Petition for Writ of Certiorari — Ernest F. Mitchell, Petitioner v. Hung Cao, Acting Secretary of the Navy
Supreme Court briefJun 11, 2026
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No. 25In the
Supreme Court of the United States
ERNEST MITCHELL,
Petitioner,
v.
HUNG CAO,
Respondent.
On Petition for a Writ of Certiorari to the
United States District Court for the District of Columbia
PETITION FOR A WRIT OF CERTIORARI
David P. Sheldon
Law Offices of
David P. Sheldon
100 M Street, S.E., Suite 600
Washington, DC 20003
(202) 552-0018
davidsheldon@
militarydefense.com
393308
(800) 274-3321 • (800) 359-6859
i
QUESTION PRESENTED
Lieutenant (“LT”) Ernest F. Mitchell, United States
Navy, served our nation on active duty for fifteen years.
He was nominated by the President, and confirmed by
the Senate, for promotion to the rank of Lieutenant
Commander. LT Mitchell’s promotion was delayed,
however, more than the statutory maximum Congress
mandated and allowed for under 10 U.S.C. § 624(d)(5),
which states that the “appointment of an officer may not be
delayed under this subsection for . . . more than 18-months
after the date on which such officer would otherwise have
been appointed.” LT Mitchell filed an application with the
Board for the Correction of Naval Records (“BCNR”)
which declined to find that LT Mitchell was promoted by
operation of law following the end of the 18-month period.
LT Mitchell brought suit in the United States District
Court for the District of Columbia, which affirmed the
BCNR’s decision, and then appealed to the United States
Court of Appeals for the District of Columbia Circuit,
which also affirmed the District Court.
This raises the question:
1. Did the Circuit Court’s holding that LT Mitchell
was not promoted by operation of law, when he
was retained on the promotion list longer than
the 18 month statutory maximum mandated by
Congress in 10 U.S.C. § 624(d)(5), impermissibly
override Congressional authority to “make
Rules for the Government and Regulation of the
land and naval Forces” under Article I, Section
8, Clause 14 of the Constitution of the United
States?
ii
LIST OF PARTIES
A list of all parties to the proceeding in the Court
whose judgment is the subject of this petition is as follows:
Lieutenant Ernest F. Mitchell, Petitioner.
The Honorable Hung Cao, pursuant to his official
capacity as acting Secretary of the Navy, and here
automatically substituted under Rule 35(3) of the Rules
of the Supreme Court of the United States, Respondent.
iii
RELATED CASES
Below is a list of all proceedings in other courts that
are directly related to the case in this Court:
• Mitchell v. Del Toro, No. 1:23-cv-3775, U.S.
District Court for the District of Columbia.
Judgment entered November 26, 2024.
• Mitchell v. Phelan, No. 25-5013, U.S. Court of
Appeals for the District of Columbia Circuit.
Judgment entered March 13, 2026.
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i
LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii
PETITION FOR WRIT OF CERTIORARI . . . . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONST I T U T IONA L A N D STAT U T ORY
PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 1
PRELIMINARY STATEMENT OF THE LAW . . . . . 3
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 5
REASONS FOR GRANTING THE PETITION . . . . 10
I.
Congressional Intent to Promote By
Operation of Law is Clear . . . . . . . . . . . . . . . . . . 12
v
Table of Contents
Page
II. The Judiciary Cannot Improve Upon
Congressional Intent . . . . . . . . . . . . . . . . . . . . . . 15
III. Congress May Provide for Promotion by
Operation of Law . . . . . . . . . . . . . . . . . . . . . . . . . 22
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
vi
TABLE OF APPENDICES
Page
A P P E N DI X A — O P I N ION O F T H E
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLU M BI A
CIRCUIT, FILED MARCH 13, 2026 . . . . . . . . . . . . 1a
APPENDIX B — MEMORANDUM OPINION OF
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBI A ,
FILED NOVEMBER 26, 2024 . . . . . . . . . . . . . . . . . 9a
A P P E N DI X C — O P I N ION O F T H E
BOARD FOR CORRECTION OF NAVAL
RECORDS, DEPARTMENT OF THE NAVY,
FILED APRIL 17, 2023 . . . . . . . . . . . . . . . . . . . . . . 36a
A P P EN DI X D — C ON S T I T U T IONA L
STATUTORY PROVISIONS INVOLVED . . . . . . 93a
vii
TABLE OF CITED AUTHORITIES
Page
Cases
Alaska Dep’t of Env’t Conservation v. EPA,
540 U.S. 461 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Baker v. Carr,
369 U.S. 186 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Barnes v. United States,
57 Fed.Cl. 204 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Barnhart v. Peabody Coal Co.,
537 U.S. 149 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Bigelow v. Peters,
1:98-cv-00536, ECF No. 31 (D.D.C. 1998) . . . . . . . . 21
Burnap v. United States,
252 U.S. 512 (1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc.,
467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Cloud v. United States,
43 Ct. Cl. 69 (1907) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Connecticut Nat’l Bank v. Germain,
503 U.S. 249 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Dysart v. U.S.,
369 F.3d 1303 (Fed. Cir. 2004) . . . . . . 16, 17, 20, 21, 24
viii
Cited Authorities
Page
Food and Drug Admin. v. Brown & Williamson
Tobacco Corp.,
529 U.S. 120 (2000), superseded by statute on
other grounds, Food and Drug Admin. v.
Wages and White Lion Investments, L.L.C.,
604 U.S. 542 (2025) . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
Freytag v. Commissioner,
501 U.S. 868 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Gustafson v. Alloyd Co.,
513 U.S. 561 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Lewis v. United States,
458 F.3d 1372 (Fed. Cir. 2006) . . . . . . . . . . . . . . . 17, 20
Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . . . 23, 24
Mitchell v. Del Toro,
2024 WL 4891906 (D.D.C. November 26, 2024) . . . . 1
Mitchell v. Phelan,
169 F.4th 1113 (D.C. Cir 2025) . . . . . . . . . . . . . . . . . . . . . 1
Pocket Veto Case,
279 U.S. 655 (1929) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ix
Cited Authorities
Page
R.R. Donnelley & Sons v.
Vanguard Transp. Systems, Inc.,
641 F. Supp. 2d 707 (N.D. Ill. 2009) . . . . . . . . . . . . . . 25
Rolader v. U.S.,
42 Fed. Cl. 782 (1999) . . . . . . . . . . . . . . . . . . . 16, 21, 22
TRW Inc. v. Andrews,
534 U.S. 19 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Constitutional Provisions
Article 15, Uniform Code of Military Justice . . . . . . . . . 7
Articles 92 and 133, Uniform Code of Military Justice . . 7
U.S. Const. A rt. I, § 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
U.S. Const. A rt. I, § 8, Cl. 14 . . . . . . . . . . . . . 1, 10, 22, 24
U.S. Const. A rt. II, § 2, Cl. 2 . . . . . . . . . . . . . . 2, 6, 10, 22
Statutes
5 U.S.C. § 706(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10 U.S.C. § 611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
10 U.S.C. §§ 611-641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
10 U.S.C. § 611(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
x
Cited Authorities
Page
10 U.S.C. § 617(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
10 U.S.C. § 618(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
10 U.S.C. § 618(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
10 U.S.C. § 618(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 16
10 U.S.C. § 619 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
10 U.S.C. § 624 . . . . . . . . . . . . . 3, 6, 9, 11, 14, 15, 16, 18-22
10 U.S.C. § 624(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10 U.S.C. § 624(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
10 U.S.C. § 624(a)(2) . . . . . . . . . . . . . . . . . . . . . . 4, 9, 16, 17
10 U.S.C. § 624(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
10 U.S.C. § 624(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
10 U.S.C. § 624(d) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 9, 17
10 U.S.C. § 624(d)(1) . . . . . . . . . . . . . . . . . . . 4, 9, 18, 19, 20
10 U.S.C. § 624(d)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10 U.S.C. § 624(d)(1)(e) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 17
10 U.S.C. § 624(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
xi
Cited Authorities
Page
10 U.S.C. § 624(d)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10 U.S.C. § 624(d)(4)(A) . . . . . . . . . . . . . . . . . . . . . . . . 5, 15
10 U.S.C. § 624(d)(5) . . . . . . . . . . . . 2, 5, 8-17, 19, 20, 22, 24
10 U.S.C. § 626(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10 U.S.C. § 629(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10 U.S.C. § 629(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10 U.S.C. § 629(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 13
10 U.S.C. § 741(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
10 U.S.C. § 815 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10 U.S.C. § 933 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10 U.S.C. § 992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10 U.S.C. § 1552 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10 U.S.C. § 1552(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
28 U.S.C. § 505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
50 U.S.C. § 1622(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
National Defense Act of 1916, ch. 134, § 10 . . . . . . . . . . 13
xii
Cited Authorities
Page
Other Authorities
14 Rev. Stat. § 1168 (2d ed. 1878), 18 Stat. pt. 1 . . . . . . 13
14 Rev. Stat. § 1207 (2d ed. 1878), 18 Stat. pt. 1 . . . . . . 13
18 Stat. pt. 3, ch. 458, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . 13
1981 U.S. Code Cong. & Ad. News . . . . . . . . . . . . . . 14, 15
Army Regulation 624–100, Promotion of Officers
on Active Duty, Update, ch. 2–10(b) . . . . . . . . . . . . . 21
H.R. Rep. No. 97-141, 97th Cong., 1st Sess. 14
(1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
1981 U.S. Code Cong. & Ad. News 37 . . . . . . . . . . . 14, 15
Pub. L. No. 97-22, 95 Stat. 127 . . . . . . . . . . . . . . . . . . . . 14
The Federalist No. 76 (James Madison) . . . . . . . . . . . . 11
W. Winthrop, Digest of Opinions of the JudgeAdvocates General of the Army (C. McClure
rev. ed. 1901). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1
PETITION FOR WRIT OF CERTIORARI
Petitioner, LT Ernest F. Mitchell, respectfully
petitions for a writ of certiorari to review the judgment
of the United States Court of Appeals for the District of
Columbia Circuit in this case.
OPINIONS BELOW
The Opinion of the United States Court of Appeals
is published as Mitchell v. Phelan, 169 F.4th 1113 (D.C.
Cir 2025), and included in this petition as Appendix A,
1a-8a. The Opinion of the United States District Court is
published as Mitchell v. Del Toro, 2024 WL 4891906 at *1
(D.D.C. November 26, 2024) and included in this petition
as Appendix B, 9a-35a. LT Mitchell’s petition to the Board
for the Correction of Naval Records (“BCNR”), is included
in this petition as Appendix C.
JURISDICTION
The United States Court of Appeals for the District of
Columbia Circuit issued its opinion and judgment in this
case on March 13, 2026. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
Article I, Section 8, Clause 14 of the Constitution of
the United States, states as follows:
The Congress shall have Power . . . To make
Rules for the Government and Regulation of
the land and naval Forces.
2
Article II, Section 2, Clause 2 of the Constitution of
the United States, states as follows:
He [i.e., the President] shall have Power, by
and with the Advice and Consent of the Senate,
to make Treaties, provided two thirds of the
Senators present concur; and he shall nominate,
and by and with the Advice and Consent of
the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the
supreme Court, and all other Officers of the
United States, whose Appointments are not
herein otherwise provided for, and which shall
be established by Law: but the Congress may
by Law vest the Appointment of such inferior
Officers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of
Departments.
10 United States Code, Section 624(d)(5), states as follows:
An appointment of an officer may not be
delayed under this subsection for more than
six months after the date on which the officer
would otherwise have been appointed unless the
Secretary concerned specifies a further period
of delay. An officer’s appointment may not be
delayed more than 90 days after final action has
been taken in any criminal case against such
officer in a Federal or State court, more than
90 days after final action has been taken in any
court-martial case against such officer, or more
than 18 months after the date on which such
officer would otherwise have been appointed,
whichever is later.
3
The full text of 10 United States Code, Section 624 is
available in Appendix D of this petition, 93a-102a.
PRELIMINARY STATEMENT OF THE LAW
Promotions of certain military officers are governed
by the Defense Officer Personnel Management Act
(“DOPMA”), 10 U.S.C. § 611 et seq. In response to the need
of a military department for additional qualified officers,
the Secretary of the military department “convene[s]
selection boards to recommend for promotion [military
officers] to the next higher permanent grade.” 10 U.S.C.
§ 611(a). The selection boards then “submit to the Secretary
. . . a written report . . . containing a list of the names of
the officers it recommends for promotion.” 10 U.S.C.
§ 617(a). The relevant Secretary then reviews the report
and submits it “to the Secretary of Defense for transmittal
to the President for his approval or disapproval.” 10 U.S.C.
§ 618(a), (c)(1). Following transmittal, “only” the President
may remove a recommended officer from a selection
board’s report. 10 U.S.C. § 618(d).
When the President has reviewed and approved the
selection board’s report and thereby nominated the named
officers for a promotion, “the Secretary of the military
department concerned shall place the names of all officers
approved for promotion . . . on a single list . . . , to be known
as a promotion list. . . .” 10 U.S.C. § 624(a)(1). The list
determines the officers’ promotion dates, which are set
by the Secretary under 10 U.S.C. § 624(b)(2) and § 741(d).
Subject to exceptions enumerated in subsection (d) of 10
U.S.C. § 624, “officers on a promotion list . . . shall be
promoted to the next higher grade when additional officers
in that grade and competitive category are needed,” in
4
the order in which the officers’ names appear on the list.
10 U.S.C. § 624(a)(2).
Once the President has nominated the officers for
promotion, the list is then forwarded to the Senate for
confirmation. 10 U.S.C. § 624(c). An officer not confirmed
by the Senate is removed from the promotion list. 10
U.S.C. § 629(b). Once nominated by the President and
confirmed by the Senate, all that remains to effectuate
an officer’s promotion is Presidential appointment. See
10 U.S.C. § 624(c); see also 10 U.S.C. § 629(a). An “officer
who is appointed to a higher grade under section 624 of
this title is considered to have accepted such appointment
on the date on which the appointment is made unless he
expressly declines the appointment.” 10 U.S.C. § 626(a).
But subsection (d) of 10 U.S.C. § 624 permits
the Secretary of a military department to delay the
appointment date of a Presidentially-nominated and
Senate-confirmed officer’s promotion beyond the date on
which the officer would otherwise have been promoted.
See 10 U.S.C. § 624(d)(1). Such delay may occur when “an
investigation is being conducted to determine whether
disciplinary action of any kind should be brought against
the officer.” 10 U.S.C. § 624(d)(1)(B). Under 10 U.S.C.
§ 624(d)(1), “if the officer is acquitted of [] charges
brought against him,” then the officer “shall be retained
on the promotion list . . . and shall, upon promotion to the
next higher grade, have the same date of rank, the same
effective date for the pay and allowances of the grade
to which promoted, and the same position on the activeduty list as he would have had if no delay had intervened,
unless the Secretary concerned determines that the
officer was unqualified for promotion for any part of the
5
delay.” However, the appointment of the officer “may not be
delayed . . . unless the officer has been given written notice
of the grounds for the delay, unless it is impracticable to
give such written notice before the effective date of the
appointment, in which case such written notice shall be
given as soon as practicable.” 10 U.S.C. § 624(d)(4)(A).
Nonetheless, once an officer has secured Senate
confirmation, in no case may the appointment of an officer
be delayed more than 18-months. See 10 U.S.C. § 624(d)
(5): “An officer’s appointment may not be delayed . . .
more than 18-months after the date on which such officer
would otherwise have been appointed.” See also 10 U.S.C.
§ 629(c)(1): “If an officer whose name is on a list of officers
approved for promotion under section 624(a) of this title to
a grade for which appointment is required by section 624(c)
of this title to be made by and with the advice and consent
of the Senate is not appointed to that grade under such
section during the officer’s promotion eligibility period,
the officer’s name shall be removed from the list unless as
of the end of such period the Senate has given its advice
and consent to the appointment.”
STATEMENT OF THE CASE
Petitioner, Lieutenant (“LT”) Ernest Mitchell, began
serving in the U.S. Navy in 2009. LT Mitchell earned
recommendations for early promotion on five occasions
and received three Navy Commendation medals and three
Navy Achievement medals. Appendix A, 10a.
On August 23, 2019, pursuant to authority delegated
to him by the President, Respondent, the Secretary
of the Navy, placed LT Mitchell’s name on the FY-
6
20 Active-Duty Navy Lieutenant Commander Line
Selection list, for permanent promotion to the grade of
Lieutenant Commander. Appendix C, 44a. Appointment
to the grade of Lieutenant Commander is governed by
the Appointments Clause, U.S. Const. A rt. II, § 2, Cl. 2,
and by 10 U.S.C. § 624. On or about November 25, 2019,
LT Mitchell’s promotion was confirmed by the Senate.
Appendix B, 22a. His appointment to the higher grade
was to be effective August 1, 2020. Appendix C, 44a.
In December 2019, Mitchell became the Command
Duty Officer aboard the USS Howard, moored in San
Diego. Appendix A, 2a. Shortly after arriving, on
December 11, 2019, LT Mitchell realized that the ship
would be leaving the port for a training mission and
then returning to a different pier, leaving him without
transportation as his vehicle was at the departure pier.
This logistical problem would cause him to miss a flight
upon the ship’s return. Appendix A, 2a; Appendix B, 11a.
Consequently, before the USS Howard left the first
pier, LT Mitchell left the ship and moved his car to the
planned arrival pier, after informing other members of the
crew, his Section Leader, and the Officer of the Deck on
the quarterdeck where he was going and why. Appendix
B, 11a, 12a. Based on his decade plus of prior experience
in the Navy, and his knowledge of the specific instructions
aboard the USS Howard, LT Mitchell mistakenly but
genuinely believed that this brief absence was permitted
by Naval regulation. See Appendix C, 46a.
LT Mitchell was away from the USS Howard for
between 15 and 60 minutes. Appendix B, 12a. No casualties
or other incidents occurred during his brief absence. LT
7
Mitchell made no attempt to hide his absence. Appendix
B, 12a.
Following the incident, LT Mitchell received nonjudicial punishment under Article 15, Uniform Code of
Military Justice, 10 U.S.C. § 815, and the Deputy Chief of
Naval Personnel approved LT Mitchell’s detachment for
cause from the USS Howard. Appendix C, 45a. A Board
of Inquiry1 determined that LT Mitchell had violated
Articles 92 and 133, Uniform Code of Military Justice,
10 U.S.C. §§ 992, 933, but recommended his retention in
the Navy. Appendix C, 45a.
On January 16, 2020, LT Mitchell was notified that
his promotion to Lieutenant Commander, which had
been scheduled for August 1, 2020, was delayed while the
Secretary reviewed adverse information regarding LT
Mitchell’s conduct on December 11, 2019, and determined
LT Mitchell’s suitability for promotion. Appendix C, 45a.
After no further action was taken by the Navy regarding
his promotion, LT Mitchell requested that the Secretary
lift the delay on his promotion in January 2021 and render
that promotion retroactive to his originally scheduled date
of August 1, 2020. Appendix C, 59a. Over a year later, on
April 26, 2022, after LT Mitchell’s promotion had been
delayed for nearly 21 months , the Secretary removed LT
Mitchell from the promotion list. Appendix C, 61a.
1. “The purpose of a BOI is to give officers a full and impartial
hearing at which they may respond to and rebut the allegations
which form the basis for separation for cause or retirement in the
current grade or a lesser grade and present matters favorable
to their case on the issues of separation and, if applicable,
characterization of service.” SECNAVINST 1920.6D, Enclosure
(11), para. 1.
8
10 U.S.C. § 1552 permits servicemembers to submit
petitions to correct the servicemember’s record to
the Secretary of the military department concerned.
Secretaries of the military departments generally
make such corrections through “boards of civilians
of the executive part of that military department.” 10
U.S.C. § 1552(a)(1). Pursuant to this statute, LT Mitchell
subsequently petitioned the Board for the Correction of
Naval Records (“BCNR”), seeking, inter alia, promotion
to Lieutenant Commander effective retroactively to
August 2020. Appendix C, 36a-76a. In his application,
LT Mitchell argued that his promotion had been delayed
more than 18 months, in violation of 10 U.S.C. § 624(d)(5).
Appendix C, 43a, 69a-70a. The BCNR denied LT Mitchell’s
application on February 3, 2023, and the Secretary
approved. Appendix C, 69a-70a, 74a-75a.
On December 19, 2023, LT Mitchell filed suit in the
United States District Court for the District of Columbia,
seeking judicial review of the BCNR’s decision under the
Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)
(A). Appendix B, 16a. The District Court ruled that LT
Mitchell’s claim was not justiciable and granted the
Secretary’s motion for summary judgment. Appendix B,
20a-26a, citing Baker v. Carr, 369 U.S. 186, 198 (1962).
While the District Court determined that there had been a
breach of the statute – “the Court agrees with the parties
that the Navy overly delayed [LT Mitchell’s] promotion
beyond 18 months in violation of 10 U.S.C. § 624(d)(5). This
was the breach” – the District Court ultimately held that
LT Mitchell was owed no duty, and thus could be granted
no relief, under 10 U.S.C. § 624(d)(5). Appendix B, 22a.
The District Court opined that interpreting 10 U.S.C.
§ 624(d)(5) as providing for promotion by operation of law
9
after 18 months would make Presidential appointment
not a “voluntary act.” See Appendix B, 24a. Instead, the
District Court proposed its own novel interpretation of
10 U.S.C. § 624: “[w]hen an officer’s promotion is delayed,
he is funneled away from the usual [10 U.S.C. § 624] (a)
(2), “as needed” promotion timeline into [10 U.S.C. § 624]
(d), as [LT] Mitchell was under [10 U.S.C. § 624] (d)(1)
(e) while the Secretary reviewed “substantiated adverse
information.” Expiring the 18-month delay in section (d)
could just return the officer to section (a) where he awaits
the President’s “as needed,” discretionary appointment.”
Appendix B. 23a.
LT Mitchell appealed to the United States Court of
Appeals for the District of Columbia Circuit on January
15, 2025. Oral argument was held on November 26, 2025,
and the Circuit Court rendered its judgment on March 13,
2026. Appendix A, 1a. The Circuit Court reasoned that 10
U.S.C. Ҥ 624(d)(5) limits only the duration of a permissible
delay – it does not by itself effectuate an appointment.”
Appendix A, 6a. The Circuit Court mistakenly believed
that 10 U.S.C. § 624(d)(1) provided for the indefinite
retention of an officer acquitted of misconduct on the
promotion list, and therefore LT Mitchell’s “theory
makes the outcome for an unacquitted candidate whose
proceedings have been delayed…more favorable than the
outcome for an acquitted candidate.” Id. The Circuit Court
also stated that reading 10 U.S.C. § 624(d)(5) to require
automatic promotion of a candidate “the Executive has
decided against” would make appointment not a voluntary
act. Id. The Circuit Court never clarified what should
happen when a military service branch exceeds the clear
18 month time limit found in 10 U.S.C. § 624(d)(5) for an
officer’s appointment. See generally Appendix A.
10
REASONS FOR GRANTING THE PETITION
Does Congress have the power to make rules regarding
the promotion of military officers? The Constitution says
yes. See U.S. Const. A rt. I, § 8, Cl. 14; A rt. II, § 2, Cl.
2. Specifically, the President nominates officers and then
appoints them after Senate confirmation. U.S. Const.
A rt. II, § 2, Cl. 2. But the Constitution does not provide
for how such an appointment occurs after Presidential
nomination and Senate confirmation. Discretion lies with
Congress, pursuant to its express Constitutional authority
to “make Rules for the Government and Regulation of
the land and naval Forces.” U.S. Const. A rt. I, § 8, Cl.
14. Under this Constitutional grant of power, Congress
enacted DOPMA, which as codified at 10 U.S.C. § 624(d)(5)
states: “An officer’s appointment may not be delayed . . .
more than 18 months after the date on which such officer
would otherwise have been appointed” (emphasis added).
Despite the obvious implications of this statutory
language, over the past quarter of a century or so,
courts have routinely declined to grant service members,
including LT Mitchell, petitioner in this case, the
protections which Congress determined they deserve.
This case raises fundamental issues regarding the
separation of powers that mandate review by this Court
to consider an important and recurring question of law
regarding the application of the Appointments Clause,
U.S. Const. A rt. II, § 2, Cl. 2, to the appointment of
certain military officers.
This case is of immense importance to the nation.
According to the Department of Defense, as of March
2025, there are approximately 1.3 million active duty
11
military servicemembers in all branches of our nation’s
armed forces, the vast majority of them in the Army, Navy,
Air Force, and Marine Corps. See https://dwp.dmdc.osd.
mil/dwp/app/dod-data-reports/workforce-reports. All
officers in these branches are subject to the provisions
of 10 U.S.C. § 624. See 10 U.S.C. § 619. Whether an
officer is promoted by operation of law following the 18
month maximum delay period of 10 U.S.C. § 624(d)(5) is
therefore an issue of direct and substantial concern to the
many thousands of officers in these service branches. It
is an issue of indirect concern to the families and loved
ones of these officers. And it is of further concern to
all Americans, who are or should be alarmed about the
rapid expansion of executive power in recent decades,
and believe that the legislative branch, not the executive
branch, should be the primary authority in our federal
system of government, as our Founding Fathers mandated
and intended. See The Federalist No. 76 (James Madison):
“In republican government, the legislative authority
necessarily predominates.”
Congressional intent to make promotions effective
automatically upon the expiration of the 18 month period
in 10 U.S.C. § 624(d)(5) is clear and must be enforced by
the courts. The judiciary’s attempts to read automatic
promotion by operation of law out of 10 U.S.C. § 624(d)
(5) have rendered Congressional intent a nullity and the
express will of Congress mere words on a page, violating
the statutory canon against surplusage. And enforcement
of Congressional intent here would not infringe upon
the freedom of the President to act within his own
Constitutional authority. Only this Court can end the
chaos created by avoiding Congress’s clear language and
restore the proper balance between our nation’s branches
of government.
12
I.
Congressional Intent to Promote By Operation of
Law is Clear.
Under 10 U.S.C. § 624(d)(5), “An officer’s appointment
may not be delayed . . . more than 18 months after the
date on which such officer would otherwise have been
appointed.” Ordinarily, “if a statute does not specify a
consequence for noncompliance with statutory timing
provisions, the federal courts will not . . . impose their
own coercive sanction.” Barnhart v. Peabody Coal Co.,
537 U.S. 149, 159 (2003). But here, there is no need to
speculate about what Congress’s intended outcome is.
When Congress speaks directly “to the precise question at
issue” and its intent “is clear, that is the end of the matter,”
and a court “must give effect to the unambiguously
expressed intent of Congress.” Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837,
842-43 (1984) (overturned on other grounds by Loper
Bright Enterprises v. Raimondo, 603 U.S. 369 (2024));
see also Connecticut Nat’l Bank v. Germain, 503 U.S.
249 (1992). Because the opposite of a failure to appoint is
appointment, that is clearly Congress’s intended remedy
once the outer time limit of 10 U.S.C. § 624(d)(5) is met.
And Congressional intent that officers be promoted by
operation of law upon the expiration of 10 U.S.C. § 624(d)
(5)’s 18 month deadline is clear. “An officer’s appointment
may not be delayed . . . more than 18 months after the
date on which such officer would otherwise have been
appointed.” If, as is the case for LT Mitchell, an officer
has been nominated by the President, and confirmed by
the Senate, and if that officer’s appointment may not be
delayed more than 18 months under 10 U.S.C. § 624(d)(5),
it follows logically that the officer is to be appointed at the
13
conclusion of the 18 month delay period. No other reading
of Congressional intent is possible. See also 10 U.S.C.
§ 629(c)(1) (providing that “an officer whose name is on a
list of officers approved for promotion under section 624(a)
of this title to a grade for which appointment is required
by section 624(c) of this title to be made by and with the
advice and consent of the Senate is not appointed to that
grade under such section during the officer’s promotion
eligibility period, the officer’s name shall be removed from
the list unless as of the end of such period the Senate has
given its advice and consent to the appointment”).
Buttressing this interpretation of 10 U.S.C. § 624(d)(5)
is the fact that Congress long ago made certain promotions
automatic. See 14 Rev. Stat. § 1207 (2d ed. 1878), 18 Stat.
pt. 1, at 214 (Corps of Engineers and Ordinance Corps
Lieutenants to be promoted to Captain after 14 years’
continuous service and on passing examination); 14 Rev.
Stat. § 1168 (2d ed. 1878), 18 Stat. pt. 1, at 210 (assistant
surgeons to rank as lieutenants of cavalry for first three
years of service and as captains thereafter); see also 18
Stat. pt. 3, ch. 458, § 4, at 244-45 (automatic promotion
of assistant surgeons after five years); National Defense
Act of 1916, ch. 134, § 10 (certain Medical Corps officers
to be promoted after five years’ service and on passing
examination). According to a February 1880 opinion of
the Judge Advocate General of the Army, such promotions
result by operation of law “and independently of any action
by the appointing power.” W. Winthrop, Digest of Opinions
of the Judge-Advocates General of the Army, ¶525, at 148
(C. McClure rev. ed. 1901). See also Cloud v. United States,
43 Ct. Cl. 69, 86, 90 (1907).
14
Congressional intent that 10 U.S.C. § 624(d)(5) renders
an officer on the promotion list longer than the 18-month
maximum automatically promoted by operation of law is
also apparent in one of the 1981 technical corrections to
10 U.S.C. § 624. As originally enacted, 10 U.S.C. § 624 (d)
(3) provided that “[t]he appointment of an officer may not
be delayed under this subsection unless the officer has
been given written notice of the grounds for the delay.”
94 Stat. 2858. However, before the statute took effect,
Section § 4(d)(3)(D) of the DOPMA Technical Corrections
Act, Pub. L. No. 97-22, 95 Stat. 127, added the phrase
“unless it is impractical to give such written notice before
the effective date of the appointment, in which case such
written notice shall be given as soon as practicable.” The
House Report explained:
[t]his amendment recognizes that information
calling into question the qualifications of
an officer for promotion may be revealed
only shortly before the projected date of
the promotion and that, in such cases, the
officer may not be reasonably available (e.g.,
on a weekend, while on leave or while absent
without leave) to receive written notice that the
promotion is being delayed.
H.R. Rep. No. 97-141, 97th Cong., 1st Sess. 14 (1981),
1981 U.S. Code Cong. & Ad. News 37. Congress was
concerned that action to delay a promotion might prove
unavailing – and that therefore the promotion would take
effect – simply because word could not be passed to the
affected officer in time. The premise for this amendment
is that under 10 U.S.C. § 624 (d)(5) a promotion cannot be
recalled once the delay period ends.
15
This exception, now codified at 10 U.S.C. § 624(d)(4)(A),
makes no sense if officers are not promoted automatically
by operation of law. If officers are not promoted by
operation of law, there is no need to hurry with the notice.
After all, the service branch initiating the delay in the
promotion can simply contact the affected officer later,
after it has initiated the delay. If, however, officers are
promoted automatically, time is of the essence, and the
exception in 10 U.S.C. § 624(d)(4)(A) helps avert a very real
danger – that information which could impact an officer’s
fitness for promotion is discovered prior to the officer’s
appointment date but before the officer can be notified,
that the officer does not receive notice, and that the officer
is therefore promoted automatically by operation of law.
And it was this danger which Congress sought to prevent
in the 1981 technical amendment. See H.R. Rep. No. 97141, 97th Cong., 1st Sess. 14 (1981), 1981 U.S. Code Cong.
& Ad. News 37.
II. The Judiciary Cannot Improve Upon Congressional
Intent.
“What happens to an officer whose appointment is
delayed beyond the 18 month deadline of 10 U.S.C. § 624(d)
(5)?” Reading the statute in line with Congress’ clear
intent provides a refreshingly simple answer: “The officer
is promoted by operation of law.” By contrast, courts which
have considered this issue and found that the officer is
not promoted by operation of law have often declined to
answer the question at all. And when courts have answered
the question, their answers have been clearly contradicted
by the language of 10 U.S.C. § 624 itself.
16
Consider Dysart v. U.S., 369 F.3d 1303, 1317 (Fed.
Cir. 2004). In Dysart, the seminal case regarding whether
officers are promoted by operation of law under 10 U.S.C.
§ 624(d)(5), the Federal Circuit overturned Rolader
v. U.S., 42 Fed. Cl. 782, 785-786 (1999), and found that
officers whose appointments are delayed beyond the 18
month statutory maximum enacted by Congress are
not automatically promoted by operation of law. Id. The
Federal Circuit reasoned that “Congress does not have
the authority to require the President to exercise his
appointment power; such authority would be akin to an
exercise by Congress of the appointment power itself,
which is prohibited.” Id. But the procedures enacted by
Congress in 10 U.S.C. § 624 are not akin to a requirement
for the President to exercise his appointment power, they
merely govern what will happen if the President does or
does not exercise his appointment power in certain ways.
See 10 U.S.C. § 624(a)(2) (“officers on a promotion list
for a competitive category shall be promoted to the next
higher grade when additional officers in that grade and
competitive category are needed”); 10 U.S.C. § 624 (d)(5)
(“appointment of an officer may not be delayed under this
subsection for more than . . . 18 months after the date on
which such officer would otherwise have been appointed”)
(emphases added). Nothing in 10 U.S.C. § 624 prohibits the
President from removing an officer from the promotion
list prior to the 18 month deadline. And the President is
further permitted to remove a recommended officer from
a selection board’s report prior to the report’s nomination
to the Senate. 10 U.S.C. § 618(d).
More to the point, Dysart offered no explanation for
what happens once an officer’s appointment is delayed
for more than 18 months. See generally 369 F.3d 1303.
17
And neither did the Federal Circuit in Lewis v. United
States, 458 F.3d 1372, 1378–79 (Fed. Cir. 2006), which
largely hewed to Dysart’s reasoning, declining to revisit
the holding of that case in a substantive fashion.
In LT Mitchell’s case, the District Court proposed a
novel, and inappropriate, solution: instead of automatically
promoting the officer by operation of law, when the
18 month statutory deadline of 10 U.S.C. 624(d)(5) is
exceeded, the officer “is funneled away from the usual
[10 U.S.C. § 624] (a)(2), “as needed” promotion timeline
into [10 U.S.C. § 624] (d), as [LT] Mitchell was under
[10 U.S.C. § 624] (d)(1)(e) while the Secretary reviewed
“substantiated adverse information.” Expiring the
18-month delay in section (d) could just return the officer
to section (a) where he awaits the President’s “as needed,”
discretionary appointment.” Appendix B. 23a.
But this solution is at odds with the District Court’s
determination that a service branch “cannot use the
Secretary’s discretion on the merits to ignore [a] statutory
deadline separate from the merits.” See Appendix B,
21a. And the District Court’s solution creates a loophole
which allows the service branches to ignore Congressional
deadlines at their mere whim.
For these reasons, the District Court’s solution also
violates the rule against surplusage, rendering Congress’
word, which has binding force of law, into empty and
meaningless phrases on a piece of paper. In the District
Court’s reading, the 18 month deadline in 10 U.S.C. 624(d)
(5) has no practical effect or purpose. Acts of Congress
are not to be read this way. Instead, “a statute ought, upon
the whole, to be so construed that, if it can be prevented,
18
no clause, sentence, or word shall be superfluous, void, or
insignificant.” Alaska Dep’t of Env’t Conservation v. EPA,
540 U.S. 461, 489 n.13 (2004) (internal quotations omitted);
see also TRW Inc. v. Andrews, 534 U.S. 19 (2001). There
is no language in 10 U.S.C. § 624 to support the District
Court’s interpretation of the statute. The District Court
itself seemed to implicitly recognize this by not citing any
language from 10 U.S.C. § 624 itself, or any other legal
authority, which directly supports the District Court’s
reading. See generally Appendix B, especially 20a-26a.
Reviewing LT Mitchell’s case on appeal, the Circuit
Court reasoned that because 10 U.S.C. § 624(d)(1) provided
for the indefinite retention of an officer acquitted of
misconduct on the promotion list, therefore LT Mitchell’s
“theory makes the outcome for an unacquitted candidate
whose proceedings have been delayed . . . more favorable
than the outcome for an acquitted candidate.” Appendix
A, 6a. This is inaccurate. Under 10 U.S.C. 624(d)(1), “if
the officer is acquitted of [] charges brought against him,”
then the officer
shall be retained on the promotion list . . . and
shall, upon promotion to the next higher grade,
have the same date of rank, the same effective
date for the pay and allowances of the grade
to which promoted, and the same position on
the active-duty list as he would have had if no
delay had intervened, unless the Secretary
concerned determines that the officer was
unqualified for promotion for any part of the
delay (emphasis added).
19
In other words: the officer is promoted automatically
retroactive to the date when he would have been promoted
had the delay not occurred. This is the exact relief LT
Mitchell requested from the BCNR, and the exact relief
he would have received had the Circuit Court determined
that LT Mitchell was promoted by operation of law under
10 U.S.C. § 624(d)(5). See Appendix A, 5a-6a. The Circuit
Court never noticed this irony. Nor did it clarify what, in
its view, should happen when a military service branch
exceeds the 18 month deadline in 10 U.S.C. § 624(d)(5).
See generally Appendix A, especially 5a-6a.
The Circuit Court’s incorrect view that there would
be any difference between the fate of LT Mitchell under
10 U.S.C. § 624(d)(5) and the fate of an acquitted officer
under 10 U.S.C. § 624(d)(1) highlights another problem
with the Circuit Court’s determination: the Circuit Court’s
piecemeal reading of 10 U.S.C. § 624. Repackaging an
argument the Secretary made in the District Court and
the Circuit Court, the Circuit Court essentially held that
10 U.S.C. § 624(d)(1) undercuts the prohibitive language
of 10 U.S.C. § 624(d)(5), and so an officer is not promoted
by operation of law after 18 months on the promotion list
but rather retained on the promotion list. Appendix A,
5a-6a. But acts of Congress are not to be read with their
statutory headings hermetically sealed from each other
like this. Instead, a “fundamental canon of statutory
construction” is that “words of a statute must be read
in their context and with a view to their place in the
overall statutory scheme.” Food and Drug Admin. v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000), superseded by statute on other grounds, Food
and Drug Admin. v. Wages and White Lion Investments,
L.L.C., 604 U.S. 542 (2025) (internal citations omitted).
20
Courts are therefore obligated to interpret a statute as
a “symmetrical and coherent regulatory scheme,” and
to “fit, if possible, all parts into an harmonious whole.”
Brown & Williamson Tobacco Corp., 529 U.S. at 133; see
also Gustafson v. Alloyd Co., 513 U.S. 561 (1995).
Reading 10 U.S.C. § 624 with these principles in mind
illustrates that 10 U.S.C. § 624(d)(1) and 10 U.S.C. § 624(d)
(5) serve two distinct, but complementary, purposes. 10
U.S.C. § 624(d)(1) provides for the reasons by which an
officer’s promotion may be delayed. But 10 U.S.C. § 624(d)
(5) sets the outer limits for such a delay: 18 months, and
not one day more.
The question remains. “What happens to an officer
whose appointment is delayed beyond the 18 month
deadline of 10 U.S.C. § 624(d)(5)?” The Dysart and Lewis
Courts offered no answer. See generally 369 F.3d 1303;
458 F.3d at 1378–79. In LT Mitchell’s case, the District
Court offered an answer which flunked the rule against
surplusage and clashed with the language of the statute.
See Appendix B, 23a. The Circuit Court misread 10 U.S.C.
§ 624(d)(1) and did not answer the question. See Appendix
A, 5a-6a. The only reading of 10 U.S.C. § 624 which
avoids the problem of the rule against surplusage and is
supported by the language of 10 U.S.C. § 624 itself is that
officers are automatically promoted after 18-months on the
promotion list. The service branches themselves recognize
Congress’s intent that an officer’s appointment cannot be
delayed beyond 18-months. See Army Regulation 600-829, Paragraph 3-7b (“In no case may an officer’s promotion
be delayed . . . more than 18 months after the date on
which the officer would otherwise have been appointed”);
SECNAVINST 1420.3, paragraph 5(c)(2) (“An officer’s
21
promotion may not be delayed more than…18 months after
the date on which the officer would otherwise have been
appointed”); Air Force Instruction 36-2501, Chapter 12,
Paragraph 12.3.2 (“An officer’s appointment should not be
delayed more than . . . 18 months after the date on which
such officer would otherwise have been appointed”).
And not so terribly long ago, the courts recognized
– and the service branches conceded – that this was the
proper interpretation. See Rolader, 42 Fed. Cl. at 785-786
(“It is worth noting at this point that the other services
have not construed [10 U.S.C. §] 624 to permit a removal
recommendation to indefinitely extend the time within
which delays may continue . . . Absent presidential action
within eighteen months, promotion is automatic”), citing
SECNAVINST 1420.1A, ¶ 23 (removal actions subject to
the overall delay limitations stated in 10 U.S.C. § 624(d)
(4)); Army Regulation 624–100, Promotion of Officers on
Active Duty, Update, ch. 2–10(b) (disallowing delays more
than eighteen months past an officers original effective
promotion date). 2 See also Barnes v. United States, 57
Fed.Cl. 204, 218-219 (2003) (which reached a similar
holding to Rolader, and was overturned following the
Federal Circuit’s decision in Dysart); Bigelow v. Peters,
1:98-cv-00536, ECF No. 31 (D.D.C. 1998) (officer’s claim
for automatic promotion following delay beyond statutory
2. The Rolader Court found that the plaintiff-applicant
had been promoted by operation of law pursuant to Air Force
regulation. 42 Fed. Cl. at 786. It strains credulity to think that an
officer can be promoted automatically by Air Force regulation, but
not by Congressional deadline. Rolader’s subsequent overruling
by Dysart and Lewis does nothing to address this glaring problem,
especially given that the language of 10 U.S.C. § 624 has remained
unchanged in any relevant respect following Rolader, and the
intent of Congress is clear. See supra.
22
period dismissed as moot when Air Force subsequently
promoted officer).
The language of 10 U.S.C. § 624 has not changed in
any relevant respect since Rolader. Congress’s intention
that promotions take effect automatically once the delay
period expires therefore remains apparent. The only thing
that has changed is the courts’ reading of the statute.
The Constitution places the power to “make Rules for the
Government and Regulation of the land and naval Forces,”
U.S. Const. A rt. I, § 8, Cl. 14, in the hands of Congress,
not the judiciary. Only this Court can right the balance.
III. Congress May Provide for Promotion by Operation
of Law.
The Circuit Court also fretted that reading 10
U.S.C. § 624(d)(5) to require automatic promotion of a
candidate “the Executive has decided against” would
make appointment not a voluntary act. Appendix A, 6a. Set
aside that this is not what happened in LT Mitchell’s case
– no Presidential decision was ever made regarding LT
Mitchell’s appointment, only a decision by the Secretary.
Appendix A, 3a-4a. Even if the Circuit Court were
correct, interpreting 10 U.S.C. § 624 (d)(5) to provide for
promotion by operation of law after 18 months does not
unconstitutionally constrain Presidential authority. See
Rolader, 42 Fed. Cl. at 787.
The Constitution vests Congress with broad authority
over the appointments process, “which shall be established
by law.” U.S. Const., A rt. II, § 2, Cl. 2. Congress retains
this power both before and after Senate confirmation.
For example, certain military officers must satisfy
23
Congressionally mandated eligibility criteria before their
promotion, 10 U.S.C. §§ 611-641, and the Solicitor General
must be “learned in the law.” 28 U.S.C. § 505.
Decisions of this Court reaffirm Congressional
control over the appointment process. In Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 158 (1803), the Court
held that Congress holds the power to chart a “precise
course accurately marked out by law,” for the Presidential
appointment power to follow, which must be “strictly
pursued.” This Court observed in Marbury that Congress
held the power to determine the manner in which the
appointment power had been exercised by the President.
See id. at 157 (stating regarding the signature and sealing
of Marbury’s commission, “[t]his idea seems to have
prevailed with the legislature.”) This Court held similarly
in Freytag v. Commissioner, 501 U.S. 868, 881 (1991),
stating that Congress may “specif[y]” whatever “means
of appointment” by “statute.” Similarly, while Burnap
v. United States 252 U.S. 512, 517 (1920), held that when
there is no “statute which provides specifically” how an
officer is appointed, Heads of Departments may set the
procedure. Burnap implies that Congress has the power
to regulate the means of appointment otherwise.
True, Presidential appointment must be a “voluntary
act,” as the holdings of this Court so clarify. See, e.g.,
Marbury, 5 U.S. at 155-156. But it is well-established
that even Presidential inaction can still be an action with
the force of law. See U.S. Const., A rt. I, § 7: “If any Bill
shall not be returned by the President within ten days
(Sundays excepted) after it shall have been presented
to him, the same shall be a Law, in like manner as if he
had signed it, unless the Congress by their Adjournment
prevent its return, in which case it shall not be a Law”;
24
see also The Pocket Veto Case, 279 U.S. 655 (1929).
Promotion by operation of law is simply another instance
of Presidential action through inaction. 3 See 50 U.S.C.
§ 1622(d) (Presidential declaration of national emergency
“shall terminate on the anniversary of the declaration of
that emergency if, within the ninety-day period prior to
each anniversary date, the President does not publish
in the Federal Register and transmit to the Congress a
notice stating that such emergency is to continue in effect
after such anniversary”).
In Marbury, this Court also held that “[s]ome point of
time must be taken when the power of the executive over an
officer, not removable at his will, must cease. That point of
time must be when the constitutional power of appointment
has been exercised.” 5 U.S. (1 Cranch) at 157. And while
in Marbury this Court found that Congress had set the
point at which “the power of the executive over an officer
. . . must cease” to be the “signature of the commission,”
see id, there is no reason why Congress, pursuant to its
power to “make Rules for the Government and Regulation
of the land and naval Forces,” could not fix another moment
when the power of the executive ceases – such as after 18
months. See U.S. Const. A rt. I, § 8, Cl. 14; see 10 U.S.C.
§ 624(d)(5). Provided that the Congressional statute at
issue makes the President aware of all the consequences
of his inaction, Presidential inaction cannot be accurately
said to be involuntary.
3. For this reason, any suggestion that automatic promotion
upon the conclusion of the 18-month period in 10 U.S.C. § 624(d)
(5) somehow runs afoul of the requirement that the President
perform a “public act” to complete the appointment is also invalid
– as explained by analogy with pocket vetoes, the ending of the
18-month period is itself the public act. See Dysart, 369 F.3d at
1312.
25
That requirement is met here. Congress has set a
limit for a promotion delay: 18 months. The President is
aware of this deadline and can remove an officer from
the promotion list at any point prior to that deadline.
Once the President has failed to act, however, within the
Congressionally mandated timeline, promotion occurs
automatically. The President’s failure to act within 18
months is an act in of itself. Congress is therefore not
“forcing” the President to do anything. Within Congress’
statutory scheme, the President is free to act in a certain
way, or not, bearing in mind, as we all must, that “in law
as in life, choices have consequences.” R.R. Donnelley &
Sons v. Vanguard Transp. Systems, Inc., 641 F. Supp. 2d
707, 722 (N.D. Ill. 2009).
CONCLUSION
For the forgoing reasons, the petition for a writ of
certiorari should be granted.
Dated: June 10, 2026
Respectfully submitted,
David P. Sheldon
Law Offices of
David P. Sheldon
100 M Street, S.E., Suite 600
Washington, DC 20003
(202) 552-0018
davidsheldon@
militarydefense.com
APPENDIX
i
TABLE OF APPENDICES
Page
A P P E N DI X A — O P I N ION O F T H E
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLU M BI A
CIRCUIT, FILED MARCH 13, 2026 . . . . . . . . . . . . 1a
APPENDIX B — MEMORANDUM OPINION OF
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBI A ,
FILED NOVEMBER 26, 2024 . . . . . . . . . . . . . . . . . 9a
A P P E N DI X C — O P I N ION O F T H E
BOARD FOR CORRECTION OF NAVAL
RECORDS, DEPARTMENT OF THE NAVY,
FILED APRIL 17, 2023 . . . . . . . . . . . . . . . . . . . . . . 36a
A P P EN DI X D — C ON S T I T U T IONA L
STATUTORY PROVISIONS INVOLVED . . . . . . 93a
1a
Appendix
A
APPENDIX A — OPINION
OF THE
UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT, FILED MARCH 13, 2026
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 25-5013
ERNEST F. MITCHELL, LIEUTENANT,
Appellant,
v.
JOHN PHELAN, HONORABLE, IN HIS OFFICIAL
CAPACITY AS THE SECRETARY OF THE NAVY,
Appellee.
Appeal from the United States District Court
for the District of Columbia
(No. 1:23-cv-03775)
Argued November 21, 2025
Decided March 13, 2026
Before: Pillard and Walker, Circuit Judges, and
Edwards, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Walker.
Walker, Circuit Judge:
Lieutenant Ernest Mitchell left his post to move his
car without telling his Commanding Officer. He was the
Command Duty Officer of a guided-missile destroyer.
2a
Appendix A
The Navy penalized Mitchell for his absence from
the ship. He sued. The district court held that the Navy’s
action was reasonable and reasonably explained.
Because we agree, we affirm.
I. Background
Lieutenant Ernest Mitchell began serving in the U.S.
Navy in 2009. In August 2019, the Secretary of the Navy
placed him on a selection list for permanent promotion
to Lieutenant Commander. The Senate confirmed his
nomination shortly after that.
Mitchell likely would have received a presidential
appointment to his new rank in August 2020 if all had
gone according to plan. It didn’t. He received a written
reprimand in September 2019 and verbal counseling in
October 2019, both regarding a failure to meet standards
and to communicate with superiors. Then, while serving
aboard a guided-missile destroyer named the USS
Howard on December 11, 2019, Mitchell again failed to
meet standards and to communicate with superiors.
On that day, the Howard was scheduled to sail from
one pier to another pier located two and a half miles away.
So before the Howard left the first pier, Mitchell left the
ship, drove his car to the second pier, and returned in a
Navy duty van. Otherwise, Mitchell’s car would have been
left behind back at the first pier when Mitchell arrived
with the ship at the second.
3a
Appendix A
Mitchell was gone for at most an hour — and
possibly for only 15 minutes. But his absence was without
authorization. He did not notify the ship’s commanding
officer or anyone in his chain of command. Nor did he
transfer to a qualified replacement his responsibilities as
Command Duty Officer. Those responsibilities included
acting as his Commanding Officer’s “direct representative
on board,” remaining “readily available to quickly and
effectively respond in the event that a casualty does occur,”
and preparing the Howard to safely depart from port the
following day. JA 226.
When Navy officials learned of Mitchell’s brief absence
from the Howard, a host of disciplinary and administrative
actions ensued. Five of them are relevant here.
First, the Deputy Chief of Naval Personnel approved
the detachment of Mitchell, for cause, from his assignment
on the Howard. The cause was an “act of misconduct,”
Naval Military Personnel Manual 1611-020(3)(a), and
“[s]ubstandard performance of duty over an extended
period of time,” id. at 1611-020(3)(c).
Second, a Board of Inquiry found that Mitchell had
violated Articles 92 and 133 of the Uniform Code of
Military Justice by disobeying “a lawful general order”
and engaging “in conduct unbecoming an officer and
gentleman.” JA 120.
Third, following Mitchell’s Senate confirmation for
promotion to Lieutenant Commander, the promotion was
delayed, and about twenty months after the projected date
4a
Appendix A
for the promotion, the Secretary of the Navy removed him
from the promotion list.
Fourth, the Board for Correction of Naval Records
recommended a denial of Mitchell’s application (a) to
remove from Mitchell’s record certain adverse records
regarding his performance on the Howard and (b) to
promote him to Lieutenant Commander.
Fifth, the Secretary of the Navy approved the
Correction Board’s recommendation and denied Mitchell’s
application.
In December 2023, Mitchell sued the Secretary of
the Navy in district court. He alleged violations of the
Administrative Procedure Act. That law requires courts
to “hold unlawful and set aside” agency actions that are
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A).
The district court awarded summary judgment to the
Secretary of the Navy.
II. Standard of Review
When litigants challenge factfinding by a Board for
Correction of military records, we apply “an unusually
deferential application of the ‘arbitrary or capricious’
standard.” McKinney v. Wormuth, 5 F.4th 42, 45, 453 U.S.
App. D.C. 313 (D.C. Cir. 2021) (quoting Kreis v. Secretary
of Air Force, 866 F.2d 1508, 1514, 275 U.S. App. D.C.
390 (D.C. Cir. 1989)). That deference includes a “strong
5a
Appendix A
but rebuttable presumption that administrators of the
military . . . discharge their duties correctly, lawfully, and
in good faith.” Frizelle v. Slater, 111 F.3d 172, 177, 324 U.S.
App. D.C. 130 (D.C. Cir. 1997) (cleaned up).
We review the district court’s grant of summary
judgment de novo. McKinney v. Wormuth, 5 F.4th 42, 45,
453 U.S. App. D.C. 313 (D.C. Cir. 2021).
III. Analysis
Mitchell argues that the decision of the Board for
Correction of Naval Records was contrary to law when
the Correction Board did not recognize Mitchell’s
promotion to Lieutenant Commander by operation of law.
Mitchell then offers challenges the Board’s review of his
performance. He argues that the Board was arbitrary
and capricious when it found that Mitchell exhibited
“[s]ubstandard performance of duty over an extended
period.” Id. at 1611-020(3)(c).
We disagree.
A. Appointment by Operation of Law?
Mitchell argues that he was appointed to Lieutenant
Commander by operation of law because of the time that
passed between the date when his promotion was scheduled
to take effect and the date when the Secretary removed
Mitchell’s name from the promotion list. He relies on 10
U.S.C. § 624(d). That statute first specifies circumstances
under which appointments may be delayed, id. § 624(d)(1),
6a
Appendix A
and then provides that an “officer’s appointment may not
be delayed . . . more than 18 months after the date on
which such officer would otherwise have been appointed,”
10 U.S.C. § 624(d)(5).
But § 624(d)(5) limits only the duration of a permissible
delay — it does not by itself effectuate an appointment.
That’s apparent from an adjacent provision, § 624(d)(1),
which says that a delayed candidate acquitted of misconduct
“shall be retained on the promotion list” for a promotion
on an as-needed basis. So Mitchell’s theory makes the
outcome for an unacquitted candidate whose proceedings
have been delayed (i.e., according to Mitchell, automatic
promotion) more favorable than the outcome for an
acquitted candidate (i.e., according to § 624(d)(1), retention
on the list for a later promotion as needed).
That theory makes little sense, and it would raise
constitutional questions. Appointment is a “voluntary act”
of the Executive. Marbury v. Madison, 5 U.S. 137, 155,
2 L. Ed. 60 (1803). And a “congressionally mandated act
is not a voluntary act.” Mitchell v. Del Toro, No. 1:23-cv3775, 2024 U.S. Dist. LEXIS 214746, 2024 WL 4891906,
at *6 (D.D.C. Nov. 26, 2024).
Because the statute is best read not to mandate
appointment of a candidate the Executive has decided
against, Mitchell was never appointed.
7a
Appendix A
B. Substandard Performance of Duty Over an
Extended Period?
The Navy Military Personnel Manual provides four
reasons for a commanding officer to request that an officer
be detached for cause — i.e., removed from the officer’s
current duty assignment. Naval Military Personnel
Manual 1611-020(3). Those reasons include “[s]ubstandard
performance of duty over an extended period of time.” Id.
at 1611-020(3)(c).
Here, the Correction Board did not act arbitrarily and
capriciously when it found that Mitchell had exhibited a
“substandard performance of duty between November
2018 and January 2020.” JA 127. Though his fitness
reports were often positive, his absence from the Howard
was unauthorized, and even before then, his record was
not unblemished — as documented by the request for
detachment. See, e.g., JA 214-15 (written reprimand in
September 2019; verbal counseling in October 2019).
The Navy Military Personnel Manual calls for an
assessment based on “the facts and circumstances of the
particular case,” including whether “specific performance
deficiencies . . . continue to exist after corrective action
has been taken.” Naval Military Personnel Manual 1611020(3)(c). And the Navy exercised an expertise that we lack
when it assessed the facts and circumstances of Mitchell’s
particular case. Given the judicial deference owed to
military factfinders and the persistence of Mitchell’s
8a
Appendix A
deficiencies after his first reprimand, we hold that the
Navy’s action was reasonable and reasonably explained.1
***
We affirm the judgment of the district court.
So ordered.
1. Mitchell also argues that the Board was arbitrary and
capricious when it found that he exhibited “gross negligence or
complete disregard of duty” pursuant to 1611-020(3)(b) of the
Naval Military Personnel Manual. Though the Deputy Chief of
Naval Personnel who approved Mitchell’s detachment did not use
the phrase “gross negligence,” see JA 204, 212-17, the Board for
Correction of Naval Records did, see JA 126-27, and Mitchell has
argued, here and in the district court, that his conduct was not “gross
negligence,” see Mitchell v. Del Toro, Case No. 1:23-cv-3775, 2024
U.S. Dist. LEXIS 214746, 2024 WL 4891906, at *8-9 (D.D.C. Nov.
26, 2024). However, on the record before us, the Board’s finding of
“[s]ubstandard performance of duty over an extended period of time”
independently supports its decision. Indeed, during oral argument,
Mitchell’s counsel agreed with this. See Oral Arg. 11:13-11:33. We
need not resolve the question of whether the Board erred when it
found that his conduct was gross negligence.
9a
B
APPENDIX B — Appendix
MEMORANDUM
OPINION
OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA,
FILED NOVEMBER 26, 2024
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Case No. 1:23-cv-3775 (TNM)
ERNEST F. MITCHELL,
Plaintiff,
v.
CARLOS DEL TORO,
Defendant.
Filed November 26, 2024
MEMORANDUM OPINION
LT Ernest Mitchell asks the Court to retroactively
promote him to the naval rank he thinks he deserves.
The Secretary of the Navy denied his promotion after he
was disciplined for failing to meet standards of conduct.
Mitchell also insists that his superiors wrongly disciplined
him and took too long to do it, so any evidence from the
record detailing their criticism should be expunged.
This Court disagrees with Mitchell on all points.
First, his retroactive promotion request is not justiciable.
10a
Appendix B
Second, the Navy’s decisions about his military record
can be corrected only for the “most egregious” errors.
The governing statutes and the D.C. Circuit’s precedent
establish the motivating principle: “This [Court’s]
deferential standard is calculated to ensure that the
courts do not become a forum for appeals by every soldier
dissatisfied with his or her ratings, a result that would
destabilize military command and take the judiciary far
afield of its area of competence.” Cone v. Caldera, 223 F.3d
789, 793, 343 U.S. App. D.C. 117 (D.C. Cir. 2000). Under
this standard, he is entitled to no relief, so the Court will
grant summary judgment to the Secretary.
I.
LT Mitchell has been in the U.S. Navy for nearly fifteen
years. AR 0060–61. For much of that time, he successfully
performed his duties. He earned recommendations for
early promotion five times, AR 0090–99, and received
three Navy Commendation medals and three Navy
Achievement medals, AR 0112–14, 0348–49, 0379, 0502,
0525. In 2019, just before the incident spurring this
case, Mitchell’s fitness evaluation concluded that he met
standards in five of seven categories. AR 0108–09. The
other two categories included an “above standards” rating
and a “progressing” rating that was below “meet[ing]
standards” but avoided the lowest ranking. Id. After this
fitness report, the Secretary of the Navy placed Mitchell’s
name on the promotion list. AR 0182–83.
About a month later, in December 2019, Mitchell
became the Command Duty Officer aboard the USS
11a
Appendix B
Howard, moored in San Diego. AR 0240. He arrived on
December 11th with orders to prepare the destroyer for
departure the next day. Pl.’s Cross. Mot. Summ. J., ECF
16-1 at 7. He was the skipper’s “direct representative on
board” responsible for responding to any last-minute
malfunctions. AR 0240. Shortly after arriving, he realized
that the ship was departing from Pier 12 but it would
return to Pier 3, two-and-a-half miles away, at 4:00 p.m.
on December 16th. AR 0004, 0057, 0236. Unfortunately, he
had parked his car near the ship as he boarded at Pier 12;
he estimates that he would have had to walk 45 minutes
upon return to retrieve his vehicle. AR 0057. Walking
back to his car, he says, would have caused him to miss
his flight to take his fiancé to meet his family for the first
time over the holidays. AR 0070.
Mitchell decided to move his car. AR 0057–58. He
told other members of the crew, his Section Leader, and
the Officer of the Deck on the quarterdeck where he was
going and why. Id.; AR 0237. A Section Leader who had
missed dinner asked him to pick up food for him from
McDonald’s on the way back. AR 0237. Mitchell told no one
in his chain-of-command or the destroyer’s commanding
officer that he was stepping out. AR 0004, 0239. Nor did
he transfer his Command Duty Officer responsibilities to
anyone before leaving. Id.
Mitchell asked a junior sailor to drive him to Pier
3 using an official vehicle. AR 0231. He says that taxis
are not allowed on the naval station and that there are
no loaner bicycles. AR 0058, 0237. On the way back from
the Pier, the sailor explained that he could not use the
12a
Appendix B
drive-through at McDonald’s with a government vehicle
because of the governing regulations. AR 0231. So the
sailor parked beside the restaurant while Mitchell walked
in for the burger. Id. The two then returned to the ship.
Id. He was gone somewhere between 15 and 60 minutes.
AR 0248. He did not attempt to hide his absence. AR 0237.
About a month later, Mitchell received notice that
his scheduled promotion for 2020 had been delayed while
the Secretary reviewed the December 11th incident. AR
0004. After the review, Mitchell received “nonjudicial
punishment” for violating Articles 86, 92, and 133 of
the Uniform Code of Military Justice, which forbid,
respectively, wrongfully leaving one’s post, failure to obey
a lawful general order by wrongfully using a government
vehicle for non-official business, and conduct unbecoming of
an officer for ordering a junior sailor to perform a personal
errand. AR 0224, 0231. He also received a punitive letter of
reprimand. AR 0231–35. Mitchell appealed the decision; he
admitted guilt to the offense conduct but denied criminal
intent and disputed the punishment’s proportionality. AR
0240–42, 0248–49. His commanding officer recommended
denying the appeal and headquarters declined to rescind
the punishment or downgrade it. AR 0005, 0007–08,
0248–49. The commander described Mitchell’s conduct
as “incredibly selfish, shortsighted, and not in line with
the expectations of a Naval Officer of any rank, but
especially a senior Department Head about to be promoted
to Lieutenant Commander.” AR 0240. He also objected
to Mitchell’s “gross misuse of power” in commanding a
junior sailor to violate Department of Defense regulations,
13a
Appendix B
putting him in what the commander called an “extremely
challenging position.” AR 0240–41.
But that was not all. About six months later, the
Howard’s skipper requested that Mitchell be detached for
cause because of the incident. AR 209–14, Pl.’s Cross Mot.
Summ. J. at 10. Detachment for cause “administrative[ly]
remov[es] an officer . . . from the officer’s current duty
assignment before their normal transfer or planned
rotation date.” AR 0168. The action “is one of the strongest
administrative measures used in the case of officers”
and it portends a “serious effect on the officer’s future
naval career.” Id. The Naval Military Personnel Manual,
or “MILPERSMAN,” allows detachment for cause for
several reasons. AR 0169–70.
The parties agree that the commander requested
Mitchell’s detachment based on Sections 1611-020(3)(b)
and (c). AR 0209–14; Def.’s Mot. Summ. J., ECF 13-1
at 3–4; Pl.’s Cross Mot. Summ. J. at 10–11. Section (b)
proscribes “[s]ubstandard performance involving one or
more significant events resulting from gross negligence
or complete disregard of duty.” AR 0160–70. Section (c)
prohibits “[s]ubstandard performance of duty over an
extended period of time.” Id. at 0170.
The commander’s detachment request described
the December 11, 2019, events and enumerated three
pages of Mitchell’s other failures that constituted
“[s]ubstandard performance of duty over an extended
period of time” between November 2018 and January 2020.
AR 0211–14. He did not recommend requiring Mitchell
14a
Appendix B
to show cause why he should remain in the Navy because
he thought that he could “learn from these events and
provide value” in a “different community.” AR 0214. Other
officers in Mitchell’s chain of command endorsed the
skipper’s recommendations, even after reading Mitchell’s
responsive memorandum. AR 0009. The Deputy Chief of
Naval Personnel approved the detachment. AR 0167.
Still, the Navy convened a Board of Inquiry to review
the incident to determine whether Mitchell should remain
in the Navy. AR 0074. It made two findings. First, it
unanimously found by a preponderance of the evidence
that Mitchell had violated two articles of the Uniform Code
of Military Justice: Article 92 for failure to obey an order,
and Article 133 for conduct unbecoming of an officer. Id.
Second, it decided that separating Mitchell from the Navy
was unwarranted, despite his misconduct. Id.; see also
SECNAVINST 1920.6D, Encl. 11 ¶ 13(a)(3) (stating that
the preponderance of the evidence standard only applies
to the question whether the alleged misconduct occurred,
not to the separation decision).
After Mitchell learned that he could remain in the
Navy, he began pursuing his long-suspended promotion.
In January 2021, he asked the Secretary to lift the pause
on his promotion to Lieutenant Commander and to render
that promotion retroactive to his originally scheduled date
of August 2020. AR 0069–73. In response, the Secretary
removed his name from the promotion list. AR 0012. That
removal occurred on April 26, 2022, more than 18 months
after his promotion had been delayed. Id.
15a
Appendix B
Shortly afterward, Mitchell applied to the Board
for Correction of Naval Records (“Correction Board”)
requesting: (1) removal from his record of both his fitness
report from the 2020-2021 period and all detachmentfor-cause reports from the Howard; and (2) promotion
retroactively effective to August 2020. AR 0048–61.1
Among other things, he argued that the Navy had
unlawfully delayed his promotion beyond the strictures
of 10 U.S.C. § 624(d)(5): “An appointment of an officer
may not be delayed under this subsection for . . . more
than 18 months after the date on which such officer would
otherwise have been appointed.” AR 0050.
The Correction Board rejected his claims on all counts.
AR 0002–18. First, it found that Mitchell admitted to the
December 11th offense conduct. AR 0014–18. Second, it
found that the detachment for cause was warranted. Id.
Third, it agreed that Mitchell’s performance had been
substandard for some time, as his commander said.
Id. Fourth, though it agreed that Mitchell’s promotion
had been unduly delayed, the Board concluded that he
still had not been promoted by operation of law because
the Secretary had not found Mitchell qualified for the
promotion, as required to effect the constitutional
appointment process. Id. Finally, the Board thought
that the case did not merit equitable relief because the
delay “actually worked to Petitioner’s favor,” enabling
him to “accrue more favorable material in his record for
consideration” in future promotions. Id. The Secretary
1. Mitchell also alleged that he had not been properly notified
of his promotion delay, but he does not raise this issue now. Pl.’s
Cross Mot. Summ. J., ECF No. 15 passim.
16a
Appendix B
approved the Correction Board’s recommendation. Id. at
0019.
Mitchell then sought relief from this Court claiming
that the Correction Board’s decision violated the
Administrative Procedure Act. Compl., ECF No. 1. Both
parties have moved for summary judgment. ECF Nos.
13–20. Their motions are ripe for consideration. This
Court has subject-matter jurisdiction under 28 U.S.C.
§ 1331. See Bowen v. Massachusetts, 487 U.S. 879, 891 n.16,
108 S. Ct. 2722, 101 L. Ed. 2d 749 (1988) (finding federal
question jurisdiction for APA claims).
II.
The parties debate at length whether the Court
should engage in arbitrary-and-capricious review or
substantial evidence review, though they agree that there
will be little practical difference. Def.’s Mot. Summ. J.
at 6–8; Pl.’s Cross Mot. Summ. J. at 19–20; Pl.’s Reply,
ECF No. 19 at 9 n.2 (“To the extent that the Secretary
is conceding that in their application to the requirement
of factual support the substantial evidence test and the
arbitrary-and-capricious test are one and the same, LT
Mitchell agrees.”) (cleaned up). The Court agrees with
the Government that arbitrary-and-capricious review
applies to all justiciable issues in the Corrections Board’s
decision, and both parties are correct that it will make
little difference here.
The Court grants summary judgment “if the movant
shows that there is no genuine dispute as to any material
17a
Appendix B
fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). But when a party seeks APA
review, as here, “[t]he entire case on review is a question
of law” rather than fact, so that it can be resolved on the
administrative record at the summary judgment stage.
Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d
1221, 1226, 300 U.S. App. D.C. 263 (D.C. Cir. 1993). The
Court must decide whether to review questions of law
using one of two standards in the APA, “arbitrary and
capricious” review or “substantial evidence” review. 5
U.S.C. § 706(2)(A), (E).
The daylight between substantial-evidence and
arbitrary-and-capricious review illuminates the Court’s
sources of facts. Substantial-evidence review requires the
agency’s supportive factual evidence to be found within
the annals of closed-record, formal agency proceedings.
Phx. Herpetological Soc’y, Inc. v. Fish & Wildlife Serv.,
998 F.3d 999, 1006, 452 U.S. App. D.C. 318 (D.C. Cir. 2021).
Arbitrary-and-capricious review, however, considers
the entire administrative record, including informal
proceedings. Id.; Ass’n of Data Processing Serv. Orgs.
v. Bd. of Govs. of Fed. Reserve Sys., 745 F.2d 677, 684,
240 U.S. App. D.C. 301 (D.C. Cir. 1984). Aside from this
distinction, the D.C. Circuit has called the difference
between the standards of review “largely semantic”
because the arbitrary-and-capricious standard is a
catchall provision including decisions that would not pass
substantial-evidence review. Id. To put it simply, a decision
unsupported by evidence would be arbitrary.
18a
Appendix B
But the distinction is irrelevant here because no
facts lurk below the surface. Mitchell’s adjudication was
an informal proceeding, so substantial-evidence review
does not apply and there is no formal record to review.
In general, Congress has “specifie[d] by statute” that
“[a]djudications to correct a military record must be
supported by substantial evidence” when the Secretary
has specifically “designated” the reviewing board as a
“special board.” McKinney v. Wormuth, 5 F.4th 42, 46
n.1, 453 U.S. App. D.C. 313 (D.C. Cir. 2021); 10 U.S.C.
§ 1558(f)(3). 2 When the Secretary has not so designated
the board, then the adjudication is informal and arbitraryand-capricious review applies. McKinney, 5 F.4th at 46 &
n.1. There is no indication in the record or in the parties’
briefing that the Secretary designated this review board
as a “special” one reviewed for substantial evidence only.
Def.’s Mot. Summ. J. at 10; Pl.’s Cross Mot. Summ. J. at
19–21. So Mitchell’s adjudication was informal. Arbitraryand-capricious review applies.
This Court also agrees with the Government that
arbitrary-and-capricious review is unusually deferential
here. The D.C. Circuit has concluded that the statute
governing “[c]orrection of military records,” 10 U.S.C.
§ 1552(a), “fairly exudes deference” to the Secretary and
the Board. Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1513,
275 U.S. App. D.C. 390 (D.C. Cir. 1989). “The Secretary
of a military department may correct any military
2. Mitchell argues that the Circuit precedent stating as much
is wrongly decided. Pl.’s Cross Mot. Summ. J. at 19–20. Merits
aside—and the argument likely is not meritorious—McKinney
binds this Court.
19a
Appendix B
record . . . when the Secretary considers it necessary
to correct an error or remove an injustice.” 10 U.S.C.
§ 1552(a)(1) (emphasis added). “[T]he question whether a
particular action is arbitrary or capricious must turn on
the extent to which the relevant statute, or other source
of law, constrains agency action.” Kreis, 866 F.2d at 1514.
“While the broad grant of discretion implicated here does
not entirely foreclose review of the Secretary’s action,
the way in which the statute frames the issue for review
does substantially restrict the authority of the reviewing
court to upset the Secretary’s determination.” Id. For
example, the Secretary could “exercise[e] his discretion
not to correct an error” for various reasons, including
“mootness,” redressability, lack of injury, or avoiding any
follow-on injustice and institutional cost. Id.
So the Secretary review ing record correction
under Section 1552 “must give a reason that a court can
measure” against the “arbitrary or capricious” standard,
but “[p]erhaps only the most egregious decisions may be
prevented under such a deferential standard of review.”
Id. at 1516. The Court applies that standard of review to
the Corrections Board’s decision because it was assembled
under Section 1552, no matter which Military Personnel
Manual provisions Mitchell violated. See Pl.’s Cross.
Mot. Summ. J. at 2 (discussing Mitchell’s violations of
the Military Personnel Manual provisions 1611-020(3)(b)
and (c) separately as if arbitrary-and-capricious review
applied to the former and substantial-evidence review
applied to the latter).
20a
Appendix B
III.
Now that the Court has decided how to review, it
must determine what to review. Mitchell seeks an order
to the Navy to promote him to Lieutenant Commander,
retroactively effective to February 1, 2022. Compl. at 25.
The parties argue about whether any aspect of Mitchell’s
promotion is justiciable.
Justiciability is distinct from subject matter
jurisdiction. Oryszak v. Sullivan, 576 F.3d 522, 526, 388
U.S. App. D.C. 64 (D.C. Cir. 2009). The justiciability inquiry
turns on the “inappropriateness of the subject matter for
judicial consideration.” Baker v. Carr, 369 U.S. 186, 198,
82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Courts consider
whether the “duty asserted can be judicially identified and
its breach judicially determined, and whether protection
for the right can be judicially molded.” Id.
Mitchell and the Secretary agree, at least, that the
promotion decision itself is not justiciable because it is
committed to agency discretion. Def.’s Mot. Summ. J.
at 10–11; Pl.’s Cross Mot. Summ. J. at 24–25. The Court
concurs. Kreis, 866 F.3d at 1511; cf. 10 U.S.C. § 628(b)
(1) (entrusting the Secretary with determining whether
promotion selection was “unfair”). But Mitchell maintains
that the Navy’s procedural error in delaying his promotion
is reviewable even if the decision itself is not. The D.C.
Circuit has “emphasize[d]” when reviewing military
Boards of Correction that it “attempt[ed] to identify
whether the decision making process was deficient, not
whether [the] decision was correct.” Dickson v. Sec’y of
21a
Appendix B
Def., 68 F.3d 1396, 1405, 314 U.S. App. D.C. 345 (D.C.
Cir. 1995) (cleaned up). The statutory timeline violation
falls into the procedural side of the Secretary’s decision
because it governs only how long the Secretary may take
to make the decision, not what that ultimate decision is.
The Navy would collapse these questions of substance
and procedure because the procedural delay was not the
reason for his promotion removal; his lack of qualifications
merited removal. Def.’s Reply to Cross Mot. at 6–7. But
the removal’s motivation is irrelevant to the statutory
violation. 10 U.S.C. § 624(d)(5). Indeed, the statute
suggests that this 18-month outer limit applies to the
entire subsection, including the provision allowing delay
for reviewing “adverse information,” as the Secretary
was doing here. Id. (“An appointment of an officer may
not be delayed under this subsection . . . more than
18 months . . . .”); id. § 624(d)(1)(E) (allowing delay for
reviewing “substantiated adverse information”). The
Court cannot use the Secretary’s discretion on the merits
to ignore the statutory deadline separate from the merits.
So, standing alone, is the statutory violation itself
justiciable? Recall that the answer turns on whether the
“duty asserted can be judicially identified and its breach
judicially determined, and whether protection for the right
can be judicially molded.” Baker, 369 U.S. at 198. The
parties agree that there was a statutory breach. But a
violation of 10 U.S.C. § 624(d) is not justiciable because the
Court cannot judicially mold relief. The “duty” question is
more complicated and, ultimately, unhelpful for Mitchell.
22a
Appendix B
To begin, the Court agrees with the parties that the
Navy overly delayed his promotion beyond 18 months in
violation of 10 U.S.C. § 624(d)(5). This was the breach.
The Secretary placed Mitchell’s name on the promotion
list in late 2019, and the Senate confirmed his position
on November 25th of that year. AR 0182–83. Nearly
21 months later, the Navy removed his name from the
promotion list in April 2022. AR 0012. The Corrections
Board reviewing Mitchell’s case agreed with him that the
“overall period of delay exceeded” the time permitted by
internal Navy regulations, which mirror 10 U.S.C. § 624.
AR 0015–16.
Mitchell’s momentary success founders on the other
two prongs of the test. First, duty. The best version of his
argument is that because Section 624 promotes officers
automatically by process of law when the 18-month delay
period expires, the Secretary had a duty to promote him
that this Court can enforce. Pl.’s Cross Mot. at 25. But this
interpretation fails to honor the statute’s text and raises
significant constitutional concerns.
For starters, the statute read holistically does not
make promotion automatic. Subsection (a) states that
“[e]xcept as provided in subsection (d) [authorizing
delay for certain reasons], officers on a promotion list
for a competitive category shall be promoted to the next
higher grade when additional officers in that grade and
competitive category are needed.” 10 U.S.C. § 624(a)(2).
So the statutory default is promotion on an as needed
rather than an automatic basis. Subsection (c) elaborates.
And “[a]ppointments under this section shall be made
23a
Appendix B
by the President, by and with the advice and consent of
the Senate . . . .” 10 U.S.C. § 624(c). Putting these two
subsections together, the President appoints officers as
“needed” from the promotion list, where they were placed
with the “advice and consent of the Senate.”
So how does the delay provision fit? When an officer’s
promotion is delayed, he is funneled away from the usual
(a)(2), “as needed” promotion timeline into subsection
(d), as Mitchell was under (d)(1)(E) while the Secretary
reviewed “substantiated adverse information.” Expiring
the 18-month delay in section (d) could just return the
officer to section (a) where he awaits the President’s “as
needed,” discretionary appointment. Section (a), after all,
excepts the delays enumerated in section (d), and neither
section indicates what happens upon their expiration.
Adopting this reading comports better with the
Constitution than Mitchell’s interpretation. Marbury
v. Madison explains the process when the President
appoints officers “by and with the Advice and Consent
of the Senate.” U.S. Const. art. II, § 2, cl. 2; 5 U.S. (1
Cranch) 137, 155–56, 2 L. Ed. 60 (1803); 10 U.S.C. § 624(c)
(requiring Navy officers to be appointed “by and with the
advice and consent of the Senate”). Senate-confirmed
officers must be (1) nominated by the President, (2)
confirmed by the Senate, and then (3) appointed by the
President. Marbury, 5 U.S. (1 Cranch) at 155–56.
Mitchell effectively argues that after an officer
has been nominated by the President—here, placed on
the promotion list—and confirmed by the Senate, then
24a
Appendix B
Section 624 automatically appoints the officer after
18 months. Not so. The Supreme Court has called the
presidential “appointment” a “voluntary act.” Id. at
155. A congressionally mandated act is not a voluntary
presidential act. And equating the two would undermine
the “livelier sense of duty and [] more exact regard to
reputation” that the Founders envisioned when vesting
the Appointment Power in the President. The Federalist
No. 76 (Alexander Hamilton) (Harold C. Syrett ed., 1962).
The Federal Circuit has twice reached the same
conclusion when rejecting a nearly identical argument
about 10 U.S.C. § 624. Dysart v. United States, 369 F.3d
1303, 1311–12 (Fed. Cir. 2004); Lewis v. United States,
458 F.3d 1372, 1378–79 (Fed. Cir. 2006). In Dysart, a
Naval officer argued that the Secretary had improperly
delayed his promotion beyond the proper subsection (d)
period. Dysart, 369 F.3d at 1310–11. The Federal Circuit
looked toward the Marbury tripartite framework,
an early Attorney General opinion, and the statute’s
subsection (c) requiring that “appointments” be made “by
the President” to conclude that Presidential “nomination
is not an appointment.” Id. at 1311. In other words, the
President placing the officer on the promotion list does
not render him eligible for automatic appointment. The
Federal Circuit declared automatic appointments likely
unconstitutional. Id. at 1314. Congress can omit the
Senate’s role for inferior officers, see U.S. Const. art. II,
§ 2, cl. 2, a step it has taken with officers below the rank
of Lieutenant Commander, 10 U.S.C. § 624(c). But for
any officer of the United States, inferior or otherwise,
final appointment authority lies with the President or his
25a
Appendix B
designee. Dysart, 369 F.3d at 1314–15. The Federal Circuit
construed § 624 consistently with the constitutional
appointment process: “The current statutory language
itself does not clearly compel the President to appoint
military officers.” Id. at 1316.
The military’s reasoning echoes this logic. The
Corrections Board concluded that “[t]he constitutional
appointment process requires an appointment to be
tendered to the officer to be effective, and that requirement
was not fulfilled in this case because the [Secretary] never
determined [Mitchell] to be mentally, physically, morally,
or professionally qualified for the promotion after it was
delayed.” AR 0016. The Secretary placed Mitchell on the
promotion list, he was confirmed by the Senate, and then
he never received the final, voluntary appointment. AR
0052, 0182–83. The facts follow the constitutional process.
Automatic appointment would upend the constitutional,
statutory, and internal military standards that apply.
This Court concludes that the only “duty” the military
had was to funnel Mitchell back into the promotion list
where he could be elevated “when” he was “needed.”
10 U.S.C. § 624(a)(2). That does little for his desired
result. Mitchell’s alternative reading, which fixates on
§ 624(d)’s timeframe, ignores the important preceding
text in subsections (a) and (c), flouts the Federal Circuit’s
considered statutory construction, and upends the
Constitution’s appointment process.
Finally, Mitchell asks for a remedy that cannot “be
judicially molded.” His complaint prays for a judicial order
26a
Appendix B
to the Corrections Board to “promote LT Mitchell to
Lieutenant Commander, effective as of February 1, 2022.”
Compl. at 25. Mitchell requests retroactive promotion.
As both parties agree, the promotion decision itself is
not justiciable. Def.’s Mot. Summ. J. at 10–12; Pl.’s Cross
Mot. Summ. J. at 24–25. Retroactive promotion is the
remedial version of the promotion because it assumes
the truth of the matter asserted—that a promotion was
merited. The D.C. Circuit also has been clear that a
“request for retroactive promotion falls squarely within
the realm of nonjusticiable military personnel decisions.”
Kreis, 866 F.2d at 1511.
The Circuit previously has reinstated military officers
to active duty when the board evaluating their promotions
was improperly constituted under the governing statutes.
Dilley v. Alexander, 603 F.2d 914, 924, 195 U.S. App.
D.C. 332 (D.C. Cir. 1979), decision clarified, 627 F.2d 407,
200 U.S. App. D.C. 354 (D.C. Cir. 1980). But the Circuit
did not retroactively promote the officers; instead, it
reinstalled them to active duty “to be considered again by
two promotion selection boards constituted in accordance
with applicable statutes and regulations.” Id. at 926. That
remedial move avoids the Appointments Clause concern
here. Faced more squarely with a request for retroactive
promotion, this Court will hew to both Dilley and Kreis
in declining to appoint Mitchell retroactively.
27a
Appendix B
IV.
Mitchell also raises a more modest and constitutionally
permissible request. He asks the Court to find that the
Corrections Board was arbitrary or capricious when it
declined to correct his record of detachment for cause based
on (1) an incident of “gross negligence” and (2) a history
of substandard performance. Pl.’s Cross Mot. Summ. J. at
16–23. These other claims “require [this Court] merely to
evaluate, in light of familiar principles of administrative
law, the reasonableness of the Secretary’s decision not to
take certain corrective action with respect to appellant’s
record.” Kreis, 866 F.2d at 1511. “Adjudication of these
claims requires [this Court] to determine only whether
the Secretary’s decision-making process was deficient, not
whether his decision was correct.” Id. On remand, “[t]he
Secretary would remain free” to “reaffirm his original
determination to deny appellant further relief.” Id. at 1512.
Recall that the Court must apply an unusually
deferential arbitrary-or-capricious standard because
the governing statute “fairly exudes deference” to the
Secretary and the Board. See supra Section II. The
Secretary “may correct any military record” when he
“considers it necessary to correct an error.” 10 U.S.C.
§ 1552(a)(1). “Perhaps only the most egregious decisions
may be prevented under such a deferential standard of
review.” Kreis, 866 F.2d at 1515.
28a
Appendix B
A.
First consider Mitchell’s “gross negligence” recordcorrection claim. He contends that the Corrections Board
was arbitrary or capricious when it failed to correct
his record showing detachment for cause based on the
December 11th incident. Pl.’s Cross Mot. Summ. J. at 16.
The Court disagrees.
The military personnel manual allows detachment for
cause based on “[s]ubstandard performance involving one
or more significant events resulting from gross negligence
or complete disregard of duty.” MILPERSMAN 1611020(3)(b). The parties agree that the manual does not
define “gross negligence.” Pl.’s Cross Mot. Summ. J. at
16; Def.’s Opp., ECF No. 18 at 2–3. Mitchell argues that
the military has effectively defined “gross negligence”
and that it has not treated his case in accordance with its
own standards. Def.’s Opp. at 17. So, he continues, this
Court should defer to the agency’s interpretation of its
own regulation under Auer v. Robbins, 519 U.S. 452, 117
S. Ct. 905, 137 L. Ed. 2d 79 (1997). And evaluating his case
under the agency’s own interpretation, he says, requires
correcting his record.
Mitchell’s argument fails at the outset: The military’s
definitions of “gross negligence” would counsel the same
decision that the Navy made here. So the Court need not
determine whether to defer to any military definitions
that might apply.
The Cour t found only one instance when the
military adopted a definition of “gross negligence” under
29a
Appendix B
MILPERSMAN 1611-020, which Mitchell failed to raise.
See Shelly v. Frank, 171 Fed. Cl. 392, 404 (2024). In 2024,
the Board of Corrections for the Navy affirmed an officer’s
detachment for cause under MILPERSMAN 1611-020
due to gross negligence. Id. It adopted “by analogy”
the Secretary of the Navy Instruction’s definition of
“substandard performance of duty” to elaborate “gross
negligence” in MILPERSMAN: the “[i]nability of an
officer to maintain adequate levels of performance or
conduct as evidenced by one or more of these reasons.”
Pol’y Governing Involuntary Separation for Cause or
Parenthood, SECNAVINST 1920.6, Encl. 6(1)(a). 3 Nine
examples follow this definition in the Secretary of the
Navy Instruction Manual. Id. Encl. 6(1)(a)(1)–(9). They
include “[f]ailure to demonstrate acceptable qualities of
leadership required of an officer in the member’s grade,”
“[f]ailure to properly discharge duties assigned to or
expected of an officer in the member’s grade,” and “failure
to conform to prescribed standards of dress, weight,
personal appearance, or military deportment.” Id. Encl.
6(1)(a)(1), (3).
Even if the Court were to consider this definition,
deferring to it as Mitchell requests would not help. “[G]
ross negligence” includes “[f]ailure to properly discharge
duties assigned to or expected of an officer in the member’s
grade.” Mitchell’s commander described Mitchell’s
conduct as “not in line with the expectations of a Naval
Officer of any rank, but especially a senior Department
Head about to be promoted to Lieutenant Commander.”
AR 0239–42. Further, if “failure to conform to prescribed
3. https://perma.cc/3K8F-4BCV.
30a
Appendix B
standards of dress” qualifies, then it is hard to imagine
that Mitchell’s unapproved absence does not. In any event,
the Navy’s decision hardly rises to the “most egregious
decisions” that the statute’s standard of review allows
courts to correct. Kreis, 866 F.2d at 1515.
Mitchell otherwise makes two attempts to define
gross negligence, but neither succeeds. First, he invokes
a District of Columbia case interpreting D.C. tort law as a
definition for “gross negligence.” District of Columbia v.
Walker, 689 A.2d 40, 44 (D.C. 1997). But this case defines
“gross negligence” under the D.C. Code Employee NonLiability Act, specifically “in the context of emergency
vehicle operation.” Id. It is neither binding nor relevant
here.
Next, he asserts that the military has effectively
defined “gross negligence” through adjudication of other
military detachments. Def.’s Opp. at 17. Among the few
federal cases citing MILPERSMAN 1611, one shows that
the military detached an officer for cause for the offense
of drinking alcohol after work hours with his colleagues in
violation of an order that prohibited it for servicemembers
on his assignment. See Debor v. United States, 2023
WL 4417362, at *1, *5 (Fed. Cl. July 7, 2023). Even if a
singular case could establish a standard by adjudication,
it almost certainly would not exclude Mitchell’s conduct
here. Mitchell’s cited cases, Pl.’s Cross Mot. Summ. J. at
17, admittedly display worse facts leading to detachment
for cause. See, e.g., Powe v. Sec’y, Dep’t of Navy, 1994 U.S.
App. LEXIS 22082, 1994 WL 445695 *1 (4th Cir. Aug. 18,
1994) (detaching an officer for cause after running two
31a
Appendix B
ships aground in seven months). But none define “gross
negligence” under MILPERSMAN 1611-020. See, e.g.,
Piersall v. Winter, 507 F. Supp. 2d 23, 27–28 (D.D.C. 2007).
In sum, Mitchell has not shown that the military
has adopted a g ross-negligence standa rd under
MILPERSMAN that would exclude his conduct. Only if
the agency had adopted an interpretation that might be
dispositive here would the Court need to analyze whether
it merited deference.4
B.
Finally, Mitchell requests record correction regarding
his substandard performance of duty over an extended
period. Pl.’s Cross. Mot. Summ. J. at 21–22. He claims
that the Board’s decision was arbitrary and capricious
because (1) his performance was not substandard and
(2) any allegedly substandard performance was very
short-lived so that it did not qualify for MILPERSMAN’s
“extended period” language. MILPERSMAN § 1611020(3)(c). Again, this Court may correct “only the most
egregious” of errors. Kreis, 866 F.2d at 1515.
Reviewing Mitchell’s record raises questions, but
none that rise to the level of a “most egregious” error.
4. The record suggests that the parties are litigating the
wrong legal standard. The commander’s letter repeatedly
references “misconduct” without mentioning “gross negligence,”
which could invoke MILPERSMAN 1611-020(3)(a) instead of (3)
(b). AR 0167, 0248. But because neither party raises the issue, the
Court assumes they are correct. Wannall v. Honeywell, Inc., 775
F.3d 425, 428, 413 U.S. App. D.C. 384 (D.C. Cir. 2014).
32a
Appendix B
His superiors issued a Letter of Instruction on September
9, 2019, intended to help him improve after “failing to
effectively communicate and an inability to complete
routine tasks [within] prescribed timelines.” AR 0109.
The reprimand stemmed from a pattern, not an incident,
of poor performance. Def.’s Mot. Summ. J. at 14. His
skipper details four types of unsatisfactory performance
stretching from November 2018 through January 2020:
(1) submitting weekly reports that were
“routinely late and substandard”;
(2) “lax administrative oversight” causing
his superiors to “personally oversee and
supervise the work of those under him”;
(3) neglecting to develop action plans for critical
events and training; and
(4) lacking required communication with other
ships and his officers when preparing for a
combat trial. AR 0211–12. 5
Then, in October 2019, a commanding officer again
orally counseled Mitchell for “inappropriate behavior
toward subordinates,” “failure to meet standards as
5. Mitchell contends that it helps his case to count the Howard
commander’s comments in the detachment letter as the same piece
of evidence as the Letter of Instruction because the two writings
detail the same events. Pl.’s Cross. Mot. Summ. J. at 21–22. But
this just collapses two pieces of evidence rather than rendering
one irrelevant or controverted. It does not move the needle for him.
33a
Appendix B
a watch stander,” and “failure to accomplish assigned
tasks.” AR 0212–13.
To contradict these negative narratives, Mitchell
proffers his “positive” fitness report for the period between
February through November 2019, the time during which
the USS Howard skipper claimed that he was performing
poorly. Pl.’s Cross Mot. Summ. J. at 22; AR 0108–09.
But the report is less rosy than he suggests. Pl.’s Cross
Mot. Summ. J. at 22. He lauds scoring “at or above Naval
standards in six out of seven possible categories.” Id. In the
seventh category, Mission Accomplishment and Initiative,
Mitchell scored below standards in a ranking called
“progressing,” which was between “below standards”
and “meets standards.” AR 0108. He merely “met
standards” in five of other categories. Id. For the sixth,
he was in a ranking called “above standards,” between
“meets standards” and “greatly exceeds standards.” Id.
The rankings are hardly “gush[ing].” Pl.’s Cross Mot.
Summ. J. at 22. Finally, Mitchell’s emphasis on the overall
“promotable” is misplaced. Id. There are five overall
rankings in ascending order: “Significant Problems,”
“Progressing,” “Promotable,” “Must Promote,” and
“Early Promote.” AR 0109. “Promotable” is no glowing
endorsement. While the overall fitness evaluation was
not dismal, it cannot do the work that Mitchell needs to
undermine the Howard commander’s assessment.
In one final effort, Mitchell asserts that any misconduct
detailed in the record only occurred between September
9, 2019, when he received the Letter of Instruction, and
the December 11th incident. Pl.’s Cross Mot. Summ. J.
34a
Appendix B
at 23. This “short, three-month timeframe” could not
possibly match the “extended period of time” language
in MILPERSMAN 1611-020(3)(c), he argues. Id. But
as the record evidence shows, the misconduct occurred
over a longer period. Mitchell has never combated
his commander’s evidence; he has only minimized its
importance. Id. (dismissing supervisor feedback that he
received the month after the Letter of Instruction as
“minor verbal counseling”). More, the MILPERSMAN
explicitly states that the “extended period of time” in
Section 1611-020(3)(c) has “no fixed time period” to
qualify as a basis for detachment for cause. Rather, the
period “is dictated by the facts and circumstances of the
particular case and the efforts expended by the command
to assist the officer in overcoming perceived performance
deficiencies.” MILPERSMAN 1611-020(3)(c). For these
reasons, Mitchell’s appeals to cases in which officers
misbehaved for seven or nine months do not rescue his
cause. Pl.’s Reply at 10; see, e.g., Powe, 1994 U.S. App.
LEXIS 22082, 1994 WL 445695, at *1. Mitchell has not
proven the Board erred factually or legally, much less
egregiously so, when determining that he had engaged
in a “substandard performance of duty over an extended
period of time.”6
6. If Mitchell argues that the Correction Board found that
he did not exhibit substandard performance of duty, he misreads
the record. Pl.’s Cross Mot. Summ. J. at 10. That page of the
Board’s decision recites procedural history showing that a Naval
Board of Inquiry determined that “substandard performance
of duty” should not be a “basis for involuntary separation,” by
a preponderance of the evidence. AR 0010. Deciding whether
to expel a servicemember from the Navy against his will is
35a
Appendix B
V.
For these reasons, the Defendant’s Motion for
Summary Judgment will be granted. The Plaintiff’s
Cross-Motion for Summary Judgment will be denied. A
separate Order will issue.
2024.11.26
/s/ Trevor N. McFadden 14:56:34 -05‘00’
TREVOR N. McFADDEN
United States District Judge
Dated: November 26, 2024
different from removing him from a certain assignment for poor
performance. Compare MILPERSMAN 1611-020(3)(c) (discussing
the policy governing detachment from a certain duty assignment
for cause) with SECNAVINST 1920.6D, Encl. 7 (showing the policy
governing involuntary separation from the Navy overall for cause).
36a
APPENDIX C — Appendix
OPINIONCOF THE BOARD
FOR CORRECTION OF NAVAL RECORDS,
DEPARTMENT OF THE NAVY,
FILED APRIL 17, 2023
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
SEA
Docket No. 5320-22
Ref: Signature Date
LT ERNEST F MITCHELL USN
919 BOTETOURT GARDENS
NORFOLK VA 23507
Dear Petitioner:
This is in reference to your application for correction
of your naval record pursuant to Section 1552 of Title
10, United States Code. After careful and conscientious
consideration of relevant portions of your naval record
and your application, the Board for Correction of Naval
Records (Board) found the evidence submitted insufficient
to establish the existence of probable material error or
injustice. Consequently, your application has been denied.
The Board determined that your personal appearance,
with or without counsel, would not materially add to their
understanding of the issues involved. Therefore, the Board
determined that a personal appearance was not necessary
and considered your case based on the evidence of record.
37a
Appendix C
You are entitled to have the Board reconsider its decision
upon submission of new matters, which will require you
to complete and submit a new DD Form 149. New matters
are those not previously presented to or considered by
the Board. In this regard, it is important to keep in mind
that a presumption of regularity attaches to all official
records. Consequently, when applying for a correction of
an official naval record, the burden is on the applicant to
demonstrate the existence of probable material error or
injustice.
Sincerely,
4/17/2023
/s/ Bradley J. Goode
BRADLEY J. GOODE
Deputy Director
Signed by: GOODE.BRADLEY.J.1139935450
38a
Appendix C
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
SEA
Docket No. 5320-22
Ref: Signature Date
From: Chairman, Board for Correction of Naval Records
To:
Secretary of the Navy
Subj: REVIEW OF NAVAL RECORD OF LT ERNEST
F. MITCHELL, USN, XXX-XX--XXXX
Ref:
(a)
10 U.S.C. § 1552
(b)
HOWARDINST 3121.1C of 29 Dec 18,
Standing Order Number Eleven
(c)
DODM 4500.36, Acquisition, Management,
and Use of DoD Non-Tactical Vehicles,
7 July 2015
(d)
10 U.S.C. § 624
(e)
D ODI 13 2 0 .14 , D oD C om m i s s ione d
Officer Promotion Program Procedures,
16 December 2020
39a
Appendix C
(f)
SECNAVINST 1420.3, Department of the
Navy Commissioned Officer Promotion
Program, 28 March 2019
(g)
M I L P ER S M A N 16 1 1- 0 2 0 , O f f i c e r
Detachment for Cause, 30 March 2007
Encl: (1)
DD Form 149 w/enclosures
(2)
ALNAV 060/19, subj: FY-20 Active-Duty
Nav y L ieut en a nt Com m a nde r L i ne
Selections, 231500Z Aug 19
(3)
NPC Memo 1420 Ser 833/02 81, subj:
Delay and Possible Removal of Your
Per manent P romotion to Lieutenant
Commander, 16 January 2020
(4)
USS HOWARD CO Memo 1621 DDG 83,
subj: Punitive Letter of Remand, 17 January
2020
(5)
NAVPERS 1626/7, Report and Disposition
of Offense(s), 20 December 2019
(6)
Petitioner’s Memo, subj: Acknowledgment of
Promotion Delay and Intent to Submit a
Statement, 21 January 2020
(7)
Pet it ioner ’s Memo, subj: A pp e a l of
Nonjudicial Punishment, 24 January 2020
40a
Appendix C
(8)
USS HOWARD CO Memo 5800 Ser DDG
8 3 -LGL / 19 0, F i r st Endor sement of
Enclosure (6), subj: Appeal of Non-Judicial
Punishment Imposed on 17 January 2020
ICO [Petitioner], 19 February 2020
(9)
Petitioner’s Counsel Memo, subj: Appeal
of Nonjudicial Punishment ICO [Petitioner],
27 February 2020
(10)
Carrier Strike Group Eleven CO Memo 5812
Ser. N00J/061, subj: Denial of Appeal of
Nonjudicial Punishment ICO [Petitioner],
1 May 2020
(11)
Petitioner’s Memo, subj: Statement in
Response to Punitive Letter of Reprimand,
5 May 2020
(12)
USS HOWARD CO Memo 1611 Ser DDG 83LGL/251, subj: Report of Nonjudicial
Punishment and Request for Detachment
for Cause ICO [Petitioner], 29 June 2020
(13)
Petitioner’s Counsel Memo, subj: Report
of Nonjudicial Punishment and Request for
Detachment for Cause ICO [Petitioner],
14 July 2020
(14)
USS HOWARD CO Memo 1611 Ser DDG
83/261, Second Endorsement on Enclosure
(12), subj: Report of Nonjudicial Punishment
41a
Appendix C
and Request for Detachment for Cause ICO
[Petitioner], 16 July 2020
(15)
Destroyer Squadron Nine CO Memo 1611
Ser N0 0/192 , Third Endorsement on
Enclosure (14), subj: Report of Nonjudicial
Punishment and Request for Detachment
for Cause ICO [Petitioner], 29 July 2020
(16)
Carrier Strike Group Eleven CO Memo 1611
Ser N0 0J/18 3 , Fou r th Endorsement
on Enclosure (14), subj: Report of Nonjudicial
Punishment and Request for Detachment
for Cause ICO [Petitioner], 14 August 2020
(17)
Board of Inquiry Report in the case of
[Petitioner], 16 November 2020
(18)
NPC Action Memo, subj: Fourth Quarter
FY-20 Ratification and Extension for Delay
of Promotion, 13 November 2020
(19)
BUPERS Memo 1611 BUPERS-00B/534,
subj: Detachment for Cause ICO [Petitioner],
14 December 2020
(20)
NPC Memo 1920 Ser 834/672, subj: Status
in the U.S. Navy, 21 December 2020
(21)
Petitioner’s Memo, subj: Delay and Possible
Removal of Promotion to Lieutenant
Commander ICO [Petitioner], 4 January 2021
42a
Appendix C
(22)
USS HOWARD CO Memo 1420 DDG 83/350,
First Endorsement of Enclosure (21),
12 January 2021
(23)
PERS-833 Head E-mail, subj: RE: PERS
833, sent Sunday, February 21, 2021 @ 7:53
PM (and preceding e-mail trail)
(24)
Expeditionary Strike Group Three CO
Memo 1420 Ser N00 040, Third Endorsement
on Enclosure (21), 23 February 2021
(25)
NAV PERS 1610/2 , Fitness Repor t &
Counseling Record (W2-O6) (20000201 –
20210121)
(26)
Carrier Strike Group Eleven CO Memo 1420
Ser N00/108, Fourth Endorsement on
Enclosure (21), 19 April 2021
(27)
Petitioner’s Memo, subj: Statement of
Rebuttal Delay and Possible Removal of
Promotion to Lieutenant Commander ICO
[Petitioner], 14 May 2021 (with enclosures)
(28)
CNO Action Memo, subj: Removal of
Per manent P romotion to Lieutenant
Commander ICO [Petitioner], 17 March 2022
(29)
NPC Memo 1420 Ser 833/0398, subj:
Removal of Your Name from the Fiscal Year
2 0 2 0 A c t ive -D ut y Nav y Lieut en a nt
43a
Appendix C
Commander Line (Unrestricted Line) (URL)
Promotion List, 5 May 2022
(30)
PERS-32 Memo 1610, subj: [Petitioner],
24 August 2022
(31)
BUPERS-00J Memo, subj: Advisory Opinion
ICO [Petitioner], 4 October 2022
1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed enclosure
(1) with the Board for Correction of Naval Records,
hereinafter referred to as the Board, requesting
promotion to Lieutenant Commander (LCDR). Petitioner
also requested the removal of his fitness report (FITREP)
for the reporting period of 1 February 2020 to 31 January
2021, and the removal of all documents from his record
which characterize his detachment from the U.S.S.
HOWARD (DDG-83) as a detachment for cause (DFC).
2. The Board reviewed Petitioner’s allegations of
error or injustice on 12 December 2022 and, pursuant
to its regulations, determined that no corrective action
is warranted. Documentary material considered by
the Board included the enclosures, relevant portions
of Petitioner’s naval record, and applicable statutes,
regulations, and policies.
3. The Board, having reviewed all of the evidence of
record pertaining to Petitioner’s allegations of error or
injustice, finds as follows:
44a
Appendix C
a. Before apply ing to this Board, Petitioner
exhausted all administrative remedies available under
existing law and regulation within the Department of the
Navy (DON).
b. On 23 August 2019, the results of the Fiscal Year
(FY) 2020 Active-Duty Navy LCDR (Line) Promotion
Selection Board (PSB) were announced. Petitioner was
among those officers selected for promotion to LCDR.
See enclosure (2). Petitioner’s projected promotion
date pursuant to this selection was 1 August 2020. See
enclosure (3).
c. On or about 11 December 2019, Petitioner was
assigned to performance duties as the U.S.S. HOWARD
Command Duty Officer (CDO). While on this duty and
without proper relief or authority, Petitioner departed the
ship for between 15 and 60 minutes to move his personal
vehicle and to pick up food from McDonalds.1 In doing
so, he had the duty driver, an E-3, follow him in the duty
vehicle so that he could park his personal vehicle in closer
proximity to the pier at which the U.S.S. HOWARD
was scheduled to dock upon its return to port. After
parking his vehicle, Petitioner had the duty driver take
him to McDonalds to pick up food. When the duty driver
explained that he was unable to go through the drive-thru
1. Other documentation in the record reflects that Petitioner
sought to move his personal vehicle because the ship was scheduled
to sail on the following day, and he realized that he would face a
long walk to retrieve it upon return to the pier to which it was
scheduled to dock. The length of this walk would reportedly have
jeopardized Petitioner’s ability to catch the flight that he had
booked for holiday leave scheduled for the evening of the ship’s
return to port.
45a
Appendix C
lane at McDonalds in a government vehicle, Petitioner had
him stop so that he could get the food inside, and then had
the driver take him back to the ship. Petitioner did not tum
over his duties as CDO during this period, or inform his
CDO under instruction or his superiors, of his departure.
See enclosure (4).
d. By memorandum dated 16 Januar y 2020,
Petitioner was notified that his promotion to LCDR,
scheduled for 1 August 2020, was immediately delayed
based upon the report of potentially adverse or reportable
information related to the events of 11 December 2019.
He was further informed that if the Commander, Navy
Personnel Command (NPC), did not rescind the delay
of his promotion in writing prior to 1 August 2020, the
Secretary of the Navy (SECNAV) would determine
whether the adverse information reported about him
materially affects his qualification for promotion and
whether his entire record makes him qualified for
promotion. See enclosure (3).
e. On 17 January 2020, Petitioner received nonjudicial
punishment (NJP) for the misconduct described in
paragraph 3c above. Specifically, he was charged with
being absent without leave from his duty as the CDO
onboard the U.S.S. HOWARD in violation of Article 86,
Uniform Code of Military Justice (UCMJ); failure to obey
a lawful general order, to wit: reference (c), by wrongfully
utilizing a Department of Defense non-tactical vehicle for
non-official business as a means of personal conveyance,
in violation of Article 92, UCMJ; and conduct unbecoming
an officer and gentleman by wrongfully and dishonorably
abusing and compromising his position of authority as an
officer by ordering the U.S.S. HOWARD duty driving to
46a
Appendix C
drive him on a personal errand at McDonalds while both
in were a duty status and utilizing the duty vehicle. He
received a punitive letter of reprimand (PLOR) for this
misconduct. See enclosure (5).
f. By memorandum dated 17 Janua r y 2 02 0,
Petitioner received the PLOR awarded at NJP. This
PLOR described the misconduct described in paragraph
3c above. See enclosure (4).
g. By memorandum dated 21 Januar y 2020,
Petitioner acknowledged receipt of enclosure (3) and
indicated his intention to submit a statement regarding
this action. See enclosure (6).
h. By memorandum dated 24 Januar y 2020,
Petitioner appealed his NJP, asserting that his punishment
was unjust and disproportionate under the circumstances.
He explained that he departed the ship to move his
personal vehicle because the ship was scheduled to sail on
the following day and he realized that he would otherwise
face a long walk from the pier to which it was scheduled to
dock on 16 December 2020 to his parking location which
might jeopardize his ability to making his flight for holiday
leave. He also claimed that he interpreted the provisions
of reference (b) pertaining to “watchstander liberty” to
permit the CDO to leave the ship for brief periods of less
than an hour to attend to personal matters which, if left
unattended, could later interfere with the performance
of official duties. As such, he claimed to believe his brief
absence to be authorized. He further explained that his
diversion to McDonalds was to retrieve food for his Section
Leader, who had missed evening chow due to a work detail.
See enclosure (7).
47a
Appendix C
i. By memorandum dated 19 February 2020,
Petitioner’s commander forwarded Petitioner’s NJP appeal
to the appeal authority, strongly recommending its denial.
In making this recommendation, Petitioner’s commander
indicated that the circumstances of Petitioner’s CDO duty
were not unique and that it was not the normal course
of duty for the CDO to leave the ship without relief or
authority to tend to personal matters. He stated that it
was imperative that he have his direct representative
(i.e., the CDO) on board and readily available to respond
to any problems involving any one of the many evolutions
that the ship goes through leading up to the underway,
which in this case was scheduled for the following morning.
Furthermore, the CDO is required to obtain and provide
permission to complete evolutions and maintenance
required to get underway, and that Petitioner failed in
his duty to serve as this representative because he was
absent from his post. Petitioner’s commander described
Petitioner’s decision to leave his post because he was
concerned about missing his flight to be “incredibly
selfish, shortsighted, and not in line with the expectations
of a Naval Officer of any rank, but especially a senior
Department Head about to be promoted to [LCDR].”
Petitioner’s commander also reported that this was not
the first time that Petitioner had failed to perform his
duties, as his predecessor for suspended Petitioner’s
CDO qualifications and verbally counseled him for failing
to execute his CDO duties just two months prior. 2 See
enclosure (8).
j. By memorandum dated 27 February 2020,
Petitioner’s counsel supplemented his NJP appeal to
2. Petitioner had failed to make a required report about a
casualty that occurred during his watch.
48a
Appendix C
alleged legal deficiencies in the proceedings. 3 Specifically,
he made the following allegations of legal error:
(1) The specification of absence without leave in
violation of Article 86, UCMJ, was defective in that did not
specify that his absence was for a particular period of time.
He asserted that such language is required by federal law.
By failing to assert his absence for a particular period of
time, Petitioner’s counsel argued that the specification
failed to state a crime and that the finding of guilty against
him was therefore illegal.4
(2) The specification alleging a failure to obey a
lawful order in violation of Article 92, UCMJ, morphed
over time, asserting different violations at different times
in a manner that violated Article 15, UCMJ. Specifically,
he claimed that Petitioner was originally notified of two
specifications of violations of Article 92, UCMJ. The first
specification for which he was notified alleged a violation,
but failed to identify the order violated, while the second
specification alleged a violation of reference (c), without
specifying the conduct constituting the violation. As
3. As noted in enclosure (10), this supplement was not
submitted in a timely manner. Petitioner was excused from a
sailing of the U.S.S. HOWARD in the wake of his NJP so that he
could seek legal counsel and submit a timely appeal.
4. The specific statute cited by Petitioner’s counsel was
Article 86, UCMJ (10 U.S.C. § 886). That statute lists the elements
of the offense, but does not establish any requirements for the
drafting of specifications. The specification for this offense detailed
on enclosure (5) mirrored the model specification for “failing to go
or leaving place of duty” found in the Manual for Courts-Martial
(2019 ed.), page IV-15, 10(e)(1).
49a
Appendix C
such, he claimed that both specifications were legally
insufficient, and that Petitioner’s command must have
recognized this deficiency since it issued enclosure (5) on
the day of his NJP. Petitioner’s counsel alleged further
error in the revised specification of enclosure (5), in that
the timing of its revision deprived Petitioner of sufficient
notice.
(3) The specification of conduct unbecoming
an officer and a gentleman, in violation of Article 133,
UCMJ, is defective on its face as the conduct alleged is
in no way comparable to the conduct legally considered
sufficient to support such a charge. In support of this
contention, Petitioner’s counsel cited to the paragraph
in the Manual for Court-Martial providing examples of
offenses constituting conduct unbecoming an officer and
gentleman to assert that the act of purchasing food at
McDonald’s does not compare with the kind of conduct
which would constituted a violation of Article 133.”56
5. Manual for Courts-Martial (2019 ed.), page IV-135,
paragraph 90(c)(3), regarding Article 133, UCMJ, states:
(3) Examples of offenses. Instances of violation of
this article include knowingly making a false official
statement; dishonorable failure to pay a debt; cheating
on an exam; opening and reading a letter of another
without authority; using insulting or defamatory
language to another officer in that officer’s presence or
about that officer to other military persons; being drunk
and disorderly in a public place; public association with
known prostitutes; committing or attempting to commit
a crime involving moral turpitude; and failing without
good cause to support the officer’s family.”
6. The Board notes that Petitioner’s counsel grossly misstated
the gravamen of the conduct alleged as unbecoming an officer and
50a
Appendix C
See enclosure (9).
k. By memorandum dated 1 May 2020, the NJP
appeal authority denied Petitioner’s appeal.7 This action
referenced both enclosures (7) and (9), and indicated that
the NJP was referred to his Staff Judge Advocate for
advice prior to action. Although the appeal authority stated
that the submission of and arguments made in enclosure
(9) were waived as being untimely, he nonetheless found
those arguments to be incorrect as to the law and facts. He
made the following findings with regard to each offense:
(1) Petitioner’s argument that his absence was
authorized since he was on self-approved “watchstander
liberty” was without merit because such liberty may
only be authorized by the CDO “in an emergency.” In the
absence of an emergency, such liberty must be approved by
the commander. As Petitioner claimed that he believed his
absence to be authorized based upon his experience and
“perceived authority as CDO,” the NJP appeal authority
rejected his assertion that this represented, at worst, “an
aberrant, negligent error” as it “shows a level of calculus
a gentlemen. That conduct was obviously not the act of “purchasing
food at McDonald’s” as Petitioner’s counsel suggested, but rather
it was the “abuse and compromise [of] his position of authority as
an Officer by ordering the USS HOWARD duty driver to drive
[him] on a personal errand.” The specific errand was irrelevant
in this regard, and the gravamen of the conduct alleged was not
unlike the examples of such conduct provided in the Manual for
Courts-Martial.
7. The NJP appeal authority was the Commander, Carrier
Strike Group Eleven. This higher command was located remotely
from the homeport of the U.S.S. HOWARD.
51a
Appendix C
that is more than an unintentional or negligent error.”
The NJP appeal authority rejected the allegation of legal
error made by Petitioner’s counsel, as the actual violation
of Article 86, UCMJ, alleged was “going from appointed
place of duty,” for which all of the elements were met.
(2) Regarding the Article 92, UCMJ, offense,
the NJP appeal authority noted that Petitioner’s counsel
acknowledged in enclosure (9) that this was a proper
charge. He further noted that enclosure (7) demonstrates
that Petitioner was sufficiently on notice as to the charge
to allow him to present a defense. Petitioner’s counsel’s
argument that he was denied the opportunity to present
a defense was rejected, as he was notified of the alleged
violation on 8 January 2020, provided until 11 January
2020 to consult with an attorney, and did, in fact, consult
with an attorney. Further, the revised specification
provided on 17 January 2020 only synthesized the two
separate specifications of which he had already been
notified, and Petitioner had requested and was afforded
addition time to consult with legal counsel after it was
received. Finally, the NJP authority noted that service
members embarked on a ship have no right to consult an
attorney between the notification and imposition of NJP,
and that the inability to consult with an attorney does not
prejudice the NJP but rather denies the Government’s
ability to use such NJP at a subsequent court-martial.
As such, the NJP appeal authority found that Petitioner
was afforded all rights due to him.
(3) With regard to the Article 133, UCMJ,
offense, the NJP appeal authority noted that Petitioner’s
counsel mischaracterized both the law and facts. He found
that as a Surface Warfare-qualified, LCDR-select officer
52a
Appendix C
with 10 years of experience, Petitioner knew, or should
have known, that the E-3 duty driver would interpret his
“request” to be an order. Accordingly, Petitioner ordered
the duty driver to follow him in a government vehicle on a
personal errand to move his personal vehicle, and then to
drive him to McDonalds to get food.” This put the E-3 duty
driver in a difficult position, and set a horrible example.
He noted that this “violation was so obvious that even
[the duty driver] recognized the error and had to correct
[Petitioner].” Accordingly, the NJP appeal authority found
sufficient evidence to support the alleged violation of
conduct unbecoming an officer and gentleman in violation
of Article 133, UCMJ.
After addressing the challenges made to each of the
specific offenses, the NJP appeal authority found that the
punishment was not disproportionate to the offenses, that
Petitioner’s commander did not abuse his discretion, and
that Petitioner’s requested alternative relief of a letter of
instruction (LOI) in lieu of a PLOR was both inappropriate
and unavailable.
See enclosure (10).
l. By memorandum dated 5 May 2020, Petitioner
made a statement in response to his PLOR. The content
of this response essentially mirrored the content of his
NJP appeal, as discussed in paragraph 3h above. 8 See
enclosure (11).
8. The Board presumes this response was provided simply
for filing with the PLOR in order to provide Petitioner’s version
of the events described in the PLOR.
53a
Appendix C
m. By memorandum dated 29 June 2020, Petitioner’s
commander submitted a Report of NJP and request
for DFC pertaining to Petitioner through the chain of
command to NPC. 9 Within this request, Petitioner’s
commander opined that Petitioner’s misconduct “warrants
promotion delay or removal,” but that he “should not
be required to show cause for retention in the naval
service.” In arguing for Petitioner’s DFC, his commander
cited to Petitioner’s “substandard performance over an
extended period of time” in addition to the misconduct
which was the basis his NJP. Specifically, he stated that
“[f]rom approximately November 2018 until approximately
January 2020, despite extensive efforts by the previous
Commanding Officer, myself, and my command to
rehabilitate and develop him, [Petitioner’s] performance
remained substandard and would have, on its own accord,
necessitated his detachment for cause.”10 He cited the
9. This memorandum also ser ved as the command’s
endorsement of Petitioner’s acknowledgement of his promotion
delay.
10. This assertion referenced Petitioner’s FITREPs covering
the periods from 1 February 2019 to 8 November 2019 and from
9 November 2019 to 31 January 2020, as well as a LOI dated 9
September 2019. The LOI addressed Petitioner’s inability to
maintain a direct line of communication with the commander,
his deficient administrative reports, and his inability to properly
plan for or meet administrative requirements or to carry out his
responsibilities, despite engagement by both the commander
and executive officer; unsatisfactory oversight of the Integrated
Training Team (ITT) and Combat Systems Training Team (CSTT)
and failure to develop a plan to ensure the tactical proficiency of
watchstanders, resulting in lagging progress towards readiness
for Crew Certification and Ready for Sea Assessments; failure
to properly execute assigned duties as the Combat Systems Ship
Qualification Trials (CSSQT) Coordinator, including keeping the
54a
Appendix C
following specific failures in Petitioner’s role as Plans and
Tactics Officer and Department Head:
(1) Fa i lu re t o ma i nt a i n a d i rec t l i ne of
communication with the previous commanding officer,
the current commanding officer, and the executive officer,
while also failing to ensure that the commanding officer
was fully informed regarding the condition of all of his
equipment, personnel and noteworthy evolutions within
his Department.
(2) Failure to execute routine administrative
tasks in accordance with prescribed timelines while in
charge of the ship’s administrative executive department.
(3) Failure to prepare the CSTT and ITT for
Crew Certification and Ready for Sea Assessment.
(4) Failure to ensure that the executive officer and
commander were kept apprised of information received
during the ship’s preparation for CSSQT.
He also cited to verbal counseling delivered to Petitioner
by the former commander on 8 October 2019, addressing
Petitioner’s inappropriate behavior towards subordinates;11
executive officer and commander apprised of important decision
and discussion during teleconferences and other planning
meetings with outside entities; and failure to properly execute
designated responsibilities.
11. Petitioner used his positional authority over the ship’s
legal clerk to question her about legal matters not pertaining to
55a
Appendix C
failure to meet standards as a watchstander;12 and failure
to accomplish assigned tasks.13 In addition to all of
these specific instances of substandard performance,
his commander asserted that Petitioner “has had an
overall negative impact upon good order and discipline
within his Department and USS HOWARD as a whole. In
multiple instances, Sailors in his Chain-of-Command made
comments to [the commander] or the Executive Officer
regarding his ineffectiveness as a leader.” Petitioner’s
commander deemed these comments to be credible
based upon his knowledge of the complaining Sailors,
his own observations, and Petitioner’s performance. As
such, Petitioner’s commander expressed no confidence in
Petitioner’s ability to lead, motivate, or provide for a ship’s
good order and discipline. He also opined that Petitioner
has not demonstrated the capacity to perform at the level
of a LCDR, and therefore recommended his removal from
the FY 2020 Active-Duty Navy LCDR (Line) promotion
selection list. See enclosure (12).
n. By memorandum dated 14 July 2020, Petitioner,
through counsel, provided a response to the Report of NJP
and request for DFC described in paragraph 3m above.
him after viewing documents on the commander’s desk that he
erroneously believed pertained to him.
12. Petitioner failed to inform the commander of an equipment
casualty that had been incurred by NR4 Air Conditioning Plant on
5 October 2019, in violation of the commander’s standing orders.
13. Petitioner failed to properly report for duty and execute
his assigned responsibilities as the Visual Information (VI)
Coordinator by not planning or conducting VI drills and training.
56a
Appendix C
He asserted that the DFC request was “legally deficient,
factually inaccurate, incomplete to the point of being
misleading and lacking in required documentation,” and
therefore requested that the DFC request be denied and
that Petitioner’s promotion to LCDR be approved. First,
he reiterated the version of the events of 11 December
2019 provided by Petitioner in his unsuccessful rebuttal to
the PLOR at enclosure (7), asserting that the severity of
this misconduct was exaggerated by the U.S.S. HOWARD
commander and did not warrant DFC. Next, Petitioner’s
counsel challenged the claim of Petitioner’s commander
that Petitioner’s performance of duty was substandard,
challenging each of the specific bases for this claim with
counter arguments and references to previous FITREPs.14
See enclosure (13).
o. By memorandum dated 16 July 2020, Petitioner’s
commander forwarded the Report of NJP and Petitioner’s
response to it through the chain of his command, with
the statement that his request and recommendations
remained unchanged. See enclosure (14).
p. By memorandum dated 29 July 2020, the next
higher commander in Petitioner’s chain of command
endorsed the Report of NJP and DFC request package,
to include Petitioner’s response, concurring with his
commander’s recommendation.15 See enclosure (15).
14. Petitioner’s counsel referred to the effort of Petitioner’s
commander in this regard as “shooting with blanks.”
15. This individual was the Commander, Destroyer Squadron
Nine. In concurring with the recommendation of the U.S.S.
HOWARD commander, he stated “[Petitioner] demonstrated poor
57a
Appendix C
q. By memorandum dated 14 August 2020, the next
higher commander in Petitioner’s chain of commander
endorsed the Report of NJP and DFC request package,
to include Petitioner’s response, also concurring with his
commander’s recommendation that Petitioner be removed
from the FY 2020 Active-Duty Navy LCDR (Line)
promotion selection list and DFC request.16 Despite the
original recommendation that Petitioner not be required
to show cause for retention, this commander exercised his
delegated Show Cause Authority to direct that Petitioner
be required to show cause for retention. See enclosure (16).
r. On 16 November 2020, a Board of inquiry (BOI)
unanimously found that the preponderance of the evidence
supported the allegations that Petitioner violated a lawful
general order in violation of Article 92, UCMJ, and
engaged in conduct unbecoming an officer and gentleman
in violation of Article 133, UCMJ.17 By a vote of 2-1, the
and declining performance on USS HOWARD [sic]. Following a
positive first observed fitness report in January 2019, he received a
letter of instruction in September 2019, and verbal counseling from
the Commanding Officer (CO) in October 2019. He then received a
declining performance fitness report in November 2019. Despite
these intrusive attempts by the CO to improve his performance,
[Petitioner] failed to respond with any noticeable effort. On the
contrary, he demonstrated poor judgement, which led to CO’s
Non-Judicial Punishment in January 2020.”
16. This individual was the Commander, Carrier Strike Group
Eleven. He appears to have been the successor in command to
the officer who denied Petitioner’s NJP appeal in enclosure (10).
17. It does not appear that the allegation of going from his
appointed place of duty in violation of Article 86, UCMJ, was
referred to the BOI.
58a
Appendix C
BOI found that the preponderance of the evidence did
not support substandard performance of duty as a basis
for involuntary separation. Despite its unanimous finding
that the preponderance of the evidence supported the
allegations of misconduct, the BOI voted to recommend
Petitioner’s retention by a vote of 2-1. See enclosure (17).
s. On 20 November 2020, the Commander, NPC,
exercised his delegated authority to ratify and extend
Petitioner’s promotion delay beyond six months in
accordance with references (d)–(f).18 See enclosure (18).
t. By memorandum dated 14 December 2020, the
Deputy Chief of Naval Personnel approved the request
for Petitioner’s DFC due to misconduct and substandard
performance of duty. See enclosure (19).
u. By memorandum dated 21 December 2020,
Petitioner was notified that he was being retained in
the naval service pursuant to the recommendation of
the BOI. He was further notified, however, that this
determination did not preclude or limit the use of the
information and opinions contained in enclosure (12) in
future administrative or other proceedings. See enclosure
(20).
18. Per reference (d), “[a]n appointment of an officer may
not be delayed . . . for more than six months after the date on
which the officer would otherwise have been appointed unless
the Secretary concerned specifies a further period of delay.” Per
enclosure (17), this authority was delegated to the Commander,
NPC, on 2 November 2007.
59a
Appendix C
v. By memorandum dated 4 January 2021, Petitioner
submitted his response to enclosure (3), requesting that
the SECNAV approve his permanent promotion to LCDR
effective on his previously scheduled promotion date
of 1 August 2020. In this response, he admitted to his
“error of judgment” on 11 December 2019, and claimed
to have learned from it while reiterating his version of
the incident that he had previously stated in enclosure
(7) (see paragraph 3h above). In further support of his
request, he cited to the BOI findings and recommendation,
suggesting that the entirety of his service record rebutted
the allegation of substandard performance of duty. See
enclosure (21).
w. By memorandum dated 12 January 2021, the
U.S.S. HOWARD commander endorsed and forwarded
enclosure (21), maintaining his recommendation that
Petitioner’s name be removed from the promotion list.
See enclosure (22).
x. By e-mail dated 19 February 2021, Petitioner’s
new command sought authority from NPC to promote him
to LCDR subject to his “expired” promotion delay.19 In a
response dated 21 February 2021, the NPC Post Selection
Board Matters Section (PERS-833) Head responded that
Petitioner’s promotion delay had not expired and that
he cannot be promoted until a final determination of his
qualifications for promotion is made by the SECNAV. This
response also indicated that the promotion determination
19. Petitioner was temporarily assigned to Expeditionary
Strike Group Three (ESG-3) following his after his NJP while
pending action on the DFC request.
60a
Appendix C
could not be acted upon until his personal statement
and command endorsement are received, indicating that
enclosure (21) had not been received by PERS-833 with
the required command endorsement as of that date. See
enclosure (23).
y. By e-mail dated 23 February 2021, the Commander,
ESG-3, endorsed and forwarded enclosure (21), with his
recommendation that Petitioner be promoted. In making
this recommendation, he specifically withheld comment
on Petitioner’s conduct and performance onboard the
U.S.S. HOWARD, but noted that Petitioner had performed
admirably and at the level of his other LCDRs during his
year of temporary duty on the ESG-3 staff. See enclosure
(24).
z. On 24 February 2021, Petitioner received an
adverse FITREP for the reporting 1 February 2020 to 21
January 2021 documenting his NJP and DFC. Petitioner
indicated his intention not to submit a statement in
response to this FITREP. See enclosure (25).
aa. By memorandum dated 19 April 2021, the
Commander, Carrier Strike Group Eleven, endorsed and
forwarded enclosure (21) without further comment. See
enclosure (26).
bb. By memorandum dated 14 May 2021, Petitioner
supplemented his response to the possible removal of
his name from the promotion list, noting the favorable
endorsement at enclosure (24) and providing a copy of his
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favorable FITREP for the reporting period 6 February
2021 to 14 May 2021, and the certificate for a Navy and
Marine Corps Commendation Medal, awarded to him by
the same flag officer for his “meritorious service while
serving as Deputy Assistant Chief of Staff for Material
and Readiness for ESG-3 from February 2020 through
May 2021, both of which were issued by the author of
Enclosure (24). 20 See enclosure (27).
cc. By memorandum dated 17 March 2022, the
Chief of Naval Operations (CNO) recommended that
the SECNAV remove Petitioner’s name from the FY
2020 Active-Duty Navy LCDR (Line) promotion list. In
making this recommendation, the CNO stated that “[a]
promotion board should have the opportunity to consider
[Petitioner’s] misconduct and DFC” and that he did “not
have the necessary trust and confidence to recommend
[Petitioner’s] promotion to [LCDR].” See enclosure (28).
dd. On 26 April 2022, the SECNAV approved the
recommendation of the CNO and removed Petitioner’s
name from the FY 2020 Active-Duty Navy LCDR (Line)
promotion list. See enclosure (28).
ee. By memorandum dated 5 May 2022, Petitioner
was notified of the SECNAV’s decision to remove his
name from the FY 2020 Active-Duty Navy LCDR Line
promotion list, and that this action constituted a failure of
selection (FOS) for promotion. See enclosure (29).
20. An e-mail message contained within the record reflects
that these materials were added to Petitioner’s promotion package
upon receipt on 14 May 2021.
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ff.
Petitioner requests relief on the following bases:
(1) The removal of his name from the FY 2020
Active-Duty Navy LCDR (Line) promotion list violated
references (d)–(f) because he was not notified in writing
of the further delay in his promotion beyond the initial
six months and because the total period of delay exceeded
that authorized by law. 21
(2) The removal of his name from the FY
2020 Active-Duty Navy LCDR (Line) promotion list
based upon the conduct alleged constituted excessive
punishment in violation of the Eighth Amendment to the
U.S. Constitution and the “Law of Proportionality.” He
admitted to his mistake and lapse of judgment and was
appropriately punished for it, but that conduct should not
result in the removal of his promotion selection and the
resultant FOS for promotion which may ultimately result
in his discharge, especially considering the totality of his
naval career.
(3) The decision to remove Petitioner’s name from
the FY 2020 Active-Duty Navy LCDR (Line) promotion
list was made without consideration of his performance
in his subsequent temporary assignment to ESG-3 or his
current assignment to Maritime Expeditionary Security
Group Two (MESG-2), or the favorable endorsements from
members of the chain of command.
21. Petitioner cited to 10 U.S.C. § 14311 in his application,
but that statutory provision did not apply to his promotion status.
Petitioner’s promotion was governed by reference (d).
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Appendix C
(4) Petitioner’s misconduct was not of the type
which typically warrants DFC. Specifically, he cites to
reference (g), which provides that DFC requests based
upon a significant event must show the officer’s “disregard
or gross negligence associated with the performance of [the
officer’s] duties,” and suggests that his reported conduct
did not suggest gross negligence. Rather, he received
NJP for misconduct which “was isolated, minor, occurred
in a matter of minutes, and was neither malicious, nor
violent, nor associated with substance abuse, nor blatantly
criminal, nor inherently wrongful.” He also disputed
the substandard performance of duty basis for the DFC
request, on the same bases as his attorney had challenged
it in enclosure (13), and asserted that the substandard
performance of duty basis for the DFC request was not
adequately documented in accordance with reference (g).
(5) Finally, Petitioner asserts that this isolated
incident should not outweigh his 13 years of honorable
service.
See enclosure (1).
gg. By memorandum dated 24 August 2022, the NPC
Performance Evaluation Section provided an advisory
opinion (AO) regarding Petitioner’s request to remove
his FITREP for the reporting period 1 February 2020
to 31 January 2021 for the Board’s consideration, finding
no error in the FITREP given the finality of Petitioner’s
NJP and DFC. 22 See enclosure (30).
22. This AO was e-mailed to Petitioner on 14 October 2022
to provide him that opportunity to respond. No response was
subsequently received from Petitioner.
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hh. By memorandum dated 4 October 2022, the NPC
Office of Legal Counsel provided an AO for the Board’s
consideration, recommending that Petitioner’s request
for relief be denied. 23 This AO addressed Petitioner’s
contentions as follows:
(1) Petitioner’s argument that relief is warranted
because his promotion delay exceeded the maximum
period fails because the constitutional process provides
the President with complete discretion in choosing
whether or not to appoint an officer for promotion and no
statute can alter the President’s discretionary authority
by providing for an automatic promotion, even after a delay
in said promotion. The AO also noted that the statutory
provision upon which Petitioner relies clearly states that
officer promotions are discretionary and that an officer
does not have a right to promotion. 24
(2) Petitioner’s argument that his removal
from the promotion list was unjust punishment and an
abuse of discretion fails because officer promotions are
discretionary and an officer does not have a right to
promotion per reference (e). Further, the AO notes that
it is DON policy “to ensure that officers recommended
for promotion remain mentally, physicaly, morally, and
professionally qualified for promotion.” The SECNAV
carefully considered the information adverse to Petitioner’s
23. See footnote 22 above.
24. As noted previously, the statute which Petitioner cited
does not apply to Petitioner’s promotion since he is not a Reserve
Component officer.
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Appendix C
promotion, the CNO’s recommendation, and the matters
submitted by Petitioner for his consideration.
See enclosure (31).
CONCLUSION:
Upon careful review and consideration of all the evidence
of record, the Board found insufficient evidence of any
probable material error or injustice warranting relief.
The Board notes from the outset that Petitioner does not
dispute the misconduct for which he received NJP. While he
disputes the substandard performance of duty described
by the U.S.S. HOWARD commander in his DFC request,
he has repeatedly admitted to a lapse in judgment on 11
December 2019. Accordingly, the controversy regarding
that conduct involves its relative severity, and whether
such misconduct warranted the consequences incurred.
In this regard, the Board found the consequences to
be appropriate under the circumstances. The Board
found that Petitioner has minimized the severity of his
misconduct throughout this process. As an experienced
officer who had been selected for promotion to LCDR, he
knew or should have known not to abandon his post without
relief. Petitioner was the command’s representative onboard the U.S.S. HOWARD when preparations were
underway throughout the ship for sailing on the following
day. Any number of things could have happened during
this period which required his immediate attention and
guidance. Yet, despite this responsibility with which he
was entrusted, he left the ship and utilized government
resources in the form of the ship’s duty driver and a
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Appendix C
government vehicle to perform a clearly personal errand.
Petitioner could have sought permission to leave the ship
to perform this task on his own, or he could have ensured
that his duties were adequately covered by other qualified
personnel, but instead he elected to leave his post without
ensuring adequate coverage of his responsibilities simply
to avoid a long walk upon the ship’s return to port. He
exacerbated this misconduct by further utilizing the
duty driver and the government vehicle to pick up food at
McDonald’s before returning to the ship. In doing so, he
not only placed the duty driver in the untenable position of
having to correct the behavior of a commissioned officer,
but he also continued to demonstrate a blatant disregard
for or ignorance of the urgency of his CDO duties. This
conduct was far more egregious than Petitioner has
repeatedly characterized it, as reflected in the rejection
of his argument by every single senior leader who has
considered his argument, to include the SECNAV. Despite
the egregiousness of Petitioner’s misconduct, the only
actual “punishment” that he received was the PLOR
issued through NJP. That was the minimum level of
punishment that Petitioner should have expected under
the circumstances. The other consequences suffered by
Petitioner did not constitute his “punishment,” but rather
were the natural collateral consequences of NJP for such
blatant and egregious conduct received by an officer with
Petitioner’s experience. That the Petitioner appealed the
decision of the SECNAV to remove his name from the FY
2020 Active-Duty Navy LCDR (Line) promotion list less
than three months after that decision was made, without
offering any new information which was not available to
either the SECNAV or any of the other senior officials
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Appendix C
and legal advisors who would have reviewed the action
before he acted upon it, validated the Board’s conclusion
in this regard.
The Board found no merit in Petitioner’s contention
that the removal of his name from the FY 2020 ActiveDuty Navy LCDR (Line) promotion list constituted
disproportionate punishment for his offense. First, as
stated above, Petitioner’s conduct was far more egregious
than he believes it to be. His failure to recognize the
quality of his behavior alone not only calls into question
his readiness to serve as a LCDR, but it also negates the
credibility of his contention in this regard. Next, as also
stated above, the denial of Petitioner’s promotion was not
a “punishment” per se, but rather is the natural collateral
consequence of an officer of Petitioner’s experience
receiving NJP for such conduct. Petitioner’s conduct on
11 December 2019 raised reasonable doubts regarding the
determination of the FY 2020 Active-Duty Navy LCDR
(Line) PSB that he was among the best qualified officers
for promotion to LCDR. It also raised reasonable doubts
regarding Petitioner’s qualifications to effectively serve in
the next grade. Petitioner’s removal from the promotion
list ensured that those qualifications could be assessed
by a PSB in light of the conduct which drew them into
question. This action did not foreclose the possibility of
Petitioner’s future selection by the next PSB (although
the Board agrees with Petitioner that such selection is
unlikely given the NJP in his record), but rather assures
that Petitioner’s entire record is considered against
those of his peers to ensure that only the best qualified
officers are promoted to LCDR. Finally, the Board did
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Appendix C
not find the overall consequences to be disproportionate
to the misconduct. The PLOR received through NJP was
the minimum punishment that Petitioner should have
expected under the circumstances – he easily could have
received worse. That he lost his promotion as a result
of this misconduct was a natural consequence of that
misconduct and NJP; Petitioner was never entitled to that
promotion and it was denied to him because his conduct
raised reasonable doubts regarding his qualification for it.
The Navy cannot afford to promote officers into positions
or grades for which they are not qualified. Finally, the
removal of Petitioner’s name from the promotion list
does not preclude his selection by either a subsequent
PSB or a selective continuation board. Accordingly, if
Petitioner’s misconduct truly did not warrant the denial
of his promotion pursuant to his selection by the FY 2020
Active-Duty Navy LCDR (Line) PSB as he contends, then
he should theoretically have no problem being selected for
either promotion by the next LCDR PSB which considers
him for promotion or for continuation in his current grade
(if available) with the benefit of his more recent favorable
performance records. 25
25. The Board does not mean to imply that it believes
Petitioner’s selection by a subsequent PSB to be likely under the
circumstances, but notes that the unlikelihood of such selection
(which Petitioner himself acknowledges) highlights the error
in his argument that he should have been promoted despite
his misconduct. The fact that his misconduct makes his future
selection for promotion unlikely validates the determination that
the same misconduct rendered him unqualified for promotion
pursuant to his previous selection.
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Appendix C
The Board found no merit in Petitioner’s contention that
he was not properly notified of the delay to his promotion.
Petitioner is correct that references (d)–(f) require an
officer to be notified in writing of the grounds for a
promotion delay. Petitioner was so notified by enclosure (3),
and acknowledged receipt of that notification in enclosure
(4), long before his projected promotion date. While those
references require written notice of a promotion delay,
they contain no such notification requirement when action
is taken to extend an existing delay beyond the initial six
month period. Petitioner’s original promotion delay was
properly extended beyond the six month period on 20
November 2020 per enclosure (18), less than four months
after his projected promotion date of 1 August 2020. As
there was no statutory or regulatory requirement to do
so, the failure to provide Petitioner notice of this extension
was not an error. Even so, Petitioner was clearly aware
that his promotion delay had been extended, as he did not
submit his response to that delay until 4 January 2021.
Petitioner was correct that the overall period of delay
exceeded that permitted by references (d)–(f). Those
references provide that the appointment of an officer may
not be delayed more than 18 months after the date on which
the officer would otherwise have been appointed, and action
on Petitioner’s promotion was not taken by the SECNAV
until 26 April 2022, nearly 21 months after the date that
he would otherwise have been appointed. The expiration of
this maximum period of delay does not, however, trigger
the automatic appointment of such an officer to the next
higher grade. The constitutional appointment process
requires an appointment to be tendered to the officer to
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Appendix C
be effective, and that requirement was not fulfilled in this
case because the SECNAV never determined Petitioner to
be mentally, physically, morally, or professionally qualified
for the promotion after it was delayed. The Board also
found that this excessive delay did not warrant equitable
relief. While the Board does not condone the excessive
delay in resolving Petitioner’s case, that delay did not
prejudice Petitioner in any way. The SECNAV ultimately
decided to remove Petitioner’s name from the promotion
list, so he was not deprived of any benefit that he would
have received if his promotion delay had been acted upon
in a more timely manner. Additionally, the delay in this
case actually worked to Petitioner’s favor, as it enabled
Petitioner to accrue more favorable material in his record
for consideration by the next PSB which considers him
for promotion. It also extended the time since Petitioner’s
misconduct until his next promotion consideration, thus
limiting any “recency bias” against Petitioner in future
PSB’s deliberations. Ironically, the excessive length of
Petitioner’s promotion delay actually benefits Petitioner
in the end, as it enhances the admittedly small likelihood
of his promotion selection by a subsequent PSB.
Petitioner’s contention that the decision to remove his
name from the FY 2020 Active-Duty Navy LCDR (Line)
promotion list did not take into consideration his subsequent
performance while temporarily assigned to ESG-3 or
the favorable endorsement provided is false. Petitioner
was allowed to supplement his response to the potential
removal of his name from the promotion list with evidence
of this performance at ESG-3 at enclosure (27), and the
record reflects that those matters were incorporated into
the promotion package prepared for SECNAV action.
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Appendix C
Further, the CNO referenced the favorable endorsement
of Petitioner’s promotion made by the ESG-3 commander
based upon his personal observation of Petitioner’s
performance in enclosure (28). Accordingly, the SECNAV
did consider Petitioner’s subsequent performance at
ESG-3 when he decided to remove Petitioner’s name
from the promotion list. Petitioner’s performance at
MESG-2 obviously was not considered in this decision
since no record of it was available at the time that the
decision was made, and because it was irrelevant to the
matter at hand. The Board considered all of the matters
that Petitioner provided with his application, including
character references from numerous senior officers, but
did not find that these matters warranted the relief that
Petitioner seeks. These matters may be used to influence
the decision of a future PSB, but they are not sufficient
to render the SECNAV’s decision to remove Petitioner’s
name from the promotion list as an injustice warranting
relief. The decision to remove Petitioner’s name from the
promotion list was based upon Petitioner’s conduct on 11
December 2019, and his subsequent performance did not
change the nature of that conduct.
Finally, the Board found no error or injustice in Petitioner’s
DFC. Step 3 of paragraph 5 to reference (g) requires the
officer requesting DFC based upon a significant event to
“[p]rovide a detailed statement describing the facts and
circumstances, which support the basis for the request”
and to “describe the event involved, the officer’s duties,
and the disregard or gross negligence associated with the
performance of those duties.” Petitioner claims that the
U.S.S. HOWARD did not comply with this requirement
because enclosure (12) “failed to suggest that [he] showed
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Appendix C
utter disregard for [his] duty or committed an act of “gross
negligence.” Review of enclosure (12) reveals, however,
that the U.S.S. HOWARD commander did in fact describe
the event involved, Petitioner’s duties as a CDO, and
Petitioner’s disregard and gross negligence associated
with the performance of those duties. In addition to
providing a brief narrative of Petitioner’s conduct on
11 December 2019, the U.S.S. HOWARD commander
incorporated by reference Petitioner’s NJP and PLOR.
These documents provided a very detailed description of
the event of 11 December 2019 and, contrary to Petitioner’s
contention, they demonstrate both a clear disregard for
and gross negligence in the performance of Petitioner’s
duties. As
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