Petition for Writ of Certiorari — William G. Bolton, Petitioner v. Department of the Navy Board for Correction of Naval Records

No. ______

In the

Supreme Court of the United States

__________________

WILLIAM G. BOLTON,

v.

Petitioner,

DEPARTMENT OF THE NAVY BOARD FOR CORRECTION

OF NAVAL RECORDS,

Respondent.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

THOMAS F. HULL, II

Counsel of Record

MANCHESTER, NEWMAN &

BENNETT, L.P.A.

The Commerce Building

Atrium Level Two

201 E. Commerce Street

Youngstown, Ohio 44503-1641

330-743-1171

THull@mnblawyers.com

Counsel for Petitioner

April 18, 2019

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

1. The scope of the authority of the United States

Navy’s Board for Correction of Naval Records (“Naval

Board”) to remove an unjust summary court-martial

sentence from a service member’s record, by

expungement or by clemency, is in need of clarification

by this Court. 10 U.S.C. § 1552(a)(1) was previously

interpreted by lower courts to allow the Naval Board to

expunge or remove invalid or unjust courts-martial

sentences. See, eg., Baxter v. Claytor, 652 F. 2d 181,

185 (D.C. Cir. 1981); Owings v. Secretary of the United

States Air Force, 447 F.2d 1245, 1249-50 (D.C. Cir.

1971). In 1983, however, Congress amended 10 U.S.C.

§ 1552 to streamline and modernize the military justice

review system. In doing so, to prevent redundancy,

Congress limited the Naval Board’s powers with

respect to courts-martial that are “tried or reviewed.”

10 U.S.C. § 1552(f). It is unclear, however, from the

relevant legislative history and the text of the

amendment, whether any changes were intended to be

made to the Naval Board’s powers over non-adversarial

summary courts-martial sentences.

A summary court-martial is a special disciplinary

procedure and, despite the similarities in name, a

summary court-martial is a very different process than

general courts-martial or special courts-martial. Most

significantly, a summary court-martial is a nonadversarial process, unlike general courts-martial or

special courts-martial. Further, summary courtsmartial are not considered criminal convictions and are

often utilized because they require lesser due process.

This Court, in Mittendorf v. Henry, 425 U.S. 25, 31-33

ii

(1976), recognized that summary courts-martial are not

criminal proceedings, as general and special courtsmartial are, and thus are not entitled to the same due

process protections. The question now presented to this

Court is whether or not the 1983 congressional

amendment to 10 U.S.C. § 1552 revoked the power of

the Naval Board to remove unjust summary courtmartial sentences from a service member’s record as a

matter of basic fairness.

2. As a second question, it is unclear what due

process must be afforded to an applicant to the Naval

Board for correction of a military record. The decision

of the Sixth Circuit below in this matter leaves in

substantial doubt whether there are any procedural

protections to ensure that an applicant’s full service

record is reviewed or whether or not the decisionmaking process is entirely within the prerogative of the

executive. The decision creates a circuit split with the

D.C. Circuit, Morrison v. Sec’y of Def., 760 F. Supp. 2d

15 (D.D.C. 2011), as to whether the Naval Board must

consider evidence of exemplary service in the military

record before issuing a decision on an application for

correction of a military record. This very minimalistic

protection should be mandated for veterans applying

for relief from the Naval Board.

iii

PARTIES TO THE PROCEEDINGS AND

RULE 29.6 STATEMENT

Petitioner, who was a Plaintiff-Appellant in the

court below, is William G. Bolton.

Respondents, who were Defendants in the court

below, are the United States’ Navy’s Board for

Correction of Naval Records and the United States of

America.

Because no Petitioner is a corporation, a corporate

disclosure statement is not required under Supreme

Court Rule 29.6.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . vii

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTES INVOLVED . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 4

1. Bolton seeks clemency and/or expungement

for a mistake made eight years ago and after

four years of active duty service . . . . . . . . . . . 5

2. Bolton was punished twice by separate

authorities for the same incident and

received a de facto bar on reenlistment in any

branch of the military which was not

understood or explained . . . . . . . . . . . . . . . . . 6

3. The record before the Naval Board was

incomplete and biased against Bolton . . . . . . 7

4. The Naval Board decided that it could not

expunge Bolton’s summary court-martial and

that Bolton was not entitled to clemency . . . . 9

v

5. The District Court incorrectly found that the

Naval Board lacked statutory authority to

grant the relief Bolton sought and that

Bolton, therefore failed to state a claim upon

which relief could be granted . . . . . . . . . . . . 10

6. The Sixth Circuit Court of Appeals held that

the Naval Board lacks the authority to

remove an unjust summary court-martial,

and that clemency decisions do not require

review of a complete record. . . . . . . . . . . . . . 11

REASONS FOR GRANTING THE PETITION . . . 12

I. The Naval Board has the ability to remove

unjust summary courts-martial sentences . . . . 17

II. The Naval Board’s decision was arbitrary and

capricious as it failed to review Bolton’s full

service record . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Sixth Circuit

(January 18, 2019) . . . . . . . . . . . . App. 1

Appendix B Memorandum of Opinion & Order

[Resolving ECF No. 17] and Order of

Dismissal in the United States

District Court, Northern District of

Ohio, Eastern Division

(January 29, 2018) . . . . . . . . . . . App. 27

vi

Appendix C Letter from the Department of

the Navy Board for Correction of

Naval Records

(September 21, 2016) . . . . . . . . . App. 38

vii

TABLE OF AUTHORITIES

CASES

Barna v. United States,

127 Fed. Cl. 253 (2016) . . . . . . . . . . . . . . . . . . . . 22

Baxter v. Claytor,

652 F.2d 181 (D.C. Cir. 1981) . . . . . . . . . . . . . . . 18

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971). . . . . . . . . . . . . . . . . . . . . . . 22

Coburn v. Murphy,

827 F.3d 1122 (D.C. Cir. 2016) . . . . . . . . . . . . . . 22

Cooper v. United States,

285 F. Supp. 3d 210 (D.D.C. January 10, 2018) . . 20

Fuller v. Winter,

538 F. Supp. 2d 179 (D.D.C. March 14,

2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Mittendorf v. Henry,

425 U.S. 25 (1976). . . . . . . . . . . . . . . . . . . 4, 13, 14

Morrison v. Sec’y of Def.,

760 F. Supp. 2d 15 (D.D.C. 2011). . . . . . . . . 17, 23

Orloff v. Willoughby,

345 U.S. 83 (1953). . . . . . . . . . . . . . . . . . . . . 17, 26

Owings v. Secretary of United States Air Force,

447 F.2d 1245 (D.C. Cir. 1971) . . . . . . . . . . . . . . 18

Payne v. Brownlee,

2006 U.S. Dist. LEXIS 17054

(D.D.C., Mar. 24, 2006). . . . . . . . . . . . . . . . . . . . 18

viii

STATUTES AND REGULATIONS

5 U.S.C. § 500 et seq. . . . . . . . . . . . . . . . . . . . . . . . . 21

10 U.S.C. § 815 . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16

10 U.S.C. § 820 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13

10 U.S.C. § 1552 . . . . . . . . . . . . . . . . . . . 11, 15, 17, 22

10 U.S.C. § 1552(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 1

10 U.S.C. § 1552(f) . . . . . . . . . . . . . . . . . . . 1, 2, 18, 19

10 U.S.C. § 1558 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

10 U.S.C. § 1558(f)(3)(A) . . . . . . . . . . . . . 1, 2, 3, 4, 21

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

34 C.F.R. § 723.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . 23

34 C.F.R. § 723.3(e)(1) . . . . . . . . . . . . . . . . . . . . . . . 23

OTHER AUTHORITIES

ARTICLE: SUMMARY COURTS-MARTIAL:

REDISCOVERING THE SPUMONI OF

MILITARY JUSTICE, 39 A.F. L. Rev. 119 . . 5, 15

https://www.defense.gov/News/News-Releases

Releases/News-Release-View/Article/1039945/

dod-announces-new-outreach-efforts-to-veterans

-regarding-discharges-and-militar/source/Gov

Delivery/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

H.R. Rep. No. 98-549 . . . . . . . . . . . . . . . . . . . . . . . . 20

Manual for Courts-Martial (1969). . . . . . . . . . . 13, 14

S. Rep. No. 98-53 . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1

OPINIONS BELOW

The Sixth Circuit order affirming the district court

is reproduced in the appendix (Pet.App.1) as is the

district court’s order dismissing Petitioner’s complaint

(Pet.App.27), and the administrative level decision of

the Naval Board (Pet.App. 38).

JURISDICTION

The Sixth Circuit entered judgment on January 18,

2019. (Pet.App.1.) This Court has jurisdiction under 28

U.S.C. § 1254(1), and 10 U.S.C. § 1558(f).

STATUTES INVOLVED

Section 1552(a)(1) of 10 U.S.C. 1552 states as

follows:

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. The

Secretary of Homeland Security may in the

same manner correct any military record of the

Coast Guard.

Section 1552(f) of 10 U.S.C. 1552 states as follows:

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

2

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.

Section 1558(f)(3)(A) of 10 U.S.C. 1558 states as

follows:

Judicial review.

(1) A person seeking to challenge an action or

recommendation of a selection board, or an

action taken by the Secretary of the military

department concerned on the report of a

selection board, is not entitled to relief in any

judicial proceeding unless the action or

recommendation has first been considered by a

special board under this section or the Secretary

concerned has denied the convening of such a

board for such consideration.

(2)

(A) A court of the United States may review

a determination by the Secretary of a military

department not to convene a special board in the

case of any person. In any such case, the court

may set aside the Secretary’s determination only

if the court finds the determination to be-(i) arbitrary or capricious;

(ii) not based on substantial evidence;

3

(iii) a result of material error of fact or

material administrative error; or

(iv) otherwise contrary to law.

(B) If a court sets aside a determination by

the Secretary of a military department not to

convene a special board, it shall remand the case

to the Secretary concerned, who shall provide for

consideration by a special board.

(3) A court of the United States may review a

recommendation of a special board or an action

of the Secretary of the military department

concerned on the report of a special board. In

any such case, a court may set aside the action

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

(4)(D) otherwise contrary to law.

(A) If, six months after receiving a complete

application for consideration by a special board

in any case, the Secretary concerned has not

convened a special board and has not denied

consideration by a special board in that case, the

Secretary shall be deemed for the purposes of

this subsection to have denied consideration of

the case by a special board.

(B) If, six months after the convening of a

special board in any case, the Secretary

concerned has not taken final action on the

report of the special board, the Secretary shall

be deemed for the purposes of this subsection to

have denied relief in such case.

4

(C) Under regulations prescribed under

subsection (e), the Secretary of a military

department may waive the applicability of

subparagraph (A) or (B) in a case if the

Secretary determines that a longer period for

consideration of the case is warranted. Such a

waiver may be for an additional period of not

more than six months. The Secretary concerned

may not delegate authority to make a

determination under this subparagraph.

STATEMENT OF THE CASE

This case involves a wrongfully-denied application

by an honorably discharged Marine Corps veteran,

William G. Bolton (“Bolton”), to have the United States

Navy’s Board for Correction of Naval Records (“Naval

Board”) remove a summary court-martial sentence

from his record by expungement or clemency. The basis

for Bolton’s application is that the summary courtmartial sentence was unjust, as he was unfairly doubly

punished and inadequately advised of the effects of his

plea. (Pet.App. 38.)

Summary courts-martial are an expedited

disciplinary process for minor offenses with less

procedural due process afforded because they are not

considered “criminal proceedings” like general and

special courts-martial. 10 U.S.C. § 820. Summary

courts-martial are also non-adversarial in nature and,

thus, are not “tried” in the traditional sense of the

term. Mittendorf v. Henry, 425 U.S. 25, 31-33 (1976).

While summary courts-martial are viewed as a

valuable tool for military enforcement because the

reduced formalities, the minimized due process

5

protections inflate the risk of unjust sentences. See

ARTICLE: SUMMARY COURTS- MARTIAL:

REDISCOVERING THE SPUMONI OF MILITARY

JUSTICE, 39 A.F. L. Rev. 119, 120. Accordingly, where

the due process protections are minimized for summary

courts-martial sentences, it is even more crucial that

this Court find that those sentences are reviewable by

the Naval Board for subsequent correction, as this is an

important outstanding safeguard to prevent against

unjust or unfair consequences.

1. B o l t o n

seeks

clemency

and/or

expungement for a mistake made eight

years ago and after four years of active

duty service.

On August 22, 2006, Bolton enlisted in the Marine

Corps and he proceeded to actively serve this country

well for more than four years. He then went on to serve

as part of the individual ready reserve, which he was

honorably discharged from on or about March 14, 2014.

(Pet.App. 28). On August 6, 2016, near the end of

Bolton’s active duty tenure with the Marine Corps,

after serving multiple overseas tours, including one in

Iraq, Bolton made the regrettable mistake of driving

while under the influence of alcohol. He pleaded guilty

via a summary court-martial for violations of Uniform

Code of Military Justice (“UCMJ”), Arts 89, 92 and 111.

(Pet.App. 28). As a result, the Convening Authority

(i.e., the person authorized to convene a court-martial

or impose non-judicial punishment) took the action of

reducing Bolton’s rank to E-1, which is the lowest

enlisted rank. (Pet.App. 6). Bolton was additionally

6

assessed a forfeiture of $964.00 in pay, and served 14

days restriction. (Pet.App. 6).

Now, because of Bolton’s length of service, the

reduction in rank effectively renders him unable to

reenlist in any branch of the military service. (Pet.App.

19-20). At the time that Bolton pleaded guilty, Bolton

did not realize this ramification of the rank reduction.

In fact, he was never counseled that the rank reduction

would have this effect. (Pet.App. 19- 20). Bolton has

tried to reenlist but has been told that the reduction in

rank, combined with his time in service, is a de facto

bar to reenlistment.

2. Bolton was punished twice by separate

authorities for the same incident and

received a de facto bar on reenlistment in

any branch of the military which was not

understood or explained.

Bolton was advised by detailed military defense

counsel that all charges relating to the August 06, 2010

incident, including those assigned to the federal court,

would be disposed of by summary court-martial.

(Pet.App. 28). This was untrue, however. On August

13, 2010, a court citation for a DUI was in fact brought

against Bolton before the base court at Camp Lejeune.

(Pet.App. 28). Bolton was not informed by any means

that his citation was to be heard by the base court.

(Pet.App. 28). Because of his failure to appear at base

court on August 13, 2010, on August 14, 2010, Bolton

was convicted of driving under the influence, a

violation of NCGS 20-138.1. (Pet.App. 28).

7

The action of the base court at Camp LeJeune,

North Carolina resulted in a conviction for driving

under the influence. (Pet.App. 28). That conviction was

subsequently sent to the State of North Carolina,

which suspended his license and the State of Ohio did

the same. (Pet.App. 6). The suspension in North

Carolina remained in force for a minimum of six (6)

months. (Pet.App. 6). The suspension in Ohio was

eventually reversed. (Pet.App. 6).

Thus, in addition to effectively being denied the

opportunity to serve his country by way of rank

reduction, Bolton was also saddled with license

suspensions in two states as a result of unexpected

civilian punishment.

3. The record before the Naval Board was

incomplete and biased against Bolton.

Because he believes that the summary court-martial

sentence was unjust, Bolton sought relief from the

Naval Board. Unbeknownst to Bolton, however, the

Naval Board did not review his full and complete

military record when it evaluated his application for

correction. The administrative record upon which the

Naval Board issued its decision failed to include all

relevant information in favor of Bolton. (Pet.App. 2021). The Marine Corps was charged with submitting

Bolton’s service record to the Naval Board; however, it

appears to have submitted only those portions of

Bolton’s record that it felt bolstered its case position on

Bolton’s discipline. There is, in fact, no evidence that

Appellant’s full service record was transmitted to the

Board. Additionally even the Sixth Circuit was

confused as to whether the complete service file was

8

ever transferred to the Naval Board. (Pet. App. 21).

Nevertheless, Bolton had a reasonable expectation of

due process. As part of that due process, the Naval

Board should have requested and been provided with,

Bolton’s full and complete service record. To the

detriment of Bolton, however, his full and complete

service record was not reviewed. Bolton had no way of

knowing this at that time though.

The Naval Board’s decision was comprised entirely

of cherry-picked circumstances rationalizing Bolton’s

discipline and was bereft of important mitigating

factors. More specifically, in its decision denying

Bolton’s application, the Naval Board notes that Bolton

was counseled for underage drinking on August 10,

2007. (Pet.App. 39). While the 2007 incident occurred

and is barely documented in Bolton’s service record, it

was nevertheless given inappropriate credence and

consideration. At the same time, the Naval Board

wholly omits any acknowledgement of Bolton’s service,

including his tour in Iraq. The impropriety of this is

even more pronounced given that Bolton had served his

country honorably including a tour in Iraq that was

completely ignored in the Naval Board’s decision.

Further, Bolton was recommended for a Navy

Commendation Medal for his actions in Haiti by his

then Squad Leader. (Pet.App. 21). While the medal was

denied at the company level, he nevertheless received

a written commendation from his Battalion

Commander on April 1, 2010. (Pet.App. 21). This

written commendation should have been submitted to

the Naval Board for review as part of Bolton’s service

record, but was not contained in the record considered

9

by the Naval Board. Like the rest of Bolton’s

distinguished service record, Bolton’s written

commendation does not appear to have played any role

in the Naval Board’s decision.

4. The Naval Board decided that it could not

expunge Bolton’s summary court-martial

and that Bolton was not entitled to

clemency.

Ultimately, the Naval Board reviewed Bolton’s

application for purposes of clemency and found that he

was not entitled to clemency. (Pet.App. 39-40). In

reaching this decision, the Naval Board summarizes

Bolton’s military service in one paragraph. This

paragraph focuses on Bolton’s uncharged underage

drinking report and the circumstances that gave rise to

the summary court-martial. There is no mention of the

fact that he had served honorably, with distinction, for

four years of active duty, including a tour in Iraq.

(Pet.App. 39-40). While the Naval Board’s decision

seemingly suggests that it reviewed Bolton’s entire

record, there is no mention of the written

commendation he received for his exemplary service in

Haiti. (Pet.App. 39-40).

It was not until Bolton appealed this decision to the

District Court and the record was filed before the

District Court, that the omissions in the record became

glaringly apparent. It was at this point that Bolton

amended his appeal to allege that the failure of the

Naval Board to review a full military record is

arbitrary and capricious.

10

5. The District Court incorrectly found that

the Naval Board lacked statutory authority

to grant the relief Bolton sought and that

Bolton, therefore failed to state a claim

upon which relief could be granted.

The Naval Board filed a Motion to Dismiss Bolton’s

appeal of the Naval Board’s decision arguing that there

was no technical double jeopardy issue created by the

treatment of Bolton, and that even if there was, the

Naval Board was unable to correct Bolton’s record on

that issue because the Naval Board’s authority does not

extend to correcting unjust courts-martial. (Pet.App.

31,33). After the administrative record was filed,

Bolton filed an Amended Complaint. The Naval Board

then filed another substantially similar Motion to

Dismiss Bolton’s Amended Complaint with the same

legal reasoning.

Bolton opposed the motion arguing that the

arguments were overly formalistic and that the Naval

Board had the power to remove all record of an unjust

punishment, and that, at minimum, the rank reduction

should be removed from Bolton’s record. (Pet.App. 33).

The District Court agreed with the Naval Board and

dismissed Bolton’s appeal. (Pet.App. 35.) The District

Court made no review of the procedural arguments

relating to the failure to review an entire service record

and it found the lack of authority of the Naval Board to

remove an unjust summary court-martial dispositive.

(Pet.App. 34).

11

6. The Sixth Circuit Court of Appeals held

that the Naval Board lacks the authority to

remove an unjust summary court-martial,

and that clemency decisions do not require

review of a complete record.

Bolton timely appealed the District Court’s decision

and argued for reversal based on the fact that the

Naval Board had the authority to grant Bolton’s

requested relief, that a plausible claim for relief was

stated, and that the District Court’s decision, even if

correct as to the issue of the authority of the Board to

expunge a summary court-martial sentence, was too

broad in its failure to consider substantive and

procedural issues with the Naval Board’s clemency

decision.

The Sixth Circuit affirmed the District Court’s

decision finding that the 1983 amendment to 10 U.S.C.

§ 1552 removed the Board’s power to address summary

courts-martial in any substantive way even if the

sentence is substantively or procedurally unjust and

the Board was limited to correcting non-judicial

punishment, also known as Article 15 punishment.

(Pet.App. 11-15).

The Sixth Circuit also affirmed the District Court’s

decision with respect to review of the Board’s clemency

decision. The Sixth Circuit concluded that even though

the Board did not review a complete record that

appropriately reflected both Bolton’s accolades and

discipline, the Naval Board’s denial of clemency was

not arbitrary and capricious. The Sixth Circuit found

that Bolton waived his right to challenge the

completeness of the record by not including it in his

12

petition to the Naval Board. (Pet.App. 22). This is

problematic, as service members are lead to believe

that a full record is reviewed, and, in Bolton’s case, it

was only after the administrative record was filed in

the District Court that Bolton had the opportunity to

discover that the Naval Board had made its decision

based on an incomplete record.

REASONS FOR GRANTING THE PETITION

This Court should grant this petition as the

procedural protections afforded to military service

members and veterans are subject to substantial

confusion when it comes to summary courts-martial

sentences. Further complicating matters, the

Department of Defense actively invites veterans who

“believe they have experienced an error or injustice to

request relief from their service’s Board for Correction

of Military/Naval Records (BCM/NR) or Discharge

Review Board (DRB).”1 The Sixth Circuit’s decision

basically renders that invitation to veterans

meaningless, as it guts the ability of the Naval Board

to correct anything other than scriveners’ errors or the

most minor of injustices. This Court should grant this

petition so it can enunciate the remedies available to

veterans and the protections afforded to those veterans

seeking such a remedy from the Naval Board with

respect to summary courts-martial.

1

https://www.defense.gov/News/News-Releases/News-ReleaseView/Article/1039945/dod-announces-new-outreach-efforts-toveterans-regarding-discharges-and-militar/source/GovDelivery/

(accessed 03/21/19).

13

A summary court-martial is a hybrid procedure

which is subject to substantially less procedural due

process than general and special courts-martial due to

the minor nature of the offenses involved. Summary

courts-martial cannot be used for officers. 10 U.S.C.

§ 820, Art. 20. Concomitantly, summary courts-martial

carry potentially harsher punishment than non-judicial

punishment or Article 15 punishment, which are

implemented for the most minor offenses. Art. 15,

UCMJ, 10 U.S.C. § 815.

Summary courts-martial are a unique vehicle

resulting in confusion. This Court, in Mittendorf v.

Henry, 425 U.S. 25, 31- 33 (1976), acknowledged the

misfit quality of the fit as somewhere between the

courtroom procedure of general and special courtsmartial and the Article 15 punishment, informally

known as non-judicial punishment, stating:

The summary court-martial occupies a position

between informal nonjudicial disposition under

Art. 15 and the courtroom-type procedure of the

general and special courts-martial. Its purpose,

“is to exercise justice promptly for relatively

minor offenses under a simple form of

procedure.” Manual for Courts-Martial 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

14

witnesses whom he or the accused desires to

call. MCM 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.

Id. at 32-33. The Court further clarified that summary

courts-martial are very different from criminal-type

proceedings in that “a summary court-martial is

procedurally quite different from a criminal trial. In

the first place, it is not an adversary proceeding.” Id. at

40.

It is precisely this awkward, non-adversarial middle

position of summary courts-martial that makes

Bolton’s rights so difficult to ascertain. Therefore these

rights are in dire need of clarification by this Court.

The Naval Board should be involved in providing

the relief justice requires with respect to summary

courts- martial sentences, while recognizing that the

process is not for legal reversals of proceedings. The

Naval Board is well-suited to protect against injustices.

Notably, this is wholly unrelated to the validity of the

court-martial process which is not at issue. The Court’s

analysis of summary courts-martial in Mittendorf

suggests that a summary court-martial is more akin to

non-judicial proceedings for the purposes of whether it

was a “criminal prosecution” with the attendant rights

that could have come with that designation. This is

important to whether the Naval Board has any right to

expunge or otherwise remove a summary court-martial

sentence from a petitioner’s military record. Without

the due process protections afforded to the other types

of court-martial proceedings, the Naval Board’s ability

15

to review summary courts-martial for unjust actions is

of even greater importance. The Naval Board is

unequivocally vested with the authority to do this for

Article 15 discipline and it should likewise have the

authority to do this for the closely-related discipline

summary courts-martial. Indeed one commentator has

referred to the summary court-martial as a

“supercharged Article 15.” ARTICLE: SUMMARY

COURTS-MARTIAL: REDISCOVERING THE

SPUMONI OF MILITARY JUSTICE, 39 A.F. L. Rev.

119, 120.

Historically, lower courts held that the Naval Board

had the power to remove unjust courts-martial

sentences while lacking the power to overrule as a

matter of law courts-martial. However, when Congress

amended 10 U.S.C. § 1552 in 1983, lower courts began

finding that the Naval Board lost this power with

respect to courts-martial. However, this Court has

never considered whether it was the legislature’s intent

to revoke the Naval Board’s power to remove unjust

summary courts-martial sentences.

As a practice it is clear that the military treats

summary courts-martial and non-judicial punishment

very similarly. The incredibly close relation between

summary court-martial proceedings and non-judicial

punishment is also demonstrated through the

Memorandum of Pretrial Agreement signed by Bolton.

The form language within the Memorandum is

designed for either summary court-martial or nonjudicial punishment. The only aspect of discipline that

rendered Bolton’s sentence more onerous than nonjudicial punishment seems to have been his reduction

16

in rank by more than one pay grade (i.e., Bolton was

reduced in rank by three pay grades). Otherwise, the

monetary penalty and restriction period were both

within the limits for non-judicial punishment. Art. 15,

UCMJ, 10 U.S.C. § 815. The Convening Authority had

the discretion to impose non-judicial punishment or

summary court- martial for the offenses involved.

Bolton’s actions with respect to the matter would have

been the same either way.

It makes little sense to allow the plea arrangement

to go outside of the ambit of the Naval Board simply

because the Convening Authority chose to render the

punishment through summary court- martial rather

than non-judicial punishment. If anything, the higher,

albeit slightly, penalties associated with a summary

court-martial make it more, not less, appropriate for

review by the Naval Board.

A second issue that merits this Court’s review is a

determination of the proper standards, if any, for

Article III judicial review of the Naval Board’s

decisions. Currently, there is a circuit split as to

whether the Naval Board must review a full service

record.

The Naval Board has taken the position that its

decisions on clemency are a matter of executive

discretion and not subject to Article III court review.

(Pet.App. 24). The Sixth Circuit’s decision does not

affirmatively address this issue; however, it did engage

in review of the clemency decision using an “extradeferential standard” of review. (Pet.App. 25-26.) The

extraordinarily deferential review, however, was

incomplete because the Sixth Circuit did not consider

17

whether the failure of the Naval Board to review a

complete record was arbitrary and capricious. The

Sixth Circuit’s decision was in contravention with the

D.C. Circuit, which has held in Morrison v. Sec’y of

Def., 760 F. Supp. 2d 15 (D.D.C. 2011) that the Naval

Board must review all pertinent evidence, including

evidence of exceptional service. The Sixth Circuit’s

decision affirmed the Naval Board’s decision despite

Bolton’s contention that the record was incomplete and

lacked evidence of Bolton’s exceptional service.

This Court sought to strike a difficult balance when

reviewing decisions involving the military in Orloff v.

Willoughby, 345 U.S. 83, 94 (1953), however the lower

court’s application of “extraordinary deference” to

Naval Board decisions has gone too far if a full service

record is not required to be reviewed at a minimum.

There is the threat of resounding confusion as to

whether the Naval Board must review a full service

record in making decisions on an application to correct

a military record. This Court’s review is vital, both to

clear up this uncertainty, as well as to ensure members

of the armed services and veterans are afforded

appropriate procedural safeguards applying to the

Naval Board.

I. The Naval Board has the ability to remove

unjust summary courts-martial sentences.

The Naval Board, pursuant to 10 U.S.C. § 1552, is

empowered to make such corrections to military

records where such correction is “necessary to correct

an error or remove an injustice.” Historically this

power has included “the power to remove all traces of

an invalid court-martial from a serviceman’s record

18

and to change a dishonorable discharge into an

honorable one. The Naval Board clearly has jurisdiction

to consider whether [the military members’] military

records should be corrected if the Board considers it

necessary to correct an error or remove an injustice.”

Baxter v. Claytor, 652 F.2d 181, 185 (D.C. Cir. 1981)

(internal quotations and citations omitted); see also

Payne v. Brownlee, 2006 U.S. Dist. LEXIS 17054

(D.D.C., Mar. 24, 2006)(approvingly citing Baxter for

the proposition that while the Board lacks authority to

disturb finality of courts-martial, the Board can remove

all trace of one from a servicemen’s record to remove an

injustice); Owings v. Secretary of United States Air

Force (SAFOS), 447 F.2d 1245, 1249- 50 (D.C. Cir.

1971)(distinguishable on other grounds, but concerning

the consideration of a district court’s reversal of a

Board of Corrections decision that failed to remove an

unjust court-martial).

In 1983 Congress amended the statute and as

pertinent to this action, included section (f) to 10 U.S.C.

1552 which provides as follows:

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 [10 USCS §§ 801 et seq.]

(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 [10 USCS §§ 801 et seq.] (or under the

Uniform Code of Military Justice (Public Law

19

506 of the 81st Congress)); or

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

purposes of clemency. (Emphasis added).

This Court has not weighed in on whether this

amendment, which would seem to place some

restrictions on the Naval Board’s authority with

respect to courts-martial, applies to summary courtsmartial sentencing. The Sixth Circuit’s decision below

has ruled that it does, but the question is whether a

summary court-martial sentence is a record of a courtmartial “tried or reviewed” under Chapter 47.

The language “tried or reviewed” would seem to

apply to cases actually taken to a trial and/or appeal.

This would seem to make sense under the purpose of

why the Congress amended the statute to begin with

since it was to prevent the redundancy created when a

robust but streamlined appellate process for the

military justice system was created in the same bill.

The intent of the changes to the Naval Board’s

authority was to prevent them from being a second

appellate forum “overturning as a matter of law,

findings or sentences of courts-martial.” (S.B. 98-53, at

11). The Naval Board was no longer to be the review

authority for courts-martial, but neither expungement

nor clemency are an “overturning” of anything.

Further, this amendment does not repudiate all

ability of the Naval Board to review records to correct

injustice. The Naval Board has already been held by

lower courts to have retained its authority to correct

injustices with respect to Article 15 punishment and

the Naval Board still maintains clemency powers with

20

respect to courts-martial. E.g. Cooper v. United States,

285 F. Supp. 3d 210 (D.D.C. January 10, 2018).

The relevant committee reports from both the

Senate (S. Rep. No. 98-53) and the House of

Representatives (H.R. Rep. No. 98-549) suggest that

minimal consideration was given to the scenario

created when the non-adversarial summary courtmartial process results in a plea agreement. In such a

circumstance, there is no trial and no appellate review.

Thus, such a proceeding falls outside of the purview of

the amendment, and also does not risk the redundancy

the amendment was intended to eliminate. Indeed, the

Naval Board is the most likely and reasonable forum to

address issues with these processes which would be

targeted towards a backstop of basic fairness, as

opposed to any formal legal basis for reversals.

Under the Sixth Circuit’s analysis, the nonsensical,

counter-intuitive result is that the Naval Board is free

to correct unjust Article 15 punishments, but is

powerless to correct unjust summary courts-martial.

This is despite these two disciplinary vehicles being

treated virtually the same – even using the same form,

but with summary courts-martial carrying slightly

higher penalties. Surely such a formalistic and illogical

result was not intended by Congress.

Bolton’s summary court-martial sentence was not

“tried or reviewed” through the military justice system.

Rather, it was a result of a non-adversarial plea

agreement, via summary court-martial. It also is

important to understand that Bolton’s application to

the Naval Board was a request for removal of an unjust

summary court-martial sentence, not a request to

21

reverse a summary court-martial finding as a matter of

law. Accordingly, the summary court-martial sentence

should be afforded limited review by the Naval Board

to correct an injustice.

II. The Naval Board’s decision was arbitrary and

capricious as it failed to review Bolton’s full

service record.

Article III Courts are vested with the authority to

vacate the Naval Board’s improper ruling where the

ruling was arbitrary and capricious, failed to rely on

substantial evidence, or is otherwise contrary to law. 10

U.S.C. § 1558(f)(3)(A). In pertinent part, 10 U.S.C.

§ 1558(f)(3)(A) states:

A court of the United States may review a

recommendation of a special board or an action

of the Secretary of the military department

concerned on the report of a special board. In

any such case, a court may set aside the action

only if the court finds that the recommendation

or action was-(A)

(B)

(C)

(D)

arbitrary or capricious;

not based on substantial evidence;

a result of material error of fact or

material administrative error; or

otherwise contrary to law.

Additionally, the Naval Board’s decisions are

reviewable pursuant to the Administrative Procedure

Act, 5 U.S.C. § 500 et seq. The procedures taken by the

Marine Corps unfairly punished Bolton twice for the

same infraction, failed to afford him all of his

22

substantive rights, and induced him to take a plea deal

without apprising him of the fact that doing so would

bar him from reenlisting in any branch of military

service. As such, the sentence of the summary courtmartial was substantively and procedurally unfair to

Bolton. It resulted in a manifest injustice. When the

Naval Board was petitioned by Bolton under 10 U.S.C.

§ 1552 to review his record and correct the injustice,

the Naval Board did not review a complete record.

Therefore, its decision denying Bolton relief was

arbitrary and capricious.

The failure to review a complete record rendered the

Naval Board’s decision procedurally flawed. To affirm

the Board’s decision a court must conclude that the

Board “examined the relevant data and

articulated a satisfactory explanation for its

action including a rational connection between the

facts found and the choice made.” Coburn v. Murphy,

827 F.3d 1122, 1126 (D.C. Cir. 2016)(reviewing decision

of the Army Board for Correction of Military

Records)(emphasis added). Minimally, the reviewing

court “must satisfy itself that the Board considered all

of the relevant evidence and provided a reasoned

opinion that reflects a contemplation of the facts and

circumstances pertinent to the case before it.” Barna v.

United States, 127 Fed. Cl. 253, 270-271 (2016). These

lower court decisions with respect to the Naval Board

are consistent with this Court’s jurisprudence with

respect to administrative agencies that must likewise

consider all relevant factors and establish a record

sufficient for a reviewing court. Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). The

Naval Board’s decision fails on both counts as it did not

23

examine all relevant data and it failed to articulate a

satisfactory explanation for its decision.

The D.C. Circuit has already rejected the argument

that the Naval Board does not have to consider all

pertinent evidence of record because it is not an

“investigative body.” See Morrison v. Sec’y of Def., 760

F. Supp. 2d 15 (D.D.C. 2011). Rather the Morrison

court made clear that even though the Naval Board is

not an investigative body, it must consider all pertinent

evidence, which includes evidence of exceptional

service:

Although not an investigative body, 32 C.F.R.

§ 723.2(b), the BCNR is required to review “all

pertinent evidence of record” when it examines

applications to correct naval records.

Id.

§ 723.3(e)(1). Pertinent evidence includes factors

mitigating against the decision that led to the

record sought to be changed, such as

“exceptional service.” See, e.g., Fuller v. Winter,

538 F. Supp. 2d 179, 184 (noting the BCNR’s

conclusion that an applicant’s “many years of

exceptional service mitigated his conduct” and

thus militated in favor of changing records

concerning the applicant’s involuntary

separation).

Id. at 20. While the Sixth Circuit attempts to

distinguish the Morrison case in a footnote, in reality

it created a circuit split as to whether the Naval Board

must review evidence of exceptional service when

rendering a decision on an application to correct a

military record.

24

Notably, the administrative record submitted by the

Naval Board lacks any reference to Bolton’s written

commendation from his Battalion Commander on April

1, 2010. There is also exceedingly little information in

the record regarding Bolton’s service, which included

multiple promotions and tours of duty abroad,

including tours in Iraq; a Marine Expeditionary unit to

Bahrain, Greece, Turkey, Jordan and Kuwait;

assignment to the Republic of Georgia to Georgian

forces; and, a rescue mission to Haiti, after the country

was struck by a hurricane. Thus, all relevant data was

not considered by the Naval Board in coming to its

decision.

The Sixth Circuit indicated that it was uncertain as

to how Bolton could know that the record was

incomplete. (Pet.App. 21).

Bolton knows the

administrative record submitted by the Board to the

District Court was incomplete because it lacks any

reference to the written commendation from his

Battalion commander. Thus even if the Naval Board

had a full service record in front of it, Naval Board’s

submission of the administrative record to the District

Court was incomplete. Either way the omission would

constitute a failure of the Naval Board to review all

relevant facts and to submit a sufficient record to the

reviewing courts.

Further, the minimal explanation given by the

Naval Board in its decision is far from satisfactory.

The Naval Board’s decision includes only one

substantive paragraph with a factual analysis. That

paragraph is founded almost exclusively on events of

2007 (making Bolton 19 years old at the time). These

25

events have little to no relevance to the issue of

whether relief should be granted to Bolton on the

grounds set forth in his application. (Pet.App. 39-40).

Further, the record is exceedingly limited as to the

circumstances around the 2007 incident. Bolton

entered the service out of high school a young man who

made some mistakes and who has acknowledged those

mistakes. Bolton only seeks what any similarly

situated civilian would be able to obtain, a fresh start,

free of a record besmirched by the mistakes of his

youth. The decision of the Naval Board was arbitrary

and capricious and the lower courts’ decisions have

denied Bolton the appropriate level of judicial review to

which he is entitled under 10 U.S.C. § 1558.

The Naval Board’s counterargument that it is not

an investigative body does not alleviate the Naval

Board of the requirement to review all of the pertinent

evidence. Importantly, the Naval Board has not

asserted in any of its briefings that the administrative

record contains the entire “service record” of Bolton.

The Naval Board should not be permitted to simply

rely on portions of Bolton’s service record that the

Marine Corps views as supporting its position. The

instruction on the application to the Naval Board leads

applicants to believe that their full service records will

be reviewed. Instruction number six states, in

pertinent part, that “all evidence not already

included in your record must be submitted by you.”

(Emphasis added).2 This language suggests to the

applicant that a full service record is provided to the

2

Form DD 149 available at: https://www.esd.whs.mil/Portals/54/

Documents/DD/forms/dd/dd0149.pdf (accessed April 11, 2019)

26

Naval Board for review and that the applicant is

further permitted to provide additional information if

he or she so chooses. In further promulgating the

guise that its review is comprehensive, the Naval

Board’s decision misleadingly implies that Bolton’s

entire record was reviewed. (Pet.App. 38-40).

The Naval Board failed to consider evidence of

Bolton’s exceptional service, including having been

recommended for a Navy Commendation Medal for

exceptional actions in Haiti and a written

commendation from his Battalion Commander. This

failure resulted in an arbitrary and capricious decision

which the lower courts have failed to correct.

The Sixth Circuit’s analysis raises an important

question about the proper legal standard for reviewing

the Naval Board’s decisions. While this Court’s decision

in Orloff v. Willoughby, 345 U.S. 83, urged the judiciary

to be scrupulous not to interfere with legitimate

military matters, the extraordinary deference now used

by lower courts is excessive. If the Naval Board is not

even minimally required to review an applicant’s entire

service record, there is no verifiable baseline to ensure

a rational connection between the Naval Board’s

decision and the facts at issue. This Court should hold

that the Naval Board must minimally review the entire

service record of applicants seeking clemency.

27

CONCLUSION

The Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

THOMAS F. HULL, II

Counsel of Record

MANCHESTER, NEWMAN &

BENNETT, L.P.A.

The Commerce Building

Atrium Level Two

201 E. Commerce Street

Youngstown, Ohio 44503-1641

330-743-1171

THull@mnblawyers.com

Counsel for Petitioner