The opinion
In the United States Court of Federal Claims
No. 18-1117C
(Filed February 28, 2023)
NOT FOR PUBLICATION
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DANIEL SANSOM, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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ORDER
Following plaintiff Daniel Sansom’s involuntary discharge from the United
States Coast Guard with a general (under honorable conditions) characterization of
service due to misconduct, he sought relief from the Department of Homeland
Security Board for Correction of Military Records (BCMR or Board), which denied
his application on all counts. Mister Sansom then filed suit in this court
challenging the BCMR decision. See Compl., ECF No. 1. During briefing and oral
argument on the motions for judgment on the administrative record, a question
arose concerning the completeness of the record considered by the BCMR. See
Order, ECF No. 32 at 1. The investigating officer’s report identified thirty-one
separate enclosures, primarily witness statements and interviews. Admin. R. (AR)
243. The BCMR’s record contains only redacted versions of enclosures 24–30,
submitted by plaintiff as the fruits of a Freedom of Information Act request. See AR
109, 117–18, 122–43.
Plaintiff initially took the absence of this material to indicate that the
separation authority did not review the evidence gathered by the investigating
officer, but only his report. Pl.’s Opp’n Def.’s Mot. J. Admin. R. at 1, 22–23. After
the government noted that the BCMR found that separation was ordered “after
requesting and reviewing a copy of the administrative investigation,” Def.’s Reply &
Resp. to Pl.’s Cross-Mot. at 18 (quoting AR 13), plaintiff maintained that the
absence of the investigative material from the BCMR record meant the Board’s
decision was unsupported by evidence. Pl.’s Reply Supp. Cross-Mot. at 1–3.
After oral argument on the motions for judgment on the administrative
record, the Court asked the government to determine whether the enclosures to the
investigating officer’s report were considered by the separation authority and
reviewed by the BCMR. ECF No. 32 at 1. Defendant submitted a status report in
which it clarified that the separation authority had reviewed the material listed as
enclosures to the inquiry officer’s report, while the BCMR had reviewed only the
documents currently in the record. Def.’s Status Rpt., ECF No. 37 at 1. In
supplemental briefing, Mr. Sansom requested, as an alternative to judgment in his
favor, either that the record be supplemented to add all the enclosures to the report
or that the matter be remanded to the BCMR for consideration of those enclosures.
Pl.’s Suppl., ECF No. 42 at 1–3; Pl.’s Reply Supp., ECF No. 50 at 1–3.
The government opposes both supplementation and remand, maintaining
that Mr. Sansom’s requests and arguments are untimely, procedurally deficient
because they were not made by motion, and irrelevant since the BCMR reviewed
the investigative officer’s report and its detailed summaries of witness statements.
Def.’s Resp. Pl.’s Suppl. Br., ECF No. 47 at 2–8. The Court does not find that Mr.
Sansom has waived any objection to the absence of the investigative material from
the BCMR record. Plaintiff was entitled to presume regularity in the compilation of
the record being reviewed by the Board. See Tecom, Inc. v. United States, 66 Fed.
Cl. 736, 757–69 (2005). Under the applicable regulations, the Board is to consider
“all pertinent military records” in reaching its decisions. 33 C.F.R. § 52.12. As his
application concerned the propriety of his discharge, see AR 75–89, plaintiff
reasonably concluded that if the enclosures to the report were considered by the
separation authority, they would have been contained in the BCMR record. The
issue concerning their absence only arose once the government took a contrary
position in its reply brief, and was not clarified until after oral argument was held.
Nor is the lack of a formal motion fatal to plaintiff ’s cause. The Court, after
all, may remand appropriate matters “on its own,” RCFC 52.2(a), and “has
authority under the Tucker Act to remand to a corrections board.” Walls v. United
States, 582 F.3d 1358, 1367 n.12 (Fed. Cir. 2009) (citing 28 U.S.C. § 1491(a)(2)).
And the Court is not persuaded that the inclusion of summaries of witness
statements in the inquiry officer’s report can duly take the place of the actual
evidence provided by the witnesses, for purposes of BCMR review.
The Court concludes that a remand of this matter is in order, to allow the
BCMR to review the separation decision in light of the evidence that was considered
by the separation authority. Effective judicial review requires a record containing
“what was or should have been considered by the agency,” and this includes
“relevant information in the [agency] files . . . which was inappropriately ignored by
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an agency.” East West, Inc. v. United States, 100 Fed. Cl. 53, 57 (2011) (citations
omitted). Insofar as the separation decision is concerned, the addition of the
enclosures is not a supplementation but rather a completion of the record of that
decision. See id. at 56–57 (explaining the process of “completing the record by
adding ‘information relied upon but omitted from the paper record’” (quoting Orion
Int’l Techs. v. United States, 60 Fed. Cl. 338, 343–44 (2004))); see also Smith v.
United States, 114 Fed. Cl. 691, 696 (2014). Effective judicial review of the BCMR
decision would require that its record be supplemented with the omitted enclosures
that were the basis for the separation decision. See Axiom Res. Mgmt. v. United
States, 564 F.3d 1374, 1381 (Fed. Cir. 2009). Under the circumstances, however,
the better course is to remand the matter so that the Board, which possesses
broader equitable powers than the Court, see 10 U.S.C. § 1552(a)(1), can first
consider the complete record and reach a decision on that basis, see Miller v. United
States, 119 Fed. Cl. 717, 727 (2015); Walls, 582 F.3d at 1367 (citing Fla. Power &
Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
Because of the imminent remand, the pending motions for judgment on the
administrative record, ECF Nos. 17 and 22, are DENIED as moot. The parties are
to confer regarding the remand instructions, schedule, and procedure, and file a
Joint Status Report on or by Tuesday, March 21, 2023.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Senior Judge
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