Turner v. Department of Navy, 02-5067.

• Decision Date: 15 April 2003
• Docket Number: No. 02-5067.,02-5067.
• Citation: 325 F.3d 310
• Parties: Jim A. TURNER, Appellant, v. DEPARTMENT OF NAVY, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

325 F.3d 310

Jim A. TURNER, Appellant, v. DEPARTMENT OF NAVY, et al., Appellees.

No. 02-5067.

United States Court of Appeals, District of Columbia Circuit.

Argued February 19, 2003.

Decided April 15, 2003.

Appeal from the United States District Court for the District of Columbia (No. 97cv01653).

Allan B. Moore argued the cause for appellant. With him on the briefs were Christopher N. Sipes and Carlton F. W. Larson.

E. Roy Hawkens, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and Anthony J. Steinmeyer, Assistant Director, U.S. Department of Justice.

Before: TATEL and GARLAND, Circuit Judges and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge STEPHEN F. WILLIAMS.

Concurring opinion filed by Circuit Judge TATEL.

STEPHEN F. WILLIAMS, Senior Circuit Judge.

In 1994 Jim Turner, a petty officer aboard the USS Antietam, was found guilty of sexual misconduct in two shipboard proceedings. The first was a "non-judicial" proceeding under Article 15 of the Uniform Code of Military Justice, 10 U.S.C. § 815, resulting in a reduction in pay grade and a forfeiture of two months salary; in the second, an Administrative Discharge Board, though rejecting some of the charges, resolved that he should be discharged from the Navy with an "other than honorable" discharge. Discharge followed in due course. Turner petitioned the Secretary of the Navy to clear his record and rescind his discharge. The Secretary ultimately rejected the petition. Turner then brought an action in district court to overturn the Secretary's decision, but the court eventually granted summary judgment for the Navy. Turner appeals this judgment, arguing that the shipboard proceedings were not supported by substantial evidence and that several other errors require that the Secretary's decision be reversed. We reject these arguments and affirm the district court.

* * *

Turner served in the Navy for about seven years. In April 1994 his commanding officer, Captain Frank, learned of complaints by two of Turner's shipmates, Petty Officer John King and Seaman Apprentice Lee Poore, that Turner solicited homosexual acts and falsified records (apparently in the interest of inducing sexual cooperation). Frank ordered Chief Petty Officer Clanahan to conduct an investigation. At its close, three sailors (the two original accusers and Seaman Chad Maurer) signed sworn statements accusing Turner of homosexual propositioning and assault. According to the statements, Turner asked King and Maurer to engage in sexual acts with him, improperly touched or pushed all three witnesses, signed his approval on phony performance qualifications for King, and used "indecent" language (namely, blunt descriptions of the proposed acts). Captain Frank convened a proceeding under Article 15, known as a Captain's Mast, to determine if Turner had committed these offenses and to impose non-judicial punishment if he had. Although a member of the armed forces normally has a right to demand trial by court-martial in lieu of non-judicial punishment, Turner — a member of the Navy attached to a vessel — had no such choice. 10 U.S.C. § 815(a) (2000). He was charged with four counts of soliciting another to commit a homosexual act, four counts of indecent language, two counts of indecent assault (against Poore and Maurer), one count of assault with intent to commit sodomy (against Poore), one count of making a false official statement, and one count of conduct of a nature to bring discredit upon the armed services.

At the Article 15 proceeding, Maurer, Poore, and King testified to the truthfulness of their sworn statements, which were offered into evidence. Turner presented character witnesses but did not testify. He was found guilty of all charges. Captain Frank imposed punishment consisting of demotion of one pay grade and forfeiture of $644 pay per month for two months. Turner appealed the punishment claiming lack of substantial evidence but the authorized superior officer affirmed.

Almost immediately Captain Frank referred Turner to an Administrative Discharge Board ("ADB") to determine whether he should be discharged from the Navy and whether that discharge would be an honorable one. The underlying acts being considered were the same. Maurer, Poore, and King testified against Turner, as did two other sailors corroborating their testimony. Turner testified on his own behalf, denying all charges. He also presented character witnesses and (through counsel) cross-examined the witnesses against him. The ADB rejected all of the charges relating to King and the charge of indecent assault relating to Maurer. It also rejected the charges of assault with intent to commit sodomy and indecent assault on Poore, finding that incident instead to have been a proposition for sexual acts. They found Turner guilty of the remaining charges that had been brought under Article 15 and decided that he should be separated from the Navy with an "other than honorable" discharge.

Turner challenged the board's findings, but the Navy formally accepted its recommendation; on August 25, 1994 Turner was discharged with an "other than honorable" classification. Turner petitioned the Secretary of the Navy, who initially addresses such petitions through the Board for Correction of Naval Records ("BCNR"), to reverse the Article 15 penalties and the discharge. Over a dissent, the BCNR found error on several procedural points as well as a lack of "sufficient corroboration." It recommended that his record be cleared. A Deputy Assistant Secretary of the Navy rejected the BCNR's recommendation without comment, relying on the BCNR dissent. Cf. 32 C.F.R. § 723.7(a).

Turner then challenged the Secretary's decision in district court. Among other points, he argued that the Secretary had acted arbitrarily and capriciously in denying his arguments without explanation. The court agreed and, though retaining jurisdiction, remanded to the Secretary to assess Turner's arguments and articulate a reasoned basis for whatever decision he should make. After doing so (and adhering to the Navy's original position), the Assistant Secretary moved successfully for summary judgment in district court. Turner appeals the grant of summary judgment on several grounds.

Turner raises a number of procedural points and also argues that the outcomes of the Navy proceedings are not supported by substantial evidence. The substantial evidence issue is conventional, its particulars not justifying a published opinion. Although the parties agree that we should review for substantial evidence (a formula governing our scope of review), neither mentions the burden of proof in the Article 15 proceeding, on which in fact there appears to be division among the various services. Compare Manual of the Judge Advocate General, Department of the Navy § 0110(b) (stating that the standard is a "preponderance of the evidence"); with Air Force Instruction 51-202 § 3.4 (2002) (observing that "no specific standard of proof applies to [Article 15] proceedings ...," but noting that in a court martial, which a service member is entitled to choose, the reasonable doubt standard would apply); and with Department of the Army Form 2627 ¶ 2 (1984) ("beyond a reasonable doubt"). As the Navy applied a standard of preponderance of the evidence and Turner has not objected, we apply that standard, without deciding on its propriety. On this basis we find the evidence sufficient. We now turn to the various procedural claims.

We review the district court's grant of summary judgment de novo. Teamsters Local Union No. 61 v. United Parcel Serv., Inc., 272 F.3d 600, 603 (D.C.Cir.2001). We review the decisions of the Secretary under the arbitrary and capricious standard of the APA. 5 U.S.C. § 706; Cone v. Caldera, 223 F.3d 789, 793 (D.C.Cir.2000).

Of the procedural claims, the most difficult is Turner's argument that Captain Frank abused his discretion in proceeding against him under Article 15, which under the statute is "for minor offenses," 10 U.S.C. § 815(b), even though, he says, the Navy itself regarded his conduct as extremely serious. We take that issue first, and then turn to the other procedural claims in the order of their chronological appearance.

* * *

Were Turner's Offenses "Minor" for Purposes of Article 15?

Under Article 15 (10 U.S.C. § 815) a commanding officer may impose "disciplinary punishments for minor offenses without the intervention of a court-martial." 10 U.S.C. § 815(b). Turner argues that his offenses were not minor within the meaning of this provision, and that therefore he was subject to prosecution only by court-martial. A commanding officer is to "exercise personal discretion in evaluating each case ... as to whether nonjudicial punishment is appropriate," see Manual for Courts-Martial (the "Manual"), Part 5, V-1, at § 1(d)(2), so the claim is effectively for abuse of discretion, see United States v. Gammons, 51 M.J. 169, 182 (C.A.A.F. 1999) (citing the Manual), as Turner appears to acknowledge. See Appellant's Opening Brief at 38.

The government notes that § 815(f) makes clear that an Article 15 proceeding is not a bar to court-martial for "a serious crime or offense growing out of the same act or omission"; to prevent double punishment, it provides that the punishment in the Article 15 proceeding will be taken into account in the later court-martial. 10 U.S.C. § 815(f). Because § 815(f) appears to assume that Article 15 will sometimes be applied to serious crimes, the government suggests that the commanding officer's discretion to choose Article 15 is non-reviewable. But § 815(f) makes clear that the "serious crime" it refers to is one "not properly punishable under this article," id., and by using the phrase "growing out of the same act or omission" the statute may merely anticipate smaller charges being pursued through Article 15...