Miller v. United States

In the United States Court of Federal Claims
No. 14-02 C

(Filed January 26, 2015)

* * * * * * * * * * * *** *
DELROY E. MILLER, JR., * Military Pay; Jurisdiction for
* Monetary Claim Related to
Plaintiff, * Promotion That Was Allegedly
* Delayed Improperly; RCFC
v. * 12(b)(6); Remand Preferred to
* Supplementation of the
THE UNITED STATES, * Administrative Record.
*
Defendant. *
* * * * * * * * * * * * * *

Cynthia A. Dill, Portland, ME, for plaintiff.

Meen Geu Oh, United States Department of Justice, with whom were Joyce
R. Branda, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director,
Reginald T. Blades, Jr., Assistant Director, Washington, DC, for defendant.
Major Nicole J. Fish, United States Army Litigation Division, Fort Belvoir, VA,
of counsel.

__________________________

OPINION

Bush, Senior Judge.

This military pay case is before the court on defendant’s motion to dismiss,
or, in the alternative, motion for judgment upon the administrative record, filed
under Rules 12(b)(1), 12(b)(6) and 52.1 of the Rules of the United States Court of
Federal Claims (RCFC).1 Defendant’s motion has been fully briefed and is ripe
for decision. Plaintiff’s pending motion to supplement the administrative record
has also been fully briefed. Oral argument was neither requested by the parties nor
deemed necessary by the court. For the reasons stated below, defendant’s motion
is granted in part and denied in part, and plaintiff’s motion is denied as moot.

BACKGROUND2

In this suit, plaintiff Delroy E. Miller, Jr. seeks a change in his military
records and accompanying monetary relief. Although now a major in the United
States Army Reserves, he was serving as a captain at the time of the incidents
which give rise to his suit; for this reason, the court will refer to plaintiff as
Captain Miller or plaintiff throughout the background section of the opinion. The
court limits its discussion of background facts to those most essential to the
resolution of defendant’s dispositive motion and plaintiff’s motion to supplement
the administrative record.

I. Successful Career as an Officer

Captain Miller has had a long and successful career as an officer and he was
not discharged as a result of the controversy examined here. The overwhelming
majority of his performance ratings (Officer Evaluation Reports (OERs), or similar
reports) by superior officers, both before and after Captain Miller’s assignment
highlighted here, have been glowing. See AR at 145-46, 156-57, 170-71, 177-78,
190-91, 200-01, 207-08, 212-13, 225-28, 271-72, 282-83, 320-21, 323-28, 333-34,
339-40, 345-46, 354-55. He has received numerous commendations and has
served his country in a number of settings including Afghanistan. Compl. ¶¶ 3, 6.

II. Negative Performance Evaluation in Illinois

1
/ Although the motion filed by defendant relies only on RCFC 12(b)(1) and RCFC 52.1,
the government’s reply brief references RCFC 12(b)(6) as well. See Def.’s Reply at 2.
2
/ The facts upon which the parties rely are undisputed unless otherwise noted. The
administrative record (AR) filed by defendant contains exhibits which are indexed, tabbed and
consecutively paginated. The exhibits attached to the complaint are not consecutively paginated;
the court has supplied page numbers for multiple-page exhibits attached to the complaint.

2
 Plaintiff’s first command, as a first lieutenant, was in the U.S. Virgin
Islands; he is a native of the Virgin Islands, and it was there that he entered the
service. AR at 49. He received his promotion to captain on March 20, 2001. Id.
at 294. His first command as a captain was of the 739th Engineer Company,
which was part of the 88th Regional Support Command, known today as the 88th
Regional Readiness Command; his company was located in Granite City, Illinois.
This command assignment began in October 2002. Compl. ¶¶ 8, 16; AR at 12.

According to Captain Miller, the 739th was in disastrous shape when he
arrived:

When Miller arrived at the 739th, he found a broken unit
in need of massive reform and order. Soldiers had
deserted, supplies were not accounted for and the
physical condition of the buildings, equipment, facilities
and grounds were deplorable. An investigation of the
conditions of the unit concluded it was vastly
unprepared, mismanaged and unfit.

Compl. ¶ 9. He reported many problems to his superiors; eventually his reports
were denigrated as “whining.” Id. ¶ 15. Captain Miller characterizes these early
months of his command as

three months of documented attempts to address blatant
disregard to Army regulations, maltreatment of soldiers
and racial inequities, among other things[.] [T]he 88th
Regional Readiness Command (“RRC”) appointed an
investigation officer and a report of survey was
completed. [Although] [t]he final report of the RRC
investigation was not shared with Miller, . . . he believes
battalion commanders were faulted for their negligence.

Id. ¶¶ 16-17.

Captain Miller also championed the cause of a service-member who had
been demoted prior to his arrival. Compl. ¶¶ 11, 13. Her restoration to rank was,
however, held up by administrative delays at the battalion command level. Id.

3
Captain Miller describes the excuses provided for the delays as “questionable.”
Id. ¶ 11. He eventually accompanied the service-member to the 88th Regional
Readiness Command Inspector General’s office “to address what appeared to be
intentional stalling on the part of the battalion.” Id. ¶ 13. His superiors wrote him
an email a few days later which criticized him for focusing on the wrong things.
AR at 56.

The 739th was ordered to mobilize to deploy to Iraq in late 2002. Compl.
¶ 12. This mobilization gave rise to a number of time-consuming tasks for Captain
Miller. Id. ¶¶ 13, 15, 19-20, 24-25, 27. A key staffer in his command was re-
assigned to a different unit in the midst of mobilization. Id. ¶ 24. At the same
time, the battalion commander and group commander visited the 739th on January
22, 2003 and “took over Miller’s formation.” Id. ¶ 28. According to the
complaint, Captain Miller’s superiors used profanity and other derogatory
comments to and about plaintiff in the presence of his soldiers. Id. ¶ 29.

The specific oral criticisms delivered on January 22, 2003 that are noted in
the complaint include: (1) blaming Captain Miller “for the poor shape of the unit
and its lack of readiness”; (2) accusing Captain Miller of not being “engaged”;
and, (3) asking Captain Miller why he shouldn’t be fired. Compl. ¶ 30. Captain
Miller noted a difference the next day in how he was treated by his soldiers. Id.
¶ 33. Also the next day, January 23, 2003, plaintiff asked to speak to the battalion
commander privately and said something to the effect of “Sir, I cannot work for
you if you continue to disrespect me with profanity.” Id. Captain Miller was
relieved of his command that day, was ordered not to deploy to Iraq, and was
ordered to report to a lesser-ranked officer in another unit in the area. Id.
¶¶ 34-35.

The administrative record contains one document which memorializes the
January 2003 events described in the complaint – a negative OER, signed in
August 2003 by Captain Miller’s battalion commander and group commander.
AR at 280-81. Plaintiff also asks the court to consider another document not
contained in the administrative record – a “Revocation Order” dated January 22,
2003 which cancelled Captain Miller’s deployment to Iraq. Compl. Ex. A. In
essence, plaintiff alleges that the Revocation Order, dated January 22, 2003
(which predates the “I cannot work for you” statement uttered by Captain Miller
on January 23, 2003) calls into question his superiors’ stated rationale for

4
removing Captain Miller from his command.

The Revocation Order contains no rationale but merely revokes the
mobilization order that would have sent Captain Miller to Iraq, by way of Fort
Leonard, Illinois, on January 24, 2003. Compl. ¶ 23, Ex. A. Although plaintiff is
on the distribution list for the Revocation Order, id. Ex. A, there is no evidence
that plaintiff received the order or, for that matter, that the Revocation Order was
ever considered in any subsequent appeal of his superiors’ actions. Plaintiff
alleges in a brief that seeks supplementation of the administrative record that the
Revocation Order was not disclosed by the government until September 2013
when the Army responded to a Freedom of Information Act (FOIA) request from
plaintiff’s counsel. Pl.’s Supp. Reply at 1; AR at 1.

The OER rating Captain Miller’s performance as commander of the 739th
from June 29, 2002 until he was relieved of that command on January 23, 2003 is
quite negative. His superiors’ view of his prospects for continued service are
gloomy: “No Command Assignment, No Staff Assignment, Not recommended for
continued service in the Army.” AR at 281. Captain Miller is faulted for
numerous deficits: “lack of professional and moral obligation to duty”; “did not
focus on the tasks necessary to prepare his company for deployment when it was
alerted and mobilized”; “lack of loyalty to his entire chain of command”;
“displayed poor judgment and an inability to make decisions”; “lack of
interpersonal and managerial skills in coordinating actions of his officers and
NCO’s at the time of mobilization”; “could not initiate the required actions to
mobilize the 739th Engineer Company”; “lack[] [of] leadership qualities necessary
to lead soldiers into a combat situation.” Id.

Specifically, the raters’ description of the incidents of January 23, 2003
interprets Captain Miller’s “I cannot work for you” statement in this manner:

On 23 January 2003, CPT Miller demonstrated his lack
of moral obligation to duty. He requested, from 303rd
Group Commander, COL Jerry D. De La Cruz, Jr., that
he be relieved of the duties and responsibilities as
Commander, 739th Engineer Company. He also
requested relief from deployment with the unit.

5
AR at 281. According to this OER, Captain Miller volunteered to be relieved of
duty and his request was granted:

CPT Miller volunteered to be relieved of his command
and was unable to carry out command duties. I directed
the Relief for Cause of CPT Miller with the approval of
the 88th Regional Support Command Commanding
General.

Id. The court now turns to the history of Captain Miller’s efforts to obtain redress
for what he believes were unjust personnel actions related to his command of the
739th.

III. Captain Miller Remains in the Army But Cannot Convince the Army to
Remove the Negative OER from His Personnel Folder

Captain Miller went before an investigatory board which met for a full day
on July 31, 2004 and which inquired whether the “relief for cause” which removed
him from command of the 739th indicated that plaintiff should not be retained in
the Army. AR at 244-46. The impact of the negative OER on Captain Miller’s
prospects for promotion was not the concern of the retention board. Id. at 121.
The retention board found that there was insufficient evidence regarding almost all
of the contentions presented in the negative OER which chronicled the events of
January 2003:

1. There is insufficient evidence to support a finding
that the Respondent displayed poor judgment and
inability to make decisions.
2. There is insufficient evidence to support a finding
that the Respondent demonstrated lack of interpersonal
and managerial skills in coordinating the actions of his
officers and noncommissioned officers at a time of
mobilization.
3. There is insufficient evidence to support a finding
that the Respondent requested relief from his command
in an impending deployment for war.
4. There is insufficient evidence to support a finding

6
 that the Respondent requested to be relieved from his
command, and/or failed to prepare his command for
mobilization and deployment during a crucial time as his
unit prepared for war.

Id. at 246. Ultimately, the retention board recommended that Captain Miller “be
retained in the military service and reassigned to a unit not in the [group
commanded by one of the raters on his negative OER].” Id. This recommendation
was approved by General Michael W. Beasley of the 88th Regional Support
Command on October 3, 2004. Id. at 247. Despite a lack of evidence supporting
the OER’s derogatory contentions, the negative OER itself remained a part of
plaintiff’s military record. Id. at 108.

In early 2005 Captain Miller was reassigned to a post in South Carolina and
later that year he began a tour of service in Afghanistan. AR at 273; Compl. ¶ 3.
Although Captain Miller was able to continue with his career in the Army, his
efforts to convince the Army to remove the negative OER from his personnel file
were not rewarded with success, despite persistent requests for review submitted
by plaintiff. For example, General Beasley reviewed the negative OER in June
2005 and found it to be “complete and correct as written.” AR at 240.

On August 8, 2005, Captain Miller formally appealed the negative OER.
AR at 233. He alleged that the raters for his OER had demonstrated “the
willingness to present false and inaccurate information, even under oath.” Id. at
235. His appeal was assigned “third priority” and took some time to be resolved.
Id. at 103. In the interim, on July 3, 2007, he was notified that he had been passed
over for promotion to the rank of major. Id. at 223.

On January 10, 2008, Captain Miller’s appeal of the negative OER was
denied. AR at 218. The denial decision was issued by the Officer Special Review
Board (OSRB). Id. at 116. The OSRB found that “the materials submitted
showed the applicant admitted notifying his chain of command that he could no
longer work for them. The [OSRB] found the chain of command agreed with his
request and relieved him of his command.” Id. at 119. The OSRB also “failed to
find any evidence to support [Captain Miller’s] claims that the [negative] OER is
not factual and contains false or inaccurate information.” Id.

7
 Further, the OSRB discounted the findings of the 2004 investigatory board
that found “insufficient evidence” to support the negative OER allegations which
might have justified removing Captain Miller from the Army. According to the
OSRB, the role of that investigatory board was “to determine whether an officer
should be retained in the service[, not to] investigate other documents or claims.”
Id. at 121. Overall, the OSRB denied Captain Miller’s appeal because the burden
of proof was on Captain Miller and because he had failed to overcome the
presumption of regularity accorded to the OER. Id.

Undeterred, Captain Miller pursued other avenues of redress. By late
November 2008, he described himself as “a two time non-select [for promotion] to
Major, facing a statutory removal from Active Duty on 11 December 2008.” AR
at 48. On November 25, 2008, Captain Miller requested a “commander’s inquiry”
from his then current commander in Georgia into the validity of the negative OER
in his personnel records. Id. That commander obliged and was supportive of
plaintiff’s request to remove the negative OER. Id. at 216 (finding the OER to be
“invalid” and suggesting that plaintiff appeal his OER). Unfortunately for Captain
Miller, he had already exhausted that avenue of relief. See AR at 20 (suggesting
that the appeal of a negative OER to the OSRB was the course of action that
would normally have followed a commander’s inquiry, not preceded it).

Captain Miller apparently also asked for a congressional inquiry into his
situation. AR at 23 (application for relief containing plaintiff’s assertion that from
“2003 thru [late 2009], I have submitted requests for commander’s assistance,
submitted appeal to [the OSRB], congressional inquiries”). Finally, on December
4, 2009, Captain Miller sought removal of the negative OER from his personnel
records by applying for relief from the Army Board for Correction of Military
Records (ABCMR or Board).3 See id. Tab 6. Before the ABCMR rendered its
decision, plaintiff was promoted to major on June 3, 2010. Id. at 186. The
substance of his application for relief, and the decision of the ABCMR which was
communicated to plaintiff on November 23, 2010, will be discussed in detail in the
analysis section of this opinion. The ABCMR denied all relief to plaintiff.

IV. Complaint and Motion to Supplement the Administrative Record

3
/ Captain Miller had approached the ABCMR twice before, on different matters. Those
appeals contested what he regarded as tardy promotions to a higher rank. See AR Tabs 9-13.

8
 Plaintiff filed a complaint in this court on January 2, 2014. Once defendant
had filed a motion to dismiss all counts of the complaint based on both
jurisdictional grounds as well as on the administrative record, plaintiff filed a
motion for leave to supplement the administrative record with Exhibit A which
was attached to plaintiff’s complaint. This exhibit is the Revocation Order
discussed supra, which on January 22, 2003 revoked the order mobilizing Captain
Miller for a tour in Iraq. Plaintiff’s motion will be resolved in the analysis section
of this opinion.

DISCUSSION

I. Standards of Review

A. RCFC 12(b)(1)

In rendering a decision on a motion to dismiss for lack of subject matter
jurisdiction pursuant to RCFC 12(b)(1), this court must presume all undisputed
factual allegations to be true and construe all reasonable inferences in favor of the
plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other
grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Reynolds v. Army & Air
Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). However, plaintiff bears
the burden of establishing subject matter jurisdiction, Alder Terrace, Inc. v. United
States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors
Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)), and must do so by a
preponderance of the evidence, Reynolds, 846 F.2d at 748 (citations omitted). If
jurisdiction is found to be lacking, this court must dismiss the action. RCFC
12(h)(3).

It is important not to confuse jurisdiction with justiciability, particularly in
military pay cases. See, e.g., Murphy v. United States, 993 F.2d 871, 872 (Fed.
Cir. 1993) (noting that “[j]usticiability is distinct from jurisdiction” and
commenting that “[j]usticiability is a particularly apt inquiry when one seeks
review of military activities”) (citation omitted). Even if a military pay
controversy is within this court’s jurisdiction, it may not be justiciable – there may
be no relief that the court can devise without intruding into the military’s
particular sphere of responsibility. Id. (citing Orloff v. Willoughby, 345 U.S. 83,
93-94 (1953)). The inquiry into justiciability is generally thought to fall more

9
under RCFC 12(b)(6) than under RCFC 12(b)(1), although this is the subject of
some dispute. See, e.g., Cameron v. United States, 106 Fed. Cl. 551, 559 (2012)
(“Where a claim is nonjusticiable, the appropriate action is for a court to dismiss
the claim for failure to state a claim upon which relief can be granted.” (citing
Murphy, 993 F.2d at 872)), rev’d on other grounds, 550 F. App’x 867 (Fed. Cir.
2013); Gallucci v. United States, 41 Fed. Cl. 631, 645 (1998) (dismissing a
nonjusticiable military claim for failure to state a claim); see also Lindsay v.
United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002) (stating that “courts will
refuse on jurisprudential grounds to review [nonjusticiable military] decisions,
even if the court has jurisdiction to do so”). But see Spellissy v. United States, 103
Fed. Cl. 274, 276 n.1 (2012) (noting that this court’s caselaw is not clear as to
whether the justiciability inquiry falls under RCFC 12(b)(1) or RCFC 12(b)(6)).

B. RCFC 12(b)(6)

When considering a motion to dismiss under RCFC 12(b)(6), “the
allegations of the complaint should be construed favorably to the pleader.”
Scheuer, 416 U.S. at 236. The court must inquire, however, whether the complaint
meets the “plausibility” standard described by the United States Supreme Court,
i.e., whether it adequately states a claim and provides a “showing [of] any set of
facts consistent with the allegations in the complaint.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 560, 563 (2007) (citations omitted). Plausibility is a
context-specific inquiry. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)
(Iqbal) (“Determining whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.”) (citation omitted). It is well-settled that
a complaint should be dismissed under RCFC 12(b)(6) “when the facts asserted by
the claimant do not entitle him to a legal remedy.” Lindsay, 295 F.3d at 1257.

C. RCFC 52.1(c)

RCFC 52.1(c) provides for judgment on the administrative record. To
review a motion under RCFC 52.1(c), the court asks whether, given all the
disputed and undisputed facts, a party has met its burden of proof based on the
evidence in the record. Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed.
Cir. 2005). The court must make fact findings where necessary. Id. The
resolution of a motion filed under RCFC 52.1(c) is akin to an expedited trial on

10
the paper record. Id.

D. Review of Decisions of Military Records Correction Boards

The court does not review the issue before a board for correction of military
records de novo; rather, this court “will not disturb the decision of the corrections
board unless it is arbitrary, capricious, contrary to law, or unsupported by
substantial evidence.” Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir.
2005) (citing Haselrig v. United States, 333 F.3d 1354, 1355 (Fed. Cir. 2003)).
Plaintiff’s burden is to show by “‘cogent and clearly convincing evidence’” that
the decision of the board fails this standard. Wronke v. Marsh, 787 F.2d 1569,
1576 (Fed. Cir. 1986) (quoting Dorl v. United States, 200 Ct. Cl. 626, 633 (1973)).
Plaintiff must also overcome the presumption of regularity which attaches to the
actions of the board. See, e.g., Melendez Camilo v. United States, 642 F.3d 1040,
1045 (Fed. Cir. 2011) (“We . . . presume that the Correction Board performed its
function according to the regulations and considered all of the [applicant’s]
records.”) (citations omitted); Armstrong v. United States, 205 Ct. Cl. 754, 762-63
(1974) (noting that “[p]resumption favors the validity of official military acts,”
including those of a military records correction board, absent evidence to the
contrary) (citations omitted).

Although many formulations of the arbitrary and capricious standard of
review exist, when the standard is applied to military pay cases in this circuit the
court is largely concerned with whether the corrections board’s decision is
procedurally fair and supported by substantial evidence. Heisig v. United States,
719 F.2d 1153, 1156 & n.12 (Fed. Cir. 1983) (citation omitted). The corrections
board’s decision must also be sufficiently detailed for the court to ascertain the
reasoning behind the denial of relief to the applicant. See Buchanan v. United
States, 621 F.2d 373, 383 (Ct. Cl. 1980) (“The burden that would be placed upon
plaintiff in this court would be almost impossible if the correction board were
permitted . . . to cast aside the issues without discussion or reason and merely state
that insufficient evidence has been presented to indicate probable injustice or
material error.”). The court must additionally consider whether the corrections
board has failed to correct “plain legal error.” Dodson v. United States, 988 F.2d
1199, 1204 (Fed. Cir. 1993) (citations omitted).

The court also considers whether an injustice has occurred, because “‘when

11
a correction board fails to correct an injustice clearly presented in the record
before it, it is acting in violation of its mandate.’” Roth v. United States, 378 F.3d
1371, 1381 (Fed. Cir. 2004) (quoting Yee v. United States, 512 F.2d 1383, 1387
(Ct. Cl. 1975)). In cases of clear injustice, the board has a moral duty to “‘take
steps to grant thorough and fitting relief.’” Id. (quoting Caddington v. United
States, 178 F. Supp. 604, 607 (Ct. Cl. 1959)). When a board does not act to
redress clear injustice, its decision is arbitrary and capricious and must be
overturned upon review by this court. Yee, 512 F.2d at 1387 (citing Skaradowski
v. United States, 471 F.2d 627 (Ct. Cl. 1973) and Duhon v. United States, 461 F.2d
1278 (Ct. Cl. 1972)).

E. Supplementation of the Administrative Record

In Axiom Resource Management, Inc. v. United States, 564 F.3d 1374 (Fed.
Cir. 2009), the United States Court of Appeals for the Federal Circuit identified
the acceptable circumstances under which an administrative record may be
supplemented. The Axiom panel criticized a decision of this court which permitted
supplementation of the administrative record in a bid protest, and criticized the
trial court’s over-broad reliance on Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir.
1989), an opinion which provides a list of justifications for the supplementation of
the administrative record of an agency action. Axiom, 564 F.3d at 1379-81.
Axiom, the seminal case on record supplementation in this circuit, is precedent
binding on this court.

The court notes that the Axiom panel adopted a restrictive standard for
supplementation of the administrative record, and favorably cited Murakami v.
United States, 46 Fed. Cl. 731 (2000), aff’d, 398 F.3d 1342 (Fed. Cir. 2005).
Axiom, 564 F.3d at 1380. The Axiom standard for supplementation of the
administrative record is a direct quotation from Murakami, stating that
“supplementation of the record should be limited to cases in which ‘the omission
of extra-record evidence precludes effective judicial review.’” Id. (quoting
Murakami, 46 Fed. Cl. at 735). The Federal Circuit relied on the cases cited by
this court in Murakami to conclude that “[t]he purpose of limiting review to the
record actually before the agency is to guard against courts using new evidence to
‘convert the “arbitrary and capricious” standard into effectively de novo review.’”
Id. (quoting Murakami, 46 Fed. Cl. at 735 and citing Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 743-44 (1985) (Florida Power); Camp v. Pitts, 411 U.S.

12
138, 142 (1973)). The thrust of the Axiom decision, and Murakami, is that this
court must exercise restraint when considering whether or not to supplement the
administrative record. See id. (favoring a “more restrictive approach” and
questioning the vitality of Esch) (citations omitted); Murakami, 46 Fed. Cl. at 735
(stating that the construction of the Esch justifications for allowing
supplementation of an administrative record should be “‘extremely limited’”)
(citations omitted).

In military pay cases before this court, an alternative to supplementation of
the administrative record is to remand the case to the corrections board whose
decision is being reviewed, so that the board may render a decision on a complete
record. E.g., Frey v. United States, 112 Fed. Cl. 337, 348 (2013); Albino v. United
States, 93 Fed. Cl. 405, 409 (2010); Riser v. United States, 93 Fed. Cl. 212, 218
(2010). Probative evidence proffered by a military pay plaintiff to supplement the
administrative record of board proceedings should, as a general rule, trigger a
remand from this court to the corrections board. See, e.g., Walls v. United States,
582 F.3d 1358, 1367 (Fed. Cir. 2009) (“‘[T]he proper course, except in rare
circumstances, is to remand to the agency for additional investigation or
explanation.’” (quoting Florida Power, 470 U.S. at 744)). But see Joslyn v.
United States, 110 Fed. Cl. 372, 388 (2013) (detecting some tension between the
statement of the law in Walls and prior precedent permitting the consideration of
new evidence in military pay cases). There are, nonetheless, exceptional
circumstances where the court may consider new evidence that was not before the
corrections board, Walls, 582 F.3d at 1368 n.13 (citing Metz v. United States, 466
F.3d 991, 998 (Fed. Cir. 2006)), particularly where bad faith or bias is alleged to
have tainted the proceedings under review, Joslyn, 110 Fed. Cl. at 388; Riser, 93
Fed. Cl. at 217-18. In any case, remand is not required when the material
proffered to supplement the administrative record is not probative. E.g., Holmes v.
United States, 98 Fed. Cl. 767, 780 (2011).

II. Analysis

Major Miller requested three general types of relief from the ABCMR:
(1) he asked that the negative OER be removed from his file (to be replaced by a
notice that this period of time was unrated); (2) he asked that his record be re-
submitted for consideration for major among the 2006 candidates for promotion to
major; and, (3) he asked that his promotion year be corrected (apparently to 2006).

13
AR at 22. Among many grounds for relief, the record before the ABCMR showed
that plaintiff alleged that he had been the subject of bias, reprisal and retribution.
Id. at 28, 39, 42, 60. According to plaintiff, one of the key facts in January 2003
was that the group commander seized upon plaintiff’s “I cannot work for you”
statement and used that to support his statement in the negative OER that plaintiff
volunteered to be relieved of his command and to not deploy to Iraq. Id. at 23,
48-49.

The ABCMR was not persuaded by the evidence before it that the version
of events in the negative OER was untrue or incorrect. The issue of possible bias
and retaliation against Captain Miller was noted, AR at 16, but was not discussed
in the Board’s analysis of his claims. The Board mentioned the requirement that
clear and convincing evidence be proffered to overturn a negative OER. Id. at 17.
The Board recounted the investigations that had reviewed the negative OER and
surrounding circumstances. The Board found that “the weight of evidence
supports the determination of the rater, senior rater, and the first [General Officer]
in the chain of command, all of whom contend [plaintiff] did not perform to
standard and lacked leadership and sound judgment.” Id. at 19. In the end, the
ABCMR agreed with the OSRB that the negative OER was valid and should
remain in Major Miller’s personnel file. Id. at 20.

The Revocation Order dated January 22, 2003 is not mentioned in the
ABCMR’s report. Certainly, Major Miller did not mention the order in his
application for relief, and it is does not appear that the order was present in the
records before the ABCMR. See AR at 12-19 (omitting any mention of the
Revocation Order among the evidence considered by the Board). Any specific
reference to the events of January 2003 focuses on the events of January 23, 2003,
when plaintiff made his “I cannot work for you” statement, see AR at 11-16, 19-
20, and not on the events of January 22, 2003, the previous day, when his
commanders appear to have revoked his orders to deploy to Iraq. Further, there is
no analysis of how the Board weighed criticisms of plaintiff’s work performance,
as compared to how the Board weighed plaintiff’s alleged requests to be relieved
of his command and to be excused from deployment to Iraq. It is unclear whether
the Board’s finding that the negative OER was valid would survive a deeper
analysis into the events of January 2003 which would include the Revocation
Order as relevant evidence.

14
 There are six counts in the complaint filed by Major Miller, which will be
discussed in more detail infra. Plaintiff contests the procedural fairness of the
ABCMR proceedings and seeks monetary damages of $90,000, retroactive
promotion to major (in 2006 instead of in 2010), retroactive promotion to
lieutenant colonel (in 2010), removal of the negative OER from his personnel
records, additional pay, and attorney’s fees. Compl. at 9-11. The court now turns
to a review of the jurisdictional challenges to Major Miller’s claims raised by
defendant.4 Once the jurisdictional challenges have been resolved, the court will
turn to defendant’s arguments brought pursuant to RCFC 12(b)(6) and those
requesting judgment on the administrative record pursuant to RCFC 52.1.

A. Jurisdiction

Pursuant to the Tucker Act, the United States Court of Federal Claims 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. § 1491(a)(1) (2006). The Tucker Act, however, “does not create any
substantive right enforceable against the United States for money damages. The
Court of Claims has recognized that the Act merely confers jurisdiction upon it
whenever the substantive right exists.” United States v. Testan, 424 U.S. 392, 398
(1976) (citation omitted). A plaintiff coming before the United States Court of
Federal Claims, therefore, must also identify a separate provision of law
conferring a substantive right for money damages against the United States. Todd
v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) (citing Testan, 424 U.S. at
398). Further, except in circumstances not relevant here, the United States Court
of Federal Claims may consider nonmonetary claims only if they are tied and
subordinate to a claim for money damages. See, e.g., Voge v. United States, 844
F.2d 776, 781 (Fed. Cir. 1988) (citing cases).

1. Count I – APA Claim

The first count in the complaint relies on the Administrative Procedure Act,

4
/ The court’s discussion, like defendant’s motion, does not follow the order of counts
presented in the complaint.

15
5 U.S.C. §§ 701, 706 (2012) (APA). Compl. at 9. Defendant argues, and plaintiff
does not refute, that this court lacks jurisdiction for claims brought under the APA.
Def.’s Mot. at 5. The court agrees that it lacks jurisdiction over Count I of the
complaint. See, e.g., Murphy, 993 F.2d at 874 (stating that the “Claims Court has
no authority to invoke the APA”); Russell v. United States, 78 Fed. Cl. 281, 288
(2007) (noting that “the APA confers jurisdiction for judicial review of final
agency decisions on the United States district court and not the Court of Federal
Claims”) (citations omitted). Count I must be dismissed.

2. Count III – Correction of Military Records

The third count in the complaint relies upon the statute providing for the
correction of military records, 10 U.S.C. § 1552 (2012). Compl. at 10. It is well-
established that this statute is not money-mandating so as to support jurisdiction
for suits brought before this court. See, e.g., Lewis v. United States, 458 F.3d
1372, 1376 n.3 (Fed. Cir. 2006) (citing Martinez v. United States, 333 F.3d 1295,
1315 (2003) (en banc)). Because section 1552 is not a money-mandating statute
for plaintiff’s claims, Count III must be dismissed.

3. Count IV – Retaliatory Personnel Action Claim

To support Count IV of the complaint, plaintiff relies upon 10 U.S.C.
§ 1034 (2012), which addresses the issue of retaliatory personnel actions in the
military. Compl. at 10. Defendant argues that this whistleblower protection
statute is not money-mandating, citing Gant v. United States, 63 Fed. Cl. 311, 316
(2004). Def.’s Mot. at 6. Plaintiff does not refute this authority, and recent cases
confirm that this court lacks jurisdiction over section 1034 claims. E.g., Volk v.
United States, 111 Fed. Cl. 313, 326 (2013) (citation omitted). Because section
1034 is not a money-mandating statute for plaintiff’s claims, Count IV must also
be dismissed.

4. Count V – Due Process Claim

The fifth count in the complaint relies upon the due process guarantees of
the United States Constitution. Compl. at 10-11. It is well-settled that these due
process guarantees are not money-mandating sources of law to support military
pay claims. See, e.g., Volk, 111 Fed. Cl. at 326 (citation omitted). For this reason,

16
Count V must also be dismissed.

5. Count VI – Tucker Act Claim

Count VI of the complaint is described as a claim founded on the Tucker
Act, 28 U.S.C. § 1491. Compl. at 11. Defendant argues that because the Tucker
Act serves as this court’s jurisdictional statute, it cannot also serve as a separate
and distinct money-mandating statute which could support military pay or
equitable claims. Def.’s Mot. at 3 n.2, 5. Defendant is correct. See, e.g., Collins
v. United States, 67 F.3d 284, 286 (Fed. Cir. 1995) (“Since the Tucker Act does
not mandate the payment of plaintiff’s alleged damages, to recover he must base
his claim on some other statute that creates a substantive right by mandating the
payment of his claim.”). For this reason, Count VI of the complaint must also be
dismissed.

6. Count II – Military Pay Act Claim

Plaintiff’s reliance on the Military Pay Act, 37 U.S.C. §§ 201, 204 (2012),
for Count II of the complaint is not misplaced, however. Compl. ¶ 4; id. at 9-10.
Defendant argues that a claim for military pay which depends on a court-ordered
promotion is beyond the jurisdiction of this court under the Military Pay Act.
Def.’s Mot. at 7-8. Defendant relies on heavily on Smith v. Sec’y of Army, 384
F.3d 1288 (Fed. Cir. 2004) for its jurisdictional analysis of certain Military Pay
Act claims.5 The court believes, however, that the holding in Smith has been

5
/ Smith frames the jurisdictional inquiry as requiring more than a money-mandating
statute the statute must be money-mandating and must also be money-mandating under the
particular circumstances of the plaintiff’s case:

It is well established that the Military Pay Act is a
money-mandating statute. See Dysart v. United States, 369 F.3d
1303, 1315 (Fed. Cir. 2004). The question remains, however,
whether the Military Pay Act could provide a monetary remedy
under the circumstances of this case.

384 F.3d at 1294. As discussed infra, this is no longer the jurisdictional inquiry embraced by the
Federal Circuit.

(continued...)

17
eroded by the Federal Circuit’s more recent decision in Fisher v. United States,
402 F.3d 1167 (Fed. Cir. 2005) (en banc in relevant part). See Tippett v. United
States, 98 Fed. Cl. 171, 179 n.10 (2011) (suggesting that the jurisdictional analysis
in Smith is suspect in light of the change in this court’s test for jurisdiction
established by Fisher).

Claims for back pay based on the Military Pay Act are generally considered
to be within the jurisdiction of this court. Metz, 466 F.3d at 998. Although
defendant suggests that promotion-related claims are outside the ambit of the
Military Pay Act, Def.’s Mot. at 7, this type of two-step jurisdictional analysis
(despite a generally money-mandating statute, requiring a second step to ensure
that certain plaintiffs are included within the scope of the statute) was foreclosed
by Fisher. In determining its jurisdiction over a suit, the money-mandating nature
of a statute is determined by this court, at the outset, without regard as to whether
a particular set of facts justifies compensation under the statute. See Fisher, 402
F.3d at 1173 (“The single step would be one in which the trial court determines
both the question of whether the statute provides the predicate for its jurisdiction,
and lays to rest for purposes of the case before it the question of whether the
statute on its merits provides a money-mandating remedy.”). As the non-en banc
portion of Fisher commented:

Assuming that the Court of Federal Claims has taken
jurisdiction over the cause as a result of the initial
determination that plaintiff’s cause rests on a
money-mandating source, the consequence of a ruling by
the court on the merits, that plaintiff’s case does not fit
within the scope of the source, is simply this: plaintiff
loses on the merits for failing to state a claim on which
relief can be granted.

Id. at 1175-76. Thus, Major Miller’s claim in Count II, founded on the Military
Pay Act, survives defendant’s jurisdictional challenge.6

5
(...continued)

6
/ Although plaintiff has distributed the various forms of relief sought in his suit among
(continued...)

18
 B. Failure to State a Claim

Three of defendant’s arguments for dismissal may properly be classified as
arguments that should be addressed under the standard of review for RCFC
12(b)(6). The first is the government’s contention that Major Miller’s Military
Pay Act claim is non-justiciable because it requests a court-ordered promotion.
Def.’s Mot. at 8-9; Def.’s Reply at 5. The second argument is that Major Miller
has offered no allegations of fact that would bring his suit within the type of
promotion case where a “clear-cut entitlement to promotion” could possibly exist.
Def.’s Mot. at 8 n.4; Def.’s Reply at 2-3. Finally, defendant argues that because
Major Miller’s suit attacks the merits of the Army’s decision not to promote him to
major in 2006, and does not challenge the procedure followed by the Army, the
complaint fails to state a claim upon which relief can be granted. Def.’s Mot. at 9.
The court addresses each argument in turn.

1. Justiciability

It is well-settled that the promotion of military officers is not a power
granted this court. See, e.g., Lewis, 458 F.3d at 1378 (noting that this court cannot
order the President to promote a military officer) (citations omitted); Selman v.
United States, 498 F.2d 1354, 1359 (Ct. Cl. 1974) (citing Brenner v. United States,
202 Ct. Cl. 678, 685-86 (1973)). Indeed, the selection of officers for promotion is
a type of substantive decision by a military branch that is frequently described as
non-justiciable. See, e.g., Lindsay, 295 F.3d at 1257 (“Judgments made by
military officials or administrative bodies that a particular officer does not merit
promotion or retention fall into this category, and courts will refuse on
jurisprudential grounds to review such decisions, even if the court has jurisdiction
to do so.”). The court must therefore agree with defendant that Major Miller’s
request for retroactive promotion to major and to lieutenant colonel fails to state a
claim upon which relief can be granted. See Compl. at 11 (“That Miller be

6
(...continued)
the six counts of the complaint, the court reads the complaint, and particularly the prayer for
relief in the complaint, to request several types of relief that can all be tied to his Military Pay
Act claim in Count II. Thus, the dismissal of Counts I, III, IV, V and VI removes extraneous
allegations of sources of law that cannot support jurisdiction in this court, but does not address or
dismiss plaintiff’s various requested forms of relief. Those aspects of the complaint are
discussed infra.

19
retroactively promoted to Major as of 2006; and Lieutenant Colonel as of
2010[.]”). This request for relief must be dismissed under RCFC 12(b)(6).

2. Clear-Cut Right to Promotion

Defendant notes that there is an exception to the bar on military promotion
claims proceeding in this court, but notes that these exceptional cases all rely on a
fact pattern where a promotion has commenced but has later been interrupted.
Def.’s Mot. at 8 n.4; Def.’s Reply at 3. Perhaps the best example for this
exception is Dysart v. United States, 369 F.3d 1303, 1315 (Fed. Cir. 2004). In
Dysart, although the plaintiff was ultimately unsuccessful in obtaining the desired
promotion or the pay of the higher rank, the Federal Circuit acknowledged that
certain promotion decisions, once made but only partially implemented, could be
the subject of a proper promotion claim. Id. (noting that “redress may be afforded
for a promotion improperly denied [because] [i]t is apparently assumed that the
constitutionally-mandated steps in the appointment process – nomination,
confirmation, and actual appointment – would be followed absent improper action
by subordinate officials”) (citations omitted).

Defendant asserts, and the complaint confirms, that no interrupted
promotion process in 2006 is alleged to support Major Miller’s claim for a “clear-
cut” entitlement to promotion. Because the claim in this case is founded on the
more typical scenario of non-selection for promotion, the exception found in cases
such as Dysart does not apply. Dismissal of plaintiff’s promotion claim is
therefore warranted under RCFC 12(b)(6).

3. Procedural Challenge to the Army’s Decision Not to
Promote Major Miller Adequately States a Claim

Finally, defendant suggests that because this suit attacks the merits of the
Army’s decision not to promote plaintiff in 2006, and does not challenge any
procedural infirmity in the promotion process, it presents a non-justiciable issue.
Def.’s Reply at 5. If the government’s analysis of the complaint is correct,
plaintiff fails to state a claim upon which relief may be granted and Major Miller’s
Military Pay Act claim must be dismissed. According to the government,

MAJ Miller does not attack the procedure in the Army’s

20
 decision to delay his promotion. Instead, MAJ Miller
invites the Court to second-guess the Army’s
determination, and speculate that a single negative OER
resulted in his being bypassed for promotions on two
occasions.

Def.’s Mot. at 9 (citing Compl. ¶¶ 54-55).

There is ample precedent which holds that this court may not review the
merits of military promotion decisions. See, e.g., Adkins v. United States, 68 F.3d
1317, 1322 (Fed. Cir. 1995) (“The merits of a service secretary’s decision
regarding military affairs are unquestionably beyond the competence of the
judiciary to review.”) (citations omitted). Where, however, a plaintiff seeks
review “not of the substance of a military decision, but instead its compliance with
an applicable statute or regulation,” this court may review a military promotion
decision for procedural error. Lindsay, 295 F.3d at 1257; see also Barnes v.
United States, 473 F.3d 1356, 1361 (Fed. Cir. 2007) (noting that the Federal
Circuit has “recognized that courts can evaluate whether the military follows the
procedures mandated by statute or by its own regulations when making promotion
decisions” (citing Lewis, 458 F.3d at 1377; Dysart, 369 F.3d at 1315)). Further,
once a service-member has had recourse to a corrections board, the focus is both
on the procedural infirmity alleged before the board, as well as on a review of the
board’s decision under the arbitrary and capricious standard. E.g., Lewis, 458 F.3d
at 1376; Richey v. United States, 322 F.3d 1317, 1323 (Fed. Cir. 2003).

It is certainly true that the complaint invites a review of the merits of Major
Miller’s non-selection for promotion prior to 2010. Compl. ¶¶ 54-55. But it is
also true that the complaint identifies a procedural flaw in all of the reviews the
Army conducted of the disputed incidents of January 2003: the omission of later
disclosed relevant evidence from consideration because the January 22, 2003
Revocation Order never, apparently, surfaced until a FOIA request from plaintiff’s
counsel unearthed it in late September 2013. AR at 1. There is no indication that
this relevant evidence was considered by General Beasley, the OSRB, or the
ABCMR. Id. at 240, Tabs 5-6, 8.

Thus, the court sees a procedural issue inherent in the Military Pay Act
claim presented in the complaint, even if the procedural challenge is somewhat

21
obliquely stated. See Compl. ¶ 45 (stating that “[t]he OSRB did not address
Miller’s credible claim that he was the object of retaliation and reprisal”), ¶ 48
(“The ABCMR also found Miller told his superiors ‘he could not serve them’ and
they obliged him by relieving him of his command, . . . contrary to the order
revoking Miller’s deployment order made one day prior to the alleged
comments.”), ¶ 49 (“The ABCMR did not address Miller’s credible claim that he
was the object of retaliation and reprisal . . . .”), ¶ 59 (“By taking unfavorable
personnel actions against Miller as reprisal for communicating to persons in his
chain of command reports of what he reasonably believed were violations of the
law and/or Army regulations, the Defendant violated [the whistleblower protection
statute].”); Pl.’s Opp. at 16 (arguing that the Revocation Order is evidence that
plaintiff’s being relieved from command on January 23, 2003 was pretextual and
that the negative OER was substantively inaccurate); Pl.’s Supp. Mot. at 2 (“The
ABCMR affirmed [that plaintiff’s superiors granted his request to be relieved from
duty]; however, it did not have the Revocation Order to consider because it was
not part of the record for unknown reasons.”); id. at 3 (stating that “the ABCMR
failed to consider factors which are relevant to its final decision”). These
allegations present a claim for military pay not received due to a flawed promotion
procedure that included flawed reviews by both the OSRB and the ABCMR. See,
e.g., Hoskins v. United States, 61 Fed. Cl. 209, 218 (2004) (finding that because a
military pay plaintiff argued that her promotion records were incomplete, “the
court is able . . . to discern a [justiciable] procedural challenge in [the] plaintiff’s
claims”).

Defendant argues that the Revocation Order is of “questionable probative
value.” Def.’s Supp. Resp. at 3. At the pleadings stage, however, the court must
accord all favorable inferences to the facts presented in the complaint. Scheuer,
416 U.S. at 236. The court also does not find plaintiff’s allegations of retaliation
and bias to fail the plausibility test outlined in Twombly and Iqbal. Because Major
Miller has requested monetary relief under the Military Pay Act, and ancillary
equitable relief, the court denies defendant’s 12(b)(6) challenge to the complaint.7

7
/ The court’s consideration of the complaint in this section of the opinion has included
reference to the factual background provided by the AR to provide a context for plaintiff’s
procedural challenge to the ABCMR’s denial of his application for relief. Plaintiff’s Military
Pay Act claim, however, would survive defendant’s arguments that the complaint fails to state a
claim upon which relief can be granted even without reference to such materials. Holmes, 98
(continued...)

22
See, e.g., Holley v. United States, 124 F.3d 1462, 1466 (Fed. Cir. 1997) (“It is no
longer subject to debate whether a Tucker Act claim may be stated for military
back pay and ancillary relief.”).

Major Miller’s request for monetary relief was more fully expressed in his
application for relief submitted to the ABCMR. There, he asked that his corrected
military record be submitted for retroactive consideration for promotion to major
as of 2006, and that his rank be adjusted to major, presumably as of 2006. Neither
of these requests is beyond the power of a corrections board, and if a retroactive
promotion were to be approved, Major Miller would receive a considerable
amount of back pay. That request for monetary relief is again stated in the
complaint before this court, although plaintiff has neglected to request a remand to
the ABCMR to accomplish his goals of retroactive promotion and back pay.
Compl. at 11. Because Major Miller requests correction of his military records,
asserting that “the ABCMR’s actions were arbitrary and capricious and are
properly subject [to] judicial review,” id. at 10, the court deems this to be a remand
request and a request for monetary relief sufficient to state a claim upon which
relief can be granted, id. at 11 (requesting “all further relief which this . . . Court
deems just and appropriate”).

C. Defendant’s Request for Judgment on the Administrative Record
and Plaintiff’s Motion for Supplementation of the Administrative
Record

Defendant has moved for judgment on the administrative record, arguing
that, on this record, the ABCMR decision should survive review. In particular, the
government asserts that “the ABCMR reasonably found that MAJ Miller ‘told his
superiors he could not serve them and they obliged him by relieving him of his
command.’” Def.’s Mot. at 13 (quoting AR at 20). Plaintiff disputes the
government’s analysis but also protests that, “[a]t a minimum, the case should be
remanded to the ABCMR to reconsider its decision in light of the Revocation
Order.” Pl.’s Supp. Reply at 2.

7
(...continued)
Fed. Cl. at 780 n.10 (noting that exhibits to a complaint, such as Exhibit A in this case, “are
properly considered in ruling on the government’s motion to dismiss [in a military pay case]”).

23
 The court believes that such a remand would afford the ABCMR an
opportunity to revisit and reevaluate its decision in a troubling case. Plaintiff has
repeatedly asserted that he never volunteered to be relieved of his command or
volunteered to avoid deployment to Iraq. Instead, he contends that he told his
commander that he could not work for him if that commander continued to
disrespect him with profanity (in front of his company). The Board was
apparently convinced, because of the presumption of regularity afforded military
records in the absence of contrary evidence, that it should accept the version of
events provided by plaintiff’s superior officer – that plaintiff simply said he would
not work for his superior and then volunteered to relinquish his command. The
belated resurfacing of the Revocation Order, with its content and timing, appears
to be clearly relevant for the purposes of the ABCMR’s re-evaluation of the
validity of the statements in the negative OER.

Because the court finds the Revocation Order to be probative, the court
believes that a remand to the ABCMR is appropriate. Walls, 582 F.3d at 1367.
The court therefore denies defendant’s request for judgment on the administrative
record as moot. Plaintiff’s motion to supplement the administrative record is also
moot because remand is the more appropriate option.

CONCLUSION

Counts I, III, IV, V and VI of the complaint are dismissed without prejudice
for lack of subject matter jurisdiction, as stated in this opinion. Plaintiff’s request
for a court-ordered promotion or promotions, his claim to a clear-cut entitlement to
promotion, and his challenge to the merits of his non-selection for promotion are
all dismissed with prejudice for failure to state a claim upon which relief can be
granted. Defendant’s request for judgment on the administrative record and
plaintiff’s motion for supplementation of the administrative record are denied as
moot, because plaintiff’s Military Pay Act claim in Count II, and his requests for
ancillary relief, must be remanded to the ABCMR.

For the foregoing reasons, it is hereby ORDERED that:

(1) Defendant’s Motion to Dismiss, Or, in the Alternative, Motion for
Judgment Upon the Administrative Record, filed May 23, 2014, is
GRANTED in part as to

24
 (a) Counts I, III, IV, V and VI of the complaint, which are
DISMISSED without prejudice for lack of subject matter
jurisdiction;

(b) Plaintiff’s request for a court-ordered promotion or promotions,
his claim to a clear-cut entitlement to promotion, and his
challenge to the merits of his non-selection for promotion,
which are all DISMISSED with prejudice for failure to state a
claim upon which relief can be granted;

and DENIED in part as to

(c) Dismissal of Count II of the complaint under either RCFC
12(b)(1) or RCFC 12(b)(6);

(d) Defendant’s request for judgment on the administrative record,
which is DENIED as moot;

(2) Plaintiff’s Motion to Supplement the Administrative Record, filed
September 5, 2014, is DENIED as moot;

(3) Pursuant to RCFC 52.2(a) and 28 U.S.C. § 1491(a)(2), plaintiff’s
Military Pay Act claim (as set forth in Count II) and his requests for
ancillary relief are hereby REMANDED to the U.S. Secretary of the
Army, acting through the Army Board for Correction of Military
Records, so that the Board may have an opportunity to revisit and
articulate in detail its rationale on the subject matter.

(4) The Board’s decision shall, inter alia, address the following issues
after affording Major Miller the opportunity to amend his application
for relief submitted December 4, 2009 to include the Revocation
Order dated January 22, 2003 and claims based thereon:

(a) Consider Major Miller’s claim that the Revocation Order dated
January 22, 2003 shows that his negative OER for the period
June 29, 2002 through January 23, 2003 was substantially
inaccurate and that this OER should be removed from his

25
 personnel file;

(b) Consider any claims of bias and retaliation made by Major
Miller; and

(c) Consider whether special selection boards would offer Major
Miller appropriate relief if the negative OER is removed from
his personnel file and this period of service is noted as unrated.

(5) Defendant is directed to FILE a Status Report, on or before
April 27, 2015, and every 90-day interval thereafter, indicating
the status of proceedings on remand, pursuant to RCFC
52.2(b)(1)(D).

(6) The agency decision on remand shall be FILED by defendant with
this court on or before July 27, 2015.

/s/Lynn J. Bush
LYNN J. BUSH
Senior Judge

26