Petition for Writ of Certiorari — Robert S. Carlborg, Petitioner v. United States

Supreme Court briefApr 22, 2025

Ask Donna

What actually matters in this document.

Text

APPENDIX

TABLE OF CONTENTS

Page

Appendix A - Court of appeals opinion

(Nov. 4, 2024)...............................

Appendix B - Court of Federal Claims opinion

13a

(Nov. 6, 2023)..............................

Appendix C - Court of appeals decision denying

45a

rehearing (Jan. 27, 2025)..........

Appendix D — Constitutional and statutory provisions:

47a

U.S. Const. Amend. V

48a

10U.S.C. §638b..

51a

10U.S.C. § 1175a

58a

10 U.S.C. § 1181..

10U.S.C. § 1182..

59a

62a

10 U.S.C. § 1186..

63a

10 U.S.C. §8323..

65a

28 U.S.C. § 1491..

68a

37 U.S.C. §204....

Appendix E — Public Laws:

No. 102-484, 106 Stat. 2702 (1993).74a

No. 112-81,125 Stat. 1390 (2011).. 79a

APPENDIX A

NOTE: This disposition is nonprecedential.

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

No. 2024-1339

ROBERT S. CARLBORG, PLAINTIFF-APPELLANT

UNITED STATES, DEFENDANT-APPELLEE

Filed: November 4, 2024

Before MOORE, Chief Judge, CHEN and STOLL,

Circuit Judges.

Per Curiam.

Robert S. Carlborg appeals from a decision of the

United States Court of Federal Claims (Claims Court),

which granted the government’s motion for judgment

on the administrative record (MJAR) and denied Mr.

Carlborg’s. Carlborg v. United States, 168 Fed. Cl. 371

(2023) (Decision). For the reasons discussed below, we

affirm.

(la)

Background

Mr. Carlborg served in the United States Marine

Corps (USMC) from 1995 through 2015, rising to the

rank of Major. Decision at 374. On December 9,

2014, Mr. Carlborg’s command charged him for

violations of Article 133 (conduct unbecoming of an

officer and a gentleman) and Article 134 (adultery) of

the Uniform Code of Military Justice (UCMJ). Id.

In lieu of a court-martial, Mr. Carlborg elected to

submit a pretrial agreement (PTA), offering to accept

non- judicial punishment (NJP).1 J.A. 41.2 The PTA

was accepted by the Convening Authority, who agreed

to dismiss the charges with prejudice upon sentencing

at NJP. Id. At a February 5, 2015, NJP hearing,

Mr. Carlborg pleaded guilty to all charges. Decision at

375. As punishment, Mr. Carlborg received a punitive

letter of reprimand and forfeited $7,430.10 of pay. Id.

Two weeks later, the Commanding General

prepared an NJP report recommending that Mr.

1 NJP, as provided in Article 15 of the UCMJ, is a form of

military justice to address offenses committed by service

members. Dumas u. United States, 620 F.2d 247, 250-53 (Ct. Cl.

1980). The NJP process is the least formal option and is

conducted by the accused’s commanding general. Id. at 251. The

proceeding is not criminal in nature, as opposed to court-martial,

and limited punishments may be imposed. Id. at 251-52. An

accused service member has the right to elect to proceed with an

NJP instead of with a formal court-martial. Id. at 251; see also

10U.S.C. §815.

2 “J.A.” refers to the appendix filed by Mr. Carlborg. See

ECF No. 30.

Carlborg be required to show cause for retention in the

Carlborg’s Id. In response, Mr. Carlborg stated that

he planned to request voluntary early retirement

under the Temporary Early Retirement Authority

(TERA) program rather than face the BOI. Id. at 376.

On March 12, 2015, Mr. Carlborg was served with

a formal notice of a BOI ordering him to show cause

for retention. Id. That same day, Mr. Carlborg

submitted his early retirement request under TERA.

Id.

In May 2015, the BOI convened and substantiated

Id.

The BOI

the underlying misconduct,

recommended that Mr. Carlborg be separated with an

Other Than Honorable characterization of service. Id.

In July 2015, Mr. Carlborg challenged the BOI’s

findings on the grounds that he qualified for early

retirement and that the BOI proceedings should have

been paused during the processing of his March 12,

2015, voluntary retirement request. Id. Mr.

Carlborg also alleged legal errors . in his BOI

proceeding, contended that his post-traumatic stress

disorder (PTSD) was a mitigating factor, and

requested an honorable discharge. Id.

In September 2015, the Deputy Commandant

rejected Mr. Carlborg’s legal arguments and

recommended that he be discharged with an Other

Than Honorable characterization of service. Id. Mr.

Carlborg was subsequently ordered to be evaluated by

a medical professional to determine whether PTSD

contributed to his misconduct. Id. After reviewing Mr.

Carlborg’s records and interviewing him, a Division

Psychiatrist concluded that Mr. Carlborg was not

suffering from PTSD. Id. The Assistant Secretary of

the Navy then approved the Deputy Commandant’s

recommendation, and on October 9, 2015, Mr.

Carlborg was discharged with an Other Than

Honorable characterization of service. Id.

The next year, in October 2016, Mr. Carlborg filed

a disability claim with the Department of Veterans

Affairs (VA) for service-connected PTSD and in May

2017, the VA assigned him a 70 percent disability

rating. Id. at 376—77.

In October 2018, Mr. Carlborg petitioned the Board

for Correction of Naval Records (BCNR) for relief,

raising a variety of arguments. Id. at 377. In April

2020, the BCNR recommended that certain negative

comments be removed from Mr. Carlborg’s fitness

report, but denied all other relief. Id.

On October 8, 2021, Mr. Carlborg filed a complaint

“for back-pay and collateral injunctive relief’ in the

Claims Court. Complaint at 1, Carlborg v. United

States, No. 21- 1994C (Fed. Cl. Oct. 8, 2021), ECF No.

1. Mr. Carlborg and the government eventually filed

cross-MJARs. On November 6, 2023, the Claims Court

denied Mr. Carlborg’s MJAR and granted the

government’s. In its decision, the Claims Court

rejected Mr. Carlborg’s arguments that: the USMC

violated the terms of the PTA by using his charged

conduct as the basis of his separation; he should have

been referred to the Disability Evaluation System

(DES); the USMC violated applicable rules and

regulations; and his proceedings were prejudiced by

unlawful command influence. Decision at 377-85.

Mr. Carlborg timely appealed. We

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

have

Discussion

“We review a decision of the Court of Federal

Claims granting or denying a motion for judgment on

the administrative record without deference. That is,

we reapply the statutory review standards.”

Chambers v. United States, 417 F.3d 1218, 1227 (Fed.

Cir. 2005) (citation omitted). Under that standard, we

will not disturb the decision of the BCNR “unless it is

arbitrary, capricious, contrary to law, or unsupported

by substantial evidence.” Id.

On appeal, Mr. Carlborg raises the same arguments

he made before the Claims Court. We reject each one.

First, Mr. Carlborg argues that the USMC violated

the terms of the PTA by failing to dismiss his charges

with prejudice. The PTA called for the USMC to

initially withdraw Mr. Carlborg’s charges from courtmartial without prejudice and then for the withdrawal

to be converted into a dismissal with prejudice after

sentencing at the NJP. J.A. 44. The former step

occurred but the latter did not.

The BCNR’s conclusion that, despite his charges

not being formally dismissed with prejudice, Mr.

Carlborg received his benefit of the PTA—the

withdrawal of his charges from the court-martial, is

in accordance with law. J.A. 172. We agree that “Mr.

Carlborg avoided a criminal prosecution and the

prospect of a federal criminal conviction, dismissal

(i.e., the officer equivalent of a dishonorable

discharge), and possible confinement.” Decision at

378; J.A. 172. Instead of facing a criminal prosecution,

Mr. Carlborg pleaded guilty at the NJP hearing and

received a punitive letter of reprimand and

reduced pay. Decision at 375. As the Claims Court

explained, the USMC “effectively dismissed with

prejudice the charges preferred against Mr. Carlborg

in that he was not—and now cannot be—prosecuted

under Articles 134 and 135 of the UCMJ.” Id. at 379.

Relatedly, Mr. Carlborg contends that the USMC

improperly used the dismissed court-martial charges

as the basis for the BOI that led to his separation. The

BCNR’s conclusion that the preclusive effect of the

PTA does not extend to the convening of a BOI

and Mr. Carlborg’s related administrative discharge

is in accordance with law. J.A. 172; Decision at 378.

The Commanding General was required to file an NJP

report including a recommendation of whether Mr.

Carlborg’s conduct warrants separation. See Decision

at 375 n.8; see also Marine Corps Order (MCO)

P5800.16A f 4004. Furthermore, Department of

Defense Instruction (DoDI) 1332.30 provides, among

other things, that “military nonjudicial punishment in

accordance with Article 15, Uniform Code of Military

Justice do[es] not preclude an administrative

discharge action.” DoDI 1332.30, Enel. 3, If 6(d) (Nov.

25, 2013) (emphases added). In other words, the

resolution of criminal charges does not bar the USMC

from administratively discharging someone based on

the underlying conduct. The BCNR did not err in

concluding the same. See J.A. 172.

Second, Mr. Carlborg argues that the USMC

should have referred him to the DES as a matter of law.

The “DES is the mechanism for determining a service

member’s return to duty, separation, or retirement

following a disability diagnosis.” Decision at 379. In

essence, qualified medical authorities refer eligible

service members to the DES to be evaluated for

permanent unfitness for duty. Id. at 379—80.

The Claims Court, crediting the BCNR’s analysis,

determined that Mr. Carlborg failed to establish that

he was unfit for continued service due to PTSD or any

other disability. Id. at 379-81. We agree. The Claims

Court explained that the BCNR’s decision was

supported by Mr. Carlborg’s adequate performance up

until allegations of his misconduct and by

“overwhelming” medical evidence demonstrating his

fitness for duty. Id. at 380. For example, in March

2015, Mr. Carlborg represented to a clinician that he

was completing his work competently.

Id.

Additionally, the Senior Medical Advisor who

reviewed Mr. Carlborg’s BCNR application concurred

that the evidence did not support referral to the DES.

J.A. 46-48.

For his part, Mr. Carlborg primarily relies on a

February 20, 2015, note from his Unit Medical Officer

that

was

“[n]ot

currently

considered

psychologically [sic] fit for duty.” J.A. 71. Both the

Claims Court and the BCNR considered this evidence

and found it unpersuasive. Decision at 380; J.A. 16970. For example, the statement was made the day

after Mr. Carlborg received the NJP report, stood in

contrast to evaluations made at the time of his

discharge, and indicated that Mr. Carlborg was not

currently fit rather than permanently unfit. Decision

at 380; J.A. 169-70. Accordingly, we agree with the

Claims Court that substantial evidence supports the

BCNR’s finding that Mr. Carlborg was not required to

have been referred to the DES.

Third, Mr. Carlborg argues that the USMC

violated various rules and regulations. Specifically,

Mr. Carlborg claims the USMC: denied his request for

a 20-dayextension to respond to the BOI report; failed

to conduct a separation medical evaluation; and failed

to forward his retirement request to the Secretary of

the Navy. We address each alleged violation in turn.

Regarding the 20-day extension, Mr. Carlborg

contends that the request should have been forwarded

to the Alternate Show Cause Authority in accordance

with regulation. We see no error in the BCNR’s

determination otherwise. The BCNR explained the

extension was properly considered by the Staff Judge

Advocate (SJA) “who was, in fact, an alternative

show cause authority.” J.A. 178; Decision at 381—82.

The Claims Court recognized that it is “common

practice” for the SJA to act on “non- substantive

requests,” such as extensions of time. Id. at 382 (citing

Impresa Construzioni Geom. Domenico Garufi v.

United States, 238 F.3d 1324, 1338 (Fed. Cir. 2001)).

Additionally, the BCNR and Claims Court explained

that Mr. Carlborg was not entitled by right to a 20-day

extension. J.A. 178; Decision at 382 (noting that a

party “may submit an extension request to the

Alternate Show Cause Authority or Show Cause

Authority who directed the BOI” (emphasis added)

(citation omitted)).

The next alleged violation, that the USMC failed to

properly conduct a medical examination upon

separation as required under 10 U.S.C. § 1177, is also

unpersuasive. The record evidence indicates that Mr.

Carlborg received a PTSD evaluation in conjunction

with his separation from the USMC. J.A. 174-75; J.A.

90-95. Further, substantial evidence supports the

BCNR’s finding that, contrary to Mr. Carlborg’s

assertion, the chain of command was aware of Mr.

Carlborg’s medical conditions, and specifically directed

that he receive an evaluation to determine whether

PTSD contributed to his misconduct. J.A. 174—77;

Decision at 382; see also, e.g., J.A. 78; J.A. 81-83.

Next, Mr. Carlborg contends that the USMC

violated 10 U.S.C. § 1186(a) and Secretary of the Navy

Instruction (SECNAVINST) 1920.6C by failing to

forward his March 12, 2015, retirement request to the

Secretary of Navy. The Claims Court considered and

rejected this argument because “he was not eligible for

voluntary early retirement.” Decision at 383—84; see

10 U.S.C. § 1186(a)(1) (The Secretary may grant a

request “for voluntary retirement, if the officer is

qualified for retirement”) (emphasis added). We agree.

Mr. Carlborg sought retirement under TERA. But

“officers pending legal action or proceedings,

administrative separation, or disability separation or

retirement are not eligible for TERA.” MARADMIN

155/14, f 2(H) (Mar. 28, 2014); J.A. 173. Mr.

Carlborg was therefore not eligible for TERA because

he was subject to both legal and administrative

separation proceedings at the time he requested

retirement. J.A. 173; Decision at 383-84.

For these reasons, we agree with the Claims Court

that the BCNR did not err in determining that the

USMC did not violate the rules and regulations raised

10a

by Mr. Carlborg. Id. at 381-84.

Fourth, Mr. Carlborg argues that his proceedings

were prejudiced by unlawful command influence. As

the Claims Court correctly determined, this argument

is forfeited because Mr. Carlborg failed to raise it

before the BCNR. Decision at 384 (“Unlawful

command influence cannot be raised for the first time

in [the Claims Court].” (quoting Pittman v. United

States, 135 Fed. Cl. 507, 528 (2017), aff’d, 753 F. App’x

904 (Fed. Cir. 2019) (per curiam))).

Finally, Mr. Carlborg argues that the Claims Court

violated his due process rights by sua sponte vacating

the briefing schedule and issuing its decision without

providing him notice and an opportunity to respond.

The relevant timeline is as follows. Mr. Carlborg filed

his complaint with the Claims Court in October 2021.

J.A. 20. After a remand to the BCNR, a five-month

stay to allow Mr. Carlborg to substitute counsel, and

three extensions to the briefing schedule, Mr. Carlborg

filed his MJAR in August 2023. Id. at 21-24. The

government filed its consolidated response and crossMJAR in September 2023. Id. at 24. Then, without

waiting for Mr. Carlborg’s consolidated response and

reply, the Claims Court issued an opinion and order

denying his MJAR, granting the government’s, and

vacating the remaining briefing schedule. Id.; see also

Decision at 374 n.l (“Additional briefing and oral

argument are unnecessary.”).

Generally, a court cannot enter a case-dispositive

judgment “without notifying the parties of its

intentions and allowing them an opportunity to . . .

respond.” English v. Cowell, 10 F.3d 434, 437 (7th Cir.

11a

1993). For example, district courts are permitted to

enter summary judgment sua sponte, but this power is

tempered by the requirement to first provide “notice

and a reasonable time to respond.” Fed. R. Civ. P.

56(f).

Although the Claims Court appears to have run

afoul of this procedural safeguard, that failure is not

necessarily a reversible error requiring remand.

Other circuits have recognized that if “the appellant

cannot demonstrate [procedural] prejudice—by

establishing that as a result of the unfair surprise—

the failure to provide notice is harmless error and a

remand would be futile.” P.R. Elec. Power Auth. v.

Action Refund, 515 F.3d 57, 65-66 (1st Cir. 2008)

(finding harmless error where appellant alleged a due

process violation from the district court’s failure to

provide notice and an opportunity to present

evidence), abrogated on other grounds by PortuguesSantana v. Rekomdiv Int’l, 657 F.3d 56, 60-61 (1st Cir.

2011); see also Leatherman v. Tarrant Cnty. Narcotics

Intel. & Coordination Unit, 28 F.3d 1388, 1398 (5th

Cir. 1994) (“When there is no notice to the nonmovant,

summary judgment will be considered harmless if the

nonmovant has no additional evidence or if all of the

nonmovant’s additional evidence is reviewed by the

appellate court and none of the evidence presents a

genuine issue of material fact.” (citation omitted));

Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208,

1213 (11th Cir. 1995); Ward v. Utah, 398 F.3d 1239,

1245-46 (10th Cir. 2005); Bridgeway Corp. v.

Citibank, 201 F.3d 134, 139-40 (2d Cir. 2000).

In this case, Mr. Carlborg fails to make any claim

12a

of prejudice. He does not identify any argument or fact

that he would have raised that was not already

present in his opening brief. Nor does he suggest that

the government’s motion raised any argument that he

had not addressed in his earlier filing. It is telling, too,

that Mr. Carlborg’s arguments on appeal are

substantially identical to those accompanying his

MJAR, despite now asserting that the Claims Court

erroneously granted the government’s motion. Just

like the appellant in Restigouche, Mr. Carlborg

“has now had ample opportunity to marshal facts and

arguments, and does not assert on appeal that there

exists additional evidence, beyond the record which

would

have

precluded

[judgment

the

administrative record] in this case.” Restigouche, 59

F.3d at 1213. Under these circumstances, we find

Mr. Carlborg’s argument unpersuasive. See Tex.

Advanced Optoelectronic Sols., Inc. v. Renesas Elecs.

Am., Inc., 895 F.3d 1304, 1316 (Fed. Cir. 2018)

(explaining that “unless prejudice is clear even

without any explanation, the party seeking reversal

normally must explain why the erroneous ruling

caused harm” (cleaned up)).

Conclusion

We have considered Mr. Carlborg’s remaining

arguments and find them unpersuasive. For the

foregoing reasons, we affirm.

AFFIRMED

Costs

No costs.

13a

APPENDIX B

UNITED STATES COURT OF FEDERAL CLAIMS

FOR PUBLICATION

No. 21-1994C

ROBERT S. CARLBORG, PLAINTIFF

UNITED STATES, DEFENDANT

Filed: November 6, 2023

OPINION AND ORDER1

BONILLA, Judge.

Robert S. Carlborg served in the United States

Marine Corps (USMC) as a ground supply officer from

1995 through 2015, rising to the rank of Major.

Thirteen days shy of reaching retirement eligibility,

the USMC involuntarily separated Mr. Carlborg

following his admission to charges of conduct

unbecoming an officer and a gentleman, as well as

adultery, in violation of Articles 133 and 134 of the

1 This case was transferred to the undersigned for

adjudication on February 28, 2022, pursuant to Rule 40.1(b) of

the Rules of the United States Court of Federal Claims (RCFC).

Three days later, the parties filed a joint request to stay

14a

Uniform Code of Military Justice administrative

separation, arguing he should have been allowed to

retire upon reaching twenty years of military service.

Alternatively, Mr. Carlborg asserts the USMC should

have either granted his request for voluntary early

retirement under the Temporary Early Retirement

Authority (TERA) program or formally evaluated him

for disability retirement following a diagnosis of posttraumatic stress disorder (PTSD). Pending before the

Court are the parties’ dispositive cross-motions. For

the reasons set forth below, Plaintiffs Motion for

Judgment on the Administrative Record (ECF 43) is

DENIED and Defendant’s Cross-Motion for Judgment

on the Administrative Record (ECF 44) is GRANTED.

BACKGROUND

Mr. Carlborg enlisted in the USMC on April 6,

1995, and entered active duty on October 23, 1995.

Using the Enlisted Commissioning Program, Mr.

Carlborg commissioned as a Second Lieutenant (0-1)

on April 2, 1999, and then served as a ground supply

officer in roles with varying degrees of responsibility.

From January 2006 to January 2007, then-Captain

(0-3) Carlborg deployed to Iraq in support of

Operation Iraqi Freedom. Following his combat

proceedings pending further consideration of plaintiffs claims by

the Board for Correction of Naval Records (BCNR). As discussed

infra, the BCNR issued its remand decision on August 31, 2022.

Thereafter, between November 1, 2022 and April 16, 2023, this

matter was stayed to allow plaintiff to retain new counsel.

Briefing on the dispositive cross-motions resolved herein

continued through the issuance of this decision. Additional

briefing and oral argument are unnecessary.

15a

deployment, Mr. Carlborg earned several military

awards,

including the Navy and Marine

Commendation Medal for “exceptionally meritorious

service” from March 2007 to July 2008, and the Joint Service

Commendation Medal for “exceptionally meritorious service”

from July 2011 to July 2013. In the interim, effective June

1, 2009, Mr. Carlborg was promoted to Major (0-4),

the rank in which he served until his administrative

separation on October 9, 2015. At the time of his

discharge, then-Major Carlborg was thirteen days shy

of reaching twenty-year military retirement

eligibility. At all relevant times, Mr. Carlborg was

married and a Marine.

Between January 2010 and June 2014, while

serving on active duty as a Marine officer, then-MajorCarlborg posted nude and sexually explicit

photographs and videos of himself with women other

than his spouse on several adult websites. Mr.

Carlborg used these websites to solicit extramarital

relationships, advertising himself as a Marine (i.e.,

posing in his camouflage utility uniform). In May

2014, then-Major Carlborg engaged in an extramarital

relationship with a law enforcement officer’s spouse.

After discovering and confirming the affair, the law

enforcement officer reported Mr. Carlborg’s conduct to

the Naval Criminal Investigative Service which, in

turn, reported the behavior to Mr. Carlborg’s chain of

command.2

2 The law enforcement officer also posted the explicit

materials he uncovered to www.cheaters.com, where juniorenlisted Marines in Mr. Carlborg’s unit later found them.

16a

On August 21, 2014, Mr. Carlborg’s command

initiated an administrative investigation, initially

focused on the reported extramarital relationship.

During this investigation, the command discovered

Mr. Carlborg’s sexually explicit online presence. On

December 9, 2014, Mr. Carlborg’s command preferred

two charges against Mr. Carlborg for violations of

Article 133 (conduct unbecoming an officer and a

gentleman) and Article 134 (adultery) of the UCMJ.

After the charges were preferred, Mr. Carlborg agreed

to accept nonjudicial punishment (NJP) for all charges

and their specifications in lieu of court-martial.3 On

February 5, 2015, during a duly convened NJP hearing

(i.e., “office hours”), Mr. Carlborg pleaded guilty to

both charges and their underlying specifications.4

3 NJP is a form of military justice authorized by Article 15 of

the UCMJ not constituting a criminal conviction hut often filed

in the service record of the affected member. The applicable

burden of proof in a USMC NJP proceeding is preponderance of

the evidence rather than the beyond a reasonable doubt standard

required in a court-martial. See 18 U.S.C. § 815. The

jurisdictional limits on punishment in this case were:

(a), Arrest in Quarters for not more than 30 consecutive

days; (b), Forfeiture of not more than V2 of 1 month’s pay

per month for 2 months; (c), Restriction to specified

limits, with or without suspension from duty, for not

more than 60 consecutive days; and (d), a Punitive Letter

of Reprimand.

AR 1048-49. “AR__” is a citation to a Bates numbered page in

the administrative record.

4 During his NJP hearing, Mr. Carlborg offered that

untreated PTSD related to his January 2006 to January 2007

17a

After accepting Mr. Carlborg’s guilty plea, the

Commanding General, Major General (0-8) William

D. Beydler, imposed punishment in the form of a

punitive letter of reprimand and $7,430.10 in forfeited

pay.5,6 According to the terms of the NJP Agreement

executed by Mr. Carlborg on January 2, 2015,7 quoted

infra, the parties agreed the criminal charges would

be dismissed with prejudice upon sentencing. The

letter of reprimand was issued on February 9, 2015,

and Mr. Carlborg forfeited one-half of his pay over

the next two months.

Two weeks later, in a February 19, 2015

memorandum reporting the NJP proceedings (NJP

Report), Major General Beydler included the

following:

After carefully considering all aspects of this

case, including the nature of the misconduct,

deployment to Iraq, marital issues, and alcohol use contributed

to his charged misconduct.

5 The imposed pay forfeiture was attributed to Mr. Carlborg’s

reduced performance value and the time and effort exhausted by

his command in investigating and prosecuting the alleged

misconduct.

For clarity, “Commanding General” and “Convening

Authority” are used interchangeably throughout this opinion.

7 The NJP Agreement dated December 30, 2014, was

inadvertently dated “January 2, 2014,” by both Mr. Carlborg and

his Detailed Military Counsel. See AR 3480-82 (emphasis

added). It was signed and dated by the Convening Authority on

January 12, 2015.

18a

I have determined that Major Carlborg’s

conduct constitutes a significant departure

from the behavior expected of officers of his

experience and of his experience and grade.

Accordingly, I recommend Major Carlborg

be required to show cause for retention at a

Board of Inquiry. [8]

AR 88-89. Responding to the NJP Report on February

25, 2015, Mr. Carlborg noted he was eight months

from retirement eligibility and planned to request

voluntary early retirement under the TERA program

rather than face a BOI.

By memorandum dated March 12, 2015, thenMajor Carlborg was served with formal notice of a BOI

convening to assess whether he should be retained on

active duty based on the following:

a. Failure to demonstrate acceptable qualities of

leadership required of an officer in the

member’s grade.

A Board of Inquiry (BOI) is a panel of senior officers

convened to assess whether a commissioned officer’s substandard

performance or misconduct merits separation for cause, the

characterization of military service and, in certain cases,

retirement grade recommendations. See generally Secretary of

the Navy Instruction (SECNAVINST) 1920.6C, end. (8) (Dec. 15,

2005). A Show Cause Authority may initiate BOIs on a basis of

substandard performance or misconduct, and commanding

officers are required to report conduct that may warrant

separation to the Show Cause Authority. SECNAVINST

1920.6C, ends. (8)-(9). If the BOI recommends separation, the

record of proceedings is then forwarded to the Deputy

19a

b. Failure to properly discharge duties expected

of officers of the member’s grade and

experience.

c. Commission of a military or civilian offense

which could be punished by confinement of 6

months or more and any other misconduct

which would require specific intent for

conviction.

d. Sexual perversion.

AR 95. In response, Mr. Carlborg submitted a

“Voluntary Retirement Request in lieu of Further

Administrative Processing for Cause” under the

program. AR 104—05 (alteration to

TERA

capitalization). In his formal request dated March 12,

2015, Mr. Carlborg reiterated: “I admit that I am

guilty of all the charges/allegations detailed in [the

NJP Report]. I admit that I committed misconduct

and that my performance of duty was substandard.”9

AR 105.

Mr. Carlborg’s BOI convened on May 5, 2015. In

a memorandum dated May 11, 2015, the BOI

substantiated the underlying misconduct and

Commandant for Manpower and Reserve Affairs (M&RA) for

review and comment before a final determination is made by the

Secretary of the Navy regarding the recommended separation

and characterization of service. SECNAVINST 1920.6C, end. (8),

113.

9 Acknowledging his misconduct might affect his retirement

grade, Mr. Carlborg nevertheless requested to be voluntarily

retired as a Major.

20a

recommended Mr. Carlborg be separated with an

Other

Than

Honorable

characterization

of.

service 10,11 AR 680-81. On July 13 and 21, 2015, Mr.

Carlborg challenged the BOI’s findings and

recommendations, errors in his BOI proceedings,

asserted his PTSD diagnosis was asserting he

qualified for retirement under the TERA program and

that his BOI should have been continued during the

processing of his March 12, 2015 voluntary retirement

request. Mr. Carlborg also alleged legal errors not

properly considered as a mitigating factor, and

requested that his service be characterized as

Honorable.

On September 8, 2015, the Deputy Commandant

(M&RA), Lieutenant General (0-9) Mark A. Brilakis,

rejected Mr. Carlborg’s legal arguments and

recommended that Mr. Carlborg be administratively

separated with an Other Than Honorable

characterization of his service.12 In reviewing the

10 The BOI alternatively recommended Mr. Carlborg be

retired in the grade of First Lieutenant (i.e., highest grade of

satisfactory service) if he became retirement eligible while his

case remained pending.

11 Addressing the BOI through counsel, Mr. Carlborg

apologized and reiterated his ongoing struggles with PTSD and

alcoholism.

12 The proposed separation code was “GKQ - Involuntary

Separation, Approved Recommendation of a Board (Misconductserious offense).” AR 81.

21a

matter, the Assistant Secretary of the Navy (M&RA)

directed that Mr. Carlborg be evaluated by a military

mental

health

professional

(psychologist

psychiatrist) to assess whether he suffered from PTSD

and, if so, whether the disorder contributed to his

misconduct. After reviewing Mr. Carlborg’s records

and interviewing him on September 25, 2015, Division

Psychiatrist, Commander (0-5) George L. Cowan,

concluded Mr. Carlborg did not present a clinical

diagnosis of PTSD, his prior diagnosis of PTSD did not

contribute to his misconduct, and Mr. Carlborg

remained fit for duty. On September 29, 2015, the

Assistant Secretary of the Navy (M&RA) approved

Lieutenant General Brilakis’ recommendation. Mr.

Carlborg was administratively separated with an

Other Than Honorable characterization of service on

October 9, 2015.

A year later, on October 14, 2016, Mr. Carlborg filed

a disability claim with the Department of Veteran

Affairs (VA) for service-connected PTSD. On May 8,

2017, the VA determined Mr. Carlborg’s condition was

service connected and assigned him a seventy percent

disability rating,

subject to future review

examinations.

The next year, on October 8, 2018, Mr. Carlborg

petitioned the BCNR for relief. Specifically, Mr.

Carlborg submitted: he was eligible for the Disability

Evaluation System (DES) and should have been

retired by reason of physical disability; the failure to

dismiss his criminal charges with prejudice and their

subsequent use in a BOI was arbitrary, capricious,

and contrary to law; his request for voluntary early

22a

retirement under the TERA program was not properly

processed; the BOI failed to properly consider his

PTSD diagnosis as a mitigating factor; the USMC

failed to remove erroneous information from a fitness

report ending on February 5, 2015, consistent with the

decision Performance Evaluation Review Board

(PERB);

and his involuntary administrative

separation thirteen days shy of reaching retirement

eligibility was a clear injustice.13 On April 6, 2020, the

BCNR recommended certain negative comments and

related information be removed from Mr. Carlborg’s

February 5, 2015 fitness report. The BCNR otherwise

denied relief.14 Mr. Carlborg commenced this action on

October 8, 2021.

DISCUSSION

Legal Standard

Decisions issued by military corrections boards are

reviewed under an arbitrary, capricious, unsupported

by substantial evidence, or contrary to law standard.

Porter v. United States, 163 F.3d 1304, 1312 (Fed. Cir.

1998). Moreover, where, as here, a civilian judge is

13 Mr. Carlborg requested the following relief from the BCNR:

disability retirement (seventy percent) for PTSD or, in the

alternative, full retirement based upon completion of twenty

years of active-duty service; void and expunge his NJP, the BOI,

and his administrative separation; and remove the February 5,

2015 fitness report from his Official Military Personnel File.

14 As noted in supra note 1, following a voluntary remand

sanctioned by the Court on August 31, 2022, the BCNR denied

Mr. Carlborg’s request for reconsideration.

23a

called upon to evaluate the propriety of a service

member’s administrative involuntary discharge,

military judgment is entitled to great deference. Doe

v. United States, 132 F.3d 1430, 1434 (Fed. Cir. 1997)

(“When a branch of the armed forces has made a

decision concerning who is or who is not fit to serve,

(citing Orloff v. Willoughby, 345 U.S. 83, 90 (1953);

Maier v. Orr, 754 F.2d 973, 984 (Fed. Cir. 1985)). The

United States Supreme Court’s adage “judges are not

given the task of running the Army,” see Orloff, duly

authorized military officials adhered to applicable law

and implementing regulations and instructions in 345

U.S. at 93, applies with equal force to the USMC. In

other words, this Court’s role is limited to confirming

that making and adequately supporting otherwise

unreviewable personnel decisions.

II.

Non-Judicial Punishment Agreement

Mr. Carlborg first alleges the failure to dismiss his

criminal charges “with prejudice” in accordance with

the express terms of the NJP Agreement amounts to

legal error. More specifically, Mr. Carlborg asserts

that his agreement to resolve all court-martial

charges through NJP precluded his command from

using the charge dconduct as the basis to convene a

subsequent BOI, resulting in his unlawful

administrative separation. In support of his claim,

Mr. Carlborg points the Court to various claim

preclusion authorities and the doctrine of res judicata.

In relevant part, the NJP Agreement provides:

I agree to accept Nonjudicial Punishment held

by the Commanding General, II Marine

24a

Expeditionary Force, and plead guilty to the

charges and specifications as specified [herein]

below, provided as follows: (a)[] the Convening

Authority agrees to dispose of all charges and

specifications which were preferred against me

on 9 December 2014,

at Nonjudicial

Punishment; [and] (b)Q the Convening

Authority agrees to withdraw and dismiss,

without

prejudice,

the

charges

and

specifications thereunder to which I enter a plea

of guilty, said dismissal to ripen to dismissal,

with prejudice, upon imposition of sentencing at

Nonjudicial Punishment.

AR 3125. In accordance with the terms of the NJP

agreement, immediately upon Mr. Carlborg’s

February 5, 2015 NJP hearing, where he pled guilty

and punishment was imposed, the pending criminal

charges were to be dismissed with prejudice. The issue

presented in this case is whether the required

dismissal was limited to future prosecution under the

UCMJ or, as Mr. Carlborg asserts, extended to

administrative separation.

Department of Defense Instruction (DoDI)

1332.30 provides:

Acquittal or not-guilty findings in military or

civilian criminal proceedings, conviction or

punishment by civilian or military court, and

military nonjudicial punishment in accordance

with Article 15, Uniform Code of Military

Justice do not preclude an administrative

discharge action.

25a

DoDI 1332.30, end. (3), 1f 6(d) (Nov. 25, 2013)

(emphasis added). The Instruction makes clear that

resolutions of criminal charges through NJP

proceedings under Article 15 “do not preclude an

administrative discharge action, ?>15 Id. That the

charges were initially preferred against Mr. Carlborg

and later resolved through an NJP Agreement is of no

moment. See United States v. Nicely, 147 Fed. Cl. 727,

746 (2020) (crediting the following BCNR statement:

“[Withdrawal of charges from a court-martial does

not preclude the underlying conduct from forming the

basis under principles of res judicata, which only

applied to future judicial action before a court-martial

and did preclude administrative punishment before a

tribunal.”), aff’d, 23 F.4th 1364 (Fed. Cir. 2022) (per

curiam).16 Indeed, Mr. Carlborg acknowledged as much

15 Mr. Carlborg’s reliance upon Cooney v. Dalton, 877 F. Supp.

508 (D. Haw. 1995) is misplaced. Cooney predated DoDI 1332.30.

In place at the time was Section 3610260 of the Naval Military

Personnel Manual which, unlike the above-quoted instruction,

expressly prohibited administrative separation based upon

acquitted conduct. Cooney, 877 F. Supp. at 512. At issue in

Cooney, moreover, was the commanding officer’s interpretation

of technical acquittal, not the effect of a voluntary dismissal on

later use of charged conduct in administrative proceedings. See

id. at 512-13.

16 The Court rejects Mr. Carlborg’s argument that DoDI

1332.30, end. (3), H 6(d) does not apply simply because the

“[ajcquittal and not-guilty findings” but does not include

“dismissal” in the first clause. No matter the nomenclature, the

import of this Instruction remains the same: the ultimate

outcome of a criminal prosecution is not determinative of the

military’s reliance upon the Underlying misconduct in subsequent

administrative proceedings. Put simply, if complete exoneration

26a

in his February 25, 2015 response to the NJP Report:

“I respectfully request that I not be required to show

cause for retention at a Board of Inquiry . . . AR 91.

Further, as in Nicely, Mr. Carlborg received the

benefits of the plea bargain he (represented by

counsel) struck with the convening authority: in

exchange for his guilty plea in a non-judicial forum,

Mr. Carlborg avoided a criminal prosecution and the

prospect of a federal criminal conviction, dismissal

(i.e., the officer equivalent of a dishonorable

discharge), and possible confinement. See 147 Fed. Cl.

at 746-48. Now separated from the military prior

to reaching retirement eligibility, Mr. Carlborg is

no longer subject to the UCMJ and cannot be tried by

court-martial. See U.S. exrel Toth v. Quotes, 350 U.S.

11, 14 (1955) (“It has never been intimated by this

Court . . . that Article I military jurisdiction could be

extended to civilian ex- soldiers who had severed all

relationship with the military and its institutions.”).17

following a military or civilian prosecution does not preclude

derivative use of previously charged conduct in a subsequent

administrative proceeding, neither does the military’s voluntary

dismissal of criminal charges in connection with a NJP

Agreement in exchange for a service member’s guilty plea.

17 The VA is not a part of the military or otherwise one of its

institutions. See Kelly v. United States, 69 F.4th 887, 889 (Fed.

Cir. 2023) (“The Department of Defense administers military

disability retirement pay, see 10 U.S.C. § 1201, and the

Department of Veterans Affairs (‘VA’) administers veteran

disability benefits, see 38 U.S.C. § 1110.”). Accordingly, even if

Mr. Carlborg later qualified for VA benefits, which the record

suggests, the Court nevertheless finds he severed all relationship

27a

Additionally, the charged conduct is now well outside

the applicable five-year statute of limitations, which

expired more than four years ago in June 2019. See

10 U.S.C. § 843(b)(1).

In sum, consistent with the NJP Agreement, the

convening authority effectively dismissed with

prejudice the charges preferred against Mr. Carlborg

in that he was not-and now cannot be-prosecuted

under Articles 134 and 135 of the UCMJ.18 The

claimed preclusive effect of the derivative use of those

charges and Mr. Carlborg’s NJP guilty plea did not

extend to the convening of a BOI and his resulting

administrative discharge. As such, any claimed error

in the formal documentation of the dismissed charges

is harmless. See, e.g., Nicely, 147 Fed. Cl. at 746—47.

III.

Disability Evaluation System

Mr. Carlborg next contends he should have been

referred into DES after he: presented with “symptoms

consistent with . . . PTSD” and other disorders during

a January 5, 2015 visit to a military clinic, as

documented by First Lieutenant (0-2) Anna L.

Oberhofer (Group Surgeon, Family Medicine); and

was subsequently diagnosed with PTSD and several

with the military on the date of his separation and is no longer

subject to its jurisdiction.

18 Mr. Carlborg’s arguments regarding the implications of

“withdrawal” versus “dismissal” and the BCNR’s understanding

(or application) of the same are unavailing. Similarly, the Court

does not share in Mr. Carlborg’s interpretative ambiguities, nor

are veterans- benefits cases instructive or persuasive to DODI

1332.30’s application in this case.

28a

other disorders following evaluations by civilian

licensed clinical psychologist Alana R. Hollings on

January 22 and February 16, 2015. 19. 20 AR 101, 714.

Most relevant here, during a February 20, 2015 follow

up visit, First Lieutenant Oberhofer included the

following note in Mr. Carlborg’s medical file: “Not

currently considered psychologically fit for duty.” AR

193. Mr. Carlborg asserts these diagnoses and

comments required his referral to DES and a possible

suspension of any disciplinary and discharge

proceedings under SECNAVINST 1850.4E (Apr. 30,

2002) (Department of the Navy Disability Evaluation

Manual). The Court disagrees.

DES is the mechanism for determining a service

member’s return to duty, separation, or retirement

following a disability diagnosis. Under relevant

In a memorandum dated January 5, 2015, First Lieutenant

Oberhofer noted: [Mr. Carlborg] presented to clinic today with

concerns that his mental health was deteriorating. [Mr.

Carlborg] is now noted to have symptoms consistent with Major

Depressive Disorder, Alcoholism, and PTSD as defined in

[American Psychiatric Association: Diagnostic and Statistic

Manual of Mental Disorders, Fourth Edition, (DSM-IV-TR),

Washington, DC APA Press, 2000]. AR 1498.

20 In a May 4, 2015 memorandum addressed to Mr. Carlborg’s

then-civilian defense counsel, Mr. Eric M. Kopka, Dr. Hollings

opined that Mr. Carlborg’s disorders contributed to his

misconduct. AR1632, 3058. In addition to Dr. Hollings’ diagnosis

from January and February 2015, Mr. Carlborg was diagnosed

with PTSD on July 7, July 17, and October 5, 2015. AR 2484-88.

He was diagnosed with Combat Stress Reaction at least a dozen

times between March 12 and June 9, 2015. AR 2487.

29a

Department of Defense Instructions, “medical

authorities will refer eligible [s]ervice members into

the DES who have ... [o]ne or more medical conditions

that may, singularly, collectively, or through combined

effect, prevent the Service member from reasonably

performing the duties of their office, grade, rank,

or rating DoDI 1332.18 § 5.2(a)(1) (Nov. 10, 2022) (as

amended). As explained by the Federal Circuit, upon

referral:

A claim for disability is first considered by a

Medical Evaluation Board (“MEB”), which

reviews the individual’s medical records to

determine the nature of the disability. Then,

if the disability is found to be permanent,

the issue of disability retirement is referred

to a Physical Evaluation Board (“PEB”),

which provides a formal fitness and

disability determination. If the PEB finds

the service member unfit for duty and

permanently disabled,

it assigns a

disability rating. If the rating is 30% or

more, the PEB can recommend disability

retirement. If the rating is less than 30%, the

PEB can recommend discharge with the

service member’s having the option to

receive a lump-sum disability severance

payment

Barnick v. United States, 591 F.3d 1372, 1375 (Fed.

Cir. 2010). In other words, it is the service member’s

medically diagnosed permanent unfitness for dutyrather than the current presence of a disability-that

is determinative.

30a

Reviewing Mr. Carlborg’s military and medical

records, the BCNR determined Mr. Carlborg was not

unfit for continued military service. In reaching this

conclusion, the BCNR highlighted two facts. First, Mr.

Carlborg “was performing well in his duties up until

he committed the misconduct,” as evidenced by his

promotion to Major two years after his deployment to

Iraq.21 AR 7. Second, in the days leading up to his

discharge, Mr. Carlborg was deemed fit for duty by

military medical providers, including the Division

psychiatrist. Addressing First Lieutenant Oberhofer’s

February 20, 2015 note in Mr. Carlborg’s medical

record, the BCNR posited:

It was not surprising ... that [Mr. Carlborg]

may have been psychologically unfit on that

occasion, as that was the day after he

received the NJP report where he learned for

the very first time that he might have to

show cause for retention and his retirement

benefits might be in jeopardy.

AR 1958. In arriving at this conclusion, the BCNR

noted the isolated comment followed a series of entries

by First Lieutenant Oberhofer and other medical

providers who not only examined Mr. Carlborg and

diagnosed him with various disorders before and after

February 20, 2015, but uniformly found him fit for

21 Mr. Carlborg cites his January 2006 through January 2007

deployment to Iraq as one of the primary causes for his mental

health issues, including PTSD. See, e.g., AR 2855 (“I have some

severe, and as so far, untreated PTS[D] upon my return from Iraq

in ’07. And I committed these misconducts as a coping

mechanism along with my drinking.”).

31a

duty. The BCNR also highlighted the comment’s

temporal nature:

It was a comment upon his fitness for duty

at that moment (i.e., “not currently

considered... fit for duty” (emphasis added),

and not indicative that there was some

question about [his] medical fitness to

continue naval service, f22]

Engaging in a harmless error analysis, the BCNR

next concluded the overwhelming evidence in Mr.

Carlborg’s medical records demonstrated his fitness

for continued duty, undermining his case for a DES

referral and subsequent PEB assessment. By way of

example, the BCNR cited a March 17, 2015

representation Mr. Carlborg made to a treating

clinician, wherein he stated: ‘“completing work in a

competent and confident manner daily.’” AR 1959

(quoting AR 2720). The BCNR’s findings are

22 Mr. Carlborg’s reliance upon the VA’s May 8, 2017

disability rating is misplaced. Put simply, the evaluation

standards are materially different and used for different

purposes. See Keltner v. United States, 165 Fed. Cl. 484, 492

(2023) (“[T]he VA is authorized to rate any service-connected

condition while the military service is only authorized to rate or

apply ratings to the conditions which make a service member

unfit for continued military service and cause the premature

termination of the member’s military career.”) (internal brackets

omitted); see also Kelly, 69 F.4th at 889, 899 (“The existence of a

VA rating alone does not mean a service member is entitled to

military disability retirement pay ... To be clear, VA regulations

and VA decisions concerning disability are not binding on matters

involving military disability retirement pay.”).

32a

consistent with applicable Secretary of Navy

Instructions See, e.g., SECNAVINST 1850.4E, §

3302a (“A service member shall be considered Unfit

when the evidence establishes that the member, due

to physical disability, is unable to reasonably perform

the duties of his/her office, grade, rank, or rating .

. .id. § 3303c (“If the evidence establishes that the

service member adequately performed his or her

duties until the time the service member was referred

for physical evaluation, the member may be

considered Fit even though medical evidence indicates

questionable physical ability to perform duty.”).

Accounting for Mr. Carlborg’s diagnoses from 2014

through 2015, the Court’s examination of his

voluminous medical records substantiates the BCNR’s

conclusion that Mr. Carlborg was repeatedly found fit

for continued military service in his current role and

rank.23 Indeed, but for his admitted misconduct and

resulting discharge, Mr. Carlborg would have reached

the twenty-year retirement eligibility milestone and

23 See, e.g., AR 1339-40 (“Fit for full duty from psychiatric

standpoint.”) (Mar. 12, 2015); id. at 1326- 27 (“Fit for full duty

from psychiatric standpoint”) (Apr. 14, 2015); id. at 2675 (“Fit for

Full Duty.”) (May 12, 2015); id. at 1346 (“Fit for Full Duty.”) (June

9, 2015); id. at 1333 (“Fit for full duty”) (July 8, 2015); id. at 1634

(“[F]it for full duty.”) (July 13, 2015); id. at 1330 (“Fit for full

duty”) (Aug. 11, 2015); id. at 1343 (“FFFD” (a/k/a fit for full duty))

(Sept. 15, 2015); id. at 1352-53 (“The patient is psychiatrically fit

for full duty.”) (Oct. 5, 2015).

33a

beyond if he elected to continue his military service.24

Mr. Carlborg also attempts to sidestep a critical

DES restriction: disciplinary and misconduct

separation

“takes

precedence

over”

any

contemporaneous disability separation or referral.

Kelly, 69 F.4th at 890; see SECNAVINST 1850.4E §§

1002 & 3403. Specifically, Mr. Carlborg argues that he

should have been referred to DES on February 20,

2015, because he had not yet been notified of his BOI.

But his assertion overlooks the crux of this instruction.

Mr. Carlborg could not be referred to DES because his

previously charged misconduct could still result in his

administrative separation. SECNAVINST 1850.4E §

3403 (“The disability statutes do not preclude

disciplinary separation.

Such separations as

described herein normally supersede disability

separation or retirement”). And, even if Mr. Carlborg

was referred to DES in February 2015 or thereafter,

his medical discharge evaluation would at least have

been suspended following the March 12, 2015 “Show

Cause” notification. See id. In short, Mr. Carlborg was

precluded from receiving a disability evaluation

because he was ultimately separated for misconduct.25.

24 Mr. Carlborg was repeatedly diagnosed with a “Phase of

Life or Circumstances Problem” between October 8, 2014 and

April 22, 2015. See AR 2484-88. In the interim, on several

occasions between April 9 and May 1, 2015, medical providers

found “No Psychiatric Diagnosis or Condition.” Id.

25 The Court finds no evidence the BCNR failed to review or

evaluate the full and complete administrative record before it, nor

does the record indicate

Mr.

Carlborg’s

discharge

characterization was upgraded or otherwise changed from October

34a

IV.

Board of Inquiry

Mr. Carlborg alleges the USMC violated applicable

regulations in the wake of his BOI proceedings.

Specifically, Mr. Carlborg claims the following errors:

his request for a twenty-day extension to rebut the

BOI report was not forwarded to the Alternate Show

Cause Authority in accordance with the Notification of

Board of Inquiry memorandum dated March 12, 2015;

and the USMC failed to properly conduct his

separation medical examination as required under 10

U.S.C. § 1177. These issues are addressed seriatim.

In accordance with the BOI notice and appended

Rights of a Respondent, Mr. Carlborg was afforded at

least thirty days to prepare his defense. In fact, the

BOI convened fifty-four days later, on May 5, 2015,and

issued its formal report on May 11, 2015. By operation

of SECNAVINST 1920.6C end. (8), f 12e and Marine

Corps Order P5800.16A, Ch. 7, § 4007, If 2h(4) (Feb.

10, 2014), Mr. Carlborg was granted ten days to

October 9, 2015, through the litigation of this case. Cf. Kelly, 69

F.4th at 899 (“We hold that the Record Correction Board’s failure

to review or evaluate the effect the upgrade change in [a service

member’s] record had on his eligibility for military retirement

disability pay was arbitrary and capricious.”); see also AR 1867.

26 The Court finds no evidence that Mr. Carlborg’s PTSD was

not liberally considered by the BCNR in accordance with the

National Defense Authorization Act, 2018, Pub. L. 115-91, Title

V § 520 (“Consideration of additional medical evidence by Boards

for the Correction of Military Records and liberal consideration of

evidence relating to post-traumatic stress disorder or traumatic

brain injury.”) (Dec. 12, 2017).

35a

submit a post-board written response.27 On June 29,

2015, Mr. Carlborg requested an additional twenty

days to submit his post-board response, citing to his

need for assistance of counsel and a clinical

professional.28 The next day, the Staff Judge Advocate

(SJA)-acting on behalf of the Show Cause Authority

(i.e., Commanding General, Lieutenant General (0-9)

Robert B. Neller)-granted-in- part and denied-in-part

Mr. Carlborg’s request for additional time.

Specifically, the SJA extended Mr. Carlborg’s post

board submission deadline by an additional ten days,

until July 14, 2015. Mr. Carlborg timely submitted his

BOI response on July 13, 2015, and, thereafter,

submitted additional materials on July 21, 2015. AR

1623-25.

As an initial matter, Mr. Carlborg was not entitled

to the re quested extension of time. See SECNAVINST

1920.6C end. (8), f 12e (“The counsel for respondent

(or respondent, if no counsel was elected) shall be

provided a copy of the record of proceedings and shall

be provided an opportunity to submit written

comments to [the Chief of Naval Personnel

(CHNAVPERS)] or [Deputy Commandant (DC)]

(M&RA) within 10 days of service.”); see also Marine

Corps Order P5800.16A, Ch. 7, § 4007, 2h(4) (“The

respondent’s counsel (or respondent, if no counsel was

27 The ten-day clock started after the record of proceedings

was completed, including the publication of the BOI transcript.

28 Mr. Carlborg acknowledged receipt of the BOI report both

36a

elected) may submit an extension request to the

Alternate Show Cause Authority or Show Cause

Authority who directed the BOI. Such requests for

extension shall not exceed 20 calendar days.”).

Moreover, in granting his request in part (effectively

doubling the response deadline) and then affording

Mr. Carlborg the opportunity to supplement his initial

response, no credible claim of prejudice exists.

Addressing Mr. Carlborg’s challenge to the SJA’s

authority to decide his request for additional time, the

BCNR properly concluded the Commanding General,

Lieutenant General Neller, was an Alternative Show

Cause Authority under the applicable regulation. See

Marine Corps Order P5800.16A, Ch. 7, § 4001, ]| 4

(“Generals and lieutenant generals in command are

hereby delegated Show Cause Authority and are

hereinafter referred to as Alternative Show Cause

Authorities.”). As for the SJA’s authority to act upon

non-substantive requests for extensions of time, the

BCNR sanctioned the “common practice” under the

presumption of regularity. AR 1967; see Impresa

Construzioni Geom. Domenico Garufi v. United States,

238 F. 3d 1324, 1338 (Fed. Cir. 2001) (discussing the

“presumption of regularity” enjoyed by government

officials). At most, the SJA’s action amounted to

harmless error in that Mr. Carlborg ultimately

received much more than the requested twenty-day

in his June 30, 2015 request for an extension, and in his July

13, 2015 response. As a separate basis for requesting the

extension, Mr. Carlborg asserts that he requested the additional

twenty days because “his assigned military counsel was in the

process of a [Permanent Change of Station] move.” AR 1031.

37a

extension to respond to the BOI report.29 See Marine

Corps Order P5800.16A, Ch.7, § 4002, 1 2f (“This

section does not provide an additional procedural basis

of appeal or redress for officers”).

Mr. Carlborg’s contentions regarding his medical

evaluation prior to separation and the command’s

consideration of his PTSD are similarly unpersuasive.

Shortly before Mr. Carlborg’s October 9, 2015

separation, the Assistant Secretary of the Navy

(M&RA) directed that he be evaluated by a militaryaffiliated mental health provider “authorized to

conduct PTSD evaluations by 10 U.S.C. § 1177 para.

(a)(3)”— i.e., a psychologist or psychiatrist—to assess

whether Mr. Carlborg suffered from PTSD and, if so,

whether the disorder contributed to his misconduct.

AR 742; see id. at 693 (“[Assistant Secretary of the

Navy] (M&RA) wants a fresh eval from a

psychiatrist/psychologist. I’ve included the ASN

(M&RA)’s impression of [Robert Wilson, Psychiatrist,]

endorsement, below. If possible, then I’d recommend

the [course of action] that you suggested earlierhaving the Division Psych do his own independent

29 Before the BCNR, Mr. Carlborg alleged “Colonel [G. W.]

Riggs, the SJA had previously served as the legal advisor to the

BOI in violation of [Marine Corps Order P5800.16A, Ch. 7, §

4007, f 2e(2)(a)] . . . should have been disqualified as the SJA

providing advice to the General Court Martial Convening

Authority.” AR 1031. Even though Marine Corps Order

P5800.16A, Ch. 7, § 4007, t 2e(2)(a) precludes “[an] SJA to the

[General Court Martial Convening Authority] in the respondent’s

chain of command” from serving as a legal advisor, the Court

finds no evidence in the record suggesting the SJA was biased or

otherwise acted improperly as the legal advisor to Mr. Carlborg’s

BOI.

38a

eval of Carlborg to see (1) whether he actually

has PTSD, and (2) whether the PTSD contributed to

Carlborg’s misconduct.”), 30, 31 In accordance with this

directive and applicable authorities Division

Psychiatrist Commander Cowan reviewed Mr.

Carlborg’s medical records and interviewed him. In

his September 25, 2015 report, Commander Cowan

opined Mr. Carlborg did not present a chnical

diagnosis of PTSD, his prior diagnosis of PTSD did not

contribute to his misconduct, and Mr. Carlborg

remained fit for duty.32 Mr. Carlborg was again found

to be “psychiatrically fit for full duty” by Licensed

Marriage and Family Therapist Teshia B. Weeks four

30 See 10 U.S.C. § 1177(a)(3) (“In a case involving posttraumatic stress disorder, the medical examination shall be

performed by a chnical psychologist, psychiatrist, licensed chnical

social worker, or psychiatric advanced practice registered nurse.

In cases involving traumatic brain injury, the medical

examination may be performed by a physician, chnical

psychologist, psychiatrist, or other health care professional, as

appropriate”).

31 Since the Assistant Secretary of the Navy (M&RA)

explicitly directed (and later considered) the medical

examination at issue, at most, the chain of command’s

consideration (or lack thereof) was harmless. See Marine Corps

Order P5800.16A, Ch. 7, § 4002, 2(b)(1) (“The CO, GCMCAs in

the chain of command, and the Alternate Show Cause Authority

shall review this [medical evaluation] and any post-deployment

health assessments for consideration of any medical issues

affecting separation.”).

32 Despite email correspondence indicative of a command

wide intent or objective to separate Mr. Carlborg before he

39a

days before his discharge from the USMC.

Accordingly, there is no basis in law or fact to disturb

the BCNR’s conclusions regarding the propriety of the

post-BOI proceedings.

Voluntary Retirement Request

Mr. Carlborg asserts the USMC violated both 10

U.S.C. § 1186(a) and SECNAVINST 1920.6C by

fading to forward his March 12, 2015 voluntary

retirement request under either the TERA program or

a twenty-year retirement to the Secretary of the Navy

for consideration. Relying largely upon the closing of

his NJP proceeding in February 2015,33 and the March

12, 2015 Notification of Board of Inquiry, Mr. Carlborg

posits there was no disciplinary action or

administrative separation pending when he

contemporaneously submitted his March 12, 2015

reached his twenty-year anniversary in the USMC, the Court

finds no evidence in the record suggesting Commander Cowan or

any other mental health provider was biased or otherwise acted

improperly in rendering a medical opinion in this case. See, e.g.,

AR 698 (“Again, my concern is that if he were to refuse a

voluntary eval it would drag the process past the desired date.”);

id. at 701 (“[Psychologists don’t throw terms like sociopath

around loosely.”). Nor do Mr. Carlborg’s contentions in this

regard overcome the “presumption of regularity” enjoyed by

government officials. See Impresa, 238 F. 3d at 1338.

33 As detailed supra, the NJP hearing wherein Mr. Carlborg

pleaded guilty and was sentenced took place on February 5, 2015,

the letter of reprimand was issued on February 9, 2015, the NJP

Report was issued on February 19, 2015, and Mr. Carlborg

submitted a response to the NJP Report on February 25, 2015.

40a

retirement request. Upon this premise, Mr. Carlborg

argues he was improperly denied the right to have his

case for retirement forwarded to and considered by the

Secretary of the Navy.

Title 10, United States Code, Section 1186

provides in relevant part:

At any time during proceedings under this

chapter with respect to the removal of an officer

from active duty, the Secretary of the military

department concerned may grant a request by

the officer—

(1) for voluntary retirement, if the

officer is qualified for retirement.

10 U.S.C. § 1186(a); see also SECNAVINST 1920.6C,

end. (4), f 12a (“Officers . . . who are being considered

for removal from active duty per this instruction and

who are eligible for voluntary retirement under any

provision of law on the date of such removal, may,

upon approval by [Secretary of the Navy], be retired in

the highest grade in which they served satisfactorily .

. . .”). As noted by the BCNR, “officers pending legal

action or proceedings, administrative separation, or

disability separation or retirement are not eligible for

TERA.” See MARADMIN 155/14, 1 2(H) (Mar. 28,

2014), cited with approval at AR 9 (“The Marine Corps

set its TERA policy in MARADMIN 155/14 which

states officers pending administrative separation are

ineligible to retire under TERA.”). Mr. Carlborg’s

current suggestion that his TERA request thread the

needle between the conclusion of his NJP

proceedings and the commencement of his BOI

41a

proceedings is belied by the record and his

contemporaneous statements. In the February 19,

2015 NJP Report, Major General Beydler

“recommend[ed] Major Carlborg be required to show

cause for retention at a Board of Inquiry,” AR 89,

thereby initiating (at least preliminarily) the BOI

process. In fact, in his February 25, 2015 response to

the NJP Report, Mr. Carlborg stated: “I respectfully

request that I not be required to show cause for

retention at a Board of Inquiry and that my early

retirement package be approved.” AR 91. Further,

Mr. Carlborg’s March 12, 2015 TERA request is

notably titled “Voluntary Retirement Request In Lieu

Of Further Administrative Processing For Cause.” AR

104 (alteration to capitalization; emphasis added).

With regard to Mr. Carlborg’s twenty-year

the

BCNR found “no

retirement

request,

requirement that the Assistant Secretary of the

Navy [(M&RA)] review [Mr. Carlborg’s] retirement

request before his BOI” and concluded that “no

violations of regulation or statute occurred.” AR 9.

Engaging in a harmless error analysis, the BCNR

primarily weighed two considerations. First, the

BCNR found “it was reasonable for the [USMC] to

wait for the BOI recommendation since a retirement

grade recommendation was required before the

Assistant Secretary of the Navy would process the

request.” Id. Next, since the BOI provided Mr.

Carlborg an opportunity “to argue for an appropriate

retirement grade,” the BCNR determined that “he was

not prejudiced by the command’s decision not to

forward his request prior to the BOI.” Id. To that end,

Mr. Carlborg’s retirement request was later

42a

considered by the Assistant Secretary of the Navy

(M&RA). AR 81 (“I hereby deny Major Carlborg’s

retirement request and recommend that [he] be

separated with an Other Than Honorable

characterization of service. Your approval below will

effect the recommended action.”). As such, any

claimed error in the formal forwarding of his requests

on March 12, 2015, or thereafter, was harmless.

Contrary to Mr. Carlborg’s assertions, the USMC

did not violate applicable law or regulation. By

acknowledging the pending BOI, requesting that his

“misconduct case be closed” (i.e., future tense), and

“voluntarily requesting] early retirement in lieu of

further processing for administrative separation for

cause,” Mr. Carlborg acknowledged what the record

makes clear: at the time Mr. Carlborg submitted the

TERA request, he was not eligible for voluntary early

retirement.34 See id. (emphasis added). Put simply,

the Secretary of the Navy is not required to receive

and review retirement requests in cases where a

service member fails to meet the basic eligibility TERA

requirements. Nor did he complete twenty years of

military service prior to his separation. Accordingly,

the Court will not disturb the BCNR’s conclusion.

CONCLUSION

For the reasons set forth above, the Court

34 Paradoxically, under the same statutory and regulatory

scheme, Mr. Carlborg’s claimed entitlement to disability

retirement consideration would similarly render him ineligible

under the TERA program.

43a

concludes there is no basis in law or in fact to overturn

the decisions of the BCNR, remand this matter for

additional proceedings or further consideration, or

otherwise grant Mr. Carlborg the relief he seeks. To

this point, Mr. Carlborg’s current claims of unlawful

command influence- largely based upon the claims

rejected by the Court-cannot be advanced for the first

time in this Court.35 See Pittman v. United States, 135

Fed. Cl. 507, 528 (2017) (“Unlawful command

influence cannot be raised for the first time in this

court.”), aff’d, 753 F. App’x 904 (Fed. Cir. 2019) (per

curiam) (table); see also N.G. v. United States, 94 Fed.

Cl. 375, 388 (2010) (“Assuming arguendo, that

plaintiff has shown facts constituting, [unlawful]

command influence, plaintiff failed to adduce them

while arguing his case to the military. This is fatal to

this position.”). The Court considered Mr. Carlborg’s

remaining allegations-weaved throughout his filings

before both the BCNR and this Court-and finds them

unpersuasive. Accordingly, Plaintiffs Motion for

Judgment on the Administrative Record (ECF 43) is

DENIED and Defendant’s Cross-Motion for

Judgment on the Administrative Record (ECF 44) is

GRANTED. The remaining deadlines included in the

35 Similarly, in Count II of his complaint, Mr. Carlborg also

challenged the BCNR’s composition. Having failed to address this

issue in his motion for judgment on the administrative record, it

is waived. See Ironclad/EEIv. United States, 78 Fed. Cl. 351, 358

(2007) (“[U]nder the law of this circuit, arguments not presented

in a party’s principal brief to the court are typically deemed to

have been waived.”) (later quoting Novosteel SA v. United States,

284 F.3d 1261, 1274 (Fed. Cir. 2002)).

44a

Court’s April 25, 2023 and October 13, 2023 Orders

(ECF 36, 46) are VACATED. The Clerk of Court is

directed to ENTER Judgment accordingly.

It is so ORDERED.

/s/ARMANDO O. BONILLA

Armando O. Bonilla

Judge

45a

APPENDIX C

NOTE: This order is nonprecedential.

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

ROBERT S. CARLBORG,

Plaintiff-Appellant

UNITED STATES,

Defendant-Appellee

2024-1339

Appeal from the United States Court of Federal

Claims in No. l:21-cv-01994-AOB, Judge Armando O.

Bonilla.

ON PETITION FOR PANEL REHEARING AND

REHEARING EN BANC

Before MOORE, Chief Judge, LOURIE, DYK,

PROST, REYNA, TARANTO, CHEN, STOLL,

CUNNINGHAM, and STARK, Circuit Judges,i

PER CURIAM.

1 Circuit Judge Newman and Circuit Judge Hughes did not

participate.

46a

ORDER

On December 18, 2024, Robert S. Carlborg filed

a combined petition for panel rehearing and rehearing

en banc [EOF No. 40]. The petition was referred to the

panel that heard the appeal, and thereafter the

petition was referred to the circuit judges who are in

regular active service.

Upon consideration thereof,

IT IS ORDERED THAT:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

For the Court

Jarrett B. Perlow

Clerk of Court

January 27. 2025

Date

47a

APPENDIX D

U.S. Constitution Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

48a

10 U.S.C. § 638b

Sec. 504(a) of P.L. 112-81 125 STAT. 1389 (2011)

Voluntary retirement incentive

(a) Incentive for Voluntary Retirement for Certain

Officers.-The Secretary of Defense may authorize the

Secretary of a military department to provide a

voluntary retirement incentive payment in accordance

with this section to an officer of the armed forces under

that Secretary's jurisdiction who is specified in

subsection (c) as being eligible for such a payment.

(b) Limitations.(1) Any authority provided the Secretary of a

military department under this section shall expire as

specified by the Secretary of Defense, but not later

than December 31, 2018.

(2) The total number of officers who may be

provided a voluntary retirement incentive payment

under this section may not exceed 675 officers.

officer of the armed forces is eligible for a voluntary

retirement incentive payment under this section if the

officer(A) has served on active duty for more than

20 years, but not more than 29 years, on the approved

date of retirement;

(B) meets the minimum length of

commissioned service requirement for voluntary

retirement as a commissioned officer in accordance

with section 7311, 8323, or 9311 of this title, as

applicable to that officer;

49a

12 months or more remaining on active-duty service

before reaching the maximum retirement years of

active service for the member's grade as specified

in section 633 or 634 of this title;

(D) on the approved date of retirement, has

12 months or more remaining on active-duty service

before reaching the maximum retirement age under

any other provision of law; and

(E) meets any additional requirements for

such eligibility as is specified by the Secretary

concerned, including any requirement relating to

years of service, skill rating, military specialty or

competitive category, grade, any remaining period of

obligated service, or any combination thereof.

(2) The following officers are not eligible for a

voluntary retirement incentive payment under this

section:

(A) An officer being evaluated for disability

under chapter 61 of this title.

(B) An officer projected to be retired

under section 1201 or 1204 of this title.

disability severance pay under section 1212 of this

title.

(D) A member transferred to the temporary

disability retired list under section 1202 or 1205 of

this title.

(E) An officer subject to pending disciplinary

action or subject to administrative separation or

mandatory discharge under any other provision of law

or regulation, (d) Amount of Payment.-The amount of

the voluntary retirement incentive payment paid an

50a

officer under this section shall be an amount

determined by the Secretary concerned, but not to

exceed an amount equal to 12 times the amount of the

officer's monthly basic pay at the time of the officer's

retirement. The amount may be paid in a lump sum at

the time of retirement.

(e) Repayment for Members Who Return to Active

Duty.(1) Except as provided in paragraph (2), a

member of the armed forces who, after having received

all or part of a voluntary retirement incentive under

this section, returns to active duty shall have deducted

from each payment of basic pay, in such schedule of

monthly installments as the Secretary concerned shall

specify, until the total amount deducted from such

basic pay equals the total amount of voluntary

retirement incentive received.

(2) Members who are involuntarily recalled to

active duty or full-time National Guard duty under

any provision of law shall not be subject to this

subsection.

(3) The Secretary of Defense may waive, in

whole or in part, repayment required under paragraph

(1) if the Secretary determines that recovery would be

against equity and good conscience or would be

contrary to the best interest of the United States. The

authority in this paragraph may be delegated only to

the Under Secretary of Defense for Personnel and

Readiness and the Principal Deputy Under Secretary

of Defense of Personnel and Readiness.

51a

10 U.S.C. § 1175a

Voluntary separation pay and benefits

(a) In General.-Under regulations approved by the

Secretary of Defense, the Secretary concerned may

provide voluntary separation pay and benefits in

accordance with this section to eligible members of the

armed forces who are voluntarily separated from

active duty in the armed forces.

(b) Eligible Members. (1) Except as provided in paragraph (2), a

member of the armed forces is eligible for voluntary

separation pay and benefits under this section if the

member(A) has served on active duty for more than

6 years but not more than 20 years;

(B) has served at least 5 years of continuous

active duty immediately preceding the date of the

member's separation from active duty;

voluntary separation incentive under section 1175 of

this title;

(D) meets such other requirements as the

Secretary concerned may prescribe, which may

include requirements relating to

ft) years of service, skill, rating, military

specialty, or competitive category;

(ii) grade or rank;

(iii) remaining period of obligated

service; or

(iv) any combination of these factors; and

(E) requests separation from active duty.

52a

(2) The following members are not eligible for

voluntary separation pay and benefits under this

section:

(A) Members discharged with disabihty

severance pay under section 1212 of this title.

(B) Members transferred to the temporary

disability retired list under section 1202 or 1205 of

this title.

retirement under chapter 61 of this title.

(D) Members who have been previously

discharged with voluntary separation pay.

(E) Members who are subject to pending

disciplinary action or who are subject to

administrative separation or mandatory discharge

under any other provision of law or regulations.

(3) The Secretary concerned shall determine

each year the number of members to be separated, and

provided separation pay and benefits, under this

section during the fiscal year beginning in such year.

forces whose request for separation from active duty

under subsection (b)(1)(E) is approved shall be

separated from active duty.

(d) Additional Service in Ready Reserve.-Of the

number of members of the armed forces to be

separated from active duty in a fiscal year, as

determined under subsection (b)(3), the Secretary

concerned shall determine a number of such members,

in such skill and grade combinations as the Secretary

concerned shall designate, who shall serve in the

Ready Reserve, after separation from active duty, for

a period of not less than three years, as a condition of

53a

the receipt of voluntary separation pay and benefits

under this section.

(e) Separation Pay and Benefits.(1) A member of the armed forces who is

separated from active duty under subsection (c) shall

be paid voluntary separation pay in accordance with

subsection (g) in an amount determined by the

Secretary concerned pursuant to subsection (f).

(2) A member who is not entitled to retired or

retainer pay upon separation shall be entitled to the

benefits and services provided under(A) chapter 58 of this title during the 180day period beginning on the date the member is

separated (notwithstanding any termination date for

such benefits and services otherwise applicable under

the provisions of such chapter); and

(B) sections 452 and 453(c) of title 37.

(f) Computation of Voluntary Separation Pay.-The

Secretary concerned shall specify the amount of

voluntary separation pay that an individual or defined

group of members of the armed forces may be paid

under subsection (e)(1). No member may. receive as

voluntary separation pay an amount greater than four

times the full amount of separation pay for a member

of the same pay grade and years of service who is

involuntarily separated under section 1174 of this

title.

(g) Payment of Voluntary Separation Pay.(1) Voluntary separation pay under this section

may be paid in a single lump sum.

(2) In the case of a member of the armed forces

who, at the time of separation under subsection (c),

has completed at least 15 years, but less than 20 years,

54a

of active service, voluntary separation pay may be

paid, at the election of the Secretary concerned, in(A) a single lump sum;

(B) installments over a period not to exceed

10 years; or

installments.

(h) Coordination With Retired or Retainer Pay and

Disability Compensation. (1) A member who is paid voluntary separation

pay under this section and who later qualifies for

retired or retainer pay under this title or title 14 shall

have deducted from each payment of such retired or

retainer pay an amount, in such schedule of monthly

installments as the Secretary concerned shall specify,

until the total amount deducted from such retired or

retainer pay is equal to the total amount of voluntary

separation pay so paid.

(2) (A) Except as provided in subparagraphs (B)

and (C), a member who is paid voluntary separation

pay under this section shall not be deprived, by reason

of the member's receipt of such pay, of any disability

compensation to which the member is entitled under

the laws administered by the Secretary of Veterans

Affairs, but there shall be deducted from such

disability compensation an amount, in such schedule

of monthly installments as the Secretary concerned

shall specify, until the total amount deducted from

such disability compensation is equal to the total

amount of voluntary separation pay so paid, less the

amount of Federal income tax withheld from such pay

(such withholding being at the flat withholding rate

for Federal income tax withholding, as in effect

55a

pursuant to regulations prescribed under chapter

24 of the Internal Revenue Code of 1986).

(B) No deduction shall be made from the

disability compensation paid to an eligible disabled

uniformed services retiree under section 1413, or to an

eligible combat-related disabled uniformed services

retiree under section 1413a of this title, who is paid

voluntary separation pay under this section.

disability compensation paid to a member for the

amount of voluntary separation pay received by the

member because of an earlier discharge or release

from a period of active duty if the disability which is

the basis for that disability compensation was

incurred or aggravated during a later period of active

duty.

(3) The requirement under this subsection to

repay voluntary separation pay following retirement

from the armed forces does not apply to a member who

was eligible to retire at the time the member applied

and was accepted for voluntary separation pay and

benefits under this section.

(4) The Secretary concerned may waive the

requirement to repay voluntary separation pay under

paragraphs (1) and (2) if the Secretary determines

that recovery would be against equity and good

conscience or would be contrary to the best interests of

the United States.

(i) Retirement Defined.-In this section, the term

"retirement" includes a transfer to the Fleet Reserve

or Fleet Marine Corps Reserve.

(j) Repayment for Members Who Return to Active

Duty.-

56a

(1) Except as provided in paragraphs (2), (3),

and (4), a member of the armed forces who, after

having received all or part of voluntary separation pay

under this section, returns to active duty shall have

deducted from each payment of basic pay, in such

schedule of monthly installments as the Secretary

concerned shall specify, until the total amount

deducted from such basic pay equals the total amount

of voluntary separation pay received.

(2) Members who are involuntarily recalled to

active duty or full-time National Guard duty in

accordance with section 12301(a), 12301(b), 12301(g),

12302, 12303, 12304, 12304a, or 12304b of this

title or section 502(f)(1)(A) of title 32 shall not be

subject to this subsection.

(3) Members who are recalled or perform active

duty or full-time National Guard duty in accordance

with section 101(d)(1), 101(d)(2), 101(d)(5), 12301(d)

(insofar as the period served is less than 180

consecutive days with the consent of the member),

12319, or 12503 of this title, or section 114, 115, or

502(f)(1)(B) of title 32 (insofar as the period served is

less than 180 consecutive days with consent of the

member), shall not be subject to this subsection.

(4) This subsection shall not apply to a member

who(A) is involuntarily recalled to active duty or

full-time National Guard duty; and

(B) in the course of such duty, incurs a

service-connected

disability

rated

total

under section 1155 of title 38.

(5) The Secretary of Defense may waive, in

whole or in part, repayment required under paragraph

57a

(1) if the Secretary determines that recovery would be

against equity and good conscience or would be

contrary to the best interests of the United States. The

authority in this paragraph may be delegated only to

the Undersecretary of Defense for Personnel and

Readiness and the Principal Deputy Undersecretary

of Defense for Personnel and Readiness.

(k) Termination of Authority.(1) The authority to separate a member of the

armed forces from active duty under subsection (c)

shall terminate on December 31, 2025.

(2) A member who separates by the date

specified in paragraph (1) may continue to be provided

voluntary separation pay and benefits under this

section until the member has received the entire

amount of pay and benefits to which the member is

entitled under this section.

58a

10 U.S.C. § 1181

Authority to establish procedures to consider the

separation of officers for substandard performance of

duty and for certain other reasons

(a) Subject to such limitations as the Secretary of

Defense may prescribe, the Secretary of the military

department concerned shall prescribe, by regulation,

procedures for the review at any time of the record of

any commissioned officer (other than a commissioned

warrant officer or a retired officer) of the Regular

Army, Regular Navy, Regular Air Force, Regular

Marine Corps, or Regular Space Force to determine

whether such officer shall be required, because his

performance of duty has fallen below standards

prescribed by the Secretary of Defense, to show cause

for his retention on active duty.

(b) Subject to such limitations as the Secretary of

Defense may prescribe, the Secretary of the military

department concerned shall prescribe, by regulation,

procedures for the review at any time of the record of

any commissioned officer (other than a commissioned

warrant officer or a retired officer) of the Regular

Army, Regular Navy, Regular Air Force, Regular

Marine Corps, or Regular Space Force to determine

whether such officer should be required, because of

misconduct, because of moral or professional

dereliction, or because his retention is not clearly

consistent with the interests of national security, to

show cause for his retention on active duty.

59a

10 U.S.C. § 1182

Boards of inquiry

(a) The Secretary of the military department

concerned shall convene boards of inquiry at such

times and places as the Secretary may prescribe to

receive

evidence

and

make

findings

and

recommendations as to whether an officer who is

required under section 1181 of this title to show cause

for retention on active duty should be retained on

active duty. Each board of inquiry shall be composed

of not less than three officers having the qualifications

prescribed by section 1187 of this title.

(b) A board of inquiry shall give a fair and impartial

hearing to each officer required under section 1181 of

this title to show cause for retention on active duty.

(c)(1) If a board of inquiry determines that the

officer has failed to establish that he should be

retained on active duty, it shall recommend to the

Secretary concerned that the officer not be retained on

active duty.

(2) Under regulations prescribed by the

Secretary concerned, an officer as to whom a board of

inquiry makes a recommendation under paragraph (1)

that the officer not be retained on active duty may be

required to take leave pending the completion of the

officer's case under this chapter. The officer may be

required to begin such leave at any time following the

officer's receipt of the report of the board of inquiry,

including the board's recommendation for removal

from active duty, and the expiration of any period

allowed for submission by the officer of a rebuttal to

60a

that report. The leave may be continued until the date

on which action by the Secretary concerned on the

officer's case is completed or may be terminated at any

earlier time.

(d)(1)(A) If a board of inquiry determines that an

officer should be retained, the officer's case is closed

unless the board substantiated a basis for separation

and, upon recommendation from the service chief, the

Secretary of the military department determines that

the hoard's retention recommendation is clearly

erroneous in light of the evidence considered by the

board, a miscarriage of justice, and inconsistent with

the best interest of the service. In such cases, the

Secretary of the military department may separate

the officer after providing a written justification of the

decision to separate.

(B) An officer considered for separation under

this section must be notified and afforded the

opportunity to present matters for the Secretary of the

military department to consider when making the

separation determination. The Secretary of the

military department shall review the case to

determine whether the retention recommendation of

the board is clearly contrary to the substantial weight

of the evidence in the record and whether the officer's

conduct discredits the Service, adversely affects good

order and discipline, and adversely affects the officer's

performance of duty.

officer under this section shall be reserved for unusual

cases where such action is essential to the interests of

justice, discipline, and proper administration of the

service.

61a

(2) Authority to direct administrative

separation after a board of inquiry's recommendation

to retain an officer may only be delegated to a civilian

official within a military department appointed by the

President, by and with the advice and consent of the

Senate. The least favorable characterization in such

cases will be general (under honorable conditions).

(3) An officer who is required to show cause for

retention on active duty under subsection (a) of section

1181 of this title and who is determined under

paragraph (1) to have established that he should be

retained on active duty may not again be required to

show cause for retention on active duty under such

subsection within the one-year period beginning on

the date of that determination.

(4)(A) Subject to subparagraph (B), an officer

who is required to show cause for retention on active

duty under subsection (b) of section 1181 of this

title and who is determined under paragraph (1) to

have established that he should be retained on active

duty may again be required to show cause for

retention at any time.

(B) An officer who has been required to show

cause for retention on active duty under subsection (b)

of section 1181 of this title and who is thereafter

retained on active duty may not again be required to

show cause for retention on active duty under such

subsection solely because of conduct which was the

subject of the previous proceedings, unless the

findings or recommendations of the board of inquiry

that considered his case are determined to have been

obtained by fraud or collusion.

62a

10 U.S.C. § 1186

Officer considered for removal:

voluntary retirement or discharge

(a) At any time during proceedings under this

chapter with respect to the removal of an officer from

active duty, the Secretary of the military department

concerned may grant a request by the officer(1) for voluntary retirement, if the officer is

qualified for retirement; or

(2) for discharge in accordance with subsection

(b)(2).

(b) An officer removed from active duty

under section 1184 of this title shall(1) if eligible for voluntary retirement under

any provision of law on the date of such removal, be

retired in the grade and with the retired pay for which

he would be eligible if retired under such provision;

and

(2) if ineligible for voluntary retirement under

any provision of law on the date of such removal(A) be honorably discharged in the grade

then held, in the case of an officer whose case was

brought under subsection (a) of section 1181 of this

title; or

(B) be discharged in the grade then held, in

the case of an officer whose case was brought under

subsection (b) of section 1181 of this title.

(b)(2) is entitled, if eligible therefor, to separation pay

under section 1174(a)(2) of this title.

63a

10 U.S.C. § 8323

Officers: 20 years

(a) (1) An officer of the Navy or the Marine Corps

who applies for retirement after completing more than

20 years of active service, of which at least 10 years

was service as a commissioned officer, may, in the

discretion of the President, be retired on the first day

of any month designated by the President.

(2)(A) The Secretary of Defense may authorize

the Secretary of the Navy, during the period specified

in subparagraph (B), to reduce the requirement under

paragraph (1) for at least 10 years of active service as

a commissioned officer to a period (determined by the

Secretary) of not less than eight years. (B) The period

specified in this subparagraph is the period beginning

on January 7, 2011, and ending on September 30,

2018.

(b) For the purposes of this section(1) an officer's years of active service are

computed by adding all his active service in the armed

forces; and

(2) his years of service as a commissioned officer

are computed by adding all his active service in the

armed forces under permanent or temporary

appointments in grades above warrant officer, W—1.

section is the grade determined under section 1370 or

1370a of this title, as applicable.

(d) A warrant officer who retires under this section

may elect to be placed on the retired fist in the highest

grade and with the highest retired pay to which he is

entitled under any provision of this title. If the pay of

64a

that highest grade is less than the pay of any warrant

grade satisfactorily held by him on active duty, his

retired pay shall be based on the higher pay.

(e) Unless otherwise entitled to higher pay, an

officer retired under this section is entitled to retired

pay computed under section 8333 of this title.

(f) Officers of the Navy Reserve and the Marine

Corps Reserve who were transferred to the Retired

Reserve from an honorary retired fist under section

213(b) of the Armed Forces Reserve Act of 1952 (66

Stat. 485), or are transferred to the Retired Reserve

under section 8327 of this title, may be retired under

this section, notwithstanding their retired status, if

they are otherwise eligible.

65a

28 U.S.C. § 1491

Claims against United States generally; actions

involving Tennessee Valley Authority

(a)(1) The United States Court of Federal Claims

shall have jurisdiction to render judgment upon any

claim 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. For the purpose of this paragraph, an

express or implied contract with the Army and Air

Force Exchange Service, Navy Exchanges, Marine

Corps Exchanges, Coast Guard Exchanges, or

Exchange Councils of the National Aeronautics and

Space Administration shall be considered an express

or implied contract with the United States.

(2) To provide an entire remedy and to complete

the relief afforded by the judgment, the court may, as

an incident of and collateral to any such judgment,

issue orders directing restoration to office or position,

placement in appropriate duty or retirement status,

and correction of applicable records, and such orders

may be issued to any appropriate official of the United

States. In any case within its jurisdiction, the court

shall have the power to remand appropriate matters

to any administrative or executive body or official with

such direction as it may deem proper and just. The

Court of Federal Claims shall have jurisdiction to

render judgment upon any claim by or against, or

dispute with, a contractor arising under section

7104(b)(1) of title 41, including a dispute concerning

66a

termination of a contract, rights in tangible or

intangible property, compbance with cost accounting

standards, and other nonmonetary disputes on which

a decision of the contracting officer has been issued

under section 6 of that Act.

(b)(1) Both the United States Court of Federal

Claims and the district courts of the United States

shall have jurisdiction to render judgment on an

action by an interested party objecting to a solicitation

by a Federal agency for bids or proposals for a

proposed contract or to a proposed award or the award

of a contract or any alleged violation of statute or

regulation in connection with a procurement or a

proposed procurement. Both the United States Court

of Federal Claims and the district courts of the United

States shall have jurisdiction to entertain such an

action without regard to whether suit is instituted

before or after the contract is awarded.

(2) To afford relief in such an action, the courts

may award any relief that the court considers proper,

including declaratory and injunctive relief except that

any monetary relief shall be limited to bid preparation

and proposal costs.

(3) In exercising jurisdiction under this

subsection, the courts shall give due regard to the

interests of national defense and national security and

the need for expeditious resolution of the action.

(4) In any action under this subsection, the

courts shall review the agency's decision pursuant to

the standards set forth in section 706 of title 5.

(5) If an interested party who is a member of the

private sector commences an action described in

paragraph (1) with respect to a pubhc-private

67a

competition conducted under Office of Management

and Budget Circular A-76 regarding the performance

of an activity or function of a Federal agency, or a

decision to convert a function performed by Federal

employees to private sector performance without a

competition under Office of Management and Budget

Circular A-76, then an interested party described

in section 3551(2)(B) of title 31 shall be entitled to

intervene in that action.

(6) Jurisdiction over any action described in

paragraph (1) arising out of a maritime contract, or a

solicitation for a proposed maritime contract, shall be

governed by this section and shall not be subject to the

jurisdiction of the district courts of the United States

under the Suits in Admiralty Act (chapter 309 of title

46) or the Public Vessels Act (chapter 311 of title 46).

United States Court of Federal Claims jurisdiction of

any civil action within the exclusive jurisdiction of the

Court of International Trade, or of any action against,

or founded on conduct of, the Tennessee Valley

Authority, or to amend or modify the provisions of the

Tennessee Valley Authority Act of 1933 with respect

to actions by or against the Authority.

68a

37 U.S.C. § 204

Entitlement

(a) The following persons are entitled to the basic

pay of the pay grade to which assigned or distributed,

in accordance with their years of service computed

under section 205 of this title(1) a member of a uniformed service who is on

active duty; and

(2) a member of a uniformed service, or a

member of the National Guard who is not a Reserve of

the Army or the Air Force, who is participating in full

time training, training duty with pay, or other full

time duty, provided by law, including participation in

exercises or the performance of duty under section

10302, 10305, 10502, or 12402 of title 10, or section

503, 504, 505, or 506 of title 32.

(b) For the purposes of subsection (a), under

regulations prescribed by the President, the time

necessary for a member of a uniformed service who is

called or ordered to active duty for a period of more

than 30 days to travel from his home to his first duty

station and from his last duty station to his home, by

the mode of transportation authorized in his call or

orders, is considered active duty.

(c)(1) A member of the National Guard who is

called into Federal service for a period of 30 days or

less is entitled to basic pay from the date on which the

member, in person or by authorized telephonic or

electronic means, contacts the member's unit.

(2) Paragraph (1) does not authorize any

expenditure to be paid for a period before the date on

69a

which the unit receives the member's contact provided

under such paragraph.

(3) The Secretary of the Army, with respect to

the Army National Guard, and the Secretary of the Air

Force, with respect to the Air National Guard, shall

prescribe such regulations as may be necessary to

carry out this subsection.

(d) Full-time training, training duty with pay, or

other full-time duty performed by a member of the

Army National Guard of the United States or the Air

National Guard of the United States in his status as a

member of the National Guard, is active duty for the

purposes of this section.

(e) A payment accruing under any law to a member

of a uniformed service incident to his release from

active duty or for his return home incident to that

release may be paid to him before his departure from

his last duty station, whether or not he actually

performs the travel involved. If a member receives a

payment under this subsection but dies before that

payment would have been made but for this

subsection, no part of that payment may be recovered

by the United States.

(f) A cadet of the United States Military Academy

or the United States Air Force Academy, or a

midshipman of the United States Naval Academy,

who, upon graduation from one of those academies, is

appointed as a second lieutenant of the Army or the

Air Force is entitled to the basic pay of pay grade 0-1

beginning upon the date of his graduation.

(g)(1) A member of a reserve component of a

uniformed service is entitled to the pay and

allowances provided by law or regulation for a member

70a

of a regular component of a uniformed service of

corresponding grade and length of service whenever

such member is physically disabled as the result of an

injury, illness, or disease incurred or aggravated(A) in line of duty while performing active

duty;

(B) in line of duty while performing inactiveduty training (other than work or study in connection

with a correspondence course of an armed force or

attendance in an inactive status at an educational

institution under the sponsorship of an armed force or

the Public Health Service);

duty or training;

(D) in line of duty while remaining overnight

immediately before the commencement of inactiveduty training, or while remaining overnight, between

successive periods of inactive-duty training, at or in

the vicinity of the site of the inactive-duty training; or

(E) in line of duty while(i) serving on funeral honors duty

under section 12503 of title 10 or section 115 of title

32;

(ii) travehng to or from the place at which

the duty was to be performed; or

(iii) remaining overnight at or in the

vicinity of that place immediately before so serving, if

the place is outside reasonable commuting distance

from the member's residence.

(2) In the case of a member who receives earned

income from nonmilitary employment or selfemployment performed in any month in which the

member is otherwise entitled to pay and allowances

71a

under paragraph (1), the total pay and allowances

shall be reduced by the amount of such income. In

calculating earned income for the purpose of the

preceding sentence income from an income protection

plan, vacation pay, or sick leave which the member

elects to receive shall be considered.

(h)(1) A member of a reserve component of a

uniformed service who is physically able to perform

his military duties, is entitled, upon request, to a

portion of the monthly pay and allowances provided by

law or regulation for a member of a regular component

of a uniformed service of corresponding grade and

length of service for each month for which the member

demonstrates a loss of earned income from

nonmilitary employment or self-employment as a

result of an injury, illness, or disease incurred or

aggravated(A) in line of duty while performing active

duty;

(B) in line of duty while performing inactiveduty training (other than work or study in connection

with a correspondence course of an armed force or

attendance in an inactive status at an educational

institution under the sponsorship of an armed force or

the Public Health Service);

duty or training;

(D) in line of duty while remaining overnight

immediately before the commencement of inactiveduty training, or while remaining overnight, between

successive periods of inactive-duty training, at or in

the vicinity of the site of the inactive-duty training; or

(E) in line of duty while-

72a

(i) serving on funeral honors duty

under section 12503 of title 10 or section 115 of title

32;

(ii) traveling to or from the place at which

the duty was to be performed; or

(iii) remaining overnight at or in the

vicinity of that place immediately before so serving, if

the place is outside reasonable commuting distance

from the member's residence.

(2) The monthly entitlement may not exceed the

member's demonstrated loss of earned income from

nonmilitary or self-employment. In calculating such

loss of income, income from an income protection plan,

vacation pay, or sick leave which the member elects to

receive shall be considered.

(i)(l) The total amount of pay and allowances paid

under subsections (g) and (h) and compensation paid

under section 206(a) of this title for any period may

not exceed the amount of pay and allowances provided

by law or regulation for a member of a regular

component of a uniformed service of corresponding

grade and length of service for that period.

(2) Pay and allowances may not be paid under

subsection (g) or (h) for a period of more than six

months. The Secretary concerned may extend such

period in any case if the Secretary determines that it

is in the interests of fairness and equity to do so.

(3) A member is not entitled to benefits under

subsection (g) or (h) if the injury, illness, disease, or

aggravation of an injury, illness, or disease is the

result of the gross negligence or misconduct of the

member.

(4) Regulations with respect to procedures for

73a

paying pay and allowances under subsections (g) and

(h) shall be prescribed(A) by the Secretary of Defense for the

armed forces under the jurisdiction of the Secretary;

and

(B) by the Secretary of Homeland Security

for the Coast Guard when the Coast Guard is not

operating as a service in the Navy.

(j) A member of the uniformed services who is

entitled to medical or dental care under section 1074a

of title 10 is entitled to travel and transportation

allowances, or a monetary allowance in place thereof,

for necessary travel incident to such care, and return

to his home upon discharge from treatment.

74a

APPENDIX E

Public Law 102-484, 106 Stat. 2702 (1993)

SEC. 4403. TEMPORARY EARLY RETIREMENT

AUTHORITY.

(a) PURPOSE.—The purpose of this section is to

provide the Secretary of Defense a temporary

additional force management tool with which to effect

the drawdown of military forces through 1995.

(b) RETIREMENT FOR 15 TO 20 YEARS OF

SERVICE.—

(1) During the active force drawdown period,

the Secretary of the Army may—

(A) apply the provisions of section 3911 of

title 10, United States Code, to a regular or reserve

commissioned officer with at least 15 but less than 20

years of service by substituting "at least 15 years" for

"at least 20 years" in subsection (a) of that section;

(B) apply the provisions of section 3914 of

such title to an enlisted member with at least 15 but

less than 20 years of service by substituting "at least

15" for "at least 20"; and

such title to a warrant officer with at least 15 but less

than 20 years of service by substituting "at least 15

years" for "at least 20 years".

(2) During the active force drawdown period,

the Secretary of the Navy may—

(A) apply the provisions of section 6323 of

title 10, United States Code, to an officer with at least

15 but less than 20 years of service by substituting "at

least 15 years" for "at least 20 years" in subsection (a)

of that section;

75a

(B) apply the provisions of section 6330 of

such title to an enlisted member of the Navy or Marine

Corps with at least 15 but less than 20 years of service

by substituting "15 or more years" for "20 or more

years" in the first sentence of subsection (a), in the

case of an enlisted member of the Navy, and in the

second sentence of subsection (b), in the case of an

enlisted member of the Marine Corps; and

such title to a warrant officer with at least 15 but less

than 20 years of service by substituting "at least 15

years" for "at least 20 years".

(3) During the active force drawdown period,

the Secretary of the Air Force may—

(A) apply the provisions of section 8911 of

title 10, United States Code, to a regular or reserve

commissioned officer with at least 15 but less than 20

years of service by substituting "at least 15 years" for

"at least 20 years" in subsection (a) of that section; and

(B) apply the provisions of section 8914 of

such title to an enlisted member with at least 15 but

less than less than 20 years of service by substituting

"at least 15" for "at least 20".

In order to be eligible for retirement by reason of the

authority provided in subsection (b), a member of the

Armed Forces shall—

(1) register on the registry maintained under

section 1143a(b) of title 10, United States Code (as

added by section 4462(a)); and

(2) receive information regarding public and

community service job opportunities from the

Secretary of Defense or another source approved by

76a

the Secretary and be afforded, on request, counseling

on such job opportunities.

(d) REGULATIONS.—The Secretary of each

military department may prescribe regulations and

policies regarding the criteria for eligibility for early

retirement by reason of eligibility pursuant to this

section and for the approval of applications for such

retirement. Such criteria may include factors such as

grade, years of service, and skill.

(e) COMPUTATION OF RETIRED PAY.—Retired

or retainer pay of a member retired (or transferred to

the Fleet Reserve or Fleet Marine Corps Reserve)

under a provision of title 10, United States Code, by

reason of eligibility pursuant to subsection (b) shall be

reduced by l/12th of 1 percent for each full month by

which the number of months of active service of the

member are less than 240 as of the date of the

member's retirement (or transfer to the Fleet Reserve

or Fleet Marine Corps Reserve).

(f) FUNDING.—

(1) Notwithstandmg section 1463 of title 10,

United States Code, and subject to the availability of

appropriations for this purpose, the Secretary of each

military department shall provide in accordance with

this section for the payment of retired pay payable

during the fiscal years covered by the other provisions

of this subsection to members of the Armed Forces

under the jurisdiction of that Secretary who are being

retired under the authority of this section.

(2) In each fiscal year in which the Secretary of

a military department retires a member of the Armed

Forces under the authority of this section, the

Secretary shall credit to a subaccount (which the

77a

Secretary shall establish) within the appropriation

account for that fiscal year for pay and allowances of

active duty members of the Armed Forces under the

jurisdiction of that Secretary such amount as is

necessary to pay the retired pay payable to such

member for the entire initial period (determined

under paragraph (3)) of the entitlement of that

member to receive retired pay.

(3) The initial period applicable under

paragraph (2) in the case of a retired member referred

to in that paragraph is the number of years (and any

fraction of a year) that is equal to the difference

between 20 years and the number of years (and any

fraction of a year) of service that were completed by

the member (as computed under the provision of law

used for determining the member's years of service for

eligibility to retirement) before being retired under the

authority of this section.

(4) The Secretary shall pay the member's

retired pay for such initial period out or amounts

credited to the subaccount under paragraph (2). The

amounts so credited with respect to that member shall

remain available for payment for that period.

(5) For purposes of this subsection—

(A) the transfer of an enlisted member of the

Navy or Marine Corps to the Fleet Reserve or Fleet

Marine Corps Reserve shall be treated as a

retirement; and

(B) the term "retired pay" shall be treated as

including retainer pay.

(g)

COORDINATION

WITH

OTHER

SEPARATION PROVISIONS

78a

(1) A member of the Armed Forces retired under

the authority of this section is not entitled to benefits

under section 1174, 1174a, or 1175 of title 10, United

States Code.

(2) Section 638a(b)(4)(C) of title 10, United

States Code, is amended by inserting "(other than by

reason of eligibility pursuant to section 4403 of the

National Defense Authorization Act for Fiscal Year

1993)" after "any provision of law”.

(h) MEMBERS RECEIVING SSB OR VSL—The

Secretary of a military department may retire (or

transfer to the Fleet Reserve or Fleet Marine Corps

Reserve) pursuant to the authority provided by this

section a member of a reserve component who before

the date of the enactment of this Act was separated

from active duty pursuant to an agreement entered

into under section 1174a or 1175 of title 10, United

States Code. The retired or retainer pay of any such

member so retired (or transferred) by reason of the

authority provided in this section shall be reduced by

the amount of any payment to such member before the

date of such retirement under the provisions of such

agreement under section 1174a orll75 of title 10,

United States Code.

(i) ACTIVE FORCE DRAWDOWN PERIOD.—For

purposes of this section, the active force drawdown

period is the period beginning on the date of the

enactment of this Act and ending on October 1,1995.

79a

Public Law 112-81, 125 Stat. 1390 (2011)

Sec. 504(b)

(b) REINSTATEMENT OF CERTAIN

TEMPORARY EARLY RETIREMENT AUTHORITY

(1) REINSTATEMENT.—Subsection (i) of

section 4403 of the National Defense Authorization

Act for Fiscal Year 1993 (10 U.S.C. 1293 note) is

amended—

(A) by inserting “(1)” before “the period”; and

(B) by inserting before the period at the end

the following:

and (2) the period beginning on the

date of the enactment of the National Defense

Authorization Act for Fiscal Year 2012 and ending on

December 31, 2018”.

(2)

INAPPLICABILITY

CERTAIN

PROVISIONS.—Such section is further amended by

striking subsection (c) and inserting the following new

subsection (c):

INAPPLICABILITY

CERTAIN

“(c)

PROVISIONS.

“(1) INCREASED RETIRED PAY FOR

PUBLIC

COMMUNITY

SERVICE.—The

provisions of section 4464 of this Act (10 U.S.C. 1143a

note) shall not apply with respect to a member or

former member retired by reason of eligibility under

this section during the active force drawdown period

specified in subsection (i)(2).

“(2) COAST GUARD AND NOAA.—During the

period specified in subsection (i)(2), this section does

not apply as follows:

“(A) To members of the Coast Guard,

notwithstanding section 542(d) of the National

7-3

80a

Defense Authorization Act for Fiscal Year 1995 (10

U.S.C. 1293 note).

“(B) To members of the commissioned corps

of the

National Oceanic and Atmospheric

Administration, notwithstanding section 566(c) of the

National Defense Authorization Act for Fiscal Year

1995 (Public Law 104- 106; 10 U.S.C. 1293 note).”.

(3)

COORDINATION

WITH

OTHER

SEPARATION PROVISIONS.— Such section is

further amended—

(A) in subsection (g), by striking 1174a, or

1175” and inserting “or 1175a”; and

(B) in subsection (h)—

(i) in the subsection heading, by striking

“SSB OR VSI” and inserting “SSB, VSI, OR VSP”;

(ii) by inserting before the period at the

end of the first sentence the following: “or who before

the date of the enactment of the National Defense

Authorization Act for Fiscal Year 2012 was separated

from active duty pursuant to an agreement entered

into under section 1175a of such title”; and

(iii) in the second sentence, by striking

“under section 1174a or 1175 of title 10, United States

Code”.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.