Before Mayer, Chief Judge, Michel and Lourie, Circuit Judges.
The opinion of the court was delivered by: Michel, Circuit Judge.
Appealed from: The United States Court of Federal Claims Judge Eric G. Bruggink
Stephen F. Moyer ("Moyer") appeals from the judgment of the United States Court of Federal Claims, which dismissed his complaint for lack of jurisdiction. See Moyer v. United States, 41 Fed. Cl. 324 (1998). In his complaint, Moyer, a former member of the United States Army ("Army"), sought correction of his military records, and back pay, allowances, retirement pay, and severance pay that he would have received had he been medically discharged, as he alleges he would have been if he had not been wrongfully discharged pursuant to his tendered resignation. Moyer submitted his resignation in lieu of trial by court-martial on pending charges under the Uniform Code of Military Justice ("UCMJ"). The Court of Federal Claims granted the government's motion to dismiss for lack of jurisdiction because it rejected both of Moyer's theories of jurisdiction. First it found that Moyer resigned voluntarily and not, as he alleged, because of misrepresentations. Second, it ruled that his alternative theory of jurisdiction--alleged non-compliance with an Army regulation--was legally incorrect. According to Moyer, his resignation was the product of misinformation rather than solely from an impending court-martial and Army regulations required that his medical discharge be processed before his discharge pursuant to his resignation became final, even if he did tender his resignation voluntarily. Because the Court of Federal Claims did not clearly err in finding that Moyer had voluntarily resigned and correctly concluded that his regulatory claim was legally incorrect, we affirm.
In December 1990, while serving as a Captain in the Army, Moyer sought medical evaluation of an injury dating back to 1983 for which he had subsequently received treatment on numerous occasions. On January 4, 1991, Moyer underwent a further physical examination related to ongoing medical problems, including injuries to his shoulder and ankles. The Report of Medical Examination indicated, in the space on the report reserved for "purpose," that the examination was "periodic" and "med board."
Also in December 1990, Moyer became the focus of an Army investigation based on allegations that he had compromised classified information. On February 13, 1991, charges were filed against Moyer under the UCMJ, and on March 14 an additional charge was filed. The charges were that Moyer had violated Army regulations pertaining to handling classified information and that he had committed adultery. On March 22, 1991, the charges were referred for trial by general court-martial.
On March 25, 1991, only three days later, Moyer submitted a request for resignation, apparently to avoid trial by court-martial. In his resignation letter Moyer indicated that he was voluntarily tendering his resignation for the good of the service, that he had not been subject to coercion with respect to his resignation, that he had been advised of and fully understood the implications of his resignation, and that he understood that he was forfeiting all rights stemming from his time in service. On April 23, 1991, Moyer's resignation was approved, and he was so notified by letter dated May 21, 1991. Moyer's scheduled separation date was June 4, 1991.
On April 17, several weeks after his resignation and a day after a further medical examination, a memorandum reflected that Moyer was undergoing a Medical Evaluation Board (an "MEB"), which ordinarily can lead to a discharge based upon disability. An MEB report was issued on May 10, 1991, indicating that Moyer was unfit to continue active duty. On May 24, 1991, Moyer requested an extension of his separation date so that the Army could consider discharging him for medical disability. On May 30, the hospital treating Moyer also requested that his separation date be moved beyond June 4 to December 3, 1991, because Moyer was being processed through the Army Physical Disability System and final action in that system would not be taken by June 4. However, the Deputy Assistant Secretary of the Army denied the request for an extension, and on June 6, 1991, Moyer was discharged without regard to any disability.
Later, Moyer, now a civilian, petitioned the Army Board for Correction of Military Records ("ABCMR") for relief, but it was denied. In his complaint in the Court of Federal Claims, Moyer challenged the ABCMR's denial of his application to correct his military records to show that he was discharged due to physical disability, rather than as a result of his resignation. He also sought back pay, allowances, retirement pay, and severance pay.
In response to the government's motion to dismiss for lack of jurisdiction because of his resignation, Moyer argued before the Court of Federal Claims, as he does here, that his resignation was not voluntary because he was misled into believing that his resignation would be held in abeyance until his medical disability processing was completed and that, if found disabled, he would be medically discharged rather than discharged pursuant to his resignation. Moyer alleged that his supervisor, Captain David Oten, and his attorney, Captain Richard Jaynes, both misled him prior to his request to resign by indicating that his discharge for disability would be processed simultaneously with consideration of his resignation request. Both men denied this version of the course of events preceding Moyer's resignation. Captain Oten said that he could not recollect giving Moyer any advice and that if he had, he could not imagine giving the advice Moyer alleged. Captain Jaynes claimed that he was not even told by Moyer about a request for a medical discharge until May 7, 1991, after Moyer had resigned. Other documents also indicate that the MEB process did not begin until after Moyer submitted his resignation on March 25, including an April 17 memorandum indicating that he was going before the MEB. In an attempt to show that he believed he was being medically processed out of the Army at the time he resigned, Moyer contended that his January 1991 medical evaluation report which includes a notation "med board" indicates that the MEB process was initiated at that point in time, i.e., prior to his resignation, rather than on April 17.
The government moved: (1) for dismissal for lack of jurisdiction; (2) for dismissal for failure to state a claim upon which relief could be granted; and (3) for summary judgment on the administrative record. Moyer cross-moved for summary judgment. The Court of Federal Claims granted only the government's motion to dismiss the complaint for lack of jurisdiction.
The Court of Federal Claims found that Moyer failed to show that he pursued a discharge based on physical disability prior to his voluntary resignation, and failed to show that either Captains Oten or Jaynes misled him prior to the resignation by indicating that such resignation would be processed simultaneously and subordinate to a disability-based discharge. The Court of Federal Claims found that the "stray reference to a `med board'" in Moyer's medical records was insignificant in light of other records indicating that the MEB process began in April 1991, the corroborating testimony of Captain Jaynes, and the May 24 letter of Moyer himself, requesting an extension of the separation date. See Moyer, 41 Fed. Cl. at 329-30. Accordingly, in a careful opinion with detailed findings, the Court of Federal Claims found that Moyer's resignation was voluntary.
The Court of Federal Claims also briefly addressed Moyer's argument, in Count I of his complaint, that Army regulations required that his medical discharge request be processed prior to a discharge pursuant to his offer to resign. See id. at 327 n.1. The Court of Federal Claims noted that Moyer could not possibly be entitled to such processing because the provisions relied on by Moyer only applied to those who are "administratively discharged." By contrast, Moyer was discharged pursuant to a resignation submitted in lieu of a trial by court-martial. The court indeed noted that the regulation expressly excluded those facing charges under the UCMJ.
On appeal, Moyer contends that his resignation was not voluntary and that his regulatory count provided an alternative basis for Court of Federal Claims jurisdiction, even if the resignation was found voluntary. *fn1 We ...