Nicely v. United States

In the United States Court of Federal Claims

No. 16-1264C

Filed: March 27, 2020

JOSIAH NICELY, Keywords: Military Pay Act, 37

U.S.C. § 204(a); Motion to

Plaintiff, Dismiss; Military Whistleblower

Protection Act, 10 U.S.C. § 1034;

v.

Service Member Correction

UNITED STATES, Boards; 10 U.S.C. § 1552(a)(1);

Civilian; Ineffective Assistance

Defendant. of Counsel.

Charles W. Gittins, Law Offices of Charles W. Gittins, P.C., Middletown, VA, for Plaintiff.

Joseph A. Pixley, Trial Attorney, Douglas K. Mickle, Assistant Director, Robert E. Kirshman,

Jr., Director, and Joseph H. Hunt, Assistant Attorney General, Commercial Litigation Branch,

Civil Division, United States Department of Justice, with whom were Lt. P. Tyson Marx, Judge

Advocate General Corps, United States Navy, Washington D.C., for Defendant.

MEMORANDUM OPINION AND ORDER

TAPP, Judge.

Plaintiff, Josiah E. Nicely (“Nicely”), a former United States Marine Corps (“USMC”)

Captain, brings this military pay action against the United States alleging that he has been

wrongly discharged from the USMC and seeking back pay and injunctive relief, pursuant to the

Military Pay Act, 37 U.S.C. § 204(a). (See generally Compl., ECF No. 1). Nicely served on

active duty in the USMC for more than ten years, until October 7, 2011, when he was

involuntarily discharged. (Compl. at 1). Before the Court are Nicely’s Motion for Judgment on

the Administrative Record (“MJAR”) following remand to the Board of Correction for Naval

Records (“BCNR”), (Pl.’s Second MJAR, ECF No. 58), and Defendant, the United States’,

Partial Motion to Dismiss and Cross-Motion for Judgment on the Administrative Record, (Def.’s

Cross-Mot., ECF No. 61).

In his Complaint, filed on October 4, 2016, Nicely alleges that he was wrongfully

discharged from the USMC as a result of proceedings conducted by the BCNR. (Compl.). In

these proceedings, the BCNR upheld the finding of the Board of Inquiry (BOI) relating to the

imposition of Nicely’s non-judicial punishment (NJP) and concurred with the BOI’s

recommendation that Nicely be separated from the USMC with a General (Under Honorable

Conditions) characterization of service. (Id.). Nicely argues that the findings and conclusions of

the BCNR were arbitrary, capricious, and contrary to law because: (1) the Assistant Secretary of

the Navy (ASN) considered grounds for separation for which Nicely was not provided prior

notice and an opportunity to be heard; (2) Nicely’s involuntary discharge was an adverse

personnel action prohibited by the Military Whistleblower Act; (3) Nicely was required to plead

guilty and sign a stipulation of fact as a condition to imposing the NJP; and (4) the BCNR failed

to remove an adverse fitness report concerning Nicely’s removal as a Public Affairs Officer. (Id.

at 14–17). Nicely seeks reinstatement to active duty, back pay, removal of documents from his

Official Military Personnel File, and any other relief the Court deems just and proper. (Id. at 17).

On June 16, 2017, the Court remanded the case back to the BCNR to review several

issues, such as whether regulations were complied with in conducting Nicely’s separation from

the USMC, whether a reprisal action was taken, whether one of Nicely’s fitness reports was

prepared properly, and whether the BOI improperly considered certain evidence. (ECF No. 15).

On March 22, 2018, the BCNR decision on remand was filed with the Court. (ECF No. 31). On

July 31, 2018, Nicely filed a Motion for Judgment on the Administrative Record. (Pl.’s First

MJAR, ECF No. 45). On March 8, 2019, the Court again remanded the case to the BCNR to

address Nicely’s contention that the BCNR was improperly constituted by having retired military

personnel sit on the board, rather than “civilians.” (ECF No. 54). On June 24, 2019, the second

BCNR decision on remand was filed with the Court. (See ECF No. 57). On July 30, 2019, Nicely

filed his Motion for Judgment on the Administrative Record After Remand. (ECF No. 58). On

October 1, 2019, the United States filed its Response and Partial Motion to Dismiss and Cross-

Motion for Judgment on the Administrative Record. (ECF No. 61). The parties timely filed their

responses and replies. (See Pl.’s Resp. and Reply, ECF No. 62; Def.’s Reply, ECF No. 67). This

matter is now fully briefed and ripe for decision.

For the reasons set for below, Nicely’s motion is DENIED and the Government’s

motions are GRANTED. In addition, the Court DENIES AS MOOT Nicely’s First Motion for

Judgment on the Administrative Record, (ECF No. 45).

Background 1

Nicely originally enlisted in the USMC in 1997. (AR002). After an initial tour of service,

the USMC discharged Nicely so he could attend the United States Naval Academy. (Id.).

Following graduation, the USMC commissioned him as an officer where Nicely served without

significant event until 2009, when the USMC issued a nonpunitive letter of caution relating to

inappropriate online activity. (Id.).

On January 22, 2010, Nicely was arrested by local police in Beaufort, South Carolina,

and charged with speeding and driving under the influence (“DUI”). 2 (AR006; Compl. at 2).

Upon his release from the jail the following morning, military police took custody of Nicely and

transported him to Marine Corps Air Station (MCAS) Beaufort, where Nicely was stationed as a

public affairs officer (PAO). (AR002). Because of these events, Nicely failed to report to work at

his prescribed time. (AR205, AR064). Upon arrival, Nicely’s superior sent him home on the

belief that Nicely was still intoxicated and thus unable to perform his duties. (Pl.’s Second

MJAR at 3; AR120). On or about February 8, 2010, Nicely was relieved of his duties as a PAO

1

The facts recited in this Opinion are taken from the Administrative Record (“AR”); Nicely’s Complaint; and the

parties’ briefs.

2

The details of Nicely’s arrest are not relevant to determination of the parties’ claims.

2

and reassigned to training. (AR125). On March 4, 2010, local authorities reduced the DUI charge

to Reckless Driving, to which Nicely pleaded guilty and paid a fine. (AR002; Compl. at 5).

Although his plea to Reckless Driving resolved his liability in the local proceedings,

Nicely also faced consequences arising from his status as a member of the military. When Nicely

was relieved of his duties as a PAO and reassigned to training with a different Reporting Senior

(RS), the USMC began generating a fitness report that covered a period from August 4, 2009 to

January 25, 2010 (the “January 25, 2010 Fitness Report”). (See AR302–11; Marine Corps Order

P1610.7F, paragraph 3003(3)). Nicely received this fitness report on April 7, 2010, which was

marked as “adverse” and stated: “During reporting period, MRO [Marine Reported On] was

apprehended by civil authorities for alcohol related incident. This apprehension and

demonstration of poor judgment caused a loss of confidence in abilities to perform duties as

PAO.” (AR135; AR302–11). A “directed comment” added that Nicely was “detained overnight.”

(AR306). After Nicely submitted a rebuttal statement alleging, inter alia, that command was

prohibited from reporting the alcohol related incident in his fitness report until after his local

proceedings were complete and that he was not intoxicated when he returned to military custody,

the fitness report was returned to his chain of command several times to consider Nicely’s

allegations. (AR139, 146, 155, 538, 541).

On February 22, 2010, Nicely received a notification of intent to impose NJP based on

one charge under the Uniform Code of Military Justice (“UCMJ”), Article 111 (driving under the

influence of alcohol). (AR127). 3 Initially, on advice of both military and civilian counsel, Nicely

refused to accept NJP for the conduct surrounding his arrest and instead demanded trial by court-

martial. 4 (AR129; Compl. at 4). On March 22, 2010, the USMC preferred formal court martial

charges against Nicely for violations of UCMJ Article 89 (failure to report), Article 111 (driving

under the influence of alcohol), and Article 112 (drunk on duty). (AR135–36). Eventually,

Nicely reversed course and, on March 17, 2010, notified the Staff Judge Advocate that he was

willing to accept NJP in lieu of a court martial, if offered again. (Pl.’s MJAR at 5; AR263–64;

AR300). Following the Article 32 pre-trial hearing on Nicely’s court-martial charges, Nicely

again offered to accept NJP in lieu of a court-martial, which was rejected. (AR266). However,

after Nicely was arraigned on these charges, Nicely was offered an NJP, instead of a court-

martial, conditioned on Nicely’s pleading guilty to all charges and submitting a stipulation of

fact acknowledging guilt to all charges. (AR267).

Thereafter, Nicely, on advice of both military and civilian counsel, entered into a formal

pre-trial agreement in which the USMC agreed to dismiss the court martial charges, with

prejudice, if Nicely agreed to sign a stipulation of fact detailing the circumstances of his arrest

3

During this time and as a result of the DUI charge, Nicely’s base driving privileges were temporarily suspended

pursuant to Air Station Order P5110.1F, Chapter 5, paragraph 5000.4. (AR120). Nicely appealed this suspension

without success. (See AR133).

4

NJP is one of the options available to address offenses committed by service members. Dumas v. United States,

620 F.2d 247, 250–53 (Ct. Cl. 1980). Set out in Article 15 of the UCMJ, the non-judicial punishment process is the

least formal option and is conducted by the accused's commanding officer. Id. at 251. The proceeding is not criminal

in nature and no formal evidentiary standards apply. Id. If the commanding officer is convinced that the service

member committed the offense, the commanding officer may impose certain limited punishments. Id. at 251–52. An

accused service member has the right to elect to proceed with an NJP instead of with a formal court martial. Id. at

251; see also 10 U.S.C. § 815.

3

and plead guilty at an NJP proceeding to three offenses under the UCMJ: unauthorized absence,

driving under the influence, and drunk on duty. (AR62–63, 317–18). Nicely signed the pre-trial

agreement on May 18, 2010, which certified, inter alia, that: (1) he voluntarily entered pleas of

guilty to the three UCMJ charges; (2) he fully understood the offer and agreement; (3) he could

seek to withdraw his guilty plea at any time before punishment; (4) his counsel fully advised him

of the meaning and effect of his guilty plea and he fully understood and comprehended the

meaning, effect, and consequences of his plea; and (5) he must enter into a reasonable stipulation

of fact. (AR62–63). In accordance with this agreement, Nicely and his lawyers drafted the

stipulation of fact, in which Nicely admitted he “failed to go to his appointed place of duty at the

time prescribed” and “operated his passenger car while drunk.” (AR317–18; AR378). Nicely

also stipulated that he “was unfit to perform [his] duties because of the amount of alcoholic

beverages he had consumed earlier that morning,” and “under such circumstances, [his] conduct

was to the prejudice of good order and discipline and was of a nature to bring discredit upon the

service.” (AR318).

On May 28, 2010, the Commanding General approved the pre-trial agreement and

dismissed the court-martial charges without prejudice, rather than with prejudice. (AR142). On

June 3, 2010, Nicely signed the first endorsement on the notification of the Commanding

General’s intent to impose NJP, stating that he would accept NJP and no longer demanded trial

by court-martial. (AR143, 629). On June 9, 2010, prior to the NJP hearing, Nicely wrote to the

Commanding General accepting responsibility for his actions:

Simply stated, I drove while intoxicated in Beaufort, South Carolina on

Friday, 22, January 2010. I had been drinking at a local bar, and when it came

time to leave, I thought I was fine to drive home when in fact I was not. It

was a stupid mistake, and I regret it immensely. I made a decision that

endangered the safety of others, and for that I am truly sorry.

(AR388).

The NJP proceeding was held on June 9, 2010. (AR321). At the hearing, Nicely stated

that: (1) he did not desire a personal representative; (2) he understood his rights; (3) he did not

desire trial by court-martial and was willing to accept NJP; (4) he had been fully advised of his

legal rights pertaining to the NJP hearing; and (5) he did not have any questions about his rights.

(AR321). After discussing the factual circumstances underlying the UCMJ charges, the

Commanding General repeatedly expressed impatience with what he perceived to be Nicely’s

refusal to accept responsibility for his conduct. The Commanding General noted that Nicely’s

statements and conduct between the arrest and NJP hearing were markedly different than what

was presented in Nicely’s June 9 letter, and explained “[a]s officers, particularly as

commissioned officers, we are all expected to take immediate responsibility for what we do or do

not do . . . you did not do the right thing and when you were caught red handed you looked for a

way out.” (AR330). Ultimately the Commanding General imposed NJP, consisting of a punitive

letter of reprimand and a fine of $1,500 pay per month for two months. (AR329–30). The

Commanding General also explained that he would recommend that Nicely be required to show

cause to a Board of Inquiry (BOI), stating:

4

You were playing games with the system. You were playing games with your

commander. You were playing games with me. That is not in consonance

with the behavior that is expected as an officer in the United States Marine

Corps . . . you just . . . got done telling me you perjured yourself with this

note on 9 [June] which concerns me, which is why you are going to show

cause.

(AR330–31).

The completion of Nicely’s NJP proceeding triggered a “Directed by the Commandant of

the Marine Corps” DC fitness report (“DC fitness report”). (AR356–65; Marine Corps Order

(“MCO”) P1610.7F, paragraph 3004(2)). This report was also “adverse.” (AR356). On July 8,

2010, Nicely submitted a rebuttal statement to his punitive letter of reprimand and a rebuttal

statement to the DC Fitness Report. (AR345; AR370). Among other allegations, Nicely alleged

that he signed the stipulation of facts “under duress imposed by [his] command.” (AR370–72).

Nicely later clarified that “the word [duress] was not meant to imply that any person . . .

communicated direct threats against me in order to force my signing of the stipulation of fact,”

but rather “[o]verwhelming, multi-tiered levels of undue pressure to comply with and succumb to

pleading guilty and entering into a stipulation of fact . . . If I had not signed the stipulation of

fact, NJP would not have been an option.” (AR152). A resulting investigation by the Inspector

General (“IG”) did not substantiate Nicely’s claim of duress. (AR367).

On August 16, 2010, Nicely submitted a request for leave, starting at noon that day and

ending on August 18, 2010. (AR153). Nicely was scheduled to talk with the Command IG

regarding his duress comments the afternoon of August 18, 2010 but did not return from his

leave in time and missed the interview. (AR153). Nicely received a non-punitive letter of caution

for this incident. (AR155). Nicely formally appealed his NJP on September 3, 2010, seeking to

have the Punitive Letter of Reprimand removed from his personnel file and that the NJP be set

aside as unjust and disproportionate to the offenses. (AR155–57). That appeal was denied on

November 18, 2010. (AR155–57; AR601).

On November 18, 2010, Nicely was notified that he was being required to show cause at

a BOI based on substandard performance of duty and misconduct, moral or professional

dereliction. (AR392). The notification stated that these bases for separation were evidenced by

“[c]omission of a military or civilian offence which could be punished by 6 months or more,”

“[f]ailure to properly discharge duties expected of officers of the member’s grade and

experience,” and “[f]ailure to demonstrate acceptable qualities of leadership required of an

officer of the member’s grade.” (AR392; AR589–90). The letter also referred to Nicely’s NJP

report, an email concerning Nicely’s unauthorized absence from work on August 18, 2010, and

the IG report into Nicely’s inappropriate comments on a public blog, which resulted in a non-

punitive letter of caution (NPLOC). (AR392; Pl.’s Second MJAR at 12–13).

The BOI convened from January 12–13, 2011. (AR159; AR446). The BOI reviewed the

evidence and heard arguments from both the Government and Nicely, who took the stand and

answered questions under oath. (AR446–86). Ultimately, the BOI determined that “[w]ith the

exception of a failure to properly discharge the duties expected of an officer of his grade and

experience, . . . a preponderance of the evidence proved the allegations,” and recommended that

5

Nicely be separated with a general (under honorable conditions) discharge. (AR486, 590). Nicely

provided a rebuttal to the BOI report to the Deputy Commandant (Manpower & Reserve

Affairs), which raised a litany of challenges, including that the BOI improperly considered

Nicely’s “protected communications” to the IG and reprised against Nicely for exercising his

rights to appeal. (See AR436–39).

On February 17, 2011, Nicely submitted a Military Whistleblower Protection Act

(MWPA) reprisal complaint to the Department of Defense IG hotline, which the Marine Corps

IG was tasked with investigating. See 10 U.S.C. § 1034; (AR159). The IG found that “Capt

Nicely committed misconduct that was punishable under the UCMJ prior to any [protected

communication]. The supporting documentation shows the command’s intent to take corrective

action under the UCMJ in response to the misconduct. Capt Nicely may perceive this action as

reprisal, but the evidence demonstrates it was not.” (AR164). The IG then analyzed all eleven

instances in which Nicely felt unfavorable personnel action was taken against him and concluded

that no unfavorable actions were taken against Nicely for exercising his rights to appeal.

(AR165–171).

On April 26, 2011, the Commanding General Marine Corps Installations East (“CG MCI-

E”), addressed the challenges set forth in Nicely’s rebuttal, found them to be without merit, and

ultimately approved the BOI’s recommendation to separate Nicely with a general (under

honorable conditions) characterization of service. (AR430–34; AR590). On May 4, 2011, the

Commanding General of Marine Corps Bases Atlantic concurred with the CG MCI-E and

forwarded the matter to the Commandant of the Marine Corps, who agreed that Nicely’s

concerns were without merit. (AR573; AR575–76). On August 30, 2011, the Assistant Secretary

of the Navy for Manpower and Reserve Affairs (“ASN (M&RA)”), approved the BOI’s

recommendation for separation. (AR576). On October 7, 2011, the USMC discharged Nicely

with a General (Under Honorable) characterization of service. (AR192).

On November 4, 2012, after his involuntary separation, Nicely filed an application for

correction of his military record with the BCNR, in which he challenged several aspects of his

various military proceedings and involuntary separation. (AR244–58). In his application, Nicely

requested that the BCNR correct his military record by: (1) directing the removal of the January

25, 2010 Fitness Report; (2) setting aside Nicely’s administrative separation from the USMC for

misconduct, as well as the BOI decision that led to that separation; (3) reinstating Nicely to

active duty and providing back pay; and (4) ordering such additional relief as may be required to

afford adequate relief. (AR258).

On December 6, 2013 and February 13, 2015, the Judge Advocate Division provided

advisory opinions to the BCNR, in which it opined that Nicely did not present evidence to show

the existence of probable material error or injustice with respect to his separation from the

Marine Corps. (AR205; AR175). In addition, the BCNR obtained advisory opinions from the

Performance Evaluation Review Board with respect to Nicely’s request to remove the January

25, 2010 Fitness Report. (AR224; AR222). The Performance Evaluation Review Board stated

that Nicely’s record was correct because “[t]he report was occasioned by [Nicely’s] relief for a

loss of trust and confidence because of an incontrovertible incident of arrest by civilian

authorities involving alcohol, and the necessity to relieve him of his sensitive billet as the Public

Affairs Officer (PAO).” (AR224).

6

On August 13, 2015, the BCNR found that the arguments and evidence submitted by

Nicely were insufficient to establish the existence of material error or injustice and therefore

denied Nicely’s petition for relief. (AR194). On October 4, 2016, Nicely filed suit in this Court.

(See Compl.).

On June 16, 2017, the Court remanded Nicely’s case to the BCNR for additional review.

(ECF No. 15). Specifically, the Court remanded the case for the BCNR to, inter alia: (1) review

Nicely’s record to determine if regulations were complied with in conducting his separation and

state how the IG report factors into the BCNR’s decision relating to Nicely’s allegation that his

separation was a reprisal action; (2) determine whether the ASN M&RA action involuntarily

separating Nicely was in accordance with applicable regulations; and (3) consider, comment

upon, and/or correct any substantive claim of regulatory violations related to the January 25,

2010 Fitness Report, submission and inclusion in the BOI of a NPLOC, and the consideration

and use of Nicely’s allegedly protected statements. (See ECF No. 15).

On March 20, 2018, the BCNR determined that the evidence Nicely submitted was

“insufficient to establish the existence of probable material error or injustice” and accordingly

recommended that the ASN deny Nicely relief. (ECF No. 31). Specifically, the BCNR found that

“the Marine Corps, DC (M&RA), and ASN (M&RA) did not unlawfully retaliate against

[Nicely],” that “there was an independent basis for the actions identified as unauthorized

personnel actions (UPAs) and that there was no indication that any actions occurred as a result of

what [Nicely] considered to be protected communications.” (ECF No. 31 at 8). Further, the

BCNR determined that consideration of the NPLOC by the BOI was harmless error because the

facts underlying the NPLOC were already properly part of the record. (Id. at 11). Finally, the

BCNR found no error with respect to the January 25, 2010 Fitness Report or the NJP

proceedings. (Id. at 5–6, 12).

On December 12, 2018, the Court again remanded the case to the BCNR, this time to

consider Nicely’s claim that retired military members are precluded from sitting on military

correction boards under 10 U.S.C. § 1552(a). 5 (See ECF No. 52). On April 29, 2019, a three-

member panel of the BCNR with no previous military service considered the case again. (ECF

No. 57 at 3). The BCNR found that none of the provisions in the BCNR’s authorizing statute and

governing regulations “expressly define ‘civilian,’ and thus do not expressly exclude retired

military members from those civilians who may serve as Board members.” (Id. at 3). The Board

also “noted not only the longstanding practice of all Services allowing these individuals to serve,

but also the practical, administrative problems associated with barring retired military members

from service on these Boards, as many, if not a majority, of the BCNR’s members are retired

military.” (Id.). The BCNR further explained that “[b]ecause Congress, in section 1552, did not

expressly exclude retired Service member employees from those ‘civilians’ comprising the

correction boards, . . . it is more likely that Congress intended the term’s common, everyday

meaning—that is, those ‘not serving on active duty in the military.’” (Id. at 4). Ultimately, the

BCNR determined that “the use of retired military members was not in error or unjust,” and

denied Nicely’s application for relief. (Id.).

5

Nicely’s claim in this regard was first raised in his rebuttal letter to the BCNR in connection with the first remand.

(See Def.’s Mot. at 20).

7

Analysis

I. RCFC 12(b)(1) Motion to Dismiss

“Subject-matter jurisdiction may be challenged at any time by the parties or by the court

sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (citing Fanning,

Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)). This Court’s jurisdiction to

entertain claims and grant relief depends on the extent to which the United States has waived

sovereign immunity. United States v. Testan, 424 U.S. 392, 399 (1976). The burden of

establishing the Court’s subject matter jurisdiction rests with the plaintiff. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992).

This Court’s jurisdiction is generally delimited by the Tucker Act, 28 U.S.C. § 1491. The

Tucker Act limits this Court’s jurisdiction to suits “against the United States founded either upon

the Constitution, or any Act of Congress or any regulation of an executive department, or upon

and express or implied contract with the United States, or for liquidated or unliquidated damages

in cases not sounding in tort.” 28 U.S.C. § 1491(a). The Tucker Act itself is only a jurisdictional

statute that does not create any independent substantive rights enforceable against the United

States for money damages. See, e.g., United States v. Mitchell, 463 U.S. 206, 216 (1983); United

States v. Testan, 424 U.S. 392, 398 (1976). Therefore, a plaintiff must identify a “money-

mandating” source of law to support a claim for money damages. See Jan’s Helicopter Serv.,

Inc. v. FAA, 525 F.3d 1299, 1309 (Fed. Cir. 2008). If the claim is not based on a “money-

mandating” source of law, then it lies beyond the jurisdiction of this Court. Metz v. United States,

466 F.3d 991, 997 (Fed. Cir. 2006).

When faced with a motion to dismiss for lack of subject matter jurisdiction, pursuant to

RCFC 12(b)(1), the court must assume that all undisputed facts alleged in the complaint are true

and must draw all reasonable inferences in the plaintiff’s favor. Scheuer v. Rhodes, 416 U.S. 232,

236 (1974); see also Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). The movant,

however, may challenge the truth of any facts upon which jurisdiction depends. See Raymark

Indus. v. United States, 15 Cl. Ct. 334, 338 (1988). If it does, the plaintiff must come forward

with a prima facie showing of jurisdiction. Id. The plaintiff cannot rely only on its allegations.

See Hornback v. United States, 52 Fed. Cl. 374, 377 (2002).

Controverted factual allegations may be subject to factfinding by the court and may be

established by extrinsic evidence including affidavits and deposition testimony. Cedars-Sinai

Medical Centers v. Watkins, 11 F.3d 1573, 1584 (Fed. Cir. 1993); Reynolds v. Army & Air Force

Exchange Serv., 846 F.2d 746, 747–48 (Fed. Cir. 1988). The party seeking to invoke the Court’s

jurisdiction must establish disputed jurisdictional facts by a preponderance of the evidence.

Taylor v. United States, 303 F.3d 1357, 1358 (Fed. Cir. 2002).

Military discharge and pay claims pursuant to 37 U.S.C. § 204 are generally within the

jurisdiction of the Court of Federal Claims. See Martinez v. United States, 333 F.3d 1295, 1303

(Fed. Cir. 2003) (en banc). 6 Nicely also contends, however, that the United States violated the

6

“The Tucker Act generally covers Military Pay Act claims where the plaintiff alleges that “because of the unlawful

discharge, the plaintiff is entitled to money in the form of the pay that the plaintiff would have received but for the

unlawful discharge.” Rana v. United States, 664 Fed. Appx. 943, 947 (Fed. Cir. 2016) (citing Martinez v. United

8

Military Whistleblower Protection Act (MWPA) by involuntarily separating him from service

based largely upon what Nicely claims were protected communications. (Compl, at 15, ECF 1).

The United States, in response, correctly notes that the MWPA is not a money-mandating statute

and thus argues that the Court lacks jurisdiction to entertain Count II of Nicely’s Complaint. The

Court agrees.

The Federal Circuit has considered whether a violation of the MWPA can serve as the

basis for a cause of action in this Court and found that it does not. See Bias v. United States, 722

Fed. Appx. 1009, 1013 (Fed. Cir. 2018); Rana v. United States, 664 Fed. Appx. 943, 947 (Fed.

Cir. 2016) (affirming dismissal of MWPA claim for lack of jurisdiction). Specifically, the

Federal Circuit determined:

The MWPA provides for a comprehensive administrative review scheme

over claims of retaliation—specifically, the correction of military records and

disciplinary actions as remedies for prohibited actions—but no private right

of action for money damages, which could be enforced in the Court of Federal

Claims. Indeed, no judicial review is available under the MWPA because

Congress precluded alternative fora by providing a specific form of redress

in the statute.

Bias, 722 Fed. Appx. at 1013. Thus, under Federal Circuit precedent, this Court lacks jurisdiction

to resolve MWPA claims, such as Nicely’s standalone claim as pleaded in Count II. 7 Id.; Rana,

664 Fed. Appx. at 947. Although Nicely relies on other cases to support his position, none of

those cases are precedential in this Court or particularly analogous to the facts at hand.

For example, in Hisgen v. Fanning, 208 F.Supp. 3d 186 (D.D.C. 2016), an officer

brought an action against the Secretary of the Army seeking to overturn a decision of the Army

Board for Correction of Military Records, which confirmed that the officer violated the MWPA

by reprising against a lieutenant colonel who made a protected communication. Although the

court determined that a violation of the MWPA occurred, there was no occasion to consider

whether that violation was “money-mandating” because that court was not constrained by the

limitations of the Tucker Act. See id. at 197–200.

States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc)). Jurisdiction to hear such cases, however, may be

constrained by other matters such as statutes of limitation. See 28 U.S.C. § 2501 (“Every claim of which the United

States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years

after such claim first accrues.”); see also John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 134 (2008)

(holding that § 2501 is jurisdictional).

7

Nicely inexplicably contends that he “neither explicitly or implicitly alleged the [MWPA] as the jurisdictional

basis for his claim, nor did he claim that the MWPA was a money mandating statute.” (Pl.’s Resp. and Reply at 4).

Despite invoking the Tucker Act at the outset of the Complaint, Count II invokes the MWPA no less than three

times in the caption and three paragraphs which comprise Count II. (Compl. at 15). Fairly read, Count II seeks to

state a cause of action under the MWPA. That conclusion is supported by a reading of Section IV of Nicely’s motion

seeking judgment on the administrative record. (Pl.’s Second MJAR at 21–31; see also Pl.’s First MJAR, ECF No.

45 at 20–30). Nicely’s argument commences with the MWPA a concludes with a plea for remand to the BCNR with

instructions to apply the MWPA and implementing regulations to Nicely’s claims. (Pl.’s Second MJAR at 31).

9

Likewise, Nicely’s reliance on Rodriguez v. Penrod, 857 F.3d 902 (D.C. Cir. 2017), is

misplaced. Rodriguez addressed whether a service member could directly appeal an adverse

decision by a board of review by filing with the appellate court. Id. at 903. Ultimately, the D.C.

Circuit remanded the matter to the district court. Id. at 907. At the outset of its opinion, however,

the circuit court noted an important point relevant here:

We begin, as we must, “with the question of our jurisdiction.” Jurisdiction in

the federal courts of appeals hinges on two things: “[t]he Constitution must

have given to the court the capacity to take [the case], and an act of Congress

must have supplied it.” Rodriguez indisputably has been personally and

directly aggrieved by the Defense Department's decision on his claim, so the

question in this case is one of statutory, not constitutional, jurisdiction. That

predicate statutory inquiry is essential to our power to decide this case:

“without statutory authorization,” “federal courts have no jurisdiction.”

(Id. at 906) (citations omitted) (emphasis in original).

While Hisgen and Rodriguez certainly involved MWPA claims, neither of those cases are

binding on this Court. Moreover, because the Hisgen and Rodriquez courts were not constrained

by the limitations of the Tucker Act, there was no occasion for those courts to consider whether a

violation of the MWPA was “money-mandating.” Under Federal Circuit precedent, however, “no

judicial review is available under the MWPA,” Bias, 722 Fed. Appx. at 1013, and the MWPA is

not money mandating, Rana, 664 Fed. Appx. at 948. 8 Accordingly, since no statutory

authorization exists for judicial review of the MWPA and the MWPA is not money mandating,

dismissal of the standalone claim contained within Count II of Nicely’s Complaint, pursuant to

RCFC 12(b)(1), is proper.

II. RCFC Rule 52.1 Motion for Judgment on the Administrative Record

Where the parties have filed cross-motions for judgment on the administrative record, as

here, RCFC 52.1 provides a procedure for parties to seek the equivalent of an expedited trial on a

“paper record, allowing fact-finding by the trial court.” Bannum, Inc. v. United States, 404 F.3d

1346, 1356 (Fed. Cir. 2005). Unlike summary judgment standards, genuine issues of material

fact do not preclude a judgment on the administrative record. See id. at 1355–56. Questions of

fact are resolved by reference to the administrative record. Id. at 1356.

In reviewing the determinations of a military corrections board, a plaintiff must

demonstrate “by cogent and clearly convincing evidence,” Wronke v. Marsh, 787 F.2d 1569,

1576 (Fed. Cir. 1986), that the military board's decision was “arbitrary, capricious, unsupported

by substantial evidence, or contrary to law.” Metz, 466 F.3d at 998. It is well settled that

“responsibility for determining who is fit or unfit to serve in the armed services is not a judicial

province; and that courts cannot substitute their judgment for that of the military departments

when reasonable minds could reach differing conclusions on the same evidence.” Heisig v.

8

Because the Court considers the absence of judicial review from the MWPA statute to be an adequate expression

of legislative intent, coupled with unambiguous case law applying the MWPA, the Court does not address the

United States’ contention that the legislative history demonstrates that Congress did not intend to provide for

judicial review.

10

United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983) (citations omitted). Moreover, “military

administrators are presumed to act lawfully and in good faith like other public officers, and the

military is entitled to substantial deference in the governance of its affairs.” Dodson v. United

States, 988 F.2d 1199, 1204 (Fed. Cir. 1993).

Here, both parties moved for judgment on the administrative record. Nicely presents four

claims of error. First, he alleges that the composition of the original BCNR was improper

because some of the individual members were retired military officers. (Pl.’s Second MJAR at

16–21). Second, Nicely contends that his discharge from service was facilitated using protected

communications and thus violated the MWPA. (Id. at 21–31). Third, Nicely, claims the BCNR

erred in concluding that Nicely’s January 25, 2010 Fitness Report was procedurally correct and

thus properly considered. (Id. at 32–38). Lastly, Nicely argues that his NJP and forfeiture of pay

was improper. (Id. at 38–46). Nicely’s second argument, involving the MWPA, is resolved

above. Each of the remaining claims are addressed separately.

a. Service of Retired Military Members on the BCNR

The enabling legislation for Service Record Correction Boards provides, in relevant part:

The Secretary of a military department may correct any military record of the

Secretary's department when the Secretary considers it necessary to correct

an error or remove an injustice. Except as provided in paragraph (2), such

corrections shall be made by the Secretary acting through boards of civilians

of the executive part of that military department.

10 U.S.C. § 1552(a)(1). It is the term “civilians,” used in the second sentence of the statute,

which Nicely focuses on.

According to Nicely, retired military officers are not “civilians” and therefore, his

original BCNR panel, which contained three retired military officers, was improperly constituted

and its decision must be set aside. (See Pl.’s Second MJAR at 16–21). The BCNR addressed this

contention and found it to be without merit, stating “read in context, the meaning of ‘civilian’ in

section 1552(a)(1) plainly includes retired Service members.” (ECF No. 57 at 3). 9 The BCNR

explained that “[b]ecause Congress, in section 1552, did not expressly exclude retired Service

member employees from those ‘civilians’ comprising the correction boards, . . . it [is] more

likely that Congress intended the term’s common, everyday meaning—that is, those ‘not serving

on active duty in the military.’” (Id. at 3–4). After review, the Court does not find the BCNR’s

decision in this regard to be erroneous.

When reviewing an agency’s interpretation of a statute, the Court must first determine

“whether Congress has directly spoken to the precise question at issue.” Chevron, U.S.A, Inc. v.

Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). If Congress has spoken directly on the

question, then the inquiry ends and the Court “must give effect” to Congress’s unambiguous

intent. Id. at 842–43. The Court may determine that Congress has expressed unambiguous intent

9

The Court remanded the matter back to the BCNR for the second time in light of the United States’ consent

motion, (ECF No. 51), which noted that Nicely “arguably” raised this issue before the original BCNR panel, but the

panel failed to reach a decision on the merits.

11

by reviewing “the statute’s text, structure, and legislative history, and apply[ing] the relevant

canons of interpretation.” Gazelle v. Shulkin, 868 F. 3d 1006, 1010 (Fed. Cir. 2017) (quoting

Heino v. Shinseki, 683 F.3d 1372, 1378 (Fed. Cir. 2012)). If Congress has not spoken directly on

the question at issue, the Court considers “whether the agency’s [interpretation] is based on a

permissible construction of the statute.” Chevron, 467 U.S. at 843. The agency’s “interpretation

governs in the absence of unambiguous statutory language to the contrary or unreasonable

resolution of language that is ambiguous.” United States v. Eurodif S.A., 555 U.S. 305, 316

(2009) (quoting United States v. Mead Corp., 533 U.S. 218, 229–230 (2001)).

Here, as the BCNR correctly noted, the term “civilians” is not expressly defined in the

BCNR’s authorizing statute and governing regulations. See 10 U.S.C. § 1552; (ECF No. 57 at 3).

Thus, Congress has not spoken directly on the question at issue. Accordingly, the Court must

determine whether the BCNR’s interpretation of the term “civilian,” which it found “plainly

includes retired Service members,” is based on a permissible construction of the statute. See

Chevron, 467 U.S. at 843; (ECF No. 57 at 3). As explained below, the Court finds that the

BCNR’s interpretation is based on a permissible construction of the statute.

Interpretation of a statute “begins with the language employed by Congress.” Gazelle,

868 F.3d at 1010. “In the absence of an express definition, we presume that Congress intended to

give . . . words their plain and ordinary meanings.” Id. at 1010–11 (citing Asgrow Seed Co. v.

Winterboer, 513 U.S. 179, 187 (1995)). Ordinary meaning “may be informed through the use of

dictionaries.” Id. at 1011 (citing United States v. Rodgers, 466 U.S. 475, 479 (1984)). If

Congress intended for a term “to carry a specialized—and indeed, unusual—meaning,” they

“would have said so expressly.” Hamilton v. Lanning, 560 U.S. 505, 517 (2010). Further, it is

axiomatic that “identical words used in different parts of the same act are intended to have the

same meaning.” Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995) (citations omitted).

Dictionaries generally define the term “civilian” as “one not on active duty in the armed

services.” See, e.g., Civilian, Merriam-Webster, https://www.merriam-webster.com (March 26,

2020); Webster’s New World College Dictionary (4th ed. 2010) (“any person not an active

member of the armed forces); Oxford English Dictionary (2d ed. 1989) (“A person who is not

professionally employed in the armed forces; a non-military person”); Black’s Law Dictionary

(11th ed. 2019) (“A person not serving in the military). These definitions differentiate between

persons “on active duty in the armed services” and those who are not, which is consistent with

how the terms “member[s] of the armed forces,” and “active duty” are defined in Title 10 of the

United States Code.

In Title 10, the term “member[s] of the armed forces” is defined as: “(A) a member of the

armed forces who is serving on active duty, (B) a member of the National Guard who is serving

on full-time National Guard duty, or (C) a member of a Reserve component while performing

inactive-duty training.” 10 10 U.S.C. § 976(a)(1). Title 10 also defines the term “active duty” as

meaning “full-time duty in the active military service of the United States.” 10 U.S.C. §

101(d)(1). Together, these definitions support the BCNR’s conclusion that the term “civilian”

“plainly includes retired Service members.” As the very name suggests, a “retired service

member” is not on “active duty,” or a member of the National Guard or Reserve component. And

10

This statute deals with membership in military unions.

12

there is no indication that Congress intended the term “civilian” to carry a specialized or unusual

meaning. See Hamilton, 560 U.S. at 517.

Furthermore, as the United States observes, elsewhere in Title 10, Congress differentiated

between “civilians” and members of the military. For example, Title 10 prohibits appointment of

the Secretary of Defense from “civilian life,” subject to the qualification that he or she not be

appointed “within seven years after relief from active duty as a commissioned officer from a

regular component of the armed force.” 10 U.S.C. § 113(a). Similar qualifiers exist for the

Secretaries of the Navy and Army. See 10 U.S.C. §§ 5013(a), 7013(a) (providing for

appointment from “civilian life” and imposing five-year qualifier after relief from active duty).

Congress imposed similar restrictions to the appointment from “civilian life” of judges to the

United States Courts of Appeal for the Armed Forces. 11 See 10 U.S.C. § 942(b)(1), (b)(2)(B)(4)

(prohibiting appointment of judges within seven years after retirement from active duty). Thus, it

was reasonable for the BCNR to conclude that Congress intended the term “civilian” to have an

ordinary meaning that includes former and retired military members.

The BCNR’s interpretation is also not precluded by case law as no published case has

expressly defined the term “civilian” in the context of § 1552. While Nicely relies principally on

Proper v. United States, 154 F.Supp. 317 (Ct. Cl. 1957), and Weiss v. United States, 408 F.2d

416 (Ct. Cl. 1969), neither case lends credence to the argument that retired service members are

prohibited from serving on boards of correction. 12 As the Federal Circuit has explained, the point

of those cases is that "Congress wanted final decisions on records corrections to be made by

civilians in each military department, not uniformed officers.” Strickland v. United States, 423

F.3d 1335, 1342 (Fed. Cir. 2005).

In Proper, a retired Army general serving as a special assistant to the Secretary of the

Army, sent a memorandum to the Assistant Secretary, advising the Secretary to reject the

correction board’s recommendation to grant relief for service-connected disability. See Proper,

154 F.Supp. at 324–26. When the Secretary followed the advisor’s advice and rejected the

Board’s recommendation, the issue became whether final authority over the correction of records

vested with the Secretary or with the correction boards. Id. at 326. The Court of Claims held:

In the instant case the Secretary of the Army, in denying plaintiff’s

application for correction of his military record, did not act through the Army

11

In this regard, Nicely states “[a]n active military retiree who is not on active duty is in ‘civilian life’” before

contradicting himself three sentences later by saying “[a]ctive duty retired military members are part of the military

service.” (See Pl.s’ Resp. at 13). Adding to the confusion, in the paragraph following these sentences, Nicely states

“[f]ormer military personnel who have separated are not members of the military service, nor are retired Reserve

military officers. They are removed from their military service and, as such removed from life-long active duty….”

(Id.). As such, it is unclear how Nicely distinguishes between “civilians” and “members of the military service.”

12

Nicely’s also relies on dicta from a plethora of other cases, which similarly provide no support for his position as

they address narrow issues of military retired pay, the now-repealed prohibition on dual office holding, and court-

martial jurisdiction of former military members. (See Pl.s’ Second MJAR at 20–21) (citing United States v. Tyler,

105 U.S. 244 (1881) (military retired pay), Hotinsky v. United States, 154 Ct. Cl. 443 (1961) (dual office holding),

Lemly v. United States, 75 F.Supp. 248 (Cl. Ct. 1948) (military retired pay), McCarty v. McCarty, 453 U.S. 210

(1981) (division of military nondisability pay following divorce), and United States v. Dinger, 76 M.J. 552 (N-M.

Ct. Crim. App. 2017) (court-martial)).

13

Board of civilian officers or employees as required by [10 U.S.C. § 1552].

On the contrary, the Secretary of the Army wholly disregarded the finding of

the civilian board that plaintiff had been totally and permanently disabled in

line of duty at the time of his release to inactive duty on April 27, 1948, and,

apparently acting through a retired regular Army officer, refused to correct

plaintiff’s record in the manner recommended by the civilian board.

Id. Thus, the reference to the retired general as a member of the military was not essential to

resolution of the precise pending issue before the court, which involved the role of the

corrections board. See id. at 326–27.

Similarly, in Weiss, a Judge Advocate General (JAG) of the Navy, a uniformed military

officer, drafted an advisory opinion on behalf of the Assistant Secretary recommending that the

Secretary of the Navy reject the BCNR’s decision recommending correction of a service

member’s records. Weiss, 408 F.2d at 417–18. The Assistant Secretary submitted the opinion, as

written, to the Secretary who endorsed the opinion and overruled the BCNR. Id. at 420–21. The

Court of Claims determined that the Secretary's rejection of the BCNR’s recommendation was

unjustified because the recommendation was fully supported by the record and the Secretary had,

instead, followed the advice of a military officer. Id. The court also explained that: “[t]he thrust

of the Proper opinion is that a Secretary of a military department cannot overrule the

recommendations of a civilian correction board on the advice of a military officer unless the

findings of the board are not justified by the record before it.” Id. at 421.

In Strickland, the Federal Circuit discussed both Proper and Weiss in deciding whether

final decision-making authority over the correction of military records vested with the boards of

correction or with the Secretary. Id. at 1336, 1341–42. The Federal Circuit explained that the

point of those cases is simply that “Congress wanted final decisions on records corrections to be

made by civilians in each military department, not uniformed officers.” Id. at 1343. Notably,

Strickland did not say that “Congress wanted final decisions on records corrections to be made

by civilians, not those who had been uniformed officers.”

Thus, Nicely’s reliance on Proper and Weiss is misplaced. These cases do not address

whether retired service members can serve on correction boards but rather, whether the Secretary

of a military branch may disregard the substantiated and well-reasoned findings of the

corrections board based on the advice of uniformed military officers. Congress has not expressly

spoken on what it means to be a “civilian” in the context of 10 U.S.C. § 1552, and the BCNR

interpreted the term based on a permissible reading of the statute. See Chevron, 467 U.S. at 843.

Therefore, the BCNR did not act contrary to law or regulation by allowing retired military

members to serve as Board members.

b. BCNR’s Use of Contested Fitness Report

Nicely next contends the BCNR’s conclusion that the January 25, 2010 Fitness Report

was “administratively and procedurally correct” was contrary to regulation. (Pl.’s Second MJAR

at 32). This report, covering a period from August 4, 2009 to January 25, 2010, was issued on

April 7, 2010, while court-martial charges were pending, and reported that Nicely had been

apprehended by civilian law enforcement and “detained overnight for an alcohol related

14

incident.” (AR302–311). Principally, Nicely contends the report should not have referenced his

apprehension by local authorities for an alcohol related incident because, according to Nicely,

MCO P1610.7F ¶ 4003c(1) provides “[w]here…disciplinary action is pending as a result of the

alcohol related incident, the fitness report is to be submitted without reference to the incident and

is to be reported in a subsequent DC fitness report.” (Pl.’s Second MJAR at 32–35). Nicely also

contends the January 25, 2010 Fitness Report was not procedurally correct because it was

revised 15 times and the Reviewing Officer failed to adjudicate the factual discrepancies that

Nicely raised after it was issued. (Id. at 32–33).

The BCNR addressed these contentions and held that Nicely’s January 25, 2010 Fitness

report “did not contain information prohibited by MCO P1610.7F; the [Reviewing Officer] did

not fail to adjudicate the factual discrepancies you raised; and the fitness report was

administratively and procedurally correct.” (ECF No. 31 at 5). Regarding Nicely’s claim that the

January 25, 2010 Fitness Report was required to be submitted “without reference to the [alcohol-

related] incident,” the BCNR addressed this claim and found it to be without merit. Specifically,

the BCNR “determined the fitness report was not used to document a disciplinary incident or

even a pending disciplinary action,” explaining:

It documented the events that resulted in your relief from duty as the Public

Affairs Officer, a high visibility billet in the local community, due to a loss

of trust and confidence caused by an incontrovertible incident of arrest be

civilian authorities which involved alcohol. The Board noted your transfer to

another billet under the supervision of a different RS necessitated a fitness

report in accordance with MCO P1610.7F.

(ECF No. 31 at 5). In this regard, the BCNR did not err. 13

The USMC Performance Evaluation System provides for the periodic reporting,

recording, and analysis of the performance and professional character of non-commissioned and

commissioned Marine Corps officers. 14 Fitness reports provide a history of a USMC service

member’s performance and potential, and are governed by MCO P1610.7F. Under this

regulation, fitness reports are required, among other occasions, when a Marine Officer transfers

to a different department or branch (TR), or there is a change of Reporting Senior (CH). MCO

P1610.7F ¶¶ 3003.3, 3004.4.

Here, the USMC removed Nicely from his billet as a PAO and transferred to a different

department with a different Reporting Senior, which, under MCO P1610.7F, ¶ 3003.3, triggered

the need for a fitness report—i.e., the January 25, 2010 Fitness Report. This fitness report was

marked as adverse and stated: “During reporting period, MRO was apprehended by civil

13

Nicely purports to quote the BCNR as stating “[t]here was no legal error concerning the CH Fitness Report.” (Id.)

(emphasis deleted). This statement appears at AR190 rather than AR70 as cited by Nicely. RCFC 52.1(c)(1)

provides that motions seeking judgment on the administrative record “must include in [the] motion or supporting

memorandum a statement of facts that draws upon and cites to the portions of the administrative record that bear on

the issues presented to the court.”

14

All services have a system by which they evaluate performance of their military personnel. MLMCJ § 5:6 The

resulting “[e]valuation reports serve as a basis to determine a servicemember’s suitability for promotion, schooling,

assignments, command and retention.” Id.

15

authorities for alcohol related incident. This apprehension and demonstration of poor judgment

caused a loss of confidence in abilities to perform duties as PAO.” (AR302, 306). Clearly, this

fitness report concerned Nicely’s removal from his billet as a PAO based on the “alcohol related

incident,” which “caused a loss of confidence in [his] abilities to perform duties as a PAO.” The

fitness report did not describe the charges Nicely faced for this incident, civilian or military, only

that he was “apprehended” for an “alcohol related incident.” As the “alcohol-related incident”

was the reason for Nicely’ transfer and change of Reporting Senior, it is perfectly logical that the

fitness report generated by this event would describe, in general terms, the reason for this action.

While Nicely acknowledges the “event that caused [the January 25, 2010 Fitness Report]

was the ‘alcohol related incident’ that resulted in [Nicely’s] apprehension,” he ignores MCO

P1610.7F ¶¶ 3003.3, 3004.4. (Pl.’s Resp. and Reply at 14). Instead, Nicely alleges that the fitness

report fell under paragraph 3009.2, concerning “alcohol-related incidents,” and claims that

“where disciplinary action is pending as a result of the alcohol related incident, the fitness report

is to be submitted without reference to the incident,” citing to paragraph 4003c(1) and (4). (See

Pl’s Second MJAR at 33–34; Pl.’s Resp. and Reply at 14). 15

Paragraph 3009.2 sets forth the procedures for reporting “alcohol-related incidents,” and

provides, in relevant part:

a. Alcohol-Related Incidents. An alcohol-related incident occurs when

the commander confirms, by a preponderance of the evidence, that the willful

ingestion of alcohol contributed to an event in which the MRO [Marine

Officer] committed a violation of the UCMJ or a comparable civilian offense.

(1) If the alcohol-related incident results in disciplinary action, report

the incident and subsequent disciplinary action per the provisions of

paragraph 4003.6c via DC report.

MCO P1619.7F ¶ 3009.2a. Paragraph 4003c concerns the reporting of disciplinary actions and

provides, in relevant part:

(1) Disciplinary action is defined as nonjudicial punishment (NJP), court-

martial conviction, or civil criminal conviction.

...

(4) Report NJP upon a finding of guilt unless the MRO appeals the findings.

(a) If the MRO appeals the findings, the RS should delay submitting

the DC report until resolution of the appeal.

15

Nicely claims “[t]he RS expressly identifies the ‘apprehension’ for suspected DUI as the triggering event for the

relief for cause and the fitness reporting occasion,” citing AR83–84, 305–06. (Pl.’s Resp. and Reply at 15).

However, no such statement appears on those pages in the Administrative Record and, likewise, the January 25,

2010 Fitness Report does not state that Nicely was apprehended “for suspected DUI.” (See AR83–84, 305–06).

16

(b) If a CH or TR report comes due prior to the resolution of the

appeal, the RS should submit the CH or TR report without reference to

the NJP.

(c) If any other reporting occasion comes due prior to the resolution

of the appeal, the RS should forego submission of that report and

reference the occasion in section I of the pending DC report.

MCO P1619.7F ¶ 4003c.

It must be noted that MCO P1610.7F ¶ 4003c does not state, as Nicely claims, that where

disciplinary action is pending as the result of an alcohol related incident, the fitness report is to

be submitted “without reference to the incident.” (See Pl.’s Second MJAR at 34; Pl.’s Resp. and

Reply at 16). Rather, ¶ 4003c(4)(b) plainly states: “If a CH or TR report comes due prior to

resolution of the appeal, the [Reporting Senior] should submit the CH or TR report without

reference to the NJP.” Paragraph 4003c(4) relates only to reporting NJPs and, as the United

States correctly observes, this provision is inapplicable because Nicely was not “appealing” the

NJP when the January 25, 2010 Fitness Report was issued. The NJP proceeding was held on

June 9, 2010, long after the January 25, 2010 Fitness Report was issued in April 2010, and

Nicely did not appeal the NJP until September 2010. Clearly then, there was no violation of

paragraph 4003c.

Although Nicely also relies on paragraph 4012.4(b)(5), this provision similarly provides

no support for his argument. Paragraph 4012.4(b)(5) provides, in relevant part:

5. Unacceptable Comments. The [rating official] will not comment on

the following situations:

a. Reference to pending nonjudicial punishment, court-martial,

civil/criminal action [].

(1) Discussion of these matters, if the MRO was found

innocent or nonculpable, would be premature and prejudicial, thereby

unfairly penalizing the Marine.

MCO P1610.7F ¶ 4012.4(b)(5) (emphasis in original).

At the time Nicely received the adverse fitness report in April 2010, neither the civilian

proceedings nor the NJP proceedings were “pending,” and the final report did not reference

either of these proceedings. Although court-martial charges were pending against Nicely in April

2010, the fitness report likewise did not reference the court-martial. All the fitness report stated

was “MRO was apprehended by civil authorities for alcohol related incident.” As this clearly

does not reference any “pending nonjudicial punishment, court-martial, [or] civil/criminal

action,” the Reporting Senior did not violate paragraph 4012.4(b)(5). Accordingly, the Court

finds that the BCNR did not err in concluding that the January 25, 2010 Fitness Report “did not

contain information prohibited by MCO P1610.7F.”

17

Turning next to Nicely’s contention that the Reviewing Officer failed to resolve certain

contested issues of fact within the Fitness Report, the BCNR addressed these contentions and

found them without merit. (See ECF No. 31 at 6). Nicely identifies three factual disputes which

he alleges the Reporting Senior failed to adjudicate: (1) alleged violations of MCO P1610.7F ¶

4003.6; (2) Nicely’s claim that he was not detained “overnight”; and (3) the statement by the

Reporting Senior that “upon return to military control . . . MRO appeared before me still under

the effects of alcohol,” which Nicely disputes. (Pl.’s Second MJAR at 36–38). The BCNR

“determined that the [Reviewing Officer] did not fail to address, much less fail to resolve, the

factual disputes,” explaining that Nicely’s fitness report statements “did not, with one exception,

assert matters of fact but instead asserted legal conclusions.” (ECF No. 31 at 6). Regarding the

one matter of fact, the BCNR found that the issue to be trivial an “certainly not one requiring the

[Reviewing Officer’s] adjudication.” (Id.). The Court finds no error in this determination.

Factual disagreements between a Marine Officer and Reporting Senior are governed by

MCO P1610.F ⁋ 5004.1, which provides in pertinent part:

1. In the event the MRO attaches a statement that disagrees with the

[Reporting Senior] as to matters of fact, the [Reviewing Officer] must:

a. Take action to resolve inconsistencies and disagreements.

b. Solicit input from the [Reporting Senior], appropriate staff officers,

commanders, and senior enlisted advisors when their comments help

to clarify factual differences between the report and the MRO's

rebuttal.

Nicely’s first claim of unadjudicated fact, concerning violations of MCO P1610.7F ¶

4003c, asserts a legal conclusion, not a dispute of fact, and is addressed above. Nicely’s second

claim, that the Reporting Senior’s statement that Nicely “appeared before me still under the

effects of alcohol,” was “unsubstantiated” likewise asserts a legal conclusion, not a dispute of

fact. Finally, the Court agrees that Nicely’s dispute over whether he was detained “overnight” is

trivial at best. This fact was not material to any charges or discipline that Nicely faced but rather,

simply provided ancillary background information about Nicely’s “apprehension.” Because

materiality is a factor to be considered by when reviewing a service member’s claims, the Court

cannot conclude that final resolution of these factual characterizations was required. See Wade v.

United States, 716 Fed. Appx. 943, 947 (Fed. Cir. 2017) (“On review of an Application for

Correction of Naval Records, the Board for Correction of Naval Records (“Board”) will not

disturb the separations board’s findings and conclusions unless the applicant demonstrates the

existence of probable material error or injustice.”) (emphasis added) (citing 32 C.F.R. §

723.3(e)(2)).

Thus, the Court agrees with the BCNR that the Reviewing Officer addressed and resolved

all non-trivial factual disputes. To the extent the Reviewing Officer failed to address Nicely’s

dispute about being detained “overnight,” any error in this regard was harmless. See Wagner v.

United States, 365 F.3d 1358, 1361 (Fed. Cir. 2004); Boyle v. United States, 101 Fed. Cl. 592,

601 (2011) (“If an error or injustice is found, and it is determined to be more substantial than

harmless error, the Secretary of the cognizant branch can change the military record to correct

18

the error or injustice.”) (emphasis added). Accordingly, the BCNR’s determination in this regard

was not arbitrary, capricious, contrary to law, or unsupported by substantial evidence.

Finally, Nicely argues, without support, that the BCNR erred in finding the January 25,

2010 Fitness Report to be “administratively and procedurally correct,” because the report was

changed 15 times in response to Nicely’s claims of perceived errors. (See Pl.’s Second MJAR at

32–33). According to Nicely, “[t]he uniquely error-prone preparation of the report demonstrates

the lack of rigor that attended the accuracy of the fitness report, undermined the presumption of

regularity in its preparation, and should have informed the BCNR’s judgment concerning its

preparation and propriety in his [Official Military Personnel File].” (Id. at 33). Tellingly, Nicely

fails to cite any statute or regulation prohibiting the amendment of fitness reports. Moreover, as

Nicely acknowledges, the changes were made “in response to errors identified by [Nicely] in his

responses to the fitness report comments.” (Id. at 32–33). Thus, the reason for the changes were

to address Nicely’s contentions of error and, as with nearly all governmental documents, each

change needed to be forwarded up the chain of command. Consequently, Nicely has failed to

establish that the BCNR’s determination was arbitrary, capricious, or contrary to law.

c. BCNR’s Consideration of Article 15 NJP

Nicely’s last claim of error interweaves a litany of facts and challenges nearly every

aspect of his various proceedings. At its root are Nicely’s persistent allegations that he never

received the benefit of his pre-trial (court-martial) plea agreement, his due process rights were

violated by signing a stipulation of fact that he did not believe to be true, his trial counsel “was

laboring under a conflict of interest,” and the Commanding General issued a factually inaccurate

punitive Letter of Reprimand. (Compl. at 7–8, 15–16; Pl.’s Second MJAR at 38–46). According

to Nicely, in failing to correct these alleged errors the BCNR acted arbitrarily, capriciously, and

contrary to law. (Compl. at 16).

With regard to Nicely’s claim that he never received the benefit of his pre-trial

agreement, the BCNR addressed this allegation and determined there was no legal error. (ECF

No. 31 at 12). The BCNR explained:

[Y]ou were represented by counsel, had been read your rights, and were on

notice that you were not required to make a statement. The Board also noted

that you received the whole benefit of the [pre-trial agreement] when your

case was adjudicated at NJP vice [General Court Martial], the charges were

never again preferred and referred to a court-martial, the applicable statute of

limitations has elapsed, and you are no longer subject to court-martial

jurisdiction. The Board agreed . . . that the failure to dismiss the charges

against you at court-martial did not amount to a material breach of the [pre-

trial agreement], as you were not denied the benefit for which you bargained,

which was the dismissal of charges before a court-martial. Moreover,

withdrawal of charges from a court-martial does not preclude the underlying

conduct from forming the basis for later NJP or administrative discharge

processing under principles of res judicata, which only applied to future

judicial action before a court-martial and did not preclude administrative

punishment before a tribunal. . . .

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Id.

In this regard, the BCNR’s determination was not arbitrary, capricious, contrary to law,

or unsupported by substantial evidence. The plea agreement required that the USMC dismiss the

court-martial charges with prejudice. Instead, the charges were dismissed “without prejudice.”

This distinction, of course, can be significant, but not in this instance. Here, the United States

correctly observes that Nicely suffered no prejudice from the USMC’s failure to heed this term

of its agreement. The BCNR determined that the statute of limitations applicable to courts-

martial expired and thus, he was no longer subject to prosecution. This determination is valid. At

best, the failure to dismiss the court-martial charges with prejudice was harmless. Wagner, 365

F.3d at 1361.

With respect to Nicely’s claim that he was denied due process by signing the stipulation

of fact that he did not believe to be true, the BCNR “did not agree.” (ECF No. 31 at 13). The

BCNR explained “you were represented by counsel throughout the proceedings and received the

benefit of your [pre-trial agreement], which was the avoidance of a court-martial and the

possibility of a federal conviction on your record.” (Id.). Thus, the BCNR “found that [Nicely]

did not provide enough evidence outside of conclusory statements to show that [he] did not

freely and willingly enter into [the] [pre-trial agreement].” (Id.). This determination was not

erroneous.

Nicely initially rejected an offer for an NJP in lieu of a court-martial, then requested the

offer again after court-martial charges were preferred against him. The Commanding General

conditioned the NJP offer on Nicely pleading guilty to specified charges and signing a stipulation

of fact. Thereafter, Nicely, on advice of both military and civilian counsel, entered into a formal

pre-trial agreement in which the USMC agreed to dismiss the court martial charges, with

prejudice, if Nicely agreed to sign a stipulation of fact detailing the circumstances of his arrest

and plead guilty at an NJP proceeding to three offenses under the UCMJ. Nicely signed the pre-

trial agreement on May 18, 2010, which certified, inter alia, that he: (1) voluntarily entered pleas

of guilty to the three UCMJ charges; (2) fully understood the offer and agreement; (3) could seek

to withdraw his guilty plea at any time before punishment; (4) his counsel fully advised him of

the meaning and effect of his guilty plea and he fully understood and comprehended the

meaning, effect, and consequences of his plea; and (5) must enter into a reasonable stipulation of

fact. In accordance with this agreement, Nicely and his lawyers drafted the stipulation of fact, in

which Nicely signed. Then, at the NJP hearing, Nicely stated that: (1) he did not desire a

personal representative; (2) he understood his rights; (3) he did not desire trial by court-martial

and was willing to accept NJP; (4) he had been fully advised of his legal rights pertaining to the

NJP hearing; and (5) he did not have any questions about his rights.

These events provided ample basis for the BCNR to conclude that Nicely was not denied

due process. The only evidence that Nicely provided to the contrary was a self-serving

declaration stating that his attorney called him in tears and told him that if he did not accept the

pre-trial agreement, the attorney would withdraw from the case. (See AR267). Not only was this

claim uncorroborated by any other evidence, but Nicely requested the NJP before this alleged

exchange and afterwards, signed the pre-trial agreement certifying that he entered into the

agreement voluntarily. Thus, the BNCR appropriately concluded that Nicely failed to “provide

enough evidence outside of conclusory statement to show that [he] did not freely and willingly

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enter into [the] [pre-trial agreement].” Moreover, if Nicely did not believe the stipulation of fact

to be true, he was free to reject the pre-trial agreement offer and proceed to court-martial.

Accordingly, there is no basis for Nicely’s claim that he was denied due process.

Nicely also claims that his attorney was conflicted. “[T]he Board determined the

evidence did not support [this] contention.” (ECF No. 31 at 13). The BCNR explained that “if

you felt there was a professional responsibility on the part of your counsel having a conflict of

interest, you did not address those concerns in any approved manner,” and “there was no factual

evidence that you would have been without an attorney if you did not have military counsel.”

(Id.). The BCNR concluded by stating “[a]ll evidence in the case, to include the signed [pre-trial

agreement], indicates you were content with your counsel’s advice and willingly entered into that

agreement.” (Id.). This determination was not in error.

As explained above, the evidence fully supports the BCNR’s conclusion that Nicely

freely and voluntarily entered into the pre-trial agreement, and Nicely’s uncorroborated, self-

serving declaration does not prove otherwise. Assuming arguendo, that Nicely’s attorney was

conflicted, in order to prove a violation of the Sixth Amendment, Nicely would need to first

show that his counsel’s performance was deficient, and second, that counsel’s deficient

performance prejudiced his defense. See Strickland v. United States, 466 U.S. 668, 687 (1984).

Nicely can prove neither.

Principally, Nicely cannot show that his counsel’s performance was deficient as Nicely

successfully avoided a court-martial and federal conviction. The relative success of the defense

indicates reasonably competent representation. See Flowers v. United States, 80 Fed. Cl. 201,

221–22 (2008) (“[W]hile courts have rejected the notion that lack of success is indicative of

ineffective assistance, the reverse cannot be gainsaid—a relatively successful result suggests

reasonably competent representation.”). Not only did Nicely avoid the potentially greater

consequences of court-martial, his counsel obtained a negotiated settlement at the low end of the

range of punishment provided for much less serious Article 15 proceedings. Thus, it appears his

counsel was extremely effective and Nicely cannot satisfy the first requirement under Strickland.

Moreover, Nicely has made no showing whatsoever as to how he was prejudiced by his

counsel’s allegedly deficient performance. Nicely had two options: proceed to a court-martial or

accept NJP and sign a stipulation of fact. Nicely elected the latter option and avoided the

potentially greater consequences of a court-martial. It would seem then, that even if Nicely’s

counsel was deficient, which he was not, Nicely was not prejudiced by this deficiency.

Consequently, Nicely has failed to show ineffective assistance of counsel.

Therefore, the Court concludes that the BCNR’s determination regarding Nicely’s NJP

was not arbitrary, capricious, contrary to law, or unsupported by substantial evidence.

d. Nicely Fails to Address Count I of His Complaint

In Count I of his Complaint, Nicely alleges that the Assistant Secretary of the Navy

considered grounds for separation for which Nicely was not provided prior notice and an

opportunity to be heard. (See Compl. at 14). As the United States notes in its Cross-Motion,

Nicely does not address this allegation in his MJAR. (Def.’s Cross-Mot. at 3 n.3). Nicely’s also

fails to address the issue in his Reply. (See ECF No. 62). Similarly, Nicely’s First MJAR omits

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any discussion of Count I. (See ECF No. 45). It is the plaintiff’s burden to demonstrate “by

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

1986), that the military board's decision was “arbitrary, capricious, unsupported by substantial

evidence, or contrary to law.” Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006).

Here, the BCNR found that Nicely had been properly notified of the grounds for

separation. (See AR11, 392, 394). As Nicely has provided no evidence whatsoever that the

BCNR’s decision was arbitrary, capricious, unsupported by substantial evidence, or contrary to

law, Nicely has failed to satisfy his burden as to Count I. Thus, judgment on the administrative

record must be granted in favor of the United States as to Count I.

Conclusion

For these reasons, the Court hereby DENIES Nicely’s Motion for Judgment on the

Administrative Record following remand to the Board of Correction for Naval Records and

GRANTS the United States’ Partial Motion to Dismiss and Cross-Motion for Judgment on the

Administrative Record. In addition, Nicely’s first motion for judgment on the administrative

record is DENIED AS MOOT. The clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ David A. Tapp

DAVID A. TAPP, Judge

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