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Penland v. Mabus

United States District Court, D. Columbia.

January 30, 2015

SYNEEDA LYNN PENLAND, Plaintiff,
v.
RAYMOND EDWIN MABUS, JR., Secretary of the Navy, et al., Defendants

Page 485

For SYNEEDA LYNN PENLAND, Plaintiff: Esthus Christopher Amos, LAW OFFICE OF E. CHRISTOPHER AMOS, Columbia, MD.

For RAYMOND EDWIN MABUS, JR., Secretary of the Navy, JONATHAN W. GREENERT, Chief of Naval Operations, Defendants: Peter Rolf Maier, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

For JOHN STURGES, III, Former Commanding Officer, Marine Expeditionary Security Group, ONE, GENE HARR, Former Commanding Officer, Marine Expeditionary Security Group, ONE, DONALD BULLARD, Former Commander, Navy Expeditionary Combat Command, LEENDERT HERING, SR., Former Commander, Navy Region Southwest, Defendants: Peter Rolf Maier, U.S. ATTORNEY'S OFFICE, Washington, DC.

OPINION

Page 486

ROSEMARY M. COLLYER, United States District Judge.

Syneeda Lynn Penland is a former Lieutenant Commander in the United States Navy. She was convicted of adultery and other misconduct in a military court martial and was discharged shortly before she would have become eligible for retirement benefits. Ms. Penland alleges that the Navy violated her constitutional rights in her court-martial proceedings and that the proceedings were fundamentally defective. She seeks reversal of subsequent Navy decisions leading to her separation. The Navy moves to dismiss for lack of subject matter jurisdiction on the grounds of sovereign immunity. The Navy is wrong. However, as explained below, only Ms. Penland's prayer for relief from the decision of the Board for Correction of Naval Records will go forward. Counts I, II and III of the Amended Complaint will be dismissed. In addition, the Court will dismiss all individual Defendants and the sole remaining Defendant will be Raymond E. Mabus, Jr., Secretary of the Navy, in his official capacity.

I. FACTS

Syneeda Lynn Penland enlisted in the United States Navy as an undesignated seaman in 1989. She received her bachelor's degree and two masters' degrees, was commissioned as a Naval officer, received numerous awards, and was certified as a Navy auditor and inspector general. She began serving as command comptroller for

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Maritime Expeditionary Support Group ONE (MESGO), in San Diego, California, beginning on January 1, 2006.

In January 2007, Chief Petty Officer (CPO) Kimberly Lewis-Wiggan brought a flash drive to the attention of Commander Mei Ling Marshall, staff attorney for MESGO; the flash drive contained several photos of Ms. Penland having sexual relations with a male whose face could not be identified.[1] According to Ms. Penland, CPO Lewis-Wiggan improperly obtained the photos from the laptop of Lieutenant Junior Grade (Lt.) Mark Wiggan, her husband, but with whom CPO Lewis-Wiggan was engaged in divorce proceedings.[2] The photos were allegedly on Lt. Wiggan's computer because Ms. Penland had previously loaned him her digital camera and he had inadvertently downloaded the photos onto his laptop.

When the photos were discovered, Ms. Penland was " offered mast, a low level administrative punishment." Am. Compl. ¶ 25. She declined mast and her commanding officer, Captain John Sturges, formally charged her with adultery, conduct unbecoming an officer, disobeying a lawful order, and making a false official statement. The charges were based on allegations that Ms. Penland used her Navy-issued cellular phone to harass CPO Lewis-Wiggan, lied about making such calls, distributed nude photos of Lt. Wiggan to CPO Lewis-Wiggan, and participated in a sexual relationship with Lt. Wiggan. See Exhibits in Support of Def. Mot. to Dismiss [Dkt. 12-2], Def. Ex. 1 at 2-4; [3] see also Def. Ex. 4 at 14. Ms. Penland alleges that Capt. Sturges retaliated against her by bringing severe charges because she had accused him of financial improprieties in his official duties. She was stripped of her security clearance, immediately removed from duty, and faced a Navy court martial. Lt. Wiggan was not prosecuted for his alleged role in the affair and, instead, received immunity. He denied under oath that he and Ms. Penland had had a sexual relationship. At trial, the prosecution relied on the testimony of CPO Lewis-Wiggan, who identified Lt. Wiggan as the man in the photos based on the location of moles on his body.

On May 24, 2008, Ms. Penland was convicted on four counts by the members of the court martial: (1) violating a lawful general order by wrongfully using government property for other than authorized purposes in violation of 10 U.S.C. Article 92, Uniform Code of Military Justice (UCMJ), § 892; (2) making a false official statement in violation of Article 107, UCMJ, 10 U.S.C. § 907; (3) conducting herself in a matter unbecoming an officer

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in violation of Article 133, UCMJ, 10 U.S.C. § 933; and (4) adultery in violation of Article 134, UCMJ, 10 § U.S.C. 934. See Def. Ex. 1 at 2-4. She was sentenced to a reprimand, a 60-day term of incarceration, and a fine of $9,000. The court-martial sentence did not mandate that she be separated from the Navy.

Four months later, Capt. Sturges ordered Ms. Penland to appear before a Navy administrative Board of Inquiry (BOI) to show cause why she should not be discharged.[4] Ms. Penland alleges she was not permitted to introduce testimony from her civilian boyfriend at the BOI hearing and the BOI was not " allowed to consider fundamental defects" in the court martial when making its decision. Am. Compl. ¶ 26. The BOI found that Ms. Penland had committed misconduct and substandard performance of duty, and recommended that she be separated from Naval Service with the characterization of " General (Under Honorable Conditions)." [5] Def. Ex. 3 at 12. The BOI's recommendation was accepted and approved on June 29, 2009 by the Acting Assistant Secretary of the Navy (Manpower and Reserve Affairs).[6]

On July 29, 2009, Ms. Penland filed a petition for a writ of mandamus and a motion for a preliminary injunction to challenge and forestall her imminent discharge. See Penland v. Mabus, 643 F.Supp.2d 14, 17 (D.D.C. 2009). The court denied her motions. See id. at 21, 23.[7] On July 31, 2009, Ms. Penland was officially discharged from the U.S. Navy with a discharge of " General (Under Honorable Conditions); " " Unacceptable Conduct" was the reason listed for separation. Def. Ex. 5 at 17. Ms. Penland states that she was involuntarily separated from the Navy five months before she was eligible for retirement benefits, including a lifetime pension and medical coverage.

On July 18, 2012, Ms. Penland filed an application for correction of military records under 10 U.S.C. § 1552, seeking to have her conviction overturned. The Board for Correction of Naval Records (BCNR) reviewed her application and decided that " the evidence submitted [by Ms. Penland to the BCNR] was insufficient to

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establish the existence of probable material error or injustice." Def. Ex. 7 at 21. Writing to Ms. Penland on May 15, 2013, the BCNR noted that it did not have authority to remove a conviction by a general court martial and that it could only review such a sentence for clemency. Id. at 22. Upon review, the BCNR found her sentence was appropriate considering the nature of her offenses. Id. Finally, the BCNR advised that the Military Whistleblower Protection Act protects only those service members who make a protected communication to an inspector general or member of Congress prior to any alleged reprisal, and it found no evidence that Ms. Penland had done so prior to her referral to the court martial. Id.

Ms. Penland is currently residing in Buford, Georgia. She is unemployed and receiving treatment for blood cancer. Her only source of income is her ...


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