              In the United States Court of Federal Claims
                                                No. 17-507C
                                           (Filed: April 3, 2020)

    PIETRO SCARSELLI,
                                    Plaintiff,

    v.


    UNITED STATES,
                                    Defendant.

Charles W. Gittins, Law Offices of Charles W. Gittins, P.C., Middletown, VA, for Plaintiff.

Douglas Glenn Edelschick, Trial Attorney, Steven J. Gillingham, Assistant Director, Robert E.
Kirshman, Jr., Director, and Joseph H. Hunt, Assistant Attorney General, Commercial Litigation
Branch, Civil Division, United States Department of Justice, with whom were Lieutenant Kevin
R. Griffin, of Counsel, Judge Advocate General Corps, United States Navy, for Defendant.

                             MEMORANDUM OPINION AND ORDER

TAPP, Judge. 1

        Plaintiff, Pietro Scarselli (“Scarselli”), a former United States Marine Corps (USMC)
Major, brings this military pay action against the United States alleging he was wrongfully
discharged from the USMC and seeking back pay and injunctive relief, pursuant to the Military
Pay Act, 37 U.S.C. § 204(a). (See generally Am. Compl., ECF No. 22). Scarselli served on
active duty in the USMC for more than seventeen years, until April 22, 2012, when the USMC
involuntarily discharged him with a general (under honorable conditions) characterization of
service. (See Am. Compl. at 1–2). Before the Court are Scarselli’s Motion for Judgment on the
Administrative Record (“MJAR”) following remand to the Board for Correction of Naval
Records (BCNR), (Pl.’s Second MJAR, ECF No. 40), and Defendant, the United States’, Cross-
Motion for Judgment on the Administrative Record. (Def.’s Cross-MJAR, ECF No. 43).

       In his Amended Complaint, filed on October 20, 2017, Scarselli alleges he was denied
the benefit of his bargain in a court-martial pre-trial agreement which was used by the USMC in
a Board of Inquiry (BOI) proceeding and ultimately led to his discharge. (Am. Compl. at 1).
Scarselli contends that the decision of the BCNR—which upheld the findings of the BOI and
recommended Scarselli be involuntarily discharged—was arbitrary, capricious, contrary to law,
and unsupported by substantial evidence. He specifically alleges: (1) the Secretary of the Navy,

1
 The case was originally assigned to Judge Nancy B. Firestone and transferred to Judge David A. Tapp on
December 17, 2019. (See ECF No. 48).
rather than the BCNR, was required to issue a final decision in Scarselli’s case; (2) the BCNR
panel that heard his case was comprised of retired military officers, rather than “civilians”; (3) as
a result of the Commanding General failing to dismiss Scarselli’s court-martial charges with
prejudice, as required by the pre-trial agreement, Scarselli’s pleas of guilty at the non-judicial
punishment (NJP) proceeding were improvident and “material legal error”; (4) the BOI was
improperly constituted; (5) Scarselli was denied due process by the failure to dismiss his court-
martial charges with prejudice; and (6) the BOI improperly relied on evidence of Scarselli’s
court-martial charges. (Am. Compl. at 10–14). Accordingly, Scarselli seeks: (i) to have the
BCNR and BOI decisions set aside; (ii) removal of the NJP from Scarselli’s military record and
reconsideration of the merits of his case at NJP; (iii) reinstatement to active duty or credit for 20
years of active duty service; (iv) back pay; (v) removal of all documents relating or referring to
the NJP or BOI from Scarselli’s Official Military Personnel File; and (vi) and other relief the
Court deems just and proper. (Am. Comp. at 15).

         On January 9, 2018, Scarselli filed his first MJAR, in which he argued, inter alia, that the
initial BCNR panel was improperly constituted and the Secretary of the Navy was required to
issue the final decision on his petition. (Pl.’s First MJAR, ECF No. 24). On March 6, 2018, the
United States filed an unopposed motion to remand, (ECF No. 29), which was ultimately granted
on March 7, 2018. (See ECF No. 30). In its motion, the United States agreed that the BCNR did
not possess authority to decide Scarselli’s challenges and explained that remand was necessary to
allow the BCNR to rescind its earlier decision and forward its recommendation to the Assistant
Secretary of the Navy (Manpower and Reserve Affairs) (“ASN (M&RA)”) for a proper decision.
(See ECF No. 29). On remand, the Executive Director of the BCNR vacated the BCNR’s earlier
opinion, reviewed the application again, and issued a decision recommending that the ASN
(M&RA) deny all relief. (BCNR Decision on Remand (“ARII”), ECF No. 39 at 2–4). The ASN
(M&RA) then remanded the matter back to the BCNR to decide Scarselli’s challenge that the
BCNR was prohibited from allowing retired service members to serve on corrections boards,
which was not raised in the first proceeding. (ARII at 1). Thereafter, a BCNR panel containing
no retired military members convened; the panel issued a decision recommending that the ASN
(M&RA) deny all relief. (ARII at 2–17). In a decision dated June 3, 2019, the ASN (M&RA)
concurred with the BCNR and denied Scarselli’s petition. (ARII at 1–2). This decision was filed
with the Court on June 19, 2019. (See ECF No. 39).

        On July 26, 2019, Scarselli filed the pending MJAR. (ECF No. 40). In this, Scarselli
concedes two of his arguments—that the BCNR was improperly constituted and the Secretary of
the Navy was required to issue the final decision in his case—were mooted by the BCNR’s
remand decision. (Pl.’s Second MJAR at 9–11). Scarselli further expands on the other allegations
in his Amended Complaint, adding that his BOI proceeding was tainted by unlawful command
influence. (Id. at 11–30). On October 4, 2019, the United States filed its Response and Cross-
MJAR. (ECF No. 43). On November 18, 2019, Scarselli filed his Reply and Response. (Pl.’s
Reply, ECF No. 46). On December 23, 2019, Scarselli filed a notice withdrawing his argument
of unlawful command influence. (ECF No. 49). On January 11, 2020, the United States filed its
Reply. (Def.’s Reply, ECF No. 50). This matter is now fully briefed and ripe for decision.

      For the reasons set forth below, the Court: (1) DENIES Scarselli’s second Motion for
Judgment on the Administrative Record; (2) GRANTS the Government’s Cross-Motion for


                                                  2
Judgment on the Administrative Record; and (3) DENIES AS MOOT Scarselli’s first Motion
for Judgment on the Administrative Record filed prior to remand.

                                                  Background 2

        Scarselli enlisted in the USMC and began a period of active duty on January 18, 1994.
(ARII at 3). On April 17, 1995, Scarselli was commissioned as a Marine Corps Officer. (Id.). In
April of 2009, Scarselli served as the Provost Marshal at Marine Corps Air Ground Combat
Center in Twenty-Nine Palms, California when allegations of misconduct arose. (Am. Compl. at
2). Colonel David N. Gill, the Command Inspector General, conducted an inspector general (IG)
investigation and, on August 18, 2009, substantiated the allegations of misconduct within the
Provost Marshal’s Office (PMO). (ARII at 3; AR444). On November 2, 2009, the USMC
preferred charges against Scarselli for the following violations of the Uniform Code of Military
Justice (UCMJ): Article 81 (conspiracy); Article 90 (willfully disobeying a superior
commissioned officer); Article 92 (violation and dereliction of duty); Article 93 (cruelty and
maltreatment); Article 107 (false official statements); and Article 134 (fraternization, obstruction
of justice, and solicitation of another to commit an offense). (AR94–98). After Scarselli waived
his right to an Article 32 investigative hearing, the Commanding General of the Marine Corp Air
Ground Task Force Training Command referred Scarselli’s charges to a general court-martial on
December 18, 2009. (AR95; ARII at 3).

         In November 2010, Scarselli offered to resolve the criminal charges and enter into a pre-
trial agreement providing that he would accept NJP and enter a pleas of guilty to the charges of:
(1) willfully disobeying a superior commissioned officer (Article 90); (2) dereliction of duty
(Article 92, four specifications); (3) fraternization (Article 134, one specification); and (4) failure
to enforce lawful orders (Article 133, one specification). (AR100–104). In exchange, Scarselli
offered that the convening authority “withdraw and dismiss with prejudice all charges [he] [is]
currently facing at a general court-martial,” and that the “agreement cannot be used against [him]
in the determination of [his] guilt on any matters arising from the charges and specifications
made against [him] if the case is referred to court-martial.” (AR100). The convening authority
accepted the offer, with certain modifications that were agreed to by all parties. (See AR106).
Specifically, the final pre-trial agreement provided that, “should the Show Cause Authority order
a Board of Inquiry be conducted . . . [Scarselli] agrees not to request, at Government expense, the
presence of any witness located outside of Twentynine Palms, CA.” (AR106). The agreement
further stated that “[t]his provision does not interfere with [Scarselli’s] ability to present his case
at a Board of Inquiry, and does not prevent [Scarselli] from using alternate means such as
telephonic testimony . . . .” (Id.).

        In December 2010, “the charges and specifications” were “withdrawn and dismissed
from General Court-Martial without prejudice” as “[t]he subject charges will be adjudicated at a
lower forum.” (AR0109) (emphasis added). Thereafter, Scarselli accepted NJP and pleaded
guilty to the charges itemized in the pre-trial agreement. (AR111–125). The Commanding
General imposed NJP in the form of “a punitive letter of reprimand,” and, on December 6, 2010,

2
  The facts in this section are taken substantially from the two-volume Administrative Record (AR). Citations to the
first volume will be in the form “AR_” and references to the second volume, containing the BCNR and ASN
(M&RA) decision on remand, will be in the form “ARII at _.”

                                                         3
issued a Report of NJP in which the Commanding General “recommend[ed] that Major Scarselli
be required to show cause for retention on active duty in the U.S. Marine Corps.” (AR127–130).
On December 8, 2010, Scarselli acknowledged receipt of the NJP report and, thereafter, filed
written statements acknowledging the Commanding General’s recommendation the he show
cause at a BOI and requesting that, “[i]f a BOI is ordered,” he “be permitted to continue [his]
career on active duty.” (AR134, 136).

        In January 2011, the Commanding General, who served as the “Show Cause Authority”
within Scarselli’s chain of command, “determined that there is sufficient information to refer this
case to a Board of Inquiry as to whether Major Scarselli should be retained in the Marine Corps.”
(AR138–39). The specific reasons for separation were: (1) “Substandard performance of duties,
as evidenced by a failure to demonstrate acceptable qualities of leadership required of an officer
of the member’s grade”; and (2) “Misconduct or Moral or Professional Dereliction, as evidenced
by the commission of a military or civilian offense which could be punished by confinement of 6
months or more.” (Id.).

        The BOI convened from March 31, 2011 to April 1, 2011. (AR1191). At the BOI, the
United States submitted the court-martial Charge Sheet containing all charges originally
proffered against Scarselli, including those that the court-martial convening authority had failed
to dismiss with prejudice pursuant to the pre-trial agreement. (AR141; see also AR1191–1201).
In addition, the United States submitted statements from Scarselli that were previously ruled to
be in violation of UCMJ Article 31, 10 U.S.C. § 831. 3 (AR307–11). Ultimately, the BOI found
that a preponderance of the evidence proved the allegations for two reasons. First, the BOI
determined that Scarselli had “substandard performance” as evidenced by a “[f]ailure to
demonstrate acceptable qualities of leadership required of an officer of [his] grade.” (AR1191,
1195). Second, Scarselli engaged in “misconduct . . . which, if prosecuted under the UCMJ,
could be punished by confinement for six months or more, including: (a) three offenses to which
he had pleaded guilty and received NJP, (AR1195, 1198–99), and (b) six additional offenses that
were dismissed by the convening authority but nevertheless were found to have been
substantiated by the BOI. (AR1195, 1199–1202). Accordingly, the BOI recommended that
Scarselli “be discharged and that the characterization of service be general (under honorable
conditions).” (AR1195). Following appeal, Scarselli received a general discharge (under
honorable conditions) in April 2012. (AR1562).

        In April 2015, Scarselli petitioned the BCNR to set aside the NJP and decision of the
BOI, reinstate him to active duty or order him retired, and award back pay and allowances.
(AR74). In August 2017, the BCNR denied Scarselli’s petition. (ARII at 3–18). In relevant part,
the BNCR determined that: (1) the failure of the Commanding General to dismiss Scarselli’s
court-martial charges with prejudice was not a “material breach” of the pre-trial agreement and
Scarselli did in fact receive the benefit of his bargain; (2) “it was not material error or unjust for
the BOI Recorder to submit, as evidence, the charge sheet containing all the charges originally
preferred against [Scarselli]”; (3) there was no “error or injustice in the BOI’s addition of a third
reason for separation to the findings worksheet;” (4) there was no error or injustice for Scarselli
3
  Article 3l(b) provides: No person subject to this chapter may interrogate, or request any statement from an accused
or a person suspected of an offense without first informing him of the nature of the accusation and advising him that
he does not have to make any statement regarding the offense of which he is accused or suspected and that any
statement made by him may be used as evidence against him in a trial by court-martial.

                                                          4
“to not be informed in the Notification of Separation Proceedings of the least favorable
characterization of service that may have been recommended by the BOI;” (5) “it was not error
or unjust for the BOI Recorder to submit, or for the BOI to accept as evidence, statements that
the military judge previously suppressed;” (6) although the Board “did not agree” with the use of
privileged testimony concerning a fitness report that had been directed to be expunged from
Scarselli’s OMPF, “there was no error or injustice;” and (7) “it was not error or unjust for the
BOI to consider unsigned, unsworn statements rather than the testimony of percipient witnesses
by phone or in person.” (ARII at 6–10).

      Ultimately, the BCNR “unanimously voted to deny [Scarselli’s] request to set aside [his]
NJP because there was no basis to disturb the findings.” (ARII at 16). The BCNR explained:

          The Board determined that the [Commanding General’s] action dismissing
          the charges without prejudice was not a breach of the [pre-trial agreement]
          and that there was no “cascading legal error” that warrants setting aside your
          NJP, BOI, or separation. Additionally, the Board determined that, although
          the BOI included some administrative errors, such errors were not material
          or unjust.

(Id.). Accordingly, the BCNR “determined that there was no basis” for relief and denied
Scarselli’s application. (Id.).

                                       Standard of Review

        Where, as here, the parties have filed cross-motions for judgment on the administrative
record, RCFC 52.1 provides a procedure for parties to seek the equivalent of an expedited trial
on a “paper record, allowing fact-finding by the trial court.” Bannum, Inc. v. United States, 404
F.3d 1346, 1356 (Fed. Cir. 2005). Unlike summary judgment standards, genuine issues of
material fact do not preclude a judgment on the administrative record. See id. at 1355–56.
Questions of fact are resolved by reference to the administrative record. Id. at 1356.

        In reviewing the determinations of a military corrections board, a plaintiff must
demonstrate “by cogent and clearly convincing evidence,” Wronke v. Marsh, 787 F.2d 1569,
1576 (Fed. Cir. 1986), that the military board's decision was “arbitrary, capricious, unsupported
by substantial evidence, or contrary to law.” Metz v. United States, 466 F.3d 991, 998 (Fed. Cir.
2006). It is well settled that “responsibility for determining who is fit or unfit to serve in the
armed services is not a judicial province; and that courts cannot substitute their judgment for that
of the military departments when reasonable minds could reach differing conclusions on the
same evidence.” Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983) (citations
omitted). Moreover, “military administrators are presumed to act lawfully and in good faith like
other public officers, and the military is entitled to substantial deference in the governance of its
affairs.” Dodson v. United States, 988 F.2d 1199, 1204 (Fed. Cir. 1993).

        A court may set aside an agency’s decision if the agency “entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or the decision is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Ala. Aircraft Indus., Inc. v. United States,

                                                  5
586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983)). However, “[w]hen substantial evidence supports the
board’s action, and when that action is reasonable in light of all the evidence presented, the court
will not disturb the result.” Pope v. United States, 16 Cl. Ct. 637, 641 (1989). The court’s review
“does not require a reweighing of the evidence, but a determination whether the conclusion being
reviewed is supported by substantial evidence.” Heisig, 719 F.2d at 1157.

                                                        Analysis

       Here, both parties moved for judgment on the administrative record. In his motion,
Scarselli acknowledges that his claims regarding the composition of the original BCNR panel
and the requirement that the Secretary of the Navy issue the final decision in his case, were
mooted after the Court remanded the matter back to the BCNR. (Pl.’s Second MJAR at 9–11).
Scarselli also withdrew his argument concerning unlawful command influence. (See ECF No.
49). As such, the Court will not address those issues. However, several allegations remain.

        Scarselli maintains that the USMC erred by not dismissing his court-martial charges with
prejudice, thereby denying Scarselli the benefit of his bargain, and that the BCNR’s finding
otherwise was arbitrary, capricious, and contrary to law. (Pl.’s Second MJAR at 13–20). Scarselli
also argues that the use and consideration of these charges at the BOI was in error. (Id.).
Moreover, Scarselli contends that he was denied due process at the BOI by not receiving advance
notice of a preliminary “worksheet” that listed a third reason for potential separation or the least
favorable characterization of discharge he faced at the BOI, and that the BCNR’s failure to
correct these injustices was contrary to law. (Id. at 20–25). Finally, Scarselli advances numerous
arguments concerning the conduct of the BOI: (1) the United States improperly and unfairly
provided exhibits to the BOI approximately one week before the hearing; (2) the BOI improperly
considered evidence of Scarselli’s statements that were deemed inadmissible during a
preliminary court-martial hearing, pursuant to UCMJ Article 31(b); and (3) the United States’
evidence was “unreliable” because it was “hearsay” and contradicted by other evidence he
submitted, and certain testimony should have been excluded as privileged. (Id. at 26–30). The
Court addresses each allegation in turn.

         a. Scarselli Received the Benefit of His Court-Martial Pre-Trial Agreement

         Scarselli alleges that the convening authority materially breached the court-martial pre-
trial agreement by failing to dismiss his court-martial charges with prejudice. (Pl.’s Second
MJAR at 13–20). Scarselli argues that by failing to dismiss his charges with prejudice, he did not
receive the benefit of his bargain and his guilty pleas must be set aside. 4 (Id.) Scarselli further
argues he did not receive the benefit of his bargain because the BOI considered the same


4
 In this regard, Scarselli also argues that he was denied the opportunity to call witnesses from outside the local area
at his BOI. (Pl.’s Second MJAR at 16–17). This is incorrect. Under the terms of his pre-trial agreement, Scarselli
agreed not to request non-local witnesses “at Government expense.” (AR106) (emphasis added). The provision went
on to state: “This provision does not interfere with the Accused’s ability to present his case at a Board of Inquiry,
and does not prevent the Accused from using alternate means such as telephonic testimony….” (Id.). Thus, Scarselli
was free to call witnesses at his expense or use alternate means, such as telephonic testimony. As such, Scarselli’s
claim that he was denied the opportunity to call witnesses is meritless.

                                                          6
underlying conduct in an administrative separation proceeding. (Id. at 17). Scarselli maintains
that the BCNR’s finding otherwise was arbitrary, capricious, and contrary to law. (Id.)

        On remand, after vacating its earlier decision, the BCNR addressed these contentions and
“determined there was no basis to disturb [Scarselli’s] NJP.” (ARII at 6). Specifically, the BCNR
stated:

          [T]he convening authority’s failure to dismiss the charges with prejudice did
          not constitute a material breach of the [pre-trial agreement] because
          [Scarselli’s] compliance with the [pre-trial agreement] was not complete until
          the BOI had commenced. Additionally, . . . the [Commanding General’s]
          failure to subsequently dismiss the charges with prejudice is moot as these
          charges were never referred to a court-martial and have since been barred by
          the applicable statute of limitations. Finally, the Board concluded that there
          can be no constitutional error unless charges were later referred to a court-
          martial since the NJP and BOI constitute administrative, not criminal,
          proceedings. The Board determined that charges dismissed in a military
          court-martial can serve as the basis for an administrative disciplinary action.
          See infra, discussing Rules for Courts-Martial (RCM) 306(c)(2), RCM
          401(c)(1). The Board also considered your claim preclusion assertion . . . and
          determined it did not apply because the issue was not before another criminal
          forum. Accordingly, the Board found you received the material benefit of
          your [pre-trial agreement], which was to avoid a court-martial and the
          possible negative consequences that would have followed from a federal
          conviction.

(ARII at 6).

        The Court finds that the BCNR’s decision in this regard was not arbitrary, capricious,
contrary to law, or unsupported by substantial evidence. While it is true that Scarselli’s court-
martial charges were dismissed without prejudice, rather than with prejudice, this was not a
material breach of the pre-trial agreement. The benefit of Scarselli’s pre-trial agreement was the
avoidance of a court-martial and possible criminal conviction, a benefit that he undoubtably
received. Scarselli was also not prejudiced by the failure to dismiss the charges with prejudice
because, as the BCNR correctly noted, the charges were never referred to a court-martial and
have since been barred by the applicable statute of limitations. (See ARII at 6). Thus, even if the
Court were to order specific performance in this instance, the outcome would remain unchanged:
the court-martial charges cannot be brought against Scarselli. As such, the BCNR’s conclusion
that there was no basis to disturb Scarselli’s NJP, was not arbitrary, capricious, or contrary to
law. At most, the convening authority’s failure to subsequently dismiss the charges with
prejudice was harmless. See Wagner v. United States, 365 F.3d 1358, 1361 (Fed. Cir. 2004);
Boyle v. United States, 101 Fed. Cl. 592, 601 (2011) (“If an error or injustice is found, and it is
determined to be more substantial than harmless error, the Secretary of the cognizant branch can
change the military record to correct the error or injustice.”) (emphasis added).

       Moreover, the BCNR’s determination that “charges dismissed in a military court-martial
can serve as the basis for an administrative disciplinary action,” is not in error. As the BCNR

                                                7
correctly noted, “NJP and BOI constitute administrative, not criminal proceedings.” (ARII at 6).
Under the Manual for Courts-Martial (MCM), Rule 401(c)(1), “[w]hen a commander dismisses
charges further disposition under R.C.M. [Rules for Court Martial] 306(c) of the offenses is not
barred.” 5 Under RCM Rule 306(c)(2), “[a] commander may take or initiate administrative action,
in addition to or instead of other action taken under this rule, subject to regulation of the
Secretary concerned.” (Id. at II-26). The discussion of this provision provides that administrative
measures include administrative separation. (See id.). The pre-trial agreement that Scarselli
signed does not include any provision that would provide relief from these rules. Thus, the
BCNR was correct that “charges dismissed in a military court-martial can serve as the basis for
an administrative disciplinary action.”

        This determination also does not run afoul of res judicata principles, despite Scarselli’s
arguments otherwise, and consequently, nothing precluded the BOI from considering these
charges in the administrative separation proceeding. Claim preclusion serves to bar re-litigation
of a claim when “(1) the parties are identical or in privity; (2) the first suit proceeded to final
judgment on the merits; and (3) the second claim is based on the same set of transactional facts
as the first.” Phillips/May Corp. v. United States, 524 F.3d 1264, 1268 (Fed. Cir. 2008). A
military BOI, however, is not a court and does not adjudicate criminal charges or administer
punishment. Rather a BOI recommends to a specified separation authority whether a service
member should remain in the military as an administrative matter. (See AR286–87). It is well
established that “acquittal on a criminal charge is not a bar to a civil action by the United States,
remedial in its nature, arising out of the same facts on which the criminal proceeding was based.”
United States v. One Assortment of 89 Firearms, 465 U.S. 354, 359 (1984) (quoting Helvering v.
Mitchell, 303 U.S. 391, 397 (1938)). The cases Scarselli relies on do not support his argument
otherwise.

        For example, Pactiv Corp. v. Dow Chem. Co., 449 F.3d 1227 (Fed. Cir. 2006), involved
an action brought by the licensee of a patent, seeking judgment of noninfringement, invalidity,
and unenforceability of the licensor’s patents. The court dismissed the action on res judicata
grounds as the parties were previously involved in an infringement action with the same patents
and inventions, and entered into a settlement agreement whereby the licensor agreed to dismiss
its claims of infringement against the licensee, with prejudice. Id. at 1230–32. Clearly, this case
involved two identical actions in judicial fora, not separate actions in criminal and administrative
contexts. Scarselli’s reliance on McCandless v. Merit Sys. Protection Bd., 996 F.2d 1193 (Fed.
Cir. 1993), is similarly misplaced as the Federal Circuit expressly found that the “elements of res
judicata [were] absent.”

       Finally, assuming arguendo, that Scarselli’s dismissed court-martial charges were barred
from consideration at the BOI, it would make no difference. The BOI found and Scarselli
conceded that he engaged in “misconduct . . . which, if prosecuted under the UCMJ, could be
punished by confinement for six months or more,” including three of the offenses to which
Scarselli had pled guilty to and received NJP. (AR1195, 1198–99; AR1154–55). Scarselli does
not contend that the charges he pleaded guilty to at the NJP were barred by res judicata, only the
court-martial charges that were dismissed altogether. Therefore, regardless of whether the

5
 MCM, United States (2012 ed.), https://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf, at II-31, Rules for
Court Martial 401(c)(1).

                                                      8
dismissed court-martial charges were barred by res judicata at the BOI, the BOI identified
additional grounds for separation that existed independent of any dismissed charges.

      Accordingly, the BCNR’s determination was not arbitrary, capricious, contrary to law, or
unsupported by substantial evidence.

       b. Scarselli Received Adequate Notice

        Next, Scarselli advances several notice arguments. (See Pl.’s Second MJAR at 20–26).
Scarselli argues that, although he received notice of the two reasons for potential separation—
substandard performance evidenced by failure to demonstrate acceptable qualities of leadership
and misconduct evidenced by commission of an offense punishable by six months or more—
prior to the BOI, he was not notified of a third reason for potential separation. (Id. at 20–25).
This third reason—substandard performance evidenced by failure to properly discharge duties—
was referenced on a “worksheet” that was provided to, and filled out by, the BOI. (AR1484–85).
This worksheet was a precursor to the final BOI report, which makes no reference to that third
basis for separation. The BCNR found “no error” existed in the final BOI report and determined
that any “potential error” had been remedied because the final report listed only “the two reasons
for separation of which [Scarselli] [had been] notified.” (ARII at 7). As explained above, the BOI
voted to separate Scarselli because the BOI found, and Scarselli conceded, that he engaged in
“misconduct . . . which, if prosecuted under the UCMJ, could be punished by confinement for six
months or more.” Thus, any failure to notify Scarselli of a third potential reason for separation
did not prejudice him, particularly when that reason was not ultimately included in the final BOI
report.

        Furthermore, at the BOI, the presiding official inquired “[d]oes either side object to the
worksheet?” and Scarselli’s counsel responded, “[n]one other than already noted, sir.”
(AR1177). The lone objection raised by Scarselli to this worksheet related to the inclusion of
previously dismissed charges. (See AR295–98). The BCNR noted that Scarselli’s counsel “did
not ask for additional time or formally object during the BOI.” (ARII at 7). Accordingly,
Scarselli waived his argument by failing to object at the BOI. See Exnicios v. United States, 140
Fed. Cl. 339, 367 (2018) (holding that “[b]y failing to object to” material before a “Field Board
of Inquiry, plaintiff waived his ability to assert that the Field Board of Inquiry improperly
considered the [material].”) (citing Snakenberg v. United States, 15 Cl. Ct. 809, 813 (1988);
Waller v. United States, 461 F.2d 1273, 1277 (Ct. Cl. 1972)).

        Scarselli also alleges that he was not provided notice of the least favorable
characterization of discharge that could be recommended at his BOI, in violation of
SECNAVINST 1920.6C, encl. 8, ¶ 5. (Pl.’s Second MJAR at 23–24). The BCNR addressed this
contention and “was not persuaded . . . that it was error or unjust for [Scarcelli] to not be
informed in the Notification of Separation Proceedings of the least favorable characterization of
service that may have been recommended by the BOI.” (ARII at 7–8). The BCNR explained that
Scarselli was “represented by two qualified attorneys and neither sought clarification from the
convening authority nor objected before the BOI to the allegedly inadequate notice. At the
Board, [Scarselli’s] defense counsel even commented that they were happy to defend against
everything.” (ARII at 8). The BCNR determined that “even if error, such allegedly inadequate


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notice did not prejudice [Scarselli].” (Id.). The BCNR’s decision in this regard was not
erroneous.

        Apart from raising the issue in passing in his brief, Scarselli does not argue this alleged
error was prejudicial. Established Navy guidelines provide for an “honorable” characterization of
service “[w]hen the separation is solely for reasons constituting substandard performance of
duty.” SECNAVINST 1920.6C, encl. 5 ¶ 1(a). When separation is based on misconduct, the
characterization of service may be “other than honorable,” “general (under honorable
conditions),” or “honorable,” depending on the circumstances. Id. at encl. 5 ¶¶ 1(b), 2(a)–(c). At
both the beginning and conclusion of the BOI, the United States requested an “other than
honorable discharge” for Scarselli, while Scarselli’s counsel argued he should be retained and
that an “other than honorable” characterization of service was not appropriate as a factual matter.
(AR316; AR1169; AR1154–66; AR1174–75). Ultimately, the presiding official did not agree
with either party and recommended a general (under honorable conditions) characterization of
discharge. (AR1178). As the BCNR correctly noted, Scarselli’s counsel never objected or sought
clarification to the allegedly inadequate notice but instead commented that they were “happy to
defend against everything.” (See ARII at 8). Accordingly, Scarselli waived any argument in this
regard by failing to object at the BOI. See Exnicios v. United States, 140 Fed. Cl. 339, 367
(2018). To the extent the argument was not waived, any error in failing to provide notice of the
least favorable characterization of discharge was harmless. See Wagner v. United States, 365
F.3d 1358, 1361 (Fed. Cir. 2004)

       c. Procedural Challenges to the BOI Proceedings

       Scarselli advances a mosaic of procedural arguments concerning the BOI proceedings in
arguing that the BCNR’s decision denying relief was arbitrary and capricious. (See Pl.’s Second
MJAR at 25–30). Because each argument is situational, each will be addressed in turn.

        First, Scarselli argues that the United States improperly provided hearing exhibits to the
BOI members approximately one week before the hearing. (Pl.’s Second MJAR at 26). However,
Scarselli has not identified any statute or regulation prohibiting this action and he has otherwise
failed to demonstrate any legal error or ultimate unfairness. Scarselli had the same “right to
submit, at any time before the board convenes . . . , any matter from the respondent's service
record, letters, answers, depositions, sworn or unsworn statements, affidavits, certificates, or
stipulations,” which “includes, but is not limited to, depositions of witnesses not deemed to be
reasonably available or witnesses unwilling to appear voluntarily.” (SECNAVINST 1920.6C,
encl. 8 ¶ 6(h)). Scarselli’s counsel asked the Board about the materials provided in advance and
was satisfied that they had not made up an opinion in this matter and did not challenge them for
cause. (AR290–91, 295). Thus, the Court agrees and finds no error with the BCNR’s finding that
Scarselli “provided no evidence to support [his] claim.” (ARII at 14).

        Next, Scarselli argues that it was legal error for the BOI to consider his statements that
were suppressed during a preliminary court-martial hearing pursuant to UCMJ Article 31(b).
(Pl.’s Second MJAR at 26–27; see also 10 U.S.C. § 831(b)). The BCNR found that this argument
“only applies in a court-martial context.” (ARII at 9). The BCNR explained that “Article 31,
UCMJ, only precludes use of an unwarned statement at a court-martial per 10 U.S.C. § 831(d),
and that SECNAVINST 1920.6C, enclosure (8), section 6c provides that ‘[f]ailure to warn the

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officers shall not preclude consideration of the testimony of the officers by the BOI.’” Id.; see
also 10 U.S.C. § 831(d) (UCMJ Art. 31(d): “No statement obtained from any person in violation
of this article, or through the use of coercion, unlawful influence, or unlawful inducement may
be received in evidence against him in a trial by court-martial.”) (emphasis added); Sasen v.
Spencer, 879 F.3d 354, 362–64 (1st Cir. 2018) (holding that Article 31(d)’s exclusionary remedy
is limited to court-martial context); United States v. Singleton, 600 F.2d 553, 555 (5th Cir. 1979)
(“[A]rticle 31(b) by its terms is limited to evidence used in a trial by court-martial.”). As
Scarselli fails to cite any support for his argument whatsoever, there is no basis to conclude that
the BCNR’s decision in this regard was arbitrary, capricious, contrary to law, or unsupported by
substantial evidence.

       Likewise, Scarselli’s assertion that claim preclusion principles apply to these suppressed
statements is baseless. (See Pl.’s Second MJAR at 26–27). These statements first arose in the
court-martial context and were suppressed by the judge in a preliminary evidentiary ruling.
(AR155–162). However, as explained above, Article 31 applies only in the court-martial context
and, under SECNAVINST 1920.6C, encl. 8, ¶ 10, “BOIs are not courts-martial and the rules of
evidence do not apply” and “oral or written matter not admissible in a court of law may be
accepted by BOIs.” Thus, Scarselli’s claim preclusion argument is meritless.

        Finally, Scarselli argues that the evidence relied upon by the BOI was “unreliable”
because it amounted to unsigned, unsworn statements and was further contradicted by evidence
that Scarselli submitted. (Pl.’s Second MJAR at 27–30). Based on that assertion, Scarselli
maintains that the testimony of Colonel Grabowski should have been excluded. (Pl.’s Second
MJAR at 27–29). The BCNR addressed this challenge and “determined it was not error or unjust
for the BOI to consider unsigned, unsworn statements rather than the testimony of percipient
witnesses by phone or in person.” (ARII at 10). The BCNR explained that “BOIs are not courts-
martial, and the rules of evidence do not apply. An oral or written matter not admissible in a
court of law may be accepted by BOIs.” (Id. (citing SECNAVINST 1920.6C, encl. 8 ¶ 10)). The
BCNR continued by stating:

          [Y]ou were afforded numerous opportunities to contact witnesses you felt
          were necessary and not cumulative. You also could have called these
          witnesses to testify telephonically or presented their testimony by means of
          written statements or depositions, as allowed by SECNAVINST 1920.6C,
          enclosure (8), section 9, but you chose not to, and nothing in the record
          indicates the BOI precluded you from availing yourself of these methods of
          presenting witness testimony. Finally, you never requested a continuance
          before or during the BOI in order to obtain written statements or other
          substitutes for testimony.

(ARII at 10).

       This conclusion was not arbitrary, capricious, contrary to law, or unsupported by
substantial evidence. Scarselli’s argument is essentially a request for this Court to second-guess
the merits of evidentiary rulings and the weight of evidence afforded by the BOI—a body not
bound by formal rules of evidence and that made a staffing recommendation that was
“committed wholly to the discretion of the military.” See Allphin v United States, 758 F.3d 1336,

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1341 (Fed. Cir. 2014) (“The merits of a military staffing decision are committed ‘wholly to the
discretion of the military.’”) (quoting Adkins v. United States, 68 F.3d 1317, 1322–23 (Fed. Cir.
1995)). Such is not the role of the court in reviewing the decisions of administrative agencies. As
Scarselli has provided no support for this argument, it cannot be said that the BOI committed
legal error or that the BCNR decision was arbitrary, capricious, contrary to law, or unsupported
by substantial evidence.

                                           Conclusion

       The Court finds that Scarselli has not demonstrated by cogent and clearly convincing
evidence that the BCNR’s decision was arbitrary, capricious, unsupported by substantial
evidence, or contrary to law. Therefore, the Court hereby: (1) DENIES Scarselli’s motion for
judgment on the administrative record after remand; (2) GRANTS the United States’ cross-
motion for judgment on the administrative record after remand; and (3) DENIES AS MOOT
Scarselli’s first motion for judgment on the administrative record.

       The Clerk is directed to enter judgment accordingly.

       IT IS SO ORDERED.

                                                              s/   David A. Tapp
                                                              DAVID A. TAPP, Judge




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