Strand v. United States

• Decision Date: 03 March 2020
• Docket Number: 2019-1016
• Citation: 951 F.3d 1347
• Parties: Walter N. STRAND, III, Plaintiff-Appellee v. UNITED STATES, Defendant-Appellant
• Court: U.S. Court of Appeals — Federal Circuit

951 F.3d 1347

Walter N. STRAND, III, Plaintiff-Appellee

v.UNITED STATES, Defendant-Appellant

2019-1016

United States Court of Appeals, Federal Circuit.

Decided: March 3, 2020

Lucas Taylor Hanback, Rogers Joseph O'Donnell, Washington, DC, argued for plaintiff-appellee. Also represented by Jeffery M. Chiow ; Neil H. O'Donnell, San Francisco, CA.

Daniel Kenneth Greene, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellant. Also represented by Joseph H. Hunt, Robert Edward Kirschman, Jr., Douglas K. Mickle; Stephen Robert Stewart, Office of the Judge Advocate General, General Litigation Division, United States Department of the Navy, Washington, DC.

Before Reyna, Hughes, and Stoll, Circuit Judges.

Dissenting opinion filed by Circuit Judge Reyna.

Hughes, Circuit Judge.

The government appeals a decision of the United States Court of Federal Claims setting aside the Secretary of the Navy’s denial of Walter Strand’s request to correct his military service records. Against the recommendation of a records correction board, the Secretary denied Mr. Strand’s request for a six-month service credit to become eligible for military retirement benefits. Because the Secretary did not exceed his authority in rejecting the board’s recommendation and substantial evidence supports his decision, we reverse and thereby reinstate the Secretary’s decision to deny the correction.

I

Mr. Strand served in the Navy for roughly nineteen and a half years until June 2009 when he was discharged under other than honorable conditions for firing a gun at his estranged wife and her companion. Mr. Strand was convicted in state court of three felonies: attempted malicious wounding, attempted unlawful wounding, and use of a firearm in the commission of a felony. He was sentenced to six years in prison, with three years suspended for good behavior. Since his release, Mr. Strand has sought various "corrections" to his naval service records, including a six-month credit so that he would have 20 years of service and be eligible for military retirement benefits.¹

A

In 2014, the Board for Correction of Naval Records (BCNR or Board) recommended granting Mr. Strand’s requested correction. The Board weighed "the seriousness of [Mr. Strand’s] disciplinary infractions" against his "overall record of more than 19 years and six months of satisfactory service [including receiving numerous medals,] .... his good post service conduct[,] and his early release from civil confinement due to good behavior." J.A. 32. Finding that he had "suffered long enough for his indiscretion," the Board recommended correcting Mr. Strand’s record to reflect 20 years of service. J.A. 32–33. That recommendation has now been twice considered—and twice rejected—by the Secretary of the Navy.²

First, in February 2015, the Secretary rejected the Board’s recommendation in a short, two-paragraph decision. The Secretary’s decision generally referenced the seriousness of Mr. Strand’s felony convictions, the Navy’s core values, its practice in similar cases, and Mr. Strand’s supposed "long-standing history of FAP [Family Advocacy Program] involvement and domestic violence issues." J.A. 25. Mr. Strand challenged this decision in the Court of Federal Claims, which reversed the Secretary’s 2015 decision as arbitrary and capricious and instructed the Navy to retire Mr. Strand. Strand v. United States (Strand I ), 127 Fed. Cl. 44, 51 (2016).

On appeal, we agreed that the Secretary’s 2015 decision was not supported by substantial evidence, but we reversed and remanded to allow the Secretary an opportunity for further review. Strand v. United States (Strand II ), 706 F. App'x 996, 998, 1001 (Fed. Cir. 2017) (nonprecedential). In Strand II , we found a lack of substantial evidence specifically because the Secretary’s statement that Mr. Strand had a history of FAP involvement and domestic violence issues lacked record support. Id . at 1000. Recognizing that the Secretary relied on "a combination of intertwined reasons," at least one of which Mr. Strand had shown was not supported by substantial evidence, we remanded because the Secretary had not yet considered whether the Board’s decision "should be upheld in the absence of any evidence of a ‘long-standing history’ of FAP involvement." Id .

On remand following Strand II , the Secretary considered the Board’s 2014 recommendation anew and in January 2018—after inviting and receiving supplemental information from Mr. Strand—again rejected the recommendation. The Secretary this time issued a seven-page memorandum explaining the decision to deny the requested correction. The Secretary found that Mr. Strand’s overall periods of service and post-service conduct did not "overcome the seriousness of the misconduct that resulted in his civilian conviction," and that the "passage of time ... does not warrant overlooking the seriousness of the conviction that led to his discharge" and his resultant ineligibility for retirement. J.A. 283.

The Secretary also noted that two early "counseling/warning" entries added to Mr. Strand’s record in February 1992 and September 1993 gave him "clear and repeated notice" that he could be separated from service for disobeying military regulations and civilian laws.³ J.A. 118, 121, 283.

The Secretary then described how Mr. Strand’s "history of performance and conduct" did not align with each of the Navy’s core values—Honor, Courage, and Commitment. J.A. 283–85. Finally, the Secretary noted that Mr. Strand’s offenses were equivalent to a violation of Uniform Code of Military Justice Article 128 (Assault), which authorizes a maximum penalty of dishonorable discharge and confinement for eight years. Citing several military justice cases, the Secretary further noted that it was "very likely" Mr. Strand would have received a punitive discharge had he been prosecuted by the Navy, rather than civilian authorities. J.A. 285. The Secretary concluded:

In sum, I commend Petitioner’s efforts to engage in rehabilitation following his conviction and incarceration, as well as his efforts to rebuild his life. However, I do not find that relief is warranted and that Petitioner should be granted credited time served for retirement when, in fact, the basis for his inability to retire was not an error or an injustice, but his own deliberate misconduct despite being on clear notice of the consequences of his actions. To grant relief under the circumstances of this matter wholly ignores the high standards that the Navy expects our military members to demonstrate.

J.A. 285–86. The Secretary also added that Mr. Strand had already received "appropriate relief" from another records review board that upgraded his service characterization from "Under Other Than Honorable Conditions" to "General Under Honorable Conditions." J.A. 52, 286. The Secretary found this partial relief—reflecting Mr. Strand’s "satisfactory service and post-incarceration efforts to rebuild his life"—further reason to deny additional relief. J.A. 286.

B

Mr. Strand filed a supplemental complaint in the Court of Federal Claims contesting the Secretary’s 2018 decision. On cross-motions for judgment upon the administrative record, the Court of Federal Claims again found the Secretary’s decision arbitrary and capricious. Strand v. United States (Strand III ), 138 Fed. Cl. 633, 643 (2018). Specifically, the trial court found it arbitrary and capricious for the Secretary to view Mr. Strand’s early counseling entries as providing notice of his obligation to comply with Navy core values that did not exist at the time of the 1992 entry;⁴ and for the Secretary to engage in "hypothetical forecasting" by "comparing Mr. Strand’s civil case to military cases that do not apply the same analysis." Id . at 641. As to consideration of Mr. Strand’s 2009 convictions, the trial court determined that this Court, in Strand II , already "found that Mr. Strand’s conduct did not constitute substantial evidence to support the Secretary’s decision." Id . at 642 (citing Strand II , 706 F. App'x at 1000 ). Finally, the trial court faulted the Secretary for "fail[ing] to give any real consideration to Mr. Strand’s post-service conduct." Id . at 643. The court concluded that, given these deficiencies and the Board’s "thorough consideration of the evidence of record," it could not uphold the Secretary’s "decision to overrule the Board." Id . The trial court therefore again directed the Navy to retire Mr. Strand with all appropriate back pay, benefits, and allowances. Id . at 643–44.

The government now appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(3).

II

We review de novo the Court of Federal Claims’ decision to grant or deny judgment on the administrative record. Roth v. United States , 378 F.3d 1371, 1381 (Fed. Cir. 2004). In reviewing an adverse decision of a records correction board, we apply the same standard of review that the Court of Federal Claims applied, without deference. See id . Here we are called to review not the action of a correction board, but action by the Secretary of the Navy to overrule that correction board. While the parties dispute the circumstances in which a service secretary may reject a board’s recommendation, they agree that the substantial-evidence standard generally applies here. That is, we must "determine whether the Secretary’s rejection of the Board recommendation was arbitrary or capricious, unsupported by substantial evidence, or otherwise contrary to the law." Strickland v. United States , 423 F.3d 1335, 1343 (Fed. Cir. 2005). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. of N.Y. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938).

A

The statute establishing civilian military-records correction boards, such as the BCNR, provides: "The Secretary of a military department may correct any military record of the...