       In the United States Court of Federal Claims
                                      No. 15-601C

                                  (Filed: June 3, 2016)

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                                    *
WALTER N. STRAND, III,              *
                                    *
                                                 Action for Review of Military Records;
                    Plaintiff,      *
                                                 Assistant General Counsel’s Reversal of
                                    *
                                                 Decision by Board for Correction of
v.                                  *
                                                 Naval Records; Standard of Review;
                                    *
                                                 Counterclaim for Return of Funds
THE UNITED STATES,                  *
                                                 Erroneously Paid to Plaintiff.
                                    *
                    Defendant.      *
                                    *
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Jeffery M. Chiow, with whom was Lucas T. Hanback, Rogers Joseph O’Donnell, P.C.,
Washington, D.C., for Plaintiff.

Daniel K. Greene, with whom were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Robert E. Kirschman, Jr., Director, and Douglas K. Mickle, Assistant
Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,
Washington, D.C., for Defendant.

                                OPINION AND ORDER

WHEELER, Judge.

       Plaintiff, an enlisted serviceman in the United States Navy, brings this action to
correct the manner by which he was separated from the military after more than 19 years
of largely exemplary service. In a proceeding before the Board for Correction of Naval
Records, the Board primarily agreed with Plaintiff’s position, but the favorable ruling was
promptly reversed in a two-paragraph memorandum by the Assistant General Counsel for
Navy Manpower and Reserve Affairs. The Court must review whether the Assistant
General Counsel’s reversal of the Board’s decision is arbitrary, capricious, an abuse of
discretion, or not supported by substantial evidence.
                               Factual and Procedural Background1

       Plaintiff, Walter N. Strand, III, commenced this action on June 15, 2015 requesting
the correction of his military records along with back pay and entitlement to future pay.
Mr. Strand initially brought this action by filing a complaint as a pro se plaintiff. Shortly
thereafter, Mr. Strand was able to secure representation through this Court’s pro bono
referral program and subsequently filed an amended complaint on October 8, 2015. On
January 15, 2016, the Court denied the Government’s motion to dismiss each of Plaintiff’s
four asserted claims. Currently pending before the Court are Plaintiff’s motion for
judgment on the administrative record (Dkt. No. 23), Defendant’s motion to supplement
the administrative record (Dkt. No. 33), Defendant’s cross-motion for judgment on the
administrative record (Dkt. No. 35), Defendant’s first counterclaim (Dkt. No. 36),
Plaintiff’s second motion to strike (Dkt. No. 37), Plaintiff’s motion to dismiss the
counterclaim (Dkt. No. 42), and Defendant’s motion to remand (Dkt No. 52).

        Mr. Strand’s claims before this Court involve the manner in which he was separated
from the Navy. Mr. Strand enlisted in the Navy in 1988 and served for more than 19 years,
rising to the rank of Chief Petty Officer. He spent more than eleven of those years deployed
abroad, including deployments in support of Operations Iraqi and Enduring Freedom. Pl.’s
Mot. for Judgment on the Administrative Record (“MJAR”) at 4. Mr. Strand earned several
commendations and personal awards during his service, including four Navy and Marine
Corps Achievement Medals and four Good Conduct Medals. Id. Mr. Strand’s service
record reflects high marks for military performance and confirms his qualification as an
“information assurance professional” whom the military trusted with classified
information. Id. at 4-5.

       Prior to the incident that led to his separation from the Navy, Mr. Strand’s
evaluations portray an exemplary officer ripe for further promotion.2 See AR 105 (“His
contributions to ENTERPRISE and the Navy have been exemplary. He is ready for greater
responsibility. Promote to Senior Chief Petty Officer.”); AR 107 (“Petty Officer Strand is
a dynamic leader . . . . Continue to select for the most challenging assignments and promote
ahead of his peers.”); AR 109 (“Superb Manager. . . . An extraordinary coach and mentor.

1
 The facts in this decision are taken from the administrative record (“AR”). The pages in the administrative
record are numbered in sequence. The Court’s citations to the administrative record are to the AR page
numbers.
2
 There is one much older negative conduct offense reflected in Mr. Strand’s record. While serving on the
USS Thomas C. Hart as a new Radioman Petty Officer, Third Class in 1992, at the age of twenty-two, Mr.
Strand was counseled for “ABUSE OF ALCOHOL WHICH RESULTS IN DISORDERLY CONDUCT”
and instructed to “REFRAIN FROM OVERINDULGENCE IN ALCOHOLIC BEVERAGES.” Am.
Compl. at 3-4, citing NAVSPERS 1070-613, February 26, 1992. Mr. Strand served without incident from
1992 to 2007.
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He is a pillar for subordinates and juniors alike to emulate. . . . Ready for Chief NOW!
Petty Officer Strand has my highest personal recommendation for advancement to Chief
Petty Officer.”).

        After returning from his final combat deployment in the spring of 2007, Mr. Strand
discovered that his wife had emptied his bank account and left home without explanation,
taking his children and belongings with her. AR 059. A heated confrontation at his wife’s
new apartment building in June 2007 led to Mr. Strand’s first negative fitness report. Pl.’s
MJAR at 5; AR 103 (“Chief Strand displayed unsatisfactory conduct and decision making
for a Chief Petty Officer.”). In February 2008, Mr. Strand was arrested after shooting at
the car his wife and her boyfriend were driving. As a result of that incident, Mr. Strand
was convicted of attempted malicious wounding, attempted unlawful wounding, and use
of a firearm in the commission of a felony. AR 009. Following his conviction, Mr. Strand
was administratively separated from the Navy. His discharge was characterized as “under
other than honorable circumstances” with less than 20 years of service. Id. Mr. Strand was
released from prison for good behavior after serving three years of his six-year sentence.
Id.

       Upon his release, Mr. Strand asked the Navy Discharge Review Board (“NDRB” or
“Discharge Board”) to upgrade his service characterization and change his reentry code.
AR 078. Although it initially denied Mr. Strand’s requests, the Discharge Board eventually
granted Mr. Strand partial relief when he appeared before the NDRB on December 12,
2013. The Discharge Board agreed to change the characterization of Mr. Strand’s service
from under other than honorable conditions to general under honorable conditions, but
declined to revise the narrative reason for discharge in his record. AR 032.

       After his success before the Discharge Board, Mr. Strand petitioned the Board for
Correction of Naval Records (“BCNR” or “Board for Correction”), “requesting six months
retirement credit with an honorable characterization of service, or an upgrade of his general
discharge to honorable, a change of his narrative reason for separation, and a favorable
reenlistment code.” AR 008. On December 15, 2014, after a full review of Mr. Strand’s
application, naval record, record evidence and deliberations by a quorum, the Board for
Correction came to the following conclusion:

              Upon review and consideration of all the evidence of record,
              the Board concludes that Petitioner’s request warrants partial
              favorable action. Nonetheless, the Board initially notes the
              seriousness of Petitioner’s disciplinary infractions and does not
              condone his misconduct. However, the Board also notes
              Petitioner’s overall record of more than 19 years and six
              months of satisfactory service, which included being awarded

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                 four Navy and Marine Corps Achievement Medals, four Good
                 Conduct Medals, and personal awards. The Board further
                 notes his good post service conduct and early release from civil
                 confinement due to his good behavior.

                 The Board considered the fact that NDRB upgraded the
                 characterization of service to general under honorable
                 conditions based, in part, on Petitioner’s overall record of
                 service and good post service conduct. With that in mind, the
                 Board concluded that Petitioner has suffered long enough for
                 his indiscretion and should be granted relief in the form of
                 credited time served for retirement, i.e., approximately six
                 months. . . .

AR 010-011, BCNR Decision dated December 15, 2014. Based on its consideration of all
of the evidence of record, the Board for Correction recommended “[t]hat Petitioner’s naval
record be corrected to show he was honorably retired with 20 years of service vice issued
a general discharge under honorable conditions by reason of misconduct (civil conviction)
on 26 June 2009.” AR 011.

       The Secretary of the Navy is authorized under 10 U.S.C. § 1552, as implemented
by SECNAVINST 5420.193, to correct a Navy member’s service record when “necessary
to correct an error or remove an injustice.” In exercising this authority, the Secretary must
act through a board of civilians, in this case the BCNR, who shall review and evaluate an
applicant’s claim. SECNAVINST 5420.193 at 3. Although not required, the Executive
Director of the BCNR chose to seek secretarial approval of the BCNR’s recommendation
to correct Mr. Strand’s record.3 On December 15, 2014, the same day that a quorum of the
BCNR unanimously recommended correcting Mr. Strand’s naval record, Executive
Director Robert J. O’Neill unilaterally opted to seek review of the BCNR’s
recommendation, writing “[i]t is my opinion, based on the seriousness of the offense and
the significant grant of relief, that SECNAV should review this case for decision.” AR
013.

     On February 3, 2015, Robert L. Woods, an Assistant General Counsel, Navy
Manpower and Reserve Affairs, rejected the BCNR’s decision in a two-paragraph
3
  Section 6(e)(1) allows that “[w]ith respect to all petitions for relief properly before it, the Board is
authorized to take final corrective action on behalf of the Secretary . . .” except under three circumstances,
the last of which being that “[i]t is in the category of petitions reserved for decision by the Secretary of the
Navy.” SECNAVINST 5420.193, Section 6(e)(1)(c). Section 6(e)(2)(c), cited in the secretarial review
memorandum, is a discretionary catchall category that references “[s]uch other petitions as, in the
determination of the Office of the Secretary or the Executive Director, warrant Secretarial review.”

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memorandum.4 AR 003. Mr. Woods gave two rationales for overturning the BCNR’s
decision. First, he stated that granting the recommended relief would contravene “Navy
core values and practice in similar cases . . . .” Id. Second, quoting an April 3, 2009
Administrative Separation Memorandum prepared by Mr. Strand’s commanding officer,
Mr. Woods stated that Mr. Strand “had a ‘long-standing history of FAP [Family Advocacy
Program] involvement and domestic violence issues.’” Id.

       Before this Court, Mr. Strand argues that Mr. Woods’s decision was arbitrary and
capricious and not supported by substantial evidence, and urges this Court to give effect to
the Board for Correction’s recommendation. Alternatively, Mr. Strand argues that he was
denied his right to an administrative review board. Mr. Strand seeks monetary relief in the
form of active duty pay, back pay, and applicable pay going forward, and asks that the
Court deny the Government’s counterclaim. The Government maintains that the Secretary
properly rejected the BCNR’s recommendation and that Mr. Strand’s claim for retirement
is based on equity rather than legal error and therefore not eligible for review before this
Court. Additionally, the Government contends that Mr. Strand waived his right to judicial
review of certain issues by failing to raise them before the NDRB, the BCNR, or the
Secretary. The Government also argues that Mr. Strand’s challenge to the Secretary’s
decision and request for reinstatement of the BCNR’s recommendation present
nonjusticiable claims. Finally, in its counterclaim, the Government claims that it is entitled
to an award “based upon overpayments made to Mr. Strand in the amount of $79,626.61
for which he was not entitled, plus interest, fees, and penalties . . . .” Gov’t Counterclaim
at ¶ 21(A).

                                            Discussion

       A.      Subject Matter Jurisdiction

        In the Court of Federal Claims, “[b]ecause subject matter jurisdiction is a threshold
matter, it must be established before the case can proceed on the merits.” Sellers v. United
States, 110 Fed. Cl. 62, 66 (2013) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 94–95 (1998)). In this case, the Court’s subject matter jurisdiction is derived from both
the Tucker Act, 28 U.S.C. § 1491, and the Administrative Procedures Act (“APA”),
5 U.S.C. § 703. The Tucker Act grants jurisdiction over claims “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.

4
  The Secretary of the Navy delegated to the Assistant Secretary, Manpower and Reserve Affairs the
authority to review BCNR petitions if required. SECNAVINST 5420.193 at 1-2 (¶b) (Nov. 1997). The
Assistant Secretary in turn delegated that authority to the assistant general counsel of Manpower and
Reserve Affairs. Gov’t MJAR at 11, n.6.
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§ 1491(a)(1). The APA in turn entitles a person legally wronged by agency action to seek
judicial review, thus waiving sovereign immunity of the United States. 5 U.S.C. § 703;
Weaver v. United States, 46 Fed. Cl. 69, 76 (2000). Thus, in conjunction with the APA,
this Court has jurisdiction pursuant to the Tucker Act to review a decision by a corrections
board, or a decision to override a corrections board recommendation, “[t]o provide an entire
remedy and to complete the relief afforded by the judgment” by issuing an “order directing
restoration to office or position, placement in appropriate duty or retirement status, and
correction of applicable records . . . .” 28 U.S.C. § 1491(a)(2); see also Weaver, 46 Fed.
Cl. at 76-77.

       The Tucker Act, however, does not confer any substantive rights upon Plaintiff and
Plaintiff may not rely on the APA as an independent source of jurisdiction as it does not
mandate payment of money damages. Thus, Plaintiff must establish an independent right
to money damages from a money-mandating source within a contract, regulation, statute
or constitutional provision in order for the case to proceed. Jan’s Helicopter Serv. Inc. v.
FAA, 525 F.3d 1299, 1306 (Fed. Cir. 2008); Volk v. United States, 111 Fed. Cl. 313, 323
(2013). Here, the separate money-mandating sources are 10 U.S.C. § 6333, which provides
the schedule according to which military retired and retainer pay are computed, and 37
U.S.C. § 204, which governs the portion of Mr. Strand’s pay the Government argues should
be disgorged.

       B. Standard of Review

       Rule 52.1 of this Court governs motions for judgment on the administrative record.
A review of this kind is like a paper trial based upon the documents assembled by the
agency. The Court makes factual findings based upon the evidence presented in this
record. See, e.g., Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005);
Coastal Envtl. Grp., Inc. v. United States, 118 Fed. Cl. 1, 10 (2014). To review a motion
under Rule 52.1, this Court must decide whether a party has met its burden of proof based
on the evidence in the record given all disputed and undisputed facts. Anderson v. United
States, 111 Fed. Cl. 572, 578 (2013), aff’d (Fed. Cir. 13-5117, July 11, 2014); Bannum,
Inc., 404 F.3d at 1356.

         In reviewing the actions of a military correction board, this Court must apply the
standard of review set forth in the APA. 5. U.S.C. § 706. Under section 706(2)(A), this
Court must “hold unlawful and set aside agency action, findings, and conclusions found to
be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law
. . . .” 5 U.S.C. § 706(2)(A). The Court shall overturn a correction board’s decision only
if it determines that the decision was “arbitrary and capricious, unsupported by substantial
evidence, or not in accordance with the applicable laws or regulations.” Laningham v.
United States, 30 Fed. Cl. 296, 310 (1994). Although the Court reviews a service

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secretary’s decision to overrule a corrections board recommendation pursuant to the same
standard, its review nevertheless “is limited in nature.” Moehl v. United States, 34 Fed.
Cl. 682, 690 (1996). Thus, a secretary’s decision may “differ with a board’s
recommendations where the evidence is susceptible of varying interpretations.” Id. at 690
(citing Sanders v. United States, 594 F.2d 804, 812 (1979)). Nevertheless, a secretary may
not “arbitrarily refuse to follow the fact findings of the correction board where all the
evidence supports the board’s findings.” Moehl, 34 Fed. Cl. at 690 (citing Hertzog v.
United States, 167 Ct. Cl. 377 (1964); see also Boyd v. United States, 207 Ct. Cl. 1, 8
(1975) (“The court, in turn, may reject the decision of a Secretary only if he has exercised
his discretion arbitrarily, capriciously, in bad faith, contrary to substantial evidence, or
where he has gone outside the board record, or fails to explain his actions, or violates
applicable law or regulations. Then we will not hesitate to set him right.”).

       C. Mr. Woods’s Decision to Overrule the BCNR Recommendation

        The Secretary of a military department is required to act through boards of civilian
officers or employees in reviewing and correcting military records. 10 U.S.C. § 1552.
Generally, after reviewing a service member’s record, the Board for Correction is
authorized to take final corrective action based on its findings. SECNAVINST 5420.193,
Section 6(e)(1). Even in those instances where secretarial review or approval is sought or
required, the Secretary must nevertheless justify a decision to overturn a recommendation
that is supported by the record. Thus, when a secretary goes outside of the record before
the board, the secretary “must justify such a departure by explicitly stating the ‘policy
reasons’ behind such action.” Hertzog v. United States, 167 Ct. Cl. 377, 387 (1964). In
Hertzog, the Court held that in the absence of such an explanation, the Secretary’s
discretionary action was arbitrary and capricious. Id. at 388.

        “Since the errors or injustices which might require correction were originally made
by the military, Congress made it manifest that the correction of those errors and injustices
was to be in the hand of civilians.” Id. at 386 (quoting Proper v. United States, 139 Ct. Cl.
511 (1957)). Accordingly, a Secretary may not rely on the advice of a military officer as
justification for overruling a reasoned BCNR recommendation. Weiss v. United States,
187 Ct. Cl. 1, 11 (1969) (explaining that “[t]he thrust of the Proper opinion is that a
Secretary of a military department cannot overrule the recommendations of a civilian
correction board on the advice of a military officer unless the findings of the board are not
justified by the record before it.”). Ultimately, because the function of the BCNR is not
merely advisory, the Secretary is not free to reject a recommendation without proper
justification. See Weiss, 187 Ct. Cl at 10; Hertzog, 167 Ct. Cl. at 386-87; Proper, 139 Ct.
Cl. at 526. Although, “the final authority regarding requested corrections is vested in the



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Secretary,” such authority must nevertheless be exercised in accordance with the law.
Strickland v. United States, 423 F.3d 1335, 1342 (Fed. Cir. 2005).

        In this case, Mr. Woods overruled the BCNR’s recommendation to grant partial
relief to Mr. Strand on two grounds. As the first ground for overruling the BCNR, Mr.
Woods stated that “the relief recommended by the Board is wholly inconsistent with Navy
core values and practice in similar cases involving discharge for criminal conduct and
conviction.” AR 003. However, notwithstanding his reference to “core values,” Mr.
Woods failed to cite a single specific core value or explain how the Board’s
recommendation ran counter to any such value. If the Secretary goes beyond the record
before the Board for Correction in overruling a recommendation, the Secretary must
explicitly set forth the policy reasons for doing so. Hertzog, 167 Ct. Cl. at 386-87. Here,
a mere reference to “core values” provides no reasoning for this Court to review. In the
absence of further explanation, Mr. Woods’s vague and imprecise proffered justification
for overruling the BCNR’s reasoned recommendation “cannot be characterized as other
than capricious.” Betts v. United States, 145 Ct. Cl. 530, 535 (1959) (explaining that “[a]
decision contrary to all evidence, and for which, even on post audit, no reason can be given
except an irrelevant reason, cannot be characterized as other than capricious. As such it
deserves only to be ignored, and we ignore it.”).

       As the second ground for his decision, Mr. Woods quoted from a memorandum
prepared by Mr. Strand’s former commanding officer, Captain H. D. Starling II, claiming
that Mr. Strand had a “long-standing history of FAP [Family Advocacy Program]
involvement and domestic violence issues.” AR 003 (quoting AR 088, Administrative
Separation Memorandum, April 3, 2009). This statement is not supported by the record
before the Court and, other than a passing reference to Captain Starling’s statement, the
Board for Correction’s recommendation memorandum includes no discussion of such
history. Instead, the Board for Correction explicitly noted “the seriousness of [Plaintiff’s]
disciplinary infractions,” and explained that it did “not condone his misconduct.” AR 010.
However, the BCNR also recognized that Mr. Strand (1) satisfactorily served his country
for nineteen years and six months, (2) was granted partial relief by the Naval Discharge
Review Board “based, in part, on [his] overall record of service and good post service
conduct,” and (3) paid his debt to society, earning “early release from civil confinement
due to his good behavior.” AR 010. Given that the BCNR’s findings are based on a
thorough consideration of the evidence of record, this Court cannot uphold Mr. Woods’s
decision to overrule those findings on the basis of a military official’s statement, especially
where there is no evidentiary support for that statement in the record before the BCNR.

                                         Conclusion

     Ultimately, Mr. Woods’s decision to overrule the BCNR’s reasoned
recommendation is simply not justified in the two-paragraph memorandum that is before
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this Court. Considering the entire administrative record, the Court finds the Secretary’s
disapproval of the Board for Correction’s recommendation arbitrary, capricious, an abuse
of discretion, and not supported by substantial evidence. The Court directs the Navy to
carry out the BCNR’s recommendation “[t]hat Petitioner’s naval record be corrected to
show he was honorably retired with 20 years of service vice issued a general discharge
under honorable conditions by reason of misconduct (civil conviction) on 26 June 2009.”
The Court need not reach the separate issue of whether Mr. Strand was denied his right to
an administrative separation board.

      Accordingly, the Court GRANTS Plaintiff’s cross-motion for judgment on the
administrative record, and DENIES Defendant’s motion for judgment on the
administrative record. The Court directs the Navy to retire Mr. Strand with all appropriate
back pay, benefits, and allowances. The Court GRANTS IN PART Defendant’s
counterclaim and DENIES Plaintiff’s motion to dismiss the counterclaim. The
Government may deduct no more than $79,626.61, the amount the Navy claims it
erroneously paid to Mr. Strand, from the amount due to Mr. Strand pursuant to this opinion.
The Government explicitly is not entitled to any interest, fees, or penalties on its
counterclaim, as the payments in question were due solely to the Government’s error.
Defendant’s motion to supplement the administrative record and motion to remand are
DENIED as MOOT, as is Plaintiff’s second motion to strike. The Clerk shall enter
judgment in accordance with this opinion.

      IT IS SO ORDERED.

                                                       s/ Thomas C. Wheeler
                                                       THOMAS C. WHEELER
                                                       Judge




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