Piersall v. Winter
| Decision Date | 21 August 2007 |
| Docket Number | Civil Action No. 03-1770 (RCL). |
| Citation | 507 F.Supp.2d 23 |
| Parties | Charles H. PIERSALL III, Plaintiff, v. Donald C. WINTER, Secretary of the Navy, Defendant. |
| Court | U.S. District Court — District of Columbia |
Eugene R. Fidell, Feldesman Tucker Leifer & Fidell, LLP, Washington, DC, for Plaintiff.
Peter Blumberg, United States Attorney's Office, Washington, DC, for Defendant.
This matter comes before the Court on cross-motions for summary judgment. Plaintiff, Charles H. Piersall, III, brings this action under the Administrative Procedure Act for review of the Secretary of the Navy's decision not to remove from his military records a 1998 letter of reprimand, as well as any mention of the nonjudicial punishment proceeding that prompted the letter. Upon consideration of the entire administrative record, the briefs submitted by the parties, and the applicable law, the Court determines that plaintiffs motion for summary judgment must be denied, while defendant's must be granted, because the Secretary's decision, as embodied in the report and recommendations of the Board for Correction of Naval Records which he approved, is not arbitrary or capricious, unsupported by substantial evidence, or contrary to law. The Court's reasons are set forth more fully below.
Plaintiff, Charles Piersall III, was a Commander in the Navy at the tithe he filed this lawsuit in 2003.2 On February 11, 1998, Piersall was the Executive Officer of the nuclear submarine USS La Jolla, when La Jolla collided with Young Chang Ho, a Korean fishing trawler, in the waters outside the Chinhae naval base in the Republic of Korea. Amended Complaint ("1AC") ¶ 10. While the fishing boat sank, the La Jolla suffered only minor damage and was able to rescue the Young Chang Ho's crew. Id. There were no serious injuries to either of the two crews. Id. La Jolla proceeded to Chinhae and docked there.
On February 19, 1998, Rear Admiral A.H. Konetzni, Jr., the Commander of Submarine Group 7, held "mast" proceedings for Piersall and other crew members in connection with the Young Chang Ho collision.3 lAC ¶ 12. As described at greater length below, "mast" or "captain's mast" refers to a type of nonjudicial punishment carried out in the Navy in response to minor offenses. These summary proceedings do not come with the full panoply of procedural rights afforded at courts martial, nor do they carry the same potentially severe punishments associated with the latter.
In this case, Piersall's mast was held at the Robinson Center, a building at the Chinhae facility located roughly two miles from where La Jolla was moored.4 Id. ¶ 13. After a hearing, Admiral Konetzni found that Piersall had been derelict in failing to prevent the collision, and he declared that a letter of reprimand would be issued as punishment. Id. ¶¶ 12, 14. He also ordered the initiation of the process to detach from La Jolla for cause, though Piersall remained assigned to the ship. Piersall briefly returned to La Jolla after the mast to retrieve personal possessions, spent the night on shore at Chinhae, and flew to the United States the next day. Id. ¶ 17.
On March 1, 1998, Piersall reported to the Commander, Third Fleet in San Diego, California, for temporary additional duty, to be served aboard USS Coronado. AR at 215. The letter of reprimand that resulted from the mast proceeding was prepared and dated March 2, 1998. 1AC ¶ 14. It was physically delivered to Piersall on March 6, 1998, on dry land. Id. at ¶ 14. The letter from Admiral Konetzni stated that "you received nonjudicial (NJP) on 19 Feb 98," and explains that "I imposed NJP" because Piersall "was derelict in the performance of [his] duties in that he negligently failed as the ship's Executive Officer and Command Duty Officer to prevent the USS LA JOLLA ... from colliding with a [Korean] fishing vessel, as it was his duty to do so." AR at 158. Konetzni explained that "I made my decision to impose NJP" after considering items of evidence which "clearly show that [Piersall was] derelict in the performance. of [his] duties," and that his "conduct demonstrates poor judgment and a lack of leadership." Id.
On February 26, 1999, Piersall was ordered detached from La Jolla and from Commander, Third. Fleet, and directed to other duties. AR at 215. In early 2000, he petitioned the Board for Correction of Naval Records ("BCNR"), to remove the consequences "of his 1998 mast proceeding from his naval record. 1AC ¶ 18; AR At 2-4. The BCNR is a civilian board that reviews applications to change naval records, and then issues reports and recommendations on those applications to the Secretary of the Navy, who makes the final determination on the application, or does so through a delegate. In an April 30, 2003 report, the BCNR granted some of Piersall's requested relief, but declined to expunge the letter of reprimand from his record.5 AR at 102-03.
Piersall's basis for seeking expungement of the letter of reprimand was that he was not afforded the opportunity to decline to proceed with the mast and to opt instead for court martial. Service personnel have a right to refuse nonjudicial punishment and demand a court martial, so long as they are not "attached to or embarked in a vessel."6 10 U.S.C. § 815(a). The BCNR held that Piersall did not have a right to refuse mast because he was attached to or embarked in a vessel, namely La Jolla, and thus there was no error or injustice in his record to be corrected. The Secretary of the Navy adopted this recommendation and denied Piersall relief.
In August of 2003, Piersall filed suit in this Court under the Administrative Procedure Act, alleging that the BCNR's determination, as endorsed by the Secretary of the Navy's delegate, was arbitrary and capricious and contrary to law, and therefore requesting that the Court set aside the BCNR's decision, order that the mast and letter of reprimand be expunged from Piersall's Navy record, and remand the matter to the BCNR for further appropriate relief. In a September 21, 2004 Order [18], this Court granted the Secretary's motion to dismiss for lack of subject matter jurisdiction. The Court of Appeals reversed, finding that subject matter jurisdiction was appropriate, and remanded with instructions to assess the merits under the "particularly deferential standard of review" appropriate when reviewing agency action of this nature. Piersall v. Winter, 435 F.3d 319, 325 (D.C.Cir.2006).
On June 26, 2006, the Navy's Assistant General Counsel for Manpower and Reserve Affairs issued a memo withdrawing his endorsement of the BCNR panel's findings related to Piersall's NJP, insofar as the applicability of the vessel exception was concerned. AR at 110. The Assistant General Counsel stated that his approval of the BCNR's April 2003 recommendations was based on incomplete information about Piersall's stint with Third Fleet, and he ordered a new BCNR panel to perform a de novo review of Piersall's NJP, limited to the question of whether the vessel exception applied. Id. Upon the Secretary's motion, the Court issued a July 21, 2006 Order [35] remanding the matter to the Navy for review by the BCNR.
In subsequent correspondence, the Assistant General Counsel instructed the new BCNR panel to focus its review on the vessel exception as applied in Piersall's case. AR at 213-14. The second panel convened on November 28, 2006 and issued an opinion on December 11, 2006. AR at 213-238. The BCNR found that Piersall was attached to La Jolla at the time NJP was imposed and thus was subject to the vessel exception, and had no right to refuse NJP. The BCNR panel recommended ho further relief for Piersall, having found no error or injustice to correct.
The Assistant General Counsel endorsed the BCNR's recommendation on behalf of the Secretary of the Navy on December 26, 2006. AR at 238. It is this decision of the Secretary, acting through the Assistant General Counsel, to adopt the BCNR's recommendation not to provide further relief to Piersall, which is the final agency action forming the subject of this Court's review.7
Under the Uniform Code of Military Justice, military commanders can punish service personnel through judicial proceedings — taking the form of general, special, or summary courts martial — or by imposing non judicial punishment ("NJP"). See generally Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976). NJP is referred to as "captain's mast" or "mast" in the sea services, as "office hours" in the Marine Corps, and as "Article 15" in the Army and Air Force, after the article of the UCMJ that governs NJP. 10 U.S.C. § 815. For most purposes, NJP is deemed an administrative rather than criminal proceeding. See, e.g., Cappella v. United States, 224 Ct.Cl. 162, 624 F.2d 976 (1980).
At issue in this case is the "vessel exception." Article 15 states that "except in the case of a member attached to or embarked in a vessel, [nonjudicial] punishment may not be imposed upon any member of the armed forces under this article if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment." 10 U.S.C. § 815(a). The vessel exception first arose when the Uniform Code of Military Justice was adopted in 1949, which established Article 15 proceedings for nonjudicial punishment, but stated that the traditional naval punishment of confinement on bread and water could only be imposed on those attached to or embarked in a vessel. The service branches devised their own implementing regulations for Article 15, and while the Army and Air Force issued regulations permitting their members to refuse Article 15 proceedings and demand court...
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