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MILLER v. LEHMAN

January 28, 1985

EDISON W. MILLER, Plaintiff,
v.
JOHN F. LEHMAN, JR., Secretary of the Navy, Defendant



The opinion of the court was delivered by: GESELL

 Edison W. Miller, a retired Marine Corps colonel who spent five years as a prisoner of war in Vietnam, was censured by former Secretary of the Navy John Warner for alleged misconduct while a prisoner. The Board for Correction of Naval Records, acting pursuant to the Military Records Correction Board Act, 10 U.S.C. § 1552, recommended expungement of the letter of censure, concluding that "traditional concepts of fair play and justice [were] violated" by the Navy's failure to let Miller defend himself before the censure was issued. Secretary Lehman rejected this recommendation. This suit challenges Secretary Lehman's decision refusing to expunge. *fn1" The case is before the Court on defendant's motion for affirmance and plaintiff's cross-motion for summary judgment. Both motions have been fully briefed by the parties, and there are no material facts in dispute.

 I. The Scope of Review

 Because there is some dispute as to the proper standard of review in a case such as this, the law pertaining to review of actions concerning military records will be set out in some detail at the outset.

 The Military Records Act provides in relevant part:

 
The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice.

 10 U.S.C. § 1552(a). Under this act and the applicable regulations, the Board for Correction of Naval Records hears applications for correction of records and recommends action to the Secretary of the Navy. 32 C.F.R. § 723.2(b). The Secretary's decision becomes the final agency action subject to the standards of review set out in the Administrative Procedure Act (APA), 5 U.S.C. § 706(2). *fn2" The Court must determine whether the Secretary's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

 This standard of review is well established for actions seeking correction of military records. See, e.g., Neal v. Secretary of the Navy, 639 F.2d 1029, 1037 (3d Cir. 1981); Matlovich v. Secretary of the Air Force, 192 U.S. App. D.C. 243, 591 F.2d 852, 857 (D.C. Cir. 1978); Benvenuti v. Department of Defense, 587 F. Supp. 348, 355 (D.D.C. 1984); cf. Secretary of the Navy v. Huff, 444 U.S. 453, 457 n.5, 62 L. Ed. 2d 607, 100 S. Ct. 606 (1980). In particular, if the Secretary chooses to overrule the Board's recommendation, he is required both by regulation, 32 C.F.R. § 723.7, and by the principles of the APA to give a reasoned explanation for his decision. See Matlovich v. Secretary of the Air Force, 591 F.2d at 860.

 This case focuses, then, on whether the Secretary abused his discretion or acted arbitrarily and capriciously in rejecting the Board's recommendation. Accordingly, it is not the Court's duty to conduct a de novo examination of the merits of the underlying letter of censure and the plaintiff's behavior while a prisoner of war. However, a discussion of the undisputed facts concerning the investigation giving rise to the letter of censure is critical to resolution of the issues under review.

 II. Factual Background

 Edison W. Miller was a lieutenant colonel in the Marine Corps and an 18-year veteran of the military when he was shot down on a combat mission over North Vietnam on October 13, 1967. He suffered a broken back, crushed ankle and other injuries in ejecting from his airplane. Miller was immediately captured by the North Vietnamese and was confined in various prison camps until his release along with other prisoners on February 13, 1973.

 On June 25, 1973, Rear Admiral James Stockdale, the senior Naval officer POW, formally preferred charges under Article 30 of the Uniform Code of Military Justice, 10 U.S.C. § 830(a), against Miller and several other former prisoners. The charges included soliciting fellow POWs to mutiny, accepting special favors from the enemy, informing on fellow prisoners, and mutiny by refusing to obey orders of superior POWs, in violation of 10 U.S.C. §§ 881, 882, 892, 894, 904, and 905. Several of the charges were punishable by death. See, e.g., 10 U.S.C. §§ 894(b), 904.

 The day after the charges were filed, Miller's appointed counsel was told informally of the general purport of the charges. But Article 30 requires that an accused "be informed of the charges against him as soon as practicable." 10 U.S.C. § 830(b). The Board found that Miller never received more than a vague idea of the nature of the accusations. *fn4" He never received a copy of any of the formal allegations of misconduct. He never learned what acts he had allegedly committed giving rise to the charges. *fn5" He never learned the names of witnesses against him.

 At the time the charges were filed, the Naval Investigative Service had already conducted an investigation of Stockdale's charges at his request, and its report was forwarded with the charges to then Navy Secretary Warner. Miller subsequently asked to be interviewed by the Investigative Service but was refused. His counsel was denied access to the Service's report.

 At the request of Secretary Warner, the Navy Judge Advocate General's office reviewed the charges in light of the preliminary evidence and policy considerations. The Judge Advocate General, Rear Admiral Merlin H. Staring, concluded that prosecution of many of the charges was precluded by the Secretary of Defense's policy, announced shortly after the POWs' return, of not prosecuting any returned POW based solely on propaganda statements made while in prison. However, Staring concluded that the remaining charges were substantial, and he recommended that Secretary Warner, pursuant to his authority to convene a general court-martial under 10 U.S.C. § 822, should order a formal pre-trial investigation under Article 32 of the Code, 10 U.S.C. § 832.

 Article 32 investigations provide substantial procedural rights to the accused, including the rights to notice of the charges, to counsel, to cross-examine witnesses and to present evidence in his own behalf. 10 U.S.C. § 832(b).

 Staring's report was sent at his recommendation to the Marine Corps Commandant, Gen. R. E. Cushman, Jr. In a memorandum to Secretary Warner dated July 21, 1973, Cushman recommended that the charges be dismissed. He wrote in part:

 
While I decry the conduct of Lieutenant Colonel Miller while in captivity, and believe his actions cast a pall of dishonor on the Corps, and in particular on the honor of its officers, I cannot logically distinguish his misconduct from that of others whose actions have already been 'forgiven. ' In particular, I note that no sound evidence has been developed which indicates that the actions of Lieutenant Colonel Miller directly resulted in serious injury or harm to another POW.

 Administrative Record at 169. *fn6"

 Ten days later, on July 31, 1973, Miller's lawyers met with Secretary Warner and his staff. Miller's lawyers provided names of potential witnesses favorable to Miller. They were again refused information concerning the specifics of the charges. Subsequent to that, several more requests for access to investigative reports and names of adverse witnesses were refused.

 In his July 16 memorandum, Judge Advocate General Staring suggested that Secretary Warner could interview potential witnesses to aid his decision about whether to proceed with a court-martial. Staring cautioned, however, that "you should avoid involving yourself so deeply in the cases [Miller's and one other] that your interest in them could be construed to be other than an official interest." That could disqualify the Secretary as an "accuser" from referring the charges to pre-trial investigation or trial. See 10 U.S.C. § 822(b). In apparent disregard of this advice, Secretary Warner subsequently conducted personal interviews with 19 former POWs. However, he rebuffed Miller's requests to be interviewed. Nor was Miller interviewed by anyone on the Secretary's staff. Miller was not present at any of the interviews of other former POWs.

 On September 27, 1973, Secretary Warner publicly announced his decision in the case at a convention of the Naval Reserve Association in San Diego. The Pentagon issued a news release the same day, and the story was carried on network news broadcasts and in newspapers across the country. Miller learned of the action through these news accounts. Several weeks later he received the official notice of Secretary ...


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