Stahl v. United States

In the United States Court of Federal Claims

No. 18-496

(Filed: 30 October 2025)

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CHRISTINE E. STAHL, *

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Plaintiff, *

*

v. *

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THE UNITED STATES, *

*

Defendant. *

*

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Wojciech Z. Kornacki, Pentagon Law Office, of Washington, DC, for plaintiff.

Robert R. Kiepura, Trial Attorney, Commercial Litigation Branch, Civil Division,

Department of Justice, with whom were James W. Poirier, Trial Attorney, Douglas K. Mickle,

Assistant Director, Patricia G. McCarthy, Director, and Brian M. Boynton, Principal Deputy

Assistant Attorney General, all of Washington, DC, and Adam Frey, Air Force, Judge Advocate

General Corps, Department of Litigation, United States Air Force, of Joint Base Andrews, MD,

for defendant.

OPINION AND ORDER

HOLTE, Judge.

A remand order and one year later, plaintiff Christine E. Stahl (a former Air Force

medical officer in the rank of Lieutenant Colonel) and the Air Force Board for Correction of

Military Records (“AFBCMR” or “Board”) ask the Court to review the same two issues it

adjudicated in its October 2023 Order: (1) whether plaintiff’s separation from the Air Force was

involuntary; and (2) whether the Air Force and its correction board violated their mandates by

separating plaintiff despite her attempts to remain on active duty. In its 2023 Order, the Court

remanded the case to the AFBCMR to review all evidence and follow the Court’s remand

instructions. The Court found the Board improperly elevated the standard for withdrawal

requests by requiring a memorandum or other formal request and improperly dismissed

plaintiff’s emails as falling short of official requests to withdraw her separation. The Court also

found the Wing Commander failed to provide a written indorsement 1 required by regulation and

1

There are varying spelling conventions for “indorsement” (e.g., “endorsement”) in the administrative record. The

Court adopts “indorsement,” but retains original spellings in quoted material. See Indorsement, BLACK’S LAW

DICTIONARY (12th ed. 2024) (“indorsement n. . . . 1. The placing of a signature, sometimes with an additional

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ordered the Wing Commander to explain her rationale for denying plaintiff’s request.

Now before the Court are the parties’ cross-motions for judgment on the administrative

record following remand. After reviewing the Administrative Record, the parties’ arguments,

and the Court’s 2023 Order, the Court finds the Board did not properly review all evidence and

did not follow the Court’s remand instructions. The Board instead concluded plaintiff’s email

was not a withdrawal request and failed to explain why the Wing Commander did not provide a

written indorsement denying plaintiff’s request. For the following reasons, the Court GRANTS

plaintiff’s Motion for Judgment on the Administrative Record, DENIES the government’s

Cross-Motion for Judgment on the Administrative Record, and REMANDS the case to the

AFBCMR for reconsideration of plaintiff’s email withdrawal requests and the Wing

Commander’s failure to explain the non-indorsement of plaintiff’s separation withdrawal request

in accordance with this Opinion.

I. Factual Background

The factual background of this case is extensive and was previously outlined in the

Court’s 10 October 2023 Order and Opinion, Stahl v. United States, 167 Fed. Cl. 657, 662–64

(2023) (Holte, J.):

Plaintiff Christine E. Stahl is a former lieutenant colonel in the United States Air

Force. 2020 Admin. R. (“[2020] AR”) at 001 (Undated “Action of the Secretary of

the Air Force – 1113506802”), ECF No. 59. Lt. Col. Stahl served on active duty

for approximately seventeen years before separating from the Air Force in March

2017. [2020] AR at 145 (13 January 2017 2 “Memorandum for Force Support

Squadron/Commander”).

Before her separation, Lt. Col. Stahl served as the Medical Director of the Internal

Medicine Clinic of the 6th Medical Operations Squadron at MacDill Air Force Base

(“AFB”) in Tampa, Florida. [2020] AR at 163 (28 June 2016 “Officer Performance

Report”). She was stationed at MacDill from 2009 through her separation, with the

exception of a one-year deployment to Afghanistan. [2020] AR at 42–61 (1 July

1999–28 February 2017 Service Record).

Dr. Stahl was promoted to Lt. Col. on 15 May 2011. Id. On 25 October 2013, Lt.

Col. Stahl entered into an agreement with the Air Force to accept a dual contract

for Multi-Year Incentive Special Pay (“MISP”) and Multi-Year Special Pay

(“MSP”) for $20,000 and $35,000, respectively. [2020] AR at 062–065 (23

October 2013–30 October 2013 MISP/MSP Form). The dual contract required Lt.

Col. Stahl to accept a four-year active-duty service commitment (“ADSC”), which

mandated she serve in the Air Force until 30 November 2017 and subjected her to

a pro rata recoupment of the MISP and MSP if she failed to serve the entirety of

notation, on the back of an instrument to transfer or guarantee the instrument or to acknowledge payment. 2. The

signature or notation itself. — Also spelled endorsement. — indorse, vb.”) (emphasis omitted).

2

The date on the “Memorandum for Force Support Squadron/Commander,” 2020 AR at 145, incorrectly states “13

January 2016” as opposed to “2017.” See 2020 AR at 32.

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her committed term. Id.

On 10 December 2015, Lt. Col. Stahl was selected for promotion to full colonel

and was expected to be promoted in May 2017. [2020] AR at 40–41 (10 December

2015 Colonel Promotion Letters). In connection with her promotion, Air Force

Colonel Management (“AF/A1LO”[ or “Colonels Group”]) determined Lt. Col.

Stahl should be reassigned to Lackland Air Force Base in Texas. [2020] AR at 66–

67 (15 March 2016, 3:26 p.m. Air Force Standard Reassignment Notification

Email). Lt. Col. Stahl was notified of the reassignment via email on 15 March

2016. [2020] AR at 66–67 (15 March 2016, 3:26 p.m. Air Force Standard

Reassignment Notification Email). In accordance with Air Force policy, Lt. Col.

Stahl was given seven days to accept or reject the assignment, with separation from

the Air Force being a required consequence of rejection. [2020] AR at 66–67 (15

March 2016, 3:26 p.m. Air Force Standard Reassignment Notification Email). The

email provided advice plaintiff’s only alternative to accepting her new assignment

was to request to separate under Air Force Instruction (“AFI”) 36-2110

Assignments (2009). [2020] AR at 66–67 (15 March 2016, 3:26 p.m. Air Force

Standard Reassignment Notification Email).

According to plaintiff, on the morning of 16 March 2016, plaintiff’s chain of

command advised plaintiff her only path after declining the reassignment was to

resign her commission, transfer to a Reserve unit, and then reapply for the same Air

Force position as a civilian. [2023] Pl.’s Resp. and Reply at 4, ECF No. 66. In

2016, Dr. Stahl was divorced and shared child custody of her two children with her

ex-husband in Florida. [2023] Pl.’s Resp. and Reply at 3. According to plaintiff,

she was not advised she could request a humanitarian deferment that would be

consistent with Air Force Instruction 36-2110, paragraph A24.9, and Department

of Defense Instruction (“DODI”) 1315.18 that allow single parents to apply for

hardship deferments. [2023] Pl.’s Resp. and Reply at 16, 18 (citing AFI 36-2110,

Assignments (2005), Paragraph A24.3 (“A member desiring humanitarian

deferment must formally submit his or her request to the Air Force Contact

Center.”)). Plaintiff adds her chain of command did not explain she could defer her

promotion or request another assignment, or that she would need the Air Force to

indorse her withdrawal request. [2023] Pl.’s Resp. and Reply at 5. Plaintiff also

alleges her chain of command failed to advise her she would lose about $2,000,000

of her military retired benefits, once vested, by transferring to a Reserve unit and

that these benefits would only become available once she turned 60 years of age.

[2023] Pl.’s Resp. and Reply at 14.

On 16 March 2016 at 9:29 a.m., Lt. Col. Stahl rejected the reassignment and elected

instead to separate from the Air Force. [2020] AR at 68 (16 March 2016, 9:29 a.m.

Separation Request Email); [2020] AR at 69 (16 March 2016 “Memorandum for

Secretary of the Air Force Personnel Council (“SAF/PC”)”). Lt. Col. Stahl

indicated her decision was “due to a difficult family situation,” as she was “recently

divorced . . . and [has] a 10-year-old son” with whom she shares custody with her

ex-husband. [2020] AR at 68 (16 March 2016, 9:29 a.m. Separation Request

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Email). She noted “there [was] no guarantee that [she] would be able to bring [her]

child with [her] to Texas due to these circumstances,” and “[t]hree years is too long

for [her] to be separated from [her] precious loved one.” [2020] AR at 68 (16 March

2016, 9:29 a.m. Separation Request Email). She also acknowledged her

commitment to serve through November 2017 and that she would “owe” because

of the conditions of her receipt of the MISP and MSP bonuses. [2020] AR at 68

(16 March 2016, 9:29 a.m. Separation Request Email).

On 17 March 2016, Lt. Col. Stahl completed the paperwork necessary to initiate

her separation from the Air Force, including a personally drafted memorandum

where she reiterated her reasons for separating: her divorce and the need to be near

her ten-year-old son. [2020] AR at 72 (17 March 2016, 3:14 p.m. Separation

Paperwork Email); [2020] AR at 069 (16 March 2016 “Memorandum for

SAF/PC”). Lt. Col. Stahl also indicated she planned to serve as an Air Force

Reserve flight surgeon and intended to apply for her same position at the internal

medicine clinic at MacDill. [2020] AR at 69 (16 March 2016 “Memorandum for

SAF/PC”).

On 21 May 2016, Lt. Col. Stahl claims she was informed she had been promoted

to Colonel and was directed to wear the rank of Colonel—exemplified in a single

1 June 2016 Officer Performance Report (“OPR”) listing her rank as “Col” on the

form. [2023] Pl.’s Resp. and Reply. at 4; [2020] AR at 147 (9 June 2016 “Officer

Performance Report”). Plaintiff originally requested 1 July 2016 as her separation

date, but plaintiff reasons her promotion prevented her from separating on that day,

considering the 927th Air Refueling Wing had a Lieutenant Colonel vacancy,

although no documentation supports her allegation. See [2022] Pl.’s MJAR at 2;

[2020] AR at 099 (4 June 2016, 7:43 p.m. Email regarding Air Force Reserve

Positions). Lt. Col. Stahl was not scheduled to promote until May 2017, so the Air

Force explains the information must have been relayed to Dr. Stahl in error. See

[2023] Pl.’s Resp. and Reply at 3; [2020] AR at 098 (7 July 2016, 1:22 p.m. Email

Confirming Lt. Col. Rank).

Over the next several months, Lt. Col. Stahl appeared to work on applying to a

Reserve component of the Air Force. [2020] AR at 99 (4 June 2016, 7:43 p.m.

Email regarding Air Force Reserve Positions). It appears she ultimately stopped

her pursuit of a Reserve commission because the available assignments and

positions were geographically too far away for her personal preference. [2020] AR

at 974 (8 July 2021 Memorandum for [the Air Force Board for Correction of

Military Records] from AF/A1LO); [2020] AR at 1390 (2 February 2017, 3:14 p.m.

Email to Air Force District of Washington of Timeline for Lt. Col. Stahl). Lt. Col.

Stahl was then asked to select a date by which she wished to separate from the

regular Air Force, to which she replied AFI 36-3207 allowed her to request

withdrawal of separation orders. [2020] AR at 1390–91 (2 February 2017, 3:14

p.m. Email to Air Force District of Washington of Timeline for Lt. Col. Stahl). She

later argued her circumstances should permit her to be retained at MacDill. [2020]

AR at 114 (14 November 2016, 10:49 a.m. Email Seeking Separation Withdrawal

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Request).

On 16 November 2016, AF/A1LO informed Lt. Col. Stahl pursuant to AFI

36-3207, she was obligated to separate from active duty because she turned down

her assignment. [2020] AR at 928–29 (16 November 2016, 3:37 p.m. Separation

Notification Email). AF/A1LO then notified the Secretary of the Air Force

Personnel Council of Lt. Col. Stahl’s decision to turn down an opportunity with the

Reserve or Air National Guard; Lt. Col. Stahl requested a separation date of 1

February 2017. [2020] AR at 928 (16 November 2016, 3:42 p.m. Separation

Notification Email).

Between September 2016 and February 2017, Dr. Stahl emailed numerous Air

Force personnel requesting to stop her separation, but her unit failed to process her

email requests. Admin. R. (“Transfer AR”) at 28–30, ECF No. 10 (12 September

2016, 9:03 a.m. Email Seeking Separation Withdrawal Request); [2020] AR at 114

(14 November 2016, 10:49 a.m. Email Seeking Separation Withdrawal Request);

[2020] AR at 928–29 (16 November 2016, 3:15 p.m. Email Seeking Separation

Withdrawal Request); [2020] AR at 135 (19 January 2017, 10:26 a.m. Email

Seeking Separation Withdrawal Request); Transfer AR at 2–4 (22 January 2017,

5:47 p.m. Email Seeking Separation Withdrawal Request). Dr. Stahl also filed an

Inspector General complaint; a Congressional inquiry; an amicable resolution

request; and a lawsuit in the United States District Court for the Middle District of

Florida to stop her separation. [2020] AR at 105–07 (20 January 2017 Inspector

General Complaint); [2020] AR at 115–16 (24 January 2017 Congressional

Inquiry); [2020] AR at 117–18 (8 February 2017 “Amicable Resolution of Petition

to United States Court of Appeals for Armed Forces for Extraordinary Relief”);

Transfer Order at 1, ECF No. 1.

On 5 January 2017, the SAF/PC approved Lt. Col. Stahl’s separation from the Air

Force with an effective date of 1 February 2017. See [2020] AR at 1 (Undated

“Action of the Secretary of the Air Force – 1113506802”). SAF/PC declined to

waive the ADSC, which resulted in Lt. Col. Stahl owing recoupment of the

pro-rated MISP and MSP bonuses. Id. Lt. Col. Stahl’s orders indicated she was

considered a voluntary honorable discharge. [2020] AR at 180 (30 January 2017

Request and Authorization for Separation Form).

Lt. Col. Stahl emailed her commander on 19 January 2017 to indicate she did not

receive a response to her request to withdraw her separation, and she had not taken

any positive steps to out-process from the Air Force. [2020] AR at 135 (19 January

2017, 10:26 a.m. Email Seeking Separation Withdrawal Request). Lt. Col. Stahl

was ultimately given a one-month extension, moving her separation date to 1 March

2017. [2023] Def.’s MTD and Cross-MJAR at 7, ECF No. 64; see [2023] Pl.’s

Resp. and Reply at 19.

On 13 February 2017, Lt. Col. Stahl asked her Wing Commander, Col. April Vogel,

[(“Wing Commander,” “Col. Vogel,” or “Maj. Gen. Vogel”)] to indorse Lt. Col.

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Stahl’s withdrawal of separation as required by Air Force regulations. [2020] AR

at 119–21 (13 February 2017 Memorandum Seeking Endorsement of Separation

Withdrawal Request). In her withdrawal letter, Lt. Col. Stahl indicated she was a

skilled physician, and the Air Force needed people with her talents. [2020] AR at

119–21 (13 February 2017 Memorandum Seeking Endorsement of Separation

Withdrawal Request). Lt. Col. Stahl did not identify any hardships requiring she

remain at MacDill. Id. On 14 February 2017, Col. Vogel contacted Lt. Col. Stahl’s

leadership to ask for their opinions. See [2020] AR at 102 (14 February 2017, 1:27

p.m. Email from Assignment Management System to Wing Commander). The

Commander and Deputy Commander of MacDill’s medical group opined Lt. Col.

Stahl was an excellent physician, but her desire to remain stationed only at MacDill

was not in the best interest of the Air Force. [2020] AR at 101–02 (14 February

2017, 7:05 p.m. Email from Assignment Management System to Wing

Commander). Col. Vogel declined to indorse Lt. Col. Stahl’s withdrawal request

on 16 February 2017 without providing any reasons. [2023] Def.’s MTD and

Cross-MJAR at 7.

Lt. Col. Stahl separated from the Air Force on 1 March 2017. Id. She paid back

the unearned portion of her MISP and MSP bonuses and began working at MacDill

AFB Internal Medicine Clinic as a civilian on 26 June 2017. Id. Lt. Col. Stahl

joined the U.S. Army Reserve on 26 October 2017. Id. at 8.

II. Procedural History

The Court, in its 10 October 2023 Order and Opinion, also detailed the procedural history

of this case, Stahl v. United States, 167 Fed. Cl. 657, 664–66 (2023) (Holte, J.):

In February 2017, plaintiff, originally pro se, filed a complaint and request for an

injunction with the United States District Court for the Middle District of Florida,

Tampa Division. See Transfer Compl., ECF No. 4-1. Plaintiff sought an injunction

preventing the Air Force from separating her, or if she was separated, an immediate

reinstatement. Id. After briefing from both plaintiff and the government, the case

was transferred to this court without reaching the merits. Transfer Order at 8–9.

On 4 April 2018, plaintiff filed her [transfer C]omplaint with this court. Id. at 4.

She asserted claims for violation of her Fifth Amendment due process rights,

promissory estoppel, involuntary discharge, and violation of Congressional

mandate and Air Force regulations. Id. at 1, 8. Plaintiff sought back pay,

reimbursement for medical insurance and unused leave, pro-rated recoupment of

the medical specialty bonuses she received and was required to remit, and

reinstatement with a promotion to Colonel. Transfer Compl. at 9. Alternatively,

she sought “immediate full active-duty retirement benefits (with credit for a

minimum of 24 years of military service).” Id. After briefing, on 27 December

2018, the previous judge issued an opinion and order dismissing plaintiff’s due

process, promissory estoppel, and tort claims for lack of subject-matter jurisdiction.

See Stahl v. United States, 141 Fed. Cl. 396, 404–5 (2018) (Braden, J.)

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...

On 29 July 2019, the case was reassigned to the undersigned. [See Order

Reassigning Case to Judge Ryan T. Holte, ECF No. 30.] On 10 February 2020,

plaintiff obtained counsel[. See Consented Mot. to Substitute Attorney], ECF No.

38. On 3 December 2019, the AFBCMR rendered its decision finding “there is no

evidence of an error or injustice” regarding involuntary separation. [2020] AR at

1021–27 (3 December 2019 Board Decision). On 21 May 2020, after the remand

period concluded, plaintiff amended her complaint (“First Am. Compl.”), ECF No.

44. On 14 July 2020, she moved to stay the proceedings and filed a petition for

reconsideration with the AFBCMR. See Motion to Stay Proceedings, ECF No. 47;

[2020] AR at 837–39 (12 September 2020 DD Form 149). The AFBCMR rendered

its decision on plaintiff’s reconsideration petition on 5 August 2022, finding

insufficient evidence to overturn the AFBCMR’s previous decision. [2020] AR at

1009–15 (5 August 2022 Board Decision).

After the Board’s 5 August decision, plaintiff filed her Second Amended Complaint on 5

December 2022. See Second Am. Compl., ECF No. 62. The same day, she also filed a motion

for judgment on the administrative record (“MJAR”), see Pl.’s 2022 MJAR, ECF No. 63, and on

9 January 2023, the government filed a motion to dismiss (“MTD”) or, in the alternative, a

cross-MJAR, see Gov’t’s 2023 MTD and 2023 Cross-MJAR, ECF No. 64. Briefing concluded

on 2 April 2023, and the Court held oral argument on 26 May 2023. See Pl.’s 2023 Reply, ECF

No. 69; 6 Apr. 2023 Order, ECF No. 70; 26 May 2023 Oral Argument Tr., ECF No. 72. On 10

October 2023, the Court denied the government’s Motion to Dismiss, granted-in-part and

denied-in-part plaintiff’s 2022 MJAR, and granted-in-part and denied-in-part the government’s

2023 Cross-MJAR. See Stahl, 167 Fed. Cl. at 693. The Court remanded the case to the

AFBCMR to reconsider Dr. Stahl’s claim (i) regarding her multiple requests to withdraw her

separation, and (ii) her commander’s failure to explain her non-indorsement of her separation

withdrawal request, stating:

In conducting its review, the Board shall, consistent with this opinion:

1. Compile satisfactory explanations as to: (1) why the Air Force did not act

on plaintiff’s 12 September 2016 and 16 November 2016 requests to

withdraw her separation according to AFI 36-2110, § 2.30.1.5 (2009); or

(2) why the commander did not list the reason(s) the applicant’s request to

withdraw her separation were denied in accordance with AFI 36-3207 §

2.14.4 (2004), see supra Section VIII.B, C;

2. Review and consider all relevant evidence on record regarding the impact

of the Air Force’s failure to follow separation withdrawal procedures

pursuant to AFI 36-2110 (2009) and AFI 36-3207 (2004) on plaintiff’s

separation date, including but not limited to the evidence the Court has

found the Board decision under review did not address, see supra Section

VIII.A, C, D, E;

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3. Identify the Wing Commander’s rationale for failing to provide reasons

under AFI 36-3207 § 2.14.4 (2004) or articulate the reason the Wing

Commander cannot be contacted, see supra Section VIII.B; and

4. Provide a complete explanation of the Board’s determinations surrounding

plaintiff’s separation withdrawal requests, see supra VIII.

Id. (emphasis added).

After receiving the Court’s 10 October 2023 Order, the AFBCMR reopened Dr. Stahl’s

case and requested advisory opinions from relevant Air Force offices. 8 December 2023 Joint

Status Report (“JSR”), ECF No. 74. The AFBCMR received an advisory opinion from the

former Wing Commander, and on 8 March 2024, the AF/A1LO provided an advisory opinion.

See AR at 539–41, ECF No. 84. That same day, the government filed a motion for extension,

“request[ing] an enlargement of time of ninety days”—from 10 April 2024 to 10 July 2024—for

the AFBCMR “to complete remand proceedings mandated by the Court” after receiving the

advisory opinion from the AF/A1LO. See Gov’t’s Mot. for an Enlargement of Time for the

AFBCMR to Complete Remand Proceedings at 1, ECF No. 77. Plaintiff opposed the

government’s requested extension. See Pl.’s Resp. to Gov’t’s Mot for an Enlargement of Time at

1, ECF No. 78. While recognizing “the great length of time this case has already been pending,”

the Court granted the requested 90-day extension to complete remand proceedings for good

cause shown given “the government would not ask for an extension unless it was absolutely

necessary.” 19 Mar. 2024 Order at 1–2, ECF No. 79.

On 10 July 2024, the parties filed a JSR informing the Court the AFBCMR

“recommended to deny relief to [p]laintiff because the AFBCMR concluded that the evidence

did not demonstrate a material error or injustice” and proposing a schedule for filing of

administrative records and related motions in this proceeding. See 10 July 2024 JSR at 1, ECF

No. 81. After the Court adopted the parties’ proposed schedule, see 11 July 2024 Scheduling

Order at 1–2, ECF No. 82, on 9 October 2024, plaintiff filed an amended complaint and a motion

on the administrative record (“Pl.’s MJAR”), see Pl.’s Am. Compl., ECF No. 85; Pl.’s MJAR,

ECF No. 86. On 15 November 2024, the government responded and filed a cross-motion on the

administrative record (“Gov’t’s Cross-MJAR”). See Gov’t’s Cross-MJAR and Resp. to Pl.’s

MJAR, ECF No. 88. On 9 December 2024, plaintiff replied in support of its MJAR and

responded to the government’s Cross-MJAR (“Pl.’s Resp.”). See Pl.’s Reply and Resp. to

Gov’t’s Cross-MJAR, ECF No. 89. On 10 January 2025, the government replied in support of

its Cross-MJAR. See Gov’t’s Reply in Supp. of its Cross-MJAR, ECF No. 90. The Court then

held oral argument on the parties’ Cross-MJARs on 20 May 2025. See 27 February 2025

Scheduling Order, ECF No. 91; see also 20 May 2025 Oral Argument Transcript (“Tr.”), ECF

No. 94.

III. New Evidence in the Record

Since the Court’s 2023 Order, the parties agree six documents were added to the record.

See Tr. at 14:13–15:15; see also AR at 539 (Maj. Gen. Vogel’s 22 December 2023

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Memorandum); AR at 544–46 (Bullet Background Paper on Separation Withdrawal Request and

Memo for SAF/MRBC); AR at 567–77 (Pl.’s 10 April 2024 Declaration); AR at 547–48

(AF/A1LO’s 8 March 2024 Memorandum for AFBCMR); AR at 549–66 (Pl.’s 10 April 2024

Resp. to Advisory Op.); AR at 1–11 (AFBCMR’s 3 July 2024 Decision and 7 June 2024 Record

of Proceedings).

First, on 22 December 2023, Major General Vogel composed a memorandum titled

“MEMORANDUM FOR SAF/MRBC” and with a subject line of “Withdrawal of Separation

Application Indorsement, Lt Col Christine Stahl.” AR at 539 (Maj. Gen. April Vogel’s 22

December 2023 Memorandum). The memorandum consists entirely of three numbered

paragraphs. See id. The first paragraph states the information written in paragraph two was

“provided in response to the United States Court of Federal Claims remand order directing the

Air Force Board for Correction of Military Records to identify my rationale for denying Lt Col

Stahl’s [Applicant] withdrawal of separation request while I served in the position of

Commander, 6th Air Mobility Wing.” Id. (emphasis added). The entirety of paragraph two,

intended to “identify [her] rationale for denying [plaintiff’s] withdrawal of separation request,” is

reproduced below:

The applicant’s memorandum requesting withdrawal of her application for

voluntary separation was presented for indorsement to me in Feb 2017, almost 7

years ago. While I do not recall the disposition of the indorsement of Lt Col Stahl’s

request, nor do I have in my possession documentation of my response, I vaguely

recall this matter. After reviewing the supporting materials provided by the

applicant, I remember discussing the situation with the Colonel Force Management

& Policy Division (The Colonels’ Group) and the applicant’s leadership in the

Medical Group. My actions in this case appear to have been consistent with the

process I customarily use for the many personnel actions I have taken over the

course of my career. To the best of my recollection, I considered Lt Col Stahl’s

request, along with the needs of the Air Force, guiding regulations and

recommendations from subordinate commanders and I did not find it appropriate

to approve the request.

Id. The last paragraph includes Maj. Gen. Vogel’s email and phone number if additional

information was required from her, along with her electronic signature and the date near the

bottom of the page. See id.

Second, the parties agreed new documents titled “Bullet Background Paper on Separation

Withdrawal Request” and “Memorandum for SAF/MRBC” were added to the record. 3 See Tr. at

14:13–15:16; AR at 544–45 (Bullet Background Paper on Separation Withdrawal Request), 546

(Memorandum for SAF/MRBC re Plaintiff’s Withdrawal of Separation Application

Indorsement). According to the government, these documents are “a memo sort of summarizing

the case . . . [and were] sent to the AF/A1LO” before they issued their advisory opinion. See Tr.

at 15:16–16:10. The Bullet Background Paper provides a “chronology of events” describing,

3

Both documents are not dated, and their origin is unclear. See Tr. at 15:16–17:5. The parties also dispute the

relevance and applicability of these two memoranda. See also infra Section VI.A.3 n.4 (discussing the

government’s position at oral argument regarding these two memoranda).

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inter alia, plaintiff’s emails “stating she does not want to be separated from the Air Force,” Lt.

Col. Somers “asking that she send the memorandum to him for processing. . . [and] notif[ying]

her that he is processing her separation request and ADSC waiver to SAFPC. AR at 544–45

(Bullet Background Paper on Separation Withdrawal Request). The Paper also notes on “13 Feb

17[, p]laintiff draft[ed a] memorandum [titled] Request for Wing/CC Endorsement of

Withdrawal for Separation” but “there is no evidence of a written indorsement to this

memorandum denying the Plaintiff’s request.” AR at 544–45 (Bullet Background Paper on

Separation Withdrawal Request). In providing additional “observations” and a “potential

rationale for denying withdrawal of separation,” the Bullet Background Paper highlights

“[p]laintiff first request[ed] consideration for withdrawal of separation, via email, on 14 Nov

16 . . . [and p]laintiff’s written memorandums to FSS/CC, dated 13 Jan [17], and 6 AMW/CC,

dated 13 Feb 17, requesting withdrawal of separation were again within 30 days of DOS 1 Feb

17 and 1 Mar 17, respectively, without the exception of hardship IAW AFI 36-3207.” AR at 545

(Bullet Background Paper on Separation Withdrawal Request). The Paper “also notes an attempt

to schedule discussion of the withdrawal request” was made, but “it is unknown if that discussion

took place.” Id. Likewise, the Memorandum for SAF/MRBC provides additional summary and

impressions of the events surrounding plaintiff’s separation and attempts to withdraw her

separation. See AR at 546 (Memorandum for SAF/MRBC re Plaintiff’s Withdrawal of

Separation Application Indorsement).

In addition to the first two documents, the parties agreed four other documents related to

Air Force advisory opinions were entered into the record. See Tr. at 14:13–15:15. On 8 March

2024, the Colonels Group provided an advisory opinion, recommending denial of plaintiff’s

application. See AR at 540–41 (AF/A1LO’s 8 March 2024 Memorandum for AFBCMR). Then,

on 10 April 2024, plaintiff provided a declaration recounting her perspective of her separation

from the Air Force, where she stated, inter alia, “[i]t was nearly impossible to schedule an

appointment with Col Vogel in early February 2017” as it seemed “Col Vogel was simply

avoiding [her] and ignoring [her] requests for an appointment” given Col Vogel’s “secretary kept

telling [her] that Col Vogel was always out and not available.” AR at 567 (Plaintiff’s 10 April

2024 Declaration). According to plaintiff, after multiple requests, Col. Vogel met with plaintiff

and told her: (1) “anyone who declined an Air Force assignment should not be allowed to remain

on active duty;” (2) Col. Vogel “had complete discretion regarding her

endorsement/nonendorsement;” and (3) Col. Vogel “would not consider any hardships.” AR 569

(Plaintiff’s 10 April 2024 Declaration). Plaintiff responded to the advisory opinion on 10 April

2024. See AR at 549–66 (Plaintiff’s 10 April 2024 Resp. to AF/A1LO Memorandum). The

AFBCMR then issued its written decision denying plaintiff’s application on 3 July 2024. See

AR at 1–11 (AFBCMR’s 3 July 2024 Decision and 7 June 2024 Record of Proceedings).

IV. Parties’ Arguments

Plaintiff argues the Air Force wrongfully separated her from active duty. 4 See Pl.’s

4

In her MJAR brief, plaintiff also alleges the Air Force violated her due process rights, but at oral argument,

plaintiff clarified the due process claims are no longer at issue and were previously dismissed by the Court.

Compare Pl.’s MJAR at 4 (citing AFI 36-3207 § 2.14.4) (“[T]his in turn resulted in discharging Dr. Stahl from

active duty in violation of her due process rights”) with Tr. at 6:19–7:6 (“[THE COURT:] Just to confirm, you’re

not bringing a claim under violation of due process? [PLAINTIFF]: No, Your Honor. It was primarily referring to

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MJAR at 2. Plaintiff contends the Air Force violated AFIs by failing to process her withdrawal

of her separation request and by failing to prepare an indorsement memorandum. See id.

Specifically, plaintiff argues, inter alia, (1) the AFBCMR did not properly construe plaintiff’s

email as a withdrawal of her request to separate, given plaintiff’s multiple emails asking to

withdraw her separation request, the Air Force’s internal memorandum noting plaintiff’s emails

were withdrawal requests, and the Colonels Group’s acknowledgement and understanding of

plaintiff’s email; and (2) the Wing Commander’s failure under AFI 36-2110 to prepare an

indorsement memorandum explaining the rejection of plaintiff’s withdrawal request resulted in

her involuntary separation from the Air Force. See id. at 3–4, 6–8. Plaintiff contends the

government’s counterargument, which cites to a document purportedly “show[ing] . . . the wing

commander complied with [] AFI [36-2110,]” actually cites to a document not prepared by the

Wing Commander. Pl.’s Resp. at 20. Plaintiff maintains the “wing commander’s December 22,

2023 memorandum does not even reference AFI 36-2110, nor does it explain why the

commander failed to prepare the indorsement memorandum.” Id.

The government asserts “the AFBCMR carefully considered all of the evidence and

properly concluded no error or injustice requiring correction exists.” Gov’t’s Reply in Supp. of

its Cross-MJAR at 1–2. The government argues the Administrative Record (“AR”) reveals

plaintiff “sent a series of emails to various Air Force officials[] but neglected to follow the very

specific instructions provided to her, including to submit a memorandum.” Gov’t’s Cross-MJAR

at 9. The government contends none of plaintiff’s emails qualified as a withdrawal request, and

by the time plaintiff submitted the required memorandum, “she was within thirty days of her

approved separation date, which then was too late for her to withdraw her resignation.” See id. at

9, 12–17. The government also claims the Wing Commander had the “discretion” to deny

plaintiff’s withdrawal request, and accordingly, the Wing Commander used her discretion,

“complied with established procedures,” “declined to indorse [plaintiff]’s withdrawal[,]” and

communicated her reasons for not indorsing [plaintiff]’s request directly to [her] in person.” See

id. at 22–23.

V. Applicable Law

A. Motions for Judgment on the Administrative Record

For a motion for judgment on the administrative record, plaintiff bears the burden to

prove through the administrative record the Board’s decision was arbitrary and capricious,

contrary to law, or unsupported by substantial evidence. See Chambers v. United States, 417

F.3d 1218, 1227 (Fed. Cir. 2005). Application of the arbitrary and capricious standard of review

“does not require a reweighing of the evidence, but a determination whether the conclusion being

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

(Fed. Cir. 1983) (emphasis omitted); see also Calloway v. Brownlee, 366 F. Supp. 2d 43, 53

(D.D.C. 2005) (“[A]n agency action is arbitrary and capricious if the agency . . . has entirely

the due process in the Air Force Instructions. [THE COURT]: So just a violation of instructions? [PLAINTIFF]:

Correct.”); see also Gov’t’s Cross-MJAR at 2, n.2, ECF No. 88 (“[Plaintiff’s] due process claims were dismissed for

lack of subject-matter jurisdiction in 2018, and are no longer at issue.”) (citations omitted); Stahl v. United States,

141 Fed. Cl. 396, 404 (2018) (Braden, J.) (holding the Court “does not have jurisdiction to adjudicate the due

process claim alleged in the April 4, 2018 Transfer Complaint.”).

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failed to consider an important aspect of the case presented.”). As long as the Board followed

applicable statutes or regulations, considered the relevant evidence, and reached a reasonable

conclusion, a court will not disturb the Board’s decision. Melendez Camilo v. United States, 642

F.3d 1040, 1044 (Fed. Cir. 2011). A court may set aside an agency’s decision if the agency

“‘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 the decision is so implausible

that it could not be ascribed to a difference in view or the product of agency expertise.’” Ala.

Aircraft Indus., Inc. v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)) (cleaned up).

B. Mandates for the Air Force Board of Correction of Military Records

Pursuant to 10 U.S.C. § 1552, the AFBCMR is mandated to correct injustices and errors

clearly presented in the record. See Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004).

When the AFBCMR fails to correct an injustice that is clearly presented in the record, it violates

10 U.S.C. § 1552. Id.; see also Yee v. United States, 206 Ct. Cl. 388, 512 F.2d 1383, 1387

(1975) (“[W]hen a correction board fails to correct an injustice clearly presented in the record

before it, it is acting in violation of its mandate.”). The Secretary of the Air Force and the

AFBCMR have “an abiding moral sanction to determine, insofar as possible, the true nature of

an alleged injustice and to take steps to grant thorough and fitting relief.’” Id. (quoting

Caddington v. United States, 147 Ct. Cl. 629, 634 (1959)). When the AFBCMR fails to support

its decisions with substantial evidence, relief may be appropriate, including setting the

AFBCMR’s decision aside. See Martinez v. United States, 333 F.3d 1295, 1314 (Fed. Cir. 2003)

(citing Chappell v. Wallace, 462 U.S. 296, 303 (1983) (“Board decisions are subject to judicial

review and can be set aside if they are arbitrary, capricious, or not based on substantial

evidence.”) (citing Court of Claims cases)). In challenging the determinations of a military

corrections board, a plaintiff must demonstrate “by ‘cogent and clearly convincing evidence,’”

the military board’s decision was “arbitrary, capricious, unsupported by substantial evidence, or

contrary to law.” Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986) (quoting Dorl v.

United States, 200 Ct. Cl. 626, 633 (1973)).

In addition to the Board’s statutory mandate to correct injustices and errors, “the trial

tribunal, in this case [an Armed Services Board], ‘has no power or authority to deviate from the

mandate issued by an appellate court.’” Aydin Corp. (W.) v. Widnall, No. 96-1267, 1997 WL

413329, at *3 (Fed. Cir. July 24, 1997) (quoting Briggs v. Pennsylvania R. Co., 334 U.S. 304,

306 (1948)). “It is ‘familiar doctrine that a lower court is bound to respect the mandate of an

appellate tribunal and cannot reconsider questions which the mandate has laid to rest.’” N. Helex

Co. v. United States, 634 F.2d at 557, 560 (Ct. Cl. 1980) (quoting FCC v. Pottsville Broadcasting

Co., 309 U.S. 134, 140 (1940)).

VI. Whether the Board Followed the Court’s 2023 Remand Order and Relevant AFIs

The Court begins by reviewing whether the Board acted in accordance with the Court’s

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2023 Remand Order, AFI 36-2110, and AFI 36-3207. First, the Court analyzes if the Board

considered all relevant evidence related to plaintiff’s withdrawal requests and whether plaintiff’s

email constituted a request to withdraw separation. Provided plaintiff’s email did constitute a

request to withdraw her separation, the Court next discusses whether the Wing Commander’s

failure to provide rationale in a written indorsement memorandum (when denying plaintiff’s

withdrawal request) and the Board’s failure to explain the Wing Commander’s lack of written

indorsement were proper. The Court then turns to whether the Board’s decision analyzed if the

Air Force acted in its best interests. Finally, the Court assesses whether the Board evaluated if

the Air Force’s treatment of plaintiff’s claim included any bad faith.

A. The Board Did Not Consider Plaintiff’s Emails as Requests

In its 2023 Order, the Court remanded the case to the Board “to consider[] all relevant

evidence[,] provide[] a reasoned opinion that reflects a contemplation of the facts and

circumstances pertinent to the case before it,” and reconsider plaintiff’s multiple withdrawal

requests. Stahl v. United States, 167 Fed. Cl. 657, 686, 693 (2023). Specifically, the Court

found “the Board’s failure to acknowledge plaintiff’s separation withdrawal requests was

arbitrary and capricious,” and “[t]he Board’s failure to provide reasoning regarding the Air

Force’s violation of AFI 36-2110 § 2.30.1.5 (2009) [was] arbitrary and capricious given the

evidence plaintiff and agency personnel characterized plaintiff’s emails seeking separation

withdrawals as proper.” Id. at 686, 691. The Order also analyzed if plaintiff was required to

submit a formal memorandum, or if plaintiff was required to send the withdrawal request to a

particular recipient, to constitute a proper withdrawal request. See id. at 685 (“The government

presents additional procedural requirements for a separation withdrawal request at oral argument

(i.e., a formal memorandum to immediate command supervisor) but is unable to locate a

regulation for the requirements.”); id. at 684 (“The government does not articulate an AFI that

disallows directing separation withdrawal requests to The Colonels Group but contends not

going through the chain of command is ‘improper or unusual.’”). As part of its 2023 remand, the

Court instructed the Board to:

Compile satisfactory explanations as to: (1) why the Air Force did not act on

plaintiff’s 12 September 2016 and 16 November 2016 requests to withdraw her

separation according to AFI 36-2110, § 2.30.1.5 (2009) . . . .

Id. at 693.

In determining whether the Board acted in accordance with the Court’s remand

instructions, the Court reviews the Air Force’s advisory opinions after remand, the parties’

arguments, the evidence in the AR, the procedural and substantive requirements for withdrawal

requests, and the Board’s failure to explain its rationale in finding plaintiff’s emails did not

constitute requests.

1. The Air Force’s Post-Remand Actions

On remand, the Air Force produced an 8 March 2024 advisory opinion memorandum

penned by the AF/A1LO and a 3 July 2024 Decision from the AFBCMR, adopting the

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recommendations of the AF/A1LO memorandum. See AR at 540 (AF/A1LO’s 8 March 2024

Memorandum for AFBCMR); AR at 1 (AFBCMR’s 3 July 2024 Decision and 7 June 2024

Record of Proceedings). The AF/A1LO stated plaintiff’s 12 September 2016 email “is actually a

brief email from the Air National Guard (ANG) Palace Chase Program Manager to an AF/A1LO

staff member, relaying information that [plaintiff] no longer wished to pursue Palace Chase to

transition to the ANG,” so in the Air Force’s view, “[t]his email does not appear to be a

separation withdrawal request.” AR at 540. Then, regarding the 16 November 2016 email, the

AF/A1LO concluded it was an “email thread which includes a response from AF/A1LO Action

Officer . . . explain[ing plaintiff]’s separation will continue to be processed because she declined

an assignment” and plaintiff “was required to be separated from the Air Force as a result of not

having enough time to Retire In Lieu of an Assignment, and then provid[ing plaintiff] with

further relevant AFI 36-3207 policy guidance.” AR at 541. According to AF/A1LO, “leading

up to that email exchange”—on 14 November 2016—“the Action Officer provided guidance for

submitting a memo to withdraw separation,” but “it does not appear [plaintiff] sent a memo for

processing, nor did she select a date for the separation package” before the deadline set by the

action officer. See id.

The 3 July 2024 AFBCMR Decision “concur[red] with the rationale and recommendation

of AF/A1LO and f[ound] a preponderance of the evidence does not substantiate [plaintiff]’s

contentions.” AR at 9 (AFBCMR’s 3 July 2024 Decision and 7 June 2024 Record of

Proceedings). In its decision, “the Board found no evidence [plaintiff] submitted an official

request to withdraw her voluntary request for separation on either 12 Sep 16 or 16 Nov 16 for the

Air Force to act upon.” Id. (emphasis added). According to the Board, plaintiff’s “16 Nov 16

email was not an official request to withdraw her voluntary separation, but instead, was a

declaration that she had previously withdrawn her separation request on 14 Sep 16, in

accordance with AFI 36-3207, and there was no need for her separation.” Id. (emphasis added).

The Board claims:

Regarding the 16 Nov 16 email between the applicant and AF/AlLO, the evidence

contradicts the applicant’s contention her email was ignored. In fact, AF/AlLO

promptly responded to the applicant providing relevant information and guidance.

More importantly, the applicant’s 16 Nov 16 email was not an official request to

withdraw her voluntary separation, but instead, was a declaration that she had

previously withdrawn her separation request on 14 Sep 16, in accordance with AFI

36-3207, and there was no need for her separation; therefore, once again, there was

no request for AF/AlLO to act upon. In his response, the AF/AlLO representative

attempted to correct her misunderstanding of her status, and offered clarifying

guidance which addressed her specific circumstances. Further, in an earlier 14 Nov

16 email from the applicant to the same AF/AlLO representative, she referred to a

memorandum she was drafting to request a waiver of her separation from active

duty acknowledging her understanding that an official written request was required,

and the AF/AlLO responded that same day asking her to send him the completed

memorandum for action. No official written memorandum requesting a waiver of

her separation was sent by the applicant to AF/AlLO to initiate the withdrawal of

voluntary separation process.

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Id. (emphasis added). The Board reasserts later in its decision “neither email presented as

evidence of her contentions contains an official request to withdraw the separation action,” and

“AF/AlLO was, in fact, following Air Force guidance by continuing the applicant’s separation

process under the Seven Day Option, in accordance with AFI 36-2110.” Id. The Board

concluded “there d[id] not appear to be an official request from her to withdraw her separation

indorsed by her chain of command.” See AR at 5 (emphasis added).

2. The Government’s Arguments at Oral Argument in Support of the

Board’s Decision

At oral argument, the government asserted the Board “ma[de] a factual

determination . . . based on the evidence in the record[, a]nd their factual determination, in

reviewing those emails, is that there was not a request for separation there.” See Tr. at

81:10–82:8. The government stated the standard for analyzing plaintiff’s emails is “the

[B]oard’s interpretation of the evidence of record”—i.e., “a factual question” as to whether the

emails are “a withdrawal request.” Tr. at 70:20–24. For the 12 September 2016 email, the

government echoes the Board’s finding plaintiff’s email is “‘actually a brief email from the Air

National Guard Palace Chase program manager’” and asserts the email is “a[n] internal email

between the individuals working on the Palace Chase program saying that Dr. Stahl no longer

wishes to participate in it.” Tr. at 43:8–25, 52:14–19. Regarding the 16 November 2016 email,

the government stated Lt. Col. Somers emailed plaintiff the same day requesting her to choose a

separation date and provide a written memorandum for Lt. Col. Somers to start processing her

request. Tr. at 64:12–65:2. The government also admitted “the Court’s instruction was to find

out why a separation request wasn’t forwarded.” See Tr. at 53:7–16.

3. The AR Shows Plaintiff’s November 2016 Email Was a Withdrawal

Request

The government’s arguments and the evidence in the record confirm plaintiff’s

November 2016 email demonstrated a request to withdraw separation (as the Court already noted

in the 2023 Order) and should have been considered by the AF/A1LO. See Stahl v. United

States, 167 Fed. Cl. 657, 685 (2023) (Holte, J.) (“The Board does not identify why

plaintiff's . . . email[s] seeking separation withdrawals were not reviewed by the Air Force

pursuant to AFI 36-2110 § 2.30.1.5 (2009).”). Pursuant to AFI 36-2110—which the Board relies

on for “continuing the applicant’s separation process under the Seven Day

Option”—withdrawals of separation requests are routed to the AF/A1LO for consideration:

“Airmen who establish a separation or retirement date under [seven]-day option provisions who

later decide they do not want to separate or retire may request withdrawal of the approved date

through separation or retirement channels. [The Air Force Personnel Council (“AF/PC”)]

separation or retirement office will route the request to the assignment [Office of Primary

Responsibility (“OPR”) (in this case, AF/A1LO)] for consideration.” AFI 36-2110 § 2.30.1.5

(2009); AR at 9 (AFBCMR’s 3 July 2024 Decision and 7 June 2024 Record of Proceedings).

The government does not dispute “[i]n the [November 2016] email, [plaintiff] indicate[d] she

does not want to be separated,” nor does the government dispute the AF/A1LO—which

considers withdrawal requests under the AFI—was apprised plaintiff “later decide[d she did] not

want to separate or retire.” Gov’t’s Cross MJAR at 14; AFI 36-2110 § 2.30.1.5 (2009). As

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evidence of the latter, at oral argument, the government agreed a reasonable person, including Lt.

Col. Somers, “reading th[e] traffic between September and November of 2016 would assume and

know that plaintiff desired to withdraw her separation,” and “that’s exactly what Colonel Somers

said in his November 2016 email.” See Tr. at 79:11–18. On remand Air Force staff’s own

internal notes characterized plaintiff’s emails as “requests for withdrawal of separation,” which

further evidences the Air Force’s understanding plaintiff sought to withdraw her separation. 5

After receiving the email from plaintiff which states “I do not want to be separated,” Lt. Col.

Somers replied, referring to the email as a request, implementing a memorandum requirement,

and mentioning he will “process” the “request” when he receives a memorandum: “As soon as I

have [plaintiff’s separation date] and your memo, I will process the request.” AR at 600

(Plaintiff’s 16 November 2016 Email to Lt. Col. Somers). The government also confirms

“[plaintiff is] thinking she’s staying on active duty and then she’s shocked when [T]he

Colonel[s] Group [told] her, no, you’re still getting separated,” given plaintiff believes she

followed the Air Force instructions related to withdrawing separation requests. Tr. at 60:11–20;

see also Tr. at 105:17–107:12 (“[THE COURT:] [In the] November 16th[] email at 3:15

p.m. . . . AR page 600 . . . [plaintiff] cites the rule . . . AFI 36-3207, 2.14.1, and notes that in her

opinion, she has complied with the requirements, right? [THE GOVERNMENT]: She says that

she requested a separation, yes, Your Honor. . . . THE COURT: [S]o put succinctly, . . . she

assumes that she has already placed a request to withdraw the separation request back in

September, and that she has complied with the rules? [THE GOVERNMENT]: That’s what

she’s, you know, claiming to state. So, again, that’s why the board said, looking at what she says

here, there is no reason for Colonel Somers to look at that and say, oh, I need to act on her

withdrawal request.”); AR at 600 (Plaintiff’s 16 November 2016 Email to Lt. Col. Somers) (“I

requested a separation and withdrew that request on 14 SEPT 16 as a courtesy before receiving

separation orders . . . . Consequently, nothing prevented me from withdrawing my request to

separate. I believe this resolves our problem here and obviates the need for setting a separation

date or appealing to the SAF.”). All of this evidence and discussion at oral argument directly

contradicts the government’s argument the Board “ma[de] a factual determination[,] . . . based on

the evidence in the record[ and a] . . . review[ of] those emails, . . . that there was not a

[withdrawal] request.” See Tr. at 81:10–82:8.

5

The Air Force’s own Bullet Background Paper characterized plaintiff’s emails as “requests for withdrawal of

separation.” See AR 544–45 (Bullet Background Paper on Separation Withdrawal Request). The government

agreed the Bullet Background Paper prepared by Air Force staff—which it characterized as “a memo sort of

summarizing the case and . . . sent to the AF/A1LO” before their advisory opinion—characterized plaintiff’s emails

as “requests for withdrawal of separation.” See Tr. at 16:3–13, 73:20–75:1 (“THE COURT: Well, so just looking

back at . . . bullet points that we started out with, those bullet points characterized the November 2016 email,

‘consideration for withdrawal from separation.’ [and] ‘AR 545 requests for withdrawal of separation.’ . . . So

someone in the Air Force characterized the email exchange as that. Is that correct? . . . [THE GOVERNMENT]: I

mean, yes, someone drafted that document, but it’s the board’s decision that’s on review, not this document.”); AR

at 544–45 (Bullet Background Paper on Separation Withdrawal Request). The government was “somewhat

confused . . . as to what [the Paper] was” but believed it was a “memo . . . summarizing this case and plaintiff’s

arguments in advance of [the AF/A1LO’s] opinion.” Tr. at 15:24–16:13. The government urged the Court to

dismiss the Paper because “certainly there’s nothing in here that would represent the agency’s position on the case.”

Tr. at 16:21–17:5. Though the government “do[es]n’t believe that this memo has any effect on the [B]oard’s

decision,” to the extent the Board thought the Paper was unclear, did not represent the agency’s position on the case,

or is not relevant, the Board did not explain its reasoning. Tr. at 16:21–17:5.

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Even if Dr. Stahl’s withdrawal was made but failed to meet formality requirements, the

Board does not identify any Air Force Instructions with which plaintiff failed to comply. As

already explained in the Court’s 2023 Order: when the Board solicited information from the

AF/A1LO to complete its decision, the “AF/A1LO could have explained why the Air Force did

not act on . . . plaintiff’s withdrawal request or why such actions are consistent with procedural

regulations.” Stahl, 157 Fed. Cl. at 682. To the extent the Air Force had procedural regulations

(other than the purported memorandum requirement created by Lt. Col. Somers via email)

regarding the form, substance, addressee, or formatting of a separation withdrawal request, the

Board could have explained the procedural regulations and analyzed how plaintiff’s email did

not satisfy the procedural regulations in its post-remand decision. By providing some

explanation, the Board would have apprised the Court of the procedural regulations, which “the

military [would be] bound to follow” (to the extent the regulations exist). Murphy v. United

States, 993 F.2d 871, 873 (Fed. Cir. 1993) (citing Sargisson v. United States, 913 F.2d 918, 921

(Fed. Cir. 1990)). Instead of providing any explanation, the Board concluded the Air Force did

not act on the request because “there was no request for AF/AlLO to act upon”—the Board did

not show any procedural or substantive defect in plaintiff’s email. See AR at 9–10 (AFBCMR’s

3 July 2024 Decision and 7 June 2024 Record of Proceedings); see also AR at 6 (AFBCMR’s 3

July 2024 Decision and 7 June 2024 Record of Proceedings) (describing basis of AF/A1LO

decision) (“AF/A1LO concludes the Air Force did not ignore the applicant’s request to withdraw

her separation because there is no record of such request.”). Discussion at oral argument

revealed the government’s continued lack of clarity as to the procedural requirements for a

withdrawal request. On the one hand, if plaintiff submitted a Post-It note asking to withdraw her

separation, plaintiff’s request likely would not constitute a request. Tr. at 69:15–22 (“THE

COURT: What I’m asking about is . . . if Dr. Stahl writes on a Post-it note, I wish to withdraw

my separation, and it doesn’t have a date and it doesn’t have her name on it, and she folds it into

a paper airplane and she throws it at the colonel, that’s not good enough. [THE

GOVERNMENT]: I would agree with that, Your Honor.”). On the other hand, if plaintiff

“draft[ed] a 10-page memo on formal letterhead[,] sen[t] via certified mail, signature required,

and [CC’d] everybody [in] the chain of command, all the way up to the Secretary of the Air

Force,” the government agreed with Court “that would probably be formal enough.” Tr. at

69:23–70:4. Determining the standard for a withdrawal request and this proper middle

ground—i.e., “[s]omewhere in between the Post-It note paper airplane and the letterhead

memo”—was the substance of the Court’s discussion “in [its] 2023 [Order] on pages 684 and

685.’” See Tr. at 70:5–71:21. Considering: (1) plaintiff sent an email stating “I do not want to

be separated,” AR at 600 (Plaintiff’s 16 November 2016 Email to Lt. Col. Somers), to the person

responsible for considering withdrawal requests under AFI § 36-2110; (2) the government agreed

a reasonable person would consider this email a request to withdraw her separation; and (3) the

Board did not identify rationale demonstrating this email failed to satisfy any procedural or

substantive requirement, the Court finds plaintiff’s November 2016 email sufficient to constitute

a proper request to withdraw.

4. The Board Interjected a Formal Memorandum Requirement for

Plaintiff’s Withdrawal Request Without Rationale

The Court, in its 2023 Order, instructed the Board to “[c]ompile satisfactory explanations

as to . . . why the Air Force did not act on plaintiff’s 12 September 2016 and 16 November 2016

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requests to withdraw her separation according to AFI 36-2110, § 2.30.1.5 (2009),” but the Board

did not explain in its decision why the AF/A1LO did not consider plaintiff’s email request for

withdrawal despite acknowledging Lt. Col. Somers received plaintiff’s 16 November 2016 email

with the separation request and understanding plaintiff wished to withdraw her separation

request. See Stahl v. United States, 167 Fed. Cl. 657, 693 (2023) (Holte, J.). The Board instead

identified the AF/A1LO’s request for a completed memorandum as a prerequisite “action . . . to

initiate the withdrawal of voluntary separation process.” AR at 9 (AFBCMR’s 3 July 2024

Decision and 7 June 2024 Record of Proceedings); 600 (Lt. Col. Somer’s 14 November 2016

Email to Plaintiff) (“As soon as I have [your separation date] and your memo, I will process the

request.”). This explanation falls short of the Court’s 2023 Order, especially given the Court’s

finding the government did not identify any AFIs requiring plaintiff to submit a formal

memorandum as a prerequisite to considering her withdrawal request:

The government could not specifically reference an AFI mandating a written

memorandum to the Wing Commander through the chain of command. [2023] Tr.

at 162:19–23 (“[THE GOVERNMENT]: I don’t specifically see where it says it

has to be via memorandum . . . .”); [2023] Tr. at 157:22–58:7 (“THE COURT:

[W]hat is the process to [submit a separation withdrawal request] properly? [THE

GOVERNMENT]: [T]he separation or retirement channels . . . will route the

request to the assignment [Office of Primary Responsibility] for consideration.”).

Stahl, 167 Fed. Cl. at 685. The government also confirmed at oral argument the Air Force does

not require a memorandum and an email could suffice to request withdrawal. Tr. at 75:2–11

(“THE COURT: Does the rule require a withdrawal request be in a ‘memo format?’ [THE

GOVERNMENT]: There is nothing in the Air Force instruction that says memorandum, no.

THE COURT: So is a memorandum required or not? [THE GOVERNMENT]: I would say no,

but there has to be some type of request. THE COURT: Can an email be a request? [THE

GOVERNMENT]: I don’t know, Your Honor. It’s possible.”). Moreover, the Board explains

plaintiff “underst[ood] that an official written request was required,” but then elevates the written

request requirement to an “official written memorandum requesting a waiver of her

separation . . . to initiate the withdrawal of voluntary separation process.” AR at 9 (AFBCMR’s

3 July 2024 Decision and 7 June 2024 Record of Proceedings). Plaintiff sent an email on 16

November 2016 to the AF/A1LO asking to not be separated—which constitutes a written request

seeking a separation withdrawal request—and the AF/A1LO understood plaintiff’s emails were

indeed requests. See Tr. at 79:11–18; AR at 600 (Lt. Col. Somer’s 14 November 2016 Email to

Plaintiff) (“As soon as I have that and your memo, I will process the request.”) (emphasis

added).

Despite plaintiff’s written request seeking withdrawal of her separation request, the

Board concluded “there d[id] not appear to be an official request from her to withdraw her

separation indorsed by her chain of command” because the request was not an “official written

memorandum.” See AR at 9 (AFBCMR’s 3 July 2024 Decision and 7 June 2024 Record of

Proceedings) (emphasis added). Instead of construing plaintiff’s email as a withdrawal request

pursuant to AFI 36-2110 § 2.30.1.5, the Board raised the standard for what constitutes a

withdrawal without explanation. Tr. at 75:2–11 (“THE COURT: Does the rule require a

withdrawal request be in a ‘memo format?’ [THE GOVERNMENT]: There is nothing in the

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Air Force instruction that says memorandum, no. THE COURT: So is a memorandum required

or not? [THE GOVERNMENT]: I would say no, but there has to be some type of request.”);

see also 26 May 2023 Oral Arg. Tr. at 162:19–21 (“[THE GOVERNMENT]: I don’t

specifically see where it says it has to be via memorandum.”). In so doing, the Board ignored the

Court’s 2023 Order noting the government did not prove withdrawal of a separation request

requires submission of a written memorandum to the Wing Commander through the chain of

command. See Stahl, 167 Fed. Cl. at 686 (2023) (“Considering the Board analyzed one email

and one memorandum, the Board could engage with all separation withdrawal requests alleged

by plaintiff, yet, without citing a regulation, the Air Force claims only the memorandum was

‘proper.’”) (citations omitted).

Given the Court expressly noted no AFI mandated a written memorandum to initiate a

separation withdrawal under AFI 36-2110 § 2.30.1.5, and given the Board’s post-remand

decision relied on the AF/AlLO’s response requiring a completed memorandum “to initiate the

withdrawal of voluntary separation process,” the Board contravened AFI 36-2110 and the

Court’s 2023 Order by imposing a memorandum requirement on plaintiff’s request. The

AFCBMR “may be reviewed for failure to correct plain legal error committed by the

military . . . includ[ing] the military’s ‘violation of statute, or regulation, or published mandatory

procedure, or unauthorized act;’” accordingly, the Board’s contravention of the AFI and the

Court’s 2023 Order is arbitrary and capricious and runs contrary to applicable statutes and

regulations. Dodson v. U.S. Gov’t, Dep’t of Army, 988 F.2d 1199, 1204 (Fed. Cir. 1993) (citing

Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Grieg v. United States, 640 F.2d

1261, 1266, 226 Ct. Cl. 258 (1981)) (other citations omitted); Roth v. United States, 378 F.3d

1371, 1394–96 (Fed. Cir. 2004) (mandating the AFBCMR to correct injustices and errors clearly

presented in the record); Melendez Camilo v. United States, 642 F.3d 1040, 1044 (Fed. Cir.

2011) (discussing this court’s power to disturb factual findings of a correction board when a

board’s decision is “contrary to applicable statutes and regulations”).

5. The Board Did Not Explain Why It Concluded Plaintiff’s Email Was

Not a Request

Despite the Court’s 2023 remand instructions requiring the Board to explain why it did

not act on plaintiff’s requests, the Board’s decision: (1) did not address the Court’s 2023 remand

instruction; (2) did not analyze whether any procedural or substantive requirements exist to

define “official” standards for a withdrawal request, see supra Section VI.A.3; and (3) to the

extent the requirements do exist, did not explain how plaintiff’s emails failed to satisfy those

requirements. See generally AR at 1–9 (AFBCMR’s 3 July 2024 Decision and 7 June 2024

Record of Proceedings). The Board instead held “[plaintiff] has not presented any evidence the

Air Force ignored her request [because] neither email presented as evidence of her contentions

contains an official request to withdraw the separation action.” Id. at 9 (emphasis added).

Specifically, the Board did not explain how plaintiff’s email fell short of a request to withdraw

the separation request. See generally id. at 2–9. The only item the government identified at oral

argument when asked “where [the Board] discuss[es] the decision not to forward that request”

was the AF/A1LO’s conclusion adopted in the Board’s decision, which read: “‘having examined

and considered all of the September 2016 emails in the administrative record, AF/A1LO

concludes that the Air Force did not ignore the Applicant’s request to withdraw her separation,

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because we have no record of such request.’” Tr. at 44:11–22. The Board’s entire justification

for not acting on plaintiff’s request thus relies on the AF/A1LO’s unsubstantiated conclusion

plaintiff’s 16 November 2016 email was not a request—despite the Court’s instruction to

compile a satisfactory explanation as to why it did not act on plaintiff’s requests (i.e., why the

Board thought plaintiff’s email was defective). Given the Court finds plaintiff’s November 2016

email constituted a withdrawal request, see supra Section VI.A.3, and the Board failed to

substantiate its “formal memorandum” requirement, see supra Section VI.A.4, the Board’s

decision was arbitrary and capricious and unsupported by substantial evidence—the decision

“entirely failed to consider an important aspect of the problem” by neither acting on nor

explaining refusal to act on plaintiff’s requests, as required by the Court’s 2023 instructions.

Ala. Aircraft Indus., Inc. v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Accordingly, the

Court remands to the Board (1) to consider if the Air Force’s failure to construe plaintiff’s

November 2016 email as a proper withdrawal request resulted in an error or injustice to plaintiff;

and (2) should the Board find errors or injustices occurred, to fix those errors and injustices. See

infra Section IX.

B. The Board Did Not Identify the Wing Commander’s Rationale

In addition to requiring the Board to compile a satisfactory explanation for not acting on

plaintiff’s email requests, the Court required the Board to explain the Wing Commander’s

rationale in denying plaintiff’s requests. See Stahl v. United States, 167 Fed. Cl. 657, 693 (2023)

(Holte, J.). The Court, in its 2023 Order, found “AF/A1LO could have explained why the Air

Force did not act on, and the Wing Commander did not provide reasons for denying, plaintiff’s

withdrawal request or why such actions are consistent with procedural regulations.” Id. at 682.

Specifically, the Court instructed the Board to “[i]dentify the Wing Commander’s rationale for

failing to provide reasons under AFI 36-3207 § 2.14.4 (2004) or articulate the reason the Wing

Commander cannot be contacted,” and “remand[ed to the Board] the issue of whether the Wing

Commander’s exercise of discretion in refusing to indorse the 13 February 2017 request was a

violation of AFI 36-2110 § 2.30.1.5 (2009) and AFI 36-3207 § 2.14.4 (2004) . . . to review

plaintiff’s 12 September 2016 and subsequent separation withdrawal requests.” Id. at 688–689,

693.

After the 2023 Remand, the Wing Commander provided a written statement on the

circumstances of plaintiff’s separation and withdrawal requests. See AR at 543 (Maj. Gen. April

Vogel’s 22 December 2023 Memorandum). In the statement, the Wing Commander admitted

she “do[es] not recall the disposition of the indorsement of Lt Col Stahl’s request, nor do[es she]

have in [her] possession documentation of [her] response.” See id. The Wing Commander

stated she “remember[s] discussing the situation” and concluded her “actions in this case appear

to have been consistent with the process [she] customarily use[s]” for personnel actions—all

without recalling the disposition of the indorsement or confirming receipt of the documentation.

See id. The Wing Commander “did not find it appropriate to approve the request” based on

plaintiff’s request “along with the needs of the Air Force, guiding regulations and

recommendations from subordinate commanders.” Id.

The Board confirms the Wing Commander did not provide a written indorsement: “there

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is no evidence the wing commander provided a written response to the applicant’s request in

accordance with AFI 36-3207.” AR at 10 (AFBCMR’s 3 July 2024 Decision and 7 June 2024

Record of Proceedings). Though the Wing Commander made “no record on a written

indorsement listing the reasons for denial,” the Board uses the Wing Commander’s in-person

meeting with plaintiff to justify the lack of written indorsement. Id. “While there is no evidence

the wing commander provided a written response to the applicant’s request in accordance with

AFI 36-3207,” the Board concluded “the wing commander considered her request and the

reasons for denial were communicated to her.” Id.

Pursuant to AFI 36-3207 § 2.14 (2004), after an officer requests to withdraw separation,

the Military Personnel Flights (‘MPFs’), which provide a variety of personnel services to active

duty and retired military, reservists, civilian employees, and families, must:

Forward a copy of the separation application, the withdrawal request of a separation

instead of assignment, and the wing commander indorsement directly to

[Headquarters Air Force Personnel Center (Randolph Air Force Base, TX) /

Retirements and Separation Branch (‘HQ AFPC/DPPRSO’); f]orward all other

withdrawal requests with wing commander indorsements and a copy of the

application for separation based on conscientious objector through the same

channels that processed the application for separation[;] and [n]otify the command

or headquarters to hold the application for separation until receiving the withdrawal

request. The command or headquarters processes both the application for

separation and the withdrawal request. Commanders indorsing withdrawals must

include their reason for recommending approval or disapproval.

AFI 36-3207 §§ 2.14.1-2.14.4 (2004). The Court, in its 2023 Order, analyzed this same AFI,

holding the Wing Commander’s failure to provide a written indorsement evidenced “the Air

Force[’s] fail[ure] to comply with established procedures, specifically AFI 36-3207 § 2.14.4

(2004), and [concluded] the Board’s decision upholding the lack of reasonable process is

arbitrary and capricious.” Stahl, 157 Fed. Cl. at 683 (citations omitted).

Absent from the Board’s post-remand decision and the AR is “record o[f] a written

indorsement listing the reasons for denial” and “evidence the wing commander provided a

written response to the applicant’s request in accordance with AFI 36-3207”—contravening the

AFI and the Court’s 2023 Order. See AR at 10 (AFBCMR’s 3 July 2024 Decision and 7 June

2024 Record of Proceedings); Stahl, 157 Fed. Cl. at 693. The Court instructed the Board to

provide the Wing Commander’s “rationale for failing to provide reasons under AFI 36-3207

§ 2.14.4”—the Board and the Wing Commander did not. See id. At oral argument, the

government admitted the Board did not address the non-indorsement nor the rationale for the

non-indorsement. See Tr. at 121:23–122:14 (“[THE COURT:] [D]o you agree that the advisory

opinion and the board decision do not discuss whether the non-endorsement and the failure to

provide reasons was a violation specifically of the AFIs that were cited? . . . [THE

GOVERNMENT: I]t’s not possible to violate the AFI if there’s no . . . . appropriate request.

THE COURT: So that’s why the board does not address? [THE GOVERNMENT]: Yes.”).

Given the Court found plaintiff’s November 2016 email constitutes an appropriate withdrawal

request, supra Section VI.A.3, AFI 36-3207 § 2.14.4 mandates the Wing “Commander[]

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indorsing [the] withdrawal[ to] include the[] reason for recommending approval or disapproval.”

As the government admits the Wing Commander failed to provide a written rationale for

indorsement and considering the Board “entirely failed to consider an important aspect of the

problem” by not identifying the Wing Commander’s rationale, the Board’s decision was

arbitrary and capricious and contrary to law. Ala. Aircraft Indus., Inc. v. United States, 586 F.3d

1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983)). Accordingly, the Court remands to the Board (1) to consider if the

Wing Commander’s failure to provide an indorsement resulted in an error or injustice to

plaintiff, and (2) should the Board find errors or injustices occurred, to fix those errors and

injustices. Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004). See infra Section IX.

C. The Board Did Not Properly Consider Its Best Interests

The Court next reviews whether the Board’s decision analyzed if “the Air Force acted in

its ‘best interests.’” See Stahl v. United States, 167 Fed. Cl. 657, 686 (2023) (Holte, J.). Since

2018, this court has questioned whether the Air Force acted in its best interests, as “the fact that

[p]laintiff was rehired as a civilian in the same position of responsibility appears to indicate that

[p]laintiff’s separation was not in the ‘best interests’ of the Air Force.” See Stahl v. United

States, 141 Fed. Cl. 396, 407 (2018) (Braden, J.). In its 2023 Order, the Court noted “the

AF/A1LO makes a recommendation of approval or disapproval of the separation withdrawal

request based on the manning and best interests of the Air Force,” but because “the Board

accepted AF/A1LO’s conclusion the Air Force acted in its ‘best interests’ without any detail,”

the Court found the Board failed to “ask what ‘best interests’ meant in accordance with AFI

36-2110 § 2.30.1.5 (2009).” Stahl, 167 Fed. Cl. at 686 (Holte, J.) (cleaned up). Accordingly, the

Court held in its 2023 Order the Board’s acceptance of “AF/A1LO’s rationale without sufficient

review of the relevant evidence and adequate understanding of AF/A1LO’s ‘best interest’

determination” was arbitrary and capricious. Id. at 686–87 (“The Board therefore arbitrarily and

capriciously concurred with AF/A1LO’s opinion the Air Force’s failure to abide by procedure

was in the best interests of the agency notwithstanding the lack of substantial evidence.”). The

Court remanded “the issue of whether the Wing Commander’s exercise of discretion in refusing

to indorse the 13 February 2017 request was a violation of AFI 36-2110 § 2.30.1.5 (2009) and

AFI 36-3207 § 2.14.4 (2004) to the AFBCMR to review plaintiff’s 12 September 2016 and

subsequent separation withdrawal requests.” Id. at 688–89 (citations omitted).

Plaintiff maintains the Wing Commander and the Air Force “failed to consider the best

interest of the Air Force and replaced it with her perception that Dr. Stahl had to be ‘all in’, that

no airman who declined an assignment should be retained on active duty.” Pl.’s MJAR at 16.

Plaintiff contends the Board failed to adequately assess this “unwritten ‘being all in’ concept.”

Id. at 5–6, 16. Given plaintiff later “was rehired as a civilian in the same position of

responsibility,” and the Wing Commander “believed that airmen who decline an assignment

should not serve in the Air Force,” plaintiff contends the Board acted “contrary to Department of

Defense Instruction 1315.18 Procedures for Military Personnel Assignments (2015) [after]

incorporating change 3 (2019) and AFI 36-3207.” Pl.’s MJAR at 5–6. Plaintiff argues “the fact

that [plaintiff] was rehired as a civilian in the same position of responsibility” and “the Secretary

of the Air Force [] faced the 84% manning shortage” is evidence plaintiff’s “separation was not

in the best interest of the Air Force.” Id. at 5, 20 (citing Stahl, 141 Fed. Cl. at 407). Plaintiff

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further argues the Board “accept[ed] the best interests of the Air Force post hoc justifications

without any questions,” “failed to reference any evidence to show that [plaintiff]’s requests to

properly process her withdrawal request were improper,” “conducted an imbalanced review of

the evidence that favored the Air Force Colonel Management,” and “effectively declared the

violations harmless.” Id. at 6.

In response, the government argues “although Dr. Stahl was an excellent physician, her

desire to remain stationed only at MacDill was not in the best interest of the Air Force.” Gov’t’s

Cross-MJAR at 6. According to the government, the “all in” concept is not a secret given the Air

Force provides a separation option for members who wish to not be subjected to military

requirements, which could mean being away from their families for extended periods of time and

relocating around the world. See id. at 20. Further, the government argues “the Court should not

afford weight to the board staff’s choice of language” because “the questions were derived from

plaintiff’s written submission,” indicating the Board “considered all relevant evidence in

reaching its decision.” Id. at 24 (cleaned up). According to the government, the Board “did not

make a finding that there was a violation of Air Force regulations.” Id. (emphasis omitted).

At oral argument, the government admitted “[t]he board did not address the best interest

question in this decision” and “do[es]n’t believe [the Board] did” address the question in its 2024

decision and opinion. Tr. at 99:7–17. Specifically, the government explains the Board is

“analyzing the emails and the Wing Commander’s lack of endorsement, . . . but neither one of

those contemplates the best interests of the Air Force.” Tr. at 101:21–102:15. The government

understands “[plaintiff] was employed . . . as a civilian at MacDill” working at the same hospital

at which she previously worked. Tr. at 157:5–16. Despite acknowledging plaintiff “was

undeniably a ‘talented’ physician” (and internally discussing whether plaintiff knew about the

“all in” concept), the Board did not consider or address the issue of what “all in” means. Gov’t’s

Cross-MJAR at 23; Tr. at 100:1–101:11. Instead, the government simply asserts plaintiff may

have known about the “all in” concept, based on “the fact that Colonel Vogel had a[n] in-person

meeting with Colonel Stahl on 16 February 2017,” but admits “ [it] do[es]n’t recall seeing the

all-in phrase in the [Board’s] decision. Tr. at 100:1–101:11.

Despite the Court having already twice instructed the Board to consider all relevant

evidence and address the best interests of the Air Force in its decision, the Board’s decision

neither addressed the Wing Commander’s “all in” concept nor the best interests of the Air Force.

See generally AR at 9–10 (AFBCMR’s 3 July 2024 Decision and 7 June 2024 Record of

Proceedings). The Board again “accepted AF/A1LO’s conclusion the Air Force acted in its ‘best

interests’ without any detail.” Stahl, 167 Fed. Cl. at 686. For the same reasons Judge Braden

held in 2018, and the Court held in 2023, the Court again holds the Board “acted arbitrarily and

capriciously [(1)] in accepting AF/A1LO’s ‘best interests’ determination upholding the Wing

Commander’s denial of plaintiff’s withdrawal request without sufficient explanation in violation

of AFI 36-3207 § 2.14.4 (2004) [and; (2) in accepting] AF/A1LO’s ‘best interests’ conclusion

with respect to the Air Force’s failure to follow procedure without additional explanation.” Id. at

686–89; see also Tr. at 99:7–17 (“THE COURT: Has there been any rebuttal to the points made

in plaintiff’s February 2017 memo regarding her desire to be kept in the Air Force and why it

would be in the Air Force’s best interest? [THE GOVERNMENT]: The board did not address

the best interest question in this decision. THE COURT: In the 2024 decisions and opinion, did

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those provide analysis for what the best interest of the Air Force is at all? [THE

GOVERNMENT]: I don’t believe they did, Your Honor.”). “Where, as here, a correction

board[] ‘fails to support its decision with a reasoned explanation of an important issue, a remand

is appropriate.’” Stahl, 167 Fed. Cl. at 692 (quoting Rominger v. United States, 72 Fed. Cl. 268,

273 (2006)). Accordingly, the Court remands to the Board to consider, in accordance with this

Order, whether the Air Force acted in its best interests. See infra Section IX.

D. The Board Did Not Address Bad Faith

The Court next reviews whether the Board investigated any “flavoring of bad faith” on

behalf of the Colonels Group. See Stahl v. United States, 167 Fed. Cl. 657, 687 (2023) (Holte,

J.). In its 2023 Order, the Court found:

The Board failed to consider if the correspondence between The Colonels Group

and plaintiff had a flavoring of bad faith rising to the level of ‘[m]isrepresentation[,

which is] caused by providing misleading information or by failing to provide

relevant information.’ . . . Specifically, the Board could have inquired to The

Colonel’s Group regarding: (1) their communications with plaintiff, including their

provision of incomplete instructions regarding the requirement to have a Wing

Commander indorse withdrawal requests; (2) their failure to properly process

plaintiff's 2016 separation requests; and (3) their decision not to forward plaintiff's

withdrawal request.

Id. at 687–88 (quoting Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983); Tippet v.

United States, 185 F.3d 1250, 1255 (Fed. Cir. 1999)). Despite (1) the Court finding the Board

failed to consider evidence in the record regarding misrepresentations by the Colonels Group;

and despite (2) plaintiff’s briefs alleging her requests were ignored and citing an Air Force

officer email offering “a few rounds at CORONA” to quickly separate plaintiff given her efforts

to stay on active duty, the government nevertheless claimed at oral argument plaintiff’s briefing

did not raise the issue of bad faith. See Stahl, 167 Fed. Cl. at 687–88; Pl.’s MJAR at 6–10, 17;

Pl.’s Reply at 3, 8, 10–11, 13; Tr. at 123:22–125:7. When pressed at oral argument regarding

whether “the 2024 advisory opinion, or June 2024 decision, ever consider[ed] bad faith,” the

government admitted “[t]here is no reference in there to bad faith” and reasserted based on “[its]

recollection of the briefing[,] that issue was also not raised.” Tr. at 123:22–124:16. The

government also argued “the Court has already addressed” “the implication [plaintiff] was

somehow misled or . . . not provided sufficient information” and maintained it “do[es]n’t think

the board addressed it . . . , because there just simply wasn’t any evidence” the Board “was

misleading.” Tr. at 123:22–124:16. Moreover, regarding plaintiff’s multiple allegations of bad

faith and Air Force personnel avoiding her in the record, the government admitted at oral

argument plaintiff’s allegations were not reviewed by the Wing Commander:

THE COURT: [In] Dr. Stahl’s declaration, she makes a number of statements

regarding her interactions or inability to get in touch with Colonel Vogel at the

time. [THE GOVERNMENT]: Right. THE COURT: Does Colonel Vogel

address that? [THE GOVERNMENT]: Colonel Vogel doesn’t address those

accusations directly.

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...

THE COURT: Related to General Vogel, Dr. Stahl has alleged that General Vogel

was avoiding her at the time these communications were occurring in 2017. Is there

anything in the record that details General Vogel’s review of that? [THE

GOVERNMENT]: That specific assertion that she was avoiding her? THE

COURT: Yeah. [THE GOVERNMENT]: I don’t believe so, Your Honor.

Tr. at 110:1–8, 121:7–17. Similar to the Board’s failure to address the Court’s instructions

regarding whether the Air Force was acting in its best interests, the government agreed “[t]here is

no reference in [the Board’s decision] to bad faith.” Tr. at 123:22–25. Given the Court

previously found the Board failed to consider and investigate bad faith or misrepresentation in

the withdrawal correspondence with plaintiff, and considering the government’s admission the

Board again made no attempt to do so, the Board arbitrarily and capriciously failed to “consider[]

all of the relevant evidence and provide[] a reasoned opinion that reflects a contemplation of the

facts and circumstances pertinent to the case before it.” Verbeck v. United States, 97 Fed. Cl.

443, 451 (2011) (citing Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983) (“Under

the substantial evidence rule, all of the competent evidence must be considered.”)).

Accordingly, the Court remands to the Board to consider all relevant evidence, including but not

limited to correspondence between the Colonels Group and plaintiff, and provide a reasoned

opinion related to whether, upon contemplation of the facts and circumstances, the evidence

shows bad faith. See infra Section IX.

E. The Board Did Not Review Plaintiff’s New Declaration

After the 2023 Remand, on 10 April 2024, plaintiff provided an eleven-page declaration

recounting her perspective of her separation from the Air Force, where she stated, “[i]t was

nearly impossible to schedule an appointment with Col Vogel in early February 2017” as it

seemed “Col Vogel was simply avoiding [her] and ignoring [her] requests for an appointment”

given Col Vogel’s “secretary kept telling [her] that Col Vogel was always out and not available.”

AR at 567 (Plaintiff’s 10 April 2024 Declaration). According to plaintiff, after multiple requests,

Col. Vogel met with plaintiff and told her: (1) “anyone who declined an Air Force assignment

should not be allowed to remain on active duty;” (2) Col. Vogel “had complete discretion

regarding her endorsement/nonendorsement;” and (3) Col. Vogel “would not consider any

hardships.” Id. at 567–69. In one paragraph, the Board’s decision disposed of plaintiff’s

eleven-page declaration:

Finally, the applicant has posited several different, often conflicting facts to support

her contentions. Arguments introduced by the applicant include being misinformed

regarding her options under the Seven Day Option policy, her entitlement to a

hardship waiver, her entitlement to withdraw her voluntary separation, her inability

to transfer to the reserve component, her willingness to “take any assignment,

anywhere, at any time” and her inequitable treatment compared to those similarly

situated. None of these declarations are supported by evidence. Combined with

the applicant's failure to acknowledge the delay in her separations process was, in

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part, self-imposed due to her request to the Secretary of the Air Force Personnel

Council for an active duty service commitment waiver and her initiation of the

PALACE CHASE process, the inconsistencies and constant flexing of her

justification for relief weakens her position in the eyes of the Board. Therefore, the

Board recommends against correcting the applicant’s records.

AR at 10 (AFBCMR’s 3 July 2024 Decision and 7 June 2024 Record of Proceedings).

The Court reviews whether the Board reviewed “all relevant evidence on record

regarding the impact of the Air Force’s failure to follow separation withdrawal procedures,”

Stahl v. United States, 167 Fed. Cl. 657, 693 (2023) (Holte, J.), and whether the Board

“considered all of the relevant evidence and provided a reasoned opinion that reflects a

contemplation of the facts and circumstances pertinent to the case before it.” Verbeck v. United

States, 97 Fed. Cl. 443, 451 (2011) (citing Heisig v. United States, 719 F.2d 1153, 1157 (Fed.

Cir. 1983).

At oral argument, the government maintained plaintiff’s declaration was inconsistent and

provided conflicting facts. See Tr. at 119:11–16. When asked, however, whether it was “fair to

say that there’s nothing that conflicts what Dr. Stahl has concluded factually in her declaration,”

considering “General Vogel’s declaration is . . . not factually substantive,” the government

admitted “that would be fair to say,” but argued Maj. Gen. Vogel wasn’t tasked with rebutting

plaintiff’s 2024 declaration because that’s “the board’s problem[, as] this is one of the tasks that

the board has as part of its function, [i.e.,] to review and weigh evidence, and that’s what's going

on here. See Tr. at 117:6–119:11. The government agreed Maj. Gen. Vogel’s declaration did

not present facts conflicting with the facts presented in plaintiff’s declaration. Tr. at 119:1–8

(“[THE COURT:] What I’m wondering is that there’s only two declarations in the record, and at

least when it comes to the two declarations, the two don’t conflict. [THE GOVERNMENT]: I

guess [] yes, I guess that would be accurate.”). In an effort to clarify the Board’s reference to

conflicting facts in plaintiff’s declaration, the government noted the Board’s mention of

“declarations” in its decision does not relate to plaintiff’s declaration, but instead refers to

plaintiff generally “posit[ing] several different often conflicting facts to support her contentions.”

Tr. at 120:3–21. Although the Board said “[n]one of these declarations are supported by

evidence,” the government “do[es]n’t think the declaration word there is meaning in the legal

sense of . . . this is a document.” Compare AR at 10 (AFBCMR’s 3 July 2024 Decision and 7

June 2024 Record of Proceedings) with Tr. at 120:16–121:6.

The Board is tasked with reviewing and weighing all evidence before it. Verbeck, 97

Fed. Cl. at 451 (citing Heisig, 719 F.2d at 1157 (“Under the substantial evidence rule, all of the

competent evidence must be considered.”)). The Board failed to review all the evidence,

considering, according to the government, the only reference to a “declaration” in the Board’s

decision does not even refer to plaintiff’s declaration. See AR at 9 (AFBCMR’s 3 July 2024

Decision and 7 June 2024 Record of Proceedings); Tr. at 120:16–121:6; Verbeck, 97 Fed. Cl. at

451 (citing Heisig, 719 F.2d at 1157). To evidence the Board’s contemplation of plaintiff’s

declaration or explain why the Board found the allegations in plaintiff’s declaration

contradictory, the Board could have included information from the declaration and compared it

to the record or the Wing Commander’s statement. To the extent the Board found the

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declaration unpersuasive, the Board should have explained it reviewed plaintiff’s declaration and

then explained why it concluded the allegations were contradictory. Verbeck, 97 Fed. Cl. at 451

(citing Heisig, 719 F.2d at 1157). The Board did neither. See AR at 9 (AFBCMR’s 3 July 2024

Decision and 7 June 2024 Record of Proceedings). Given the Board did not review or consider

plaintiff’s declaration nor explain why it believes plaintiff’s declaration is inconsistent or

contradictory, the Board did not “consider[] all of the relevant evidence and provide[] a reasoned

opinion that reflects a contemplation of the facts and circumstances pertinent to the case before

it.” Verbeck, 97 Fed. Cl. at 451 (citing Heisig, 719 F.2d at 1157. Accordingly, the Court

remands to the Board to consider all relevant evidence, including but not limited to plaintiff’s

declaration, and provide a reasoned opinion related to whether, upon contemplation of the facts

and circumstances, the evidence shows contradictory allegations. See infra Section IX.

VII. The Board and the Government Propose New, Unsupported Conclusions

Having considered whether the Board contravened applicable AFIs and whether it

followed the Court’s 2023 remand instructions, the Court next determines the propriety of the

Board’s new justifications for (1) disregarding plaintiff’s requests and (2) the Wing

Commander’s failure to provide a written indorsement. First, the government, in its

Cross-MJAR, maintains none of plaintiff’s emails constituted a withdrawal request because (a)

plaintiff did not “file” a request; and (b) email messages do not qualify as “official”

correspondence in the Air Force. See Gov’t’s Cross-MJAR at 12–17. The government also

proposes plaintiff’s declaration is inconsistent and contradictory. See Tr. at 119:11–16. Second,

the government argues the Wing Commander did not need to provide a written indorsement. See

Tr. at 29:2–30:13.

A. New Justifications for Disregarding Plaintiff’s Requests

After the 2023 remand, the government argues, for the first time, the Board did not act on

the request because plaintiff “didn’t file the request.” See Tr. at 64:6–20; see also supra Section

VI.A; Stahl v. United States, 167 Fed. Cl. 657, 684–85 (2023) (Holte, J.); see Tr. at 75:2–11

(“THE COURT: Does the rule require a withdrawal request be in a ‘memo format?’ [THE

GOVERNMENT]: There is nothing in the Air Force instruction that says memorandum, no.

THE COURT: So is a memorandum required or not? [THE GOVERNMENT]: I would say no,

but there has to be some type of request.”); see also 26 May 2023 Oral Arg. Tr. at 162:19–21

(“[THE GOVERNMENT]: I don’t specifically see where it says it has to be via

memorandum.”). As discussed in both the 2023 Order and this Order, the AFIs do not contain

procedural regulations, i.e., whether withdrawal requests must be “filed,” sent to a particular

recipient, or submitted in a specific format. See supra Section VI.A; Stahl, 167 Fed. Cl. at 682

(“AF/A1LO could have explained why the Air Force did not act on, and the Wing Commander

did not provide reasons for denying, plaintiff’s withdrawal request or why such actions are

consistent with procedural regulations. AF/A1LO instead did not answer the Board’s

questions . . . . The Board, however, deemed AF/A1LO’s non-answer sufficient without

following up regarding previously identified rule violations.”) (emphasis added). To the extent

the Board explains procedural regulations do exist or apply in this proceeding, such as, for

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example, a requirement to “file the request,” the Board should have identified such procedural

regulations in response to the Court’s instruction to “compile satisfactory explanations” for not

acting on plaintiff’s request. Because the Board did not consider whether plaintiff was required

to file the request, and “such explanations have been submitted ‘for the first time in response to

[plaintiff’s] petition for judicial review[,]’” these explanations constitute “improper post hoc

justification[s].” Verbeck v. United States, 97 Fed. Cl. 443, 460 n.25 (2011) (quoting Poole v.

Harvey, 571 F. Supp. 2d 120, 126 (D.D.C. 2008)) (some alterations in original); Poole, 571 F.

Supp. 2d at 126 (“It is a ‘fundamental rule of administrative law’ that a court reviewing an

agency’s decision ‘must judge the propriety of [agency] action solely by the grounds invoked by

the agency.’”) (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (alterations in original).

In another new argument, the government introduced a section of the Air Force

Handbook, which states “[e]mail communications are generally not sufficient to be considered

official actions in the Air Force.” Gov’t’s Cross-MJAR at 14 n.8 (citing Air Force Handbook §

33-337). The Board, however, did not consider Air Force Handbook § 33-337 or whether email

communications constitute official actions. See generally AR at 1–11 (AFBCMR’s 3 July 2024

Decision and 7 June 2024 Record of Proceedings); see also Tr. at 75:12–76:23 (“THE COURT:

So Footnote 8 in your cross-MJAR argued that, ‘Email communications are generally

insufficient,’ and you cited an Air Force Handbook rule. Is that true? . . . [THE

GOVERNMENT]: I would fall back on the Air Force Handbook for what’s required and what’s

not. THE COURT: Did the Air Force consider this argument or did anyone on the board cite

that rule? . . . [THE GOVERNMENT:] Off the top of my head, I don’t believe it’s in

there . . . THE COURT: So a requirement within the Air Force Handbook, though, you agree

would be a post hoc justification? It wasn’t something that the board found on their own? [THE

GOVERNMENT]: I wouldn’t want to answer that, Your Honor, without taking the opportunity

to go back and review the board’s determination before I could answer that question clearly.

THE COURT: How about plaintiff, was the Air Force Handbook cited in any of the board

records on remand or before? [PLAINTIFF]: No, Your Honor.”). Accordingly, given the Board

did not consider the Handbook or whether emails constitute official actions, “[e]ven if the

government’s current arguments as to these matters provided sufficient merit to substantiate the

Board’s conclusions . . . such explanations have been submitted ‘for the first time in response to

[plaintiff’s] petition for judicial review[,]” and thus constitute “improper post hoc

justification[s].” Verbeck, 97 Fed. Cl. at 460 n.25 (quoting Poole, 571 F. Supp. 2d at 126) (some

alterations in original); Poole, 571 F. Supp. 2d at 126 (“It is a ‘fundamental rule of

administrative law’ that a court reviewing an agency’s decision ‘must judge the propriety of

[agency] action solely by the grounds invoked by the agency.’”) (quoting Chenery Corp., 332

U.S. at 196).

B. New Justifications for Non-Indorsement of Plaintiff’s Request

In addition to ignoring the Court’s 2023 Order requiring the Board to “[i]dentify the

Wing Commander’s rationale for failing to provide reasons,” the government proffers another

novel argument: under “the Air Force’s interpretation of [AFI 36-3207 § 2.14.4,] there’s

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actually a third option[:] . . . [the Wing Commander] can endorse with approval, [it] can endorse

with disapproval, or [it] cannot endorse at all.” Tr. at 29:11–25. As a result, the government

proposes, the Wing Commander “do[es]n’t have to endorse at all.” Id. AFI 36-3207 § 2.14.4

(2004) requires “[c]ommanders indorsing withdrawals [to] include their reason for

recommending approval or disapproval,” and AFI 36-3207 § 2.14.2.1 (2004) further requires

Military Personnel Flights to “[f]orward a copy of the separation application, the withdrawal

request of a separation instead of assignment, and the wing commander indorsement directly to

HQ AFPC/DPPRSO.” AFI 36-3207 §§ 2.14.2.1, 2.14.4 (2004) (emphasis added). When asked

at oral argument where AFI 36-3207 § 2.14.4 provides a commander need not indorse at all, the

government admits: “In this particular provision, it doesn’t.” Tr. at 29:11–25. The government’s

position, however, is belied by the AF/A1LO explaining “separations [withdrawal] requests are

required to be indorsed by the service member’s chain of command.” AR at 6 (AFBCMR’s 3

July 2024 Decision and 7 June 2024 Record of Proceedings) (emphasis added). The government

further argued the Wing Commander did not need to make an indorsement decision because

plaintiff’s request was not submitted within the 30 days of the separation. See Tr. at 40:1–41:10.

Regardless of whether the AFIs support the government’s position and regardless of

whether the AF/A1LO confirmed indorsements are required, plaintiff proposes these arguments

were not considered by the Board. Pl.’s MJAR at 8–9. At oral argument, the government admits

the Board did not consider whether the Wing Commander needed to indorse with approval or

disapproval:

THE COURT: Where in the board decision does the board justify that General

Vogel did not need to endorse with approval or disapproval, if it were a proper

request? The board does not address that? [THE GOVERNMENT]: Well, no,

Your Honor, because it found that it wasn’t a proper request. So after making that

finding, it didn’t engage in that hypothetical.

Tr. at 36:8–14. Moreover, regarding the timing of plaintiff’s request, the Wing Commander’s

statements were silent about a 30-day requirement and plaintiff’s purported failure to satisfy the

requirement. See generally AR at 539 (Maj. Gen. Vogel’s 22 December 2023 Memorandum).

At oral argument, the government admits the Board did not characterize the reasoning for the

non-indorsement but argues “the legal requirement is in the regulation . . . [and the Board] said it

was a prohibited request. . . . Beyond that, [the government is] not sure anything further is

required.” Tr. at 40:1–41:24. Apart from stating plaintiff’s request was a “prohibited request,”

the Board did not cite to the regulation, did not mention a 30-day requirement in its decision, and

did not explain how a failure to satisfy the 30-day requirement constitutes a prohibited request

nor how it would excuse a non-indorsement from the Wing Commander. See generally AR at

1–11 (AFBCMR’s 3 July 2024 Decision and 7 June 2024 Record of Proceedings). The

government clarified the Board only stated plaintiff’s request was a “prohibited request”—which

the government believes resulted from the 30-day requirement—and it “won’t speculate beyond

that.” Tr. at 113:7–114:20. To the extent the Wing Commander did not need to submit an

indorsement, either the Wing Commander or the Board could have mentioned in it in their

documents—but they did not. Tr. at 114:21–115:17; see also AR at 539 (Maj. Gen. Vogel’s 22

December 2023 Memorandum); AR at 1–11 (AFBCMR’s 3 July 2024 Decision and 7 June 2024

Record of Proceedings). Further, if the government is correct, i.e., the “prohibited request”

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determination is derived from plaintiff’s purported failure to submit her request within 30 days,

the Board is required to explain the legal requirements in the regulation and why plaintiff’s

requests did not satisfy the legal requirements. See Verbeck v. United States, 97 Fed. Cl. 443,

458 (2011) (“The court cannot construe the Board’s six-word statement on this issue to

encompass the numerous arguments the government now presents”) (“While an agency can

provide a ‘brief statement’ justifying its decision, such a statement must explain ‘why it chose to

do what it did.’”) (citing Epstein v. Geren, 539 F. Supp. 2d 267, 274 (D.D.C. 2008) (quoting

Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, 737 (D.C. Cir. 2001)).

Considering the government admits it is “not sure anything further is required,” Tr. at

40:1–41:24, and admits a full understanding of the Board’s determination the request was

prohibited would require “speculat[ion],” Tr. at 113:7–114:20, the Board did not demonstrate it

considered whether the 30-day requirement applies, whether plaintiff’s request failed to satisfy

the 30-day requirement, or whether the Wing Commander was excused from submitting a non-

indorsement as a result of the 30 day requirement.

The government agreed “arguments made in this court that were not relied on by the

agency below . . . [are] not okay” and constitute improper post hoc justifications. See Tr. at

9:9–10:22. Specifically, the parties agreed “the post hoc justification legal rule” prohibits “an

argument that the government makes for the first time in response to litigation and judicial

review to prop up or otherwise substantiate the Board for Correction of Military Records’

decision.” Tr. at 7:10–19, 9:20–10:22; see Watson v. United States, 113 Fed. Cl. 615, 635–38

(2013). The parties also confirmed the post hoc justification rule prohibits the government “from

introducing new evidence or new arguments before the [C]ourt that the board did not consider.”

See Tr. at 10:23–11:7; see also Tr. at 9:9–10:22. “Even if the government’s current arguments as

to these matters provided sufficient merit to substantiate the Board’s conclusions . . . such

explanations have been submitted ‘for the first time in response to [plaintiff’s] petition for

judicial review[,]” and thus constitute “improper post hoc justification[s].” Verbeck, 97 Fed. Cl.

at 460 n.25 (quoting Poole v. Harvey, 571 F. Supp. 2d 120, 126 (D.D.C. 2008)) (some alterations

in original); Poole, 571 F. Supp. 2d at 126 (“It is a ‘fundamental rule of administrative law’ that

a court reviewing an agency’s decision ‘must judge the propriety of [agency] action solely by the

grounds invoked by the agency.’”) (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947))

(alterations in original); see also AR at 6 (AFBCMR’s 3 July 2024 Decision and 7 June 2024

Record of Proceedings) (“[S]eparations requests are required to be indorsed by the service

member’s chain of command.”).

VIII. The Board Is Required To Follow The Court’s 2023 Remand Instructions

Having determined the Board did not follow the Court’s 2023 remand instructions, the

Court next reviews whether the Board was required to do so. The parties agreed at oral argument

the Board is required to follow the Court’s 2023 remand instructions. See Tr. at 26:18–27:6

(“[THE GOVERNMENT:] I would certainly agree that the board has to follow. . . the court’s

order . . . If there’s an order from this court, the board is going to follow it. . . . [PLAINTIFF]:

We would agree that the board is bound by the court’s decision, and if the board ignores the

court’s decision or instructions, then we would contend that the board is acting arbitrary and

capricious and contrary to law.”). The government assented “[i]f the board disregarded this

court’s conclusion of law, . . . that would be arbitrary and capricious.” Tr. at 25:7–18. Case law

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further confirms the Board’s duty to follow the mandate issued in the Court’s 2023 Order: “the

trial tribunal, in this case the Board, ‘has no power or authority to deviate from the mandate

issued.’” Aydin Corp. (W.) v. Widnall, No. 96-1267, 1997 WL 413329, at *3 (Fed. Cir. July 24,

1997) (quoting Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306 (1948) and citing N. Helex Co.

v. United States, 634 F.2d 557, 560 (Ct. Cl. 1980)) (reversing the findings of the Armed Services

Board of Contract Appeals for failing to adhere to the scope of the court’s remand order).

Considering the Board was mandated to follow the Court’s 2023 Order and having determined

the Board did not follow the Court’s 2023 remand instructions, the Court remands the case to the

AFBCMR for reconsideration of plaintiff’s claim. See infra Section IX.

IX. Remand Instructions

In its 2023 Order, the Court remanded the case to the Board, instructing it “to evaluate

plaintiff’s record and consider how the separation withdrawal requests may affect her back pay

and bonus payment.” Stahl v. United States, 167 Fed. Cl. 657, 692 (2023) (Holte, J.) (citations

omitted). The Court also required the Board to consider, “even if plaintiff’s 2016 separation

withdrawal requests for hardship were routed to the Wing Commander earlier than February

2017, [whether] the withdrawal request: (1) could have been denied; or (2) if approved, would

have resulted in plaintiff submitting a humanitarian deferment request, which also could have

been denied. The Board should also consider whether: (1) plaintiff’s request to withdraw her

separation had been proper; or (2) further delay in separation as a result of reviewing plaintiff’s

humanitarian request would necessitate months of back pay during that extended time.” Id.

The parties agreed, at oral argument, should the Court remand the case, the Board must

be provided yet another opportunity to address the remand instructions outlined in the Court’s

2023 Order and consider plaintiff’s requested relief. Tr. at 156:2–7 (“[THE COURT:] If the

board’s most recent decision from 2024 is arbitrary and capricious, are we right back there as

where we were in 2023? [THE GOVERNMENT]: I mean, I guess, yeah, proceeding with the

hypothetical that there is a finding that the board was arbitrary and capricious.”); see also Tr. at

162:4–163:25. The Board must follow all explicit instructions of the Court’s 2023 Order, which

held “the Board’s failure to acknowledge plaintiff’s separation withdrawal requests was

arbitrary and capricious.” See Stahl v. United States, 167 Fed. Cl. at 691–93 (2023) (Holte, J.)

(emphasis added). Specifically, the Board must carry out the appropriate next steps after

receiving plaintiffs’ withdrawal requests in September and November 2016, consistent with the

remand instructions in the Court’s 2023 Order. See id.; see also Tr. at 159:6–160:9 (“[THE

COURT: L]et’s assume in September of 2016, [plaintiff] did formally submit a withdrawal

request. [THE GOVERNMENT]: My understanding is . . . the board is empowered to make a

determination as to what’s in the best interest of the Air Force. So even assuming [plaintiff made

an appropriate request], the board still could make a determination that her separation on the

appropriate date was in the best interest of the Air Force.”). The Board must also consider

plaintiff’s requested relief (including but not limited to plaintiff’s separation withdrawal and

requests for backpay) and analyze whether the Secretary would have approved plaintiff’s

separation withdrawal in 2016. See Stahl, 167 Fed. Cl. at 689–93; Tr. at 160:10 –161:10 (“[THE

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GOVERNMENT]: [T]he [C]ourt would have to say, based on the standard of review, that the

factual finding of the board was incorrect. THE COURT: And then just remand to the board

with instructions on how to figure out what would come next? [THE GOVERNMENT]:

Yes . . . . [THE COURT: The Board then does] an after-the-fact conclusion on whether or not in

2016 the Secretary would have approved a separation withdrawal? [THE GOVERNMENT]:

That’s right.”); Tr. at 162:4–163:3 (“THE COURT: [The Board w]ould make a decision as to

what the Secretary of the Air Force would have done in 2016? [PLAINTIFF]: Yes . . . . [THE

GOVERNMENT]: It’s just the board.”); Tr. at 157:5–158:6 (the Court noting the government’s

question of whether plaintiff would be owed backpay considering the pay plaintiff already

received as a civilian in the Army Reserve after her separation, and directing the government to

the Court’s 2023 Order indicating the Board needed to consider that question); see also Roth v.

United States, 378 F.3d 1371, 1381, 1394–96 (Fed. Cir. 2004) (mandating the Board to correct

injustices and errors clearly presented in the record pursuant to 10 U.S.C. § 1552); Aydin Corp.

(W.) v. Widnall, No. 96-1267, 1997 WL 413329, at *3 (Fed. Cir. July 24, 1997) (“[T]he trial

tribunal, in this case [an Armed Services Board], ‘has no power or authority to deviate from the

mandate issued by an appellate court.’”) (quoting Briggs v. Pennsylvania R. Co., 334 U.S. 304,

306 (1948) and citing N. Helex Co. v. United States, 634 F.2d 557, 560 (Ct. Cl. 1980)).

In conducting its review, the Board SHALL, consistent with this and the Court’s 2023

Order:

1. Compile satisfactory explanations as to: (1) why the Air Force did not act on

plaintiff’s 12 September 2016 and 16 November 2016 requests to withdraw her

separation according to AFI 36-2110 § 2.30.1.5 (2009); or (2) why the Wing

Commander did not list the reason(s) the applicant’s request to withdraw her

separation were denied in accordance with AFI 36-3207 § 2.14.4 (2004), see supra

Sections VI.A–C, VIII;

2. Review and consider all relevant evidence on record regarding the impact of the Air

Force’s failure to follow separation withdrawal procedures pursuant to AFI 36-2110

(2009) and AFI 36-3207 (2004) on plaintiff’s separation date, including but not

limited to the evidence the Court has found the Board decision under review did not

address, see supra Sections VI.A, VI.D–E, VIII;

3. Identify the Wing Commander’s rationale for failing to provide reasons under AFI

36-3207 § 2.14.4 (2004) or articulate the reason the Wing Commander cannot be

contacted, see supra Sections VI.B, VIII;

4. Provide a complete explanation of the Board’s determinations surrounding plaintiff’s

separation withdrawal requests, see supra Sections VI, VIII;

5. Consider if the Air Force’s failure to construe plaintiff’s November 2016 email as a

proper withdrawal request resulted in an error or injustice to plaintiff, and, should the

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Board find errors or injustices occurred, fix those errors and injustices. See supra

Section VI.A;

6. Consider if the Wing Commander’s failure to provide an indorsement resulted in an

error or injustice to plaintiff, and, should the Board find errors or injustices occurred,

fix those errors and injustices. See supra Section VI.B;

7. Consider whether the Air Force acted in its best interests. See supra Section VI.C;

8. Consider all relevant evidence, including but not limited to correspondence between

the Colonels Group and plaintiff, and provide a reasoned opinion related to whether,

upon contemplation of the facts and circumstances, the evidence shows bad faith. See

supra Section VI.D; and

9. Consider all relevant evidence, including but not limited to plaintiff’s declaration, and

provide a reasoned opinion related to whether, upon contemplation of the facts and

circumstances, the evidence shows contradictory allegations. See supra Section VI.E.

X. Conclusion

For the foregoing reasons, the Court GRANTS plaintiff’s Motion for Judgment on the

Administrative Record, ECF No. 86, and DENIES the government’s Cross Motion for Judgment

on the Administrative Record, ECF No. 88. Consistent with this Order, the Court REMANDS

the case to the AFBCMR for reconsideration. The remand proceedings SHALL be completed

within six months of the date of this decision. The parties SHALL file a joint status report every

sixty days advising the Court of the status of the proceedings on remand. The Court will retain

jurisdiction over the case during the course of the proceedings on remand. The Court STAYS

proceedings in the instant case during that time. Pursuant to Rule 52.2(e) of the Rules of the

United States Court of Federal Claims, the parties SHALL file notice with the Court within

thirty days of the Board’s decision on remand stating whether that decision affords a satisfactory

basis for the disposition of the case or whether the parties require further proceedings before the

Court. The Clerk’s Office is directed to serve a copy of this Opinion and Order upon the Board

at the following address:

Deborah F. Davidson, Executive Director

Air Force Board for Correction of Military Records

SAF/MRBC

3351 Celmers Lane

Joint Base Andrews NAF

Washington, MD 20762-6435

IT IS SO ORDERED.

s/ Ryan T. Holte

RYAN T. HOLTE

Judge

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