Petition for Writ of Certiorari — Walter N. Strand, III, Petitioner v. United States

Supreme Court briefJul 29, 2020

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No. 20In The

Supreme Court of the United States

----------- <> -------------Walter N. Strand, III,

Petitioner,

United States of America,

Respondent.

----------- <> -------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

----------- <> -------------PETITION FOR A WRIT OF CERTIORARI

----------- <> -------------LUCAS T. HANBACK

Counsel of Record for Petitioner

JEFFERY M. CHIOW

NEIL H. O’DONNELL

ROGERS JOSEPH O’DONNELL P.C.

875 15th Street NW, Suite 725

Washington, DC 20005

(202) 777-8955

lhanback@rjo.com

QUESTIONS PRESENTED

In the wake of World War II, Congress

established corrections boards for military records to

help ensure that military members had a way to seek

relief from harsh outcomes in the military justice

system that hampered their reintegration into civilian

life. In establishing the boards, Congress required

service secretaries to “act[] through boards of

civilians” to correct the records of servicemembers. 10

U.S.C. § 1552(a)(1). These boards receive tens of

thousands of applications every year from

servicemembers

seeking

record

corrections.

Currently, there is a split in authority over whether

the statutory language requiring the Secretary of a

military department to “act[] through boards of

civilians” permits the Secretary to overrule a Board’s

decision that is supported by the record.

The question presented is whether the Secretary of

the Navy, is “acting through” the Board for

Correction of Naval Records as required by statute

when he reweighs evidence and sets aside a

decision of that Board that was supported by

substantial evidence.

PARTIES TO THE PROCEEDING AND

RELATED CASES

All of the Parties to the Case are set out in the caption

on the cover page.

These other proceedings are directly related to the

case:



Strand v. United States, No. 15-601C, United

States Court of Federal Claims. Judgment

entered June 13, 2016.



Strand v. United States, No. 2016-2450, 20162484. United States Court of Appeals for the

Federal Circuit. Judgment entered Sept. 7,

2017.



Strand v. United States, No. 15-601C, United

States Court of Federal Claims. Judgment

entered July 31, 2018.



Strand v. United States, No. 2019-1016, United

States Court of Appeals for the Federal Circuit.

Judgment entered Mar. 3, 2020.

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ I

PARTIES TO THE PROCEEDING AND RELATED

CASES ............................................................. II

TABLE OF CONTENTS ........................................... III

TABLE OF AUTHORITIES ..................................... VI

PETITION FOR A WRIT OF CERTIORARI ............. 1

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

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

STATUTORY PROVISIONS INVOLVED ................. 1

STATEMENT OF THE CASE .................................... 3

REASONS FOR GRANTING THE PETITION ....... 10

II.

THE FEDERAL CIRCUIT’S DECISION

WIDENS A SPLIT IN AUTHORITY AMONG

THE CIRCUITS, SOME OF WHICH WOULD

DECIDE THE QUESTION PRESENTED

DIFFERENTLY ............................................. 10

The Earliest Cases Correctly Restricted The

Secretary’s Discretion Based On The

Statutory Language .................................... 13

By Contrast, The Federal Circuit Has

Eroded An Important Procedural Protection

For Service Members. ................................ 17

THE FEDERAL CIRCUIT’S DECISION IS

INCONSISTENT WITH THE EXPRESS

DICTATE OF 10 U.S.C. § 1552 ..................... 20

iii

III.

The Plain Language of 10 U.S.C. § 1552

Limits The Secretary’s Discretion ............. 20

Permitting A Secretary To Substitute His

Judgment For The Board’s Violates Canons

Of Statutory Construction .......................... 21

The Federal Circuit’s Opinion In Strand IV

Is Inconsistent With The Legislative History

Of The Statute Showing That The Boards

Were Established To Provide Civilian

Oversight Of Military Decision Making ... 24

MR. STRAND’S CASE PRESENTS A CLEAN

AND CLEAR ISSUE UPON WHICH THE

COURT CAN RULE ....................................... 28

CONCLUSION.......................................................... 31

APPENDIX ............................................................... 1A

APPENDIX

Opinion of the United States Court of Appeals for the

Federal Circuit, Strand v. United States, 951 F.3d

1347 (Fed. Cir. 2020)..…..……………………………1a

Opinion and Order of the United States Court of

Federal Claims, Strand v. United States, 138 Fed.

Cl. 633 (Fed. Cl. 2018)……….……………….........30a

January 5, 2018 Decision of Navy Assistant General

Counsel for Manpower and Reserve Affairs, Ms.

Catherine Kessmeier……………………………….56a

Opinion of the United States Court of Appeals for the

Federal Circuit, Strand v. United States, 706 Fed.

Appx. 996 (Fed. Cir. 2017)…………………….…..68a

Opinion and Order of the United States Court of

Federal Claims, Strand v. United States, 127 Fed.

Cl. 44 (Fed. Cl. 2016)………………….…………....81a

February 3, 2015 Decision of Navy Assistant General

Counsel for Manpower and Reserve Affairs, Mr.

Robert Woods………………………………………..97a

December 15, 2014 Decision of the Board for

Correction of Naval Records……………………..99a

December 12, 2013 Decision of the Naval Discharge

Review Board……….………………………………106a

May 3, 2012 Decision of the Naval Discharge Review

Board……….………………………………………..110a

10 U.S.C. § 1552……………………………………...113a

December 7, 2017 Letter from Mr. Strand’s Counsel

to the Navy Assistant General Counsel for

Manpower and Reserve Affairs…....…………….134a

November 28, 2017 Letter from the Navy Assistant

General Counsel for Manpower and Reserve Affairs

to Counsel for Mr. Strand……………..………….142a

TABLE OF AUTHORITIES

Cases

Barber v. Widnall, 78 F.3d 1419 (9th Cir. 1996) ..... 13

Betts v. United States, 145 Ct. Cl. 530 (Ct. Cl. 1959)

................................................................. 15, 80, 126

Blasingame v. Sec’y of the Navy, 866 F.2d 556 (2d

Cir. 1989) ............................................................... 12

Boyd v. United States, 207 Ct. Cl. 1 (Ct. Cl. 1975) .. 17

Carney v. Sec’y of Defense, 462 F.2d 606 (1st Cir.

1972) ...................................................................... 23

Champagne v. Schlesinger, 506 F.2d 979 (7th Cir.

1974) ...................................................................... 12

Dibble v. Fenimore, 545 F.3d 208 (2d Cir. 2008) ..... 12

Duncan v. Walker, 533 U.S. 167 (2001) ................... 22

Falk v. Sec’y of the Army, 870 F.2d 941 (2d Cir. 1989)

............................................................................... 12

Friedman v. United States, 158 F. Supp. 364, (Ct. Cl.

1958) ...................................................................... 27

Gentila v. Pace, 193 F.2d 924 (D.C. Cir. 1951) cert.

denied 342 U.S. 943 (1952) ................................... 14

Guerrero v. Stone, 970 F.2d 626 (9th Cir. 1992) ...... 14

Harmon v. Brucker, 355 U.S. 579 (1958) ................. 14

Hertzog v. United States, 167 Ct. Cl. 377 (Ct. Cl.

1964) .......................................................... 12, 15, 19

Hodges v. Callaway, 499 F.2d 417 (5th Cir. 1974) .. 13

Horn v. Schlesinger, 514 F.2d 549 (8th Cir. 1975) .. 12

Kingdomware Techs., Inc. v. United States, 136 S. Ct.

1969 (2016) ............................................................ 22

Kungys v. United States, 485 U.S. 759 (1988) ......... 22

Laningham v. United States, 30 Fed. Cl. 296 (Fed.

Cl. 1994)................................................................. 18

Miller v. Lehman, 801 F.2d 492 (D.C. Cir. 1986) .... 13

Neal v. Sec’y of the Navy and Commandant of the

Marine Corps, 639 F.2d 1029 (3d Cir. 1981) . 11, 15,

Nelson v. Miller, 373 F.2d 474 (3d Cir. 1967), cert.

denied, 387 U.S. 924 (1967) .................................. 11

Prince v. U.S., 119 F. Supp. 421 (Ct. Cl. 1954) ........ 14

Proper v. United States, 139 Ct. Cl. 511 (Ct. Cl. 1957)

........................................................................passim

Sanders v. United States, 594 F.2d 804 (Ct. Cl. 1979)

......................................................................... 17, 19

Schindler Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S.

401 (2011) .............................................................. 20

Sec’y of Navy v. Huff, 444 U.S. 453 (1980) ............... 14

vii

South Corp. v. United States, 690 F.2d 1368 (Fed.

Cir. 1982) ................................................................. 8

Strickland v. United States, 423 F.3d 1335 (Fed. Cir.

2005) ...............................................................passim

Waudby v. United States, No. 2:09-cv-1167, 2010 WL

324521 (D. N.J. 2010) ........................................... 11

Weiss v. United States, 187 Ct. Cl. 1 (Ct. Cl. 1969) 11,

15, 125

Statutes

10 U.S.C. § 1552 ................................................ 1, 3, 26

10 U.S.C. § 1552 (h) .................................................. 27

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

10 U.S.C. § 1552(a)(2) ............................................... 24

10 U.S.C. § 1552(a)(3) ............................................... 20

10 U.S.C. § 1552(b) ................................................... 24

10 U.S.C. § 1552(i) .................................................... 29

10 U.S.C. § 1553 .......................................................... 3

10 U.S.C. § 204 ............................................................ 7

10 U.S.C. § 6333 .......................................................... 7

2 U.S.C. § 190g .......................................................... 25

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

viii

28 U.S.C. § 1491 .......................................................... 7

28 U.S.C. § 1491(a) ................................................... 13

5 U.S.C. § 702 .............................................................. 7

Legislative Reorganization Act of 1946 § 131...... 3, 25

National Defense Authorization Act for Fiscal Year

2017, Pub. L. No. 114-328, § 535, 130 Stat. 2000

(2016) ..................................................................... 27

National Defense Authorization Act for Fiscal Year

2018, Pub. L. No. 115-91, § 520, 131 Stat. 1332

(2017) ..................................................................... 27

Pennsylvania Office of Administration, Fair-Chance

Hiring, HR-TM001, May 5, 2017 ............................ 5

Philadelphia Code, Chapter 9-3500 ........................... 5

Pub. L. No. 82-220, 65 Stat. 655 (1951) ................... 27

Regulations

32 C.F.R. § 723.3(e)(2) .............................................. 22

Other Authorities

40 Op. Att'y Gen. 504 (1947) .................................... 26

78 Cong. Rec. 4538 (1944) ........................................ 26

A. Scalia & B. Garner, Reading Law: The

Interpretation of Legal Texts 167 (2012................ 23

Act, Black’s Law Dictionary (11th ed. 2019) ............ 20

Board for Correction of Naval Records, FAQ and Key

Information,

https://www.secnav.navy.mil/mra/bcnr/Pages/FAQ

_and_Key_Information.aspx#0 (last visited, July 1,

2020) ...................................................................... 29

Chester City Act 47 Exit Plan, Adopted 2018-10-10 . 4

Christopher H. Lunding, Judicial Review of Military

Administrative Discharges, 83 Yale. L. J. 33, Nov.

1973 ......................................................................... 5

Dictionary.com, Acting, https://www.

dictionary.com/browse/acting (last visited July 20,

2020) ...................................................................... 21

General Accounting Office, FPCD-80-13, Military

Discharge Policies and Practices Result in Wide

Disparities: Congressional Review is Needed (Feb.

1980) ........................................................................ 3

H.R. Rep. No. 449, 82 Cong., 1st Sess. 6 (1951) ...... 27

Hearings on H.R. 1181 Before a Subcomm. Of the

House Comm. On Armed Service, 82 Cong., 1st

Sess. 391-93 (1951)................................................ 28

John. J. Field, Waiving the Discretionary Statute of

Limitations Governing the Boards for Correction of

Military Records, 62 Geo. Wash. L. Rev. 920 (1993)

............................................................................... 26

Major Bryant A. Boohar, Combat Stress Claims:

Veterans’ Benefits and Post Separation Character

of Service Upgrades for “Bad Paper” Veterans After

The Fairness for Veterans Act, 227 Mil. L. Rev. 95,

2019, at 95. ........................................................ 5, 30

Merriam-Webster.com Dictionary, Merriam-Webster,

Through, https://www. merriamwebster.com/dictionary/through (last visited July

19, 2020) ................................................................ 21

Michael J. Wishnie, “A Boy Gets Into Trouble”:

Service Members, Civil Rights, And Veterans’ Law

Exceptionalism, 97 B.U.L. Rev. 1709, 1726-27

(2017) ..................................................................... 25

S. Rep. No 78-755, at 2 (1944) .................................. 26

S. Rep. No. 1400, 79th Cong., 2d Sess. 1 (1946) ...... 25

S. Rep. No. 78-755 (1944) ......................................... 26

Supreme Court of the United States Order 589,

March 19, 2020 ........................................................ 1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Walter N. Strand, III respectfully

petitions this Court for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Federal Circuit in this case.

OPINIONS BELOW

The opinion of the Federal Circuit (App. 1a-29a)

is reported at 951 F.3d 1347 (Fed. Cir. 2020) (“Strand

IV”). The Court of Federal Claims opinion and order

(App. 30a-56a) is reported at 138 Fed. Cl. 633 (Fed. Cl.

2018)(“Strand III”).

The Federal Circuit’s first

opinion (App. 69a-81a) was non-precedential, but is

reported at 706 Fed. Appx. 996 (Fed. Cir. 2017)

(“Strand II”). The Court of Federal Claims’ initial

opinion and order (App. 82a-99a) is reported at 127

Fed. Cl. 44 (Fed. Cl. 2016) (“Strand I”).

JURISDICTION

The Federal Circuit issued its decision and

accompanying order on March 3, 2020. This Court has

jurisdiction under 28 U.S.C. § 1254(1) to review the

circuit court’s decision on a writ of certiorari. On

March 19, 2020, this Court extended filing deadlines

for petitions for writ of certiorari to 150 days in light

of the ongoing COVID-19 pandemic. See Supreme

Court of the United States Order 589, March 19, 2020.

STATUTORY PROVISIONS INVOLVED

10 U.S.C. § 1552

(a)(1). 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.

(2) The Secretary concerned is not

required to act through a board in the

case of the correction of a military

record announcing a decision that a

person is not eligible to enlist (or

reenlist) or is not accepted for

enlistment

(or

reenlistment)

announcing

the

promotion

and

appointment of an enlisted member to

an initial or higher grade or the

decision not to promote an enlisted

member to a higher grade. Such a

correction may be made only if the

correction is favorable to the person

concerned

***

(4)(A) Subject to subparagraph (B), a

correction under this section is final

and conclusive on all officers of the

United States except when procured by

fraud.

***

STATEMENT OF THE CASE

Prior to World War II, requests by

servicemembers for corrections to their military

records were handled through private bills to

Congress. General Accounting Office, FPCD-80-13,

Military Discharge Policies and Practices Result in

Wide Disparities: Congressional Review is Needed

(Feb. 1980) at 75. After World War II, Congress

established boards in each of the military

departments to handle these functions.

See

Legislative Reorganization Act of 1946 § 131, 10

U.S.C. §§ 1552, 1553. For the Navy, these boards are

the Board for Correction of Naval Records (“BCNR”)

and the Navy Discharge Review Board (“NDRB”). At

issue in this case is a decision concerning the

correction of Mr. Strand’s naval record by the BCNR

to remove an injustice. Congress directed that such

corrections by the board “shall be made by the

Secretary acting through boards of civilians. . .” 10

U.S.C. § 1552(a)(1)(emphasis added). The Federal

Circuit nonetheless upheld the Secretary’s decision to

ignore the BCNR and unilaterally reject Mr. Strand’s

request for correction. That decision was not made

“acting through” the board, and it therefore violated

Section 1552(a)(1). This Court should grant certiorari

to correct the Federal Circuit’s erroneous

interpretation of the statute.

Mr. Strand served his country honorably and

without disciplinary incident for nearly 19 and a half

years in the Navy. App. 70a.

Despite his

disadvantaged start in life,1 Mr. Strand rose to

become a “dynamic leader” in the Navy, praised as a

“[s]uperb manager” and a “pillar for subordinates and

juniors alike to emulate.”

App. 34a (quoting

administrative record).

During his service, Mr.

Strand spent more than 11 years of that time deployed

overseas, including deployments in support of combat

operations in Iraq and Afghanistan. App. 33a.

These continuous deployments demanded by

our Nation’s wars took their toll on this dedicated

sailor. After returning from his last deployment, Mr.

Strand found that his wife had, without telling him,

moved out, cleaned out his bank account, taken his

possessions, was filing for divorce, and was refusing to

let him see his children. App. 33a. In a split-second

lapse of judgment caused by frustration and anger,

Mr. Strand fired a weapon next to a vehicle carrying

his estranged wife and her male companion. Id. No

one was injured, but Mr. Strand was arrested and

later convicted of attempted malicious wounding,

attempted unlawful wounding, and use of a firearm in

the commission of a felony on February 4, 2009. Id.;

see also App 3a. After his conviction, the Navy

administratively separated Mr. Strand and

discharged him with an Other Than Honorable

discharge. App. 2a-3a. Mr. Strand was sentenced to

six years in prison, but was released after three years

based upon his model conduct. App. 3a. Mr. Strand

1 Mr. Strand grew up in the Philadelphia suburb of Chester,

Pennsylvania, one of Pennsylvania’s poorest jurisdictions. See

Chester City Act 47 Exit Plan, Adopted 2018-10-10 at 42 (median

income of Chester is only about 40% of the income of the county

in which it sits).

has since been trying to put his life back together, in

part by seeking to correct his military record and the

characterization of his discharge. See App. 34a.

Recipients of any discharge that is not

honorable are disadvantaged upon their return to

civilian life. See Christopher H. Lunding, Judicial

Review of Military Administrative Discharges, 83

Yale. L. J. 33, Nov. 1973 at 33. In addition to the

stigma and effects on employment and education

prospects, such discharges also cut off access to

Veterans Administration (“VA”) services. That may

spell crisis at a time when it is estimated that 20

veterans commit suicide per day.2 See Major Bryant

A. Boohar, Combat Stress Claims: Veterans’ Benefits

and Post Separation Character of Service Upgrades for

“Bad Paper” Veterans After The Fairness for Veterans

Act, 227 Mil. L. Rev. 95, 2019, at 95.

Today, Mr. Strand is underemployed, works

multiple jobs, and provides all of his available income

to support his children. App. 139a. Although

Pennsylvania, where Mr. Strand lives, has adopted

“ban the box” laws to prevent minorities like Mr.

Strand from suffering disproportionately in

employment decisions based on criminal records

checks,3 there is no such prohibition on reviewing a

potential employee’s service record. This undermines

2 Even with his discharge upgraded to a General Under

Honorable Conditions, Mr. Strand has encountered difficulty in

applying for VA benefits.

3 See Pennsylvania Office of Administration, Fair-Chance Hiring,

HR-TM001, May 5, 2017; Philadelphia Code, Chapter 9-3500.

Mr. Strand’s ability to use his service record to

document his valuable training and certifications,4

and his uncorrected record provides a backdoor for

employers to deny him gainful employment and

prevent him from fully reintegrating into civilian life.

App. 139a-140a. For these reasons, Mr. Strand sought

to have his record corrected.

While proceeding pro se for four years following

his release from prison, Mr. Strand requested

correction of his records from both the NDRB and the

BCNR on numerous occasions. App. 34a-35a. Both

forums granted him relief from the conditions of his

initial discharge from the Navy. First, the NDRB

granted

Mr.

Strand

upgrade

his

Characterization of Service from Other than

Honorable to General Under Honorable Conditions.5

App. 34a. Then in December 2014, after careful

consideration of all the evidence, the BCNR found that

Mr. Strand had “suffered long enough for his

indiscretion” and granted him further relief in the

form of correction of his naval record “to show he was

honorably retired with 20 years of service vice issued

a discharge under honorable conditions by reason of

misconduct.” App. 35a.

Under Section 1552(a)(1), the BCNR’s decision

should have been binding on the Secretary because

4 Mr. Strand held the rate of Information Systems Technician,

and had been trained on sensitive information systems

technology and operations. He held a Top Secret security

clearance.

5 The NDRB’s decision was not challenged by the Navy, is now

final and unreviewable, and has not been the subject of litigation.

the statute requires the Secretary to act “through” the

Board. Instead, however, the Secretary of the Navy’s

Assistant General Counsel for Manpower and Reserve

Affairs (“AGC”) reviewed the BCNR’s decision and

tersely overruled it in a two-paragraph decision. App.

97a-98a.

In Strand I, Mr. Strand challenged the AGC’s

decision in the Court of Federal Claims under the

Tucker Act, 28 U.S.C. § 1491. Review in these cases

is conducted under the Administrative Procedures Act

(“APA”) and courts determine whether the Secretary’s

actions are “arbitrary, capricious, unsupported by

substantial evidence, or in violation of the law.” 5

U.S.C. § 702; see also Strickland v. United States, 423

F.3d 1335, 1339 (Fed. Cir. 2005). Mr. Strand also

invoked the money mandating statutes of 10 U.S.C. §

6333 and 10 U.S.C. § 204. Mr. Strand prevailed in

showing that the AGC’s reversal was arbitrary,

capricious, an abuse of discretion and unsupported by

substantial evidence in the Court of Federal Claims.

App. 95a. On the Navy’s appeal in Strand II, the

Federal Circuit agreed that Mr. Strand had shown

there was no substantial evidence in support of the

AGC’s decision. App. 74a-75a. Because the AGC had

relied on “intertwined reasons” in rejecting the

BCNR’s recommendation, the Federal Circuit

remanded for further proceedings. App. 75a.

On remand, the AGC again rejected the

BCNR’s recommendation, and without involving the

BCNR, issued a seven-page letter applying Navy Core

Values to again deny Mr. Strand the relief

recommended by the Board. App. 56a-68a. The AGC’s

second reversal: relitigated a lone alcohol incident

from when Mr. Strand was 18 years old (PlaintiffAppellee’s Brief at 22-23, Strand v. United States, No.

2019-1016 (Fed. Cir filed Mar. 28, 2019)); applied core

values that were not in existence at that time of this

conduct (id. at 23); classified his conduct as violative

of the core values even though Mr. Strand received a

Good Conduct Medal for that period and was

promoted and reenlisted (id. at 23-24); relied on cases

from forums where Mr. Strand never appeared and

which do not address the core values (Id. at 24-26);6

failed to apply the Navy’s core values reciprocally as

required (id. at 35-36); focused on the conduct for

which Mr. Strand was convicted in violation of the

BCNR’s regulations (id. at 28); and accepted the

recommendation of a retired military officer in

overturning the BCNR’s decision in violation of Proper

v. United States, 139 Ct. Cl. 511, 526 (Ct. Cl. 1957).7

Id. at 30-33.

All of this is arbitrary decision making at odds

with the BCNR’s well-supported decision. And none

of this was done “through [a] board[] of civilians. . .”

as required by 10 U.S.C. § 1552(a)(1). Rather, the

AGC acted herself without any indication to Mr.

Strand what the AGC would focus on, and without

providing him any opportunity to address her specific

6 One cited case was from the Air Force which has different core

values entirely. Plaintiff-Appellee’s Brief at 25, fn. 10, Strand v.

United States, No. 2019-1016 (Fed. Cir filed Mar. 28, 2019)

7 The United States Court of Claims was the predecessor Court

to the Federal Circuit, which adopted the Court of Claims

decisions as binding precedent in South Corp. v. United States,

690 F.2d 1368, 1370 (Fed. Cir. 1982).

concerns or offer additional evidence to rebut them

before issuing her decision.8

Mr. Strand successfully challenged this second

denial in the Court of Federal Claims in Strand III.

App. 53a. In particular, Mr. Strand argued that the

Secretary does not have absolute discretion to reject

the recommendation of the Board because he is

required by statute to “act[] through” the Board. See

Supplemental Complaint at ¶ 55, Strand v. United

States, No. 15-601C (Fed. Cl. filed Mar. 21, 2018);

Corrected Plaintiff-Appellee’s Brief at 10, 15 Strand v.

United States, No. 2019-1016 (Fed. Cir filed Mar. 28,

2019) (arguing that BCNR decisions are not merely

advisory). On the Navy’s second appeal in Strand IV,

the Navy argued that the Secretary is free to reject the

Board’s decision based on a reweighing of the evidence

before the Board.9 See Reply Brief of DefendantAppellant at 6-9, No. 2019-1016 (Fed. Cir. filed Apr.

18, 2019). The Federal Circuit this time sided with

the Navy. It held that its prior binding precedent,

which contained strong language restricting the

Secretary’s

ability

reject

the

Board’s

recommendation, was applicable only in narrow

8 The AGC sent Mr. Strand a letter allowing him to submit

additional information, but never informed him that her decision

would range beyond the original rationale advanced by the first

AGC, and did not inform him of her specific concerns with the

record. App. 142a-143a.

9 The Navy also argued that Mr. Strand had waived his right to

challenge the aspects of the decision which had never been

previously disclosed to him. See Defendant’s Motion to Dismiss

the Supplemental Complaint or in the Alternative for Judgment

on the Administrative Record, No. 1:15-cv-00601 (Fed. Cl. filed

May 14, 2018) at 13-14.

circumstances involving the recommendation of a

military officer. App. 13a-14a. According to the

Federal Circuit, absent such circumstances, service

Secretaries are free to disregard the recommendations

of the Boards where the evidence is subject to varying

interpretations. App. 14a.

This decision allows the Secretary to act

without involving the Board even though 10 U.S.C. §

1552(a)(1) requires the Secretary to “act[] through

boards of civilians” to correct records. If the Secretary

may reweigh the evidence and overrule the board, he

is not “acting through” the Board.

REASONS FOR GRANTING THE PETITION

THE FEDERAL CIRCUIT’S DECISION

WIDENS A SPLIT IN AUTHORITY

AMONG THE CIRCUITS, SOME OF

WHICH WOULD DECIDE THE QUESTION

PRESENTED DIFFERENTLY

The Federal Circuit’s decision in Strand IV

widens a split among the circuits on the discretion of

the Secretary to reverse the Board based on a

reweighing of the evidence. If left unresolved, this

leaves servicemembers subject to inconsistent

applications of the law. Under the correct rule, where

the Board’s recommendations are justified by the

record, the Secretary has no discretion to deviate from

them.

The Third Circuit has cited the correct rule that

the Secretary is not “acting through” the Board if he

overrules Board recommendations that are justified

by the record. See Neal v. Sec’y of the Navy and

Commandant of the Marine Corps, 639 F.2d 1029,

1043, n.13 (3d Cir. 1981). This rule was first

announced in in the early cases of Proper, 139 Ct. Cl.

at 526, and Weiss v. United States, 187 Ct. Cl. 1, 10

(Ct. Cl. 1969). The Third Circuit holds that the

Secretary may not “arbitrarily overrule the

recommendations of the Board where the findings of

the Board are justified by the record.” See Nelson v.

Miller, 373 F.2d 474, 478 (3d Cir. 1967) cert. denied

387 U.S. 924 (1967).10

In Neal, the Third Circuit explained that this

rule applies even though “the decision of the BCNR is

in the form of a recommendation to the Secretary”.

639 F.2d at 1043, n.13; see also Nelson v. Miller, 373

F.2d at 478. Courts within the Third Circuit have

cited this rule in response to government arguments

that the Secretary of a military department has final

discretion to overrule a Board. See Waudby v. United

States, No. 2:09-cv-1167, 2010 WL 324521 at *8-9 (D.

N.J. 2010) (citing Neal, Weiss, and Proper and denying

government motion for summary judgment because

Secretary’s rejection of a Board decision could be

arbitrary if Board decision was supported by

substantial evidence). The Third Circuit thus looks to

see whether the Board’s decision is justified by the

record, and if so, the Secretary will not be permitted

to reweigh the evidence and set aside the Board’s

decision.

10 Although it indicated that it felt the Chief of Naval Personnel’s

rejection of a board decision was improper, the Third Circuit did

not reach this ultimate question but instead allowed the district

court to retain jurisdiction while the plaintiff pursued relief

through the BCNR.

Though none have clearly ruled on the exact

question presented here, several other Circuits have

favorably cited the Third Circuit’s articulation of the

rule when examining the powers of the Secretary and

the Boards.

The Second Circuit has cited Neal, as

persuasive authority in cases involving Board review.

See Blasingame v. Sec’y of the Navy, 866 F.2d 556,

558-559 (2d Cir. 1989)(reversing grant of summary

judgment in case referred to Commandant of the

Marine Corps for advisory opinion); see also Dibble v.

Fenimore, 545 F.3d 208, 215 (2d Cir. 2008) (citing Neal

as persuasive authority in case involving Air Force

Board for Correction of Military Records).11 The

Eighth Circuit has cited the Third Circuit’s Nelson

decision, and Proper, Weiss, and Hertzog v. United

States, 167 Ct. Cl. 377 (Ct. Cl. 1964), from the Court

of Claims in explaining that the Secretary cannot

arbitrarily overrule Board decisions.

Horn v.

Schlesinger, 514 F.2d 549, 553 (8th Cir.

1975)(deciding case on failure to exhaust

administrative remedies). The Seventh Circuit also

cites the rule followed by the Third Circuit. See

Champagne v. Schlesinger, 506 F.2d 979, 983 (7th Cir.

1974) (citing Hertzog and explaining that rejection is

allowable only on narrow grounds). Finally, the Fifth

Circuit has cited Proper, Weiss, and Hertzog from the

Court of Claims, and Nelson from the Third Circuit in

11 Cf. Falk v. Sec’y of the Army, 870 F.2d 941, 945 (2d Cir. 1989).

In Falk, the Second Circuit held that the Board’s power to correct

was discretionary. Id. This holding, however, did not examine a

secretary’s rejection of a Board decision supported by substantial

evidence, and instead involved an examination of the Board’s

decision in the first instance. Id.

explaining that the Secretary cannot arbitrarily

overrule the Board. See Hodges v. Callaway, 499 F.2d

417, 423 (5th Cir. 1974). These Circuits’ citation of the

strong rule preventing arbitrary reversal of Board

decisions by the Secretary indicates that they would

side with the Third Circuit.

By contrast, the Federal Circuit’s decision here

permits the Secretary to overrule the board based on

his own view of the evidence. In addition to the

Federal Circuit, the Ninth, and D.C. Circuits appear

to provide the Secretary discretion to overrule the

Board by reweighing the evidence. See, e.g., Barber v.

Widnall, 78 F.3d 1419, 1423 (9th Cir. 1996); Miller v.

Lehman, 801 F.2d 492, 497 (D.C. Cir. 1986).

This split in authority means that some circuits

will permit the Secretary to reweigh evidence and set

aside a Board decision whereas others will not.12 The

Court should grant this petition to resolve this

conflicting authority from the Circuits on an

important right Congress granted to servicemembers

based upon the Nation’s experience in World War II.

The Earliest Cases Correctly

Restricted The Secretary’s

12 The decision in Strand IV is also a significant shift because the

majority of these cases proceed in the Federal Circuit as the

United States Court of Federal Claims has exclusive jurisdiction

over monetary claims against the government in excess of

$10,000. See 28 U.S.C. § 1491(a).

Discretion Based On The Statutory

Language

The Court of Claims, acting close in time to the

enactment of the statute,13 initially strongly rejected

the idea that the Board’s recommendations are

“merely advisory”. See, e.g., Proper, 139 Ct. Cl. at 526

(Ct. Cl. 1957). In Proper, the court said

But defendant urges that the Secretary

did not need to act through a civilian

board and that the recommendations of

the Correction Board were merely

advisory, leaving the Secretary free to

accept and act favorably on the findings

and recommendations, or to ignore

them, as he saw fit. Such an

interpretation of [the statute] makes

the words ‘acting through boards of

civilian

officers

employees’

superfluous. Neither the act itself nor

13 A handful of initial cases held that decisions of the Boards were

not reviewable by the Courts. See Gentila v. Pace, 193 F.2d 924,

927 (D.C. Cir. 1951) cert. denied 342 U.S. 943 (1952). These

conflicted with law developed in the Court of Claims finding such

claims reviewable. See Prince v. U.S., 119 F. Supp. 421, 423-424

(Ct. Cl. 1954). In Harmon v. Brucker, the majority of the Court

found that a district court had jurisdiction over a

servicemember’s claim challenging the characterization of his

discharge. 355 U.S. 579, 581-582, (1958). Since then, Courts

have reviewed such claims. See, e.g., Guerrero v. Stone, 970 F.2d

626, 628 (9th Cir. 1992)(“the federal courts are open to assure

that, in applying the regulations, commanders do not abuse the

discretion necessarily vested in them.” citing Sec’y of Navy v.

Huff, 444 U.S. 453, 458 n.5 (1980)).

its legislative history warrants such an

interpretation.

Id. As the Proper court explained, “[s]ince the errors

or injustices which might require correction were

originally made by the military, Congress made it

manifest that the correction of those errors and

injustices was to be in the hands of civilians.” Id.

Accordingly, the court determined that under

certain circumstances, the Secretary could be bound

by the BCNR’s findings. See Weiss, 187 Ct. Cl. at 10

(citing Hertzog, 167 Ct. Cl. at 387). These initial

decisions focused on the findings of the board, and

where those findings were warranted and supported

by substantial evidence, the Secretary was not

permitted to overrule the Board without additional

evidence to the contrary. Proper, 139 Ct. Cl. at 52728; Weiss, 187 Ct. Further, the court also initially took

the position that the Secretary could not simply

reverse the Board because he disagreed with the

decision. See Betts v. United States, 145 Ct. Cl. 530,

535-36 (Ct. Cl. 1959). Moreover, the Secretary was not

free to reach a decision that is contrary to the

evidence. Hertzog, 167 Ct. Cl. at 387. As the court

stated, “a decision contrary to all the evidence, and for

which, even on post audit, no reason can be given

except an irrelevant reason, cannot be characterized

as other than capricious. As such it deserves only to

be ignored, and we ignore it.” Id.

These earliest cases correctly recognized that

Congress intended to place decision making authority

over record corrections cases in the hands of civilians

as an oversight mechanism. Proper, 139 Ct. Cl. at 526.

As the Third Circuit has explained in Neal:

The statute establishing military

review tribunals explicitly obligates

them to act to ‘remove an injustice,’ a

task which necessarily entails an

inquiry by the tribunal as to whether

the individual has been treated in a

manner comporting with traditional

notions of fairness. In essence, the

military correction boards were

established to provide an institutional

check on arbitrary action. Before the

legislation which authorized creation of

administrative boards, Congress itself

reviewed military discharges on an ad

hoc basis. When Congress determined

to change the previously prevailing

system, it did so by providing for

tribunals with broad, not restricted

review power. It need not have done so.

could

have,

without

any

constitutional impediment, maintained

or perpetuated the practice by which

military personnel decisions were the

sole prerogative of the commanding

officers. Instead, when Congress

established civilian boards to review

military personnel decisions, it did not

provide for boards limited, as the

names may erroneously imply, to the

clerical function of making technical

correction of records of military

personnel.

639 F.2d at 1042 (internal citation omitted).

As observed by the Third Circuit, it was not

necessary for Congress to create the Boards, and

Congress could have left complete discretion for record

corrections to the military chain of command. Indeed,

10 U.S.C. § 1552(a)(2) shows that Congress was well

aware of this possibility as that provision allows

Secretaries to act without Board involvement in

certain cases.

By treating corrections under

1552(a)(1) differently, and requiring the Secretary to

act “through” the Board, it is clear that Congress did

not intend simply to preserve total discretion for the

Secretary.

Courts in the Third Circuit have

interpreted the history of the statute to prohibit the

Secretary from reversing the Board where the Board’s

decisions are supported by the record. See Waudby,

2010 WL 324521 at *8-9.

By Contrast, The Federal Circuit

Has Eroded An Important

Procedural Protection For Service

Members.

Despite the strong initial precedent protecting

servicemembers from arbitrary reversal of board

decisions by the Secretary, more recent cases in the

Federal Circuit have drifted away from this standard.

In Boyd v. United States, the Court of Claims found

that the secretary could reverse the Board where the

Board’s findings were not justified on the record

before the Board. 207 Ct. Cl. 1, 9 (Ct. Cl. 1975). In

Sanders v. United States, the Court of Claims then

cited Boyd and held that secretaries were free to differ

with the recommendations of the Boards where the

evidence is susceptible to varying interpretations. 594

F.2d 804, 812 (Ct. Cl. 1979). Courts nonetheless

continued to apply Weiss and Proper to prevent

reversal where the Board’s decisions were supported.

See, e.g, Laningham v. United States, 30 Fed. Cl. 296,

308-09 (Fed. Cl. 1994) (“Weiss stands for the

proposition that the Secretary of a military

department does not have the unilateral authority to

set aside the findings of a correction board where such

findings are supported by the evidence.”).

More recently, in Strickland v. United States,

the Federal Circuit relied on Sanders and Boyd to

reverse the Court of Federal Claims’ decision that the

BCNR’s determination was binding on the Secretary

by operation of the statute. 423 F.3d at 1337-38. In

Strickland, the Federal Circuit held that the

Secretary (through the AGC) could reject the BCNR’s

decision, but such rejection was subject to review

under the APA standard. Id. at 1343. Yet even under

that weakened standard, the strong language from

earlier cases like Proper, Weiss and Hertzog continued

to be applied if the Board’s decision was justified by

the record. See, e.g., App. 93a (“Ultimately, because

the function of the BCNR is not merely advisory, the

Secretary is not free to reject a recommendation

without proper justification.”).

In the Strand IV case, the Federal Circuit has

now walked this back further, and erroneously

distinguished Proper, Weiss, and Hertzog on the basis

that those cases apply only in instances where the

Secretary rejects the Board’s recommendation on the

advice of a military officer.14 See App. 13a (stating

14 In Mr. Strand’s case, the AGC accepted the recommendation of

Mr. Robert O’Neill, a recently retired Judge Advocate General

Corps officer, to revisit the BCNR’s decision. See App. 10a. The

that Proper and Weiss have “no application” without

military officer involvement). The Federal Circuit

then held that without military officer involvement,

“the Secretaries are free to differ with

recommendations of correction boards where the

evidence is susceptible to varying interpretations.”

App. 13a-14a (internal ellipsis and brackets

omitted)(citing Sanders v. United States, 594 F.2d

804, 812 (Ct. Cl. 1979).

By allowing service secretaries total deference

to overrule the Boards, the Federal Circuit has now

placed the decision-making power back into the

military chain of command with the Secretary. The

earliest decisions of its predecessor, the Court of

Claims, correctly held that this was not what

Congress intended when it required the Secretary to

“act[] through” the Board to correct records. The

Federal Circuit has strayed so far from the original

meaning of the statute intended by Congress as to

render it meaningless. This Court should grant

certiorari to restore the balance created by Congress.

Federal Circuit found Proper and Weiss inapplicable because Mr.

O’Neill was retired and thus a civilian when he wrote the memo

recommending the AGC review the BCNR’s decision. App. 13a.

The Federal Circuit’s holding that Proper and Weiss are

inapplicable in Mr. Strand’s case ignores that in Proper, the

recommendation was also made by a retired officer. Proper, 139

Ct. Cl. at 526; see also Hertzog, 167 Ct. Cl. at 382

(recommendation also made by retired officer).

II.

THE FEDERAL CIRCUIT’S DECISION IS

INCONSISTENT WITH THE EXPRESS

DICTATE OF 10 U.S.C. § 1552

The Federal Circuit’s decision in Strand IV

allows the Secretary to act without involving the

Board. 10 U.S.C. § 1552(a)(1) requires the Secretary

to “act[] through boards of civilians” when correcting

records. (emphasis added). The Federal Circuit’s

decision permits the Secretary to disagree with the

Board’s conclusions about the record and to reach a

different decision, and upon different bases than the

Board.15 But if the Secretary is permitted to reweigh

the evidence and decide however he sees fit, he is not

“acting through” the Board, and the Board serves no

purpose.

The Plain Language of 10 U.S.C. §

1552 Limits The Secretary’s

Discretion

In interpreting statutory language, the Court

first looks to the ordinary meaning of the language.

See Schindler Elevator Corp. v. U.S. ex rel. Kirk, 563

U.S. 401, 407 (2011). An “act” is “something done or

performed.” Act, Black’s Law Dictionary (11th ed.

2019). Additionally, “acting” when used as a verb

without an object means “to reach, make, or issue a

decision on some matter.” Dictionary.com, Acting,

The statute requires that where the Board makes a

preliminary determination that there are insufficient documents

or information to support a claim, the claimant must be notified

in writing and given an opportunity to provide the records. 10

U.S.C. § 1552(a)(3)(B-C). Here the AGC did not inform Mr.

Strand of the bases upon which she found his claim insufficient

prior to issuing her decision.

https://www.

dictionary.com/browse/acting

(last

visited July 20, 2020). Here, the “act” is the correction

of a military record and the Secretary is supposed to

be “acting”—reaching the decision—“through” the

Board.

“Through” is “used as a function word to

indicate means, agency, or intermediacy: such as a: by

means of : by the agency of.” Merriam-Webster.com

Dictionary, Merriam-Webster, Through, https://www.

merriam-webster.com/dictionary/through (last visited

July 19, 2020). Here, Congress granted the power to

“correct an error or remove an injustice” from a

military record. 10 U.S.C. § 1552(a)(1). In so doing,

Congress mandated that “such corrections shall be

made by the Secretary acting through boards of

civilians of the executive part of that military

department.” Id. (emphasis added). The act of

correcting records has been delegated by Congress to

the Boards. “[A]cting through” the Boards means that

the Secretary is required to rely on the Boards when

making these decisions. At the very minimum, this

language means that the Secretary can’t reject the

Board’s conclusion when that conclusion is supported

by the record. If the Secretary could just reject the

Board’s decision in such circumstances, that would

effectively render the Board’s input irrelevant.

Permitting A Secretary To

Substitute His Judgment For The

Board’s Violates Canons Of

Statutory Construction

Under the mandatory/permissive canon of

statutory construction, mandatory words like “shall”

impose a duty. See Kingdomware Techs., Inc. v.

United States, 136 S. Ct. 1969, 1977 (2016). The

statute says that “corrections shall be made by the

Secretary acting through boards of civilians of the

executive part of that military department.” 10 U.S.C.

§ 1552(a)(1)(emphasis added). The Secretary thus has

a duty to act through the Boards when correcting

errors or injustices and cannot substitute his own

judgment in place of the Boards.

Although the statute begins with language that

says “[t]he Secretary of a military department may

correct any military record . . .” (emphasis added), the

following sentence requires corrections “shall” be done

“through” the boards. 10 U.S.C. § 1552(a)(1)(“such

corrections shall be made by the Secretary acting

through boards of civilians…”). The permissive

language in the first sentence of the statute only

clarifies that records may be corrected,16 but the

statute imposes a duty that any such corrections are

determined by the Boards.

The Federal Circuit’s decision also violates the

canon against surplusage. It is the Court’s “duty to

‘give each word some operative effect’ where possible.”

Duncan v. Walker, 533 U.S. 167, 175 (2001). Under

this canon, no word should needlessly be given an

interpretation that causes it to duplicate another

provision or to have no consequence. See Kungys v.

United States, 485 U.S. 759, 778 (1988) (plurality

16 This reading of the permissive language in the first sentence

of the statute is consistent with the Navy’s regulations that state

that correction will not be denied solely on ground that initial

record was correct when made. 32 C.F.R. § 723.3(e)(2). If

corrections could be denied for this reason alone, the Secretary

could take the position that corrections were not permitted if the

records had been correctly made.

opinion of Scalia, J.) (citing the “cardinal rule of

statutory interpretation that no provision should be

construed to be entirely redundant”). By allowing the

Secretary to decide cases as he sees fit without regard

to the Board’s decision, the Federal Circuit has

rendered the words “through boards of civilians”

surplusage. See Proper, 139 Ct. Cl. at 526.

The Secretaries of the military departments

have always had inherent authority and discretion to

make military records and to correct the records they

have made. See, e.g., Carney v. Sec’y of Defense, 462

F.2d 606, 607 (1st Cir. 1972)(noting that Secretary of

the Navy has inherent authority to issue or modify

orders). In creating the Boards, Congress took some

of that discretion and curtailed it, requiring that

Secretaries act “through” boards of civilians. In other

words, Congress introduced a requirement that the

Secretary’s authority to “remove an injustice” from

military records could not be exercised independent of

civilian boards. This understanding of the words

“acting through boards of civilians” is consistent with

Congress’ civilian oversight role via private bills that

it sought to supplant by establishing the Boards. If

Congress intended only for the Secretary to have

absolute discretion to correct records, it did not have

to create the Boards at all, or to use language

requiring the Secretary to “act[] through boards of

civilians.” This language cannot be treated as

superfluous.

Finally, under the whole-text canon, the text of

a statute must be construed as a whole. A. Scalia &

B. Garner, Reading Law: The Interpretation of Legal

Texts 167 (2012) (explaining that “the whole-text

canon” requires consideration of “the entire text, in

view of its structure” and “logical relation of its many

parts”). Subsection (a) of the statute divides the

universe of decisions into two parts: for some decisions

the Secretary must “act[] through boards of civilians”;

and for other decisions “[t]he Secretary concerned is

not required to act through a board”.17 Compare 10

U.S.C. § 1552(a)(1) with § (a)(2). Taken as a whole,

this provision alone shows that the final decision

under section (a)(1) does not belong to the Secretary

and demonstrates that Congress knew how to state

such discretionary authority in section (a)(2).

However, the other provisions of the statute speak of

the Board making the determination on record

corrections (subsections (a)(3), (4), (g), (h)) and one

provision permits the Secretary himself to request

correction from the Board. 10 U.S.C. § 1552(b) (“the

Secretary concerned files a request for the correction”

and “[t]he Secretary concerned may file a request for

correction of a military record” (emphasis added)). If

the statute had placed discretion to correct records

with the Secretary, then the Secretary would not have

to request correction from the Board. This overall

scheme is inconsistent with the idea, as now expressed

by the Federal Circuit, that all corrections are at the

Secretary’s sole discretion. The Court should grant

this petition to ensure that courts are correctly

interpreting the law as intended by Congress.

The Federal Circuit’s Opinion In

Strand IV Is Inconsistent With The

This second category of decisions include those concerning

enlistment, re-enlistment or promotion. See 10 U.S.C. §

1552(a)(2). In such cases, the Secretary can only act if his action

is favorable to the servicemember. Id.

Legislative History Of The Statute

Showing That The Boards Were

Established To Provide Civilian

Oversight Of Military Decision

Making

By using the language “acting through boards

of civilians,” Congress clearly did not intend for the

Secretary to have final discretion over records

corrections because the Boards were established to

mimic Congress’ civilian oversight of the military.

Prior to World War II, requests by servicemembers for

corrections to their records were handled through

private bills to Congress. General Accounting Office,

supra, at 75. Congress established the NDRB and the

BCNR at the end of World War II due in part to

concerns that Congress was not properly equipped to

handle the volume of requests. See Legislative

Reorganization Act of 1946 § 131 (outlawing private

bills to correct military records)(codified at 2 U.S.C. §

190g); see also John. J. Field, Waiving the

Discretionary Statute of Limitations Governing the

Boards for Correction of Military Records, 62 Geo.

Wash. L. Rev. 920 (1993) (quoting S. Rep. No. 79-1400

(1946) and explaining year-long study determining

that Congress was not organized and equipped to

supervise execution of programs).

Additionally, Congress was concerned that

military members did not receive the same legal and

procedural protections in the military justice system

that they would be entitled to in civilian courts. See

Michael J. Wishnie, “A Boy Gets Into Trouble”: Service

Members, Civil Rights, And Veterans’ Law

Exceptionalism, 97 B.U.L. Rev. 1709, 1726-27 (2017)

(citing S. Rep. No 78-755, at 2 (1944) and 78 Cong.

Rec. 4538 (1944)). Accordingly, Congress first

established Discharge Review Boards in 1944, and

then in 1946 directed that civilian boards review

military records to correct errors or injustice. 10

U.S.C. § 1552;18 see also, e.g., John. J. Field, Waiving

the Discretionary Statute of Limitations Governing the

Boards for Correction of Military Records, 62 Geo.

Wash. L. Rev. 920, 932-935 (1993) (discussing

legislative history of creation of the Boards). The

broad purpose of the Acts that established the Boards

in the wake of World War II was to create a “bill of

rights to facilitate the return of service men and

women to civilian life.” S. Rep. No. 78-755, at 2 (1944).

Shortly after the creation of the Boards, the Attorney

General opined that the Boards were established “as

a substitute for a disapproved system (relief by private

acts) and should be so construed, if possible, as to

make unnecessary further resort to the old method.”

40 Op. Att'y Gen. 504, 508 (1947) (Attorney General

Tom C. Clark).

“If courts read the grant to permit the

Secretaries unbridled discretion to decide whether or

not to correct an injustice, then the courts would alter

substantially the Act’s purpose because such a

reading would make resort to the old method

necessary to obtain relief.” John J. Field, Waiving the

Discretionary Statute of Limitations Governing the

Boards for Correction of Military Records, 62 Geo.

Wash. L. Rev. 920 (1993) at 935. “Thus, ‘the

conjunction of section 131 [disallowing private bills]

18 The Boards were originally codified at 5 U.S.C. § 191a, but this

was moved to the current location in the Code by Aug. 10, 1956,

c. 1041, 70A Stat. 116.

with section 207 [establishing the Boards] implies

that the Secretaries have a duty as well as the power

to afford servicemembers proper relief.” Id.; see also

40 Op. Att'y Gen. 504, 505 (“These two sections must

be read together.”).

Recognizing that it faces a public health crisis

with the Nation’s veterans after nearly two full

decades of continuous fighting, Congress continues to

try to implement protections for servicemembers

through the Boards.

See National Defense

Authorization Act for Fiscal Year 2017, Pub. L. No.

114-328, § 535, 130 Stat. 2000, 2919 (2016), amended

by National Defense Authorization Act for Fiscal Year

2018, Pub. L. No. 115-91, § 520, 131 Stat. 1332

(2017)(“Fairness for Veterans Act”) (requiring boards

to give “liberal consideration” to claims by service

members suffering from PTSD or related behavioral

health conditions); see also 10 U.S.C. § 1552 (h)

(codification of the Fairness for Veterans Act). Yet,

despite Congress’ clear intention that the Boards

should provide equitable relief to servicemembers to

soften the impact of harsh military justice in

subsequent civilian life, that goal continues to be

frustrated by eroded judicial oversight and near

complete deference, in some circuits, to Secretarial

reversals of the recommendations of the Boards.19

19 The judiciary’s reluctance to exercise proper oversight is also

inconsistent with the legislative history of revisions to the

statute. Pub. L. No. 82-220, 65 Stat. 655 (1951). Congress had

expressly considered and rejected language that Board actions

“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.” See Friedman v. United States, 158

F. Supp. 364, 375 (Ct. Cl. 1958) (emphasis added) (citing H.R.

Rep. No. 82-449 (1951)). The emphasized language was deleted

III.

MR. STRAND’S CASE PRESENTS A

CLEAN AND CLEAR ISSUE UPON

WHICH THE COURT CAN RULE

The Navy has never contended that the BCNR

did not have the power to grant Mr. Strand the relief

it did. In fact, before the Federal Circuit, the Navy

conceded that the BCNR’s decision was supported by

the record. See Brief of Defendant-Appellant at 23-24

Strand IV, Case No. 19-1016 (Fed. Cir. filed Feb. 19,

2019) (“[t]o be sure, before the Secretary were

evidence and arguments that supported granting the

BCNR’s recommendation, and we recognize that a

reasonable person perhaps could have reached a

different result after considering them.”).

That

concession sets up the perfect test and should prove

determinative. Proper, Weiss, Neal, Hertzog, Betts,

and others, have correctly held that where the Board’s

recommendations are justified by the record, the

Secretary has no discretion to deviate from them. The

rule in Proper is consistent with Congress’ intent that

corrections to military records be made by the

Secretary “acting through boards of civilians.”

Mr. Strand’s is exactly the type of case

Congress envisioned when it brought the Boards into

existence – the servicemember who “gets into trouble.”

After a stellar 19½ year career, Mr. Strand committed

one split-second instance of misconduct that is now

over 12 years old. As a result, Mr. Strand now has a

black mark in his record that is preventing his

after hearings. Id. (citing Hearings on H.R. 1181 Before a

Subcomm. Of the House Comm. On Armed Service, 82 Cong., 1st

Sess. 391-93 (1951)).

reintegration into civilian life. The BCNR saw the

injustice in continuing to punish Mr. Strand under

these circumstances and granted him relief. That

decision is fully supported by the record, but it was

summarily reversed twice by the AGC. Contrary to

the intent of Congress, the Federal Circuit has

permitted the AGC to revert to a harsh standard of

military justice that needlessly continues to punish

Mr. Strand, without any perceptible benefit for the

Navy. Indeed, the AGC’s current position that Mr.

Strand’s conduct is so violative of the core values as to

preclude further relief is inconsistent with the current

characterization of his discharge—General (Under

Honorable Conditions) (emphasis added).

Today, the Boards receive tens of thousands of

cases every year from servicemembers like Mr. Strand

seeking corrections to their service records. Although

the Boards are required by 10 U.S.C. § 1552(i) to post

information on the number of claims considered and

corrected, this information is difficult to obtain. The

most recent statistics available from the BCNR show

that it receives over 12,000 applications annually.20

Current statistics for the Army Board for Correction

of Military Records are not available, but

commentators have noted that the board received

17,674 applications in fiscal year 2012, of which 9,314

were considered by three-member panels. See The

Boards for Correction of Military and Naval Records:

An Administrative Law Perspective, 65 Admin. L.

Rev. 499, 502 (Spring 2013). Current Air Force Board

20 See Board for Correction of Naval Records, FAQ and Key

Information,

https://www.secnav.navy.mil/mra/bcnr/Pages/FAQ_and_Key_Inf

ormation.aspx#0 (last visited, July 1, 2020).

for Correction of Military Records statistics are not

available. Even with this imperfect information, we

know that tens of thousands of servicemembers seek

relief from the Boards every year.

Mr. Strand’s treatment is representative of the

challenges faced by tens of thousands of other

servicemembers trying to obtain relief from the

Boards as Congress intended so that they can fully

integrate back into civilian life.

After those

servicemembers have served in our Nation’s

continuing and longest war effort, under incredible

personal stress upon themselves and their families,

they often find themselves subject to harsh military

justice. These veterans suffer from high rates of PostTraumatic Stress Disorder and Traumatic Brain

Injury,21 which Congress has recognized and directed

the military to address in a lenient manner. See 10

U.S.C. §§ 1552(g)(2), (h). But some courts have

allowed a system designed by Congress to show

leniency to those who have served to be replaced by

the same harsh military system Congress intended to

soften. The Court should act to eliminate the current

uncertainty as to whether courts should show

virtually total deference to a military Secretary’s

reversal of a Corrections Board. By doing so it will

ensure the return of the power to correct service

records to the Boards as Congress intended.

21 See Boohar, supra at 105-06 (noting that between 2000 and

2015 approximately 177,461 servicemembers were diagnosed

with Post Traumatic Stress Disorder, and 327,299 were

diagnosed with Traumatic Brain Injury).

CONCLUSION

The Court should grant the petition for a writ

of certiorari in order to remedy the degradation of a

remedy for thousands of servicemembers who seek

corrections to their service records. This Court should

reverse the Federal Circuit and afford such other and

further relief as the Court deems proper.

Respectfully submitted,

LUCAS T. HANBACK

Counsel of Record

JEFFERY M. CHIOW

NEIL H. O’DONNELL

ROGERS JOSEPH O’DONNELL P.C.

750 9th Street NW, Suite 710

Washington, DC 20001

(202) 777-8950

lhanback@rjo.com

Counsel for Petitioner

July 31, 2020

APPENDIX

United States Court of Appeals for the Federal

Circuit

______________________

WALTER N. STRAND, III,

Plaintiff-Appellee

UNITED STATES,

Defendant-Appellant

______________________

2019-1016

______________________

Appeal from the United States Court of Federal

Claims in No. 1:15-cv-00601-TCW, Judge Thomas C.

Wheeler.

______________________

Decided: March 3, 2020

______________________

LUCAS TAYLOR HANBACK, Rogers Joseph

O'Donnell, Washington, DC, argued for plaintiffappellee. Also represented by JEFFERY M. CHIOW;

NEIL H. O'DONNELL, San Francisco, CA.

DANIEL KENNETH GREENE, Commercial

Litigation Branch, Civil Division, United States

Department of Jus-tice, Washington, DC, argued for

defendant-appellant. Also represented by JOSEPH

H. HUNT, ROBERT EDWARD KIRSCHMAN, JR.,

DOUGLAS K. MICKLE; STEPHEN ROBERT

STEWART, Office of the Judge Advocate General,

General Litigation Division, United States

Department of the Navy, Washington, DC.

______________________

Before REYNA, HUGHES, and STOLL,

Circuit Judges.

Opinion for the court filed by Circuit Judge

HUGHES.

Dissenting opinion filed by Circuit Judge

REYNA.

HUGHES, Circuit Judge.

The government appeals a decision of the

United States Court of Federal Claims setting aside

the Secretary of the Navy’s denial of Walter Strand’s

request to correct his military service records. Against

the recommendation of a records correction board, the

Secretary denied Mr. Strand’s request for a six-month

service credit to become eligible for military

retirement benefits. Because the Secretary did not

exceed his authority in rejecting the board’s

recommendation and substantial evidence supports

his decision, we reverse and thereby reinstate the

Secretary’s decision to deny the correction.

Mr. Strand served in the Navy for roughly

nineteen and a half years until June 2009 when he

was discharged under other than honorable conditions

for firing a gun at his estranged wife and her

companion. Mr. Strand was convicted in state court of

three felonies: attempted malicious wounding,

attempted unlawful wounding, and use of a firearm in

the commission of a felony. He was sentenced to six

years in prison, with three years suspended for good

behavior. Since his release, Mr. Strand has sought

various “corrections” to his naval service records,

including a six-month credit so that he would have 20

years of service and be eligible for military retirement

benefits.1

In 2014, the Board for Correction of Naval Records

(BCNR or Board) recommended granting Mr. Strand’s

requested correction. The Board weighed “the

seriousness of [Mr. Strand’s] disciplinary infractions”

against his “overall record of more than 19 years and

six months of satisfactory service [including receiving

numerous medals,] . . . . his good post service

conduct[,] and his early release from civil confinement

due to good behavior.” J.A. 32. Finding that he had

“suffered long enough for his indiscretion,” the Board

recommended correcting Mr. Strand’s record to reflect

20 years of service. J.A. 32–33. That recommendation

has now been twice considered—and twice rejected—

by the

1 As discussed below, 10 U.S.C. § 1552 authorizes corrections of

military records when “necessary to correct an error or remove

an injustice.”

Secretary of the Navy.2

First, in February 2015, the Secretary rejected the

Board’s recommendation in a short, two-paragraph

decision. The Secretary’s decision generally

referenced the seriousness

of Mr. Strand’s felony convictions, the Navy’s core

values, its practice in similar cases, and Mr. Strand’s

supposed “long-standing history of FAP [Family

Advocacy Program] involvement and domestic

violence issues.” J.A. 25. Mr. Strand challenged this

decision in the Court of Federal Claims, which

reversed the Secretary’s 2015 decision as arbitrary

and capricious and instructed the Navy to retire Mr.

Strand. Strand v. United States (Strand I), 127 Fed.

Cl. 44, 51 (2016).

On appeal, we agreed that the Secretary’s 2015

decision was not supported by substantial evidence,

but we reversed and remanded to allow the Secretary

an opportunity for further review. Strand v. United

States (Strand II), 706 F. App’x 996, 998, 1001 (Fed.

Cir. 2017) (nonprecedential). In Strand II, we found a

lack of substantial evidence specifically because the

Secretary’s statement that Mr. Strand had a history

of FAP involvement and domestic violence issues

lacked record support. Id. at 1000. Recognizing that

2 The Secretary has delegated authority to act on

BCNR recommendations to the Assistant Secretary, Manpower

and Reserve Affairs, SECNAVINST 5420.193 at 1¶ 3(b), who in

turn delegated that authority to the Assistant General Counsel

for Manpower and Reserve Affairs, Appellant’s Br. 4 n.1. Here,

different Assistant General Counsels issued the two rejection

decisions, but for clarity we refer to both as decisions of the

Secretary.

the Secretary relied on “a combination of intertwined

reasons,” at least one of which Mr. Strand had shown

was not supported by substantial evidence, we remanded because the Secretary had not yet considered

whether the Board’s decision “should be upheld in the

absence of any evidence of a ‘long-standing history’ of

FAP involvement.” Id.

On remand following Strand II, the Secretary

considered the Board’s 2014 recommendation anew

and in January 2018—after inviting and receiving

supplemental information from Mr. Strand—again

rejected the recommendation. The Secretary this time

issued a seven-page memorandum explaining the

decision to deny the re-quested correction. The

Secretary found that Mr. Strand’s overall periods of

service and post-service conduct did not “overcome the

seriousness of the misconduct that resulted in his

civilian conviction,” and that the “passage of time . . .

does not warrant overlooking the seriousness of the

conviction that led to his discharge” and his resultant

ineligibility for retirement. J.A. 283.

The Secretary also noted that two early

“counseling/warning” entries added to Mr. Strand’s

record in February 1992 and September 1993 gave

him “clear and repeated notice” that he could be

separated from service for disobeying military

regulations and civilian laws.3 J.A. 118, 121, 283.

3 It is unclear from the record whether the 1992 and

1993 entries addressed the same underlying act(s) of

misconduct. The parties take opposing stances, with Mr.

Strand urging that the 1993 entry was merely a follow-up

for the same misconduct that prompted the 1992 entry. Even

assuming the Secretary erred in stating that Mr.

The Secretary then described how Mr. Strand’s

“history of performance and conduct” did not align

with each of the Navy’s core values—Honor, Courage,

and Commitment. J.A. 283–85. Finally, the Secretary

noted that Mr. Strand’s offenses were equivalent to a

violation of Uniform Code of Military Justice Article

128 (Assault), which authorizes a maximum penalty

of dishonorable discharge and confinement for eight

years. Citing several military justice cases, the

Secretary further noted that it was “very likely” Mr.

Strand would have received a punitive discharge had

he been prosecuted by the Navy, rather than civilian

authorities. J.A. 285. The Secretary concluded:

In sum, I commend Petitioner’s efforts

to engage in rehabilitation following

his conviction and incarceration, as

well as his efforts to rebuild his life.

However, I do not find that relief is

warranted and that Petitioner should

be granted credited time served for

retirement when, in fact, the basis for

his inability to retire was not an error

or an injustice, but his own deliberate

misconduct despite being on clear

notice of the consequences of his

actions. To grant relief under the

circumstances of this matter wholly

ignores the high standards that the

Strand “again engaged in misconduct in 1993,” J.A. 283, we

would find this error harmless. No matter the number of early

instances of misconduct, the Secretary’s rejection decision is

supported by substantial evidence.

Navy expects our military members to

demonstrate.

J.A. 285–86. The Secretary also added that Mr.

Strand had already received “appropriate relief” from

another records review board that upgraded his

service characterization from “Under Other Than

Honorable Conditions” to “General Under Honorable

Conditions.” J.A. 52, 286. The Secretary found this

partial relief—reflecting Mr. Strand’s “satisfactory

service and post-incarceration efforts to re-build his

life”—further reason to deny additional relief. J.A.

286.

Mr. Strand filed a supplemental complaint in

the Court of Federal Claims contesting the Secretary’s

2018 decision. On cross-motions for judgment upon

the administrative record, the Court of Federal

Claims again found the Secretary’s decision arbitrary

and capricious. Strand v. United States (Strand III),

138 Fed. Cl. 633, 643 (2018). Specifically, the trial

court found it arbitrary and capricious for the

Secretary to view Mr. Strand’s early counseling

entries as providing notice of his obligation to comply

with Navy core values that did not exist at the time of

the 1992 entry;4 and for the Secretary to engage in

“hypothetical forecasting” by “comparing Mr. Strand’s

civil case to military cases that do not apply the same

analysis.” Id. at 641. As to consideration of Mr.

4 The government concedes that the Navy adopted its core

values of Honor, Courage, and Commitment in late 1992, after

Mr. Strand received his 1992 counseling entry. Appellant’s Br.

9, 26.

Strand’s 2009 convictions, the trial court determined

that this Court, in Strand II, already “found that Mr.

Strand’s conduct did not constitute substantial

evidence to support the Secretary’s decision.” Id. at

642 (citing Strand II, 706 F. App’x at 1000). Finally,

the trial court faulted the Secretary for “fail[ing] to

give any real consideration to Mr. Strand’s postservice conduct.” Id. at 643. The court concluded that,

given these deficiencies and the Board’s “thorough

consideration of the evidence of record,” it could not

uphold the Secretary’s “decision to overrule the

Board.” Id. The trial court therefore again directed the

Navy to retire Mr. Strand with all appropriate back

pay, benefits, and allowances. Id. at 643–44.

The government now appeals.

jurisdiction under 28 U.S.C. § 1295(a)(3).

have

We review de novo the Court of Federal Claims’

decision to grant or deny judgment on the

administrative record. Roth v. United States, 378 F.3d

1371, 1381 (Fed. Cir. 2004). In reviewing an adverse

decision of a records correction board, we apply the

same standard of review that the Court of Federal

Claims applied, without deference. See id. Here we are

called to review not the action of a correction board,

but action by the Secretary of the Navy to overrule

that correction board. While the parties dispute the

circumstances in which a service secretary may reject

a board’s recommendation, they agree that the

substantial-evidence standard generally applies here.

That is, we must “determine whether the Secretary’s

rejection of the Board recommendation was arbitrary

or capricious, unsupported by substantial evidence, or

otherwise contrary to the law.” Strickland v. United

States, 423 F.3d 1335, 1343 (Fed. Cir. 2005).

Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support

a conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305

U.S. 197, 229 (1938).

The statute establishing civilian militaryrecords correction boards, such as the BCNR,

provides: “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 in-justice.” 10 U.S.C.

§ 1552(a)(1). Except in circumstances not present

here, “such corrections shall be made by the Secretary

acting through boards of civilians of the executive part

of that military department.” Id. (emphasis added).

Records correction boards were first authorized

in 1946 to “relieve Congress of the burden of

considering private bills to correct alleged errors and

injustices in the military system . . . .” Martinez v.

United States, 333 F.3d 1295, 1306–07 (Fed. Cir.

2003) (en banc). Concerned that service members

returning to civilian life after World War II might be

“handicapped by bad military records created without

due process in the hurly-burly of the war,” and that

career military officials “would not be much interested

in effecting corrections,” Congress required the service

secretaries to act “through boards of civilians.” Boyd

v. United States, 207 Ct. Cl. 1, 14 (1975) (Nichols, J.,

concurring).

Under Naval Service regulations, the BCNR

can take corrective action on behalf of the Secretary in

many situations. See 32 C.F.R. § 723.6(e)(1). But any

petition that the Secretary or the BCNR Executive

Director determines warrants Secretarial review is

“reserved for decision” by the Secretary. Id. §

723.6(e)(2)(iii). In Mr. Strand’s case, BCNR Executive

Director Robert O’Neill—a retired Navy JAG

Corpsman—requested that the Secretary review the

Board’s 2014 recommendation.5 In cases designated

for Secretarial review, the record of proceedings “will

be forwarded to the Secretary who will direct such

action as he or she determines to be appropriate . . . .”

32 C.F.R. § 723.7(a). “If the Secretary’s decision is to

deny relief, such decision shall be in writing and,

unless he or she expressly adopts in whole or in part

the findings, conclusions and recommendations of the

Board, or a minority report, shall include a brief

statement of the grounds for denial” satisfying 32

C.F.R. § 723.3(e)(4).6 Id.

5 Mr. O’Neill’s handwritten memo reads in full:

Please prepare this decision for [Manpower

and Re-serve Affairs] review. It is my opinion,

based on the seriousness of the offense and the

significant grant of relief, that [the Secretary]

should review this case for decision.

J.A. 35.

6 Section 723.3(e)(4), in turn, requires that the “brief statement

of the grounds for denial” include

the reasons for the determination that relief

should not be granted, including the

applicant’s claims of constitutional, statutory

and/or regulatory violations that were rejected,

together with all the essential facts upon which

the denial is based, including, if applicable,

10a

This appeal raises the question of how much

constraint a substantiated Board recommendation

places on a Secretary’s discretion to deny record

correction requests. Relying on language in

Strickland v. United States, 423 F.3d 1335, 1340–41

(Fed. Cir. 2005), the government asserts that the

Secretary may reject a Board recommendation “on the

basis of either explicitly stated policy reasons or

evidence in the record.” Appellant’s Br. 19 (quoting

Strickland). In Strickland, we held that Board

recommendations are not binding on the Secretary

since “Congress clearly has delegated the final

authority regarding any correction of military records

to the Secretary, not the correction board.” 423 F.3d at

1340; see id. at 1337 (concluding that the “the trial

court erred in interpreting § 1552(a) to man-date that

the . . . Secretary cannot reject a Board

recommendation”). We did not address the merits of

whether the Secretary’s rejection was permissible in

that instance, in-stead remanding for the trial court

to “determine whether the Secretary’s rejection of the

Board recommendation was arbitrary or capricious,

unsupported by substantial evidence, or otherwise

contrary to the law.” Id. at 1343. Thus, our

observation that “[o]ther circuits too have held that

the Secretary is authorized to reject a Board

recommendation so long as he acts on the basis of

either explicitly stated policy reasons or evidence in

the record,” id. at 1341, did not adopt such a standard

for future cases.

factors required by regulation to be considered

for determination of the character of and

reason for discharge.

11a

For his part, Mr. Strand argues that, under

precedent from our predecessor court, the Secretary

may not alter a correction board’s recommendation

unless the board’s findings are unsupported by the

administrative record. Appellee’s Br. 14–17. In his

view,

rejecting

substantiated

board

recommendation amounts to ignoring the board,

rather than “acting through” it, as § 1552(a) requires.

We acknowledge that strong language in some of our

adopted precedent would seem to support Mr.

Strand’s position. See, e.g., Proper v. United States,

154 F. Supp. 317, 326 (Ct. Cl. 1957) (rejecting the

proposition that a secretary is “free to accept and act

favorably

the

[board’s]

findings

and

recommendations, or to ignore them, as he [sees] fit”

be-cause such an interpretation of § 1552 “makes the

words ‘acting through boards of civilian officers or

employees’ superfluous” (quoting the predecessor to §

1552)); Weiss v. United States, 408 F.2d 416, 421 (Ct.

Cl. 1969) (“The thrust of the Proper opinion is that a

Secretary of a military department cannot overrule

the recommendations of a civilian correction board on

the advice of a military officer unless the findings of

the board are not justified by the record before it.”

(emphasis added)).

However, as the above-quoted language in

Weiss suggests, the decisions on which Mr. Strand

relies were rendered in the context of service

secretaries being influenced by—or outright

adopting—the opinions of military officers in rejecting

otherwise substantiated board recommendations. See

Weiss, 408 F.2d at 420–21 (Navy Secretary rejecting a

BCNR recommendation in an opinion that JAG likely

12a

prepared for the Secretary’s signature); Hertzog v.

United States, 167 Ct. Cl. 377, 385 (1964) (Army

Secretary’s rejection decision was “induced and

influenced” by general’s memorandum stating “I think

the approval of this recommendation would be a very

bad precedent”); Proper, 154 F. Supp. at 324–25 (Army

Secretary merely signed an order attached to the

oppositional memorandum of a retired general who

was not a civilian employee of the Army).

We have since held that Proper and Weiss “have no

application” without military officer involvement. See

Strick-land, 423 F.3d at 1341–42 (noting that in those

cases—which “had as a precondition the involvement

of a uniformed military officer”—the Secretary

“effectively deferred to a professional military officer

over the reasonable decision of the Board”). We

therefore find these cases inapplicable here. Although

BCNR Executive Director O’Neill is a retired military

officer, his memo requesting Secretarial review does

not constitute undue officer influence. Mr. O’Neill was

a civilian employee of the Navy when he wrote the

memo, cf. Proper, 154 F. Supp. at 325 (finding it

“important” that the memo in question was “rendered

by a military officer . . . , and not by a civilian

employee” of the Army); and his memo merely states

that the Secretary “should review this case for

decision,” J.A. 35, without advocating a particular

outcome of that review.

Indeed, in cases without military officer

involvement, our predecessor court “ha[s] held that

the Secretaries are free to . . . differ with the

recommendations of [correction] boards where the

evidence is susceptible to varying interpretations.”

13a

Sanders v. United States, 594 F.2d 804, 812 (Ct. Cl.

1979) (citing Boyd v. United States, 207 Ct. Cl. 1, 11

(1975)). In Boyd, the court upheld the Air Force

Secretary’s rejection of a board recommendation,

finding the board’s conclusion “d[id] not withstand the

contrary analysis and conclusion made in good faith,

within the law, and without arbitrariness or caprice

by the Assistant Secretary.” 207 Ct. Cl. at 12–13. In

so holding, the Boyd court applied the standard that

courts “may reject the decision of a Secretary only if

he has exercised his discretion arbitrarily,

capriciously, in bad faith, contrary to substantial

evidence, or where he has gone outside the board

record, or fails to explain his actions, or violates

applicable law or regulations.” Id. at 8–9. We reaffirm

that standard today.

We hold that, where a military officer has not

unduly influenced the secretary’s decision, a service

secretary may reject the recommendation of a records

correction board—even a recommendation supported

by the administrative record—so long as the

secretary’s rejection decision is not arbitrary or

capricious, unsupported by substantial evidence, or

otherwise contrary to the law. See Strickland, 423

F.3d at 1343; Boyd, 207 Ct. Cl. at 8–9.

The Secretary’s 2018 decision satisfies this

standard. It must therefore be reinstated.

The Secretary’s thorough consideration of the

serious-ness of Mr. Strand’s criminal misconduct,

alone, justifies his decision to deny the requested

14a

relief. The Secretary undertook a broad review of Mr.

Strand’s record, but in our view the heavy weight he

ascribed to Mr. Strand’s “cho[ice] to take a gun and

attempt[] to cause his former wife and another

individual substantial harm by discharging the

weapon,” J.A. 284, fully supports denying him credit

for six months of service he did not perform.

The trial court misread our decision in Strand

II when it stated that we “found that Mr. Strand’s

conduct did not constitute substantial evidence” and

that we had “rejected” his prior conviction as a

justification

for

overruling

the

Board’s

recommendation. See Strand III, 138 Fed. Cl. at 642–

43. We took no such position. In Strand II, we

considered an extremely brief Secretarial decision

which generally relied on four “intertwined reasons”

to reject the Board’s recommendation. 706 F. App’x at

999–1000. Because we found no record support for one

of those reasons—the alleged FAP involvement and

domestic violence issues—we remanded for the

Secretary to consider whether the Board’s

recommendation “should be upheld in the absence of

any evidence of a ‘long-standing history’ of FAP

involvement and domestic violence issues.” Id. at

1000. We expressed no view on the hypothetical

sufficiency of the other three reasons the Secretary

mentioned in the 2015 rejection—(1) the seriousness

of Mr. Strand’s convictions; and (2) that granting

relief would be inconsistent with the Navy’s core

values and (3) its practice in similar cases—in the

absence of the unsupported domestic violence reason.

Id. The Secretary’s 2018 decision makes it abundantly

clear that his decision remains the same even without

evidence of FAP involvement or domestic violence

15a

issues. The trial court’s misinterpretation of Strand II

notwithstanding, the Secretary remained free to rest

his decision on the seriousness of Mr. Strand’s

offenses.7

Mr. Strand objects that Naval Service

regulations prohibit denying relief solely because the

original discharge decision was correctly made, citing

32 C.F.R. § 723.3(e)(2).8 Even assuming § 723.3(e)(2)

applies to decisions of the Secretary (and not only to

Board consideration of initial applications), and

assuming Mr. Strand’s interpretation is correct, that

regulation does not undermine the Secretary’s 2018

decision. The Secretary did not reject the Board’s

recommendation simply because he thought the

7 In Strand II, the Secretary’s brief reference to Mr. Strand’s

“serious felonies” was not enough for us to uphold his 2015

decision, given its simultaneous reference to un-supported

domestic violence issues. J.A. 25.

8 Section 723.3(e)(2) provides, in relevant part:

The Board may deny an application in

executive session if it determines that the

evidence of record fails to demonstrate the

existence of probable material error or

injustice. The Board relies on a presumption of

regularity to support the official actions of

public officers and, in the absence of

substantial evidence to the contrary, will

presume that they have properly discharged

their official duties. Applicants have the

burden of overcoming this presumption but the

Board will not deny an application solely

because the record was made by or at the

direction of the President or the Secretary in

connection with proceedings other than

proceedings of a board for the correction of

military or naval records.

32 C.F.R. § 723.3(e)(2) (emphasis added).

16a

Navy’s 2009 discharge decision was correct. Nowhere

in the 2018 rejection decision do we find discussion of

the propriety of the original discharge. Rather, we find

a full analysis of the seriousness of Mr. Strand’s

conduct underlying the dis-charge.9

Beyond considering the seriousness of Mr.

Strand’s conviction-related conduct, the Secretary’s

seven-page memorandum also discussed several other

reasons for denying the service-credit correction—

more than satisfying the requirement to provide a

“brief statement of the grounds for denial.” See 32

C.F.R. §§ 723.3(e)(4), 723.7(a). Mr. Strand and the

trial court take issue with various aspects of the

Secretary’s additional reasoning. But none of the

identified issues brings the Secretary’s 2018 decision

into the realm of arbitrary or unlawful agency

action.10

9 At oral argument, Mr. Strand’s counsel seemed to suggest that

§ 723.3(e)(2) also prohibits relying solely on the seriousness of the

conduct underlying the discharge. See Oral Argument at 19:40–

20:00 (Q: “Are you saying that because he was administratively

discharged from the . . . Navy because of this felony conviction

and jail time, that they can’t further use that as a basis . . . for

not giving him relief under the corrections board decision? A: I’m

saying it can’t be the sole basis, Your Honor.”) and 31:01–10

(stating that under § 723.3(e)(2) the Secretary cannot rely on “the

initial

incident”

“the

sole

basis”),

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20191016.mp3. We find nothing in the text of § 723.3(e)(2) prohibiting

consideration of the seriousness of prior misconduct.

10 Mr. Strand has moved to strike the government’s reply brief,

arguing that it raises new issues not presented in the

government’s opening brief, though addressed by the trial court.

We agree that the government forfeited the justiciability and

17a

First, both the trial court and Mr. Strand, on

appeal, ascribe error to the Secretary’s use of the

Navy’s core values to assess Mr. Strand’s request for

relief. Mr. Strand objects both to the retroactive

application of the core values to his 1992 conduct

predating their establishment, and to the Secretary’s

invocation of the core values in general to overrule the

Board’s recommendation. Although the Navy

admittedly had not adopted its core values of Honor,

Courage, and Commitment when Mr. Strand received

his 1992 counseling entry, we see nothing arbitrary

about analyzing his overall history of performance

and conduct under the values existing at the time of

the 2018 decision. While we agree that the 1992

counseling entry could not have provided Mr. Strand

notice to comply with not-yet existing standards, it

still could—and did—warn him of the consequences of

future misconduct. J.A. 121 (stating that failure to

adhere to cited guidelines in the future “will make you

eligible for administrative separation action”). Even

leaving aside Mr. Strand’s early counseling entries,

one does not need any degree of “notice” to know not

to shoot at un-armed civilians.

As we read the 2018 decision, the Secretary

merely used the core values as a general framework to

assess Mr. Strand’s request. Although Mr. Strand

portends that allowing this core-values framework

will provide the Secretary unlimited discretion to

overrule Board recommendations, we are unwilling to

waiver arguments asserted in its reply brief, and we have not

considered those arguments in resolving this appeal. Given that

the government has prevailed on its other arguments, however,

we deny Mr. Strand’s motion as moot.

18a

mandate that the Secretary take—or avoid—any

particular analytical approach in his review of Board

recommendations. The requirement that the

Secretary’s rejection decision not be arbitrary or

capricious, unsupported by substantial evidence, or

contrary to the law will continue to provide adequate

accountability.

Likewise, the trial court and Mr. Strand read

too much into the Secretary’s citation to military

justice cases and observation that Mr. Strand likely

would have received harsher punishment had he been

prosecuted by military, rather than civil, authorities

for the shooting. We disagree with the trial court that

the Secretary “relie[d] upon” the cited cases or “use[d]

these cases to justify” his decision. Strand III, 138

Fed. Cl. at 642. Rather, after a full analysis of how Mr.

Strand’s illegal behavior did not align with the Navy’s

core values, the Secretary briefly delved into military

justice standards to emphasize that “the nature of

[Mr. Strand’s] conduct leading to his civilian

conviction cannot be overlooked.” J.A. 285. Far from

denying Mr. Strand’s request just because he might

have been punished more harshly in military court,

the Secretary cited military sources simply to provide

further points of comparison for assessing the nature

and severity of Mr. Strand’s conduct.

Finally, we reject the notion that the

Secretary’s decision should be reversed for insufficient

consideration of Mr. Strand’s positive service record

and post-service conduct. True, the Secretary’s 2018

decision makes little mention of the many medals,

high performance marks, and promotions Mr. Strand

received over the course of his career. But there is no

19a

requirement that the Secretary’s “brief statement”

address every aspect of a petitioner’s record. See 32

C.F.R. §§ 723.3(e)(4), 723.7(a).11

The

Secretary

reviewed

the

same

administrative record as the Board and drew a

different, but still supported, conclusion from it. That

the Secretary weighed certain aspects of the record

differently than did the Board does not mean that the

Secretary’s

conclusions

were

arbitrary

unsubstantiated. While the Board’s contrary

conclusion may also be supported by substantial

evidence, that conclusion is not under review here. See

Strickland, 423 F.3d at 1339 (“If . . . the Secretary

disagrees with the Board and rejects its

recommendation, . . . . the court reviews the decision

on the basis of the Secretary’s written statement.”).

“[W]hereas the Secretary in correcting a military

record is to act through a board of civilians, as

required by [§ 1552], he has . . . retained the authority

to take such final action on board recommendations as

We note that the 2018 decision did acknowledge several

positive aspects of Mr. Strand’s record. The Secretary (1) noted

Mr. Strand’s “satisfactory service, including various medals and

personal awards” and his “‘good post service conduct and his early

release from civil confinement due to good behavior,’” J.A. 281

(emphases in original) (quoting J.A. 32); (2) acknowledged the

personal character references and personal statements showing

Mr. Strand’s commitment to supporting his children and

reconciliation with his ex-wife (while noting that no statement

from Mr. Strand’s ex-wife appears among the many statements

of support), J.A. 282; (3) “commend[ed]” Mr. Strand’s efforts

toward post-conviction rehabilitation, J.A. 285; and (4)

recognized that Mr. Strand had obtained an equitable upgrade of

his service characterization, recognizing his “19.5 years of

satisfactory service and post-incarceration efforts to rebuild his

life”, J.A. 286.

20a

he determines to be appropriate.” Boyd, 207 Ct. Cl. at

8 (discussing an Air Force regulation containing the

same operative language as Navy regulation 32 C.F.R.

§ 723.7(a)). As we noted in Strickland, “‘[i]t is clear

from the statute that the Secretary’s decision is a

discretionary one.’” 423 F.3d at 1338 (alteration and

emphasis in original) (quoting Boyd, 207 Ct. Cl. at 7).

The Secretary properly exercised the discretion given

to him by § 1552(a) in considering the Board’s

reasoning and disagreeing with its recommendation

to grant additional relief to Mr. Strand.

III

We have considered the parties’ remaining

arguments and find them unpersuasive. The

Secretary acted within his discretion in rejecting the

recommendation of the Board. His 2018 rejection

decision was supported by substantial evidence and

was not arbitrary, capricious, or contrary to the law.

We therefore reverse the judgment of the Court of

Federal Claims.

REVERSED

No costs.

21a

United States Court of Appeals for the Federal

Circuit

______________________

WALTER N. STRAND, III,

Plaintiff-Appellee

UNITED STATES,

Defendant-Appellant

______________________

2019-1016

______________________

Appeal from the United States Court of Federal

Claims in No. 1:15-cv-00601-TCW, Judge Thomas C.

Wheeler.

______________________

REYNA, Circuit Judge, dissenting.

The majority upholds an agency decision that

relies on an unsupported factual finding: that Mr.

Strand “engaged in misconduct in 1993.” J.A. 283.

Because that finding was an integral part of the

Secretary’s decision, our law requires that we remand

to the Secretary for further review. I respectfully

dissent.

The Secretary’s decision is based, at least in

part, on two distinct events of misconduct: one in

1992, one in 1993. The Secretary found that “in 1992,

[Mr. Strand] was counseled for abuse of alcohol, which

resulted in disorderly conduct, and he was issued

22a

nonjudicial punishment for assault and disorderly

conduct.” J.A. 283. The Secretary also found that Mr.

Strand “again engaged in misconduct in 1993.” Id.

The record supports the Secretary’s finding of

misconduct in 1992. Two documents—a two-page

“Court

Memorandum”

and

one-page

“Administrative Remarks”—show that Strand was

involved in an alcohol-related incident on February

27, 1992, and that Strand received non-judicial

punishment for violating UCMJ Article 128 (as-sault)

and Article 134 (disorderly conduct). J.A. 119–121.

The administrative remarks identify the “deficiencies

in [Strand’s] performance and/or conduct” as “abuse of

alcohol which results [sic] in disorderly conduct.” J.A.

121.

There is no similar evidence that would support

the Secretary’s finding that Strand “again engaged in

misconduct in 1993.” The Secretary cites one

document in sup-port: a single page of

“Administrative Remarks,” dated September 29,

1993. But the 1993 administrative remarks do not

identify an act of misconduct that occurred in 1993.

J.A. 118. Instead, the document identifies the

“deficiencies in [Strand’s] performance and/or

conduct” as:

Violation of UCMJ Articles 128

(Assault) and 134 (Disorderly conduct)

as evidenced by CO’s NJP of 27

February 1992 and documented in

your service record on NAVPERS

1070/607 and NAVPERS 1070/609.

23a

J.A. 118 (emphasis added). The 1993 administrative

remarks do not reference any other dates, incidents,

or misconduct. Nor does the record contain any other

evidence showing a 1993 act of misconduct or related

punishment.

The government admits that the record lacks

support for the Secretary’s finding that Strand “again

engaged in misconduct in 1993.” At oral argument,

counsel for the government agreed that the Secretary

had found two separate acts of misconduct stemming

from two separate events: “[t]he Secretary’s decision

makes clear that the 1992 nonjudicial punishment

was one event and . . . what-ever the event was that

resulted in the counseling entry in 1993 was a

separate event.” Oral Arg. at 1:45–2:13. Counsel for

the government also recognized that the record

contained no support for that finding.

Q: The 1993 counseling is not the

result of the 1992 event?

A: Correct.

...

Q: What was the 1993 event?

A: It’s unclear your Honor . . . the

record does not describe the event.

Id. at 2:55–3:05; 3:39–3:46. When pressed, counsel for

the government simply said, “I would defer to the

Secretary . . . I don’t have any reason to doubt the

Secretary’s characterization of these being two

separate incidents.” Id. at 7:34–8:05.

24a

The Secretary expressly relied on the illusory

“misconduct in 1993” when it ruled against Mr.

Strand. J.A. 283–285. For example, the Secretary

concluded that Mr. Strand failed to “rehabilitate

himself while in the Naval service” because “Strand

again engaged in misconduct in 1993.” J.A. 283. The

Secretary also found that Mr. Strand’s “conviction for

felony offenses, as well as his history of performance

and conduct, does not align with the Navy [C]ore

[V]alues.” Id. (emphasis added). Because the

Secretary refers generally to Mr. Strand’s

“misconduct” throughout its decision, it is impossible

for this court to determine the extent to which the

Secretary’s error compromised the Secretary’s

decision. See J.A. 284 (“This was not [Mr. Strand’s]

first instance of misconduct leading to harm of

others.”); J.A. 286 (“Petitioner’s misconduct is

inconsistent with the Navy’s [C]ore [V]alues of honor,

courage, and commitment and runs counter to

granting relief.”).

In a footnote, the majority sidesteps the

Secretary’s unsupported finding of 1993 misconduct

by characterizing the error as “harmless.” Slip op. at

5 n.3. The majority opines that “[n]o matter the

number of early instances of misconduct, the

Secretary’s rejection decision is supported by

substantial evidence.” Id. I disagree. We soundly

rejected this reasoning in Strand II.

In Strand II, we explained that the Secretary’s

decision was based on “the sum of two facts in the

record and two policy reasons”: (1) Mr. Strand’s

history of domestic violence issues; (2) the seriousness

25a

of Mr. Strand’s 2008 actions; (3) the Navy’s Core

Values; and (4) the Navy’s practice in similar cases.

Strand v. United States, 706 F. App’x 996, 1000 (Fed.

Cir. 2017) (“Strand II”). We concluded, however, that

the Secretary’s finding that Mr. Strand had a history

of domestic violence issues was not supported by

substantial evidence. Id. In response, the government

encouraged us to “uphold the Secretary’s decision

because it sets forth other policy rationales and

evidence.” Id. But we rejected that argument,

explaining:

[B]ecause the Secretary relied on a

combination of intertwined reasons,

and Mr. Strand has shown that at least

one of those reasons is not supported by

substantial evidence, the record is not

clear as to whether the Secretary would

still reach the same conclusion.

...

It is an established principle of

administrative law that courts should

not intrude upon the domain which

Congress has exclusively entrusted to

an administrative agency, and that a

judicial judgment cannot be made to do

service

for

administrative

judgment. Thus, the proper course,

except in rare circumstances, is to

remand to the agency for additional

investigation or explanation. Here, the

Secretary has not yet considered

whether the [Board’s] decision to grant

26a

Mr. Strand partial relief should be

upheld in the absence of any evidence

of a long-standing history of FAP

involvement and domestic violence

issues.

find

special

circumstances that would support

determining this question in the first

instance. Therefore, this case must be

re-manded back to the Secretary for

further review of the [Board’s] decision.

Id. (internal quotations omitted) (citing Gonzales v.

Thomas, 547 U.S. 183, 186 (2006); INS v. Ventura, 537

U.S. 12, 16 (2002); SEC v. Chenery Corp., 318 U.S. 80,

88 (1943)).

The majority theorizes that “the Secretary’s

thorough consideration of the seriousness of Mr.

Strand’s criminal misconduct, alone, justifies his

decision to deny the requested relief.” Slip op. at 12–

13 (explaining that the “heavy weight” the Secretary

ascribed to Mr. Strand’s actions in 2008 “fully

supports denying him credit for six months of service

he did not perform”). But the Secretary did not

determine that Mr. Strand’s 2008 actions were alone

sufficient to warrant rejecting the Board’s decision. To

the contrary, the Secretary expressly stated that Mr.

Strand’s “conviction for felony offenses, as well as his

history of performance and conduct,” does not align

with the Navy Core Values. J.A. 283 (emphasis

added).

As in Strand II, the Secretary’s decision is

based on an unsupported fact finding. The Secretary

has not yet considered whether it would uphold the

27a

Board’s decision in the absence of that finding. Nor

has the majority identified any special circumstances

that would permit this court to determine this

question in the first instance. This case, therefore,

must be returned to the Secretary for further review.

Because the majority upholds the Secretary’s flawed

decision, I dissent.

28a

United States Court of Appeals for the Federal

Circuit

__________________________

WALTER N. STRAND, III,

Plaintiff-Appellee

UNITED STATES,

Defendant-Appellant

__________________________

2019-1016

__________________________

Appeal from the United States Court of Federal

Claims in No. 1:15-cv-00601-TCW, Judge Thomas C.

Wheeler.

__________________________

JUDGMENT

__________________________

THIS CAUSE having been considered, it is

ORDERED AND ADJUDGED:

REVERSED

ENTERED BY ORDER OF THE COURT

March 3, 2020

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

29a

In the United States Court of Federal Claims

No. 15-601C

(Filed: July 31, 2018)

*******************************

WALTER N. STRAND, III,

Plaintiff,

THE UNITED STATES,

Defendant.

*******************************

Action for Review of Military Records; Assistant

General Counsel’s Reversal of Decision by Board for

Correction of Naval Records; Decision on Remand

from Federal Circuit; Standard of Review; Substantial

Evidence

Jeffery M. Chiow, with whom was Lucas T. Hanback,

Rogers Joseph O’Donnell, P.C., Washington, D.C., for

Plaintiff.

Daniel K. Greene, with whom were Chad A. Readler,

Acting Assistant Attorney General, Robert E.

Kirschman, Jr., Director, and Douglas K. Mickle,

Assistant Director, Commercial Litigation Branch,

30a

Civil Division, U.S. Department of Justice,

Washington, D.C., as well as Lieutenant Maryam

Austin, Office of the Judge Advocate General, U.S.

Navy, for Defendant.

OPINION AND ORDER

WHEELER, Judge.

Plaintiff, an enlisted serviceman in the United

States Navy, brings this action to correct the manner

by which he was separated from the military after

more than nineteen years of largely exemplary

service. In a proceeding before the Board for

Correction of Naval Records, the Board primarily

agreed with Plaintiff’s position, but the favorable

ruling was promptly reversed by the Assistant

General Counsel for Navy Manpower and Reserve

Affairs. The Court held that the Assistant General

Counsel’s reversal of the Board’s decision was

arbitrary, capricious, an abuse of discretion, and not

supported by substantial evidence. The U.S. Court of

Appeals for the Federal Circuit upheld this Court’s

ruling and ordered the Court to remand the case to the

Navy. The new Assistant General Counsel again

reversed the Board’s favorable ruling. The Court must

now review whether the new Assistant General

Counsel’s reversal was arbitrary, capricious, an abuse

of discretion, or not supported by substantial

evidence.

Factual and Procedural Background1

1 The facts in this decision are taken from the administrative

record (“AR”) and the administrative record volume II (“AR II”).

The pages in both volumes of the administrative record are

31a

Plaintiff, Walter N. Strand, III, brings claims

before this Court which involve the manner in which

he was separated from the Navy. Mr. Strand enlisted

in the Navy in 1988 and served for more than nineteen

years, rising to the rank of Chief Petty Officer. He

spent more than eleven of those years deployed

abroad, including deployments in support of

Operations Iraqi Freedom and Enduring Freedom.

Pl.’s Mot. for J. on the Admin. R. (“MJAR”) at 4, Dkt.

No. 23. Mr. Strand earned several commendations

and personal awards during his service, including four

Navy and Marine Corps Achievement Medals and four

Good Conduct Medals. Id. Mr. Strand’s service record

reflects high marks for military performance and

confirms his qualification as an “information

assurance professional” whom the military trusted

with classified information. Id. at 4–5.

Prior to the incident that led to his separation

from the Navy, Mr. Strand’s evaluations portray an

exemplary officer ripe for further promotion.2 See AR

105 (“His contributions to ENTERPRISE and the

numbered in sequence. The Court’s citations to both volumes of

the administrative record are to the AR page numbers.

2 There is one much older negative conduct offense reflected in

Mr. Strand’s record. While serving on the USS Thomas C. Hart

as a new Radioman Petty Officer, Third Class, in 1992, at the

age of twenty-two, Mr. Strand was counseled for “ABUSE OF

ALCOHOL WHICH RESULTS IN DISORDERLY CONDUCT”

and instructed to “REFRAIN FROM OVERINDULGENCE IN

ALCOHOLIC BEVERAGES.” Am. Compl. at 3–4, Dkt. No. 16

(citing NAVSPERS 1070-613, February 26, 1992). The same

incident was addressed in a counseling form dated September

29, 1993. Id. Mr. Strand served without incident from 1993 to

2007.

32a

Navy have been exemplary. He is ready for greater

responsibility. Promote to Senior Chief Petty

Officer.”); AR 107 (“Petty Officer Strand is a dynamic

leader. . . . Continue to select for the most challenging

assignments and promote ahead of his peers.”); AR

109 (“Superb Manager. . . . An extraordinary coach

and mentor. He is a pillar for subordinates and juniors

alike to emulate. . . . Ready for Chief NOW! Petty

Officer

Strand

has

highest

personal

recommendation for advancement to Chief Petty

Officer.”).

After returning from his final combat

deployment in the spring of 2007, Mr. Strand

discovered that his wife had emptied his bank account

and left home without explanation, taking his

children and belongings with her. AR 059. A heated

confrontation at his wife’s new apartment building in

June 2007 led to Mr. Strand’s first negative fitness

report. Pl.’s MJAR at 5, Dkt. No. 23; AR 103 (“Chief

Strand displayed unsatisfactory conduct and decision

making for a Chief Petty Officer.”). In February 2008,

Mr. Strand was arrested after shooting at the car his

wife and her boyfriend were driving. As a result of that

incident, Mr. Strand was convicted of attempted

malicious wounding, attempted unlawful wounding,

and use of a firearm in the commission of a felony. AR

009. Following his conviction, Mr. Strand was

administratively separated from the Navy. His

discharge was characterized as “under other than

honorable circumstances” with less than twenty years

of service. Id. Mr. Strand was released from prison for

good behavior after serving three years of his six-year

sentence. Id.

33a

Upon his release, Mr. Strand asked the Navy

Discharge Review Board (“NDRB”) to upgrade his

service characterization and change his reentry code.

AR 078. Although it initially denied Mr. Strand’s

requests, the NDRB eventually granted Mr. Strand

partial relief when he appeared before them on

December 12, 2013. The NDRB agreed to change the

characterization of Mr. Strand’s service from “under

other than honorable conditions” to “general under

honorable conditions,” but declined to revise the

narrative reason for discharge in his record. AR 032.

After his success before the NDRB, Mr. Strand

petitioned the Board for Correction of Naval Records

(“BCNR”), “requesting six months retirement credit

with an honorable characterization of service, or an

upgrade of his general discharge to honorable, a

change of his narrative reason for separation, and a

favorable reenlistment code.” AR 008. On December

15, 2014, after a full review of Mr. Strand’s

application, naval record, record evidence, and

deliberations by a quorum, the BCNR came to the

following conclusion:

Upon review and consideration of all

the evidence of record, the Board

concludes that Petitioner’s request

warrants partial favorable action.

Nonetheless, the Board initially notes

the

seriousness

Petitioner’s

disciplinary infractions and does not

condone his misconduct. However, the

Board also notes Petitioner’s overall

record of more than 19 years and six

months of satisfactory service, which

34a

included being awarded four Navy and

Marine Corps Achievement Medals,

four Good Conduct Medals, and

personal awards. The Board further

notes his good post service conduct and

early release from civil confinement

due to his good behavior.

The Board considered the fact that

NDRB upgraded the characterization

of service to general under honorable

conditions

based,

part,

Petitioner’s overall record of service

and good post service conduct. With

that in mind, the Board concluded that

Petitioner has suffered long enough for

his indiscretion and should be granted

relief in the form of credited time

served

for

retirement,

i.e.,

approximately six months . . . .

AR 010–11, BCNR Decision dated December 15, 2014.

Based on its consideration of all of the evidence of

record, the BCNR recommended “[t]hat Petitioner’s

naval record be corrected to show he was honorably

retired with 20 years of service vice issued a general

discharge under honorable conditions by reason of

misconduct (civil conviction) on 26 June 2009.” AR

011.

The Secretary of the Navy is authorized under

10 U.S.C. § 1552, as implemented by SECNAVINST

5420.193, to correct a Navy member’s service record

when “necessary to correct an error or remove an

injustice.” In exercising this authority, the Secretary

35a

must act through a board of civilians, in this case the

BCNR, who shall review and evaluate an applicant’s

claim. SECNAVINST 5420.193 at 3. Although not

required, the Executive Director of the BCNR chose to

seek

secretarial

approval

the

BCNR’s

recommendation to correct Mr. Strand’s record.3 On

December 15, 2014, the same day that a quorum of the

BCNR unanimously recommended correcting Mr.

Strand’s naval record, Executive Director Robert J.

O’Neill unilaterally opted to seek review of the

BCNR’s recommendation, writing “[i]t is my opinion,

based on the seriousness of the offense and the

significant grant of relief, that SECNAV should

review this case for decision.” AR 013.

On February 3, 2015, Robert L. Woods,

Assistant General Counsel, Navy Manpower and

Reserve Affairs, rejected the BCNR’s decision in a

two-paragraph memorandum.4 AR 003. Mr. Woods

gave two rationales for overturning the BCNR’s

3 Section 6(e)(1) allows that “[w]ith respect to all petitions for

relief properly before it, the Board is authorized to take final

corrective action on behalf of the Secretary…” except under

three circumstances, the last of which being that “[i]t is in the

category of petitions reserved for decision by the Secretary of

the Navy.” SECNAVINST 5420.193, Section 6(e)(1)(c). Section

6(e)(2)(c), cited in the secretarial review memorandum, is a

discretionary catchall category that references “[s]uch other

petitions as, in the determination of the Office of the Secretary

or the Executive Director, warrant Secretarial review.”

4 The Secretary of the Navy delegated to the Assistant

Secretary, Manpower and Reserve Affairs the authority to

review BCNR petitions if required. SECNAVINST 5420.193 at

1–2 (¶b) (Nov. 1997). The Assistant Secretary in turn delegated

that authority to the assistant general counsel of Manpower

and Reserve Affairs. Def.’s Cross-MJAR at 11 n.6, Dkt. No. 35.

36a

decision. First, he stated that granting the

recommended relief would contravene “Navy core

values and practice in similar cases.” Id. Second,

quoting an April 3, 2009 Administrative Separation

Memorandum prepared by Mr. Strand’s commanding

officer, Mr. Woods stated that Mr. Strand “had a ‘longstanding history of FAP [Family Advocacy Program]

involvement and domestic violence issues.’” Id.

On June 15, 2015, Mr. Strand challenged Mr.

Wood’s decision before this Court. Strand v. United

States, 127 Fed. Cl. 44, 46 (2016). Mr. Strand initially

brought this action by filing a complaint as a pro se

plaintiff. Id. Shortly thereafter, Mr. Strand was able

to secure representation through this Court’s pro bono

referral program and subsequently filed an amended

complaint on October 8, 2015. Id. Mr. Strand

prevailed, showing that Mr. Woods’ disapproval of the

BCNR’s recommendation was arbitrary, capricious,

an abuse of discretion, and not supported by

substantial evidence. Id. at 51. On appeal, the U.S.

Court of Appeals for the Federal Circuit found that

“the Secretary’s finding that Mr. Strand had a longstanding history of domestic violence issues and FAP

involvement is not supported by substantial

evidence.” Strand v. United States, 706 Fed. Appx.

996, 1000 (Fed. Cir. 2017) (“Strand II”). The court then

directed this Court to remand the case to the Navy,

requiring that the Secretary consider whether he or

she would reach the same conclusion to deny Mr.

Strand relief in the absence of such substantial

evidence. Id. at 1001–02. This Court issued an Order

on November 21, 2017, remanding the case to the

Secretary of the Navy in accordance with the Federal

Circuit’s Mandate. See Dkt. No. 67.

37a

The new Assistant General Counsel for

Manpower and Reserve Affairs, Catherine L.

Kessmeier (“Ms. Kessmeier” or “the Secretary”), sent

a letter to counsel for Plaintiff identifying the

references she would be using to review Mr. Strand’s

case and inviting him to submit any additional

information for review. AR II 001. Counsel responded

by confirming that the documents Ms. Kessmeier

planned to review were appropriate, and explained

the background of the case. AR II 002–03. Counsel for

Plaintiff also mentioned that the BCNR granted Mr.

Strand relief based on more than just his prior service

alone. AR II 003. Plaintiff’s counsel then continued to

state that both this Court and the Federal Circuit

declined to adopt the rationale that denying Mr.

Strand relief on the Navy core values alone was

sufficient. AR II 004. Additionally, Plaintiff’s counsel

contended that each case should be judged on its own

merits as to whether or not it conforms to the Navy’s

core values—not on the Navy’s practice in similar

cases. AR II 004 n.2.

On January 5, 2018, Ms. Kessmeier again

denied Mr. Strand relief. AR II 013. In her

memorandum, Ms. Kessmeier expanded on the core

values in relation to both the incident for which Mr.

Strand was convicted, as well as a counseling and nonjudicial punishment for an alcohol-related incident

from 25 years ago. AR II 009–12. Ms. Kessmeier

explained that the counseling and non-judicial

punishment Mr. Strand received for this alcoholrelated incident should have been “clear and repeated

notice” that his conduct did not comport with the

Navy’s core values. AR II 010. Ms. Kessmeier also

38a

compared Mr. Strand’s case to other cases before the

military justice system—forums in which Mr. Strand

has never appeared. See AR II 012; see also

Supplemental Compl. ¶ 49, Dkt. No. 80 (“Suppl.

Compl.”). Ultimately, Ms. Kessmeier concluded that

Mr. Strand’s application did not warrant relief and

that his discharge to “general under honorable

conditions” sufficed to “reflect[] his 19.5 years of

satisfactory service and post-incarceration efforts to

rebuild his life.” AR II 013.

In response to Ms. Kessmeier’s decision, Mr.

Strand filed a supplemental complaint before this

Court. In his supplemental complaint, Mr. Strand

argues that Ms. Kessmeier’s decision was arbitrary,

capricious, an abuse of discretion, and not supported

by substantial evidence, and urges this Court to give

effect to the BCNR’s initial recommendation. Suppl.

Compl. at 18. Mr. Strand asks that the Court direct

the Navy to correct Mr. Strand’s record consistent

with the BCNR’s decision granting him retirement

with twenty years of service and seeks monetary relief

in the form of back pay calculated from his date of

separation on June 26, 2009, up to the present based

on his retirement credit, with interest, and applicable

pay and benefits moving forward. Id. The Government

maintains that Ms. Kessmeier properly rejected the

BCNR’s recommendation and that Mr. Strand waived

his right to judicial review of certain issues by failing

to raise them to the Navy on remand.

Discussion

A. Subject Matter Jurisdiction

39a

In the Court of Federal Claims, “[b]ecause

subject matter jurisdiction is a threshold matter, it

must be established before the case can proceed on the

merits.” Sellers v. United States, 110 Fed. Cl. 62, 66

(2013) (citing Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 94–95 (1998)). In this case, the Court’s

subject matter jurisdiction is derived from both the

Tucker Act, 28 U.S.C. § 1491, and the Administrative

Procedure Act (“APA”), 5 U.S.C. § 703. The Tucker Act

grants jurisdiction over claims “against the United

States founded either upon the Constitution, or any

Act of Congress or any regulation of an executive

department, or upon any express or implied contract

with the United States, or for liquidated or

unliquidated damages in cases not sounding in tort.”

28 U.S.C. § 1491(a)(1). The APA in turn entitles a

person legally wronged by agency action to seek

judicial review, thus waiving sovereign immunity of

the United States. 5 U.S.C. § 703; Weaver v. United

States, 46 Fed. Cl. 69, 76 (2000). Thus, in conjunction

with the APA, this Court has jurisdiction pursuant to

the Tucker Act to review a decision by a corrections

board, or a decision to override a corrections board

recommendation, “[t]o provide an entire remedy and

to complete the relief afforded by the judgment” by

issuing an “order directing restoration to office or

position, placement in appropriate duty or retirement

status, and correction of applicable records.” 28 U.S.C.

§ 1491(a)(2); see also Weaver, 46 Fed. Cl. at 76–77.

The Tucker Act, however, does not confer any

substantive rights upon a plaintiff, and a plaintiff may

not rely on the APA as an independent source of

jurisdiction, as it does not mandate payment of money

damages. Thus, a plaintiff must establish an

40a

independent right to money damages from a moneymandating source within a contract, regulation,

statute, or constitutional provision in order for the

case to proceed. Jan’s Helicopter Serv. Inc. v. FAA, 525

F.3d 1299, 1306 (Fed. Cir. 2008); Volk v. United

States, 111 Fed. Cl. 313, 323 (2013). Here, the

separate money-mandating source is 10 U.S.C. § 6333,

which provides the schedule according to which

military retired and retainer pay are computed.

B. Standard of Review

1. Rule 12(b)(6) Motion to Dismiss

When considering a motion to dismiss a

complaint for failure to state a claim upon which relief

may be granted under Rule 12(b)(6), the Court must

accept as true all factual allegations submitted by the

plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). Accepting those allegations as true, for the

plaintiff to survive dismissal, the Court must conclude

that “the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 556). The plaintiff’s factual

allegations must be substantial enough to raise the

right to relief above the speculative level, accepting all

factual allegations in the complaint as true and

indulging all reasonable inferences in favor of the nonmovant. Twombly, 550 U.S. at 545; Chapman Law

Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934, 938

(Fed. Cir. 2008).

41a

In this case, the Government first argues that

Mr. Strand’s supplemental complaint must be

dismissed pursuant Rule 12(b)(6) because it presents

a nonjusticiable controversy in which the Court is

unable to grant relief. See Def.’s Mot. to Dismiss &

MJAR at 17–18, Dkt. No. 84. In so arguing, the

Government opines that a plaintiff can only challenge

a Secretary’s procedural errors and may not challenge

the merits of that Secretary’s decision, further

arguing that Mr. Strand has improperly challenged

the latter. Id. at 17. The Court finds the Government’s

argument unavailing. To start, this Court and the

Federal Circuit have already issued decisions on the

merits in earlier iterations of this case where Mr.

Strand has challenged the merits of the Secretary’s

decision to deny him relief. See Strand, 127 Fed. Cl.

44; Strand II, 706 Fed. Appx. 996. Moreover, even if a

plaintiff may only challenge a Secretary’s procedural

errors, the Court agrees that Mr. Strand’s allegations

against the Secretary’s decision can be viewed as

procedural in nature and present a justiciable

controversy in which this Court has the ability to

grant relief. See Pl.’s Cross-MJAR at 7–8, Dkt. No. 85.

As such, the Court DENIES the Government’s motion

to dismiss pursuant to Rule 12(b)(6) and turns next to

the parties’ cross-motions for judgment on the

administrative record.

2. Motion for Judgment on the

Administrative Record

Rule 52.1 of this Court governs motions for

judgment on the administrative record. A review of

this kind is like a paper trial based upon the

documents assembled by the agency. The Court

42a

makes factual findings based upon the evidence

presented in this record. See, e.g., Bannum, Inc. v.

United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005);

Coastal Envtl. Grp., Inc. v. United States, 118 Fed. Cl.

1, 10 (2014). To review a motion under Rule 52.1, this

Court must decide whether a party has met its burden

of proof based on the evidence in the record given all

disputed and undisputed facts. Anderson v. United

States, 111 Fed. Cl. 572, 578 (2013), aff’d (Fed. Cir. 135117, July 11, 2014); Bannum, Inc., 404 F.3d at 1356.

In reviewing the actions of a military correction

board, this Court must apply the standard of review

set forth in the APA, 5 U.S.C. § 706. Under section

706(2)(A), the Court must “hold unlawful and set

aside agency action, findings, and conclusions found

to be arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law . . . .” 5 U.S.C. §

706(2)(A). The Court shall overturn a correction

board’s decision only if it determines that the decision

was “arbitrary and capricious, unsupported by

substantial evidence, or not in accordance with the

applicable laws or regulations.” Laningham v. United

States, 30 Fed. Cl. 296, 310 (1994). Substantial

evidence includes “such relevant evidence as a

reasonable mind might accept as adequate to support

a conclusion.” Consolidated Edison Co. v. NLRB, 305

U.S. 197, 217 (1935).

Although the Court reviews a service

Secretary’s decision to overrule a corrections board

recommendation pursuant to the same standard, its

review nevertheless “is limited in nature.” Moehl v.

United States, 34 Fed. Cl. 682, 690 (1996). Thus, a

Secretary’s decision may “differ with a board’s

43a

recommendations where the evidence is susceptible of

varying interpretations.” Id. at 690 (citing Sanders v.

United States, 219 Ct. Cl. 285, 299 (1979)). However,

a Secretary may not “arbitrarily refuse to follow the

fact findings of the correction board where all the

evidence supports the board’s findings.” Moehl, 34

Fed. Cl. at 690 (citing Hertzog v. United States, 167

Ct. Cl. 377 (1964)); see also Boyd v. United States, 207

Ct. Cl. 1, 8 (1975) (“The court, in turn, may reject the

decision of a Secretary only if he has exercised his

discretion arbitrarily, capriciously, in bad faith,

contrary to substantial evidence, or where he has gone

outside the board record, or fails to explain his actions,

or violates applicable law or regulations. Then we will

not hesitate to set him right.”).

C. Waiver of Mr. Strand’s Arguments

The Government first contends that Mr. Strand

waived his right to judicial review by failing to raise

all but one of his arguments before the Navy on

remand. Def.’s Mot. To Dismiss & MJAR at 14, Dkt.

No. 84. It has long been held that once a party has

availed him or herself to the administrative process of

an agency, “he [or she] is bound by it unless the

decision is unsupported by substantial evidence,

arbitrary, capricious, or contrary to law.” Doyle v.

United States, 220 Ct. Cl. 285, 311 (1998) (citing

Sanders v. United States, 219 Ct. Cl. 285, 298 (1979)).

The reason for this rule is so that plaintiffs cannot

“stand on their objections waiting to see if they [are]

retroactively promoted by the [BCNR] and only upon

the [BCNR’s] adverse recommendations, contend that

the remedy did not achieve its intended result.” Id. at

312. “Absent a showing of good cause and prejudice,

44a

an appellant’s failure to raise his constitutional claims

in the military court system bars him from raising

them in federal court.” Martinez v. United States, 914

F.2d 1486, 1488 (Fed. Cir. 1990).

Contrary to the Government’s assertions, Mr.

Strand raised his arguments prior to remand during

the first time this case was litigated before this Court.

Both parties agreed that the Navy would reference

four documents in its review: (1) the Remand Order of

this Court, (2) the judgment of the Federal Circuit, (3)

the judgment of this Court, and (4) the Administrative

Record Volume I. AR II 001–02. Therefore, by

incorporating the decisions of the courts in the

Secretary’s review on remand, Mr. Strand sufficiently

raised the following three arguments that the

Government alleges he waived in the Amended

Complaint: (1) that the Assistant General Counsel

lacked the discretion to reject the BCNR’s

recommendation without justification, see Am.

Compl. at 8, Count I, Dkt. No. 16; (2) that it was

improper to compare Mr. Strand’s case to cases tried

in the military justice system, see id.; and (3) that Mr.

Strand was entitled to the protection of 10 U.S.C. §

1176, see id. at Count III.

The one argument that Mr. Strand concedes he

did not raise prior to remand was that “reliance on the

core values alone as a basis to deny relief is specious

when those values are untethered to any statute or

regulation, and are not themselves determinant of

punishment.” Pl.’s Cross-MJAR at 12, Dkt. No. 85.

This argument, however, is attached to the argument

that the Secretary acted arbitrarily and without

substantial evidence, since Mr. Strand alleges that

45a

the core values standing alone are arbitrary. Thus,

having found that Mr. Strand did not waive any of the

above arguments, the Court must now look to whether

Ms. Kessmeier’s decision was arbitrary and

capricious, an abuse of discretion, or not supported by

substantial evidence.

D. Ms. Kessmeier’s Decision to Overrule the

BCNR’s Recommendation

1. Application of the Navy’s Core Values

The Secretary of a military department is

required to act through boards of civilian officers or

employees in reviewing and correcting military

records. 10 U.S.C. § 1552. Generally, after reviewing

a service member’s record, the BCNR is authorized to

take final corrective action based on its findings.

SECNAVINST 5420.193, Section 6(e)(1). Even in

those instances where secretarial review or approval

is sought or required, the Secretary must nevertheless

justify a decision to overturn a recommendation that

is supported by the record. Thus, when a Secretary

goes outside of the record before the board, the

Secretary “must justify such a departure by explicitly

stating the ‘policy reasons’ behind such action.”

Hertzog, 167 Ct. Cl. at 387. In Hertzog, the Court held

that in the absence of such an explanation, the

Secretary’s discretionary action was arbitrary and

capricious. Id. at 388. Although “the final authority

regarding requested corrections is vested in the

Secretary,” such authority must be exercised in

accordance with the law. Strickland v. United States,

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

46a

Mr. Strand alleges that the Secretary’s reliance

on the core values alone is arbitrary, capricious, an

abuse of discretion, and not supported by substantial

evidence. In her decision, Ms. Kessmeier relied upon

the following facts to deny Mr. Strand relief: (1) two

counselings and a non-judicial punishment stemming

from an alcohol-related incident 25 years ago; (2)

other cases from the military justice system; and (3)

the conduct that led to Mr. Stand’s conviction. Pl.’s

Cross-MJAR at 13, Dkt. No. 85. Mr. Strand argues

that these facts provide no basis to deny him relief

because the facts are too “sparse” and the Secretary

relies too heavily on her own subjective understanding

and application of the Navy’s “core values” to Mr.

Strand’s conduct. Id. The Government counters that

Ms. Kessmeier’s decision is supported by substantial

evidence because of the two disciplinary entries Mr.

Strand received early in his enlistment from alcoholrelated incident in the early 1990s, as well as the

BCNR’s statement of recommendation for review by

the Secretary and the characterization of his service.

Def.’s Resp. at 11, Dkt. No. 86.

Ms. Kessmeier contends that Mr. Strand’s

counselings and non-judicial punishment from 25

years ago gave him “notice” of his obligation to comply

with the Navy’s standards and relies on this argument

to show Mr. Strand’s alleged lack of courage and

commitment. AR II 010–12. The Navy’s present core

values, however, including courage and commitment,

did not exist at the time of Mr. Strand’s alcoholrelated incident. See Pl.’s Cross-MJAR at 13, Dkt. No.

85. Thus, to give Mr. Strand retroactive “notice” of his

obligation to comply with not-yet existing core values

or standards is irrational, irrelevant, and certainly

47a

arbitrary and capricious. Betts v. United States, 145

Ct. Cl. 530, 535 (1959) (“A decision . . . for which, even

on post audit, no reason can be given except an

irrelevant reason, cannot be characterized as other

than capricious.”). The Court also notes that Mr.

Strand was awarded a Good Conduct medal for the

period covering the second counseling related to this

incident. Pl.’s Cross-MJAR at 15, Dkt. No. 85 (citing

Suppl. Compl. ¶ 63; AR 194 (first Good Conduct

Award on “96JAN01”)). Therefore, when assessing the

record as a whole, Ms. Kessmeier’s reliance on Mr.

Strand’s pre-2008 disciplinary entries and her

retroactive application of Mr. Strand’s earlier mishap

to the Navy’s not-yet existing core values render her

decision arbitrary, capricious, and not supported by

substantial evidence.

2. Reliance on Cases From Other

Military Tribunals

Ms. Kessmeier also cites to four military justice

cases as further evidence that Mr. Strand should be

denied the relief he requested. AR II 012 (citing

United States v. Sexton, 1 M.K. 679 (N.C.M.R. 1975);

United States v. Gutierrez, 11 M.K. 122 (C.M.A.

1981); United States v. Wall, 2013 CCA LEXIS 418

(A.F. Ct. Crim. App. 2013); United States v. Knowles,

2016 CCA LEXIS 236 (N-M Ct. Crim. App. 2016)). The

Secretary contends that the NRDB’s decision granting

Mr. Strand partial relief is inconsistent with the

Navy’s practice in similar cases. AR II 013. Mr. Strand

contends that comparing his case to these cases is

erroneous because the Navy could have, but did not,

prosecute Mr. Strand for his conduct in the military

courts. Pl.’s Cross-MJAR at 15, Dkt. No. 85. Therefore,

48a

any comparison to the military justice system is

speculation based on hypothetical facts. Id. at 16.

As Mr. Strand correctly points out, none of the

cases the Secretary relies upon “apply the core values

to the facts of the respective case, and none deal with

post-service efforts at rehabilitation.” Id. By

comparing Mr. Strand’s civil case to military cases

that do not apply the same analysis, and by claiming

Mr. Strand would have received a punishment (which

he did not), Ms. Kessmeier acted speculatively. Rather

than basing her decision on facts in the record, Ms.

Kessmeier based her decision on hypothetical

forecasting. Thus, in the absence of providing a

sufficient justification for her decision, the Court finds

that the Secretary acted arbitrarily and capriciously

in using these cases to justify her decision. Hertzog,

167 Ct. Cl. at 387–88 (holding that in the absence of a

justification for departing from the record before the

board, the Secretary’s discretionary action was

arbitrary and capricious).

The Government further contends that the

NDRB compared Mr. Strand’s conviction to analogous

convictions as well, and that this fact supports the

Secretary’s decision to deny Mr. Strand relief. Def.’s

Resp. at 11, Dkt. No 86. However, the NDRB merely

explained the usual procedure for someone convicted

of the same offenses as Mr. Strand in the military

courts, not in the civil courts. AR 063. Moreover, the

NDRB did not cite to any actual cases in its decision.

Id. What is more, the NDRB’s regulations state:

The primary function of the NDRB is to

exercise its discretion on issues of

49a

equity by reviewing the individual

merits of each application on a case-bycase basis. Prior decisions in which the

NDRB exercised its discretion to

change a discharge based on issues of

equity (including the factors cited in

such decisions or the weight given to

factors in such decisions) do not bind

the NDRB in its review of subsequent

cases because no two cases present the

same issues of equity.

32 C.F.R. § 724.902(c). Thus, the NDRB’s own

regulations state that it should not be relying on other

cases regardless, as it must view each case as a

separate issue of equity. As such, the NDRB’s decision

provides no support for Ms. Kessmeier’s reliance on

the military justice cases, but rather shows that she

acted arbitrarily and capriciously in reaching her

decision. See Dodson v. United States Gov’t, Dep’t of

the Army, 988 F.2d 1199, 1204–05 (Fed. Cir. 1993)

(“The boards for correction of military records may be

reviewed for failure to correct plain legal error

committed by the military . . . [including] the

military’s ‘violation of statute, or regulation.’”

(citations omitted)).

3. Mr. Strand’s Prior Conviction

Finally, as to Mr. Strand’s prior conviction, the

Government has already argued before this Court and

the Federal Circuit that Mr. Strand’s conduct in 2008

was inconsistent with the core values and showed a

longstanding history of domestic violence. See Strand,

127 Fed. Cl. 44; Strand II, 706 Fed. Appx. 996. Both

50a

courts have rejected these arguments, however, and

the Federal Circuit found that Mr. Strand’s conduct

did not constitute substantial evidence to support the

Secretary’s decision, ordering the Secretary’s decision

to be reversed and remanded. Strand II, 706 Fed.

Appx. at 1000 (“We conclude that the Secretary’s

decision is not supported by substantial evidence. The

Secretary relied on the sum of two facts in the record

and two policy reasons to reject the BCNR’s decision

[including the Navy’s core value]. . . . [B]ecause the

Secretary relied on a combination of intertwined

reasons, and Mr. Strand has shown that at least one

of those reasons is not supported by substantial

evidence, the record is not clear as to whether the

Secretary would still reach the same conclusion.”).

The Government also argues that BCNR

Executive Director Robert O’Neill’s recommendation

that the Secretary review the BCNR’s decision “based

on the seriousness of the offense and the significant

grant of relief” supports the Secretary’s contention

that Mr. Strand’s offense on its own and its

application to the core values is enough to deny him

relief. Def.’s Resp. at 11, 15, Dkt. No. 86. Mr. O’Neill,

however, did not sit on the Board when the Board

reviewed Mr. Strand’s case; rather, he was still an

officer of the Navy and is now retired. See AR 008; see

also Pl.’s Rep. at 11, Dkt. No. 87. The Government

argues that “by deciding to make a recommendation

instead of a final decision, the BCNR [specifically Mr.

O’Neill] invited the Secretary to second-guess its

recommendation.” Def.’s Mot. to Dismiss & MJAR at

16, Dkt. No. 84. However, this Court already held that

the Secretary may not rely on the advice or

recommendation of a military officer in reversing the

51a

recommendation of the BCNR. See Strand, 127 Fed.

Cl. at 51 (“[T]his Court cannot uphold [the Secretary’s]

decision to overrule [the BCNR’s] findings on the basis

of a military official’s statement.”); see also Strand II,

706 Fed. Appx. at 1000.

Further, Ms. Kessmeier failed to give any real

consideration to Mr. Strand’s post-service conduct.

Instead, the Secretary relies almost solely on Mr.

Strand’s conduct that occurred prior to the creation of

the Navy’s current core values as well as the conduct

for which Mr. Strand already served civil time,

whereas the BCNR recognized that Mr. Strand

satisfactorily served his country for nineteen years

and six months, was granted partial relief by the

NDRB “based, in part, on [his] overall record of service

and good post service conduct,” and paid his debt to

society, earning “early release from civil confinement

due to his good behavior.” See AR 010. Ms. Kessmeier

not only failed to give due consideration to the all the

evidence before the BCNR and in the administrative

record, but also failed to provide any substantial

evidence to support her decision to deny Mr. Strand

relief. Given that the BCNR’s findings are based on a

thorough consideration of the evidence of record, this

Court cannot uphold Ms. Kessmeier’s decision to

overrule the Board on the basis of (1) core values alone

and the retroactive application of Mr. Strand’s

singular alcohol-related incident from 1992 to those

core values, especially since those core values did not

yet exist at the time of this incident; (2) decisions of

other military tribunals; and (3) Mr. Strand’s prior

conviction—a justification that has been rejected

twice by this Court and the Federal Circuit.

Consequently, the Court must hold that the

52a

Secretary’s decision to overturn the BCNR’s

recommendation was arbitrary and capricious, and

not supported by substantial evidence. See Hertzog,

167 Ct. Cl. at 387.

Finally, both parties agree that 10 U.S.C. §

1552(f)(2) grants the BCNR clemency power to strike

evidence of Mr. Strand’s criminal conviction from his

records and upgrade his discharge conditions. Def.’s

Resp. at 18, Dkt. No. 86; Pl.’s Rep. at 15, Dkt. No. 87.

The Government argues only that 10 U.S.C. §

1552(f)(2) does not allow the BCNR to remove

evidence of a court martial from the record. Def.’s

Resp. at 18, Dkt. No. 86. However, Mr. Strand was not

court martialed. Therefore, 10 U.S.C. § 1552(f)(2)

provides no additional basis to deny Mr. Strand relief.

Conclusion

Ultimately, Ms. Kessmeier’s decision to

overrule the BCNR’s reasoned recommendation is

simply not justified in her memorandum that is before

this Court. Considering the entire administrative

record, the Court finds the Secretary’s disapproval of

the BCNR’s recommendation to be arbitrary,

capricious, an abuse of discretion, and not supported

by substantial evidence. The Court directs the Navy

to carry out the BCNR’s recommendation “[t]hat

Petitioner’s naval record be corrected to show he was

honorably retired with 20 years of service vice issued

a general discharge under honorable conditions by

reason of misconduct (civil conviction) on 26 June

2009.”

53a

Accordingly, the Court GRANTS Plaintiff’s

cross-motion for judgment on the administrative

record, and DENIES Defendant’s motion to dismiss

and motion for judgment on the administrative record.

The Court directs the Navy to correctly retire Mr.

Strand with all appropriate back pay, benefits, and

allowances. The Clerk shall enter judgment in

accordance with this opinion.

IT IS SO ORDERED

s/ Thomas C. Wheeler

THOMAS C. WHEELER

Judge

54a

DEPARTMENT OF THE NAVY

OFFICE OF THE ASSISTANT SECRETARY

(MANPOWER AND RESERVE AFFAIRS)

1000 NAVY PENTAGON

WASHINGTON, D.C. 20350-1000

MEMORANDUM FOR THE EXECUTIVE

DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj: BCNR PETITION OF FORMER MEMBER

WALTER N. STRAND, USN, ON REMAND FROM

THE U.S. COURT OF FEDERAL CLAIMS

Background

The Secretary of the Navy is authorized under

10 US.C. § 1552, as implemented by SECNAVINST

5420.193, to correct a Navy member's service record

when "necessary to correct an error or remove an

injustice." In exercising this authority, the Secretary

acts through the Board for Correction of Naval

Records (BCNR). Pursuant to authority granted by

the Secretary of the Navy, the Director of the BCNR

may in certain matters choose to seek Secretarial

approval of the BCNR's decisions. The Secretary of the

Navy delegated to the Assistant Secretary of the Navy

(Manpower & Reserve Affairs) (ASN (M&RA)) the

authority to review BCNR petitions if required and

the ASN (M&RA) in tum delegated this authority to

the Assistant General Counsel (M&RA).

55a

Walter N. Strand filed a petition with the

BCNR on February 14, 2014, requesting "six months

retirement credit and or a re-entry code upgrade from

RE-4 to a waiv[]able re-code for the purpose of retiring

due to [his] recent general discharge upgrade" and

"this incident being close to an[] otherwise stella[r] 20

year career." Administrative Record, Volume I (AR) at

016.

As set forth in the administrative record and

undisputed, the incident that led to Petitioner's

discharge involved him firing a firearm at his former

spouse and another individual. For this incident, the

Circuit Court of the City of Virginia Beach, Virginia,

convicted Petitioner of the following felonies:

attempted malicious wounding, attempted unlawful

wounding, and use of a firearm in the commission of a

felony. The court sentenced Petitioner to a total of six

years in prison. Ultimately, Petitioner served only

three years of a six-year sentence.

In March 2011 , Petitioner initially submitted

an application to BCNR requesting a change to his

reentry code; however, BCNR denied his request

determining that his reentry code was properly

assigned based on his other than honorable (0TH)

discharge. AR 077-078. Petitioner then sought an

upgrade of his discharge from the Naval Discharge

Review Board (NDRB), which ultimately (after a

second filing) granted him partial relief by changing

his characterization of service to general under

honorable conditions with a narrative reason

recognizing the commission of a serious offense (civil

conviction). AR 032-034. Petitioner subsequently

sought corrective action from the BCNR.

56a

Mr. Strand, a former enlisted member of the

Navy, requested that the BCNR grant him "six

months retirement credit and or a re-entry code

upgrade from RE-4 to a waiverable RE-code for the

purpose of retiring due to my recent general discharge

upgrade and this incident being close to and other

wise stella 20 year career." AR 016. In a statement

attached to the petition, Mr. Strand requested a

review of his discharge status and the opportunity to

upgrade his discharge and retire. AR 017. Mr. Strand

acknowledged that he "violently attacked [his] exwife." Id. Mr. Strand stated he "served honorably and

re-enlisted term after term with retirement being [his]

end goal." He concluded that he "believe[s] and

continue[s] to live by the Navy's core values of honor,

courage, and commitment" and that he is "very proud

of [his] otherwise pristine service record." AR 017-018

Upon review and consideration of the

administrative record, the hoard concluded that the

request warranted partial favorable action. AR 008011. Specifically, the board, while noting "the

seriousness of Petitioner's disciplinary infractions"

and "not condon[ing] his conduct" granted Petitioner

relief in the form of credited time served for

retirement, i.e., approximately six months. AR 010. In

reaching this conclusion, the board considered that

Petitioner's overall record of more than 19 years and

six months reflected satisfactory service, including

various medals and personal awards. See id.

(emphasis added). The board also noted Petitioner's

"good post service conduct and his early release from

civil confinement due to his good behavior." Id.

(emphasis added). The board considered the NDRB

57a

upgrade of the characterization of service to general

under honorable conditions and "with that in mind"

concluded that "Petitioner has suffered long enough

for his indiscretion and should be granted relief in the

form of

credited time served for retirement." Id. (emphasis

added). The board recommended relief in the form of

credited time served for retirement, but concluded

that the reenlistment code should not be changed

because non-recommendation for retention and/or

reenlistment was based solely on his civil conviction.

Id. It is this board recommendation that was reviewed

and disapproved by the former AGC (M&RA). AR at 0

11. Mr. Strand then judicially appealed the

Secretary's decision.

Following the U.S. Court of Appeals for the

Federal Circuit decision in Strand v. United States,

Nos. 2016-2450, -2484, 2017 WL 3911801 (Fed. Cir.

Sept. 7, 2017), the United States Court of Federal

Claims issued an order remanding this case to the

Secretary of the Navy for further proceedings

consistent with the Federal Circuit's opinion.

Specifically, the remand requires that the Secretary

consider whether, "in the absence of any evidence of a

long-standing history" of F AP involvement and

domestic violence issues, the board's decision to grant

Petitioner partial relief should be upheld.

Prior to reviewing this matter and reaching a

decision, I notified Petitioner's counsel that I would be

reviewing: ( 1) the remand order of the Court of

Federal Claims (COFC); (2) the Opinion of the Court

of Appeals for the Federal Circuit; (3) the Judgment of

the COFC; and (4) the Administrative Record, Volume

58a

I. I invited Petitioner to provide any additional

information for my consideration prior to rendering a

decision on remand.

Petitioner via his counsel submitted a written

response dated December 7, 2017, for my

consideration in reviewing the matter. In this letter,

Petitioner identifies his periods of enlisted service and

references his fitness reports, commendations and

awards. See Reply at 1. Petitioner does not dispute the

misconduct for which he was convicted and sentenced

and for which he served time in prison. Id. at 2. The

reply identifies the materials submitted by Petitioner

to the BCNR, including personal references and

statements by Petitioner. The reply states that the

BCNR decision was not founded solely upon

Petitioner's prior service, but also the additional

information related to his postservice conduct and

efforts to rebuild his life. The reply offers Petitioner's

views on why the courts declined to uphold the initial

AGC (M&RA) decision and argues that Mr. Strand's

case should be decided on its own merits. See id. at 3,

n.2. The reply offers that "Mr. Strand has reconciled

with his ex-wife1... and plays an active role in the lives

of their children ... lives effectively homeless on a

couch so that he can provide support for his family."

Id. at 4. Petitioner states that his uncorrected record,

which contains information about his criminal record,

provides a backdoor for employers to deny him gainful

employment and prevent him from fully integrating

1 Although Petitioner states that he and his former spouse have

reconciled, I note that there is no statement from his spouse in

support of his character or his petition for relief despite his

submission of statements of support from his mother, former

Navy colleagues, professors, and parole/probation officers.

59a

into civilian life. Id. Petitioner contends that he has

paid for the "sole indiscretion that he committed over

the course of a stellar 20-year career," and that "most

who commit similar mistakes will not have Mr.

Strand's long and impeccable record of honorable

service combined with a demonstrated commitment to

atonement and post-service reintegration .... " Id.

Petitioner asks to be retired. Id. at 5.

Decision

Since 'the early days of Naval service, there have been

three bedrock principles or core values that guide our

military members: honor, courage and commitment.

Honor requires our service members to be honest and

trustworthy with each other and those outside the

Navy, to be accountable for professional and personal

behavior, and to recognize that illegal or improper

behavior or even the appearance of such behavior will

not be tolerated, and to always be mindful that it is a

privilege to serve. Courage is the value that gives our

service members the moral and mental strength to do

what is right, even in the face of personal or

professional adversity. Commitment requires a

service member to show respect toward all, to treat

each individual with human dignity, and to exhibit

the highest degree of moral character, technical

excellence, and competence.

I do not find that Petitioner's overall periods of

enlisted service ( commencing in 1988) and postservice conduct (discharged in 2009) are sufficient to

overcome the seriousness of the misconduct that

resulted in his civilian conviction for felony offenses

and, ultimately, caused him to be discharged from

60a

Naval service prior to reaching his eligibility for

retirement. Petitioner engaged in substantial illegal

behavior: attempted malicious wounding, attempted

unlawful wounding, and use of a firearm in the

commission of a felony. Clearly, as reflected in the

sentence meted out by the Circuit Court of the City of

Virginia Beach, the court did not view his crime as

inconsequential or a minor error in judgment. The

passage of time, which has allowed Petitioner the

ability to reflect on his misconduct, to accept

responsibility for his actions, and to begin to

rehabilitate himself, does not warrant overlooking the

seriousness of the conviction that led to his discharge

from the Naval service, and his resultant inability to

complete twenty years of service that may have

otherwise made him eligible for retirement. It was not

an error or injustice that led to Petitioner's inability

to meet the requirements for retirement eligibility,

but rather it was Petitioner's own intentional

misconduct that prevented him from completing his

twenty years of military service.

The record shows that in 1992 Petitioner was

counseled for abuse of alcohol, which resulted in

disorderly conduct, see AR at 99, and he was issued

non-judicial punishment for assault and disorderly

conduct under the UCMJ, see AR at 097-098, which

led to a reduction in his enlisted rank. Despite the

Navy's attempt to allow Petitioner the opportunity to

rehabilitate himself while in the Naval service,

Petitioner again engaged in misconduct in 1993 for

which he was issued a counseling/ warning entry and

directed to attend courses such as building effective

anger management or stress management skills and

to not violate the UCMJ or civil laws. See AR at 096.

61a

As with the first counseling, Petitioner was advised

that his failure to adhere to the guidelines would

make him eligible for administrative separation

action. Id. Thus, well before his civilian conviction for

felony offenses, Petitioner had clear and repeated

notice of his obligation to comply with both military

regulations and civilian laws and that his failure to

adhere and measure up to the high standards of

performance required of all members of the U.S. Navy

could lead to his separation from service. See id.

In my view, Petitioner's conviction for felony

offenses, as well as his history of performance and

conduct, does not align with the Navy's core values

and does not warrant the provision of credit for six

months of Naval service he did not perform. Again,

there is no error or injustice in Petitioner's service

record. Rather, the record clearly shows that

Petitioner's own misconduct caused him to be

separated from service before he could attain twenty

years of service. Petitioner is not an individual whom

the Navy would laud as an example of its core values,

and his separation even at 19.5 years of service aligns

with how the Navy addresses misconduct by

individuals who do not conform to Naval standards of

conduct,

discipline,

and

performance.

See

MILPERSMAN 1910-144; MILPERSMAN 1910-212;

MILPERSMAN 1910-214; MILPERSMAN 1910-233;

MILPERSMAN 1910-010; MILPERSMAN 1910-302;

and MILPERSMAN 1910-306.

Honor. Petitioner did not show honor towards

his colleagues when he engaged in his illegal behavior,

and he did not demonstrate honorable behavior

towards those outside the Navy, including his former

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spouse, the victim of his crime. He neither fulfilled nor

exceeded his legal responsibilities in his public and

personal life. His actions led to his incarceration,

which

precluded

him

from

executing

his

responsibilities as a service member and necessarily

required others to complete the duties that could have

been assigned to him had he been available for service.

In my view, it is an aggravating factor that Petitioner

was offered counseling early on in his career to be

prepared to act honorably. However, Petitioner,

despite the counseling he received from the Navy,

allowed his personal emotions to overtake the

privilege he had to serve his fellow Americans with

honor.

Courage. While Petitioner is remorseful for his

crime, which some may view as courageous, the Navy

expects our service members to do what is right at all

times even in the face of personal adversity. Instead

of engaging in a crime of passion, Petitioner could

have demonstrated the Navy core value of courage by

walking away. He instead chose to take a gun and

attempted to cause his former wife and another

individual substantial harm by discharging the

weapon during his crime. This was not Petitioner's

first instance of misconduct leading to harm of others.

In fact, Petitioner received non-judicial punishment

with a reduction in rank for assault and disorderly

conduct. See AR at 097-098. Petitioner was warned to

get his anger in check or to face the consequences if he

failed to align to the high standards required of

service members. See AR 096-099. Taking

responsibility and learning from your mistakes

requires courage; however, courage also presumes

that you learn from your mistakes and do not repeat

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them. As Petitioner recognizes, it is fortuitous that his

felonious conduct did not result in anyone's death. An

attempt to maliciously wound someone using a

firearm outside of an authorized military action and

because you are not in control of your personal

emotions is not courageous behavior. In the Naval

service, failure to control personal emotions during

times of great adversity could have significant

impacts that are adverse to the interest of the Navy

and the Nation.

Commitment. Commitment requires a service

member to care for the safety, professional, and

personal well-being of all individuals and to make

decisions that are in the best interest of the Navy and

the Nation without regard to personal consequences.

When Petitioner elected to take a gun and attempted

to harm his former spouse, he was moved by personal

emotions and had no regard for our Nation's laws or

its people. If Petitioner had been committed to the

care of others, he would have been cognizant of the

repeated counseling he received early in his Naval

career, see AR 096-099, and he likely would have

demonstrated his commitment to meeting the high

standards of performance required of all service

members. His conduct does not reflect this

commitment and, in fact, demonstrates a lack of

respect for our Nation's laws and individual human

dignity and is not in keeping with the Navy's core

values.

In addition to my points above, I note that the

nature of Petitioner's conduct leading to his civilian

conviction cannot be overlooked. As explained by the

NDRB, "Violations of UCMJ Article 128 (Assault),

64a

which is equivalent to the offenses [Petitioner] was

convicted [ of] in civil Court, warrant processing for

administrative separation regardless of grade,

performance, or time in service. This usually results

in an unfavorable characterization of discharge or, at

a maximum, a punitive discharge and possible

confinement if adjudicated and awarded as part of a

sentence by a special or general court-martial.

[Petitioner's] command did not pursue a punitive

discharge but opted instead for the more lenient

administrative discharge." (AR 063).

UCMJ Article 128 (Assault) states: "Any person

subject to this chapter who attempts or offers with

unlawful force or violence to do bodily harm to another

person, whether or not the attempt or offer is

consummated, is guilty of assault and shall be

punished as a court-martial may direct. Any person

subject to this chapter who commits an assault with a

dangerous weapon or other means or force likely to

produce death or grievous bodily harm ... is guilty of

aggravated assault and shall be punished as a courtmartial may direct." The maximum punishment set

forth in the Appendix 12 to the Manual for CourtMartial for aggravated assault with a dangerous

weapon or other means or force likely to produce death

or grievous bodily harm, when committed with a

loaded firearm, is "Dishonorable discharge, forfeiture

of all pay and allowances, and confinement for 8

years."

Further, a brief review of military justice cases

indicates that most persons convicted of similar

assaults in the military justice system receive

punitive discharges in addition to confinement. See

65a

e.g.· United States v. Sexton, 1 M.J. 679 (N.C.M.R.

1975) (affirming award of a Bad Conduct Discharge

following conviction for an assault with a firearm and

discharge thereof); United States v. Gutierrez, 11 M.J.

122 (C.M.A. 1981) (affirming award of a Dishonorable

Discharge following conviction for an assault with a

dangerous weapon); United States v. Wall, 2013 CCA

LEXIS 418 (A.F. Ct. Crim. App. 2013) (affirming

award of a Dishonorable Discharge following

conviction for an assault with a firearm and discharge

thereof); United States v. Knowles, 2016 CCA LEXIS

236 (N-M. Ct Crim. App. 2016) ( affirming award of a

punitive discharge following conviction for assault

where defendant used his hands to choke his spouse).

In my view, it is very likely Petitioner would have

received a punitive discharge had he been prosecuted

by the Navy, rather than civilian authorities, for his

misconduct.

In sum, I commend Petitioner's efforts to

engage in rehabilitation following his conviction and

incarceration, as well as his efforts to rebuild his life.

However, I do not find that relief is warranted and

that Petitioner should be granted credited time served

for retirement when, in fact, the basis for his inability

to retire was not an error or an injustice, but his own

deliberate misconduct despite being on clear notice of

the consequences of his actions. To grant relief under

the circumstances of this matter wholly ignores the

high standards that the Navy expects our military

members to demonstrate. Petitioner's misconduct is

inconsistent with the Navy's core values of honor,

courage, and commitment and runs counter to

granting relief. Moreover, the relief offered by the

board is inconsisten

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