Lowry v. United States ( 2021 )

In the United States Court of Federal Claims
)
DANIEL W. LOWRY )
)
Plaintiff, )
) No. 20-682C
v. ) (Filed: April 8, 2021)
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
)
Wojciech Kornacki, Law Office of Philip D. Cave, Washington, DC, for Plaintiff.
Michael D. Austin, Trial Attorney, U.S. Department of Justice, Civil Division, Commercial
Litigation Branch, Washington, DC, with whom were Douglas K. Mickle, Assistant Director,
Robert E. Kirschman, Jr., Director, for Defendant. Lieutenant Kevin R. Griffin, Office of the
Judge Advocate General, General Litigation Division, U.S. Department of the Navy, Washington
Navy Yard, DC, Of Counsel.
OPINION AND ORDER
KAPLAN, Chief Judge.
The plaintiff in this Military Pay Act case, Daniel W. Lowry, is a former Steelworker
Chief Petty Officer (“SWC”) and Master Diver who—during his more than nineteen years of
service in the United States Navy (“the Navy”)—performed duties involving underwater
construction and repair. In October of 2014, the Navy notified Mr. Lowry of its intent to separate
him before the conclusion of his enlistment period based on his commission of a “serious
offense.” Admin. R. (“AR”) 66. Specifically, the Navy had recently discovered that, during his
prior enlistment, Mr. Lowry had twice been convicted of driving under the under the influence of
alcohol, first in 2001 and then again in 2010.
An administrative separation board recommended that Mr. Lowry be discharged but that
the discharge be suspended for one year. His Commanding Officer (“CO”) concurred with the
separation board’s recommendation that Mr. Lowry be discharged but did not agree that the
discharge should be suspended. He recommended that Mr. Lowry be separated from the Navy
“without delay” because—allegedly in violation of Navy regulations—Mr. Lowry had not
reported the two DUI convictions to his chain of command or the security manager, id. at 52; nor
had he reported the DUIs as “alcohol-related incidents,” which would have resulted in at least a
temporary suspension of his diving duties, id. at 27.
The Navy discharged Mr. Lowry almost a year after the separation board transmitted its
recommendation to the Separation Authority (“SA”). Mr. Lowry unsuccessfully sought relief
from the Naval Discharge Review Board (“NDRB”) and the Board for Correction of Naval
Records (“BCNR”). He then filed the present suit alleging that the BCNR’s decision upholding
his separation was arbitrary, capricious, and/or contrary to law. He requests that the Court order
the BCNR to correct his records to reflect his retirement from the Navy upon completing twenty
years of service, and that he be afforded backpay, including lost retirement benefits.
Currently before the Court are the parties’ cross-motions for judgment on the
administrative record, as well as Mr. Lowry’s Motion to Supplement the Administrative Record.
For the reasons set forth below, Mr. Lowry’s motion to supplement the administrative record,
ECF No. 21, is GRANTED-IN PART and DENIED-IN-PART. His motion for judgment on
the administrative record, ECF No. 11, is GRANTED, and the government’s cross-motion for
judgment on the administrative record, ECF No. 17, is DENIED. The case is REMANDED to
the BCNR for the correction of Plaintiff’s military record to reflect retirement upon completion
of twenty years of service in the United States Navy.
BACKGROUND
Mr. Lowry’s Service Record
Mr. Lowry enlisted in the Navy on December 19, 1996. AR 36. After that initial
enlistment ended, he re-enlisted for a new five-year period that began on April 15, 2012. Id. at
30. At the time of his separation on March 3, 2016, Mr. Lowry was an advanced Underwater
Construction Diver, had attained the rank of Chief Petty Officer, and had served in the Navy for
nineteen years, two months, and fifteen days. Id. at 73.
Beginning in 1999, and throughout the rest of his period of service, Mr. Lowry was
classified as an underwater construction technician. Id. In that position he performed or
supervised the performance of underwater construction and repair. See, e.g., id. at 343–94.
In 2003, Mr. Lowry was deployed to Iraq for three months with the Marine Expeditionary
Force. Id. at 27. According to his complaint, the unit in which he served “was responsible for
securing bridges and ensuring that M1A2 tanks and other armored vehicles could safely cross
bridges on their way to Baghdad.” Compl. ¶ 21, ECF No. 1.
During his deployment to Iraq, Mr. Lowry’s unit “was exposed to frequent small arms as
well as heavy artillery and mortar fire,” and lost eleven of its marine members. AR 27. As a
result, the unit received a Presidential Citation “for extraordinary heroism and outstanding
performance in action against enemy forces in support of Operation IRAQI FREEDOM” from
March 21 to April 24, 2003. Id. at 75.
Mr. Lowry received numerous other awards and medals during his period of service. Id.
at 73. Further, up until the time of the performance evaluation discussed below, which covered
July 27, 2013 through September 15, 2014 (i.e., the period during which his CO became aware
of his convictions for DUIs committed in 2001 and 2009), see id. at 393–94, Mr. Lowry met or
2
exceeded all of his performance standards, and his evaluations included consistent positive
feedback regarding his skills, attitude, and leadership abilities. 1
Indeed, even Mr. Lowry’s final two performance evaluations were positive ones,
notwithstanding that they covered the periods both during and after his CO at the Naval Facilities
Engineering and Expeditionary Warfare Center (“NAVFAC EXWC”) recommended his
immediate separation. In his evaluation for the period between September 2014 and July 2015,
1
See, e.g., AR 354 (March 2001 appraisal observing that, “[e]nergetic and enthusiastic, PO
Lowry tackles all tasks with dedication and persistence, setting a preceden[t] for his peers to
emulate”); id. at 356 (March 2002 appraisal stating that “Petty Officer Lowry is an extremely
competent and motivated Second Class Petty Officer,” and that “his performance this period has
been outstanding”); id. at 358 (October 2002 appraisal stating that “Petty Officer Lowry is a
sharp and energetic ‘go-getter’ who seeks out the most demanding tasks,” is “[c]ontinually
sought after for his innovative ideas,” and “is an excellent diver”); id. at 360 (November 2003
appraisal observing that “Petty Officer Lowry is a competent and motivated First Class Petty
Officer, and his performance this period has been nothing but outstanding”); id. at 362 (April
2004 appraisal characterizing Mr. Lowry as an “extremely competent and motivated First Class
Petty Officer, who seeks out the most challenging tasks and carries them out meticulously”); id.
at 364 (November 2004 appraisal stating that his “performance has been nothing short of
spectacular”); id. at 366 (November 2005 appraisal noting his “extraordinary leadership skills as
a committed mentor to junior personnel” and “[u]ncompromising superior performance”); id. at
368 (August 2006 appraisal highlighting his “[e]xceptional performance,” “[t]remendous
abilities,” and that he is a “[d]edicated and skilled mentor”); id. at 370 (December 2007 appraisal
stating that “Petty Officer Lowry is a superb leader, exemplary technician, and a primary driver
behind the mission success”); id. at 372 (December 2008 appraisal noting that “Petty Officer
Lowry is an absolute professional” and had displayed “spectacular leadership”); id. at 374
(August 2009 appraisal noting that “Petty Officer Lowry has displayed excellent leadership and
management skill and has produced outstanding results at this command,” recommending that he
be detailed “to the most challenging assignments!”); id. at 376 (December 2009 appraisal stating
“Chief Lowry is a talented and motivated leader that displays all the leadership skills needed in
today’s Navy” which “have allowed this Command to move forward and shine at every
opportunity”); id. at 380 (June 2010 appraisal opining that “Chief Lowry’s professional
knowledge, mentorship and infectious energy has already had a positive impact . . . a superb
leader and manager that has earned the trust of not only the chain of command, but the personnel
that work under him” and asserting that he had “clearly proven that he is a true asset to the HCF
and the UCT community!”); id. at 382 (September 2010 appraisal observing that “Chief Lowry
continuously displays the leadership and vision required to excel in the Navy. His potential in the
UCT community and the NCF knows no boundaries . . . flawlessly executes any and all tasking.
He is an outstanding leader and manager.”); id. at 384 (September 2011 appraisal stating that
“Chief Lowry is an outstanding Chief Petty Officer who executes all assigned orders in a
decisive and efficient manner. A true mission oriented leader.”); id. at 386 (June 2012 appraisal
calling Mr. Lowry “a mission focused leader who inspires his personnel to give their very best
. . . [and] fosters an environment that cultivates personal and professional growth for his
Sailors.”); id. at 388 (July 2013 appraisal praising his “[u]nparalleled [l]eadership” and noting
that “he delivers safe and successful mission accomplishment every time”).
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for example, his CO observed that he was a “meticulous manager and a force multiplier” and a
“[h]ighly skilled leader with a ‘Can Do’ attitude who continues to deliver top-notch results.” Id.
at 390. The evaluation that covered the period between July 2015 through his discharge on
March 3, 2016 similarly characterized Mr. Lowry as a “hard working manager with over 14
years of experience leading underwater construction projects and mentoring Sailors.” Id. at 392.
It further states that Mr. Lowry was “a highly motivated, accomplished, and deeply driven
Sailor,” who was “completing a 19[-]year career in the United States Navy,” and who would
“bring a wealth of specialized expertise to any organization.” Id.
Discovery of DUI Convictions
The events that led to Mr. Lowry’s early discharge had their genesis in allegations of
infidelity that his estranged wife communicated to his unit in 2013 while the couple was in the
midst of divorce proceedings. Compl. ¶ 30. The allegation triggered an inquiry by the Navy
Criminal Investigation Service (“NCIS”) that began on November 7, 2013 but then ended in
early 2014 because Mr. Lowry’s wife declined to cooperate in the investigation. Id. ¶ 31–33.
As a result of the investigation, Mr. Lowry’s superiors learned of unrelated misconduct
that occurred during his prior enlistment. Id. ¶ 32. Specifically, it learned that he had pleaded
guilty to driving under the influence of alcohol on October 17, 2001, and that he had been
arrested for a DUI on December 9, 2009, for which he pleaded guilty on April 16, 2010. AR 26.
Pursuant to Navy Military Personnel Manual (“MILPERSMAN”) 1306-912
paragraph 12(a), a diver’s diving qualifications may be revoked if his commanding officer
determines “that the member is no longer suitable for assignment[s]” consistent with his
classification code. Further, MILPERSMAN 1306-912 ¶ 12(c)(4) provides that when an
underwater construction technician is “identified as having [an] alcohol abuse disorder,” they
“will be locally suspended by their CO from duty pending the outcome of screening, disciplinary
counseling, and or rehabilitation procedures as outlined in [Office of the Chief of Naval
Operations, Drug and Alcohol Abuse Prevention and Control Instruction (“OPNAVINST”)
5350.4D].”
Consistent with these provisions, Mr. Lowry’s diving qualification was suspended after
his superiors became aware of his DUIs. See AR 169. The record is unclear as to precisely when
the Navy imposed the suspension. It reveals, however, that Mr. Lowry was referred to the
Substance Abuse Rehabilitation Program for a substance abuse evaluation, and that he was
screened for alcohol abuse or dependency on August 22, 2014. Id. at 176–79 (Drug and Alcohol
Program Advisor report). The evaluation revealed that Mr. Lowry did not “meet DSM IV criteria
for alcohol abuse or dependency.” Id. at 176. The Program Advisor noted a lack of risk factors
and recommended that, “[g]iven [the] level of risk noted,” Mr. Lowry return to duty. Id. at 178.
As discussed in greater detail below, on October 17, 2014, Mr. Lowry’s CO provided him
with formal notice that he had been referred for administrative separation pursuant to
MILPERSMAN 1910-142: “Separation By Reason Of Misconduct – Commission Of A Serious
Offense.” Id. at 66 (Administrative Separation Processing Notice). The notice specified that the
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two “reasons for administrative separation processing” were the prior DUIs as well as the offense
that was the subject of the aborted NCIS investigation. Id.
The next week, on October 24, 2014, Mr. Lowry petitioned to have his diving
qualifications reinstated, as is permitted by MILPERSMAN 1306-912 paragraph 13. Id. at 169.
Three of the four officers who reviewed Mr. Lowry’s request recommended that it be granted, in
light of the recent evaluation finding a lack of evidence of current or potential alcohol abuse. Id.
at 169–70. Mr. Lowry’s CO disagreed, however, and denied the request for reinstatement on
November 12, 2014. Id. at 169. The CO explained that the second DUI had “caused [him] to lose
confidence in [Mr. Lowry’s] ability to exercise sound judgment, in [his] reliability, and [in his]
personal conduct as a representative of the Navy.” Id. In fact, he opined, given that the Substance
Abuse Rehabilitation Program had determined Mr. Lowry was not alcohol dependent, “these
substantiated drunk driving offenses are [a] clear indication of [his] lack of personal
responsibility towards the expectations of conduct in the Navy and demonstrate a disregard for
the safety of [himself] and [his] teammates.” Id. The CO decided that Mr. Lowry’s diving
qualifications should “remain suspended pending the outcome of the administrative board that
[would] determine [his] ability for future service.” Id. He noted that he would “look favorably”
upon a subsequent request from Mr. Lowry for reinstatement of his diving qualifications and for
return to diving duty “if that independent body, and subsequent decision review” found Mr.
Lowry “capable of continued service.” Id.
In the meantime, on October 30, 2014 (after the issuance of the separation notice but
before the approval of Mr. Lowry’s request for reinstatement of his diving qualifications), Mr.
Lowry’s CO signed off on his performance evaluation for the period beginning July 27, 2013 and
ending September 15, 2014. Id. at 393–94. In the evaluation, the CO rated Mr. Lowry’s
performance substandard as to two required performance traits: professionalism and character.
Id. The CO stated that Mr. Lowry had “demonstrated a lack of integrity as a [Chief Petty Officer]
by failing to report a second DUI conviction.” Id. at 394. He concluded that “[w]hile SWC
Lowry has shown he can execute the most complicated underwater construction projects, his lack
of integrity has resulted in a loss of trust and confidence.” Id.
Mr. Lowry challenged this performance evaluation in a November 25, 2014 statement. Id.
at 69–70. He objected to the evaluation’s focus on his failure to report the DUI offense he
committed in 2009. Id. at 69. He observed that “[t]he applicable regulation in 2009 was
OPNAVINST 5350D,” and contended that the self-reporting requirement contained in the
instruction had been found unconstitutional by the U.S. Court of Appeals for the Armed Forces
in United States v. Serianne, 69 M.J. 8, 11 (C.A.A.F. 2010). Id. He further noted that the Navy
issued NAVADMIN 373/11 in response to Serianne in 2011. Id. 2 “Not reporting this incident in
2009,” he contended, was “well within [his] constitutional rights.” Id. He also asserted that it was
2
Under NAVADMIN 373/11, service members who are arrested or criminally charged by civil
authorities are required to self-report, but are only required to disclose the date, the authority, and
the offense for which they were arrested or charged, and not any of the underlying details of the
arrest or charge. AR 297–98. The issuance also provided that commanders “shall not impose
disciplinary action for failure to self-report an arrest or criminal charges prior to the date of this
NAVADMIN,” i.e., before December 8, 2011. Id. at 298.
5
improper for an evaluation of his performance over the period from July 2013 to September 2014
to take into account a DUI that occurred in 2009. Id. at 69–70.
In a December 16, 2014 letter, Mr. Lowry’s CO rejected his objections to the evaluation.
Id. at 68. He opined that, under Navy regulations, all commissioned officers and senior enlisted
service members were required to report “any substantiated DUI/DWI offense.” Id. In particular,
he noted that NAVADMIN 373/11 requires “all commissioned officers and senior enlisted (E7
and above) to report any conviction,” and that Mr. Lowry’s reliance upon Serianne (which
concerned the duty to report arrests and charges, as contrasted with convictions) was unavailing.
Id.
Proceedings Before the Administrative Separation Board
A. Relevant Regulatory Provisions
Two related regulatory regimes govern the separation of Navy servicemembers. First,
pursuant to 10 U.S.C. § 1169(1), the Secretary of Defense has promulgated Department of
Defense Instruction (“DODI”) 1332.14 to establish “procedures governing administrative
separation of enlisted Service members from the Military Services.” DODI 1332.14 § 1(b), Pl.’s
App. Accompanying Pl.’s Mot. for J. on the Admin. R. Pursuant to RCFC 52.1(c) (“App. to Pl.’s
MJAR”) at 3, ECF No. 11-1; see also id. encl. 5, § 3a–3b, App. to Pl.’s MJAR at 13–14. Second,
the Secretary of the Navy has issued MILPERSMAN 1910, whose provisions concern the
administrative separation of enlisted Navy service members.
As relevant to the present case, MILPERSMAN 1910-152 paragraph 2 requires that a
service member who incurs a second DUI after June 4, 2009 be processed for administrative
separation, unless a waiver is obtained. MILPERSMAN 1910-152 (entitled “Separation by
Reason of Alcohol Rehabilitation Failure or Multiple Driving Under the Influence (DUI)/Driving
While Intoxicated (DWIs)”). MILPERSMAN 1910-152 paragraph 6 further provides that
separations based on multiple DUIs are to be processed in accordance with the procedures set
forth in MILPERSMAN 1910-142: Separation by Reason of Misconduct – Commission of a
Serious Offense. And MILPERSMAN 1910-142 authorizes the separation of Navy
servicemembers based on the commission of a serious offense if “the offense would warrant a
punitive discharge . . . for the same or closely related offense.” MILPERSMAN 1910-142 ¶ 2.
A service member who is subject to administrative separation is afforded a number of
rights under the applicable Navy issuances. Among other things, DODI 1332.14 guarantees the
member the right to receive notice of: (1) each of the bases of the member’s proposed separation,
“including the circumstances upon which the action is based”; and (2) “reference to the
applicable provision of the [Navy’s] implementing regulation.” DODI 1332.14 encl. 5, § 3a(1),
App. to Pl.’s MJAR at 13. Similarly, MILPERSMAN 1910-402 requires the Navy to inform the
service member of “the basis of the proposed separation, including the circumstances upon
which the action is based, and a reference to the applicable provisions of the [MILPERSMAN].”
MILPERSMAN 1910-402 ¶ 3.
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During the separation proceeding itself, a service member is guaranteed the right to
“submit written or recorded matter for consideration by the board.” DODI 1332.14 encl. 5,
§ 3e(6)(b), App. to Pl.’s MJAR at 17; see also MILPERSMAN 1910-512 ¶ 1 (guaranteeing a
service member’s rights to “testify on his or her own behalf,” “submit written or recorded matter
for consideration by the board,” call and question witnesses, and present argument). Service
members also have “[t]he right to obtain copies of documents that will be forwarded to the
separation authority supporting the basis of the proposed action.” DODI 1332.14 encl. 5, § 3a(5),
App. to Pl.’s MJAR at 13.
MILPERSMAN 1910-518 paragraph 1(a) provides that “[t]he board must determine
whether each basis set forth in the notice of proposed separation is supported by a preponderance
of evidence.” It is then to make “a single recommendation to separate or retain the respondent in
the Navy.” MILPERSMAN 1910-518 ¶ 1(b). “If the board recommends separation, it may
recommend that the separation be suspended per the guidance in MILPERSMAN 1910-222.” Id.
In addition, “[i]f separation or suspended separation is recommended, the board will recommend
a characterization of service or description of separation per the guidance in MILPERSMAN
1910-300.” Id. “[I]f the board finds misconduct, and recommends retention or suspended
separation for a mandatory processing basis, then the findings and recommendations must be
forwarded to Navy Personnel Command (NAVPERSCOM) for final action.” Id. n.2. A service
member in such circumstances “may not be retained without the expressed approval of
NAVPERSCOM.” Id.
In accordance with MILPERSMAN 1910-600, the board transmits its recommendation
and the record of its proceedings (including, among other items, the comments of the service
member’s CO) to the Separation Authority (“SA”). MILPERSMAN 1910-600 ¶ 3 (sample letter
of transmittal listing “[c]omments of the commanding officer” as information to be submitted to
the SA). The SA makes the final retention or separation decision. MILPERSMAN 1910-704 ¶ 1.
For involuntary separation of active duty members who have eighteen or more years of total
active military service—such as Mr. Lowry—the Chief of Naval Personnel is the SA. Id. ¶ 8(a).
MILPERSMAN 1910-710 provides that in cases involving mandatory processing, if the
administrative board “finds a preponderance of evidence supports one or more of the reasons for
separation and recommends [a] suspended separation,” the SA may approve the board’s findings
and disapprove of the suspension. MILPERSMAN 1910-710 ¶ 1(b); see also MILPERSMAN
1910-518 ¶ 1(b) (“A recommendation to suspend the separation is not binding on the [SA].”). On
the other hand, if the SA agrees that the separation should be suspended, the SA must secure the
approval of the Commander of Naval Personnel to authorize such suspension. MILPERSMAN
1910-710 ¶ 1(b).
B. Separation Board Proceedings
As noted, on October 17, 2014, Mr. Lowry received formal notice that he had been
referred for administrative separation based on misconduct, i.e., the commission of serious
offenses under MILPERSMAN 1910-142. AR 66. The notice stated two bases for Mr. Lowry’s
separation: (1) commission of a serious offense described in the NCIS investigative report; and
(2) commission of a serious offense “as evidenced by multiple DUIs.” Id.
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The administrative separation board convened to consider the allegations against Mr.
Lowry on February 24 and 25, 2015. Id. at 54, 60. Mr. Lowry testified at the hearing, as did
several character witnesses. Id. at 57–59. The board also considered the relevant MILPERSMAN
sections, the October 17, 2014 notice sent to Mr. Lowry, court records of the DUIs, and the
report of the NCIS investigation, all of which the Navy Recorder serving as prosecutor placed
into the record. Id. at 55–56. Based on the record before it, the separation board unanimously
found that the preponderance of the evidence supported the finding that Mr. Lowry committed
multiple DUI offenses, but did not support a finding of misconduct based on the NCIS
investigation. Id. at 61.
DODI and Navy regulations provide that, when determining whether separation is
warranted based on the commission of a serious offense, the separation board is obligated to
consider: (1) the seriousness of the offense; (2) the likelihood of the misconduct reoccurring; (3)
the service member’s potential for future military service; and (4) the service member’s military
record. MILPERSMAN 1910-212 ¶ 1; see also DODI 1332.14 encl. 4 § 1b(4), App. to Pl.’s
MJAR at 4–5 (explaining that the board should consider the service member’s “entire military
record,” excluding “[i]solated incidents and events that are remote in time”).
In this case, the board recommended that Mr. Lowry be separated but that his separation
be “suspended” for twelve months. AR 61; see MILPERSMAN 1910-222 ¶ 1(a) (stating that
except as otherwise prohibited “a separation may be suspended for a period of not more than 12
months, if the circumstances of the case indicate a reasonable likelihood of rehabilitation”). 3 It
also recommended that Mr. Lowry’s service be characterized as “Other Than Honorable.” AR
61.
C. Letters of Deficiency
On February 27, 2015, Mr. Lowry’s counsel submitted a letter of deficiency for the
record in accordance with MILPERSMAN 19-516. Id. at 63–64. He requested that the board’s
separation recommendation be set aside, or in the alternative, “that the recommendation for
suspension [of separation] be honored and the characterization of discharge be changed to
General (Under Honorable Conditions).” Id. at 63.
Counsel argued that the relief he sought should be granted because—despite his request
to the Recorder that the Navy provide him with all relevant evidence—the command had
“withheld exculpatory evidence.” Id. Specifically, it had not given counsel a copy of the
substance abuse screening report which, as described above, reflected a finding that Mr. Lowry
was not at risk of alcohol abuse or dependence. Id. Counsel argued that the report was relevant to
3
The regulations state that “[d]uring the suspension, the member shall be afforded an
opportunity to meet appropriate standards of conduct and performance.” MILSPERSMAN
1910-222 ¶ 1(b). It further provides that, “[u]nless sooner vacated or remitted, execution of
approved separation shall be remitted upon completion of the probationary period, upon
termination of the member’s enlistment or period of obligated service (OBLISERV), or upon
decision of the SA that the goal of rehabilitation has been achieved.” Id. ¶ 1(c).
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addressing two of the four factors that the regulations required the board to consider in making a
recommendation about retention or separation, i.e., the likelihood of Mr. Lowry’s misconduct
reoccurring and his potential for future military service. Id. In addition, counsel argued that the
DUI incidents were not sufficiently severe and were too remote in time to justify an “Other Than
Honorable” characterization of Mr. Lowry’s service. Id. at 64.
Counsel supplemented his argument regarding the characterization of service in a March
20, 2015 addendum to the letter of deficiency. Id. at 65. In that addendum, counsel pointed out
that the board’s characterization of service recommendation was inconsistent with
MILPERSMAN 1910-306, which prohibits the use of “[r]ecords of activities from prior
enlistments or periods of service” to characterize service. Id.; see also MILPERSMAN 1910-306
¶ 1(a).
D. Commanding Officer’s Comments
On March 24, 2015, Mr. Lowry’s CO provided comments to the board’s
recommendations for the record. AR 52–53. The CO concurred with the board’s finding that the
evidence supported a charge of “misconduct for multiple DUI[s].” Id. at 52. He recommended,
however, that Mr. Lowry be separated “without delay,” i.e., that there be no suspension of his
separation. Id.
The CO explained that Mr. Lowry’s “conduct in these two incidents severely departed
from the expectations of a Chief Petty Officer.” Id. At the same time, the CO observed that Mr.
Lowry’s service over the entire eighteen-year period was “characterized by honest and faithful
service in multiple theatres as he safely and successfully led high risk underwater construction
projects as the statements of multiple commanding officers attest.” Id. The CO acknowledged
that MILPERSMAN 1910-214 provides that an “[a]dverse matter from a prior enlistment may
not be considered in recommending or authorizing characterization of service.” Id. Nonetheless,
he opined that “SWC Lowry failed in his current (and previous) enlistment to report the
conviction (as required by ALNAV 067/08)”; “failed to report the conviction to his chain of
command or the security manager (as required by [Secretary of the Navy Instruction
(“SECNAV”)] 5510.30)”; and “as a diver failed to report an alcohol related incident (requiring at
least temporary suspension of diving duty by MILPERSMAN 1306-912).” Id. The CO stated
that he “s[aw] these as a pattern during this enlistment to deliberately conceal his conviction,
conduct demonstrating a lack of integrity and moral courage.” Id. “[H]ence,” he concluded, he
recommended “immediate separation with a General (Under Honorable Conditions)
characterization.” Id.
The CO rejected counsel’s contention that the separation proceedings were procedurally
flawed because—despite counsel’s request to be provided with all relevant information—the
Recorder had not supplied him with a copy of the substance abuse screening report that stated
that Mr. Lowry was not alcohol dependent. Id. at 53. The CO reasoned that, even assuming that
the failure to provide the report was a procedural error, the error was a harmless one and had no
effect on the outcome, asserting that the screening report “was available to [Mr. Lowry]
directly.” Id.
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E. The Discharge
The record of the separation board proceedings, including the CO’s comments
recommending that Mr. Lowry be separated “without delay,” were forwarded to the Chief of
Naval Personnel by correspondence of March 24, 2015. Id. at 30 (citing the CO’s comments at
AR 52). But no action was taken to effect the separation for almost a year. Id. at 40. In the
meantime, on July 24, 2015, Mr. Lowry’s CO granted his request to reinstate his diving
qualifications with the caveat that his supervisory qualifications be revoked “pending
requalification” in accordance with Navy rules. Pl.’s Mot. to Suppl. the Admin. R. and Mem. in
Supp. (“Pl.’s Mot. to Suppl.”) Ex. 3, at 2, ECF No. 21-3.
Although there is no document in the record reflecting his reasoning, the SA agreed with
the CO’s recommendation to separate Mr. Lowry immediately and rejected the administrative
separation board’s recommendation that the separation be suspended for twelve months.
Accordingly, Mr. Lowry was separated from the Navy on March 3, 2016, and his separation was
not suspended. AR 36. The reason supplied for the separation on DD Form 214 was “misconduct
(serious offense).” Id. His service was characterized as “under honorable conditions (general).”
Id.
Proceedings Before the Naval Discharge Review Board and the Board for
Correction of Naval Records
There are two administrative bodies that review Navy discharge actions: the Naval
Discharge Review Board (“NDRB”) and the Board for Correction of Naval Records (“BCNR”).
See Viet. Veterans of Am. v. Sec’y of the Navy, 843 F.2d 528, 531 (D.C. Cir. 1988). The
NDRB, which consists of five Navy officers, is empowered to review a discharge and
recharacterize it “to reflect its findings.” 10 U.S.C. § 1553(b)(1). “The BCNR is a wholly
separate body staffed by civilians. Its mandate—to correct any Navy record when ‘necessary to
correct an error or remove an injustice,’ id. § 1552(a)—has been viewed as broader than that of
the NDRB.” Viet. Veterans of Am, 843 F.2d at 531 (citing Strange v. Marsh, 602 F. Supp. 1565,
1570 (D.R.I. 1985)).
Mr. Lowry pursued appeals before both the NDRB and the BCNR. Each was
unsuccessful.
A. Naval Discharge Review Board Proceedings
On or around April 3, 2018, Mr. Lowry invoked his right to review by the NDRB. He
elected that this review be based on the documentary record. AR 252. In his NDRB petition, Mr.
Lowry argued that he had been denied his “due process rights” during the administrative
separation board proceedings because the Recorder “withheld exculpatory and relevant
information indicating that [he] was free of any substance abuse and fully rehabilitated.” Id. at
253 (referring to the alcohol screening report). In addition, he complained that the separation
board had improperly “considered matters outside of [his] then-current enlistment to determine
his characterization of service between 15 April 2012 and 14 April 2017.” Id. He also argued that
10
the unit had “failed to address his Post-Traumatic Stress Disorder (“PTSD”) and Traumatic Brain
Injury (“TBI”).” Id.
In a January 31, 2019 decision, the NDRB rejected Mr. Lowry’s petition without
addressing several of his procedural objections. Id. at 38–45. It observed that he had been
“involved in two [DUIs] in his naval service” and that his subsequent “failure to disclose his
[DUIs] to his command resulted in the loss of trust.” Id. at 42. It agreed that separation was
appropriate given that Mr. Lowry’s “commander view[ed] ‘these as a pattern during this
enlistment to deliberately conceal his conviction, conduct demonstrating a lack of integrity and
moral courage.’” Id. (quoting the CO’s comments). It noted that Mr. Lowry’s CO had
nonetheless recommended a “more lenient administrative discharge” over a punitive one. Id. The
NDRB therefore determined that an upgrade in the characterization of service would be
inappropriate. Id.
Turning to Mr. Lowry’s contention that PTSD was a mitigating factor in his misconduct,
the NDRB noted that it had requested records received from the Department of Veterans Affairs
(“VA”) and that those records showed that Mr. Lowry “ha[d] a combined l00% VA disability
rating, 50% for PTSD/TBI as of March 2016,” and that “the VA also stated his
‘PTSD/TBI/Alcohol use disorder is in full remission.’” Id. It observed, however, that Mr.
Lowry’s first conviction occurred in 2001, before his deployment to Iraq. Id. It further reasoned
that Mr. Lowry had engaged in “willful misconduct,” presumably by failing to disclose his DUIs,
and that such willful misconduct “demonstrated he was unfit for further service.” Id. The NDRB
opined that “[t]he evidence of record did not show that the PTSD was a sufficient mitigating
factor to excuse [his] conduct or accountability concerning his actions.” Id. It therefore denied
Mr. Lowry’s request for relief.
B. Board for Correction of Naval Records Proceedings
In the meantime, on March 26, 2018, Mr. Lowry had petitioned the BCNR for a
correction of his naval record. Id. at 146–228. The arguments in his BCNR petition were similar
to those he made to the NDRB. He contended that—in violation of his “due process rights”—the
separation board’s Recorder, who was not a lawyer, “withheld evidence that was relevant,
mitigating, extenuating, and exculpatory in nature,” i.e., failed to provide the report prepared by
the substance abuse counselor to whom Mr. Lowry was referred after the Navy learned of his
DUIs. Id. at 146. Mr. Lowry further argued, as he did before the NDRB, that the administrative
separation board improperly considered events that occurred outside of his current enlistment in
making its recommendations. Id. at 150, 153–54. In addition, he argued that the Navy had
incorrectly determined that his PTSD/TBI did not contribute to the conduct for which he was
separated. Id. at 151. He requested that his records be corrected to credit him with ten additional
months of service so that he could retire, and that the BCNR provide him with backpay and other
relief based on his wrongful discharge. Id. at 155.
In a letter of June 19, 2018, the BCNR advised Mr. Lowry that a preliminary review of
his file showed that he had not included adequate documentation to support a claim of PTSD
treatment or diagnosis. Id. at 23. It requested that Mr. Lowry provide such documentation within
11
sixty days. Id. It also advised him that “BCNR protocols require the Board to obtain a medical
advisory opinion on all potential or possible PTSD cases.” Id.
In an August 11 letter, Mr. Lowry’s counsel forwarded the medical records that the VA
had considered when it found that he suffered from service-related PTSD. Id. at 71. Several
months later, by letter of November 5, 2018, Mr. Lowry’s counsel provided further
documentation in the form of three pages of notes prepared by a psychotherapist that recorded a
diagnosis of PTSD and described a series of psychotherapy sessions that she held with Mr.
Lowry between July 23, 2018 and the end of October 2018. Id. at 4–7.
On November 19, 2018, Dr. Molly Summers, a Navy clinical psychologist, supplied the
BCNR with an Advisory Opinion regarding Mr. Lowry’s PTSD. Id. at 21–22. Dr. Summers
based her opinion on the VA’s rating decision and the psychotherapist’s notes described above.
She concluded that, although his VA diagnosis attributed Mr. Lowry’s PTSD to his service in
Iraq, “it is more difficult to attribute [his] misconduct to PTSD.” Id. at 22. To the contrary, she
said, “[b]ased on the preponderance of the evidence, it is my considered medical opinion that
there is insufficient evidence to attribute the Petitioner’s misconduct to PTSD.” Id. 4
By letter of December 16, 2018, Mr. Lowry submitted additional clinical evidence of
PTSD in the form of civilian treatment records from Kaiser Permanente. Id. at 12. Dr. Summers
reviewed the newly submitted records but they did not change her original opinion. She observed
that counsel’s submission did not include any “new clinical evidence regarding his misconduct.”
Id. at 33. While she acknowledged that his PTSD could be attributed to his military service, she
again observed that “his alcohol use disorder predates his deployment.” Id. She therefore re-
affirmed the conclusions she reached in her original Advisory Opinion. Id.
On August 27, 2019, the BCNR denied Mr. Lowry’s application for correction of his
records. Id. at 26–29. It agreed that Mr. Lowry “likely did suffer from PTSD” as a result of his
2003 deployment in Iraq. Id. at 28. But it rejected Mr. Lowry’s argument that his PTSD
mitigated the gravity of his misconduct because, according to the BCNR, “the nature of the
misconduct for which [he was] separated (failure to disclose [his] civilian arrests) is not
misconduct typically associated with PTSD symptoms.” Id. The BCNR also rejected Mr.
Lowry’s allegations of procedural error. It noted that Mr. Lowry had made the argument
regarding the withholding of potentially exculpatory information in the letter of deficiency he
4
Dr. Summers reasoned as follows:
[Mr. Lowry’s] first DWI was in 2000, which resulted in his receiving residential
treatment for alcohol use in 2001, two years before his deployment. In addition, he had an
alcohol-related incident prior to entering the Navy. Thus, his alcohol use predates his
PTSD. While excessive alcohol consumption can be a self-medication coping mechanism
for PTSD symptoms, the Petitioner consistently denied experiencing trauma symptoms
while in service. It seems more reasonable to attribute his 2009 DWI to a relapse in his
alcohol use disorder.
AR 22.
12
submitted in response to the separation board’s recommendation, and that “the separation
authority had the opportunity to weigh [this] contention, as well as the substantive information
[in the report], prior to making a final determination on separation.” Id. Finally, it concluded that
Mr. Lowry’s “misconduct of failing to disclose the civilian arrests extended into [his] final
period of enlistment and that the nature of the misconduct was such that a general
characterization of service [was] supported by the information in [his] records.” Id.
This Action
On June 5, 2020, Mr. Lowry filed the present suit, challenging the BCNR’s decision.
ECF No. 1. Among other things, he contends that his procedural rights were violated when the
Navy failed to provide him a copy of the results of his alcohol screening until after the separation
board hearing. Compl. ¶ 94, ECF No. 1. He also alleges that “[t]o the extent that [the Navy]
discharged [him] for failing to report his prior misconduct, this is improper because [he] was
only notified that he was being separated based on the two grounds”—i.e., the allegation that
launched the NCIS investigation and the multiple DUIs—and neither of them was failure to
report. Id. ¶ 97.
The government filed the administrative record on July 30, 2020, ECF No. 10, and Mr.
Lowry filed a motion for judgment on the administrative record on September 3, 2020, ECF No.
11. The government filed its cross-motion on November 9, 2020. Def.’s Resp. to Pl.’s Mot. for J.
on the Admin. R. and Cross-Mot. for J. on the Admin. R., ECF No. 17. Mr. Lowry filed a
response and reply on December 22, 2020, Pl.’s Resp. and Reply in Support of Pl.’s Mot. for J.
on the Admin. R., ECF No. 22, as well as an unopposed motion to supplement the administrative
record, Pl.’s Mot. to Suppl., ECF No. 21. The government filed its reply on February 12, 2021.
Def.’s Reply to Pl.’s Resp. and Reply in Supp. of Pl.’s Mot. for J. on the Admin. R., ECF No. 26.
Briefing on all pending motions has been completed and oral argument was held on the
motions via videoconference on February 17, 2021.
DISCUSSION
Jurisdiction
Under the Tucker Act, the Court of Federal Claims has 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). 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).
13
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)
(quoting Dysart v. United States, 369 F.3d 1303, 1315 (Fed. Cir. 2004)). Further, this Court
“may appropriately decide whether the military followed procedures because by their nature the
procedures limit the military’s discretion.” Murphy v. United States, 993 F.2d 871, 873 (Fed.
Cir. 1993). Accordingly, this Court has jurisdiction over Mr. Lowry’s claim under the Military
Pay Act.
Motions for Judgment on the Administrative Record
The Court of Federal Claims reviews decisions of military correction boards based on the
administrative record. Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009). Parties may
move for judgment on the administrative record pursuant to Rule 52.1 of the Rules of the Court
of Federal Claims (“RCFC”). In deciding a motion pursuant to RCFC 52.1, the court makes
“factual findings . . . from the record evidence as if it were conducting a trial on the record.”
Bannum, Inc. v. United States, 404 F.3d 1346, 1357 (Fed. Cir. 2005). “[R]esolution of a motion
respecting the administrative record is akin to an expedited trial on the paper record, and the
Court must make fact findings where necessary.” Baird v. United States, 77 Fed. Cl. 114, 116
(2007). The Court’s inquiry is therefore “whether, given all the disputed and undisputed facts, a
party has met its burden of proof based on the evidence in the record.” A&D Fire Prot., Inc. v.
United States, 72 Fed. Cl. 126, 131 (2006). Unlike a summary judgment proceeding, genuine
issues of material fact will not foreclose judgment on the administrative record. Bannum, Inc.,
404 F.3d at 1356.
Standard of Review
In military pay cases, the Court reviews the administrative record to determine whether a
board’s decision 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)); see
also Walls, 582 F.3d at 1367 (stating that it is “well established that judicial review of decisions
of military correction boards is conducted under the APA”).
The scope of this judicial review is a deferential one, as “determining who is fit or unfit
to serve in the armed services is not a judicial province.” Heisig, 719 F.2d at 1156. The arbitrary
and capricious standard of review “does not require a reweighing of the evidence, but a
determination whether the conclusion being reviewed is supported by substantial evidence.” Id.
at 1157. In determining whether the conclusion is supported by substantial evidence, “all of the
competent evidence must be considered . . . whether or not it supports the challenged
conclusion.” Id. (emphasis omitted). “Substantial evidence is something less than the weight of
the evidence but more than a mere scintilla of evidence,” In re Nuvasive, Inc., 842 F.3d 1376,
1379–80 (Fed. Cir. 2016) (citations omitted), that is, “such relevant evidence as a reasonable
14
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.
Motion to Supplement the Administrative Record
As noted above, Mr. Lowry has moved to supplement the administrative record. See Pl.’s
Mot. to Suppl. The government did not file an opposition to the motion.
The motion requests that the following documents be made part of the record: (1) a
California Department of Motor Vehicles Order of Set Aside which restored his California
license driving privileges on December 9, 2009, ECF No. 21-1; (2) a February 3, 2015 Character
Statement from a former CO (Lieutenant Commander Bisgard), ECF No. 21-2; (3) a copy of a
“Special Request/Authorization” form that Mr. Lowry signed on July 22, 2015, and which
reflects that his command approved his request to have his diving qualifications reinstated, ECF
No. 21-3; and (4) a November 3, 2015 email from Captain Libertore, the NAVFAC EXWC’s
liaison with the Naval Personnel Command, to Captain Jayson Mitchell, whose subject line reads
“Status of Lowry [administrative separation] case,” ECF No. 21-4.
When a service member brings an action seeking review of the decision of a military
correction board, this Court “reviews the Board’s action under the same standard as any other
agency action,” which “necessarily limits [its] review to the administrative record.” Metz v.
United States, 466 F.3d 991, 998 (Fed. Cir. 2006); see also Axiom Res. Mgmt., Inc. v. United
States, 564 F.3d 1374, 1379 (Fed. Cir. 2009) (observing that “the focal point for judicial review
should be the administrative record already in existence, not some new record made initially in
the reviewing court”) (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)). Supplementation of the
administrative record is thus proper only in those “cases in which ‘the omission of extra-record
evidence precludes effective judicial review.’” Axiom Res. Mgmt., Inc., 564 F.3d at 1380(quoting Murakami v. United States, 46 Fed. Cl. 731, 735 (2000)).
In accordance with 10 U.S.C. § 1553(c), review by correction boards “shall be based on
the records of the armed forces concerned . . .” Two of the documents that are the subject of Mr.
Lowry’s motion to supplement fall into this category: the July 2015 “Special
Request/Authorization” form reflecting the reinstatement of Mr. Lowry’s diving qualifications,
and the email communications concerning the status of the SA’s consideration of his separation.
Because these documents should have been made part of the administrative record filed with this
Court, the Court treats Mr. Lowry’s motion to supplement the administrative record as a motion
to correct it, and directs that the two documents be added to the administrative record before the
Court.
On the other hand, the other two items were not part of the records of the Navy and
therefore were not required to be considered by the Board, unless Mr. Lowry submitted them on
his own, as he could have done. Further, consideration of the documents is not necessary for the
Court to conduct effective review of the BCNR’s decision. Accordingly, Plaintiff’s Motion to
15
Supplement the Administrative Record is granted in part—as to ECF No. 21-3 and ECF No. 21-
4—and denied as to the remaining documents.
Merits
On the merits, Mr. Lowry contends that the BCNR’s decision was arbitrary, capricious,
and contrary to law. He identifies a number of errors that he contends the Navy committed in
processing his separation and which the BCNR failed to acknowledge. For the reasons that
follow, the Court agrees with Mr. Lowry that the Navy violated his rights under its governing
regulations when it based the separation decision on grounds that were not set forth in the
separation notice it provided to him. In light of that determination, it is unnecessary to resolve
Mr. Lowry’s other allegations of 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) (citations
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”).
In this case, the Navy violated its own regulations in processing Mr. Lowry’s separation.
As described above, DODI 1332.14 guarantees a service member facing involuntary separation
the right to receive notice of: (1) each of the bases of the member’s proposed separation,
“including the circumstances upon which the action is based”; and (2) “reference to the
applicable provisions of the [Navy’s] implementing regulation.” DODI 1332.14 encl. 5, § 3a(1),
App. to Pl.’s MJAR at 13. Similarly, MILPERSMAN 1910-402 requires the Navy to inform the
service member of “the basis of the proposed separation, including the circumstances upon
which the action is based, and a reference to the applicable provisions of the [MILPERSMAN].”
MILPERSMAN 1910-402 ¶ 3.
The purposes of these basic procedural rights are self-evident. Accurate notice of the
reasons for the proposed separation affords the service member the opportunity to marshal
evidence to respond to the charges and defend himself during separation proceedings. It also
ensures that the SA has the benefit of a fully developed record that contains the service
member’s side of the story and his rebuttal of the grounds upon which the Navy proposes to
discharge him.
As the BCNR’s decision reflects, however, the Navy’s decision to separate Mr. Lowry
was based in substantial part (if not entirely) upon his failure to disclose his DUIs to his
command. The BCNR, in fact, rejected Mr. Lowry’s argument that his PTSD mitigated the
16
gravity of his misconduct precisely because it understood that the Navy was relying on the
failure to disclose to defend the separation decision. It found Mr. Lowry’s PTSD irrelevant
because “the nature of the misconduct for which [he was] separated” was the “failure to disclose
[his] civilian arrests,” which the BCNR believed was “not misconduct typically associated with
PTSD symptoms.” AR 28. It also upheld the “general” characterization of Mr. Lowry’s
discharge because it believed that his “misconduct,” which consisted of his “failing to disclose
the civilian arrests,” had “extended into [his] final period of enlistment.” Id. 5
But while the BCNR’s decision reflects that Mr. Lowry’s separation was based on his
failure to disclose his arrests and convictions, the notice of separation that the Navy provided to
Mr. Lowry did not charge him with that offense. It did not cite the Navy regulations requiring
such disclosure or provide any description of the facts showing a failure to disclose. To the
contrary, the administrative separation board notice stated that Mr. Lowry would be processed
for separation for committing the “serious offense” of “multiple DUIs.” Id. at 66.
Mr. Lowry’s alleged violation of the regulations requiring disclosure also is not
mentioned in the record of the separation board’s proceedings. In fact, those regulatory
provisions make their first and only appearance in the comments that Mr. Lowry’s CO submitted
for the SA’s consideration after Mr. Lowry had already put on his case and after the separation
board had already made its recommendation. In the comments, the CO recommended that Mr.
Lowry be separated immediately because he “failed in his current (and previous) enlistment to
report the conviction (as required by ALNAV 067/08)”; “failed to report the conviction to his
chain of command or the security manager (as required by SECNAV 5510.30)”; and “as a diver
failed to report an alcohol related incident (requiring at least temporary suspension of diving duty
by MILPERSMAN 1306-912).” Id. at 52.
Because he did not receive notice that the Navy was considering separating him on the
basis of the alleged regulatory violations, Mr. Lowry’s defense at the separation board hearing
consisted of his own testimony and that of character witnesses to the effect that he did not have a
drinking problem and was remorseful about his DUIs. The same is true of the two deficiency
letters that his counsel wrote in response to the separation board’s recommendations. In short,
because he did not receive notice that his failure to disclose was being considered as a grounds
for separation, Mr. Lowry did not attempt to explain his actions to the separation board, and the
SA had no information before him regarding the circumstances of that failure to disclose when
he decided to separate Mr. Lowry immediately. 6
5
The NDRB similarly acknowledged that the Navy relied upon Mr. Lowry’s failure to disclose
when it separated him. It observed that Mr. Lowry had been “involved in two [DUIs] in his naval
service” and that his subsequent “failure to disclose his [DUIs] to his command resulted in the
loss of trust.” AR 42. It upheld the separation in light of the fact that Mr. Lowry’s “commander
view[ed] ‘these as a pattern during this enlistment to deliberately conceal his conviction, conduct
demonstrating a lack of integrity and moral courage.’” Id. (quoting the CO’s comments in which
he recommended immediate separation).
6
The Court notes that among the exhibits Mr. Lowry supplied to the board was a copy of the
decision in United States v. Serianne. See AR 56. It does not appear, however, that it was taken
17
Further, Mr. Lowry had additional reasons not to expect that the Navy was relying upon
anything other than the DUIs themselves to justify his separation because—notwithstanding that
he was expressly criticized for the failure to disclose in his performance evaluation only a few
months earlier—that offense was not mentioned at all in the charging document or the
documents the Recorder provided to the separation board. To the contrary, the separation board’s
findings stated that the “[s]pecific evidence” it had relied upon was the evidence showing that
Mr. Lowry had committed the two DUIs. Id. at 61.
The Court also concludes that the failure to provide Mr. Lowry with notice of the charges
that formed the basis for his discharge was not harmless error. Generally, a procedural error is
deemed “harmless” where it does not substantially affect the outcome of a matter. Wagner, 365
F.3d at 1361; see also Christian v. United States, 337 F.3d 1338, 1342 (Fed. Cir. 2003). Some
procedural errors, however, cannot be excused as “harmless” because the nature of the error is
such that a reviewing body is not able to assess the magnitude of its effect on the outcome.
Rogers v. United States, 124 Fed. Cl. 757, 767 (2016) (citing Wagner, 365 F.3d at 1362)). The
violation of a regulation that affords a service member the right to be informed of the charges
underlying his proposed separation is such an error because there is no way for the Court to
judge what the result would have been had Mr. Lowry been given the opportunity to rebut the
charges that ultimately formed the basis for his separation.
Finally, the Court observes that—even had the Navy not committed the foregoing
harmful error by failing to provide Mr. Lowry with accurate notice of the grounds for his
separation—it would still feel compelled to remand the case back to the BCNR given other
problematic characteristics of his separation. Specifically, it appears that, to the extent the Navy
intended to separate Mr. Lowry because of the DUIs, it may have been improper for it to proceed
by charging him with the commission of a “serious offense.” AR 66. Both DUIs occurred during
Mr. Lowry’s prior enlistment. MILPERSMAN 1910-130 paragraph 2 and 1910-142 paragraph 4
state that, absent fraud, when an offense that requires mandatory processing (as do multiple
DUIs) occurs during a prior enlistment and is unknown to the Navy at the time of re-enlistment,
as here, the service member is to be processed for separation based on “erroneous enlistment.”
Such processing occurs under MILPERSMAN 1910-402, not 1910-142. See MILPERSMAN
1910-142 ¶ 4. Further, a discharge based on erroneous enlistment must ordinarily be
characterized as an honorable one. MILPERSMAN 1910-130 ¶ 8.
The Court similarly has concerns about whether—even leaving aside the issue of
inadequate notice—the Navy could properly use Mr. Lowry’s failures to disclose his DUIs as the
basis of a discharge for the violation of Navy regulations or other misconduct, rather than on the
basis of “erroneous enlistment.” MILPERSMAN 1910-130 ¶ 2. The BCNR seemed to believe
that Mr. Lowry’s “misconduct of failing to disclose the civilian arrests extended into [his] final
period of enlistment,” but this is not a self-evident proposition and would require further
explanation by the BCNR. AR 28. The regulation in effect at the time of the DUI offenses was
OPNAVIST 5350.4D. It stated that “[m]embers arrested for alcohol-related offense by civil
into consideration at all by the separation board; nor did any of the witness testimony address the
disclosure issue.
18
authority (i.e., DUI/DWI, public intoxication, disorderly conduct), shall promptly notify their
commanding officer.” OPNAVIST 5350.4D ¶ 8(r). The requirement of “prompt” notification,
the Court assumes, would be violated at the point that the time had passed in which a notification
could still be considered “prompt.” Mr. Lowry’s arrests occurred in 2001 and 2009. By the time
of his re-enlistment in 2012, he had already violated the prompt notification requirement. The
Navy regulations discussed above would appear to require that separation based on a failure to
promptly disclose the DUI arrests that occurred during a prior enlistment would also be subject
to processing as an erroneous enlistment.
In any event, it is unnecessary for the Court to remand the case to the BCNR to get its
take on these thorny issues. The BCNR concluded that the Navy separated Mr. Lowry because
he failed to disclose the DUIs to his command. It is undisputed that he did not receive notice that
the Navy was considering discharging him on this basis. His rights under applicable Navy
regulations were therefore violated and his separation was therefore invalid.
CONCLUSION
For the reasons stated above, Plaintiff’s motion for judgment on the administrative
record, ECF No. 11, is GRANTED and the government’s cross-motion, ECF No. 17, is
DENIED. Plaintiff’s motion to supplement the administrative record, ECF No. 21, is
GRANTED-IN-PART, and ECF Nos. 21-3 and 21-4 shall be added to the record.
The Court REMANDS the matter to the BCNR for the correction of Plaintiff’s military
record to reflect his reinstatement to active duty in the United States Department of the Navy
effective March 3, 2016, and his retirement in accordance with 10 U.S.C. § 7314, effective
December 19, 2016. In addition, the BCNR shall issue any orders necessary to ensure that
Plaintiff receives back pay and other benefits or allowances to which he is entitled. Finally, the
BCNR shall make any other corrections and take any other actions that are required to carry out
the Court’s instructions.
Remand proceedings shall be completed within 120 days of this decision. The parties
shall file a joint report every sixty days advising the Court of the status of the proceedings on
remand.
The Court will retain jurisdiction over the case during the course of the proceedings on
remand. The Court STAYS proceedings in the instant case during that time.
Pursuant to RCFC 52.2(e), the parties shall file notice with the Court within thirty days of
the BCNR’s decision on remand stating whether that decision affords a satisfactory basis for the
disposition of the case and whether the parties require further proceedings before the Court.
The Clerk is directed to serve this Opinion and Order on the Board for Correction of
Naval Records’ at the following address:
Department of the Navy
Board for Correction of Naval Records
19
701 S. Courthouse Road, Suite 1001
Arlington, VA 22204-2490
IT IS SO ORDERED.
s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Chief Judge
20