BIAS v. USA

Filing 39

REPORTED OPINION granting in part and denying in part 26 Motion to dismiss for lack of subject matter jurisdiction; granting 26 Motion for Judgment on the Administrative Record; denying 27 Cross Motion for judgment on the administrative record. The Clerk is directed to enter judgment. Signed by Judge Charles F. Lettow. (USPS Tracking # 7014 1200 0000 9093 7627)(vds) Copy to parties.

ORIGINAL
3Jn tbe Wniteb ~tates qcourt of jfeberal qcJatnf~ED
No. 15-634C

APR 2 8 2017
(Filed: April 28, 2017)

RONALD BIAS,

Plaintiff,

v.
UNITED ST ATES,

U.S . COURT OF

FEDERAL CLAIMS

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Military pay claim; challenge to grant by
c01Tection board of equitable relief as
insufficient

Defendant.
~~~~~~~~~~~~~~~ )
Ronald Bias, prose, Richmond, Texas.
Michael D. Snyder, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the briefs
were Benjamin C. Mizer, former Principal Deputy Assistant Attorney General, Civil Division,
Joyce R. Branda, Acting Assistant Attorney General, Civil Division and Robert E. Kirschman,
Jr., Director, and Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C. Of counsel was Major Dawn
M. Steinberg, Office of the Judge Advocate General, Department of the Navy, Washington, D.C.
OPINION AND ORDER
LETTOW, Judge.
Plaintiff, Ronald Bias, a retired Lieutenant Colonel in the Marine Corps and Marine
Corps Reserve, brings suit in this court to challenge a 2016 decision by the Board for Correction
of Naval Records ("the Board"). Mr. Bias retired in 2006 after the Marine Corps inc01Tectly
informed him that he had earned 20 years of qualifying service and was eligible for retirement
pay. The Marine Corps learned of its mistake in 2009 and notified Mr. Bias, who then returned
to active duty until becoming eligible for retirement pay and retiring again in 2010. The
resulting dispute primarily concerns pay and allowances during the hiatus between Mr. Bias' two
retirements. After addressing several petitions from Mr. Bias between 2007 and 20 16, the Board
most recently awarded Mr. Bias de facto retirement status from November 1, 2006, the date of
his first retirement, to August 2009, when he returned to active duty, and accordingly allowed
him to keep the retirement pay he received during that period. Mr. Bias now contends that the
Board erred by only granting him partial relief, arguing that he is entitled to, among other things,
retroactive reinstatement and back pay as of November 1, 2006.

1

7014 1200 DODO 9093 7627

Pending before the court is the government's motion to dismiss plaintiffs complaint, or,
in the alternative, for judgment on the administrative record, as well as Mr. Bias' cross-motion
for judgment on the administrative record. For the reasons stated, the government's motion to
dismiss for lack of subject matter jurisdiction is granted in part and denied in part, the
government's motion for judgment on the administrative record is granted, and Mr. Bias' crossmotion is denied.
FACTS 1

A. Mr. Bias' 2006 Retirement and 2007 Petition to the Board
Mr. Bias is a retired Lieutenant Colonel in the Marine Corps, and has served both on
active duty and in the active reserve. AR 1-3. 2 In June 2005, the Marine Corps notified Mr. Bias
that he had completed 20 years of qualifying service and was eligible to receive reserve
retirement pay if he chose to request retirement status. AR 32-1093 to -95. Nearly a year later,
in April 2006, the Marine Corps informed Mr. Bias that he was eligible for active duty
retirement. AR 9-98. Mr. Bias subsequently requested retirement and was released from active
duty effective November 1, 2006, "[s]ubject to active duty recall .... " AR 32-1026.
Shortly thereafter, in February 2007, the Marine Corps determined that Mr. Bias was not
physically qualified for any duties involving flying because of an ankle injmy Mr. Bias suffered
in 2006, prior to his retirement. AR 31-725. Mr. Bias petitioned the Board in July 2007 for
reinstatement to active duty in order to seek medical treatment for his injury. See AR 31-685 to 87. He asserted that the Marine Corps violated particular regulations by processing his
retirement without informing him that his ankle injury was considered permanent. AR 31-686 to
-87. He sought reinstatement to active duty as of November 1, 2006, as well as back pay and
allowances, among other forms of relief. AR 31-687. On September 22, 2008, the Board
considered and rejected the petition, determining that Mr. Bias did not show he was "unfit to
reasonably perform active military service when released from active duty ... or that [his]
release was erroneous or unjust." AR 31-525 to -26. The Board agreed with a pre-retirement
health assessment indicating that despite his ankle injmy and other ailments, Mr. Bias was
physically qualified for retirement. AR 31-526. On November 21, 2008, his request for
reconsideration was denied due to a lack of new and material evidence. AR 4-57.

1

The recitations that follow constitute findings of fact by the court drawn from the
administrative record of the proceedings before the Board, filed pursuant to Rule 52. l(a) of the
Rules of the Court of Federal Claims ("RCFC"). See Bannum, Inc. v. United States, 404 F.3d
1346, 1356 (Fed. Cir. 2005) (explaining that proceedings on the administrative record "provide
for trial on a paper record, allowing fact-finding by the trial court").
2

Citations to the administrative record refer to the record as filed on August 19, 2016.
The record is divided into tabs and paginated sequentially. In citing to the administrative record,
the court will first designate the tab, followed by the page number. For example, AR 1-3 refers
to tab 1, page 3 of the administrative record.
2

B. Mr. Bias' 2009 Return to Active Duty and Petition to the Board
In March 2008, during the Board's review of Mr. Bias' records, the Board informed the
Marine Corps that it had found an error in the retirement credits previously attributed to Mr.
Bias. AR 31-710. On November 1, 2006, the date Mr. Bias retired, he only had accumulated 18
years and approximately 9 months of active duty service. AR 31-641. Accordingly, the Marine
Corps notified Mr. Bias on June 18, 2009 that he was "ineligible to receive retired pay and must
return to active duty and serve more than 20 years to receive an active duty retirement." Id If
Mr. Bias chose not to return to active duty, he would be discharged. See id He returned to
active duty on August 1, 2009 as a Marine instructor at Amite High School in Louisiana. AR 232. Additionally, at that same time, the Defense Finance and Accounting Service ("DFAS")
instituted proceedings to recover $117,194 in retirement pay and benefits that Mr. Bias had
received between November 2006 and July 2009. AR 10-109. 3
Mr. Bias submitted a petition to the Board in December 2009, requesting retroactive
reinstatement to active duty and back pay from November 1, 2006, among other forms of relief.
AR 5-59. In that petition, he noted the error committed by the Marine Corps regarding his
retirement eligibility. Id The Board considered the petition to be a request for reconsideration
of its previous decision addressing Mr. Bias' ankle injury, and denied the request for
reinstatement and back pay due to a lack of new and material evidence. AR 5-66. 4

C. Mr. Bias' 2010 Retirement and 2013 Petitions to DFAS and the Board
While on active duty as an instructor at Amite High School in 2010, Mr. Bias received
permanent change of station orders that assigned him to the Marine Forces Reserve in New
Orleans, Louisiana. AR 6-74. Rather than comply with those orders, Mr. Bias chose to retire on
November 1, 2010. Id; AR 6-78. By then, he had earned more than 20 years of active service,
see AR 10-102, and was thus eligible for retirement pay.
In October 2013, after his second retirement, Mr. Bias submitted a request to DFAS for
waiver of indebtedness involving recapture of the retirement pay he had received during his
ostensible retirement from November 1, 2006 to August 1, 2009. See Bias, 124 Fed. Cl. at 664,
666. In December 2013, he also petitioned the Board to request reinstatement to active duty and
back pay from November 1, 2010, as well as consideration for promotion to colonel. AR 6-68.
Mr. Bias asserted that he received his permanent change of station orders, which prompted his
2010 retirement, because he had reported fraudulent activity by another Mm'ine instructor at the
school, who was a retired senior enlisted man, and the school's principal. See AR 6-69. His
petition included claims related to whistleblower retaliation, abuse of authority, and violations of
privacy. AR 6-70. The Board denied the petition and found that relief was unwarranted, stating

3By

May 2015, Mr. Bias' debt was $157,512. See Bias v. United States, 124 Fed. Cl.
663, 666 (2016).
4 The

Board nonetheless granted Mr. Bias' request to remove the non-selection of a
promotion to colonel, thus allowing him to compete for the promotion before the next available
promotion board. See AR 31-616 to -17.
3

that the evidence did not suppmi Mr. Bias' claims. AR 6-82 to -83. DFAS never acted on the
submission before it due to the petition Mr. Bias had filed with the Board. Bias, 124 Fed. Cl. at
664.

D. The Court's Remand and the Board's 2016 Decision
On June 19, 2015, Mr. Bias filed suit in this court. See generally Comp!. Shortly
thereafter, on January 12, 2016, the court remanded the case to the Board "for a period not to
exceed six months" and stayed the case pending the results of the remand. Bias, 124 Fed. Cl. at
668. The court agreed with the government that remand was appropriate because the Board's
most recent decision had failed to address a claim by Mr. Bias regarding his 2006 retirement,
"namely, that the Marine Corps erred in notifying then-Lieutenant Colonel Bias that he was
eligible to retire and then approving his retirement request." Id at 667 (citations omitted). The
court stated that on remand the Board should consider that claim and "seek a recommendation
from DFAS regarding plaintiffs request for waiver of indebtedness." Id. at 668.
Following the court's remand, DFAS issued an advisory opinion on February 12, 2016.
AR 2-32. DF AS recommended that the Board "apply the De Facto Retired Member Doctrine,
and correct [Mr. Bias'] records to show he was a De Facto Retiree during the timeframe from 1
November 2006 through 31 July 2009, and direct his $117, 194 retired pay debt be removed."
AR 2-36. The Board subsequently considered Mr. Bias' claims, including the circumstances of
his 2006 and 2010 retirements, and his requests for back pay, allowances, retroactive
reinstatement, consideration for promotion, and other equitable relief. AR 1-2. The Board
concluded:
(1) That [Mr. Bias] be placed in a de facto retired status from 1November2006
through his return to active duty in August 2009; and
(2) That any debt associated with receipt of active duty retirement pay for this
period be waived; and
(3) That no further action or correction to [Mr. Bias'] record is warranted with
respect to his November 2006 or his November 2010 retirement; his request for
reinstatement to active duty or back pay and allowances related to such
reinstatement; entitlement to a special selection board for the FY-09 US[MC]R
Colonel AR Promotion Selection Board; or other equitable relief; and
(4) That DFAS should conduct an accounting into [Mr. Bias'] receipt of pay and
benefits to reconcile [his] claim that he has already repaid monies received as
separation pay, which DFAS values as $46,333.45 ....
AR 1-4 to -5.

4

E. Present Claims
In a Second Amended Complaint filed on August 19, 2016, Mr. Bias challenges the
Marine Corps' actions that resulted in his 2006 and 2010 retirements, alleging (I) a violation of
10 U.S.C. § 6323, which governs the active duty service requirements for the retirement of
Marine Corps officers, and (2) violations of the Military Pay Act, 37 U.S.C. § 204. See Second
Am. Comp!. ifif 119-29. In light of the Board's most recent decision, Mr. Bias asse1ts that the
Board erred by only granting him paitial relief through de facto retired status. Pl.'s Opp'n to
Def.'s Mot. to Dismiss ... [and] Mot. for Judgment on the Administrative Record, and Pl. 's
Cross-Mot. for Judgment on the Administrative Record ("Pl.'s Cross-Mot.") at 17, ECF No. 27.
He seeks retroactive reinstatement to active duty as of November 1, 2006 with full back pay and
allowances, as well as correction of his administrative records. Second Am. Comp!. at 10. He
also requests that the court void his 2010 retirement and place him in de facto retired status from
November 1, 2010 to the present. Second Am. Comp!. at 11. In addition, he seeks a wide range
of injunctive relief, including relief to bar the government from collecting debts owed by Mr.
Bias, consideration for promotion, and restoration of military education benefits. Second Am.
Comp!. at 10.
On October 21, 2016, the government moved to dismiss the complaint for lack of subject
matter jurisdiction and for failure to state a claim, or, in the alternative, for judgment on the
administrative record. Def.'s Mot. to Dismiss, and, in the Alternative, for Judgment Upon the
Administrative Record ("Def. 's Mot."), ECF No. 26. Mr. Bias responded with a cross-motion
for judgment on the administrative record. Pl.'s Cross-Mot. The motions have been fully
briefed and were addressed at a hearing held on April 20, 2017.
JURISDICTION

A. The Tucker Act and the Military Pay Act
As plaintiff, Mr. Bias has the burden of establishing jurisdiction. See Reynolds v. Army
& Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). Pursuant to the Tucker Act, the

court has jurisdiction "to render judgment upon any claim 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. § 149l(a)(l). The Tucker Act
waives sovereign immunity and allows a plaintiff to sue the United States for money damages,
United States v. Mitchell, 463 U.S. 206, 212 (1983), but it does not provide a plaintiff with any
substantive rights, United States v. Testan, 424 U.S. 392, 398 (1976). "[A] plaintiff must
identify a separate source of substantive law that creates the right to money damages." Fisher v.
United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevant part) (citing Mitchell,
463 U.S. at 216; Testan, 424 U.S. at 398).
Here, the Military Pay Act, 37 U.S.C. § 204, is a money-mandating source oflaw that
provides the court with jurisdiction. See, e.g., Martinez v. United States, 333 F.3d 1295, 1303
(Fed. Cir. 2003) (en bane); Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997). The
court's jurisdiction encompasses Mr. Bias' claim for back pay and allowances, see Martinez, 333
5

F.3d at 1303 (citations omitted), as well as the review of the Board's final decision in 2016, see
Richey v. United States, 322 F.3d 1317, 1323 (Fed. Cir. 2003) ("If an officer elects to pursue a
remedy before the Corrections Board, after the Board renders a final decision, the officer may
effectively obtain review of that decision in the Court of Federal Claims by filing suit under the
Tucker Act.") (citation omitted). 5 Further, "[t]o provide an entire remedy and to complete the
relief afforded by the judgment, the court may, as an incident of and collateral to any such
judgment, issue orders directing restoration to office or position, placement in appropriate duty
or retirement status, and correction of applicable records." 28 U.S.C. § 149l(a)(2); see also
Martinez, 333 F.3d at 1303 (citing 28 U.S.C. § 149l(a)(2)). A finding in favor of Mr. Bias
would provide the court with juridical power to entertain certain of his other requests for
injunctive relief, such as relief from debt collection and consideration for promotion, ifthe court
determined that "these elements ofrelief were necessary to 'provide an entire remedy' for the
judgment afforded on plaintiffs claim for monetary damages under the Militaiy Pay Act." Bias,
124 Fed. Cl. at 667 (citing 28 U.S.C. § 149l(a)(2); Laughlin v. United States, 124 Fed. Cl. 374,
382 (2015), ajf'd, 665 Fed. Appx. 902 (Fed. Cir. 2016)).

B. Mr. Bias' 2006 Retirement
Despite the jurisdictional foundation stemming from this chain of events, the government
argues that the statute of limitations has expired to the extent Mr. Bias' claims relate to his 2006
retirement. Def. 's Mot. at 18-21. Any claim brought before this court must be "filed within six
years after such claim first accrues." 28 U.S.C. § 2501. Generally, where a plaintiff seeks back
pay due to an alleged wrongful discharge, "the limitations period is established by the date of
accrual, which is the date on which the service member was denied the pay to which he claims
entitlement." Martinez, 333 F.3d at 1314; see also Straughter v. United States, 120 Fed. Cl. 119,
123-24 (2015) (holding that plaintiffs challenge to the government's alleged wrongful discharge
in 1989 was barred because plaintiff filed his complaint 25 years later).
The government's argument is misplaced. Unlike in Martinez, where the claim was
based upon whether plaintiffs discharge was wrongful, see 333 F.3d at 1299-1300, there is no
dispute that Mr. Bias was wrongly retired in 2006 after receiving incorrect information regarding
his retirement eligibility. The Marine Corps acknowledged as much when it informed Mr. Bias
of the error in 2009 and directed him to either return to active duty or be discharged. AR 31-641.
That notice from the Marine Corps resolved any claim that would have accrued in 2006. See
Hr'g Tr. 7:23 to 8:2, 8:24 to 9:8 (Apr. 20, 2017). 6 Instead, Mr. Bias' claims are based upon the
5

Mr. Bias also relies on 10 U.S.C. § 6323, which provides that "an officer retired under
this section is entitled to retired pay computed under [10 U.S.C. § 6333)." 10 U.S.C. § 6323(e).
Nonetheless, as the court has previously explained, Section 6323 is not relevant to Mr. Bias'
claims because he is "not claiming entitlement to retired pay." Bias, 124 Fed. CL at 666 n.4.
Mr. Bias' claims are instead based upon his alleged entitlement to back pay and allowances, and
are thus governed by the Militaiy Pay Act.
6The

date will be omitted from fu1iher citations to the transcript of the hearing held on
April 20, 2017.
6

consequences of that notice, including his retmn to active duty on August 1, 2009, see AR 2-32,
and the Marine Corps' subsequent attempt to recover Mr. Bias' retirement pay, see AR 10-109.
Such events are not barred by the statute of limitations. 7

C. Mr. Bias' 2010 Retirement
The court does not have jurisdiction, however, over Mr. Bias' 2010 retirement claim
because it is based upon allegations of retaliation and privacy violations. See Second Am.
Comp!. ifif 126-28. Mr. Bias' retaliation claim arises under the Military Whistleblower
Protection Act ("MWPA"), Pub. L. No. 100-456, § 846, 102 Stat. 1918, 2027 (1988) (codified at
10 U.S.C. § 1034). The court lacks jurisdiction over such a claim. See, e.g., Klingenschmitt v.
United States, 119 Fed. Cl. 163, 185 (2014) (explaining that the court lacks jurisdiction over
whistle blower retaliation claims because the MWP A's "comprehensive scheme establishes that
Congress did not intend to provide plaintiffs with a private cause of action to enforce their rights
under the MWPA in court") (citations omitted), a.ff'd, 623 Fed. Appx. 1013 (Fed. Cir. 2015);
Santana v. United States, 127 Fed. Cl. 51, 56 (2016) (same), appeal filed, No. 16-2435 (Fed.
Cir.). 8 Additionally, Mr. Bias alleges privacy violations under the Privacy Act of 1974, Pub. L.
No. 93-579, § 3, 88 Stat. 1896, 1897 (1974) (codified at 5 U.S.C. § 552a), but this court lacks
jurisdiction because the Privacy Act vests jurisdiction in the United States District Courts. See 5
U.S.C. § 552a(g)(l); Parker v. United States, 77 Fed. Cl. 279, 291-92 (2007), a.ff'd, 280 Fed.
Appx. 957 (Fed. Cir. 2008).

7

Mr. Bias asserts that his claims are not barred by the statute of limitations due to the
"half-a-loaf doctrine." Pl.'s Cross-Mot. at 9. The half-a-loaf doctrine provides that, under
particular circumstances, the court can review a decision by a corrections board granting partial
relief, to determine whether full relief is warranted. See Martinez, 333 F.3d at 1325 (Plager, J.,
dissenting) (citing DeBow v. United States, 434 F.2d 1333, 1335 (Ct. Cl. 1970)). However, there
is significant doubt about the viability of the doctrine after Martinez, where the court of appeals
held that a petition to a corrections board does not affect the date of accrual. Martinez, 333 F.3d
at 1314-15. Regardless, the court need not consider the doctrine because the statute of
limitations does not bar Mr. Bias' claims for the reasons discussed above.
8

Mr. Bias has also filed suit in district court under the False Claims Act, Pub. L. No. 97258, 96 Stat. 877, 978 (1982) (codified at 31 U.S.C. §§ 3729-30), against the retired senior
enlisted man assigned to Amite High School, the school's principal, and the school board. That
suit includes a retaliation claim. See generally United States ex rel. Bias v. Tangipahoa Par.
Sch. Bd., No. CIV.A. 12-2202, 2014 WL 1512001 (E.D. La. Mar. 26, 2014) (dismissing Mr.
Bias' retaliation claims), reversed in part, 816 F.3d 315 (5th Cir. 2016) (reversing the dismissal
of Mr. Bias' retaliation claim against the school board and remanding the case). That case
reportedly has been scheduled for trial. Hr' g Tr. 20: 12-16.
The events between Mr. Bias and the senior enlisted man have been discussed in greater
detail in a suit filed by the senior enlisted man, who brought a claim in district court to challenge
the Navy's decision to decertify him as an instructor. See Foster v. Mabus, 103 F. Supp. 3d 95,
98-105 (D.D.C. 2015).

7

STANDARD FOR DECISION
The court reviews the decision of a military board under a deferential standard,
examining whether the decision was "arbitrary, capricious, contrary to law, or unsuppmted by
substantial evidence." Barnick v. United States, 591 F.3d 1372, 1377 (Fed. Cir. 2010) (citing
Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005)). The patty challenging the
decision must show that there is "cogent and clearly convincing evidence" for reversal. Wronke
v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986) (quoting Dorl v. United States, 200 Ct. Cl. 626,
633 (1973)). "As long as the Board's action comported with the procedural standards mandated
by statute or regulation, considered the relevant evidence, and reached a reasonable conclusion,
the court will not disturb the Board's decision." Verbeckv. United States, 118 Fed. Cl. 420, 424
(2014) (citing Melendez Camilo v. United States, 642 F.3d 1040, 1045 (Fed. Cir. 2011); Helferty
v. United States, 113 Fed. Cl. 308, 316 (2013), aff'd, 586 Fed. Appx. 586 (Fed. Cir. 2014)).

ANALYSIS
Mr. Bias argues that the Board's decision to provide only de facto retirement status,
without more, was arbitrary and capricious because it "failed to correct plain legal error." Pl. 's
Cross-Mot. at 17. In this respect, the Board considered the relevant evidence pertaining to Mr.
Bias' claims and reached a reasonable conclusion that corrected the Mat'ine Corps' error. The
Board explained that Mr. Bias "erroneously retired on 1 November 2006 as the result of an
administrative error based on [a] miscalculation of qualifying active duty service credit." AR 15.9 Because Mr. Bias relied on that error when he retired in 2006, de facto retirement was
appropriate and the Board therefore provided that Mr. Bias' "service record should be corrected
to reflect retired status from 1 November 2006 to August 2009, with entitlement to retired pay
during that period." AR 1-6. 10 The Board has the authority to grant that type of equitable relief.
See 10 U.S.C. § 1552.

9The

Board noted that Mr. Bias' 2006 ankle injury did not affect the propriety of the 2006
retirement because "it only disqualified [Mr. Bias] from flying and not military service." AR 15.
10

The Board also considered Mr. Bias' request for consideration for a promotion, AR 1-2,
but denied the request, AR 1-4. Because Mr. Bias was de facto retired as ofNovember 1, 2006,
the date he in fact requested retirement, he would not have been entitled to consideration for the
promotion. AR 1-6 to -7.
Additionally, regarding the 2010 retirement, the Board determined that no relief was
warranted because "the evidence did not support the contention that the 1 November 20 I 0
retirement was either unjust or erroneous." AR 1-5. It also noted that the 2010 retirement was
"consistent with regulatory and statutory guidance." AR 1-6. The Board reached that conclusion
after considering Mr. Bias' claims of"[w]histleblower retaliation, undue command influence,
possible abuse of authority, possible violation of privacy rights, or any combination of the
aforementioned harms." AR 1-5.
8

The Board's decision is consistent with the recommendation it received from DFAS. See
AR 2-32 to -36. In its advisory opinion, DFAS considered whether Mr. Bias "should have been
returned to active duty" for the 2006 to 2009 time period. AR 2-34. Ultimately, DFAS
recommended de facto retirement, rather than return to active duty, because it was "just and fair
that [Mr. Bias] be allowed to keep the 'retired pay' he received during this en-oneous retirement
phase." AR 2-36. DFAS explained that the circumstances of Mr. Bias' 2006 retirement and
2009 notice "fit[] squarely into the De Facto Retired Member doctrine articulated by the
Comptroller General" and later applied by the Army Board for the C01Tection of Military
Records. See AR 2-33 to -34. The doctrine would also allow Mr. Bias to extinguish his debt,
which might not occur if he instead were returned to active duty or be deemed to have returned
to active duty. See AR 2-34.
Mr. Bias responds that the Board's relief is insufficient, asserting that the Board must
"restore [him] to his pre-error status" by reinstating him to active duty effective November 1,
2006 with back pay and benefits. See Pl. 's Cross-Mot at 17-20. In support, he relies on
precedent where partial relief was found to be inadequate. See id For example, in Yee v. United
States, 512 F.2d 1383 (Ct. Cl. 1975), the plaintiff was erroneously discharged, reinstated five
years later, and then considered but not selected for a promotion four months after reinstatement.
Id. at 1384. A corrections board determined that the consideration for promotion was unjust
because the five-year period between plaintiffs discharge and reinstatement had created a gap in
his officer effectiveness reports ("OER"). Id. at 1384-85. The corrections board provided partial
relief by removing the non-selection from plaintiffs records, but the court found that such relief
was insufficient because it "failed either to place an adequate explanation in plaintiffs record of
the 5-year gap in OERs (which was admittedly caused by Air Force en-or) or to withhold
plaintiffs name from submission to Selection Boards until sufficient time had elapsed for
plaintiff to accumulate OERs." Id. at 1386.
Here, in contrast, the Board's decision to apply de facto retirement as ofNovember 1,
2006 fully addresses the error committed by the Marine Corps regarding Mr. Bias' retirement
eligibility. Because Mr. Bias "requested retirement on 1 November 2006, and anticipated receipt
of retirement pay beginning the same date," the Board determined that a "de facto retirement
addressed the harm caused by the administrative error." AR 1-6. By providing retirement pay
from the date Mr. Bias retired, the Board placed Mr. Bias "in the position he believed himself to
be in at the time of [his first] retirement request." Id. The Board concluded that no further relief
was therefore warranted. See id. Mr. Bias has failed to demonstrate that the Board erred in
reaching that conclusion. In fact, another decision relied upon by Mr. Bias provides supp01t for
the Board's decision. See Hamrick v. United States, 96 F. Supp. 940, 943 (Ct. Cl. 1951) (holding
that a retiring board erroneously released plaintiff from active duty, and that a full con-ection of
such error entitled plaintiff to retirement pay "from the time his active duty pay ceased").
Thus, Mr. Bias has failed to show that the Board's decision was arbitrary, capricious,
contrary to law, or unsupported by substantial evidence. 11

11 Accordingly,

the cou1t need not address Mr. Bias' additional requests for injunctive
relief, such as consideration for promotion. See Second Am. Comp!. at 10.
9

CONCLUSION

For the reasons stated, the government's motion to dismiss for lack of subject matter
jurisdiction is GRANTED IN PART and DENIED IN PART, the government's motion for
judgment on the administrative record is GRANTED, and Mr. Bias' cross-motion for judgment
on the administrative record is DENIED. The clerk shall enter judgment in accord with this
disposition.
No costs.
It is so ORDERED.

Charles F. Letlow
Judge

10