                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
Michael P. McDonough,                     )
                                          )
       Plaintiff,                         )
                                          )
               v.                         )                              Case No. 16-cv-00582 (APM)
                                          )
Sean J. Stackley, 1                       )
                                          )
       Defendant.                         )
_________________________________________ )

                                        MEMORANDUM OPINION

         Plaintiff Michael P. McDonough, a former officer in the United States Navy, seeks judicial

review of a decision of the Board for Correction of Naval Records (“BCNR” or “Board”) denying

his request for reconsideration to alter his military records. Plaintiff served as a nuclear mechanic

in the Navy from 2002 to 2009. After being disciplined for misconduct on a routine audit exam,

he was demoted and subsequently left the Navy.

         The circumstances of Plaintiff’s departure from the Navy lie at the heart of this dispute.

According to the Navy, after his demotion, Plaintiff voluntarily resigned. Plaintiff’s military

records reflect this version of events. The Navy then sought to recoup from Plaintiff certain bonus

payments paid upon his enlistment and re-enlistment. According to Plaintiff, however, following

his demotion, the Navy implemented a reduction in force that led to his involuntary removal from

the Navy, rendering any collection of his bonus payments improper.




1
 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the court substitutes as Defendant the acting Secretary
of the Navy, Sean J. Stackley, for the former Secretary of the Navy, Raymond E. Maybus, Jr.
        In August 2011, Plaintiff asked the Board to change his military records to indicate that his

removal was involuntary, which would have the effect of discharging the bonus-payment debt

obligation.     The Board denied both Plaintiff’s initial application and his request for

reconsideration, leading Plaintiff to seek review in this court.

        This matter is before the court on the parties’ cross-motions for summary judgment.

Because the Board rendered its decision by adopting an advisory opinion that does not address

Plaintiff’s arguments, and because the record does not reflect that the Board undertook an

independent review untainted by the fundamentally flawed advisory opinion, the court finds that

the Board’s denial was arbitrary and capricious. Accordingly, the court denies Defendant’s Motion

for Summary Judgment, grants Plaintiff’s Motion for Summary Judgment, and remands this matter

for further consideration.

I.      BACKGROUND

        Plaintiff Michael P. McDonough served as a nuclear mechanic in the Navy from 2002 to

2009. Admin. Rec., ECF No. 15 [hereinafter Admin. Rec.], Pt. 1, ECF No. 15-1 [hereinafter A.R.

Pt. 1], at 17–18; Admin. Rec., Pt. 2, ECF No. 15-2 [hereinafter A.R. Pt. 2], at 198–99; Admin.

Rec., Pt. 4, ECF No. 15-4 [hereinafter A.R. Pt. 4], at 388–99. 2 Plaintiff received a series of bonuses

upon his enlistment and reenlistment in the Navy—$12,000 in 2002; $27,304.99 in 2004;

$42,373.50 in 2008; and $8,474.70 in 2009. A.R. Pt. 1 at 5, 30, 156; Admin. Rec., Pt. 5, ECF No.

15-5 [hereinafter A.R. Pt. 5], at 410. While serving as a naval officer, Plaintiff was assigned two

Navy Enlistment Classification (“NEC”) codes—3385 and 3377—which indicated his technical

qualifications. See Def.’s Mot. for Summ. J, ECF No. 6, Def.’s Mem. in Supp., ECF No. 6-1



2
 The Administrative Record is cited in five parts. Part 1 covers pages 1–99; Part 2 covers pages 100–199; Part 3
covers pages 200–299; Part 4 covers pages 300–399; and Part 5 covers pages 400–529. All pin citations are to the
Administrative Record’s original pagination.

                                                       2
[hereinafter Def.’s Mot.], at 2–3; Pl.’s Cross-Mot. for Summ. J., ECF No. 9, Pl.’s Mem. in Supp.,

ECF No. 9-1 [hereinafter Pl.’s Mot.], at 1; A.R. Pt. 1 at 1, 29–30; Admin. Rec., Pt. 3, ECF No. 15-

3 [hereinafter A.R. Pt. 3], at 278–280.

       In 2009, Plaintiff was disciplined for misconduct on a routine audit exam, causing him to

be demoted and leading his commanding officer to request that Plaintiff’s classification codes be

removed. Def.’s Mot. at 3–4; Pl.’s Mot. at 2; A.R. Pt. 1 at 24; A.R. Pt. 2 at 139–143, 188; A.R.

Pt. 3 at 284. Plaintiff was discharged from the Navy in September 2009. A.R. Pt. 1 at 16; A.R.

Pt. 2 at 198–99. His discharge papers listed the reason for his discharge as “reduction in force”

and used separation code “KCC,” which signifies a voluntary departure. A.R. Pt. 1 at 16, 29; A.R.

Pt. 2 at 198–99; A.R. Pt. 5 at 526. Several months later, the Defense Finance and Accounting

Service (“DFAS”) sent Plaintiff a bill for $51,194.93—an amount representing the “unearned

portion of [Plaintiff’s] enlistment or reenlistment bonus.” A.R. Pt. 4 at 366–67. Plaintiff requested

DFAS review the debt, and the DFAS concluded the debt was valid. A.R. Pt. 1 at 81–85.

       Plaintiff then turned to the Board for Correction of Naval Records (“BCNR” or “Board”).

He asked the Board to modify his records to reflect that he was discharged from the Navy

involuntarily due to a force reduction, which, if granted, would relieve him of any obligation to

repay bonus funds. A.R. Pt. 1 at 1, 15, 20–22, 29–44, 82–85; A.R. Pt. 3 at 202. In response to

Plaintiff’s application, the Board sought an advisory opinion from the Office of the Chief of Naval

Operations (“CNO”), which concluded that Plaintiff had voluntarily left the Navy and that

recouping his bonus payments was proper. A.R. Pt. 1 at 28–30. Plaintiff’s counsel wrote a letter

to the Board, dated February 12, 2012, urging it to disregard the advisory opinion. A.R. Pt. 3 at

260–61. Relying heavily on the CNO’s advisory opinion, the Board then denied Plaintiff’s

application.   A.R. Pt. 1 at 19–23, 29–30. Plaintiff submitted a request for reconsideration



                                                 3
(“Motion”), and the Board once again sought an advisory opinion. A.R. Pt. 2 at 123–24, 178–189.

The CNO recommended denying Plaintiff’s Motion. A.R. Pt. 2 at 113–15. The Board, relying on

the second advisory opinion from the CNO, denied the Motion. A.R. Pt. 1 at 97–99.

         The Board’s denial of Plaintiff’s Motion forms the basis of this lawsuit. See Compl., ECF

No. 1 [hereinafter Compl.], ¶ 1. In sum, Plaintiff claims that the Board’s decision was arbitrary

and capricious—in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et

seq.—because the Board failed to consider any argument he advanced in his Motion. See Compl.

¶¶ 1, 75–76. The parties then filed cross-motions for summary judgment, to which the court now

turns.

II.      LEGAL STANDARD

         The Secretary of the Navy is authorized to modify military records “when [he] considers it

necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552. The Navy carries out this

function through the Board, which rules on petitions to correct military records. 32 C.F.R. § 723.1.

A district court may review the decision of a military board of correction using “familiar principles

of administrative law.” Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989); see

also Piersall v. Winter, 435 F.3d 319, 323–24 (D.C. Cir. 2006) (discussing the “well-settled rule

that the decisions of boards for correction of military records are subject to review under the

APA”). The court’s role is limited: it must “determine only whether the Secretary’s decision

making process was deficient, not whether his decision was correct.” Kreis, 866 F.2d at 1511.

         In making such an evaluation, the district court owes the military board of correction’s

decision a heightened degree of deference. Although subject to the APA’s arbitrary and capricious

standard, 5 U.S.C. § 706(2)(A), courts review board decisions under an “unusually deferential”

application of that standard. Kreis, 866 F.2d at 1514; Cone v. Caldera, 223 F.3d 789, 793 (D.C.



                                                 4
Cir. 2000). That is because an element of discretion on the part of the military board is built into

the statutory section authorizing review. Indeed,

                [i]t is simply more difficult to say that the Secretary has acted
                arbitrarily if he is authorized to act “when he considers it necessary
                to correct an error or remove an injustice,” than it is if he is required
                to act whenever a court determines that certain objective conditions
                are met, i.e., that there has been an error or injustice.

Kreis, 866 F.2d at 1514 (citation omitted). It is this additional grant of statutory authority that

warrants the greater deference. Even under such a deferential standard, however, the military

board must provide the district court with a “reason that [the] court can measure” against the

arbitrary and capricious standard. Id. at 1514–15.

III.   DISCUSSION

       A.       Whether the Board’s Decision Was Arbitrary or Capricious

       Plaintiff contends that the Board’s decision was arbitrary and capricious because it failed

to address the arguments he made in his Motion for Reconsideration. Pl.’s Mot. at 9–13. The

court agrees.     Even a cursory examination of Plaintiff’s filings and the Board’s decisions

demonstrates that, when denying Plaintiff’s Motion, the Board rejected arguments that Plaintiff

advanced not in the Motion itself, but in a filing that preceded it. In other words, the Board’s

denial was based on an entirely different set of arguments than those contained in Plaintiff’s

Motion. Accordingly, the Board’s decision to deny reconsideration of its earlier ruling violates

the APA, even under the “unusually deferential” standard afforded military boards.

       The Board denied Plaintiff’s Motion in a two-page letter that offers little explanation for

its decision. A.R. Pt. 1 at 98–99. Indeed, the Board’s analysis of the Motion’s merits is only two

sentences long:

                After careful and conscientious consideration of the entire record,
                the Board found that the evidence submitted was insufficient to

                                                   5
                   establish the existence of probable material error or injustice. In
                   making this determination, the Board substantially concurred with
                   the comments contained in the advisory opinion.

Id. at 99. The CNO submitted the referenced “advisory opinion” by letter dated March 31, 2014

(“March 2014 Advisory Opinion”). Id. at 113–15. Because the Board’s decision essentially rests

on the March 2014 Advisory Opinion, this court must look to that opinion to determine whether

the Board acted arbitrarily and capriciously.

                   1.       The March 2014 Advisory Opinion

           As a preliminary matter, the Board did nothing improper by relying on an advisory opinion

to render its decision. See Roberts v. United States, 741 F.3d 152, 158–59 (D.C. Cir. 2014). A

military board of correction may meet its obligation to provide a reasoned explanation by referring

to a clearly relevant source, such as an advisory opinion. See id. Trouble arises, however, when

a board hinges its decision in whole on an advisory opinion that does not satisfy the arbitrary and

capricious standard. Here, the Board did just that. The March 2014 Advisory Opinion is arbitrary

and capricious, because it very clearly addresses arguments made in an earlier set of objections

raised by Plaintiff, rather than addressing the arguments Plaintiff made in his Motion. Because

the advisory opinion on which the Board relied was itself arbitrary and capricious, so too was the

Board’s denial of Plaintiff’s Motion.

           Several aspects of the March 2014 Advisory Opinion demonstrate that the Board did not

respond to the arguments raised in Plaintiff’s Motion for Reconsideration. First, the March 2014

Advisory Opinion does not contain the case number assigned to Plaintiff’s Motion—“11442-12.” 3

A.R. Pt. 3 at 205. Instead, it bears the case number “09033-11,” which is the case number assigned

to Plaintiff’s 2011 application to the Board to correct his records and cancel his purported debt.



3
    The “12” most likely signifies the year—2012—in which the Motion was filed.

                                                         6
See A.R. Pt. 1 at 31; Def.’s Mem. at 5; Pl.’s Reply in Supp. of Pl.’s Mot., ECF No. 14 [hereinafter

Pl.’s Reply], at 2. The absence of the Motion’s assigned case number is the first sign that

something is amiss.

       Second, Plaintiff’s Motion is conspicuously absent from the list of documents that the

author of the March 2014 Advisory Opinion considered in reaching her conclusion. A.R. Pt. 2 at

113; Pl.’s Reply at 2. That list identifies three documents: (1) Plaintiff’s initial application to the

Board; (2) an earlier advisory opinion prepared by the CNO, dated October 2011 (“October 2011

Advisory Opinion”), which the Board received and relied upon when denying Plaintiff’s initial

application; and (3) a letter from Plaintiff’s counsel that pre-dates the Board’s final decision, in

which counsel responds to the Board’s October 2011 Advisory Opinion. A.R. Pt. 1 at 20–23; A.R.

Pt. 2 at 113. Plaintiff’s Motion—which is attached to a letter from David Sheldon to the Board

for Correction of Naval Records, dated October 17, 2012, see A.R. Pt. 2 at 178–189—is not

mentioned. The fact that Plaintiff’s Motion is absent from this list is significant evidence that the

CNO never considered it.

       Third, it is plain that the March 2014 Advisory Opinion only responds to arguments

contained in Plaintiff’s counsel’s letter, dated February 12, 2012, which was sent before the Board

rejected his initial application. Indeed, the March 2014 Advisory Opinion quotes nearly verbatim

the arguments raised in the February 2012 letter before rejecting them.             The chart below

demonstrates the parallels.




                                                  7
             February 2012 Letter                                March 2014 Advisory Opinion

“The sole basis for the [bonus] recoupment               “[Plaintiff’s counsel] writes that the sole basis
efforts . . . was [Plaintiff’s] alleged failure to       for DFAS’ recoupment efforts are due to
‘satisfactorily complete the designated term of          [Plaintiff’s] alleged failure to ‘satisfactorily
enlistment for which the bonus was paid.’”               complete the designated term of enlistment
A.R. Pt. 3 at 260.                                       for which the bonus was paid.’” A.R. Pt. 2 at
                                                         113–14.

“As argued in the BCNR Memo, DFAS’                       “Mr. Sheldon contends that DFAS’
conclusions are incorrect because, as the                conclusions are incorrect because the contract
contracts themselves indicate, the condition             specifies that the action which triggers
relied upon by DFAS as triggering                        recoupment must be within the control of
recoupment must lie within the control of the            PO2 McDonough and he was separated
designee and PO2 McDonough was separated                 because of a force structure, something not
because of a force reduction.” A.R. Pt. 3 at             within PO2 McDonough’s control.” A.R. Pt.
261.                                                     2 at 114.

“Further, even the Advisory Opinion’s post               “He claims the Advisory Opinion is
hoc arguments are misguided. They appear to              misguided because it focuses on the fact that
focus on a factual contention that PO2                   PO2 McDonough’s NF NEC was removed
McDonough’s NF NEC was removed due to a                  due to a JPN [non-judicial punishment];
non-judicial punishment. However the                     however, no evidence was provided
Advisory Opinion did not produce any                     supporting this contention. After several
evidence supporting its contention. Nor did              FOIA requests only documents suggesting the
DFAS during the course of official hearing               removal of the NEC had merely been
proceedings and other recoupment efforts.                requested and show no further removal
After several Freedom of Information Act                 processing or any actual removal.” A.R. Pt. 2
(FOIA) requests for all documents in PO2                 at 114.
McDonough’s file, all that has surfaced are
documents suggesting that removal of PO2
McDonough’s NF NEC had merely been
requested. . . . To date, no documents have
surfaced evincing further removal processing
or any actual removal.” A.R. Pt. 3 at 261.

“In light of the above, the Board should                 “In light of this, Mr. Sheldon believes BCNR
disregard the [October 2011] Advisory                    should limit its consideration to the actual
Opinion as it has little utility under the facts         rationale for DFAS’ recoupment efforts and
of this case. The Board should limit its                 refer to [his BCNR Memo] for arguments
consideration to the actual rationale for                justifying the requested relief.” A.R. Pt. 2 at
DFAS’ recoupment efforts and refer to PO2                114.
McDonough’s BCNR Memo for arguments
justifying PO2 McDonough’s requested
relief.” A.R. Pt. 3 at 261.


                                                     8
Only one rational conclusion can be drawn from the textual similarities reflected in the foregoing

chart: The March 2014 Advisory Opinion responds to arguments raised in Plaintiff’s counsel’s

February 2012 letter, not in Plaintiff’s Motion.

        Fourth, while the March 2014 Advisory Opinion largely parrots the arguments contained

in the February 2012 letter, it is entirely silent with respect to the arguments advanced in Plaintiff’s

Motion. Plaintiff made three arguments in his Motion: (1) the Navy did not follow proper

procedures when removing Plaintiff’s NEC codes, see A.R. Pt. 2 at 185–86; (2) the Secretary of

the Navy did not authorize the DFAS to recoup Plaintiff’s bonus payments, see id. at 186–88; and

(3) it is in the interest of justice to stop efforts to collect Plaintiff’s purported debt, see id. at 188.

These arguments are nowhere referenced in the March 2014 Advisory Opinion.

        Thus, both on its face and in substance, the CNO’s March 2014 Advisory Opinion does not

give the court any confidence that the opinion’s author laid eyes on, let alone evaluated, Plaintiff’s

Motion. From citing the wrong case number to quoting from and paraphrasing the wrong letter,

the March 2014 Advisory Opinion does not address Plaintiff’s Motion. And, because the Board

relied substantially on the March 2014 Advisory Opinion in its denial of Plaintiff’s Motion,

without adding any supplemental analysis of its own, the Board’s ruling is arbitrary and capricious.

Kreis, 866 F.2d at 1514–15.

                2.      Defendant’s Contentions

        Defendant advances various arguments to convince the court that the Board actually did

consider Plaintiff’s Motion on the merits. None are convincing.

        First, Defendant points to the Board’s summation of the evidence it considered, as listed in

its denial letter. According to that letter, the “[d]ocumentary material considered by the Board

consisted of [Plaintiff’s] application, together with all material submitted in support thereof,



                                                    9
[Plaintiff’s] naval record and applicable statutes, regulations and policies.” A.R. Pt. 1 at 98.

Defendant focuses on the Board’s reference to Plaintiff’s “application” as evidence that it fully

considered Plaintiff’s Motion. Def.’s Reply in Supp. of Def.’s Mot., ECF No. 12 [hereinafter

Def.’s Reply], at 2. The reference to “application,” however, without more, is too ambiguous a

term for the court to be able to “reasonably . . . discern[]” the Board’s “path” in rejecting Plaintiff’s

Motion. See Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997). Indeed, the Board used the

same exact sentence to describe the materials it considered when it denied Plaintiff’s original

request to correct records. Compare A.R. Pt. 1 at 20 (“Documentary material considered by the

Board consisted of your application, together with all material submitted in support thereof, your

naval record and applicable statutes, regulations and policies.”), with A.R. Pt. 1 at 98 (same). The

word “application,” therefore, does not carry the weight that Defendant accords it.

        Next, Defendant highlights a passage from the March 2014 Advisory Opinion that, it

contends, shows the Board considered and rejected Plaintiff’s argument for reconsideration that

the Navy had not properly removed his NECs—that is, the codes identifying his status as a nuclear-

trained mechanic.

                Mr. Sheldon writes the NEC removal was requested but no further
                processing was done. Enclosure (6), Block 11 shows the
                rating/NEC P02 McDonough had when he separated, MM-0000.
                This means he did not have his Nuclear Field NEC at separation [or]
                else Block 11 would have read MM-3385. The NEC removal
                process was completed before P02 McDonough’s separation.

Def.’s Reply at 6 (quoting A.R. Pt. 2 at 115) (alteration omitted). That response, however, is

clearly an answer to Plaintiff’s contention in the February 2012 letter that the removal of his

“[Nuclear Field] NEC had merely been requested. . . [and] no documents have surfaced evincing

further removal processing or any actual removal.” A.R. Pt. 1 at 96. On the other hand, the actual

arguments Plaintiff makes in his Motion concerning the NECs removal are not addressed in the

                                                   10
Board’s final decision. In Plaintiff’s Motion, Plaintiff argued that, under Navy rules, his nuclear

NECs could be removed only if authorized by the Chief of Naval Operations (“CNO”). A.R. Pt.

2 at 185. The CNO would then indicate his or her approval by adding a notation in Plaintiff’s

military record, and Plaintiff’s record contained no such notation. Id. at 185–86. Neither of those

specific contentions are acknowledged in the March 2014 Advisory Opinion.

         Finally, Defendant claims that the Board considered Plaintiff’s third argument—that the

“interest of justice” warranted forgiveness of Plaintiff’s debt to the Navy—because the denial letter

states, “[A]fter careful consideration of your request, the Board found insufficient evidence of an

error or injustice that would warrant the relief you sought.” Def.’s Reply at 9 (quoting A.R. Pt. 1

at 98). That quoted portion of Board’s letter, however, is taken out of context. The quoted sentence

reads, in full: “On 27 February 2012, after careful consideration of your request, the Board found

insufficient evidence of an error or injustice that would warrant the relief you sought.” A.R. Pt. 1

at 98 (emphasis added). Thus, the quoted sentence refers not the Board’s conclusion as to the

Motion, but rather its denial of Plaintiff’s original application for correction. 4

                                                  *        *        *

         In summary, there is nothing within either the March 2014 Advisory Opinion or the

Board’s denial letter of May 16, 2014, that provides a “reason that [the] court can measure” in

evaluating the Board’s decision against the arbitrary and capricious standard. Kreis, 866 F.2d at

1514–15. Accordingly, even under the “unusual deference” afforded to military correction boards

in this context, the Board’s denial of Plaintiff’s Motion does not pass muster.




4
  Defendant may have intended to cite a later sentence in the Board’s denial letter, which reads: “After careful and
conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to
establish the existence of probable material error or injustice.” A.R. Pt. 1 at 99. However, this generic language,
which is also used in the Board’s initial denial letter, see A.R. Pt. 1 at 20, does not enable the court to conclude that
the Board considered equitable interests in the context of the other arguments Plaintiff made on reconsideration.

                                                          11
        B.      Harmless Error

        Defendant further contends that even if the Board erred by failing to consider the three

arguments in Plaintiff’s request for reconsideration, any such error is harmless. Def.’s Reply at 4–

9. As to Plaintiff’s first contention—that the Navy did not follow correct procedures in removing

his NECs—Defendant asserts that other documents in the record evidence that the Navy did in fact

follow the proper procedures and properly removed Plaintiff’s NECs. Id. at 4–7. As to Plaintiff’s

second argument—that the Secretary of the Navy did not authorize the DFAS to recoup the debt—

Defendant maintains that the record shows that DFAS was authorized to collect the debt. Id. at 7–

8. Lastly, regarding Plaintiff’s third argument—that the Board should forgive Plaintiff’s error and

his debt to avoid manifest injustice—Defendant responds that, given the Board’s authority to

“remedy error or injustice,” implicit in its very denial of reconsideration is a rejection of Plaintiff’s

plea for leniency. Id. at 8–9.

        In asking the court to declare any errors harmless, Defendant asks the court to do exactly

what Kreis holds is improper—pass on the correctness of the Board’s decision. Kreis, 866 F.2d at

1511. This court’s review is limited to “whether the [Board’s] decision making process was

deficient, not whether its decision was correct.” Id. (emphasis added). District courts thus should

avoid the type of merits-based, harmless error analysis that Defendant asks the court to undertake

here. Cf. Coe v. McHugh, 968 F. Supp. 2d 237, 241 n.2 (D.D.C. 2013) (applying harmless error

rule to a board of correction decision that relied on an outdated regulation whose text in the new

version had not changed). When a court does find error in the decision-making process, the better

course is to remand the matter to the military correction board so that it can address any

deficiencies in the first instance. See Kreis, 866 F.2d at 1512. That is how the court will proceed

here.



                                                   12
IV.    CONCLUSION

       For the foregoing reasons, the court denies Defendant’s Motion for Summary Judgment

and grants Plaintiff’s Motion for Summary Judgment. The decision of the Board denying

Plaintiff’s request for reconsideration is remanded to the Board for further consideration.

       A separate Order accompanies this Memorandum Opinion.




Dated: March 16, 2017                                Amit P. Mehta
                                                     United States District Judge




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