McClellan v. United States , 119 Fed. Cl. 494 ( 2015 )

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No. 12-253C FILED
Fifed: January 27,20'15
JAN 2 7 20t5
****t**** U.S. COURT OF
BRODYJ. MCCLELLAN, * FEDERAL CISIMS
Plaintiff,
v. * Pro g Plaintiff; Military Pay; Motion for
* Judgment on the Administrative
UNITED STATES, * Record.
Defendant.
********t*******
Brody J. McClellan, Lansing, Ml, pp se.
.. scott R. Damelin, Trial Attorney, commercial Litigation Branch, civil Division,
united states Department of Justice, washington, DC, for lhe defendant. with him were
scott D. Austin, Assistant Director, Robert E. Kirschman, Jr., Director, commercial
Litigation Branch, and Joyce R. Branda, Acting Assistant Attorney General, civil
D.ivision, washington, DC. of counsel, Major chriJtopher c. cox, united States
Army
Litigation Division, Fort Belvoir. VA.
OPINION
HORN. J,
.
Plaintiff, Brody J. Mccreilan, fired a compraint, foilowed by an amended
complaint, in the United states court of Federal claims, alleging that ihe Army Board
for.co-rreciion of Military Records (ABCMR) erred in multiple-wa-ys. Among hii'ctaims,
plaintiff alleges that he was denied due process when the niititary coictuded
that
plaintiff had a duty to attend training sessions, that the government did
not adhere to its
own regulations when plaintiff was denied his transfer request, and when the defendant
ignored an Article 138 complaint, as well as an alleged conflict of interest on the part
of
the Board of Inquiry. Plaintiff seeks back pay and-benefits from his alleged wrongful
discharge "from the date of discharge to the date of judgment," -as well as
"reinstatement into the Army Individual Ready Reserye," ,,promoti'on
to ihe-jraol o-2,"
"upgrade of characterization of discharge to fully Honorable,"
and the rem6val of "all
derogatory records pertaining to" the events leading up to his ,,other than Honorable',
discharge.
FINDINGS OF FACT
Plaintiff enlisted the United States Army Reserve on November 8, 2004, and was
honorably discharged from active duty on August 31,2005, to accept a commission in
the United States Army Reserve.t Plaintiff was commissioned as a second lieutenant in
the United StatesArmy Reserve, effective September 1,2005. Plaintiff joined the 301st
Military Intelligence Battalion, 500th Military lntelligence Brigade, stationed in Phoenix,
Arizona, although at the time plaintiff lived in Tucson, Arizona, which is more than 50
miles away from the unit. On September 25,2006, plaintiff was subsequently assigned
to the Military Intelligence Augmentation Detachment (MIAD).
Two months after his assignment to MIAD, on November 28, 2006 and
November 29, 2006, plaintiff and his commanding officer, Captain Sandra Orlandella,
exchanged multiple e-mails. Based on the record before the court, the first e-mail from
plaintiff on November 28,2006 informed captain orlandella that "[flor the December BA
[Battle Assembly] | will be in DC & then home to Michigan for Christmas, I request an
excused absence for the month. I will do extra days after my classes are finished in
May." Captain Orlandella responded the same day, explaining that .[w]e have
mandatory briefings in DEC and would like to see everyone present. your place of duty
is here during BA unless properly excused. You should never make arrangements for
travel until RST [Rescheduled rraining] request forms are signed and approved by me.'
On November 28, 2006, plaintiff replied that Captain Orlandella's response was
[k]ind of a curt message, I'm not sure why. When I was transferred to A
company, I was not aware of this policy. I have no problem, never have, of
recognizing my "place of duty during BA." I do not appreciate the
implication that I do have a problem. lf this was not your intent in your last
message, please be precise with your writing when addressing another
officer, subordinate or otherwise. Also keep in mind, until BA -or Active
duty periods, you are speaking to a civilian . . . . After coming upon a
situation, it is imperative that as officers in the Reserves, we conceptualize
a situation as best possible, and if necessary, obtain more information
before making comments or decisions. As an example, in this situation to
make a proper judgment, I would of [sic] found out: Attendance record of
soldier in past. Information symmetry levels (time in reserves vs. active -
has solider been made aware of policies - when transferring companies,
are different policies in effect & enforced, etc [sic]).,,
on November 29, 2006, captain orlandella answered, "[b]e advised this email is
out of line and disrespectful. You are denied excusal for DEC BA and will report to mv
office to discuss further action immediately after formation on 16 DEC od." ptaintifr
responded the same day, November29,2006, and stated:
' In his amended complaint, plaintiff claims he was "honorably released from Active
Duty to the reserve component September 2,2005."
I disagree. views [sic] and your email are disrespectful. When outside of
drill or active duty, I am not subject to UCMJ [Uniform Code of Military
Justicel. I expect to be addressed with respect and understanding. I do not
understand your perspective and why you even sent the last two emails. I
do not understand your decision making process. I will appeal this higher
and conduct futher [sic] research just as soon as I'm done writing reports
on Pandemic Flu response policies by the National Security Council. I
really appreciate the added stress your [sicJ giving me, without cause in
the final weeks of this semester. l'll make sure to repay in kind.
During the email exchange, plaintiff received Order Number 011942, dated
November 29, 2006, instructing him to aftend the annual training from Decembe r 1s-12 ,
2006. on November 30, 2006, plaintiff again contacted captain orlandella, this time by
letter and again requested to be excused from the December 2006 annual training,
citing to Army Regulation 140-1, chapter 3, 1J 3-12(eX1), but he did not explain why hi
specifically qualified to be excused.t In the November 30, 2006 letter, plaintiff stated
that Captain Orlandella had 'failed to provide me with the initial counseling & orientation
to company qolicy regarding your requirement for arranging RSTs," and that ,,[i]n the
event above RST is denied, this letter is to serve as offitiai request for reassignment
within the usAR [United States Army Reserve] and/or the MIAD.'; plaintiff also siated in
his lefter to captain orlandella that the physical location for the training did not meet
standards of Army regulations, which states, "[t]he maximum distance R-nruous
lRrmy
National Guard of the United Statesl and USAR soldiers may travel involuntarily
between their residence and the inactive dug training (lDT) training site must be within
- a. A 5O-mile radrus of the inactive duty training (lDT) site. it will noI exceed 1 1/2 hours
of have^l_time_o1e-way by car under average traffic, weather, and road conditions.', Army
Reg. 135-91 1[ 5-5 (2005) (emphasis in originat).
Plaintiff did not attend the annual training scheduled for Decemoer
15-17,2006. Following plaintiffs absences, captain orlandella sent him a ,,Failure to
Report for Annual Training" notification on December 19, 2006, which stated:
1' Aftendance records for this unit show that you were absent from the
scheduled Battle Assembly under AT [Annuar rraining] order #011942,
dated 29 November 2006, for the foltowing period(s):-i5 DEc 2006, 1d
DEC 2006, and 17 DEC 2006.
'Army Regulation 140-1 fl 3-12(e)(1) (2005) states that rescheduled training ,,will not
be
granted for the following. situations: (1) convenience of the soldiei. However,
employment conflicts, overtime, schooling, loss of income, verified medical problems or
personal emergencies, may in the judgment of the unit commander, justify
RST
authorization." Plaintiff later argued to the Board of Inquiry and the Army Board tor
correclion of Military Records, and now claims to this 6ourt, that he misseo tne
December 15-17,2006 annual training 'in order to care for famiiy with severe medical
emergency."
2. Under AR [Army Regulation] 135-91, you are required to attend all
scheduled Battle Assemblies and annual training periods.
3. Unless the absences indicated in paragraph 1 are excused, you will
have accumulated 4 unexcused absences within a 1 year period. The 1
year period begins on the date you incur your first unexcused absence.
4. As you are aware, if you accumulate g unexcused absences within a
1-year period, you become an unsatisfactory participant and you will be
processed for separation from the Selected Reserve either by
reassignment or discharge.
(emphasis in the original).
.. Il"t same day, December 19, 2006, Lieutenant Colonel Joseph Francis
Nadolski, plaintiffs Battalion commander, sent plaintiff a "Letter of ileprimand,
re-garding the e-mails Captain Orlandella had received from plaintiff between Novemoer
28 and November 30, 2006. The "Letter of Reprimand" explained that Lieutenant
colonel Nadolski found plaintiffs e-mails "very disrespeitful," ,disturbing,,, and
"threatening." Accordingly, Lieutenant colonel Nadobki informed plaintiff
that'ne was
transferring him to "the Individual Ready Reserve to be noted as an unfavorable action.,'
Lieutenant Colonel Nadolski warned plaintiff that if Lieutenant Colonel Nadolski was
"made aware of any information concerning this type of behavior between
now and your
transfer into the IRR [lndividual Ready Reserve], I wiil take swift action,
resulting in your punishment . . . and/or your involuntary separation from tirefosiiuty
united
States Army Reserves."
on December 20,2006, plaintiff received order Number 01647s, which noted
that due to his absence from the December 'ls-17, 2006 annual training, ,,he missed
movement, therefore he is considered AWoL [Absent without Leave].,,-ihe following
day, December 21,2006, captain orlandella slgned a "Report to suipend Favorable
f9111nel Action,"3 see Army Reg. 600-8-2 (zo-oa;, as a resurt of the December 19,
2006 "Letter of Reprimand." on February 28,2ool', the Military Intelligence Re"din"",
command sent plaintiff order Number o7-0s9-oo0o1, reassigning
it"intir irom nis
current assignment to the control Group Reinforcement, whichls pirt of the lndividual
Ready Reserve,
Fg Army Reg. 140-10 11 4-2(b)(2) (200s), due io misconduct. Later
thal same day, February 28, 2001, the Military Inielligence Readiness command
pv9leq plaintiffs reassignment with order Number 07-05-9-00003. The ABCMR stated
that Order Number 07-059-00001 was ,,apparenfly issued in error.,,a
].n.
"n"ryl to Favorable personner Action" is arso known as a ,,Frag.,, see
-suspend
Halg v. united states, 107 Fed. c-r. 339, 341 n.2, affd, 497 F. App'x 43 (Fed. cirl zol4,
reh's en banc denied (Fed. Cir. 2013).
a
There are several date discrepancies in the Administrative Record and the parties,
pleadings regarding exacfly when plaintiff was reassigned to the MIAD
afier tne
On March 8,2007, Lieutenant Colonel Nadolski sent Mr. McClellan a counseling
statement informing plaintiff that he remained a member of the Military Intelligence
Augmentation Detachment because his transfer to the Individual Ready Reserve had
not been approved. Lieutenant Colonel Nadolski further informed plaintiff of annual
training that would take place on April 21-22,2007. That same day, March g,2OO7,
plaintiff e-mailed Lieutenant colonel Nadolski. plaintiffls email stated, in part, ',1 regret
the nature of the situation that has occured [sic] between myself and the command,-but
stand by my actions that occured [sic] subsequent to my initial mistake of sending an
email in response to an email from CPT. Orlandella that I considered disrespectful to
myself.' Plaintiff also stated that he "received a letter at my HoME . . . accusing me of a
serious crime that the command was fully aware was a false accusation . . .-. I made
several requests to various members of the command after initial possible
misunderstands [sic] by email for a direct meeting, only to be ignored." (capitalization in
original). Regarding the March 8,2007 counseling statement, ptaintiff indiiated ,\rvhile I
am in citizen status, as I am now, you can mind your own business on how I choose to
address anyone. lf you don't like it, you can write your congressman and request the
Iaw be changed . . . . You have no authority to request any American citizen be subject
to military custom, courtesy and law." Therefore, plaintiff informed Lieutenant colonel
Nadolski "l will not be signing anything or attending anything until after further
consultation with legal representation. . upon furthe; co;sultation with legal
representation, I will contact you directly. I request all further communication from the
unit or affiliated personnel cease."
On April 16,2007, Lieutenant Colonel Nadolski sent plaintiff another counseling
statement, denying plaintiffs request to be excused from thi April 2l-22,2007 annuar
training.
fla]ntiff subsequently taite!. t9 attend the Aprit 2l-22,2b07 annuat training. on
May 31, 2007, Lieutenant qog19! Nadotski sent ptaintiff a thiid counselinj siaiement
in
which he reiterated to plaintiff that plaintiff remained a part of ttre uiRo, and that
Lieutenant Colonel Nadolski would not consider transferring plaintiff untit ne iuttilleo
nis
obligations, including attending batfle assemblies. The-May 31, zooz counseting
statement recognized plaintiffs assertion that he had moved irom iucson, Arizona
to
Michigan' Lieutenant Colonel Nadolski reminded plaintiff that plaintiffs tr"vet
exp"n""s
to and from battle assemblies were reimbuisable. on June 6, zooz, 'plaintffr
acknowledged receipt of the May 31, 2007 counseling statement by e-mail to Lieutenant
C.olonel Nadolski's personnel officer, Lieutenant Miihael padilla. plaintiff exftaineo
to
Lieutenant Padilla that "[t]he statements on the counselig
[sic] statement interring t am
February 28,2007 orders, apparenily issued in error, transfened him to the Individual
Ready Reserve. Upon review of Administrative Record, it appears that after
the
February 28,2007 orders transferring plaintiff to the Individual neioy Reserve,
anotner
order was issued, arso dated February 29,2007, revoking the transfer. Arftrougn
tne
ABCMR found that "orders were published in June 2007 -reassigning him
the. MfAD." A copy of orders 07-122-oooo8, dated May 2,2oo7,Inclu-ded
lpiai,ititfj to
in'ihe recoro
indicates that plaintiff was assigned to the Miliiary Inteiligence nug;entation
Detachment, but that the effective date of the orders was tisted as beptemueizs,
zooo.
not meeting my obligations or 'duty'. . [sic] and reasons for being 'flagged' are counter-
factual, full of circular logic and are generally deragatory [sic]." Plaintiff asserted that he
was employed with the Michigan state legislature "with a set schedule," and, thus, could
not meet his duties in Phoenix anymore, but suggested that he could "meet [his]
requirements with a local unit or a closer commute MIAD unit or other reserve Ml
[Military Intelligence] unit, such as DC . . . ." Plaintiff also stated that he could ',best
serve the needs of the army in another unit."
On June 15,2007, Lieutenant Colonel Nadolski recommended that a ,,board of
officers" be convened to determine whether plaintiff should "remain a commissioned
officer in the United states Army Reserve.' plaintiffs officer Evaluation Report for the
period August 3, 2006 to August 2,2007 rated him with "unsatisfactory performance."
The officer Evaluation Report stated that plaintiff only "aftended 3 of 12 Battle
assemblies . . . failed to report to duty as ordered during the rest of the rating period.
From December 2006 onward, 2LT [second Lieutenant] Mcclellan was disrespictful on
several emails to his chain of command and failed to comply with numerous direct
orders."
on August 12,2007, plaintiff was notified that an involuntary separation action
was being initiated against him due to "acts of personal misconduci and conduct
unbecoming [ofJ an officer." Plaintiff was told that he had "failed to obey fragmentary
Annual rraining orders," and that he had shown "severe disrespect for superioiofficers,
as demonstrated in several e-mails sent by you." plaintiff was advised of his rights,
including: (1) his right to be furnished copies'of the records which would be submitted
to
the Board of .lnquiry;s (2) the right to be present at the Board of Inquiry ii n,t o*n
expense and have a reasonable lime to prepare his case (at least thirty d'ays between
the notification and the Board of Inq-uiry hearing); (3) the rilrrt to ue ,epi.sented at any
hearing by appointed counsel, military counlel of his -own choiie ,,if reasonably
available," or by civilian counsel at his own expense; (4) the right to submit statements
on his own behalf; and, (5) the right, if plaintiff is a minority officer, to request in writing
that the Board include a minority officer. Additionalty, phi;tiff was advised that he had
fifteen days to respond to the notice and that the Bbard of Inquiry would still act upon
the case even if plaintiff failed to respond.
" see Army Reg. 600-8-24 lJ 4-6 (2006) ("The Board of Inquiry's purpose is to give the
officer a fair and impartial hearing determining if the officer wili be reiained in thE Army.
Through a formal administrative investigation conducted under AR 15-6 and this
regulation, the Board of Inquiry establishes and records the facts of the Respondent's
alleged misconduct, substandard performance of duty, or conduct incompatible with
military service. Based upon. the flndings of fact esta-blished by its investijation ano
recorded in its report, the board then makes a recommendation for th'e officer's
disposition, consistent with this regulation."). The Board of Inquiry in plaintiffs case
also
is refened to in the Administrative Record as the "separation board'; and the .board of
officers."
6
Plaintiff began e-mail communications with attorney Joseph Giblin, in the office of
the Judge Advocate General (JAG) on August 13, 2007, regarding the pending
separation action. JAG attorney Giblin recommended to plaintiff that he explore military
and civilian counsel. The Army initially assigned a military attorney, Major D.
christopher Russell, to plaintiff to defend him in preparation for and during the
upcoming Board of Inquiry s::paration hearing. Major Russell ceased representing
plaintiff on september 8,2007.4 on october 20-21,20or, the MIAD had anotherkainino
session, which plaintiff also did not attend.
on october 25,2007, plaintiff tried to contact JAG attorney Giblin, indicating that
(1) the Army had not established jurisdiction "to apply regulation ind ucMJ;" (2) that he
had exhausted military remedies including lnspector General requests; ano
is) tnat, it
the Board of Inquiry were to recommend separation, his preferences would be to
transfer to the Individual Ready Reserve or be honorably discharged. on october 29,
2007, plaintiff received a "Letter of Instruction" informing him thai he was required to
attend all scheduled unit training assemblies, and that unless the october 2oi1,2oo7
assemblies were excused, plaintiff would have accrued twenty unexcused absences
within a one year period. Plaintiff was told that absences for tiaining assemblies may
only be excused for reasons of injury, sickness, emergency, or other circumstances
beyond his control, and that plaintiff should furnish an affiOavit or certification with any
request for excusal, which may or may not be approved within ten days of receipt
ot
request.
November 14,2007, praintiff received formar notification in the form of a
"Letter of Instruction," that his.Board of Inquiry hearing would occur
on December 12,
2007, to determine whether he should be dischargJd, and if so, to oetermine
tne
characterization of his service. on December g,2ooi, plaintiff acrnowboleJ i"""ipt
ot
the ''Lefter of Instruction," and responded with, among'other statements,:'1a1tteno"n".
at formal training with unit is inappropriate until luch time as any review ano
investigation is complete," that '[a]ll subsequent absences were also posiJormal
request to transfer and post receiving false documents falsely accusing me
of a crime,,,
and that the "Letter of Instruction" was inappropriate in general. rrombecemoer g_10,
6.The-_December
17,2007 transcript from the Board of Inquiry hearing stated that
plainliffs counsel was "discharged. by Respondent
[plaintiffl.; rr,ra.ior iuJs"ris e-mair,
in.cluded with plaintiffs pleadings, however,' indicateJ that lriajor Russell reluested
to
withdraw due to plaintiffs desire to pursue injunctive relief in civilian court];*ni.n
outside the scope of rDS flrial Defense Service] representation.,' The Regional
i.
Defense counsel for the 22nd Legal support organization west Region
- approveo
Major Russell's withdrawal as counsel foi plaintiff,-and stated that ,,the o-m."iipr"intiq
must retain civilian counsel at his own expense or proceed pro se." The Fiegionai
Defense Counsel also stated that "[t]he officer client
tpl;intiffJ shoutd be advised in"t tn"
22d LSo [Legal support organization] will not suppiy new-defense counsel when
the
client decides not to follow the advise [sic] of his couniel or elects to pursue
a course of
action that is not authorized by the militiry defense,s counsel,s ettiicat outigaiions
or
military regulation."
2007, plaintiff sent materials to JAG attorney Giblin for consideration by the Board of
Inquiry, for which JAG attorney Giblin confirmed receipt. JAG attorney Giblin also
attempted to confirm, based on plaintiffls e-mails, that neither plaintiff, nor any
representative on behalf of plaintiff intended to appear before the Board of Inquiry to
present material.
On December 17,2007, the Board of lnquiry held plaintiff's separation hearing,
which plaintiff did not attend.'All written materials plaintiff forwarded for consideration
were submitted as evidence to the Board of Inquiry on plaintiffs behalf by JAG aftorney
Giblin. After the separation hearing, the Board of Inquiry discharged plaintiff from the
Army with a characterization of "Other than Honorable" due to:
sufficient evidence to support the finding that 2LT Brody McClellan failed
to obey fragmentary AT orders IAW lln Accordance With] Orders
# 011942 dated 29 November 2006. Soldier failed to report for
Fragmentary Annual Training commencing on 15 December 2006 for
three days. In addition, by 29 October 2007 the Soldier had accumulated a
total of 20 unexcused absences within a one year period as documented
in a Letter of lnstructions Unexcused Absences dated 2g October 2007
from the A/301st Ml BN Commander. Clearly, 2LT McClellan has not
performed his assigned duties as directed.
shows severe disrespect for superior officers as demonstrated in emairs
commencing on 28 November 2006 addressed to cpr sandra orlandelra.
Furthermore, in an email dated 8 March 2007 and a letter dated g
December 2007, from 2LT McClellan to LTC Joe Nadolski, 2LT McClellan
continued to show severe disrespect to superior officers. Examples of the
disrespect include failure to recognize command authority and failure to
display any remorse or desire to correct his behavior.
. on January 10, 2008, plaintiff notified JAG aftorney Giblin that plaintiff had not
received any documentation from the Board of Inquiry's reiults, and thai he woulo neecl
such documents in order. to proceed. on January 14, 2oog, JAG aftorney Giblin
responded that the materials from the Board of Inquiry were being ,,compiied and
prepared for fonrvarding to. higher headquarters," and that the Board of Inquiry,s
recommendation "will not become final unless/until acted upon by Headquarteis,
Department of the Army." The Military Intelligence Readiness iomr"nd approved the
Board of Inquiry's decision to discharge plaintiff on september 30, 2oog, and'requested
final approval of the Board of Inquiry's findings by the United states Army i"r"r"
' one member of the JAG office, who reviewed the Board of Inquiry's proceedings,
concluded that plaintiffs "request for a new attorney was denied 6y the negioiai
Defense counsel. Respondent did not retain private counsel, nor did he appear at the
Board. The right to counsel and the right to appear are important, uut wairiJute, rignts.
Respondenfs failure to appear a-t the board to object or provide any written objection for
the denial of a second counsel effectively waive [sic] his right to repiesentation.,,
Command. On October 1,2008, Headquarters, Military Intelligence Reserve Command,
published Order Number 08-275-0001 1 discharging plaintiff from the Army Reserve. On
october 23, 2008, however, the Military Intelligence Reserve command revoked the
October 1,20OB order, because, according to Army personnel, e-mail correspondence
contained in plaintiffs official Military Personnel File, the Military Intelligence Reserve
-
Command did not have the authority to discharge plaintiff from service.
On March 6, 2009, the Commander of the United States Army Reserve
forwarded plaintiffs Board of Inquiry separation results to the commander of the United
states Army Human Resources command requesting final action. on october g, 2009,
the united States Army Human Resources command approved the Board of Inquiry's
recommendation to discharge plaintiff. one week later, on october 16, 2009, the'Army
officially discharged plaintiff from service under "other than Honorable;' conditions, with
an effective date of November 16, 2009
On September 17,2010, plaintiff submitted an application to the ABCMR,
requesting that "the board of officers [sic] decision be overturned and that Ibe
reinstated as a Commissioned Reserve Officer. lf the board does not wish to reinstate
me. I ask that.my discharge be upgraded to Honorable." plaintiff also alleged various
claims regarding his alleged unlawful separation from the Army, such-ai .Board
proceedings tainted due to Violation of Regulation & Federal iaw.,, The
ABCMR
identified 19 contentions from plaintiffs eleven assertions of legal error. The ABcMR's
characterized plaintiffs numerous and lengthy claims raised to the ABCMR as
tottows:r
a. he was first notified of the board's decision at the end of 200g despite a
regulatory requirement to be informed immediatery after the odiro's
decision:
b. he believes that denial of the report of proceedings and fairure to inform
him of the outcome viorated murtipie regurations as weil as federal raw:
c. the board of officers did not discuss and refused to admit crear
information that the orders they believed he disobeyed *ere ittelai
and he had a right and duty to disobey unlawful orders; "te"dy
d. he had been legally transfened to the IRR and a command mav not
laMully complete a transfer to the IRR and then arbitrarily revoke the
lransfer;
e' he was never provided any varid activation or transfer orders out of the
IRR nor was he provided subsequent activation orders for active Ouiy
training until the date on the activation orders had already passed;
f. the assertion that he was disrespectful was invalid;
8
Plaintiff does not raise ctaims (e), (k), (m), (p), and (s) in this court.
g. U.S. Reservists are not subject to the UCMJ when not in an active
status, hence how could it be considered disrespectful or conduct
unbecoming a commissioned officer to say this at anytime [sic] to anyone;
h. he formally submitted a request for transfer to a local Reserve unit
within commuting distance pursuant to Army Regulation;
i. he resided well over 100 miles from Phoenix at the time and Army
regulations command that Reservists will drill at local units;
j. he was flagged only because he requested to be transferred to another
unit;
k. he abruptly received a letter warning him that he was considered AWOL
and missing movement because he missed one inactive training batfle
assembly and this constituted a felony because it was on Army letterhead;
l. the board of officers refused to entertain evidence of violations of law
and regulations;
m. he was never offered the opportunity to review the evidence submifted
to the board of officers and to demonstrate why the evidence may have
supported his arguments and defense;
n. his command refused to respond to his Article 13g complaint
submission;
o. his command refused to provide him with adequate opportunity to
appear at the board hearing, which was in violation of Army regulations
and in violation of due process;
p. except for a few truly exceptional circumstances, the president of the
United States and therefore his subordinate military representatives have
no authority whatsoever to issue orders under military law to civilians;
q. Reservists who are off duty live in a very different cultural and legal
conte)d than active duty personnel;
r. permifting. the arbitrary application to inactive personnel of regulations
meant clearly for lhe active-duty military would create clear conflicts of
interest, separation of powers issues, and is not compatible with the
Citizen-Soldier concept; ano
10
s. since his separation from military service, he has continued to actively
serve his community by advancing his education, working, and
volunteering his services.
The ABCMR denied plaintiffs application in full on August 16,2011 because
plaintiff had "provided insufficient evidence to substantiate the contentions he has made
in his appeal." The ABCMR found, in part:
4. There is no evidence in the available record, nor has he [plaintiffl
submitted any evidence, showing that his request to be excused from
battle assembly was approved.
5. Although orders were published reassigning him to the USAR Control
Group (Reinforcement) on 28 February 2007, he was notified in March
2007 that his request was denied and that he was still a member of the
MIAD and expected to attend training. The records show he continued to
show disrespect to members in his chain of command. His records were
flagged and he should not have been reassigned. Orders were published
in June 2007 reassigning him to the MIAD. His contention that he never
received the orders is not supported by the evidence of record'
6. His transportation to and from training was reimbursed. He has failed to
provide evidence showing that any of the actions taken against him was
ihe result of his desire to be reassigned to another unit or that the board of
officers failed to comply with applicable regulations' He was told that the
flag would be lifted once he started fulfilling his service obligation and
although he contends that he had every intention of doing so, it does not
appear that he did.
7. Additionally, unexcused absences are considered to be AWOL
incidents. He has not shown error or injustice in the action taken by the
board of officers that recommended he be discharged under other than
honorable conditions. The fact that he disagrees is not a basis for
reinstating him in the USAR or upgrading his discharge.
8. There is no evidence of any violation of the applicant's rights' He was
an officer in the USAR and was subject to laws and regulations pertaining
to USAR officers. He had an obligation to conduct himself as a USAR
officer.
(capitalization and emphasis in original).
Plaintiff filed suit in this court, claiming that the ABCMR erroneously denied his
application because:
(1) Defendant "failed to obey regulations and the statutes governing the involuntary
activation of IRR [lndividual Ready Reserve] members," on the grounds that the
11
government "failed to demonstrate [that] the plaintiff had a duty to attend battle
assembly periods that were scheduled subsequent to the plaintiff being
discharged out of the US Army Ready Reserve into the individual ready reserve
(lRR);"
(2) Defendant "had no lawful authority to affect an involuntary activation of the
plaintiff by 'revoking' the orders placing plaintiff into the IRR;"
(3) Defendant "failed to adhere to Army Regulation 140-10, 1-10, par' (1) which
states that reserve assignments 'MUST BE' within 50 miles of an Officers [sic]
residence," and the defendant "failed to redress injustice" regarding Army
Regulation 140-1 0 by denying his transfer request because "the administrative
record demonshates that Lieutenant-colonel Nadolski acknowledged under oath
this demand to transfer to a local unit was submitted in writing prior to any
'flagging' action, even though the'flagging' action for 'misconduct' was used by
him [Lieutenant Colonel Nadolski] as a premise to deny the transfer request;"
(4) Defendant "failed to comply with Army regulations commanding that personnel
' 'should
be afforded an opportunity to transfer to another unit in order to
'rehabilitate' where a problem exists;"
(5) The
,,Board of Inquiry legal officer permitted the submission of a telephone
wiretap/recording to the board of separation through the commission of a felony
under state laws barring the recording and transmission to third parties of
telephone conversations without authorization of all parties; the recording was
never provided to the plaintiff prior to the Board of Inquiry hearing in
contravention of regulations governing the separation of officers ;"
(6) Defendant "refused to produce any documentation whatsoever elucidating either
the conduct of, or the outcome of the Board of Inquiry for case 07-0050 [plaintiffls
casel for approximately one year after the hearing in contravention of regulations
goveining ihe separation of Officers which command that the board decision and
iocumentation from the hearing should be made available to the respondent
immediately," and that the ABCMR 'Tailed to consider the substantial harm
caused to plaintiffs [sic] ability to seek redress due to this delay [in furnishing
Board of Inquiry decision documents,l including hindering the ability to challenge
procedures, submit appeals prior to the finalization of separation, or to locate or
identify and question witnesses under oath;"
(7) Defendant "refused to process plaintiffs [ucMJ] Article '138 complaint which was
submitted prior to the board hearing;"
(8) Plaintiff was "denied due process of law by ineffective assistance of counsel;"
(9) Plaintiff was "denied due process of law by the refusal of the Defendant to
provide for expenses for transport to the board of separation hearing;"
12
(10) The "board of inquiry president had a substantial conflict of interest and should
have recused herself but did not;"
(1 1)The Board of Inquiry "failed to obey regulations pertaining to the separation of
officers due to board composition as plaintiff is a member of a federally
recognized Native American tribe;" and
(12) The ABCMR "failed to consider complex questions and precedent" regarding
various alleged military customs and 'Jurisdictional questions" that plaintiff claims
support his argument of a
pretextual discharge regarding the ABCMR's
'disrespect" findings.
(footnote omitted; capitalization in original).
In this court, plaintiff seeks the following forms of relief:
(a) For all pay and allowances together with all benefits plaintiff may
have been deprived of as a result of his discharge, from the date of
discharge to the date of judgment, including but not limited to
reimbursement for medical insurance necessitated by cessation of
coverage of him and his family; COLA allowance; accumulated leave
pay; and PX and commissary privileges;
(b) Promotion to the grade 0-2 and reinstatement into the Army
Individual ReadY Reserve;
(c) For the removal of all derogatory records pertaining to improprieties
as the court may find to be just and proper;
(d) For upgrade of characterization of discharge to fully Honorable;
(e) For such other and further relief as the court may find to be just and
proper.
After plaintiff filed his amended complaint, defendant moved for Judgment on the
Administrative Record pursuant to Rule 52.1 of the Rules of the United States Court of
Federal Claims (RCFC). Defendant argues that the ABCMR properly upheld plaintiffs
discharge after reviewing and assessing plaintiffs record and applying the appropriate
Army regulations. Furthermore, defendant contends that plaintiff inappropriately raised
four-new claims in this court which were not presented to the ABCMR, namely: (1)
failure to comply with regulations permitting transfer "To Rehabilitate Where A Problem
Exists;" (Z) vi6tition of due process by ineffective counsel; (3) conflict of interest within
the Board of lnquiry; and (4) failure of the Board of Inquiry to provide plaintiff with ethnic
minority representative. Defendant argues that plaintiff waived these claims when he did
not raise them before the ABCMR.
13
Plaintiff filed a Response and a Cross-Motion for Judgment on the Administrative
Record, arguing that the defendant's own "Statement of the Facts" supports the first four
claims in plaintiff's complaint. Plaintiff's also argues that the defendant's remaining
arguments "Lack Sound Reasoning and Are Not Supported By the Administrative
Record." Plaintiff, therefore, requests judgment upon the Administrative Record, or in
the alternative for remand of his case to the ABCMR. Furthermore, plaintiff requests that
if this court "finds a claim has not been stated for which relief can be granted by the
Court, or if this honorable Court finds no subject-matter jurisdiction plaintiff respectfully
requests the case be transferred to the Federal District Court for the District of
Columbia."
DISCUSSION
Pleadings filed by pro se plaintiffs are entitled to liberal construction and judged
by "less stringent standards than formal pleadings drafted by lawyers." Haines v.
Kerner,4O4 U.S. 519,520-21, reh'q denied,405 U.S.948 (1972); see also Erickson v.
Pardus, 551 U.S.89,94 (2007): Huqhes v. Rowe,449 U.S' 5, 9-10 (1980); Estelle v.
Gamble, 429 U.S. 97, 106 (1976), reh'q denied, 429 U.S. 1066 (1977); Matthews v'
United States, T5O F.3d 1320, 1322 (Fed. Cir.2014); Diamond v' United States' 115
rea ct. 516, 524 (2014). "The purpose of this relaxed standard is to ensure that the pro
se plaintiffs case is evaluated on the merits and is not dismissed on the basis of
technicalities." Ebert v. United States, 66 Fed. C\.287,289 (2005) (citing Foman v.
Davis, 371 U.S. 178, 181 (1962)). {llt has long been the role of this court to examine
tfre record 'to see if [a pro se] plaintiff has a cause of action somewhere displayed."'
Avres v. United States, 66 Fed. Cl. 551, 558 (alteration in Avres v' Unitqd.States)
Guoting Ruderer v. United States, 188 Ct. Cl. 456, 468, 412 F.2d 1285 (1969)' cert.
denied,398 U.S.914 (1970), recons. denied in part,67 Fed. C|.776(2005)' "However,
is no duty on the part of the trial court to create a claim which [the plaintiffl has
nbi spelled out in his pleading.""'Lenqen v. United States, 100 Fed. Cl. 317, 328 (2011)
(alterations in Lenqen v. united states) (quoting Scoqin v. Unite{Qtates, 33 Fed. Cl.
-1t1trere
iAS,z1s (199S) Guoting Clarkv. Nat'l Travelers Life lns. Co',518F.2d 1167' 1169 (6th
Cir. 1975))); see also Bussie v. United States, 96 Fed. Cl. 89' 94, affd' 443 F. App'x
542(Fed.cfi.2o11); Shelkofskvv. united states, No. 13-1016C,2014WL 5648973, at
.4 (Fed. Cl. Nov. 4, 2014) ("[Wlhile the court may excuse ambiguities in a pro se
plaintiffs complaint, the court 'does not excuse [a complaint's] failures,"' (quoling Henke
v. United Staies,60 F.3d 795,799 (Fed. Cir. 1995))); Goodman v. United States, 100
Fed. C|. 289, 301 (2011).
Pursuant to RCFC 52.1(c\, which governs motions for judgment on the
administrative record, the court's inquiry is directed to "whether, given all the disputed
and undisputed facts, a party has met its burden of proof based on the evidence in the
record.', Mqmt. and Traininq Corp. v. United States, 'l 15 Fed. Cl.26,40 (2014) (quoting
A & D Fire ProtJnc. v. United states ,72 Fed. cl. 126, 131 (2006) (citing Bannum. lnc.
vunited states, 404 F.3d 1346, 1356-57 (Fed. Cir. 2005)); see ql99 V9!!ed!-v--U!itcs!
*7 (Fed. Cl. Jan. 9, 2015) (quoting Sierra
StatCC N"l3t218C,2015WL 129027, at
l'Gvada Corp. v. United States, 107 Fed. Cl. 735, 751 (2012)) ('RCFC 52.1 governs
motions fo+tdgment on the administrative record. . . . Unlike summary judgment, for
14
instance, 'a genuine dispute of material fact does not preclude a judgment on the
administrative record. "').
Plaintiff asserts jurisdiction of this court based on 28 U.S.C. $ 1491(a)(1), 37
U.S.C. S 206(a)(2), and the Fifth Amendment to the United States Constitution. While
the court addresses each of plaintiffs twelve claims below, it first addresses the claims
defendant agrees are properly before this court, opinion in the order which plaintiff
presents them in his amended complaint, claims 1, 2, 3, 5, 6, 7, 9, and 12. The court
then addresses plaintiffs claims not raised beforetheABCMR, claims4,8, 10, and 11.
For counts 1 , 2, 3, 5, 6, 7, 9, and 12, the court reviews the 201 1 ABCMR's decision "to
determine whether it is arbitrary, capricious, unsupported by substantial evidence, or
contrary to law." Lewis v. United States, 458 F.3d 1372, 1376 (Fed. Cir.) (citing Martinez
v. United States,333 F.3d 1295, 1305, 1314 (Fed. Cir.2003), cert. denied,540 U.S.
1177 (2004)), reh'o en bancdenied (Fed. Cir.2006), cert. denied,552 U.S. 810 (2007);
see also Ghappell v. Wallace. 462 U.S. 296, 303 (1983) ("Board decisions are subject to
judicial review and can be set aside if they are arbitrary, capricious, or not based on
substantial evidence."); Burnick v. United States, 541 F.3d 1372, 1377 (Fed. Cir. 2010);
Barnes v. United States , 473 F .3d 1356, 1 361 (Fed. Cir.) ("We apply the same standard
of review as the United States Court of Federal Claims, which means 'we will not disturb
the decision of the corrections board unless it is arbitrary, capricious, contrary to law, or
unsupported by substantial evidence."'(quoting Chambers v. United States,417 F.3d
1218, 1227 (Fed. Cir. 2005)), cert. denied, 552 U.S. 813 (2007); Metz v. United States.
466 F.3d 991, 998 (Fed. Cir.), reh'q en banc denied (Fed. Cir. 2006); Porter v. United
States. 163 F.3d 1304, 1312 (Fed. Cir. 1998), reh'q denied, en banc suqqestion
declined (Fed. Cir.), cert. denied.528 U.S.809 (1999); Heisiq v. United States.719
F.2d1153, 1156 (Fed. Cir. 1983); Skinnerv. United States.219 Ct. Cl.322,331,594
F.2d824,830 (1979);Spellissvv. United States, 103 Fed. Cl.274,283(2012) ("ffihen
a service member chooses to seek relief from a military corrections board, the court'will
not disturb the decision of [a] corrections board unless it is arbitrary, capricious, contrary
to law, or unsupported by substantial evidence."' (quoting Chambers v. United States,
417 F.3d at'1227) (second modification in original)). In Riser v. United States, the
United States Court of Federal Claims noted that plaintiff must show that the decision by
the ABCMR was arbitrary and capricious, contrary to law, or unsupported by substantial
evidence, and that, in accordance with this deferential standard of review, the court
does not reweigh the evidence, "but rather considers whether the conclusion being
reviewed is supported by substantial evidence. So long as the Board considered the
relevant evidence and came to a reasonable conclusion, this court will not disturb the
Board's decision." Riser v. United States, 97 Fed. Cl.679, 683-84 (201 1) (quoting
Heisiq v. United States ,719 F .2d al 1157) (emphasis in original; other citations omitted);
see also Holmes v. United States, 98 Fed. Cl.767,780-81 (2011) ("'The Board's
decision will comply with the substantial evidence standard so long as a 'reasonable
mind might accept" [the] particular evidentiary record as "adequate to support [the
contestedl conclusion.""' (quoting Dickinson v. Zurko, 527 U.S. 15O, 162 (1999) (quoting
Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197,229 (1938))) (modifications in
original)).
15
This standard of review is narrow. The court does not sit as "a super correction
board." Skinner v. United States. 219 Ct. Cl. at 331, 594 F.2d at 830; see also Voqe v.
United States, 844 F.2d776,782 (Fed. Cir.) (The "court does not function as 'a sort of
super Correction Board."'(quoting Reale v. United States,208 Ct. Cl. 1010, 1013, 529
F.2d 533, cert. denied,429 U.S.854 (1976))), cert. denied,4SB U.S.941 (1988).
Moreover, "military administrators are presumed to act lawfully and in good faith like
other public officers, and the military is entitled to substantial deference in the
governan@ of its affairs." Dodson v. United States. 988 F.2d 1199, 1204 (Fed. Cir.),
reh'q denied (Fed. Cir. 1993). "'[J]udges are not given the task of running the Army."'
Antonellis v. United States,723 F.3d 1328, 1332 (Fed. Cir. 2013) (quoting Orloff v.
Willouqhbv,345 U.S.83,93 (1953)). The United States Supreme Court, however, has
also stated:
Normally, an agency rule would be arbitrary and capricious if the agency
has relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise. The reviewing court should not
attempt itself to make up for such deficiencies; we may not supply a
reasoned basis for the agency's action that the agency itself has not given.
SEC v. Chenery Corp.. 332 U.S. 194, 196 (1947) treh'q denied and reh's
denied sub nom. SEC v. Fed. Water & Gas Corp. (1947)1. We will,
however, "uphold a decision of less than ideal clarity if the agency's path
may reasonably be discerned." Bowman Transp.. lnc. v. Arkansas-Best
Freiqht Svstem, Inc., 419 U.S. 1281,1286, 95 S. Ct. 438, 42 L. Ed. 2d 447
[(1974)]. See also Camp v. Pitts. 411 U.S. 138, 142-143,93 S. Ct. 1241,
36 L. Ed. 2d 106 (1973) (per curiam).
Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.. 463 U.S. 29'
43-44 (1983) (other citations omitted); see also SKF USA lnc. v. United States, 630
F.3d 1365, 1373 n.3 (Fed. Cir. 201 1)). In sum, as a Judge of the United States Court of
Federal Claims explained in Verbeck v. United States:
The court's review in these matters is thus limited in scope and deferential
in nature. Ms. Verbeck must show that the Board's decision was arbitrary
and capricious, contrary to law, or unsupported by substantial evidence.
See Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir.2005)
tcert. denied, 546 U.S. 1066 (2005)l; Godwin v. United States, 338 F.3d
1374, 1378 (Fed. Cir.2003); Heisiq [v. United States],719 F.2d [1153'
'1 156 (Fed. Cir. 1983)1. . . . The Board's decision will comply with the
substantial evidence standard so long as a "'reasonable mind might
accept' [the] particular evidentiary record as 'adequate to support [the
contestedl conclusion."' Dickinson v. Zurko, 527 U.S. 150, 162, 119 S. Ct'
1816, 144 L. Ed. 2d 143 (1999) (quoting Consolidated Edison Co. of N.Y'
v. NLRB. 305 U.S. 197, 229,59 S. Ct. 206, 83 L. Ed. 126 (1938)).
Similarly, the arbitrary and capricious standard "requires a reviewing court
16
to sustain an action evincing rational reasoning and consideration of
relevant factors." Advanced Data Conceots. lnc. v. United States. 2't6
F.3d 1054, 1058 (Fed. Cir.[), reh'q denied (Fed. Cir. 2000)1.
In sum, the court must satisfy itself that the Board considered all of the
relevant evidence and provided a reasoned opinion that reflects a
contemplation of the facts and circumstances pertinent to the case before
it. See Heisio. 719 F.2d at 1157 ("Under the substantial evidence rule, all
of the competent evidence must be considered, whether original or
supplemental, and whether or not it supports the challenged conclusion.");
Van Cleave v. United States. 70 Fed. Cl.674, 678-79 (2006) (While the
court does not "serve as a 'super correction board[,]' Skinner v. United
States. [219 Ct. Cl. at 3311 . . . correction boards must examine relevant
data and articulate satisfactory explanations for their decisions.") (citations
omitted). lf the Board "entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the
evidence before the [Board], or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise[,]" its
decision runs afoul of even this lenient standard of review. Motor Vehicle
Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. lns. Co.. 463 U.S. 29,
43, 103 S. Ct.2856, 77 L. Ed. 2d 443 (1983).
Verbeck v. United States, 97 Fed. CL443,451 (2011) (second omission in original); see
also PAI Coro. v. United States,614 F.3d 1347,1351 (Fed. Cir.2010) (citing Advanced
Data Concepts. lnc. v. United States, 216 F.3d at 1058).
Plaintiff alleges that the ABCMR "failed to redress clear injustice" in that the
government 'Tailed to obey regulations and the statutes governing the involuntary
activation of IRR members" because the government "failed to demonstrate the plaintiff
had a duty to attend battle assembly periods . . subsequent to the plaintiff being
discharged out of the US Army Ready Reserve into the lRR." The ABCMR concluded
that plaintiff had a duty to attend battle assembly periods after being transferred to the
Individual Ready Reserve. The ABCMR found plaintiff
received a Failure to Report for Annual Training notification from his
commanding officer dated 19 December 2006. The notification states he
failed to attend battle assembly on 15, 16, and 17 December 2006' in
accordance with Annual Training Order Number 011942, dated 29
November 2006. He was told that under the provisions of Army Regulation
135-91, he was required to attend all scheduled battle assemblies and
annual training periods. He was also told thal unless the absences were
excused, he would have accumulated 4 unexcused absences with a 1
year period and if he accumulated 9 unexcused absences within 1 year'
he would become an unsatisfactory participant and be processed for
separation from the Selected Reserve either by reassignment or
discharge.
17
The record supports the ABCMR's conclusions about plaintiffs duty to attend
battle assembly perioOi after plaintiff was transferred to the Individual Ready Reserve.e
The ABCMR cited to the May 31, 2007 counseling statement Lieutenant Colonel
Nadolski sent to plaintiff. Lieutenant Colonel Nadolski made clear that plaintiff remained
a part of the Military Intelligence Augmentation Detachment, and that Lieutenant
Colonel Nadolski would not consider transferring plaintiff until he fulfilled his obligations,
including attending battle assemblies. The May 31, 2007 counseling statement
recognized plaintiffs representation that he had moved from Tucson, Arizona to
Michigan. The ABCMR, however, noted plaintiff 'was told thal under the provisions of
Army Regulation 135-9'1, he was required to attend all scheduled baftle assemblies and
annual training periods." Army Regulation 135-91 provides that "[s]oldiers will be
charged with unsatisfactory participation when without proper authority they - (1)
Accrue in any one-year period a total of nine or more unexcused absences from
scheduled inactive duty training (lDT)s." Army Reg' 135-91 lJ 4-12 (2005). The ABCMR
correctly applied Army Regulation 135-91when it considered plaintiff's receipt of a
"Lefter of Instruction" on October 29,2007, directing plaintiff to attend all scheduled unit
training assemblies, and informing plaintiff that he would accrue 20 unexcused
absences within a one year period if he did not submit a proper excuse for his four
october 20-21, 2OO7 training assembly absences. Even assuming plaintiff had been
properly reassigned to the Individual Ready Reserve on February 28, 2007, he still
would have had a duty to attend training subsequent to February 28,2007 under Army
Regulation 135-91. See Army Reg. 135-91 fl 4-6(b) (2005) ('An IRR soldier will be
det,ermined to be an unsatisfactory participant subject to the enforcement provisions of
chapter 6, under the following conditions: (1) When ordered to AT if, without proper
authority, the soldier fails to attend or complete the entire period of AT."). Plaintiff failed
to attend training multiple times, and accumulated over nine unexcused absences
during a one-year Period.
Furthermore, the ABCMR found, in part:
4. There is no evidence in the available record, nor has he [plaintifl
submitted any evidence, showing that his request to be excused from
battle assembly was aPProved.
5. Although orders were published reassigning him to the USAR Control
Group (R-einforcement) on 28 February 2007, he was notified in March
2007 that his request was denied and that he was still a member of the
MIAD and expected to attend training. The records show he continued to
s
As noted above on February 28,2007, the Military Intelligence Readiness Command
sent plaintiff Order Number 07-059-0000'l reassigning plainliff from his_ current
assignment to the Control Group Reinforcement, part of the Individual Ready Reserve,
due-to misconduct. Later that same day, February 28,2007 the Military Intelligence
Readiness command revoked plaintiff's reassignment with order Number 07-059-
00003. because as the ABCMR indicated, order Number 07-059-00001 was
"apparently issued in error."
18
show disrespect to members in his chain of command. His records were
flagged and he should not have been reassigned. Orders were published
in June 2007 reassigning him to the MIAD. His contention that he never
received the orders is not supported by the evidence of record.
Plaintiff also claims that the Army "had no lawful authority to effect an involuntary
activation of the plaintiff by 'revoking' the orders placing plaintiff into the IRR'" In
addition, plaintifi alleges that the ABCMR
did not assert the argument that regulations allowed the "revocation" of
orders transferring plaintiff into the IRR they only stated the orders
appeared to be "issued in error, yet overwhelming evidence in the
Administrative Record indicates the orders were intentionally issued and
fully executed hence the plaintiff was in the IRR; no authority existed to
involuntarily activate an IRR member by way of "revoking" the initial orders
of the plaintiff.
Plaintiff is correct that the ABCMR commented that the February 28, 2007 orders
assigning plaintiff to the Individual Ready Reserve were "apparently issued in enor,"
anO tnai,lalmough orders were published reassigning" Mr. Mcclellan to the- IRR were
issued on ?8 February 28, 2OO7 , he was notified in March 2007 that his transfer request
was denied and that he was still a member of the Military Intelligence Augmentation
Detachment and expected to attend training. The ABCMR noted that "his records were
flagged and he should not have been reassigned." The orders transferring plaintiff into
thJlndividual Ready Reserve were not valid because of plaintiff's flag or suspension of
favorable personnei actions. The transfer orders were revoked for that reason- The
ABCMR's statement that plaintiffs "records were flagged and he should not have been
reassigned'was based on Army Regulation 600-8-2' which provides that
[s]uspension of favorable personnel actions is mandatory when an
investigation (formal or informal) is initiated on a soldier by military or
civilian authorities. Flags are classified into the two categories described
below, depending upon the specific action or investigation a. Non-
transferable. The flag may not be transferred to another unit (except
where consistent with paragraph 1-15).
Army Reg. 600-8-211 1-11(a) (2004).
As previously explained by a Judge of the court of Federal claims, "[i]n military
records, a flag is 'initiated immediately when a soldier's status changes from favorable
to unfavorable,' Army Reg. 600-8-2 1T 1-10a, and results in a '[s]uspension of favorable
personnel actions,' id. fl i-t t, for the soldier subject to the flag." Hale v. U-nited States,
toz r.o. cl. at 341 n2; see also Boone v. United states, 53 Fed. Cl. 731 ("According to
Army Regulation ('AR') 600-8-2, the Army will issue a flag 'when an unfavorable action
or investfuation (formal or informal) is started against a soldier by military or civilian
authoritieJ.' AR 600-8-2 g 1-11 (Nov. 30, 1987) . . . . The purpose of the flagging
19
system is 'to guard against the accidental execution of specified favorable personnel
actions for soldiers not in good standing.'S 1-8.), vacated, 78 F. App'x 108 (Fed. Cir.
2003).
Plaintiff received a flag because he was absent without leave. In the May 31,
2007 counseling statement, Lieutenant Colonel Nadolski explained the flag process to
plaintiff, and how to remove the flag. Lieutenant Colonel Nadolski informed plaintiff that
,,[y]our flag can be lifted after you begin to perform to standard." Plaintiff did not claim to
the ABCMR, and does not claim to this court, that any Army Regulation 600-8-2 fl 1-15
exceptions apply to his case.lo Although the ABCMR did not cite Army Regulation 600-
8-2, the Board of Inquiry's finding that plaintiff had a duty to attend baftle assemblies
after the February 28,2007 Individual Ready Reserve transfer orders due to plaintiffs
non{ransferable, pre-existing flag voiding those orders, is supported by Army
Regulation 600-8-2 and substantial evidence. The ABCMR also examined the relevant
evidence as to plaintiffs training responsibilities and failed attendance, and correctly
applied Army Regulation 135-91 and Army Regulation 600-8-2 to determine plaintiff had
a'duty to attend the battle assemblies. The ABCMR's decision was not arbitrary or
capriCious, unsupported by substantial evidence, or contrary to law, and is supported by
the Administrative Record.
Moreover, according to Army Regulation 140-10, 'MUSARC [Major United states
Army Reserve Command] commanders may reassign or attach soldiers under their
command to . . . [t]he appropriate IRR control group." Army Reg. '140-10 fl 1-5(c) (2005)'
The Military tnteiligence Readiness Command commander is a Major United States
Army Reserve Command. The commander had the authority to transfer plaintiff to the
lndividual Ready Reserve. Under Army Regulation 600-8-105 11 2-21, "[o]nly the
organization thai published the original order may amend, rescind, or revoke the order."
10
Army Regulation 600-8-2 11 1-15(cX5) states that, "Flagged soldiers may be
reassigned ti- (a) fne flag is based on APFT [Army Physica! f]!n":: Testl failure. (b)
The flig is based on entry in the weight control program. (c) The flag case is in the
punishient phase with no restraints on liberty imposed by civil court, court-martial, or
Articte tS. (d) Reassignment is deemed necessary by installation or major overseas
commanders'(within th;ir command) for the maintenanc,e of discipline, morale, and unit
order." Army Reg. 600-8-2 tl 1-15(c)(5) (2004); see also Army Reg. 600-8-2 fl 2-5
(2004) ("NoimalVl sodiers with 'open'flag cases are not reassigned"); Army Reg' 600-
d-Z 1'Z-O (contains Table 2-3, which provides steps required for transferring a flag).
Upon review of the Administrative Record none of the steps identified in Army Re_g. 600-
glZ f-Z-A were followed in plaintiffs case, which may explain why Paragraphs 2-5 and
z-o ot Rrmy Reg. 600-8-2 (2004) are not included in the Administrative Record. For
purposes oi tnis-opinion, the court cites to the Army Regulation in effect at-the time of
ihe' events in question. The court notes, however, a 2012 version of the Army
Regulation provides that Soldiers with a nontransferable flag cannol be re_assigned into
th;individu;t ready reserve. See Army Reg. 600-8-2 11 3-1(bX2) (2012) ("Soldiers with
a nontransferable Flag may not be reassigned into the individual ready reserve or
inactive National Guard.").
20
Therefore, the Military Intelligence Readiness Command, which issued the order, had
authorig to revoke the order. See Army Reg. 600-8-105112-21 (1994). Consequently,
the ABCMR's findings regarding the revoked February 28, 2007 orders assigning
plaintiff to the Individual Ready Reserve were.not arbitrary or capricious, unsupported
by substantial evidence, or contrary to applicable law.'
Plaintiff also asserts that the ABCMR ened in upholding his discharge on the
grounds that the Board of Inquiry did not follow the reasonable commuting distance
provisions of Army Regulation 140-'10 or properly consider "conflicted" testimony or
dates in the Administrative Record regarding plaintiffls request to transfer to a local unit.
Plaintiff alleges that:
AR 140-10, 1-10, par. (1) which states that reserve assignments "MUST
BE" within 50 miles of an Officers [sic] residence; the Board for Correction
failed to redress injustice by ignoring the administrative record in this
regard; plaintiff clearly requested transfer to a local unit by electronic mail
communication and by written correspondence significantly in advance of
missing any battle assembly period; the administrative record
demonstrates that Lieutenant-Colonel Nadolski acknowledged under oath
this demand to transfer to a local unit was submitted in writing prior to any
"flagging" action, even though the "flagging" action for "misconduct" was
used by him as a premise to deny the transfer request; sworn testimony
by LTC Nadolski submitted to the board of inquiry regarding the request to
transfer conflicted with sworn testimony of Captain Orlandella in this
regard and may be evidence of perjury by Captain Orlandella.
(footnote omitted; capitalization in original).
Plaintiff alleges that, with respect to his transfer request, the ABCMR refused to:
consider the date sequences of submitted evidence as relevant (AR 15)
and the findings ofthe board should be set-aside because the defendant's
own statements in conjunction with the administrative record is positive
demonstrative that regulation was summarily violated and that the ABCMR
clearly ignored this disregard for law and regulation by the board of
officers.
11
Although not raised by plaintiff before the ABCMR, plaintiff now alleges the order for
transfer to the IRR was "fully executed" prior to revocation. According to the
Administrative Record, the Military Intelligence Readiness Command, the same orders
issuing authority that published the orders transferring plaintiff to the lRR, subsequently
revoked those orders the same day. As defendant correctly notes, "[b]oth orders were
issued by the same authority, addressed to the same individuals, on the same date, and
issued within two transactions of each other." Therefore, plaintiff's contention that the
order was "fully executed" is not supported by the record.
21
Plaintiff argues that the ABCMR "did not challenge the premise that a transfer
request was made, nor did the immediate Reserve commander of Plaintiff deny
receiving a request to transfer." (internal citations omitted). The ABCMR examined
plaintiffs November 30, 2006 e-mail to Captain Orlandella and found that, "[o]n 30
November 2006, the applicant [plaintiff] submitted a request to be excused from battle
assembly on 15, 16, and 17 December 2006, which he [plaintiffl contends was also a
formal request for reassignment. On 21 December 2006, he was flagged as a result of
receiving the LOR [Letter of Reprimand]." Plaintiffs immediate Reserve Commander,
Captain Orlandella, indicated that "[w]hat I received was not a request. 2LT McClellan
informed me that he would not be present." The November 28,2OO6 and November 29,
2006 emails between plaintiff and Captain Orlandella are consistent with Captain
Orlandella's statement. Plaintiffls initial Novembet 28, 2006 email stated, "[flor the
December BA [Battle Assembly] | will be in DC & then home to Michigan for Christmas,
I request an excused absence for the month. I will do extra days after my classes are
finished in May." Captain Orlandella responded the same day, explaining that "[w]e
have mandatory briefings in DEC and would like to see everyone present. Your place of
duty is here during BA unless properly excused. You should never make arrangements
for travel until RST [Rescheduled Training] request forms are signed and approved by
me."
In the November 30, 2006 letter to Captain Orlandella, plaintiff also stated "[i]n
the event above RST is denied, this letter is to serve as official request for reassignment
within the USAR and/or the MIAD." The ABCMR found that plaintiffs
transportation to and from training was reimbursed. He has failed to
provide evidence showing that any of the actions taken against him was
the result of his desire to be reassigned to another unit or that the board of
officers failed to comply with applicable regulations. He was told that the
flag would be lifted once he started fulfilling his service obligation and
although he contends that he had every intention of doing so, it does not
appear that he did.
The ABCMR's analysis is supported by substantial evidence in the Administrative
Record and by Army Regulation 140-10. Army Regulation '140-10 fl 1-10(a) (2005)
provides that a "reasonable cpmmuting distance is defined as the longest distance a
USAR soldier can be expected to travel involuntarily between his or her residence and a
site where inactive duty training (lDT) will be conducted. (1) For officers . . . and enlisted
soldiers, it is a distance within a SO-mile radius of the IDT site. lt will not exceed 1 1/2
hours of travel time one-way by car under average traffic, weather, and road
conditions." Defendant argues that Army Regulation 140-10 1T 1-8 demonstrates that the
ABCMR did not en by failing to conclude that the Army violated Army Regulation 140-
10, Under Army Regulation 140-10 !J 1-8(a) and fl 2-6, a solider may.request transfer or
aftachment to another Army Reserve unit in four different ways. '' Plaintiff has not
12
See Army Reg. 140-10 fl 2-6(a) (2005) ('A soldier may request assignment to a
USAR unit by doing one of the following: (1) Applying personally to the unit of choice.
22
shown that he used any of the four ways. Although plaintiff alleges that he "clearly
requested transfer to a local unit by electronic mail communication and by written
correspondence," there is no evidence that plaintiff signed the proper transfer request
form, which the regulation requires. See Army Reg. 140-10 11 1-8(a) (2005). As
defendant correctly notes, "[n]one of the available options include written lefter or email
correspondence.' Plaintiffs request was not in the proper format, nor does plaintiff
contend he signed the required transfer request form. See Army Reg. 140-10 fl 1-8(a).
Furthermore, at no point does plaintiff allege that a commander, Captain Orlandella or
otherwise, approved his request for transfer.
Even if plaintiff had properly requested a transfer, the ABCMR found that at the
time plaintiff alleges he requested a transfer, his "records were flagged and he should
not have been reassigned." Plaintiffls allegations that the ABCMR failed to properly
consider conflicting testimony regarding plaintiffs "demand to transfer to a local unit"
and the date sequences of flagging also are unsupported in the record. With respect to
the date sequences of flagging, the ABCMR considered: (1) plaintiffs November 30,
2006 e-mail requesting to be excused from battle assemblies; (2) plaintiffs December
21,2006 flag; (3) Lieutenant Colonel Nadolski's May 31, 2007 counseling statement
reminding plaintiff that the fact that plaintiff had moved from Tucson, Arizona lo
Michigan was irrelevant because he was still assigned to the MIAD unit and his traveling
expenses were reimbursable; and (4) plaintiffls June 6, 2007 e-mail to Lieutenant
Padilla asking for a transfer to a closer-commute unit due to plaintiffs move to Michigan.
The Administrative Record demonstrates that plaintiffs request to transfer to a local
Michigan unit, whether or not proper, was not received until after his flag was imposed.
At the time his flag was imposed, plaintiff lived in Tucson, Arizona. Therefore, the
ABCMR did not ignore or the date sequences of flagging, nor did the ABCMR fail to
consider the testimony regarding plaintiffs demand to transfer to a local unit.
Plaintiff asserts that his assignment to the MIAD unit was never voluntary, but
that if it was, he revoked his consent by requesting a transfer, thus, triggering immediate
approval under Army Regulation 140-10. Plaintiff is incorrect in both respects. The
Administrative Record indicates that plaintiff volunteered to join the MIAD unit in
Phoenix, Arizona when he lived in Tucson, Arizona. lf plaintiff traveled that distance
voluntarily, there was no misapplication of Army Regulation 140-10 fl 1-10 because that
regulation defines a "reasonable commuting distance" as "the longest distance a USAR
soldier can be expected to travel involuntarily between his or her residence and a site
where inactive duty training . . . will be conducted." Army Reg. 140-10 fl 1-10(a).
(2) Sending a written request for assignment orders by following the procedures
described in paragraph 1-8a(1). (3) Contacting a recruiter at the local U.S. Army
recruiting office . . . Ior] (4) Accepting an assignment on release from AD (Active Army
or USAR AGR [Active Guard and Reserve] status) via the Reserve Component
Transition or Reenlistment noncommissioned officer (NCO) located at most active
military installations."); Army Reg. 140-10 fl 1-8(a)(1) (2005) (providing that Department
of the Army Form 4651 (Request for Reserve Component Assignment or Attachmenl)
should be used for requesting transfer, assignment, or attachment orders in writing).
23
Furthermore, there is no evidence in the Administrative Record or Army
Regulation 140-10 that a request to transfer to a closer geographical unit "should have
been granted immediately." The ABCMR considered plaintiffs November 30, 2006 letter
to Captain Orlandella requesting that he be excused from the December 15-17,2000
battle assemblies. In this letter, although plaintiff partially quotes the relevant regulation
for rescheduling haining, Army Regulation 140-1, plaintiff leaves out a portion of the
regulation which gives the unit commander the discretion to approve an absence and
reschedule soldier training. See Army Reg. 140-1 fl 3-12(eX1) (2004) ("[E]mployment
conflicts, overtime, schooling, loss of income, verified medical problems or personal
emergencies, may in the judgment of the unit commander, justify RST authorization.").
Plaintiffs commander, Captain Orlandella, repeatedly denied plaintiffs request to be
excused from training. For example, the May 31,2OO7 counseling statement makes
clear that no transfer request would even be considered until after plaintiff fulfilled his
obligations to the unit. Additionally, the October 29,2007 "Letter of Instruction" warning
plaintiff about unexcused absences and explaining proper excused absence request
procedures. There is no evidence in the Administrative Record that plaintiff provided
any evidence to the ABCMR that any request by plaintiff to transfer or request to be
excused from any battle assemblies was ever approved, or that the flag on his file was
removed. Nor does plaintiff provide any such evidence to this court. As noted above,
plaintiff never alleges that his commander approved any request for transfer. Therefore,
the ABCMR's determination that plaintiff missed scheduled training events was not
arbitrary or capricious, unsupported by substantial evidence, or contrary to applicable
law.
Plaintiff also asserts that the Board of Inquiry unlawfully "permitted the
submission of a telephone wiretap/recording to the board of separation that appears to
be obtained through the commission of a felony under state laws barring the recording
and transmission to third parties of telephone conversations without authorization of all
parties." (footnote omitted). The ABCMR generally found that plaintiff "failed to provide
evidence showing that any of the actions taken against him was the result of his desire
to be reassigned to another unit that the board of officers failed to comply with
applicable regulations." Defendant notes that "Mr. McClellan cites to no evidence to
support this allegation and the evidence of record is completely devoid of any
supportive evidence."
The summary transcript from the Board of Inquiry hearing indicates that a
memorandum outlining a telephone conversation plaintiff had with an officer was
submitted into evidence. The transcript references a "[t]elephone conversation with 2LT
McClellan" contained in "Government Exhibit 9." Government Exhibit 9 submitted to the
Board of Inquiry is a written memorandum by Major G. Lawrence Lamb lll summarizing
his recollection of a phone conversation he had with plaintiff. As defendant notes the
exhibit is not a telephonic recording or wiretap. As there was no wiretap or commission
of a felony, the ABCMR's decision that the Board of Inquiry did not commit error or
injustice or violate plaintiffs rights was not arbitrary or capricious, unsupported by
substantial evidence, or contrary to law.
24
Plaintiff further alleges that the Army "refused to produce any documentation
whatsoever, elucidating either the conduct of, or the outcome of the Board of
Inquiry . . . for approximately one year after the hearing." He also contends that the
ABCMR's decision to uphold his discharge under "Other than Honorable" conditions is
arbitrary since "the Board for Correction [ABCMR] failed to consider the substantial
harm caused to plaintiffs [sic] ability to seek redress due to this delay including
hindering the ability to challenge procedures, submit appeals prior to the finalization of
separation, or to locate or identify and question witnesses under oath." Defendant
alleges that the ABCMR did not err by finding "'no evidence of any violation
of . . . [plaintiffs] rights"' and that plaintiff "'provided insufficient evidence to substantiate
the contentions made within his appeal."
In plaintiffs case, the Board of Inquiry was appointed by the Military Intelligence
Readiness Command. The Board of Inquiry commenced on December 17, 2007, and
the Military Intelligence Readiness Command approved the Board of lnquiry's
recommendation to discharge plaintiff on September 30, 2008. Plaintiff appears to
allege that he received the documentation in December 2008, as plaintiff claims he
received the documents "approximately one year after the hearing." Defendant asserts
that "Mr. McClellan received the [Board of lnquiry] documents no more than 10 weeks
after approval. This delivery timetable comports with the applicable Army regulation."
The Administrative Record reflects that the Army authorities compiled the
documentation of the Board of Inquiry decision between the date of appointing authority
approval of plaintiffs Board of Inquiry decision in September 2008 and the general time
when plaintiff alleges he received the Board of Inquiry decision documentation in
December 2008.
The ABCMR explained the involuntary separation process and paraphrased
Army Regulation 135-175, stating,
[w]hen a board recommends the involuntary separation of an officer,
Headquarters, Department of the Army (Commander, U.S. Army Human
Resources Command (HRC) St. Louis) will, as appropriate, approve the
recommendations of the board and advise the commander concerned to
take necessary action to separate the officer. The president of the board
will ensure that the respondent is granted such time as is reasonably
necessary to prepare and present his case. Undue delay will not be
permitted and the case will be conducted as expeditiously as possible.
Army Regulation 135-175 provides that the president of the Board of Inquiry shall
"[e]nsure that the respondent is granted such time as is reasonably necessary to
prepare and present his case. Undue delay will not be permitted and the case will be
\
conducted as expeditiously as possible." Army Reg. 135-175 2-21(a) (1987). Army
Regulation 15-6, the applicable regulation governing the requirement to furnish a report
of Board of Inquiry proceedings to plaintiff, provides that:
25
[u]pon approval or other action on the report of proceedings by the
appointing authority, the respondent or counsel will be provided a copy of
the report, including all exhibits and enclosures that pertain to the
respondent. Portions of the report, exhibits, and enclosures may be
withheld from a respondent only as required by security classification or
for other good cause determined by the appointing authority and explained
to the respondent in writing.
Army Reg. 15-6 !J 5-10 (2006).13
Army Regulation 15-6 fl 5-10 does not contain a specific timeline for furnishing
documentation to the subject of a Board of Inquiry, nor does the Army Regulation
mandate, as plaintiff claims, that the documentation "be made available to respondent
immediately." Plaintiff does not cite to any other Army Regulation which compels
documentation be made immediately. The ABCMR noted that "cases will be conducted
as expeditiously as possible." Plaintiff asserts that "approximately one year" after the
Board of Inquiry commenced on December 17, 2007, plaintiff received the
documentation from the Army. Although plaintiff claims his ability to "seek redress due
to this delay including hindering the ability to challenge procedures, submit appeals prior
to the finalization of separation, or to locate or identify and question witnesses under
oath," was hampered by what he alleged was delay in receiving the documentation, he
raised these allegations with the ABCMR. Furthermore, plaintiffs appeal rights were not
harmed as plaintiff claims. Under Army Regulation 135-175,
[a]n officer has the right to appeal an unfavorable action under this
regulation which affects his military status An appeal will be
submitted in writing by the individual concerned within 15 days of
notification of adverse action. The application will state the reason for the
appeal and explain the facts pertinent to his case that he feels were not
fully considered, including any additional evidence he may wish to
present. The appeal will be submitted for reconsideration, through
channels, to the authority who originally took the final unfavorable action.
lf that authority does not grant the appeal, it will be forwarded as follows:
(1) lf the original final authority was the area commander, the appeal will
be forwarded to the commander, U.S. Army Human Resources Command
(HRC).
Army Res. 135-175 11 1-12(b) (1987).
As noted above, on March 6, 2009, the Commander of the United States Army
Reserve forwarded plaintiffs Board of Inquiry separation results to the commander of
the United States Army Human Resources Command requesting final action, and on
13
Although defendant incorrectly asserts twice that "[t]he ABCMR referenced the
applicable Army regulation (Army Reg. 156)." The ABCMR did not reference Army
Regulation 15-6 in its decision.
26
October 9, 2009, the United States Army Human Resources Command approved the
Board of Inquiry's recommendation to discharge plaintiff. Plaintiff, therefore, had fifteen
days from the October 9, 2009 date to file a notice of appeal. His ability lo appeal was
not hampered, as plaintiff indicated that, in December 2008, he received materials from
the Board, apparently one year after the Board met, and could have spent from
December 2008 until October 24, 2009, to prepare for any appeal relating to his
separation board proceedings. The ABCMR properly determined that Mr. McOlellan
"provided insufficient evidence to substantiate the contentions made within his appeal."
Moreover, the ABCMR concluded that '[t]here is no evidence of any violation of the
applicant's rights." In the record before the court, there is no evidence that ABCMR
decision was made arbitrarily or capriciously, unsupported by substantial evidence, or
contrary to law.
Plaintiff further alleges that he was "denied due process of law by the refusal of
the Defendant to provide for expenses for transport to the board of separation hearing."
The ABCMR determined that plaintiff did not demonstrate "that the board of officers
failed to comply with applicable regulations." The ABCMR determined that plaintiff "has
not shown error or injustice in the action taken by the board of officers." Therefore, the
ABCMR concluded that '[t]here is no evidence of any violation of the applicant's rights."
Defendant argues that "Mr. McClellan was not denied due process of law because the
Army did not agree to pay his expenses to attend the board of separation hearing,"
because the Army Regulations permit plaintiff to bring his case at his own expense and
the 'ABCMR record of proceedings and the evidence of record establish that Mr.
McClellan was advised of these rights at the initiation of his separation action and then
again by the Judge Advocate prior to the separation board hearing."
Army Regulation 135-175 11 2-'17(a) states in part, "[t]he area commander
convening the board of officers will notify the officer of his right to . . . (3) Present his
case before a board of officers at personal expense." Army Reg. 135-175 tl 2-17(a). As
is reflected multiple times in the record before the court, plaintiff was advised of this
right to present evidence at his own expense. For example, in the August 2007
"Notification of Pending Involuntary Separation Action" addressed to plaintiff, the
notification specifically refers to Army Regulation 135-175 and states that plaintiff has
the right to "[b]e present at the board of officers, at your own expense, and be allowed a
reasonable period of time for preparing your case." (emphasis added). Plaintiff was
aware he would have to travel at his own expense as a December 2007 email to JAG
attorney Giblin makes clear. Plaintiff wrote to JAG attorney Giblin, in part: "lf the
government cannot, or refuses to provide transportation, I have no means of attending,
despite my sincere wish to attend indeed." Although plaintiff claimed before the ABCMR
that his former counsel wrote a letter to Arizona State Bar that "he has never before
seen a unit refuse to pay for transport of a defendant to an administrative hearing,"
plaintiff cites to no Army Regulation or any other source for support. As Army
Regulation 135-175 ll 2-17(a) provides for plaintiff to present his case as his own
expense, there is no evidence that ABCMR's determination that plaintiffs due process
rights were not violated was made arbitrarily or capriciously, unsupported by substantial
evidence, or contrary to law
27
Furthermore, to the extent that plaintiff bases his due process claim on the claims
arising under the Due Process clause of the Fifth Amendment to the United States
Constitution this court does not possess jurisdiction to consider such claims. The only
reference to the Fifth Amendment in plaintiffs submissions to this court is in the first
paragraph of plaintiffs amended complaint, which states: "The jurisdiction of the court is
predicated on 28 U.S.C. S 1491(aXl) and 37 U.S.C. S 206 (a) (2) and the 5th
Amendment of the United States Constitution." The United States Court of Appeals for
the Federal Circuit has consistently held that this court does not possess jurisdiction to
consider claims arising under the Due Process clauses of the Fifth and Fourteenth
Amendments. See Crocker v. United States,125 F.3d 1475, 1476 (Fed. Cir. 1997)
(citing LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995)) (finding no
jurisdiction over a due process violation under the Fifth and Fourteenth Amendments);
see also Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.) ("The law is well
settled that the Due Process clauses of both the Fifth and Fourteenth Amendments do
not mandate the payment of money and thus do not provide a cause of action under the
TuckerAct." (citing LeBlancv. United States,50 F.3d at 1028), cert. denied, 134 S. Ct.
259 (2013); In re United States,463 F.3d 1328, 1335 n.5 (Fed. Cir.) ("[B]ecause the
Due Process Clause is not money-mandating, it may not provide the basis for
jurisdiction under the Tucker Act."), reh'q and reh'q en banc denied (Fed. Cir. 2006),
cert. denied sub nom. Scholl v. United States, 552 U.S. 940 (2007); Acadia Tech.. Inc.
& Global Win Tech.. Ltd. v. United States, 458 F.3d 1327, 1334 (Fed. Cir. 2006); Collins
v. United States, 67 F.3d 284, 288 (Fed. Cir.) ("[T]he due process clause does not
obligate the government to pay money damages."), reh'q denied (Fed. Cir. 1995);
Mullenbero v. United States, 857 F.2d 770,773 (Fed. Cir. 1988) (finding that the Due
Process clauses "do not trigger Tucker Act jurisdiction in the courts"); Murrav v. United
States, 817 F.2d 1580, 1583 (Fed. Cir. 1987) (noting that the Fifth Amendment Due
Process clause does not include language mandating the payment of money damages);
Harperv. United States, 104 Fed. Cl.287,291 n.5 (2012); Hampel v. United States, 97
Fed. Cl. 235,238, aff d,429 F. App'x 995 (Fed. Cn.2011), cert. denied, 132 S. Ct. 1105
(2012); McCullouqh v. United States, 76 Fed. Cl. 1,4 (2006) ("[N]either the Fifth
Amendment Due Process Clause . . . nor the Privileges and lmmunities Clause provides
a basis for jurisdiction in this court because the Fifth Amendment is not a source that
mandates the payment of money to plaintiff."), appeal dismissed, 236 F. App'x 615
(Fed. Cir.), reh'q denied (Fed. Cir.), cert. denied, 552 U.S. 552 (2007). Due process
claims "must be heard in District Court." Kam-Almaz v. United States, 96 Fed. Cl. 84,
89 (2011) (citing Acadia Tech., lnc. & Global Win Tech.. Ltd. v. United States,458 F.3d
at 1334), attd,682 F.3d 1364 (Fed. Cir. 2012);see also Hampel v. United States,97
Fed. Cl. at 238. To the extent plaintiff relies on the Fifth Amendment for his due process
claims, this court lacks jurisdiction.
Plaintiff also claims that the ABCMR erroneously upheld his discharge because
the ABCMR "failed to consider clear evidence that Article 138 complaint was ignored in
violation of the Uniform Code of Military Justice," and that the ABCMR misapplied
various alleged military customs and regulations when it upheld plaintiffs discharge on
"disrespect" grounds. Plaintiff alleges that the ABCMR "failed to consider complex
questions and precedent" regarding whether military regulations can be applied "'at all
28
times' to all inactive reservists" and did not consider "allowable definitions of duty for
Military Reservists." Plaintiff also alleges that the Army asserted that military regulations
applied to inactive reservists "as a justification for convening the separation action."
Plaintiff claims
the DOD has historically held the view that inactive reservists and guard
personnel are in fact "civilians first"; because of this historical view of the
DOD itself, it seems the board totally failed to consider an important
aspect of the problem and failed to address the objection of the plaintift
regarding jurisdictional questions and defining "misconduct" as simply
stating facts and opinions in this regard to commanders (while inactive),
and later responding to commanders with the view the commanders were
exceeding authority.
Regarding plaintiffs argument that the Board of Inquiry "failed to consider clear
evidence that an Article 138 complaint was ignored in violation of the Uniform Code of
Military Justice," plaintiff argues that he sent "a formal Article 138 request for redress to
then Captain Sandra Orlandella, LTC Joseph F. Nadolski, and then to [JAG attorney]
LTC Joseph Giblin. In violation of the UCMJ the command refused to process and
respond to this Article 138 complaint submission." Despite plaintiffs claims, nothing in
the Administrative Record demonstrates that plaintiff filed a proper UCMJ Article 138
complaint. Defendant correctly asserts that the only evidence plaintiff provided to the
ABCMR on this issue was a January 30, 2008 e-mail which does not constitute a formal
UCMJ Article 138 complaint. Therefore, the ABCMR did not fail to consider evidence of
plaintiffs alleged UCMJ Article 138 complaint, nor did the ABCMR uphold plaintiffs
discharge arbitrarily or capriciously, or without substantial evidence in the record.
Regarding plaintiffs charge that the ABCMR misapplied various military customs
and regulations when it discharged plaintiff, the ABCMR found:
The evidence of record shows that the emails he [plaintiffl sent to his
company commander commencing on 28 November 2006 were
disrespectful and as a result he was issued an [sic] LOR . . . . lAfterl
orders were published reassigning him [plaintiffl to the . . . IRR on 28
February 2007, he was notified in March 2007 that his request was denied
and that he was still a member of the MIAD [Military Intelligence
Augmentation Detachmentl and expected to attend training. The records
show he continued to show disresoect to members in his chain of
command. . . . There is no evidence of any violation of the applicant's
rights. He was an officer in the USAR [United States Army Reserve] and
was subject to laws and regulations pertaining to USAR officers. He had
an obligation to conduct himself as a USAR officer.
The ABCMR cited Army Regulation 135-175, which prescribes the policies and
procedures governing the separation of Army Reserve officers. The ABCMR found:
29
This regulation [Army Regulation 1 35-175] states no person has an
inherent right to continue service as an officer. The privilege of service is
his only as long as he performs satisfactorily. Responsibility for leadership
and example require effective performance of assigned duties and
exemplary conduct at all times. The Army has no place for officers who
cannot meet these requirements, and their involuntary separation is
essential. In view of the rapidity with which hostilities can now occur and
the attendant likelihood that an officer may be called to active duty on
short notice, the same standards of efficiency and conduct apply to
officers of all Reserve components.
The Administrative Record before the court supports the ABCMR's conclusions
regarding plaintiffs written disrespect to his superior officers. Army Regulation 135-175
provides for administrative jurisdiction over plaintiff when he was an inactive United
States Army Reserve officer. See Army Reg. 135-175 (1987) ("This regulation applies to
all officers of the Army National Guard of the United States and the U.S. Army Reserve,
except for officers serving on active duty or on active duty for training for a period in
excess of 90 days."). Plaintiffs assertion that the Army "framed" his conduct as
"disrespect" for "simply stating facts and opinions" and telling commanders they
"exceed[ed] [their] authority" is not supported in the Administrative Record. The ABCMR
referenced multiple e-mails from plaintiff to his superior and fellow officers evidencing
plaintiffs disrespectful and threatening statements including his November 29, 2006 e-
mail to Captain Orlandella, which contained the line, "l really appreciate the added
stress your [sic] giving me, without cause in the final weeks of this semester. l'll make
sure to repay in kind." The ABCMR also referenced plaintiffs March 8, 2007 e-mail to
Lieutenant Colonel Nadolski, telling him that he "can mind [his] own business on how I
choose to address anyone."
The Administrative Record also reflects the disrespect plaintiff demonstrated to
his superior officers. Lieutenant Colonel Joseph Francis Nadolski, plaintiffs Baftalion
Commander, December 19, 2006, "Letter of Reprimand" sent to plaintiff regarding the e-
mail correspondence between plaintiff and Captain Orlandella explained that Lieutenant
Colonel Nadolski found plaintiffs e-mails "very disrespectful," "disturbing," and
"threatening." Accordingly, Lieutenant Colonel Nadolski informed plaintiff that he was
transferring him to "the Individual Ready Reserve to be noted as an unfavorable action.'
Lieutenant Colonel Nadolski further warned plaintiff that if Lieutenant Colonel Nadolski
was "made aware of any information concerning this type of behavior between now and
your transfer into the lRR, I will take swifl action, possibly resulting in your punishment
. . . and/or your involuntary separation from the United States Army Reserves."
Subsequently, on March 8,2007, Lieutenant Colonel Nadolski sent plaintiff a
counseling statement informing plaintiff that he remained a member of the Military
Intelligence Augmentation Detachment because his transfer to the lndividual Ready
Reserve had not been approved. Lieutenant Colonel Nadolski further informed plaintiff
of annual training that would take place on April 21-22,2007. That same day, March 8,
2007, plaintiff e-mailed Lieutenant Colonel Nadolski, in which, although plaintiff initially
30
expressed remorse, he again made disrespectful statements. Plaintiffls email stated, in
part, "l regret the nature of the situation that has occured [sic] between myself and the
command, but stand by my actions that occured [sic] subsequent to my initial mistake of
sending an email in response to an email from CPT. Orlandella that I considered
disrespectful to myself." Plaintiff also stated that he "received a letter at my HOME . . .
accusing me of a serious crime that the command was fully aware was a false
accusation . . . . I made several requests to various members of the command after
initial possible misunderstands [sic] by email for a direct meeting, only to be ignored."
(capitalization in original). Regarding the counseling statement, plaintiff indicated "while
I am in citizen status, as I am now, you can mind your own business on how I choose to
address anyone. lf you don't like it, you can write your congressman and request the
law be changed." Plaintiff continued and instructed a superior officer, Lieutenant Colonel
Nadolski: "You have no authority to request any American citizen be subject to military
custom, courtesy and law." Therefore, plaintiff informed Lieutenant Colonel Nadolski, "l
will not be signing anything or attending anything until after [sic] further consultation with
legal representation . . . . Upon further consultation with legal representation, I will
contact you directly. I request all further communication from the unit or affiliated
personnel cease." Plaintiffs Officer Evaluation Report from August 3, 2006 to August 2,
2007, also noted that plaintiff was "disrespectful on several emails to his chain of
command and failed to comply with numerous direct orders." Given this long pattern of
disrespectful statements, the ABCMR correctly determined that plaintiff engaged in
misconduct.
In addition to the claims addressed, and rejected, on the merits above, defendant
contends that plaintiff also makes several allegations he did not raise before the
ABCMR. These claims include: Count 4 of the complaint, plaintiffs claim that the
ABCMR failed to comply with regulations permitting transfer "To Rehabilitate Where A
Problem Exists," count 8 of the complaint, violation of due process by ineffective
counsel, count 10 of the complaint, plaintiff's claim of a conflict of interest within the
Board of Inquiry, and count 11 of the complaint, plaintiffs allegation that Board of
Inquiry failed to provide plaintiff with an ethnic minority representative. Defendant is
correct that plaintiff did not assert the allegations in counts 4, 8, 10, and 11 before the
ABCMR. When a plaintiff fails to raise arguments before the ABCMR, he or she is
precluded from raising those arguments for the first time before this court. See Walls v.
United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009) (holding that judicial review of
decisions of military correction boards is review of the Administrative Record conducted
under the Administrative Procedure Act); Metz v. United States,466 F.3d 991, 999
(Fed. Cir. 2006) (holding that plaintiff waived his argument of ineffective counsel in front
of the United States Court of Federal Claims because he failed to raise the issue in the
first instance with the Air Forc,e Board for the Correction of Military Records); Murakami
v. United States, 398 F.3d 1342, 1354 (Fed. Cir. 2005) (holding that the Court of
Federal Claims conectly concluded that plaintiff waived his argument concerning his
father's constructive travel restriction by not first raising the argument with the
administrative agency); Spellissv v. United States, 103 Fed. Cl. 274, 283 (2012) ("When
a service member chooses first to petition a military correction board, the Court of
Federal Claims' review is limited to the administrative record.") (citations omitted);
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Neutze v. United States, 88 Fed. Cl. 763, 774-75 (2009) (citing Sanders v. United
States,219 Ct. C|.285, 594F.2d 804,811 (1979) ("ln evaluating a Board decision, the
court may not consider new arguments not raised before the Board."); see also Barnick
v. United States, 80 Fed. Cl. 545, 560 (2008) ("[t]he court will not consider materials that
were not presented to a review board"), affd, 591 F.3d 1372, 1374 (Fed. Cir. 2010)
(internal citations omitted).
Therefore, Mr. McClellan is precluded from bringing those claims, which were not
raised in the first instance at the administrative level, to this court because "[s]imple
fairness to those who are engaged in the tasks of administration, and to litigants,
requires as a general rule that courts should not topple over administrative decisions
unless the administrative body not only has erred but has erred against objection made
at the time appropriate under its practice." Metz v. United States, 466 F.3d at 999
(quoting United States v. L.A. Tucker Truck Lines. lnc., 344 U.S. 33, 37 (1952)). This
rule "ensures that agencies will have the opportunity to develop their positions and
correct their errors before an appeal." Villaqe of Barrinqton. lll. v. Surface Transp. Bd.,
636 F.3d 650, 655 (Fed. Cir.201 '1) (citing United States v. L.A. TuckerTruck Lines. lnc.,
344 U.S. at 37). Because plaintiff did not assert in the first instanc€ to the ABCMR his
allegations that his discharge was not lawfully based because the ABCMR failed to
comply with regulations permitting transfer, the Board of lnquiry had a conflict of
interest, the Board of Inquiry lacked ethnically representative members, or that plaintiffls
due process was violated by ineffective counsel, plaintiff has waived these claims and
this court does not have jurisdiction to review them.
As noted above, in plaintiffs Response and Cross-Motion for Judgment on the
Administrative Record plaintiff requests that if this court "finds a claim has not been
stated for which relief can be granted by the Court or if this honorable Court finds no
subject-matter jurisdiction plaintiff respectfully requests the case be transferred to the
Federal District Court for the District of Columbia." As noted by defendant, "Mr.
McClellan fails to assert any grounds, or offer any explanation for, the transfer of his
claims to the United States District Court for the District of Columbia." Although
defendant is correct that plaintiff failed to offer any arguments or explanation for why his
claims should be transferred to District Court, as plaintiff is proceeding pro se, the court
addresses the validity of a transfer to Federal District Court. Pursuant to 28 U.S.C.
$ 1631:
Whenever a civil action is filed in a court as defined in section 610 of this
titlela or an appeal, including a petition for review of administrative action,
la
Section 610 of Title 28 states:
As used in this chapter the word "courts" includes the courts of appeals
and district courts of the United States, the United States District Court for
the District of the Canal Zone, the District Court of Guam, the District
Court of the Virgin lslands, the United States Court of Federal Claims, and
the Court of lnternational Trade.
32
is noticed for or filed with such a court and that court finds that there is a
want of jurisdiction, the court shall, if it is in the interest of justice, transfer
such action or appeal to any other such court in which the action or appeal
could have been brought at the time it was filed or noticed, and the action
or appeal shall proceed as if it had been filed in or noticed for the court to
which it is transferred on the date upon which it was actually filed in or
noticed for the court from which it is transferred.
28 U.S.C. S 1631; see also Texas Peanut Farmers v. United States,409 F.3d 1370,
1374 (Fed. Cir. 2005). Therefore, "[t]ransfer is appropriate when three elements are
met (1) The transferring court lacks subject matter jurisdiction; (2) the case could have
been filed in the court receiving the transfer; and (3) the transfer is in the interests of
justice." Brown v. United States,74 Fed. Cl. 546, 550 (2006) (citing 28 U.S.C. S 1631);
see also Pleasant-Bev v. United States, 99 Fed. Cl. 363, 368 (2011), appeal dismissed,
464 F. App'x 879 (Fed. Cr.2012).
As noted by defendant, and as addressed above, the court has jurisdiction over,
and reviewed the merits of, counts 1,2,3,5,6,7, 9, and 12. The defendant confirmed
to this court that "[t]he Government acknowledges that the Court possesses jurisdiction
to entertain Mr. McOlellan's claims under 28 U.S.C. $ 1491(a)(1), in conjunction with 37
U.S.C. S 206(a)(2). "Therefore, transfer is inappropriate over those claims. For plaintiffs
remaining counts, counts 4, 8, 10, and 11, transfer is inappropriate because this court
determined plaintiff was precluded from bringing those claims which were not raised in
the first instance at the administrative level to this court. See Metz v. United States, 466
F.3d at 999. Plaintiff would face the same obstacle in the United States District Court for
the Dishict of Columbia, and, therefore, transfer would be futile and not in the interest of
justice. See Potter v. United States, '108 Fed. Cl. 544,548 (2013).
Alternatively plaintiff requests "[r]emand of case to the Army Board for Correction
of Military Records (ABCMR).' Defendant argues that "Mr. McClellan fails to explain or
offer any basis for his request for a remand of his claims to the ABCMR, which fully
addressed and resolved his claims. Mr. McClellan's 'alternative' requests for remand
and transfer should accordingly be rejected." The court agrees with defendant. The
court has ruled against plaintiff on counts '1, 2, 3, 5, 6, 7, 9, and 12. For the remaining
four counts, counts 4, 8, 10, and I 1 , plaintiff failed to raise those claims before the
ABCMR in the first instance. Plaintiff has provided no reason why plaintiff should be
entitled to bring the claims before the ABCMR on remand. Plaintiffs request for remand
is denied. Therefore, the court declines, either to transfer the case to the United States
District Court for the District of Columbia or to remand the case to the ABCMR.
28 U.S.C. S 610 (2012); see also Acceotance lns. Cos. Inc. v. United States, 503 F.3d
1328, 1332 n.4 (Fed. Cir.20O7).
33
CONCLUSION
Defendant's Motion for Judgment on the Administrative Record is GRANTED.
Plaintiffs Cross-Motion for Judgment on the Administrative Record is DENIED.
Plaintiffs requests to transfer his case to the United States Court for the District of
Columbia or to remand his case to the Army Board for Correction of Military Records
are DENIED. The Clerk of the Court shall enter JUDGMENT consistent with this opinion
dismissing plaintiff s complaint.
IT IS SO ORDERED.
Judge
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