            In the United States Court of Federal Claims
                                          No. 11-358C

                                    (Filed: November 15, 2013)

**********************************
                                              )    Claim by discharged Navy veteran for
RONALD J. HELFERTY,                           )    reinstatement and back pay; denial of relief
                                              )    by the Board for Correction of Naval
                       Plaintiff,             )    Records on remand from the court; Military
                                              )    Pay Act, 37 U.S.C. § 204(a); sufficiency of
       v.                                     )    evidence of ingestion of cocaine; alleged
                                              )    ineffective assistance of counsel in a
UNITED STATES,                                )    proceeding before an Administrative
                                              )    Discharge Board; criteria governing
                       Defendant.             )    performance of counsel
                                              )
**********************************

       Raymond J. Toney, Woodland, California, for plaintiff.

       John S. Groat, Attorney, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C., for defendant. With him on the briefs were Tony
West, Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Assistant
Director, Commercial Litigation Branch, Civil Division, United States Department of Justice,
Washington, D.C.

                                     OPINION AND ORDER

LETTOW, Judge.

        This military pay case is before the court following a remand to the Board for Correction
of Naval Records (“the Board”). Having received a further adverse decision by the Board,
plaintiff, Ronald J. Helferty, has renewed his military pay claim before this court, filing a Motion
for Judgment on the Administrative Record. See Pl.’s Mem. of Law in Support of Mot. for
Judgment on the Administrative Record and for an Evidentiary Hearing on the Claim of
Ineffective Assistance of Counsel (“Pl.’s Mem.”), ECF No. 27. The government has responded
with a Cross-Motion for Judgment on the Administrative Record and a Partial Motion to
Dismiss. See Def.’s Cross-Mot. to Pl.’s Mot. for Judgment Upon the Administrative Record,
Cross-Mot., and Partial Mot. to Dismiss, with Addendum (“Def.’s Cross-Mot.”), ECF No. 32.
The case stems from Mr. Helferty’s discharge from the Navy after testing positively for a
metabolite of cocaine upon a randomly conducted urinalysis. Mr. Helferty contends that the
Board acted arbitrarily and capriciously in finding: (1) that he failed to rebut the presumption of
unlawful ingestion of cocaine following the positive urinalysis, (2) that he received effective
assistance of counsel in a disciplinary hearing, and (3) that the Board is not bound by its prior
decisions. Pl.’s Mem. at 1-2. Mr. Helferty also requests (4) that the court hold an evidentiary
hearing to resolve material facts in dispute regarding his claim of ineffective assistance of
counsel. Pl.’s Mem. at 3.

                                            FACTS 1

                             A. Naval Service and Discharge

         Mr. Helferty enlisted in the Navy in February 1989. AR LL-910. 2 By June 2005,
Mr. Helferty had been promoted to Aviation Ordnanceman First Class (E-6) but then had
transferred to serve as a Substance Abuse Rehabilitation Program Counselor at the Naval Branch
Medical Clinic in Key West, Florida. AR LL-924 to -30. On June 30, 2005, Mr. Helferty
submitted to a random urinalysis as part of the Navy’s drug screening program. AR V-289
to -90, HH-414. On July 11, 2005, the testing laboratory reported that his urine sample tested
positively for a cocaine metabolite, benzoylecgonine, at a measurement of 173 nanograms per
milliliter. AR LL-1014. The Navy considers any level above 100 nanograms per milliliter to be
positive for cocaine use. Id. The positive result was confirmed by an immunoassay screening
and a gas chromatography/mass spectrometry test. Id.

        Mr. Helferty maintains that he did not knowingly ingest cocaine. Pl.’s Mem. at 29. The
Navy has a zero-tolerance policy, which required that Mr. Helferty be processed in response to
the positive result. See AR Z-322; AR KK-816. The Navy initially preferred charges against
Mr. Helferty via non-judicial punishment under Article 15 of the Uniform Code of Military
Justice. See AR HH-414. Mr. Helferty exercised his right to refuse non-judicial punishment and
requested a court martial. Id.; see 10 U.S.C. § 815(a). Pursuant to Rule 306(c)(2) of the Rules
for Courts-Martial, the Navy denied Mr. Helferty’s request for a court martial, instead referring
the charges against him to an Administrative Discharge Board (“ADB”). AR HH-414; Compl.
¶ 21. On August 22, 2005, Mr. Helferty received official notice that he was being processed for
administrative separation for “Misconduct – Drug Abuse.” AR LL-1001. Rather than employ
civilian counsel, he elected representation at the administrative board by “qualified counsel” at
the expense of the Navy. Id. Then-Lieutenant (“Lt.”) B. Vaughn Spencer of the Navy Judge
Advocate General’s Corps was assigned to represent Mr. Helferty before the ADB. AR LL-
1003. 3

        Aspects of then-Lt. Spencer’s preparations for the ADB hearing are not in dispute. The
parties accept that then-Lt. Spencer arranged for Mr. Helferty to take a polygraph examination by
a qualified polygraphist from the local sheriff’s office, which occurred on September 23, 2005,
the Friday before the hearing scheduled for Tuesday, September 27, 2005. See AR KK-878 to

       1
         The recitations that follow are drawn from the administrative record of the proceedings
before the Board.
       2
         The administrative record is paginated sequentially and also divided into tabs. Citations
to the record will first designate the tab, followed by page number, e.g., AR LL-910 refers to
page 910, which is located in tab LL of the record.
       3
           Lt. Spencer is now serving in the Navy as a Lieutenant Commander (“LCDR”).


                                                 2
-79, 892. The polygraphist’s written report indicated “no deception” by Mr. Helferty when he
stated that he did not intentionally use cocaine in 2005 generally or in June 2005 specifically.
AR KK-878 to -79. Nor is it in dispute that then-Lt. Spencer arranged for two people for and
with whom Mr. Helferty worked to write favorable statements regarding Mr. Helferty’s
character, including Commander (“CDR”) Lanier, Mr. Helferty’s supervisor at the clinic. See
Pl.’s Mem. at 4-5; AR LL-1005. Whether then-Lt. Spencer asked Mr. Helferty for the names of
additional potential character witnesses is disputed. See Pl.’s Mem. at 6; Def.’s Cross-Mot. at
33. 4

         The three-member ADB met on September 27, 2005 to address the case against
Mr. Helferty. See AR LL-1003. During voir dire, then-Lt. Spencer successfully challenged the
Senior Board Member for cause due to his personal experience with a family member’s drug
addiction, and another senior board member was appointed. AR KK-805 to -10, AR LL-1004.
Then-Lt. Spencer also queried each board member about his or her opinion of polygraph results.
AR KK-806 to -07, 812. No board member reported a negative view of polygraph results. Id.
Lt. Anselm was the recorder for the proceeding. AR KK-802. 5 Lt. Anselm’s opening statement
reported that Mr. Helferty tested positively for cocaine and outlined the ADB’s three duties (1) to
determine whether, by a preponderance of the evidence, Mr. Helferty knowingly used cocaine,
(2) to recommend whether Mr. Helferty be retained or discharged from the service, and (3) if
discharge were recommended, whether it should be honorable, general, or other than honorable.
AR KK-812 to -14. Then-Lt. Spencer’s opening statement stressed Mr. Helferty’s length of
service and absolute denial of knowing ingestion of cocaine, including the favorable polygraph
examination results. AR KK-814 to -15. Then-Lt. Spencer also stated that Mr. Helferty was
subject to mandatory processing given the Navy’s zero tolerance policy, and he reminded the
board members that mandatory processing is not equivalent to mandatory separation. AR KK-
816.

         Lt. Anselm’s case-in-chief consisted solely of the positive urinalysis, plus the absence of
any evidence of custodial or laboratory error. AR KK-817 to -19. He called no witnesses. Id.
Then-Lt. Spencer began his defense by outlining three proffered exhibits: (1) the polygraph
examination report, (2) a report documenting serious human error in a prior unrelated urinalysis
at the laboratory where Mr. Helferty’s urine was tested, and (3) Mr. Helferty’s most recent
performance evaluations. AR KK-820 to -21. Next, then-Lt. Spencer called police Lt. Bruce
Winegarden to testify by telephone. AR KK-822. Lt. Winegarden reported that he is employed
by the Monroe County Sheriff’s Office, headquartered in Key West, Florida and that he is the
chief polygraph examiner for the Sheriff’s Office. AR KK-823. Lt. Winegarden testified that he
administered a single-issue polygraph examination to Mr. Helferty and that, in his opinion, the

       4
         LCDR Spencer, in response to Mr. Helferty’s later claim of ineffective assistance of
counsel, stated that “despite repeated requests for possible character witnesses, [Mr. Helferty]
was unable or unwilling to provide me with a list of possible witnesses on his behalf.” AR T-
274. Contrastingly, Mr. Helferty maintains that then-Lt. Spencer failed to seek to obtain a
sufficient number of character statements “despite Mr. Helferty’s repeated suggestions and offers
of cooperation.” AR KK-792; see also AR L-99 to 100.
       5
           For purposes of ADB proceedings, a recorder is akin to a prosecutor.


                                                  3
resulting scores showed that Mr. Helferty was “overwhelmingly not deceptive” when he stated
that he did not intentionally ingest cocaine. AR KK-829; see also AR KK-825 to -28. Lt.
Winegarden indicated that the accuracy of the type of examination Mr. Helferty received is
“somewhere in the mid 90’s and up.” AR KK-827 (“[I]t fluctuates because of some variables
but the general accepted principle is up in the mid 90’s.”). A board member questioned why Lt.
Winegarden asked Mr. Helferty whether he “intentionally” used cocaine rather than simply
whether he “used” cocaine. AR KK-830. Lt. Winegarden responded that he believed the real
issue was whether “he knowingly and voluntarily [took] cocaine.” Id. As a follow-up to the
board member’s question, Lt. Anselm asked Lt. Winegarden whether his question to
Mr. Helferty was “a standard question for [] when drug use is an issue,” and Mr. Winegarden
responded that it was. AR KK-831.

       After Mr. Winegarden’s testimony, the senior board member asked then-Lt. Spencer
whether he had any further witnesses. Then-Lt. Spencer responded, “No we don’t . . . [have any]
more [r]espondent witnesses. I was going to call Commander [Lanier] but you have [his]
character statement in there. [I] don’t think that [we] need to take his time.” AR KK-831.

        Lt. Anselm then delivered his closing prosecutorial statement, which explicitly and
markedly favored Mr. Helferty. He stated that cocaine “has to be entered into the body
somehow,” but “[i]t doesn’t always have to be knowing, it can be unknowing. It could be the
result of a mistake. [It] might not be.” AR KK-832. He stressed that an exhibit tendered by
respondent shows that the NAV Drug Lab in at least one other case had cross-contaminated urine
samples, which resulted in inaccurate results. See id. He stated:

       [T]he urinalysis program is not 100 percent foolproof or error proof.
       It would be unrealistic to think that it was. It’s still the best drug
       testing program that . . . any company has.

       But is it possible that there was some contamination [at] the drug lab,
       yes there’s that possibility in this particular case. Is it possible that Petty
       Officer Helferty came into contact (with cocaine) through just, you
       know, his personal life[?] Going to a restaurant or going to a club and
       coming into contact or . . . having cocaine introduced to his body without
       him knowing it, yes it’s possible.

AR KK-834. He reminded the ADB that the positive urinalysis is enough to find misconduct,
but that the result gives rise to a rebuttable presumption. Id. He continued his closing remarks
by recalling the polygraph examination that Mr. Helferty passed, though he reiterated that
polygraphs are not 100 percent accurate. AR KK-834 to -35. He cautioned the board that,

       [i]t’s extremely important that you [] take into consideration the evidence
       that you have. I mean, you’re making a decision that is life changing one
       way or the other. Either . . . you’re going to in effect end a 16 year career
       by a finding that there [was] misconduct. Or you’re going to allow a 16
       year career to continue because you . . . believe that there’s . . . enough




                                                  4
       evidence counter to the evidence that he tested positive to suggest that, you
       know, it was introduced unknowingly or there was a mistake at the drug lab.

AR KK-835. Next, Lt. Anselm told the board that should they find misconduct occurred, they
must make a recommendation as to whether Mr. Helferty should be retained or not, but “[i]t
doesn’t matter what your recommendation is, they’re going to separate the individual.” AR KK-
836. Lastly, he stated that should they recommend separation, they must make a “fair
recommendation on the type of characterization of his discharge.” Id. He made no argument
regarding the potential characterization of a discharge.

        Then-Lt. Spencer began his closing remarks for Mr. Helferty by apologizing that he
forgot to have Mr. Helferty make his unsworn statement earlier when presenting his defense.
AR KK-836. Mr. Helferty then gave his statement, reiterating his categorical denial of knowing
drug use and his inability to explain the positive urinalysis. AR KK-836 to -37. Then-Lt.
Spencer began his closing remarks by arguing that the polygraph examination is substantial
evidence that rebuts the presumption of drug use created by the positive urinalysis. See AR KK-
839 to -40. Given the high level of accuracy of polygraph tests, he argued that Mr. Helferty’s
favorable polygraph examination, standing alone, was sufficient to rebut the presumption that
Mr. Helferty had knowingly used cocaine. See AR KK-840. After he briefly addressed
Mr. Helferty’s evaluations and CDR Lanier’s letter, then Lt. Spencer admitted that Mr. Helferty
did not have outstanding evaluations, but that he was certainly a “dependable,” “hardworking,”
and “reliable” sailor. AR KK-840 to -41. He noted that a number of Mr. Helferty’s lower than
average marks had to do with his appearance (i.e., body fat and body mass index) and physical
test results, not job performance. AR KK-841. He commented that mistakes occur in drug
testing labs, but also said, “I doubt [a mistake] happened in this case because the drug lab here is
good. Commander Gus is very good at his job. But there is that possibility.” AR KK-842. He
concluded his closing remarks by requesting that should the board return a finding of
misconduct, a general discharge should be granted. AR KK-843 to -44.

         Following then-Lt. Spencer’s closing remarks, Lt. Anselm made an additional comment
regarding the technical aspects of the urinalysis. He explained that a result of 173 nanograms per
milliliter is 73 nanograms above the cutoff, which is a very low nanogram level of cocaine
metabolite, suggesting either that Mr. Helferty used cocaine days before he was tested and the
test occurred just as the cocaine was exiting his system or that a very low level was introduced to
his system in the first place. AR KK-844 to -45. “There’s no way to tell that. But I can tell you
that at that level any expert would say that there’s no way for him to feel the effects of cocaine,
okay?” AR KK-845. Then-Lt. Spencer thanked Lt. Anselm for “pointing that out.” Id. He
added that he had seen much higher nanogram levels — even in the millions range. AR KK-846.

      The proceeding lasted 55 minutes. The board deliberated for 45 minutes and returned a
unanimous decision finding that the preponderance of the evidence supported drug abuse. See
AR KK-846. They unanimously recommended separation via a general discharge. AR LL-1009.

       In a Letter of Deficiency, then-Lt. Spencer requested that Mr. Helferty’s Commanding
Officer disapprove the board’s decision due to insufficient evidence. AR LL-999 to 1000. He



                                                 5
wrote that the members “either misunderstood the proper legal standard and legal requirements,
or wrongfully disregarded the overwhelming scientific evidence.” AR LL-999. He further
argued that once he presented the polygraph evidence, the “government bore the burden of
proving that the polygraph examination did not rebut the presumption of knowing use” and that
had not been pursued by the recorder. AR LL-1000. Mr. Helferty’s commanding officer
ultimately accepted the board’s findings that Mr. Helferty committed misconduct due to drug
abuse and that he be separated from service with a characterization of service as general. AR
LL-997 to -98. Accordingly, on November 22, 2005, the Navy separated Mr. Helferty with a
general discharge. AR JJ-740; see also Pl.’s Mem. at 5.

                          B. Applications for Correction of Records

        On October 24, 2006, Mr. Helferty filed his initial application with the Board, seeking
correction of his naval records. AR KK-770. On March 21, 2008, the Board denied his
application, finding that he failed to demonstrate any error or injustice in the ADB’s decision.
AR II-735. On November 6, 2008, Mr. Helferty requested that the Board reconsider its decision.
See AR HH-408. In his application for reconsideration, he provided scenarios of innocent
ingestion, scientific studies supporting the possibility of innocent ingestion, reports concerning
the use of polygraph examinations by the Department of Defense and the Department of Justice,
and decisions concerning innocent ingestion and the use of polygraph results by the Merit
Systems Protection Board (“MSPB”) and federal courts on review of MSPB decisions. AR HH-
416 to -20. Mr. Helferty also renewed his claim of ineffective assistance of counsel and
continued to request an in-person hearing. AR HH-423 to -26.

        On November 25, 2008, the Board denied his request because he did not present any new
and material evidence not previously considered by the Board. AR GG-406. Consequently, the
Board denied his request for a hearing, stating that hearings are not granted as a matter of right
and are only allowed “when the Board determines that there is some indication of error or
injustice and that a hearing will serve a useful purpose.” Id. 6

        On March 12, 2009, in response to the Board’s denial, Mr. Helferty filed suit in the
District Court for the District of Columbia. Helferty v. Pfeiffer, No. 1:09-cv-00483 (D.D.C.
2009); see AR AA-350. On May 15, 2009, Mr. Helferty and the Board submitted a Joint
Stipulation of Dismissal by which the Board agreed to adjudicate the application for
reconsideration on its merits and to appoint an entirely different three-member board than the
one that considered his initial application. AR AA-350 to -51.

        On September 16, 2009, the Board advised Mr. Helferty, through counsel, that the Board
was reconsidering his application, advised him as to the materials they would consider, and
invited him to respond to the advisory opinions provided to the Board by the Navy. AR R-261.
On October 14, 2009, Mr. Helferty submitted his responses. AR Q-225 to -34. On December
16, 2009, the Board denied Mr. Helferty’s request to correct his naval records, again finding that

       6
        Reportedly, the Board has not conducted an evidentiary hearing within the last twenty
years. See Eugene R. Fidell, The Boards for Correction of Military and Naval Records: An
Administrative Perspective, 65 Admin. L. Rev. 499, 502 (2013).


                                                6
“the evidence submitted was insufficient to establish the existence of probable material error or
injustice.” AR P-210 to -11.

                               C. Prior Proceedings in this Court

         On June 7, 2011, Mr. Helferty filed suit in this court. See Helferty v. United States, 101
Fed. Cl. 224 (2011). During the Board’s reconsideration of Mr. Helferty’s application on the
merits in the fall of 2009, it had requested and received a statement from LCDR Spencer
addressing Mr. Helferty’s claim of ineffective assistance of counsel. That statement was
designated as confidential on privacy grounds and was not made available to Mr. Helferty.
Mr. Helferty consequently was not given an opportunity to respond to LCDR Spencer’s
statement. Id. at 226. When Mr. Helferty filed suit in this court, the government asked LCDR
Spencer to waive his rights under the Privacy Act, allowing the government to provide his
statement to Mr. Helferty and enabling Mr. Helferty to respond to it. Id.; Def.’s Cross-Mot. at 6.
After receiving LCDR Spencer’s consent to provide his statement to Mr. Helferty, the
government moved to remand the case to the Board for further consideration with the benefit of
Mr. Helferty’s response to LCDR Spencer’s statement. Helferty, 101 Fed. Cl. at 226.
Mr. Helferty agreed to a remand of the case, but requested that this court order the Board to hold
an in-person hearing. Id. at 227. While in cases where the facts are in dispute and credibility is
at issue, “the court ordinarily would require that an evidentiary hearing be conducted at which
percipient witnesses may testify and be cross-examined,” the court declined to order the Board to
adopt any particular procedure. Id. at 228-29 (“The Board may shape its own procedures to fit
the circumstances at hand.”). Because correction boards retain wide statutory discretion
respecting their procedures, the court equally rejected the government’s contention that Mr.
Helferty should be limited to written submissions to the Board and Mr. Helferty’s contention that
the Board was required to hold an in-person hearing. Id. at 228-29. The court did, however,
order the Board to provide “adequate procedures of its devising to find facts and make credibility
determinations. In that regard, the Board may, if it wishes, refer the matter to a hearing officer
for initial determinations.” Id. at 229.

                        D. The Board’s Proceedings on Remand

        On December 7, 2011, the Board provided Mr. Helferty with a copy of LCDR Spencer’s
statement, AR N-190 to -99, and Mr. Helferty submitted his rebuttal on March 16, 2012, AR L-
96 to -104, M-182 to -88. The Board requested and received further comment on Mr. Helferty’s
rebuttal and application from LCDR Spencer, AR I-80 to -84, the Navy Personnel Command,
Office of Legal Counsel, AR G-70 to -74, and the Office of the Judge Advocate General, AR K-
90 to -94. On remand, the Board did not heed the court’s suggestion to refer the disputed factual
issues to a hearing officer for initial determinations of fact and credibility, although the Board
allowed Mr. Helferty numerous opportunities to respond to LCDR Spencer’s several statements
as well as the advisory opinions of Navy legal officers. Specifically, Mr. Helferty received
copies of the advisory opinions and comments, AR F-52 to -68, and he provided a written
response on August 1, 2012, AR E-32 to -50. In his response, he included a new declaration
from CDR Lanier regarding his recollection of then-Lt. Spencer’s preparations for the ADB
hearing. AR E-45 to -46. LCDR Spencer received Mr. Helferty’s response, AR D-27 to -29, and




                                                7
submitted a further commentary on September 14, 2012, AR C-22 to -23. Finally, Mr. Helferty
responded to the last statement by LCDR Spencer. AR B-19 to -20.

        In a decision dated December 19, 2012, the Board again denied Mr. Helferty’s
application for correction of his naval records. AR A-1 to -17. A new three-member panel was
comprised of senior civilian attorneys employed by the Navy’s Office of General Counsel. AR
A-3. The Board considered almost the entire administrative record, including the advisory
opinions it had requested, LCDR Spencer’s statements, and Mr. Helferty’s responses. AR A-3 to
-4. It expressly did not consider the Board’s prior decisions by other panels, Mr. Helferty’s pre-
service use of marijuana, or Mr. Helferty’s performance evaluation that he received subsequent
to being notified of the positive drug test. AR A-4. The Board stated that it did not hold an in-
person hearing because “the issues are well developed and any additional statement would be
cumulative or repetitive in nature and would not materially add to the evidence now of record.”
Id.

        In concluding that Mr. Helferty failed to show any injustice or error in the ADB’s
original decision, the Board found that there was no direct evidence that his positive urinalysis
was a false positive. AR A-5. Regarding the polygraph, the Board did not find that error or
injustice resulted from the apparently unavailing weight that the ADB members had given to
Mr. Helferty’s favorable polygraph examination by Lt. Winegarden. AR A-6.

         Much of the Board’s decision on remand focused on Mr. Helferty’s claim of ineffective
assistance of counsel. Overall, the Board found that “[then-Lt.] Spencer conducted a focused,
tightly protected defense, presented in a manner to preclude the Recorder from attacking the
evidence presented on [Mr. Helferty’s] behalf.” AR A-7. The Board assumed without deciding
that the Strickland standard applied to Mr. Helferty’s ineffective assistance of counsel claim.
Id. 7 As such, they considered LCDR Spencer’s choices in the context in which he made them,
i.e., (1) the ADB members were scientifically literate, (2) Mr. Helferty’s performance reviews
were average, and (3) Mr. Helferty never presented a factual basis for his innocent-ingestion
defense or described his activities preceding the test. Id. The Board found that it was reasonable
for then-Lt. Spencer to take steps to prevent the Recorder from having the opportunity to cross-
examine either CDR Lanier or Mr. Helferty about Mr. Helferty’s whereabouts and activities in
the days preceding the urinalysis and his performance records. AR A-6 to -9. The Board stated
that Mr. Helferty’s claim of ineffective assistance of counsel “treat[ed] every misstep or
supposed misstep by [then-]L[t.] Spencer as evidence of inadequate representation and that any
gap in the record must be read in [his] favor.” AR A-15.



       7
         Every criminal defendant, whether before a military or a civilian tribunal, is entitled to
effective assistance of counsel in conducting his or her defense. See U. S. Const. amend. VI;
Strickland v. Washington, 466 U.S. 668, 687-96 (1984); United States v. Cain, 59 M.J. 285, 294
(C.A.A.F. 2004). The Supreme Court in Strickland developed a two-part test for determining
whether a criminal defense attorney’s assistance was deficient. First, the criminal defendant
must show that counsel made errors “so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “Second, the
defendant must show that the deficient performance prejudiced the defense.” Id.


                                                 8
        In his application for reconsideration, Mr. Helferty had presented additional polygraph
evidence to the Board to support his contentions that he was telling the truth when he stated that
then-Lt. Spencer had assured him he would not be found guilty of drug abuse if he passed a
polygraph and that he offered to make character witnesses available for interviews and
statements. AR L-100, -115 to -16. The Board gave little weight to this additional evidence,
citing a discrepancy between the use of the word “assured” in the polygraph examination and the
word “thought” in Mr. Helferty’s declaration to the Board. AR A-16 (finding that whether then-
Lt. Spencer “assured” him that he would be found not guilty if he passed a polygraph test or
“thought” that the ADB would find him not guilty if he passed a polygraph test were “quite
different things.”).

        The Board largely rejected the importance and applicability of the scientific studies
presented by Mr. Helferty, opining that none of the studies truly suggested that Mr. Helferty
could have been casually, unknowingly exposed to cocaine and tested at the levels he did. AR-10
to -12. Finally, the Board also assigned little weight to the good-character statements obtained
by Mr. Helferty’s counsel, finding that these statements indicated he was a “good and reliable
person who [wa]s unlikely to have used illegal drugs,” but “[s]uch statements do not establish by
[a] preponderance of the evidence . . . that [he] did not wrongfully use cocaine.” AR A-16.

                                 E. The Pending Claims

        Mr. Helferty seeks review of the Board’s latest decision denying his application for
correction of his naval records and requests that the court order an evidentiary hearing on his
claim of ineffective assistance of counsel. Pl.’s Mem. at 1. A hearing was held on September
24, 2013 and the case is ready for disposition.

                                        JURISDICTION

        The Tucker Act, 28 U.S.C. § 1491(a)(1), authorizes claims for monetary relief to be
brought against the United States “founded either upon the Constitution, or any [a]ct of Congress
or any regulation of an executive department, or upon any express or implied contract with the
United States.” 28 U.S.C. § 1491(a)(1). Although granting this court jurisdiction, the Tucker
Act does not create a substantive legal right. United States v. Mitchell, 445 U.S. 535, 538
(1980). Claimants must also identify a separate source of substantive law creating the right to
money damages. Id. In this case, Mr. Helferty relies on the Military Pay Act, 37 U.S.C.
§ 204(a), to provide that source. The Military Pay Act is a money-mandating statute that creates
a substantive legal right enforceable against the United States for the salary of the rank to which
a service member “is appointed and in which he serves.” Smith v. Secretary of the Army, 384
F.3d 1288, 1294 (Fed. Cir. 2004). Mr. Helferty claims that his naval records should be
corrected to reflect that he was not involuntarily separated for drug use and that he continued to
serve on active duty until he reached retirement eligibility at twenty years of active service.
Such a correction would entitle Mr. Helferty to back pay, benefits, and allowances, allegedly
totaling $141,336.00, subject to offsets. Compl. ¶ 2, 3. The government does not dispute this
court’s jurisdiction over Mr. Helferty’s claims.




                                                 9
                                 STANDARDS FOR REVIEW

         The parties have submitted cross-motions for judgment on the administrative record
under Rule 52.1 of the Rules of the Court of Federal Claims. The court’s review of military
cases is limited. See Groves v. United States, 47 F.3d 1140, 1144 (Fed. Cir. 1995) (“[N]o court
is qualified to review the substantive merits of a decision [committed to the discretion of the
military], so long as the decision comports with any procedural standards mandated by statute or
regulation.”). Specifically, “responsibility for determining who is fit or unfit to serve in the
armed services is not a judicial province[,] and . . . 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). The standard of
review applied by this court in these cases “does not require a reweighing of the evidence, but a
determination whether the conclusion being reviewed is supported by substantial evidence.” Id.
at 1157. “In reviewing a military board’s decision under the substantial evidence rule, ‘all of the
competent evidence must be considered, whether original or supplemental, and whether or not it
supports the challenged conclusion.’” Riser v. United States, 93 Fed. Cl. 212, 217 (2010)
(quoting Heisig, 719 F.2d at 1157).

                                            ANALYSIS

        Mr. Helferty initially posited four claims: (1) the Board improperly failed to adhere to its
prior precedent, (2) Mr. Helferty rebutted the presumption that he knowingly and willfully
ingested cocaine, (3) Mr. Helferty received ineffective assistance of counsel at the ADB, and
(4) the Board abused its discretion in failing to hold an in-person hearing. Pl.’s Mem. at 1-2;
Compl. ¶¶ 65, 75, 84, 92. Mr. Helferty has since abandoned his claim that the Board abused its
discretion in failing to hold an in-person hearing. Pl.’s Mem. at 1. As a result, the court will
only address the first three claims.

                    A. Whether the Board is Bound by its Prior Decisions

        Mr. Helferty contends that the Board is “under a legal obligation to decide similar cases
in a similar manner.” Pl.’s Mem. at 32 (citing Wilhelmus v. Geren, 796 F. Supp. 2d 157, 162
(D.D.C. 2011)). This contention has merit insofar as it indicates that an agency would be
arbitrary and capricious if it treated identically situated cases radically differently. The
government also correctly states, however, that “there is no ‘require[ment] [that] an agency []
grapple with every last one of its precedents, no matter how distinguishable.’” Def.’s Cross-Mot.
at 25 (quoting Jicarilla Apache Nation v. U.S. Dep’t of Interior, 613 F.3d 1112, 1120 (D.C. Cir.
2010)).

        Mr. Helferty refers to two prior cases decided by the Board, arguing that they present
similar factual patterns but were decided differently. Pl.’s Mem. at 32-34. In both cases,
applicants had been separated for drug abuse. In the first case, the Board corrected an
applicant’s records after considering his thirteen years of positive service, the low level of
tetrahydrocannabinol (“THC”), a metabolite for marijuana, in his system, and his plausible
defense of innocent ingestion. Pl.’s Mem. at 33. The government avers that this prior case is
distinguishable on its facts. Def.’s Cross-Mot. at 26. The applicant’s wife had testified that she



                                                 10
had purchased granola in bulk from a health food store and that the applicant had been eating the
granola. AR HH-729 to -30. A Navy pharmacologist submitted a report to the ADB, stating that
both marijuana and hemp will produce THC, that granola frequently contains hemp oil and hemp
seeds, and that tests have shown positive urinalyses from the consumption of hemp products.
Id.; Def.’s Cross-Mot. at 27. Also, the applicant’s commanding officer had disagreed with the
ADB’s recommendation for separation and had strongly recommended that the applicant be
retained on active duty. AR HH-730. The second case cited on behalf of Mr. Helferty is similar.
The Board corrected an applicant’s records after finding that her defense of innocent ingestion
was persuasive. AR HH-725. The applicant had legally purchased a variety of Chinese herbal
medicines, and drug tests on the substances she was consuming tested positive for marijuana.
AR HH-721 to -22; Def.’s Cross-Mot. at 26. The key difference between those cases and the
instant case is the other applicants’ plausible explanations of innocent ingestion, where
Mr. Helferty had offered no comparable innocent route of ingestion.

         That the Board did not explicitly distinguish these two prior cases provides no reason to
set aside the Board’s decision. An agency is not required to distinguish every prior case that
bears some similarity. See Jicarilla Apache Nation, 613 F.3d at 1120. The instant case is
factually distant from Wilhelmus, 796 F. Supp. 2d 157, where the district court found that the
Army Board for the Correction of Military Records could not reasonably treat two virtually
identical cases differently. In Wilhelmus, a cadet at the U.S. Military Academy repeatedly failed
his physical fitness tests and was eventually disenrolled for that reason. Wilhelmus, 796 F. Supp.
2d at 159. The government sought to recoup tuition fees from him, and the Army Board had
concluded that he owed the money because his failure to pass the fitness tests was “voluntary.”
Id. In a prior case before the Army Board, however, a cadet who was disenrolled for failure to
pass the physical fitness tests, was not found to have “voluntarily” failed to complete contractual
requirements and was thus not liable for the tuition. Id. at 163. The two situations were nearly
identical, and the court held that the Army Board had acted incorrectly when it offered no
rationale for treating them differently. Id. Mr. Helferty’s case, on the other hand, is not
comparable to the prior cases he cites. Thus, to the extent a Board is required to treat like cases
alike, the Board did not fall short of that duty in this case.

            B. On Rebutting the Presumption of Unlawful Ingestion of Cocaine

        Mr. Helferty argues that he rebutted the presumption of knowing and willful cocaine use
that resulted from his positive urinalysis and that the Board’s failure to correct his naval records
accordingly is not supported by substantial evidence. Pl.’s Mem. at 16. According to
Mr. Helferty, the character statements, polygraph examination results, and scientific evidence
that he submitted to the Board, together with his military performance record, essentially
required the Board to overturn the decision of the ADB for error or injustice. See Pl.’s Mem. at
16-31; see also 10 U.S.C. § 1552(a)(1) (“The Secretary of a military department may correct any
military record of the Secretary’s department when the Secretary considers it necessary to correct
an error or remove an injustice . . . . [S]uch corrections shall be made by the Secretary acting
through boards of civilians of the executive part of that military department.”). The government
maintains that the Board adequately considered the evidence and was not required to find an
error or injustice in the ADB’s decision. See Def.’s Cross-Mot. At 15.




                                                11
        Mr. Helferty submitted a number of character statements to the Board. The statements
invariably describe Mr. Helferty as an honest man, and many of the persons providing the
statements related that they did not believe he used drugs. See Pl.’s Mem. at 17-21. The
government stresses that the Board was entitled to assign little weight to the “broad, general
opinions that Mr. Helferty is a good person and was a dedicated sailor, and, for that reason, was
not likely to have used illegal drugs.” Def.’s Cross-Mot. at 18. Contrary to Mr. Helferty’s
assertions that the Board outright rejected these character statements, the Board considered them
and explained why they were insufficient to demonstrate a legal error in the ADB’s original
decision. AR A-16. They amounted to opinion evidence, and none of them could address with
any certainty whether Mr. Helferty used cocaine. Id. The court does not find that the Board was
required to assign them greater weight.

         Mr. Helferty also submitted a second polygraph examination result to the Board,
confirming Lt. Winegarden’s results. Pl.’s Mem. at 24; AR KK-849 to -50. Mr. Helferty
contends that the Board’s consideration of the polygraph evidence was inconsistent. He argues
that on the one hand, the Board found it insufficient to overturn the ADB’s decision, but on the
other hand, it was sufficient evidence that then-Lt. Spencer presented a “focused, tightly
protected defense.” Pl.’s Mem. at 25 (quoting AR A-7). The government does not respond to
this alleged inconsistency. While the ADB or the Board arguably could have been swayed by
the polygraph evidence, their failure to be so persuaded is not arbitrary and capricious. The
Board had to weigh two different pieces of conflicting scientific evidence, the positive urinalysis
and the favorable polygraph examination. That the Board found the polygraph evidence
insufficient to rebut the presumption of willful drug use that results from a positive urinalysis is
not unreasonable.

        The Board also carefully considered the scientific studies presented on Mr. Helferty’s
behalf, to support innocent ingestion. AR A-10 to -15. Mr. Helferty pressed the argument to the
Board that the positive unrinalysis could have been attributable to casual contact with a person
who had just used cocaine, which might have occurred during Mr. Helferty’s work as a drug
counselor, or casual contact with cocaine contaminated money. AR A-10. The Board explained
that while the proffered scientific studies did suggest the possibility of innocent ingestion in
general terms, they do not explain it in Mr. Helferty’s particular case. AR A-11. For example,
one study examined whether those who work in a laboratory that processes cocaine samples for
use as training aids for drug-sniffing dogs would test positive for cocaine. AR A-11 to -12, HH-
481 to -84. Only two urine samples out of 233 showed presence of benzoylecgonine above 100
nanograms per milliliter, the actionable cut-off for the Navy. AR HH-482. The laboratory staff
wore protective clothing in most cases, and the study concluded that much further research was
needed, including the use of control groups, to better understand the contamination risks. AR
HH-481, 484. The Board reasonably concluded that even though Mr. Helferty worked as a drug
counselor, his exposure to cocaine likely did not reach the level of exposure in the laboratory
study, where only several people tested above the limit. AR A-11 to -12. Another study showed
that some non-drug-users tested positive when living with drug users. See AR HH-499 to 500.
Mr. Helferty never claimed to have repeated, intimate exposure to a habitual drug user.
Similarly, the Board considered a number of other studies submitted by Mr. Helferty, finding
that while all of them admit of some possibility of innocent ingestion for bank tellers handling
contaminated money, undercover agents working with drug dealers, etc., the studies showed that



                                                 12
contamination risks are low and positive urinalysis results are rare. AR A-12 to -15.
Additionally, the Board received an advisory opinion from the Navy’s Public Health Center,
which advised that the Navy’s cutoff level is “well above passive inhalation levels or normal
everyday environmental contamination exposure levels.” AR V-282. Mr. Helferty never
provided any proof that he had anything other than passive inhalation or normal everyday
environmental exposure. The Board was not required to infer from these studies that casual
contact with contaminated money or a cocaine user could have caused Mr. Helferty’s positive
urinalysis.

        Lastly, regarding Mr. Helferty’s performance record, he asserts that his record suggests
he was an honest, loyal, and successful sailor. The Board accepted that Mr. Helferty may have
been all of those things, but it disagreed that his record showed cause for overturning the ADB’s
decision. AR A-8 to -9. Again, the Board is not required to draw Mr. Helferty’s suggested
inference from his military performance records.

        Overall, the Board’s responsibility was to determine whether there was legal error or
injustice resulting from the ADB’s decision to separate Mr. Helferty due to the positive drug test.
The Board’s decision not to overturn the ADB’s decision reflects a consideration of all of the
evidence and a reasonable interpretation of the evidence. Thus, this court will not disturb its
conclusion that Mr. Helferty failed to rebut the presumption of willful ingestion of cocaine.

                        C. Effective Assistance of Counsel

        Mr. Helferty claims that then-Lt. Spencer provided ineffective assistance of counsel
before the ADB, prejudicing the outcome. He contends that then-Lt. Spencer’s representation
fell short of the Judge Advocate General Instruction (“JAGINST”) 5803.1C 8 or the Sixth
Amendment right to counsel, as stated in Strickland v. Washington, 466 U.S. 668 (1984). See
Pl.’s Mem. at 35. Mr. Helferty urges this court to reach a decision on Mr. Helferty’s claim
without addressing whether Mr. Helferty enjoys a Sixth Amendment right to effective assistance
of counsel before the ADB, stating that military record boards and judges of this court have
applied Strickland in reviewing past separation proceedings. Id. (citing Harris v. United States,
102 Fed. Cl. 390, 419-20 (2011); Flowers v. United States, 80 Fed. Cl. 201, 219-221 (2008)).
The government argues that the Board applied the Strickland standard in this case, which, while
likely the wrong criterion, was harmless error insofar as the outcome was concerned. Def.’s
Cross-Mot. at 29-30.




       8
         JAGINST 5803.1C prescribes standards for and governs the “Professional Conduct of
Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General.” Its
purpose is to: “establish Rules of Professional Conduct;” “establish procedures for receiving,
processing, and taking action on complaints of professional misconduct made against attorneys
practicing under the supervision of [the Judge Advocate General (“JAG”)];” “prescribe
limitations on . . . the outside practice of law by [Navy] attorneys practicing under the
supervision of JAG;” and “ensure quality legal services at all proceedings under the cognizance
and supervision of JAG.” Def.’s Cross-Mot., Addendum at 1-2, ECF No. 32-1.


                                                13
        Because Strickland constitutes a test developed to pertain to criminal proceedings where
the Sixth Amendment right to counsel is at issue, some courts have rejected application of
Strickland to administrative proceedings, even those with significant consequences. In Williams
v. Wynne, 533 F.3d 360, 369 (5th Cir. 2008), the Fifth Circuit held that “the Sixth Amendment
right to effective assistance of counsel [does] not apply to the appellant’s non-criminal
administrative discharge hearing.” Williams, 533 F.3d at 369 (citing Mantell v. Department of
Justice Immigration & Naturalization Serv., 798 F.2d 124, 127 (5th Cir. 1986); Sanchez v.
United States Postal Service, 785 F.2d 1236, 1237 (5th Cir. 1986)). Instead, the court in
Williams applied a “competent (or qualified) counsel” standard in reviewing the representation
that an Air Force Reservist received before an Air Force ADB. See id. at 369 n.6. The Fifth
Circuit applied that standard based on the language in the reservist’s Notification of Initiation of
Separation Action, and it further stated that “[t]he right to have qualified counsel appointed does
not necessarily create a coordinate right to effective assistance of counsel under the Sixth
Amendment.” Id. Cases in this court addressing claims under the Military Pay Act have applied
the Strickland test to an administrative separation proceeding and to resignation in lieu of a
court-martial, assuming but not deciding that it is the applicable test. See e.g., Lopez-Velazquez
v. United States, 85 Fed. Cl. 114, 137-138 (2008); Sinclair v. United States, 66 Fed. Cl. 487, 495
(2005), aff’d, 192 Fed. Appx. 966 (Fed. Cir. 2006).

        The analysis in Williams is persuasive. Mr. Helferty was ordered to be discharged
through an administrative separation process regulated by provisions of the Naval Military
Personnel Manual (“MILPERSMAN”), NAVPERS 15560D, available at http://www.public.
navy.mil/bupers-npc/reference/milpersman/pages/default.aspx (last visited Nov. 15, 2013). His
separation process specifically was governed by MILPERSMAN 1910-146, Separation By
Reason of Misconduct – Drug Abuse. See AR LL-1001; see also Def.’s Cross-Mot, Addendum
at 134. Mr. Helferty received notification of his impending hearing before the ADB via form
NAVPERS 1910/31, which allowed him to elect “representation at an administrative board by
qualified counsel.” AR LL-1001. MILPERSMAN 1900-010 defines key words for Article
1910. “Qualified counsel” means “[c]ounsel qualified per [Uniform Code of Military Justice]
[A]rticle 27(b) who does not have any direct responsibility for advising the convening authority
or separation authority on the proceedings involving the respondent.” MILPERSMAN 1900-
010(1)(t) (revised Sept. 20, 2011). Article 27(b) of the Uniform Code of Military Justice states
that counsel:

       (1) Must be a judge advocate who is a graduate of an accredited law school or is a
           member of the bar of a Federal court or of the highest court of a State; or must be a
           member of the bar of a Federal court or of the highest court of a State; and
       (2) Must be certified as competent to perform such duties by the Judge Advocate General
           of the armed force of which he is a member.

10 U.S.C. § 827(b). Given this statutory language and the Sixth Amendment’s inapplicability to
proceedings before administrative boards, Mr. Helferty’s claim is appropriately analyzed under
the qualified counsel standard. In this context, qualified means competent, as recognized by the
Fifth Circuit in Williams and by Article 27(b)(2) of the Uniform Code of Military Justice.




                                                 14
        The inquiry thus becomes whether Mr. Helferty received representation by qualified
counsel during his ADB hearing. Without a doubt, then-Lt. Spencer’s representation of
Mr. Helferty before the ADB was less than perfect. He completed work on his major defense
strategy, a favorable polygraph examination, only four days before the hearing. AR T-276. Mr.
Helferty is correct to question what then-Lt. Spencer was prepared to present if the polygraph
result was not favorable. Pl.’s Mem. at 40. Then-Lt. Spencer omitted to call potential character
witnesses to testify on Mr. Helferty’s behalf ostensibly because he was concerned that character
witnesses would not perform well on cross-examination due to Mr. Helferty’s average military
performance record. AR T-273 to -74. This is not a compelling reason not to call witnesses who
would testify they had never witnessed Mr. Helferty do drugs and would not have believed he
did. 9

         Mr. Helferty also points to then-Lt. Spencer’s failure to adduce evidence to support an
innocent ingestion defense, such as by coupling possible scenarios of innocent ingestion with
scientific studies supporting the plausibility of innocent ingestion. Pl.’s Mem. at 36. LCDR
Spencer stated that he questioned Mr. Helferty repeatedly about possible scenarios in which he
might have been slipped cocaine, noting that in the past he has had success with such defenses.
AR V-273. Even before the Board, Mr. Helferty supplied no account of his activities in the
several days preceding the random urine test. The board viewed that omission as relevant to its
decision. See AR A-7 (“Your lack of an explanation regarding how cocaine was innocently in
your urine could have proven to be problematic for your defense.”). 10 As for then-Lt. Spencer’s
failure to introduce scientific studies, the court agrees with Mr. Helferty that then-Lt. Spencer
should have emphasized the scientific possibility of passive inhalation or environmental
exposure, but this shortcoming hardly rises to the level of incompetence of counsel when the
scientific studies are of little value and applicability in the first place. As discussed supra, these
studies are helpful only when coupled with relevant factual scenarios.

         What is perhaps most concerning to the court is that the Recorder, Lt. Anselm, provided a
more vigorous defense of Mr. Helferty in some ways than did then-Lt. Spencer. Lt. Anselm was
the one who pointed out the very low level of cocaine metabolite found in Mr. Helferty’s system.
AR L-166. He told the board that this low-level of metabolite made it possible that Mr. Helferty
truly never felt the effects of any cocaine in his system. AR L-167. The low level could have
been due to unknown ingestion or knowing ingestion that occurred days before the testing, id.,
but at the very least it showed Mr. Helferty was not a chronic cocaine user because his levels
would have been much higher, see AR HH-493. In his presentation to the ADB, then-Lt.
Spencer should have addressed the implications of the low level observed in the urinalysis, even
though the members were medical professionals. Lt. Anselm also stated that mistakes do occur
in testing, AR L-157, whereas then-Lt. Spencer, evidently trying to make strategic concessions,
see AR I-83, stated that a mistake was unlikely in this case, AR L-160.
       9
        Separately and additionally, whether Helferty provided names of additional character
witnesses and then-Lt. Spencer affirmatively chose not to contact them is in dispute, but
resolving that dispute would not significantly advance the inquiry into counsel’s competence.
       10
         This court takes no stance on whether it believes Mr. Helferty knowingly ingested
cocaine. The question before the court is whether the Board’s decision upholding the ADB’s
decision was supported by substantial evidence.


                                                  15
       It is disputed whether then-Lt. Spencer told Mr. Helferty that he “thought” the polygraph
evidence would be enough to return a finding of no drug abuse, whether he “assured” him of it,
or whether he merely said it would be helpful. See Pl.’s Mem. at 37; AR I-81. While an attorney
would be ill-advised to “assure” a client of any outcome, any expression of probability of success
by then-Lt. Spencer could not reasonably have been interpreted as anything other than an
opinion. This particular factual dispute does not weigh heavily in determining whether
Mr. Helferty received competent assistance of counsel.

        The Board requested several advisory opinions regarding Mr. Helferty’s claim of
ineffective assistance of counsel. Captain Michael Quinn, on behalf of the Rules Counsel in the
Office of the Judge Advocate General, opined that then-Lt. Spencer had not violated the Rules of
Professional Conduct. See AR K-90 to -92. The brief opinion considered that then-Lt. Spencer
was a “properly trained, certified, and experienced defense counsel who had defended numerous
clients before courts-martial and administrative boards, to include allegations involving drug
use.” AR K-91. Captain Quinn pointed to then-Lt. Spencer’s successful objection during voir
dire, the polygraph evidence, the evidence of prior cross-contamination at the same drug lab, and
Mr. Helferty’s failure to present a plausible innocent-ingestion defense as reasons to find that
then-Lt. Spencer did not violate any standards. AR K-91 to -92. 11

        The Board also considered the opinion of Lt. Col. Colby Vokey (USMC, Ret.) submitted
on behalf of Mr. Helferty. See AR M-182 to -88. Lt. Col. Vokey was a long-serving Judge
Advocate in the United States Marine Corps. From 2003-2008, he served as the Regional
Defense Counsel for the Western Region of the United States and Iraq, supervising over 100
Marine Corps and Navy defense counsel. AR M-182. He found that then-Lt. Spencer provided
ineffective assistance of counsel based on (1) his failure to call a single character witness at the
hearing, (2) his complete reliance on the polygraph test as a defense, and (3) his failure to present
a stronger defense of innocent ingestion, including Mr. Helferty’s potential for environmental
exposure at work. AR M-185 to -86. The Board considered Lt. Col. Vokey’s analysis and
determined that he did not sufficiently consider the context in which then-Lt. Spencer made his
strategic decisions. AR A-7. In the Board’s view, Lt. Col. Vokey failed to consider that the
ADB was scientifically literate, Mr. Helferty’s performance reviews were average, and there was
no factual basis for an innocent-ingestion defense. Id. Although the criticisms levied by Lt. Col.
Vokey against then-Lt. Spencer’s representation of Mr. Helferty are significant, when the facts
are applied to a qualified counsel standard, they cannot support a finding that then-Lt. Spencer
was “unqualified.”

       In the preceding discussion, the court has interpreted disputed facts in a light most
favorably to the plaintiff, and for that reason, the court declines to remand this case to the Board
to conduct an evidentiary hearing regarding Mr. Helferty’s ineffective assistance of counsel

       11
         A prior advisory opinion had explained that the Office of the Judge Advocate General
“does not make determinations with respect to effective assistance of counsel pursuant to the
Sixth Amendment of the U.S. Constitution, a matter properly vested with a court of law.” AR S-
265. Accordingly, the prior opinions and Captain Quinn’s opinion only addressed whether then-
Lt. Spencer violated the Navy Rules of Professional Conduct.


                                                 16
claim. 12 Even assuming Mr. Helferty is correct in his assertions, then-Lt. Spencer satisfied the
standards for “qualified counsel.” He presented a rationale for his choices during the
representation, and while the court disagrees with several of those decisions, it cannot find that
then-Lt. Spencer breached his duties as Mr. Helferty’s counsel.

                                         CONCLUSION

        For the reasons stated, the government’s motion for judgment on the administrative
record is GRANTED. The plaintiff’s motion for judgment on the administrative record is
accordingly DENIED.

       The clerk is directed to issue a final judgment in accord with this disposition.

       No costs.

       It is so ORDERED.

                                                   s/ Charles F. Lettow
                                                   Charles F. Lettow
                                                   Judge




       12
          Mr. Helferty requests that the court conduct this evidentiary hearing itself, Pl’s Mem. at
3, but, as the government properly points out, this court is not empowered to hear evidence de
novo when a matter has previously been presented to a military corrections board. See Def.’s
Cross-Mot. at 11 (“[t]he reviewing court is not generally empowered to conduct a de novo
inquiry into the matter being reviewed and to reach its own conclusions based on such an
inquiry, and instead the proper course, except in rare circumstances, is to remand to the agency
for additional investigation or explanation.” (quoting Walls v. United States, 582 F.3d 1358,
1367 (internal quotations omitted))). If Mr. Helferty’s claims had not been presented to the
Board, the court could consider the case as an initial matter, receiving evidence and resolving
factual disputes. See Martinez v. United States, 333 F.3d 1295, 1303-04 (Fed. Cir. 2003)
(observing that since their inception, military boards have been regarded as a “permissive
administrative remedy . . . [,] not a mandatory prerequisite to filing a Tucker Act suit challenging
the discharge.”).


                                                 17
