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Cooper v. United States

United States District Court, District of Columbia

January 10, 2018

EVAN E. COOPER, Plaintiff,


          Amit P. Mehta, United States District Judge


         Plaintiff Evan E. Cooper, a Navy commander who retired after accepting a non-judicial disposition of misconduct, brings this action under the Administrative Procedure Act seeking review of a Board for Correction of Naval Records (“Board”) decision that denied him changes to his naval records. As relevant here, Plaintiff argued that changes were warranted because: (1) the informal misconduct proceeding that led to his retirement was invalid because Plaintiff did not receive meaningful advice of counsel before agreeing to that process; and (2) the Navy breached its promise to recommend to the Secretary of the Navy the highest possible retirement pay grade that Plaintiff could receive. Plaintiff asked the Board to remove records relating to the misconduct proceeding and to correct his records to reflect retirement at the higher pay grade. The Board rejected those requests.

         The court concludes that the Board acted arbitrarily and capriciously by failing to address the substance of Plaintiff's first argument, but finds no merit in Plaintiff's second ground for relief.

         Accordingly, the court enters judgment in part for Defendant and remands to the Board for further proceedings consistent with this Memorandum Opinion.


         A. Events Leading to Plaintiff's Retirement

         Plaintiff Cooper is a retired commander in the United States Navy Reserve. Am. Compl., ECF No. 2, ¶¶ 1, 3. The events leading to Plaintiff's retirement are at the heart of this action.

         Following an accusation that Plaintiff had submitted fraudulent travel reimbursement claims, the Navy initiated a Non-Judicial Punishment (“NJP”) proceeding against Plaintiff. See Admin. R. [hereinafter AR], at 6-7, 20-23, 49-52, 95.[1] An NJP is an informal, administrative process that an accused service member may choose in lieu of trial by court-martial to defend against allegations of wrongdoing. See id. at 104-06. Critically, by choosing the NJP route, the service member forgoes constitutional rights available during the criminal process. Cf. Middendorf v. Henry, 425 U.S. 25, 42-43, 48 (1976) (holding that Fifth and Sixth Amendment rights applicable to criminal proceedings do not apply in a military administrative punishment proceeding). Before accepting the NJP, Plaintiff spoke to a Navy Judge Advocate General (“JAG”) about his options. AR at 95-96; Am. Compl. ¶ 4. The legal advice Plaintiff received, however, was limited. The JAG officer told Plaintiff that a Navy regulation prohibited him from establishing an attorney-client relationship with Plaintiff. AR at 95-96; see also id. at 72, 75. The JAG officer directed Plaintiff not to discuss the facts of his case with him and provided Plaintiff only “generic advice, ” including that Plaintiff had the right to refuse the NJP-an action that would set the stage for trial by court-martial. Id. at 95-96; see also id. at 72, 75. Because of the restricted scope of the discussion, Plaintiff asserts that he did not know “whether it was likely [he] would be convicted if the case went to court-martial.” Id. at 95-96.

         Despite the claimed lack of meaningful legal advice, Plaintiff selected the NJP process and pleaded not guilty. Id. at 9, 96. He was found guilty at the NJP proceeding on May 28, 2008, and was given a Punitive Letter of Reprimand. Id. at 49-52; see also id. at 6. After the NJP hearing, Plaintiff was provided with a document titled “Accused's Notification and Election of Rights”-a form by which he could waive his right to trial by court-marital-which stated that an accused “may obtain the advice of a lawyer prior to” deciding whether to accept NJP. Id. at 72-73, 96, 105. The form contained a question asking Plaintiff whether he wished to talk to a military lawyer or a civilian lawyer, or whether he “voluntarily[, ] knowingly, and intelligently” waived his right to talk to counsel before proceeding. Id. at 107. Plaintiff did not complete this section of this form. Id. at 95-96, 107.

         The Punitive Letter of Reprimand that Plaintiff received precipitated his retirement. In a letter dated January 22, 2010, the Navy ordered Plaintiff to show cause before a Navy Board of Inquiry why, in light of the misconduct finding, he should not be discharged from service. Id. at 3- 4, 96. The letter warned Plaintiff that the show cause proceeding could result in his separation from the Navy and that his retirement pay grade could be lowered to the “last pay grade in which you served satisfactorily, ” i.e., before his misconduct. Id. at 3. For Plaintiff, that meant risking possible separation from the Navy at an O-3 pay grade. Even though Plaintiff held the pay rank of O-5 at the time the show cause order was issued, because his misconduct occurred while he was at the O-4 level, the last pay grade at which he “served satisfactorily” was O-3. See id. at 3, 34.

         The Punitive Letter of Reprimand, however, offered Plaintiff a way to avoid going before the Naval Board of Inquiry for a show cause proceeding. As explained in the January 22, 2010 letter, Plaintiff could opt to voluntarily retire in lieu of the proceeding, in which case his request that would be processed in accordance with a Navy regulation on retirement grade recommendations. Id. at 4, 70. Before making a decision, Plaintiff spoke with a different JAG officer, Andrew House, who explained the Board of Inquiry process and “negotiated on [Plaintiff's] behalf with the Show Cause Authority” for an agreement where the Show Cause Authority would “recommend to the Secretary that [Plaintiff] retire at the rank of O-5” if Plaintiff retired in lieu of the Board of Inquiry. Id. at 96- 97. Plaintiff understood, however, that a final decision as to his retirement level rested solely with the Secretary of the Navy and that the Secretary was not obligated to accept the negotiated O-5 retirement-grade recommendation. Id. at 97.

         Plaintiff requested retirement on February 19, 2010. Id. at 1, 5. In a letter formally making the request, Plaintiff stated “[his] understanding that Commander, Navy Personnel Command will recommend my retirement at paygrade O-5 (Commander), ” yet acknowledged that the Secretary could retire him at a “lesser paygrade” than his current level. Id. at 5. At some later point, the Assistant Commander, Navy Personnel Command for Career Progression, recommended to the Chief of Naval Personnel that Plaintiff be retired at the O-5 pay grade. Id. at 511-12. The Deputy Chief of Naval Operations, however, countermanded the Assistant Commander's request and instead, on January 10, 2011, recommended to the Secretary that Plaintiff's retirement be accepted at the rank of O-3. Id. at 1-2. The Secretary accepted the lower recommendation, resulting in Plaintiff's retirement at the O-3 pay level. See id. at 2.

         B. Plaintiff's Efforts to ...

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