In the United States Court of Federal Claims
                                           No. 11-483
                                    Filed: February 28, 2013
                                     TO BE PUBLISHED
***************************************
                                      *                10 U.S.C. § 620 (Active-duty lists);
                                      *                10 U.S.C. § 641 (exceptions to Active-
                                      *                   duty lists);
                                      *                10 U.S.C. § 10211 (Reserve officer
                                      *                   participation in preparation and
                                      *                   administration);
                                      *                10 U.S.C. § 14002(a) (Reserve active-
                                      *                   status lists);
                                      *                Failure To State A Claim, RCFC 12(b)(6);
                                      *                Judgment On The Administrative Record,
                                      *                   RCFC 52.1;
                                      *                Justiciability;
CHRISTOPHER W. CALDBECK,              *                MILPERSMAN 1001 (FTS Reserve
                                      *                   Officers);
      Plaintiff,                      *                Military Pay Act, 37 U.S.C. § 204 (2000);
                                      *                OPNAVINST 1427.1 (Regulations
v.                                    *                   Governing Running Mates,
                                      *                   Precedence, and Competitive
THE UNITED STATES,                    *                   Categories for Officers of the Navy
                                      *                   Reserve);
      Defendant.                      *                SECNAVINST 1400.1B (Officer
                                      *                   Competitive Categories for the Active
                                      *                   Duty List of the Navy and Marine
                                      *                   Corps);
                                      *                SECNAVINST 1420.1B (Promotion,
                                      *                   Special Selection, Selective Early
                                      *                   Retirement, And Selective Early
                                      *                   Removal Boards For Commissioned
                                      *                   Officers Of The Navy And Marine
                                      *                   Corps);
                                      *                SECNAVINST 1920.6C (Administrative
                                      *                   Separation Of Officers);
                                      *                Tucker Act, 28 U.S.C. § 1491 (2006).
***************************************

John B. Wells, Law Office of John B. Wells, Slidell, Louisiana, Counsel for Plaintiff.

Sheryl Lynn Floyd, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for the Government.
LT Christopher Jeter, JAGC, USN, of Counsel, Office of Judge Advocate General,
Washington, D.C.


                     MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Judge.

I.     RELEVANT FACTS.1

       A.      The Navy Commander’s 2009 Investigation Of Plaintiff’s Alleged
               Misconduct.

        Christopher Caldbeck (“Plaintiff”) was commissioned as an Ensign in the United States
Naval Reserve on December 21, 1991. Compl. ¶ IV. On November 22, 1993, Plaintiff was
designated as a Surface Warfare Officer. AR at 354. Thereafter, Plaintiff received: positive
fitness reports during his service (AR at 274-333); several certifications and qualifications (AR
at 354-396); and other awards and commendations (AR at 335-52).

      On October 4, 2008, Plaintiff reported to Navy Recruiting District, Houston (“NRD
Houston”) to work as the Executive Officer (“XO”). Compl. ¶ XVII.

        In July 2009, the Commander of the Navy’s Recruiting Region West (“the Commander”)
received an anonymous complaint alleging that Plaintiff engaged in conduct creating a “hostile
work environment,” and used “abusive and racial language.” AR at 191, 199. In response, the
Commander instituted an investigation of an alleged interaction between Plaintiff and Yeoman
Chief Petty Officer Faith Floyd (“YNC Floyd”), an African-American woman with 11 children.
AR at 209-10. Allegedly, Plaintiff called YNC Floyd into his office, while watching “a news
story about a troop of baboons ripping open a car top carrier.” AR at 181, 209. Allegedly,
Plaintiff then remarked, “[H]ey YNC [Floyd,] I found your kids.” AR at 200. Plaintiff contends
that he did not intend any racial connotations by this remark. AR at 200. Plaintiff explained that
“[t]he intent of [his] comments was to make lite [sic] of parenthood and how messy and chaotic
kids can be.” AR at 200; see also AR at 181. But, allegedly, YNC Floyd left Plaintiff’s office
“visibly shaken and angry” by his comment and notified the Commander. AR at 182.
Subsequently, Plaintiff contended that he tried to apologize, but YNC Floyd “refused the
apology.” AR at 181.

        Subsequently, the Commander was asked to investigate a different allegation, i.e., that
Plaintiff made disparaging comments about Filipinos to Yeoman Chief Petty Officer Jesus
Almaguer (“YNC Almaguer”). AR at 199. YNC Almaguer’s wife is a Filipino. AR at 183.
YNC Almaguer claimed that, because a Navy Criminal Investigative Service (“NCIS”) agent
informed Plaintiff of Basic Allowance for Housing (“BAH”) fraud “associated with the
Philippines,” he “ordered [YNC Almaguer] to look into another [s]ailor[’s] BAH status,”
       1
       The relevant facts were derived from the July 26, 2011 Complaint (“Compl.”) and the
December 21, 2011 Administrative Record (“AR at 1-429”).



                                                2
because that sailor was married to a Filipino woman, gratuitously stating, “[W]e know what
these Filipino women are looking for[.]” AR at 182-83. Plaintiff denies that he made this
statement, but an Acting Commander corroborated YNC Almaguer’s account. AR at 183.
Subsequently, however, the Commander was not able to find a corroborating witness who could
confirm or refute this allegation. AR at 187.

        In addition, the Commander was asked to investigate an allegation that Plaintiff used a
racial slur to denigrate Dr. Innocent Duru. AR at 199. After helping Dr. Duru move to a new
office, Plaintiff allegedly responded to Dr. Duru’s expression of gratitude by stating, “it is better
than most n[******] would thank me for.” AR at 183. Plaintiff denies that this alleged
interaction even occurred and claims that it “is a malicious attack on him[.]” AR at 183.2

        Other allegations critical of Plaintiff’s management style and his conduct that allegedly
created a hostile work environment followed. For example, Lieutenant Brenna Montgomery
(“LT Montgomery”) alleges Plaintiff called her a “SWO b[****,]” referring to her gender and
career path (Surface Warfare Officer) in a negative way. AR at 184. Plaintiff denied this
allegation, but admitted to calling LT Montgomery a “Baby SWO.” AR at 184. Subsequently,
the Commander substantiated that Plaintiff used both terms. AR at 187.

        In addition, LT Montgomery presented several allegations of Plaintiff creating a hostile
working environment at NRD Houston, including extended work hours, speaking in a derogatory
manner, “berating during closed door sessions,” and other specific behaviors. AR at 184. She
also reported that “several times a week field recruiters call her office and ask when [Plaintiff]
will become Commanding [O]fficer . . . because they are trying to . . . leave the command prior
to or just after [Plaintiff] takes over.” AR at 184. During this time, the Acting Commander
Master Chief also reported that Plaintiff exhibited “questionable leadership practices” and is
“very intimidating and not easily approachable.” AR at 184. The Commander also found that
Plaintiff’s “methodology did indeed create a hostile work environment where individuals felt
berated, abused and intimidated.” AR at 187. This finding was corroborated by the
“Organizational Climate Survey Report for NRD Houston” and the “Command Assessment
Climate Survey of 12-19 January 2009,” that observed “the report hints to a fear of reprisal.”
AR at 188, 246-67.

        On August 20, 2009, the Commander’s investigation concluded that, even though
Plaintiff had appropriate command training regarding the Navy’s equal opportunity policy,
Plaintiff was “not cognitively aware of the racial implication of his comments.” AR at 188. The
investigation “concluded [that] the allegation that [Plaintiff] created a hostile work environment
is [s]ubstantiated.” AR at 188 (emphasis omitted). Although there was no recommendation that
Plaintiff be “held accountable through either the judicial or non-judicial system,” the
investigation recommended that “appropriate administrative action to hold [Plaintiff]
accountable” be taken and that “detachment . . . may be warranted.” AR at 188.




       2
       Importantly, the Commander was unable to find any “witnesses who had first[-]hand
knowledge to corroborate either [Plaintiff’s] or Dr. Duru’s statements[.]” AR at 187.


                                                 3
       B.      The Board Of Inquiry Proceedings.

        On September 11, 2009, the Commanding Officer of NRD Houston requested that
Plaintiff “be detached for cause as Executive Officer by reason of loss of confidence in
[Plaintiff’s] ability to command,” since the Commander’s investigation substantiated allegations
that Plaintiff’s “actions and statements created a hostile work environment and included the use
of abusive and racial language.” AR at 428 (Administrative Separation order, Enclosure (1)).

        On February 22, 2010, the Commander of Navy Personnel Command sent a letter to
inform Plaintiff that he was required to “show cause for retention in naval service,” based on the
“misconduct as alleged[.]” AR at 411 (the “Show Cause Letter”). The Show Cause Letter
contained two allegations. AR at 411. First, Plaintiff was cited with “[m]isconduct,” due to the
“[c]omission of a military or civilian offense, which . . . under the Uniform Code of Military
Justice (UCMJ), could be punished by confinement of six months or more[.]” AR at 411. This
citation related specifically to misconduct substantiated in the Commander’s August 14, 2009
Report. AR at 411. Second, Plaintiff was cited with, and would be required to explain, his
“[s]ubstandard performance of duty,” i.e., his “[f]ailure to conform to prescribed standards of
military deportment.” AR at 411. Plaintiff also was notified that a Board of Inquiry (“BOI”)
would be convened to consider his case. AR at 411. On March 4, 2010, Plaintiff signed an
“Acknowledgment of Rights” indicating that he received the February 22, 2010 Show Cause
Letter and requested a BOI review, instead of tendering his resignation. AR at 415-16.

        On April 8, 2010, a Judge Advocate General was assigned to defend Plaintiff. AR at 421.
In advance of the BOI hearing, several letters were sent to the BOI from Navy officers in support
of Plaintiff. AR at 404-08. In preparation for the BOI proceeding, Plaintiff attempted to obtain a
2.45 gigabyte file containing all the data from his Navy email account. AR at 397-400. Plaintiff
was informed that to obtain emails from his file, he would need to inform the Navy of the
“[a]pproxima[te] date of the email, the sender and subject matter,” because Plaintiff could only
receive “specific emails that . . . have been reviewed[.]” AR at 397. The Administrative Record
does not contain any evidence that Plaintiff complied with this request.

        On May 6, 2010, the BOI convened at NRD Houston. AR at 428-29. 3 The BOI’s
Presiding Officer was Naval Reserve Captain Richard Wakeland (designator 1125). AR at 103.
The other members of the BOI were Captain Richard Verbeke (designator 6400) and Naval
Reserve Captain Stephen Wickerson (designator 1115). AR at 103. Plaintiff was represented by
both military and civilian counsel. AR at 104. The BOI record reflects that Plaintiff
acknowledged that he was represented by counsel and was informed of his rights. AR at 28-33.
During these proceedings, the BOI advised Plaintiff that the allegations to be considered
regarding misconduct included: “(1) Violation of the UCMJ, Article 92, Failure to obey a lawful
order; (2) Violation of the UCMJ, Article 133, Conduct unbecoming an officer and a gentleman;
(3) Violation of the UCMJ, Article 117, Provoking speeches or gestures; and (4) Violation of the
       3
        At the time of the BOI’s review, Plaintiff was “an unrestricted line officer (surface
warfare) with 18 years, 6 months commissioned and active duty service . . . [who] was
commissioned via Naval Reserve Officer Training Corps.” AR at 428. Plaintiff’s designator (a
number indicating a Naval Officer’s competitive category) was 1117. AR at 428.



                                                4
UCMJ, Article 93, Cruelty and maltreatment[.]” AR at 29. In addition, Plaintiff was advised by
the BOI that he was being considered for separation from the Navy, because of: “[s]ubstandard
performance of duty[:] (1) Failure to conform to prescribed standards of military deportment.”
AR at 29.

        Plaintiff’s civilian counsel advised the BOI that Plaintiff requested his “Detachment For
Cause” file and “email traffic” but that the Navy had failed to provide it. AR at 30. In turn,
Plaintiff’s counsel objected, because his client was “denied his right to full discovery.” AR at
30. The BOI responded that it intended to proceed but “want[ed] the command to produce the
records,” and ordered Plaintiff’s civilian counsel to “outline specific written reasons why the
records are requested[.]” AR at 30.

        Plaintiff acknowledged that he had the rights: to obtain “[f]ull access to and copies of
records relevant to the case except such information that . . . should be withheld in the interest of
national security” (AR at 31); to challenge “any voting member of the [BOI] for cause” (AR at
31); and to “submit a statement in rebuttal to the [BOI’s] findings and recommendations” (AR at
33). Plaintiff also indicated that he understood that “[f]ailure to invoke any of these rights shall
not be considered a bar to the [BOI] proceedings, findings or recommendations.” AR at 33.
Plaintiff’s civilian counsel questioned the BOI on “matter[s] that may constitute grounds for
challenge for cause [of a BOI member,]” but stated that Plaintiff did not have any “challenge for
cause against any voting member of [the BOI.]” AR at 33-34.

        The BOI considered the statements of YNC Almaguer, the Acting Commander Master
Chief, and Dr. Duru, as Navy exhibits. AR at 34. In addition, the BOI considered Plaintiff’s:
fitness reports; awards; qualifications; and letters of support from other Navy officers. AR at 35.
In addition, the following witnesses were examined by the Navy’s counsel, counsel for Plaintiff,
and counsel for the BOI: Dr. Duru (AR at 35-46) (testimony concerning allegations of racism
and contents of Dr. Duru’s notebook, that Plaintiff claimed was altered after the fact); YNC
Floyd (AR at 46-51) (testifying about Plaintiff’s remarks regarding her children); LT
Montgomery (AR at 51-64) (testifying about remarks Plaintiff made to her, as well as the
incident involving YNC Floyd); Capt. Kreutz (AR at 64-69) (Plaintiff’s former supervisor);
Patrick A. Walker (AR at 69-71) (testifying on behalf of the Navy); CMC Hill (AR at 71-73) (a
former colleague of Plaintiff testifying on his behalf); LT Dennis L. Holmes, Jr. (AR at 73-75)
(same); Anthony Baiamonte (AR at 98-100) (testifying that he was instructed by “JAG” on
specific protocols that had to be met before he could produce Plaintiff’s email file); and Plaintiff
(AR at 76-97).

        Plaintiff denied the allegations in the testimony of Dr. Duru, LT Montgomery, and YNC
Almaguer, and allegations that Plaintiff created a hostile work environment. AR at 76-97.
Plaintiff admitted that he made the alleged statement to YNC Floyd, but explained that he did not
intend any negative racial connotations. AR at 76-77, 87-88.

        On May 6, 2010, the BOI unanimously found Plaintiff to be guilty of violating UCMJ,
Article 92 (failure to obey an order or regulation) and Article 133 (conduct unbecoming an
officer and gentleman). AR at 100-01. The BOI also found that Plaintiff did not violate UCMJ
Article 117 (provoking speech or gestures) or Article 93 (cruelty and maltreatment). AR at 101.



                                                 5
But, the BOI found that Plaintiff failed to conform to prescribed standards of military
deportment. AR at 101. Accordingly, the BOI recommended that Plaintiff be separated from the
Navy with the “characterization of service to be General Under Honorable Conditions.” AR at
101-02. On August 9, 2010, the BOI forwarded this recommendation to the Commander of the
Navy Personnel Command. AR at 9-10.

      Plaintiff did not appeal the BOI’s recommendation to the Board of Corrections for Naval
Records (“BCNR”). Compl. ¶ CXII.

       C.      Letter Of Deficiency And Separation.

        On July 7, 2010, Plaintiff’s civilian counsel sent a “Letter of Deficiency” to the Chief of
Naval Personnel contending that the BOI was improperly composed, because no member was
from the same competitive category as Plaintiff (an “FTS Surface Warfare Officer
Commander”). AR at 1-2. Plaintiff’s counsel also objected to the BOI proceedings because the
inability to access Plaintiff’s email file prevented counsel from obtaining relevant records, access
to which was required by Navy regulations. AR at 2-3. Consequently, the record before the BOI
was insufficient to support the BOI’s recommendation that Plaintiff be separated from the Navy.
AR at 3-5. Finally, Plaintiff’s counsel objected to the actions of Captain Verbeke, citing his
failure to act neutrally as a fact-finder on the BOI, instead of “as a ‘prosecutor.” AR at 5. In
support, Plaintiff attached a polygraph test conducted by a former FBI agent, corroborating
Plaintiff’s testimony, as well as an affidavit of Command Master Chief (SW) Loretta J. Burchett,
indicating that she witnessed Dr. Duru appearing to alter the notebook he referenced to
corroborate his testimony. AR at 22-27.

        On September 24, 2010, Plaintiff’s “separation with an under Honorable conditions
(General) discharge” was approved by the Assistant Secretary of the Navy (Manpower and
Reserve Affairs) (“ASN (M&RA)”). AR at 429 (administrative separation order). On
November 30, 2010, Plaintiff was separated from the Navy. Compl. ¶ CII; AR at 428-29. At
that time, he had served “18 years, 6 months commissioned and active duty service.” AR at
428.4

II.    PROCEDURAL HISTORY.

        On July 26, 2011, Plaintiff filed a Complaint in the United States Court of Federal Claims
alleging that he was improperly separated from the Navy. The Complaint also alleges that: the
BOI improperly was composed, because no member was from the same “competitive category”
as Plaintiff (Compl. ¶¶ LVIII-LIX); Plaintiff improperly was denied access to relevant
documents (Compl. ¶ LX); a notebook admitted into evidence was not provided to Plaintiff prior
to the BOI review and was “fabricated or altered” (Compl. ¶¶ LXII-LXIII); the “show cause”
letter did not sufficiently specify the allegations (Compl. ¶¶ LXV, LXXVI); several regulations
implemented by the BOI were void (Compl. ¶¶ LXXII, LXXVII, LXXXIV, XCII, XCV);
Plaintiff’s “Letter of Deficiency” was not submitted to the Secretary of the Navy (“Secretary”) as
required by Navy regulations (Compl. ¶ CI); the Secretary erred in refusing to reconsider the
4
 The July 26, 2011 Complaint characterizes Plaintiff’s term of service as “17 years 9 months
and 9 days of active service and 1 year 3 months and 1 day inactive service.” Compl. ¶ CII.


                                                 6
BOI’s decision (Compl. ¶ CVI); a subsequent investigation by an NCIS Special Agent
corroborated Plaintiff’s testimony, challenging the validity of the Commander’s 2009
investigation (Compl. ¶ CIII); and Plaintiff was deprived of his property interest without due
process (Compl. ¶ CX). The Complaint requests that the court grant Plaintiff pay and allowances
from his grade retroactive to his separation date and removal of all “references to the [BOI] or
detachment for cause from his service record[,]” and restore him to active duty in his grade.
Compl. at 21. In the alternative, the Complaint requests that Plaintiff be retired and awarded all
retirement pay retroactive to his retirement eligibility date. Compl. at 21. In addition, Plaintiff
requests that the court award costs and attorney’s fees, “pursuant to the Equal Access to Justice
Act.” Compl. at 21.

         On December 21, 2011, the Government filed the Administrative Record and a Motion
To Dismiss, And In The Alternative, Motion For Judgment Upon The Administrative Record
(“Gov’t Mot.”). The Government’s motion was accompanied by an Appendix (“Gov’t App.”).
The Government argues that Plaintiff’s allegations are not justiciable and, thus, should be
dismissed. Gov’t Mot. at 12-14. In the alternative, the Government argues that judgment on the
Administrative Record should be entered in favor of the Government because the Plaintiff failed
to satisfy his burden to demonstrate error by the BOI or the Secretary of the Navy. Gov’t Mot. at
32.

       On March 3, 2012, Plaintiff filed a Motion To Strike The Affidavit Of Commander Jack
Barnhill (“Pl. MTS”) from the Administrative Record, supported by the Affidavit of John B.
Wells. On March 5, 2012, Plaintiff filed an Opposition To Defendant’s Motion For Judgment
On The Administrative Record And Cross-Motion For Judgment On The Administrative Record
(“Pl. Mot.”), including two exhibits (“Pl. Mot. Ex. A-B”).

       On April 5, 2012, the Government filed an Opposition To Plaintiff’s [March 3, 2012]
Motion To Strike The Affidavit Of Commander Jack Barnhill, And Defendant’s Motion To
Strike Affidavit Of John B. Wells (“Gov’t MTS Op.”). On April 18, 2012, Plaintiff filed a Reply
To Defendant’s Opposition To Plaintiff’s Motion To Strike The Affidavit Of Commander Jack
Barnhill And Opposition To Defendant’s Cross-Motion To Strike The Affidavit Of John B.
Wells.

      On May 31, 2012, the Government filed a Reply To Plaintiff’s [April 18, 2012]
Opposition To Defendant’s Motion To Strike The Affidavit Of John B. Wells.

      On June 29, 2012, the Government filed a Reply in support of its December 21, 2011
Motion and in opposition to Plaintiff’s Cross-Motion For Judgment on the Administrative
Record (“Gov’t Reply”), which also included an Appendix (“Gov’t Reply App.”).

        On August 13, 2012, Plaintiff filed a Reply to the Government’s June 29, 2012 Reply
(“Pl. Reply”).




                                                7
III.   DISCUSSION.

       A.      Jurisdiction.

        The Tucker Act conveys “jurisdiction to render judgment upon any claim against the
United States founded either upon the Constitution, or any Act of Congress or any regulation of
an executive department, or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1)
(2000). The Tucker Act, however, is only a “jurisdictional statute; it does not create any
substantive right enforceable against the United States for money damages.” United
States v. Testan, 424 U.S. 392, 398 (1976). Therefore, in order to pursue a substantive right,
plaintiff “must assert a claim under a separate money-mandating constitutional provision, statute,
or regulation, the violation of which supports a claim for damages against the United States.”
James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998).
        The Military Pay Act provides that “a member of the uniform service who is on active
duty . . . [is] entitled to the basic pay of the pay grade to which assigned.” 37 U.S.C. § 204
(2000). If it is determined that separation from the military was improper, entitlement to any pay
due provides a money-mandating predicate for invocation of the Tucker Act.                     See
Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997) (“It is well established that 37
U.S.C. § 204 . . . serves as the money-mandating statute applicable to military personnel
claiming damages and ancillary relief for wrongful discharge.”).
        In this case, the court has jurisdiction to adjudicate the claims alleged in the July 26, 2011
Complaint, as it properly invoked the Tucker Act, i.e., the “specific statute [that] sets the court's
jurisdictional parameters,” and the Military Pay Act, i.e., “a separate statute [that] establishes the
right that allegedly has been breached.” See Fisher v. United States, 402 F.3d 1167, 1172 (Fed.
Cir. 2005); see also Voge v. United States, 844 F.2d 776, 781 (Fed. Cir. 1988) (quoting
Silbert v. United States, 566 F.2d 1190 (1977)) (“[S]ection 1491(a) gives the Claims Court
power to order the correction of military records only ‘incident of and collateral to’ its award of a
money judgment.”).
        The fact that Plaintiff decided not to exhaust the available administrative remedies by
appealing to the BCNR does not affect the court’s jurisdiction. See Martinez v. United States,
333 F.3d 1295, 1304 (Fed. Cir. 2003) (“[T]he failure to seek relief from a correction
board . . . does not prevent the plaintiff from suing immediately[.]”); see also Richey v. United
States, 322 F.3d 1317, 1323 (Fed. Cir. 2003) (“An officer seeking correction of military records
may either apply as an initial matter to a Corrections Board, or file suit under the Tucker Act in
the [United States] Court of Federal Claims.”).

       B.      Standard For Review On Motion To Dismiss Under RCFC 12(b)(6).

       A challenge to the United States Court of Federal Claims’ “[ability] to exercise its
general power with regard to the facts peculiar to the specific claim . . . . is raised by a [Rule]
12(b)(6) motion[.]” Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also
RCFC 12(b)(6) (“Every defense to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may assert the following defenses by


                                                  8
motion: . . . (6) failure to state a claim upon which relief can be granted[.]”). When considering
whether to dismiss an action for failure to state a claim, the court must assess whether the
complaint states “allegations plausibly suggesting (not merely consistent with)” behavior by
defendant that, if proven, would entitle the plaintiff to judicial relief. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007). The factual allegations must be substantial enough
“to raise a right to relief above the speculative level, on the assumption that all the allegations in
the complaint are true (even if doubtful in fact)[.]” Id. at 555 (internal citations omitted).

       C.      Justiciability Issues Raised by the Government’s Motion To Dismiss.

       The Government argues that the July 26, 2011 Complaint does not state a justiciable
claim and “boils down to [Plaintiff’s] contention that the military should not have convened a
BOI, and that there was insufficient evidence before the BOI to conclude that he committed
misconduct.” Gov’t Mot. at 10 (citing Compl. ¶¶ LXVII-LXXI, LXXXI-LXXXII). In addition,
the Complaint “does not cite to any ‘procedures’ that the Navy failed to follow when it
determined that his conduct was improper and that he should be separated.” Gov’t Mot. at 13.
Further, “[t]he mere fact that [Plaintiff] disagrees with the findings of the BOI or the weight it
afforded to the evidence presented should not be enough for [the c]ourt to delve into the
underlying substantive actions supporting his separation.” Gov’t Mot. at 14. In sum, the
Secretary’s decision to separate Plaintiff “could [not] be more military in nature and less
appropriate for judicial review.” Gov’t Mot. at 11.

        Plaintiff responds that the Complaint alleges justiciable claims, because “[i]n the instant
case, there are identifiable and measurable tests and standards[,]” “the military acted arbitrarily
and capriciously[,]” “the Navy’s decision was contrary to the Constitution, laws[,] and
regulations of the United States,” and “the findings of the [BOI] were not supported by
substantial evidence in the record.” Pl. Mot. at 18. Moreover, it is well established that military
decisions are “subject to judicial review and can be set aside if they are arbitrary, capricious or
not based on substantial evidence.” Pl. Mot. at 18 (citing Chappell v. Wallace, 462 U.S. 296,
303 (1983)). Since the Complaint alleges the BOI’s decision was arbitrary, capricious, or not
based on substantial evidence, and that the Navy failed to follow “measured tests and standards,”
this case is justiciable. Pl. Mot. at 18. Plaintiff adds that although “decisions which affect the
conduct of military operations, strategy or tactics” are not justiciable, “personnel decisions” are
reviewable by the courts. Pl. Mot. at 20-21 (citing Adair v. England, 183 F. Supp. 2d 31, 50
(D.D.C. 2002) (holding that the military’s policies to “hire, retain, and promote
chaplains . . . relate to quality-of-life issues for military personnel and have no specific
operational, strategic, or tactical objective” and therefore require less deference)).

        The Government replies that the suggestion that BOI’s factual findings were misguided
“amount[s] to a request of the [c]ourt to substitute its judgment for that of the Secretary.” Gov’t
Reply at 8. This is improper because judicial review is limited to “‘tests and standards’ against
which the court can measure [the Secretary’s] conduct.” Murphy v. United States, 993 F.2d 871,
873 (Fed. Cir. 1993). Since there is no standard by which the court can measure the Secretary’s
actions, the court should reject Plaintiff’s challenge of the Navy’s determination that he be
separated from service. Gov’t Reply at 8-9.




                                                  9
        The United States Court of Appeals for the Federal Circuit repeatedly has emphasized
that the duty of the court, in cases concerning military personnel and benefits, is to be mindful of
the import of the doctrine of justiciability, i.e., whether the dispute is one within the competency
of the court. See Fisher, 402 F.3d at 1176 (“Justiciability has both constitutional and prudential
dimensions[.] . . . Though justiciability has no precise definition or scope, doctrines of standing,
mootness, ripeness, and political question are within its ambit. . . . One aspect of justiciability
relates to the issue of whether deference in a given case should be given by the judiciary to the
particular authority and competence of another branch of government[.] . . . [Justiciability also]
can arise under basic separation of powers concepts or because Congress has dictated that such
deference be given.”) (citations omitted) (footnote omitted).

        This deference, however, does not extend to “ignoring basic due process considerations[.]
When there is a question of whether reasonable process has been followed, and whether the
decision maker has complied with established procedures, courts will intervene, though only to
ensure that the decision is made in the proper manner.” Fisher, 402 F.3d at 1177; see also
Adkins v. United States, 68 F.3d 1317, 1323 (Fed. Cir. 1995). The United States Court of
Appeals for the Federal Circuit, however, has held that, “although the merits of a decision
committed wholly to the discretion of the military are not subject to judicial review, a challenge
to the particular procedure followed in rendering a military decision may present a justiciable
controversy.” Sargisson v. United States, 913 F.2d 918, 921 (Fed. Cir. 1990) (stating that
“[o]nce the Secretary promulgated regulations and instructions and made them the basis for [an
Air Force Reserve Officer]’s release, his action became subject to judicial review for compliance
with those regulations and instructions, even though he was not required to issue them at all[.]”).
Whether an issue is justiciable “depends on ‘whether the duty asserted can be judicially
identified and its breach judicially determined, and whether protection for the right asserted can
be judicially molded.’” Murphy, 993 F.2d at 872-73 (citing Baker v. Carr, 369 U.S. 186, 198
(1962)). When a complaint alleges “procedural violations . . . , the test or standards against
which this court measures the military’s conduct . . . are the applicable statutes and regulations.”
Adkins, 68 F.3d at 1323 (citing Murphy, 993 F.2d at 873 (In such cases, the court “appl[ies] the
facts to the statutory or regulatory standard.”)). The court “must determine whether [the
Plaintiff] has challenged the procedural aspects . . . based on the alleged violation . . . of a
statutory or regulatory standard.” Id.
       Insofar as the July 26, 2011 Complaint requests the court to review the merits of the
BOI’s decision, those claims are non-justiciable. See, e.g., Compl. ¶¶ LXIV, LXXIV.

       The July 26, 2011 Complaint, however, alleges that the BOI committed various
procedural errors:

      the BOI was improperly composed, because none of the officers were in his competitive
       category, in violation of Secretary of the Navy Instruction (“SECNAVINST”) 1920.6C
       (Compl. ¶¶ LVIII-LIX)

      a biased member of the BOI prevented a full and impartial hearing, which violated DOD
       Instruction 1332.30 (Compl. ¶ LXI)




                                                10
      the Show Cause Letter did not specifically state the violations Plaintiff was alleged to
       have committed (Compl. ¶¶ LXV, LXXVI, LXXXI)

      Dr. Duru’s notebook, which was “admitted into evidence[,]” was not provided to Plaintiff
       before the BOI was convened (Compl. ¶ LXII)

      Plaintiff was “denied access to relevant documents,” in violation of SECNAVINST
       1920.6C (Compl. ¶ LX)

      Office of the Chief of Naval Operations Instruction (“OPNAVINST”) 5354.1F, Article
       133 of the UCMJ, and the “failure to conform with standards of military deportment”
       provision of SECNAVINST 1920.6C as separation justifications are “unconstitutionally
       void for vagueness” (Compl. ¶¶ LXXII, LXXVII, LXXXIV)

      portions of SECNAVINST 1920.6C are ultra vires (Compl. ¶ XCII, XCV)

      Plaintiff’s “Letter of Deficiency” was not submitted to the Secretary, as required by
       SECNAVINST 1920.6C (Compl. ¶ CI)

      Plaintiff was deprived “of his liberty and property interest without due process of law”
       (Compl. ¶ CX) and

      the Secretary’s approval of the BOI’s findings was contrary to law (Compl. ¶ CVI).

       In addition, the July 26, 2011 Complaint alleges that the actions of the BOI and the
Secretary were “arbitrary and capricious, unsupported by substantial evidence and contrary to the
Constitution, laws and regulations of the United States.” Compl. ¶¶ XCVI, CVI.

       Since Plaintiff’s procedural errors claims are justiciable, the Government’s December 21,
2011 Motion To Dismiss is denied as to these claims. The merits of Plaintiff’s Complaint are
discussed below.

       D.     Standard For Review On Motion For Judgment On The Administrative
              Record, Pursuant To RCFC 52.1.

         A motion for judgment on the administrative record, pursuant to RCFC 52.1, is akin to an
expedited trial on the record and has no counterpart in the Federal Rules of Civil Procedure. See
RCFC 52.1, Rules Committee Note (July 13, 2009); see also Bannum, Inc. v. United States, 404
F.3d 1346, 1356 (Fed. Cir. 2005) (“[T]he judgment on an administrative record is properly
understood as intending to provide for an expedited trial on the record.”). Accordingly, on a
motion for judgment on the administrative record, the court is required to determine whether the
plaintiff has met the burden of proof to show that the relevant federal agency decision did not
have a rational basis or was contrary to law. Id. at 1348 (instructing the trial court to make
“factual findings under RCFC [52.1] from the [limited] record evidence as if it were conducting
a trial on the record”); see also Afghan Am. Army Servs. Corp. v. United States, 90 Fed. Cl. 341,
355 (2009) (“In reviewing cross-motions for judgment on the administrative record, the court
must determine ‘whether, given all the disputed and undisputed facts, a party has met its burden


                                               11
of proof based on the evidence in the record.’” (citations omitted)). The existence of a material
issue of fact, however, does not prohibit the court from granting a motion for judgment on the
administrative record, nor is the court required to conduct an evidentiary proceeding. See
Bannum, 404 F.3d at 1353-54 (“RCFC [52.1] requires the [United States] Court of Federal
Claims, when making a prejudice analysis in the first instance, to make factual findings from the
record evidence as if it were conducting a trial on the record.”).

        It is well established that the court’s “review of [an] administrative decision is limited to
determining whether the [agency] action was arbitrary, capricious, or in bad faith, or unsupported
by substantial evidence, or contrary to law, regulation, or mandatory published procedure of a
substantive nature by which plaintiff has been seriously prejudiced.” Clayton v. United States,
225 Ct. Cl. 593, 593 (1980) (emphasis added). In disputes concerning military decisions, the
plaintiff must “overcome the strong, but rebuttable, presumption that administrators of the
military, like other public officers, discharge their duties correctly, lawfully, and in good faith.”
Doe v. United States, 132 F.3d 1430, 1434 (Fed. Cir. 1997) (quoting Sanders v. United States,
594 F.2d 804, 813 (Cl. Ct. 1979)). This presumption, however, is not insurmountable. See Doe,
132 F.3d at 1437 (holding that the plaintiff overcame the arbitrary and capricious standard in a
military discharge case, where the relevant administrative board considered hearsay evidence
without allowing the plaintiff rebuttal); see also Conn v. United States, 376 F.2d 878, 882 (Ct.
Cl. 1967) (invalidating military decision to discharge, in part because of the military's failure to
follow published procedures.); Murphy, 993 F.2d at 873 (“When the military is given unlimited
discretion by Congress, [in personnel matters] it is nevertheless bound to follow its own
procedural regulations if it chooses to implement some.”).

       E.      Issues Raised By The Parties’ Motions For Judgment On The Administrative
               Record.

               1.      Whether The Composition Of The Board Of Inquiry Was Unlawful.

                       a.      The Government’s Argument.

        The Government argues that the BOI properly was composed. Gov’t Mot. at 16. The
BOI must contain at least three officers from the same “Armed Force” and “at least one member
from the same competitive category[.]” SECNAVINST 1920.6C, Encl. (8), § 4.c.; AR at 157-
71. If an officer is a Reserve officer, as Plaintiff was, “at least one member [of the BOI] must be
a Reserve officer.” SECNAVINST 1920.6C, Encl. (8), § 4.b.; AR at 158. Although this
requirement can be waived by the convening authority, it “is especially important when
considering an officer for substandard performance.” SECNAVINST 1920.6C, Encl. (8), § 4.c.;
AR at 158.

        Plaintiff’s status as a Full Time Support (“FTS”) Reserve officer does not distinguish him
from a regular reservist for the purpose of determining his competitive category. Gov’t Mot. at
17 (citing Gov’t App. at 68-72, 73-76; Military Personnel Manual (“MILPERSMAN”) 1001-
020, 1301-221 (noting that the FTS category was created “in order to have Reserve officers on
active duty ‘. . . to perform duties in connection with organizing, administering, recruiting,
instructing, or training Reserve components[.]’”) (emphasis omitted) (citation omitted)).



                                                 12
        The term “competitive category” is referenced in SECNAVINST 1400.1B, in a manner
that implies that competitive categories are used mainly for promotions consideration and career
development. Gov’t Mot. at 17-18; Gov’t App. at 77. If Plaintiff were being considered for a
promotion, he would be compared to other Reserve officers, but not necessarily other FTS
officers. Gov’t Mot. at 18 (citing Decl. of Commander Jack T. Barnhill, USN,5 Gov’t App. at
87-89 (stating that Plaintiff’s “BOI was properly composed.”)). Thus, Plaintiff’s status as an
FTS officer “has nothing to do with his competitive category, that of Reserve Line officer.”
Gov’t Mot. at 18.

        Plaintiff’s BOI was comprised of three officers senior in rank to Plaintiff, including two
reservists and two members from the Reserve Line officer competitive category. Gov’t Mot. at
18. Thus, Plaintiff’s “BOI was properly composed and did not violate the Navy regulations.”
Gov’t Mot. at 19.

                      b.      Plaintiff’s Response.

        Plaintiff responds that the composition of the BOI was not lawful, because it did not
contain a member from the same competitive category as Plaintiff. Pl. Mot. at 22. The
Government’s position relies on SECNAVINST 1400.1B, which is not the proper competitive
category list. Pl. Mot. at 22. SECNAVINST 1400.1B, titled “Officer Competitive Categories
for the Active Duty List (ADL) of the Navy and Marine Corps,” is applicable “only to officers
on the Active Duty List (ADL).” Pl. Mot. at 22. Plaintiff was not on the ADL, but on the
Reserve Active Status List (“RASL”). Pl. Mot. at 22.

      The competitive category list relied on by the Government, SECNAVINST 1400.1B, was
promulgated, pursuant to 10 U.S.C. § 620(a), that states:

       The Secretary of the military department concerned shall maintain a single list of
       all officers (other than officers described in section 641 of this title) who are on
       active duty for each armed force under his jurisdiction[.]

10 U.S.C. § 620(a).

      “Reserve officers . . . on active duty under section . . . 10211,” however, are exempt from
the ADL. 10 U.S.C. § 641(1)(B). Section 10211 states:

       Within such numbers and in such grades and assignments as the Secretary
       concerned may prescribe, each armed force shall have officers of its reserve

       5
         Plaintiff contends that this declaration was improperly included in the Administrative
Record and should be struck. Pl. MTS. Because the court did not consider this declaration nor
the affidavit of John B. Wells in its analysis, Plaintiff’s March 3, 2012 Motion To Strike and the
Government’s April 5, 2012 Opposition To Plaintiff’s Motion To Strike The Affidavit Of
Commander Jack Barnhill, And Defendant’s Motion To Strike Affidavit Of John B. Wells are
moot.



                                               13
       components on active duty (other than for training) at . . . headquarters
       responsible for reserve affairs, to participate in preparing and administering the
       policies and regulations affecting those reserve components.

10 U.S.C. § 10211.

        As a Reserve FTS officer on active duty, Plaintiff is governed by 10 U.S.C. § 10211 and,
therefore, falls within the exception provided by section 641. Pl. Mot. at 23. Thus, Plaintiff
should not be on the ADL, as he is subject to an exception in 10 U.S.C. § 620(a), and is not
governed by SECNAVINST 1400.1B, contrary to the Government’s assertion. Pl. Mot. at 22-
23.

       The RASL is authorized by 10 U.S.C. § 14002(a) that states in part:

       The Secretary of each military department shall maintain a single list, to be
       known as the reserve active-status list, for each armed force under the Secretary’s
       jurisdiction. That list should include the names of all reserve officers of that
       armed force who are in an active status other than those on an active-duty list
       described in section 620 of this title[.]

10 U.S.C. § 14002(a).

        Plaintiff’s status as a Reserve FTS officer on active duty, authorized under 10 U.S.C. §
10211 as a Reserve officer on active duty for the Navy, means that he should be listed on the
RASL as a Reserve officer in an active status, not on the ADL. Pl. Mot. at 23-24. As such,
Plaintiff’s competitive category is governed by OPNAVINST 1427.1, ¶ 8(b), the “best relevant
guidance for Reserve competitive categories.” Pl. Mot. at 24. According to this regulation,
“which separates FTS personnel from other Reserve Officers,” Plaintiff’s competitive category is
that of an FTS Unrestricted Line Officer. Pl. Mot. at 24 (citing Gov’t App. at 94, 96;
OPNAVINST 1427.1, ¶ 8(b) (stating that FTS officers with “Designator 11X7” will compete for
promotion in the “Unrestricted Line Officer (FTS)” competitive category)).

       The BOI included: Captain Wakeland (designator 1125, a Reserve Submarine Officer);
Captain Wilkerson (designator 1115, a Reserve Surface Warfare Officer); and Captain Verbeke
(designator 6400, a Limited Duty Officer). AR at 103. None of these individuals, however,
were in Plaintiff’s competitive category, i.e., 1117. Pl. Mot. at 25.6

       Furthermore, the distinction between FTS officers and “inactive personnel” is an
important one, because there are differences in knowledge and expertise, as well as “widespread



       6
         Plaintiff also objects to the fact that the unrestricted line officers who comprised the
BOI did not have command experience—as indicated by their designators—thereby violating
SECNAVINST 1920.6C. Pl. Mot. at 26 (citing SECNAVINST 1920.6C, Encl. (8), ¶ 4(e) (“At
least one member shall be an unrestricted line officer. Such officers should have command
experience, whenever possible.”)).


                                               14
tension between the two communities.” Pl. Mot. at 25-26. As such, the BOI was improperly
composed and Plaintiff was not properly separated from the Navy. Pl. Mot. at 26-28.

                       c.      The Government’s Reply.

        The Government contends that 1400.1B is the correct list because, although “that
instruction does not address the matters of officer separations, it does provide a definition of
competitive category that is helpful [in this case].” Gov’t Reply at 12. In addition, the
Government claims that “there is no difference between competitive categories for active duty
and reserve officers.” Gov’t Reply at 12. To demonstrate this, the Government points to
OPNAVINST 1427.1, ¶ 5(b), which states:

       A Navy Reserve officer serving on active duty in connection with the Full Time
       Support (FTS) of the Reserve Component who is assigned to a competitive
       category . . . is considered for the purposes of assigning a running mate to be in
       the same competitive category as the officer on the ADL List whose competitive
       category . . . most closely corresponds to the FTS Officer’s competitive category.

Gov’t App. at 91.

       The Government further contends that Plaintiff erroneously relies on OPNAVINST
1427.1 because “[r]egulations dealing with promotions have no application to separations[.]”
Gov’t Reply at 12. In separation proceedings, unlike in promotion proceedings, “the Navy is
not concerned about whether there is competition with similarly situated individuals.” Gov’t
Reply at 12.

     Finally, there is no requirement in SECNAVINST 1920.6C that a member of the BOI has
command experience and Plaintiff “fails to explain why it [was] necessary[.]” Gov’t Reply at
13.

                       d.      Plaintiff’s Reply.

        Plaintiff replies that while the Government is correct that an agency’s interpretation of its
own regulations is entitled to a level of deference, the Government’s choice of regulation is
incorrect. Pl. Reply at 4. The Government’s reliance on SECNAVINST 1400.1B is erroneous,
because it applies only to the ADL, a term of art different from “active duty,” and is defined by
10 U.S.C. § 620. Pl. Reply at 5. Plaintiff reasserts that the ADL does not include him, that he is
in fact on the RASL, and that competitive categories for officers on the RASL are properly
defined by SECNAVINST 1420.1B and OPNAVINST 1427.1, not SECNAVINST 1400.1B. Pl.
Reply at 5-6. “Paragraph 3i of SECNAVINST 1420.1B incorporates the guidance of
OPNAVINST 1427.1 in the establishment of precedence and competitive categories for officers
on the RASL of the Navy and Marine Corps,” and “OPNAVINST 1427.1, ¶8a and ¶8b require a
separate competitive category for [FTS] personnel” from other Unrestricted Line Officers. Pl.
Reply at 5. Therefore, SECNAVINST 1400.1B is a “poor choice to define or even illustrate
competitive categories for purposes of SECNAVINST 1920.6C.” Pl. Reply at 5. “Interpretation




                                                 15
of the directive is not the issue[,] [the Government’s] failure to select the correct directive is
what is germane.” Pl. Reply at 6.

                      e.      The Court’s Resolution.

       Plaintiff and the Government agree that the BOI must contain at least one member in the
same competitive category as Plaintiff. The parties disagree, however, as to the competitive
category list that should be used to determine Plaintiff’s competitive category, and therefore,
whether the BOI properly was composed in this case. The Government contends that
SECNAVINST 1400.1B is the appropriate directive. Plaintiff contends that OPNAVINST
1427.1 is the correct directive.

        The Government contends that the BOI properly was composed using the competitive
categories in SECNAVINST 1400.1B. That directive, titled “Officer Competitive Categories for
the Active Duty List (ADL) of the Navy and Marine Corps,” was intended “[t]o establish the
officer competitive categories within the Navy and Marine Corps for officers on the active duty
list (ADL)[.]” SECNAVINST 1400.1B, ¶ 1. That directive also provides that competitive
categories are “to provide for separate promotion consideration and career development of
groups of officers with related education, training, skills, and experience needed to meet mission
objectives of the Navy . . . which make separate career management desirable.” Id. at ¶ 3.

       SECNAVINST 1400.1B, Enclosure (1) contains a list of competitive categories. The
Government contends that the proper competitive category for Plaintiff is “Unrestricted Line
Officer” under the specialty “Qualified in Surface Warfare[.]” SECNAVINST 1400.1B, Encl.
(1). The listed designator is” “111X,” with the “X” serving as a placeholder for another number.
Id. The Government’s contention is that, since Plaintiff’s designator is 1117, Captain Wickerson
(designator 1115) fulfills the “same competitive category” requirement.

         On the other hand, the ADL, on which the Government’s proposed directive relies, does
not include Plaintiff. The ADL is created by 10 U.S.C. § 620, which specifically excludes
reserve officers. Compare 10 U.S.C. § 620(a) (“The Secretary . . . shall maintain a list of all
officers (other than officers described in section 641 of this title) who are on active duty[.]”),
with 10 U.S.C. § 641(1)(B) (encompassing “[r]eserve officers . . . on active duty under
section . . . 10211[.]”), 10 U.S.C. § 10211 (governing FTS officers), and OPNAVINST 1427.2, ¶
5 (listing exceptions to the ADL, including reserve officers on active duty “under . . . section
10211”). Therefore, the Government’s selected directive is irrelevant to the resolution of this
issue.

        The RASL is authorized by 10 U.S.C. § 14002, which is a list of “all reserve officers of
that armed force who are in an active status other than those on an active-duty list described in
section 620[.]” See 10 U.S.C. § 14002(a). Since Plaintiff is a reservist in active status and is
specifically excluded from section 620, he is subject to the RASL.

       OPNAVINST 1427.1, the directive on which Plaintiff relies, is titled “Regulations
Governing Running Mates, Precedence, and Competitive Categories for Officers of the Navy
Reserve.” The directive is intended “[t]o prescribe regulations governing the assignment of



                                               16
running mates and the establishment of precedence and competitive categories for officers on the
Reserve Active Status List (RASL) of the Navy.” OPNAVINST 1427.1, ¶ 1(b). OPNAVINST
1427.1 contains two lists of competitive categories: paragraph 8(a) governs Navy Reserve
officers, “other than a FTS officer, who is not on the ADL,” and paragraph 8(b) governs FTS
officers. See id. at ¶ 8(a)-(b). Both lists specifically note that the competitive categories are to
be used “for promotion.” Id.

         The relevant portion of paragraph 8(a) contains the following designators for the
“Unrestricted Line Officer” competitive category: “11XX/13XX/19XX[.]” Id. at ¶ 8(a). The
relevant portion of paragraph 8(b) contains the following designators for the “Unrestricted Line
Officer (FTS)” competitive category: “11X7/13X7[.]” Id. at ¶ 8(b). Furthermore, the
regulations state that “for purposes of assigning a running mate[,]” an FTS officer will be
considered “to be in the same competitive category as the officer on the ADL . . . whose
competitive category . . . most closely corresponds to the FTS officer’s competitive category.”
Id. at ¶ 5(b)(1).

        Plaintiff’s designator is listed as 1117. AR at 428. The BOI was comprised with officers
with the designators of 1125, 6400, and 1115. Id. at 103. Thus, the relevant designator to
compare with Plaintiff’s is Captain Wickerson’s designator of 1115. Under both SECNAVINST
1400.1B (designator 111X) and OPNAVINST 1427.1 paragraph 8(a) (designator 11XX),
Plaintiff and Captain Wickerson share a competitive category. Using OPNAVINST 1427.1
paragraph 8(b) (designator 11X7), however, Plaintiff and Captain Wickerson do not share a
competitive category.

        The difficulty lies in the fact that by their terms, all three of the competitive category
regulations apply in the context of promotions. OPNAVINST 1427.1, ¶ 8(a) (defining
“competitive categories for promotion”); OPNAVINST 1427.1, ¶ 8(b) (stating that FTS officers
“compete for promotion in one of the following categories”); SECNAVINST 1400.1B ¶ 3
(defining “competitive categories to provide for separate promotion consideration and career
development”). On one hand, the record contains no regulation, and the court is aware of none,
that defines a separate list of competitive categories to be used in the context of separation
proceedings by a board of inquiry. On the other, it is important to note that applicable Navy
regulations, including SECNAVINST 1920.6C and SECNAVINST 1420.1B, without defining
its meaning, use the term “competitive category” interchangeably in the context of promotion
and separation, and do not otherwise indicate a difference in application or designation in the two
contexts. See, e.g., SECNAVINST 1920.6C, ¶ 7; SECNAVINST 1920.6C, Encl. 3, ¶ 2. In
addition, the Navy Regulation governing administrative separations, SECNAVINST 1902.6C,
emphasizes that the policies and procedures of separation in the regulation are intended to
promote “maintain[ing] authorized strength in each competitive category and grade,” and
“ensur[ing] planned promotion and flow and reasonable career opportunities in each competitive
category,” implying a relationship between separation on the one hand, and promotion or
retention on the other. SECNAVINST ¶ 7(a)(1)-(2). Because no similar connection exists
between separation and the assignment of a running mate, the court has determined that
SECNAVINST 1427.1 ¶ 5(b)(1) is inapposite. For these reasons, the court has determined that
the proper directive to apply is OPNAVINST 1427.1 ¶ 8(b), the sole source of guidance on




                                                17
determining competitive categories for FTS Officers on the RASL. As such, the BOI in this case
contained no member in the same competitive category as Plaintiff.

       If Plaintiff had appealed to the BCNR, that forum could have made a determination on
whether the BOI was improperly composed. See Wisotsky v. United States, 69 Fed. Cl. 299,
302-03 (2006) (noting the BCNR’s decision as to the improper constitution of the BOI in that
case). According to Plaintiff’s Letter of Deficiency to the Secretary of the Navy:

       Since the Wisotsky decision, the Board for Correction of Naval Records has
       consistently applied the [United States] Court of Federal Claims analysis to void
       BOI decisions and administrative separations for cause where the ‘competitive
       category’ provision of . . . SECNAVINST 1920.6C [was] violated and has set
       aside the BOI results in those cases that have come before the BCNR.

AR at 2 (citing In re Camiola (decided 31 May 2007) and In re Griffin, BCNR Dkt.
Number 1866-06 (decided 7 June 2007)).7

        In Wisotsky, the United States Court of Federal Claims agreed with a BCNR’s
determination that the BOI at issue in that case was improperly constituted. See Wisotsky, 69
Fed. Cl. at 306. The court, however, disagreed with the BCNR’s use of harmless error review.
Id. at 309. The court noted that “duty performance” was an integral part of the discharge
proceeding and that a “service member in the same competitive category” could have assisted the
BOI in understanding the particulars of the job, and “might or might not have affected the
outcome of the discharge proceedings[.]” Id. The court concluded that “[t]he failure to include a
Board member in Mr. Wisotsky’s competitive category is a board composition error, the effect of
which is not capable of evaluation. Due to the inability of the BCNR, this court or any other
reviewing body to assess the magnitude of the error in this case, harmless error review is
inappropriate and inapplicable.” Id.

         The United States Court of Appeals for the Federal Circuit discussed when harmless error
review should be applied in assessing a procedural violation in Wagner v. United States, 365
F.3d 1358, 1363 (Fed. Cir. 2004). Wagner recognized that there are “two justifications for
refusing to apply the harmless error rule: (1) avoiding the erosion of essential components of a
fair trial; and (2) the inability of a reviewing body to assess the magnitude of the error.” Id. at
1363 (citing Doyle v. United States, 599 F.2d 984, 995 (Ct. Cl. 1979)).

        Improper Board composition, however, will not necessarily void the Board’s judgment.
See Sargisson, 913 F.2d 918. In Sargisson, an officer of the Air Force Reserve was separated by
the Reserve Officer Screening Board. Id. at 920. The officer claimed that the Board did not
include an appropriate number of reserves as required by regulation, because only one of fifty-
two members was a Reserve officer. Id. The United States Court of Appeals for the Federal
Circuit held that the officer was not prejudiced by having only one Reserve officer on the board.
Since only Reserve officers were being considered, “there was no opportunity for
discrimination.” Id. at 923.

       7
           The BCNR decisions cited above are not readily available.


                                                18
         The effect of the improper Board composition in Sargisson was capable of evaluation.
First, the officer was released, pursuant to a requirement that the Air Force reduce its manpower.
Id. at 921. Second, the issue of prejudice was not present, because only Reserve officers were
being considered for separation. In this case, however, Plaintiff was separated for substandard
performance, not because of a Navy-wide mandate for manpower reduction. Moreover, a BOI
considering an officer for substandard performance specifically is mentioned in SECNAVINST
1920.6C as an “especially important” instance requiring that a BOI include at least one member
in the same competitive category as the respondent. SECNAVINST 1920.6C, Encl. (8), ¶ 4c.
Thus, prejudice may exist.

        Applying the test set forth in Wagner, the first of the two justifications for not applying
harmless error is met in this case. The fact that the BOI did not contain at least one member of
the same competitive category as Plaintiff, and therefore, was not properly composed, indicates
an absence of an essential component of a fair trial. The second requirement, however, presents
a more difficult problem. Charges of racial abuse, as well as poor management and creating a
hostile working environment, may be capable of being evaluated equally by any officer in the
Navy who has managed personnel. Plaintiff’s evaluation by the BOI, however, may have been
skewed by his not being afforded a BOI member who was an FTS officer who could evaluate his
performance in the terms of what Plaintiff’s job requires. It is impossible to determine without
speculation what an FTS officer would have considered relevant and whether that officer’s
knowledge and experience would have affected the characterization of Plaintiff’s behavior and
the outcome of the BOI proceedings. “Where the effect of an error on the outcome of a
proceeding is unquantifiable,” the court “will not speculate as to what the outcome might have
been had the error not occurred.” Wagner, 365 F.3d at 1365. Because it is impossible to
evaluate what effect, if any, the Board’s improper composition had on Plaintiff’s BOI hearings,
harmless error review is “inappropriate and inapplicable” in this case. Wisotsky, 69 Fed. Cl. at
309 (citing Wagner, 365 F.3d at 1362). For these reasons, the court has determined that the BOI
was not properly composed, and that Plaintiff’s separation from Navy was unlawful.

IV.    CONCLUSION.

         For the foregoing reasons, Plaintiff's March 5, 2012 Cross-Motion For Judgment On The
Administrative Record is granted, and the Government's December 21, 2011 Motion For
Judgment Upon The Administrative Record is denied. For the reasons discussed above, the
Government’s December 21, 2011 Motion To Dismiss is also denied, to the extent that the July
26, 2011 Complaint alleges procedural violations that occurred during Plaintiff’s administrative
separation process. The parties shall consult, determine appropriate relief due to Plaintiff, and
file a joint stipulation reflecting the proposed relief on or before Monday, April 1, 2013.

       IT IS SO ORDERED.


                                                            s/Susan G. Braden
                                                            SUSAN G. BRADEN
                                                            Judge



                                                19
