            In the United States Court of Federal Claims
                                    No. 14-958 C
                                (Filed July 24, 2015)
 JESUS M. MOSQUEDA,                      )
                  Plaintiff,             )
           v.                            )
                                         )
 THE UNITED STATES,                      )
                           Defendant.    )

                                     OPINION

      Plaintiff claims he was wrongfully discharged from the Navy following a
finding by an administrative separation board that he had committed a serious
offense as defined by the Naval Military Personnel Manual (“MILPERSMAN”).
See Doc. 1. Plaintiff unsuccessfully petitioned the Board for Correction of Naval
Records (“BCNR”) to reverse the administrative separation board’s decision. See
Doc. 1, Ex. H. The BCNR denied plaintiff relief, and he filed the instant complaint
asking the court to set aside the Navy’s action. See Doc. 1 at 27.

       Defendant has moved for partial dismissal of plaintiff’s case, for judgment on
the administrative record, and alternatively for remand. See Doc. 6. Plaintiff has
filed a cross-motion for judgment on the administrative record. See Doc. 9. For the
following reasons, the court denies the government’s motions, and grants plaintiff’s
motion for judgment on the administrative record.

I.    FACTS

       Plaintiff served on active duty in the Navy from March 3, 1992 to October 15,
2008. See Doc. 1, ¶ 7. Following a Naval Criminal Investigative Service
investigation into accusations that plaintiff molested a former girlfriend’s daughter,
see Doc. 1, ¶¶ 14-27, and two additional allegations of sexual misconduct made by
fellow Navy personnel, see Doc. 1, ¶ 28, the Navy instituted administrative
separation proceedings against plaintiff. See Doc. 1, ¶ 32.

      The Administrative Separation Processing Notice listed two reasons for the
action: (1) “Defective Enlistment and Inductions – Erroneous Enlistment,” pursuant
to MILPERSMAN 1910-130; and (2) “Misconduct – Commission of a Serious
Offense,” pursuant to MILPERSMAN 1910-142. Doc. 1, Ex. A, Tab C. No further
detail was provided in the notice with regard to the factual basis for these charges.

       At the administrative separation board hearing, the government presented
evidence relating to all alleged sexual misconduct. See Doc. 1, ¶¶38-39. Both
parties presented evidence of endemic sexual promiscuity among Navy personnel.
See Doc. 1, Ex. A, Tab F. The board concluded that plaintiff had not been
erroneously enlisted but that he had committed a serious offense, and recommended
“other than honorable” separation. See Doc. 1, ¶¶ 41-43.

      The stated basis for the board’s decision that plaintiff had committed a serious
offense was: “(1) Preponderance of [the] evidence supports child sexual molestation;
(2) Preponderance of [the] evidence indicates Petty Officer Mosqueda was likely
than not [sic] the abuser; (3) Per RTC Great Lakes instruction as staff member and
supervisor did not act on known inappropriate behavior of students which impacted
morale and conduct.” Doc. 1, Ex. A, Tab D.

       After reviewing plaintiff’s letter of deficiency contesting the board’s decision,
the commanding officer at Great Lakes stated that the board had given undue weight
to the evidence of child molestation, but affirmed the separation decision for
plaintiff’s violation of Instruction 5370.1, which imposes a duty to “report any
instance of fraternization and take immediate and appropriate corrective action.”
Doc. 1, Ex. A, Tab U at 2. The commanding officer then recommended a general
discharge, as opposed to the other than honorable discharge recommended by the
board. See id. at 3. On September 23, 2008, the Navy granted authority to separate
plaintiff under a general discharge based on plaintiff’s failure to report fraternization.
See Doc. 1, Ex. A, Tab E.

II.   ANALYSIS

      A.     Improper Discharge

      Plaintiff takes issue with the Navy’s action on myriad grounds. After careful
review of the record, however, it is clear that the Navy’s actions must be set aside
even under its own presentation of the facts.

      The court’s review of the Navy’s decision to discharge plaintiff is limited to
determining whether that decision “is arbitrary, capricious, unsupported by
substantial evidence, or contrary to applicable statutes and regulations.” Cronin v.
United States, 765 F.3d 1331, 1334 (Fed. Cir. 2014) (quoting Melendez Camilo v.

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United States, 642 F.3d 1040, 1044 (Fed. Cir. 2011)). “In accord with this standard,
the court does not reweigh the evidence but considers whether the Board’s
conclusion is supported by substantial evidence.” Verbeck v. United States, 118 Fed.
Cl. 420, 424 (2014) (citing Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir.
1983)).

       Here, plaintiff was discharged on the basis that he failed to report
fraternization. While evidence of fraternization was presented at the administrative
separation board hearing, and the fact that plaintiff presented some of that evidence
himself suggests he had knowledge of it, there is no evidence in the record that tends
to prove what plaintiff did or did not do with that information. See generally Doc.
1, Ex. A, Tab F. To be clear, the court does not find that the government’s evidence
on this point is simply insufficient, but rather that it is nonexistent. The government
asked no questions and presented no documents addressed to plaintiff’s action or
inaction with regard to fraternization.

      As such, the Navy’s conclusion that plaintiff violated Instruction 5370.1,
which ultimately served as the sole basis for his discharge, is unsupported by the
evidence and must be set aside.

      B.     Remedy

       As a remedy for his improper discharge, plaintiff seeks: (1) either restoration
to active duty, including reinstatement of lost time in grade and opportunity for
advancement, or placement on the Retired List with full pay and benefits; (2)
correction of his military records; (3) compensatory and consequential damages,
including all sums paid for medical expenses since the date of discharge; and (4)
attorneys’ fees and costs of this suit. See Doc. 1 at 27-29.

             1.     Reinstatement

       As the Federal Circuit has observed, even when a member of the military
prevails on a claim of improper discharge, “his remedy is limited.” See Dodson v.
United States, 988 F.2d 1199, 1208 (Fed. Cir. 1993). In Dodson v. United States,
the Circuit found that Mr. Dodson had been improperly discharged and barred from
reenlistment due to an error on the Army’s part. Even so, the court could not order
the Army to reenlist Mr. Dodson. The court explained:

      Because no one has a right to enlist or reenlist in the armed forces unless
      specially granted one, an enlisted serviceman who has been improperly

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      discharged is entitled to recover pay and allowances only to the date on
      which his term of enlistment would otherwise have expired had he not
      been so discharged.

Id. (citations omitted). In addition, the court noted that it could not determine
whether reenlistment was appropriate had the error not occurred—“[t]hat decision
is properly for the Army, not the court.” Id. See also Thomas v. United States, 42
Fed. Cl. 449, 452 (1998) (stating that “this court does not have the authority to order
the re-enlistment of a serviceman beyond the date on which his term of enlistment
would have expired”).

       The court, therefore, does not have the authority to order the Navy to restore
plaintiff to active duty since his term of enlistment expired several years ago. The
court can, however, restore plaintiff to the position he would have been in had he not
been improperly discharged by awarding back pay for the period of time between
the date on which he was improperly discharged and the date on which his enlistment
term would have expired. The case is remanded to the BCNR for calculation of the
appropriate sum to be awarded as back pay.

             2.     Retirement or Reserve Status

       Plaintiff’s request for this court to award him reserve or retirement status is
inappropriate and exceeds the bounds of the court’s review authority. On remand,
however, the BCNR is directed to take the appropriate steps to determine whether,
in the absence of the improper discharge, plaintiff would have been eligible for such
status pursuant to 10 U.S.C. § 6330, or an applicable Navy regulation.

             3.     Medical Expenses

        Plaintiff also seeks to recover all medical expenses he has incurred since the
date of his improper discharge. The government argues that plaintiff has waived this
claim because he did not raise it before the BCNR. See Doc. 6 at 23. Indeed, this
court has held that a claim for medical expenses is waived if it is not raised before
the relevant administrative board. See Thomas, 42 Fed. Cl. at 454 (“Plaintiff’s
failure to raise the issue of reimbursement for medical expenses at the [Army Board
for Correction of Military Records] waive[d] his right to do so for the first time on
this appeal.”) See also Doyle v. United States, 220 Ct. Cl. 285, 311 (1979) (“It has
long been part of our law that a party cannot raise an issue on appeal to a court when
it failed to raise it before an administrative agency competent to hear it.”).


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       Plaintiff concedes that medical expenses were “not specifically requested . . .
in his petition to the Board for Correction of Naval Records (BCNR).” Doc. 9 at 24.
A general demand that he be restored to the position he held prior to improper
discharge is insufficient to avoid waiver. Plaintiff’s request for medical expenses is
denied.

             4.    Attorneys’ Fees and Costs

     The time for filing a motion for attorneys’ fees and expenses under the Equal
Access to Justice Act, 28 U.S.C. § 2412(b) is set forth in RCFC 54(d)(2).

III.   CONCLUSION

      Plaintiff’s motion for judgment on the administrative record is GRANTED,
and defendant’s partial motion to dismiss, motion for judgment on the administrative
record, and motion to remand are each DENIED.

       Pursuant to RCFC 52.2 the case is remanded to the BCNR: (1) to calculate the
amount of active duty back pay to which plaintiff is entitled, including taking the
appropriate steps to determine whether, in the absence of the improper discharge,
plaintiff was entitled to continued active duty pay status pursuant to 10 U.S.C. §
1176(a), or any applicable Navy regulation; and (2) were there entitlement to
continued active duty status pursuant to 10 U.S.C. § 1176(a), to determine whether
plaintiff was entitled to a transfer to the Fleet Reserve, and if so the amount of any
back pay reserve compensation involved; and (3) to correct plaintiff’s records
pursuant to 28 U.S.C. § 1491(a)(2), in accord with this court’s conclusions.

      Defendant is designated, pursuant to RCFC 52.2(b)(1)(D), to report the status
of the remand proceedings, commencing on November 23, 2015, and at the
conclusion of each 90-day period thereafter until completion of the proceedings.

       Further proceedings are stayed pending completion of the remand.

       SO ORDERED.


                                              s/ James F. Merow
                                              James F. Merow,
                                              Senior Judge


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