
    Michael P. MCDONOUGH, Plaintiff, v. Sean J. STACKLEY, Defendant.
    Case No. 16-cv-00582 (APM)
    United States District Court, District of Columbia.
    Signed 03/16/2017
    
      David Patrick Sheldon, Law Offices of David P. Sheldon, P.L.L.C., Washington, DC, for Plaintiff.
    Daniel Patrick Schaefer, U.S. Attorney’s Office, Washington, DC, for Defendant.
    
      
      . 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.
    
   MEMORANDUM OPINION

Amit P. Mehta, United States District Judge

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 Plaintiffs departure from the Navy lie at the heart of this dispute. According to the Navy, after his demotion, Plaintiff voluntarily resigned. Plaintiffs military records reflect this version of events. The Navy then sought to recoup from Plaintiff'-certain bonus payments paid upon his enlistment and reenlistment. 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.

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 Plaintiffs 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 Plaintiffs 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. 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 [hereinafter Defi’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 Plaintiffs classification codes be removed. Defi’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 [Plaintiffs] 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 Plaintiffs 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. Plaintiffs 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 Plaintiffs application. A.R. Pt. 1 at 19-23, 29-30. Plaintiff submitted a request for reconsideration (“Motion”), and the Board once again sought an advisory ppinion. A.R. Pt. 2 at 123-24,178-189. The CNO recommended denying Plaintiffs 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 Plaintiffs 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. 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 Plaintiffs filings and the Board’s decisions demonstrates that, when denying Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 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 20U 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 Plaintiffs Motion.

Several aspects of the March 2014 Advisory Opinion demonstrate that the Board did not respond to the arguments raised in Plaintiffs Motion for Reconsideration. First, the March 2014 Advisory Opinion does not contain the case number assigned to Plaintiffs Motion—“11442-12.” A.R. Pt. 3 at 205. Instead, it bears the case number “09033-11,” which is the case number assigned to Plaintiffs 2011 application to the Board to correct his records and cancel his purported debt. See A.R. Pt. 1 at 31; Def.’s Mem. at 5; Pl.’s Reply in Supp. of PL’s Mot., EOF 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, Plaintiffs 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) Plaintiffs 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 Plaintiffs initial application; and (3) a letter from Plaintiffs 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. Plaintiffs 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 Plaintiffs 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 Plaintiffs 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.

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 Plaintiffs counsel’s February 2012 letter, not in Plaintiffs 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 Plaintiffs , Motion. Plaintiff made three arguments in his Motion: (1) the Navy did not follow proper procedures when removing Plaintiffs NEC codes, see A.R. Pt. 2 at 185-86; (2) the Secretary of the Navy did not authorize the DFAS to recoup Plaintiffs bonus payments, see id, at 186-88; and (3) it is in the interest of justice to stop efforts to collect Plaintiffs 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, Plaintiffs Motion. From citing the wrong case number to quoting from and paraphrasing the wrong letter, the March 2014 Advisory Opinion does not address Plaintiffs Motion. And, beeause the. Board relied substantially on the March 2014 Advisory Opinion in its denial of Plaintiffs 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 Plaintiffs 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 [Plaintiffs] application, together with all material submitted in support thereof, [Plaintiffs] naval record and applicable statutes, regulations and policies.” A.R. Pt. 1 at 98. Defendant focuses on the Board’s reference to Plaintiffs “application” as evidence that it fully considered Plaintiffs Motion. Def.’s Reply in Supp. of Def.’s Mot., EOF 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 ... discerní ]” the Board’s “path” in rejecting Plaintiffs 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 Plaintiffs 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 á passage from the March 2014 Advisory Opinion that, it contends, shows the Board considered and rejected Plaintiffs 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 Plaintiffs 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 Board’s final decision. In Plaintiffs 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 Plaintiffs military record, and Plaintiffs 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 Plaintiffs third argument—that the “interest of justice” warranted forgiveness of Plaintiffs debt to the Navy—because the denial letter' states, “[Ajfter 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 Plaintiffs original application for correction.

⅝ ⅝ ⅝

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 Plaintiffs Motion does hot pass muster.

B. Harmless Error

Defendant further contends that even if the Board erred by failing to consider the three arguments in Plaintiffs request for reconsideration, any such error is harmless. Def.’s Reply at 4-9. As to Plaintiffs 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 Plaintiffs NECs. Id. at 4-7. As to Plaintiffs 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 Plaintiffs third argument—that the Board should forgive Plaintiffs 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 Plaintiffs 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.

IV. CONCLUSION

For the foregoing reasons, the court denies Defendant’s Motion for Summary Judgment and grants Plaintiffs Motion for Summary Judgment. The decision of the Board denying Plaintiffs request for reconsideration is remanded to the Board for further consideration.

A separate Order accompanies this Memorandum Opinion. 
      
      . 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.
     
      
      . The “12” most likely signifies the year— 2012—in which the Motion was filed.
     
      
      . 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.
     