The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Raymond T. Fuller, Jr., a former Lieutenant Commander in the United States Navy, brings this action seeking to compel defendant Donald C. Winter, the Secretary of the Navy, to correct alleged "errors and injustices" contained in plaintiff's military service records. Specifically, Fuller asks that the Court reverse the Secretary's decision to deny his administrative request, pursuant to 10 U.S.C. § 1552, to amend his naval records. At the moment, Fuller's records show that he received a general discharge from the Navy in 2000. He seeks to amend that to state that he served until 2003, when he then retired from active service. Both parties have moved for summary judgment. Those motions are now fully briefed and ripe for resolution. Upon careful consideration, and for the reasons set forth below, the Court will grant Fuller's motion and deny the Secretary's motion.
The facts of this case are not seriously in dispute. In October 1983, Fuller was commissioned at the rank of ensign by the Navy. Def.'s Stmt. of Facts ¶ 1. He received his final full promotion to the rank of Lieutenant Commander on November 1, 1993. Id. By all accounts, Fuller was a superb naval officer and he enjoyed a decorated professional career. Indeed, in June 1998, the Navy informed him that he had been selected for promotion to the rank of Commander. Id. ¶ 2. An investigation into his personal life, however, resulted in the delay and eventual cancellation of that promotion. Id. In fact, Fuller was ultimately issued a general discharge from the Navy owing to the results of that investigation.
In January 1995, Fuller married his wife, Linda. AR 33. Citing irreconcilable differences, they legally separated pursuant to the terms of a separation agreement signed on September 29, 1998. Id. Several months later, Fuller first met Jana Dannemiller, who was a personal trainer at a gym where he trained. Id. The two became friends; at first, Fuller was under the impression that Ms. Dannemiller was also legally separated from her husband, who Fuller learned was a Lieutenant Colonel in the Army Reserve. Id. 34. Believing that his relationship with Dannemiller "did not . . . impact on good order and discipline" because both parties were separated from their estranged spouses, Fuller and Ms. Dannemiller soon became involved "in an intimate relationship." Id. Thereafter, he learned that although Ms. Dannemiller and her husband were separated, they still lived in the same house "but in separate bedrooms" and the couple planned to have "an amicable divorce." Id. Fuller also learned that Ms. Dannemiller's husband, Lieutenant Colonel Dannemiller, was in fact an active-duty Army officer. He nevertheless continued forward with the relationship because he "did not believe their relationship was impacting on good order and discipline and because both parties were legally separated." Id.
Despite Ms. Dannemiller's predictions of an amicable divorce, her separation with her husband turned acrimonious during May 1999. Id. At that point, Ms. Dannemiller and her children moved out of the house after learning that "her estranged husband was stalking her." Id. For his part, Lieutenant Colonel Dannemiller reported Fuller's affair with Ms. Dannemiller to the Naval Inspector General ("IG") "in an effort to have adultery and conduct unbecoming charges brought against" Fuller. Id. 34-35. "This action ultimately led to an Inspector General Investigation into [Fuller] and his personal life." Id. 35.
During the course of the IG's investigation, several other incidents of alleged misconduct involving Fuller came to light. "[B]eyond his adulterous affair, . . . [Fuller] had engaged in sexual relations with an Australian teenage girl and suspected prostitute, transmitted an indecent photograph using a government computer, and been arrested for soliciting a female undercover police officer for sex in exchange for money." Def.'s Stmt. of Facts ¶ 4. Thus, on June 16, 1999, the "IG investigation substantiated five allegations against [Fuller]." Id. ¶ 5.
As a result, on October 7, 1999, Fuller "received Non-Judicial Punishment ("NJP") from the Commandant, Naval District, Washington for multiple violations of the Uniform Code of Military Justice ("UCMJ")." Id. ¶ 6. The charges against him included:
(1) under Article 92 (order violation), 10 U.S.C. § 892, one specification of violating a Joint Ethics Regulation by transmitting indecent images over a government computer; (2) under Article 133, 10 U.S.C. § 933, two specifications of conduct unbecoming an officer for [his] wrongful and dishonorable relationships with the spouse of an Army officer and a young Australian woman; and (3) under Article 134, 10 U.S.C. § 934, two specifications of adultery for [his] relationships with the same women.
Id. Fuller responded to each allegation and presented several witnesses in his defense. Nevertheless, the Commandant found him "guilty of all charges and specifications, but amended the language of the specification involving the Australian woman to excise the portion that she was a known prostitute." Id. The Commandant issued a punitive letter of reprimand and also recommended that plaintiff's scheduled promotion to Commander be scuttled. Id. Moreover, the Commandant recommended that he "be required to show cause for retention in the Navy." Id.
A Board of Inquiry was then convened on June 1, 2000 to determine whether Fuller should be retained by the Navy. Id. ¶ 7. In his defense, Fuller "presented live witnesses and documentary evidence." Id. At the close of the proceeding, the Board "deliberated and concluded that Plaintiff had violated Articles 92, 133 and 134 of the UCMJ." Id. Consequently, the Board recommended that he be separated from the Navy with a general discharge. Id. The Secretary concurred with the Board's determination and Fuller was discharged on December 31, 2000. Id. ¶ 8.
On December 1, 2003, Fuller filed a petition with the Board of Correction for Naval Records ("BCNR") seeking amendment of his naval records. Id. ¶ 9. He requested "that the BCNR set aside his general discharge and restore him to active duty so that he could reach retirement eligiblity, or grant him enough constructive service to qualify for retirement, or, in the alternative, upgrade his discharge from general to honorable." Id. Fuller cited several grounds for his proposed relief. He argued that:
[H]e had previously been fully disciplined for his misconduct by receiving non-judicial punishment, a punitive letter of reprimand, losing his pending promotion to Commander, and losing the potential to ever reach a higher rank; that non-judicial punishment was designed to rehabilitate and discipline military members and should not be used to end their careers; that charging him under two separate punitive articles for the exact same conduct violates military law under United States v. Frelix-Vann, 55 M.J. 329 (C.A.A.F. 2001); and that recent changes to the adultery article in the UCMJ should be considered in that to constitute an offense under the UCMJ, adulterous conduct must either be directly prejudicial to good order and discipline or service discrediting, and that commanders should consider all relevant circumstances including such factors as whether the conduct persisted despite counseling or orders to desist and whether the accused or co-actor was legally separated.
Pl.'s Resp. to Def.'s Stmt of Facts ¶ 9.
The BCNR reviewed Fuller's petition and unanimously recommended that his naval record "be corrected to show that he was not discharged . . . [in] December 2000 but continued to serve on active duty . . . until he retired from the Navy on the earliest possible date, which is estimated to be 1 July 2003." AR 9-10. Significantly, however, the Board did "not reach [its] conclusion due to any legal error." Id. at 9. It explained that although "the specifications of misconduct under Article 134 are arguably superfluous, the punishment imposed at NJP, a letter of reprimand, was less than the maximum authorized punishment." Id. Moreover, the BCNR found that Fuller's "adulterous behavior . . . constituted a violation of both Article 133 and 123 and would constitute offenses even under the new [adultery article in the UCMJ]." Id. Nevertheless, his involuntary separation from the Navy, the BCNR reasoned, was "in retrospect . . . unduly severe." Id. His "many years of exceptional service mitigated his misconduct," in the BCNR's view. Id. The BCNR believed that Fuller "has been ...