Stephenson v. Hoeven

• Decision Date: 22 August 2007
• Docket Number: No. 20070055.,20070055.
• Citation: 737 N.W.2d 260,2007 ND 136
• Parties: Jamey M. STEPHENSON, Appellee, v. The Honorable John HOEVEN, as Governor of the State of North Dakota, and as Commander in Chief of the North Dakota National Guard, and Major General David Sprynczynatyk, Adjutant General of the North Dakota National Guard, Appellants.
• Court: North Dakota Supreme Court

737 N.W.2d 260

2007 ND 136

Jamey M. STEPHENSON, Appellee, v. The Honorable John HOEVEN, as Governor of the State of North Dakota, and as Commander in Chief of the North Dakota National Guard, and Major General David Sprynczynatyk, Adjutant General of the North Dakota National Guard, Appellants.

No. 20070055.

Supreme Court of North Dakota.

August 22, 2007.

Monty G. Mertz, Mertz Law Office, Fargo, N.D., for appellee.

Douglas Alan Bahr, Solicitor General, Office of Attorney General, Bismarck, N.D., for appellants.

MARING, Justice.

[¶ 1] John Hoeven, as Governor of North Dakota and commander in chief of the North Dakota National Guard, and Major General David Sprynczynatyk, the Adjutant General of the North Dakota National Guard (collectively referred to as the "Adjutant General"), appeal from a district court judgment reversing a decision to separate Jamey Stephenson from the North Dakota National Guard. We conclude the Adjutant General's decision is not appealable, and we reverse the judgment denying the Adjutant General's motion to dismiss Stephenson's appeal.

I

[¶ 2] In 2001, Stephenson was accepted for fighter pilot training in the North Dakota Air National Guard. Stephenson's air national guard service agreement required him to remain a member of the Air National Guard of the United States for ten years after graduation from Undergraduate Pilot Training ("UPT"). It further provided that "entry into undergraduate pilot or navigator training results from a requirement with [his] parent ANG unit for a combat ready aircrew member, and that if for any reason [his] performance during training results in judgment by competent authority that [he was] not suited to pilot or navigate [his] unit's mission aircraft, [he] may be separated from the Air National Guard. However, [he] may be transferred to the USAFR to fulfill the non-expired portion of [his] military service obligation."

[¶ 3] Stephenson completed UPT but was not selected to continue to Introduction to Fighter Fundamentals ("IFF") training. Stephenson claimed he successfully completed UPT but some of his scores had been incorrectly reported to his air guard unit in Fargo, and he was not permitted to continue IFF training with his unit because he had filed a complaint with his superiors. According to the commander of the 119th Fighter Wing of the North Dakota Air National Guard, Stephenson was not allowed to continue his training because of low scores in UPT and he was advised to seek a position with another guard unit that could utilize his flying skills, to find a line officer position with another unit, or to resign his commission.

[¶ 4] In March 2005, Stephenson was sent a letter addressing his failure to find a position in another unit, which provided:

1. It has been brought to my attention that you passed Undergraduate Pilot Training (UPT) in January 2004, but were subsequently not selected for Fighter Aircraft Training. At that time you were directed to find a new unit that could use your services. No specific time frame was given in regard to this order, however, our expectations were that you should have the initiative and drive to complete this order and find a unit that could utilize your skills. We are now far beyond a reasonable time frame for this to have been accomplished. We have had numerous student pilots who were in identical shoes who have found new units to transfer to in a few weeks or maybe a month or two at most. You have had 14 months and the situation is still unresolved. The matter was discussed with you numerous times, and it is clear that you have done little or nothing to bring this matter to conclusion.

2. More specifically it was pointed out to you that you had options to:

(1) Comply with the January 04 order and to find yourself an Air National Guard Unit that can utilize your skills.

(2) Find a line officer position with an Air National Guard, United States Air Force Reserve, or Active Duty United States Air Force unit. Be advised a line officer position is not being offered to you by the North Dakota Air National Guard (NDANG) at this time.

(3) Resign your commission

3. In light of the above, I am informing you that I intend to begin Administrative Discharge procedures under [Air Force Instruction]36-3209 Para. 2.34, Substandard Performance of Duty. You have until the close of business 15 April 2005 to provide written documentation to my desk indicating that one of the above choices has been complied with. If you fail to find a position or resign by that time, I will direct that the discharge process begin.

[¶ 5] In September 2005, a notification for involuntary discharge was sent to Stephenson, which provided:

1. I am recommending your discharge from the North Dakota Air National Guard of the United States and as a Reserve of the Air Force for Substandard Performance of Duty, in accordance with AFI 36-3209, Chapter 2, para. 2.34 and Non-availability of Paid Status Space, in accordance with AFI 36-3209, Chapter 2, para. 2.25.8. Copies of the documents to be forwarded to the separation authority, The Adjutant General, to support this recommendation are attached.

2. My reason for this action is: On 1 Nov 02, you started in Undergraduate Pilot Training (UPT) at Columbus, MS. Due to your low MASS score you were not allowed to proceed to Introduction to Flight Fundamentals (IFF) course held at Moody, AFB. Upon notification that you would not progress to IFF, you were instructed to search for another position that could utilize your UPT skills. Memorandum dated Mar 29, 2005, received by you on Apr 1, 2005, instructing you to inquire with other units about slot availability and update your unit with any contacts and/or progress you had made. As of August 20, 2005 your unit has received no feedback on your progress or if you have found another position. Since you have failed to locate a paid status space we are forced to start involuntary separation procedures.

3. This action could result in your separation with an Honorable, or General Under Honorable Conditions discharge. I am recommending that you be separated with an Honorable discharge.

[¶ 6] Stephenson elected to proceed to an administrative discharge board. The Adjutant General appointed a board of officers to consider whether Stephenson should have his federal recognition withdrawn and whether he should be discharged from the North Dakota Air National Guard for substandard performance of duty and for nonavailability of paid status space. After a hearing, the board of officers found Stephenson should be discharged because he had performed in a substandard manner and due to "nonavailability of paid status space." The board of officers concluded the primary reason for discharge was substandard performance and recommended that Stephenson be "[d]ischarged from the Air National Guard and as a Reserve of the Air Force with his service characterized as Honorable."

[¶ 7] The board's proceedings were reviewed by a staff judge advocate, who found:

a. The board was properly appointed by the Adjutant General under the authority of the Secretary of the Air Force.

b. The respondent was properly notified of the board proceeding to include his right to military counsel or civilian counsel at his own cost. A Judge Advocate, qualified under Article 27(b)(1) of the UCMJ, represented the respondent.

c. The recorder, defense counsel, and board members were all in the Title 10 status for the hearing as required.

d. All testimony at the hearing was sworn properly and the respondent was properly advised of his rights under Article 31, UCMJ and his right to make an unsworn statement. The respondent elected to make an unsworn statement to the board through his counsel.

e. All board members were senior in grade to the respondent (all were Colonels O-6). The legal advisor was a Lt. Col. The recorder was as a Judge Advocate with the rank of Major.

f. The legal advisor, recorder, and defense counsel have all authenticated the record and certified that the summarized transcript is a true and accurate record of the board proceeding.

g. The board was timely convened and completed its deliberations.

4. I have determined that the appropriate instructions have been followed by the board and other participants. The board of officers has made specific findings and has recommended that 1Lt. Jamey Stephenson be separated from the North Dakota National Guard and that his Federal Recognition be removed.

5. I find that the record of the proceeding, by a preponderance of the evidence, supports their findings and recommendation. The finding of substandard performance was supported by government exhibits and the live testimony of several officers.

[¶ 8] The board's recommendation for removal of Stephenson's federal recognition was forwarded to the National Guard Bureau and was returned with the following statement:

1. We reviewed the case involving 1Lt. Stephenson. The recommended removal of federal recognition (or administrative discharge) is not complete or legally sufficient.

2. A board hearing was held 5 Dec. 05 in Fargo, ND. We received the file on 10 Feb. 06 and a 26-27 Feb. 06 legal review noted it was complete and legally sufficient to forward to the SAF/PC with a recommendation for discharge, except for a problem. The board was not convened by the "Convening Authority," ANGRC/CC (see AFI 36-3209, paragraph 4.14 and Attachment 1). It was instead convened by the ND Adjutant General (see Government Exhibit # 3). The Respondent's Counsel objected to the hearing (see transcript at page 3). We checked and found the case was not properly convened. The ND TAG does not have authority to convene a federal recognition/discharge board.

3. Because the ND TAG did not have the authority to convene this board, the case file was returned.

[¶ 9] In August 2006, the Adjutant General issued a memorandum for Stephenson's administrative separation, addressing Stephenson's claims:

4. The...