finding that the Secretary’s rejec- tion of the BCNR’s recommendation was unjustified, where the Board’s recommendation was supported by the record Case: 20-1856 Document: 70 Page: 12 Filed: 01/20/2022 12 NICELY v. US and the Secretary instead chose to follow the advice of an active duty naval officer
How later courts described this case
- finding that the Secretary’s rejec- tion of the BCNR’s recommendation was unjustified, where the Board’s recommendation was supported by the record Case: 20-1856 Document: 70 Page: 12 Filed: 01/20/2022 12 NICELY v. US and the Secretary instead chose to follow the advice of an active duty naval officer
- explaining 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.”
- finding that Navy selection board statute’s reference to “records” embodied Congressional purpose that these records “be complete and not misleading,” citing the former 10 U.S.C. § 5706 (repealed 1980)
- placing before a promotion board incomplete documents that are prejudicial in nature cannot fairly portray an officer’s record which constitutes a clear violation of statute, to wit, 10 U.S.C. §§ 576 and 615, formerly § 5706
Written by the judges who cited it.
The opinion
LARAMORE, Judge
(concurring):
I concur in the result reached by the majority opinion on the basis of what I believe to be the rule announced in Proper v. United States, 154 F.Supp. 317 , 139 Ct.Cl. 511 (1957). As I read that case, a majority of the court (in which I did not join) held that the Secretary cannot reverse the recommendations by the Board for Correction of Military Records on the basis of a contrary recommendation by a military officer that the Secretary agree with the minority board opinion. In the Proper case, two members of the BCMR dissented, but the court found that their opinion lacked any support in the record. The court also said: “ * * * [W] e do not suggest that the Secretary may not overrule the recommendations of the Correction Board where the findings of the Board are not justified by the record on which the findings were made.” (Emphasis added, at 326, 139 Ct.Cl. at 526 ). The court then held that the record did not support the minority opinion and that it did support the majority opinion of the BCMR. The court held that the decision and findings of the majority were fully supported by the record and said that the Secretary, without the benefit of any additional evidence to the contrary, acted without proper authorization by ignoring those findings and denying his approval to the BCMR decision.
*423 This case is even stronger. There is no dissenting opinion, and all of the members of the BCNR concurred in the opinion.
We do not know the contents of the JAG’s recommendations to the Secretary; nor do we know whether the Secretary had any other staff comments before him; nor whether he or a member of his staff actually made a full review of the proceedings. Accepting the assumption that the JAG report was adverse to plaintiff, that opinion was, pre-sumedly based on evidence that was before the BCNR. There is nothing in the record to indicate that it was based on some additional evidence which is contrary to the BCNR decision.
In Hertzog v. United States, 167 Ct.Cl. 377, 385 (1964), the court noted, with emphasis in the original text:
We say this [that the Secretary’s opinion was induced and influenced by a military adviser’s memorandum] because all the evidence before the Board tended to show that plaintiff was entitled to the relief prayed for. No evidence was introduced to the contrary.
The Secretary denied plaintiff’s request for reconsideration because the findings of the Board were, in his opinion, not justified by the record. We found, however, that an examination of the record would have led him to the opposite conclusion. We held that the evidence justified the Board’s findings, and therefore that this case was not within the exception provided for in our Proper decision (i. e., where the findings are not justified by the record). In Betts v. United States, 172 F.Supp. 450 , 145 Ct.Cl. 530 (1959) we also refused to permit the Secretary to reach a conclusion that was contrary to all of the evidence.
In this case, the Secretary justified his contrary conclusion on what he characterized as a misconstruction by the Board of the disapproval of the Subic Bay investigation noted by the Commander-in-Chief, U. S. Pacific Fleet. A careful reading of the Commander’s comments shows that he believed that the entire investigation procedure was improper and that it included both hearsay testimony and “every available bit of malicious gossip”. He then noted that one incident had been proved by competent evidence — an attempted transaction with the Disbursing Officer of the U.S.S. Lexington. The record before the BCNR, however, contains a statement by that Officer that plaintiff did not attempt to exchange his personal funds for official funds.
Under these circumstances, I think that this case falls squarely within the area proscribed by the decision in Proper , and I agree with the decision of the majority on that basis. Simply stated, a Secretary cannot overturn a BCNR decision when he has no additional evidence before him, and the evidence before the Board justifies only the decision reached by the Board.