United States Court of Appeals
for the Federal Circuit
______________________
JASON CARL KENNEDY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-1512
______________________
Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00165-MMS, Judge Margaret M.
Sweeney.
______________________
Decided: January 17, 2017
______________________
JASON CARL KENNEDY, Denver, CO, argued pro se.
WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee.
Also represented by REGINALD T. BLADES, JR., ROBERT E.
KIRSCHMAN, JR., BENJAMIN C. MIZER.
______________________
Before NEWMAN, CLEVENGER, and DYK, Circuit Judges.
Opinion for the court filed by Circuit Judge CLEVENGER.
2 KENNEDY v. US
Opinion concurring in part, dissenting in part filed by
Circuit Judge NEWMAN.
CLEVENGER, Circuit Judge.
Jason Carl Kennedy was disenrolled from the Navy
Reserve Officer Training Corps (NROTC) program at
George Washington University (GWU) in Washington,
DC, after he failed to complete the required course at the
Officer Candidate School (OCS) in Quantico, VA. Mr.
Kennedy challenged his disenrollment by suit in the
United States Court of Federal Claims. As Mr. Kennedy’s
claim for monetary relief involved a challenge to his Navy
records, the Court of Federal Claims directed the case to
the Board for Correction of Naval Records (BCNR), a
civilian body that exists to make necessary corrections in
Naval Records. The BCNR concluded, with affirmation
from the Secretary of the Navy, that Mr. Kennedy’s
disenrollment must stand. Upon return from the BCNR,
the Court of Federal Claims held that Mr. Kennedy’s
disenrollment was lawful and that Mr. Kennedy’s claims
for monetary relief thus lacked merit. Kennedy v. United
States, 124 Fed. Cl. 309 (Nov. 30, 2015). Mr. Kennedy
timely appealed to this court. For the reasons set forth
below, we reverse.
I
Mr. Kennedy enrolled as an undergraduate at GWU
in August of 2003. He applied for an NROTC scholarship
(which would cover his tuition and other education related
costs) in February of 2004, during the spring term of his
freshman year. On March 16, 2005, in the spring term of
his sophomore year, he was awarded a three year NROTC
scholarship. Pursuant to the scholarship, Mr. Kennedy
agreed to complete satisfactorily his college education and
any educational requirements imposed on him by the
Navy and the Marine Corps. Among such requirements
was successful completion of a six week term at the OCS
in Quantico, VA, a requirement which is not waivable.
KENNEDY v. US 3
The scholarship provided that if Mr. Kennedy failed to
complete the educational requirements, including the
military requirements, he could be disenrolled and be-
come liable to reimburse the United States for the educa-
tional costs expended on his behalf.
Beginning in May of 2005, Mr. Kennedy suffered emo-
tional, physical and sexual abuse by a family member,
and as a result he began to act abnormally. In November
of 2005, in the fall of his junior year, he was required to go
to the GWU Center Clinic for observation, after having
been expelled from campus housing following a physical
altercation with his roommate and an attempt to throw
himself out of a dormitory room window. The GWU
Hospital diagnosed Mr. Kennedy with Adjustment Disor-
der, and he attended six therapy sessions thereafter.
At the end of May in the spring term of his junior year
in college, Mr. Kennedy went to Quantico to attend OCS.
On two occasions at Quantico, Mr. Kennedy lost control of
his emotions, and sought counsel from the chaplain on
numerous occasions. In the third week at Quantico, his
platoon commander recommended that Mr. Kennedy be
disenrolled from OCS as emotionally unstable. His com-
pany commander noted that Mr. Kennedy “breaks down
in tears when faced with stress or responsibility.” Kenne-
dy, 124 Fed. Cl. at 315; J.A. 1138. Mr. Kennedy’s compa-
ny and battalion commanders recommended
disenrollment without opportunity to reapply, due to their
concerns about Mr. Kennedy’s ability to handle himself in
front of Marines and in combat. A Commanding Officer’s
Board was convened on June 22, 2006, and it disenrolled
Mr. Kennedy from OCS without opportunity to return.
On August 7, 2006, the commanding officer of the
GWU NROTC unit informed Mr. Kennedy that a Perfor-
mance Review Board (PRB) would be convened on August
17, 2016, to evaluate his suitability for continuing in the
NROTC program. The commanding officer told Mr.
4 KENNEDY v. US
Kennedy of his right to appear before the PRB and ad-
vised him to do so, explaining that the PRB could recom-
mend his disenrollment from the NROTC Program, based
on his disenrollment from OCS without opportunity to
return.
Mr. Kennedy’s NROTC advisor, Captain Ward, sent a
memorandum to the PRB, recommending Mr. Kennedy’s
disenrollment from the NROTC program, but without the
additional penalty of reimbursement of the sums the
government had already expended for Mr. Kennedy’s
education at GWU. On August 8, 2006, Captain Ward
sent Mr. Kennedy an email message about the upcoming
PRB, in which he commented as follows: “Although the
paper work says there will be a formal board, we won’t
have one due to the CO [Commanding Officer], OCS not
allowing your return. Your case is open and shut – noth-
ing disputable about it. You will see where I am recom-
mending you not be responsible for reimbursement.” J.A.
1144.
Whether the three member PRB physically met on
August 17 is unclear, but the PRB members did sign a
report under that date recommending disenrollment
without the additional penalty of reimbursement. The
report indicated that Mr. Kennedy was “not present.”
J.A. 1145. The PRB recommendation went to the com-
manding officer of the GWU NROTC Unit, who recom-
mended disenrollment, but with recoupment of costs
already expended by the government. That recommenda-
tion went further up the Marine Corps chain of command
to the Recruiting Command and finally to the Secretary of
the Navy’s authorized representative (the Assistant
Secretary of the Navy for Manpower and Reserve Affairs).
All along the chain of command, the reason for the rec-
ommendation of disenrollment and recoupment of costs
was the failure to complete OCS. On February 16, 2007,
the Assistant Secretary approved the recommendation of
disenrollment with recoupment of $50,675 of educational
KENNEDY v. US 5
assistance Mr. Kennedy had received. Shortly thereafter,
on March 16, 2007, the Commanding General of the
Marine Corps Recruiting Command executed a letter to
the GWU NROTC Unit ordering that Mr. Kennedy be
disenrolled from the Unit and separated from the Marine
Corps.
After graduation from GWU in May of 2007, Mr. Ken-
nedy attended and graduated from law school and was
admitted to the bar of the State of Colorado.
Thereafter, Mr. Kennedy brought suit in the United
States Court of Federal Claims, as noted above. His
amended complaint set forth several causes of action, in
which he sought relief from the recoupment obligation
that he was fulfilling, and sought compensation for the
costs of his GWU education that were not paid by the
government. First, the government had not paid the
tuition for the first semester of his sophomore year (the
semester before the award of his scholarship). Second, it
had not paid for his senior year (Fall 2006 and Spring
2007), due to his disenrollment by then from OCS, thus
breaching his obligation under the scholarship agreement.
Mr. Kennedy stopped receiving scholarship benefit pay-
ments in August of 2006. His complaint alleged breach of
contract and also violations of law and regulations in
connection with his disenrollment from the NROTC
program.
The United States filed a motion on December 20,
2013, to send the case to the BCNR to enable the BCNR
to consider Mr. Kennedy’s complaint and requests for
relief, and to correct his Navy records if necessary. Mr.
Kennedy opposed the motion, but the court held that it
had discretion to hear the claims in the first instance or to
send the case to the BCNR, and thought it prudent to
afford Mr. Kennedy the opportunity to be heard first by
the BCNR. Accordingly, the court sent the case to the
BCNR on January 23, 2014, ordering the BCNR to let Mr.
6 KENNEDY v. US
Kennedy respond to the Navy’s disenrollment decision
and to consider whether reimbursement of scholarship
tuition is appropriate if disenrollment is sustained.
In due course, Mr. Kennedy filed a thirteen-count
statement, accompanied by his court complaint, at the
BCNR. Mr. Kennedy sought correction of his Naval
record in several specific regards. His fundamental claim
was that he was improperly disenrolled from the NROTC
program. To correct that asserted error, he asked that his
record be corrected to delete all references to his disen-
rollment and to show that he could reapply to OCS.
Further, he sought a corrected record showing that he
was retained in the NROTC program up to his graduation
day, that he was entitled to scholarship benefits for three
years, and that he should be relieved of any obligation to
reimburse the government for educational benefits re-
ceived.
The BNCR forwarded Mr. Kennedy’s request for cor-
rection to the Naval Service Training Command for an
advisory opinion. On July 7, 2014, the advisory opinion
concluded that Mr. Kennedy’s disenrollment was proper
and that the obligation to repay his scholarship monies
was not unreasonable. On October 15, 2014, the BCNR
issued its decision. The BCNR agreed with the advisory
opinion in all regards but one: the BCNR concluded that
Mr. Kennedy had been denied the opportunity to appear
before the August 17, 2006 PRB, and that this violation of
his rights warranted some relief for Mr. Kennedy, namely
that he be relieved from reimbursing the government for
the three semesters worth of financial aid that he had
received and be repaid for the amount the government
had already recouped. The BCNR thus ordered the
correction of Mr. Kennedy’s Navy records to show that the
$50,567.00 of benefits paid should not be recouped and
that he should be repaid the sums he had already re-
turned. The Assistant Secretary of the Navy for Man-
KENNEDY v. US 7
power and Reserve Affairs reviewed and approved the
BCNR decision.
Upon return to the Court of Federal Claims, the court
entertained joint motions for judgment on the administra-
tive record, and the government’s motion to dismiss the
case. Mr. Kennedy’s amended complaint pitched five
counts, all seeking money damages. His first three con-
tract-based claims are for “full benefits under the NROTC
Scholarship Service Agreement,” arguably entitling him
to all funds that he had paid back, and to funds he did not
receive for his first sophomore semester and his two
senior year semesters. His fourth and fifth claims alleged
that his disenrollment violated money mandating stat-
utes, entitling him to monetary relief.
II
We exercise jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3). We review the legal conclusions of the Court
of Federal Claims de novo. Renda Marine, Inc. v. U.S.,
509 F.3d 1372, 1378 (Fed. Cir. 2007). We review its
factual findings for clear error. Id.
The Court of Federal Claims found that it lacked ju-
risdiction to entertain Mr. Kennedy’s first three contract-
based claims. Mr. Kennedy does not appeal that ruling,
and we thus need not consider those claims.
For purposes of analysis under the applicable six-year
statute of limitations in 28 U.S.C. § 2501, the Court of
Federal Claims separated Mr. Kennedy’s claim regarding
his first sophomore semester from his claim for the two
semesters of his senior year. Regarding the former, the
Court of Federal Claims held that claim to have accrued
in March of 2005, after Mr. Kennedy executed his enlist-
ment agreement but had not received payment for the
previous semester. Because this claim predates and is
unrelated to Mr. Kennedy’s later disenrollment, the Court
of Federal Claims held it time-barred by the six-year
8 KENNEDY v. US
statute of limitations, as Mr. Kennedy only filed his
complaint on March 5, 2013. We agree that Mr. Kenne-
dy’s claim regarding the first semester of his sophomore
year is time-barred.
As to Mr. Kennedy’s fourth and fifth claims based on
the alleged wrongful disenrollment, the Court of Federal
Claims found these claims timely asserted, and noted that
the BCNR had already provided Mr. Kennedy with relief
concerning scholarship benefits for the spring 2005 se-
mester and the 2005–2006 academic year, when it upset
the recoupment order and ordered reimbursement of the
sums he had already paid back. The Court of Federal
Claims thus focused on Mr. Kennedy’s remaining mone-
tary claims for his senior academic year.
To the extent Mr. Kennedy’s remaining claims de-
pended on adjudication of the merits of the Navy’s deci-
sion to disenroll Mr. Kennedy from OCS and the NROTC
program, the Court of Federal Claims correctly held that
the adjudication of those merits were not justiciable,
because the decision “pertained to who should be permit-
ted to serve in the Marine Corps, [which is] solely within
the province of the Navy.” Kennedy, 124 Fed. Cl. at 329.
See Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir.
1983); Sargisson v. United States, 913 F.2d. 918, 922 (Fed.
Cir. 1990). There remained, however, three arguments by
Mr. Kennedy in support of his claim for monetary relief
for his senior academic year. Because those arguments
questioned whether a statute or regulation had been
violated in connection with his disenrollment from
NROTC, the Court of Federal Claims properly asserted
jurisdiction over, and decided, those arguments.
We agree with the Court of Federal Claims that Mr.
Kennedy’s fourth and fifth claims based on the alleged
disenrollment are not time barred. A claim based on an
alleged unlawful discharge accrues on the date of dis-
charge. See, e.g., Hurick v. Lehman, 782 F.2d 984, 986
KENNEDY v. US 9
(Fed. Cir. 1986). Thus, Mr. Kennedy’s claims accrued on
March 16, 2007, and he filed his complaint within the six-
year statute of limitations.
First, Mr. Kennedy argued that the Navy failed to
conduct a required medical examination before disenrol-
ling him, thus violating statutory and regulatory rights
and consequently undermining the legitimacy of his
disenrollment. Second, he argued that the Navy failed to
convene a PRB at the initiation of his disenrollment
process, thus violating his rights and requiring his rein-
statement. Third, he argued that he had been denied the
right to appear before the August 17 PRB, again with the
effect of undermining the legality of his disenrollment.
The Court of Federal Claims concluded that each of these
arguments lacked merit. As explained below, we agree on
the first two issues, but not the third.
It is undisputed that Mr. Kennedy did not have a
medical examination in connection with his disenroll-
ment. The statute and regulation on which he relies to
show entitlement to a medical examination, 10 U.S.C.
§ 2107(j) and DoDI 1215.08, sec. 6.10.1, do not apply to his
case. As the Court of Federal Claims observed, the stat-
ute provides that payment of financial assistance under
the NROTC program may be suspended for health-related
incapacity only in accordance with promulgated regula-
tions. The pertinent regulation specifies that such assis-
tance may be suspended when an involuntary medical
leave of absence from the program is being considered,
and in such circumstances, a medical examination of the
student in question is required. In short, the statute and
regulation exist to provide medical examinations in the
instances in which the government wishes to impose an
involuntary medical leave of absence. Such is not the case
here. Mr. Kennedy was not being considered for a leave of
absence. Mr. Kennedy was deemed unqualified to serve
as an officer in the Marine Corps and thus was disen-
rolled from the NROTC program.
10 KENNEDY v. US
Regarding Mr. Kennedy’s second argument, the Court
of Federal Claims correctly found that the record does
show that a PRB was convened, albeit without a physical
meeting, and resulted in a formal recommendation up the
chain of command. Indeed, Mr. Kennedy was informed of
the PRB’s action and was afforded the opportunity to
respond to the PRB decision. Mr. Kennedy does not
challenge this holding.
Mr. Kennedy’s third argument begins with the effect
of Captain Ward’s August 8 email. The Court of Federal
Claims concluded that email deprived Mr. Kennedy of his
opportunity to appear in person before the PRB. Howev-
er, the Court of Federal Claims held that this deprivation
“had no effect on [Mr. Kennedy’s] disenrollment from the
NROTC.” Kennedy, 124 Fed. Cl. at 334. The court rea-
soned that in accordance with the pertinent regulations,
Mr. Kennedy was required to complete OCS in order to
qualify for an officer’s commission upon graduation.
Because the failure to complete OCS undermines a candi-
date’s qualifications for a commission, and because the
NROTC scholarship was for such a commission, the court
concluded that Mr. Kennedy’s disenrollment was inevita-
ble. With the opportunity for successful completion of
OSC barred to Mr. Kennedy, the court surmised that Mr.
Kennedy’s appearance before the PRB could not have
prevented his disenrollment.
The court’s analysis turns on whether the decision by
the Commanding Officer’s Board at Quantico, denying
Mr. Kennedy the opportunity to return, was final, i.e., not
subject to reversal by a recommendation by a PRB, or the
BCNR, and a decision by the Secretary of the Navy. If
the authority to grant admission to OCS is finally dele-
gated to the Commanding Officer’s Board at Quantico,
then Mr. Kennedy’s disenrollment was inevitable. But if
the Quantico authority over admission is not so final, Mr.
Kennedy’s disenrollment was not inevitable.
KENNEDY v. US 11
The initial briefing in this appeal did not answer the
question concerning authority over admission to OCS. We
asked the parties for supplemental briefing on the issue,
and the supplemental briefs were also inconclusive. The
issue, however, was clearly resolved at oral argument.
For disenrollment cases involving either recoupment
or students obligated to active service (in this case, Mr.
Kennedy satisfies both conditions), “SECNAV [the Secre-
tary of the Navy] makes the final decision.” CNETINST
1553.12G, § 315(a). Mr. Kennedy argued that this provi-
sion means that the Secretary, not the Commanding
Officer’s Board at Quantico, has the final say on who may
attend OCS. In other words, whatever authority has been
delegated to that Board, while likely of great weight, is
not final. In response to the question whether the Secre-
tary could overrule Quantico on admissions to OCS, the
government responded, “yes.” Oral Argument (Oct. 3,
2016) at 22:09–22:38.
At oral argument, Mr. Kennedy repeated his argu-
ment that the due process violation deprived him of the
opportunity to make his case in person to the PRB that he
be given another chance at OCS. Although the command
at Quantico at the time stated that he should not have the
opportunity to return, Mr. Kennedy points out that his
platoon commander opined that he “needs to resolve his
personal issues in a satisfactory manner and return to
OCS once they are resolved.” J.A. 1137. Further, Mr.
Kennedy’s company commander opined that “[h]e may be
capable of returning to OCS at a later date if he could pull
himself together.” J.A. 1138. At oral argument, the
government conceded that, had Mr. Kennedy appeared in
person before the August 17, 2006 PRB, it is possible that
the PRB could have awarded him greater relief than the
waiver of tuition recoupment that it did recommend.
According to the government, such greater relief could
have included further tuition payments, and if the PRB
denied his request to return to OCS, the government
12 KENNEDY v. US
agreed that Mr. Kennedy could have pursued that denial
up the chain of command all the way to the Secretary.
The government agreed that the Secretary is authorized
and not estopped to instruct Quantico to admit a student
to OCS.
CONCLUSION
Given the concession by the government that Mr.
Kennedy’s due process rights had been violated when he
was dissuaded from attending his PRB, and its concession
that the error was not harmless, it is clear that the Court
of Federal Claims erred in concluding that Mr. Kennedy’s
disenrollment was inevitable because Quantico deemed
him unfit to return. On this limited point, the Court of
Federal Claims must be reversed.
At oral argument, the parties agreed that it is not
possible to reconvene the PRB that met on August 17,
2016, but it is possible for the BCNR to hear the case Mr.
Kennedy would have made to the PRB, and to recommend
to the Secretary that Mr. Kennedy receive further relief.
The proper course therefore is for this court to reverse the
judgment that the violation of Mr. Kennedy’s due process
rights was harmless and remand the case to the Court of
Federal Claims for it promptly to direct the case again to
the BCNR, with instructions that the BCNR promptly
consider Mr. Kennedy’s case and recommend such further
relief for him it deems appropriate.
REVERSED
COSTS
Costs to Mr. Kennedy.
United States Court of Appeals
for the Federal Circuit
______________________
JASON CARL KENNEDY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-1512
______________________
Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00165-MMS, Judge Margaret M.
Sweeney.
______________________
NEWMAN, Circuit Judge, concurring in part, dissenting in
part.
I agree that the Court of Federal Claims correctly sus-
tained the holding of the Board for Correction of Naval
Records (BCNR) that Mr. Kennedy is not required to
reimburse the government for the tuition payments made
to George Washington University on his behalf while he
was enrolled in the Naval Reserve Officers Training
Corps (NROTC), and that the reimbursement that he has
paid should be returned.
However, I do not join the court’s decision ordering
the BCNR, on constitutional and harmful error grounds,
to conduct further review to “possibly” recommend “fur-
2 KENNEDY v. US
ther relief,” Maj. Op. at 12. Such possible relief is unde-
fined, and the BCNR and the courts have responded to
any justiciable issues raised by Mr. Kennedy. Mr. Ken-
nedy is not entitled to receive from the government the
tuition he paid before and after his period of enrollment in
the NROTC program.
The decision to disenroll Mr. Kennedy from the
NROTC program was a necessary consequence of his
failure to complete the required Officer Candidate School
program at Quantico. CNETIST 1553, 12G, ¶ 501(e). Mr.
Kennedy did not request reversal of the Navy’s fitness-to-
serve determination, which was endorsed by three levels
of commanders at Quantico and made after a hearing
before the Commanding Officer’s Board. 1 The courts lack
competence to revisit that fitness-to-serve determination.
See Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (“[I]t is
difficult to conceive of an area of governmental activity in
which the courts have less competence” than “decisions as
to the composition, training, equipping, and control of a
military force”).
1 The Secretary of the Navy has delegated NROTC
training to the Chief of Naval Education and Training
(CNET). CNETINST 1553, 12G, ¶ 102(c). CNET dele-
gates authority over Marine Corps Option scholarship
students to the Marine Corps Recruiting Command
(MCRC). CNETINST 1553, 12G, ¶ 502(a). All NROTC
students must
undergo a 6-week training and evaluation period
at Officer Candidate School, Marine Corps Com-
bat Development Center, Quantico, Virginia. This
requirement for completion of Marine Corps
summer training will not be waived.
CNETIST 1553, 12G, ¶ 502(c) (underline in original).
KENNEDY v. US 3
The record documents instances of Mr. Kennedy’s
mental instability, including expulsion from campus
housing in November 2005 after an altercation with his
roommate, an attempt to fling himself out of a window,
and psychological counseling. J.A. 1131. At Officer
Candidate School, the record documents several instances
of Mr. Kennedy’s breaking into tears during training.
Following reports by his platoon, company, and battalion
commanders of emotional instability, Mr. Kennedy ap-
peared before a Commanding Officer’s Board at Quantico
on June 22, 2006. The record contains the handwritten
notes of the Commanding Officer, including:
3) You have demonstrated you can’t remain calm.
My question is, do I allow you to come back?
4) Cand[idate] isn’t having problems w/ OCS but
w/ family
5) What is the issue?
6) Cand[idate] needs to work it out @ home
7) Can it be fixed?
8) Cand[idate] doesn’t know.
10) Ok then I’m going to Disenroll you & not allow
you to reapply
J.A. 1139. The D.C. Circuit, considering a constitutional
question raised by disenrollment from Officer Candidate
School, stated that:
The district court properly granted summary
judgment on appellant’s claim that his disenroll-
ment from Officer Candidate School denied him
due process because there is no property or liberty
interest in a military promotion per se. Nor has
appellant pointed to any statute or regulation lim-
iting the Navy’s discretion to disenroll an OCS
trainee.
Yamashita v. England, No. 02-5176, 2002 WL 31898182,
at *1 (D.C. Cir. Dec. 23, 2002) (internal citations omitted).
4 KENNEDY v. US
Mr. Kennedy did not dispute his dismissal from Of-
ficer Candidate School, but now argues that he was
denied due process in his dismissal from the NROTC
program because he did not have the opportunity to
appear before the Performance Review Board when it
considered disenrollment. My colleagues hold that the
disenrollment recommendation of the Performance Re-
view Board, made in view of his discharge from Officer
Candidate School without permission to reapply, since
made without Mr. Kennedy’s presence, was harmful error
warranting judicial intervention. The record shows that
the disenrollment recommendation was adopted by the
commanding officer of the NROTC, who made his own
recommendations, which were then reviewed by the Chief
of Naval Education and Training, then by the Naval
Service Training Command, then by the Marine Corps
Recruiting Command, then forwarded to the Assistant
Secretary of the Navy for Manpower and Reserve Affairs.
This court has recognized that “judicial deference to
administrative decisions of fitness for duty of service
members is and of right should be the norm.” Maier v.
Orr, 754 F.2d 973, 984 (Fed. Cir. 1985).
The record also shows that Mr. Kennedy agreed that
he was not then suited for Marine leadership. In his
written response to the NROTC commanding officer’s
disenrollment recommendation, Mr. Kennedy wrote:
I still want to serve my country, but I am unable
due to lost mental stability, through no fault of my
own, and thus my ability to serve my country.
J.A. 1154. Although Mr. Kennedy now requests that his
Naval records be changed to show that he completed the
full NROTC program, according to the record Mr. Kenne-
dy did not request reinstatement in the NROTC, and the
BCNR declined to change his Naval records. See Dodson
v. United States, 988 F.2d 1199, 1204 (Fed. Cir. 1993)
KENNEDY v. US 5
(“The military is entitled to substantial deference in the
governance of its affairs.”).
Although my colleagues recognize that the decision of
whether Mr. Kennedy “should be permitted to serve in the
Marine Corps [is] solely within the province of the Navy,”
Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir.
1983), the court’s remand for the BCNR now to “hear the
case Mr. Kennedy would have made to the PRB,” Maj. Op.
at 12, is on the premise that the Navy’s procedures that
led to his disenrollment were subject to major flaw. I
cannot agree. See Orloff v. Willoughby, 345 U.S. 83, 93
(“[J]udges are not given the task of running the Army.”).
I discern no basis for further proceedings in the Court
of Federal Claims and the Board for Correction of Naval
Records. Thus I respectfully dissent from the court’s
remand action.