Barna v. United States, No. 15-165C

CourtCourt of Federal Claims
Writing for the CourtHORN, J.
PartiesVINCENT E. BARNA, Plaintiff, v. UNITED STATES, Defendant.
Docket NumberNo. 15-165C
Decision Date21 June 2016

VINCENT E. BARNA, Plaintiff,

No. 15-165C

United States Court of Federal Claims

June 21, 2016

Military Pay; Promotion; Motion to Dismiss for Failure to State a Claim; Cross-Motions for Judgment on the Administrative Record; Motion to Supplement the Administrative Record.

Eric S. Montalvo, The Federal Practice Group Worldwide Service, Washington, D.C. for plaintiff.

Christopher L. Harlow, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, D.C., for defendant. With him were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, Washington, D.C. Of counsel was Steven Gonzales, Lieutenant Commander, United States Navy, Office of the Judge Advocate General, Washington, D.C.




In the above-captioned case, Mr. Vincent Barna seeks "military pay and benefits, military separation pay and benefits, and correction of military records" based on what he alleges was a wrongful discharge from the United States Marine Corps. Mr. Barna enlisted in the Marine Corps on August 30, 2000 and entered active duty on November 29, 2000. Between 2003 and 2006, Mr. Barna served three combat tours in Iraq. In October 2005, Mr. Barna was accepted to attend the Marine Enlistment Commissioning Education Program (MECEP), which allows selected enlisted Marines the opportunity to earn a bachelor's degree and a commission as an officer in the Marine Corps. As part of the MECEP program, Mr. Barna began attending California State University at San Marcos in August 2006 as a full time student, where he was attached to the Naval Reserve Officers Training Corps (NROTC) unit affiliated with the University of San Diego and San Diego State University. Mr. Barna was promoted from Sergeant to Staff Sergeant on March 1, 2008, while he was attending the MECEP program.

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On February 3, 2010, Mr. Barna was arrested for driving under the influence of alcohol (DUI) in San Marco, California, which set in motion the events leading to his discharge and the present lawsuit. According to the police report of the California Highway Patrol, at approximately 1:53 a.m. on February 3, 2010, Mr. Barna's vehicle was stopped by a California Highway Patrol officer after the officer observed Mr. Barna speeding and "having a difficult time maintaining proper roadway position." Upon approaching Mr. Barna's vehicle, the officer noticed that Mr. Barna's eyes were bloodshot and that he had an unusually large amount of tobacco in his mouth. Despite the strong smell of tobacco, the officer could smell alcohol in the vehicle. The officer proceeded to administer four field sobriety tests to Mr. Barna, on all of which Mr. Barna performed poorly. The officer then administered a preliminary alcohol screening device two times, which showed Mr. Barna's blood alcohol level as 0.186% and 0.181%. Believing, as a result of these tests, that Mr. Barna had been driving under the influence of alcohol, the officer placed Mr. Barna under arrest.

After being informed he was under arrest, Mr. Barna stated to the officer: "Sir, can we just call my girlfriend to come and pick me up? I'm a Marine sir. I attend Cal State San Marcos and am going to become an officer very soon." The officer informed Mr. Barna that he could not do what Mr. Barna was asking and placed Mr. Barna in his patrol vehicle to take to a detention facility. While on route to the facility, Mr. Barna, unprompted, asked the officer about the legal process he would face, and, after the officer began to describe the arraignment process, Mr. Barna interrupted him to sarcastically ask: "And that's when I use my lawyer to come up with something fictitious to beat this right? This is beatable." After arriving at the booking facility, the arresting officer administered two more breath tests on Mr. Barna at 2:45 a.m. and 3:00 a.m., which both showed a blood alcohol level of 0.15%. According to the officer, Mr. Barna also stated that his brother was a sheriff and that he was confident he could beat the charge.

On the day of his arrest, February 3, 2010, Mr. Barna notified his command that he had been arrested for a DUI. On February 23, 2010, Mr. Barna received notification that the commander of his NROTC was offering him Non-Judicial Punishment for the DUI. Non-Judicial Punishment is a disciplinary measure more serious than administrative corrective measures imposed by military commanders, such as counseling, admonitions, reprimands, exhortations, disapprovals, criticisms, censures, reproofs, rebukes, extra military instruction, and administrative withholding of privileges, but less serious than trial by court-martial. See Manual for Courts-Martial, Part V, ¶ 1.B (2008). Subject to the applicable regulations, a commander may impose Non-Judicial Punishment upon any military personnel under his or her command for any act or omission that he or she determines to be a "minor" offense, ordinarily those for which the maximum sentence imposable at a court-martial would not include a dishonorable discharge or confinement for longer than one year. See id. at Part V, ¶¶ 1.e, 2.a. On March 19, 2010, Mr. Barna refused Non-Judicial Punishment and instead elected to face a court-martial. Such a refusal results in the automatic termination of Non-Judicial Punishment proceedings. See id. at Part V, ¶ 4.b(1) ("If the servicemember demands trial by court-martial (when this right is applicable), the nonjudicial proceedings shall be terminated.").

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In a letter dated April 8, 2010, the commanding officer of Mr. Barna's NROTC unit informed Mr. Barna that, on April 16, 2010, a Performance Review Board would be held to investigate and make recommendations on Mr. Barna's "failure to maintain standards as a student in the MECEP Program."1 The April 8, 2010 letter informed Mr. Barna that, at the Performance Review Board, he would have the right to appear before the Board, submit statements and present documents on his own behalf, and review his personnel file. The letter also informed Mr. Barna that the possible outcomes the Performance Review Board could recommend to his commanding officer were either no action, a warning, probation, or disenrollment form the MECEP. The Performance Review Board hearing was held on April 16, 2010 with Mr. Barna and his attorney present. At the conclusion of the Performance Review Board hearing, the Performance Review Board members unanimously voted to recommend to Mr. Barna's commanding officer that he be disenrolled from the MECEP program. On May 10, 2010, the commanding officer of Mr. Barna's NROTC unit endorsed the Performance Review Board's recommendation, and, on September 8, 2010, the Commander of the Naval Services Training Command did the same. On September 27, 2010, Mr. Barna was disenrolled from the MECEP program. Concurrently with his disenrollment, Mr. Barna was demoted from Staff Sergeant to Sergeant in accordance with Marine Corps Order P1400.32D. After the Performance Review Board's recommendation that Mr. Barna be disenrolled from MECEP, he was reassigned to Marine Corps Recruit Depot (MCRD), San Diego, and on June 1, 2010, Mr. Barna reported to Headquarters and Service Battalion, MCRD, San Diego, then under the command of Col. Stephanie Smith, United States Marine Corps.

On July 15, 2010, two charges for violations of Articles 107 and 111 of the Uniform Code of Military Justice (UCMJ), both arising out of the February 3, 2010 DUI incident, were preferred against Mr. Barna.2 On August 10, 2010, Col. Smith referred the same

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two charges against Mr. Barna to a special court-martial.3 The charges alleged that Mr. Barna had violated UCMJ Article 107 by making a false statement during the Performance Review Board hearing and UCMJ Article 111 by driving drunk and recklessly, while on active duty, on February 3, 2010. The version of Article 107 in place during the relevant period, titled "False official statements," stated: "Any person subject to [the UCMJ] who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct." UCMJ, Art. 107 (2006). The version of Article 111 in place during the relevant period, titled "Drunken or reckless operation of a vehicle, aircraft, or vessel," stated, in relevant part:

Any person subject to [the UCMJ] who . . . operates or is in actual physical control of any vehicle, aircraft, or vessel while drunk or when the alcohol concentration in the person's blood or breath is equal to or exceeds the applicable limit [the lesser of the blood alcohol content limit under the law of the State in which the conduct occurred, 0.10 grams of alcohol per 100 milliliters of blood, or 0.10 grams of alcohol per 210 liters of breath], shall be punished as a court-martial may direct.

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Id. at Art. 111(a).

On September 2, 2010, Mr. Barna and his defense attorney signed a Pre-Trial Agreement, which was subsequently signed and approved by Col. Smith on September 29, 2010. In the first paragraph of the Pre-Trial Agreement, Mr. Barna agreed to the following:

1. For good consideration and after consultation with my defense counsel, I agree to enter a plea of GUILTY to the charges and specifications listed below at NONJUDICIAL PUNISHMENT, provided the convening authority agrees to withdraw the charges and specifications made against me at a pending special court-martial.

(emphasis and capitalization in original). In paragraph 8 of the Pre-Trial Agreement, Mr. Barna agreed to plead guilty to a violation of UCMJ Article 111 and the following specification for that charge:

In that Staff Sergeant Vincent E. Barna, United States Marine Corps, while on active duty, did, on or about 3 February 2010, on eastbound State Route 76 at

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