United States District Court, District of Columbia
EVAN E. COOPER, Plaintiff,
UNITED STATES, Defendant.
P. Mehta, United States District Judge
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.
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.
the court enters judgment in part for Defendant and remands
to the Board for further proceedings consistent with this
Events Leading to Plaintiff's Retirement
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
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. 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.
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,
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.
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.
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.
Plaintiff's Efforts to ...