The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Daniel Seifert, the plaintiff in this civil lawsuit, "seeks review of the decisions of the Board of Correction of Naval Records ([the 'BCNR']) dated June 21, 2004, and November 20, 2006," pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 551-59, 701-06, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000) (the "APA"). Complaint (the "Compl.") ¶ 1. Both the plaintiff and Donald C. Winter, the Secretary of the Navy (the defendant in this civil lawsuit in his official capacity), seek summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendant Department of Navy's Motion for Summary Judgment at 1; Plaintiff's Cross-Motion for Summary Judgment and Combined Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Cross[-]Motion for Summary Judgment (the "Pl.'s Opp'n/Cross-Mot.") at 1. After carefully considering the plaintiff's complaint, the administrative record, the parties' motions, and all memoranda of law and exhibits thereto,*fn1 the Court finds that the BCNR erred in issuing its decisions, and that this error requires that the case be remanded to the BCNR for further proceedings in accordance with this memorandum opinion. The Court will therefore deny the defendant's motion for summary judgment and will grant in part and deny in part the plaintiff's cross-motion for summary judgment for the reasons that follow.
The following facts are either admitted, undisputed, or part of the administrative record on review.*fn2 On October 27, 1999, the plaintiff, an officer in the United States Marine Corps, Compl. ¶ 5, then living at the naval air station at Patuxent River, Maryland, Def.'s Facts ¶ 2, "arrived home" to discover "an unfinished plate of food remain[ing] on the table," Complaint ¶ 7. When the plaintiff's wife "indicated that she had instructed her 10-year old son, [the] plaintiff's stepson, to finish eating over 30 minutes previously," the plaintiff, after "finish[ing] his dinner, . . . forced some beans into his stepson's mouth with one of his hands" in what the plaintiff describes as "an attempt to discipline the stepson." Id. ¶ 8. The incident caused a quarrel between the plaintiff and his wife, id. ¶ 9, which, in turn, led to the filing of military charges against the plaintiff. Id. ¶ 10. Ultimately, the plaintiff was referred to a general court-martial pursuant to 10 U.S.C. § 833 (2000), based on "this family incident" as well as "other alleged incidents involving [the plaintiff's] family," id. ¶ 10, including the plaintiff's violation of "a military protective order to have no contact with his spouse," Def.'s Facts ¶ 3.
"Even though [the] plaintiff was convinced that the evidence would exonerate him of most offenses at a general court-martial," the plaintiff agreed to plead guilty to all of the offenses through an administrative process known as non-judicial punishment ("NJP") "to avoid a possible federal conviction by general court-martial on any of the offenses." Compl. ¶ 11. The Commanding General for the Marine Corps Base at Quantico, Virginia presided over the NJP process, id. ¶¶ 12-13, even though the "[p]laintiff was not a member of the command of the [Commanding General]," id. ¶ 13. The Commanding General "imposed [NJP] upon [the] plaintiff for disobeying a lawful order, false official statement, and assault upon a child in violation of the Uniform Code of Military Justice." Def.'s Facts ¶ 4.
"[R]elying largely upon the findings of guilt contained in the Report of NJP, the Commandant of the Marine Corps denied a previously submitted request from [the] plaintiff to voluntarily retire, and directed the plaintiff to show cause for retention in the U.S. Marine Corps." Compl. ¶ 14. Thereafter, a Board of Inquiry (the "BOI") "composed of three officers of the rank of colonel was convened to determine whether [the] plaintiff should be involuntarily retired, and[,] if involuntary retirement was recommended, whether he should be retired in his current grade of lieutenant colonel or the lesser grade of major." Id. The BOI considered not only the allegations made in connection with the plaintiff's NJP, but also "one offense occurring in 1981, one alleged offense occurring sometime between 1983 and 1992, and two other offenses previously resolved in 1996." Id. After "substantiat[ing] six of fifteen total offenses brought against [the] plaintiff at the BOI," including "four of the eleven NJP offenses," the BOI "recommended that [the] plaintiff be involuntarily retired [at] the grade of lieutenant colonel." Id.
The Commanding General for the Marine Corps Combat Development Command forwarded the BOI's recommendation to the Commandant of the Marine Corps on September 24, 2001. Id. ¶ 17. The Deputy Commandant for Manpower and Reserve Affairs reviewed the BOI's recommendations, agreed with them, and forwarded his own recommendation "that [the] plaintiff be involuntarily retired from the Marine Corps . . . at the grade of lieutenant colonel" to the Assistant Secretary of the Navy for Manpower and Reserve Affairs (the "Assistant Secretary") on November 13, 2001. Id. ¶ 18. The Assistant Secretary "decided to involuntarily retire [the] plaintiff," but "disapproved the recommendation to retire [the] plaintiff as a lieutenant colonel, and instead directed that [the] plaintiff be retired [at] the grade of major." Id. ¶ 20.
"By application dated July 17, 2002, [the] plaintiff requested the BCNR to correct his military records . . . by disapproving [his] retirement and keeping him on active duty[,] thereby preserving the option to process [the] plaintiff again for involuntary retirement." Id. ¶ 22. While this appeal was still pending, the "plaintiff was involuntarily retired from the Marine Corps [at] the grade of major effective September 1, 2002, with an honorable characterization of service." Id. ¶ 23. Consequently, the "plaintiff amended his request to the BCNR to remove the now[-]completed" separation process and grade demotion, which would "permit him to return to active duty as a lieutenant colonel." Id.
In support of his application to correct his military records, the plaintiff argued that (1) the Assistant Secretary's decision to involuntarily retire him at the lesser rank of major was arbitrary and capricious because the Assistant Secretary did not discuss all of the factors listed in the naval regulation governing separation determinations in his written decision approving the plaintiff's separation at the grade of major, Administrative Record (the "A.R.") at 188; see also id. at 93 (reflecting the Assistant Secretary's decision that the plaintiff should be retired at the rank of major "due to the seriousness of the misconduct involved"); id. at 182 (incorporating the plaintiff's arguments in support of his appeal to the Secretary of the Navy in his application to the BCNR), (2) both the BOI and the Assistant Secretary relied upon an administrative record that violated naval regulations, id. at 188-90, (3) the Assistant Secretary failed to consider evidence submitted by the plaintiff in derogation of the plaintiff's due process rights, id. at 190, and (4) one basis for the plaintiff's discharge was an event that had already been determined to not justify the plaintiff's separation, id. The plaintiff further argued that the BCNR should not solicit an advisory opinion from the Judge Advocate Division of the Military Branch ("Code JAM")*fn3 because "[i]t [was] decisions made by [that] office during the administrative processing of [the plaintiff's] involuntary retirement that . . . violate[d] departmental regulations" and "it would be a conflict of interest for [that] office to provide an advisory opinion regarding its own actions." Id. at 183.
In an advisory opinion dated August 30, 2002, Code JAM recommended that the BCNR deny the plaintiff's application. Id. at 15. Code JAM evaluated each of the plaintiff's arguments, and concluded that (1) the Assistant Secretary's decision to involuntarily retire the plaintiff at the rank of major was not arbitrary and capricious, id. at 11-12, (2) evidence of conduct occurring more than five years prior to the formation of the BOI was properly considered by the BOI, id. at 12-14, (3) the plaintiff's due process rights were protected by the issuance of a certificate of service of the BOI's recommendation informing the plaintiff that he had ten days from the date of the recommendation to "submit matters for consideration," and "every effort was made to facilitate [the plaintiff's untimely] submission" to the Assistant Secretary, id. at 14, and (4) that the concept of double jeopardy did not apply in the administrative context, id. at 14-15. Code JAM also took issue with the plaintiff's argument that it should refrain from issuing an advisory opinion due to a conflict of interest, reasoning that "Code JAM [was] the appropriate office to render the requested advisory opinion," and that "allowing a BCNR petitioner to select or direct the office to review [his or her] petition [would] encourage 'forum shopping,'" id. at 11. The BCNR advised the plaintiff that it was adopting Code JAM's findings in a "correspondence" dated June 21, 2004. Compl. ¶ 24.
"On June 19, 2005, [the] plaintiff filed a new application with new evidence to correct his military records." Id. ¶ 25. In support of this new application, the plaintiff argued that he had "new evidence that the Commanding General . . . who [presided over the NJP process] against [the plaintiff] did not have jurisdiction or authority to [impose] NJP against [the plaintiff]," and that as a consequence the "consideration of this unlawful NJP" by the BOI and the Assistant Secretary "made his involuntary retirement and reduction unlawful," A.R. at 4. Once again, Code JAM issued an advisory opinion, this time concluding that the plaintiff's application was untimely, id. at 18, and that "[t]he suggestion now that an officer exercising general court-martial convening authority over the [plaintiff] did not have the authority to dispose of the charges at [an] NJP [proceeding], particularly when the disposition was specifically requested by the [plaintiff], with the advice of competent counsel, [was] without merit and disingenuous," id. at 19. The plaintiff challenged these conclusions in a letter dated October 27, 2005. Id. at 20-22. The BCNR denied the plaintiff's new application on November 20, 2006. Compl. ¶ 26.
It "found that the evidence submitted was insufficient to establish the existence of probable material error or injustice," and "substantially concurred with the comments contained in [Code JAM's] advisory opinion." A.R. at 118. It further found that "even though some of the offenses [for which the plaintiff] received [NJP] may have occurred outside the two year statutory limitation, this [was] not a basis to remove the entire NJP." Id. at 118-19. Finally, the BCNR concluded "that all of [the plaintiff's] instances of misconduct which were found to have occurred by [the BOI] occurred or were identified during the five[-]year regulatory limitation period." Id. at 119.
The plaintiff filed his complaint in this Court on December 27, 2006. In his complaint, the plaintiff claims that the BCNR's decisions "violated [the] plaintiff's right, pursuant to 10 U.S.C. § 1552 [(2000)], to have his military records corrected to adequately and fully correct an error or remove an injustice." Id. ¶ 28. Specifically, he claims that "by failing to remove the unlawful NJP and the unlawful involuntary retirement and retirement grade determinations, the . . . BCNR withheld and unreasonably delayed relief to which the plaintiff was legally entitled." Id. As alleged by the plaintiff, "[t]hese BCNR decisions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[,] and were unsupported by substantial evidence," and therefore are "within the authority of a reviewing court to remedy under the APA." Id.
The plaintiff challenges the validity of the BCNR's decisions on three grounds. First, he argues that the BCNR erred because it did not recognize any error in the BOI's consideration of the plaintiff's NJP, which, according to the plaintiff, is void for lack of jurisdiction. Pl.'s Opp'n/Cross-Mot. at 10-14; Pl.'s Cross-Reply at 3-5. Second, he asserts that the BCNR erred in concluding that the BOI could rely upon actions taken by the plaintiff more than five years prior to the BOI proceedings in determining that the plaintiff should be separated from the Marine Corps notwithstanding a naval regulation prohibiting reliance on such acts as the basis for separation. Id. at 14-17; Pl.'s Cross-Reply at 5-6. Finally, the plaintiff contends that the BCNR erred in determining that the Assistant Secretary complied with ...