        In the United States Court of Federal Claims
                                       No. 10-263C
                                  (Filed May 23, 2014)


* * * * * * * * * * * * * * * * * *
                                  *
RICHARD R. WILLIAMS,              *             Board for Correction of Naval Records;
                                  *             separation from service; Board of
                 Plaintiff,       *             Inquiry; deference to interpretation of
                                  *             military regulations; judgment on
           v.                     *             administrative record, RCFC 52.1;
                                  *             inadequate explanation by correction
THE UNITED STATES,                *             board; remand, RCFC 52.2.
                                  *
                 Defendant.       *
                                  *
* * * * * * * * * * * * * * * * * *


        Charles W. Gittins, Middletown, Va., for the plaintiff.

       Joseph A. Pixley, Commercial Litigation Branch, Civil Division, Department
of Justice, with whom were Tony West, Assistant Attorney General, Jeanne E.
Davidson, Director, and Donald E. Kinner, Assistant Director, all of Washington,
D.C., for the defendant.


                     MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

       Plaintiff, Richard R. Williams, a former major in the United States Marine
Corps, sues the United States under the Tucker Act, 28 U.S.C. § 1491(a), and under
the Military Pay Act, 37 U.S.C. § 204(a). Mister Williams began active duty as a
Marine Corps officer on May 17, 1985. Admin. R. (AR) at 91. After being convicted
by a court-martial of violating the Uniform Code of Military Justice (UCMJ) for
committing adultery and engaging in conduct unbecoming an officer and a
gentleman, 1 and pursuant to the recommendation of a Board of Inquiry (BOI), he
was discharged from the Marine Corps on May 13, 2005. See AR at 96.


1   UCMJ Art. 133, 10 U.S.C. § 933; UCMJ Art. 134, 10 U.S.C. § 934.
       In his complaint, plaintiff alleges that the Board for Correction of Naval
Records (BCNR) acted arbitrarily, capriciously, and contrary to law and regulation
when it failed to correct his military record in light of several purported errors
which plaintiff claims resulted in his separation from the military only three days
before he would have become eligible for retirement benefits. See Compl. ¶¶ 33, 35;
see also AR at 96 ¶ 12(c). 2 Plaintiff also alleges that he was denied due process
based on the errors he claims were committed by the BOI and the BCNR. Compl.
¶ 37. These claims primarily stem from the BOI’s consideration of allegedly time-
barred conduct in recommending that he be separated, and the BCNR’s failure to
correct this error. See, e.g., Compl. ¶ 33.

       Defendant moved for judgment on the administrative record, arguing that
plaintiff could not demonstrate that the BCNR had acted arbitrarily or capriciously
in upholding the decision of the BOI. Def.’s Mot. J. Admin. R. (Def.’s Mot.) at 1. In
his cross-motion for judgment on the administrative record and response to the
government’s motion, plaintiff also claims that the BCNR failed to correct several
other errors, including the insufficient notice provided to plaintiff regarding the
evidence to be considered by the BOI and the BOI’s failure to include a statement
required by regulation that it did not consider certain evidence when recommending
how his military service should be characterized. See Pl.’s Opp’n Def.’s Mot. J.
Admin. R. & Cross-Mot. J. Admin. R. (Pl.’s Mot.) at 13–16. Finally, Mr. Williams
contends that the BCNR acted arbitrarily and capriciously when it failed to address
his argument that his separation would constitute an injustice in light of the
treatment of other officers convicted of similar offenses. See id. at 16–17.

       Plaintiff accordingly seeks three days of back pay and the retirement benefits
he would have received were he not discharged before his twenty-year retirement
benchmark. See Compl. at 7–8. For the reasons set forth below, the government’s
motion for judgment on the administrative record is DENIED, plaintiff’s cross-
motion for judgment on the administrative record is GRANTED-IN-PART, and the
case is REMANDED to the BCNR for further consideration.


2  The Complaint contains several inconsistencies in its citation of dates and time
periods. See, e.g., Compl. ¶ 1 (indicating plaintiff was discharged “with 19 years, 11
months and 28 days of active duty service”); id. ¶ 22 (referring to plaintiff’s
“discharge with 19 years, 11 months and 27 days of service”); id. ¶ 13 (“Plaintiff was
provided orders . . . directing that Plaintiff would be placed on the Retired List on 1
June 2005.”); id. ¶ 14 (“Plaintiff was delivered a DD 214 that indicated he would be
retired . . . effective 1 June 2006 . . . .”). Similarly, while the complaint states that
Mr. Williams was separated “two days” short of retirement eligibility, Compl. ¶ 33,
it also asks for “three days” of back pay, Compl. at 7. This opinion will refer to
dates and time periods as calculated from the documents included in the
administrative record.

                                          -2-
                                I. BACKGROUND

      Mister Williams joined the Marine Corps on May 17, 1985. AR at 91 ¶ 12(a).
The administrative record shows that Mr. Williams was disciplined on three
separate occasions during his tenure in the Marine Corps. First, on October 29,
1999, Mr. Williams received an adverse fitness report after receiving a non-judicial
punishment (NJP) for violating an order by misusing his government-issued
computer to view pornography. See AR at 20. In his adverse fitness report for this
incident, Mr. Williams’s reviewing officer stated, “I believe his mistake was an
anomaly of poor judgement [sic], and he will successfully serve the Corps with a
renewed sense of commitment.” AR at 290. It is this first incident which Mr.
Williams contends was impermissibly considered by the BOI in recommending his
separation from the Marine Corps, in violation of a limitation found in the Secretary
of Navy Instructions (SECNAVINST) 1920.6B --- the primary regulations governing
the administrative separation of Navy and Marine Corps officers. 3

       In 2002, Mr. Williams was cited a second time for misusing his government-
issued computer to view pornography, as well as for lying to the investigating officer
about the incident. See AR at 20. He did not receive an adverse fitness report or
any other disciplinary action for this offense. AR at 84 ¶ 4; see also AR at 254–63
(fitness reports from 2002, which do not indicate his 2002 offense).

        In June 2004, Mr. Williams engaged in an affair with a fellow officer who was
a subordinate in his unit and was also the wife of a fellow officer. See AR at 20, 83.
When confronted about this incident, Mr. Williams lied about this relationship in an
official statement. AR at 83. This incident resulted in Mr. Williams’s conviction at
a court-martial and ultimately prompted Mr. Williams’s referral for separation
processing. See AR at 83–84; Compl. ¶¶ 3–9.

A. The Court-Martial Proceeding

       On July 28, 2004, Mr. Williams was arraigned on four charges related to the
adultery incident: violation of UCMJ article 92, violation of UCMJ article 107,
violation of UCMJ article 133, and violation of UCMJ article 134. See AR at 57–59.
He was then referred to a general court-martial on these charges. AR at 58 ¶ 14.
The court-martial was held on November 12, 2004, February 1, 2005, and February
14, 2005. See AR at 62. Mister Williams pled guilty to two charges: engaging in
conduct unbecoming an officer in violation of UCMJ article 133 and committing
adultery in violation of UCMJ article 134. AR at 61–62. The court-martial accepted
Mr. Williams’s plea of guilty to one charge and two specifications of violating UCMJ
article 133 (making a false official statement about his adulterous relationship, and


3 All references to SECNAVINST 1920.6B in this opinion are to the December 13,
1999 version in place at the time of plaintiff’s BOI.

                                         -3-
“wrongfully and willfully develop[ing] an unprofessional relationship of
inappropriate familiarity . . . with a subordinate under his command”) and one
charge and one specification of violating UCMJ article 134 (adultery). AR at 61–62.

      The court-martial authority issued a trial report on February 14, 2005,
ordering Mr. Williams to forfeit $2000 and ordering that he receive a letter of
reprimand. See AR at 62, 213. The judgment was to become effective on February
28, 2005, fourteen days after the sentence was announced. AR at 213. The court-
martial conviction was sent up the chain of command after being approved by the
2d Marine Aircraft Wing (2d MAW) Commander. See AR at 211–12. 4

B. The Board of Inquiry Proceeding

       On February 18, 2005, four days after his court-martial concluded, the 2d
MAW Commander referred Mr. Williams to a BOI to show cause why he should be
retained in the Marine Corps. See AR at 210–12. 5 Mister Williams received a
notification letter, which was dated February 18, 2005, informing him that he had
been referred to the BOI because of his court-martial conviction. See AR at 65–66.
The letter first set forth the “reasons for separation to be considered by the Board,” 6

4 Mister Williams’s court-martial conviction became final on September 23, 2006,
after he had already been separated from the Marine Corps. See AR at 391.
Although he was convicted by court-martial on February 14, 2005, his conviction did
not become final until the Deputy Assistant Judge Advocate General for the Navy
conducted a formal review of his conviction pursuant to Article 69(A) of the UCMJ
and affirmed his conviction. See id.
5 On February 18, 2005, the II Marine Expeditionary Force (II MEF) Commander
was designated the “Show Cause Authority” under SECNAVINST 1920.6B ¶ 13(d).
See AR at 210 ¶ 1. Under this authority, he had the power to delegate the authority
to convene a BOI to a subordinate commander. See SECNAVINST 1920.6B, encl.
(1), ¶ 40. The II MEF Commander delegated this show cause authority to the 2d
MAW Commander. See AR at 210 ¶ 1; SECNAVINST 1920.6B ¶ 13(d). The II MEF
Commander provided Mr. Williams with notification of his Board of Inquiry on
February 18, 2005. See AR at 65–67.
6   The “specific reasons” stated in the notification letter were

        substandard performance of duty, misconduct, and moral or
        professional dereliction as evidenced by one of the following:

        a. Failure to demonstrate acceptable qualities of leadership required
        of an officer of your grade by entering into an adulterous relationship
        with a female Captain of Marines, the wife of another Captain of
        Marines.

                                           -4-
all of which were charges related to Mr. Williams’s court-martial conviction, and
then explained that the BOI “is not limited to considering these facts alone, and
may consider any additional facts concerning the reasons for separation.” AR at 65
(emphasis added). The notice did not provide further elaboration about what “any
additional facts” meant. The notification letter also went on to explain that the BOI
would first make a finding on the reasons for separation, using the preponderance
of the evidence standard, and “[i]f the Board finds that one or more of the reasons
for separation are supported by sufficient evidence to warrant separation, it may
recommend your separation and make an additional recommendation as to the
appropriate characterization of service.” Id.

       The 2d MAW Commander made his referral to the BOI with knowledge of
Mr. Williams’s “mandated retirement date of 1 June 2005,” see AR at 211, and
before Mr. Williams’s court-martial conviction had been affirmed on appellate
review, see AR at 391. Meanwhile, Mr. Williams’s twenty-year anniversary of
service was May 17, 2005, upon which he could retire with full benefits. See AR at
91 ¶ 12(a). He submitted an application for retirement, and on March 9, 2005, the
Marine Corps issued him a letter acknowledging that he would retire on June 1,
2005, with full benefits. See AR at 87 ¶¶ 3–4. This same letter ordered the
preparation of a DD-214 to formally recognize Mr. Williams’s retirement. AR at 87
¶ 6.

       The BOI convened on March 22, 2005. AR at 19. According to the BOI
report, the BOI considered two “specific reasons for separation” in determining
whether Mr. Williams should be retained in the Marine Corps: “(a) Failure to
demonstrate acceptable qualities of leadership required of an officer of his grade;
and (b) Commission of a military offense which could be punished by confinement of
6 months or more and any other misconduct which would require specific intent for
conviction.” AR at 19 ¶ 3.

      The BOI report recommended that the Secretary of the Navy discharge Mr.
Williams and further recommended that he characterize Mr. Williams’s service as
general (under honorable conditions), reduced from an honorable characterization.
See AR at 20. In reaching its conclusion, the BOI evaluated three incidents: the
1999 and 2002 pornography incidents and the 2004 adultery incident. See AR at 20
¶ 4. Specifically, the BOI report stated:


      b. Commission of a military offense which could be punished by
      confinement of 6 months or more and any other misconduct which
      would require specific intent for conviction, specifically conduct
      unbecoming an officer and adultery as evidenced by your conviction at
      general court-martial on 14 February 2005.

AR at 65.

                                        -5-
      On the issue of retention, the board also considered two prior incidents
      of misconduct by the respondent: In 1999 the respondent, as a Major,
      received NJP and an adverse fitness report for an order violation,
      misuse of his government computer: viewing pornography. In 2002 the
      respondent again committed the same order violation: misuse of his
      government computer by viewing pornography.

Id. The report continued, “the respondent admitted all acts of misconduct,
including the two prior incidents of misconduct considered on the issue of retention.
He admitted that his actions were wrong, but he requested to be retained until
retirement.” AR at 20 ¶ 5.

       The Assistant Secretary of the Navy affirmed the BOI’s recommendation
after it passed through the chain of command. See AR at 83–85. The Commanding
General of the 2d MAW, first to endorse the BOI’s recommendations, approved the
BOI findings but added a comment of his own. See AR at 79. He indicated that he
agreed with the BOI’s recommendation for separation for adultery charges and
related offenses, noting also that this was Mr. Williams’s third offense and that Mr.
Williams had not been rehabilitated after his previous misconduct. AR at 79 ¶¶ 2–
3. The commander made his recommendation after reviewing the BOI’s findings
and the Record of the BOI, see AR at 79–80, which contained the BOI transcript
highlighting Mr. Williams’s 1999 and 2002 acts, see AR at 19 ¶ 2 (noting that the
Record “is a verbatim transcript of the Board’s proceedings”). Specifically, the 2d
MAW Commander wrote:

      2. In addition to the three offenses for which the respondent was
      convicted of [sic] at a General Court-martial, the BOI record
      documents that this was Major Williams’ third incident of misconduct
      as a field grade officer. Major Williams received Non-Judicial
      Punishment [in] 1999 from the Commanding General of II Marine
      Expeditionary Force in conjunction with misuse of his government
      computer by viewing pornography. A second incident of similar
      misconduct was documented by testimony at the BOI. The record
      establishes that in 2002 Major Williams was again identified as having
      used his Government computer for the purpose of viewing
      pornography. Sadly, after this second incident he also chose to lie
      about the matter when questioned by a senior officer. The evidence
      establishes that Major Williams ultimately admitted his misconduct
      after being confronted with the incriminating physical evidence. (See
      Record of BOI, including pgs 17–26)

      3. Regrettably, Major Williams was not rehabilitated by the results of
      his first two brushes with authority and misconduct. Most recently,
      after having served over nineteen years as a commissioned officer, he
      consciously chose to commit adultery and fraternization with a junior

                                         -6-
        officer. This junior officer also happened to be the wife of another
        subordinate officer in Major Williams’ unit. It is also worthy of note
        that Major Williams was the female junior officer’s reporting senior.
        Finally, after the aggrieved husband brought the allegation of
        misconduct to light, Major Williams again lacked the moral courage
        and integrity expected of a Marine Corps officer. He again chose to lie
        about his misconduct during the investigative process. (See Record of
        BOI, including Government Exhibits 1–3.)

        3. [sic] After carefully considering all of the facts and circumstances
        surrounding this case, I fully concur with the Board’s
        recommendations for separation . . . .

AR at 79–80 (emphasis added). The Record of the BOI, while mentioned in the
administrative record before the Court, is not included in the administrative record.
See, e.g., AR at 72 (mentioning record as enclosure (3)). 7

       The second endorsement was made by the Commander of the II MEF. See
AR at 81. Although this commander did not directly identify Mr. Williams’s prior
acts, he stated that he concurred with the 2d MAW Commander’s analysis as well
as the BOI findings and recommendations, and also noted that “[t]his officer has a
serious character flaw.” AR at 81 ¶¶ 2–3.

       The third endorsement, by the Commander of the Marine Forces Atlantic,
approved the BOI’s recommendation for separation without commenting on Mr.
Williams’s prior acts. See AR at 82. This commander added that, “[a]lthough
clearly a capable logistician, Major Williams has proven that he lacks the integrity
and leadership qualities to be a Marine officer.” AR at 82.

       The fourth endorsement was made by the Commandant of the Marine Corps.
See AR at 83. The Commandant began by detailing the chronology of events in
Mister Williams’s case, beginning with the 2004 adultery incident, and stated that
he concurred with the chain of command and recommended that Mr. Williams be
separated. See AR at 83–84. He further emphasized that “Major Williams’ conduct
is not a one-time lapse in judgment.” AR at 84 ¶ 4. To support his claim, the
Commandant referenced both the 1999 and 2002 incidents, stating “Major Williams
received non-judicial punishment in 1999 for viewing pornography on his
government computer and the Board transcript revealed a second incident of
viewing pornography and lying to the investigator in 2002, which did not result in
any disciplinary action.” Id. The Commandant concluded that although Mr.
Williams would soon be “retirement eligible,” he should be separated from the



7   See infra, note 11.

                                           -7-
Marine Corps before retirement because “he continues to display a pattern of
misconduct and character unsuitable for further service.” Id.

       The final endorsement was made by the Assistant Secretary of the Navy, who
on May 2, 2005, approved the recommendations of the chain of command with no
recorded comment. See AR at 85. Pursuant to the BOI’s recommendation and the
approval by the Secretary of the Navy, the Marine Corps issued a Form DD-215 on
May 5, 2005, two months after Mr. Williams’s retirement letter was issued,
reducing his characterization from honorable to general (under honorable
conditions) and changing Mr. Williams’s discharge date from June 1, 2005, to May
13, 2005. See AR at 39. Because plaintiff entered the military on May 17, 1985,
this modification left him with nineteen years, eleven months and twenty-seven
days active duty service, and rendered him ineligible for retirement benefits, see AR
at 91 ¶ 12(a), 96 ¶ 12(c).

C. Review by the Board for Correction of Naval Records

      On September 25, 2008, plaintiff submitted an application to the BCNR
challenging the BOI’s recommendation that he be separated from the Marine Corps,
in which he alleged that the BOI committed “both legal error and injustice” in
discharging him a mere three days before his twenty year retirement. Compl. ¶ 22.
He petitioned the BCNR to correct his record and allow him to “be retired by reason
of completion of 20 years of active duty.” AR at 44.

       On May 29, 2009, the Military Law Office of the Staff of the Judge Advocate
to the Commandant of the Marine Corps (“SJACMC”) issued an advisory opinion for
the BCNR to consider in making its determination. See AR at 5–9. The SJACMC
advisory opinion recommended that the BCNR consider whether the BOI committed
a substantial procedural error by considering Mr. Williams’s 1999 incident. AR at 7
¶ 4(c). On this issue, the advisory opinion argues that the “1999 incident, being
more than five years prior to the initiation of processing for separation was clearly
time-barred by [SECNAVINST 1920.6B] and should not have been considered by
the BOI on the issue of separation or retention.” AR at 8 ¶ 4(d). 8

       The advisory opinion finds support in a district court case, Seifert v. Winter,
555 F. Supp. 2d 3 (D.D.C. 2003), which interpreted the time limit in SECNAVINST
1920.6B to at least require a separation board to clearly establish in its record that
it did not rely on time-barred conduct as the primary reason for making a
recommendation to separate. See AR at 7 ¶ 4(c); Seifert, 555 F. Supp. 2d at 14–15.


8 The instruction referred to by the advisory opinion states: “Performance or
conduct identified more than 5 years prior to the initiation of processing for
separation under paragraph 2 of this enclosure shall not form the basis for
processing under this enclosure.” SECNAVINST 1920.6B, encl. (4), ¶ 10.e (1999).

                                         -8-
The advisory opinion stated that “there is no way to determine from the record
whether any one incident by itself or any combination of the three incidents would
have caused the BOI to come to the same conclusion.” AR at 8 ¶ 4(e). The opinion
highlights the fact that the BOI Recorder began his closing arguments before the
BOI by stating: “[T]his whole situation is about a severe pattern of integrity
problems. The first incident in ’99; NJP for misuse of government computer for
porn.” Id. The advisory opinion also notes that the BOI’s purported error was
compounded by the endorsements, which specifically referenced the 1999 incident.
AR at 8 ¶ 4(f). Based on these findings, the SJACMC opinion advised the BCNR to
approve Mr. Williams’s application for correction, restore him to the rank of Major,
retire him with a general under honorable conditions characterization of service,
and issue him back pay. AR at 8 ¶ 5.

      Despite the SJACMC’s advisory opinion, on March 4, 2010, the BCNR denied
Mr. Williams’s request for correction and affirmed the BOI’s and Secretary of the
Navy’s decision. AR at 1–4. Plaintiff argues that the BCNR did not seriously
consider the legal and regulatory deficiencies identified by the SJACMC and instead
cursorily rejected the advisory opinion when denying plaintiff’s application. Compl.
¶ 31.

D. Plaintiff’s Allegations Before the Court

       Mister Williams’s complaint arises from the BCNR’s denial of his application
to correct his Forms DD-214 and DD-215. Plaintiff alleges that the BOI denied him
due process because it considered time-barred conduct in deciding to recommend
that he be separated from the Marines “two days short of his already approved 20
year retirement.” Compl. ¶ 37. 9 He also complains that the BCNR acted
arbitrarily, capriciously, and contrary to law and regulation in denying his
application for correction. Compl. ¶¶ 33, 35. In response to Mr. Williams’s claim
that the BOI considered time-barred conduct, the government contends that the
BOI process is bifurcated into distinct phases, and that the time limitation in
question does not apply during the phase in which the BOI decides whether to
recommend that an officer be separated or retained. See Def.’s Mot. at 10–12; Def.’s
Resp. Pl.’s Cross-Mot. J. Admin. R. & Reply Pl.’s Opp’n Def.’s Mot. J. Admin. R.
(Def.’s Reply) at 2, 7–8. The government contends that the BOI only considered the
allegedly time-barred conduct during the phase in which the restriction does not
apply. See id.

       In addition, Mr. Williams claims that his due process rights were violated
because he did not receive adequate advance notification that the BOI could
consider facts beyond those related to the 2004 adultery incident. See Compl. ¶ 37;
Pl.’s Mot. at 14–16. In response, the government argues that the BOI, on the issue


9   See supra, note 2.

                                        -9-
of retention, may consider facts other than the conduct that formed the basis for
convening the BOI, and that the notification letter sent to Mr. Williams informed
him that the BOI was “not limited to considering these facts alone [i.e., those
related to the 2004 incident] and may consider any additional facts concerning the
reasons for separation.” See Def.’s Mot. at 4–5. Mister Williams contends that the
plain language of this statement indicated that additional facts that might be
considered would be related to the specific reasons for processing listed in the
notification letter. See Pl.’s Mot. at 15–16.

       Finally, plaintiff argues that the BCNR acted arbitrarily and capriciously by
failing to address his claim that his separation was an injustice in light of his years
of exemplary service and because he received a more severe punishment than other
officers who committed similar offenses shortly before they were eligible to retire,
noting that the SJACMC advisory opinion stated that his injustice claim “has some
merit.” Pl.’s Mot. at 16–17. The government contends that the BCNR was not
bound by the advisory opinion and that it did adequately respond to this argument,
rejecting it as unpersuasive. Def.’s Reply at 12–13.

E. Relief Sought

      Plaintiff’s request for relief has four elements. Compl. at 7–8. Plaintiff first
seeks monetary damages for the following: back pay for three days of active duty in
the pay-grade of Major (O-4) and retirement back pay for the same grade “from May
16, 2005, to the date of judgment.” Id. at 7. Second, plaintiff requests that
defendant be ordered to correct his DD-214 to indicate that plaintiff retired with
twenty years of service in the Marine Corps. Id. at 8. Third, plaintiff seeks
attorney’s fees. Id. Finally, plaintiff seeks any additional relief this Court deems
“proper and just.” Id.

                                  II. DISCUSSION

A. Legal Standards

      1. Judgment on the Administrative Record

       A motion for judgment on the administrative record under Rule 52.1 of the
Rules of the Court of Federal Claims (RCFC) differs from a motion for summary
judgment under RCFC 56, as the existence of genuine issues of material fact does
not preclude judgment on the administrative record. See Bannum, Inc. v. United
States, 404 F.3d 1346, 1355–56 (Fed. Cir. 2005); Fort Carson Support Servs. v.
United States, 71 Fed. Cl. 571, 585 (2006). Rather, a motion for judgment on the
administrative record examines whether the administrative body, given all the
disputed and undisputed facts appearing in the record, acted in a manner that
complied with the legal standards governing the decision under review. See Fort
Carson, 71 Fed. Cl. at 585; Greene v. United States, 65 Fed. Cl. 375, 383 (2005);
Arch Chems., Inc. v. United States, 64 Fed. Cl. 380, 388 (2005). Factual findings are
                                         - 10 -
based on the evidence in the record, “as if [the Court] were conducting a trial on the
record.” Bannum, 404 F.3d at 1357; see also Carahsoft Tech. Corp. v. United States,
86 Fed. Cl. 325, 337 (2009); Gulf Grp. Inc. v. United States, 61 Fed. Cl. 338, 350
(2004).

      2. Review of Military Decisions

       Claims for back pay brought by former full-time active duty service members
in which improper separation has been alleged are within this Court’s Tucker Act
jurisdiction. See Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997);
Adkins v. United States, 68 F.3d 1317, 1321 (Fed. Cir. 1995); Greene, 65 Fed. Cl. at
379–80 (“Full-time active duty service members, by virtue of their status, are
entitled to the pay of the rank to which they are assigned until they are properly
separated from the service. Thus, if a full time active duty service member is
wrongfully denied the benefits of that status, he has a cause of action under the
Tucker Act, as section 204(a) is money-mandating.” (citation omitted)).

       The Court of Appeals for the Federal Circuit has explained that the
“responsibility for determining who is fit or unfit to serve in the armed services is
not a judicial province.” Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir.
1983); see also Chappell v. Wallace, 462 U.S. 296, 301–03 (1983) (“[J]udges are not
given the task of running the Army.” (quoting Orloff v. Willoughby, 345 U.S. 83, 93
(1953))); Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002) (noting that
the substance of military decisions is often “beyond the institutional competence of
courts to review”). But “even when granted unfettered discretion by Congress the
military must abide by its own procedural regulations should it choose to
promulgate them.” Lindsay, 295 F.3d at 1257. This limitation follows because “by
their nature the procedures [implemented by the military] limit the military’s
discretion.” Murphy v. United States, 993 F.2d 871, 873 (Fed. Cir. 1993). Thus,
while the Court of Federal Claims will not review “those specific conclusions of
military review boards that speak to the question of whether an officer deserved to
be promoted or retained in service,” Lindsay, 295 F.3d at 1257, it “may
appropriately decide whether the military followed [its] procedures,” Murphy, 993
F.2d at 873. Accordingly, where the military has established procedures for the
separation of its members, “a claim for relief based on an alleged failure to follow
those procedures states a justiciable controversy.” Cameron v. United States, 106
Fed. Cl. 551, 560 (2012), rev’d on other grounds, 550 Fed. App’x 867 (2013); see
Lindsay, 295 F.3d at 1257; Murphy, 993 F.2d at 873.

       A court is limited to overturning the decisions of military correction boards
when those decisions are arbitrary, capricious, unsupported by substantial
evidence, or contrary to law. See, e.g., Barnick v. United States, 591 F.3d 1372, 1377
(Fed. Cir. 2010); Haselrig v. United States, 333 F.3d 1354, 1355 (Fed. Cir. 2003);
Sobczak v. United States, 93 Fed. Cl. 625, 632 (Fed. Cl. 2010); Greene, 65 Fed. Cl. at
382. Generally, “military administrators are presumed to act lawfully and in good

                                        - 11 -
faith like other public officers, and the military is entitled to substantial deference
in the governance of its affairs.” Dodson v. United States, 988 F.2d 1199, 1204 (Fed.
Cir. 1993); see also Richey v. United States, 322 F.3d 1317, 1326 (Fed. Cir. 2003)
(“[T]he presumption of regularity . . . attaches to all administrative decisions.”);
Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir.) (noting that the military should
be afforded “great deference” in determining “the continued suitability of . . . a
commissioned officer”), cert. denied, 479 U.S. 853 (1986). Therefore, a member of
the military who has sought relief from a correction board is bound by its decision
unless he can “demonstrat[e] by cogent and clearly convincing evidence that the
correction board acted arbitrarily, capriciously, contrary to law, or that its
determination was unsupported by substantial evidence.” Arens v. United States,
969 F.2d 1034, 1037 (Fed. Cir. 1992).

       When reviewing decisions under the arbitrary and capricious standard, “the
scope of review is a narrow one.” Bowman Transp., Inc. v. Ark.-Best Freight Sys.,
Inc., 419 U.S. 281, 285 (1974). “[T]he standard of review does not require a
reweighing of the evidence, but a determination whether the conclusion being
reviewed is supported by substantial evidence.” Heisig, 719 F.2d at 1157. Thus,
this court should “consider whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment.” Bowman,
419 U.S. at 285 (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,
416 (1971)). A court “may not supply a reasoned basis for the agency’s action that
the agency itself has not given,” id. at 285–86 (citing SEC v. Chenery Corp., 332
U.S. 194, 196 (1947)), but it may “uphold a decision of less than ideal clarity if the
agency’s path may reasonably be discerned,” id. at 286 (citing Colo. Interstate Gas
Co. v. FPC, 324 U.S. 581, 595 (1945)).

        When the interpretation of military regulations and instructions are at issue,
the military’s own interpretation must typically be given controlling weight and
deference, see Wronke, 787 F.2d at 1576, especially if the regulation or instruction
has been consistently interpreted over a long period of time, see United States v.
Clark, 454 U.S. 555, 565 (1982); Willingham v. United States, 35 Fed. Cl. 633, 646,
aff’d, 104 F.3d 374 (Fed. Cir. 1996). Charges of procedural irregularity must fail
when the applicable regulations are interpreted by the armed services in a
reasonable manner, even though the plaintiff may present another reasonable
interpretation of the regulation. Wronke, 787 F.2d at 1573; Willingham, 35 Fed. Cl.
at 646. Thus, where a military regulation is susceptible to equally reasonable
constructions, a court may not substitute an alternative interpretation for that
chosen by the military service. Id. At the same time—as is the case with deference
to agency decisions generally—a court may not accept counsel’s post hoc
rationalizations for agency action, but must find support for the agency’s action in
the decision of the agency itself. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 50 (1983); see also Christopher v. SmithKline Beecham Corp.,
132 S. Ct. 2156, 2166 (2012) (“[D]eference is likewise unwarranted . . . when it
appears that the interpretation is nothing more than a convenient litigating

                                         - 12 -
position, or a post hoc rationalizatio[n] advanced by an agency seeking to defend
past agency action against attack.” (citations and internal quotation marks
omitted)); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988) (“We have
never applied the principle of [deference] to agency litigating positions that are
wholly unsupported by regulations, rulings, or administrative practice.”).

       Although the Court of Federal Claims is confined to reviewing the
administrative record, see Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006),
when evaluating the totality of the evidence, a court must take into consideration
the entire record, see Lopez-Velazquez v. United States, 85 Fed. Cl. 114, 134 (2008)
(citing Dixon v. Dep’t of Transp., 8 F.3d 798, 804 (1993)).

B. Analysis

      1. The Alleged Shortcomings of the BOI and BCNR Decisions

      The first question before the Court is whether the BCNR acted arbitrarily
and capriciously in failing to correct Mr. Williams’s record in light of his claim that
the BOI considered matters that it was not permitted to consider under the
military’s own regulations. See Compl. ¶ 33. This question cannot be answered
absent an understanding of the Navy’s interpretation of the regulations governing
administrative separation.

        At the time of Mr. Williams’s discharge, the procedure for separating a
serviceman from the Marine Corps was governed principally by SECNAVINST
1920.6B, and secondarily by the more particularized Marine Corps Separation
Manual (MARCORSEPMAN). Underlying Mr. Williams’s argument is his
interpretation of one of the “limitations” contained in SECNAVINST 1920.6B,
which states: “Performance or conduct identified more than 5 years prior to the
initiation of processing for separation under paragraph 2 of this enclosure shall not
form the basis for processing under this enclosure.” SECNAVINST 1920.6B, encl.
(4), ¶ 10.e (emphasis added). Mister Williams relies on this limitation to argue that
the BOI was prohibited from considering the 1999 incident for which he received an
adverse fitness report when considering the issue of his separation or retention
because that incident took place more than five years prior to February 18, 2005,
the date on which his processing for separation was initiated. See Compl. ¶ 26; AR
at 65 (Notification of Board of Inquiry dated February 18, 2005).

      The SJACMC advisory opinion provided to the BCNR argued that the BOI
committed a substantial procedural error by considering Mr. Williams’s 1999
incident, maintaining the position that the 1999 incident should not have been
considered at all. AR at 7–8 ¶ 4(c)–(d). 10 The advisory opinion explained that the


10 The plaintiff’s application to the BCNR raised the more general issue of whether
the BOI improperly considered prior conduct, basing his challenge on insufficient
                                         - 13 -
1999 incident was “clearly time-barred” by regulation, AR at 8 ¶ 4(d), and discussed
the fact that the BOI Recorder, the BOI Report, and some of the BOI endorsements
referenced Mr. Williams’s 1999 incident, see AR at 7–8. Citing Seifert v. Winter as
authority, AR at 7 ¶ 4(c), the SJACMC concluded that “there is no way to determine
from the record whether any one incident by itself or any combination of the three
incidents would have caused the BOI to come to the same conclusion,” AR at 7
¶ 4(e).

      The BCNR’s response to Mr. Williams’s challenge to the BOI decision based
on the five-year limitation boils down to two rather cryptic sentences:

      You were not processed for separation on the basis of performance or
      conduct identified or reported to the Show Cause Authority more than
      five years prior to the initiation of separation processing. The record of
      your nonjudicial punishment was not the basis of the separation
      processing, and the consideration of that record by the BOI was proper.

AR at 3 (emphasis added). Counsel for the government attempts to rationalize
these seemingly self-contradictory sentences by contending that processing for
separation contains several distinct phases. In the first phase, the military
considers whether to initiate processing for separation, and conduct identified more
than five years prior to the initiation of processing cannot form the “basis” of that
decision. Under the government’s theory, the “basis” is simply the reason or
reasons that processing is initiated --- reasons that must be substantiated by the
BOI before separation can be recommended. See Def.’s Mot. at 10–12; Def.’s Reply
at 2, 7–8; Hr’g (Sept. 22, 2011). The second phase is the BOI’s consideration of
whether to recommend separation or retention of the service member. See Def.’s
Mot. at 10–12; Def.’s Reply at 2, 7–8; Hr’g (Sept. 22, 2011). The government
contends that prior conduct, including conduct more than five years old, may
permissibly be considered during this phase so long as such conduct did not form
the “basis” for processing --- that is, it was not the reason for which processing was
initiated. See Def.’s Reply at 8 (citing MARCORSEPMAN Ch. 1004 ¶ 4(a)(2)).
Relying on this theory, the government argues that the “basis” for processing in Mr.
Williams’s case was only his court-martial conviction for adultery and related
offenses --- the offenses listed in the notification of processing letter --- not the 1999
and 2002 pornography incidents. See, e.g., Def.’s Mot. at 12; Hr’g (Sept. 22, 2011).




notice. See AR at 48–50. The Court believes that the issue of time-barred conduct,
though raised only by the advisory opinion, was incorporated into the petition for
correction as subsumed within the plaintiff’s broader allegation that the BCNR
erred in considering evidence of prior conduct. This issue was properly before the
BCNR and should have been fully addressed in its written statement.

                                          - 14 -
       In sum, there is no dispute that the 1999 incident was considered by the BOI
on the issue of whether Mr. Williams should be separated from the Marine Corps.
See, e.g., Def.’s Mot. at 12 (“On the issue of retention, the BOI ‘also considered’ Mr.
Williams’s two prior incidents of misconduct in 1999 and 2002 . . . .”); Compl. ¶ 9,
25–26. The question, however, is whether the consideration of that incident on the
issue of retention violates the time restriction in SECNAVINST 1920.6B, enclosure
(4), paragraph 10.e, and whether the BCNR acted arbitrarily and capriciously in
affirming Mr. Williams’s discharge despite the BOI’s consideration of the 1999
incident on the issue of retention.

       Mister Williams also claims that his due process rights were violated because
he did not receive adequate advance notification that the BOI could consider facts
beyond those presented in his court-martial hearing. See Compl. ¶ 37; Pl.’s Mot. at
14–16. In response, the government argues that the BOI may consider facts other
than the conduct that forms the basis for which the BOI was convened on the issue
of retention, and that Mr. Williams was given notice that the BOI was “not limited
to considering these facts alone [i.e., those related to his court-martial conviction]
and may consider any additional facts concerning the reasons for separation” in his
notification letter. See Def.’s Mot. at 4–5. Mister Williams contends that the plain
language of this statement indicates that additional facts that may be considered
will be related to the reasons for separation listed in the notification letter. See Pl.’s
Mot. at 15–16.

       Finally, plaintiff argues that the BCNR acted arbitrarily and capriciously by
failing to address his claim that his separation was an injustice because the BOI
process seemed to be unduly rushed --- as if there was a concerted effort to ensure
his separation before retirement --- and because he received a more severe
punishment than other officers who committed similar offenses shortly before they
were eligible to retire, particularly in light of the fact that the SJACMC advisory
opinion noted that his injustice claim “has some merit.” Pl.’s Mot. at 16–17. The
government again contends that the BCNR was not bound by the advisory opinion
and that it did adequately respond to this argument, rejecting it as unpersuasive.
Def.’s Reply at 12–13.

      2. The Sufficiency of the BCNR Decision

       When a Marine Corps officer petitions the BCNR to correct an alleged error
in his military records, the BCNR must review “all pertinent evidence of record.” 32
C.F.R. § 723.3(e)(1). 11 In denying an application for correction without a hearing,

11Normally this would include the transcript of the BOI hearing --- known as the
Record of the BOI --- which the BOI is required to produce. SECNAVINST 1920.6B,
encl. (8), ¶ 2.l(1); see also AR at 19 ¶ 2 (The Record “is a verbatim transcript of the
Board’s proceedings.”). The report of the BCNR refers to the transcript, but it was
not included in the administrative record submitted to the Court. The Court notes
                                          - 15 -
see AR at 1 (“[T]he Board for Correction of Naval Records, sitting in executive
session, considered your application . . . .”), the BCNR is required to provide a
written statement “of the grounds for denial” that “include[s] the reasons for the
determination that relief should not be granted, including the applicant’s claims of
constitutional, statutory and/or regulatory violations that were rejected, together
with all the essential facts upon which the denial is based.” See 32 C.F.R.
§ 723.3(e)(3)–(4). Further, although the BCNR is not bound to accept the views
contained in the SJACMC advisory opinion, it is legally bound to consider the
opinion and provide an explanation for any disagreement. 32 C.F.R. § 723.3(e). The
BCNR failed to abide by this requirement when it considered Mr. Williams’s
petition. The BCNR merely offered perfunctory and unsupported conclusions in
response to the plaintiff’s claims.

       For example, despite the SJACMC advisory opinion flagging SECNAVINST
1920.6B as authoritative and offering an interpretation which barred consideration
of the 1999 incident, the BCNR did no more than repeat the basic facts and
cursorily reject Mr. Williams’s claims and the citations to law in the advisory
opinion. Its analysis of this issue is limited to the following:

      The [BCNR] concluded that you were processed for separation solely on
      the basis of your commission of the offenses of which you were
      convicted by general court-martial. It was clear to the [BCNR] that
      you would not have been considered for separation but for that
      conviction. You were not processed for separation on the basis of
      performance or conduct identified or reported to the Show Cause
      Authority more than five years prior to the initiation of separation
      processing. The record of your nonjudicial punishment was not the
      basis of the separation processing, and the consideration of that record
      by the BOI was proper. Had there been evidence of preservice
      misconduct, the BOI would have been permitted to consider that
      evidence for the purpose of deciding whether to recommend separation
      or retention, although not on the issue of characterization of service.
      The [BCNR] concluded that the particularly egregious nature of the
      misconduct of which you were convicted by general court-martial was
      more than sufficient by itself to warrant your discharge under

that the parties agree that the BCNR need not consult the transcript from the BOI.
See JSR of Feb. 10, 2012. While it is surprising that the Board would not see a need
to consult the BOI record, nevertheless, the parties’ jointly stipulated that
consideration of the record was not necessary. Id. (“[I]nclusion of the verbatim
transcript in the record before the BCNR was not required and that the omission of
these records from the board’s review was not substantively or procedurally
improper.”) The Court will therefore disregard the Board’s failure to consider the
record as part of its review.

                                       - 16 -
      honorable conditions, with resulting loss of potential retirement
      benefits.

AR at 3.

       The BCNR offers the conclusory statement, “[y]ou were not processed for
separation on the basis of performance or conduct identified . . . more than five
years prior to the initiation of separation processing,” but fails to account for the
BOI’s evaluation of all three incidents in recommending discharge, see AR at 73; the
endorsements which referred to all three incidents, see AR at 79–80, 83–85; and the
Assistant Secretary of the Navy’s apparent reliance on those endorsements in
approving his discharge, see AR at 85 (approving final endorsement from
Commandant of the Marine Corps). 12 Counsel for defendant explained this excerpt
by advancing an interpretation of “basis for processing” that relies on a multi-phase
understanding of “processing” that was first put forward by the government in the
course of this litigation. It is far from clear in this excerpt that the BCNR draws a
distinction between the decision to consider initiating discharge and the actual
processing of the discharge. If it did in fact draw such a distinction, the BCNR does
not articulate its interpretation; appeals to no evidence of a long-standing practice
or external authority which justifies the characterization of the initiation of
separation as a “phase” distinct from consideration of the separation itself; and fails
to defend its interpretation against the alternative understanding put forward by
the SJACMC advisory opinion.

       The Court is left on the one side with a decision from the BCNR that depends
on a regulatory interpretation supported by the government’s litigation position in
this case. On the other side there is a contrary interpretation of the applicable
regulations from the plaintiff supported by the SJACMC advisory opinion and a
district court opinion. The Court finds that there are at least three possible
interpretations of the phrase “conduct identified more than 5 years prior to the
initiation of processing for separation . . . shall not form the basis for processing,”
found in SECNAVINST 1920.6B: conduct more than five years old is barred from
use (1) as the basis for initiating a board of inquiry; (2) in finding that the officer is
eligible for separation due to the seriousness of the alleged misconduct (as opposed
to deciding whether separation is appropriate); or (3) in any phase of the “processing
for separation.”

        It bears repeating that a court must defer to the military’s own interpretation
of its regulations, especially if the regulation has been consistently interpreted over


12 Nor does the BCNR explain how these references to the 1999 incident can be
squared with its claim that the “particularly egregious nature of the misconduct”
which resulted in Mr. Williams’s court-martial was alone sufficient to justify his
discharge.

                                          - 17 -
a long period of time. See Clark, 454 U.S. at 565; Wronke, 787 F.2d at 1576;
Willingham, 35 Fed. Cl. at 646. Further, a court “may appropriately decide whether
the military followed [its] procedures” as promulgated through regulation, Murphy,
993 F.2d at 873, but it will not review “those specific conclusions of military review
boards that speak to the question of whether an officer deserved to be . . . retained
in service.” Lindsay, 295 F.3d at 1257. The Court will not impose its interpretation
of the regulation, but is thereby left in the awkward position of trying to reconstruct
the BCNR’s unspoken interpretation of SECNAVINST 1920.6B so that the Court
may evaluate whether either the BOI or BCNR acted consistently with that
interpretation. At the same time, the Court cannot second-guess the BOI’s or the
BCNR’s determination on the merits of Mr. Williams’s application, nor will it
attempt to divine what evidence led the BCNR to its decision. SEC v. Chenery, 332
U.S. 194, 197 (1947) (“It will not do for a court to be compelled to guess at the theory
underlying the agency's action; nor can a court be expected to chisel that which
must be precise from what the agency has left vague and indecisive. In other words,
[w]e must know what a decision means before the duty becomes ours to say whether
it is right or wrong.” (internal quotation marks omitted)).

       The BCNR’s treatment of the plaintiff’s claims of insufficient notice and
injustice are equally superficial. Addressing the issue of notice, the BCNR states
without explanation:

      [Y]ou were notified . . . that the BOI was not limited to considering the
      circumstances of your general court-martial conviction, and that it
      could consider other matters concerning the basis for separation. You
      were on notice that the BOI and reviewing authorities could consider
      your entire record, to include evidence of prior acts of misconduct.

AR at 3. 13 With regard to the issue of injustice, the Board simply declared: “The
Board carefully considered both the positive and negative aspects of your service. It
was not persuaded that the positive aspects outweigh negative, or that it would be
in the interest of justice to grant your request for correction . . . .” AR at 4.

       In light of the above, the most appropriate course of action is to remand to
the BCNR to further consider plaintiff’s application and render a decision that
complies with the requirements of 37 C.F.R. §§ 723.3(e)(4). See Istivan v. United
States, 231 Ct. Cl. 671, 678 (1982) (finding a lack of substantial evidence in support


13 The question of whether Mr. Williams received sufficient notice is itself
subsumed in large part by the prior matter of the Navy’s interpretation of
SECNAVINST 1920.6B. The language of the notification takes on an entirely
different meaning if the regulations are widely understood to allow the
consideration of conduct over five-years old in making the narrow separation/
retention decision.

                                         - 18 -
of a correction board decision but also declining to hold that plaintiff was entitled to
judgment based on the record before it).

                                 III. CONCLUSION

       For the reasons stated herein, defendant’s motion for judgment on the
administrative record is DENIED; plaintiff’s cross-motion is GRANTED-IN-PART
insofar as it challenges the adequacy of the BCNR’s explanation, and is DENIED in
all other respects. This case is REMANDED to the BCNR for further
consideration.

      Pursuant to RCFC 52.2(b), the Court provides the following directions to the
parties on remand.

      (1) The remand period shall terminate on Friday, November 21,
      2014, and proceedings in this case are STAYED until that date. If the
      BCNR has not issued a decision on or by November 19, 2014, the
      parties shall follow the procedures set forth in RCFC 52.2(d).

      (2) The BCNR’s inquiry shall

             (a) determine the scope of the limitation in SECNAVINST
             1920.6B, enclosure (4), paragraph 10.e --- specifically the
             meaning of the phrase “basis for processing” --- and explain the
             grounds for this interpretation;

             (b) determine whether the BOI notification given to the plaintiff
             afforded him sufficient notice of the evidence the BOI would
             consider in conducting its inquiry; and

             (c) determine whether the plaintiff’s separation three days short
             of retirement eligibility was so inconsistent with the usual
             practice in similar cases as to constitute injustice.

      (3) The BCNR shall ensure that its written decision articulates the
      reasons for its judgment with sufficient detail that it is clear that each
      specific claim raised by Mr. Williams was considered.

      (4) Pursuant to RCFC 52.2(b)(1)(D), defendant shall file a status
      report on or by Tuesday, July 22, 2014, and a second one on or by
      Monday, September 22, 2014, indicating the status of the
      proceedings before the BCNR.

      (5) When proceedings before the BCNR have concluded, the BCNR
      shall forward four copies of its decision to the clerk of the Court of
      Federal Claims pursuant to RCFC 52.2(e). Within thirty (30) days of

                                         - 19 -
    the filing of the BCNR’s decision, the parties shall then file the notices
    required by RCFC 52.2(f)(1).

IT IS SO ORDERED.

                                      s/ Victor J. Wolski
                                      VICTOR J. WOLSKI
                                      Judge




                                      - 20 -
