United States District Court, District of Columbia
ROSEMARY M. COLLYER, United States District Judge
Syneeda Lynn Penland sued the Secretary of the Navy to invalidate a decision by the Board for Correction of Naval Records (BCNR) to leave intact a court-martial conviction and to deny Ms. Penland clemency. The BCNR denied clemency, in part, because Ms. Penland was not a whistleblower under the Military Whistleblower Protection Act. In this respect, the BCNR erred. The case will be remanded for reconsideration of whether Ms. Penland’s eligibility as a whistleblower and claims of retaliation entitle her to clemency.
The Court previously winnowed Ms. Penland’s claims to one: her appeal of the BCNR’s decision. Penland v. Mabus, 78 F.Supp. 3d 484, 495-96 (D.D.C. 2015). The Court also dismissed all defendants except for Secretary Mabus. Only a brief recitation of facts, drawn from the Administrative Record [Dkt. 24] (AR), is necessary for present purposes.
A. Events Prior to the Board for Correction of Naval Records
Syneeda Lynn Penland was a Lieutenant Commander in the U.S. Navy. One year into her tour at the Maritime Expeditionary Support Group (MESG) ONE, certain photos of Ms. Penland surfaced. These photos allegedly showed Ms. Penland, who was unmarried, having sex with the husband of an enlisted sailor in Ms. Penland’s command.
After refusing non-judicial punishment, AR 324, Ms. Penland was charged on June 5, 2007 with five counts of violating the Uniform Code of Military Justice (UCMJ), including violating a lawful general order by wrongfully using government property for other than authorized purposes in violation of Article 92, UCMJ, 10 U.S.C. § 892; making a false official statement in violation of Article 107, UCMJ, 10 U.S.C. § 907; conducting herself in a manner unbecoming an officer in violation of Article 133, UCMJ, 10 U.S.C. § 933; committing indecent acts with another in violation of Article 134, UCMJ, 10 U.S.C. § 934; and committing adultery in violation of Article 134, UCMJ, 10 U.S.C. § 934. See generally AR 30-32.
On June 21, 2007, Ms. Penland filed an Equal Opportunity (EO) Complaint alleging race discrimination and retaliation. See AR 414-15. The Navy investigated her allegations and collected nineteen sworn statements from individuals implicated by her complaint. See AR 450. On July 16, 2007, the EO investigator issued a seventeen-page analysis recommending that Ms. Penland’s EO Complaint be dismissed as unsubstantiated. See AR 450-466. On March 18, 2008, the Navy denied Ms. Penland’s request for a reinvestigation after again finding her claims to be unsubstantiated. See AR 840.
On May 24, 2008, a general court martial convicted Ms. Penland of four of the five counts; the indecent-acts allegation was dismissed. See AR 1-2, 25-26. Ms. Penland was sentenced to confinement for sixty days, forfeiture of $4, 500 pay per month for two months, and a written reprimand. See AR at 2, 909.
Ms. Penland requested clemency on June 11, 2008. See AR 38-40. She claimed to be the only officer in the brig where she was confined, that the sentence constituted cruel and unusual punishment, and that her sentence was the result of sex and gender discrimination. Id. Ms. Penland again requested clemency on June 13, 2008, alleging that her health and safety were in danger. See AR 42-43. These requests were denied on June 16, 2008, but the reviewing official forwarded Ms. Penland’s health-and-safety complaints to the brig’s commanding officer. See AR 41. Ms. Penland renewed her plea for clemency on August 25, 2008. AR 44-76.
On June 23, 2008, her commanding officer recommended that Ms. Penland be separated from the Navy. AR 16-19. In addition to the court-martial conviction, the recommendation cited complaints by junior personnel against Ms. Penland in June and July 2006. Other alleged transgressions by Ms. Penland included exceeding her authority and ignoring the chain of command in communications with a contractor in January 2007; allowing a contract to lapse resulting in work stoppage in February 2007; and circumventing the chain of command in February 2007. See AR 18. The commanding officer noted further that Ms. Penland had been provided a Letter of Instruction dated March 7, 2007, detailing performance concerns and suggesting actions to help Ms. Penland improve her performance. See AR 19.
On October 8, 2008, Ms. Penland was directed by letter to appear before a Board of Inquiry and show cause why she should be retained in the Navy. The letter cited both “misconduct” (the conduct underlying Ms. Penland’s conviction) and “substandard performance of duty, ” to wit, “failure to demonstrate qualities of leadership” and “failure to conform to prescribed standard.” See Mot. to Dismiss, Ex. 2, Notification of Administrative Show Cause Proceedings [Dkt. 12-2 at 6] at 1. The letter warned that Ms. Penland’s discharge could be “Other Than Honorable.” Id. at 2. The Board of Inquiry voted 3-0 to separate Ms. Penland from the Navy and to characterize her service as “General (Under Honorable Conditions).” See Mot. to Dismiss, Ex. 3, Board of Inquiry Findings Worksheet [Dkt. 12-2 at 11]. The Board found by a preponderance of the evidence, and unanimously, that Ms. Penland both committed misconduct and demonstrated substandard performance of duty. Id.
On July 29, 2009, Ms. Penland petitioned this Court for a writ of mandamus and moved for a preliminary injunction to prevent her discharge until she became eligible for retirement. See generally Penland, 643 F.Supp.2d at 17-18. The Court denied Ms. Penland’s request for temporary relief. Id.
On July 31, 2009, Ms. Penland was separated from the Navy with a “General (Under Honorable Conditions)” ...