Gilliam v. United States

(}R'Ifi!|\|A!, lJntbt @nrtr! $rtattg [.ourt of /eUprsl @lufmg No. 15-439C (Filed: March 22,2016) FILED MAR 2 2 1016 * * * * * *,1* * *:t** * ** **,* *** * ** * ** * ***+ ** * * APRIL L. GILLIAM, * U.S. COURT OF :f FEDERAL CLAIMS Plaintiff, * Cross-Motions for Judgnent on the :i Administrative Record: Conection of :i Military Records; AFBCMR; Testing for * Promotion; Duration of Absence Without THE UNITED STATES, Leave; Administrative Discharge Board Defendant. * * * * * **,* * * * **. * * * * **,1** * *:f * *,t '* * ** * *'N *:t* April L. Gilliam, Jacksonville, FL, p1q se. William J. Grimaldi, United States Department of Justice, Washington, DC, for defendant. OPINION A}{D ORDER SWEENEY, Judge PlaintiffApril L. Gilliam, proceeding plq Se, contends that the United States Air Force ("Air Force"), in violation of its regulations, did not allow her to test for promotion, failed to consider certain evidence during proceedings under Article l5 ofthe Uniform Code of Military Justice, and denied her the opportunity to appear before an administrative discharge board during her involturtary separation proceedings. Plaintiff previously sought relief from the Air Force Board for Correction of Military Records ('AFBCMR'), but was unsuccessful' Consequently, she filed suit in this court, requesting that the court set aside her involuntary discharge, reinstate her to active duty, award back pay and allowances, and restore her ability to test for promotion. The parties cross-move for judgment on the administrative record. For the reasons set forth below, the court denies plaintiff s motion and grants defendant's motion. Because plaintiffhas not presented a viable claim in this court, her complaint must be dismissed. I. BACKGROUND A. PlaintifPs Service in the Air Force Plaintiff first enlisted in the Air Force on March 22.2000.) AR 16. She served as a Fitness Specialist, with an Air Force Specialty Code ("AFSC") of 3M051.'z Id. at 93, 95,97 . Her service was exemplary, as reflected in her Enlisted Performance Reports ("EPRs") and by her receipt of three Air Force Achievement Medals. Id.at93-101. After four years of active service, plaintiff was transfened to the Air Force Reserve for an additional four years of inactive service. Id. at 16-17 . On February 17,2008, plaintiff was honorably discharged from the Air Force at the rank of Senior Airman. !d. at 17. Almost two years later, on January 25,2010, plaintiff reenlisted in the Air Force to work as a recruiter. Id. at 18, 158-60, 214-15. She maintained the rank of Senior Airman, with a pay grade of E-4. Id. at 158-59. In conjunction with her recruiting assignment, plaintiff was given a control AFSC C'CAFSC) of 8R000.3 See id. at 140 (indicating that CAFSC 8R000 pertains to the recruiting specialty), 158-59 (reflecting that plaintiff was given a CAFSC of 8R000 in her January 25, 201 0 assignment order); accord id. ar 244 ("fPlaintiff] should have been awarded the CAFSC as a recruiter when she was brought back to active duty."). But see !d. at 140 I The court derives the facts in this section from the administrative record ("AR") and relevant statutes and Air Force regulations. 2 Pursuant to Air Force regulations: The objective ofthe military personnel classification system is to identiff duties and tasks for every position needed to accornplish the Air Force mission. The system is designed to identifi qualifications and abilities necessary to accomplish these duties and tasks, as well as provide clear and visible career progression pattems. It links duties and tasks into cohesive job clusters that are used to match personnel requirements with personal aptitudes, attributes, and qualifications' The classification system also provides concise award, upgrade, and retention criteria for career progression. Air Force Instruction ("AFI") 36-2101, Classifring Military Personnel (Officer and Enlisted) tf l.l (June 14,2OlO). "The classification system groups related work requirernents (position) into Air Force Specialties . . . ." Id. tT 1.2.1. "When individuals meet all of t}le mandatory qualifications ofthe specialty and have shown skill level qualification in all tasks of the positions in which assigred, they are considered qualified for award of the Air Force Specialty Code . . . ." rd.n 1.2.2. 3 "Former Air Force personnel in technical training are awarded the l-skill level AFSC in the specialty they are enrolled in at technical training as their CAFSC." AFI 36-2101,n23.2. -2- ("[Plaintiffl should have been assigned CAFSC 94000 (student/training) until completion of recruiter tech training (8R000)."). Plaintiff was assigned to the 347th Air Force Recruiting Squadron in Chicago, Illinois, but was first required to report to Lackland Air Force Base, Texas, for a temporary duty assignment to attend Air Force Recruiting School. Id. at 158-59, 192; cf. id. at 158-59 (reflecting that plaintiff s January 25,2010 assignment order was generated at the Jacksonville, Florida, Military Entrance Processing Station). While at Air Force Recruiting School, plaintifffailed one of her sales labs, resulting in her being washed back to another recruiting class . Id. at27 . She advised a superior that one of her classmates was "unfairly passed through the same sales labs" by the instructors. Id. at27; accord id. at 119. That classmate, plaintiff reports, eventually failed out of Air Force Recruiting School. Id. at 73; accord id. at I 19. Plaintiff graduated from Air Force Recruiting School on April 9, 2010. ld. at27, 140. On April 19,2010, plaintiff reported to the 347th Air Force Recruiting Squadron in Milwaukee, Wisconsin. Id. Upon reporting, plaintiffclaims that she was advised by her superintendent, Senior Master Sergeant Knute Headley, that he had received a letter from the Air Force Recruiting School describing her complaint regarding her classmate. Id. at 27-28; see also id. at 192,202,238 (containing the July 2013 findings ofan investigator for the Air Force Recruiting Service's inspector general that (l) the document that plaintiffalleged was a letter to the 347th Air Force Recruiting Squadron was actually a report card prepared for all graduates of Air Force Recruiting School pursuant to standard operating procedure and (2) plaintifPs report card could not be obtained due to the passage of time). According to plaintiff, Senior Master Sergeant Headley told her that with her "type of mentality came consequences." Id. at 28. Plaintiff indicates that she then asked Senior Master Sergeant Headley for an advance of her basic allowance for housing. ld.at73. She avers that Senior Master Sergeant Headley refened her to Master Sergeant Mark Buchholz, who assured her that she would receive the advance "in a couple ofdays." Id. Finally, plaintiffclaims that she was told by Senior Master Sergeant Headley and her flight chiei Master Sergeant Joseph S. Minor, that she would be testing for promotion to Staff Sergeant during that year's May-June test cycle. Id. at 28. This information was consistent with what she had been told by her recruiter on January 5, 2010. Id. at ll2, 114. According to plaintiff, on April 22,2010, not having received an advance of her basic allowance for housing, she drove to Scott Air Force Base, Illinois, to discuss the issue with an individual in the finance deparffnent. Id. at 28, 73. Plaintiff avers that during that meeting, she leamed that neither Senior Master Sergeant Headley nor Master Sergeant Buchholz had forwarded her paperwork to the finance department. Id. Plaintiffbegan her recruiting assigrurent in Chicago Heights, Illinois, on May 1, 2010' Id. at 28. Shortly thereafteq Master Sergeart Minor advised her, without explanation, that she -3- would not be able to test for promotion to Staff Sergeant until 201 I . Id. Plaintiff sought an explanation for the delay in October 2010, but none was forthcoming. Id. Although plaintiff was a successful recruiter, id. at 87 , 90-92, I 19, she felt mistreated at the recruiting office, see generally yLat74. Specifically, she believed that she was treated differently from her flight mate (by being given substandard equipment and higher recruiting goals) and was sexually harassed by another flight mate. Id. On December 16,2010, Master Sergeant Minor directed plaintiffto meet with him in his office the following moming to discuss plaintiff s alleged misuse of a govemment-owned vehicle and telephone. Id. at 68, 74. However, plaintiffrefused to meet with him without legal representation. Id. Plaintiff also did not attend a mandatory flight meeting scheduled for that same moming in Matteson, Illinois. Id. at 68. Master Sergeant Minor and others attempted to contact plaintifffrom December 17,2010, to December 19,2010, without success. Id. All of the messages left for plaintiff directed her to report to a superior's office in Oak Creek, Wisconsin, on December 20, 2010. Id. She did not do so. Id. Additional attempts to locate plaintiff on December 20,2010, were unsuccessfrrl. Id. Unbeknownst to her colleagues and superiors, plaintiff boarded a Greyhound bus on December I 8, 201 0, bound for Jacksonville, Florida, where her United States congresswoman had an offrce. ld. at74,79. Plaintiff intended to file a complaint with her congresswoman detailing the unequal treatment she experienced at Air Force Recruiting School, as well as the unequal treatrnent and retribution she experienced during her recruiting assignment. ld. at74, 79-81. She lodged her complaint in person on December 20, 2010. Id. at74. The following day, plaintiff went to Moody Air Force Base, Georgi4 and met with Staff Sergeant Phillip D. Bradford, a paralegal at the Area Defense Counsel's office. Id. at 170. She advised Staff Sergeant Bradford that she was absent without leave and was there to tum herself in. Id. After consulting with a superior oflicer, Staff Sergeant Bradford advised plaintiff that she "would be better represented by an Area Defense Counsel closer to her duty location." Id. He therefore called Area Defense Counsel at Scott Air Force Base for assistance, and arranged for plaintiff to speak with a paralegal from that office. Id. Plaintiff asserts that the paralegal consulted with an attorney-Captain Rebecca Otey-and then conveyed Captain Otey's advice that plaintiff "sneak back" to her duty station in Chicago Heights and resume her regular daily duties. Id. at 30. However, plaintiff lacked the necessary funds to retum to lllinois. Id. at 75. She therefore departed Moody Air Force Base and retumed to Florida. Id. at 74-75. Accordingto plaintiff, the following day-Decembet 22,2010-she received a telephone call from Captain Otey who, upon leaming that plaintiff did not have the money to retum to Illinois, advised plaintiffto contact her commander, Lieutenant Colonel Mark Formica, and explain to him that she was absent without leave and did not possess tle financial means to retum to Illinois. Id. at 7 5. Plaintiff eventually obtained the money that she needed to fund her retum to Illinois, and on December 28,2010, tumed herself in to Captain Otey at Scott Air Force Base. Id.at29,75;see -4- also id. at 106 (reflecting that plaintiff "retumed to military control and [was] placed into military confinement on 28 Dec 2010"). On December 29, 2010, plaintiffreceived two letters of reprimand from Lieutenan! Colonel Fomrica. Id. at 82, 84. One concemed her unauthorized use of a govemment-owned vehicle, and provided: [Y]our I-PASS records . . . disclosed that between on or about 9 November 2010 and on or about 1 8 November 20 I 0, you used your assigned Govemment Owned Vehicle (GOV) during the hours of between 2200L and 0500L. This is in violation of [an Air Force regulation that provides:] "Govemment vehicles will not be used between the hours of 2200 and 0500 without the permission of the operator's supervisor." You were trained and acknowledged the training on this policy when you first arrived in the unit. Id. at 82. The other concemed her unauthorized use ofa govemment telephone, and provided: [Y]our Govemment Office Telephone records . . . disclosed that on or about 20 May 2010 to on or about 20 December 2010 you used your assigned Government Offrce Telephone to make unauthorized personal phone calls outside your recruiting zone. This is in violation of [an Air Force regulation that providesl "The govemment does not incur any long distance per-call charges above and beyond normal local charges[.]" You were trained and acknowledged the training on this policy when you first arrived in the unit. Id. at 84. The following day, December 30, 2010, Master Sergeant Minor requested the initiation of proceedings against plaintiff under Article 15 of the Uniform Code of Military Justice as a consequence ofher absence without leave. Id. at29,68. Article 15 allows commanding officers to impose nonjudicial punishrnent on service members for minor offenses. 10 U.S.C. $ 815 (2006). On January 4,2011, Lieutenant Colonel Formica acted favorably on Master Sergeant Minor's request and made an offer of nonjudicial punishment to plaintiff. AR 69. In his offer, Lieutenant Colonel Formica alleged two violations of Article 86 of the Uniform Code of Military Justice: (l) plaintiffs failure to report to her place of duty in Matteson on December 17,2010, and (2) plaintiff s failure to report to her place of duty in Chicago Heights from December 20, 2010, to December 28, 2010. ld. at 69-70. On January 7, 2011, plaintiff elected to proceed under Article 15. Id. at 69. She indicated that she had consulted with an attomey and waived her right to court-martial. Id. She also provided a written presentation to Lieutenant Colonel Formica in which she described her negative experiences at Air Force Recruiting School and her recruiting office, indicated that the -5- reason that she was absent without leave was to submit a complaint to her congresswoman, and apologized for her "poor judgment" in going absent without leave. ld. at73-75. Also on January 7, 2011, plaintiff submitted written responses to her two letters of reprimand. Id. at 83,85. With respect to her unauthorized use ofa government-owned vehiclc, plaintiffexplained that one of the trips at issue involved her taking a recruit to ajob. Id. at 83. With respect to her unauthorized used of a government telephone, plaintiff stated that the calls were to check on her family, and asserted that she had not been briefed on the standards for using her govemment telephone. Id. at 85. Lieutenant Colonel Formica "conducted an in-house investigation" of plaintiff s sexual harassment allegations on January 10, 201 1. Id. at 30; accord id. at 195 (indicating, however, that the investigation began on January 14, 20ll),199-200. Apparenfly, Lieutenant Colonel Formica concluded that plaintifPs claims were not substantiated.a Id. at 199. Plaintiffasserts that this conclusion was not disclosed to her. ld. at 30. Subsequently, on January 12, 201l, plaintiff provided additional written evidence to Lieutenant Colonel Formica in regard to her Article 15 proceedings. Id. at I 70-72. This evidence consisted of a memorandum from Staff Sergeant Bradford confirming that she went to Moody Air Force Base on December 21,2010, to tum herself in; a copy ofa privacy release form that she submitted with her congressional complaint; and a memorandum containing her request that Lieutenant Colonel Formica not consider her absent without leave beyond December 21, 2010, based on Staff Sergeant Bradford's memorandum. Id. That same day, notwithstanding plaintiffs submission, Lieutenant Colonel Formica determined that plaintiffviolated the two provisions of Article 86 of the Uniform Code of Military Justice that he had previously identified. Id. at 69-70. He therefore imposed the following punishment: "Reduction to the grade of Airman, with reduction below Airman First Class suspended until l1 July 2011, after which time it will be remitted without further action, unless sooner vacated. The new date of rank for Airman First Class is I 2 January 20 I I ." Id. at 70; see also id. at l1 (reflecting that plaintifPs demotion to Airman First Class was accompanied by a reduction ofpay grade to E-3). Lieutenant Colonel Formica also formally reprimanded plaintifffor her behavior. ld. at72. Plaintiff indicated on January I 8, 201 1 , that she would not appeal Lieutenant Colonel Formica's decision and punishment. Id. at 70. Further, two Air Force 4 No documentation ofthe investigation is included in the administrative record. Rather, more than two years after the fact, an investigator for the inspector general ofthe Air Force Recruiting Office averred, based on undisclosed evidence (refened to as "Sec I Tab K-l I, RCA, Atch 12, Clarification [redacted]" and "Sec III Tab [redacted] pg 9, lines 21-33"), that the investigation occuned, that plaintiffs claims were found to be unsubstantiated, and that the investigation was found to be legally sufficient. See AR 195-96, 199-200 (redactions in original). The investigator expressly indicated that he or she was unable to obtain a copy of the investigation report. Id. at 199. attomeys reviewed Lieutenant Colonel Formica's decision and determined that the record was legally suflicient. Id. Plaintiff was contacted by Senior Master Sergeant Noel K. Sharp from the Air Force Recruiting Service's inspector general's oflice on January 25,2011. Id. at 30-31,51. Senior Master Sergeant Sharp advised plaintiffthat her congressional complaint had been forwarded to that office for review and requested a telephone conversation with plaintiffto discuss her complaint. Id. Plaintiff contends that she called Senior Master Sergeant Sharp the following day and, during their conversation, claimed that she had been denied the opportunity to test for promotion to Staff Sergeant during the 2010 May-June test cycle. Id. at 31. Plaintiff avers that Senior Master Sergeant Sharp stated that the claim would be incolporated into her complaint. Id. An investigator at the Air Force Recruiting Service's inspector general's office stated, two years later, that plaintifls complaint was "forwarded to command for resolution," and that the command's response was subsequently purged in accordance with Air Force regulation. Id. at 195,203. Plaintiffnever obtained the results ofthe investigation ofher congressional complaint. ld. at 49. In the meantime, on February 7, 201 l, Lieutenant Colonel Formica notified plaintiffthat she was being processed for administrative separation from the Air Force pursuant to an Air Force regulation that allows for the involuntary separation of airmen from the Air Force for minor disciplinary infractions.s Id. at 31, 86 (citing AFI 36-3208, Administrative Separation of 5 The administrative record contains plaintiffs acknowledgment that she received the "notification memorandum" on February 7, 2011, AR 86, but does not contain the "notification memorandum" itself. However, an investigator for the inspector general of the Air Force Recruiting Offrce stated, two years later, that "[a]ccording to the discharge paperwork, [plaintiffJ was recommended for discharge for a number of disciplinary issues including" the two letters of reprimand and the Article 15 nonjudicial punishment. ld. a1233. The investigator further remarked: [S]ince [plaintiffl was reduced to the rank of [Airman First Class] as the result of the Article 15 punishment, she no longer met the criteria (mandatory minimum ranVgrade requirements) to perform duties as an Air Force Recruiter. . . . The rank qualification for an Enlisted Accession Recruiter is Senior Airman through MasterSergeant.... ... . Since she did not possess another AFSC and did not meet the minimum rank requirement to remain a recruiter, [redacted] recommended [plaintiffl for discharge. ld. at 234 (redaction in original). n Airmen'lf 5.49 (July 9, 2004) ('A pattem of misconduct consisting solely of [minor disciplinary] infractions in the cunent enlistment makes an airman subject to discharge. The infractions . . . may involve failure to comply with nonpunitive regulations or minor offenses under the [Uniform Code of Military Justice]. lnfractions of this type result, as a rule, in informal (reduced to writing) or formal counselings, letters of reprimand, or Article l5 nonjudicial punishments.")). Plaintiff acknowledged receipt of the "notification memorandum," as well as her rights to consult counsel and submit statements on her own behalf, that same day. Id. at 86. Plaintiffalleges that she consulted with her attomey, Captain Daphne LaSalle, on February 8, 201 I . Id. at 3 1. According to plaintiff, Captain LaSalle advised her that she was not entitled to a hearing before an administrative discharge board during her involuntary separation proceedings. Id. On February 9, 201I, plaintiff submitted a memorandum to Lieutenant Colonel Formica in response to the "notification memorandum." AR 87-88. She apologized for the actions that led to the letters of reprimand and the Article 15 nonjudicial punishment, and requested that she be retained in the Air Force based on her prior contributions and accomplishments. Id. The following day, plaintiff contacted the Air Force Recruiting Service's inspector general's office to allege that she was the victim of reprisal by Lieutenant Colonel Formica for making protected communications. Id. at 31, 196. An investigation apparently ensued.' See id. at 196. Subsequently, on February 22,2011, Senior Master Sergeant Sharp advised plaintiff that she was protected under the United States Department of Defense's whistleblower protection policy while her claim of reprisal was being investigated. ld. at52 (citing 10 U.S.C. $ 1034). It appears that the inspector general of the Air Force Recruiting Service ultimately concluded that plaintiffs claim ofreprisal was not substantiated.? Id. at 196. Notwithstanding her submission to Lieutenant Colonel Formic4 plaintiff was discharged from the Air Force on March 4, 201l, for "misconduct (minor infractions)." Id. at 18. The character of her service was described as "under honorable conditions - (general)." Id. Prior to her discharge, plaintiff was not provided the opportunity to appear before an administrative discharge board. Id. at I 1. o No documentation ofthe investigation is included in the adminishative record. Rather, rnore than two years after the fact, an investigator for the inspector general of the Air Force Recruiting Office averred, based on undisclosed evidence (referred to as "Sec I Tab K-lm, RCA, Atch 13, Case File Worksheet"), that an investigation occurred and that the Air Force Recruiting OIfice's inspector general "determined that reprisal did not occur and dismissed the complaint even though there was prima facie evidence ofreprisal." AR 196. 7 See supra note 6. B. PlaintilPs Application for the Correction of Her Military Records Plaintifffiled an application for the correction of her military records with the AFBCMR on March 29, 2012.8 ld.at ll-12. In her application, she claimed that her involuntary discharge was unjust and that she should be reinstated to her position as a recruiter with a CAFSC of 8R000 because pursuant to Air Force regulation, she was entitled to, but not provided, a hearing before an administrative discharge board during her involuntary separation proceedings. Id. at I I (citing AFI 36-3208,16.2.2 (providing that an airman "recommended for discharge . . . must be offered an opportunity for hearing by an administmtive discharge board if' the airman "has 6 years or more total active and inactive military service at the time the discharge processing starts")); accord id. at 44. The AFBCMR obtained two advisory opinions to assist in its resolution of plaintiffs application. ld. ar34-36. One, dated May 14,2012, was prepared by an official at the Retirements and Separations Branch of the Directorate ofPersonnel Services at the Air Force Personnel Center, and addressed two aspects of plaintiffs discharge from the Air Force.e Id. at 34-35. The official first opined: Based on [plaintiffs] overall performance, the discharge authority approved an Under Honorable Conditions (General) discharge. According to [Air Force regulation], a general discharge is appropriate when "significant negative aspects of the ainnan's conduct or performance of duty outweighs positive aspects of the airman's rnilitary record." [Plaintiffs] misconduct in this case clearly outweighs the positive aspects of her service. The Commander stated that blaintifi] had continually shown through her actions that she cannot be trusted. [Plaintiffl received two fletters of reprimand] for misuse of govemment property; has failed E On this same date, plaintiff voluntarily withdrew the application that she had filed with the Air Force Discharge Review Board in December 201 l. AR 19-20. t Oddly, there are two versions of this letter in the administrative record, both dated May 14,2012. See AR 34-35, 54-55. The "Discussion" and "Recommendation" sections ofthe letter provided to plaintiff for her review, see id. at 55, di{fer significantly from the "Discussion" and "Recommendation" sections in the version of the letter considered by the AFBCMR, see id. at 35. Specifically, the letter provided to plaintiff indicated that plaintiff was not entitled to a hearing before an administrative discharge board and contained a recommendation that plaintiff s application be denied. Id. at 55. In contrast, the letter considered by the AFBCMR indicated that plaintiffwas entitled to a hearing before an administrative discharge board and contained a recommendation that plaintilPs request for such a hearing be granted. Id. at 35. No explanation for the discrepancy has been provided to the court. However, because the AFBCMR considered the version of the letter that was favorable to plaintiffand agreed that plaintiffwas entitled to an administrative discharge board hearing, see id. at 138, plaintiff was not prejudiced by the discrepancy. -9- to go to her appointed place of duty; and had absented herself from her place of duty. [Plaintiffl demonstrated a lack of respect for authodty and a total disregard for policies and procedures constantly throughout her military career. [Plaintiffs] incidents of misconduct disrupted good order, discipline, and morale within the military community; hence, discharge was appropriate. Id. at 35. The offrcial then opined that, pursuant to AFI 36-3208, !l 6 .2.2, plaintitr"qualifred for an administrative discharge board hearing during her involuntary discharge proceeding." Id. Accordingly, the offrcial recommended that plaintilfs request for such a hearing be granted. Id. The second advisory opinion, dated August 2, 2012, was prepared by a superintendent in the Recruiting Operations office of the Air Force Recruiting Service, and addressed plaintiff s ability to be reinstated to active duty as a recruiter. Id. at 36. The superintendent opined that plaintiff was not qualified for reentry into the Air Force for two reasons. Id. First, the superintendent noted that the character ofplaintifPs discharge-"under honorable conditions - (general)' -prevented her reenlistment. Id. Second, the superintendent explained that High Year of Tenure ("HYl'') requirements would also prevent plaintifPs reenlistment because they preclude the reenlistment of individuals, like plaintiff, who are at or below the E-4 pay grade and have more than four years of active service. Id. In addition, the superintendent stated, the HYT requirements would prevent plaintifPs reenlistment even if the AFBCMR restored plaintiffs pay grade to E-4. Id. The superintendent concluded that plaintiffs request for reinstatement to the Air Force should be denied. Id. On August 3, 2012, the AFBCMR forwarded the two advisory opinions to plaintifffor her review and advised plaintiffthat she had thirty days in which to comment on the advisory opinions or provide additional evidence in support of her application. Id. at 37 . Plaintiff took advantage of the opportunity, and provided the AFBCMR with a ninety-page submission-+ontaining both responses to the advisory opinions and additional evidence-in which she recounted her experiences at Air Force Recruiting School and her recruiting offrce. See generallv 38-131. Of particular note, plaintiff contended in her response to the May 14, 2012 advisory opinion that a letter of reprimand was too severe a punishment for her first-time offenses of misuse of a govemment-owned vehicle and misuse of a government telephone. Id. at 59-60. She further asserted that the language ofher Article 15 nonjudicial punishment gave her '1he false perception that [she] would be granted probation and rehabilitation until l1 July 201l, without further action." Id. at 61 ; accord id. at 50. Also of note, the additional evidence that plaintiffprovided to the AFBCMR included a memorandum in which plaintiff avened that she had filed a complaint with her congresswoman, that the Air Force Recruiting Service's inspector general's offrce had initiated an investigation, that Lieutenant Colonel Formica became aware of her congressional complaint during her Article l5 nonjudicial punishment proceedings, that she had been afforded whistleblower protection, and that she believed that Lieutenant Colonel Formica initiated involuntary separation proceedings and ultimately discharged her in reprisal. Id. at 48-50. -10- The AFBCMR issued a decision on plaintiffs application on January 23,2013. Id. at 134-39. lt first concluded that there was "[s]uffrcient relevant evidence . . . to demonstrate the existence ofan enor or injustice regarding [plaintiffs] contention she was denied her right to meet an Administrative Discharge Board . . . in conjunction with her involuntary discharge." Id. at 138. The AFBCMR then addressed the allegations of reprisal set forth in plaintifPs supplementary materials, noting that "while the evidence ofrecord indicates [plaintiffJ timely filed a complaint with the Inspector General, it appears as though an investigation into her allegations was never completed in accordance with the provisions of 10 USC 1 034." Id. It therefore determined: [W]hile we find the evidence is suffrcient for us to conclude that she was deprived of certain due process rights related to her discharge, in order for the Board to render full and fair consideration ofthis case, we believe [plaintiffs] case should be referred to the Inspector General for an investigation under the authority granted to this Board on this issue. Accordingly, it is our determination that a final decision not be rendered on the [plaintiffs] requests rurtil such time as the Inspector General conducts an investigation at our request and the report of investigation . . . is provided to us for review. . . . Upon receipt of the [report of investigation], or iffor some reason the [Inspector General] should determine an investigation cannot be conducted, we will reopen [plaintiffs] case and resume consideration of her requests. Id. Accordingly, the AFBCMR administratively closed plaintiffs case, id. at 132, 138, and referred plaintiffs claims of reprisal to the Air Force's inspector general, id. at 132-33. While plaintiffs case was closed administratively, the AFBCMR received two additional advisory opinions.'o Id. at 140-43. The first, dated May20,2013, was prepared byan offrcial at the Enlisted Promotions and Military Testing Branch of the Air Force Personnel Center, and concerned plaintiffs contention that she was denied the opportunity to test for promotion to Staff Sergeant during the 2010 May-June test cycle (referred to in the advisory opinion as "cycle 10E5"). Id. at 140-41 . The official initially explained that members of the Air Force are considered "nonweighable" for promotion ifa promotion factor--such as a test, an EPR, or an AFSC-is missing or inconect. Id. at 140. The official then noted issues with two promotion factors that adversely affected plaintiffs eligibility for promotion consideration: [Plaintiffl was "nonweighable" based on the fact that she did not have a control AFSC (CAFSC) updated in the system. Without an assigned CAFSC, the test t0 It is unclear from the evidence in the administrative record why the AFBCMR continued to receive advisory opinions, and why it forwarded those advisory opinions to plaintiff for her review and comment, while plaintiffs case was administratively closed. Plaintiff did, sometime after M arch 22,2013, submit a request to the AFBCMR that her case be reopened, see AR25-32, but there is no evidence that the AFBCMR acted on this request. -l1- control officer would not know what test to administer. She was also "nonweighable" because she did not have a current EPR with a close out date within the past five years from the promotion eligibility cutoff date . . . for the cycle (31 Mar 10). Id. With respect to the former issue, the offrcial wrote: Although [plaintiffJ was given her previous primary AFSC (PAFSC) of 3M051 when she was accessed, she lost her control AFSC (CAFSC) since it had been more than 4 years since she last held it . . . . However, she should have been assigned CAFSC 94000 (studenVtraining) until completion of recruiter tech training (8R000). Had the 9A000 AFSC been updated, or our office notified when her 8R000 CAFSC was updated, [plaintiff] would have tested . . . only as a 00)OO( (retrainee). She would have remained "nonweighable" until she had at least 60 days supervision and an EPR was rendered. Id.; see also id. (noting that plaintiffs CAFSC was not updated until she graduated from Air Force Recruiting School on April 9,2010). With respect to the latter issue, the offrcial explained: [In accordance with Air Force regulation], EPRs covering the last five years (maximum of 10 reports) are used to compute the EPR time-weighted factor score. All eligibles are required to have an EPR that closes out within 5 years of the [promotion eligibility cutoff date] on file to compete for promotion. If a member does not have an EPR on file, they cannot be considered for promotion until their next projected EPR closes out or until a directed by [Headquarters Air Forcel EPR is completed for promotion consideration. At that time, the member will be considered supplementally. Id. In addition to determining that plaintiff was "unweighable" for promotion, the official addressed the effect that plaintifPs Article 15 nonjudicial punishment had on her promotion eligibility: [Plaintiffl received an Article 15 on 12 Jan 1l and was reduced to the rank of [Airman Fint Class]. Even if she had tested for cycle l0E5 and was selected, her promotion sequence number. . . would have to have been 1.00 - 5446.0 (1 Sep l0 - 1 Jan l1) in order for her to pin-on [StaIf Sergeant] prior to the Article 15 action. Ifshe received a [promotion sequence number] after 5446.0, she would have lost her line number. In either case. the Article 15 resulted in loss of rank. Id. at 141. The official concluded: -12- Since [plaintiff] entered active duty on 25 Jan 10, a [CAFSC] should have been assigned and updated into the system by the time testing for cycle l0E5 commenced in May. She would have remained nonweighable for the cycle rurtil an EPR was rendered. Unfortunately, there is no way for her to be supplementally considered for promotion to [Staff Sergeant] due to the fact that she never tested/does not have a test on file and is no longer on active duty. Id. The second advisory opinion, dated June 4, 2013, was prepared by the chiefofthe Military Justice Division of the Air Force Legal Operations Agency and concemed plaintiffs nonjudicial punishment. ld. at 142-43. First, the chiefnoted that plaintiff did not appeal her commander's decision imposing punishment ofa reduction of grade and a reprimand, and that the Article 15 proceedings were "reviewed and determined to be legally sufficient." ld. at 142. Second, the chief indicated that plaintiffdid not challenge her nonjudicial punishment in her application to the AFBCMR but, in fact, "acknowledge[d that] the nonjudicial punishment was a result ofher poor j udgment and that it was a rehabilitative tool." Id. The chiefthen explained: [A] commander considering a case for disposition under Article 15 exercises largely unfettered discretion in evaluating the case, both as to whether punishment is warranted and, ifso, the nature and extent ofpunishment. The exercise ofthat discretion should generally not be reversed or otherwise changed on appeal or by the Board absent good cause. Id. at 143. Ultimately, the chief concluded: The commander at the time of the Article l5 had the best opportunity to evaluate the evidence for this action. With that perspective, the commander exercised the discretion that [plaintiff] granted him when [plaintiffl accepted the Article 15s [sic] and found nonjudicial punishment appropriate. The legal review process showed that the commander did not act arbitrarily or capriciously in making this decision. Id. The AFBCMR forwarded the two new advisory opinions to plaintiff on June 6,2013, fot her review and comment. Plaintiffresponded with two eleven-page submissions that included comments on the advisory opinions and supporting evidence. See eenerall]'id. at l5l-72. In her response to the May 20,2013 advisory opinion regarding her eligibility for promotion consideration, plaintiff rnade the following assertions: (1) she did have a CAFSC with an effective date of January 25 , 2010; (2) she should have received a special EPR from Air Force Headquarters; and (3) ifthe Air Force had complied with the testing and promotion procedures set forth in its regulations, she would have tested for promotion to Staff Sergeant during the 2010 - l3- May-June test cycle and would not have committed the offenses that were the subject of her Article 15 proceedings. Id.at 153-57. And, in her response to the June 15,2013 advisory opinion regarding her Article 15 nonjudicial punishment, see id. at 164-68, plaintiff made the following assertions: (1) she did allege an injustice with respect to her receipt of nonjudicial punishmenltt id. at 168; and (2) she should not have been considered absent without leave beyond Decemb er 2l , 2010 , when she attempted to tum herself in at Moody Air Force Base, id. at 167 (citing AFI 36-2911, Desertion and Unauthorized Absence fl 4.3.1 (Oct. 14,2009) (providing that "[a]n absentee's retum to military control occurs at the date and hour thaf'the "absentee surrenders to . . . militarv authorities" or "otherwise comes under the control of military personnel")). The Air Force Recruiting Service's inspector general completed its investigation of plaintiffs claims of reprisal in July 2013 and, based on what can be discemed from the administrative record, prepared a comprehensive report of investigation. t' Id. at 190-259. The investigating offi cer concluded: The preponderance ofthe evidence in this case showed there were sound, logical reasons for the actions taken against [plaintiffl based on her admitted violations of the [Uniform Code of Military Justice]. The fletters of reprimand] stemmed from her misuse of govemment property and her refusal to meet with [Master Sergeant Minor] when ordered to discuss the matter. The follow-on Article 15 resulted from [plaintiffs] refusal to follow a lawful order to appear and for her unauthorized absence from her place of duty. The separation that ensued was the administrative follow-on to the preceding disciplinary actions. Further, the evidence in this case demonstrated that [plaintiffs] inability to test for promotion stemmed from an unfortunate combination of the timing of her return to active duty during the promotion cycle and an administrative enor that occurred during her in-processing [at] the [347th Air Force Recruiting Squadron] which rendered her "non-weighable" for promotion. This particular matter is currently being addressed by the AFBCMR. tt As described above, plaintiff did not allege an injustice with respect to her Article 15 nonjudicial punishment in her original application for the conection ofher military records. See AR I 1-12; accord id. at 44. She did, however, raise such a claim in her supplementary materials. See id. at 59-61. 12 Only seventy-four pages of the report of investigation--constituting Section II, Tabs A through E-are in the administrative record. See AR 190-263. Based on the contents ofthis excerpt, the full report of investigation also includes Sections I and III, both with multiple tabs. See. e.e.. id. at 193. It also bears noting that the portion ofthe report included in the administrative record contains substantial redactions. See id. at 190-263. -14- In conclusion, the staff at the Air Force Recruiting School and the [347th Air Force Recruiting Squadronl leadership did not reprise against [plaintiffl, and none ofthe allegations in this case were substantiated. Id. at259. The Air Force's inspector general subsequently approved the report, with one minor change. Id. at 260-63. The report was then forwarded to the inspector general for the United States Deparhnent ofDefense, who approved it on August 21, 2014. Id.at4. The AFBCMR, in a September 25, 2014 letter, advised plaintiff that it had received a copy of the inspector general's report of investigation and was therefore reopening her case. Id. at 183; see also id. at 4 (indicating that the AFBCMR attached a redacted copy ofthe report of investigation to its letter). The AFBCMR fi.uther advised plaintiff that it might find it necessary to seek additional advisory opinions. Id. at 183. Indeed, the AFBCMR received an advisory opinion from a staffjudge advocate at the Air Force Personnel Center, dated February 18, 2015, addressing "how to implement a conection of record in conjunction with" the AFBCMR's preliminary finding that it was an error or injustice for the Air Force to deprive plaintiffof the opportunity to appear before an administrative discharge board during her involuntary separation proceedings. Id. at 184-85. The staffjudge advocate provided: Having been discharged from the Air Force on 4 March 2011, [plaintiffs] status today is that of a civilian with no military corurection at all. As a consequence, she could not be "recalled" to active duty for the hearing [before an administrative discharge boardl, as she is not in a capacity (like reserve or retired) that would permit recall. For the same reason, we can find no authority to otherwise place her on active duty directly from a civilian status. Moreover, there is no authority to provide her a discharge board in her capacity as a civilian-as the goveming instruction . . . applies only to enlisted military members. Thus, the only means we can discem for the Board to afford [plaintiff] a discharge board would be to set aside the 2011 discharge as having been accomplished in enor, and reinstate her to active duty effective 4 March 201 1. This option, however, does not come without some serious legal and practical problems. First, there is the problem that due to [HYT] restrictions . . . [plaintitrl is no longer qualified to serve as a recruiter. Thus, where would she be reinstated, and in what career field? . . . There is the additional problem that because of the extensive delays in this case resulting from multiple [inspector generall investigations, such a solution would entitle [plaintiffl to back pay for four plus years of Air Force service that was not in fact performed-a tremendous undeserved windfall. It would also bring with it questions of promotion eligibility and potential HYT for this period of time. This is in addition to all the practical problems of trying to run a board four plus years after the fact: Who would convene the board? Where would it be held? Are the relevant players/witnesses/ - l5- command personnel still available? Is it really possible to provide the full due process that was denied so long after the fact? The other option we see is for the Board to set aside the basis and character ofher 201 I discharge and substitute an honorable discharge based on Secretarial discretion (or some other reason not associated with discharge for cause). In our opinion, this would constitute a fair and just resolution given the time, problems and all the circumstances associated with this case. In making this recommendation, we recognize that [plaintiffs] continued misconduct and the attitude of her supervisory and command structure would render retention by a discharge board a remote possibility--certainly not more likely than not. And even though we believe an honorable discharge would also likely not be recommended, we can see this as at least a possible outcome of a board. Thus, to substitute a no-fault basis for separation in addition to approving an honorable discharge, in our view, would provide more than a fair outcome for [plaintiff]. Id. at 184-85. The AFBCMR forwarded this advisory opinion to plaintiff on February 20, 2015. Id. at I 86. Plaintiff responded seven days later, declining to comment on its contents. Id. at I 87- 88. The AFBCMR issued its final decision on plaintifPs application on March 31,2015. Id. at 1-10. It described the history ofthe case, the contents ofthe advisory opinions, and plaintiffs submissions. ld. at3-7. It also identified plaintifFs contentions: (l) plaintiff was unfairly denied an administrative discharge board during her involuntary separation proceedings; (2) plaintiff made protected communications regarding her Air Force Recruiting School classrnate that resulted in (a) a hostile work environment in her recruiting office, (b) her decision to go absent without leave, and (c) her discharge from the Air Force; (3) plaintifPs Article 15 proceedings were defective because (a) the charges were erroneous, (b) she was not absenl without leave beyond December 21, 2010, (c) the punishment was crafted to give her the false impression that "she would be granted probation and rehabilitation" and not demoted, and (d) the letters of reprimand were "too harsh"; and (4) plaintiffwas improperly denied the opportunity to test for promotion to Staff Sergeant in 2010. ld. at2-3. The AFBCMR concluded: Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting corrective action. While there are admitted errors in the case, we find it rnore likely than not that [plaintiffl would have received the same outcome she ultimately did even ifthe processing ofher case had been error-free. As such, we decline to recommend any correction to her record. We took notice of [plaintiffs] complete submission, to include her rebuttal responses to the advisory opinions, injudging the merits of the case; however, regarding her contentions, we believe the denial ofan [administrative discharge board] was harmless error; reprisal was not a motive in her disciplinary actions; her Article 15 -16- was legally sufficient; and, given her substantiated misconduct, denying her the opportunity to test for promotion in 2010 had no effect on her advancement. In particular, we agree with [the June 4, 2013 advisory opinion] that [plaintifPs] commander did not act arbitrarily or capriciously in rendering non-judicial punishment, and with the finding ofthe Air Force [inspector general] that her commander recommended her for administrative separation based on substantiated acts of misconduct and a pattem of minor disciplinary infractions, and not because she made protected communications. After a thorough review of the evidence of record and [plaintiff s] complete submission, we do not find the evidence presented suffrcient for us to question the underlying basis for [plaintiffs] actions or to persuade us she is the victim of an injustice. It does appear [plaintiffl was improperly denied an [administrative discharge board] during her discharge process, and we note the recommendation [contained in the February 18, 2015 advisory opinionl to change the character of [plaintifPs] discharge to Honorable; but we also share [the] belief that an [administrative discharge board] would likely not have recommended an honorable service characterization. Moreover, the review of [plaintiffs] case at the Department of Defense level, through the [inspector general] process, represents a far higher level of scrutiny than most airmen discharged for misconduct ever receive. Therefore, we are not convinced the denial ofthe [administrative discharge board], in and of itself, constitutes a sufficient basis to recommend granting the relief sought, particularly when there was a legitimate basis for [plaintiff s] involuntary separation and general service characterization. Additionally, after a careful review of [plaintiff s] misconduct which formed the basis of the discharge, we find it more likely than not that even ifshe had been provided an [administrative discharge board], she would have received the same discharge characterization she now holds. Therefore, in our view, the fact she was not provided an [administrative discharge board] constitutes a harmless error. As such, it would be unfair to all those who served honorably to furnish the same coveted Honorable discharge to someone whose service was terminated for substantiated misconduct. In additioq while the Board notes [plaintiff] was denied the opportunity to test for promotion during the 10E5 promotion cycle, the fact she did not test also constitutes a harmless error because she was not otherwise qualified to meet a promotion Board during that cycle. [Plaintiff] was not on active duty for an extensive period oftime between 2l Mar 04 through 25 Jan 10, and arrived at her Recruiter duty station in Apr 10 after the 3l Mar l0 Promotion Eligibility Cutoff Date for promotion cycle 10E5, so she did not have a cunent EPR on file and therefore was "non-weighable" for promotion purposes. Further, even if she had been qualified to meet a promotion board and been selected for promotion during cycle 10E5, we find it more likely than not that having received two fletters of 11 reprimandl, gone labsent without leave], and received nonjudicial punishment by Jan I 1, she would have been disqualified for promotion. In sum, while we acknowledge that certain enors were made in the processing of [plaintiffs] discharge for misconduct, we are not convinced that these errors constituted an injustice under l0 USC 1552, or that the command's actions in response to [plaintifPs] misconduct were motivated by reprisal in violation of l0 USC 1034. Accordingly, we find no basis to recommend granting the relief sought in this application. Id. at 8-9. The AIBCMR therefore denied plaintiffs application. Id. at 9. C. PlaintilPs Suit in the United States Court of Federal Claims Plaintiff filed suit in this court on April 30, 2015. In her complaint, plaintiff alleges that the Air Force violated its regulations when it failed to test her for promotion to Staff Sergeant during the 2010 May-June test cycle. She also alleges that the Air Force violated its regulations when it deemed her absent without leave for eight days, disregarding the fact that she attempted to tum herself in at Moody Air Force Base, but was tumed away. Finally, plaintiff alleges that she was improperly denied a hearing before an administrative discharge board during her involuntary separation proceedings, preventing her from (l) challenging the charges brought against her, (2) describing the sexual harassment that she endured from a colleague, (3) arguing that she was improperly denied the opportunity to test for promotion to Staff Sergeant, and (4) explaining why she should be retained in the Air Force. With respect to all of her allegations, plaintiff frrther contends that the AFBCMR ened in denying her application for the correction of her military records. ln her demand for reliei plaintiff requests that the court (l) set aside her involuntary administrative separation and reinstate her to active duty, with back pay and allowances; (2) restore her "rightfirl entitlements to testing and promotion"; and (3) grant her any other relief deemed proper. In lieu ofan answer, defendant filed a motion for judgment on the administrative record. Plaintiffdid not initially frle a response to defendant's motion. However, in response to an order to show cause, plaintiff frled a motion for summary judgment, which the court deems to be a response to defendant's motion and a cross-motion for judgment on the administrative record.rl Defendant subsequently filed a combined reply in support of its motion and response to 13 Becauseplaintiff is proceeding p1q sg, the court liberally construes her filings. See Traguth v. Zuck,7l0 F.2d90,95 (2d Cir. 1983) ('lmplicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect p1q se litigants from inadvertent forfeiture of important rights because oftheir lack oflegal training. While the right 'does not exempt a party from compliance with relevant rules of procedural and substantive law,' it should not be impaired by harsh application of technical rules." (citation omitted) (quoting Birl v. Estelle, 660 F.2d 592,593 (5th Ctu. 1981)). - l8- plaintiffs motion, after which plaintiff filed a reply in support of her motion. The court deems oral argument unnecessary. II. DISCUSSION A. Motions for Judgrnent on the Administrative Record The parties have filed cross-motions for judgment on the administrative record pursuant to Rule 52.1(c) of the Rules of the United States Court of Federal Claims, seeking either to uphold or overtum the AFBCMR's decision denying plaintiff s application. In ruling on such motions, the court makes "factual findings . . . from the record evidence as if it were conducting a trial on the record." Barurum. Inc. v. United States,404 F.3d 1346,1357 (Fed. Cir. 2005);ta see also id. at 1356 ("[J]udgment on the administrative record is properly understood as intending to provide for an expedited trial on the administrative record."). B. Correction of Military Records Decisions regarding who may serve as an enlisted member of the Air Force are made by the Secretary of the Air Force ("Secretary") or his designees. See l0 U.S.C. $$ 113(b), (d), 136(b),505; Departnent of Defense Directive 5124.02, Under Secretary ofDefense for Personnel and Readiness (USD(P&R)) I4.2 (Jtne 23,2008). A fonner enlistee dissatisfied with the Secretary's decision to discharge her from the Air Force can petition the Secretary to correct an error in, or remove an injustice from, her military records. See l0 U.S.C. $ 1552. Such a correction is made by the Secretary acting though a board of civilians-the AIBCMR-pursuant to procedures that he ha,s established. Id. $ 1552(a)(1), (3). Ifthe former enlistee seeks relief from the AFBCM& the decision of the AFBCMR becornes the final agency action, superseding the Secretary's original discharge decision.rs See Strickland v. United States, 423 F.3d 1335, 1339 (Fed. Cir. 2005) (noting that "the correction board process provides for a single final agency action in every case" and that the decision ofthe relevant service secretary-rnade tlrough the correction board-"is plainly the final agency action"). Consequently, ifthe former enlistee files suit contesting her discharge after receiving an adverse decision from the AFBCMR, the court reviews the AFBCMR's decision. ra The decision in Bannum was based upon RCFC 56.1, which was abrogated and replaced by RCFC 52.1 . RCFC 52. 1, however, was designed to incorporate the decision in Bannum. See RCFC 52.1, Rules Committee Note (June 20, 2006). r5 As noted above, the AFBCMR acts on behalf of the Secretary. Spg l0 U.S.C. $ 1552(a)(1), (3). In some circumstances, the AFBCMR's decision is final; in other circumstances, the Secretary reviews the AFBCMR's recommendations and issues his own final decision. See 32 C.F.R. $ 865.4(4, .5 (2011). In this case, because the AFBCMR denied plaintiffs application, its decision constitutes the Secretary's final decision. Id. $ 865.4(D(1). -19- Correction board decisions are entitled to deference. Bray v. United States, 515 F.2d 1383, l39l (Ct. Cl. 1975) (per curiam); see also Heisiq v. United States,719 F.2d 1153, 1156 (Fed. Cir. 1983) (noting that a court is not to substitute its judgrnent for that ofthe correction board "when reasonable minds could reach differing conclusions on the same evidence"); cf. Dodson v. U.S. Gov't. Deo't of the Army, 988 F.2d 1199, 1204 (Fed. Cir. 1993) ('tMlilitary administrators are presumed to act lawfr.rlly and in good faith . . . , and the military is entitled to substantial deference in the govemance of its affairs."). Therefore, the court "will not disturb the decision of [a] conections board unless it is arbitrary, capricious, contrary to law, or unsupported by substantial evidence." Chambers v. United States,4lT F.3d 1218, 1227 (Fed. Cir. 2005); accord Sanders v. United States, 594 F.2d 804, 811 (Ct. Cl. 1979) (en banc), superseded in part by statute, l0 U.S.C. $ 628 (2000 & Supp. I2002), as recoenized in Richey v. United States, 322 F.3d 1317, 1323-24 (Fed. Cir.2003). The individual challenging a correction board decision bears the burden of establishing, by "cogent and clearly convincing evidence," that the board acted improperly. Arens v. United States,969 F.2d 1034,1037 (Fed. Cir. 1992). C. Plaintiff Has Not Established That the AFBCMR's Decision Was Improper As noted above, plaintiff alleges in her complaint (and reiterates in her cross-motion for judgment on the administrative record and reply in support of that motionro) that the Air Force violated its regulations on three occasions-improperly denying her the opportunity to test for promotion to Staff Sergeant, improperly computing the length of time that she was considered absent without leave, and improperly denying her right to appear before an administrative discharge board during her involuntary separation proceedings-and that the AFBCMR ened in denying her relief for these violations. The court addresses each purported violation in tum. 1. Testing for Promotion to Staff Sergeant Plaintiff first contends that she was improperly deprived of the opportunity to test for promotion to Stalf Sergeant during the 2010 May-June test cycle. She asserts that she was entitled to receive a CAFSC when she was sent to Air Force Recruiting School, relying on table 3.9 ofAFI 36-2101, which provides that the "CAFSC effective date (for retraining through a formal school [including special duty]) is the date [the airman] departed [her] cunent duty station [for temporary duty] to accomplish required training . . . ." Plaintiff further asserts that she actually received a CAFSC with an effective date of January 25,2010, the date that she was ordered to depart for Air Force Recruiting School, but that the Air Force did not properly update its personnel records to reflect that fact. Finally, plaintiff asserts, had the Air Force properly updated her personnel records to reflect the assignment ofa CAFSC, she would have been permitted to test for promotion to StaIf Sergeant during the 2010 May-June test cycle. All of t6 Plaintiff addresses some of the allegations from her complaint in her cross-motion for judgment on the administrative record and other allegations from her complaint in her reply in support ofher cross-motion. As previously noted, see suora note 13, the court liberally construes plaintiff s submissions. -20- plaintiffs assertions are correct, as reflected in her January 25, 2010 assignment order and the May 21 , 20 1 3 advisory opinion. The AFBCMR recognized that plaintiff was improperly deprived of the opportunity to test for promotion to Staff Sergeant during the 2010 May-June test cycle. However, it concluded that the Air Force's errors were harmless, for two reasons. First, the AFBCMR explained that plaintiff would not have been eligible for promotion consideration even if she had tested during the 2010 May-June test cycle because plaintiff did not have an EPR on file by the March 31, 201 0 promotion eligibility cutoff date, a necessary prerequisite for promotion consideration. Second, the AFBCMR remarked that even if plaintiff had been selected for promotion, it was probable that she would have been disqualified for promotion upon receiving the two letters of reprimand and the Article l5 nonjudicial punishment. The AFBCMR's finding of harmless error is supported by the record. Although the Air Force erred in maintaining plaintiffs personnel records, resulting in her inability to test for promotion to Staff Sergeant during the 2010 May-June test cycle, plaintiff faced other obstacles to being promoted-she did not have an EPR on file and she was subsequently disciplined for several offenses-that rendered the Air Force's errors ultimately irrelevant. The court therefore concludes that the AFBCMR's decision on this issue was not arbitrary, capricious, contrary to law, or unsupported by substantial evidence. 2. Duration of Absence Without Leave Plaintiff next contends that the Air Force ened by considering her absent without leave after she attempted to tum herself in to military authorities at Moody Air Force Base on December 21,2010. She specifically relies on paragraph 4.3.1 ofAFI 36-2911, which provides that "[a]n absentee's retum to military control occurs at the date and hour that" the "absentee surrenders to . . . military authorities" or "otherwise comes under the control of military personnel." Plaintiff raised this objection-without expressly citing AFI 36-291l-during her Article 15 proceedings. However, Lieutenant Colonel Formica apparently was unswayed because he imposed nonjudicial punishment that was based, in part, on plaintifPs failure to report to her place of duty from December 20, 2010, through December 28, 2010. Plaintiffdid not appeal Lieutenant Colonel Formica's decision, and that decision was later declared to be legally suflicient. The AIBCMR agreed with the analysis set forth in the June 4, 2013 advisory opinion and concluded that Lieutenant Colonel Formica did not act arbitrarily or capriciously in imposing plaintiffs nonjudicial punishment. The AFBCMR's decision is supported by the record. As previously noted, plaintiff did not appeal her nonjudicial punishment and the decision imposing the punishment was found to be legally suffrcient. The court therefore concludes that the AFBCMR's decision on this issue was not arbitrary, capricious, contrary to law, or unsupported by substantial evidence. -21- 3. Appearance Before an Administrative Discharge Board Finally, plaintiff argues that she was improperly denied a hearing before an administrative discharge board during her involuntary separation proceedings. She relies on paragraph 6.2.2 of AFI 36-3208, which provides that an airman who is recommended for discharge must be granted the opportunity to be heard by an administrative discharge board if the airman has six or more years of combined active and inactive service when involuntary separation proceedings are initiated. Plaintiff contends, accurately, that she had more than six years of active and inactive service at the time that Lieutenant Colonel Formica notified her that she was being processed for administrative separation. She therefore claims that she should have been afforded an opportunity to appear before an administrative discharge board. Plaintiff is conect. The AFBCMR recognized that the Air Force ened by not affording plaintiff the opportunity to appear before an administrative discharge board during her involuntary separation proceedings, but concluded that the error was harmless, for three reasons. First, the AFBCMR remarked that plaintilPs misconduct provided a legitimate basis for plaintiffs discharge and the characterization of plaintifP s service as "under honorable conditions - (general)." Second, the AFBCMR agreed with the February 18, 2015 advisory opinion that had plaintiff appeared before an administrative discharge board, the board likely would not have recommended that plaintiff s service be characterized as honorable due to plaintifPs misconduct. Third, the AFBCMR stated that plaintiffs discharge was thoroughly reviewed by the inspector general of the Air Force Recruiting Service, the inspector general of the Air Force, and the inspector general of the tlnited States Departrnent of Defense, a level of scrutiny not typically afforded to airmen facing discharge for misconduct. The AFBCMR's finding that the Air Force's failure to provide plaintiff with an opportunity to be heard by an administrative discharge board was harmless error, and the AFBCMR's rationales for that finding, are supported by the record. Plaintiff admitted to multiple incidents of misconduct in her responses to tle letters of reprimand and her submissions to Lieutenant colonel Formica during her Article 15 and involuntary separation proceedings. And, as documented in a report of investigation, three inspectors general performed an extensive review of plaintilf s allegations of reprisal, ultimately concluding that plaintiffwas discharged for misconduct, and not as reprisal for making protected communications. Based on these facts, the AFBCMR was entitled to surmise that a hearing before an administrative discharge board would not have prevented, or changed the character oi plaintiffs discharge. The court therefore concludes that the AFBCMR's decision on this issue was not arbitrary, capricious, contrary to law, or unsupported by substantial evidence. III. CONCLUSION Plaintiff has not established that the AFBCMR's decision denying her application for the conection ofher military records was arbitrary, capricious, contrary to law, or unsupported by a1 substantial evidence.rT Consequentln the court GRAIITS defendmt's motion for judgment on the administrative record and DEITIIES plaintiffs crossmotion forjudgment on the adminisradve record. Because plaintiffhas not asserted any claims upon which she can prevail, the court DISMIIISES her complaint with prejudice. No msts. The clerk shall enter judgment ac.cordingly. ITIS SO ORDERED. r? Because plaintifrhas not sdisfied her burde,n, the court need not address the propnety of the relief sought by plaintilf in her complaint -23-