Bolton v. Dep't of the Navy Bd. for Corr. of Naval Records

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0007p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM G. BOLTON, ┐

Plaintiff-Appellant, │

│

> No. 18-3284

v. │

│

│

DEPARTMENT OF THE NAVY BOARD FOR CORRECTION │

OF NAVAL RECORDS,

│

Defendant-Appellee. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Youngstown.

No. 4:16-cv-02953—Benita Y. Pearson, District Judge.

Decided and Filed: January 18, 2019

Before: COLE, Chief Judge; SUHRHEINRICH and MOORE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Thomas F. Hull, II, MANCHESTER NEWMAN & BENNETT, Youngstown,

Ohio, for Appellant. Ruchi V. Asher, James R. Bennett, II, UNITED STATES ATTORNEY’S

OFFICE, Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________

SUHRHEINRICH, Circuit Judge.

Plaintiff William G. Bolton petitioned Defendant Department of the Navy Board for

Correction of Naval Records (BCNR) to expunge the summary-court martial from his military

record based on his guilty plea to three military charges related to his arrest for driving while

No. 18-3284 William Bolton v. Dep’t of the Navy Bd. Page 2

drunk on the Marine Corps Base Camp Lejeune, North Carolina. The BCNR held that it lacked

the statutory authority to set aside the findings of a summary court-martial. Bolton challenged

the BCNR’s ruling in federal court. The district court granted the BCNR’s motion to dismiss

Bolton’s amended complaint and he appealed to this court. We AFFIRM.

I. Background

A. Military Justice

The Uniform Code of Military Justice (UCMJ) has four methods for addressing offenses

by servicemen: general courts-martial, UCMJ art. 18, 10 U.S.C. § 818; special courts-martial,

UCMJ art. 19, 10 U.S.C. § 819; summary courts-martial, UCMJ art. 20, 10 U.S.C. § 820, and

non-judicial punishment, UCMJ art. 15, 10 U.S.C. § 815. See Middendorf v. Henry, 425 U.S. 25,

31 (1976). Middendorf explains that

General and special courts-martial resemble judicial proceedings, nearly always

presided over by lawyer judges with lawyer counsel for both the prosecution and

the defense. General courts-martial are authorized to award any lawful sentence,

including death. Art. 18 UCMJ, 10 U.S.C. [§] 818. Special courts-martial may

award a bad-conduct discharge, up to six months’ confinement at hard labor,

forfeiture of two-thirds pay per month for six months, and in the case of an

enlisted member, reduction to the lowest pay grade, Art. 19, UCMJ, 10 U.S.C.

[§] 819.

Id. (footnote omitted).

By contrast, a nonjudicial punishment is less serious than a summary court-martial. See

Manual for Courts-Martial, United States [MCM] pt. V, para. 1.c. (“Nonjudicial punishment

provides commanders with an essential and prompt means of maintaining good order and

discipline and also promotes positive behavior changes in servicemembers without the stigma of

court-martial conviction.”); UCMJ art. 15, 10 U.S.C. § 815. “Article 15 punishment, conducted

personally by the accused’s commanding officer, is an administrative method of dealing with the

most minor offenses.” Middendorf, 425 U.S. at 31–32. Summary court-martial is somewhere in

between. As Middendorf clarifies:

The summary court-martial occupies a position between informal nonjudicial

disposition under Art. 15 and the courtroom-type procedure of the general and

No. 18-3284 William Bolton v. Dep’t of the Navy Bd. Page 3

special courts-martial. Its purpose, “is to exercise justice promptly for relatively

minor offenses under a simple form of procedure.” Manual for Courts-Martial P

79A (1969) (MCM). It is an informal proceeding conducted by a single

commissioned officer with jurisdiction only over noncommissioned officers and

other enlisted personnel. Art. 20, UCMJ, 10 U.S.C. [§] 820. The presiding officer

acts as judge, factfinder, prosecutor, and defense counsel. The presiding officer

must inform the accused of the charges and the name of the accuser and call all

witnesses whom he or the accused desires to call. M P 79D (1). The accused must

consent to trial by summary court-martial; if he does not do so trial may be

ordered by special or general court-martial, or the case will be either dismissed or

referred to a special or general court-martial.

The maximum sentence elements which may be imposed by summary courts-

martial are: one month’s confinement at hard labor; 45 days’ hard labor without

confinement; two months’ restriction to specified limits; reduction to the lowest

enlisted pay grade; and forfeiture of two-thirds pay for one month. Art. 20,

UCMJ, 10 U.S.C. [§] 820.

Id. at 32-33 (footnote omitted); see also Rule For Courts-Martial (RCM) 1301(b) (“Function.

The function of the summary court-martial is to promptly adjudicate minor offenses under a

simple procedure. The summary court-martial shall thoroughly and impartially inquire into both

sides of the matter and shall ensure that the interests of both the Government and the accused are

safeguarded and that justice is done.”).

B. Facts and Procedural History

The following facts are taken from the amended complaint and attached exhibits,

accepted as true for purposes of appeal. Bolton entered the Marine Corps on August 22, 2006.

On August 6, 2010, he was arrested for speeding and driving under the influence on the base

camp. Bolton was issued a U.S. District Court Violation Notice, a DD Form 1805, for driving

while intoxicated, and an Armed Forces Traffic Ticket, a DD Form 1408, for speeding and

driving while intoxicated.1 Bolton was ticketed as driving eighty-two miles per hour in a fifty-

mile per hour speed zone, with a blood alcohol content of 0.24. Bolton signed both tickets and

acknowledged that he was required to appear before an on-base traffic court on August 13, 2010,

as directed on the ticket.

1The DD Form 1805 refers violations to the magistrate judge, and the DD Form 1408 refers traffic

violations for administrative resolution under the base commander’s authority. Marine Corps Order [MCO]

5110.1D para. 4-9 (22 May 2006).

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Bolton was also informed that he would face court-martial under the following articles of

the Uniform Code of Military Justice: (1) Article 89 (Disrespect of a Commissioned Officer);

(2) Article 92 (Unregistered Firearm on Base); and (3) Article 111 (Driving Under the

Influence). These charges were initially brought as a criminal prosecution pursuant to a special

court-martial, but Bolton entered into a pre-trial agreement to resolve them by accepting a non-

criminal summary court-martial,2 based on advice by military defense counsel that all charges,

including those assigned to the federal court, would be disposed of by the court-martial. He was

not informed that his citation would still be heard by the base court.

As a result of this advice, Bolton did not appear at the base traffic court on August 13,

2010. He was convicted of driving under the influence, a violation of North Carolina General

Statutes Section 20-138.1, and his on-base driving privileges were suspended. As a further result

of the base court conviction, Bolton’s driver’s license was also administratively suspended

effective November 4, 2010, by the state of North Carolina for a period of one year. The state of

Ohio followed suit on November 24, 2010, but later removed the suspension.

Bolton’s plea agreement was accepted on August 21, 2010. On August 30, 2010, Bolton

pleaded guilty to all three military charges at the summary court-martial. As a consequence, he

received a reduction in rank (by three pay grades), a forfeiture of $964, and fourteen days

restricted confinement to the 3d Battalion, 2d Marine Regiment.

On October 1, 2010, Bolton completed his active duty service obligation and was

honorably discharged. His discharge lists a reenlistment code of RE-1A, meaning that he was

eligible to reenlist.

In 2015, Bolton filed a petition with the BCNR to have the summary court-martial

expunged from his military record, claiming that he received inadequate legal counsel and was

subject to multiple prosecutions for the same incident through the summary court-martial and the

civilian courts. On September 21, 2016, the BCNR held that it did not have the statutory

2Bolton struck a bargain with the military: withdrawal of charges at a special court-martial (with up to one

year of confinement, a punitive bad conduct discharge, forfeiture of 2/3 pay for one year, and reduction to paygrade

E-1, RCM 201(f)(2)(B)(i)), for non-criminal sanctions (fourteen days’ confinement, a reduction in rank and a

forfeiture of $964, see RCM 1301(d)), at a summary court-martial.

No. 18-3284 William Bolton v. Dep’t of the Navy Bd. Page 5

authority to set aside the findings of a summary court-martial. The BCNR also sua sponte

reviewed the application for clemency, and based on “its review of [the] entire record and

application, . . . [including the] assertions of inadequate legal counsel in [the] court-martial

case,” concluded that “the circumstances and serious nature of your misconduct did not warrant

clemency in the form of changing the sentence awarded by the summary court-martial.”

On December 8, 2016, Bolton filed a complaint in federal district court, and amended it

on April 17, 2017. Bolton alleged that the BCNR’s decision was arbitrary and capricious under

10 U.S.C. § 1558(f)(3) because: (1) it failed to consider his defenses of double jeopardy and

ineffective assistance of counsel; and (2) lacked a complete record. Bolton also complained that

he was not given the chance to address the evidence used against him. He asked the district

court to expunge his court-martial and restore his rank to Corporal.

The district court dismissed the amended complaint on January 29, 2018. The court held

that (1) Bolton did not state a claim for double jeopardy because neither the summary court-

martial nor the base court conviction constituted a “criminal punishment” to which jeopardy

attached; and (2) the BCNR did not have authority to grant Bolton’s requested relief. In a

footnote, the court observed that BCNR considered Bolton’s petition as an application for

clemency and denied it “with explanation.” Bolton appeals.

II. Jurisdiction

Bolton sought judicial review of BCNR’s decision under 10 U.S.C. § 1558(f). Venue

was proper under 28 U.S.C. § 1402 because Bolton resides within the territorial jurisdiction of

the court. The district court granted the BCNR’s motion to dismiss and entered judgment on

January 29, 2018. Bolton filed this timely notice of appeal on March 29, 2018. We have

appellate jurisdiction under 28 U.S.C. § 1291.

III. Standard of Review

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

No. 18-3284 William Bolton v. Dep’t of the Navy Bd. Page 6

570 (2007)). We “consider[ ] the complaint in its entirety,” including “documents incorporated

into the complaint by reference.” Solo v. United Parcel Serv. Co., 819 F.3d 788, 794 (6th Cir.

2016) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). Our

review is de novo. Stein v. hhgregg, Inc., 873 F.3d 523, 528 (6th Cir. 2017).

Federal courts have the authority to review the decision of a military board of correction

under the Administrative Procedure Act (APA). 5 U.S.C. § 701 et seq.; Piersall v. Winter,

435 F.3d 319, 323-25 (D.C. Cir. 2006). Decisions of the BCNR are “subject to judicial review

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

Chappell v. Wallace, 462 U.S. 296, 303 (1983); see also 5 U.S.C. § 706(2)(A),(E) (requiring the

reviewing court to “set aside agency action . . . found to be” “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law” or “unsupported by substantial evidence

. . . .”); and 10 U.S.C. § 1558(f)(3)(A) (authorizing a court to set aside an action of the Secretary

of any military department “only if the court finds that the recommendation or action was—

(A) arbitrary or capricious; (B) not based on substantial evidence; (C) a result of material error of

fact or material administrative error; or (D) otherwise contrary to law”). Notwithstanding, our

review involves “an unusually deferential application of the ‘arbitrary or capricious’ standard” of

the APA, Kreis v. Secretary of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir.1989), because

[t]he statutory provisions at issue here draw a . . . distinction between the

objective existence of certain conditions and the Secretary’s determination that

such conditions are present. The Secretary, acting through the Board, “may

correct any military record of that department when he considers it necessary to

correct an error or remove an injustice,” 10 U.S.C. § 1552(a) (emphasis added),

not simply when such action is necessary to correct an error or to remove an

injustice.

Id. at 1513; see also id. at 1514 (“While the broad grant of discretion implicated here does not

entirely foreclose review of the Secretary’s action, the way in which the statute frames the issue

for review does substantially restrict the authority of the reviewing court to upset the Secretary’s

determination.”). This extra-deferential standard “is calculated to ensure that the courts do not

become a forum for appeals by every soldier dissatisfied” with military action against him, “a

result that would destabilize military command and take the judiciary far afield of its area of

competence.” Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000); see also Orloff v.

No. 18-3284 William Bolton v. Dep’t of the Navy Bd. Page 7

Willoughby, 345 U.S. 83, 94 (1953) (“Orderly government requires that the judiciary be as

scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to

intervene in judicial matters.”)

Although a correction board’s decision to act is uniquely discretionary, it is still required

to explain how it reached its decision. Kreis, 866 F.2d at 1514. When the BCNR denies a

petition to correct a record, it must provide a “brief statement of the grounds for denial,” which

must include “the reasons for the determination that relief should not be granted, including the

applicant’s claims of constitutional, statutory, and/or regulatory violations that were rejected,

together with all the essential facts upon which the denial is based.” 32 C.F.R. § 723.3(e). But

“[a]ll that is required is that the [BCNR’s] decision minimally contain a rational connection

between the facts found and the choice made.” Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir.

1997) (internal quotation marks and citations omitted).

IV. Analysis

A. Statutory Authority

First, Bolton objects to the district court’s conclusion that the BCNR lacks authority to

correct an unjust court-martial. The BCNR’s statutory authority is found in 10 U.S.C. § 1552.

That section authorizes the Secretary of any military department, acting through a board, to

“correct any military record of the Secretary’s department when the Secretary considers it

necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1). Bolton claims this

authority includes the ability to expunge an invalid court-martial like his, citing Baxter v.

Claytor, 652 F.2d 181, 185 (D.C. Cir. 1981) (holding that the BCNR had statutory authority to

review a petitioner’s collateral attack on his court-martial conviction on constitutional grounds),

and Owings v. Secretary of United States Air Force, 447 F.2d 1245, 1249-50 (D.C. Cir. 1971)

(holding that even if the plaintiff-serviceman could make a collateral attack in a civil court of his

court martial, review was limited to constitutional defects and none were presented), in support.

However, both cases predate Congress’s amendment of 10 U.S.C. § 1552 in 1983 with the

addition of subsection (f), which limits the Secretary’s power to correct “records of court-

martial,” and only in two circumstances: (1) “to reflect actions taken” by other military

No. 18-3284 William Bolton v. Dep’t of the Navy Bd. Page 8

“reviewing authorities” or (2) as “action on the sentence of a court-martial for purposes of

clemency.” 10 U.S.C. § 1552(f).3

The language of § 1552(f) mirrors Congress’s desire to prevent military corrections

boards from setting aside court-martials:

The bill adjusts the authority of the administrative boards established pursuant to

10 U.S.C. § 1552 (Boards for the Correction of Military/Naval Records) and

§ 1553 (Discharge Review Boards). In view of the military justice appellate

system these administrative bodies should not render legal judgments on the

results of courts-martial by overturning, as a matter of law, findings or sentences

of courts-martial. This task is the job of the appellate review system established

by the UCMJ. Therefore, the bill limits the authority of these Boards, in

reviewing courts-martial in the future, to acting on courts-martial sentences as a

matter of clemency after exhaustion of remedies under the UCMJ.

S. Rep. No. 98-53, at 11 (1983). Congress wanted to make “it clear that the appellate procedures

under the UCMJ provide the sole forum under title 10, United States Code, for a legal review of

the legality of courts-martial.” Id. at 36. Thus, the purpose of sub-section (f) was to limit the

role of the BCNR, which “primarily involves a determination as to whether the sentences should

be reduced as a matter of command prerogative (e.g., as a matter of clemency) rather than a

formal appellate review.” H.R. Rep. No. 98-549, at 15; see also id. at 20 (“In court-martial

review the functions of the [BCNR] would be primarily limited to clemency actions.”) To that

end, the UCMJ sets forth exhaustive post-trial, appellate procedures to address legal challenges

to courts-martial. See generally UCMJ arts. 59-76b, 10 U.S.C. §§ 859-876b.

Numerous courts have abided by this clear statutory directive. See, e.g., Cossio v.

Donley, 527 F. App’x 932, 935 (Fed. Cir. 2013) (per curiam) (“Just as the Board may not

overturn a conviction, it likewise has no authority to amend sentencing judgments other than

3The statute provides:

With respect to records of courts-martial and related administrative records pertaining to court-

martial cases tried or reviewed under chapter 47 of this title (or under the Uniform Code of

Military Justice (Public Law 506 of the 81st Congress)), action under subsection (a) may extend

only to—

(1) correction of a record to reflect actions taken by reviewing authorities under chapter 47 of this

title (or under the Uniform Code of Military Justice (Public Law 506 of the 81st Congress)); or

(2) action on the sentence of a court-martial for purposes of clemency.

10 U.S.C. § 1552(f).

No. 18-3284 William Bolton v. Dep’t of the Navy Bd. Page 9

through a grant of clemency.”) (citing § 1552(f)); Kendall v. Army Bd. for Corr. of Military

Records, 996 F.2d 362, 364 & n.2 (D.C. Cir. 1993) (noting that Army Board of Corrections for

Military Records “properly decided that it lacked jurisdiction” where the issue was limited to

setting aside the conviction or deleting the record); Martinez v. United States, 914 F.2d 1486,

1488 (Fed. Cir. 1990) (holding that the Army Board for the Correction of Military Records “has

no authority to void court-martial convictions” under § 1552(f)); Cooper v. Marsh, 807 F.2d 988,

991 (Fed. Cir. 1986) (explaining that, before the 1983 amendment, the Army Board of Military

Records lacked authority to overturn a court-martial conviction, and after the amendment is

limited to extent to which it can correct a court-martial record); Cothran v. Dalton, 83 F. Supp.

2d 58, 65 (D.D.C. 1999) (holding that § 1552 could not provide plaintiff with relief “since he

[was] not asking for clemency and ha[d] not obtained reversal of his conviction through military

channels”).

Thus, Bolton’s reliance on Baxter and Owings is unavailing. The Cooper decision makes

this clear. There the Federal Circuit Court of Appeals acknowledged that, prior to 1983, military

record correction boards “could, if it considered it necessary to correct an error or remove an

injustice, completely expunge all reference to a court-martial ever having occurred.” Cooper,

807 F.2d at 991: “Before the amendment [the Army Board of Corrections for Military Records]

lacked the power to overturn a court-martial conviction . . . . After the amendment, it still lacks

that power and is now limited in the extent to which it can correct a court-martial record. Id.

(citing Baxter, 652 F.2d at 184-85).

Bolton argues that United States v. Stoltz, 720 F.3d 1127 (9th Cir. 2013), and Cooper v.

United States, 285 F. Supp. 3d 210 (D.D.C 2018), support his reading of § 1552. Stoltz held that

double jeopardy did not bar a civilian criminal prosecution of a servicemember after he received

a nonjudicial punishment, reversing the district court’s dismissal of the indictment. Stoltz, 720

F.3d at 1131-32. Stoltz remarked that if the servicemember suffered a constitutional violation

during the nonjudicial punishment proceedings the proper remedy would be to vacate the

nonjudicial punishment, id. at 1132-33 and suggested that the Board for Correction of Military

Records has the authority to “correct his military record if it determines that imposition of

[nonjudicial punishment] on [the defendant] was improper,” id. at 1133 (citing § 1552(a)(1)).

No. 18-3284 William Bolton v. Dep’t of the Navy Bd. Page 10

In Cooper, the petitioner alleged that he received inadequate counsel before he elected the

nonjudicial punishment and waived his right to court-martial. Cooper, 285 F. Supp. 3d at 215.

The district court held that the BCNR’s refusal to remove a nonjudicial punishment was arbitrary

because the BCNR failed to provide an adequate explanation of its rationale and remanded for

further consideration. Id. at 216. The cases involve nonjudicial punishments, not court-martials.

Because Bolton requested relief the BCNR cannot grant—expungement of the record of his

summary court-martial, the district court correctly held that Bolton failed to state a claim.

B. APA Claim

Bolton attacks the BCNR decision as arbitrary and capricious. First, he claims that the

summary court-martial was substantively unfair resulting in manifest injustice because he was

(1) punished twice for the same infraction, and (2) unfairly induced to take a plea that forever

bars him from reenlisting. Second, he alleges that the BCNR’s decision was procedurally

unreasonable because the BCNR (1) did not review a complete record, and (2) did not give him

an opportunity to address the evidence it relied upon.

1.

Bolton argues that he was unfairly punished twice—both by the summary court-martial

as well as a base court conviction (which led to a suspension of driving privileges in North

Carolina as well). But the Double Jeopardy Clause “protects only against the imposition of

multiple criminal punishments for the same offense,” Herbert v. Billy, 160 F.3d 1131, 1136 (6th

Cir. 1998) (internal quotation marks and citations omitted); see also Hudson v. United States,

522 U.S. 93, 98-99 (1997) (holding that Double Jeopardy Clause precludes only successive

criminal punishments, but “does not prohibit the imposition of all additional sanctions that could,

in common parlance, be described as punishment”) (internal quotation marks omitted), and

Bolton’s summary court-martial is not a criminal prosecution, see Middendorf, 425 U.S. 25, 34

(1976) (holding that “the summary court-martial provided for in these cases was not a ‘criminal

prosecution’ within the meaning of” the Sixth Amendment); United States v. Reveles, 660 F.3d

1138, 1146 (9th Cir. 2011) (holding that just as a summary courts-martial does not rise to the

level of criminal proceedings per Middendorf, a nonjudicial proceeding, which is an

No. 18-3284 William Bolton v. Dep’t of the Navy Bd. Page 11

administrative way of dealing with the most minor offenses, cannot be characterized as

criminal).4

Bolton’s base traffic court driving suspension is also not a criminal punishment as a

matter of law. Marine Corps regulations authorize commanding officers or their designees to

immediately suspend on-base driving privileges when a service member is suspected of driving

under the influence on a military installation. MCO § 5110.1D, paras 2-4, 2-6c. The base traffic

officer and base traffic court do not have authority to impose criminal punishment; their

authority is limited to administratively suspending or revoking on-base driving privileges. MCO

5110.1D para. 2-6. Furthermore, once a member’s on-base driving privileges are suspended or

revoked, the state agency that issued the member’s license and the North Carolina authorities

must be notified. MCO 5110.1D para. 2-11.c.(2). Because Bolton was issued a DD Form 1408,

he was required to appear before the base traffic officer or have his on-base driving privileges

revoked. Camp Lejeune Base Order P5560.2M (Base Order) p.6-1 para. 2, p. 6-4 para. 5(a)(1).

Bolton’s DD Form 1408 listed the date and location to appear before the base traffic officer.

Bolton signed his acknowledgement. Indeed, this court has rejected the claim that an

administrative driving suspension is the primary evil that the Double Jeopardy Clause was

designed to protect. See Herbert, 160 F.3d at 1137-39 (rejecting argument that administrative

license suspensions issued to individuals arrested for drunk driving prior to criminal prosecution

violated Fifth Amendment Double Jeopardy Clause because administrative license suspensions

were “remedial, not punitive, in nature”); Allen v. Attorney Gen. of State of Me., 80 F.3d 569,

577 (1st Cir. 1996) (holding that criminal prosecution after an administrative suspension of

license for driving under the influence did not violate double jeopardy). Instead, administrative

suspensions are intended to promote public safety by removing drivers who drive under the

influence. United States v. Imngren, 98 F.3d 811, 816 (4th Cir. 1996). In fact, the Fourth Circuit

held that prosecution for driving under the influence on a military reservation following

suspension of driving privileges did not violate double jeopardy. Id. at 817 (reversing the district

court’s dismissal of federal criminal charges on the grounds that the previous suspension of the

4It is well-established that double jeopardy bars a subsequent civilian criminal prosecution for the same

offense after a general or special court-martial. See United States v. Stoltz, 720 F.3d 1127, 1128-29 (9th Cir. 2013)

(citation omitted). Double jeopardy does not preclude civilian prosecution after a nonjudicial punishment. Id.

No. 18-3284 William Bolton v. Dep’t of the Navy Bd. Page 12

defendants’ driving privileges pursuant to army regulations constituted a prior punishment under

the Double Jeopardy Clause). In short, Bolton’s driving suspensions were an administrative

measure because the base traffic court did not have the authority to convict Bolton criminally,

and the double jeopardy clause was not triggered.5

2.

Next Bolton claims that he was “induced” to take a deal, which resulted in a de facto ban

against re-enlistment, and that he was inadequately advised regarding his ability to re-enlist.

There are several problems with this argument. First, Bolton did not raise the alleged bar against

re-enlistment in his application before the BCNR. He has therefore waived this issue for review.

Wilson Air. Ctr., LLC v. F.A.A., 372 F.3d 807, 813 (6th Cir. 2004) (“The administrative waiver

doctrine, commonly referred to as issue exhaustion, provides that it is inappropriate for courts

reviewing agency decisions to consider arguments not raised before the administrative agency

involved.”); Kendall, 996 F.2d at 366 (“Indeed, the military justice system is sufficiently

analogous to state justice systems to apply identical waiver rules to bar claims raised for the first

time during a collateral attack on a court-martial.”). More important, Bolton would have to

pursue any ineffective assistance claim through the UCMJ appellate and post-conviction review

procedures, not before the BCNR.6 See United States v. Martinez, 914 F.2d 1486, 1488 (Fed.

Cir. 1990) (failure to raise constitutional claim in the military court system barred serviceman

from raising it in federal court absent a showing of cause and prejudice); Kendall, 996 F.2d at

5Finally, Bolton’s reliance on United States v. Crank is misplaced. There the defendants were prosecuted

in federal court after waiving their right to court-martial in favor of nonjudicial punishment. Absent the waiver,

double jeopardy would have limited punishment to either the military justice system through a court-martial or a

civilian federal court, but not both. United States v. Crank, Nos. 1:11-cr-222, 1:11-cr-223, 1:11-cr-224, 1:11-cr-225,

1:11-cr-226, 2012 WL 913626, at *1 (E.D. Va. Mar. 16, 2012). The district court held that the defendants’ waiver

had not been voluntary because they effectively had no access to any lawyer and were not made aware of the

consequences of their court-martial waivers, id. at * 6-7, and dismissed the charges under its broad equitable powers,

id. at *8. Here, unlike Crank, Bolton was never prosecuted in federal court.

6As the BCNR explains in its brief, every summary court-martial is reviewed initially by a judge advocate.

RCM 1112(a)(3) (“under regulations of the Secretary concerned, a judge advocate shall review: . . . (3) [e]ach

summary court-martial”); UCMJ art. 64, 10 U.S.C. § 864. The judge advocate must explain, in writing, whether the

court-martial had jurisdiction over the accused, whether the charge stated an offense, and whether the sentence was

legal. RCM 1112(d). The judge advocate must address all assignments of error by the accused and make a

recommendation to the convening officer. RCM 1112(d); 10 U.S.C. § 864(a). After this review is completed, a

summary court-martial can be challenged under article 69(b) of the UCMJ within two years. See UCMJ art. 69(b),

10 U.S.C. § 869(b); see also RCM 1201(b)(3)(A).

No. 18-3284 William Bolton v. Dep’t of the Navy Bd. Page 13

366. This is so because the BCNR “has no authority to void court-martial convictions.”

Martinez, 914 F.2d at 1488; see also 10 U.S.C. § 1552(f). He never sought military review.

Finally, we note that Bolton received an Honorable Discharge and nothing in his discharge

records suggests that he is categorically barred from serving in the military.7

3.

Bolton contends that his sentence was procedurally flawed because “[t]he record upon

which the [BCNR] issued its decision was incomplete and failed to include all relevant

information in favor of [him].” He also contends that the BCNR failed to articulate a satisfactory

explanation for its decision to deny him clemency.

Bolton complains that “[t]here is no evidence that [his] full service record was

transmitted to the [BCNR],” which would have included a written commendation from his

Battalion Commander for a Navy Commendation Medal (which he did not ultimately receive), as

well as “the rest of Bolton’s distinguished service record.” The BCNR responds that it “is not an

investigative body.” 32 C.F.R. § 723.2(b). Rather, “the [BCNR] relies on a presumption of

regularity to support the official actions of public officers and, in the absence of substantial

evidence to the contrary, will presume that they have properly discharged their official duties.”

32 C.F.R. § 723.3(e)(2). Instead, “[a]pplicants have the burden of overcoming this

presumption.” Id. Thus, the BCNR says that it was Bolton’s burden to supply any relevant

missing information.8

It is not clear to this court how Bolton would know whether the Department of the Navy

transferred a complete file to the BCNR. In fact, the record sent indicates that it is a “redacted

7Bolton acknowledges that “the reduction in rank, combined with his age, is a de facto bar to reenlistment.”

8Bolton relies on Morrison v. Secretary of Defense, 760 F. Supp. 2d 15 (D.D.C. 2011). There the district

court denied the defendant’s motion to dismiss the plaintiff’s claim that the BCNR failed to consider his averments

that his military career was exemplary. Id. at 20. It does not support the proposition that a correction board is

required to consider an applicant’s allegations of exemplary service when that argument has not been properly

presented to the board. Indeed, it suggests the opposite. See id. (stating that “what matters is whether the BCNR

considered evidence of that excellence, if presented, when deciding whether to change Plaintiff’s records”)

(emphasis added).

No. 18-3284 William Bolton v. Dep’t of the Navy Bd. Page 14

copy of the administrative files.” 9 Nonetheless, Bolton did not request clemency in his petition.

Bolton’s brief in support of correcting the military record asked the BCNR to remove “a

Summary Court Martial for violations of UCMJ, Arts 89, 92, and 111 . . . because he was

inadequately informed of his legal rights and consequences of the plea agreement,” which

resulted in double punishment. Bolton’s failure to make this argument before the BCNR means

that it is waived. See Wilson Air. Ctr., 372 F.3d at 813; Kendall, 996 F.2d at 366.

The BCNR considered clemency sua sponte. In “determin[ing] that the circumstances

and serious nature of [Bolton’s] misconduct did not warrant clemency in the form of changing

the sentence awarded by the summary court-martial,” the BCNR focused on a similar prior

incident in August 2007, when Bolton was counseled about his underage drinking and lack of

judgment, and his failure to reform. The BCNR noted that at that time Bolton was “provided

recommended corrective action, advised of available assistance, and warned of the consequence

of further deficiencies.” The BCNR then observed that Bolton’s civil conviction and the incident

that led to the summary court-martial in 2010 was for reckless driving while intoxicated. Thus,

the BCNR provided an adequate explanation for its decision to deny clemency based on factors it

deemed most relevant. We cannot say that this decision was arbitrary or capricious. See

10 U.S.C. § 1552(a)(1) (stating that a military record be corrected “when the Secretary considers

it necessary to correct an error or remove an injustice”) (emphasis added).

Although the BCNR did not expressly mention “the rest of Bolton’s distinguished service

record,” the military record provided to the BCNR included a list of Bolton’s “Decorations

Medals, Badges Citations and Campaign Ribbons Awarded or Authorized” in his certificate of

release from active duty. And, at the outset of its decision the BCNR stated that it “considered

. . . [Bolton’s] application, together with all material submitted in support thereof, [Bolton’s]

naval record, and applicable statutes, regulations, and policies.” Thus, Bolton has not

demonstrated that the record before the BCNR was inadequate. Furthermore, the BCNR notified

9Bolton points out that the instruction on the application to the BCNR leads applicants to believe that their

full-service records are reviewed, because instruction number six states in pertinent part that “[a]ll evidence not

already included in your record must be submitted by you.” (See R. 16-3, ID# 212).

No. 18-3284 William Bolton v. Dep’t of the Navy Bd. Page 15

Bolton that it would reconsider its decision if he submitted new and material evidence within one

year of its decision. He did not take that opportunity. Thus, his lament lacks merit.

4.

Bolton also complains that he was denied an opportunity present additional evidence at

an oral hearing, namely evidence of a diagnosed sleep disorder that apparently caused Bolton to

be counseled for underage drinking in 2007. But an applicant does not have a right to an oral

hearing; the BCNR has discretion to rule on a petition without one. See 32 C.F.R. § 723.3(e)(1).

In any event, Bolton could have presented this evidence in writing to the BCNR. Again,

Bolton’s argument is unpersuasive.

C. Denial of Clemency

Bolton also argues that the BCNR’s denial of his request for clemency was arbitrary and

capricious. The BCNR responds that an agency action is not reviewable if it is “committed to

agency discretion by law,” 5 U.S.C. § 701(a)(2), and clemency is traditionally understood as one

of those decisions committed to executive discretion. See Ohio Adult Parole Auth. v. Woodard,

523 U.S. 272, 276 (1998) (plurality opinion) (reaffirming its view that pardon and commutation

decisions are committed to the authority of the executive and not appropriate subjects for judicial

review); United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2d Cir. 1950)

(clemency “is a matter of grace, over which courts have no review”) (Learned Hand, J.); United

States v. Pollard, 416 F.3d 48, 57 (D.C. Cir. 2005); United States v. Tu, 30 M.J. 587, 591

(A.C.M.R. 1990). Notwithstanding, as Bolton points out in his reply brief, although Congress

has narrowed the scope of a correction board’s ability to correct the record of a court-martial, it

did not remove judicial review of such board’s decisions more generally under the APA. See

Wilhelm v. U.S. Dep’t of Navy Bd. for Corr. of Naval Records, No. 2:15-CV-0276-TOR,

2016 WL 3149710, at * 3 (E.D. Wash. June 3, 2016). Moreover, “section 1552 empowers the

[BCNR] to grant clemency pursuant to the same ‘error’ or ‘injustice’ standard as its other

decisions.” Id. (quoting 10 U.S.C. § 1552); see also Penland v. Mabus, 181 F. Supp. 3d 100

(D.D.C. 2016) (reviewing the BCNR’s denial of clemency under the APA).

No. 18-3284 William Bolton v. Dep’t of the Navy Bd. Page 16

Bolton suggests that clemency was warranted based upon his double jeopardy and

ineffective assistance of counsel claims, but he fails to identify any law or standard establishing

that these bases rendered the BCNR’s denial of clemency arbitrary or capricious under the APA.

Even so, the BCNR did consider clemency (noting that it had the authority to reduce the sentence

awarded as a matter of clemency), and “determined that the circumstances and serious nature of

[Bolton’s] misconduct did not warrant clemency in the form of changing the sentence awarded

by the summary court-martial.” Bolton has failed to show that this decision was irrational. The

record reflects that he was charged with multiple offenses, including driving under the influence,

disrespecting a commissioned officer, and possessing an unregistered firearm. He admits that he

committed these infractions. Although he argues that the latter two charges “arose directly out of

the DUI arrest,” they constitute entirely different conduct. Even if similar conduct, double

jeopardy is not a problem because Congress intended separate punishments for these offenses.

See White v. Howes, 586 F.3d 1025, 1027, 1035 (6th Cir. 2009); see also Helvering v. Mitchell,

303 U.S. 391, 399 (1938) (“Congress may impose both a criminal and a civil sanction in respect

to the same act or omission”). In short, the BCNR’s decision was not arbitrary and capricious

because it provided a rational connection between the facts and the denial of clemency. See

Frizelle, 111 F.3d at 176.

Under the extra-deferential standard we are obliged to apply in matters military, so as

“not to interfere with legitimate [Navy] matters,” Orloff, 345 U.S. at 94, we reject Bolton’s

appeal of the BCNR’s decision and affirm the decision of the district court.

V. Conclusion

The district court correctly held that Bolton failed to state a plausible claim for relief

under Fed. R. Civ. P. 12(b)(6). AFFIRMED.