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Piersall v. Winter

August 21, 2007


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


This matter comes before the Court on cross-motions for summary judgment. Plaintiff, Charles H. Piersall, III, brings this action under the Administrative Procedure Act for review of the Secretary of the Navy's decision not to remove from his military records a 1998 letter of reprimand, as well as any mention of the non-judicial punishment proceeding that prompted the letter. Upon consideration of the entire administrative record, the briefs submitted by the parties, and the applicable law, the Court determines that plaintiff's motion for summary judgment must be denied, while defendant's must be granted, because the Secretary's decision, as embodied in the report and recommendations of the Board for Correction of Naval Records which he approved, is not arbitrary or capricious, unsupported by substantial evidence, or contrary to law. The Court's reasons are set forth more fully below.


A. Factual & Procedural History*fn1

Plaintiff, Charles Piersall III, was a Commander in the Navy at the time he filed this lawsuit in 2003.*fn2 On February 11, 1998, Piersall was the Executive Officer of the nuclear submarine USS La Jolla, when La Jolla collided with Young Chang Ho, a Korean fishing trawler, in the waters outside the Chinhae naval base in the Republic of Korea. Amended Complaint ("1AC") ¶ 10. While the fishing boat sank, the La Jolla suffered only minor damage and was able to rescue the Young Chang Ho's crew. Id. There were no serious injuries to either of the two crews. Id. La Jolla proceeded to Chinhae and docked there.

On February 19, 1998, Rear Admiral A.H. Konetzni, Jr., the Commander of Submarine Group 7, held "mast" proceedings for Piersall and other crew members in connection with the Young Chang Ho collision.*fn3 1AC ¶12. As described at greater length below, "mast" or "captain's mast" refers to a type of non-judicial punishment carried out in the Navy in response to minor offenses. These summary proceedings do not come with the full panoply of procedural rights afforded at courts martial, nor do they carry the same potentially severe punishments associated with the latter.

In this case, Piersall's mast was held at the Robinson Center, a building at the Chinhae facility located roughly two miles from where La Jolla was moored.*fn4 Id. ¶ 13. After a hearing, Admiral Konetzni found that Piersall had been derelict in failing to prevent the collision, and he declared that a letter of reprimand would be issued as punishment. Id. ¶¶ 12, 14. He also ordered the initiation of the process to detach from La Jolla for cause, though Piersall remained assigned to the ship. Piersall briefly returned to La Jolla after the mast to retrieve personal possessions, spent the night on shore at Chinhae, and flew to the United States the next day. Id. ¶ 17.

On March 1, 1998, Piersall reported to the Commander, Third Fleet in San Diego, California, for temporary additional duty, to be served aboard USS Coronado. AR at 215.The letter of reprimand that resulted from the mast proceeding was prepared and dated March 2, 1998. 1AC ¶ 14. It was physically delivered to Piersall on March 6, 1998, on dry land. Id. at ¶ 14. The letter from Admiral Konetzni stated that "you received non-judicial (NJP) on 19 Feb 98," and explains that "I imposed NJP" because Piersall "was derelict in the performance of [his] duties in that he negligently failed as the ship's Executive Officer and Command Duty Officer to prevent the USS LA JOLLA . . . from colliding with a [Korean] fishing vessel, as it was his duty to do so." AR at 158. Konetzni explained that "I made my decision to impose NJP" after considering items of evidence which "clearly show that [Piersall was] derelict in the performance of [his] duties," and that his "conduct demonstrates poor judgment and a lack of leadership." Id.

On February 26, 1999, Piersall was ordered detached from La Jolla and from Commander, Third Fleet, and directed to other duties. AR at 215. In early 2000, he petitioned the Board for Correction of Naval Records ("BCNR"), to remove the consequences of his 1998 mast proceeding from his naval record. 1AC ¶ 18; AR at 2-4. The BCNR is a civilian board that reviews applications to change naval records, and then issues reports and recommendations on those applications to the Secretary of the Navy, who makes the final determination on the application, or does so through a delegate. In an April 30, 2003 report, the BCNR granted some of Piersall's requested relief, but declined to expunge the letter of reprimand from his record.*fn5 AR at 102-03.

Piersall's basis for seeking expungement of the letter of reprimand was that he was not afforded the opportunity to decline to proceed with the mast and to opt instead for court martial. Service personnel have a right to refuse non-judicial punishment and demand a court martial, so long as they are not "attached to or embarked in a vessel."*fn6 10 U.S.C. § 815(a). The BCNR held that Piersall did not have a right to refuse mast because he was attached to or embarked in a vessel, namely La Jolla, and thus there was no error or injustice in his record to be corrected. The Secretary of the Navy adopted this recommendation and denied Piersall relief.

In August of 2003, Piersall filed suit in this Court under the Administrative Procedure Act, alleging that the BCNR's determination, as endorsed by the Secretary of the Navy's delegate, was arbitrary and capricious and contrary to law, and therefore requesting that the Court set aside the BCNR's decision, order that the mast and letter of reprimand be expunged from Piersall's Navy record, and remand the matter to the BCNR for further appropriate relief. In a September 21, 2004 Order [18], this Court granted the Secretary's motion to dismiss for lack of subject matter jurisdiction. The Court of Appeals reversed, finding that subject matter jurisdiction was appropriate, and remanded with instructions to assess the merits under the "particularly deferential standard of review" appropriate when reviewing agency action of this nature. Piersall v. Winter, 435 F.3d 319, 325 (D.C. Cir. 2006).

On June 26, 2006, the Navy's Assistant General Counsel for Manpower and Reserve Affairs issued a memo withdrawing his endorsement of the BCNR panel's findings related to Piersall's NJP, insofar as the applicability of the vessel exception was concerned. AR at 110. The Assistant General Counsel stated that his approval of the BCNR's April 2003 recommendations was based on incomplete information about Piersall's stint with Third Fleet, and he ordered a new BCNR panel to perform a de novo review of Piersall's NJP, limited to the question of whether the vessel exception applied. Id. Upon the Secretary's motion, the Court issued a July 21, 2006 Order [35] remanding the matter to the Navy for review by the BCNR.

In subsequent correspondence, the Assistant General Counsel instructed the new BCNR panel to focus its review on the vessel exception as applied in Piersall's case. AR at 213-14. The second panel convened on November 28, 2006 and issued an opinion on December 11, 2006. AR at 213-238. The BCNR found that Piersall was attached to La Jolla at the time NJP was imposed and thus was subject to the vessel exception, and had no right to refuse NJP. The BCNR panel recommended no further relief for Piersall, having found no error or injustice to correct.

The Assistant General Counsel endorsed the BCNR's recommendation on behalf of the Secretary of the Navy on December 26, 2006. AR at 238. It is this decision of the Secretary, acting through the Assistant General Counsel, to adopt the BCNR's recommendation not to provide further relief to Piersall, which is the final agency action forming the subject of this Court's review.*fn7

B. Legal Framework

1. Applicable Statutes and Regulations

Under the Uniform Code of Military Justice, military commanders can punish service personnel through judicial proceedings -- taking the form of general, special, or summary courts martial -- or by imposing non-judicial punishment ("NJP"). See generally Chappell v. Wallace, 462 U.S. 296 (1983); Middendorf v. Henry, 425 U.S. 25 (1976). NJP is referred to as "captain's mast" or "mast" in the sea services, as "office hours" in the Marine Corps, and as "Article 15" in the Army and Air Force, after the article of the UCMJ that governs NJP. 10 U.S.C. § 815. For most purposes, NJP is deemed an administrative rather than criminal proceeding. See, e.g., Cappella v. United States, 624 F.2d 976 (Ct. Cl. 1980).

At issue in this case is the "vessel exception." Article 15 states that "except in the case of a member attached to or embarked in a vessel, [non-judicial] punishment may not be imposed upon any member of the armed forces under this article if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment." 10 U.S.C. § 815(a). The vessel exception first arose when the Uniform Code of Military Justice was adopted in 1949, which established Article 15 proceedings for non-judicial punishment, but stated that the traditional naval punishment of confinement on bread and water could only be imposed on those attached to or embarked in a vessel. The service branches devised their own implementing regulations for Article 15, and while the Army and Air Force issued regulations permitting their members to refuse Article 15 proceedings and demand court martial, the Navy and Marines did not. In 1962, Congress amended Article 15 of the UCMJ, increasing the range and severity of punishments that could be imposed thereunder, but adding the right to refuse non-judicial punishment, and to demand a court martial instead, to all service members. The only exception was that this right of refusal would not apply to service members who are "attached to or embarked in a vessel." This was the vessel exception, "which presumably Congress created because the special conditions prevailing aboard a ship require quick, decisive enforcement of justice by its captain." Dobzynski v. Green, 16 M.J. 84, 86 (C.M.A. 1983) (Everett, C.J., dissenting).

In brief, the rationale for the vessel exception is based on the traditionally recognized exigent circumstances that are unique to the command of seagoing vessels. Historically, the commanders of ships at sea could exercise disciplinary authority over their crewmen with almost no restriction. See United States v. Penn, 4 M.J. 879 (C.M.R. 1978). This power was restricted over time, as embodied in the UCMJ, but "[a]ll such statutes and regulations, however, have implicitly recognized that unique responsibility of a ship's captain as the master of a frequently isolated community of sailors; the peculiar vulnerability of this independent society to disorderly practices; and hence the essentiality of affording the captain the authority to swiftly and surely 'discountenance and suppress all dissolute, immoral, and disorderly practices,' and to expeditiously 'correct those who are guilty of the same.'" Penn, 4 M.J. at 882 (quoting Rules for the Regulation of the Navy of the United States (1775)). This traditional balancing finds one expression in Article 15, which grants commanders discretion to impose swift, informal discipline, with certain restrictions.*fn8 It also has been recognized that the same exigencies sometimes apply to ships that are not out to sea, but still have the same need for swift, efficient discipline because of their unique circumstances.*fn9

2. Interpretations of the Vessel Exception

After Congress passed the 1962 UCMJ amendments, the executive branch had a limited time frame within which to enact implementing regulations. The regulations were embodied in the Manual for Courts Martial ("MCM"), an Executive Order with the force of law. The MCM described the vessel exception in Paragraph 132:*fn10

A person is 'attached to' or 'embarked in' a vessel if, at the time the non-judicial punishment is imposed, that person is assigned or attached to the vessel, is on board for passage, or is assigned or attached to an embarked staff, unit, ...

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