“[Jjudgment on the administrative record is properly understood as intending to provide for an expedited trial on the administrative record.”
How later courts described this case
- “[Jjudgment on the administrative record is properly understood as intending to provide for an expedited trial on the administrative record.”
Written by the judges who cited it.
The opinion
(}R'Ifi!|\|A!,
lJntbt @nrtr! $rtattg [.ourt of /eUprsl @lufmg
No. 15-439C
(Filed: March 22,2016)
FILED
MAR 2 2 1016
* * * * * *,1* * *:t** * ** **,* *** * ** * ** * ***+ ** * *
APRIL L. GILLIAM, * U.S. COURT OF
:f FEDERAL CLAIMS
Plaintiff, * Cross-Motions for Judgnent on the
:i
Administrative Record: Conection of
:i
Military Records; AFBCMR; Testing for
* Promotion; Duration of Absence Without
THE UNITED STATES, Leave; Administrative Discharge Board
Defendant. *
* * * * **,* * * * **. * * * * **,1** * *:f * *,t '*
* ** * *'N *:t*
April L. Gilliam, Jacksonville, FL, p1q se.
William J. Grimaldi, United States Department of Justice, Washington, DC, for defendant.
OPINION A}{D ORDER
SWEENEY, Judge
PlaintiffApril L. Gilliam, proceeding plq Se, contends that the United States Air Force
("Air Force"), in violation of its regulations, did not allow her to test for promotion, failed to
consider certain evidence during proceedings under Article l5 ofthe Uniform Code of Military
Justice, and denied her the opportunity to appear before an administrative discharge board during
her involturtary separation proceedings. Plaintiff previously sought relief from the Air Force
Board for Correction of Military Records ('AFBCMR'), but was unsuccessful' Consequently,
she filed suit in this court, requesting that the court set aside her involuntary discharge, reinstate
her to active duty, award back pay and allowances, and restore her ability to test for promotion.
The parties cross-move for judgment on the administrative record. For the reasons set forth
below, the court denies plaintiff s motion and grants defendant's motion. Because plaintiffhas
not presented a viable claim in this court, her complaint must be dismissed.
I. BACKGROUND
A. PlaintifPs Service in the Air Force
Plaintiff first enlisted in the Air Force on March 22.2000.) AR 16. She served as a
Fitness Specialist, with an Air Force Specialty Code ("AFSC") of 3M051.'z Id. at 93, 95,97 . Her
service was exemplary, as reflected in her Enlisted Performance Reports ("EPRs") and by her
receipt of three Air Force Achievement Medals. Id.at93-101. After four years of active service,
plaintiff was transfened to the Air Force Reserve for an additional four years of inactive service.
Id. at 16-17 . On February 17,2008, plaintiff was honorably discharged from the Air Force at the
rank of Senior Airman. !d. at 17.
Almost two years later, on January 25,2010, plaintiff reenlisted in the Air Force to work
as a recruiter. Id. at 18, 158-60, 214-15. She maintained the rank of Senior Airman, with a pay
grade of E-4. Id. at 158-59. In conjunction with her recruiting assignment, plaintiff was given a
control AFSC C'CAFSC) of 8R000.3 See id. at 140 (indicating that CAFSC 8R000 pertains to
the recruiting specialty), 158-59 (reflecting that plaintiff was given a CAFSC of 8R000 in her
January 25, 201 0 assignment order); accord id. ar 244 ("fPlaintiff] should have been awarded the
CAFSC as a recruiter when she was brought back to active duty."). But see !d. at 140
I The court derives the facts in this section from the administrative record ("AR") and
relevant statutes and Air Force regulations.
2 Pursuant to Air Force regulations:
The objective ofthe military personnel classification system is to identiff duties
and tasks for every position needed to accornplish the Air Force mission. The
system is designed to identifi qualifications and abilities necessary to accomplish
these duties and tasks, as well as provide clear and visible career progression
pattems. It links duties and tasks into cohesive job clusters that are used to match
personnel requirements with personal aptitudes, attributes, and qualifications'
The classification system also provides concise award, upgrade, and retention
criteria for career progression.
Air Force Instruction ("AFI") 36-2101, Classifring Military Personnel (Officer and Enlisted)
tf l.l (June 14,2OlO). "The classification system groups related work requirernents
(position)
into Air Force Specialties . . . ." Id. tT 1.2.1. "When individuals meet all of t}le mandatory
qualifications ofthe specialty and have shown skill level qualification in all tasks of the positions
in which assigred, they are considered qualified for award of the Air Force Specialty Code . . . ."
rd.n 1.2.2.
3 "Former Air Force personnel in technical training are awarded the l-skill level AFSC in
the specialty they are enrolled in at technical training as their CAFSC." AFI 36-2101,n23.2.
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("[Plaintiffl should have been assigned CAFSC 94000 (student/training) until completion of
recruiter tech training (8R000)."). Plaintiff was assigned to the 347th Air Force Recruiting
Squadron in Chicago, Illinois, but was first required to report to Lackland Air Force Base, Texas,
for a temporary duty assignment to attend Air Force Recruiting School. Id. at 158-59, 192; cf. id.
at 158-59 (reflecting that plaintiff s January 25,2010 assignment order was generated at the
Jacksonville, Florida, Military Entrance Processing Station).
While at Air Force Recruiting School, plaintifffailed one of her sales labs, resulting in
her being washed back to another recruiting class . Id. at27 . She advised a superior that one of
her classmates was "unfairly passed through the same sales labs" by the instructors. Id. at27;
accord id. at 119. That classmate, plaintiff reports, eventually failed out of Air Force Recruiting
School. Id. at 73; accord id. at I 19. Plaintiff graduated from Air Force Recruiting School on
April 9, 2010. ld. at27, 140.
On April 19,2010, plaintiff reported to the 347th Air Force Recruiting Squadron in
Milwaukee, Wisconsin. Id. Upon reporting, plaintiffclaims that she was advised by her
superintendent, Senior Master Sergeant Knute Headley, that he had received a letter from the Air
Force Recruiting School describing her complaint regarding her classmate. Id. at 27-28; see also
id. at 192,202,238 (containing the July 2013 findings ofan investigator for the Air Force
Recruiting Service's inspector general that (l) the document that plaintiffalleged was a letter to
the 347th Air Force Recruiting Squadron was actually a report card prepared for all graduates of
Air Force Recruiting School pursuant to standard operating procedure and (2) plaintifPs report
card could not be obtained due to the passage of time). According to plaintiff, Senior Master
Sergeant Headley told her that with her "type of mentality came consequences." Id. at 28.
Plaintiff indicates that she then asked Senior Master Sergeant Headley for an advance of
her basic allowance for housing. ld.at73. She avers that Senior Master Sergeant Headley
refened her to Master Sergeant Mark Buchholz, who assured her that she would receive the
advance "in a couple ofdays." Id.
Finally, plaintiffclaims that she was told by Senior Master Sergeant Headley and her
flight chiei Master Sergeant Joseph S. Minor, that she would be testing for promotion to Staff
Sergeant during that year's May-June test cycle. Id. at 28. This information was consistent with
what she had been told by her recruiter on January 5, 2010. Id. at ll2, 114.
According to plaintiff, on April 22,2010, not having received an advance of her basic
allowance for housing, she drove to Scott Air Force Base, Illinois, to discuss the issue with an
individual in the finance deparffnent. Id. at 28, 73. Plaintiff avers that during that meeting, she
leamed that neither Senior Master Sergeant Headley nor Master Sergeant Buchholz had
forwarded her paperwork to the finance department. Id.
Plaintiffbegan her recruiting assigrurent in Chicago Heights, Illinois, on May 1, 2010'
Id. at 28. Shortly thereafteq Master Sergeart Minor advised her, without explanation, that she
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would not be able to test for promotion to Staff Sergeant until 201 I . Id. Plaintiff sought an
explanation for the delay in October 2010, but none was forthcoming. Id.
Although plaintiff was a successful recruiter, id. at 87 , 90-92, I 19, she felt mistreated at
the recruiting office, see generally yLat74. Specifically, she believed that she was treated
differently from her flight mate (by being given substandard equipment and higher recruiting
goals) and was sexually harassed by another flight mate. Id.
On December 16,2010, Master Sergeant Minor directed plaintiffto meet with him in his
office the following moming to discuss plaintiff s alleged misuse of a govemment-owned vehicle
and telephone. Id. at 68, 74. However, plaintiffrefused to meet with him without legal
representation. Id. Plaintiff also did not attend a mandatory flight meeting scheduled for that
same moming in Matteson, Illinois. Id. at 68. Master Sergeant Minor and others attempted to
contact plaintifffrom December 17,2010, to December 19,2010, without success. Id. All of the
messages left for plaintiff directed her to report to a superior's office in Oak Creek, Wisconsin,
on December 20, 2010. Id. She did not do so. Id. Additional attempts to locate plaintiff on
December 20,2010, were unsuccessfrrl. Id.
Unbeknownst to her colleagues and superiors, plaintiff boarded a Greyhound bus on
December I 8, 201 0, bound for Jacksonville, Florida, where her United States congresswoman
had an offrce. ld. at74,79. Plaintiff intended to file a complaint with her congresswoman
detailing the unequal treatment she experienced at Air Force Recruiting School, as well as the
unequal treatrnent and retribution she experienced during her recruiting assignment. ld. at74,
79-81. She lodged her complaint in person on December 20, 2010. Id. at74.
The following day, plaintiff went to Moody Air Force Base, Georgi4 and met with Staff
Sergeant Phillip D. Bradford, a paralegal at the Area Defense Counsel's office. Id. at 170. She
advised Staff Sergeant Bradford that she was absent without leave and was there to tum herself
in. Id. After consulting with a superior oflicer, Staff Sergeant Bradford advised plaintiff that she
"would be better represented by an Area Defense Counsel closer to her duty location." Id. He
therefore called Area Defense Counsel at Scott Air Force Base for assistance, and arranged for
plaintiff to speak with a paralegal from that office. Id. Plaintiff asserts that the paralegal
consulted with an attorney-Captain Rebecca Otey-and then conveyed Captain Otey's advice that
plaintiff "sneak back" to her duty station in Chicago Heights and resume her regular daily duties.
Id. at 30. However, plaintiff lacked the necessary funds to retum to lllinois. Id. at 75. She
therefore departed Moody Air Force Base and retumed to Florida. Id. at 74-75. Accordingto
plaintiff, the following day-Decembet 22,2010-she received a telephone call from Captain Otey
who, upon leaming that plaintiff did not have the money to retum to Illinois, advised plaintiffto
contact her commander, Lieutenant Colonel Mark Formica, and explain to him that she was
absent without leave and did not possess tle financial means to retum to Illinois. Id. at 7 5.
Plaintiff eventually obtained the money that she needed to fund her retum to Illinois, and on
December 28,2010, tumed herself in to Captain Otey at Scott Air Force Base. Id.at29,75;see
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also id. at 106 (reflecting that plaintiff "retumed to military control and [was] placed into military
confinement on 28 Dec 2010").
On December 29, 2010, plaintiffreceived two letters of reprimand from Lieutenan!
Colonel Fomrica. Id. at 82, 84. One concemed her unauthorized use of a govemment-owned
vehicle, and provided:
[Y]our I-PASS records . . . disclosed that between on or about 9 November 2010
and on or about 1 8 November 20 I 0, you used your assigned Govemment Owned
Vehicle (GOV) during the hours of between 2200L and 0500L. This is in
violation of [an Air Force regulation that provides:] "Govemment vehicles will
not be used between the hours of 2200 and 0500 without the permission of the
operator's supervisor." You were trained and acknowledged the training on this
policy when you first arrived in the unit.
Id. at 82. The other concemed her unauthorized use ofa govemment telephone, and provided:
[Y]our Govemment Office Telephone records . . . disclosed that on or about 20
May 2010 to on or about 20 December 2010 you used your assigned Government
Offrce Telephone to make unauthorized personal phone calls outside your
recruiting zone. This is in violation of [an Air Force regulation that providesl
"The govemment does not incur any long distance per-call charges above and
beyond normal local charges[.]" You were trained and acknowledged the training
on this policy when you first arrived in the unit.
Id. at 84.
The following day, December 30, 2010, Master Sergeant Minor requested the initiation of
proceedings against plaintiff under Article 15 of the Uniform Code of Military Justice as a
consequence ofher absence without leave. Id. at29,68. Article 15 allows commanding officers
to impose nonjudicial punishrnent on service members for minor offenses. 10 U.S.C. $ 815
(2006). On January 4,2011, Lieutenant Colonel Formica acted favorably on Master Sergeant
Minor's request and made an offer of nonjudicial punishment to plaintiff. AR 69. In his offer,
Lieutenant Colonel Formica alleged two violations of Article 86 of the Uniform Code of Military
Justice: (l) plaintiffs failure to report to her place of duty in Matteson on December 17,2010,
and (2) plaintiff s failure to report to her place of duty in Chicago Heights from December 20,
2010, to December 28, 2010. ld. at 69-70.
On January 7, 2011, plaintiff elected to proceed under Article 15. Id. at 69. She indicated
that she had consulted with an attomey and waived her right to court-martial. Id. She also
provided a written presentation to Lieutenant Colonel Formica in which she described her
negative experiences at Air Force Recruiting School and her recruiting office, indicated that the
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reason that she was absent without leave was to submit a complaint to her congresswoman, and
apologized for her "poor judgment" in going absent without leave. ld. at73-75.
Also on January 7, 2011, plaintiff submitted written responses to her two letters of
reprimand. Id. at 83,85. With respect to her unauthorized use ofa government-owned vehiclc,
plaintiffexplained that one of the trips at issue involved her taking a recruit to ajob. Id. at 83.
With respect to her unauthorized used of a government telephone, plaintiff stated that the calls
were to check on her family, and asserted that she had not been briefed on the standards for using
her govemment telephone. Id. at 85.
Lieutenant Colonel Formica "conducted an in-house investigation" of plaintiff s sexual
harassment allegations on January 10, 201 1. Id. at 30; accord id. at 195 (indicating, however,
that the investigation began on January 14, 20ll),199-200. Apparenfly, Lieutenant Colonel
Formica concluded that plaintifPs claims were not substantiated.a Id. at 199. Plaintiffasserts
that this conclusion was not disclosed to her. ld. at 30.
Subsequently, on January 12, 201l, plaintiff provided additional written evidence to
Lieutenant Colonel Formica in regard to her Article 15 proceedings. Id. at I 70-72. This
evidence consisted of a memorandum from Staff Sergeant Bradford confirming that she went to
Moody Air Force Base on December 21,2010, to tum herself in; a copy ofa privacy release form
that she submitted with her congressional complaint; and a memorandum containing her request
that Lieutenant Colonel Formica not consider her absent without leave beyond December 21,
2010, based on Staff Sergeant Bradford's memorandum. Id.
That same day, notwithstanding plaintiffs submission, Lieutenant Colonel Formica
determined that plaintiffviolated the two provisions of Article 86 of the Uniform Code of
Military Justice that he had previously identified. Id. at 69-70. He therefore imposed the
following punishment: "Reduction to the grade of Airman, with reduction below Airman First
Class suspended until l1 July 2011, after which time it will be remitted without further action,
unless sooner vacated. The new date of rank for Airman First Class is I 2 January 20 I I ." Id. at
70; see also id. at l1 (reflecting that plaintifPs demotion to Airman First Class was accompanied
by a reduction ofpay grade to E-3). Lieutenant Colonel Formica also formally reprimanded
plaintifffor her behavior. ld. at72. Plaintiff indicated on January I 8, 201 1 , that she would not
appeal Lieutenant Colonel Formica's decision and punishment. Id. at 70. Further, two Air Force
4 No documentation ofthe investigation is included in the administrative record. Rather,
more than two years after the fact, an investigator for the inspector general ofthe Air Force
Recruiting Office averred, based on undisclosed evidence (refened to as "Sec I Tab K-l I, RCA,
Atch 12, Clarification [redacted]" and "Sec III Tab [redacted] pg 9, lines 21-33"), that the
investigation occuned, that plaintiffs claims were found to be unsubstantiated, and that the
investigation was found to be legally sufficient. See AR 195-96, 199-200 (redactions in
original). The investigator expressly indicated that he or she was unable to obtain a copy of the
investigation report. Id. at 199.
attomeys reviewed Lieutenant Colonel Formica's decision and determined that the record was
legally suflicient. Id.
Plaintiff was contacted by Senior Master Sergeant Noel K. Sharp from the Air Force
Recruiting Service's inspector general's oflice on January 25,2011. Id. at 30-31,51. Senior
Master Sergeant Sharp advised plaintiffthat her congressional complaint had been forwarded to
that office for review and requested a telephone conversation with plaintiffto discuss her
complaint. Id. Plaintiff contends that she called Senior Master Sergeant Sharp the following day
and, during their conversation, claimed that she had been denied the opportunity to test for
promotion to Staff Sergeant during the 2010 May-June test cycle. Id. at 31. Plaintiff avers that
Senior Master Sergeant Sharp stated that the claim would be incolporated into her complaint. Id.
An investigator at the Air Force Recruiting Service's inspector general's office stated, two years
later, that plaintifls complaint was "forwarded to command for resolution," and that the
command's response was subsequently purged in accordance with Air Force regulation. Id. at
195,203. Plaintiffnever obtained the results ofthe investigation ofher congressional complaint.
ld. at 49.
In the meantime, on February 7, 201 l, Lieutenant Colonel Formica notified plaintiffthat
she was being processed for administrative separation from the Air Force pursuant to an Air
Force regulation that allows for the involuntary separation of airmen from the Air Force for
minor disciplinary infractions.s Id. at 31, 86 (citing AFI 36-3208, Administrative Separation of
5 The administrative record contains plaintiffs acknowledgment that she received the
"notification memorandum" on February 7, 2011, AR 86, but does not contain the "notification
memorandum" itself. However, an investigator for the inspector general of the Air Force
Recruiting Offrce stated, two years later, that "[a]ccording to the discharge paperwork, [plaintiffJ
was recommended for discharge for a number of disciplinary issues including" the two letters of
reprimand and the Article 15 nonjudicial punishment. ld. a1233. The investigator further
remarked:
[S]ince [plaintiffl was reduced to the rank of [Airman First Class] as the result of
the Article 15 punishment, she no longer met the criteria (mandatory minimum
ranVgrade requirements) to perform duties as an Air Force Recruiter. . . . The
rank qualification for an Enlisted Accession Recruiter is Senior Airman through
MasterSergeant....
... . Since she did not possess another AFSC and did not meet the
minimum rank requirement to remain a recruiter, [redacted] recommended
[plaintiffl for discharge.
ld. at 234 (redaction in original).
n
Airmen'lf 5.49 (July 9, 2004) ('A pattem of misconduct consisting solely of [minor disciplinary]
infractions in the cunent enlistment makes an airman subject to discharge. The infractions . . .
may involve failure to comply with nonpunitive regulations or minor offenses under the
[Uniform Code of Military Justice]. lnfractions of this type result, as a rule, in informal (reduced
to writing) or formal counselings, letters of reprimand, or Article l5 nonjudicial punishments.")).
Plaintiff acknowledged receipt of the "notification memorandum," as well as her rights to consult
counsel and submit statements on her own behalf, that same day. Id. at 86.
Plaintiffalleges that she consulted with her attomey, Captain Daphne LaSalle, on
February 8, 201 I . Id. at 3 1. According to plaintiff, Captain LaSalle advised her that she was not
entitled to a hearing before an administrative discharge board during her involuntary separation
proceedings. Id.
On February 9, 201I, plaintiff submitted a memorandum to Lieutenant Colonel Formica
in response to the "notification memorandum." AR 87-88. She apologized for the actions that
led to the letters of reprimand and the Article 15 nonjudicial punishment, and requested that she
be retained in the Air Force based on her prior contributions and accomplishments. Id.
The following day, plaintiff contacted the Air Force Recruiting Service's inspector
general's office to allege that she was the victim of reprisal by Lieutenant Colonel Formica for
making protected communications. Id. at 31, 196. An investigation apparently ensued.' See id.
at 196. Subsequently, on February 22,2011, Senior Master Sergeant Sharp advised plaintiff that
she was protected under the United States Department of Defense's whistleblower protection
policy while her claim of reprisal was being investigated. ld. at52 (citing 10 U.S.C. $ 1034). It
appears that the inspector general of the Air Force Recruiting Service ultimately concluded that
plaintiffs claim ofreprisal was not substantiated.? Id. at 196.
Notwithstanding her submission to Lieutenant Colonel Formic4 plaintiff was discharged
from the Air Force on March 4, 201l, for "misconduct (minor infractions)." Id. at 18. The
character of her service was described as "under honorable conditions - (general)." Id. Prior to
her discharge, plaintiff was not provided the opportunity to appear before an administrative
discharge board. Id. at I 1.
o No documentation ofthe investigation is included in the adminishative record. Rather,
rnore than two years after the fact, an investigator for the inspector general of the Air Force
Recruiting Office averred, based on undisclosed evidence (referred to as "Sec I Tab K-lm, RCA,
Atch 13, Case File Worksheet"), that an investigation occurred and that the Air Force Recruiting
OIfice's inspector general "determined that reprisal did not occur and dismissed the complaint
even though there was prima facie evidence ofreprisal." AR 196.
7 See supra note 6.
B. PlaintilPs Application for the Correction of Her Military Records
Plaintifffiled an application for the correction of her military records with the AFBCMR
on March 29, 2012.8 ld.at ll-12. In her application, she claimed that her involuntary discharge
was unjust and that she should be reinstated to her position as a recruiter with a CAFSC of
8R000 because pursuant to Air Force regulation, she was entitled to, but not provided, a hearing
before an administrative discharge board during her involuntary separation proceedings. Id. at I I
(citing AFI 36-3208,16.2.2 (providing that an airman "recommended for discharge . . . must be
offered an opportunity for hearing by an administmtive discharge board if' the airman "has 6
years or more total active and inactive military service at the time the discharge processing
starts")); accord id. at 44.
The AFBCMR obtained two advisory opinions to assist in its resolution of plaintiffs
application. ld. ar34-36. One, dated May 14,2012, was prepared by an official at the
Retirements and Separations Branch of the Directorate ofPersonnel Services at the Air Force
Personnel Center, and addressed two aspects of plaintiffs discharge from the Air Force.e Id. at
34-35. The official first opined:
Based on [plaintiffs] overall performance, the discharge authority approved an
Under Honorable Conditions (General) discharge. According to [Air Force
regulation], a general discharge is appropriate when "significant negative aspects
of the ainnan's conduct or performance of duty outweighs positive aspects of the
airman's rnilitary record." [Plaintiffs] misconduct in this case clearly outweighs
the positive aspects of her service. The Commander stated that blaintifi] had
continually shown through her actions that she cannot be trusted. [Plaintiffl
received two fletters of reprimand] for misuse of govemment property; has failed
E
On this same date, plaintiff voluntarily withdrew the application that she had filed with
the Air Force Discharge Review Board in December 201 l.
AR 19-20.
t
Oddly, there are two versions of this letter in the administrative record, both dated May
14,2012. See AR 34-35, 54-55. The "Discussion" and "Recommendation" sections ofthe letter
provided to plaintiff for her review, see id. at 55, di{fer significantly from the "Discussion" and
"Recommendation" sections in the version of the letter considered by the AFBCMR, see id. at
35. Specifically, the letter provided to plaintiff indicated that plaintiff was not entitled to a
hearing before an administrative discharge board and contained a recommendation that plaintiff s
application be denied. Id. at 55. In contrast, the letter considered by the AFBCMR indicated that
plaintiffwas entitled to a hearing before an administrative discharge board and contained a
recommendation that plaintilPs request for such a hearing be granted. Id. at 35. No explanation
for the discrepancy has been provided to the court. However, because the AFBCMR considered
the version of the letter that was favorable to plaintiffand agreed that plaintiffwas entitled to an
administrative discharge board hearing, see id. at 138, plaintiff was not prejudiced by the
discrepancy.
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to go to her appointed place of duty; and had absented herself from her place of
duty. [Plaintiffl demonstrated a lack of respect for authodty and a total disregard
for policies and procedures constantly throughout her military career. [Plaintiffs]
incidents of misconduct disrupted good order, discipline, and morale within the
military community; hence, discharge was appropriate.
Id. at 35. The offrcial then opined that, pursuant to AFI 36-3208, !l 6 .2.2, plaintitr"qualifred for
an administrative discharge board hearing during her involuntary discharge proceeding." Id.
Accordingly, the offrcial recommended that plaintilfs request for such a hearing be granted. Id.
The second advisory opinion, dated August 2, 2012, was prepared by a superintendent in
the Recruiting Operations office of the Air Force Recruiting Service, and addressed plaintiff s
ability to be reinstated to active duty as a recruiter. Id. at 36. The superintendent opined that
plaintiff was not qualified for reentry into the Air Force for two reasons. Id. First, the
superintendent noted that the character ofplaintifPs discharge-"under honorable conditions -
(general)' -prevented her reenlistment. Id. Second, the superintendent explained that High Year
of Tenure ("HYl'') requirements would also prevent plaintifPs reenlistment because they
preclude the reenlistment of individuals, like plaintiff, who are at or below the E-4 pay grade and
have more than four years of active service. Id. In addition, the superintendent stated, the HYT
requirements would prevent plaintifPs reenlistment even if the AFBCMR restored plaintiffs pay
grade to E-4. Id. The superintendent concluded that plaintiffs request for reinstatement to the
Air Force should be denied. Id.
On August 3, 2012, the AFBCMR forwarded the two advisory opinions to plaintifffor
her review and advised plaintiffthat she had thirty days in which to comment on the advisory
opinions or provide additional evidence in support of her application. Id. at 37 . Plaintiff took
advantage of the opportunity, and provided the AFBCMR with a ninety-page
submission-+ontaining both responses to the advisory opinions and additional evidence-in which
she recounted her experiences at Air Force Recruiting School and her recruiting offrce. See
generallv 38-131. Of particular note, plaintiff contended in her response to the May 14, 2012
advisory opinion that a letter of reprimand was too severe a punishment for her first-time
offenses of misuse of a govemment-owned vehicle and misuse of a government telephone. Id. at
59-60. She further asserted that the language ofher Article 15 nonjudicial punishment gave her
'1he false perception that [she] would be granted probation and rehabilitation until l1 July 201l,
without further action." Id. at 61 ; accord id. at 50. Also of note, the additional evidence that
plaintiffprovided to the AFBCMR included a memorandum in which plaintiff avened that she
had filed a complaint with her congresswoman, that the Air Force Recruiting Service's inspector
general's offrce had initiated an investigation, that Lieutenant Colonel Formica became aware of
her congressional complaint during her Article l5 nonjudicial punishment proceedings, that she
had been afforded whistleblower protection, and that she believed that Lieutenant Colonel
Formica initiated involuntary separation proceedings and ultimately discharged her in reprisal.
Id. at 48-50.
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The AFBCMR issued a decision on plaintiffs application on January 23,2013. Id. at
134-39. lt first concluded that there was "[s]uffrcient relevant evidence . . . to demonstrate the
existence ofan enor or injustice regarding [plaintiffs] contention she was denied her right to
meet an Administrative Discharge Board . . . in conjunction with her involuntary discharge." Id.
at 138. The AFBCMR then addressed the allegations of reprisal set forth in plaintifPs
supplementary materials, noting that "while the evidence ofrecord indicates [plaintiffJ timely
filed a complaint with the Inspector General, it appears as though an investigation into her
allegations was never completed in accordance with the provisions of 10 USC 1 034." Id. It
therefore determined:
[W]hile we find the evidence is suffrcient for us to conclude that she was deprived
of certain due process rights related to her discharge, in order for the Board to
render full and fair consideration ofthis case, we believe [plaintiffs] case should
be referred to the Inspector General for an investigation under the authority
granted to this Board on this issue. Accordingly, it is our determination that a
final decision not be rendered on the [plaintiffs] requests rurtil such time as the
Inspector General conducts an investigation at our request and the report of
investigation . . . is provided to us for review. . . . Upon receipt of the [report of
investigation], or iffor some reason the [Inspector General] should determine an
investigation cannot be conducted, we will reopen [plaintiffs] case and resume
consideration of her requests.
Id. Accordingly, the AFBCMR administratively closed plaintiffs case, id. at 132, 138, and
referred plaintiffs claims of reprisal to the Air Force's inspector general, id. at 132-33.
While plaintiffs case was closed administratively, the AFBCMR received two additional
advisory opinions.'o Id. at 140-43. The first, dated May20,2013, was prepared byan offrcial at
the Enlisted Promotions and Military Testing Branch of the Air Force Personnel Center, and
concerned plaintiffs contention that she was denied the opportunity to test for promotion to Staff
Sergeant during the 2010 May-June test cycle (referred to in the advisory opinion as "cycle
10E5"). Id. at 140-41 . The official initially explained that members of the Air Force are
considered "nonweighable" for promotion ifa promotion factor--such as a test, an EPR, or an
AFSC-is missing or inconect. Id. at 140. The official then noted issues with two promotion
factors that adversely affected plaintiffs eligibility for promotion consideration:
[Plaintiffl was "nonweighable" based on the fact that she did not have a control
AFSC (CAFSC) updated in the system. Without an assigned CAFSC, the test
t0 It is unclear from the evidence in the administrative record why the AFBCMR
continued to receive advisory opinions, and why it forwarded those advisory opinions to plaintiff
for her review and comment, while plaintiffs case was administratively closed. Plaintiff did,
sometime after M arch 22,2013, submit a request to the AFBCMR that her case be reopened, see
AR25-32, but there is no evidence that the AFBCMR acted on this request.
-l1-
control officer would not know what test to administer. She was also
"nonweighable" because she did not have a current EPR with a close out date
within the past five years from the promotion eligibility cutoff date . . . for the
cycle (31 Mar 10).
Id. With respect to the former issue, the offrcial wrote:
Although [plaintiffJ was given her previous primary AFSC (PAFSC) of 3M051
when she was accessed, she lost her control AFSC (CAFSC) since it had been
more than 4 years since she last held it . . . . However, she should have been
assigned CAFSC 94000 (studenVtraining) until completion of recruiter tech
training (8R000). Had the 9A000 AFSC been updated, or our office notified
when her 8R000 CAFSC was updated, [plaintiff] would have tested . . . only as a
00)OO( (retrainee). She would have remained "nonweighable" until she had at
least 60 days supervision and an EPR was rendered.
Id.; see also id. (noting that plaintiffs CAFSC was not updated until she graduated from Air
Force Recruiting School on April 9,2010). With respect to the latter issue, the offrcial
explained:
[In accordance with Air Force regulation], EPRs covering the last five years
(maximum of 10 reports) are used to compute the EPR time-weighted factor
score. All eligibles are required to have an EPR that closes out within 5 years of
the [promotion eligibility cutoff date] on file to compete for promotion. If a
member does not have an EPR on file, they cannot be considered for promotion
until their next projected EPR closes out or until a directed by [Headquarters Air
Forcel EPR is completed for promotion consideration. At that time, the member
will be considered supplementally.
Id.
In addition to determining that plaintiff was "unweighable" for promotion, the official
addressed the effect that plaintifPs Article 15 nonjudicial punishment had on her promotion
eligibility:
[Plaintiffl received an Article 15 on 12 Jan 1l and was reduced to the rank of
[Airman Fint Class]. Even if she had tested for cycle l0E5 and was selected, her
promotion sequence number. . . would have to have been 1.00 - 5446.0 (1 Sep l0
- 1 Jan l1) in order for her to pin-on [StaIf Sergeant] prior to the Article 15 action.
Ifshe received a [promotion sequence number] after 5446.0, she would have lost
her line number. In either case. the Article 15 resulted in loss of rank.
Id. at 141. The official concluded:
-12-
Since [plaintiff] entered active duty on 25 Jan 10, a [CAFSC] should have been
assigned and updated into the system by the time testing for cycle l0E5
commenced in May. She would have remained nonweighable for the cycle rurtil
an EPR was rendered. Unfortunately, there is no way for her to be supplementally
considered for promotion to [Staff Sergeant] due to the fact that she never
tested/does not have a test on file and is no longer on active duty.
Id.
The second advisory opinion, dated June 4, 2013, was prepared by the chiefofthe
Military Justice Division of the Air Force Legal Operations Agency and concemed plaintiffs
nonjudicial punishment. ld. at 142-43. First, the chiefnoted that plaintiff did not appeal her
commander's decision imposing punishment ofa reduction of grade and a reprimand, and that
the Article 15 proceedings were "reviewed and determined to be legally sufficient." ld. at 142.
Second, the chief indicated that plaintiffdid not challenge her nonjudicial punishment in her
application to the AFBCMR but, in fact, "acknowledge[d that] the nonjudicial punishment was a
result ofher poor j udgment and that it was a rehabilitative tool." Id. The chiefthen explained:
[A] commander considering a case for disposition under Article 15 exercises
largely unfettered discretion in evaluating the case, both as to whether punishment
is warranted and, ifso, the nature and extent ofpunishment. The exercise ofthat
discretion should generally not be reversed or otherwise changed on appeal or by
the Board absent good cause.
Id. at 143. Ultimately, the chief concluded:
The commander at the time of the Article l5 had the best opportunity to evaluate
the evidence for this action. With that perspective, the commander exercised the
discretion that [plaintiff] granted him when [plaintiffl accepted the Article 15s
[sic] and found nonjudicial punishment appropriate. The legal review process
showed that the commander did not act arbitrarily or capriciously in making this
decision.
Id.
The AFBCMR forwarded the two new advisory opinions to plaintiff on June 6,2013, fot
her review and comment. Plaintiffresponded with two eleven-page submissions that included
comments on the advisory opinions and supporting evidence. See eenerall]'id. at l5l-72. In her
response to the May 20,2013 advisory opinion regarding her eligibility for promotion
consideration, plaintiff rnade the following assertions: (1) she did have a CAFSC with an
effective date of January 25 , 2010; (2) she should have received a special EPR from Air Force
Headquarters; and (3) ifthe Air Force had complied with the testing and promotion procedures
set forth in its regulations, she would have tested for promotion to Staff Sergeant during the 2010
- l3-
May-June test cycle and would not have committed the offenses that were the subject of her
Article 15 proceedings. Id.at 153-57. And, in her response to the June 15,2013 advisory
opinion regarding her Article 15 nonjudicial punishment, see id. at 164-68, plaintiff made the
following assertions: (1) she did allege an injustice with respect to her receipt of nonjudicial
punishmenltt id. at 168; and (2) she should not have been considered absent without leave
beyond Decemb er 2l , 2010 , when she attempted to tum herself in at Moody Air Force Base, id.
at 167 (citing AFI 36-2911, Desertion and Unauthorized Absence fl 4.3.1 (Oct. 14,2009)
(providing that "[a]n absentee's retum to military control occurs at the date and hour thaf'the
"absentee surrenders to . . . militarv authorities" or "otherwise comes under the control of
military personnel")).
The Air Force Recruiting Service's inspector general completed its investigation of
plaintiffs claims of reprisal in July 2013 and, based on what can be discemed from the
administrative record, prepared a comprehensive report of investigation. t' Id. at 190-259. The
investigating offi cer concluded:
The preponderance ofthe evidence in this case showed there were sound,
logical reasons for the actions taken against [plaintiffl based on her admitted
violations of the [Uniform Code of Military Justice]. The fletters of reprimand]
stemmed from her misuse of govemment property and her refusal to meet with
[Master Sergeant Minor] when ordered to discuss the matter. The follow-on
Article 15 resulted from [plaintiffs] refusal to follow a lawful order to appear and
for her unauthorized absence from her place of duty. The separation that ensued
was the administrative follow-on to the preceding disciplinary actions. Further,
the evidence in this case demonstrated that [plaintiffs] inability to test for
promotion stemmed from an unfortunate combination of the timing of her return
to active duty during the promotion cycle and an administrative enor that occurred
during her in-processing [at] the [347th Air Force Recruiting Squadron] which
rendered her "non-weighable" for promotion. This particular matter is currently
being addressed by the AFBCMR.
tt As described above, plaintiff did not allege an injustice with respect to her Article 15
nonjudicial punishment in her original application for the conection ofher military records. See
AR I 1-12; accord id. at 44. She did, however, raise such a claim in her supplementary materials.
See id. at 59-61.
12
Only seventy-four pages of the report of investigation--constituting Section II, Tabs A
through E-are in the administrative record. See AR 190-263. Based on the contents ofthis
excerpt, the full report of investigation also includes Sections I and III, both with multiple tabs.
See. e.e.. id. at 193. It also bears noting that the portion ofthe report included in the
administrative record contains substantial redactions. See id. at 190-263.
-14-
In conclusion, the staff at the Air Force Recruiting School and the [347th
Air Force Recruiting Squadronl leadership did not reprise against [plaintiffl, and
none ofthe allegations in this case were substantiated.
Id. at259. The Air Force's inspector general subsequently approved the report, with one minor
change. Id. at 260-63. The report was then forwarded to the inspector general for the United
States Deparhnent ofDefense, who approved it on August 21, 2014. Id.at4.
The AFBCMR, in a September 25, 2014 letter, advised plaintiff that it had received a
copy of the inspector general's report of investigation and was therefore reopening her case. Id.
at 183; see also id. at 4 (indicating that the AFBCMR attached a redacted copy ofthe report of
investigation to its letter). The AFBCMR fi.uther advised plaintiff that it might find it necessary
to seek additional advisory opinions. Id. at 183. Indeed, the AFBCMR received an advisory
opinion from a staffjudge advocate at the Air Force Personnel Center, dated February 18, 2015,
addressing "how to implement a conection of record in conjunction with" the AFBCMR's
preliminary finding that it was an error or injustice for the Air Force to deprive plaintiffof the
opportunity to appear before an administrative discharge board during her involuntary separation
proceedings. Id. at 184-85. The staffjudge advocate provided:
Having been discharged from the Air Force on 4 March 2011, [plaintiffs] status
today is that of a civilian with no military corurection at all. As a consequence,
she could not be "recalled" to active duty for the hearing [before an administrative
discharge boardl, as she is not in a capacity (like reserve or retired) that would
permit recall. For the same reason, we can find no authority to otherwise place
her on active duty directly from a civilian status. Moreover, there is no authority
to provide her a discharge board in her capacity as a civilian-as the goveming
instruction . . . applies only to enlisted military members. Thus, the only means
we can discem for the Board to afford [plaintiff] a discharge board would be to set
aside the 2011 discharge as having been accomplished in enor, and reinstate her
to active duty effective 4 March 201 1.
This option, however, does not come without some serious legal and
practical problems. First, there is the problem that due to [HYT] restrictions . . .
[plaintitrl is no longer qualified to serve as a recruiter. Thus, where would she be
reinstated, and in what career field? . . . There is the additional problem that
because of the extensive delays in this case resulting from multiple [inspector
generall investigations, such a solution would entitle [plaintiffl to back pay for
four plus years of Air Force service that was not in fact performed-a tremendous
undeserved windfall. It would also bring with it questions of promotion eligibility
and potential HYT for this period of time. This is in addition to all the practical
problems of trying to run a board four plus years after the fact: Who would
convene the board? Where would it be held? Are the relevant players/witnesses/
- l5-
command personnel still available? Is it really possible to provide the full due
process that was denied so long after the fact?
The other option we see is for the Board to set aside the basis and
character ofher 201 I discharge and substitute an honorable discharge based on
Secretarial discretion (or some other reason not associated with discharge for
cause). In our opinion, this would constitute a fair and just resolution given the
time, problems and all the circumstances associated with this case. In making this
recommendation, we recognize that [plaintiffs] continued misconduct and the
attitude of her supervisory and command structure would render retention by a
discharge board a remote possibility--certainly not more likely than not. And even
though we believe an honorable discharge would also likely not be recommended,
we can see this as at least a possible outcome of a board. Thus, to substitute a
no-fault basis for separation in addition to approving an honorable discharge, in
our view, would provide more than a fair outcome for [plaintiff].
Id. at 184-85. The AFBCMR forwarded this advisory opinion to plaintiff on February 20, 2015.
Id. at I 86. Plaintiff responded seven days later, declining to comment on its contents. Id. at I 87-
88.
The AFBCMR issued its final decision on plaintifPs application on March 31,2015. Id.
at 1-10. It described the history ofthe case, the contents ofthe advisory opinions, and plaintiffs
submissions. ld. at3-7. It also identified plaintifFs contentions: (l) plaintiff was unfairly
denied an administrative discharge board during her involuntary separation proceedings; (2)
plaintiff made protected communications regarding her Air Force Recruiting School classrnate
that resulted in (a) a hostile work environment in her recruiting office, (b) her decision to go
absent without leave, and (c) her discharge from the Air Force; (3) plaintifPs Article 15
proceedings were defective because (a) the charges were erroneous, (b) she was not absenl
without leave beyond December 21, 2010, (c) the punishment was crafted to give her the false
impression that "she would be granted probation and rehabilitation" and not demoted, and (d) the
letters of reprimand were "too harsh"; and (4) plaintiffwas improperly denied the opportunity to
test for promotion to Staff Sergeant in 2010. ld. at2-3. The AFBCMR concluded:
Insufficient relevant evidence has been presented to demonstrate the existence of
an error or injustice warranting corrective action. While there are admitted errors
in the case, we find it rnore likely than not that [plaintiffl would have received the
same outcome she ultimately did even ifthe processing ofher case had been
error-free. As such, we decline to recommend any correction to her record. We
took notice of [plaintiffs] complete submission, to include her rebuttal responses
to the advisory opinions, injudging the merits of the case; however, regarding her
contentions, we believe the denial ofan [administrative discharge board] was
harmless error; reprisal was not a motive in her disciplinary actions; her Article 15
-16-
was legally sufficient; and, given her substantiated misconduct, denying her the
opportunity to test for promotion in 2010 had no effect on her advancement.
In particular, we agree with [the June 4, 2013 advisory opinion] that
[plaintifPs] commander did not act arbitrarily or capriciously in rendering
non-judicial punishment, and with the finding ofthe Air Force [inspector general]
that her commander recommended her for administrative separation based on
substantiated acts of misconduct and a pattem of minor disciplinary infractions,
and not because she made protected communications. After a thorough review of
the evidence of record and [plaintiff s] complete submission, we do not find the
evidence presented suffrcient for us to question the underlying basis for
[plaintiffs] actions or to persuade us she is the victim of an injustice. It does
appear [plaintiffl was improperly denied an [administrative discharge board]
during her discharge process, and we note the recommendation [contained in the
February 18, 2015 advisory opinionl to change the character of [plaintifPs]
discharge to Honorable; but we also share [the] belief that an [administrative
discharge board] would likely not have recommended an honorable service
characterization. Moreover, the review of [plaintiffs] case at the Department of
Defense level, through the [inspector general] process, represents a far higher
level of scrutiny than most airmen discharged for misconduct ever receive.
Therefore, we are not convinced the denial ofthe [administrative discharge
board], in and of itself, constitutes a sufficient basis to recommend granting the
relief sought, particularly when there was a legitimate basis for [plaintiff s]
involuntary separation and general service characterization. Additionally, after a
careful review of [plaintiff s] misconduct which formed the basis of the discharge,
we find it more likely than not that even ifshe had been provided an
[administrative discharge board], she would have received the same discharge
characterization she now holds. Therefore, in our view, the fact she was not
provided an [administrative discharge board] constitutes a harmless error. As
such, it would be unfair to all those who served honorably to furnish the same
coveted Honorable discharge to someone whose service was terminated for
substantiated misconduct.
In additioq while the Board notes [plaintiff] was denied the opportunity to
test for promotion during the 10E5 promotion cycle, the fact she did not test also
constitutes a harmless error because she was not otherwise qualified to meet a
promotion Board during that cycle. [Plaintiff] was not on active duty for an
extensive period oftime between 2l Mar 04 through 25 Jan 10, and arrived at her
Recruiter duty station in Apr 10 after the 3l Mar l0 Promotion Eligibility Cutoff
Date for promotion cycle 10E5, so she did not have a cunent EPR on file and
therefore was "non-weighable" for promotion purposes. Further, even if she had
been qualified to meet a promotion board and been selected for promotion during
cycle 10E5, we find it more likely than not that having received two fletters of
11
reprimandl, gone labsent without leave], and received nonjudicial punishment by
Jan I 1, she would have been disqualified for promotion.
In sum, while we acknowledge that certain enors were made in the
processing of [plaintiffs] discharge for misconduct, we are not convinced that
these errors constituted an injustice under l0 USC 1552, or that the command's
actions in response to [plaintifPs] misconduct were motivated by reprisal in
violation of l0 USC 1034. Accordingly, we find no basis to recommend granting
the relief sought in this application.
Id. at 8-9. The AIBCMR therefore denied plaintiffs application. Id. at 9.
C. PlaintilPs Suit in the United States Court of Federal Claims
Plaintiff filed suit in this court on April 30, 2015. In her complaint, plaintiff alleges that
the Air Force violated its regulations when it failed to test her for promotion to Staff Sergeant
during the 2010 May-June test cycle. She also alleges that the Air Force violated its regulations
when it deemed her absent without leave for eight days, disregarding the fact that she attempted
to tum herself in at Moody Air Force Base, but was tumed away. Finally, plaintiff alleges that
she was improperly denied a hearing before an administrative discharge board during her
involuntary separation proceedings, preventing her from (l) challenging the charges brought
against her, (2) describing the sexual harassment that she endured from a colleague, (3) arguing
that she was improperly denied the opportunity to test for promotion to Staff Sergeant, and (4)
explaining why she should be retained in the Air Force. With respect to all of her allegations,
plaintiff frrther contends that the AFBCMR ened in denying her application for the correction of
her military records. ln her demand for reliei plaintiff requests that the court (l) set aside her
involuntary administrative separation and reinstate her to active duty, with back pay and
allowances; (2) restore her "rightfirl entitlements to testing and promotion"; and (3) grant her any
other relief deemed proper.
In lieu ofan answer, defendant filed a motion for judgment on the administrative record.
Plaintiffdid not initially frle a response to defendant's motion. However, in response to an order
to show cause, plaintiff frled a motion for summary judgment, which the court deems to be a
response to defendant's motion and a cross-motion for judgment on the administrative record.rl
Defendant subsequently filed a combined reply in support of its motion and response to
13
Becauseplaintiff is proceeding p1q sg, the court liberally construes her filings. See
Traguth v. Zuck,7l0 F.2d90,95 (2d Cir. 1983) ('lmplicit in the right to self-representation is an
obligation on the part of the court to make reasonable allowances to protect p1q se litigants from
inadvertent forfeiture of important rights because oftheir lack oflegal training. While the right
'does not exempt a party from compliance with relevant rules of procedural and substantive law,'
it should not be impaired by harsh application of technical rules." (citation omitted) (quoting Birl
v. Estelle, 660 F.2d 592,593 (5th Ctu. 1981)).
- l8-
plaintiffs motion, after which plaintiff filed a reply in support of her motion. The court deems
oral argument unnecessary.
II. DISCUSSION
A. Motions for Judgrnent on the Administrative Record
The parties have filed cross-motions for judgment on the administrative record pursuant
to Rule 52.1(c) of the Rules of the United States Court of Federal Claims, seeking either to
uphold or overtum the AFBCMR's decision denying plaintiff s application. In ruling on such
motions, the court makes "factual findings . . . from the record evidence as if it were conducting
a trial on the record." Barurum. Inc. v. United States,404 F.3d 1346,1357 (Fed. Cir. 2005);ta see
also id. at 1356 ("[J]udgment on the administrative record is properly understood as intending to
provide for an expedited trial on the administrative record.").
B. Correction of Military Records
Decisions regarding who may serve as an enlisted member of the Air Force are made by
the Secretary of the Air Force ("Secretary") or his designees. See l0 U.S.C. $$ 113(b), (d),
136(b),505; Departnent of Defense Directive 5124.02, Under Secretary ofDefense for
Personnel and Readiness (USD(P&R)) I4.2 (Jtne 23,2008). A fonner enlistee dissatisfied with
the Secretary's decision to discharge her from the Air Force can petition the Secretary to correct
an error in, or remove an injustice from, her military records. See l0 U.S.C. $ 1552. Such a
correction is made by the Secretary acting though a board of civilians-the AIBCMR-pursuant to
procedures that he ha,s established. Id. $ 1552(a)(1), (3). Ifthe former enlistee seeks relief from
the AFBCM& the decision of the AFBCMR becornes the final agency action, superseding the
Secretary's original discharge decision.rs See Strickland v. United States, 423 F.3d 1335, 1339
(Fed. Cir. 2005) (noting that "the correction board process provides for a single final agency
action in every case" and that the decision ofthe relevant service secretary-rnade tlrough the
correction board-"is plainly the final agency action"). Consequently, ifthe former enlistee files
suit contesting her discharge after receiving an adverse decision from the AFBCMR, the court
reviews the AFBCMR's decision.
ra The decision in Bannum was based upon RCFC 56.1, which was abrogated and
replaced by RCFC 52.1 . RCFC 52. 1, however, was designed to incorporate the decision in
Bannum. See RCFC 52.1, Rules Committee Note (June 20, 2006).
r5 As noted above, the AFBCMR acts on behalf of the Secretary.
Spg l0 U.S.C.
$ 1552(a)(1), (3). In some circumstances, the AFBCMR's decision is final; in other
circumstances, the Secretary reviews the AFBCMR's recommendations and issues his own final
decision. See 32 C.F.R. $ 865.4(4, .5 (2011). In this case, because the AFBCMR denied
plaintiffs application, its decision constitutes the Secretary's final decision. Id. $ 865.4(D(1).
-19-
Correction board decisions are entitled to deference. Bray v. United States, 515 F.2d
1383, l39l (Ct. Cl. 1975) (per curiam); see also Heisiq v. United States,719 F.2d 1153, 1156
(Fed. Cir. 1983) (noting that a court is not to substitute its judgrnent for that ofthe correction
board "when reasonable minds could reach differing conclusions on the same evidence"); cf.
Dodson v. U.S. Gov't. Deo't of the Army, 988 F.2d 1199, 1204 (Fed. Cir. 1993) ('tMlilitary
administrators are presumed to act lawfr.rlly and in good faith . . . , and the military is entitled to
substantial deference in the govemance of its affairs."). Therefore, the court "will not disturb the
decision of [a] conections board unless it is arbitrary, capricious, contrary to law, or unsupported
by substantial evidence." Chambers v. United States,4lT F.3d 1218, 1227 (Fed. Cir. 2005);
accord Sanders v. United States, 594 F.2d 804, 811 (Ct. Cl. 1979) (en banc), superseded in part
by statute, l0 U.S.C. $ 628 (2000 & Supp. I2002), as recoenized in Richey v. United States, 322
F.3d 1317, 1323-24 (Fed. Cir.2003). The individual challenging a correction board decision
bears the burden of establishing, by "cogent and clearly convincing evidence," that the board
acted improperly. Arens v. United States,969 F.2d 1034,1037 (Fed. Cir. 1992).
C. Plaintiff Has Not Established That the AFBCMR's Decision Was Improper
As noted above, plaintiff alleges in her complaint (and reiterates in her cross-motion for
judgment on the administrative record and reply in support of that motionro) that the Air Force
violated its regulations on three occasions-improperly denying her the opportunity to test for
promotion to Staff Sergeant, improperly computing the length of time that she was considered
absent without leave, and improperly denying her right to appear before an administrative
discharge board during her involuntary separation proceedings-and that the AFBCMR ened in
denying her relief for these violations. The court addresses each purported violation in tum.
1. Testing for Promotion to Staff Sergeant
Plaintiff first contends that she was improperly deprived of the opportunity to test for
promotion to Stalf Sergeant during the 2010 May-June test cycle. She asserts that she was
entitled to receive a CAFSC when she was sent to Air Force Recruiting School, relying on table
3.9 ofAFI 36-2101, which provides that the "CAFSC effective date (for retraining through a
formal school [including special duty]) is the date [the airman] departed [her] cunent duty station
[for temporary duty] to accomplish required training . . . ." Plaintiff further asserts that she
actually received a CAFSC with an effective date of January 25,2010, the date that she was
ordered to depart for Air Force Recruiting School, but that the Air Force did not properly update
its personnel records to reflect that fact. Finally, plaintiff asserts, had the Air Force properly
updated her personnel records to reflect the assignment ofa CAFSC, she would have been
permitted to test for promotion to StaIf Sergeant during the 2010 May-June test cycle. All of
t6 Plaintiff addresses some of the allegations from her complaint in her cross-motion for
judgment on the administrative record and other allegations from her complaint in her reply in
support ofher cross-motion. As previously noted, see suora note 13, the court liberally construes
plaintiff s submissions.
-20-
plaintiffs assertions are correct, as reflected in her January 25, 2010 assignment order and the
May 21 , 20 1 3 advisory opinion.
The AFBCMR recognized that plaintiff was improperly deprived of the opportunity to
test for promotion to Staff Sergeant during the 2010 May-June test cycle. However, it concluded
that the Air Force's errors were harmless, for two reasons. First, the AFBCMR explained that
plaintiff would not have been eligible for promotion consideration even if she had tested during
the 2010 May-June test cycle because plaintiff did not have an EPR on file by the March 31,
201 0 promotion eligibility cutoff date, a necessary prerequisite for promotion consideration.
Second, the AFBCMR remarked that even if plaintiff had been selected for promotion, it was
probable that she would have been disqualified for promotion upon receiving the two letters of
reprimand and the Article l5 nonjudicial punishment.
The AFBCMR's finding of harmless error is supported by the record. Although the Air
Force erred in maintaining plaintiffs personnel records, resulting in her inability to test for
promotion to Staff Sergeant during the 2010 May-June test cycle, plaintiff faced other obstacles
to being promoted-she did not have an EPR on file and she was subsequently disciplined for
several offenses-that rendered the Air Force's errors ultimately irrelevant. The court therefore
concludes that the AFBCMR's decision on this issue was not arbitrary, capricious, contrary to
law, or unsupported by substantial evidence.
2. Duration of Absence Without Leave
Plaintiff next contends that the Air Force ened by considering her absent without leave
after she attempted to tum herself in to military authorities at Moody Air Force Base on
December 21,2010. She specifically relies on paragraph 4.3.1 ofAFI 36-2911, which provides
that "[a]n absentee's retum to military control occurs at the date and hour that" the "absentee
surrenders to . . . military authorities" or "otherwise comes under the control of military
personnel." Plaintiff raised this objection-without expressly citing AFI 36-291l-during her
Article 15 proceedings. However, Lieutenant Colonel Formica apparently was unswayed
because he imposed nonjudicial punishment that was based, in part, on plaintifPs failure to report
to her place of duty from December 20, 2010, through December 28, 2010. Plaintiffdid not
appeal Lieutenant Colonel Formica's decision, and that decision was later declared to be legally
suflicient.
The AIBCMR agreed with the analysis set forth in the June 4, 2013 advisory opinion and
concluded that Lieutenant Colonel Formica did not act arbitrarily or capriciously in imposing
plaintiffs nonjudicial punishment. The AFBCMR's decision is supported by the record. As
previously noted, plaintiff did not appeal her nonjudicial punishment and the decision imposing
the punishment was found to be legally suffrcient. The court therefore concludes that the
AFBCMR's decision on this issue was not arbitrary, capricious, contrary to law, or unsupported
by substantial evidence.
-21-
3. Appearance Before an Administrative Discharge Board
Finally, plaintiff argues that she was improperly denied a hearing before an administrative
discharge board during her involuntary separation proceedings. She relies on paragraph 6.2.2 of
AFI 36-3208, which provides that an airman who is recommended for discharge must be granted
the opportunity to be heard by an administrative discharge board if the airman has six or more
years of combined active and inactive service when involuntary separation proceedings are
initiated. Plaintiff contends, accurately, that she had more than six years of active and inactive
service at the time that Lieutenant Colonel Formica notified her that she was being processed for
administrative separation. She therefore claims that she should have been afforded an
opportunity to appear before an administrative discharge board. Plaintiff is conect.
The AFBCMR recognized that the Air Force ened by not affording plaintiff the
opportunity to appear before an administrative discharge board during her involuntary separation
proceedings, but concluded that the error was harmless, for three reasons. First, the AFBCMR
remarked that plaintilPs misconduct provided a legitimate basis for plaintiffs discharge and the
characterization of plaintifP s service as "under honorable conditions - (general)." Second, the
AFBCMR agreed with the February 18, 2015 advisory opinion that had plaintiff appeared before
an administrative discharge board, the board likely would not have recommended that plaintiff s
service be characterized as honorable due to plaintifPs misconduct. Third, the AFBCMR stated
that plaintiffs discharge was thoroughly reviewed by the inspector general of the Air Force
Recruiting Service, the inspector general of the Air Force, and the inspector general of the tlnited
States Departrnent of Defense, a level of scrutiny not typically afforded to airmen facing
discharge for misconduct.
The AFBCMR's finding that the Air Force's failure to provide plaintiff with an
opportunity to be heard by an administrative discharge board was harmless error, and the
AFBCMR's rationales for that finding, are supported by the record. Plaintiff admitted to
multiple incidents of misconduct in her responses to tle letters of reprimand and her submissions
to Lieutenant colonel Formica during her Article 15 and involuntary separation proceedings.
And, as documented in a report of investigation, three inspectors general performed an extensive
review of plaintilf s allegations of reprisal, ultimately concluding that plaintiffwas discharged
for misconduct, and not as reprisal for making protected communications. Based on these facts,
the AFBCMR was entitled to surmise that a hearing before an administrative discharge board
would not have prevented, or changed the character oi plaintiffs discharge. The court therefore
concludes that the AFBCMR's decision on this issue was not arbitrary, capricious, contrary to
law, or unsupported by substantial evidence.
III. CONCLUSION
Plaintiff has not established that the AFBCMR's decision denying her application for the
conection ofher military records was arbitrary, capricious, contrary to law, or unsupported by
a1
substantial evidence.rT Consequentln the court GRAIITS defendmt's motion for judgment on
the administrative record and DEITIIES plaintiffs crossmotion forjudgment on the
adminisradve record. Because plaintiffhas not asserted any claims upon which she can prevail,
the court DISMIIISES her complaint with prejudice. No msts. The clerk shall enter judgment
ac.cordingly.
ITIS SO ORDERED.
r? Because plaintifrhas not sdisfied her burde,n, the court need not address the propnety
of the relief sought by plaintilf in her complaint
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