UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
Michael P. McDonough, )
)
Plaintiff, )
)
v. ) Case No. 16-cv-00582 (APM)
)
Sean J. Stackley, 1 )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
Plaintiff Michael P. McDonough, a former officer in the United States Navy, seeks judicial
review of a decision of the Board for Correction of Naval Records (“BCNR” or “Board”) denying
his request for reconsideration to alter his military records. Plaintiff served as a nuclear mechanic
in the Navy from 2002 to 2009. After being disciplined for misconduct on a routine audit exam,
he was demoted and subsequently left the Navy.
The circumstances of Plaintiff’s departure from the Navy lie at the heart of this dispute.
According to the Navy, after his demotion, Plaintiff voluntarily resigned. Plaintiff’s military
records reflect this version of events. The Navy then sought to recoup from Plaintiff certain bonus
payments paid upon his enlistment and re-enlistment. According to Plaintiff, however, following
his demotion, the Navy implemented a reduction in force that led to his involuntary removal from
the Navy, rendering any collection of his bonus payments improper.
1
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the court substitutes as Defendant the acting Secretary
of the Navy, Sean J. Stackley, for the former Secretary of the Navy, Raymond E. Maybus, Jr.
In August 2011, Plaintiff asked the Board to change his military records to indicate that his
removal was involuntary, which would have the effect of discharging the bonus-payment debt
obligation. The Board denied both Plaintiff’s initial application and his request for
reconsideration, leading Plaintiff to seek review in this court.
This matter is before the court on the parties’ cross-motions for summary judgment.
Because the Board rendered its decision by adopting an advisory opinion that does not address
Plaintiff’s arguments, and because the record does not reflect that the Board undertook an
independent review untainted by the fundamentally flawed advisory opinion, the court finds that
the Board’s denial was arbitrary and capricious. Accordingly, the court denies Defendant’s Motion
for Summary Judgment, grants Plaintiff’s Motion for Summary Judgment, and remands this matter
for further consideration.
I. BACKGROUND
Plaintiff Michael P. McDonough served as a nuclear mechanic in the Navy from 2002 to
2009. Admin. Rec., ECF No. 15 [hereinafter Admin. Rec.], Pt. 1, ECF No. 15-1 [hereinafter A.R.
Pt. 1], at 17–18; Admin. Rec., Pt. 2, ECF No. 15-2 [hereinafter A.R. Pt. 2], at 198–99; Admin.
Rec., Pt. 4, ECF No. 15-4 [hereinafter A.R. Pt. 4], at 388–99. 2 Plaintiff received a series of bonuses
upon his enlistment and reenlistment in the Navy—$12,000 in 2002; $27,304.99 in 2004;
$42,373.50 in 2008; and $8,474.70 in 2009. A.R. Pt. 1 at 5, 30, 156; Admin. Rec., Pt. 5, ECF No.
15-5 [hereinafter A.R. Pt. 5], at 410. While serving as a naval officer, Plaintiff was assigned two
Navy Enlistment Classification (“NEC”) codes—3385 and 3377—which indicated his technical
qualifications. See Def.’s Mot. for Summ. J, ECF No. 6, Def.’s Mem. in Supp., ECF No. 6-1
2
The Administrative Record is cited in five parts. Part 1 covers pages 1–99; Part 2 covers pages 100–199; Part 3
covers pages 200–299; Part 4 covers pages 300–399; and Part 5 covers pages 400–529. All pin citations are to the
Administrative Record’s original pagination.
2
[hereinafter Def.’s Mot.], at 2–3; Pl.’s Cross-Mot. for Summ. J., ECF No. 9, Pl.’s Mem. in Supp.,
ECF No. 9-1 [hereinafter Pl.’s Mot.], at 1; A.R. Pt. 1 at 1, 29–30; Admin. Rec., Pt. 3, ECF No. 15-
3 [hereinafter A.R. Pt. 3], at 278–280.
In 2009, Plaintiff was disciplined for misconduct on a routine audit exam, causing him to
be demoted and leading his commanding officer to request that Plaintiff’s classification codes be
removed. Def.’s Mot. at 3–4; Pl.’s Mot. at 2; A.R. Pt. 1 at 24; A.R. Pt. 2 at 139–143, 188; A.R.
Pt. 3 at 284. Plaintiff was discharged from the Navy in September 2009. A.R. Pt. 1 at 16; A.R.
Pt. 2 at 198–99. His discharge papers listed the reason for his discharge as “reduction in force”
and used separation code “KCC,” which signifies a voluntary departure. A.R. Pt. 1 at 16, 29; A.R.
Pt. 2 at 198–99; A.R. Pt. 5 at 526. Several months later, the Defense Finance and Accounting
Service (“DFAS”) sent Plaintiff a bill for $51,194.93—an amount representing the “unearned
portion of [Plaintiff’s] enlistment or reenlistment bonus.” A.R. Pt. 4 at 366–67. Plaintiff requested
DFAS review the debt, and the DFAS concluded the debt was valid. A.R. Pt. 1 at 81–85.
Plaintiff then turned to the Board for Correction of Naval Records (“BCNR” or “Board”).
He asked the Board to modify his records to reflect that he was discharged from the Navy
involuntarily due to a force reduction, which, if granted, would relieve him of any obligation to
repay bonus funds. A.R. Pt. 1 at 1, 15, 20–22, 29–44, 82–85; A.R. Pt. 3 at 202. In response to
Plaintiff’s application, the Board sought an advisory opinion from the Office of the Chief of Naval
Operations (“CNO”), which concluded that Plaintiff had voluntarily left the Navy and that
recouping his bonus payments was proper. A.R. Pt. 1 at 28–30. Plaintiff’s counsel wrote a letter
to the Board, dated February 12, 2012, urging it to disregard the advisory opinion. A.R. Pt. 3 at
260–61. Relying heavily on the CNO’s advisory opinion, the Board then denied Plaintiff’s
application. A.R. Pt. 1 at 19–23, 29–30. Plaintiff submitted a request for reconsideration
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(“Motion”), and the Board once again sought an advisory opinion. A.R. Pt. 2 at 123–24, 178–189.
The CNO recommended denying Plaintiff’s Motion. A.R. Pt. 2 at 113–15. The Board, relying on
the second advisory opinion from the CNO, denied the Motion. A.R. Pt. 1 at 97–99.
The Board’s denial of Plaintiff’s Motion forms the basis of this lawsuit. See Compl., ECF
No. 1 [hereinafter Compl.], ¶ 1. In sum, Plaintiff claims that the Board’s decision was arbitrary
and capricious—in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et
seq.—because the Board failed to consider any argument he advanced in his Motion. See Compl.
¶¶ 1, 75–76. The parties then filed cross-motions for summary judgment, to which the court now
turns.
II. LEGAL STANDARD
The Secretary of the Navy is authorized to modify military records “when [he] considers it
necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552. The Navy carries out this
function through the Board, which rules on petitions to correct military records. 32 C.F.R. § 723.1.
A district court may review the decision of a military board of correction using “familiar principles
of administrative law.” Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989); see
also Piersall v. Winter, 435 F.3d 319, 323–24 (D.C. Cir. 2006) (discussing the “well-settled rule
that the decisions of boards for correction of military records are subject to review under the
APA”). The court’s role is limited: it must “determine only whether the Secretary’s decision
making process was deficient, not whether his decision was correct.” Kreis, 866 F.2d at 1511.
In making such an evaluation, the district court owes the military board of correction’s
decision a heightened degree of deference. Although subject to the APA’s arbitrary and capricious
standard, 5 U.S.C. § 706(2)(A), courts review board decisions under an “unusually deferential”
application of that standard. Kreis, 866 F.2d at 1514; Cone v. Caldera, 223 F.3d 789, 793 (D.C.
4
Cir. 2000). That is because an element of discretion on the part of the military board is built into
the statutory section authorizing review. Indeed,
[i]t is simply more difficult to say that the Secretary has acted
arbitrarily if he is authorized to act “when he considers it necessary
to correct an error or remove an injustice,” than it is if he is required
to act whenever a court determines that certain objective conditions
are met, i.e., that there has been an error or injustice.
Kreis, 866 F.2d at 1514 (citation omitted). It is this additional grant of statutory authority that
warrants the greater deference. Even under such a deferential standard, however, the military
board must provide the district court with a “reason that [the] court can measure” against the
arbitrary and capricious standard. Id. at 1514–15.
III. DISCUSSION
A. Whether the Board’s Decision Was Arbitrary or Capricious
Plaintiff contends that the Board’s decision was arbitrary and capricious because it failed
to address the arguments he made in his Motion for Reconsideration. Pl.’s Mot. at 9–13. The
court agrees. Even a cursory examination of Plaintiff’s filings and the Board’s decisions
demonstrates that, when denying Plaintiff’s Motion, the Board rejected arguments that Plaintiff
advanced not in the Motion itself, but in a filing that preceded it. In other words, the Board’s
denial was based on an entirely different set of arguments than those contained in Plaintiff’s
Motion. Accordingly, the Board’s decision to deny reconsideration of its earlier ruling violates
the APA, even under the “unusually deferential” standard afforded military boards.
The Board denied Plaintiff’s Motion in a two-page letter that offers little explanation for
its decision. A.R. Pt. 1 at 98–99. Indeed, the Board’s analysis of the Motion’s merits is only two
sentences long:
After careful and conscientious consideration of the entire record,
the Board found that the evidence submitted was insufficient to
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establish the existence of probable material error or injustice. In
making this determination, the Board substantially concurred with
the comments contained in the advisory opinion.
Id. at 99. The CNO submitted the referenced “advisory opinion” by letter dated March 31, 2014
(“March 2014 Advisory Opinion”). Id. at 113–15. Because the Board’s decision essentially rests
on the March 2014 Advisory Opinion, this court must look to that opinion to determine whether
the Board acted arbitrarily and capriciously.
1. The March 2014 Advisory Opinion
As a preliminary matter, the Board did nothing improper by relying on an advisory opinion
to render its decision. See Roberts v. United States, 741 F.3d 152, 158–59 (D.C. Cir. 2014). A
military board of correction may meet its obligation to provide a reasoned explanation by referring
to a clearly relevant source, such as an advisory opinion. See id. Trouble arises, however, when
a board hinges its decision in whole on an advisory opinion that does not satisfy the arbitrary and
capricious standard. Here, the Board did just that. The March 2014 Advisory Opinion is arbitrary
and capricious, because it very clearly addresses arguments made in an earlier set of objections
raised by Plaintiff, rather than addressing the arguments Plaintiff made in his Motion. Because
the advisory opinion on which the Board relied was itself arbitrary and capricious, so too was the
Board’s denial of Plaintiff’s Motion.
Several aspects of the March 2014 Advisory Opinion demonstrate that the Board did not
respond to the arguments raised in Plaintiff’s Motion for Reconsideration. First, the March 2014
Advisory Opinion does not contain the case number assigned to Plaintiff’s Motion—“11442-12.” 3
A.R. Pt. 3 at 205. Instead, it bears the case number “09033-11,” which is the case number assigned
to Plaintiff’s 2011 application to the Board to correct his records and cancel his purported debt.
3
The “12” most likely signifies the year—2012—in which the Motion was filed.
6
See A.R. Pt. 1 at 31; Def.’s Mem. at 5; Pl.’s Reply in Supp. of Pl.’s Mot., ECF No. 14 [hereinafter
Pl.’s Reply], at 2. The absence of the Motion’s assigned case number is the first sign that
something is amiss.
Second, Plaintiff’s Motion is conspicuously absent from the list of documents that the
author of the March 2014 Advisory Opinion considered in reaching her conclusion. A.R. Pt. 2 at
113; Pl.’s Reply at 2. That list identifies three documents: (1) Plaintiff’s initial application to the
Board; (2) an earlier advisory opinion prepared by the CNO, dated October 2011 (“October 2011
Advisory Opinion”), which the Board received and relied upon when denying Plaintiff’s initial
application; and (3) a letter from Plaintiff’s counsel that pre-dates the Board’s final decision, in
which counsel responds to the Board’s October 2011 Advisory Opinion. A.R. Pt. 1 at 20–23; A.R.
Pt. 2 at 113. Plaintiff’s Motion—which is attached to a letter from David Sheldon to the Board
for Correction of Naval Records, dated October 17, 2012, see A.R. Pt. 2 at 178–189—is not
mentioned. The fact that Plaintiff’s Motion is absent from this list is significant evidence that the
CNO never considered it.
Third, it is plain that the March 2014 Advisory Opinion only responds to arguments
contained in Plaintiff’s counsel’s letter, dated February 12, 2012, which was sent before the Board
rejected his initial application. Indeed, the March 2014 Advisory Opinion quotes nearly verbatim
the arguments raised in the February 2012 letter before rejecting them. The chart below
demonstrates the parallels.
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February 2012 Letter March 2014 Advisory Opinion
“The sole basis for the [bonus] recoupment “[Plaintiff’s counsel] writes that the sole basis
efforts . . . was [Plaintiff’s] alleged failure to for DFAS’ recoupment efforts are due to
‘satisfactorily complete the designated term of [Plaintiff’s] alleged failure to ‘satisfactorily
enlistment for which the bonus was paid.’” complete the designated term of enlistment
A.R. Pt. 3 at 260. for which the bonus was paid.’” A.R. Pt. 2 at
113–14.
“As argued in the BCNR Memo, DFAS’ “Mr. Sheldon contends that DFAS’
conclusions are incorrect because, as the conclusions are incorrect because the contract
contracts themselves indicate, the condition specifies that the action which triggers
relied upon by DFAS as triggering recoupment must be within the control of
recoupment must lie within the control of the PO2 McDonough and he was separated
designee and PO2 McDonough was separated because of a force structure, something not
because of a force reduction.” A.R. Pt. 3 at within PO2 McDonough’s control.” A.R. Pt.
261. 2 at 114.
“Further, even the Advisory Opinion’s post “He claims the Advisory Opinion is
hoc arguments are misguided. They appear to misguided because it focuses on the fact that
focus on a factual contention that PO2 PO2 McDonough’s NF NEC was removed
McDonough’s NF NEC was removed due to a due to a JPN [non-judicial punishment];
non-judicial punishment. However the however, no evidence was provided
Advisory Opinion did not produce any supporting this contention. After several
evidence supporting its contention. Nor did FOIA requests only documents suggesting the
DFAS during the course of official hearing removal of the NEC had merely been
proceedings and other recoupment efforts. requested and show no further removal
After several Freedom of Information Act processing or any actual removal.” A.R. Pt. 2
(FOIA) requests for all documents in PO2 at 114.
McDonough’s file, all that has surfaced are
documents suggesting that removal of PO2
McDonough’s NF NEC had merely been
requested. . . . To date, no documents have
surfaced evincing further removal processing
or any actual removal.” A.R. Pt. 3 at 261.
“In light of the above, the Board should “In light of this, Mr. Sheldon believes BCNR
disregard the [October 2011] Advisory should limit its consideration to the actual
Opinion as it has little utility under the facts rationale for DFAS’ recoupment efforts and
of this case. The Board should limit its refer to [his BCNR Memo] for arguments
consideration to the actual rationale for justifying the requested relief.” A.R. Pt. 2 at
DFAS’ recoupment efforts and refer to PO2 114.
McDonough’s BCNR Memo for arguments
justifying PO2 McDonough’s requested
relief.” A.R. Pt. 3 at 261.
8
Only one rational conclusion can be drawn from the textual similarities reflected in the foregoing
chart: The March 2014 Advisory Opinion responds to arguments raised in Plaintiff’s counsel’s
February 2012 letter, not in Plaintiff’s Motion.
Fourth, while the March 2014 Advisory Opinion largely parrots the arguments contained
in the February 2012 letter, it is entirely silent with respect to the arguments advanced in Plaintiff’s
Motion. Plaintiff made three arguments in his Motion: (1) the Navy did not follow proper
procedures when removing Plaintiff’s NEC codes, see A.R. Pt. 2 at 185–86; (2) the Secretary of
the Navy did not authorize the DFAS to recoup Plaintiff’s bonus payments, see id. at 186–88; and
(3) it is in the interest of justice to stop efforts to collect Plaintiff’s purported debt, see id. at 188.
These arguments are nowhere referenced in the March 2014 Advisory Opinion.
Thus, both on its face and in substance, the CNO’s March 2014 Advisory Opinion does not
give the court any confidence that the opinion’s author laid eyes on, let alone evaluated, Plaintiff’s
Motion. From citing the wrong case number to quoting from and paraphrasing the wrong letter,
the March 2014 Advisory Opinion does not address Plaintiff’s Motion. And, because the Board
relied substantially on the March 2014 Advisory Opinion in its denial of Plaintiff’s Motion,
without adding any supplemental analysis of its own, the Board’s ruling is arbitrary and capricious.
Kreis, 866 F.2d at 1514–15.
2. Defendant’s Contentions
Defendant advances various arguments to convince the court that the Board actually did
consider Plaintiff’s Motion on the merits. None are convincing.
First, Defendant points to the Board’s summation of the evidence it considered, as listed in
its denial letter. According to that letter, the “[d]ocumentary material considered by the Board
consisted of [Plaintiff’s] application, together with all material submitted in support thereof,
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[Plaintiff’s] naval record and applicable statutes, regulations and policies.” A.R. Pt. 1 at 98.
Defendant focuses on the Board’s reference to Plaintiff’s “application” as evidence that it fully
considered Plaintiff’s Motion. Def.’s Reply in Supp. of Def.’s Mot., ECF No. 12 [hereinafter
Def.’s Reply], at 2. The reference to “application,” however, without more, is too ambiguous a
term for the court to be able to “reasonably . . . discern[]” the Board’s “path” in rejecting Plaintiff’s
Motion. See Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997). Indeed, the Board used the
same exact sentence to describe the materials it considered when it denied Plaintiff’s original
request to correct records. Compare A.R. Pt. 1 at 20 (“Documentary material considered by the
Board consisted of your application, together with all material submitted in support thereof, your
naval record and applicable statutes, regulations and policies.”), with A.R. Pt. 1 at 98 (same). The
word “application,” therefore, does not carry the weight that Defendant accords it.
Next, Defendant highlights a passage from the March 2014 Advisory Opinion that, it
contends, shows the Board considered and rejected Plaintiff’s argument for reconsideration that
the Navy had not properly removed his NECs—that is, the codes identifying his status as a nuclear-
trained mechanic.
Mr. Sheldon writes the NEC removal was requested but no further
processing was done. Enclosure (6), Block 11 shows the
rating/NEC P02 McDonough had when he separated, MM-0000.
This means he did not have his Nuclear Field NEC at separation [or]
else Block 11 would have read MM-3385. The NEC removal
process was completed before P02 McDonough’s separation.
Def.’s Reply at 6 (quoting A.R. Pt. 2 at 115) (alteration omitted). That response, however, is
clearly an answer to Plaintiff’s contention in the February 2012 letter that the removal of his
“[Nuclear Field] NEC had merely been requested. . . [and] no documents have surfaced evincing
further removal processing or any actual removal.” A.R. Pt. 1 at 96. On the other hand, the actual
arguments Plaintiff makes in his Motion concerning the NECs removal are not addressed in the
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Board’s final decision. In Plaintiff’s Motion, Plaintiff argued that, under Navy rules, his nuclear
NECs could be removed only if authorized by the Chief of Naval Operations (“CNO”). A.R. Pt.
2 at 185. The CNO would then indicate his or her approval by adding a notation in Plaintiff’s
military record, and Plaintiff’s record contained no such notation. Id. at 185–86. Neither of those
specific contentions are acknowledged in the March 2014 Advisory Opinion.
Finally, Defendant claims that the Board considered Plaintiff’s third argument—that the
“interest of justice” warranted forgiveness of Plaintiff’s debt to the Navy—because the denial letter
states, “[A]fter careful consideration of your request, the Board found insufficient evidence of an
error or injustice that would warrant the relief you sought.” Def.’s Reply at 9 (quoting A.R. Pt. 1
at 98). That quoted portion of Board’s letter, however, is taken out of context. The quoted sentence
reads, in full: “On 27 February 2012, after careful consideration of your request, the Board found
insufficient evidence of an error or injustice that would warrant the relief you sought.” A.R. Pt. 1
at 98 (emphasis added). Thus, the quoted sentence refers not the Board’s conclusion as to the
Motion, but rather its denial of Plaintiff’s original application for correction. 4
* * *
In summary, there is nothing within either the March 2014 Advisory Opinion or the
Board’s denial letter of May 16, 2014, that provides a “reason that [the] court can measure” in
evaluating the Board’s decision against the arbitrary and capricious standard. Kreis, 866 F.2d at
1514–15. Accordingly, even under the “unusual deference” afforded to military correction boards
in this context, the Board’s denial of Plaintiff’s Motion does not pass muster.
4
Defendant may have intended to cite a later sentence in the Board’s denial letter, which reads: “After careful and
conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to
establish the existence of probable material error or injustice.” A.R. Pt. 1 at 99. However, this generic language,
which is also used in the Board’s initial denial letter, see A.R. Pt. 1 at 20, does not enable the court to conclude that
the Board considered equitable interests in the context of the other arguments Plaintiff made on reconsideration.
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B. Harmless Error
Defendant further contends that even if the Board erred by failing to consider the three
arguments in Plaintiff’s request for reconsideration, any such error is harmless. Def.’s Reply at 4–
9. As to Plaintiff’s first contention—that the Navy did not follow correct procedures in removing
his NECs—Defendant asserts that other documents in the record evidence that the Navy did in fact
follow the proper procedures and properly removed Plaintiff’s NECs. Id. at 4–7. As to Plaintiff’s
second argument—that the Secretary of the Navy did not authorize the DFAS to recoup the debt—
Defendant maintains that the record shows that DFAS was authorized to collect the debt. Id. at 7–
8. Lastly, regarding Plaintiff’s third argument—that the Board should forgive Plaintiff’s error and
his debt to avoid manifest injustice—Defendant responds that, given the Board’s authority to
“remedy error or injustice,” implicit in its very denial of reconsideration is a rejection of Plaintiff’s
plea for leniency. Id. at 8–9.
In asking the court to declare any errors harmless, Defendant asks the court to do exactly
what Kreis holds is improper—pass on the correctness of the Board’s decision. Kreis, 866 F.2d at
1511. This court’s review is limited to “whether the [Board’s] decision making process was
deficient, not whether its decision was correct.” Id. (emphasis added). District courts thus should
avoid the type of merits-based, harmless error analysis that Defendant asks the court to undertake
here. Cf. Coe v. McHugh, 968 F. Supp. 2d 237, 241 n.2 (D.D.C. 2013) (applying harmless error
rule to a board of correction decision that relied on an outdated regulation whose text in the new
version had not changed). When a court does find error in the decision-making process, the better
course is to remand the matter to the military correction board so that it can address any
deficiencies in the first instance. See Kreis, 866 F.2d at 1512. That is how the court will proceed
here.
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IV. CONCLUSION
For the foregoing reasons, the court denies Defendant’s Motion for Summary Judgment
and grants Plaintiff’s Motion for Summary Judgment. The decision of the Board denying
Plaintiff’s request for reconsideration is remanded to the Board for further consideration.
A separate Order accompanies this Memorandum Opinion.
Dated: March 16, 2017 Amit P. Mehta
United States District Judge
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