Buckingham v. Mabus, Civil Action No. 09–2286 (PLF).

• Decision Date: 28 March 2011
• Docket Number: Civil Action No. 09–2286 (PLF).
• Citation: 772 F.Supp.2d 295
• Parties: Jonathan W. BUCKINGHAM, Plaintiff,v.Ray MABUS, Secretary of the Navy,1 Defendant.
• Court: U.S. District Court — District of Columbia

772 F.Supp.2d 295

Jonathan W. BUCKINGHAM, Plaintiff,

v.Ray MABUS, Secretary of the Navy,1 Defendant.

Civil Action No. 09–2286 (PLF).

United States District Court, District of Columbia.

March 28, 2011.

David Patrick Sheldon, Law Office of David P. Sheldon, Washington, DC, for Plaintiff.Christina Anne Cotter, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

OPINION

PAUL L. FRIEDMAN, District Judge.

Plaintiff Jonathan W. Buckingham seeks judicial review of a decision by the defendant, the Secretary of the Navy, and the Board for Correction of Naval Records, an administrative subdivision of the Navy. The defendant has filed a motion to dismiss Mr. Buckingham's complaint or, in the alternative, for summary judgment. Mr. Buckingham has opposed that motion and filed a cross-motion for summary judgment. Upon consideration of the parties' arguments, the relevant legal authorities, and the entire record in this case, the Court will deny the defendant's motion to dismiss the complaint, grant its motion for summary judgment, and deny the plaintiff's cross-motion for summary judgment.

I. BACKGROUND

Plaintiff Jonathan W. Buckingham received a commission in the United States Navy in May 2006 upon his completion of the Navy Reserve Officers Training Corps (“NROTC”) Scholarship Program. Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment (“DMSJ”) at 2; Plaintiff's Cross–Motion for Summary Judgment (“PMSJ”) at 1. In December 2006, a security officer at a naval retail store located in San Diego, California, observed Mr. Buckingham place two DVDs and a Navy souvenir in his pockets and leave the store without paying for them. Administrative Record (“AR”) at 34. Mr. Buckingham was placed under “military apprehension” and released into the custody of a superior officer. Id. at 36.

In February 2007 Mr. Buckingham was notified that his commanding officer was “considering imposing nonjudicial punishment” on him in connection with the 2006 shoplifting incident. See AR at 42. At the hearing subsequently held by his commanding officer, Mr. Buckingham admitted that he had intentionally taken items from the Naval Exchange store without paying for them in December 2006. Id. at 45. His commanding office elected to discipline him by issuing a nonjudicial punishment (“NJP”) in the form of a “punitive letter of reprimand” on February 16, 2007. Id. That letter, which would remain in Mr. Buckingham's official naval record unless set aside on appeal, stated that Mr. Buckingham committed “misconduct” by “willfully stealing merchandise,” and that Mr. Buckingham's actions “reflect[ed] adversely on the leadership, judgment and discipline required of [him] as an officer.” Id. Mr. Buckingham did not appeal the issuance of the letter of reprimand. Id. at 51.

Despite his issuance of a letter of reprimand, Mr. Buckingham's commanding officer urged his superiors not to punish Mr. Buckingham further, contending that “barring this NJP, [Mr. Buckingham's] performance has been superb.... [H]e is one of the most conscientious and hard-working junior officers in my wardroom.” AR at 51–52. The commanding officer offered a “strong ... personal recommendation that ENS Buckingham not be detached for cause and that he not be required to show cause for retention in the Naval service.” Id. at 52. The Commander of the Navy Personnel Command nevertheless approved an order initiating the administrative separation of Mr. Buckingham from the Navy on June 11, 2007. Id. at 54. A letter dated June 13, 2007, advised Mr. Buckingham that “[a]dministrative action to separate you as a probationary officer has been initiated ... based on” misconduct constituting a “[f]ailure to demonstrate acceptable qualities of leadership required of an officer” and “failure to conform to prescribed standards of military deportment.” Id. at 58. The letter further informed Mr. Buckingham that his discharge would be characterized as “General (Under Honorable Conditions),” and that the Navy might move to recoup the value of educational assistance provided to Mr. Buckingham through the NROTC program. Id. at 58–59.

A request by Mr. Buckingham for a further hearing on his case was denied. See AR at 61, 67. On July 27, 2007, the Commander of the Navy Personnel Command ordered that Mr. Buckingham be separated from the Navy with a General Discharge (under Honorable Conditions), and that he be required to reimburse the Navy $82,841.49, an amount equal to the value of the educational assistance provided to him, prorated to account for time spent in naval service. Id. at 6.

On April 15, 2008, Mr. Buckingham, represented by counsel, filed an application with the Board for Correction of Naval Records (“the Board”). See AR at 10, 11–17. He asked that he be reinstated to his former position in the Navy or, in the alternative, that his discharge be “upgrade[d]” from General Under Honorable Conditions to Honorable, and his educational debt to the Navy cancelled. Id. at 11. He argued that he was entitled to the requested relief “for two reasons.” Id. at 14. First, he asserted that the punitive nature of “the administrative separation greatly outweigh[ed] the incident” that provoked the punishment. Id. In support of that argument, Mr. Buckingham argued that the letter of reprimand he had received was an appropriate and sufficient punishment for his minor misconduct. See id. The non-judicial punishment he had received was “designed as a rehabilitative tool” and had succeeded in rehabilitating Mr. Buckingham; he had “continu[ed] to receive high marks and the esteem of his chain of command in the time following the incident.” Id. at 14–15. Furthermore, the letter of reprimand was no slap on the wrist, as it “would in all likelihood cut ENS Buckingham's Naval career short due to an eventual [ineligibility] for promotion.” Id. at 15. Separating the ensign and demanding the recoupment of educational costs after the issuance of the reprimand inflicted severe punishment “on top of the punishment he had already received” for a “one time lapse in judgment.” Id.

Second, Mr. Buckingham argued that he should be reinstated, or that his discharge should be considered Honorable, because the loss of Ensign Buckingham, “a valuable asset,” was “a detrimental action for the United States Navy.” AR at 14, 16. This was so because Mr. Buckingham's “conduct and performance,” aside from the December 2006 incident, were “exemplary,” as reflected by his record and letters of support written by his superior officers, who described him as “ ‘well above average for his peer group,’ ” as an “ ‘excellent resource,’ ” and as a “ ‘model junior officer.’ ” Id. at 16 (citations omitted). His record, it was argued, constituted “overwhelming evidence that the intended purpose of the NJP Letter of Reprimand ha[d] been served,” because Mr. Buckingham's “conduct and performance since the incident ha[d] been exemplary.” Id.

On January 16, 2009, the Board issued a decision rejecting Mr. Buckingham's application. See AR at 1–2. After summarizing the factual background of Mr. Buckingham's case, the Board stated that it had

carefully weighed all potential mitigation, such as your youth, regret for your misconduct, favorable recommendations, and performance of your duties. The Board also considered the letters of recommendation that you submitted with your application. Nevertheless, due to the seriousness of your misconduct, the Board concluded that these factors were not sufficient to warrant your reinstatement in the Navy, recharacterization of your discharge, or waiving recoupment of your NROTC education costs.

Id. at 2. Mr. Buckingham now seeks judicial review of the Board's decision and requests a finding that the Board's decision “was arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise contrary to law.” Complaint at 6. He asks that the Court “[s]et aside the decision of the” Board, “compel the Defendant” to reinstate him or to waive his education debt, and “upgrade his discharge from General Under Honorable to Honorable.” Id. ¶ B.

II. LEGAL STANDARDS AND JUSTICIABILITY

A. Justiciability and the Administrative Procedure Act

The Secretary of a military department, under procedures established by that Secretary and approved by the Secretary of Defense, and “acting through boards of civilians of the executive part of that military department,” “may correct any military record” of that department when he or she “considers it necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1). The Navy regulations implementing the statute provide for the establishment of a Board for Correction of Naval Records, which is to consist of civilian officers or employees of the Department of the Navy. 32 C.F.R. § 723.2(a). The Board may deny relief without a hearing “if it determines that the evidence of record fails to demonstrate the existence of probable material error or injustice.” Id. § 723.3(e)(2). When the Board denies a petition without holding a hearing, it must render its decision in writing and “include a brief statement of the grounds for denial.” Id. § 723.3(e)(3). Although in some circumstances a Board decision does not become final until it is reviewed by the Secretary of the Navy, the Secretary generally does not review decisions of the Board that deny relief without a hearing. See id. § 723.7(a).²

The defendant in this case urges the Court to hold that Mr. Buckingham's “demand for reinstatement, waiver of indebtedness, and [re]characterization of his discharge” is nonjusticiable because courts generally avoid “interfer[ing] with the military's exercise of discretion in internal military matters.” DMSJ at 10. But while some forms of relief requested by Mr. Buckingham may be well outside the scope of the Court's remedial power, see Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1511 (D.C.Cir.1989), the substance of his...