiting assistants had received questionable payments. More

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Minnesota 2-12-14 http://www.military.com/daily-news/2014/02/13/recruiting-scandal-hits-

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minnesota-national-guard.htm

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http://www.startribune.com/recruiting-scandel-hits-minnesota-national-guard/245202901

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Texas 11-9-12

http: / / w w w .justice.gov/opa/pr/army-national-guard-recruiter-admits-crimes fraudulentrecruiting-referral-bonus-scheme

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New York

https://www.fbi.gov/washingtondc/press-releases/2014/five-army-national-guard-officials-andone-

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civilian-charged-with-bribery
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California. Supra, Infra.

http://www.usatoday.com/story/news/nation/2014/02/03/ a r my- national-guard-bogusbonuspayments-iraq-afghanistan/5182717/
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the 200 officers remain under investigation. In all, the Guard paid more then $300 million

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Nationally for more then 130,000 enlistments.14

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65.

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from 2005-2011 was forced to retire from the Army National Guard due to his intentional

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personal active involvement in taking/raiding unjustifiedly and illegally some $155,00015 in

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California Army National Guard Funds.

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66.

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his last 22 months of service because of the Statute of Limitations.

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67.

In 2011 Maj. Gen. William H. Wade II, who led the California Army National Guard

Maj. Gen. William H. Wade II was only ordered to pay back funds some $80,000 for

The sum sought to be collected from Plaintiff Sgt. Byran James Strother and other

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Similarly Situated Plaintiffs has seen the applicable Statute of Limitations run. Additionally

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all Plaintiffs relied in good-faith on the counsel and advice they were given at retention

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seminars they were ORDERED to attend supra.

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California Army National Guard .

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problems as"monumental," and the solution as cultural change for an organization that had

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"lost its way, ethically and morally."16-17-18

In 2011 General David S. Baldwin was appointed by Gov. Jerry Brown to lead the

In regard to the California Army National Guard Gen. Baldwin has described the

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http://www.usatoday.com/story/news/nation/2014/02/03/army-national-guard-bogus-

bonuspayments-iraq-afghanistan/5182717/

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At the time General Wade had not paid back one cent and was stationed in Italy working for

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NATO, as to why his pay was not garnished and how he was with NATO is truly disturbing and

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distressful to all the Honest enlisted personnel being humiliated to date.

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http://www.sacbee.com/news/investigations/article2573399.html
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http://www.pbs.org/wnet/need-to-know/the-daily-need/investigating-corruption-in-the12

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70.

Plaintiff Sgt. Byran James Strother and other Similarly Situated Plaintiffs are not

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“grifters” and thieves as whistle blower Capt. Clark cited but are in fact victims of one the

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most egregious mass frauds in U.S. Military history.19

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his greatest honor of serving as a honor guard at funerals for deceased U.S. Military personnel

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(Plaintiff Sgt. Byran James Strother was in fact on the cover of the Grizzly National Guard

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Magazine (Exhibit #3 )20 in regard to this solemn duty he considers his greatest honor).21

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72.

Plaintiff Sgt. Byran James Strother has always served and acted with honor including

How can any enlisted personnel or recruit ever have any trust/faith in any bonus

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californianational-guard/7624/

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http://www.kcra.com/news/ca-national-guard-bonus-scandal-leads-to-guilty-pleas/29870728

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I was shocked. I did everything I thought right. I signed the contract. I've held up every end of

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my end of the deal," said Mosley. http://abc7.com/archive/9273851/

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http://www.calguard.ca.gov/PA/Documents/GrizzlyMarch2013.pdf#search=march%202013%20i

ssue

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Plaintiff takes great issue with anyone who lumps Plaintiffs into the small group of thieves

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noted supra and infra.
In October 10 2010 Article Whistle blower-Capt. Ronald S. Clark, a federal auditor stated in part’
. . . . He called it "war profiteering." . . . ."I don't like grifters," . . . who steal taxpayer funds or
protect thieves." . . . [and that] . . . Most student loan repayments, those documents show, were
drawn from money designated for combat vets. Yet a large portion of those funds went to Guard
members who hadn't served a day at war.
By Charles Piller - [e-mail] October 10, 2010 . . . . Plaintiff was sent to Iraq within
months. This article also documents the shredding of documents etc...

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system unless the relief sought here is given.

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Wherefore, Plaintiff respectfully request the declaratory relief requested,

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adjoining completely The California Army National Guard, The United States Department

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of Defense, Defense Finance and Accounting Service (DFAS) or any other entity from

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attempting to recoup monies paid as retention/re-enlistment, or enlistment bonus (or any

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other name given) and that any monies recouped to date should be returned to Plaintiffs.

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And award such damages as are reasonable, just and necessary.

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COUNT II
BREACH/IMPAIRMENT OF CONTRACTS

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73.

Plaintiff incorporates by reference all preceding and following paragraphs.

74.

Defendant has breached the contract by illegally recouping monies.

75.

As a result of the above Plaintiff has damages and seeks Declaratory relief adjoining

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Defendants from any further attempts and/or acts of recoupment.

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76.

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California to extend the back reaches of the Statute of Limitations (SOL, California Code of

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Civil Procedure § 337 is a direct violation of the Contracts Clause of the Constitution of the

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United States of America (Article I, section 10, clause I).

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77.

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ordered to retention seminars, offered re-enlistment retention bonus or were offered such

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bonuses directly by recruiters.

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78.

Plaintiff has fulfilled his contract. Any “ex post facto law” passed by the State of

Plaintiff Sgt. Byran James Strother and other Similarly Situated Plaintiffs were

The Retention Bonus seminars were in fact a

front to bolster the Ranks of the

California Army National Guard, in order to meet National wartime quotas.

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79.

The California Army National Guard then made false assertions that Plaintiff Sgt.

Byran JamesStrother and others switched their MOS (job descriptions) within 3 years and had

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to pay back bonus monies.

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80.

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Guard claims that many MOS (jobs) were not eligible for bonuses

Alternatively and in addition to, the MOS allegations the California Army National

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81.

In Order to inflate their ranks, meet quotas and line their pockets the California

Army National guard conned Plaintiff and others into re-enlisting, this deceit revolves around
the fact that the Army National Guard knew plaintiffs would re-enlist and that the California
Army National Guard would recoup all monies, a classic bait and switch.
82.

This wilful act of deceit was not related to one incident or even a few, this act of

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malice was repeated systemically and intentionally over 16,000 times in California alone.22

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overall target, causing the Guard leader to call it a “hollow force”. USA TODAY Pentagon

13

correspondent Tom Vanden Brook, February 3rd, 2014, supra..

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15
16
17
18

In 2005 Reserve Ranks were 20% below the recoupment goal, 20,000 below its

84.

All of the fraud in the California Army National Guard and the National Guard in

other States of the Union essentially revolves around several hundred people consisting of,
recruiters and their Superior Officers, committing an unprecedented mass fraud upon regular
enlisted personnel all of whom enlisted or re-enlisted in the California Army National Guard
and the National Guard during a time of War.

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Wherefore,

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Plaintiff

respectfully request the declaratory relief requested,

adjoining completely The California Army National Guard, The United States Department of
Defense, Defense Finance and Accounting Service (DFAS) or any other entity from
attempting to recoup monies paid as retention/re-enlistment, or enlistment bonus (or any other
name given) and that any monies recouped to date should be returned to Plaintiffs. And award
such damages as are reasonable, just and necessary.

22

General Wade was given an Award in 2008 for adding members to the California Guard.

http://www.ausa.org/meetings/NationalAwardsAUSA/Pages/2008MajGenWilliamHWadeII.aspx
15

1

COUNT III
INTENTIONAL MISREPRESENTATION

2
3

85.

4

86.
Defendant made intentional misrepresentations of material fact to Plaintiff,
Defendant represented to Plaintiff the he was eligible for re-enlistment bonuses.

5
6
7
8
9

Plaintiff incorporates by reference all preceding and following paragraphs.

87.
Defendants representations were false and/or Defendant made numerous
misrepresentations with knowledge of its falsity.
88.
Defendant made the misrepresentations with the intent to induce Plaintiff to rely
on the misrepresentations.

10

89.
Defendant knew that their representations were false when they made them, or they
made the representations recklessly and without regard for the truth.

11

90.

Plaintiff relied on the misrepresentations.

12

91.
result.

Plaintiff was harmed by the misrepresentations and has suffered damages as a

13
14

Wherefore,

Plaintiff

respectfully request the declaratory relief requested,

15

adjoining completely The California Army National Guard, The United States Department of

16

Defense, Defense Finance and Accounting Service (DFAS) or any other entity from

17

attempting to recoup monies paid as retention/re-enlistment, or enlistment bonus (or any other

18

name given) and that any monies recouped to date should be returned to Plaintiffs. And award

19

such damages as are reasonable, just and necessary.

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21

COUNT VI
DECEIT OR INTENTIONAL FRAUD

22
23

92.

Plaintiff incorporates by reference all preceding and following paragraphs.

24
93.
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26
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Defendant’s intentionally took false actions, made false statements,
misrepresentations, false representations, engaged in concealment, and/or non-disclosure

94.
Defendant had knowledge of the falsity of their actions and statements or lack
thereof, and acted with scienter.

28
16

1
2

95.
Defendant’s actions were intended to defraud, i.e., and to induce reliance by
Plaintiff

3

96.

Plaintiffs reliance was justifiable reliance.

4

97.

Plaintiff has suffered damages.

5

Wherefore, Plaintiff respectfully request the declaratory relief requested, adjoining

6

completely The California National Guard, the Department of Defense DFAS or any other

7

entity from attempting to recoup monies paid as retention/re-enlistment bonuses (or any other

8

name give) and that any monies recouped to date should be returned to Plaintiffs. And award

9

such damages as are reasonable, just and necessary.

10
11

COUNT V
CONCEALMENT FRAUD

12
13

98.

Plaintiff incorporates by reference all preceding and following paragraphs.

14

99.

Defendant concealed or suppressed a material fact,

15

100.

Defendant had a fiduciary duty to disclose the true facts to Plaintiff.

16

101.
Defendant intentionally concealed or suppressed the true facts with the absolute
intent to defraud Plaintiff.

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18
19

102.
Plaintiff was unaware of the true facts and would not have acted as he did if he had
known of the concealed or suppressed facts (the intent along was to recoup).

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103.

As a result of the concealment or suppression of facts, Plaintiff sustained damage.

21
22
23
24
25
26

Wherefore, Plaintiff respectfully request the declaratory relief requested, adjoining
completely The California National Guard, the Department of Defense DFAS or any other
entity from attempting to recoup monies paid as retention/re-enlistment bonuses (or any other
name give) and that any monies recouped to date should be returned to Plaintiffs. And award
such damages as are reasonable, just and necessary.

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28
17

1
2

REQUEST FOR RELIEF
Defendant DFAS wrote to Plaintiff (Exhibit #4, pg7) :

3
Generally, persons who receive a payment from the Government acquire no
right to the money. They are bound in equity and good conscience to make
restitution.

4
5
6
7

As Lord Coke Could stated “It is better, saith the law, to suffer a mischief that is
peculiar to one, than an inconvenience that may prejudice many. Section 97b.”

8
In the case at hand Defendant23 is (the one) not suffering a mischief and cannot in

9
10
11
12

“good conscience” claim any moral high ground for the sake of equity. This is a matter of
intentional, systematic fraud perpetrated on masses of enlisted personnel who have not been
inconvenienced but who have suffered a great inequity.

13

This Nations Equity would best be served by granting the declaratory relief sought,

14

enlisted personnel should be able to have faith in the system and there superiors, otherwise the

15

chain of command is truly a hollow source of comfort, guidance and trust.

16
17

For all the reasoning cited supra all the Plaintiff’s of this action deserve the requested
relief.

18

Wherefore, Plaintiff respectfully request the declaratory relief requested, adjoining completely

19

The California Army National Guard or THE DFAS or any other entity from attempting to recoup

20

monies paid as retention/re-enlistment, or enlistment bonus (or any other name given) and that any

21

monies recouped to date should be returned to Plaintiffs. And award such damages as are

22

reasonable, just and necessary.

23

Plaintiff further request the Court issue a Writ of Mandamus ordering General David S.

24

Baldwin (or any successor of his) of The State of California National Guard and Mike McCord

25

Pentagon Comptroller (or any successor of his) at the United States Department of Defense, Defense

26

Finance and Accounting Service (DFAS),adjoining completely The California Army National Guard

27
28

23

Defendant as used here applies to both Defendants.
18

1

or THE DFAS or any other entity from attempting to recoup monies paid as retention/re-enlistment,

2

or enlistment bonus (or any other name given) and that any monies recouped to date should be

3

returned to Plaintiffs. And award any other damages as are reasonable, just and necessary.

4
5

REQUEST FOR COST AND ATTORNEY FEES
Plaintiff requests that this Court award reasonable cost and attorney fees as allowed by either

6

Federal and/or State law.

7

11

S/Daniel C. Willman
DANIEL C. WILLMAN
(Lead Counsel) MI (P55867)
Attorney for Plaintiff
PO 118
South Lyon, MI 48178
248-231-0705
[e-mail]

S/Samuel M. Lasser
SAMUEL M. LASSER
(Co-Counsel) CA (252754)
Attorney for Plaintiff
1934 Divisandero
San Francisco, CA 94115
415-994-9930
[e-mail]

12

Dated: 2-9-2016

Dated: 2-9-2016

8
9
10

13
14
15
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19

1
CERTIFICATE OF SERVICE

2
3

I hereby certify that I electronically filed the foregoing paper, plus attachments with the court

4

using the ECF system which will send notification of such filing to the following and/or I hereby

5

certify that I have given notice of said filing by personal service of process or by mail using the United

6

States Postal Service and will do so until the proper ECF respondent for each defendant is identified.

7
8
9

Adjunct General David S. Baldwin
California Army National Guard Headquarters

10

9800 Goethe Rd. Sacramento, CA. 95827

11

AND

12

Mike McCord

13

Pentagon Comptroller

14

United States Department of Defense

15

Defense Finance and Accounting Service (DFAS)

16

18
19

SAMUEL M. LASSER CA(252754)

S/Samuel M. Lasser

415-994-9930

17

Dated: 2-9-2016

1934 DIVISANDERO ST
SAN FRANCISCO, CA 94115

20

Attorney for Plaintiff (Co-Counsel)

21

[e-mail]

22
23

DANIEL C. WILLMAN (P55867) (Lead Counsel)

S/Daniel C. Willman

24

Attorney for Plaintiff

Dated: 2-9-2016

25

PO 118

26

South Lyon, MI 48178

27
28

248-231-0705
[e-mail]
20