Before Mayer, Chief Judge, Michel and Clevenger, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Wayne A. Thomas seeks review of the December 22, 1998 judgment of the United States Court of Federal Claims, Thomas v. United States, 42 Fed. Cl. 449 (1998), dismissing his appeal for failure to state a claim upon which relief can be granted. We affirm.
A trial court's ruling on its own jurisdiction is a question of law which we review de novo. See James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1541 (Fed. Cir. 1996). Fact-finding is proper when considering a motion to dismiss where the jurisdictional facts in the complaint (here, voluntariness) are challenged. See Adkins v. United States, 68 F.3d 1317, 1318 (Fed. Cir. 1995); Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). Factual findings made by the Court of Federal Claims are reviewed by us for clear error. See H.B. MAC, Inc. v. United States, 153 F.3d 1338, 1343 (Fed. Cir. 1998). Here, the Court of Federal Claims had jurisdiction over Thomas' claims.
Even where a court possesses jurisdiction to hear a claim, it may not do so in cases where the claim presents a non-justiciable controversy (i.e., the claim is such that the court lacks "ability to supply relief.") Murphy v. United States, 993 F.2d 871, 872 (Fed. Cir. 1993). "[J]usticiability is a particularly apt inquiry when one seeks review of military activities." Adkins v. United States, 68 F.3d 1317, 1322 (Fed. Cir. 1995) (quoting Murphy). The judiciary has to be "scrupulous not to interfere with legitimate [military] matters . . . ." Orloff v. Willoughby, 345 U.S. 83, 94 (1953). While review of the procedural regularity of a challenged action is within the competence of the court, the merits or substance of the Army's decisions regarding retirement and separation are not.
On November 14, 1995, Thomas filed a complaint in the United States Court of Federal Claims challenging two ABCMR decisions, seeking (1) retroactive promotion, (2) reinstatement to active duty to the date of judgment, (3) a retirement physical, (4) reimbursement for medical expenses incurred between initial discharge and retirement, and (5) the right to designate Germany as his place of discharge. The court denied defendant's motion to dismiss the complaint for lack of jurisdiction, but granted its alternative motion to dismiss for failure to state a claim, based upon its finding that Thomas' retirement was voluntary.
The trial court lacked the ability to grant post-retirement relief, such as retroactive promotion, where retirement was deemed voluntary. But even if it had found Thomas' separation and retirement to be involuntary, the court has no authority to order the re-enlistment of a servicemember beyond the date on which his term of enlistment would have expired. See Dodson v. United States, 988 F.2d 1199, 1208 (Fed. Cir. 1993). Furthermore, no one has a right to enlist or re-enlist in the armed forces. See Maier v. Orr, 754 F.2d 973, 980 (Fed. Cir. 1985).
As for Thomas' claimed entitlement to a retirement physical under Army Regulation 635-200, regardless of which provisions he retired under, there is no indication that they grant a right to which Thomas is entitled. Properly construed, Army Regulation 635-200 is for the mutual benefit of the government and servicemembers. As the trial court correctly explained, "Although medical examination is a procedure undertaken to protect the interest of both the government and the soldier, the government may waive such a requirement. The only mandatory aspect of this statute is the requirement that the service member undergo the examination upon request of the service. " Thomas v. United States, 42 Fed. Cl. 449, 452 (1998).
Thomas' claim for medical expenses must also fail. His failure to raise it before the ABCMR waives that right on appeal. See Martinez v. United States, 914 F.2d 1486, 1488-1489 (Fed. Cir. 1990).
Finally, given the Army's discretionary authority over retirement and separation, and the fact that Thomas could not prove he would have been in Germany at retirement, the court could not order that Germany be designated the place of discharge.