Bolton v. Dep't of the Navy Bd. for Corr. of Naval Records

• Decision Date: 18 January 2019
• Docket Number: No. 18-3284,18-3284
• Citation: 914 F.3d 401
• Parties: William G. BOLTON, Plaintiff-Appellant, v. DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

914 F.3d 401

William G. BOLTON, Plaintiff-Appellant,

v.DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS, Defendant-Appellee.

No. 18-3284

United States Court of Appeals, Sixth Circuit.

Decided and Filed: January 18, 2019

ON BRIEF: Thomas F. Hull, II, MANCHESTER NEWMAN & BENNETT, Youngstown, Ohio, for Appellant. Ruchi V. Asher, James R. Bennett, II, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: COLE, Chief Judge; SUHRHEINRICH and MOORE, Circuit Judges.

SUHRHEINRICH, Circuit Judge.

Plaintiff William G. Bolton petitioned Defendant Department of the Navy Board for Correction of Naval Records (BCNR) to expunge the summary-court martial from his military record based on his guilty plea to three military charges related to his arrest for driving while drunk on the Marine Corps Base Camp Lejeune, North Carolina. The BCNR held that it lacked the statutory authority to set aside the findings of a summary court-martial. Bolton challenged the BCNR's ruling in federal court. The district court granted the BCNR's motion to dismiss Bolton's amended complaint and he appealed to this court. We AFFIRM.

I. Background

A. Military Justice

The Uniform Code of Military Justice (UCMJ) has four methods for addressing offenses by servicemen: general courts-martial, UCMJ art. 18, 10 U.S.C. § 818 ; special courts-martial, UCMJ art. 19, 10 U.S.C. § 819 ; summary courts-martial, UCMJ art. 20, 10 U.S.C. § 820, and non-judicial punishment, UCMJ art. 15, 10 U.S.C. § 815. See Middendorf v. Henry , 425 U.S. 25, 31, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976). Middendorf explains that

General and special courts-martial resemble judicial proceedings, nearly always presided over by lawyer judges with lawyer counsel for both the prosecution and the defense. General courts-martial are authorized to award any lawful sentence, including death. Art. 18 UCMJ, 10 U.S.C. [§] 818. Special courts-martial may award a bad-conduct discharge, up to six months' confinement at hard labor, forfeiture of two-thirds pay per month for six months, and in the case of an enlisted member, reduction to the lowest pay grade, Art. 19, UCMJ, 10 U.S.C. [§] 819.

Id. (footnote omitted).

By contrast, a nonjudicial punishment is less serious than a summary court-martial. See Manual for Courts-Martial , United States [ MCM] pt. V, para. 1.c. ("Nonjudicial punishment provides commanders with an essential and prompt means of maintaining good order and discipline and also promotes positive behavior changes in servicemembers without the stigma of court-martial conviction."); UCMJ art. 15, 10 U.S.C. § 815. "Article 15 punishment, conducted personally by the accused's commanding officer, is an administrative method of dealing with the most minor offenses." Middendorf , 425 U.S. at 31–32, 96 S.Ct. 1281. Summary court-martial is somewhere in between. As Middendorf clarifies:

The summary court-martial occupies a position between informal nonjudicial disposition under Art. 15 and the courtroom-type procedure of the general and special courts-martial. Its purpose, "is to exercise justice promptly for relatively minor offenses under a simple form of procedure." Manual for Courts-Martial P 79A (1969) (MCM). It is an informal proceeding conducted by a single commissioned officer with jurisdiction only over noncommissioned officers and other enlisted personnel. Art. 20, UCMJ, 10 U.S.C. [§] 820. The presiding officer acts as judge, factfinder, prosecutor, and defense counsel. The presiding officer must inform the accused of the charges and the name of the accuser and call all witnesses whom he or the accused desires to call. M P 79D (1). The accused must consent to trial by summary court-martial; if he does not do so trial may be ordered by special or general court-martial, or the case will be either dismissed or referred to a special or general court-martial.

The maximum sentence elements which may be imposed by summary courts-martial are: one month's confinement at hard labor; 45 days' hard labor without confinement; two months' restriction to specified limits; reduction to the lowest enlisted pay grade; and forfeiture of two-thirds pay for one month. Art. 20, UCMJ, 10 U.S.C. [§] 820.

Id . at 32-33, 96 S.Ct. 1281 (footnote omitted); see also Rule For Courts-Martial ( RCM) 1301(b) ("Function . The function of the summary court-martial is to promptly adjudicate minor offenses under a simple procedure. The summary court-martial shall thoroughly and impartially inquire into both sides of the matter and shall ensure that the interests of both the Government and the accused are safeguarded and that justice is done.").

B. Facts and Procedural History

The following facts are taken from the amended complaint and attached exhibits, accepted as true for purposes of appeal. Bolton entered the Marine Corps on August 22, 2006. On August 6, 2010, he was arrested for speeding and driving under the influence on the base camp. Bolton was issued a U.S. District Court Violation Notice, a DD Form 1805, for driving while intoxicated, and an Armed Forces Traffic Ticket, a DD Form 1408, for speeding and driving while intoxicated.¹ Bolton was ticketed as driving eighty-two miles per hour in a fifty-mile per hour speed zone, with a blood alcohol content of 0.24. Bolton signed both tickets and acknowledged that he was required to appear before an on-base traffic court on August 13, 2010, as directed on the ticket.

Bolton was also informed that he would face court-martial under the following articles of the Uniform Code of Military Justice: (1) Article 89 (Disrespect of a Commissioned Officer); (2) Article 92 (Unregistered Firearm on Base); and (3) Article 111 (Driving Under the Influence). These charges were initially brought as a criminal prosecution pursuant to a special court-martial, but Bolton entered into a pre-trial agreement to resolve them by accepting a non-criminal summary court-martial,² based on advice by military defense counsel that all charges, including those assigned to the federal court, would be disposed of by the court-martial. He was not informed that his citation would still be heard by the base court.

As a result of this advice, Bolton did not appear at the base traffic court on August 13, 2010. He was convicted of driving under the influence, a violation of North Carolina General Statutes Section 20-138.1, and his on-base driving privileges were suspended. As a further result of the base court conviction, Bolton's driver's license was also administratively suspended effective November 4, 2010, by the state of North Carolina for a period of one year. The state of Ohio followed suit on November 24, 2010, but later removed the suspension.

Bolton's plea agreement was accepted on August 21, 2010. On August 30, 2010, Bolton pleaded guilty to all three military charges at the summary court-martial. As a consequence, he received a reduction in rank (by three pay grades), a forfeiture of $964, and fourteen days restricted confinement to the 3d Battalion, 2d Marine Regiment.

On October 1, 2010, Bolton completed his active duty service obligation and was honorably discharged. His discharge lists a reenlistment code of RE-1A, meaning that he was eligible to reenlist.

In 2015, Bolton filed a petition with the BCNR to have the summary court-martial expunged from his military record, claiming that he received inadequate legal counsel and was subject to multiple prosecutions for the same incident through the summary court-martial and the civilian courts. On September 21, 2016, the BCNR held that it did not have the statutory authority to set aside the findings of a summary court-martial. The BCNR also sua sponte reviewed the application for clemency, and based on "its review of [the] entire record and application, ... [including the] assertions of inadequate legal counsel in [the] court-martial case," concluded that "the circumstances and serious nature of your misconduct did not warrant clemency in the form of changing the sentence awarded by the summary court-martial."

On December 8, 2016, Bolton filed a complaint in federal district court, and amended it on April 17, 2017. Bolton alleged that the BCNR's decision was arbitrary and capricious under 10 U.S.C. § 1558(f)(3) because: (1) it failed to consider his defenses of double jeopardy and ineffective assistance of counsel; and (2) lacked a complete record. Bolton also complained that he was not given the chance to address the evidence used against him. He asked the district court to expunge his court-martial and restore his rank to Corporal.

The district court dismissed the amended complaint on January 29, 2018. The court held that (1) Bolton did not state a claim for double jeopardy because neither the summary court-martial nor the base court conviction constituted a "criminal punishment" to which jeopardy attached; and (2) the BCNR did not have authority to grant Bolton's requested relief. In a footnote, the court observed that BCNR considered Bolton's petition as an application for clemency and denied it "with explanation." Bolton appeals.

II. Jurisdiction

Bolton sought judicial review of BCNR's decision under 10 U.S.C. § 1558(f). Venue was proper under 28 U.S.C. § 1402 because Bolton resides within the territorial jurisdiction of the court. The district court granted the BCNR's motion to dismiss and entered judgment on January 29, 2018. Bolton filed this timely notice of appeal on March 29, 2018. We have appellate jurisdiction under 28 U.S.C. § 1291.

III. Standard of Review

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). We "consider[ ] the complaint in its entirety," including "documents incorporated into the complaint by...