United States District Court, District of Columbia
BERMAN JACKSON United States District Judge
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.
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.
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. 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.
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.
The Governing Statutes and Regulations
The Board for Correction of Naval Records
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.
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).
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").
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.
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.
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,
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.
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,
"or [he] is mentally, physically, morally, or
professionally unqualified to perform the duties of the grade
for which he was selected for promotion." Id.
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),
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),
/SECNAVINST-1420-lB.pdf The Marine Corps has also provided
instructions related to withholding an officer from
nomination. See MCO P1400.31C ¶ 5003.
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.
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).
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.
Aviation Career Incentive Pay
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
SECNAVINST 7220.87A, Enclosure (1), ¶ 1,
7-200o/o20DisbursingO/o20Services/7220.87A.pdf 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.
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.
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).
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.
Plaintiff's Naval Service and Conviction
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.
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.
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.
Plaintiff's Consideration for Promotion
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;
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.
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. 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.
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.
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
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.
noted above, plaintiffs conviction was set aside in April of
2012. AR 431; Second Am. Compl. ¶ 30.
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
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, " 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. §
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. AR 1428; 10
U.S.C. § 632(a).
the adverse fitness report documenting plaintiffs conviction
was removed from his record,  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.
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.
Plaintiff's Requests for Administrative Action
First Request to the Board
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,  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
• 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
• 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.
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