Lowry v. United States
| Decision Date | 08 April 2021 |
| Docket Number | No. 20-682C,20-682C |
| Parties | DANIEL W. LOWRY Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. Claims Court |
Wojciech Kornacki, Law Office of Philip D. Cave, Washington, DC, for Plaintiff.
Michael D. Austin, Trial Attorney, U.S. Department of Justice, Civil Division, Commercial Litigation Branch, Washington, DC, with whom were Douglas K. Mickle, Assistant Director, Robert E. Kirschman, Jr., Director, for Defendant. Lieutenant Kevin R. Griffin, Office of the Judge Advocate General, General Litigation Division, U.S. Department of the Navy, Washington Navy Yard, DC, Of Counsel.
The plaintiff in this Military Pay Act case, Daniel W. Lowry, is a former Steelworker Chief Petty Officer ("SWC") and Master Diver who—during his more than nineteen years of service in the United States Navy ("the Navy")—performed duties involving underwater construction and repair. In October of 2014, the Navy notified Mr. Lowry of its intent to separate him before the conclusion of his enlistment period based on his commission of a "serious offense." Admin. R. ("AR") 66. Specifically, the Navy had recently discovered that, during his prior enlistment, Mr. Lowry had twice been convicted of driving under the under the influence of alcohol, first in 2001 and then again in 2010.
An administrative separation board recommended that Mr. Lowry be discharged but that the discharge be suspended for one year. His Commanding Officer ("CO") concurred with the separation board's recommendation that Mr. Lowry be discharged but did not agree that the discharge should be suspended. He recommended that Mr. Lowry be separated from the Navy "without delay" because—allegedly in violation of Navy regulations—Mr. Lowry had not reported the two DUI convictions to his chain of command or the security manager, id. at 52; nor had he reported the DUIs as "alcohol-related incidents," which would have resulted in at least a temporary suspension of his diving duties, id. at 27.
The Navy discharged Mr. Lowry almost a year after the separation board transmitted its recommendation to the Separation Authority ("SA"). Mr. Lowry unsuccessfully sought relief from the Naval Discharge Review Board ("NDRB") and the Board for Correction of Naval Records ("BCNR"). He then filed the present suit alleging that the BCNR's decision upholding his separation was arbitrary, capricious, and/or contrary to law. He requests that the Court order the BCNR to correct his records to reflect his retirement from the Navy upon completing twenty years of service, and that he be afforded backpay, including lost retirement benefits.
Currently before the Court are the parties' cross-motions for judgment on the administrative record, as well as Mr. Lowry's Motion to Supplement the Administrative Record. For the reasons set forth below, Mr. Lowry's motion to supplement the administrative record, ECF No. 21, is GRANTED-IN PART and DENIED-IN-PART. His motion for judgment on the administrative record, ECF No. 11, is GRANTED, and the government's cross-motion for judgment on the administrative record, ECF No. 17, is DENIED. The case is REMANDED to the BCNR for the correction of Plaintiff's military record to reflect retirement upon completion of twenty years of service in the United States Navy.
Mr. Lowry enlisted in the Navy on December 19, 1996. AR 36. After that initial enlistment ended, he re-enlisted for a new five-year period that began on April 15, 2012. Id. at 30. At the time of his separation on March 3, 2016, Mr. Lowry was an advanced Underwater Construction Diver, had attained the rank of Chief Petty Officer, and had served in the Navy for nineteen years, two months, and fifteen days. Id. at 73.
Beginning in 1999, and throughout the rest of his period of service, Mr. Lowry was classified as an underwater construction technician. Id. In that position he performed or supervised the performance of underwater construction and repair. See, e.g., id. at 343-94.
In 2003, Mr. Lowry was deployed to Iraq for three months with the Marine Expeditionary Force. Id. at 27. According to his complaint, the unit in which he served "was responsible for securing bridges and ensuring that M1A2 tanks and other armored vehicles could safely cross bridges on their way to Baghdad." Compl. ¶ 21, ECF No. 1.
During his deployment to Iraq, Mr. Lowry's unit "was exposed to frequent small arms as well as heavy artillery and mortar fire," and lost eleven of its marine members. AR 27. As a result, the unit received a Presidential Citation "for extraordinary heroism and outstanding performance in action against enemy forces in support of Operation IRAQI FREEDOM" from March 21 to April 24, 2003. Id. at 75.
Mr. Lowry received numerous other awards and medals during his period of service. Id. at 73. Further, up until the time of the performance evaluation discussed below, which covered July 27, 2013 through September 15, 2014 (i.e., the period during which his CO became aware of his convictions for DUIs committed in 2001 and 2009), see id. at 393-94, Mr. Lowry met orexceeded all of his performance standards, and his evaluations included consistent positive feedback regarding his skills, attitude, and leadership abilities.1
Indeed, even Mr. Lowry's final two performance evaluations were positive ones, notwithstanding that they covered the periods both during and after his CO at the Naval Facilities Engineering and Expeditionary Warfare Center ("NAVFAC EXWC") recommended his immediate separation. In his evaluation for the period between September 2014 and July 2015,for example, his CO observed that he was a "meticulous manager and a force multiplier" and a "[h]ighly skilled leader with a 'Can Do' attitude who continues to deliver top-notch results." Id. at 390. The evaluation that covered the period between July 2015 through his discharge on March 3, 2016 similarly characterized Mr. Lowry as a "hard working manager with over 14 years of experience leading underwater construction projects and mentoring Sailors." Id. at 392. It further states that Mr. Lowry was "a highly motivated, accomplished, and deeply driven Sailor," who was "completing a 19[-]year career in the United States Navy," and who would "bring a wealth of specialized expertise to any organization." Id.
The events that led to Mr. Lowry's early discharge had their genesis in allegations of infidelity that his estranged wife communicated to his unit in 2013 while the couple was in the midst of divorce proceedings. Compl. ¶ 30. The allegation triggered an inquiry by the Navy Criminal Investigation Service ("NCIS") that began on November 7, 2013 but then ended in early 2014 because Mr. Lowry's wife declined to cooperate in the investigation. Id. ¶ 31-33.
As a result of the investigation, Mr. Lowry's superiors learned of unrelated misconduct that occurred during his prior enlistment. Id. ¶ 32. Specifically, it learned that he had pleaded guilty to driving under the influence of alcohol on October 17, 2001, and that he had been arrested for a DUI on December 9, 2009, for which he pleaded guilty on April 16, 2010. AR 26.
Pursuant to Navy Military Personnel Manual ("MILPERSMAN") 1306-912 paragraph 12(a), a diver's diving qualifications may be revoked if his commanding officer determines "that the member is no longer suitable for assignment[s]" consistent with his classification code. Further, MILPERSMAN 1306-912 ¶ 12(c)(4) provides that when an underwater construction technician is "identified as having [an] alcohol abuse disorder," they "will be locally suspended by their CO from duty pending the outcome of screening, disciplinary counseling, and or rehabilitation procedures as outlined in [Office of the Chief of Naval Operations, Drug and Alcohol Abuse Prevention and Control Instruction ("OPNAVINST") 5350.4D]."
Consistent with these provisions, Mr. Lowry's diving qualification was suspended after his superiors became aware of his DUIs. See AR 169. The record is unclear as to precisely when the Navy imposed the suspension. It reveals, however, that Mr. Lowry was referred to the Substance Abuse Rehabilitation Program for a substance abuse evaluation, and that he was screened for alcohol abuse or dependency on August 22, 2014. Id. at 176-79 (Drug and Alcohol Program Advisor report). The evaluation revealed that Mr. Lowry did not "meet DSM IV criteria for alcohol abuse or dependency." Id. at 176. The Program Advisor noted a lack of risk factors and recommended that, "[g]iven [the] level of risk noted," Mr. Lowry return to duty. Id. at 178.
As discussed in greater detail below, on October 17, 2014, Mr. Lowry's CO provided him with formal notice that he had been referred for administrative separation pursuant to MILPERSMAN 1910-142: "Separation By Reason Of Misconduct - Commission Of A Serious Offense." Id. at 66 (Administrative Separation Processing Notice). The notice specified that thetwo "reasons for administrative separation processing" were the prior DUIs as well as the offense that was the subject of the aborted NCIS investigation. Id.
The next week, on October 24, 2014, Mr. Lowry petitioned to have his diving qualifications reinstated, as is permitted by MILPERSMAN 1306-912 paragraph 13. Id. at 169. Three of the four officers who reviewed Mr. Lowry's request recommended that it be granted, in light of the recent evaluation finding a lack of evidence of current or potential alcohol abuse. Id. at 169-70. Mr. Lowry's CO disagreed, however, and denied the request for reinstatement on November 12, 2014. Id. at 169. The CO explained that the second DUI had "caused [him] to lose confidence in [Mr. Lowry's] ability to exercise sound judgment, in [his] reliability, and [in his] personal conduct as a representative of the Navy." Id. In fact, he opined, given that the Substance Abuse Rehabilitation Program had determined Mr. Lowry was not alcohol...
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