Petition for Writ of Certiorari — John F. Sharpe, Petitioner v. United States
Supreme Court briefNov 25, 2019
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I
No.
3fn tfie Supreme Court of ttje fHmteb States
CDR John F. Sharpe, USN, Petitioner
V.
United States of America
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
u
PETITION FOR WRIT OF CERTIORARI
CDR John F. Sharpe, USN
Pro se
13680 Bold Venture Drive
Glenelg, Maryland ,21737
(757) 645-1740
(703) 614-9165
j ohn. sharpe@charter. net
john.f.sharpe2.mil@mail.mil
QUESTIONS PRESENTED
This case concerns the Defense Finance and Ac
counting Service (DFAS) and its inexplicable refusal
under 10 U.S.C. § 1552(c) to calculate, with respect
to certain military pay and allowances, which it ad
ministers, the amounts “found to be due the [Peti
tioner] on account of his service in the . . . Navy,” id.,
following the correction of his naval record by the
Secretary of the Navy (SECNAV), acting through the
Board for Correction of Naval Records (BCNR).
Instead of exercising its discretion as obliged un
der § 1552(c) - clearly interpreted by regulations and
by 65 years’ worth of settled administrative and judi
cial case law, consistent with the legislative history
as to the statute’s meaning - and under 31 U.S.C. §
3702, implemented at 32 C.F.R. § 281, making DFAS
responsible for setting military pay claims, the latter
balked, instead demanding — a year after SECNAV’s
favorable action - that Navy personnel officials tell
DFAS what the financial consequences of Petitioner’s
§ 1552 record correction should be. The Navy im
properly acquiesced, for purposes of litigation (then
stayed in the Court of Federal Claims), and had a
uniformed attorney draft a letter for a civilian col
league in the Bureau of Personnel (BUPERS), direct
ing DFAS to “re-correct” Petitioner’s record to arrive
at the entitlements outcome Navy litigators thought
appropriate, not only contrary to the original Secre
tarial correction but in violation of every conceivable
correction-board case, statute, and regulation.
Both the Court of Federal Claims and the Federal
Circuit upheld the Navy lawyers’ actions, while
strangely ignoring the volume of statutory, regulato
ry, and case law cited in Petitioner’s briefs.
(I)
This factually simple case has sweeping implica
tions. The Federal Circuit’s errors contradict this
Court’s (and its own) precedents in fundamental are
as of constitutional and administrative law, clouding
a previously clear horizon of adjudication and prac
tice in administratively settling claims arising from
military-record corrections. Summary reversal and
remand to DFAS are absolutely in order, on the basis
of the answers to the following questions presented:
I.
Whether the acts of officials of the De
partments of Defense and of the Navy are
bound by statute and regulation.
II.
Whether a court may find valid an act of
agency counsel purporting to exercise
agency discretion, when the officials en
trusted with it have failed to act in the
first instance, and the court’s judgment
will thereby substitute for the agency’s.
III. Whether the federal separation of powers
permits the judiciary to exercise discretion
with respect to military personnel assign
ments.
IV. Whether the Constitution permits dis
bursements from the federal treasury on
an equitable basis without express statu
tory or regulatory authorization.
V.
Whether the entitlement of a uniformed
servicemember to pay and allowances de
pends on work performed or services ren
dered, absent a provision to the contrary
by the applicable statutes or regulations.
(II)
(Ill)
TABLE OF CONTENTS
QUESTIONS PRESENTED......................
TABLE OF CONTENTS............................
TABLE OF AUTHORITIES........ ..............
PETITION FOR WRIT OF CERTIORARI
OPINIONS BELOW...................................
JURISDICTION.........................................
STATUTORY AND REGULATORY
PROVISIONS INVOLVED..................
STATEMENT.............................................
A. Factual and Procedural History................
B. The Meaning of Amounts “Found To Be
Due” in § 1552(c) and the Distinction
Between Record Corrections and Ensuing
Pay Entitlements, According to
Legislative History, Regulatory
Interpretation, and Consistent
Administrative Practice.............................
REASONS FOR GRANTING THE
PETITION.................................
A. The result reached by the courts rests on
an illegal foundation, which, if uncured,
will endure to offend Constitutional,
Congressional, and this Court’s
principles, as well as the Federal Circuit’s
own precedents upholding them................
B. The Federal Circuit’s decision puts its
own settled case law in jeopardy................
C. The issue is extremely important...............
I
III
V
1
1
1
2
2
2
11
25
26
32
33
(IV)
D. Summary reversal or vacatur and
remand to agency is the proper remedy.
34
CONCLUSION................................................
35
APPENDIX Volume I (separately bound)...
I
APPENDIX Volume II (separately bound)..
I
(V)
TABLE OF AUTHORITIES
Constitutional Provisions
U.S. Constitution, Article I, § 9, cl. 7
2, 28
Statutes
I, 2, 12, 19
31U.S.C. § 3702..................................
34
5 U.S.C. § 706......................................
An Act To Amend Section 207 of the Legislative
12, 18, 20
Reorganizations Act of 1946
Legislative Reorganization Act of 1946....2, 12, 18, 19
Military Pay Act, 37 U.S.C. §§ 305a and 403........... 2
The General Accounting Office Act of 1996, Pub. L.
No. 104-316, § 202, 110 Stat 3826 (codified at 31
U.S.C. § 3702).............................................................. 19
The Legislative Branch Appropriations Act, Pub. L.
No. 104-53, § 211, 109 Stat. 514 (1995).................. 19
Cases
Bell v. United States, 366 U.S. 393 (1961)............... 30
Boruski v. United States, 155 F. Supp. 320 (Ct. Cl.
1957)............................................................................. 30
Burlington Truck Lines v. United States, 371 U.S.
156 (1962)..................................................................... 31
Cathy v. United States, 191 F.3d 1336 (Fed. Cir.
1999)............................................................................. 32
Chevron USA v. Nat. Res. Def. Council, 467 U.S. 837
25
(1984).......................................................................
Consolidated Edison Co. v. NLRB, 305 U.S. 197
34
(1938).......................................................................
Craft v. United States, 218 Ct Cl. 579 (1978) 4, 21, 32
(VI)
Dock v. United States, 46 F.3d 1083 (Fed. Cir. 1995).
30
FCC v. Fox Television Stations, Inc., 556 U.S. 502
(2009)............................................................................ 25
Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380
(1947)............................................................................ 28
Interstate Commerce Comm. v. Bhd. ofLocomotive
Eng’rs, 482 U.S. 270 (1987)...................................... 31
Jackson v. United States, 216 Ct. Cl. 25 (1978)...... 27
Mercier v. United States, 786 F.3d 971 (Fed. Cir.
2015).............................................................................. 29
Office ofPers. Management v. Richmond, 496 U.S.
414 (1990))................................ ................................... 29
Oleson v. United States, 172 Ct. Cl. 9 (1965)........... 33
Orloff v. Willoughby, 345 U.S. 83 (1953)................... 31
Proper v. United States, 139 Ct. Cl. 511 (1957)...... 33
Ray v. United States, 197 Ct. Cl. 1 (1972)
21, 32
Reale v. United States, 208 Ct. Cl. 1010 (1976).31, 32
Sanders v. United States, 219 Ct. Cl. 285 (1979)
4
Schweiker v. Hansen, 450 U.S. 785 (1981).
28, 34
SEC v. Chenery Corp., 332 U.S. 194 (1946)
31
Sharpe v. United States, 134 Fed. Cl. 805 (2017).. 1
Sharpe v. United States, 935 F.3d 1352 (Fed. Cir.
2019)............................................................................ 1
Smith v. United States, 47 Ct. Cl. 313, 315 (1912)..28
Strickland v. United States, 423 F.3d 1335 (Fed. Cir.
2005).......................................................................... 32
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504
(1994)......................................................................... 34
United States v. Larionoff, 431 U.S. 864 (1977).. 30
United States v. Mead Corp., 533 U.S. 218 (2001) ..25
(VII)
Vandermollen v. U.S., 571 F.2d 617 (D.C. Cir. 1977)
27
32
Weiss v. United States, 187 Ct. Cl. 1 (1969)....
4
Weller v. United States, 41 Ct. Cl. 324 (1906).
Legislative Materials
97 Cong Rec 7588................................................. 12, 33
18
97 Cong. Rec. 13785............................................
Authorizing Payment of Claims Arising From
Correction ofMilitary and Na val Records•' Hearing
on HR. 1181 Before a Subcomm. of the S. Comm,
18
on Armed Serv., 82nd Cong. (1951)
19
Budget Act.............................................
Full Committee Hearing on H. R. 662, H. R. 1199, H.
R. 1200, H. R. 1201, H. B. 1203, H. R. 2736, H. R.
2737, H. B. 1179, H. R. 2735, H R. 1181, H. R.
1215, H. R. 1216, S. 927, H. R. 391V Hearing
Before the H. Comm, on Armed Servs., 82nd Cong.
17
(1951)...................................
passim
H.R. Rep. No. 82-449 (1951)
18
S. Rep. 82-788 (1951)............
Subcommittee Hearings on H.R. 1181, To Amend
Section 207 of the Legislative Reorganization Act
of1946 so as To Authorize Payment of Claims
Arising from the Correction ofMilitary or Naval
Records' Hearing Before the H. Comm, on Armed
Servs. Subcomm. No. 3, 82nd Cong. (1951) ....14, 17
Regulations
32 C.F.R. § 723....................................................
Department of Defense (DoD) Financial
Management Regulation (DoD FMR), DoD
7000.14-R...........................................................
5, 24
24
(VIII)
Defense Claims Appeals Board Decisions
DOHA Claims Case No. 00060601 (2000)...........
19
DOHA Claims Case No. 2012-CL-082003.2.......12, 23
Comptroller General Decisions
Acting Comptroller General Weitzel to the Secretary
of the Army, 34 Comp. Gen. 7 (1954). .20, 21, 24, 25
Assistant Comptroller General Yates to J. W.
Eldridge, U. S. Marine Corps, 32 Comp. Gen. 242
(1952)...............................................................
20
Assistant Comptroller General Yates to the
Secretary of the Army, 27 Comp. Gen. 665 (1948) 12
To Commander M. MAlexander, Department of the
Navy, 42 Comp. Gen. 252 (1962)............................ 21
To Emery, Sells and Wood, Attorneys, B-147096,
1966 U.S. Comp. Gen. LEXIS 1983 (Comp. Gen.,
1966).............................................................................. 33
To Lieutenant (jg) H. F. Beerman, Department of the
Navy, 49 Comp. Gen. 656 (1970)...................... 21, 22
Other Authorities
DoD GC Opinion DoD/GC #97-5 (1997)............... 22, 23
Eugene R. Fidell, The Boards for Correction of
Military and Naval Records'- An Administrative
Law Perspective, 65:2 ADMINISTRATIVE LAW
Review 499 (2008)....................................................... 33
Letter from Comptroller General, May 25, 1951, B74279............................................................................. 16
1
IN THE
Supreme Court of tfje QSntteb States!
No.
CDR John F. Sharpe, USN, Petitioner
V.
United States of America
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
petition for writ of certiorari
CDR John F. Sharpe, USN, respectfully petitions for
a writ of certiorari to review the judgment of the
United States Court of Appeals for the Federal Cir
cuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App. la- 19a) is
reported at 935 F.3d 1352. The opinion and order of
the Court of Federal Claims (App. 20a-50a) is report
ed at 134 Fed. Cl. 805.
JURISDICTION
The judgment of the court of appeals was entered on
2
August 27, 2019. This Court has jurisdiction under
28 U.S.C. 1254(1).
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
Pertinent provisions of the U.S. Constitution, Article
I, § 9, cl. 7, the Legislative Reorganization Act of
1946 (and the 1951 Act amending it), codified at 10
U.S.C. § 1552 et seq, the Military Pay Act, 37 U.S.C.
§§ 305a and 403, the Budget and Accounting Act,
1921, as amended and codified at 31 U.S.C. § 3702,
and applicable regulations and policies and other
matters are reproduced in the appendix to the peti
tion (App. 387a-423a).
STATEMENT
This case could be an ideal vehicle for clarifying
the operation of 10 U.S.C. § 1552(c) with respect to
determining
amounts
due
an
aggrieved
servicemember incident to a correction of military
records. The lower courts’ opinions clearly reflect
confusion. But the more practical approach is a
summary reversal or vacatur, recommended infra, to
prevent those opinions from offending this Court’s
decisions in crucial areas of administrative law, key
Constitutional principles, the Federal Circuit’s own
case law, and well-established administrative prac
tice.
A. Factual and Procedural History
1. Petitioner is an active-duty Naval officer who
was illegally discharged in September 2009. Prior to
his discharge, he was assigned to the aircraft carrier
3
USS CARL VINSON (CVN 70) as his permanent du
ty station by BUPERS Order 0867, App. 351a. He
reported on June 20, 2006, App. 60a. To effect his
discharge, the Navy issued him BUPERS Order
2589, App. 372a, directing him to take three steps:
1) “WHEN DIRECTED BY REPORTING SENIOR,
DETACH IN SEP 09 FROM CVN 70 VINSON”; 2)
“ACCORDANCE MILPERSMAN 1910 812 REPORT
PRESENT CO FOR TEMPORARY DUTY IN CON
NECTION WITH SEPARATION PROCESSING”;1 3)
“UPON COMPLETION AND WHEN DIRECTED
DETACH.” The orders did not order his discharge or
separation; instead, they made that separation effec
tive and contingent upon his executing the orders to
detach from the ship: “BY DIRECTION OF THE
PRESIDENT, AND PURSUANT TO PROVISIONS
OF SECNAVINST 1920.6 (SERIES) AND 10 U.S.C.
SEC. 1184/1186, DISCHARGE FROM THE U.S.
NAVAL SERVICE TO TAKE EFFECT AT 2400 ON
DATE OF DETACHMENT FROM ACTIVITY AT
WHICH SEPARATED.”
2. In September 2015 Petitioner applied to the
BCNR and filed a Complaint with the COFC for back
pay and reinstatement; the former to meet the stat
ute of limitations concerns, the latter remain stayed
while BCNR and the Navy took remedial action.
BCNR voted in October 2015 to grant him full relief,
but processing the decision was not complete until
April 2016, when it was approved for the SECNAV.
That decision, made under 10 U.S.C. § 1552(a), de
termined that Petitioner’s separation was “void due
to plain legal error,” App. 346a, and corrected Peti
tioner’s record to show that he had never left the Na1 Navy personnel regulations provide that “Members . . .
will normally be separated on board their current command.”
Apip. 407a.
4
vy, expunged BUPERS Order 2589, and directed that
“no [similar] entries or material be added to [his rec
ord] in the future.” Incident to BCNR’s action, on De
cember 6, 2016, Petitioner received BUPERS Order
3426 directing him to “REPORT NOT LATER THAN
MAY [20] 17 TO CHINFO/FSD LIAISON OFFICE
PERMANENT
DUTY
STATION
DC,
WASHINGTON” by way of a first temporary duty
stop to commence no later than February 13, 2017.
App. 30a. No order intervened2 between the order
attaching him to CARL VINSON and the new De
cember 2016 order to disturb his attachment to the
ship3 or otherwise effect a change of duty station.4
And because Order 2589 was never legally in his rec
ord, in view of BCNR’s action,5 his record unavoida
bly reflected — following that action - continuous as
signment to CARL VINSON from his June 2006 re
port date until the day before he reported to the new
temporary duty station. Indeed, the Navy itself had
acknowledged that Petitioner’s having “orders to
USS CARL VINSON” meant that he was “assigned”
2 As the government and courts acknowledged. App. 9a n.5.,
COFC 15-1087C ECF No. 43 at 22.
3 See App. 410a (“Change of duty orders . . . detach mem
bers from one duty station and assign them to another station.”)
4 App. 410a (“A [Permanent Change of Station (PCS)] order
must direct a PCS.”).
5 Craft v. United States, 218 Ct Cl. 579, 600 (1978) (noting a
military “record correction relates back and retroactively
changes the factual situation”); see e.g., Weller v. United
States, 41 Ct. Cl. 324 (1906) (“An illegal order of discharge or
dismissal is void and has no effect upon the status of the of
ficer.”); Sanders v. United States, 219 Ct. Cl. 285, 316 (1979)
(Nichols, J., concurring) (“The result of the voiding was that the
[orders] were legally never in his file. This kind of record correc
tion is effective ab initio unless otherwise stated”).
5
there.6
3. Petitioner subsequently engaged in administra
tive and judicial efforts (via the stayed COFC case) to
have his back pay and allowances determined pursu
ant to § 1552(c) and to have the claim he submitted
with his BCNR application settled.7 App. 312a. In
January 2017 the government reported to the COFC
that
DFAS will ultimately determine how Mr.
Sharpe’s basic allowance for housing (BAH)
and Career Sea Pay (CSP) will be calculated,
pursuant to applicable regulations. DFAS has
its own administrative appeals process, which
would be available to Mr. Sharpe if he is un
satisfied with DFAS’s ultimate calculations.
App. 246a. Notwithstanding this and consistent prior
and subsequent representations,8 DFAS determined
in early May 2017 that it would not make calcula
tions “pursuant to applicable regulations” of these
6 COFC A.R., 0085, Dep. Asst. Judge Advocate General let
ter of Aug. 31, 2015 (emphasis supplied).
7 COFC A.R., 1688-92. See 32 C.F.R. § 723.10(b)(1) App.
396a (“[A] claim for settlement and payment may be filed as a
separate part of the application for correction of the record.”).
8 In April 2016 BCNR directed DFAS to pay amounts due,
App. 203a. The government reported on December 12, 2016,
that “[DFAS] will calculate the back pay amounts due.” App.
206a. On February 10, 2017, DFAS acknowledged that there
would be a “settlement . . . made.” App. 278a. On two occasions
in March 2017, the government informed the COFC that DFAS
pay calculations were pending or underway. App. 284a (“DFAS
has begun calculating the back pay amounts.”); App. 292a
(“DFAS has informed counsel that once it receives all the neces
sary documentation, the remainder of the process would take a
maximum of thirty days.”).
6
pay items, but would instead demand “a memoran
dum from the Navy’s Chief of Naval Personnel, re
flecting the personnel decisions on which these enti
tlements would be based.” App. 298a. DFAS was ap
parently uncomfortable with the idea that, as coun
sel represented to the court, “during [years of his
constructive service] the ship to which Mr. Sharpe
was assigned changed ports (going from a locale with
a lower BAH to a higher one), [because the] move
raises the question of the proper geographic locale to
use for computing BAH.” Id. (emphasis supplied),
App. 298a. But there was no “question,” because if
Petitioner was indeed “assigned” to CARL VINSON,
it would just be a matter of accounting for CARL
VINSON’s admitted move to San Diego, Calif., on
April 1, 2010, App. 61a, and applying to Petitioner’s
corrected record the federal regulations making the
BAH rate depend on the location of the home port in
the case of a member assigned to a ship9 and direct
ing pay officials to “[cjhange the housing allowance
to the new home port rate on the home port change
effective date prescribed by the Service.” App. 412a.
DFAS also balked at paying CSP, because that was
another entitlement Petitioner was receiving on the
basis of his assignment to CARL VINSON, consistent
with statute and regulation. (He was also close to re
ceiving a CSP-Premium (CSP-P) (together “Sea Pay”)
due to sea-service longevity. App. 62a)
Thus, rather than apply law and regulation to Pe
titioner’s record as corrected, DFAS put the onus on
Navy personnel officials to “reconstruct” his record more than a year after BCNR made its correction,
“final and conclusive on all officers of the United
9 “[A] housing allowance is paid based on . . . the home port
for a member assigned to a ship or afloat unit.” App. 412a.
7
States,” § 1552(a)(4). The Navy acquiesced, telling
the court it was “drafting the memorandum to the
Chief of Naval Personnel, [to] reflect all the entitle
ments the Navy believes should be accorded.” App.
298a-299a. Petitioner responded by noting that he
had already in September 2015 submitted a detailed
“Claim for settlement and payment” which DFAS
had simply ignored. App. 304a*305a.
The Navy personnel marshaled to accede to
DFAS’s request were not pay-entitlement officials or
even personnel managers but rather military and ci
vilian attorneys responding to understandable pres
sure from the COFC, following a May 5, 2017, status
call, to finalize the government’s view regarding in
ter alia the increasingly controversial BAH and Sea
Pay questions. App. 55a. To meet the court’s de
mands, a uniformed Judge Advocate General’s (JAG)
Corps officer drafted a letter in early May 2017 that
she had a legal adviser named Brian Bourne at Navy
Personnel Command (NPC) - an office wholly unre
lated to BCNR - sign on May 11, 2017. App. 57a-63a.
The letter directed DFAS to “correct [Petitioner’s]
record”10 to show his assignment to CARL VINSON
ended on September 30, 2009,11 and to show the
kinds of pay that — on the basis of that assumption —
the JAG thought he was “not entitled” to,12 based
upon what she thought “would have happened” in
10 “I request that DFAS take the following actions pertain
ing to CDR Sharpe’s pay to correct his record.” App., 60a.
u “[H]is record (including pay) should be corrected to show
that his sea duty ended on 30 Sep 09.” App., 61a.
12 His “naval record should be corrected to show BAH al
lowance at the Norfolk, Virginia rate from 1 Oct 09 until he re
turned to active duty on 13 Feb 17,” App., 61a! “naval record
should be corrected to reflect he is not entitled to [CSP] for that
period,” App., 61a! “naval record should be corrected to show he
is not entitled to [CSP-P].” App., 62a.
8
the absence of Petitioner’s discharge (improperly
memorialized in her letter)13 and upon other extra
record facts.14
Armed with the NPC letter, DFAS paid Petitioner
BAH at the Norfolk, Va., rate, COFC 15-1087C ECF
No. 39 at 1, even though there was not a stitch of ev
idence in his record that he was assigned to a Nor
folk, Va., duty station and therefore authorized by
law to a payment of BAH at the Norfolk rate. DFAS
also declined to pay Sea Pay on the basis of Petition
er’s Bourne-directed (in May 2017) detachment (in
September 2009) from his ship.
4. In response to the Bourne record “reconstruc
tion,” Petitioner moved the court for leave to amend
his Complaint to address the irregularities with the
approach to the BAH and Sea Pay, and to file a Mo
tion for Summary Judgment (MSJ).15 In his motion,
Petitioner sought legal review of the key problems he
saw with the Navy-DFAS action: l) the illegality of
Bourne’s attempt to “correct” his record, outside of a
correction-board proceeding and contrary to the cor
rection BCNR had made the year before; 2) his un13 “Sharpe was assigned to USS CARL VINSON (CVN 70)
from 20 Jun 06 to 30 Sep 09, when he was separated from the
Navy ... he would not have continued to serve aboard USS
CARL VINSON past 2009,” App., 60a-61aJ “after the date on
which CDR Sharpe would have been transferred under perma
nent change of station orders, had he not been separated”; that
“CDR Sharpe did not serve aboard ship, and for constructive
service purposes would not have been assigned to a ship, from 1
Oct 09 to 12 Feb 17,” App., 61a.
14 “Following his separation, CDR Sharpe and his depend
ents continued to reside in Carrollton, Virginia.” App., 61a.
15 The MSJ had 5 counts originally, including one for BAH
and one for Sea Pay; the others were minor pay issues and a
state tax withholding issue, each mooted by administrative res
olution.
9
lawful arrogation of discretion to give direction as to
the entitlements that accrued to Petitioner under §
1552(c) following BCNR’s record correction; 3)
DFAS’s improper reliance on Bourne’s void “record
correction” and his frankly irrelevant opinion as to
Petitioner’s entitlements! and 4) DFAS’s and the Na
vy’s failure to apply statutes, regulations, and case
law (where necessary) to his record as it stood follow
ing BCNR’s correction and arrive at an dispassionate
accounting of the Sea Pay and BAH due to him.
5. Rather than engage in a serious review, the
COFC produced instead an opinion declaring only
that Bourne had every right to exercise discretion
with regard to Petitioner’s record and pay, that the
Navy’s decisions regarding BAH and Sea Pay were
“reasonable,” and anything otherwise would be “illog
ical.” This is partly because, the court said - in the
case of the BAH - the Navy put -Petitioner in the
“same position” he had at the time of his separation,
App. 46a, but what the court meant was gave him
the “same pay,” because the “same position” would
have required his pay rate to change during the
course of the constructive-service period, as DFAS
recognized regarding the change in Petitioner’s basic
pay due to annual pay raises and his increase in lon
gevity in the service.16 (And the “same position”
equals “same pay” logic was only used when it de
feated finding an entitlement! where the logic would
have granted the entitlement, in the case of Sea Pay,
which Petitioner was receiving when separated, App.
47a n.16, the court avoided it.) The lengthy MSJ Pe
titioner provided explaining the legal background to
correction-board action, constructive-service case
law, the statutes and regulations relating to BAH,
16 App. 311a.
10
Sea Pay, and the predicate issues of military person
nel assignments and duty stations was simply ig
nored by the court. Instead, its opinion took ad
vantage of Petitioner’s assigned failure to prove that
he “would have” remained assigned to CARL
VINSON following his separation from the Navy,
had he not been separated,17 to endorse the contrary,
speculative Bourne presumption that Petitioner
would not have remained assigned to CARL
VINSON (even though the effect of BCNRs record
correction was to make his record reflect that he did
remain so assigned), directly contrary to binding cir
cuit precedent (briefed to the court, App.147 a) hold
ing that a court “ will not speculate as to what the
outcome might have been had the error not oc
curred.”19,
6. Petitioner fared no better with his motion to
reconsider (MTR) or appeal. The COFC claimed that
all of his arguments had been “carefully considered
by the Court,” App. 53a. The Court of Appeals for the
Federal Circuit (CAFC) added no analysis of the le
gal issues involved, but instead asserted - equally
contrary to Wagner, supra - that “the facts make
clear,” App. 15a, 17a-18a, that Petitioner “would not
have continued to be assigned to” CARL VINSON
following the date he was separated from the Navy (a
date which, thanks to BNCR, is a nullity in any
event), though the court cited not a single record fact
to justify its claim other than the underlying and im
proper Bourne memorandum justifying its assump17 Even though the posture of his naval record as corrected
by BCNR is a consequence of the fact that he was actually sepa
rated and but constructively in the service, making what
“would have happened” otherwise utterly irrelevant.
18 Wagner v. United States, 365 F.3d 1358, 1365 (Fed. Cir.
2004) (emphasis supplied).
11
tions by reference to nominal tour-length policies
that apply to prospective assignment management
(not retroactive record correction), App. 16a, 60a.
The court also endorsed the idea of placing Petitioner
in the “same position” he was in for BAH purposes,
and of not placing him in the “same position” regard
ing Sea Pay, finding that approach, as the COFC did,
to be “quite reasonable,” App. 15a-16a.
Petitioner now therefore respectfully seeks this
Court’s intervention to remedy, through one of the
alternatives herein suggested, the consequences of
the Federal Circuit’s decision and the incorrect prin
ciples it memorializes. Analysis follows of the legisla
tive and regulatory background that the lower courts
failed to consider in reviewing the Navy-DFAS pro
cess for determining the pay consequences of Peti
tioner’s record correction, and by which to appreciate
how the lower court’s opinions will offend this
Court’s precedents in key areas of administrative
and Constitutional law relating to expenditures from
the treasury and the separation of powers between
the judiciary and the military, and put into confusion
settled circuit law with regard both to these matters
and to issues specific to military record-correction
cases.
B. The Meaning of Amounts “Found To Be Due”
in § 1552(c) and the Distinction Between Rec
ord Corrections and Ensuing Pay Entitle
ments, According to Legislative History, Regu
latory Interpretation, and Consistent Admin
istrative Practice
1. The Military Department Secretaries acquired
the authority to correct servicemember records with
the Legislative Reorganization Act of 1946 (the “1946
12
Act“).19 It had no provision for making payments to
servicemembers who would have a claim for payment
as a result of the record correction, which the Comp
troller General of the United States (CompGen) who exercised claims-settlement authority for the
United States via the General Accounting Office
(GAO), which he supervised20 - pointed out soon af
ter the 1946 Act was passed.21
The CompGen’s opinion prompted Congress to
draft H.R. 1181, An Act To Amend Section 207 of the
Legislative Reorganizations Act of 1946 so as To Au
thorize Payment of Claims Arising From Correction
of Military or Naval Records (the Act), 22 introduced
in the House on January 9, 1951. 97 CONG. Rec. 121
(1951). The bill at first contained a controversial pro
vision regarding the settlement of claims that pro
voked intense discussion between legislators and
witnesses which affords a crystal clear glimpse at the
intent of Congress relative to the connection between
the correction of facts in military records determina
tion of monetary amounts “found to be due on ac19 Pub. L. No. 79-601, § 207, 60 Stat. 812, 837. App. 387a.
20 § 236 of the revised statutes, as amended by the Budget
and Accounting Act of 1921, Pub.L. No. 67-13 (hereinafter
“Budget Act”), 42 Stat. 20, 23-24. In 1982 the act was codified
as part of U.S. Code, Title 31, whereupon the CompGen was
expressly named as exercising the claims-settlement function of
the GAO. See Act of Sept. 13, 1982, Pub. L. No. 97-258, § 1, 96
Stat. 877, 970 (codified as amended at 31 U.S.C. § 3702).
21 Assistant Comptroller General Yates to the Secretary of
the Army, 27 Comp. Gen. 665 (1948). The history of the
amendment to the correction-board statute necessitated by the
CompGen’s opinion is well known. See, e.g., Defense Office of
Hearings and Appeals, Claims Case No. 2012-CL-082003.2, at 7
(2012); 97 Cong REC 7588; H.R. Rep. No. 82-449, at 2 (1951).
22 The Act to Amend Section 207 of the Legislative Reorgan
ization Act, Pub. L. No. 82-220, § 1, 65 Stat. 655, 656 (1951).
13
count of military or naval service as a result” of any
such correction, as the 1951 amendment (Amend
ment) to the original act puts it, consistent with to
day’s 10 U.S.C. § 1552(c).23
2. On May 3, 1951, Stephen S. Jackson, counsel
for the Personnel Policy Board, Department of De
fense (DoD), appeared before a House Committee On
Armed Services (HASC) Subcommittee to discuss the
bill, of which two subsections are relevant. Subsec
tion (b) circumvented the adverse CompGen opinion
by authorizing the Secretary concerned “to settle and
pay . . . claims of any persons ... of amounts . . .
found to be due on account of military or naval ser
vice as a result” of the record correction, while sub
section (c) purported to make the settlement “final
and conclusive”:
The acceptance by the claimant of any settle
ment ... shall constitute a complete release
by the claimant of any claim against the Unit
ed States on account of such correction of rec
ord and such settlement shall be final and
conclusive on all officers of the Government,
including review by the courts of the United
States, except when procured by means of
fraud.24
It had emerged during the hearings that the GAO
objected to that language, which Mr. Jackson ad
dressed as follows:
I urge that we 0 not be forced to delete this
23 Authorizing payment of an amount ““found to be due the
claimant on account of his or another’s service.”
24 H.R. Rep. No. 82-449, at 5-6 (1951). Language referring
to the courts was later removed.
14
[subsection (c)] language, because it would be
implied then that the [GAO] . . . would have
the right to go in and review the merits and to
determine the Board had erroneously made a
decision, and thereafter the money would not
be forthcoming.”25
A GAO witness followed Jackson and distinguished
the authority to correct records and the claimssettlement process. His office, he said, “do[es] not
propose to say the [CompGen] should review the
matter of whether the Board was correct in what it
did, but simply that the [he] should have authority to
audit the payment.”26 Burns appeared again before
the subcommittee and continued the distinction.
Mr. BURNS. [T]here are really two different
things here, and I think it is well to keep that
in mind. One thing is the determination the
correction of the record; and the other thing is
the settlement based on that correction. Sub
section (a) would give the head of the Depart
ment the authority to make the correction. We
do not want to challenge that authority.27
Subcommittee Chairman Durham then asked Burns
to speak to the objections he thought possible from
25 Subcommittee Hearings on HR. 1181, To Amend Section
207 of the Legislative Reorganization Act of 1946 so as To Au
thorize Payment of Claims Arising from the Correction of Mili
tary or Naval Records•' Hearing Before the H. Comm, on Armed
Servs. Subcomm. No. 3, 82nd Cong. 363 (1951) (“May 1951
Hearings”) (statement of Stephen S. Jackson).
26 Id., 368 (statement of John T. Burns, attorney in the Of
fice of the General Counsel, GAO).
27 Id., 377.
15
the DoD to his position. Burns opined that there may
be a fear “that the [GAO]” would
encroach upon the jurisdiction of the Depart
ments to make these corrections of records . . .
. that after they see fit to make certain correc
tions the [GAO] will . . . say, “Congress never
thought you would make any such corrections
as this. This is obviously ‘haywire’ and we just
won’t pay off... . “28
Similar conversation continued between other sub
committee members and a Navy official representing
the DoD. He stated that “the [DoD] would like to
have this bill enacted as is,” explaining that “we do
not want the [GAO] to go into the merit of the
thing.”29 One subcommittee member offered his un
derstanding that the GAO “do[es] not propose to pass
on the merits of the case .... But they do want to
pass on the accounting end of it. Have you objections
to that?” “No sir,” was the reply, “not if they stick to
accounting or arithmetic.”30
3. In reporting the bill, the HASC left subsection
(c) intact but distinguished between the boards > U authority to determine the merits of each particular
case ... to the exclusion of the [CompGen]” and “the
normal auditing authority of the [CompGen]” which
the committee intended not to “disturb.”31
The CompGen, however, was still concerned that
[t]he normal auditing authority of the [GAO]
28 Id., 381 (statement of William H. Baier, Department of
Navy).
28 Id. 387.
30 Id., 394.
31 H.R. REP. NO. 82-449, at 3 (1951).
16
definitely would be disturbed if the bill should
be enacted in its present form .... It is be
lieved that it was the intention of your Com
mittee . . . [merely] to make final and conclu
sive on all officers of the Government any ac
tion taken by the Secretaries .... in making
corrections of records.32
He offered two amendments that would move the fi
nality clause from subsection (c), applicable to set
tlements, to subsection (a), applicable solely to “cor
rections” of records.33
The full HASC then considered the bill and the
CompGen amendments. Before putting the amend
ments to a vote, which was favorable, the HASC
Chairman confirmed his understanding that correc
tion board findings would be protected from pay offi
cials’ reconsideration.
The CHAIRMAN. Now, does it go into the
question of the finding on the merit by the De
partment? That is final and conclusive?
Mr. SMART. That is correct, sir.
The CHAIRMAN. That is right. We want to
keep it that way.
But it merely gives the Comptroller the au
thority to audit what?
Mr. SMART. Audit the payment.
The CHAIRMAN. Audit the payment.
Mr. SMART. So the determination of the
merits as to whether or not a record should be
corrected is final and conclusive by the Board.
32 Letter from Comptroller General, May 25, 1951, B-74279,
at 1.
33 Id.
17
The CHAIRMAN. That is right.34
On July 2, 1951, Senator Vinson briefed the
whole House on the bill and amendments.
When the committee reported the bill, it was
under the impression it had preserved the
normal authority of the GAO to audit the
payments which would accrue from the correc
tion of a record. Subsequently, the [CompGen]
advised the committee that he did not feel that
we had preserved his normal auditing authori
ty and he suggested three amendments which
would accomplish that purpose. Before appear
ing before the Rules Committee on this bill,
the Committee on Armed Services considered
these
suggested
amendments
of the
[CompGen]
and unanimously
approved
them.35
Following the ensuing discussion, the amendments
were agreed to by the House.36
4. Senate action and discussion of the bill fol
lowed. Mr. Jackson again appeared to testify, but
this time confirming before a subcommittee of the
Senate Committee on Armed Services (SASC) that
the “[GAO] objected to the original language making
34 Full Committee Hearing on H. R. 662, H. R. 1199, H. R.
1200, H. R. 1201, H. B. 1203, H. R. 2736, H. R. 2737, H. B.
1179, H. R. 2735, H. R. 1181, H. R. 1215, H. R. 1216, S. 927, H.
R. 3911'- Hearing Before the H. Comm, on Armed Servs., 82nd
Cong. 600-01 (1951). Mr. Smart’s gloss was that prior to the
amendment, the finality “pertained to the payment and not to
the correction.” Id., 601.
35 97 CONG. Rec. 7589 (1951).
36 Id.
18
settlements final and conclusive. The [DoD] yielded
and accepted the language submitted by the [GAO]
on this point.”37 When the SASC reported the bill it
also affirmed that “Corrections made by the boards
are conclusive on all officers of the Government
This provision does not disturb the normal auditing
function of the [GAO] but makes the findings of the
boards not subject to review by other Government
departments .”38
H.R. 1181 became law on October 25, 1951. 97
Cong. Rec. 13785. See App. 387a-388a.
5. The distinction set up late in 1951 between
Secretarial record corrections and payments owed as
a result afforded the CompGen and the implement
ing agencies grounds for establishing a consistent
and coherent administrative interpretation.
A word is in order on the key role of CompGen in
interpretation of the correction-board statutes relat
ing to payment of amounts “found to be due.” The
1951 Amendment would not have been made had it
not been for the definitive 1948 CompGen ruling
foreclosing possibility of payment being made on the
basis of the 1946 Act. On that basis alone his opin
ions are decisive as to agency claims settlement prac
tice. His central role is provided for by the statute
creating his position:
All claims and demands whatever by the Gov
ernment of the United States or against it,
and all accounts whatever in which the Gov
ernment of the United States is concerned ei37 Authorizing Payment of Claims Arising From Correction
of Military and Naval Records: Hearing on H.R. 1181 Before a
Subcomm. of the S. Comm, on Armed Serv., 82nd Cong., 3
(1951).
38 S. REP. 82-788, at 2 (1951).
19
ther as debtor or creditor, shall be settled and
adjusted in the [GAO].39
This authority remained vested in CompGen until
1995, when his claims settlement authority for uni
form servicemember pay and allowances moved to
the Secretary of Defense,40 who further delegated it
via the DoD General Counsel (GC) to the Defense Of
fice of Hearings and Appeals (DOHA),41 also bound
by CompGen’s precedents.42 The transfer of functions
did nothing to alter the distinctions evident from
Congressional and other authorities between mili
tary record corrections and payment made there
upon.
Soon after the 1946 Act was modified, CompGen
had occasion to consider its implications.
[W]hile subsection 207 (b) of the Legislative
Reorganization Act, as amended, supra, au
thorizes the Department concerned to pay
claims for amounts found to be due on account
of military or naval service as a result of a cor
rection of records made pursuant to the pre
ceding subsection 207 (a), the said subsection
39 Budget Act, § 305. Section 301 of the act established the
GAO with CompGen at its head. Id., 42 Stat. at 23.
40 See The Legislative Branch Appropriations Act, Pub. L.
No. 104-53, § 211, 109 Stat. 514, 535 (1995), App. 398a-399a,
and The General Accounting Office Act of 1996, Pub. L. No.
104-316, § 202, 110 Stat 3826, 3843 (codified at 31 U.S.C. §
3702), App. 401a-402a.
41 App. a
42 DOHA Claims Case No. 00060601, at 2 (2000) (“DOHA
bases its decisions on the Comptroller General’s decisions.”);
DOHA Claims Case No. 04090713 (2004) (“This Office follows
the Comptroller General’s interpretation of the law regarding
corrections of military records.”)
20
207 (a) does not authorize a correction of the
records to show the amount due or that any
amount is due or that the claimant will be en
titled to any monetary benefits. The amount to
be paid under 207 (b) pursuant to a correction
of records under 207 (a) depends on a proper
application of the pay statutes to the facts in
the case and the claimant’s status as fixed by
his corrected records. Subsection 207 (a) pro
vides that corrections made thereunder shall
be final and conclusive on all officers of the
Government except when procured by fraud.
But subsection 207 (b) . . . does not make de
partmental determinations final and conclu
sive as to amount payable under the corrected
record.43
Less than two years later CompGen again reviewed
the history of the 1951 Amendment. His conclusion
was that “the Secretaries of the departments con
cerned are not vested . . . with any discretionary
power to make determinations of the specific
amounts to be paid as a result of the correction of
military or naval records.”44 He emphasized that
subsection (b) of H.R. 1181 originally authorized Sec
retaries of the military departments to “settle and
pay” claims - settlements which under subsection (c)
would be final and unreviewable45 - while the stat
ute as enacted authorizes the military departments
only to “pay” amounts due,46 and that the HASC be43 Assistant Comptroller General Yates to J. W. Eldridge, U.
S. Marine Corps, 32 Comp. Gen. 242, 246 (1952).
44 Acting Comptroller General Weitzel to the Secretary of
the Army, 34 Comp. Gen. 7, 12 (1954).
45 H.R. REP. No. 82-449, at 5 (1951).
46 1951 Amendment, App. 388a.
21
lieved that sums payable on a record correction were
“merely collateral” to the correction itself.47 In con
clusion, CompGen opined that, rather than being
discretionary as determined by the Secretary or cor
rection board,
payments based on corrections of military or
naval records . . . are required to be made in
the amounts ascertained or determined to be
due by applying pertinent laws and regula
tions to all material facts shown by the records
as so corrected.48
6. CompGen’s 1954 discussion has been widely
cited. The Court of Claims relied upon his language
in explaining how military back pay cases are settied: “Plaintiffs resulting benefits and liabilities are
dependent upon application of statutes and regula
tions that pertain to the reconstituted military sta
tus,”49 and elsewhere summarized his opinion (com
mended as “able”) as standing for the proposition
that “to avoid Constitutional questions, the grant of
discretion must end with the record correction.”50
And CompGen relied heavily in a 1970 opinion on his
1954 decision (which he noted was “uniformly ad
hered to”51), capturing the key elements as follows:
47 H.R. REP. No. 82-449, at 3 (1951).
48 34 Comp. Gen. at 7.
49 Craft v. United States, 218 Ct Cl. 579, 600 (1978).
60 Ray v. United States, 197 Ct. Cl. 1, 6 (1972).
51 To Lieutenant (jg) H. F. Beerman, Department of the Na vy, 49 Comp. Gen. 656, 660 (1970). See also To Commander M.
M Alexander, Department of the Navy, 42 Comp. Gen. 252, 254
(1962) (finding the military to be “without authority to decide
[how] correction action shall be applied for pay purposes”) (em
phasis added).
22
[1] [T]he correction functions to be performed
through record correction boards of civilian
employees and the payment functions to be
performed by regular military and naval dis
bursing officers to allow amounts due on the
basis of corrected records were intended to be
separate and distinct functions governed by
different considerations and provisions of law
and regulation.52
‘k'kic'k'k
[2] [A]ny determination by the correction
board as to the basis on which their money
claims would be settled, is without effect, the
amounts due being for determination upon a
proper application of the statutes and regula
tions to the facts as shown by the corrected
records.53
In 1997, the DoD GC, after CompGen authorities
were transferred to him, had occasion to provide his
“interpretation of the general guidance found in rele
vant [CompGen] decisions and other pertinent
sources”54 to an inquirer who had asked whether a
record could be corrected with “the sole purpose [be
ing] to provide the member a monetary benefit that
the board believes is equitably due.” DoD’s response
was unequivocal:
In many decisions over the years, however, the
[CompGen] has set forth the view that the
question of what monetary entitlements may
52 49 Comp. Gen. at 660.
63 Id.
64 DoD GC Opinion DoD/GC #97-5, at 1 (1997).
23
have become due as a result of a record correc
tion action is for determination by the pay offi
cials of the Government, through application
of the pertinent laws and regulations to the
material facts shown by the records as so cor
rected by the board. In other words, the facts
as reflected by the corrected records determine
the rights of the members involved, as if the
corrected records reflect the true facts. Thus,
when a correction board has attempted to
make determinations or issue guidance gov
erning amounts payable to a member as a re
sult of a record correction, the • [CompGen] has
held that such determinations are outside the
scope of the board’s authority.55
Finally, DOHA, as ultimate successor to CompGen,
reaffirmed as recently as 2012 the importance of the
distinction between the correction of a record and the
consequences for pay and allowances that flow from
it. Addressing a situation in which DFAS refused to
make the payment accruing due to a correctionboard’s correction of the date of an applicant’s mar
riage, because the former did not accept the finality
of the correction board’s action, DOHA directed that
[m]ore emphasis ... be placed upon the term
“corrected record.” ... In this case, the record
as corrected ... is final and conclusive on
DFAS.56
7. The consistency of agency regulations with the
foregoing interpretation is conspicuous and persua55 DoD GC, id., 5-6.
se Claims Case No. 2012-CL-082003.2, at 7 (2012).
24
sive. The DoD’s regulatory text even follows verbar
tim the CompGen decree of 1954.
In 1954, the CompGen wrote:
payments based on corrections of military or
naval records . . . are required to be made in
the amounts ascertained or determined to be
due by applying pertinent laws and regula
tions to all material facts shown by the records
as so corrected.57
And DoD financial regulations provide:
Payment based on a correction of military rec
ords must be made in the amounts determined
to be due by applying pertinent laws and regu
lations to all the material facts shown in the
corrected record.58
And, finally, pertinent Navy regulations provide:
Settlement of claims shall be upon the basis of
the decision and recommendation of the
Board, as approved by the Secretary or his de
signee. Computation of the amounts due shall
be made by the appropriate disbursing activi
ty.59
8. As indicated by legislative history, consistent
administrative and judicial interpretation, and agen
cy implementing regulations, all of which - notwith67 34 Comp. Gen. at 7.
58 Department of Defense (DoD) Financial Management
Regulation (DoD FMR), DoD 7000.14-R, Volume 7B, Chapter
10, Correction of Records, 100201, App. 395a.
59 32 C.F.R. § 723.10(c)(1). App. 397a.
25
standing any facial ambiguity in the phrase “found to
be due,” 10 U.S.C. § 1552(c) — bind the courts under
Chevron USA v. Nat. Res. Def. Council, 467 U.S. 837
(1984) or United States v. Mead Corp., 533 U.S. 218
(2001),60 a correction of facts in a servicemember’s
record is final and binding on all officers of the gov
ernment (meaning that the corrected record serves
as the predicate for determination of any amounts
accruing to the member as a result of the correction),
while the determination of the amounts and kinds of
payments that may be due to the member is left to
financial disbursing officials charged with settling
money claims against the government on the basis
of, as CompGen put it, the “proper application of the
statutes and regulations to the facts as shown by the
corrected records.”61
Against this backdrop, the problem with the way
the Navy and DFAS proceed in Petitioner’s case
should be evident, as should the need for this Court’s
intervention to remedy the consequences of the lower
courts’ acquiescence.
REASONS FOR GRANTING THE PETITION
There is an inherent dilemma posed by Bourne’s
action. If it was necessary to (re-)memorialize Peti
tioner’s detachment from CARL VINSON as a predi
cate for arriving at the government’s desired enti
tlement outcome, it follows that absent that memorialization the entitlements would be as Petitioner ar-
60
Even if not so binding, DoD cannot arbitrarily depart
from policy so well settled. FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 515 (2009).
61 34 Comp. Gen. at 7.
26
gued they should be62 - as they are, if he is right that
Bourne’s act is illegal and void, which it is by every
possible measure. To avoid that conclusion the courts
must make his memorandum harmless by asserting
that entitlements do not depend upon Petitioner’s
record after all. But Congress said, and the agency it
empowered to manage § 1552 continues to say, that
they do. Either way, Petitioner wins, and this Court’s
key decisions, along with principles of even Constitu
tional significance - absent this Court’s intervention
- lose.
A. The result reached by the courts rests on an il
legal foundation, which, if uncured, will en
dure to offend Constitutional, Congressional,
and this Court’s principles, as well as the Fed
eral Circuit’s own precedents upholding them.
1. “It is a familiar rule of administrative law that
an agency must abide by its own regulations.” Ft.
Stewart Schools v. Federal Labor Relations Authori
ty, 495 U.S. 641, 654 (1990) (citations omitted). This
principle applies equally to the military. Winters v.
United States, 89 S. Ct. 57, 59 (1968); Lindsay v.
U.S., 295 F.3d 1252, 1257 (Fed. Cir. 2002).
The lower courts’ acquiescence in Bourne’s at
tempt to alter Petitioner’s military record offends
against this principle, owing to the panoply of legal
norms his actions violated. SECNAV corrected that
record with finality, and no federal officer may dis
turb it. 10 U.S.C. § 1552(a)(4). As head of the Navy
Department, 10 U.S.C. § 8013(a)(1), SECNAV’s order
62 The CAFC admitted as much, acknowledging that with
out Bourne’s intervention “Mr. Sharpe [would be] assigned to a
ship whose home port, and correspondingly, the associated BAH
rate, could change.” App. 15a.
27
enjoining anyone from introducing into Petitioner’s
record material similar to what was expunged, App.
350a, was to be obeyed. Bourne violated both con
straints, with the courts’ sanction. Moreover, Bourne
had no position whatsoever — authoritative or other
wise — in the record-correction hierarchy, which is
composed solely of the BCNR, SECNAV’s manpower
assistant, App. 391a, and SECNAV himself, while
Bourne’s own regulations require him to “implement”
rather than make corrections of records, App. 393a.
Even if we presume Bourne had requisite author
ity (which he did not - he is a legal advisor without
executive power, App. 408a), the lack of compliance
with mandatory procedure inherent in his act viti
ates its validity. None of the provisions of statute or
regulation were complied with, App. 130a-134a, ren
dering his action, “illegal and void,” Vandermollen v.
U.S., 571 F.2d 617, 624 (D.C. Cir. 1977). Likewise
Bourne had no organic authority to prospectively or
retroactively alter Petitioner’s duty assignment, that
power being reserved exclusively to the Chief of Na
val Personnel and his delegates. App. 407a-408a.
The lower courts’ acquiescence in Bourne’s at
tempt to establish Petitioner’s entitlements and in
DFAS’s reliance it likewise sanctioned his violation
of statute and regulations having the force and effect
of law. Jackson v. United States, 216 Ct. Cl. 25, 36
(1978). 10 U.S.C. § 1552(c) provides that a payment
may be made on a corrected record only if the record is
corrected “under [that statutory] section.” App. 394a.
DoD regulations further provide that the right to pay
ment must arise from a change of facts “as set out in
the original record,” App. 394s, and Bourne’s memo of
fered nothing but an opinion about a hypothetical past
that will never exist. Navy regulations require the set
tlement of a record-correction claim “be upon the basis
28
of the decision and recommendation of the Board, as
approved by the Secretary or his designee,” App. 397a,
not on NPC legal advice. Finally, those same regula
tions provide that the “amounts due” are to be comput
ed by the “appropriate disbursing activity,” id., not by
Mr. Bourne.
2. The seriousness of the pay entitlements ques
tion arises with the Appropriations Clause of the
U.S. Constitution, which provides that “No Money
shall be drawn from the Treasury, but in Conse
quence of Appropriations made by Law,” App. 387a.
Implementing this principle are significant holdings
of this Court. “[A] court is no[t] . . . authorized to
overlook the valid regulation” establishing conditions
for receipt of federal funds. Schweiker v. Hansen,
450 U.S. 785, 790 (1981). But this is precisely what
the lower courts did. BAH may only be paid at a rate
established by the duty station location, App. 412a,
and that location is only established by the assign
ment of a member thereto, App. 409a-410a. Absent
evidence that Petitioner was assigned to a Norfolk,
Va., duty station during the period for which he was
paid BAH at that rate, the payment was unlawful.
“[A] 11 courts [must] observe the conditions defined by
Congress for charging the public treasury,” Federal
Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947),
and no “allowance [may be] furnished to officers or
enlisted men of the Army or Navy . . . unless such
payment is provided for by some statute or author
ized regulation, Smith v. United States, 47 Ct. Cl.
313, 315 (1912).
This Constitutional principle also provides the in
spiration as well for the legislative meaning impart
ed to the words “found to be due” in § 1552(c) by the
agency regulations, the CompGen interpretations,
and according to the legislative history itself. Record
29
corrections are discretionary (though the discretion
was the Secretary’s, not Bourne’s, to exercise), but
resultant pay entitlements are not — even if it were
the Secretary who tried to exercise discretion, let
alone Bourne. All because only a statute or regula
tion may authorize a public expenditure - which is
precisely the principle undermined when the lower
courts upheld the validity of DFAS having predicated
its BAH and Sea Pay decisions on Bourne’s nonauthoritative written opinion about what he thought
the entitlement results should be - and not what the
regulations provided.
The corollaries to this principle provided by this
Court’s prior decisions were each also offended by the
lower courts’ sanction of the Bourne-Navy-DFAS ac
tion.
The first is that “equitable considerations cannot
[determine] a money remedy Congress has not au
thorized,” Mercier v. United States, 786 F.3d 971,
977 (Fed. Cir. 2015) (summarizing Office of Pers.
Management v. Richmond, 496 U.S. 414 (1990)),
which principle means likewise that “public funds
[must] be spent according to the letter of the difficult
judgments reached by Congress as to the common
good, and not according to the individual favor of
Government agents,” Richmond, id. at 428, such as
Bourne or DFAS who, counsel said, like the lower
courts, sought to avoid Petitioner receiving a wind
fall.63 The second is that because military pay in par63 App. 14a, 45a, 46a, 299a. Even the “equitable” (on the
government’s side) argument is unavailing, however, because
the CAFC’s confidence, App. 15a, that Petitioner “would not”
have remained assigned to CARL VINSON does not mean that
he wouldn’t have been assigned - had he not been separated to a location with a higher BAH rate than Norfolk and even
than San Diego (as the MSJ explained to the COFC, App. 150a-
30
ticular is strictly “dependent upon statutory right.”
Bell v. United States, 366 U.S. 393, 401 (1961), enti
tlement to it “must be determined by reference to the
[governing] statutes and regulations,” United States
v. Larionoff, 431 U.S. 864, 869 (1977). It is not “a
quid pro quo for services rendered to the military,”
Dock v. United States, 46 F.3d 1083, 1086 (Fed. Cir.
1995). For this reason it was highly improper for the
courts to uphold Bourne’s judgment with regard to
CSP on the basis of Petitioner’s not having endured
the hardship of sea duty, App. 14a,18a, and of his not
having “[gone] to sea or performed any sea duties,”64
App. 47a, or of judging the BAH equity on Petition
er’s potential housing cost, especially where regula
tions expressly discount the latter consideration,
App. 411a, and provide Sea Pay for members disem
barked from overhaul ships provided they remain
formally attached thereto by orders, App. 419a422a.65
3. A third set of equally significance errors arises
from DFAS’s failure to exercise its discretion to ar
rive at its own organic position vis-a-vis the BAH
and Sea Pay. Had it done so, particular procedures
would have been invoked yield a detailed and reviewable agency judgment. App. 403a-406a. Absent
having done so, and given the illegality of the Bourne
determination — if for no other reason than that it is
152a) - a possibility foreclosed courts’ prescient (misplaced) cer
tainty that Petitioner would have stayed in Norfolk.
64 The courts’ reliance on Boruski v. United States, 155 F.
Supp. 320 (Ct. Cl. 1957) to support their view is unavailing be
cause in Boruski the relevant statute mandated actual duty
performance, App. 422a-423a, contrary to the relevant regula
tions here.
65 Both sets of regulations are authoritatively promulgated
at the express invitation of Congress. App. 411a, 416a.
31
a “post hoc rationalization[ of counsel] for agency ac
tion,” which, under SEC v. Chenery Corp., 332 U.S.
194 (1946), the courts “may not accept,” Burlington
Truck Lines v. United States, 371 U.S. 156, 168
(1962) - the lower courts were left to substitute their
own judgment as to the rectitude of the entitlement
determination, which impermissibly “remove [d] the
discretionary judgment from the agency to the court,”
Interstate Commerce Comm. v. Bhd. of Locomotive
Eng’rs, 482 U.S. 270, 283 (1987). Moreover, because
Bourne’s opinion was predicated upon his illegal and
void fabrication of Petitioner’s detachment from
CARL VINSON, he extended the courts an invitation
to inject themselves in the military-dutyassignments arena, which they should not have ac
cepted, but did, by upholding the illegal and void act
on the basis of their own judgment that it was “rea
sonable,” thereby substituting theirs for his. Doing so
was contrary to this Court’s venerable decision in
Orloff v. Willoughby, 345 U.S. 83 (1953) and the salu
tary separation-of-powers principle it upholds, but
their affirmance also contravened the circuit law
which removes speculation as to what “would have
happened” from grounds upon which back pay and
reinstatement cases such as this one are resolved.
Reale v. United States, 208 Ct. Cl. 1010 (1976) (“[Black
pay awards ... do not pretend to be realistic recon
structions of what the pecuniary consequences of a ser
viceman’s career would have been .... We do not spec
ulate.”); Wagner v. U.S., 365 F.3d 1358, 1365 (Fed. Cir.
2004) (noting the court “will not speculate as to what
the outcome might have been had the error not oc
curred”). The error was particularly grave in this case
because, since Bourne’s determination was ultra vires,
the courts’ judgments were made to replace, impermis
sibly, “the absolute discretion afforded the Secretary of
32
the [Navy] on personnel matters with a determination
of [their] own.” Wagner, id.
B. The Federal Circuit’s decision puts its own
settled case law in jeopardy.
1. While inter-circuit conflict is unlikely in a case
like this where the trial courts cases are taken exclu
sively to the Federal Circuit, the CAFC’s decision
puts its own case law in disarray, and it will remain
so absent this Court’s intervention.
2. As noted, cardinal holdings of military back
pay case law such as Wagner, supra, Reale, supra,
Ray, supra, and Craft, supra, are contradicted by
the recent decision, and to safeguard the validity of
these decisions — which the CAFC did not even cite
let alone distinguish - its opinion should be vacated.
3. Cathy v. United States, 191 F.3d 1336 (Fed.
Cir. 1999), dealing narrowly and illustratively with
the impact of the constructive-service doctrine, was
also jeopardized by the CAFC’s decision. Cathy held
that the term “service” on active duty used in U.S.
Code, Title 10, incorporates the term “constructive
service,” Cathy, id. at 1339, disposing of the claim of
Bourne and the lower courts that Sea Pay was not an
entitlement here because Petitioner did not actually
“serve” on a ship. How the decision can be squared
with Cathy, which, again, was extensively briefed,
App. 173a-176a, but ignored, is impossible to see.
4. Important circuit decisions standing for the
proposition that military attorneys may not partici
pate in the correction process, which requires the
Secretary to act through “boards of civilians.” See
Strickland v. United States, 423 F.3d 1335, 1341
(Fed. Cir. 2005); Weiss v. United States, 187 Ct. Cl.
1, 10, 12 (1969); Proper v. United States, 139 Ct. Cl.
33
511, 526 (1957). Weiss in particular invalidated a
record-correction action where the evidence showed
that a military JAG advised the civilian authorities
and drafted their memoranda. The evidence is as sol
id here, App. 57a_58a. The decision undermining the
settled authority of these three cases should not be
allowed to stand.
C. The issue is extremely important.
1. CompGen and the DOHA have for almost 70
years built consistent administrative adjudication
and practice on the basis of the framework estab
lished by the CompGen’s 1951 contribution to the
correction-board statute. This decision risks upset
ting it by intractably conflating its two parts. The
last time CompGen encountered a case, see Oleson v.
United States, 172 Ct. Cl. 9 (1965), which made a
settlement rather than record correction “final and
conclusive,” he found it “in direct conflict with the
legislative history of the statutory provisions in
volved,” and refused to follow it, “since such legisla
tive history is so clear as not to admit of differences
of opinion.” To Emery, Sells and Wood, Attorneys, B147096, 1966 U.S. Comp. Gen. LEXIS 1983, at *6
(Comp. Gen., 1966). The CAFC’s decision risks a sim
ilar outcome.
2. Military correction boards hear thousands of
cases a year, many of which result in payments of
amounts found to be due.66 This Court, respectfully,
owes it to veterans and uniformed service personnel
to ensure that the case law interpreting and defining
66 App. 385ai 97 CONG Rec 7588-89; H.R. Rep. No. 82-449,
at 2 (1951); Eugene R. Fidell, The Boards for Correction ofMili
tary and Naval Records•' An Administrative Law Perspective,
65:2 Administrative Law Review 499,501 (2008).
34
the records-corrections process is as coherent and
consistent with Congressional intent as absolutely
possible.
D. Summary reversal or vacatur and remand to
agency is the proper remedy.
1. Petitioner has successfully resolved adminis
tratively the minor remaining consequences of the
Navy’s decision to separate and then reinstate him.
App. 378a_384a. The disputed BAH and Sea Pay
matters may have the same outcome, given the
DOHA’S expertise as successor to CompGen. The
Court should give the agency a chance (which it de
clined to take before) to remedy its error.
2. In the alternative, summary reversal is appro
priate; “the law is well settled and stable, the facts
are not in dispute, and the decision below is clearly
in error,” Schweiker v. Hansen, 450 U.S. 785, 791
(1981). The lower courts should have reversed the
Bourne-DFAS-Navy action - as this Court should because, notwithstanding their finding it “reasona
ble,” it must still be overturned if “not in accordance
with law,” 5 U.S.C. § 706; Thomas Jefferson Univ. v.
Shalala, 512 U.S. 504, 518 (1994) (Thomas, J., dis
senting) (“contrary to law” alone violates APA stand
ard) or, with respect to the absence of evidence de
taching Petitioner from CARL VINSON following
September 30, 2009, based on (as here) less than
even a “scintilla” thereof. Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938); 5 U.S.C., id
3. A third alternative is a form of vacatur and
remand, to prevent the opinions below from offend
ing this Court’s decisions in the crucial areas herein
identified.
35
CONCLUSION
This Court should grant the petition for writ of certi
orari and summarily reverse the judgment below,
remanding with instructions to remand to the COFC
for remand to DFAS to assess entitlements without
the Bourne memorandum’s interference. In the al
ternative, the Court should vacate and remand -the
COFC retaining jurisdiction - or vacate and remand
under United States v. Munsingwear, Inc., 340 U. S.
36 (1950), with instructions to dismiss the case as
moot to eliminate the erroneous decision and allow
the claim to be considered administratively and re
litigated, while preventing the adverse consequences,
id., at 40.
Respectfully submitted.
CDR John F. Sharpe
Pro se
13680 Bold Venture Drive
Glenelg, Maryland 21737
(757) 645-1740
(703) 614-9165
john.sharpe@charter.net
john.f.sharpe2.mil@mail.mil
November 25, 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.