Kelly v. United States

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
___________________________________
)
MATTHEW R. KELLY, )
)
Plaintiff, ) No. 20-579C
)
v. ) Filed: November 19, 2021
)
THE UNITED STATES, )
)
Defendant. )
___________________________________ )

OPINION AND ORDER

Plaintiff Matthew Kelly alleges that a decision by the Board for Correction of Naval

Records (“BCNR” or “Board”) denying his request for disability retirement was arbitrary and

capricious, contrary to law, and/or unsupported by substantial evidence. Before the Court is

Plaintiff’s Motion for Judgment on the Administrative Record and Defendant’s Cross-Motion for

Judgment on the Administrative Record. For the foregoing reasons, the Court DENIES Plaintiff’s

Motion and GRANTS Defendant’s Cross-Motion.

I. BACKGROUND

A. Statutory and Regulatory Framework for Disability Retirement

The Secretary of each branch of the armed services possesses the authority to retire a

service member with retired pay if the Secretary determines the service member is “unfit to

perform the duties of the member’s office, grade, rank or rating because of physical disability

incurred while entitled to basic pay.” 10 U.S.C. § 1201(a). 1 To be eligible for disability retirement,

1
Plaintiff correctly identifies 10 U.S.C. § 1201 as the money-mandating statute supporting
the Court’s jurisdiction in this matter. Pl.’s Compl. ¶ 4, ECF No. 1; see Fisher v. United States,
402 F.3d 1167, 1175 (Fed. Cir. 2005) (citing Sawyer v. United States, 930 F.2d 1577, 1580 (Fed.
Cir. 1991)).
the service member’s disability must be of a permanent nature and not the product of the member’s

own misconduct or neglect. Id. §§ 1201(b)(1), (b)(2). Additionally, disability retirement is

available only to members who have either 20 years of service or whose disability is at least 30

percent under the Department of Veterans Affairs (“VA”) Schedule for Ratings Disabilities and

was incurred in, among other circumstances, the line of duty. Id. § 1201(b)(3). Congress has

authorized the Secretary concerned to prescribe regulations implementing the statutory provisions

governing retirement or separation due to physical disability. Id. § 1216(a).

The relevant regulation in Plaintiff’s case is Secretary of the Navy Instruction

(“SECNAVINST”) 1850.4E, which defined the applicable standards and procedures used by the

Navy to adjudicate disability cases at the time of Plaintiff’s separation. Pursuant to the instruction,

a Physical Evaluation Board (“PEB”) acts on behalf of the Secretary of the Navy to determine a

member’s fitness to continue naval service and entitlement to disability benefits. See Department

of Navy (DON) Disability Evaluation Manual, SECNAVINST 1850.4E, encl. (1), ¶ 1004.a (Apr.

30, 2002) (describing PEB procedures as part of the Navy’s Disability Evaluation System

(“DES”)). In assessing whether a service member is eligible for disability retirement,

SECNAVINST 1850.4E provides that:

The sole standard to be used in making determinations of physical disability as a
basis for retirement or separation is unfitness to perform the duties of office, grade,
rank or rating because of disease or injury incurred or aggravated while entitled to
basic pay. Each case is considered by relating the nature and degree of physical
disability of the member to requirements and duties that member may reasonably
be expected to perform in his or her office, grade, rank or rating.

Id., encl. (3), ¶ 3301. 2

2
The instruction similarly defines unfitness as an inability to “reasonably perform the
duties of office, grade, rank or rating.” SECNAVINST 1850.4E, encl. (2), ¶ 2085.
2
 The instruction provides four considerations for the PEB to assess in determining whether

a service member can reasonably perform his or her duties: (1) common military tasks, i.e.,

whether the member is unable to reasonably perform routine assignments expected of his or her

office, grade, rank or rating; (2) physical readiness/fitness tests, i.e., whether the member’s

condition prohibits him or her from taking all or part of physical readiness/fitness tests; (3)

deployability, i.e., whether the member’s condition prevents him or her from being positioned

outside the continental United States for an unspecified amount of time; and (4) special

qualifications, i.e., whether the member’s condition causes the loss of any specialized

qualifications. Id. ¶ 3304. Notably, the standards utilized for a disability determination and for

considering common military tasks are effectively interchangeable: both assess whether the

member can reasonably perform the duties of his or her office, grade, rank, or rating. See id.

¶¶ 3301, 3302.a, 3304.a.(1). Therefore, a finding that a service member cannot perform his or her

common military tasks is dispositive to the ultimate question of the member’s unfitness. By

contrast, the considerations of deployability, physical fitness test, and special qualifications cannot

be used individually as the sole basis for a finding of unfitness. See id. ¶ 3307.

In addition to the four considerations, the instruction also provides that the PEB may

evaluate other general criteria when determining a member’s unfitness, including, as relevant here,

whether a member’s condition poses a medical risk to the member (or other members) were the

member to be retained on active duty and whether the condition imposes unreasonable

requirements on the military to maintain or protect the member. Id. ¶¶ 3302.b.(1), (2).

“[I]n assessing service member fitness, including the circumstances of referral [to the

DES],” SECNAVINST 1850.4E instructs the PEB to “[c]onsider all relevant evidence,” id. ¶ 3303,

and make a finding of fitness or unfitness based on a preponderance of the evidence, id. ¶ 3306.b.

3
The instruction recognizes that in certain circumstances performance evaluations “may provide

better evidence than a clinical estimate by a physician of the service member’s ability to perform

his or her duties.” Id. ¶ 3303.b; see id. ¶ 3205. It also provides that a member can be determined

fit based on a finding that he or she adequately performed duties until the time of referral for DES

processing, even if medical evidence calls into question his or her physical ability to continue to

perform those duties. Id. ¶ 3303.c.

Notably, SECNAVINST 1850.4E does not apply to a member who is pending

administrative discharge for misconduct. See id., encl. (1), ¶ 1002.b. According to the instruction,

“processing for administrative discharge for misconduct takes precedence over processing for

disability.” Id.

Although Plaintiff was never referred to the PEB for evaluation before the Navy discharged

him, the standard and related considerations established in SECNAVINST 1850.4E, as discussed

above, guide the Court in evaluating the propriety of the BCNR’s decision-making process. See

Sawyer v. United States, 930 F.2d 1577, 1581 (Fed. Cir. 1991) (recognizing the BCNR “is

competent to make a disability determination in the first instance”); Beckham v. United States, 392

F.2d 619, 622 (Ct. Cl. 1968) (recognizing the BCNR, “like other administrative bodies, is bound

by its own regulations”).

B. Findings of Fact

Plaintiff enlisted in the United States Navy and entered active duty on November 12, 2008.

Admin. R. 146, 153, ECF No. 8 (“AR”). Within a year of enlisting, Plaintiff graduated from diving

school and qualified as a Second Class Navy Diver. Id. at 401–02. Plaintiff was then assigned to

Mobile Diving and Salvage Company Two where he performed numerous dives as part of salvage

operations and joint naval exercises from at least January 2009 until October 2012. Id. at 160–66.

4
A performance evaluation report from this period characterizes Plaintiff as a “devoted and tireless

performer,” reflecting the integral and admired nature of his skills as a diver. See id. at 165; see

also id. at 163 (describing Plaintiff as an “effective team member with job accomplishment as a

top priority”); id. at 161 (praising, among other qualities, Plaintiff’s diving and management

skills). In March 2010, Plaintiff earned the Navy and Marine Corps Achievement Medal and the

Humanitarian Service Medal for the superior performance of his duties during a deployment to

Haiti where he cleared and assisted in the re-opening of critical commercial seaports damaged

during the earthquake that occurred there earlier that year. Id. at 167, 400.

After his deployment to Haiti, Plaintiff was deployed to the Persian Gulf in September

2010 where he conducted 41 anti-terrorism force protection dives and served as lead diver for three

other dives. Id. at 165. In July 2012, he participated in a mission to Canada where his efforts

proved “vital” in a diving operation, in which he successfully excavated, recovered, and repatriated

three U.S. Army Air Corps personnel lost since 1942 in 120 feet of water off the coast of Nova

Scotia. Id. at 39, 161.

Diving is a hazardous occupation in the Navy and, unfortunately, Plaintiff suffered two

diving-related medical events during his military service. In 2010, he experienced a head trauma

as a result of striking his head during a dive. 3 Id. at 8, 39, 77. Additionally, during a dive in

support of the mission to Nova Scotia, Plaintiff suffered from hypoxia and type 2 decompression

sickness. Id. at 39, 78. In relation to the latter event, crew members pulled Plaintiff out of the

water after he lost consciousness, and a doctor examined him before he returned to service later

that same day. Id. at 39. Following this event of hypoxia, Plaintiff reportedly began experiencing

3
Plaintiff also experienced a second head injury in 2012 when he hit his head on the
ground while playing recreational football. AR 8, 39, 78.
5
emotional and behavioral changes and consuming alcohol excessively. Id. at 39, 78. It was during

this time in 2012 that Plaintiff also separated from his wife. Id. at 39.

In October 2012, the Navy transferred Plaintiff to the United States Naval Academy in

Annapolis, Maryland. Id. at 158. Within months, Plaintiff’s conduct began to suffer. In January

2013, he was counseled for an unauthorized absence from a command physical fitness session and

substandard appearance during a command indoctrination course. Id. at 417. Plaintiff received

further counseling in March 2013 after being cited by local law enforcement for reckless driving

after he was stopped for speeding in a government-issued vehicle. Id. at 418. Then, on April 14,

2013, Plaintiff was cited by the Annapolis Police Department for, among other charges, driving a

vehicle while impaired by alcohol (“DWI”). Id. at 420. Plaintiff’s medical records show that,

during this period of frequent misconduct, he received some outpatient mental health treatment.

A February 2013 mental health record notes diagnoses of adjustment disorder with anxiety and

depressed mood, as well as marital problems. Id. at 219.

As a result of the DWI citation, the Navy issued Plaintiff a non-judicial punishment

(“NJP”), which included, inter alia, forfeiture of pay, reduction in pay rate, and community

service. Id. at 157, 422. The aspects of the NJP related to Plaintiff’s pay were suspended for six

months. Id. at 422. Because of the NJP, the Navy conducted a performance evaluation of Plaintiff,

covering the period of March 16, 2013, to May 13, 2013. Id. at 156–57. This evaluation described

Plaintiff as “an above average Sailor who made a serious mistake” from which he could recover

with mentoring and strong personal desire. Id. at 157. It reflected that Plaintiff at that time

adequately performed the duties of a Second Class Navy Diver, which included the operation,

maintenance, and repair of diving equipment, and collateral duties including the performance of

funeral honors. Id. at 156. Plaintiff was rated as meeting standards in all categories, except for

6
“military bearing/character.” Id. at 156–57. After issuing the NJP, it appears the Navy also

suspended Plaintiff’s diving qualifications due, in part, to “personal issues” identified as “family

separation” and Plaintiff’s receipt of the March 2013 speeding ticket while driving in a government

vehicle. Id. at 435 (noting that Plaintiff was “on a suspend bust from the former Commandant this

spring”).

Finally, on July 21, 2013, the Annapolis Police Department arrested Plaintiff for theft,

disorderly conduct, and resisting arrest after he left a restaurant without paying his bill. Id. at 426.

The arresting officer observed that Plaintiff’s eyes were watery and glassy, his speech slurred, and

his breath emitted a strong odor of alcohol. Id. On July 30, 2013, Plaintiff received notice that

the Navy was processing him for administrative separation due to misconduct, specifically the

commission of a serious offense. Id. at 149–50. The Navy additionally vacated the suspension of

the forfeiture of pay and reduction in pay rate aspects of his earlier NJP. Id. at 433. It also removed

Plaintiff’s Second Class Diver classification on September 24, 2013. Id. at 155.

Between August and December 2013, Plaintiff was temporarily assigned to Fort Belvoir

Community Hospital in Virginia where he successfully graduated from a military in-patient

rehabilitation program and an outpatient dual-diagnoses therapy program where he was treated for

depression and alcohol use disorder. Id. at 67, 113, 154. During his time at Fort Belvoir

Community Hospital, Plaintiff underwent neuropsychological testing to evaluate whether he

suffered from a traumatic brain injury (“TBI”). Id. at 35. According to the December 9, 2013

report of the Defense Health Agency (“DHA”), the evaluation concluded that Plaintiff had

neurocognitive deficits that required “ongoing and persistent treatment.” Id. These deficits

included “circumscribed cognitive difficulties on tasks requiring mental processing speed, slowed

fine motor and dexterity and visuospatial processing, complex problem solving[,] and memory.”

7
Id. The DHA report concluded that some of Plaintiff’s cognitive difficulties were attributable to

multiple etiologies including childhood maltreatment, fetal alcohol exposure, and hypoxia

episodes from multiple long-term dives and reduced oxygen saturation. Id. It also noted Plaintiff’s

“repeated symptom of ‘odd’ sensory feelings and reduced motor functioning from dives,” as well

as evidence of a small cyst in his brain complicating his sensory and motor functioning. Id. at 36.

Plaintiff was ultimately diagnosed with major depressive disorder, cognitive disorder, antisocial

traits, potential hypoxia, and retrocerebellar cyst. Id.

On December 6, 2013, the Superintendent of the Naval Academy issued a decision to

discharge Plaintiff due to his misconduct. Id. at 145. Plaintiff’s separation caused a final

performance evaluation to be conducted, covering the period of May 14, 2013, to December 20,

2013. Id. at 154–55. The evaluation report noted Plaintiff was performing the duties of a

maintenance technician during this period, and his performance was evaluated as “meeting

standards” for all categories of performance traits except for the trait of “military

bearing/character.” Id. Plaintiff also underwent a pre-separation medical assessment, which noted

that “TBI, depression and anxiety disorder affect[ed] [Plaintiff’s] capacity to continue diving.” Id.

at 452; see id. at 453 (listing diagnoses of depression, anxiety disorder, alcohol dependence, and

“neurological [and] cognitive impairment”). Nonetheless, the assessment found Plaintiff qualified

for service and separation. Id. at 453.

Although his command had become aware of Plaintiff’s TBI evaluation and neurocognitive

deficits during the separation process, id. at 436–37, Plaintiff was officially discharged from the

Navy for misconduct on December 20, 2013, with his rate reflecting “ND3” or Third Class Navy

Diver, and the character of his service noted as “under honorable conditions (general),” id. at 399.

See also id. at 146–48.

8
C. Procedural Background

1. Decision of the Naval Discharge Review Board (“NDRB”)

On February 3, 2015, Plaintiff sought a change in his characterization of and narrative

reason for discharge from the NDRB on equity and propriety grounds. Id. at 370, 372.

Specifically, Plaintiff requested a discharge upgrade from a general to honorable characterization

and an alteration to the statements of narrative reason and separation authority included on his

discharge document. Id. at 372.

After providing an in-person hearing, the NDRB rendered its final decision on October 14,

2015, granting Plaintiff’s request for relief. Id. at 134. The NDRB considered each of the issues

raised by Plaintiff, rejecting all his arguments alleging that the Navy committed some type of legal

error preceding and/or during the separation process. Id. at 135–38. It specifically found that

Plaintiff’s July 2013 arrest was the result of “conscious decisions that violate[d] the tenants of

honorable and faithful service.” Id. at 138.

The NDRB, however, determined that relief was warranted “based on equitable grounds

due to [Plaintiff’s] service connected cognitive defects.” Id. (finding the “record of evidence

clearly show[ed] [Plaintiff] was engaged in hazardous service that resulted in a definite,

documented, causal relationship between his hazardous service and his resulting disabilities”).

The NDRB acknowledged that, although Plaintiff “incurred his disabilities from his hazardous

service,” that was “not sufficient by itself to support an upgrade determination.” Id. Rather, the

NDRB based its decision on the “totality of [Plaintiff’s] service record, the start date of his mental

health counseling and evaluation, the manifestation dates of his misconduct, and his post-service

actions and treatment records with respect to the equity of his discharge characterization and

narrative reason for separation.” Id. Notably, the NDRB “found [Plaintiff’s] discharge was proper

9
and equitable at the time of discharge.” Id. at 139. It based its upgrade determination “on matters

of equity related to [Plaintiff’s] post-service diagnoses of medical conditions related to his

hazardous duty diving operations.” Id. at 139. On that ground alone, the NDRB directed that

Plaintiff’s discharge be changed to “honorable” and the narrative reason be changed to “secretarial

authority.” Id.

2. Decision of the BCNR

On December 20, 2016, over a year after the NDRB upgraded his discharge, Plaintiff

submitted an application to the BCNR requesting the Board correct his military records to reflect

a disability retirement. Id. at 10. Plaintiff asserted that the NDRB’s decision to upgrade his

characterization to a fully honorable discharge, in addition to his VA disability rating, entitled him

to an award of 60 percent military medical retirement pay. 4 Id.

On July 19, 2017, the Chairman of the BCNR requested comments and recommendations

on Plaintiff’s claim from the Director of the Navy’s Council of Review Boards (“CORB”). Id. at

125. In response, an advisor of the Senior Medical Officer of CORB issued an advisory opinion

concluding that his review of the available evidence did not support Plaintiff’s request for

disability retirement. Id. at 127. In sum, the advisor stated that “objective evidence” established

Plaintiff performed his duties adequately at the time of his separation. Id. at 130. He further noted

that Plaintiff’s “largely alcohol-related misconduct . . . appears to have led to his discharge,” and

the misconduct did not “result[] from a legally exculpating level of psychological impairment

incident to a potentially compensable psychiatric condition.” Id. Finally, the advisor observed

4
In September 2014, the VA issued Plaintiff a combined disability rating of 60 percent
resulting from his medical impairments, which included tinnitus, major depressive disorder,
cognitive deficits, and motor slowing due to decompression sickness and hypoxic episodes. AR
462–66.
10
that, per his review of the record, none of “the involved health care evaluators and providers of

record contemporary with [Plaintiff’s] active service felt him to be unfit or that referral to the . . .

PEB was warranted.” Id. Had such a referral occurred, the advisor opined that “a finding of fit to

continue naval service would have been the likely result.” Id. at 131. On October 31, 2017, the

Director of CORB concurred with the recommendation of the Senior Medical Advisor. Id. at 132.

In a letter dated December 12, 2017, serving as a rebuttal to the CORB advisory opinion,

Plaintiff—through counsel—argued that he “suffered from significant cognitive and emotional

impairment as well as untreated PTSD at the time of separation” and that a “preponderance of the

evidence suggest[ed] that these medical impairments directly relate[d] back to [Plaintiff’s] in-

service injuries and existed in 2013.” Id. at 13. Plaintiff disagreed with several of the Senior

Medical Advisor’s assertions, including that: Plaintiff’s alcohol-related misconduct that resulted

in his separation did not result from a “legally exculpating level of psychological impairment

incident to a potentially compensable psychiatric condition,” Plaintiff’s impairments did not

warrant a referral to the PEB, or a referral would have resulted in a finding of Plaintiff being fit

for continued naval service. Id. at 13–17. Plaintiff argued that SECNAVINST 1850.4E required

Plaintiff’s referral to the PEB instead of being administratively separated. See id. at 17 (citing

SECNAVINST 1850.4E, encl. (3), ¶¶ 3106, 3202.g). 5 Plaintiff offered no additional or alternative

bases to argue that his disabilities should have prevented his separation or taken precedence over

his separation due to misconduct. See id.

The BCNR denied Plaintiff’s application on February 5, 2018, finding no error or injustice

warranted correction to Plaintiff’s record. Id. at 5–6. The Board also rejected Plaintiff’s request

5
Plaintiff’s rebuttal letter cites ¶ 3202.b of SECNAVINST 1850.4E; however, the
language quoted in the letter appears in ¶ 3202.g. See AR 17.
11
to personally appear before it and considered Plaintiff’s case based on the record. Id. at 6–7. The

Board “substantially concurred” with the CORB advisory opinion and found that objective

evidence, i.e., Plaintiff’s last two performance evaluations from 2013, showed that Plaintiff

adequately performed the duties of his office, grade, rank, or rating, despite his diagnosed

disabilities. Id. at 6. The Board also concurred with the NDRB’s finding that the Navy properly

processed and discharged Plaintiff for misconduct. Id. Like the NDRB, the Board found no

evidence demonstrating that Plaintiff was not criminally responsible for his misconduct, such as

any evidence indicating mental incompetence. Id. Because of this, even assuming the record

supported a finding of unfitness, the Board concluded that Plaintiff’s misconduct separation

processing took precedence over any right to be referred to the DES. Id.

3. The Instant Action

Plaintiff filed suit in this Court on May 8, 2020. Pl.’s Compl., ECF No. 1. In accordance

with the Court’s scheduling order, see ECF No. 7, Defendant filed the Administrative Record on

August 14, 2020, see ECF No. 8. On September 7, 2020, Plaintiff filed his Motion for Judgment

on the Administrative Record, arguing that the BCNR’s decision to deny him placement on the

disability retirement list was arbitrary and capricious, contrary to law, and/or unsupported by

substantial evidence. See Pl.’s Mot. for J. on Admin. R., ECF No. 9; Pl.’s Br. in Supp. of Mot. for

J. on Admin. R., ECF No. 10; Pl.’s App., ECF No. 10-1. According to Plaintiff, the Board failed

to properly apply and adhere to relevant naval disability retirement regulations, under which he

should have been found unfit at the time of his separation, and naval policies issued after his

separation that support the prioritization of disability retirement over separation based on

misconduct.

12
 Defendant subsequently cross-moved for judgment on the administrative record, asserting

that the BCNR’s decision to deny Plaintiff’s request for disability retirement was rational and

supported by substantial evidence. See Def.’s Cross Mot. for J. on Admin. R., ECF No. 11.

According to Defendant, the Board reasonably determined that (1) Plaintiff was able to perform

his duties at the time of his separation despite his medical conditions, and (2) his misconduct

proceedings took precedence over his disability processing.

II. DISCUSSION

A. Standard of Review

Pursuant to RCFC 52.1, judgment on the administrative record is “properly understood as

. . . an expedited trial on the record.” Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed.

Cir. 2005). In contrast to the standard for summary judgment, “the standard for judgment on the

administrative record is narrower” and involves determining, “given all the disputed and

undisputed facts in the administrative record, whether the plaintiff has met the burden of proof to

show that the [challenged] decision was not in accordance with the law.” Martinez v. United

States, 77 Fed. Cl. 318, 324 (2007) (citing Bannum, 404 F.3d at 1357). Therefore, a genuine issue

of disputed fact does not prevent a court from granting a motion for judgment on the administrative

record. See Bannum, 404 F.3d at 1357.

For military pay cases, a court will not disturb a decision rendered by a military correction

board unless the decision is “arbitrary, capricious, contrary to law, or unsupported by substantial

evidence.” See Barnes v. United States, 473 F.3d 1356, 1361 (Fed. Cir. 2007). A decision is

arbitrary and capricious when the agency decision-maker, such as the BCNR, “entirely failed to

consider an important aspect of the problem, offered an explanation for its decision that runs

counter to the evidence before the agency, or is so implausible that it could not be ascribed to a

13
difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see Metz v. United States, 466 F.3d 991, 998 (Fed.

Cir. 2006) (“[W]hen a service member does pursue . . . relief [from a military correction board],

the Court of Federal Claims reviews the Board’s action under the same [Administrative Procedure

Act (“APA”)] standard as any other agency action.” (citing Martinez v. United States, 333 F.3d

1295, 1314 (Fed. Cir. 2003))). Applying the APA standard of review does not require “a

reweighing of the evidence, but [simply] a determination whether the conclusion being reviewed

is supported by substantial evidence.” Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir.

1983). “Substantial evidence is something less than the weight of the evidence but more than a

mere scintilla of evidence.” In re NuVasive, Inc., 842 F.3d 1376, 1379–80 (Fed. Cir. 2016)

(quoting In re Kotzab, 217 F.3d 1365, 1369 (Fed. Cir. 2000)). If a reasonable mind would accept

the evidence as adequate to support a conclusion, the evidence is substantial. See Consol. Edison

Co. v. NLRB, 305 U.S. 197, 229 (1938).

Given this standard, the Court’s review of a military correction board’s decision-making

process is “necessarily limit[ed] . . . to the administrative record.” Metz, 466 F.3d at 998. The

plaintiff has the burden to prove the board’s decision was arbitrary and capricious through “cogent

and clearly convincing evidence,” Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986), and

“must overcome the strong, but rebuttable, presumption that the administrators of the military, like

other public officers, discharge their duties correctly, lawfully, and in good faith,” Porter v. United

States, 163 F.3d 1304, 1316 (Fed. Cir. 1998) (quoting Sanders v. United States, 594 F.2d 804, 813

(Ct. Cl. 1979)). In assessing Plaintiff’s claims, the Court must be cognizant that it is the military—

and not the judiciary—that bears the responsibility for determining the fitness of a service member.

Heisig, 719 F.2d at 1156. “[C]ourts cannot substitute their judgment for that of the military

14
departments when reasonable minds could reach differing conclusions on the same evidence.” Id.;

see, e.g., Reale v. United States, 208 Ct. Cl. 1010, 1013 (1976) (disavowing the idea of the court

operating as “a sort of super Correction Board”); Voge v. United States, 844 F.2d 776, 782 (Fed.

Cir. 1988) (citing Reale, 208 Ct. Cl. at 1013).

B. The BCNR Failed to Consider Important Aspects and Relevant Criteria of the
Applicable Naval Disability Regulation in Denying Plaintiff Disability Retirement.

Plaintiff argues that the BCNR’s decision to deny his request for disability retirement was

arbitrary and capricious because the Board failed to consider all relevant factors, as set forth in

SECNAVINST 1850.4E and the Navy’s Manual of the Medical Department (“MANMED”), 6 and

made factual findings regarding Plaintiff’s fitness not supported by substantial evidence. ECF No.

10 at 15. Defendant disagrees, arguing that the Board’s determination of Plaintiff’s fitness for

duty at the time of his discharge (and thus ineligibility for disability retirement) was supported by

substantial evidence. ECF No. 11 at 20. Defendant further contends that Plaintiff waived his

arguments related to the Board’s failure to consider all relevant factors necessary to resolve his

application by not raising those arguments directly to the Board. See id. On these issues, Plaintiff

has the better claim.

1. Plaintiff’s Common Military Tasks

Under SECNAVINST 1850.4E, the determination of a member’s ability to perform his or

her duties (i.e., fitness for duty) should take into consideration the member’s common military

tasks. Plaintiff argues that, in making its finding, the Board failed as a threshold matter to consider

“what tasks [Plaintiff] would be reasonably expected to perform as a Navy diver.” ECF No. 10 at

6
MANMED establishes specialized standards and physical qualifications for diving duty
that must be met for continued diving duty service. See ECF No. 10-1 at 305–10 (excerpt of
MANMED, art. 15-102 (Aug. 12, 2005)). These standards include neurological and psychiatric
criteria. See id. at 308–09.
15
16; see Pl.’s Reply at 12–13, ECF No. 12. Instead, Plaintiff asserts that the Board improperly

focused on Plaintiff’s final two performance evaluations, which covered Plaintiff’s assignment to

the Naval Academy where his duties were not fully reflective of his service as a Navy diver. ECF

No. 10 at 16. Defendant argues that no Navy regulation requires the BCNR to assess a member’s

common military tasks at the “granular level” that Plaintiff suggests. Def.’s Reply at 9, ECF No.

13. Rather, it contends that the Board’s reliance on Plaintiff’s final performance evaluations to

determine whether he could perform the duties of his rating was rational and in accordance with

naval regulations, and substantially supported its decision. Id.; see ECF No. 11 at 23.

SECNAVINST 1850.4E does not define the level of detail required by the common-

military-task consideration. However, the overall standard used for determining disability (which

is essentially the same standard for considering common military tasks) shows that a mere review

of whether a member was adequately performing duties—regardless of what those were—

immediately before separation is not sufficient. The standard requires “relating the nature and

degree of physical disability of the member to the requirements and duties that member may

reasonably be expected to perform in his or her office, grade, rank or rating.” SECNAVINST

1850.4E, encl. (3), ¶ 3301 (emphasis added). A disability determination must therefore connect

the review of a member’s performance of duties with a consideration of the duties that are within

the member’s common military tasks. Otherwise, as Defendant correctly observes,

SECNAVINST 1850.4E makes clear that performance evaluations are relevant evidence of the

capacity of a member suffering from chronic medical impairments to perform duties reasonably

expected of him or her. See ECF No. 11 at 23; SECNAVINST 1850.4E, encl. (3), ¶¶ 3205, 3303.b.

Recent cases from other judges of this court provide helpful guidance on this very issue.

See Nyan v. United States, 153 Fed. Cl. 234 (2021), vacated in part on reconsideration, 154 Fed.

16
Cl. 463 (2021); O’Hare v. United States, No. 18-1746C, 2021 WL 3852225 (Fed. Cl. Aug. 27,

2021). Nyan involved a review of a fitness determination made by an Informal Physical Evaluation

Board (“IPEB”) of a service member employed as a Hospital Corpsman. 153 Fed. Cl. at 242. The

court in Nyan held that the IPEB’s determination was not supported by substantial evidence

because “the IPEB did not make any findings regarding what duties a Hospital Corpsman at the

E4 grade is expected to perform.” Id. Instead, the IPEB based its finding on the plaintiff’s most

recent performance evaluation reflecting his “exceptional” performance of administrative tasks

during a limited duty assignment. Id. at 242–43. In rejecting the Government’s argument that

administrative tasks also fell within the scope of the plaintiff’s rating, the court observed that the

question of fitness was not premised on “whether [the plaintiff] was disabled from performing any

and all work that a Hospital Corpsman might be assigned to perform, but rather whether he was

disabled from performing work that a Hospital Corpsman at the E4 grade could ‘reasonably be

expected to perform.’” Id. at 243 (quoting SECNAVINST 1850.4E, encl. (3), ¶ 3301). The court

found evidence in the administrative record demonstrating that, “as a Hospital Corpsman at the E4

grade, [the plaintiff] was expected to perform a wide range of duties that went beyond sitting at a

desk doing paperwork.” Id. The court in Nyan also examined the plaintiff’s duties prior to his

placement on limited duty and found it “instructive” that his prior duties were not administrative

in nature. See id. at 244.

O’Hare involved the review of a BCNR decision denying disability retirement to a service

member who also was previously employed as a Hospital Corpsman. 2021 WL 3852225, at *1.

The plaintiff argued that the BCNR improperly relied on his final fitness report as evidence that

he could perform the duties of a Hospital Corpsman because, at the time of the report, he was

performing only administrative work at the hospital. See id. at *7. The court in O’Hare found the

17
BCNR’s reliance on the fitness report to be reasonable because the Board explicitly determined

that the plaintiff was working within the scope of his duties when performing the administrative

tasks and the Board’s finding was consistent with the written descriptions of a Hospital

Corpsman’s duties. See id. at *7–*8. The court held that it should defer to the Board’s definition

of a service member’s duties and its “express conclusion—supported by the plain text of Navy

regulations—that [the plaintiff’s] administrative activities were within the scope of his duties.” Id.

at *8 (citing Wronke, 787 F.2d at 1576). O’Hare distinguished the facts of Nyan, finding that

unlike in the IPEB decision at issue in Nyan, the BCNR made explicit findings about the types of

duties the plaintiff in O’Hare was expected to perform as a Hospital Corpsman, including the

administrative work he was successfully performing immediately prior to his separation. See id.

Here, Plaintiff’s penultimate performance evaluation—covering the period of March 2013

to May 2013—indicates that Plaintiff was at the ND2 rating primarily performing the duties of a

Second Class Navy Diver, which included the “operation, maintenance, and repair of diving life

support equipment.” See AR 156. It also noted that he performed collateral duties including,

among others, funeral honors. Id. According to the evaluation, Plaintiff met the standards in all

categories of performance traits except for “military bearing/character,” in which he fell below

standards due to his drunken operation of a vehicle. Id. at 157. The evaluation did not include

comments on performance providing any further detail about Plaintiff’s duties during this period.

See id.

Plaintiff’s final evaluation—covering the period of May 2013 to December 2013—reflects

that Plaintiff was at the ND3 rating primarily performing the duties of a Maintenance Technician-

4 assigned to the Hull Division of the Small Craft Repair Department. Id. at 154. It also indicates

that Plaintiff was on temporary duty assignment to Ft. Belvoir Community Hospital from

18
September 24, 2013, to December 13, 2013, which overlaps with the period he received in-patient

treatment for depression and alcohol disorder. Id.; see id. at 67. Again, according to the

evaluation, Plaintiff met the standards in all categories of performance traits except for “military

bearing/character,” in which he was graded as “progressing.” See id. at 154–55. Like the previous

evaluation, no further information about his duties during this period was provided in the comment

section. See id. at 155.

The Board characterized these last two performance evaluations as “objective evidence,”

persuading it that Plaintiff could perform the duties of his office, grade, rank, or rating despite the

existence of Plaintiff’s diagnosed disabilities. Id. at 6. The Board found “[m]ost important[]” the

fact that Plaintiff’s final evaluation occurred after the DHA diagnosed Plaintiff with, inter alia,

neurocognitive deficits in its December 9, 2013 report and emphasized that fact as “convincing

evidence” that Plaintiff was fit to perform his duties. See id. It, however, made no explicit or

implicit finding regarding what duties a Second Class Navy Diver at the E4 grade is reasonably

expected to perform or finding that the duties Plaintiff was performing during the periods covered

by the two evaluation reports included such duties. See id. at 5–7.

Moreover, the performance evaluations do not provide much information at all about the

specific duties Plaintiff was performing at the Naval Academy from March to December 2013.

Unlike all the other evaluations in the record, his final two evaluations lack explanatory comments

about his duties. Compare id. at 159, 161, 163, 165, 167, with id. at 155, 157. And of course,

Plaintiff was not performing any duties from September 24 to December 13, 2013, while he was

being treated at Ft. Belvoir Community Hospital. See id. at 154.

Citing a Navy Diver rating description provided in MILPERSMAN 1220-100, ch. 43 (May

30, 2013), Plaintiff contends the “common duties of a Navy diver include descending into the

19
ocean at any depth” and working in, among other conditions, “hostile environments that include

cold muddy water where tasks can be completed only by feel.” 7 ECF No. 10 at 16 (citing ECF

No. 10-1 at 311). Plaintiff asserts that his duties during his last two evaluation periods while

stationed at the Naval Academy involved servicing diving equipment and performing funeral

honors and, therefore, do not reliably demonstrate that he could perform the duties reasonably

expected of a Second Class Navy Diver. See id. Plaintiff argues that the Board erred by focusing

on these final evaluations, where an examination of his performance evaluations pre-dating his

assignment to the Naval Academy evidenced the types of duties he was reasonably expected to

perform. Id. These previous evaluations depict Plaintiff as a skilled and tireless diver, valuably

contributing to salvage diving operations and joint naval exercises. See, e.g., AR 161, 165.

To be sure, Plaintiff’s prior performance evaluations reflect that he operated and

maintained diving equipment as part of his primary duties as a Second Class Diver prior to his

Naval Academy assignment. See, e.g., id. at 161, 163, 166. He continued to perform those duties

after transferring to the Naval Academy and before his instances of misconduct. See id. at 158,

159. Like Nyan, however, the record before the BCNR showed that as a Second Class Navy Diver

Plaintiff was expected to perform and did perform a broader range of duties. See id. at 158–67.

Because “the question is not whether [Plaintiff] was disabled from performing any and all work

that a [Navy Diver] might be assigned to perform,” that he was maintaining diving equipment

during the periods covered by the final evaluations does not necessarily equate to a finding that he

was fit to perform work that a member in his office, grade, rank, or rating would “reasonably be

7
Plaintiff attached a number of documents as an appendix to his motion, primarily
including official Navy and Department of Defense regulations and other policies. See generally
ECF No. 10-1. Defendant does not dispute that the Court may consider these policy documents in
resolving the parties’ motions. ECF No. 11 at 15 n.3.
20
expected to perform.” 8 Nyan, 153 Fed. Cl. at 243 (quoting SECNAVINST 1850.4E, encl. (3),

¶ 3301).

The deficiencies in the Board’s consideration of Plaintiff’s common military tasks are more

pronounced given the extra importance it accorded to his final performance evaluation. See AR 6.

The Board’s decision did not mention that this evaluation covered a period in which Plaintiff was

primarily performing the duties of a maintenance technician—not a Second Class Navy Diver. See

id. at 5–7. Nor did the decision acknowledge that during the period covered by this evaluation

Plaintiff lost his Second Class Navy Diver classification, see id., which may be why his primary

duty abbreviator changed to maintenance technician, see id. at 154. 9 Because the Board’s decision

failed to explain the connection between the duties performed by a maintenance technician and the

duties that a Second Class Navy Diver at the E4 grade may reasonably be expected to perform, the

Court is left to guess whether the Board’s fitness determination properly took these facts into

consideration. See Nyan, 153 Fed. Cl. at 245; see also Joslyn v. United States, 110 Fed. Cl. 372,

8
Defendant argues that, in addition to maintaining equipment, Plaintiff actually dove while
on assignment at the Naval Academy, showing that he was physically able to dive despite his
conditions. ECF No. 11 at 25. The performance evaluation on which Defendant relies does not
clearly establish this fact. Under the topic “Motivated Diver,” the evaluation comments that he
“[p]layed an essential role in salvage and recovery of eight Yard Patrol craft rub rails from Naval
Support Activity, Annapolis basin, saving the Navy $8,000 in replacement costs.” AR 159. It
does not explain what “role” he played. The other activities described under this topic refer to
qualifications for watchstanding duties, which to the Court’s understanding do not include diving.
See id. The topic heading may, therefore, simply refer to his rating and not the performance of
diving duties during the evaluation period. Moreover, as Plaintiff notes, even if Plaintiff were
physically able to dive, it does not necessarily mean he was medically able to dive. See ECF No.
12 at 12.
9
Although the Navy removed his classification on September 24, 2013, see AR 155,
Plaintiff was discharged with the rating of Third Class Navy Diver, see id. at 399. Therefore, the
point remains the same; the record is devoid of any indication that Plaintiff’s capacity to
successfully perform the duties of a maintenance technician translates to a finding that he could
successfully perform the duties of a Navy Diver, regardless of the specific classification.
21
389 (2013) (observing the substantial evidence standard as requiring review of whether military

disability evaluation board’s decision took into consideration relevant factors).

That is not to say that the performance evaluations necessarily preclude a fitness

determination in this case. It may be possible, for example, that the duties of a maintenance

technician sufficiently overlap with the duties of a Navy Diver, making the final performance

evaluation pertinent evidence in assessing Plaintiff’s fitness. See ECF No. 10-1 at 311–12

(showing that Navy Divers may be assigned to ship repair units and that civilian occupations

equivalent to the Navy Diver job include “maintenance and repair workers”). Because this Court

defers to the BCNR on the substantive question of a service member’s fitness, remand would be

appropriate for the BCNR in the first instance to reconsider Plaintiff’s performance evaluation

reports and further explain its determination with respect to Plaintiff’s common military tasks. See

Nyan, 154 Fed. Cl. at 467. As explained below, however, remand is unnecessary since the Board’s

decision can be upheld on an independent, alternative ground.

2. Other Considerations for Determining Reasonable Performance of Duties

Plaintiff contends that the Board also failed to consider other criteria of SECNAVINST

1850.4E, including Plaintiff’s deployability and the risk Plaintiff’s impairments may have posed

to himself and other service members, as well as the special medical requirements for divers as set

forth in the MANMED. ECF No. 10 at 17–18, 19–20. In response, Defendant primarily asserts

that Plaintiff has waived these arguments because he “did not argue to the BCNR that any

deployment restrictions, risk to others, or MANMED standards for divers made him physically

unfit for duty.” ECF No. 11 at 26; see ECF No. 13 at 12.

22
 In addition to common military tasks, SECNAVINST 1850.4E mandates that a fitness

determination “includes consideration of,” as relevant here, deployability 10 and special

qualifications. SECNAVINST 1850.4E, encl. (3), ¶ 3304; see id. ¶ 3307 (identifying special

qualifications to include “diving qualifications”). MANMED identifies the types of medical

conditions that would cause a service member to lose his or her diving qualifications and is

therefore relevant to the special-qualifications inquiry mandated by SECNAVINST 1850.4E. See

ECF No. 10-1 at 305–10. The instruction expressly states that the considerations of deployability

and special qualifications are not to be used individually as a sole basis for determining a service

member’s fitness. See SECNAVINST 1850.4E, encl. (3), ¶ 3307. The instruction, however, does

not foreclose the possibility that these considerations, when evaluated collectively with the other

identified considerations (including common military tasks), could have the combined effect of

supporting a determination of unfitness. See id. ¶¶ 3304, 3307. Therefore, while they are not

individually determinative, they are relevant considerations that should be examined when

assessing a service member’s fitness. See id. ¶ 3304. SECNAVINST 1850.4E also allows for—

but does not require—the consideration of whether a member’s “[m]edical condition represents a

decided medical risk to the health of the member or to the welfare of other members were the

member to continue on active duty or in an Active Reserve status.” Id. ¶ 3302.b.(1).

There is no dispute that the BCNR’s decision does not reflect the Board’s consideration of

any of the factors identified by Plaintiff—i.e., deployability, special qualifications, and risk.

10
“Deployable” is defined as a “determination that the member is free of a medical
condition(s) that prevents positioning the member individually or as part of a unit, with or without
prior notification, to [a] location outside the [c]ontinental United States for an unspecified period
of time.” SECNAVIST 1850.4E, encl. (2), ¶ 2019. “Nondeployability does not necessarily equate
to Unfitness,” id., and the “[i]nability to perform the duties of [the member’s] office, grade, rank,
or rating in every geographic location and under every conceivable circumstance will not be the
sole basis for a finding of Unfit,” id., encl. (3), ¶ 3304.a.(3).
23
Rather, Defendant argues, primarily relying on two cases, that Plaintiff waived these arguments

by raising them for the first time in the proceedings before this Court. See ECF No. 13 at 11 (citing

Metz and Rock v. United States, 112 Fed. Cl. 113 (2013)). Metz and Rock are distinguishable.

Both cases involved the waiver of new arguments that could have appropriately been raised during

prior agency proceedings and that, absent being raised, were not arguments that the agency would

otherwise reasonably be expected to address. See Metz, 466 F.3d at 999 (holding the plaintiff

waived an ineffective assistance of counsel argument where he did not raise such claim in his

petition to a corrections board for review of his voluntary discharge from the Air Force); Rock,

112 Fed. Cl. at 128 (holding that the plaintiff waived certain arguments that could have been raised

in his administrative appeal of a formal PEB decision assigning him a 20 percent total disability

rating and removing him from the temporary disability retired list).

Here, unlike in Metz, Plaintiff is not raising “new” arguments that were not before the

BCNR. See Metz, 466 F.3d at 999. The issue before the BCNR was Plaintiff’s claim of unfitness,

and Plaintiff argues that the Board failed to consider relevant criteria and factors that

SECNAVINST 1850.4E required it to consider when evaluating his claim. See ECF No. 10 at 17–

20. Unlike in Rock, where the plaintiff administratively appealed his fitness determination before

seeking judicial review of the denial of his appeal, Plaintiff was not referred for a formal PEB and

thus this Court is reviewing the Board’s determination in the first instance of Plaintiff’s fitness.

See Rock, 112 Fed. Cl. at 127–28. The nature of Plaintiff’s argument is predicated on the Board

first adjudicating his claim because it was only after the Board issued the decision that Plaintiff

became aware of and could object to the deficiencies in its application of SECNAVINST 1850.4E.

Defendant cites no authority for the proposition that the BCNR need not apply aspects of

a directly relevant, binding Navy instruction simply because a service member did not specifically

24
identify the paragraphs and sub-paragraphs applicable to his case. Just as our legal system is

founded on the notion that individuals interacting with the Government are presumed to know the

law, Hermes Consol., Inc. v. United States, 58 Fed. Cl. 409, 416 (2003), rev’d on other grounds

sub nom. Tesoro Hawaii Corp. v. United States, 405 F.3d 1339 (Fed. Cir. 2005), so too should we

expect that an administrative body charged with determining the fitness of a service member

knows the legal standard to be applied. There are no meaningful fairness concerns that would

weigh in favor of a waiver finding. See Metz, 466 F.3d at 999. Accordingly, the Court finds that

Plaintiff did not waive these arguments by not specifically raising them before the Board.

Turning to the merits, neither the Board’s determination, nor the advisory opinion on which

it relied, demonstrate any consideration of whether Plaintiff’s medical conditions affected his

deployability or special qualifications as a Navy Diver. 11 See AR 5–7, 127–31. As Plaintiff notes,

Department of Defense Instruction (“DoDI”) 6490.07 provides that, in general, service members

with certain medical conditions “shall not deploy unless a waiver is granted.” ECF No. 10-1 at

325 (Deployment-Limiting Medical Conditions for Service Members and DoD Civilian

Employees, DoDI 6490.07, encl. (3) (Feb. 5, 2010)); see ECF No. 10 at 17. This includes, among

others, conditions that require frequent clinical visits and certain mental health disorders. ECF

11
Indeed, the Board’s decision does not specifically identify at all the regulatory
provisions or other policies that it considered. See AR 5 (stating only that “[d]ocumentary material
considered by the Board consisted of . . . applicable statutes, regulations and policies”); see id. at
127 (broadly listing as a reference to the CORB advisory opinion the “SECNAVINST 1850.4
series”). Nor did Defendant include any regulatory or policy materials in the administrative record,
despite the express statement that such documents were reviewed and considered by the Board.
Marathon Oil Co. v. United States, 17 Cl. Ct. 116, 121 (1989) (“[T]he complete administrative
record . . . consist[s] of ‘all the documents and materials that were directly or indirectly considered
by the decision-makers at the time the decisions were rendered.’” (quoting Tenneco Oil Co. v.
Dep’t of Energy, 475 F. Supp. 299 (D. Del. 1979))). It does not escape the Court’s notice that the
record is conspicuously vague as to the regulatory provisions and policies the Board applied, which
frustrates the Court’s ability to evaluate whether the Board’s decision-making process followed
Navy procedures.
25
No. 10-1 at 325, 327. The DHA report demonstrates that shortly before his discharge Plaintiff had

psychological diagnoses of major depressive order and cognitive disorder and suffered from

neurocognitive deficits that “require[d] ongoing and persistent treatment,” including “behavioral

health, occupational therapy, [and] vocational therapy.” See AR 35.

Additionally, Plaintiff notes that the MANMED provisions applicable to Navy Divers

disqualify from diving duty (absent a waiver): service members who have suffered decompression

sickness and are experiencing neurological symptoms; members who have certain psychiatric

diagnoses; or members who have a diagnosis of alcohol dependency, alcohol abuse, or alcohol

incident and have not completed required treatment. See ECF No. 10-1 at 308–09; ECF No. 10 at

19–20. Evidence in the administrative record shows Plaintiff has a history of type 2 decompression

sickness, neurocognitive issues, Axis I and II psychiatric diagnoses, and alcohol use disorder. See

AR 35, 39, 67, 78, 219; see also id. at 452 (noting that Plaintiff’s diagnoses “affect[ed] his capacity

to continue diving”).

Whether and how these considerations would have affected Plaintiff’s fitness

determination is not a matter within this Court’s judicial province. Heisig, 719 F.2d at 1156. The

Court, however, is empowered to review whether the BCNR “entirely failed to consider” important

factors in reaching its determination. State Farm, 463 U.S. at 43; see Joslyn, 110 Fed. Cl. at 389.

The Court finds that the Board failed to take into account certain factors that it should have

considered pursuant to SECNAVINST 1850.4E in determining that Plaintiff could reasonably

perform his duties and that, as shown by evidence in the record, were relevant to his case. Remand

26
would therefore be appropriate for the Board to reconsider its decision in light of these additional

considerations, see Nyan, 154 Fed. Cl. at 467, but is ultimately unnecessary as explained below. 12

C. The BCNR’s Determination That Plaintiff’s Separation for Misconduct Took
Precedence Was Not Arbitrary and Capricious or Contrary to Law.

Even though the BCNR’s fitness determination was deficient for the reasons stated above,

the shortcomings in its decision-making were not harmful or prejudicial. See Christian v. United

States, 337 F.3d 1338, 1343 (Fed. Cir. 2003) (“To recover back pay, it is not enough for the

plaintiff to show merely that an error or injustice was committed in the administrative process,”

he must demonstrate “that the defect substantially affected the decision to separate him or relieve

him from active duty . . . .” (quoting Hary v. United States, 618 F.2d 704, 707 (Ct. Cl. 1980))); see

also Wagner v. United States, 365 F.3d 1358, 1365 (Fed. Cir. 2004). That is because the BCNR

found, regardless of Plaintiff’s fitness or unfitness, that his “misconduct processing would have

taken precedence” over disability processing. AR 6; see Fogo De Chao (Holdings), Inc. v. U.S.

Dep’t of Homeland Sec., 769 F.3d 1127, 1149 (D.C. Cir. 2014) (holding that where an agency

decision is based on multiple independent grounds a court can affirm the agency on APA review

“so long as any one of the grounds is valid”); see also Holmes v. United States, 98 Fed. Cl. 767,

784–85 (2011) (upholding BCNR decision on one of its stated grounds where other stated ground

12
The Court does not find error in the Board failing to explicitly consider whether
Plaintiff’s impairments posed a risk to himself or others. SECNAVINST 1850.4E states that a
fitness determination “may” include an assessment of the risk posed to the welfare of the member,
as well as other members due to the retention of a service member with a medical condition.
SECNAVINST 1850.4E, encl. (3), ¶ 3302.b. Thus, unlike deployability and special qualifications,
the permissive language of the instruction leaves the performance of this risk assessment and its
inclusion in a determination of a service member’s fitness at the discretion of the relevant naval
authorities charged with the responsibility of making the determination. See id. Although not
required, however, the facts of some cases may warrant inclusion of the risk consideration,
especially in cases of members who, like Navy Divers, perform particularly hazardous duties.
27
was erroneous). The BCNR’s decision on that point was neither arbitrary and capricious, nor

contrary to law.

The Navy disability regulation in effect at the time of Plaintiff’s separation mandated that

“[p]rocessing for punitive discharge and processing for administrative discharge for misconduct

takes precedence over processing for disability.” SECNAVINST 1850.4E, encl. (1), ¶ 1002.b; see

id., encl. (3), ¶ 3203.f.(6) (“The PEB will reject all cases in which the member is being processed

for misconduct which could result in the member receiving either a punitive or administrative

discharge due to that misconduct.”); see also Malcolm v. United States, 752 F. App’x 973, 977 n.2

(Fed. Cir. 2018) (acknowledging that Navy disability regulations mandate misconduct processing

takes precedence over disability processing). 13 Plaintiff acknowledges the Board’s finding that

misconduct processing takes precedence over referrals to the DES system as “a correct statement

of Navy policy in effect at the time of [Plaintiff’s] separation.” ECF No. 10 at 20. In that vein,

Plaintiff concedes that the Board “adequately explained why there was no error in the initial denial

of disability retirement.” Id. at 21.

Plaintiff, however, relies on a June 1, 2016 Memorandum from the Secretary of the Navy

(“Dual Processing Memorandum”) to argue that the Secretary has changed this policy and that the

change should have prompted the BCNR to grant Plaintiff’s request of disability retirement. See

id.; see also ECF No. 10-1 at 313–14 (Dual Processing Memorandum). The Dual Processing

13
The Federal Circuit in Malcom noted that, despite the mandate, a plaintiff may be able
to establish eligibility for benefits under SECNAVINST 1850.4E, encl. (3), ¶ 3414.b, which
prohibits holding a service member responsible for his or her acts of misconduct if mental disease
or defect caused the service member to be unable to appreciate the nature and quality of the
wrongfulness of the acts. 752 F. App’x at 977 n.2. Here, the Board “found no evidence that
supported an argument [Plaintiff was] not criminally responsible for [his] misconduct and noted
that there was no evidence presented in [his] civilian proceedings to indicate any mental
incompetence.” AR 6. Plaintiff does not challenge that finding in this action.
28
Memorandum allows service members, who have a ratable condition and are being processed for

any type of involuntary administrative separation, to be referred to the DES. ECF No. 10-1 at 313.

The immediate effect of the Dual Processing Memorandum marked a noticeable shift in policy

from the prior preclusion of such dual processing. See, e.g., SECNAVINST 1850.4E, encl. (3), ¶

3203.f.(6). Plaintiff argues that the Board’s failure to consider the impact of the Dual Processing

Memorandum on Plaintiff’s case renders the Board’s decision arbitrary and capricious and in

violation of the BCNR’s mandate to correct an injustice in a member’s naval records. ECF No.

10 at 21.

This argument suffers from both procedural and substantive flaws.

First, as Defendant correctly notes, Plaintiff never raised an argument to the Board based on the

existence of the Dual Processing Memorandum and its purported application to Plaintiff’s case.

See ECF No. 11 at 29; see also AR 12–22. He could have. The change in policy occurred in June

2016 and was publicized by July 2016, at the latest, several months before Plaintiff submitted his

application to the Board. See ECF No. 10-1 at 313, 315; see also AR 10. Although Plaintiff

contends that, “[i]n his response to the medical advisor’s opinion, he specifically argued that his

disabilities should take precedence over his misconduct separation,” that argument was premised

on his interpretation of ¶¶ 3106 and 3202.b of the applicable instruction (SECNAVINST 1850.4E),

not any new or changed policy. ECF No. 12 at 13–14 (citing AR 17); see AR 17.

As discussed above, the well-settled principle that arguments not raised before an

administrative body cannot be first raised on judicial review applies equally to the review of

military correction board decisions. See Metz, 466 F.3d at 999; United States v. L.A. Tucker Truck

Lines, Inc., 344 U.S. 33, 37 (1952) (“Simple fairness to those who are engaged in the tasks of

administration, and to litigants, requires as a general rule that courts should not topple over

29
administrative decisions unless the administrative body not only has erred but has erred against

objection made at the time appropriate under its practice.”). The “standard for assessing whether

an issue was adequately raised before the administrative agency is that ‘the issue must be raised

with sufficient specificity and clarity that the tribunal is aware that it must decide the issue, and in

sufficient time that the agency can do so.’” Conant v. Off. of Pers. Mgmt., 255 F.3d 1371, 1375

(Fed. Cir. 2001) (quoting Wallace v. Dep’t of the Air Force, 879 F.2d 829, 832 (Fed. Cir. 1989)).

Here, the record shows that an argument based on the Dual Processing Memorandum was

not adequately raised to the BCNR. At best, Plaintiff’s response to the CORB advisory opinion

broached the subject of whether his misconduct should have precluded him from being referred to

the PEB based on his disabilities, but it did not specifically or clearly argue that such question

should be answered by application of a change in policy. Indeed, he supported the argument based

on the application of the version of SECNAVINST 1850.4E in effect at the time, which expressly

precluded dual processing. See AR 17. It cannot therefore be said that the BCNR should have

been aware that it must decide the issue of whether the Dual Processing Memorandum applied to

Plaintiff’s case. 14 See Conant, 255 F.3d at 1375. Accordingly, the Court agrees with Defendant

and finds Plaintiff has waived his argument premised on the Dual Processing Memorandum.

Second, the policy is facially inapplicable to Plaintiff because it contemplates application

to “members being processed for any type of involuntary [administrative separation].” ECF No.

14
For these reasons, the waiver analysis related to the Dual Processing Memorandum leads
to a different conclusion than the analysis of Plaintiff’s arguments regarding SECNAVINST
1850.4E considerations. The memorandum is not incorporated in any fashion in the Navy’s
disability regulation in effect at the time of Plaintiff’s separation; indeed, it is contrary to it.
Plaintiff’s argument that the Dual Processing Memorandum applies retroactively to supplant the
policy that was applicable to his separation is a “new” argument that should have first been raised
to the BCNR to afford the Board an opportunity to evaluate the argument’s merits. See L.A. Tucker
Truck Lines, 344 U.S. at 37.
30
10-1 at 313 (emphasis added). The language of the Dual Processing Memorandum indicates an

immediate and prospective effect rather than any retroactive application. As the Supreme Court

has instructed, “[r]etroactivity is not favored in the law. . . . [A]nd administrative rules will not be

construed to have retroactive effect unless their language requires this result.” Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (citing Greene v. United States, 376 U.S. 149,

160 (1964)).

Plaintiff argues that an article from “All Hands” supports retroactive application of the

change in policy set forth in the Dual Processing Memorandum. ECF No. 10 at 21. The article

states that “[a]ny service member previously separated under similar circumstances may petition

to have their discharge reviewed through either the discharge review board or Board for Correction

of Naval Records.” ECF No. 10-1 at 315. There is no information in the record regarding the

provenance of the article, except what is obvious from the printout submitted by Plaintiff. See id.

(indicating that the article was published by Defense Media Activity-Navy Production and written

by a petty officer second class). At the very least, it does not appear to be an official statement of

the Office of the Secretary of the Navy, and thus has no binding effect. See Hamlet v. United

States, 63 F.3d 1097, 1103 (Fed. Cir. 1995); see also Dunphy v. United States, 208 Ct. Cl. 986,

989 (1975) (rejecting plaintiff’s argument that an article in the Navy publication “All Hands” binds

the Secretary of the Navy because the United States is not “bound by the unauthorized acts of its

agents”) (unpublished). Nor is it persuasive evidence that the Dual Processing Memorandum can

be interpreted to apply retroactively. ECF No. 10-1 at 315. The article characterizes the

memorandum as being “[e]ffective immediately.” Id. Its only reference to similarly situated

service members who were previously separated (other than an explanation in bullet point number

one of how the prior policy worked) states that such members may seek to have their discharges

31
administratively reviewed. Id. It does not make any representation that the Secretary or the review

boards had determined that the Dual Processing Memorandum would be applied to members

seeking such review. See id.

Accordingly, the Court finds no error in the Board’s denial of Plaintiff’s application based

on its application of the Navy instruction in effect at the time of his separation, which undisputedly

made him ineligible for disability processing due to the precedence of his misconduct processing.

Because the BCNR’s decision can be upheld on that ground, any error in the Board’s decision-

making as to its fitness determination was harmless.

D. The BCNR’s Finding of No Error or Injustice Warranting a Correction to Plaintiff’s
Record Was Not Arbitrary and Capricious and Did Not Violate Plaintiff’s Due
Process Rights.

Plaintiff contends that the Board did not adequately explain why, in light of the NDRB’s

decision, there was no error or injustice in denying Plaintiff disability retirement. ECF No. 10 at

21. According to Plaintiff, the Board should have viewed the NDRB’s decision “through the lens

of [c]onstitutional due process requirements.” Id. at 22. Specifically, Plaintiff argues that it was

erroneous and unjust for the Board to rely on Plaintiff’s misconduct processing to deny him

disability retirement when the NDRB determined that Plaintiff’s medical conditions (related to his

duties as a Navy diver) contributed to his misconduct and thus justified upgrading his discharge

characterization and changing his discharge narrative. Id. Defendant argues that Plaintiff’s case

involves no due process violation and that the Board adequately considered and rationally

explained why the NDRB’s decision supported the denial of Plaintiff’s application. See ECF No.

11 at 30–31; ECF No. 13 at 15–16.

The Due Process Clause of the Fifth Amendment prohibits a person from being “deprived

of life, liberty, or property, without due process of law.” U.S. Const. amend. V. “Due Process . .

32
. requires specific notice and an adequate opportunity to be heard prior to governmental decisions

depriving individuals of liberty or property interests.” In re Bailey, 182 F.3d 860, 871 (Fed. Cir.

1999) (citing Mathews v. Eldridge, 424 U.S. 319, 348 (1976)); see Cushman v. Shinseki, 576 F.3d

1290, 1296 (Fed. Cir. 2009).

It is well established that the Court of Federal Claims lacks jurisdiction over claims alleging

violations of the Due Process Clause because such clause is not a money-mandating provision.

See, e.g., LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995); James v. Caldera, 159

F.3d 573, 581 (Fed. Cir. 1998). When, however, a constitutional issue arises not as a standalone

claim but as a factor to a claim of wrongful discharge of a service member, the Court may properly

exercise jurisdiction. See Holley v. United States, 124 F.3d 1462, 1466 (Fed. Cir. 1997) (“The

presence of a constitutional issue does not erase the jurisdiction of the Court of Federal Claims

based on a properly brought claim under the Tucker Act, or bar the court from considering the

constitutional issue in the course of determining whether the discharge was wrongful.”). Here,

Plaintiff’s allegations fall into the latter category. Therefore, the Court may properly consider any

alleged due process violations as part of its broader inquiry into the propriety of the BCNR’s

decision-making process. See id.

“To raise a due process question, the claimant must demonstrate a property interest entitled

to such protections.” Cushman, 576 F.3d at 1296 (citing Richard v. West, 161 F.3d 719, 723 (Fed.

Cir. 1998)); see Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368, 1374 (Fed. Cir. 1999) (“To have

a property interest in a benefit, a person clearly must have more than an abstract need or desire for

it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim

of entitlement to it.” (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972))).

Defendant argues that Plaintiff fails to demonstrate that his separation amounted to a deprivation

33
of a property interest triggering due process protections. ECF No. 13 at 15. Instead, as Defendant

asserts, service members possess no right to remain on active duty. See id. (citing, inter alia, Deese

v. Esper, 483 F. Supp. 3d 290, 315 (D. Md. 2020) (“Military service members do not have a

property interest in their term of enlistment, attendance in military service academies, command

position, or officer status.”); Paskert v. United States, 20 Cl. Ct. 65, 77 (1990) (“Service members

have no constitutional rights to remain on active duty, and their rights are defined by the applicable

statutes and regulations.”)). Defendant is correct. “It is well settled . . . that a service member’s

rights in matters related to pay, allowance, promotion, and demotion are grounded solely on

statutes and regulations.” Crispino v. United States, 3 Cl. Ct. 306, 313 (1983) (emphasis added)

(collecting cases).

Plaintiff’s counsel asserted at oral argument that Cushman held that entitlement to military

disability benefits is a protectable property interest. Cushman, however, involved the property

interest of a veteran-applicant for service-connected disability benefits. See 576 F.3d at 1297–98.

Military disability retirement benefits and veteran disability benefits are derived from wholly

distinct statutory schemes. See Russell v. United States, 102 Fed. Cl. 9, 17 (2011). This Court

will not find that same property interest to include military disability benefits in light of established

precedent. See, e.g., Paskert, 20 Cl. Ct. at 77 (noting military regulations “were designed

specifically to give members of the military a useable administrative process by which to present

their claims without the entanglements of an entire due process structure”). Accordingly, Plaintiff

cannot claim the Board’s decision violated his due process rights because Plaintiff lacked a

recognized property interest in the first instance. See id.

Moreover, it is clear the Board considered the NDRB’s decision and rationally explained

its effect on the Board’s determination. The BCNR stated its agreement with the NDRB’s

34
conclusion that Plaintiff was “properly processed and discharged . . . for misconduct” at the time

of his separation. AR 6; see id. at 139 (explaining the NDRB’s finding that Plaintiff’s discharge

“was proper and equitable at the time of discharge”). Just as the NDRB, the Board also found no

evidence to suggest that Plaintiff was not criminally responsible for his misconduct or was

mentally incompetent. Id. at 6; see id. at 138 (explaining the NDRB’s finding that Plaintiff’s

misconduct stemmed from “conscious decisions that violate the tenants of honorable and faithful

service”). Based on these findings, the Board concluded that the misconduct-precedence policy

properly applied to Plaintiff and, as a result, he was ineligible for disability retirement. Id. at 6.

Such findings are not inconsistent with, nor do they deprive Plaintiff of the benefit of, the

NDRB’s decision to change his discharge characterization and narrative reason. Although the

BCNR and the NDRB are both naval administrative bodies responsible for reviewing Navy

discharge or dismissal actions, they do not operate under equivalent mandates. See Vietnam

Veterans of Am. v. Sec’y of Navy, 843 F.2d 528, 531 (D.C. Cir. 1988). The NDRB, consisting of

five Navy officers, reviews discharge actions “to examine the propriety and equity of the

applicant’s discharge” and has the authority to reclassify a discharge where necessary. Lefrancois

v. Mabus, 910 F. Supp. 2d 12, 15 (D.D.C. 2012) (quoting SECNAVINST 5420.174D, encl. (5),

§ 501a (Dec. 22, 2004)); see 10 U.S.C. §§ 1553(a), (b)(1). Unlike the NDRB, the BCNR is staffed

by civilians and is charged with “correct[ing] any Navy record when ‘necessary to correct an error

or remove an injustice.’” Vietnam Veterans, 843 F.2d at 531 (quoting 10 U.S.C. § 1552(a)). The

BCNR’s mandate “has been viewed as broader than that of the NDRB.” Id. (citing Strang v.

Marsh, 602 F. Supp. 1565, 1570 (D.R.I. 1985)). Accordingly, a decision by the NDRB to afford

relief based on considerations of equity does not require the Board to find that those same

considerations result in error or injustice warranting a correction of records. Indeed, the NDRB

35
found no error or inequities with Plaintiff’s discharge at the time. AR 139. Whether post-

separation circumstances rose to the level of “injustice” in Plaintiff’s case was a decision within

the Board’s broad discretion to make. See Murphy v. United States, 993 F.2d 871, 874 (Fed. Cir.

1993) (citing Grieg v. United States, 640 F.2d 1261, 1265 (Ct. Cl. 1981)). Here, the Court finds

nothing arbitrary or capricious about the Board’s consideration or explanation of the NDRB’s

decision.

III. CONCLUSION

For the above stated reasons, Plaintiff’s Motion for Judgment on the Administrative Record

(ECF No. 9) is hereby DENIED, and Defendant’s Cross-Motion for Judgment on the

Administrative Record (ECF No. 11) is GRANTED. The Clerk is directed to enter judgment

accordingly.

SO ORDERED.

Dated: November 19, 2021 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge

36