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Stewart v. Stackley

United States District Court, District of Columbia

May 1, 2017

NICHOLAS STEWART, Plaintiff,
v.
SEAN J. STACKLEY, Acting Secretary of the Navy, in his official capacity[1] Defendant.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON United States District Judge

         Plaintiff Nicholas Stewart is a decorated Captain in the United States Marine Corps who graduated from the U.S. Naval Academy and has been serving continuously on active duty since 2001. He has brought this case under the Administrative Procedure Act to challenge several decisions made by the Navy, and the parties' cross-motions for summary judgment are pending before the Court.

         In December 2008, plaintiff was charged with committing aggravated sexual assault, and he was still awaiting his trial by court-martial at the time he would have otherwise been eligible for promotion to the rank of Major. Plaintiff was convicted and incarcerated, but his conviction was later overturned by the United States Court of Appeals for the Armed Forces on double jeopardy grounds. In the wake of those circumstances, plaintiff filed several applications with the Board for Correction of Naval Records seeking corrective action related to the references to the conviction contained in his naval records and the status of his eligibility for promotion, and he also sought other administrative relief related to his pay.

         The Court cannot help but observe that after multiple requests for reconsideration and many layers of administrative review, plaintiff was ultimately quite successful in expunging negative information from his military record and resuscitating his career. Nonetheless, he seeks review of three discrete determinations made by or on behalf of the Secretary of the Navy along the way. First, since plaintiff was unable to serve in an aviation assignment during the time he was in custody, he challenges the denial of his request for a waiver of the flying requirement necessary to his continued receipt of Aviation Career Incentive Pay (Count I). Second Am. Compl. [Dkt. # 31] ¶ 57.[2] Second, plaintiff objects to a portion of the final decision made by the Acting Assistant Secretary of the Navy, in which the Acting Assistant Secretary reversed an earlier recommendation made by the Board that plaintiff considered favorable and did not challenge (Counts II and III). Id. ¶¶ 53, 59, 61. Third, plaintiff challenges the nature of the remedy crafted by the Acting Assistant Secretary to address his lost promotion opportunities (Count IV). Id. ¶ 63.

         The parties filed cross-motions for summary judgment. After reviewing the record in accordance with the deferential standard that applies to the review of military decisions, the Court will grant defendant's motion for summary judgment as to Counts II, III, and IV, and deny it in part as to Count I, remanding the decision to deny plaintiffs Aviation Career Incentive Pay flight gate waiver request to the Secretary of the Navy for further consideration and clarification. In light of that ruling, the Court will deny plaintiffs cross-motion for summary judgment as to Counts II, III, and IV, and deny the motion as to Count I as moot.

         BACKGROUND

         I. The Governing Statutes and Regulations

         A. The Board for Correction of Naval Records

         Pursuant to 10 U.S.C. § 1552(a)(1), "[t]he Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice." In most circumstances, "such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department." Id. Based on this statutory authority, the Secretary of the Navy established the Board for Correction of Naval Records (the "Board") to oversee the "correction of naval and marine records, " and promulgated regulations codified in Title 32 of the Code of Federal Regulations to govern correction proceedings. See 32 C.F.R. §§ 723.1-723.2.

         The Board's "function is to consider applications properly before it for the purpose of determining the existence of error or injustice in the naval records . . ., to make recommendations to the Secretary or to take corrective action on the Secretary's behalf when authorized." 32 C.F.R. § 723.2(b). The Board has the delegated authority to take final corrective action on behalf of the Secretary for certain naval records, but it must forward its recommendations to the Secretary when (1) "[c]omments by a proper naval authority are inconsistent with the Board's recommendation, " (2) "[t]he Board's recommendation is not unanimous, " or (3) "[i]t is a category of petitions reserved for decision by the Secretary of the Navy." Id. § 723.6(e)(1); see Id. § 723.7(a). Categories of petitions that are reserved for decision by the Secretary include: (1) "[petitions involving records previously reviewed or acted upon by the Secretary wherein the operative facts remained substantially the same, " and (2) "[s]uch other petitions, as, in the determination of Office of the Secretary or the Executive Director, warrant Secretarial review." Id.% 723.6(e)(2).

         Once a Board record is forwarded to the Secretary of the Navy for final action, the Secretary may grant or deny relief, or the Secretary may return the record to the Board for further consideration. 32 C.F.R. § 723.7(a). If the Secretary decides to deny relief, "such decision shall be in writing and, unless he or she adopts in whole or in part the findings, conclusions and recommendations of the Board, or a minority report, shall include a brief statement of the grounds for denial." Id.; see Id. § 723.3(e)(4) (describing what is necessary for a "brief statement of the grounds for denial").

         After a final decision is reached, a petitioner may seek reconsideration of the decision. See 32 C.F.R. §723.9. "[F]urther consideration will be granted only upon presentation by the applicant of new and material evidence or other matter not previously considered by the Board." Id. "If such evidence or other matter has been submitted, the request shall be forwarded to the Board for a decision." Id.

         B. Promotions

         In order to be considered by a selection board for promotion under 10 U.S.C. § 611(a), the Secretary of the Navy must determine that the officer is "fully qualified for promotion to the next higher grade." 10 U.S.C. § 624(a)(3)(D). In determining whether an officer is "fully qualified for promotion, " the Secretary must determine if the officer is "among the officers best qualified for promotion to such grade." Id. % 624(d)(2).

         "[T]o ensure officers to be promoted [in the Marine Corps] meet the highest standards of conduct, " the Commandant of the Marine Corps, Manpower Management Promotion Branch, "in coordination with the Staff Judge Advocate to the Commandant of the Marine Corps . . . manages the officer promotion adverse process." Marine Corps Order ("MCO") P1400.31C ¶ 5000, http://www.hqmc.marines.mil/Portals/135/MCOo/o20P1400.31C.pdf After a promotion board adjourns, "[a]ll the officers selected by a promotion board are screened for potentially adverse information ... to ensure no new information of an adverse nature appears." Id. ¶ 5002.

         An officer will not be "fully qualified for promotion, " and his promotion may be delayed, if "there is cause to believe that the officer has not met the requirement for exemplary conduct-set forth in 10 U.S.C. § 5947, [3] "or [he] is mentally, physically, morally, or professionally unqualified to perform the duties of the grade for which he was selected for promotion." Id. § 624(d)(2).

         The Secretary of Defense has authorized the Secretary of the Military Departments to delay appointment of an officer on a promotion list pursuant to section 624 or to withhold the name of an officer from an appointment scroll. See Department of Defense Instr. ("DODI") 1320.14, Enclosure 3, ¶ 5(e)-(f), http://www.dtic.mil/whs/directives/corres/pdf/132014p.pdf And the Secretary of the Navy has further implemented section 624 by authorizing that the Secretary may withhold the name of any officer "with adverse or alleged adverse information" from the nomination scroll before the scroll is forwarded to the Senate for confirmation via the President. Secretary of the Navy Instr. ("SECNAVINST") 1420. IB ¶ 15(i), http://dopma-ropma.rand.org/pdf /SECNAVINST-1420-lB.pdf The Marine Corps has also provided instructions related to withholding an officer from nomination. See MCO P1400.31C ¶ 5003.

         "If the Secretary of the Navy withholds an officer's name from nomination, the officer shall be notified in writing of such action, and be afforded the opportunity to submit a written statement to the Secretary of the Navy . . . ." MCO P1400.31C ¶ 5003(1). After the Commandant of the Marine Corps reviews the officer's statement, the Commandant "will recommend either that the officer be promoted, or that he/she be removed from the promotion list." Id. If the Secretary of the Navy decides to promote the officer, "a separate nomination package containing the officer's name shall be forwarded to the Secretary of Defense, the President ... or the Senate appropriate." Id. ¶ 5003(2)(a). If an officer's name is removed from the promotion list "by the President or the Secretary of the Navy acting for the President, [the officer] incurs a failure of selection ... and continues to be eligible for consideration for promotion." Id. ¶ 5003(2)(b). "If the officer is recommended for promotion by the next selection board, and the Secretary of the Navy approves the report of the board, the officer's name shall be placed on the promotion list without prejudice." Id.

         But if an officer "whose name is on a list of officers approved for promotion" under 10 U.S.C. § 624(a) to a position "for which appointment is required by" 10 U.S.C. § 624(c) "to be made by and with the advice and consent of the Senate is not appointed to that grade" within eighteen months, "the officer's name shall be removed from the list." 10 U.S.C. § 629(c)(1), (4). The President may extend the eighteen month promotion eligibility period by an additional twelve months. Id. § 629(c)(2).

         And when an officer is "considered but not selected for promotion by a selection board convened under section 611(a), " he "shall be considered to have failed of selection for promotion." 10 U.S.C. § 627. If an officer "has failed of selection for promotion" two times, that officer is at risk of discharge. See Id. §632.

         C. Aviation Career Incentive Pay

         An officer entitled to basic pay "is also entitled to aviation career incentive pay . . . for the frequent and regular performance of operational or proficiency flying duty." 37 U.S.C. § 301a(a)(1). This additional pay is "intended to attract and retain officers in a military aviation career." DODI 7730.57, Glossary, Part II (Definitions), http://citeseerx.ist.psu.edu/view doc/download?doi=10.1.1.440.3747&rep =repl&type=pdf; SECNAVINST 7220.87A, Enclosure (1), ¶ 1, https://doni.daps.dla.mi1/Directives/07000o/o20Financialo/o20Managemento/o20Services/0 7-200o/o20DisbursingO/o20Services/7220.87A.pdf[4] Aviation Career Incentive Pay ("ACIP") is "restricted to regular and reserve officers who hold, or are in training leading to, an aeronautical rating or designation and who engage and remain in aviation service on a career basis." 37 U.S.C. § 301a(a)(2). "To be entitled to continuous monthly incentive pay, an officer must perform the prescribed operational flying duties (including flight training but excluding proficiency flying) for 8 of the first 12, and 12 of the first 18 years of the aviation service of the officer." Id. § 301a(a)(4). The "screening point at the end of specific periods of aviation service (normally at the 12 and 18 year marks) used to determine eligibility for continuous ACIP" is called a "flight gate." SECNAVINST 7220.87A, Enclosure (1), ¶ 7.

         The Secretary of the Navy "may permit, on a case by case basis, an officer to continue to receive continuous monthly incentive pay despite the failure of the officer to perform the prescribed operational flying duty requirements during the prescribed periods of time so long as the officer has performed those requirements" for at least six years of aviation service. 37 U.S.C.§301a(a)(5); see also SECNAVINST 7220.87A ¶ 5(a) ("The Aviation Career Improvement Act of 1989 authorized the Secretary of the Navy ... to waive ACIP flight gate requirements for aviators who are unable to meet their flying gates due to reasons beyond their control"). This action is typically called a "flight gate waiver." See generally SECNAVINST 7220.87A.

         An aviation officer will not be eligible for a flight gate waiver if the individual has "voluntarily turn[ed] down a flying opportunity or elect[ed] to move to a non-flying position, which would preclude the possibility of meeting their ACIP requirements." SECNAVINST 7220.87A ¶ (5)(b)(1)(a). And "[i]individuals who have received a previous [] flight gate waiver are generally not considered eligible for a second waiver, except in extraordinary circumstances." Id. ¶ (5)(b)(1)(c).

         Once a request for waiver has been submitted, the waiver package is routed via the chain-of-command to the Secretary of the Navy. SECNAVINST 7220.87A ¶ 5(b)(3). Once the waiver package is received by the Assistant Secretary of the Navy (Manpower and Reserve Affairs), "the flight gate waiver request package will be reviewed for content, validity, and rationale and forwarded to [the Secretary of the Navy] with a recommendation to approve, disapprove, or to be returned to Navy or Marine Corps for further action." Id. ¶ 5(b)(5).

         II. Plaintiff's Naval Service and Conviction

         Plaintiff has served on active duty in the United States Marine Corps since he graduated from the Naval Academy and was commissioned as Second Lieutenant on May 25, 2001. Second Am. Compl. ¶¶ 5-6. After completing his basic officer training, plaintiff was assigned to attend Navy flight training, and he received his Naval Aviator's "Wings of Gold" on October 31, 2003. Id. ¶ 8. He was subsequently assigned to train as an AV-8B Harrier pilot, and was then assigned to a Fleet Marine Force Squadron. Id. ¶ 9. From August 2005 to March 2006, and from July 2007 to January 2008, plaintiff deployed with the 22nd Marine Expeditionary Unit and participated in air combat operations, including Operations Iraqi Freedom and Enduring Freedom. Id. ¶ 10.

         However, on December 12, 2008, plaintiff was charged with committing aggravated sexual assault while serving as a Captain in the Marine Corps. Second Am. Compl. ¶ 14. Plaintiffs counsel successfully moved for severance of the charge into two separate specifications - one for aggravated assault and one for aggravated sexual assault - and on September 17, 2009, a military panel acquitted plaintiff of the first severed specification of aggravated assault, but convicted him of the second specification of aggravated sexual assault. Id. ¶¶ 21-22. Plaintiff was sentenced to total forfeiture of pay and allowances, two years confinement, and a dismissal. Id.¶23; Administrative Record [Dkt. # 34] ("AR") 1211.

         Plaintiff appealed to the all-military officer Navy-Marine Corps Court of Criminal Appeals, but the court denied plaintiffs appeal on January 31, 2011. Second Am. Compl. ¶ 26. Plaintiff then petitioned for a grant of review with the United States Court of Appeals for the Armed Forces, which the court granted. Id. ¶¶ 27-28. On March 6, 2012, the court found that plaintiffs conviction of the same offense for which the court-martial had already acquitted him violated the Double Jeopardy Clause of the Fifth Amendment. Id. ¶ 30. And on April 23, 2012, the court set aside plaintiffs conviction and sentence, and dismissed the specification and charge with prejudice. Second Am. Compl. ¶ 30; AR 431. Plaintiff was then ordered back to active duty from involuntary appellate leave to his previous duty station at Quantico, Virginia. Second Am. Compl. ¶ 31.

         III. Plaintiff's Consideration for Promotion

         In August 2009, after plaintiff had been charged and while he was awaiting trial, he was selected for promotion from Captain to Major. Second Am. Compl. ¶ 20; AR 233. Based on his lineal standing, his promotion would have been effective on November 1, 2011. Second Am. Compl. ¶ 20; AR 1191.

         On September 15, 2009, just a few days before plaintiff was convicted, the FY11 U.S. Marine Corps Major Promotion Selection Board recommended plaintiff for promotion to Major. AR 229-32. However, after the verdict was returned, plaintiff received an adverse fitness report for the period of May 8, 2009 to September 18, 2009. AR 1380-87.

         The Commandant of the Marine Corps approved and forwarded the FY11 U.S. Marine Corps Major Promotion Selection Board Report ("FY11 Selection Board Report") on October 28, 2009, and the Secretary of the Navy did so as well on December 7, 2009. AR 228.[5] In a memo from the Secretary of the Navy to the Deputy Secretary of Defense on December 7, 2009, the Secretary of the Navy recommended that the Deputy Secretary of Defense approve the FY11 Selection Board Report, which contained 668 names, and forward the "nomination scroll containing the names of 663 captains whom [he] recommend[ed] for promotion to the grade of major." AR 236. In the memo, the Secretary of the Navy specified that he "withheld from the nomination scroll the names of five selected officers whose files and records contain[ed] adverse information or potential adverse information." AR 236. Plaintiffs name was one of the five withheld from the nomination scroll. AR 236, 238.

         On December 15, 2009, the Deputy Secretary of Defense approved the FY11 Selection Board Report, see AR 227, and forwarded the nomination scroll to the President with a recommendation to nominate the 663 officers on the scroll for appointment to the grade of Major. AR 237. The President then nominated the 663 officers for appointment to the grade of Major and forwarded the nomination scroll to the Senate for confirmation. AR 239-55.

         On March 5, 2010, the Marine Corps sent a letter to plaintiff, informing him that his "promotion [had] been withheld" and that he was under consideration for removal from the FY11 Major Promotion List after a "records check revealed potentially adverse information concerning [his] conviction at a General Court-Martial." AR 71. The letter notified plaintiff that he could "submit a response to the promotion withhold" within ten days of his receipt of the letter, and that the information provided "will allow the Commandant of the Marine Corps and the Secretary of the Navy to assess [his] case based on all of the facts and circumstances, including [his] explanation, if any." AR 71-72. An acknowledgement of receipt was included with the letter. AR 71. However, plaintiff claims he never received the letter, Second Am. Compl. ¶¶ 34-35, and the Marine Corps Judge Advocate Division cannot confirm that he did. AR 75 ("We cannot, however, confirm that Captain Stewart ever received this letter").

         While plaintiff was still incarcerated and his promotion was under review, he was not considered for promotion to Major by the FY12 U.S. Marine Corps Major Promotion Selection Board that convened in August 2010. AR 467; see 10 U.S.C. § 619(d)(1).

         As noted above, plaintiffs conviction was set aside in April of 2012. AR 431; Second Am. Compl. ¶ 30.

         On August 6, 2012, plaintiff was considered by the FY 2013 Transition/Conversion Board, which identifies pilots who currently fly the Harrier Jet to transition to flying the Joint Strike Fighter, but he was not selected See AR 1199-1200; MCO 1331.2K, http://www.marines.mil/Port als/59/Publications/MCOo/o201331.2K.pdf?ver=2012-10-ll-163603-367.

         On August 14, 2012, plaintiff received a letter from the Commandant of the Marine Corps informing him that his name had been removed from the FY11 Maj or Promotion List "by operation of law." AR 1215; see 10 U.S.C. § 629(c). The letter also stated that because he was being removed from the FY11 Major Promotion List, he was "fully eligible for selection by the FY14 Major Promotion Selection Board, "[6] and that if he was "recommended for promotion by the next selection board" and ultimately promoted, he could "request that the Secretary of the Navy grant [him] the same date of rank and effective date on the active-duty list as [he] would have had if [his] name had not been removed from the FY11 Major Promotion List." AR 1215-16. However, the letter also warned that if plaintiff was not recommended for promotion by the FY14 Major Promotion Selection Board, he would be "considered to have twice failed selection for promotion, " id. at 1216, which would put plaintiff at risk of discharge. See 10 U.S.C. § 632.

         Plaintiff was considered for promotion to Major by the FY14 U.S. Marine Corps Major Promotion Selection Board on August 21, 2012, but he was not selected for promotion. See AR 1177, 1200. On January 4, 2013, plaintiff received a letter from the Commandant of the Marine Corps informing plaintiff that because he "twice failed selection to the next higher grade, " he must be "separated" from the Marine Corps no later than July 1, 2013.[7] AR 1428; 10 U.S.C. § 632(a).

         After the adverse fitness report documenting plaintiffs conviction was removed from his record, [8] plaintiff was considered for promotion to Major by the FY15 U.S. Marine Corps Major Promotion Selection Board convened in August 2013. See AR 135-36. But he was not selected for promotion. AR 135-36. As a result, plaintiff was notified on March 25, 2014 that he faced mandatory separation as of July 1, 2014. AR 904-05.

         In August 2014, plaintiff was considered for promotion by the FY16 U.S. Marine Corps Major Selection Promotion Board, but he was again not selected for promotion. AR 277-84.

         IV. Plaintiff's Requests for Administrative Action

         A. First Request to the Board

         On June 14, 2012 plaintiff filed an Application for Correction of Military Record with the Board under 10 U.S.C. § 1552. AR 821; Second Am. Compl. ¶ 40. In that filing, supplemented by three additional submissions, [9] plaintiff requested that the Board take the following actions:

• Remove a performance evaluation covering the period of May 8, 2009 to September 18, 2009 that reported the conviction from his official record;
• Remove all other documents reflecting plaintiffs conviction by general court-martial;
• Place an administrative filler in the record directing that any promotion board not consider or draw any adverse inference from the gap in plaintiffs official record from May 8, 2009 to September 18, 2009;
• Direct that no information about events leading to plaintiffs trial, conviction, and successful appeal be reported to any agency or Department of Defense personnel for the purpose of calling into question his fitness for future appointments;
• Direct that the DNA sample obtained as a result of the conviction, and any typing of the sample, be destroyed and expunged from the Combined DNA Index System
• Reinstate plaintiff to the FY11 Major Promotion List, or alternatively, grant plaintiff Special Selection Board ("SSB") consideration for the FY 2011 Major Selection Board and, if necessary, the FY 2012 Major Selection Board;
• Remove plaintiffs deemed failure-of-selection by the FY 2011 Major Selection Board and his failure-of-selection by the FY 2014 Major Selection Board from his naval record;
• Set aside any action to remove plaintiff from active duty on July 1, 2013 based on the failures of selection by the FY 2011 and FY 2014 Major Selection Boards;
• Remove plaintiffs failure-of-selection by the FY 2013 Transition/Conversion Board C'TCB") for F-35 transition from the record and grant him reconsideration by the F-35 Transition/Conversion Board with a corrected record;
• Adjust plaintiff s leave balance for leave lost as a result of plaintiff s conviction; and
• Award plaintiff moving expenses incurred as a result of his incarceration and return to active duty.

AR 464-66; see Second Am. Compl. ¶ 42.

         While plaintiffs application was pending, the Marine Corps Judge Advocate Division submitted an advisory opinion to the Board. See AR 1192-1210. It advised the Board that in its view, plaintiff was entitled to the following relief:

• The adverse fitness report covering the period of May 8, 2009 to September 18, 2009 should be removed from plaintiff s record, and a memorandum addressing the gap in ...

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