Rogers v. United States , 124 Fed. Cl. 757 ( 2016 )

In the United States Court of Federal Claims
No. 15-359
(Filed: February 1, 2016)
)
JERET ROGERS, )
) Keywords: Military Pay; 37 U.S.C. § 204;
Plaintiff, ) Wrongful Discharge; Procedural
) Violations; Harmless Error
v. )
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
)
)
)
Charles W. Gittins, Law Offices of Charles W. Gittins, P.C., Washington, DC, for
the Plaintiff.
Courtney D. Enlow, Trial Attorney, Civil Division, United States Department of
Justice, Washington, DC, for Defendant. With her on the briefs were Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Robert E. Kirschman, Jr.,
Director, Steven J. Gillingham, Assistant Director, and Brian Judge, Chief, Office
of Claims and Litigation, U.S. Coast Guard, Of Counsel.
OPINION AND ORDER
KAPLAN, Judge.
This case is before the Court on the parties’ cross-motions for judgment on the
administrative record. Plaintiff, Jeret Rogers, was a member of the Coast Guard before he was
discharged from the service on March 1, 2012. He challenges a decision by the Coast Guard’s
Board for Correction of Military Records (“BCMR” or “the Board”) that refused to void the
discharge. According to Mr. Rogers, the BCMR’s decision was arbitrary, capricious, and
contrary to law because it failed to find that the Coast Guard violated its own regulations and
committed harmful procedural error in deciding not to retain Mr. Rogers in the service.
For the reasons set forth below, the Court agrees with Mr. Rogers that the Coast Guard
violated its procedural regulations when it effected his discharge, that such violations were not
harmless error, and that the Board’s decision to the contrary was arbitrary, capricious and
contrary to law. Accordingly, the government’s motion for judgment on the administrative
record is DENIED, and Plaintiff’s cross-motion is GRANTED.
BACKGROUND
I. Mr. Rogers’s Alcohol Related Incidents
Mr. Rogers enlisted in the United States Coast Guard on February 2, 1998. Admin. Rec.
(“AR”) at 8. He served in the Coast Guard for over fourteen years. At the time of his separation,
Mr. Rogers was working as an Electronics and Information Technology Configuration and
Logistics Support Manager with the Coast Guard’s Patrol Forces in Southwest Asia
(“PATSFORWA”). AR at 9; Compl. ¶ 3, ECF No. 1.
Under the Coast Guard’s Personnel Manual, a service member may be discharged for
unsuitability for alcohol abuse if he has two or more “alcohol incidents” notated on his military
record. U.S. Coast Guard Personnel Manual (“PERSMAN”) § 12.B.16.b; Def.’s Mot. for J. on
the Admin. R. (“Def.’s Mot.”) Regulatory App. (“RA”) at 3, ECF No. 8-1. An alcohol incident is
defined, in pertinent part, as “[a]ny behavior, in which alcohol is determined . . . to be a
significant causative factor, that . . . brings discredit upon the Uniformed Services, or is a
violation of the Uniform Code of Military Justice, Federal, State, or local laws.” PERSMAN
§ 20A.2.d; Def.’s Mot. RA at 5. After a service member’s first alcohol incident he is referred to
counseling and is “advised [that] an additional incident normally will result in discharge.”
PERSMAN § 20.B.2.g(2); Def.’s Mot. RA at 6. After a second incident, a service member “will
normally be processed” for separation. PERSMAN § 20.B.2.h; Def.’s Mot. RA at 6–7. The
Commanding Officer (“CO”), however, retains the authority to request the service member’s
retention. Id.
During his enlistment, Mr. Rogers was involved in two documented “alcohol incidents.”
Mr. Rogers’s first alcohol incident occurred early in his career with the Coast Guard, on October
21, 1998, when he was arrested and charged with driving under the influence in Newport News,
Virginia. AR at 8. As a result of this incident, the Coast Guard placed a Performance and
Discipline entry in his military record, and referred him for counseling. Id. At that time, the
Coast Guard found that Mr. Rogers was neither alcohol abusive nor alcohol dependent and took
no additional action. Compl. ¶ 5.
Although his military record includes other disciplinary actions that involved alcohol,
Mr. Rogers was not cited for a second alcohol incident until March 25, 2011, while deployed in
Bahrain. AR at 9. According to Mr. Rogers, two Coast Guard members observed him having
difficulty walking down the street and then urinating in a residential area of Bahrain, close to
where he was stationed. Compl. ¶ 6. He admits that although he had just returned to Bahrain
from the United States after a forty-one hour trip during which he took a Tylenol PM, he did
consume “a small amount of alcohol.” Id. ¶¶ 6, 10. According to the Coast Guard’s investigation
of the incident, Mr. Rogers attended a social gathering with other service members in the
evening of March 24, at which he consumed alcohol. AR at 138. That same evening, Mr. Rogers
also visited a bar at a local hotel. Id. at 139. It was on his way home at around 6:50 AM that his
CO, Captain Bauby, observed him on a public street having difficulty walking and then urinating
on the street or in a driveway. Id. Captain Bauby intercepted Mr. Rogers and attempted to escort
him back to and into his villa. Id. During this period, Mr. Rogers several times disobeyed
Captain Bauby’s orders that he sit down in front of the villa while assistance was secured to get
him into the villa. Id. at 140.
2
Coast Guard regulations provide that following an incident that could result in
nonjudicial punishment, such as an administrative discharge, the CO should assign a Preliminary
Inquiry Officer (“PIO”) to investigate the incident. U.S. Coast Guard Commandant Instruction
Manuals (“COMDTINST”) M5810.1D; AR at 22. Pursuant to those regulations, on April 17,
2011, a PIO was assigned to look into Mr. Rogers’s conduct on March 24 and 25. Def.’s Mot. at
8. The PIO conducted an investigation and issued a report that concluded that Mr. Rogers
“irresponsibly consumed a large amount of alcohol” which caused him to be publically
intoxicated, urinate in a public area, and disobey direct orders from his CO. AR at 144. The PIO
recommended that Mr. Rogers be cited for a second alcohol incident and be processed for
separation from the Coast Guard. Id. at 145.
II. The Separation Proceedings
A. Proceedings Before the Administrative Separation Board
On June 7, 2011, Captain Bauby notified Mr. Rogers that he had initiated an action to
separate him on the grounds of unsuitability. Id. at 174. He cited the two alcohol incidents as the
reason for doing so. Id.
Also on June 7, 2011, Captain Bauby submitted a letter requesting that Mr. Rogers be
retained notwithstanding the two alcohol incidents, as permitted by Coast Guard policy. Id. at 12;
166. The Command Request for Retention noted that Mr. Rogers had “diligently served the
Coast Guard . . . and performed superbly.” Id. at 166. He also cited mitigating factors including
the thirteen-year gap between alcohol incidents, Mr. Rogers’s long travel preceding the incident,
and Mr. Rogers’s commitment to abstain from drinking alcohol. Id. at 166–67.
The Coast Guard Personnel Center denied the CO’s request on June 10, 2011. Id. at 173.
It advised Captain Bauby that Mr. Rogers’s discharge would be held in abeyance pending
completion of proceedings before an Administrative Separation Board (“ASB”), id., which Mr.
Rogers had requested on May 10, 2011, id. at 176.
As described in the Coast Guard’s Separation Manual, service members with more than
eight years of service are entitled to have their separation reviewed by an ASB. PERSMAN
§ 12.B.31; AR at 22.1 The ASB is a “fact-finding body appointed to . . . render findings based on
the evidence obtained and make specific recommendations for use by Coast Guard separation
authorities.” COMDTINST M1910.2 § 1.A.1; AR at 23. The ASB’s scope of inquiry includes
“all matters relevant to the decisions before the separation authority.” COMDTINST M1910.2
§ 1.C.2; AR at 23. The ASB is intended to provide the service member “an opportunity to be
1
While the Coast Guard’s Personnel Manual refers to these entities as the “Administrative
Discharge Board” and the “Discharge Authority,” COMDTINST M1000.6A, the Coast Guard’s
Administrative Separation Board Manual and the BCMR refer to them as the “Administrative
Separation Board” and the “Separation Authority.” COMDTINST M1910.2 § 1.A.1; AR at 23–
25. The ASB Manual clarifies that these names are interchangeable. COMDTINST M1910.2
§ 1.A.1.
3
heard and to present and challenge evidence to be considered by the separation authority.”
COMDTINST M1910.2 § 1.B.1; AR at 23. The ASB members are “not to review or consider
evidence regarding the matters before the Board prior to the hearing” to provide the service
member an opportunity to object to or counter evidence. COMDTINST M1910.2 § 4.A; § 1.E.
From the evidence considered at the hearing, the ASB develops a factual record, renders
findings, and makes “specific recommendations for use by the Coast Guard separation
authorities.” Id. § 1.A.1. But, notably, “[t]he determinations of an ASB are advisory only, not
binding upon the Coast Guard.” COMDTINST M1910.2 § 1.A.1; AR at 23.
If a service member elects to have his separation considered by an ASB, his CO typically
acts as the Convening Authority (“CA”) and will officially convene the ASB. According to the
ASB manual, the CA must set forth the reasons justifying the service member’s separation and
provide the service member notice of “the factual basis for separation processing.”
COMDITINST M1910.2 § 2.A.3.
Although Mr. Rogers had requested that the ASB be held in Portsmouth, Virginia, the
PATSFORWA Deputy Commander sent an email on June 11, 2011 to three members of the unit
notifying them that they would be sitting as members of an ASB to be held in Bahrain. Id. at 12,
177. Two days later, on June 13, 2011, Mr. Rogers’s CO, Captain Bauby, was replaced by a new
CO, Captain Naron. Id. at 12.
Mr. Rogers was transferred to Portsmouth in July 2011. Id. at 14. On July 28, 2011,
despite the Deputy Commander’s earlier email, Captain Naron formally convened the ASB in
Portsmouth as Mr. Rogers had initially requested. Id. He did so in an effort to facilitate the
participation of Mr. Rogers’s civilian attorney and to ensure that the members of the ASB were
not biased. Id. at 14, 189.
On August 12, 2011, the ASB met to hear Mr. Rogers’s case. Id. at 14, 65. The ASB
reviewed the PIO’s investigation of the second alcohol incident, declarations offered by Mr.
Rogers in support of his retention, and Mr. Rogers’s service record, including his most recent
performance appraisals. Id. at 66. It also heard testimony from Captain Bauby, Mr. Rogers, and
Mr. Rogers’s wife. Id. at 66–67.
In a September 7, 2011 memorandum, the ASB issued its findings of fact, opinions, and
recommendations. Id. at 65–69. It found that Mr. Rogers was involved in two separate alcohol
incidents, but that he had “accepted responsibility,” “completed Level II intensive outpatient
treatment,” and committed to “abstain from alcohol use for the remainder of his career.” Id. at
68. Additionally, the ASB found that Mr. Rogers’s “performance since 1998 has been exemplary
with only one year of declined performance in 2005” and that he “has a high degree of technical
knowledge and competence in the very specialized field of electronics and weapons systems and
has sustained superior performance” in his service. Id. at 68–69. From these findings of fact, the
ASB concluded that, because Mr. Rogers had “taken responsibility for his actions,” has a “high
degree of technical training,” and is a “highly respected member of the electronics community,”
Mr. Rogers “has a high degree of potential to continue to contribute to the Coast Guard.” Id. at
69. The ASB recommended that Mr. Rogers be retained and that, in the event that he was not, he
receive an honorable discharge. Id.
4
B. Captain Naron’s Command Endorsement
After the ASB convenes and develops its report and recommendations, the Coast Guard’s
regulations provide for the report to be forwarded to the Convening Authority. COMDTINST
M1910.2 § 7.E; AR at 25. The Convening Authority is to confirm that the ASB followed proper
procedures and is also to provide a “command endorsement” consisting of “at minimum, a
statement of concurrence or disagreement with the findings, opinions, and recommendations of
the Board.” Id. The CA’s endorsement and the ASB’s full report are then sent to the Separation
Authority (“SA”), typically the Coast Guard’s Personnel Service Center. Id.
Pursuant to these regulations, Mr. Rogers’s ASB forwarded its findings and
recommendations to Captain Naron. By memorandum of September 29, 2011, Captain Naron
expressed his non-concurrence with the ASB’s recommendation that Mr. Rogers be retained in
the Coast Guard. AR at 70. He observed that he was “thoroughly convinced that ETC Rogers’
overall performance, training, and experience does not warrant retention.” Id. Captain Naron
cited Mr. Rogers’s “poor judgment when he decided to drink excessively with subordinates,
violate curfew, publically expose his genitalia, and urinate in front of his Commanding Officer”
and concluded that he “had no faith, whatsoever, in ETC Rogers’ pledge to voluntarily abstain
from consuming alcohol.” Id. at 71. Moreover, Captain Naron referenced conversations with
unnamed service members whom he alleged had “specifically mentioned their unsatisfactory
experiences regarding ETC Rogers’ lack of leadership and the poor example he had set as a
Chief Petty Officer.” Id. at 70. He also claimed that “two individuals within ETC Rogers’
division”—again unnamed—“reported they had decided to leave the Coast Guard because of
ETC Rogers’ poor leadership.” Id. Captain Naron concluded that he could not “concur with
allowing ETC Rogers’ technical training and experience to outweigh his related leadership,
judgment, and professional behavior failings.” Id. at 71. He then forwarded the ASB’s record and
its recommendation, along with his command endorsement, to the Separation Authority.
Mr. Rogers, through his attorney, subsequently requested a copy of Captain Naron’s
endorsement. Id. at 17. The Coast Guard denied the request, noting that the separation
regulations do not provide service members the right to view a CA’s endorsement. Id. On
October 28, 2011, Mr. Rogers submitted a FOIA request seeking copies of the endorsement. Id.
The Coast Guard then consulted with Mr. Rogers’s attorney and agreed to provide a copy to him.
Id.
On November 10, 2011, Mr. Rogers sent the Separation Authority a letter responding to
Captain Naron’s endorsement. Id. In the letter, Mr. Rogers, among other things, objected to
Captain Naron’s citation of information not before the ASB, which he characterized as
inaccurate. Id. He also complained that he had spent less than 8% of his tour in Bahrain under
Captain Naron’s command, that Captain Naron had not had a sufficient amount of time to
observe his performance and provide an objective opinion, and that many other officers who had
served with him for a longer period of time had submitted statements in support of his retention.
Id.
5
C. The Separation Authority’s Decision
Under the Coast Guard’s regulations, the Separation Authority makes the final
determination of whether the service member will be retained or discharged. The SA will
“review the [ASB’s] record and approve or disapprove the [ASB’s] findings of fact, opinions,
and recommendations in whole or in part.” COMDTINST M1000.4 § 1.B.22.d; AR at 25. The
SA “may disapprove findings and opinions if they were made based on incomplete evidence,
contrary to the evidence the [ASB] considered or to law or regulations . . . or otherwise clearly in
error.” Id. If the SA disapproves of the ASB’s findings of fact or recommendations, the SA may
“[a]mend, expand, or modify findings of fact and opinions or take final action other than that
recommended,” but only “if evidence of record supports that action and the final action states the
specific reasons.” Id. Pursuant to the regulations, if the SA disagrees with the ASB’s
recommendation to retain the service member, the SA can take final action to “[d]isaprove the
[ASB’s] recommendation for retention and direct discharge under honorable conditions with an
honorable or general discharge certificate as warranted.” COMDTINST M1000.4 § 1.B.22.e; AR
at 26.
In this case, the SA issued its “Action of the Final Reviewing Authority” on January 23,
2012. AR at 476. The SA’s written notice to Mr. Rogers stated that the SA had “reviewed
and . . . approved” the “record, findings of fact, opinions, and recommendations” of the ASB
with the exception of its recommendation that Mr. Rogers be retained. The SA did not, however,
“state[] the specific reasons” for rejecting the ASB’s recommendation to retain, as required by
COMDTINST M1000.4 § 1.B.22.d. The SA concluded that “ETC Rogers shall be separated
from the Coast Guard . . . for unsuitability due to alcohol abuse.” Id.
D. Mr. Rogers’s Suit in District Court
Upon receiving notice that he would be separated from the Coast Guard, Mr. Rogers filed
an emergency action seeking a temporary restraining order and/or a preliminary injunction in the
United States District Court for the District of Maryland on February 18, 2012. Id. at 18. He
alleged multiple violations of Coast Guard regulations, similar to those alleged in this action, and
asked the district court to enjoin the Coast Guard from completing the separation. Id. During a
hearing on the motion held the day after it was filed, Judge Ellen Hollander expressed concern
about the fairness of the Separation Authority’s consideration of charges and information
provided in Captain Naron’s endorsement, which she understood had not been before the ASB.
Id. Nonetheless, she denied Mr. Rogers’s request for emergency relief and directed him to
exhaust his administrative remedies by appealing the Coast Guard’s decision to the BCMR. Id. at
584–85. Accordingly, Mr. Rogers was formally separated from the Coast Guard on March 1,
2012. Id. at 18.
III. The BCMR’s Decision
On June 7, 2013, Mr. Rogers submitted an application to the Coast Guard’s Board for
Correction of Military Records in accordance with 33 C.F.R. Part 52, Subpart C. Id. at 3. Among
other things, he requested that the Board void his discharge by removing the Form DD-214 that
had effected it. Id. at 3–4. He also requested an award of back pay and reinstatement. Id. at 4.
6
Mr. Rogers made a number of arguments in support of his application, only a few of
which he pursues in this action. The Court’s opinion, therefore, will describe only those parts of
the BCMR’s decision that Mr. Rogers challenges in this case, all of which concern the Board’s
disposition of his allegations of procedural error.
A. Challenge to Convening Authority’s Pre-Hearing Actions
Before the Board, Mr. Rogers alleged that Captain Naron violated the Coast Guard’s
regulations by improperly communicating with the members of the ASB that considered his
separation. Specifically, he claimed that Captain Naron attempted to influence the decision of the
ASB by sending the PIO’s investigative report to all members of Mr. Rogers’s unit, including
those members who might have been selected for Mr. Rogers’s ASB. Id. at 5, 95. The Separation
Manual specifically prohibits ASB members from evaluating evidence until the ASB is formally
convened so that the service member has an opportunity to challenge or rebut any evidence that
supports separation. COMDTINST M1910.2 § 4.A. Mr. Rogers claimed that Captain Naron’s
distribution of the PIO report was evidence of “improper command influence,” and in violation
of Coast Guard regulations. AR at 5.
The Board found that Mr. Rogers failed to show that anything occurred before the ASB
convened that prejudiced the proceedings against him or denied him his procedural rights,
particularly in light of the fact that the ASB was moved from Bahrain to the United States and
that the ASB unanimously recommended his retention. Id. at 28. The Board noted that Mr.
Rogers “did not challenge or object to the membership of the ASB” nor did he “challenge the
submission of the PIO’s report into evidence” once the ASB was convened in the United States.
Id. Therefore, the Board concluded that Mr. Rogers’s challenge to the Convening Authority’s
pre-hearing actions was meritless. Id. at 27.
B. Challenge to Content of Command Endorsement
Mr. Rogers also claimed that Captain Naron violated Coast Guard regulations and his
constitutional rights under the Fifth Amendment’s Due Process Clause when he included in his
command endorsement “unsubstantiated allegations about [Mr. Rogers’s] impact on subordinates
that were not in the record considered by the ASB and that [he] had had no chance to defend
himself against.” AR at 6. There were two aspects to this argument. First, Mr. Rogers claimed
that consideration of Captain Naron’s comments violated his rights under Chapter 1.E.1 of the
Separation Manual to be notified of “the factual basis for separation proceedings” because he
was advised in the charging document that the proceedings would concern only the two alcohol
incidents. Id. at 30. Second, Mr. Rogers claimed that it was legal error for the Separation
Authority to consider the derogatory information contained in the command endorsement
because Mr. Rogers had not had an opportunity to rebut the information by cross examining
either Captain Naron or the unnamed individuals to whom he referred. Id. at 32.
The Board rejected these arguments. It noted that even though the alcohol incidents
formed the factual basis for his separation, the ASB’s inquiry is “very broad” and includes not
only the grounds for discharge, but also a “member’s suitability for retention in service.” Id. at
31 (citing COMDTINST M1910.2 § 1.A.1). Mr. Rogers and his attorney were aware of the broad
scope of the ASB’s inquiry, the Board observed, “as they presented a large amount of evidence
7
about the applicant’s skills and performance unrelated to the applicant’s alcohol abuse.” Id. “In
this regard,” the Board found, “the Coast Guard did not deviate from its rules and the applicant
was not denied due process.” Id.
The Board also rejected Mr. Rogers’s argument that his constitutional rights under the
Due Process Clause and his procedural rights under the regulations were violated when Captain
Naron communicated to the Separation Authority derogatory statements concerning his
leadership abilities and relationships with subordinates. The BCMR observed that the CA is not a
decision maker like a judge who may not base a decision on evidence that is not in the record. Id.
at 32. Rather, according to the Board, the CA makes recommendations to the decision maker and
“is supposed to express his own views about the applicant’s suitability for retention in his
endorsement after at least reviewing the ASB’s report.” Id. It observed that the service member
is ordinarily not entitled to respond to the CA’s endorsement, “even though the applicant has a
right to cross examine witnesses during the ASB.” Id. According to the Board, “the [CA’s]
endorsement is, in essence, a written statement that the rules do not permit a Respondent to
contest” and that the regulations “place no limits on the matters the [CA] may address.” Id.
The Board further noted that the Separation Authority is expressly authorized to reject an
ASB recommendation if it is “based on incomplete evidence.” Id. at 32 (citing COMDTINST
M1000.4 § 1.B.22.d). The Board reasoned that “[o]bviously, the Separation Authority cannot
know whether the ASB’s findings and opinions were based on incomplete evidence unless the
Separation Authority is made aware of and considers evidence that was not presented to the
ASB.” Id. at 32. The Board concluded that Captain Naron’s endorsement in this case did not
violate the rules “because the rules do not limit the matters the [CA] may address and expressly
allow the Separation Authority—the final reviewing authority—to consider evidence the
applicant has not had an opportunity to rebut or contest.” Id.
Similarly, the Board rejected Mr. Rogers’s argument that Captain Naron’s endorsement
violated his right to due process under the Fifth Amendment. Id. It recognized that Mr. Rogers
did not have a property interest in continuing his Coast Guard career, but acknowledged that he
had a protected liberty interest at stake because the grounds for his discharge were stigmatizing
in nature. Id. The BCMR concluded, however, that Mr. Rogers had received all of the process he
was due under the Constitution to protect his liberty interest, because he received notice of the
grounds for his discharge, as well as multiple opportunities to refute the charges. Id. at 32–33.
C. Challenge to the Separation Authority’s Failure to Specify Reasons for Rejecting
ASB Recommendation to Retain
In addition to challenging the content of the command endorsement, Mr. Rogers argued
(and the Board agreed) that the Separation Authority committed error when it failed to state the
specific reasons (or, in fact, any reason) for its decision to reject the ASB’s recommendation to
retain him. Id. at 33. Nonetheless, the Board noted, the SA was entitled to reject the ASB’s
recommendation, so long as the “evidence of record supported that action.” Id. And based on its
de novo review of the record before it, the Board found “ample evidence” to support the SA’s
decision. Id. (quoting COMDTINST M1000.4 § 1.B.22.d). The Board found that the procedural
error the SA committed by failing to supply reasons for its decision was not prejudicial because
it was not “causally connected” to its determination not to retain Mr. Rogers. Id. Rather, the
8
Board concluded, the failure to provide an explanation constituted mere “harmless error.” Id.
(citations omitted).2
IV. This Action
Mr. Rogers filed a complaint in this Court on April 9, 2015. ECF No. 1. He alleges that
the Board’s decision declining to void his discharge based on procedural error was arbitrary,
capricious, and contrary to law.3 The government filed a motion for judgment on the
administrative record on August 7, 2015. ECF No. 8. Mr. Rogers filed his response and cross-
motion for judgment on the administrative record on September 18, 2015. ECF No. 9. Oral
argument on the cross-motions was held on January 7, 2016.
DISCUSSION
I. Jurisdiction of the Court
The Tucker Act provides the Court of Federal Claims with jurisdiction to hear “any claim
against the United States founded either upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C.
§ 1491(a)(1) (2012). While the Tucker Act waives the sovereign immunity of the United States
to allow a suit for money damages, United States v. Mitchell, 463 U.S. 206, 212 (1983), it does
not confer any substantive rights on a plaintiff. United States v. Testan, 424 U.S. 392, 398
(1976). Therefore, a plaintiff seeking to invoke the court’s Tucker Act jurisdiction must identify
an independent source of a substantive right to money damages from the United States arising
out of a contract, statute, regulation, or constitutional provision. Jan’s Helicopter Serv., Inc. v.
Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008).
The Military Pay Act, 37 U.S.C. § 204, “confers on an officer the right to the pay of the
rank he was appointed to up until he is properly separated from the service.” Holley v. United
States, 124 F.3d 1462, 1465 (Fed. Cir. 1997) (quoting Sanders v. United States, 594 F.2d 804,
810 (Ct. Cl. 1979) (en banc)). Accordingly, the Military Pay Act “provides for suit in [the Court
of Federal Claims] when the military, in violation of the Constitution, a statute, or a regulation,
has denied military pay.” Antonellis v. United States, 723 F.3d 1328, 1331 (Fed. Cir. 2013)
2
The Board also addressed Mr. Rogers’s allegation that he was wrongfully assigned an RE-4
discharge code on his form DD-14 and that the form inaccurately listed the narrative reason for
his discharge as “alcohol rehabilitation failure.” AR 7. The Board agreed with Mr. Rogers that
the narrative reason for his discharge was inaccurate and that his discharge form should state
“miscellaneous/general reasons” instead. The Board also found that an RE-3 discharge code
should be assigned, and directed that he receive half separation pay. Id. 34–35.
3
Mr. Rogers also alleges in the alternative that—in light of its correction of his discharge form to
reflect a discharge for “miscellaneous/general reasons”—the Board erred by not directing that he
receive full separation pay, rather than half separation pay. In light of its ruling that Mr. Rogers’s
discharge was unlawfully effected, the Court does not reach this claim.
9
(quoting Dysart v. United States, 369 F.3d 1303, 1315 (Fed. Cir. 2004)). Therefore, this Court
has jurisdiction over Mr. Rogers’s claim for back pay under the Military Pay Act.
II. Standard of Review of Military Correction Board Decisions
The scope of judicial review of military correction board decisions is a deferential one
and is “limited to determining whether a decision of the Correction Board is arbitrary, capricious,
unsupported by substantial evidence, or contrary to applicable statutes and regulations.”
Melendez Camilo v. United States, 642 F.3d 1040, 1044 (Fed. Cir. 2011) (quoting Heisig v.
United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983)). In cases involving military personnel
decisions, “the military is entitled to substantial deference in the governance of its affairs.”
Antonellis, 723 F.3d at 1332 (quoting Dodson v. United States, 988 F.2d 1199, 1204 (Fed. Cir.
1993)). The court’s evaluation “does not require a reweighing of the evidence, but a
determination whether the conclusion being reviewed is supported by substantial evidence.”
Heisig, 719 F.2d at 1157 (emphasis in original). “Substantial evidence” is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). And where “reasonable minds could reach differing conclusions on the same evidence,”
the court cannot “substitute [its own] judgment for that of [the Board].” Heisig, 719 F.2d at 1156.
However, if the Board ‘“failed to consider an important aspect of the problem [or]
offered an explanation for its decision that runs counter to the evidence before the [Board]’ . . .
its decision runs afoul of even this lenient standard of review.” Verbeck v. United States, 97 Fed.
Cl. 443, 451 (2011) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983)). Further, while the court is limited to a review of the record that
was before the corrections board, Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006), the
Board’s decision may be reviewed “for failure to correct plain legal error committed by the
military,” which includes “the military’s ‘violation of statute, regulation, or published mandatory
procedure, or unauthorized act.’” Dodson, 988 F.2d at 1204 (quoting Skinner v. United States,
594 F.2d 824, 830 (Ct. Cl. 1979)).
III. Mr. Rogers’s Allegations of Procedural Error
It is well established that the military departments, like other federal agencies, are bound
by their own regulations. Wagner v. United States, 365 F.3d 1358, 1361 (Fed. Cir. 2004) (citing
Service v. Dulles, 354 U.S. 363, 388 (1957)); Carmichael v. United States, 298 F.3d 1367, 1373–
74 (Fed. Cir. 2002); Voge v. United States, 844 F.2d 776, 779 (Fed. Cir. 1988). As the Federal
Circuit has observed, “[e]ven when Congress has given the military discretion in conducting its
affairs, the military is bound to follow its own procedural regulations should it choose to
promulgate them.” Fisher v. United States, 402 F.3d 1167, 1177 (Fed. Cir. 2005). And “[a] court
may decide whether the military has complied with procedures set forth in its own regulations
because those procedures by their nature limit the military’s discretion.” Id. (citation omitted);
see also Adkins v. United States, 68 F.3d 1317, 1323 (Fed. Cir. 1995) (observing that the Federal
Circuit “has consistently recognized that, although the merits of a decision committed wholly to
the discretion of the military are not subject to judicial review, a challenge to the particular
procedure followed in rendering a military decision may present a justiciable controversy”
(emphasis in original)); Dodson, 988 F.2d at 1204 (observing that, although the Secretary was
10
not required to promulgate regulations establishing criteria for determining to whom the Army
would grant re-enlistment, “having done so he is bound to follow them”).
Notwithstanding these principles, the military’s failure to comply with its procedures for
effecting a discharge does not render the discharge itself unlawful where the procedural error is
deemed “harmless” because the regulatory violation did not substantially affect the outcome of
the matter. Wagner, 365 F.3d at 1361; see also Christian v. United States, 337 F.3d 1338 (Fed.
Cir. 2003). Some procedural errors, however, are not subject to harmless error review because
the nature of the error is such that a reviewing body is not able to assess the magnitude of its
effect. Wagner, 365 F.3d at 1362 (citing Doyle v. United States, 599 F.2d 984 (Ct. Cl. 1979)).
In this case, Mr. Rogers argues that, contrary to the BCMR’s conclusions, the Coast
Guard violated a number of its procedural regulations in connection with his separation and its
procedural errors were not harmless ones. For the reasons set forth in greater detail below, the
Court rejects Mr. Rogers’s contention that Captain Naron (serving as the Convening Authority)
committed harmful procedural error by providing members of the ASB with copies of the PIO
report before the ASB formally convened. It also finds without merit Mr. Rogers’s argument that
Captain Naron’s command endorsement did not satisfy the regulatory requirement that it include
“a statement of concurrence with the findings, opinions, and recommendations” of the Board.
On the other hand, the Court finds—contrary to the BCMR’s decision—that Mr. Rogers
was denied important procedural protections granted him under the Coast Guard’s regulations
when Captain Naron improperly referred in his command endorsement to derogatory statements
about Mr. Rogers’s leadership and character that were allegedly made by unnamed third parties
and that were never made part of the record before the ASB. Moreover, as the BCMR
recognized, the Separation Authority then further violated Coast Guard regulations by failing to
provide any explanation for its decision to reject the ASB’s recommendation that Mr. Rogers be
retained.
The Court further concludes that given that the Separation Authority enjoyed broad and
essentially unreviewable discretion to decide whether or not to retain Mr. Rogers, it is not
possible to assess the magnitude of the effect of the improper evidence in the command
endorsement on the ultimate decision to separate Mr. Rogers. Therefore, the harmless error rule
is not applicable and Mr. Rogers’s separation was unlawful. Moreover, even if harmless error
analysis applied, the government cannot show that there was no substantial nexus or connection
between the procedural error and Mr. Rogers’s separation because the Separation Authority
failed to provide an explanation for his decision to reject the ASB’s recommendation to retain
Mr. Rogers.
A. Alleged Pre-Hearing Violations of Regulations
Mr. Rogers first alleges that copies of the PIO’s investigative report about the March 25
incident were improperly provided to every member of the command in Bahrain. Pl.’s Opp. to
Def.’s Mot for J. on the Admin. Rec. and Pl.’s Cross-Mot. for J. on the Admin. Rec. (Pl.’s Cross-
Mot.) at 18, ECF No. 11. As a result, Mr. Rogers claims, potential ASB members and witnesses
were exposed to the incident report before the ASB formally convened and before Mr. Rogers
had the opportunity to present mitigating evidence. Id. Mr. Rogers further alleges that, once the
11
ASB was moved to the United States, Captain Naron again sent the PIO report directly to the
appointed ASB members. Id. at 18–19. He claims that these actions violated the Coast Guard’s
regulation that instructs ASB members not to consider evidence before the hearing,
COMDTINST M1910.2 § 4.A, and the regulations that require that the Convening Authority
provide copies of his communications with ASB members to the member facing discharge,
COMDTINST M1910.2 § 3.d.1. Id. at 19.
Even assuming that these actions violated Coast Guard regulations, in order to prevail by
demonstrating a procedural error in a military discharge case, Mr. Rogers must show that “the
defect substantially affected the decision to separate him,” or must at least “set forth enough
material to impel the court to direct a further inquiry into the nexus between the error or injustice
and the adverse action.” Christian, 337 F.3d at 1343 (quoting Hary v. United States, 618 F.2d
704, 707 (Ct. Cl. 1980)).
In this instance, any pre-hearing disclosure of the PIO report to the command in Bahrain
plainly did not substantially affect the ultimate decision to separate Mr. Rogers because the ASB
was convened in the United States, as he requested. Compl. ¶ 50. Further, even assuming that
members of the ASB in the United States also received advanced copies of the PIO (an allegation
that the government points out is not supported by the record), Mr. Rogers posed no objection to
the composition of the ASB on that basis and did not object to the introduction of portions of the
PIO’s report at the hearing. AR at 28. And any error committed with respect to this matter would
be harmless because, in the end, the ASB unanimously recommended that Mr. Rogers be
retained with the Coast Guard. Therefore, the Court concludes that the Board was correct when it
found that Mr. Rogers had failed to demonstrate prejudicial procedural error with respect to these
matters.
B. Alleged Failure to Comply with COMDINST M1910.2 § 7.E.3 Requiring that the
Command Endorsement Include a Statement of Concurrence or Disagreement
with ASB Findings, Opinions, and Recommendations
Mr. Rogers next alleges that the command endorsement that Captain Naron prepared and
transmitted to the Separation Authority in his role as Convening Authority did not comply with
COMDINST M1910.2 § 7.E.3, which requires that the endorsement include, “[at] a minimum, a
statement of concurrence or disagreement with the findings, opinions, and recommendations of
the Board.” Pl.’s Cross-Mot. at 19–20. He argues that this regulation requires that the Convening
Authority separately state his concurrence or disagreement with each of the ASB’s factual
findings, with each of the ASB’s opinions, and with each of the ASB’s recommendations.
According to Mr. Rogers, Captain Naron, contrary to this requirement, “failed to address the
Findings of Fact or the Opinions in any way.” Id. at 21.
The Court disagrees with Mr. Rogers’s argument that COMDINST M1910.2 § 7.E.3
required Captain Naron to expressly address each factual finding, opinion, and recommendation
of the Board in his endorsement. The language of the regulation does not support this position. It
merely requires “a statement of concurrence or disagreement with the findings, opinions, and
recommendations of the Board.” It does not indicate that a statement of concurrence or
disagreement is required for each finding, opinion, and/or recommendation contained in the
ASB’s memorandum.
12
Captain Naron’s endorsement was in compliance with the regulatory requirement as
properly construed because it clearly expressed his concurrence or disagreement with the ASB’s
findings, opinions, and recommendations as a whole. In his September 29, 2011 memorandum,
Captain Naron wrote that, “in accordance with [COMDINST M1910.2] this endorsement serves
as my non-concurrence” with the ASB memorandum “recommending retention of ETC Rogers.”
AR at 70. He explained that “[a]fter again reviewing ETC Rogers’ personnel record, and
carefully considering the findings and opinions of the Administration Separation Board, I am
thoroughly convinced that ETC Rogers’ overall performance, training, and experience does not
warrant retention.” Id. He went on to supply his reasons for disagreeing with the ASB’s opinion
that Mr. Rogers had taken responsibility for his actions and was committed to sobriety. Captain
Naron then explained that because of this difference in opinion (among other reasons, discussed
below), he disagreed with the ASB’s recommendation that Mr. Rogers be retained. Id. The Court
concludes that this written statement is sufficient to satisfy the regulation’s requirement that the
endorsement include “a statement of concurrence or disagreement with the findings, opinions,
and recommendations of the Board.”
C. Alleged Violations Based on the Command Endorsement’s Discussion of
Evidence Not Before the ASB
Mr. Rogers’s third claim is that Captain Naron violated the regulations when he made
“new allegations” in his command endorsement that concerned Mr. Rogers’s capacity for
leadership. According to Mr. Rogers, by doing so he interjected an issue for the Separation
Authority’s consideration that was outside the stated grounds for discharge provided to him at
the outset of the process. Pl.’s Cross-Mot. at 22. He further objects to Captain Naron’s reference
in the command endorsement to derogatory information about Mr. Rogers that was not part of
his military record or the record developed before the ASB. Id.
The Court finds no merit to Mr. Rogers’s claim that his character and performance,
including his leadership skills, were outside the scope of the matters properly before the ASB.
According to the ASB manual, in addition to making findings related to the “extent to which the
evidence supports separation” the ASB also “documents facts relating to the Respondent’s
conduct, competency, background, character and attitudes.” COMDTINST M1910.2 § 1.C.1. In
fact, as the Board observed, Mr. Rogers himself introduced several statements addressing his
character, including a letter from his former CO, Captain Bauby, who specifically mentioned Mr.
Rogers’s leadership skills. AR at 440, 445. Therefore, Mr. Rogers’s character and leadership
skills were properly before the ASB, and the CA had a right to state his disagreement with the
ASB’s findings and opinions on those matters, at least to the extent that he based his
disagreement on information that was contained in Mr. Rogers’s military record or the rest of the
record before the ASB.
Captain Naron, however, did not base his disagreement with the ASB’s recommendation
solely on information that was in Mr. Rogers’s military record or the record developed in front of
the ASB. Thus, in his endorsement he cited what he characterized as “numerous outbriefs that
departing members had with the PATFORSWA Command Master Chief and Deputy
Commander” in which “PATFORSWA personnel repeatedly and specifically mentioned their
unsatisfactory experiences regarding ETC Rogers’ lack of leadership and the poor example he
had set as a Chief Petty Officer.” Id. at 70. Captain Naron further stated that “two individuals
13
within ETC Rogers’ division reported they had decided to leave the Coast Guard because of ETC
Rogers’ poor leadership.” Id. Moreover, Captain Naron alleged, “several other enlisted members
within ETC Rogers’ department reported a disappointing lack of professional development
opportunities and not fully enjoying their PATFORSWA tour because of ETC Rogers’ lack of
leadership, professionalism, and proper behavior.” Id.
The Court agrees with Mr. Rogers that Captain Naron exceeded the scope of his authority
as Convening Authority and violated Mr. Rogers’s rights under the regulations by supplying this
extremely damaging non-record evidence for the Separation Authority’s consideration, without
ever making it available to the ASB. By doing so, he frustrated the core purpose of the ASB
process—to protect the significant interests that members with at least eight years of service
possess when they face an involuntary discharge, potentially with an other than honorable
characterization—by affording them rights to fully participate in the development of the factual
record that will be considered by the final decision maker (the Separation Authority).
Thus, the section of the Manual entitled “Reasons for Administrative Separation Boards”
states as follows:
Coast Guard discharge and retention decisions are driven by the needs of the Coast
Guard overall, not by the needs of individual members or individual commands.
Members do not have a right to remain on active duty in the Coast Guard, regardless
of the length of their service or the hardship their separation might cause.
Nevertheless, a member’s military career often represents a considerable
investment, both by the member and by the service. In addition, when a member is
discharged, the Coast Guard’s characterization of that service – as honorable,
general under honorable conditions, or other than honorable – and occasionally
other determinations surrounding that decision, can have a profound impact on the
member’s future. Sound personnel management, as well as fairness, dictate that the
decision to separate such a member be carefully considered, and that the member
be provided an opportunity to be heard and to present and challenge evidence to be
considered by the separation authority.
COMDTINST M1910.2 § 1.B.1 (emphasis supplied); see also id. § 1.A.1 (describing the ASB as
a “fact-finding body appointed to investigate a member’s suitability for retention in the service,
render findings based on the evidence obtained, and make specific recommendations for use by
the Coast Guard separation authorities”); id. § 1.E.1 (stating that the “principal purpose of ASBs
is to accord the [service member] an opportunity to be heard and to present evidence regarding
the matters upon which an adverse separation decision may be made”); id. Encl. 5 (“Sample
Letter to Respondent from Senior Member [of ASB]” advising the service member that “[t]he
Board’s purpose is to gather evidence, both in your favor and adverse to you, as necessary for the
separation authority to make sound decisions regarding whether to separate you from the Coast
Guard”).
To these ends, a section of the Manual entitled “Rights of Coast Guard Members before
Administrative Separation Boards,” guarantees members with at least eight years of service a
number of critical rights in the ASB process. These include, among others: 1) the right to be
represented by counsel; 2) the right to be present during the proceedings; 3) the right to examine
14
and object to the consideration of physical and documentary evidence; 4) the right to object to
the testimony of witnesses and cross examine witnesses; 5) the right to introduce evidence,
including witnesses; and 6) the right to testify as a witness. Id. §§ 1.E; 6.A.4.
By contrast, the Convening Authority generally plays no role in the development of the
record once the ASB proceedings begin. Thus, under the regulations, the CO is initially
responsible for “gather[ing] all available information that provides support for all the applicable
bases for the proposed recommendation for discharge.” Id. § 2.A.3. After the member receives
“official notification of the recommendation for a discharge in accordance with the Personnel
Manual” he may request an ASB. If he does so, the CO acts as the “Convening Authority.” Id. §
1.A.2. He prepares a “convening order” which designates members of the ASB, explains its role,
and sets forth a date and place for the ASB to convene. Id. §§ 2.A.3; 3.A; see also id. Encl. 3
(“Sample Convening Order”). The convening order also designates a “Recorder,” a non-voting
member whose function is to “assemble and present relevant evidence to the Board regarding the
issues before it.” Id. § 3.C.4.
After the ASB has been selected, the Convening Authority’s role ends until he receives
the final report from the ASB, as described below. In fact, the CA is only permitted to
communicate with ASB members in writing and must provide a copy of any communication to
the service member. Id. § 3.D.1. The regulations provide that “[t]he Convening Authority may
request specific issues to be determined by the Board, including whether the member should be
discharged with an ‘other than honorable’ discharge, but should express no opinions or
recommendations regarding the issues before the Board.” Id. They further discourage the
participation of the Convening Authority as a witness, while noting that he nonetheless “may be
called when circumstances make such testimony relevant to matters before the Board.” Id.
The Recorder is responsible for placing evidence into the record before the ASB and acts
in essence as a prosecutor. Id. Encl. 7 (“Advice to Recorders Before Administrative Separation
Boards”). Before the ASB convenes, “the Recorder conducts an initial investigation to assemble
evidence for presentation to the Board,” a task which includes, among other things, obtaining
“[r]elevant documents and other information” from the member’s command. Id. § 4.B.1. “The
Recorder must investigate all sources of information and present evidence to bring out the facts
in an impartial manner, with due regard for the opportunity for Respondent to present evidence
and argument on his or her own behalf.” Id. § 3.C.4; see also id. Encl. 7 (advising a Recorder to
“[i]nterview Respondent’s chain of supervisors, peers, and any witnesses on the merits of the
case”). Both the Recorder and the member are to be afforded “reasonable opportunities to
interview witnesses and obtain relevant evidence prior to and throughout the hearing process.”
Id. § 4.B.2. Any evidence presented to the ASB by the Recorder must also be made available to
the service member. Id. § 3.D.2.
The ASB Manual provides that a member is entitled to present witnesses at his own cost
and may also request that the Coast Guard pay for the travel and production of witnesses where,
among other things, “the testimony of the requested witness is material and necessary (i.e., not
unnecessarily cumulative) for a fair determination of the case.” Id. § 4.C.4(a). It further states
that “[a]lthough testimony given under oath and subject to cross-examination is often more
persuasive than a written statement,” the introduction of such statements into the record may be
appropriate where “a relevant matter is not in dispute;” where “the testimony is not readily
15
obtainable;” “[w]hen the person who made the statement testifies at the hearing or is available to
testify on cross-examination;” “[w]hen the Respondent offers the statement (e.g. character
statements);” and “[w]hen the Respondent does not object.” Id. § 6.D.1.
After hearing the evidence presented by both the Recorder and the service member, the
ASB is instructed to develop a report with its findings of fact, opinions, and recommendations.
The manual explicitly states that the “facts” developed by the ASB “shall include only those
facts the evidence establishes, and nothing further.” Id. § 7.B.2(a). The Recorder prepares the
“Record of the Proceeding,” which includes the ASB’s report, a verbatim transcript (if any), all
exhibits, an audio recording of the proceeding (if any), and “[a]ny additional documents
necessary to provide an accurate summary of the findings or proceedings,” which “should be
discussed as necessary, in the preliminary statement of the report of the Board.” Id. § 7.C. The
ASB’s Senior Member then forwards the record of proceedings to the Convening Authority for
its consideration. Id. § 7.E.
Upon receiving the record of proceedings, the Convening Authority is empowered to
“return the investigation to the Board for correction or further proceedings if it does not comply
with the requirements of [the] Manual.” Id. § 7.E.2. Otherwise, the Convening Authority’s
function is to “review the report and provide a command endorsement,” id. § 7.E.3, and then
forward the ASB report and his endorsement to the Separation Authority, id. § 7.E.4.
As described above, the ASB Manual states that “the command endorsement shall
include, at a minimum, a statement of concurrence or disagreement with the findings, opinions,
and recommendations of the Board.” Id. § 7.E.3. In this case, as noted, Captain Naron’s
endorsement included not only a statement of his views concerning whether the ASB’s findings
and recommendations were supported by the record before it, but also references to derogatory
statements about Mr. Rogers’s character and leadership allegedly made by unnamed peers and/or
subordinates, but never made part of the record before the ASB.
According to the BCMR and the government, Captain Naron acted within his authority in
supplying this extra-record and damaging information as part of his endorsement because the
regulations only set a floor on what a command endorsement must contain (i.e., “a statement of
concurrence or disagreement with the findings, opinions, and recommendations of the Board”);
they do not, according to the government, prescribe any limitations on the information that the
convening authority may include in his endorsement. AR at 32; Def.’s Mot. at 22. But this
reading of the regulations would permit the Convening Authority to assemble and present an
entirely new and secret record to place before the Separation Authority. Indeed, at the oral
argument on the cross-motions for judgment on the administrative record, counsel for the
government stated, in essence, that it would be permissible under the regulations for Captain
Naron to have included as part of the endorsement he sent to the Separation Authority an
unlimited number of sworn witness declarations purporting to attest to Mr. Rogers’s unsuitability
for retention. Oral Arg. at 30:00.
The Court rejects the government’s interpretation of the regulatory provision referencing
the content of the command endorsement because it is patently inconsistent with the broader
regulatory framework in which the regulation appears and would undermine its purposes. See
Lengerich v. Department of Interior, 454 F.3d 1367, 1370 (Fed. Cir. 2013) (“We construe a
regulation in the same manner as we construe a statute . . . . . we examine the text of the
16
regulation as a whole, reconciling the section in question with the sections related to it.”). As the
foregoing description of the ASB process makes clear, it is the ASB, not the Convening
Authority, which is charged with developing the evidence and assembling the record that the SA
will use to make the separation decision. It is the Recorder who is to interview the member’s
supervisors, peers and other individuals with relevant information, and decide which of them to
call as witnesses. To the extent, therefore, that Captain Naron wished for the Separation
Authority to consider the assertions of the unnamed accusers, such information should have been
made available to the Recorder at the outset of the process or at least communicated to the ASB
before the process ended, with copies of any communications provided to Mr. Rogers, as the
regulations require.
Moreover, as described above, the regulations include numerous safeguards to ensure that
the member facing separation (and a potentially other than honorable discharge) is given an
opportunity to rebut any adverse information contained in the record that will be placed before
the Separation Authority. Thus, the member is entitled to present his own witnesses and
documentary evidence and to cross-examine adverse witnesses. Further, the member may also
object to the presentation of written statements into the record and demand that the individuals
making the statements be called as witnesses. These rights would be hollow ones indeed if, as the
government contends, the Convening Authority may include in his endorsement information that
the member never had the opportunity to review and respond to, including statements attributed
to unnamed individuals never called as witnesses in the ASB proceedings.
In short, in the Court’s view, when the entire regulatory scheme is considered, it is clear
that the command endorsement was intended to serve as the CA’s opportunity to present his
views on whether the findings, opinions, and recommendations of the ASB were or were not
supported by the record that the ASB assembled in accordance with the detailed requirements of
the Manual. It could not have been conceived as an opportunity for the CA to introduce a round
of new evidence to rebut the ASB’s findings, conclusions, and/or recommendations because
affording the CA such an opportunity would gut the other protections afforded to members
facing separation.
In that regard, the Court finds unpersuasive the BCMR’s reliance upon the Separation
Authority’s regulatory authority to reject an ASB recommendation if it was “based on
incomplete evidence.” AR at 25 (citing COMDTINST M1000.4 § 1.B.22.d). According to the
Board it is “[o]bviou[s]” that “the Separation Authority cannot know whether the ASB’s findings
and opinions were based on incomplete evidence unless the Separation Authority is made aware
of and considers evidence that was not presented to the ASB.” Id. at 32. Therefore, the Board
reasons, the regulations necessarily contemplate that the CA will make the Separation Authority
aware of such extra-record evidence by providing it to the Separation Authority as part of his
endorsement. Id.
Contrary to the Board’s views, it is not necessary for the Separation Authority to have
conflicting evidence placed before it in order to determine that the evidence before the ASB was
“incomplete.” Even without access to additional conflicting evidence, the Separation Authority
might reasonably find that the evidence before the ASB was “incomplete” in the sense that the
documents in the record or the witnesses who testified did not supply credible, sufficient, or
otherwise adequate evidence to support the ASB’s findings, opinions, and/or recommendations.
In that circumstance, the Separation Authority might either reject the ASB’s findings, opinions,
17
or recommendations or instead might remand the matter back to the ASB for it to further develop
the record, presumably with the participation of the service member as provided in the
regulations. COMDTINST M1000.4 § 1.B.22.d; AR at 25–26 (authorizing the Separation
Authority to take final action other than recommended “if evidence of record supports that
action” or to “[r]eturn the record to the [ASB] for further consideration”).
The BCMR also stated that the Coast Guard’s regulations “expressly allow the Separation
Authority—the final reviewing authority—to consider evidence the applicant has not had the
opportunity to rebut or contest.” AR 32. This statement was made with no supporting citation
and finds no support in the applicable regulations describing the Separation Authority’s functions
or options found at COMDTINST M1000.4 §§ 1.B.22.d–1.B.22.e; RA 1–2. There is no mention
in the instructions applicable to the Separation Authority that he or she may consider evidence
that was not placed before the ASB. To the contrary, the Separation Authority is instructed that
when he “receives the record of the administrative discharge proceedings, he or she will review
the board record and approve or disapprove the board’s findings of fact, opinions, and
recommendations in whole or in part.” COMDTINST M1000.4 § 1.B.22.d (emphasis supplied);
RA 1.
Further, the Court finds it telling that under a regulatory scheme that is expressly
designed to provide members with at least eight years of service the protections of an evidentiary
hearing before discharge, such members are not afforded the right to even review the command
endorsement before it is forwarded to the Separation Authority, much less respond to it. This
suggests to the Court that the endorsement itself serves a more limited purpose than the one the
government proposes. For if there is no limit to what the endorsement may contain, and no right
on the part of the member to review or respond to the content of the endorsement, then the
ASB’s purpose of providing members with “the opportunity to be heard and to present and
challenge evidence to be considered by the separation authority” would be completely frustrated.
To be sure, in this case, Mr. Rogers secured a copy of the endorsement after making a
FOIA request, and was able to respond in writing to the endorsement. But that happenstance
does not change the fact that there is no right under the regulations to review the endorsement or
to respond to it, which suggests to the Court that the endorsement was not intended to serve as an
opportunity for the CA to inject additional evidentiary material into the process. Moreover, the
fact that Mr. Rogers was able to submit a written response to the endorsement is not a substitute
for the rights he would have enjoyed had Captain Naron, or anyone else in Mr. Rogers’s chain of
command, placed the derogatory information before the ASB as they could have done by
supplying it to the Recorder. In that circumstance, Mr. Rogers would have had the right to
marshal evidence in opposition to the accusations and to directly confront his accusers and cross-
examine them. At the very least, one assumes that he would have known the identity of the
accusers. Because the accusations instead came in the form of Captain Naron’s repetition of
negative information from anonymous accusers in a statement provided after the ASB process
was over, Mr. Rogers’s procedural rights were violated and his ability to make his case
significantly disadvantaged.
D. Harmless Error
For the reasons set forth above, the Court rejects the Board’s conclusion that the
inclusion of derogatory third-party reports about Mr. Rogers’s character and performance in the
18
command endorsement did not violate the Coast Guard’s regulations. As set forth in greater
detail below, the Court further concludes that the procedural violation is not subject to harmless
error review and that, even if such review were appropriate, the error in this case was not a
harmless one.
As noted above, a procedural violation is not subject to harmless error review where “the
magnitude of the effect of the error on the proceeding defies assessment by a reviewing body.”
Wagner, 365 F.3d at 1364; see also Doyle, 599 F.2d at 996 (harmless error review is not
appropriate where “it is not possible for a reviewing body to determine what effect the error had
on the judgment of the original proceeding”). That circumstance is presented in this case. Thus, it
is undisputed that—especially in light of the two alcohol incidents in which Mr. Rogers was
involved and which the ASB concluded had been proven—the Separation Authority had virtually
unlimited discretion to decide whether or not to accept the ASB’s recommendation that Mr.
Rogers be retained. The decision whether to accept the recommendation was ultimately
dependent upon the Separation Authority’s subjective judgment as to which option—retention or
discharge—was in the Coast Guard’s best interests.
The fact that there are no objective standards that would govern the Separation
Authority’s discharge decision is significant.4 Thus, here, as in Wagner, “had the [Coast Guard]
complied with its regulation . . . the [Separation Authority’s] decision would not have been
reviewable by any court.” 365 F.3d at 1364; see also Godwin v. United States, 338 F.3d 1374,
1377 (Fed. Cir. 2003) (finding that the “substance of decisions as to the composition, training,
equipping, and control of a military force is frequently beyond the institutional competence of
courts to review” (quoting Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002)));
Murphy v. United States, 993 F.2d 871, 874 (Fed. Cir. 1993) (“[T]he merits of the Air Force’s
decision to release [an officer] from active duty are beyond judicial reach.”); Sargisson v. United
States, 913 F.2d 918, 921–22 (Fed. Cir. 1990) (absent procedural error, the decision to release
surplus officers and who should be released was a decision for the military to make). Given the
Separation Authority’s broad discretion to determine whether Mr. Rogers should be retained, and
the lack of objective standards governing its exercise, it is not possible for the Court to assess
what effect, if any, consideration of the extra-record derogatory information in the endorsement
had on the Separation Authority’s ultimate decision. See Wagner, 365 F.3d at 1365 (finding that
the harmless error analysis is appropriate only “[w]here reviewable standards or factors constrain
the exercise of discretion,” and that it does not apply to “standardless discretionary decisions”
(citing Carmichael, 298 F.3d at 1375–76, and Sargisson, 913 F.2d at 922–23)).
In any event, even if this were a case in which harmless error review was otherwise
appropriate, determining the effect of the procedural error on Mr. Rogers’s separation would
4
The Coast Guard’s regulations do provide some standards within which the Separation
Authority may exercise its discretion to disapprove the ASB’s findings of fact and opinions—
i.e., it may disapprove those finding and opinions if it determines they were: 1) based on
incomplete evidence; 2) contrary to the evidence the ASB considered; 3) contrary to law or
regulation; 4) based on a misunderstanding of written policy; or 5) otherwise clearly in error.
COMDINST M1000.4 § 1.B.22.d. But there are no substantive constraints at all on the
Separation Authority’s decision to reject the ASB’s recommendation to retain a member other
than a requirement that the “evidence of record suppor[t] that action.” Id. § 1.B.22.d(1).
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present an insurmountable challenge because the Separation Authority—in admitted violation of
Coast Guard regulations—failed to provide any explanation for its decision to reject the ASB’s
retention recommendation (while accepting the ASB’s findings of fact and opinions). It is
conceivable that had the Separation Authority explained its a rationale for rejecting the ASB’s
recommendation, the Court might have been able to assess whether the information in Captain
Naron’s endorsement substantially affected its decision-making. But because the Separation
Authority did not comply with Coast Guard regulations in that respect, the Court can, at best,
only speculate about what the Separation Authority would have decided to do had Captain Naron
not improperly included the derogatory information in his command endorsement.5
For that reason, even assuming harmless error review were appropriate in this case, the
Court concludes that the government has failed to meet its burden of showing that the error at
issue was, in fact, a harmless one. In the Court’s view, Mr. Rogers has “set forth enough material
to impel the court to direct further inquiry into the nexus between the error or injustice and the
adverse action” so that the burden has shifted to the government to show that “there was no
substantial nexus or connection” between the violation of the Coast Guard regulation and Mr.
Rogers’s discharge. Christian, 337 F.3d at 1343 (quoting Engels, 678 F.2d at 175). Specifically,
as noted, the Separation Authority purported to concur with each of the ASB’s factual findings
and opinions—and yet decided to reject the ASB’s recommendation to retain. Under these
circumstances (and again without the benefit of any explanation from the Separation Authority),
it seems eminently plausible to the Court that the Separation Authority’s decision to separate Mr.
Rogers was substantially affected by the extra-record derogatory information contained in the
command endorsement. Thus, at the very least, Mr. Rogers has met his burden of producing
enough evidence to direct further inquiry, and it falls to the government to show that there is no
substantial nexus or connection between the regulatory violation and the final decision.
The government has not met this burden. It does not point to anything in the record that
shows that the Separation Authority would have taken the same action even if the improper
information was not before it. Rather, the government argues that the error should be ruled
harmless because there was “ample evidence” in the record before the BCMR to support the
Separation Authority’s decision. Def.’s Resp. to Pl.’s Cross-Mot. for J. on the Admin. R. at 6,
ECF No. 12. But the relevant question for purposes of harmful error review is not whether the
outcome that was reached is theoretically defensible; it is whether the outcome would have been
different if the Coast Guard had complied with its regulations. Thus, even assuming the
applicability of the harmless error rule in this case, the government has failed to show that the
error was a harmless one because the record is insufficient to show that the Separation Authority
would have reached the same outcome even if the procedural violation had not occurred.6
5
The Court, like the BCMR, gives no weight to the Separation Authority’s post-hoc explanation
of its decision to reject the ASB’s recommendation, which it submitted almost two years after its
decision to separate Mr. Rogers and only for the purposes of litigation. AR 33–34.
6
Because the Court has concluded that the Coast Guard’s violated its own regulations, and that
such violations may not be deemed harmless, it does not address Mr. Rogers’s further claim that
the Coast Guard also violated the Fifth Amendment’s due process clause in effecting his
discharge. See Hagans v. Lavine, 415 U.S. 528, 547 (1974) (observing that “a federal court
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IV. Remedy
The Military Pay Act “confers on an officer the right to pay of the rank he was appointed
to up until he is properly separated from the service.” Smith v. Sec’y of Army, 384 F.3d 1288,
1295 (Fed. Cir. 2004) (quoting Sanders, 594 F.2d at 810). For the reasons set forth above, the
BCMR’s decision finding that the Coast Guard committed no harmful procedural error in
effecting Mr. Rogers’s discharge is contrary to law. Because Mr. Rogers was not properly
separated from the Coast Guard, he is entitled to an award of back pay and allowances back to
the date of his wrongful discharge. Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir.
2003) (en banc) (noting that the Military Pay Act entitles plaintiff to “money in the form of the
pay that the plaintiff would have received but for the unlawful discharge”).
Further, under the Tucker Act, in actions for monetary relief, “[t]o provide an entire
remedy and to complete the relief afforded by the judgment, the court may, as an incident of and
collateral to any such judgment, issue orders directing restoration to office or position, placement
in appropriate duty or retirement status, and correction of applicable records . . . .” 28 U.S.C.
§ 1491(a)(2). In light of the Court’s ruling that Mr. Rogers was unlawfully discharged, he is
entitled to correction of his records and reinstatement as an incident to the award of monetary
relief.
CONCLUSION
For the reasons stated above, the government’s motion for judgment on the
administrative record is DENIED. Plaintiff’s cross-motion for judgment on the administrative
record is GRANTED.
The matter is REMANDED to the BCMR for the correction of Plaintiff’s military record
to reflect his retroactive reinstatement to active duty in the United States Coast Guard. In
addition, the BCMR shall issue any orders necessary to ensure that Plaintiff receives back pay
and other benefits or allowances to which he is entitled. Finally, the BCMR shall make any other
corrections and take any other actions that are required to carry out the Court’s instructions.
The remand proceedings shall be completed within 60 days of the date of this Order. The
Court STAYS proceedings in the instant case during that time. If the BCMR has not corrected
Plaintiff’s records and provided the relief to which Plaintiff is entitled within 60 days of the date
of this Order, the parties shall follow the procedures set forth in the Rules of the Court of Federal
Claims (“RCFC”) 52.2(d).
In accordance with RCFC 52.2(b)(1)(D), within 45 days of the date of this Order, the
government shall file a status report indicating the status of the proceedings before the BCMR.
When the BCMR has corrected Plaintiff’s military records, reinstated Plaintiff to active
duty with the Coast Guard, and awarded Plaintiff the back pay and other benefits to which he is
entitled due to those corrections, it shall forward four copies of its documentation that those tasks
should not decide federal constitutional questions where a dispositive nonconstitutional ground is
available”).
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have been completed to the Clerk of the Court of Federal Claims pursuant to RCFC 52.2(e). The
parties shall then file, within thirty days of the filing of the BCMR’s documentation, the notices
required by RCFC 52.2(f)(1).
IT IS SO ORDERED.
s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Judge
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