Sharpe v. United States , 935 F.3d 1352 ( 2019 )

United States Court of Appeals
for the Federal Circuit
______________________
JOHN F. SHARPE,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-1406
______________________
Appeal from the United States Court of Federal Claims
in No. 1:15-cv-01087-TCW, Judge Thomas C. Wheeler.
______________________
Decided: August 27, 2019
______________________
RACHEL J. ELSBY, Akin, Gump, Strauss, Hauer & Feld,
LLP, Washington, DC, argued for plaintiff-appellant. Also
represented by DEVIN S. SIKES; CAITLIN ELIZABETH
OLWELL, New York, NY.
IGOR HELMAN, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for defendant-appellee. Also represented by
ROBERT EDWARD KIRSCHMAN, JR., JOSEPH H. HUNT,
DOUGLAS K. MICKLE; STEPHEN ROBERT STEWART, Office of
the Judge Advocate General, General Litigation Division,
United States Department of the Navy, Washington, DC.
2 SHARPE v. UNITED STATES
______________________
Before TARANTO, SCHALL, and CHEN, Circuit Judges.
SCHALL, Circuit Judge.
John E. Sharpe is an officer in the U.S. Navy. In a de-
cision dated February 8, 2016, the Board for Correction of
Naval Records (“BCNR” or “Board”) found Mr. Sharpe’s
2009 separation from the service to have been unlawful.
Accordingly, the Board recommended that Mr. Sharpe be
returned to active duty, and the Assistant Secretary of the
Navy approved the Board’s recommendation. Before us
now is Mr. Sharpe’s appeal of the November 8, 2017 deci-
sion of the United States Court of Federal Claims that sus-
tained the Navy’s decision to deny Mr. Sharpe, upon his
return to active duty, certain categories of back pay associ-
ated with his military record. See Sharpe v. United States,
134 Fed. Cl. 805 (2017). For the reasons set forth below,
we affirm.
BACKGROUND
I
The pertinent facts are not in dispute. Mr. Sharpe
checked in aboard the aircraft carrier USS Carl Vinson
(“Carl Vinson”) as a Public Affairs Officer (“PAO”) on June
20, 2006. Id. at 809. At the time of his assignment to the
Carl Vinson, the ship was undergoing a refueling and com-
plex overhaul and thus was non-operational and uninhab-
itable. Id. The overhaul was “set to last during the entire
pendency of Mr. Sharpe’s assignment to the Carl Vinson.”
Id. Thus, Mr. Sharpe was instructed to report to the Media
Department, which was located ashore on the eighth floor
of the “Bank Building” attached to the Northrop Grumman
Newport News complex in downtown Newport News, Vir-
ginia. Id. Mr. Sharpe regularly reported to this onshore
location throughout the entirety of his assignment to the
Carl Vinson and carried out the majority of his duties at
SHARPE v. UNITED STATES 3
this location, except when he reported to a few other on-
shore locations in Hampton Roads, Virginia. Id. At no time
during his assignment did Mr. Sharpe perform any regular
duties onboard the Carl Vinson or “eat, work, live, stand
watch or serve any punishment aboard the Carl Vinson or
any other ship.” Id. (citing Administrative R. at 248, J.A.
1104).
In March of 2007, a reporter contacted a Media Rela-
tions Officer from the office of the U.S. Fleet Forces Public
Affairs Office, inquiring about Mr. Sharpe’s alleged in-
volvement in “hate group activity.” Id. (quoting Adminis-
trative R. at 34, J.A. 890). The next day, Mr. Sharpe was
ordered to turn over his duties and report to his home in
Carrollton, Virginia, as his assigned place of duty until fur-
ther notice. Id. As a result, Mr. Sharpe began a temporary
assignment to the Commander, Naval Air Forces Atlantic.
Id. at 809–10. On March 9, 2007, the Naval Criminal In-
vestigations Service began a formal investigation into the
reporter’s query, and approximately two months later, in
May of 2007, Mr. Sharpe was informed that the Command-
ing Officer (“CO”) of the Carl Vinson intended to impose a
non-judicial punishment on him. Id. at 810. On May 16,
2007, the CO issued Mr. Sharpe a punitive letter of repri-
mand for two alleged violations of UCMJ Article 88, 10
U.S.C. § 888. 1 When Mr. Sharpe inquired about the
1 Article 88, 10 U.S.C. § 888, states:
Any commissioned officer who uses contemptuous
words against the President, the Vice President,
Congress, the Secretary of Defense, the Secretary
of a military department, the Secretary of Home-
land Security, or the Governor or legislature of any
State, Commonwealth, or possession in which he is
on duty or present shall be punished as a court-
martial may direct.
4 SHARPE v. UNITED STATES
process for demanding a trial by court-martial, the CO in-
formed him that, due to the “vessel exception,” he had no
right to make such a demand. Id. The “vessel exception”
denies the right of a service member “attached to or em-
barked in a vessel” to refuse a non-judicial punishment and
demand a trial by court-martial. Id.; 10 U.S.C. § 815(a).
On July 9, 2009, the Assistant Secretary of the Navy
approved a recommendation by the Commander, Navy Per-
sonnel Command, to discharge Mr. Sharpe from the Navy.
Sharpe, 134 Fed. Cl. at 810. Mr. Sharpe formally separated
from the Navy on September 30, 2009. Id.
II
Mr. Sharpe submitted an application for Correction of
Naval Record to the BCNR on September 28, 2012. Id. In
his application, he requested reinstatement. He also re-
quested that his naval record be corrected by removing all
documentation pertaining to his non-judicial punishment.
Id.; J.A. 2620–22. In addition to seeking reinstatement
and correction of his record, Mr. Sharpe requested that he
receive “back payment of all regular or special pay, allow-
ances, allotments, compensation, emoluments, or other pe-
cuniary benefits” due to him as a result of his alleged
erroneous separation from the Navy. J.A. 884. In his ap-
plication, Mr. Sharpe argued that the vessel exception had
been improperly invoked because the dry-docked Carl
Vinson was not a “vessel” and because, although he was
officially assigned to the ship, he was not “attached to or
embarked in a vessel,” as he did not “live, eat, work, stand
watch, or serve any punishment aboard” the Carl Vinson.
J.A. 912; J.A. 1104.
On February 8, 2016, the BCNR recommended to the
Secretary of the Navy that Mr. Sharpe’s non-judicial pun-
ishment be set aside, along with its administrative conse-
quences. Sharpe, 134 Fed. Cl. at 811–12; J.A. 898. In
addition, the Board recommended that Mr. Sharpe be
treated as if he had not been discharged but “ha[d]
SHARPE v. UNITED STATES 5
continued to serve on active duty without interruption.”
J.A. 901. The Board also recommended that Mr. Sharpe be
retroactively promoted. Id. In arriving at its recommen-
dations, the BCNR noted, as Mr. Sharpe had, the signifi-
cance of the Carl Vinson’s non-operational status during
the entirety of Mr. Sharpe’s assignment. In addition, the
Board observed that “neither [Mr. Sharpe’s] regular place
of work, nor his [non-judicial punishment] rights-advice
session or . . . hearing, were aboard ship.” J.A. 898. The
Assistant Secretary of the Navy approved the BCNR’s find-
ings and recommendations on April 25, 2016. Sharpe, 134
Fed. Cl. at 812; J.A. 902.
The Navy proceeded to implement the Board’s recom-
mendations. As a result, Mr. Sharpe was issued orders to
report to active duty by February 13, 2017, and to report to
his new duty station in Washington, D.C. by May of 2017.
Sharpe, 134 Fed. Cl. at 812. On May 5, 2017, Mr. Sharpe
was retroactively promoted to the rank of Commander ef-
fective August 1, 2008. Id. Mr. Sharpe’s case was then
forwarded to the Defense Finance and Accounting Services
(“DFAS”) for calculation of the appropriate back pay to
which he was entitled. J.A. 857.
A memorandum by Brian D. Bourne (“Bourne memo-
randum”), which was issued by the Naval Personnel Com-
mand on May 11, 2017, set forth the Personnel Command’s
position regarding DFAS’s calculations. J.A. 858–60.
First, the memorandum noted that, before his separation,
Mr. Sharpe was assigned to the Carl Vinson for three years
and three months, a time period that exceeded the normal
twenty-four-month sea duty tour for a PAO. Thus, the
memorandum stated that, “[c]ommensurate with PAO de-
tailing policy, [Mr. Sharpe] would not have continued to
serve aboard [the Carl Vinson] past 2009 and his record
(including pay) should be corrected to show that his sea
duty ended on 30 Sep 09.” J.A. 858–59. The Bourne mem-
orandum thus recommended that Mr. Sharpe not receive
career sea pay (“CSP”) or a CSP premium, since he “did not
6 SHARPE v. UNITED STATES
serve aboard ship, and for constructive service purposes
would not have been assigned to a ship” from October 1,
2009, to February 12, 2017. J.A. 859. 2 Next, the Bourne
memorandum recommended that Mr. Sharpe receive basic
allowance housing (“BAH”) at the rate for Norfolk, Virginia
for the period of his separation, despite a change in the
home port of the Carl Vinson from Norfolk to San Diego,
California, in 2010. Id. 3 In line with the recommendation
in the Bourne memorandum, DFAS declined to pay Mr.
Sharpe CSP or a CSP premium for the period of his sepa-
ration. Also consistent with the Bourne memorandum,
DFAS awarded Mr. Sharpe BAH at the Norfolk rather than
San Diego rate for the period of his separation.
III
While his application was pending before the BCNR,
Mr. Sharpe filed suit in the Court of Federal Claims “to
preserve his right to judicial review.” Sharpe, 134 Fed. Cl.
at 811 (quoting Compl. at 8). The case was stayed while
the BCNR reviewed Mr. Sharpe’s application. Id.
2 As stated by the Court of Federal Claims, “CSP is
an allowance for service members entitled to basic pay who
are ‘assigned to’ and ‘serving on’ a ship.” Sharpe, 134 Fed.
Cl. at 818 (quoting 37 U.S.C. § 305a(e)). Additionally, “[a]
CSP premium is paid to those members who serve on sea
duty for over 36 consecutive months.” Id. (citing 37 U.S.C.
§ 305a(c)). During the period between June 20, 2006, when
he joined the Carl Vinson, and September 30, 2009, when
he was separated from the Navy, Mr. Sharpe received CSP.
See Sharpe, 134 Fed. Cl. at 819 n.8. The record does not
reflect that he received a CSP premium.
3 As the Court of Federal Claims explained, “BAH is
a variable, basic housing allowance awarded to service
members eligible for basic pay in order to address higher
costs of living in certain geographic areas.” Sharpe, 134
Fed. Cl. at 817 (citing 37 U.S.C. § 403(a)(1)).
SHARPE v. UNITED STATES 7
Following the Board’s decision and the Navy’s implemen-
tation of it, proceedings resumed before the court. Id. at
812.
In due course, Mr. Sharpe filed a motion for summary
judgment. In it, he argued that he is entitled to the BAH
rate for San Diego, beginning April 1, 2010, when the Carl
Vinson’s home port changed. He also argued that he is en-
titled to CSP and a CSP premium for the period of his sep-
aration from the Navy. Id. 4 The government filed a cross-
motion arguing (1) that judgment on the administrative
record, not summary judgment, was the proper procedural
vehicle, (2) that Mr. Sharpe should be judicially estopped
from making inconsistent arguments before the BCNR and
the Court of Federal Claims, and (3) that Mr. Sharpe is en-
titled only to the amounts of back pay that DFAS calcu-
lated. Id.
The Court of Federal Claims first determined that
judgment on the administrative record was appropriate.
Id. at 814. The court then held that, because of arguments
he made before the BCNR, Mr. Sharpe was judicially es-
topped from seeking BAH at the rate for San Diego and
from seeking CSP and a CSP premium. The basis for the
court’s ruling was its determination that Mr. Sharpe pre-
sented inconsistent arguments before the Board and the
court. Id. at 814–16. The court stated:
[Mr. Sharpe] now argues that this Court cannot ig-
nore and must instead give full weight to the tech-
nicality of his formal assignment to the Carl
Vinson, and that this “on-paper assignment” enti-
tles him to the BAH rate for San Diego, CSP, and
the CSP premium. Simply put, Mr. Sharpe urged
4 Before the Court of Federal Claims, Mr. Sharpe al-
leged his thirty-seventh month of consecutive sea duty be-
gan on June 21, 2009. J.A. 631.
8 SHARPE v. UNITED STATES
the BCNR to ignore his technical “assignment” to
the ship in order to nullify his non-judicial punish-
ment and correct his record but now urges this
Court to give full weight to that very same tech-
nical “assignment” in determining his back pay.
These arguments are plainly inconsistent. It is
clear that Mr. Sharpe’s interests have changed, so
he has changed his position accordingly.
Id. at 815–16 (citation and footnote omitted).
The court concluded that all three requirements for the
application of judicial estoppel were met: (1) Mr. Sharpe
made inconsistent arguments before the BCNR and the
court relating to his status vis-à-vis the Carl Vinson;
(2) Mr. Sharpe was successful in persuading the Board to
accept the position he argued before it (that the Board
should ignore his technical “assignment” to the Carl Vinson
and recognize that he really was assigned to shore duty);
and (3) absent the application of judicial estoppel, Mr.
Sharpe would gain an unfair advantage in the litigation.
Id. at 814–17; see also New Hampshire v. Maine, 532 U.S.
742, 750–51 (2001) (setting forth factors that “typically in-
form” the decision of whether to apply judicial estoppel).
In the alternative, the Court of Federal Claims deter-
mined that the Navy’s decision to award Mr. Sharpe the
BAH rate for Norfolk, Virginia, and to deny him CSP and
a CSP premium was not arbitrary or capricious, or contrary
to law. Id. at 817. Turning first to BAH, the court rejected
Mr. Sharpe’s argument that he should be paid the higher
rate for San Diego based on his “on-paper assignment” to
the Carl Vinson. The court did so on the grounds that Mr.
Sharpe never moved to San Diego and that, regardless of
his separation, his assignment to the Carl Vinson was set
to expire in June of 2008 and he had already exceeded the
SHARPE v. UNITED STATES 9
average tour length on the ship for a PAO. Id. at 818. 5 To
award Mr. Sharpe the BAH for San Diego, the court stated,
would confer on him a substantial windfall and would “de-
feat the very purpose behind the regulations governing
BAH: to aid service members in obtaining housing in the
vicinity of their permanent duty station and to help with
corresponding cost-of-living expenses.” Id. The court con-
cluded that “the Navy’s decision to place Mr. Sharpe in the
same position he was in before his improper separation by
paying him the BAH rate for Norfolk—which he was re-
ceiving at the time of his unlawful separation—was not ar-
bitrary or capricious, or contrary to law; rather, it was quite
reasonable.” Id. (citing Holley v. United States, 33 Fed. Cl.
454 (1995), rev’d on other grounds, 124 F.3d 1462 (Fed. Cir.
1997); Ulmet v. United States, 17 Cl. Ct. 679 (1989), aff’d
935 F.2d 280 (Fed. Cir. 1991)).
Turning next to CSP, the Court of Federal Claims
“[found] it illogical to award Mr. Sharpe CSP and [a] CSP
premium when he never actually went to sea or performed
any sea duties.” Id. at 818–19. The court relied on Boruski
v. United States, 155 F. Supp. 320 (Ct. Cl. 1957), where the
court held that a service member was not entitled to “flight
pay” because the member “did not participate in any aerial
flight.” Sharpe, 134 Fed. Cl. at 819 (quoting Boruski, 155
F. Supp. at 324). The court held it was reasonable for the
Navy to deny Mr. Sharpe CSP, since he had not experi-
enced the rigors of sea duty.
5 On appeal the government contends that the rea-
son Mr. Sharpe was not issued orders to another duty sta-
tion was because, after he received non-judicial
punishment, on June 17, 2008, the Navy determined that
he should be administratively separated, and he under-
went out-processing prior to the issuance of his separation
orders on September 15, 2009. Appellee’s Br. 47.
10 SHARPE v. UNITED STATES
Mr. Sharpe timely appealed to this court. We have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
I
We review the grant or denial of a judgment on the ad-
ministrative record without deference. Cleveland Assets,
LLC v. United States, 883 F.3d 1378, 1381 (Fed. Cir. 2018)
(citing Croman Corp. v. United States, 724 F.3d 1357, 1363
(Fed. Cir. 2013)). Thus, we apply the same standard of re-
view as the Court of Federal Claims, namely, the standard
set forth in the Administrative Procedure Act (“APA”). 28
U.S.C. § 1491(b)(4); 5 U.S.C. § 706; Walls v. United States,
582 F.3d 1358, 1367 & n.11 (Fed. Cir. 2009) (observing “it
has become well established that judicial review of deci-
sions of military correction boards is conducted under the
APA” and collecting cases). Under the APA, a court must
set aside agency action if the plaintiff demonstrates that
the action is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). In performing this review under § 706(2)(A):
Our scope of review is “narrow”: we determine only
whether [the agency] examined “the relevant data”
and articulated “a satisfactory explanation” for [its]
decision, “including a rational connection between
the facts found and the choice made.” We may not
substitute our judgment for that of [the agency],
but instead must confine ourselves to ensuring that
[it] remained “within the bounds of reasoned deci-
sionmaking.”
Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2569
(2019) (first quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc.
v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983); then
SHARPE v. UNITED STATES 11
quoting Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc.,
462 U.S. 87, 105 (1983)). 6
Mr. Sharpe challenges both bases for the decision of the
Court of Federal Claims: (1) its application of judicial es-
toppel; and (2) its ruling on the merits. We turn first to Mr.
Sharpe’s claims with respect to BAH and CSP. Because we
conclude that the Court of Federal Claims did not err in its
ruling on the merits, we do not reach the issue of judicial
estoppel.
II
“Under the constructive service doctrine, ‘military per-
sonnel who have been illegally or improperly separated
from service are deemed to have continued in active service
until their legal separation.’” Barnick v. United States, 591
F.3d 1372, 1379 (Fed. Cir. 2010) (quoting Christian v.
United States, 337 F.3d 1338, 1347 (Fed. Cir. 2003)). “The
basic premise of the constructive service doctrine is to ‘re-
turn successful plaintiffs to the position that they would
have occupied “but for” their illegal release from duty.’” Id.
(quoting Dilley v. Alexander, 627 F.2d 407, 413 (D.C. Cir.
1980)). Accordingly, military pay claimants are “entitled
to be placed in the same position they would have been in”
but for the wrongful action they suffered, “but not in a bet-
ter position.” Christian, 337 F.3d at 1344. This approach
is consistent with the fundamental principle of corrective
6 We note that a discretionary decision by the Secre-
tary of the Navy would be beyond our review. See Dysart
v. United States, 369 F.3d 1303, 1317–18 (Fed. Cir. 2004);
Groves v. United States, 47 F.3d 1140, 1144 (Fed. Cir.
1995); Voge v. United States, 844 F.2d 776, 780 (Fed. Cir.
1988). Instead, we “merely determine[] whether the proce-
dures were followed by applying the facts to the statutory
or regulatory standard.” Murphy v. United States, 993 F.2d
871, 873 (Fed. Cir. 1993).
12 SHARPE v. UNITED STATES
remedies in general: “The injured party is to be placed, as
near as may be, in the situation he would have occupied if
the wrong had not been committed.” Wicker v. Hoppock, 73
U.S. 94, 99 (1867); see also Pirkl v. Wilkie, 906 F.3d 1371,
1378 (Fed. Cir. 2018) (collecting cases).
Mr. Sharpe argues that the Court of Federal Claims
erred when it upheld the Navy’s decision to award him the
BAH rate for Norfolk, Virginia. According to Mr. Sharpe,
(1) his duty station at the time of his separation was the
Carl Vinson, (2) the determination of BAH for a service
member assigned to a ship is a function of the ship’s home
port, and (3) the Carl Vinson undisputedly moved home
ports from Norfolk to San Diego on April 1, 2010. Thus,
Mr. Sharpe argues, he should receive the San Diego BAH
rate for the period from April 1, 2010, to February 12, 2017.
Mr. Sharpe relies on Holley, a case in which an Army ser-
viceman was held entitled to receive an overseas housing
allowance for the entire period of his constructive active
duty service, although it was “probable” that, but for his
illegal discharge, he would have remained abroad for only
ten more months. 33 Fed. Cl. at 457. In this vein, Mr.
Sharpe contends that it was improperly speculative for the
Navy and the Court of Federal Claims to infer that he
would not have continued to serve on the Carl Vinson past
2009.
Next, Mr. Sharpe contends that because he was receiv-
ing CSP at the time of his separation, he should have re-
ceived CSP and a CSP premium for the period of his
separation, regardless of whether he was “serving on” the
Carl Vinson. According to Mr. Sharpe, returning him to
his prior status takes priority over whether his CSP pay-
ments were originally proper. Mr. Sharpe relies on Groves,
arguing that it supports his contention that although the
Secretary has certain discretion to award or terminate spe-
cial pay, that discretion may not be exercised when a ser-
vice member is denied special pay by virtue of an unlawful
conviction.
SHARPE v. UNITED STATES 13
The government responds that it was not arbitrary or
capricious for the Navy to provide Mr. Sharpe with the
BAH he was receiving at the time of his separation and
that it would have created a windfall for Mr. Sharpe to re-
ceive the higher BAH rate for San Diego, where he never
resided. To find otherwise, the government argues, would
do more than make Mr. Sharpe “whole.” Instead, it would
put him in a better position than he would have been in
had he not been separated. The government also contends
that it is Mr. Sharpe’s burden to show that he would have
continued to serve on the Carl Vinson during the time of
his separation, and that the Navy’s determination that Mr.
Sharpe would not have served on the ship for that time pe-
riod is entitled to deference, citing Voge. Appellee’s Br. 45–
47 (citing 844 F.2d at 779–80). The government contends
that to award Mr. Sharpe the San Diego BAH is contrary
to its purpose, which is to assist service members with the
cost-of-living expenses in the area within the vicinity of
their permanent duty station, not to award a post-hoc
windfall for servicemembers retroactively restored to duty.
Next, the government contends that the purpose of
CSP and the CSP premium are to compensate service
members for the arduous conditions of sea duty and sepa-
ration from home and family. The government states that
the fact that Mr. Sharpe was receiving CSP before his sep-
aration does not entitle him to receive it during his separa-
tion. 7
III
As noted, the law requires that Mr. Sharpe be placed
in the same position he would have been in but for his
7 Counsel for the government stated at oral argu-
ment that the Navy believes it was error for Mr. Sharpe to
have received CSP before his separation. Oral Arg. at
26:18–27:06 (May 6, 2019).
14 SHARPE v. UNITED STATES
wrongful separation. At the time of his wrongful separa-
tion, Mr. Sharpe was assigned to the Carl Vinson, which
was at home port in Norfolk, Virginia. Accordingly, the
Navy used the best approximation it had for the position
Mr. Sharpe would have been in but for his illegal separa-
tion—that position he was in before he was improperly sep-
arated—assigned to the Carl Vinson and receiving the
BAH rate for Norfolk, Virginia.
As we have previously acknowledged, the constructive
service doctrine is a “legal fiction,” and it is improper for us
to speculate exactly where Mr. Sharpe’s career path would
have led him but for his separation. See Barnick, 591 F.3d
at 1379; Boruski, 155 F. Supp. at 324. Mr. Sharpe relies on
Holley to support his argument that the Navy was not per-
mitted to speculate that he would have separated from the
Carl Vinson and not continued with the ship to San Diego.
However, that Mr. Sharpe was assigned to a ship whose
home port, and correspondingly, the associated BAH rate,
could change is of no moment here, where the facts make
clear that regardless of where Mr. Sharpe would have been
assigned next, he would not have continued to be assigned
to the Carl Vinson. As explained by the Bourne memoran-
dum, during the relevant period, the normal length of a sea
duty tour for PAOs was twenty-four months and “commen-
surate with PAO detailing policy, [Mr. Sharpe] would not
have continued to serve aboard [the Carl Vinson] past
2009.” J.A. 858–59. Moreover, Mr. Sharpe’s original or-
ders to the ship were set to expire in June of 2008, and Mr.
Sharpe’s replacement had reported to the ship by June 20,
2008. Sharpe, 134 Fed. Cl. at 818; J.A. 2606.
Given the facts of this case, the Navy’s decision to place
Mr. Sharpe in the same position he was in before his im-
proper separation by paying him the BAH rate for Norfolk
was not arbitrary, capricious, or contrary to law. Rather,
we agree with the Court of Federal Claims that it was
“quite reasonable.” Sharpe, 134 Fed. Cl. at 818; see also
Ulmet, 17 Cl. Ct. at 710 (concluding that a wrongfully
SHARPE v. UNITED STATES 15
discharged service member was entitled to “basic allow-
ance for quarters [and] the variable housing allowance,
. . . all at the appropriate rates applicable to the location
where the plaintiff was assigned to duty prior to his im-
proper release.”)
That Mr. Sharpe should be placed in the “same posi-
tion” does not mean that the BCNR erred when it declined
to pay him CSP or a CSP premium. 8 Mr. Sharpe’s reliance
on Groves on this point is misplaced. In that case, until his
trial by court-martial on charges of larceny, an orthopedic
surgeon who was an officer in the Army Reserve was re-
ceiving “financial bonuses designed to attract and retain
certain professionals in military service.” 47 F.3d at 1142.
These were in the form of Variable Special Pay, Incentive
Special Pay, and Additional Special Pay. Id. His convic-
tion was later set aside, and he sought back pay, allow-
ances, and restoration to active duty. Id. at 1143. The
Court of Federal Claims awarded him basic pay and allow-
ances, but it denied his request for special pay because he
did not demonstrate that he had satisfied the additional
eligibility requirements for it. Id. We reversed, noting
that, under 10 U.S.C. § 875(a) Groves was entitled to the
restoration of “all rights, privileges, and property affected
by an executed part of a court-martial sentence which has
been set aside or disproved.” Id. at 1144. With respect to
Variable Special Pay, we noted that that pay “depends
solely on an officer’s status on active duty under orders to
active duty for at least one year,” and “there is no reason to
believe that [Groves] would not have continued to [receive
Variable Special Pay] but for the conviction and sentence.”
Id. (quoting 37 U.S.C. § 302(a)). With respect to Incentive
Special Pay and Additional Special Pay, the Secretary of
the Army had discretion not to renew those forms of special
8 As noted, Mr. Sharpe was receiving CSP at the
time of his separation.
16 SHARPE v. UNITED STATES
pay, but in Groves’s case, no such discretionary decision
was ever made. Id. We stated:
Absent evidence that the Secretary would have oth-
erwise denied Groves the special pay at issue, the
statutory mandate to restore all rights, privileges,
and property includes any special pay that Groves
was receiving prior to his court-martial, and for
which he would have continued to be eligible had
the conviction never occurred.
Id. (emphasis added). The facts here are noticeably differ-
ent. Here, unlike in Groves, there is reason to believe that
Mr. Sharpe would not have continued to receive CSP or
have received a CSP premium. Namely, for the reasons
discussed above, the facts make clear that Mr. Sharpe
would not have continued to be assigned to the Carl
Vinson.
Whether Mr. Sharpe’s original award of CSP was
proper is not before us, although we note Mr. Sharpe’s
statements in his application to the BCNR suggest other-
wise. See, e.g., J.A. 912 (“I was at no relevant time attached
to or embarked in a vessel within the meaning of Art. 15.
At no time did I live, eat, work, stand watch, or serve any
punishment aboard ship.”). In any event, what is determi-
native is that Mr. Sharpe cannot claim to have been “as-
signed to” or “serving on” a ship during the time of his
constructive service. See Sharpe, 134 Fed. Cl. at 818 (quot-
ing 37 U.S.C. § 305a(e)). On this basis, the Navy’s decision
to deny him CSP and a CSP premium for that time period
was not arbitrary, capricious, or contrary to law. Finally,
like the Court of Federal Claims, we find Boruski, 155 F.
Supp. at 324, to be instructive. As noted above, in that
case, an Army officer was denied flight pay for the period
of his constructive service since he did not participate in
any aerial flight during that period.
SHARPE v. UNITED STATES 17
CONCLUSION
For the foregoing reasons, we hold that the Court of
Federal Claims properly sustained the Navy’s decisions to
(1) award Mr. Sharpe the BAH rate for Norfolk, Virginia,
and (2) deny Mr. Sharpe CSP and a CSP premium. We
therefore affirm the decision of the Court of Federal
Claims.
AFFIRMED
COSTS
Each party shall bear its own costs.