Exnicios v. United States

• Decision Date: 24 August 2018
• Docket Number: No. 17-1424C,17-1424C
• Parties: ADAM L. EXNICIOS, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

ADAM L. EXNICIOS, Plaintiff, v. UNITED STATES, Defendant.

No. 17-1424C

United States Court of Federal Claims

Reissued: September 11, 2018¹

August 24, 2018

Military Pay Act; Motion to Dismiss; Cross-Motions for Judgment on the Administrative Record; Waiver; Justiciability; Unlawful Command Influence; Due Process.

John B. Wells, Law Office of John B. Wells, Slidell, LA.

Daniel K. Greene, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Chad A. Readler, Acting Assistant Attorney General. Of counsel was Yolanda McCray Jones, United States Army Litigation Division, Military Personnel Branch, Washington, D.C.

OPINION

HORN, J.

Plaintiff is a former Foreign Area Officer in the United States Army (Army) who was discharged from the Army on August 28, 2014, with an honorable characterization of service. On March 7, 2014, a Field Board of Inquiry recommended that plaintiff be eliminated from the Army based on misconduct and substandard performance of duty with a general, under honorable conditions, characterization of service. On July 10, 2014, an Army Board of Review for Eliminations (Board of Review) recommended that plaintiff be eliminated from the Army based on misconduct and substandard performance of duty with an honorable characterization of service. On August 6, 2014, the "Deputy AssistantSecretary (Army Review Boards)" (Deputy Assistant Secretary) approved the Board of Review's recommendation that plaintiff be involuntarily eliminated from the Army based on misconduct and substandard performance of duty with an honorable characterization of service. On August 28, 2014, the Army discharged plaintiff after approximately sixteen years of military service. On October 3, 2017, plaintiff filed a complaint in the above-captioned case, asserting that the Army's decision to separate plaintiff was arbitrary and capricious and was subject to unlawful command influence. In plaintiff's cross-motion for judgment on the administrative record, plaintiff also alleges the Army's elimination proceedings deprived plaintiff of due process, the Field Board of Inquiry improperly considered evidence, and one of the Army's bases for elimination was improper.

FINDINGS OF FACT

In 1998, plaintiff graduated from Louisiana State University and Agricultural and Mechanical College with a Bachelor of Arts degree. On August 6, 1998, plaintiff was appointed to serve as a Reserve Commissioned Officer in the Army and was assigned to the Army's Field Artillery Corps. On April 2, 1999, plaintiff states that he completed "the Field Artillery Officer Basic Course," which qualified him to "perform the duties of Platoon Leader, Fire Direction Officer, and Company Fire Support Officer." Plaintiff states that he was required to maintain a Secret security clearance as a Field Artillery Officer. On March 1, 2002, plaintiff was promoted to the rank of Captain, and, on February 1, 2008, plaintiff was promoted to the rank of Major.

In 2008, the Army began training plaintiff as a Foreign Area Officer. According to defendant, "[f]oreign area officers are commissioned officers who are 'regionally-focused experts in political military operations with advance [sic] language skills, cultural understanding, and the ability to advise senior military and civilian strategic decision-makers' on a variety subjects pertinent to the specific region on which the officer is focused." (quoting Foreign Area Officer Branch, UNITED STATES ARMY (Oct. 13 2017), https://www.hrc.army.mil/officer/foreign%20area%20officer%20branch). Plaintiff states, "[a]s a FAO [Foreign Area Officer], Exnicios was considered to be a political-military expert in the assigned area," which plaintiff indicates was Eurasia. As a Foreign Area Officer, plaintiff and defendant state that plaintiff was required to maintain a Top Secret security clearance with eligibility to access Sensitive Compartmented Information. According to plaintiff, as part of his security clearance process, plaintiff completed a government form SF-86 questionnaire for a national security position, which "required Exnicios disclose any foreign nationals with whom he had 'close and/or continuing contact.'" Plaintiff states he "underwent training on the reporting requirement," and that plaintiff's understanding was "the requirement was geared towards the time that he assumed his FAO [Foreign Area Officer] duties in Moscow."

In 2011, plaintiff graduated from Columbia University with a master's degree in international affairs. On January 10, 2012, when plaintiff "was pending assignment to DAO [Defense Attaché Office] Moscow with a flight scheduled for 11 Jan 2012," an Agent from the Defense Intelligence Agency (DIA) interviewed plaintiff. According to the DIA Agent's Report dated January 17, 2012 (DIA Agent's Report), on January 4, 2012, a confidential source had informed investigators at the DIA that plaintiff had madeunreported contact with a Ukrainian female "during a US Army training course from Jan 2011 to Apr 2011." The DIA Agent's Report indicates that plaintiff had not disclosed his contact with the Ukrainian female during an interview with DIA on June 7, 2011. The DIA Agent's Report indicates that plaintiff "passed a DIA issued Counterintelligence scope polygraph examination on 27 May 2011" before his June 7, 2011 interview.

During the January 10, 2012 interview, plaintiff disclosed that he had had unreported contact with two separate women, both of whom plaintiff identified as being Ukrainian. According to the DIA Agent's Report, plaintiff stated he had unreported contact with a Ukrainian woman named Okasana,² who was a Ukrainian national who worked for the Ukrainian Ministry of Foreign Affairs, when plaintiff was in Foreign Area Officer training in Germany in 2008. During his Foreign Area Officer training, plaintiffs' entire seminar, including plaintiff and Okasana, went on a trip to Washington, D.C. Plaintiff stated that he and Okasana separated from their seminar during the trip to Washington, D.C. and went on a shopping trip in Tyson's Corner, Virginia, where Okasana tried on and modeled dresses for plaintiff. Plaintiff, however, denied any intimate contact with Okasana while on the seminar trip in Washington, D.C. After plaintiff's seminar, plaintiff, and Okasana returned from Washington, D.C. to Germany, plaintiff and Okasana attended an "official function" at the Community Club at the Marshall Center in Germany. Plaintiff "advised that at the official function, HE became intoxicated and kissed" Okasana. (capitalization in original). Plaintiff's friend's wife witnessed plaintiff kiss Okasana and "threatened to tell SUBJECT's [plaintiff's] wife of the incident." (capitalization in original). The next day, plaintiff stated that he told his wife about the incident at the Community Club, and, "explained to HIS wife that he had a 'crush' on [Okasana]." (capitalization in original). Plaintiff "advised that HE felt a strong emotional bond with HER." (capitalization in original). Plaintiff, however, "denied that HE and [Okasana] had any intimate relations other than the one kiss which they shared at the official function in Germany." (capitalization in original). Plaintiff also stated that he informed Okasana that he "was truthful with HIS wife," that Okasana "was upset HE wasn't more secretive about their relationship" (capitalization in original) and plaintiff indicated that, subsequently, Okasana began dating one of their classmates. According to plaintiff, he did not maintain Okasana's contact information and Okasana did not attempt to contact him after their seminar ended in December 2008. Plaintiff "advised that HE did not report HIS contact with [Okasana] during HIS security interview with the DAC-4 Investigations Division inJun 2011 because HE wanted to 'disassociate' HIMSELF from the situation. HE did not want it to affect HIS job and HIS family." (capitalization in original).

During the January 10, 2012 interview, plaintiff also "admitted to being in contact with a Ukrainian female circa Spring 2011." Plaintiff stated that the other Ukrainian woman plaintiff met in the spring of 2011 was named Yuliya, and that plaintiff met Yuliya when they both were attending graduate school at Columbia University.³ Plaintiff indicated to the DIA Agent that he and Yuliya were in the "same seminar" from January 2010 to December 2010, and, in December 2010, plaintiff and Yuliya, who plaintiff indicated "was an attractive female," went to dinner. Plaintiff and Yuliya "had a long dinner and many drinks" and "shared personal conversation," and plaintiff "asked her questions about why she was not married." Plaintiff also indicated that he discussed his family and told Yuliya that "HE did not want to 'screw up' with HIS wife/family." (capitalization in original). Plaintiff denied having any intimate contact with Yuliya and claimed that the only physical contact he had with Yuliya "was a hug goodbye after the dinner." Plaintiff stated that he and Yuliya remained "friends" on Facebook, and that his last contact with Yuliya was in the spring of 2011 when they discussed "summer plans." Plaintiff stated that he believed he had informed Yuliya that he was going to be traveling to Russia for work during the upcoming summer. The DIA Agent requested that plaintiff complete an Unofficial Foreign Contact Report "in order to document HIS contact with [Yuliya] since they were still Facebook 'friends'," which plaintiff did complete.⁴ (capitalization in original). In the Unofficial Foreign Contact Report, plaintiff indicated that Yuliya's citizenship was "Ukraine," his relationship with Yuliya was "[f]riend," and that his last telephonic, written, or email contact was an "email via facebook on summer plans." In response to a...