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Code v. Esper

United States District Court, District of Columbia

December 19, 2017

MARK T. ESPER[1], Defendant.



         Plaintiff Christopher J. Code, a former Lieutenant in the Navy and a current member of the Navy Individual Ready Reserves, seeks judicial review in this case of a final decision of the Army Board for Correction of Military Records (“ABCMR”). In the challenged decision, the ABCMR denied Plaintiff's petition to correct his military records and to vacate a debt of $44, 200 he owes to the United States Department of Defense (“DOD”). The gravamen of Plaintiff's petition to the ABCMR was that the United States Army Criminal Investigation Command (“CID”) had incorrectly “titled”[2] him in a Report of Investigation (“ROI”) that concluded that Plaintiff committed certain crimes. Specifically, the ROI concluded that Plaintiff fraudulently represented the nature of his orders on an official school application in order to make his children appear eligible for tuition-free education at a DOD school located in Puerto Rico. Plaintiff denies he did anything wrong.

         Presently before the Court are Defendant's [19] Motion for Summary Judgment and Plaintiff's [20] Cross-Motion for Summary Judgment. Upon consideration of the pleadings, [3] the relevant legal authorities, and the record as a whole, the Court will GRANT-IN-PART and DENY-IN-PART both motions. Keeping in mind the narrow scope of its review under the Administrative Procedure Act (“APA”), the Court concludes that there was nothing arbitrary, capricious or contrary to law about the ABCMR's conclusion that there was sufficient evidence to support the CID's decision to title Plaintiff with the charges of Obtaining Services under False Pretenses and Making a False Official Statement. The Court also finds nothing arbitrary, capricious, or otherwise improper about the ABCMR's determination that the CID did not violate the Privacy Act by sharing its ROI with the Defense Finance and Accounting Service (“DFAS”). Nor will the Court disturb the ABCMR's finding that the CID did not commit error by valuing Plaintiff's debt using the tuition rates for the school at which Plaintiff's children were enrolled. The Court does, however, find that the ABCMR's refusal to take corrective action regarding a Commander's Report of Disciplinary or Administrative Action (“CRDA”)-which all parties agree was completed by an individual who lacked authority to do so-was arbitrary and capricious and not in accordance with law. The Court will order that the CRDA be expunged.

         I. BACKGROUND

         A. Factual Background and Initial Administrative Proceedings

         Plaintiff was issued Permanent Change of Station (“PCS”) Orders on January 4, 2005, requiring him to report to Fort Buchanan in San Juan, Puerto Rico for a three year period beginning in August 2005 and lasting until July 2008. AR000264-67. Plaintiff's three children accompanied him to Puerto Rico and were enrolled in a DOD Education Activity (“DODEA”) school at Fort Buchanan (“the Fort Buchanan School”) for the 2005-2006 and 2006-2007 school years. AR000298. The Fort Buchanan School is tuition-free for certain individuals stationed in Puerto Rico.

         In early 2007, Plaintiff was advised by a Navy detailer that “at some point before [his] current orders expired in July 2008, [he] would receive new permanent change station orders for someplace other than San Juan.” Id. Desiring to keep his family in Puerto Rico, Plaintiff submitted a formal request for an extension of his orders, asking to remain in Puerto Rico through August 2008. AR000298; AR000269. Plaintiff's chain of command supported his request for an extension. AR000270-72. Plaintiff states that he “believe[d] that the request would be granted.” AR000298.

         It was not. In a letter dated April 26, 2007, Plaintiff's request was denied by Navy Personnel Command. AR000273. Nonetheless, four days later, on April 30, 2007, Plaintiff submitted an application to re-enroll his children in the tuition-free Fort Buchanan School in Puerto Rico for the 2007-2008 school year. AR000299. In the application, despite having been told that his orders would soon be changed and that he would be required to leave Puerto Rico in 2007, Plaintiff stated that his “current orders will expire on July 2008.” AR000274. Plaintiff signed and certified that “the information provided on this form is true and correct.” Id. He claims that “[a]t the time [he] submitted the paperwork, [he] did not yet know that [his] request for extension had been denied and still believed that [his] extension request would be granted.” AR000299. According to Plaintiff, his wife told the Registrar for the Fort Buchanan School that “there was a chance [Plaintiff] would receive new PCS orders prior to July 2008, ” but the Registrar “verbally advised” that Plaintiff's “children's eligibility to attend the Ft. Buchanan school for the 2007-2008 term was tied to [Plaintiff's] current orders.” Id.

         Plaintiff claims that he received the April 26, 2017 letter from Navy Personnel Command denying his request for an extension of his duty in Puerto Rico on or about May 8, 2017. The record contains a faxed copy of this letter with a heading that suggests that it was, in fact, transmitted on May 8. AR000306.

         On May 23, 2007, Plaintiff received his official new PCS orders requiring him to leave Puerto Rico and report to Kingsville, Texas-the orders Plaintiff had already been informed of months before. AR000299; AR000280-83. The orders required that Plaintiff report to Texas by no later than June 2007. Id. Plaintiff claims that he immediately called the Fort Buchanan School Registrar and verbally told her about his new orders. AR000299. He states that he was never instructed to remove his children from the school or told that his children were no longer eligible. Id. Plaintiff reported to his new posting in Kingsville, Texas in June 2007. AR000248; AR000252.

         On January 24, 2008, the CID discovered that Plaintiff's children were still enrolled in the Fort Buchanan School despite the fact that Plaintiff had moved to Texas. AR000246. They commenced an investigation.

         Investigators interviewed the Registrar for the Fort Buchanan School. AR000247. The Registrar “was presented the scenario involving” Plaintiff. Id. She “advised that [Plaintiff's] children could not attend the DOD school on Ft. Buchanan since the sponsor, [Plaintiff] was no longer assigned or stationed in Puerto Rico.” Id. The Registrar also provided the investigators with a copy of Plaintiff's April 30, 2007 application for his children's enrollment at the Fort Buchanan School. Id.

         Investigators also spoke with an unnamed source who informed them that Plaintiff's assignment in Puerto Rico was only a twenty-four month tour, ending in the summer of 2007. AR000248. This does not appear to have been an accurate description of Plaintiff's orders. As explained above, Plaintiff's tour in Puerto Rico was initially scheduled to last for three years, concluding in the summer of 2008. AR000264-67. The remainder of this witness' statement, however, appears to roughly align with the other evidence in the record. The witness stated that Plaintiff knew in early 2007 that he would be ordered to leave Puerto Rico by no later than August 2007. AR000248. The witness also recounted that “[s]ometime in Apr[il] 07, [Plaintiff] requested a one year extension in Puerto Rico, which was immediately denied and he was advised that he would be” required to change postings in June 2007. Id.

         Next, an investigator met with the Assistant General Counsel for the DODEA. AR000256. During that conversation, the investigator stated that Plaintiff had falsely claimed on his children's school enrollment application that his orders would not expire until July 2008, and the Assistant General Counsel gave his opinion that Plaintiff was “not eligible to enroll his three children at the Fort Buchanan, Puerto Rico school.” Id.

         On July 29 and 30, 2009, an investigator corresponded with the individual who issued the letter to Plaintiff denying his request to extend his orders in Puerto Rico. AR000284. That individual stated that she thought she had e-mailed or faxed a copy of the letter to Plaintiff “at the time the letter was signed out.” Id. Regardless, she stated that “[i]f you are trying to prove that he intentionally defrauded the local school by saying he thought his extension was approved, I can affirm with absolute confidence that I personally told him otherwise within no more than a few days after the date on the letter.” Id.

         The CID issued its final ROI regarding Plaintiff's children's enrollment at the Fort Buchanan School on January 12, 2011. It concluded that its investigation had:

established probable cause to believe [Plaintiff] committed the offense of False Official Statement and Larceny when he falsified documentation by registering his three children in the [Fort Buchanan School] for a year while he was not assigned to the geographic area. [Plaintiff] knowingly falsified these [ ] documents 4 days after his Permanent Change of Station (PCS), extension request was denied, transferring him from Puerto Rico to Kingsville, TX. The loss to the U.S. Government was $44, 200.00.

AR000242; see also AR000005-06.

         Despite the conclusions of the CID, the United States Attorney's Office in San Juan declined to prosecute Plaintiff and referred any action to the DOD and Plaintiff's chain of command. AR000242. No disciplinary actions were taken against Plaintiff by his chain of command. AR000006.

         Prior to the issuance of the final ROI, an individual referred to as the “Agent in Charge” of the CID Florida Fraud Resident Agency completed a CRDA regarding the allegations against Plaintiff. AR000316-21. The form indicates that administrative action had been taken against Plaintiff for the offenses of Larceny and False Official Statement, and that Plaintiff was required to pay restitution of $44, 200.00. AR000317-19. The individual who filled out this form was not in Plaintiff's chain of command.

         Also prior to the issuance of the final ROI, on or around September 30, 2010, Plaintiff received a letter from the DFAS-a DOD component with official duties related to collecting debts owed to the Department-stating that he owed a debt to the DOD of $44, 200. AR000308- 09; AR000005. Plaintiff claims that this letter was the first notice he had received of his alleged debt or the charges against him. The record indicates that the CID had presented “documentation and a structured timeline of events” to the DFAS, and that the DFAS had accepted financial responsibility for the $44, 200 loss and initiated procedures to collect it from Plaintiff. AR000242; AR000006. When Plaintiff protested the debt to the DFAS, he was informed that the debt would remain valid unless the CID overturned the determinations in its ROI. AR000009.

         Accordingly, Plaintiff submitted a formal request to the CID asking it to amend the ROI. AR000232-38. Plaintiff requested that the ROI be amended to indicate that the charges against him were unfounded, that his name be deleted from the title block of the ROI, and that Plaintiff accordingly be removed from the “Defense Central Index of Investigations.” AR000232. Plaintiff argued that “there was no credible evidence that [he] committed any crime.” AR000233. He also requested that an “operational review” be undertaken in connection with the referral of the ROI to the DFAS. AR000232-33. On April 9, 2013, the CID issued a letter denying Plaintiff's requests. AR000224-25.

         Plaintiff then submitted a petition for correction of his military records to the ABCMR. AR000212-23. Plaintiff requested the following relief from the ABCMR: that the CID's ROI be expunged or alternatively amended to show the offenses as “unfounded, ” that the CRDA filed with respect to ...

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