GREAVES v. USA

Filing 43

PUBLISHED OPINION - Originally filed Under Seal on Aug. 10, 2010. Reissued this date with redactions. Signed by Judge Christine O.C. Miller. (smg)

GREAVES v. USA

Doc. 43

In the United States Court of Federal Claims
N o . 09-272C (Filed August 20, 2010) *********************** [N G], Plaintiff, v. T H E UNITED STATES, Defendant. *********************** * * * * * * * * * * * * * M ilita ry pay; review of a d m in is tra tiv e discharge board a c tio n ; evidentiary burden re q u ire d under arbitrary or c a p ric io u s standard; evidentiary ru lin g s ; command influence; w a iv e r of argument; due process rig h ts .

J o h n B.Wells, Slidell, LA, for plaintiff. K e n n e th S. Kessler, Washington, DC, with whom was Assistant Attorney General T o n y West, for defendant. LCDR Sally A. Hughes, United States Navy, Office of the Judge A d v o c a te General, Washington, DC, of counsel. MEMORANDUM OPINION AND ORDER 1/ M I L L E R , Judge. T h is review of a former servicemember's administrative discharge board hearing, w h ic h challenges his separation from active duty and seeks an award of back pay, is before th e court after argument on cross-motions for judgment on the administrative record. The is su e presented is whether the United States Navy's decision to separate with an "Other Than H o n o ra b le " discharge was proper in light of alleged procedural deficiencies in the board p ro c e e d in g .

1 / This opinion originally was filed under seal on August 10, 2010. By ¶ 2 the parties w e re requested to notify the court of any redactions. All redactions requested are denoted b y brackets.

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FACTS T h e following facts are drawn from the administrative record. Plaintiff [ ] enlisted in the United States Navy (the "Navy") on October 18, 2004. After completing training, he w a s assigned to Patrol Squadron Eight ("VP-8") in Brunswick, Maine. W h ile stationed in Brunswick, plaintiff was contacted by a young woman from L e w isto n , Maine, through the social networking website "MySpace." Although this young w o m a n ("Female #1") was fifteen years old, her MySpace page listed her age as seventeen. On August 28, 2006, Female #1, who was spending the night with a fourteen-year-old girl (" F e m a le #2"), telephoned plaintiff to arrange a meeting and, per her Auburn Police D e p a rtm e n t Witness Statement Form attached to the police report of the incident, asked p la in tif f "to come pick us up to drive around." AR at 58. Plaintiff and one of his friends, P e tty Officer [ ], picked up the two girls in Auburn, Maine, and proceeded to drive to P e ttin g il Park, a public park, where offending sexual conduct occurred. The written statements from Females #1 and #2 recited that, once at the park, all four o c c u p a n ts remained in the car while the females performed oral sex on plaintiff and his f rie n d . At this point, according to the written statements, plaintiff was receiving oral sex f ro m Female #1 in the front seat, while Petty Officer [ ] received oral sex from Female #2 in the back seat. Next, Petty Officer [ ] and Female #1 exited the car, and she performed o r a l sex on Petty Officer [ ] while plaintiff received oral sex from Female #2 in the car. Female #2 stated that plaintiff digitally penetrated her while she was performing oral sex, but " w h e n plaintiff] and I started to do stuff the cops came so we both pulled up our pants." AR a t 56. A c c o rd in g to his official report of the incident, Patrol Officer [ ] entered the park lo o k in g for a possible suspect in a motor-vehicle burglary and noticed a parked car with s te a m y windows. As the officer approached the car, he observed two occupants in the back s e a t pulling up their pants and two people sitting on the curb adjacent to the car. When O f f ic e r [ ] asked for identification, only plaintiff stated that he had an ID, and the officer p ro c e e d e d to question each person separately. Plaintiff stated to Officer [ ] that he did not k n o w , nor had he asked, the age of Female #1. Female #2 did not comment about her age, b u t, according to Officer [ ]'s report, she confirmed the nature and extent of sexual activity a n d stated that "she knew it wasn't right to engage in any sexual act with [plaintiff]." AR a t 37. Officer [ ]'s report reflects that Petty Officer [ ] stated that "it was obvious to him th a t [the two females] were not eighteen," AR at 38, and that he related these thoughts to p la in tif f . Officer [ ] searched the area and found condoms in the car, a used condom near P e tty Officer [ ] on the ground, and a used condom and KY Jelly in plaintiff's pocket. The f e m a le s stated that they had not had sex with either male. 2

Plaintiff was arrested and charged with the crime of sexual abuse of a minor. Because th is incident concerned "deviant sexual behavior," processing for administrative separation w a s mandatory, per Military Personnel Manual 1910-142, Separation by Reason of M is c o n d u c t ­ Commission of a Serious Offense (Jan. 25, 2001) ("MILPERSMAN"). The b o a rd considering separation must find "by a preponderance of evidence (e.g., copy of police re c o rd . . . )" that (1) the "specific circumstances of [the] offense warrant separation; and [(2) th e ] offense would warrant a punitive discharge per [the Manual for Courts-Martial], a p p e n d ix 12 for same or closely related offense." AR at 26. A n Administrative Discharge Board (the "board") was convened on October 17, 2006, in order to determine whether plaintiff should be separated from the Navy. 2/ The board was c o m p ris e d of Senior Member LCDR [ ], Member [ ], and Member ATC [ ]. Plaintiff w a s charged with the commission of a serious military or civilian offense, pursuant to M IL P E R S M A N 1910-142. 3/ It was the board's responsibility to determine whether m isc o n d u c t occurred; whether separation was necessary; and, if so, what the characterization o f the service should be. "Other Than Honorable" discharge is authorized when a sailor is s e p a ra te d for "[c]onduct involving one or more acts of omissions that constitute a significant d e p a rtu re from the conduct expected of members of naval service." MILPERSMAN 19103 0 4 , Description of Characterization of Service (Oct. 15, 2001). T h o s e offenses that warrant punitive discharge, such as sodomy and indecent acts or lib e rtie s with a child or an adult, are to be considered when delivering an Other Than H o n o ra b le discharge. See MILPERSMAN 1910-142, 1910-304. These offenses are also v io la tio n s of Articles 125 and 134 of the Uniform Code of Military Justice ("UCMJ"). 10 U .S .C . § 925 (2006) (sodomy); 10 U.S.C. § 934 (2006) (indecent acts or liberties with a child o r adult and indecent exposure). Specifically, the offense of indecent acts or liberties with a child requires:

2 / Congress has given the military Secretaries broad authority to discharge enlisted m e m b e rs administratively pursuant to military regulations issued by the respective Secretary. See 10 U.S.C. §§ 1169, 6011 (2006). However, in any case where an Other Than Honorable d is c h a rg e is a possible result, a sailor is entitled to request a hearing before an administrative d is c h a rg e board, consisting of no fewer than three senior individuals from the same armed s e rv ic e branch. MILPERSMAN 1910-304, Description of Characterization of Service (Oct. 1 5 , 2001); MILPERSMAN 1910-502, Administrative Board Composition (Apr. 27, 2005). 3 / This offense was handled as a non-judicial proceeding under Article 15 of the U n if o rm Code of Military Justice ("UCMJ"), 10 U.S.C. § 815 (2006), in order to deal with th e offense as an administrative matter. 3

b. Elements. (1 ) Physical contact. (a) That the accused committed a certain act upon or with the b o d y of a certain person; (b ) That the person was under 16 years of age and not the spouse o f the accused; (c) That the act of the accused was indecent; (d) That the accused committed the act with intent to arouse, a p p e a l to, or gratify the lust, passions, or sexual desires of the accused, the v ic tim or both; and (e) That, under the circumstances, the conduct of the accused w a s to the prejudice of good order and discipline in the armed forces or was o f a nature to bring discredit upon the armed forces. U C M J art. 134, 10 U.S.C. § 934 (emphasis added). In accordance with MILPERSMAN, the Government put forth its case, which c o n s is te d of thirteen exhibits. Plaintiff objected for lack of relevance to Exhibit 9, the "NAS B ru n sw ic k , Maine Security Incident Report, dated 5 July 2006," AR at 6, documenting a p rio r incident in which plaintiff had allowed two women, ages eighteen and twenty-one, to s ta y overnight in his barracks room. No allegations of sexual misconduct had been leveled, b u t the senior member admitted the evidence with the following restriction: I won't let it be used as a pattern because this is about a commission of a s e rio u s offense, but . . . . [i]t is kind of similar in the setup. So as I don't think I will put a whole lot of weight into this. I won't let it be used as a pattern. I a m going to allow it to stay because of some of the similarities to the actual p o lic e report. AR at 12. Plaintiff's defense against the current charge was that he was operating under the re a s o n a b le belief that the girls were at least sixteen years old. He thought that Female #1 was s e v e n t e e n years old, as represented on her MySpace page. When he met the girls, they a p p e a re d to be at least sixteen years old. Maine statutes recognize the defense that the a c c u s e d reasonably believes that the person is at least sixteen. Plaintiff's counsel offered F e m a le #1's MySpace page as evidence despite the recorder's (prosecutor's) argument that th e page did not identify by name the female with whom plaintiff engaged in sexual activity. Apparently, the page listed her age as seventeen, and a MySpace message apology after the in c id e n t from Female #1 to plaintiff contained the same photograph as appeared on her 4

MySpace page. The apology stated, "you shouldn't of told me ya'll was 18 . . . i told ya'll m y real age. . i dun no what [Female #2] told you but I told you . . . . so yeah. . . ." (sic). AR a t 59. The senior member admitted this evidence. P la in tif f also made an unsworn statement professing his reasons for joining the Navy, h is regret for his actions, and his belief that the girls were over the age of sixteen. The board found, by a unanimous vote, that plaintiff had committed a serious offense, in violation of MILPERSMAN 1910-142, and, as a result, recommended an Other Than H o n o ra b le discharge. After rendering this verdict, the senior member elaborated that p la in tif f 's mistake regarding the age of the two females was of no import because his conduct w a s "indecent." AR at 21. He further admonished plaintiff for exhibiting indecent behavior a n d for giving the Navy, particularly his squadron, a bad name. Finally, the senior member s ta te d that "[i]n the grand scheme of things [you are] only getting fired from a job right now. I wish I had the authority to throw you in jail." Id. at 22. T h e discharge board referred its recommendation to plaintiff's commanding officer. Plaintiff, by counsel, submitted a Letter of Deficiency in opposition, detailing errors that the b o a rd made during plaintiff's hearing. On November 9, 2006, plaintiff's commanding o f f ic e r recommended to the separation authority that plaintiff be discharged from Naval s e rv ic e under Other Than Honorable conditions. The separation authority agreed with this re c o m m e n d a tio n and directed the command to discharge plaintiff with an Other Than H o n o ra b le discharge. Plaintiff received that discharge on December 22, 2006. 4/ Plaintiff s u b s e q u e n tly filed an action in the United States Court of Federal Claims challenging his d is c h a rg e and seeking reinstatement, back pay, and expungement of the incident from his m ilita ry record. D IS C U SS IO N I. Jurisdiction P la in tif f 's complaint and the subsequent cross-motions for judgment on the a d m in is tra tiv e record are grounded on the Military Pay Act, 37 U.S.C. § 204 (2006). It is w e ll established that the Military Pay Act is a money-mandating statute and that claims for b a c k pay based on the Military Pay Act are within the jurisdiction of the Court of Federal

4 / This was not a punitive discharge, as a punitive discharge is characterized as a d is c h a rg e resulting from a judicial proceeding such as a court-martial. See UCMJ arts. 161 9 , 10 U.S.C. §§ 816-19 (2006). 5

Claims. Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006). Moreover, wrongful d is c h a rg e is justiciable within the terms of the Tucker Act, 28 U.S.C. § 1491 (2006). See H o lle y v. United States, 124 F.3d 1462, 1465-66 (Fed. Cir. 1997). "[A]lthough the merits o f a decision committed wholly to the discretion of the military are not subject to judicial re v ie w , a challenge to the particular procedure followed in rendering a military decision may p re s e n t a justiciable controversy." Adkins v. United States, 68 F.3d 1317, 1323 (Fed. Cir. 1 9 9 5 ). II. Standard of review 1 . Cross-motions for judgment on the administrative record T h e parties filed cross-motions for judgment on the administrative record pursuant to R C F C 52.1, which provides a procedure for parties to seek an expedited trial on a "paper re c o rd , allowing fact-finding by the trial court." Bannum v. United States, 404 F.3d 1346, 1 3 5 6 (Fed. Cir. 2005). The parties are limited to plaintiff's Navy record and individual s ta te m e n ts of fact submitted under RCFC 52.1. The court must make its findings of fact f ro m this record as if it were conducting a trial. Bannum, 404 F.3d at 1357. The Court of F e d e ra l Claims may consider "`extra-record' evidence" only in extremely limited c irc u m s ta n c e s . Metz, 466 F.3d at 998. 2 . Decisions involving fitness for military service P la in tif f challenges the decisions rendered by an administrative discharge board. "When a branch of the armed forces has made a decision concerning who is or who is not fit to serve, that decision is generally entitled to great deference." Doe v. United States, 132 F .3 d 1430, 1434 (Fed. Cir. 1997). The court reviews decisions rendered by a board for c o rre c tio n of military records so to "not disturb the decision of the [corrections board] unless it is arbitrary, capricious, contrary to law, or unsupported by substantial evidence." Barnick v . United States, 591 F.3d 1372, 1377 (Fed. Cir. 2010) (citing Chambers v. United States, 4 1 7 F.3d 1218, 1227 (Fed. Cir. 2005)). The parties agree that this standard of review applies to the separation action taken on recommendation of the discharge board. In these c irc u m s ta n c e s , the doctrine of harmless error is rendered inapplicable because the court c a n n o t approximate the discretion afforded to the military in its decisions. See, e.g., Wagner v . United States, 365 F.3d 1358, 1365 (Fed. Cir. 2004) (holding harmless-error test in a p p lic a b le when effect of error is unquantifiable and requires speculation as to outcome). P la in tif f must overcome the presumption of regularity that attaches to the actions of th e correction board. See Richey v. United States, 322 F.3d 1317, 1326 (Fed. Cir. 2003) (n o tin g "the presumption of regularity that attaches to all administrative decisions" of the 6

United States). At this point, defendant advances the proposition that plaintiff's burden on re v ie w is to show by "cogent and clearly convincing evidence" that the decision of a military c o rre c tio n board was arbitrary, capricious, contrary to law, or unsupported by substantial e v id e n c e . 5/ Plaintiff responds that requiring this heightened showing is inapplicable to a d m in is tra tiv e discharge boards, as it is only appropriate for reviews of military records c o rre c tio n boards. Defendant demurs, noting, inter alia, the similarities of the two military d is c ip lin a ry boards. T h is heightened burden previously was confined to review of military disability d e te rm in a tio n s , but its application was extended over time -- both inconsistently and without e x p la n a tio n -- to review of correction board decisions. The cases that defendant relies upon in the case at bar can all be traced back to reviews of military disability determinations. Defendant's most persistent citation, Krzeminski v. United States,13 Cl. Ct. 430, 436 (1987), re lie s upon, inter alia, Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986), and A rm s tro n g v. United States, 205 Ct. Cl. 754, 761 (1974), to support the application of a clear a n d convincing evidentiary standard. Although Wronke extends this standard to the review o f a military board decision concerning the falsification of records, Wronke relies on Dorl v . United States, 200 Ct. Cl. 626, 633 (1973), which, in turn, relies upon Wood v. United S ta te s, 176 Ct. Cl. 737, 743 (1966), and Stephens v. United States, 358 F.2d 951, 954 (Ct. C l. 1966), two reviews of disability claims. Meanwhile, Armstrong, 205 Ct. Cl. at 761, im p o s e s a clear and convincing evidentiary standard under the guidance of a triumvirate of d is a b ility cases: Unterberg v. United States, 412 F.2d 1341, 1345-46 (Ct. Cl. 1969); Ward v . United States, 178 Ct. Cl. 210, 216 (1967) (per curiam); and Furlong v. United States, 153 C t. Cl. 557, 563 (1961). Stewart v. United States, 197 Ct. Cl. 472, 484 (1972) (per curiam), w h ic h defendant also cites, is itself a military disability review, which similarly relies on the s a m e disability cases. P la in tif f asserts that, "[b]y [defendant's] own authority, the clear and convincing e v id e n c e standard applies only when the matter has first been referred to a military [board f o r correction of records]." Pl.'s Br. filed June 20, 2010, at 1. None of defendant's cited ju ris p ru d e n c e contradicts this assertion. 6/ Given that the courts conscientiously defer to

5 / Defendant cites Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986); Stewart v . United States, 197 Ct. Cl. 472, 484 (1972); Wyatt v. United States, 23 Cl. Ct. 314, 319 (1 9 9 1 ); and Krzeminski v. United States, 13 Cl. Ct. 430, 436 (1987), to support this p ro p o s itio n . See Def.'s Br. filed June 10, 2010, at 2-3. 6 / Krzeminski, 13 Cl. Ct. at 436, is not binding precedent. Stewart, 197 Ct. Cl. at 4 8 0 , reviews a disability determination. Wronke, 787 F.2d at 1576, addresses a discharge d e te rm in a tio n , but this determination is rendered by a board for correction of military 7

determinations unique to the purview of the military, see Doe, 132 F.3d at 1434 (emphasizing th a t fitness determination is entitled to "great deference"), and that a decision of a discharge b o a rd is reviewable for procedural violations only, see Adkins, 68 F.3d at 1323 (limiting ju d ic ia l review to procedure followed in rendering military decision committed to discretion o f military), a heightened burden of proof should not apply to the review of the discharge b o a rd 's decision. 3. Plaintiff's assignments of error P la in tif f 's Letter of Deficiency, his administrative appeal, argued that the discharge b o a rd essentially made four errors 7/ that rendered the discharge action arbitrary, capricious, c o n tra ry to law, or unsupported by substantial evidence. Before this court plaintiff also a rg u e s that these four incidents indicate the presence of command influence at his hearing a n d caused the discharge board to render a decision that should be found arbitrary, c a p ric io u s , contrary to law, or unsupported by evidence. Plaintiff additionally asserts that h is rights under the U.S. Constitution to due process and privacy were violated by these p ro c e e d in g s . Defendant disputes each of plaintiff's assignments of error and, more f u n d a m e n ta lly, argues that plaintiff's failure to raise command influence during the a d m in is tra tiv e proceedings has waived this argument. Plaintiff thus has put forth five assignments of error, which the court has grouped into f o u r arguments. First, plaintiff argues that the discharge board neglected to consider his d e f e n s e of a mistake of fact. Second, plaintiff challenges that the board's admission of a d e f e n s e exhibit concerning another infraction of rules involving female company was im p ro p e r. Third, plaintiff contends that the recorder's (prosecutor's) remarks concerning his d e c is io n to make an unsworn rather than a sworn statement improperly biased the board. Finally, plaintiff argues that the comments made by the senior member after rendering the v e rd ic t were improper and unnecessary and demonstrated command influence. MILPERSMAN 1910-510 governs the presentation of evidence in these proceedings, p ro v id in g , in pertinent part:

6 / (Cont'd from page 7.) re c o rd s , not an administrative discharge board. Finally, Wyatt, 23 Cl. Ct. at 319, does not a p p ly a clear and convincing evidentiary standard. 7/ Although plaintiff actually articulates five assignments of error, the court jointly addre s s e s plaintiff's second and third--verbal attack of respondent and respondent's counsel, re s p e c tiv e ly-- a s s ig n m e n ts of error. 8

a. The rules of evidence for court-martial and other judicial proceedings d o not apply in an administrative board hearing. b . Reasonable restrictions shall be observed, however, concerning a u th e n tic ity, relevancy, and competency of evidence presented. M IL P E R S M A N 1910-510, Presentation of Evidence (Dec. 12, 1997). 1 ) Plaintiff asserts that the board neglected to consider his defense based on mistake o f fact. Plaintiff adduced that Female #1's MySpace page represented her as being seventeen ye a r s old and that both females looked older than sixteen--all of which substantiated that p la in tif f was operating under a mistake of fact. Plaintiff argues that the recorder (prosecutor) u r g e d the board to ignore this defense and that the senior member himself ignored it. Plaintiff offers media publicity as one possible explanation for the board's refusal to consider th is defense, and this surmise is buttressed by the senior member's remarks post-verdict. Defendant responds that the board considered plaintiff's contentions, as shown by the a d m is sio n of Female #1's MySpace page into evidence and the acknowledgment of the re a s o n a b le mistake-of-fact defense in the senior member's final remarks. This a c k n o w le d g m e n t supports a finding that this defense was considered. If it was considered, t h e court must afford the board deference in its decision. Barnick, 591 F.3d at 1377. Plaintiff has not shown that the board neglected to consider the evidence introduced to s u p p o rt this defense. In fact, the police report reflects that plaintiff "didn't know how old [ F e m a le #2] was" and "he hadn't asked [Female #2] how old she was." AR at 37. E v e n if plaintiff were able to show that the board failed to consider this defense, the c o u rt cannot speculate that the board would not have proceeded to consider the other cited v io la tio n s of the UCMJ relating to adult consensual sexual acts as a serious offense under M IL P E R S M A N 1910-142 warranting an Other Than Honorable discharge. See, e.g., UCMJ a rt. 125, 10 U.S.C. § 925 (sodomy); UCMJ art. 134, 10 U.S.C. § 934 (indecent exposure and in d e c e n t acts). Plaintiff contends that these offenses do not constitute a "serious offense" per M IL P E R S M A N 1910-142, but plaintiff waived this argument by not arguing it during the a d m in is tra tiv e proceedings. See Murakami v. United States, 398 F.3d 1342, 1354 (Fed. Cir. 2 0 0 5 ) (waiving constructive travel restriction argument upon finding no record evidence ra isin g it). These offenses all warrant punitive discharge and confinement, see UCMJ art. 1 3 4 , 10 U.S.C. § 934, thereby rendering them serious offenses under the second prong of M IL P E R S M A N 1910-14: "Members may be separated based on commission of a serious m ilita ry or civilian offense when . . . [the] offense would warrant a punitive discharge per M C M , appendix 12 for same or closely related offense."

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2) Plaintiff argues that evidence of the prior incident was admitted improperly. In a d m ittin g this report, the senior member stated that the evidence would not be given much w e ig h t or considered as a pattern of conduct. Defendant focuses on these limiting remarks to argue that the evidence did not prejudice plaintiff. Plaintiff rejoins with Fed. R. Evid. 401, w h ic h defines relevance as "having any tendency to make the existence of any fact that is of c o n s e q u e n c e to the determination of the action more probable or less probable than it would b e without the evidence." Plaintiff acknowledges, however, that the Federal Rules of E v id e n c e do not apply; rather, only "[r]easonable restrictions shall be observed . . . c o n c erning authenticity, relevancy, and competency of evidence presented." MILPERSMAN 1 9 1 0 -5 1 0 . Even if not binding, the federal evidentiary standard convinces plaintiff that the p ra c tic a l effect of the evidence was to taint the record with irrelevant facts, especially b e c a u s e the evidence of the prior incident concerned neither sexual activities nor minors. Plaintiff is correct that this evidence is incapable of assisting the trier of fact to d e te rm in e if plaintiff engaged in sexual conduct with someone he knew to be a minor. Defendant insists that this error is immaterial because the board is permitted to view the e n tire military record of the service member in question. MILPERSMAN 1910-302, General C o n s id e ra tio n s on Characterization of Service (Aug. 22, 2002). However, this information w a s not in plaintiff's military record. See AR 86-128. While the prior incident report was n o t relevant, the board merely is required to apply reasonable restrictions, which the senior m e m b e r accomplished by limiting the use of this evidence. "So [ ]I don't think I will put a w h o le lot of weight into this. I won't let it be used as a pattern. I am going to allow it to stay b e c a u s e of some of the similarities to the actual police report." AR at 12. T h e court is at a loss to identify the purpose served by this evidence if not to show a p a tte rn of behavior. Yet, the record reflects that the board applied reasonable restrictions, a n d the court must give deference to these restrictions. Doe, 132 F.3d at 1434. The board's c o n s id e ra tio n of this evidence, in view of the other evidence of record, does not render the b o a rd 's decision arbitrary, capricious, contrary to law, or unsupported by substantial e v id e n c e . 3) Plaintiff contends that the board improperly considered the recorder's comment in his closing statement that plaintiff failed to testify under oath. The recorder (prosecutor) s ta te d : "The only statement we don't have is the statement of AN [ ]. He decided to stand u p here and submit an unsworn statement because he didn't want to be questioned by myself o r any of the board members." AR at 18. Both parties, as well as the board, agree that this s ta te m e n t was improper, and as such, it was withdrawn. Id. at 18-19. However, the parties d is p u te whether this statement improperly tainted the discharge proceeding. According to p la in ti f f , the recorder's statement was made intentionally and subsequently withdrawn in o rd e r to sway the board. "This was an obvious attempt to `get away' with making an 10

illegitimate point much like the actions of lawyers on television drama shows who withdraw im p ro p e r questions after an objection, knowing that their improper question or comment had its desired effect on the jury." Pl.'s Br. filed June 20, 2010, at 12. Defendant downplays this re m a rk as not central to the board's determination because the recorder withdrew it. See AR a t 18. Moreover, defendant argues that the recorder actually was rebutting plaintiff's s ta te m e n t, not trying to discredit the statement as unsworn. The court finds this ra tio n a l iz a t i o n to be fatuous. The issue is whether the minimal procedural safeguards a p p lic a b le were violated by the inappropriate statement. T h e recorder's (prosecutor's) comments show that the recorder was attacking the n a t u r e of the testimony and not its substance. However, defendant's former point is well ta k e n , as it is speculative to assume that this statement actually had any influence on the b o a rd 's decision. Given the entirety of the evidence, the court cannot find that the recorder's in a p p ro p r i a t e statement rendered the board incapable of delivering a fair and impartial d e c is io n . The senior member promptly labeled this statement improper, and the recorder w ith d re w it. The record exhibits substantial evidence that the board was not persuaded by p la in tif f 's statement merely because it was tendered as unsworn. 4) Plaintiff takes the senior member to task for verbally abusing plaintiff and his c o u n s e l. Plaintiff was chastised for asking a witness to speak on his behalf, reprimanded for d is g ra c in g the Navy and his squadron, and told that the senior member did not care about the a g e of the girl in question because what plaintiff did was indecent. Plaintiff contends that th e board should not have weighed the consequences of the act, but was limited to the o f f e n d in g act, i.e., sex with a minor. Plaintiff views the challenged remarks of the senior m e m b e r, in addition to being unnecessary, as reflecting the board's pre-existing bias. Plaintiff urges that the speed with which the board's decision was rendered and the harsh n a tu re of the senior member's comments establish that the board, or at least the senior m e m b e r, had decided this case before hearing it, thereby undermining the legitimacy of the h e a rin g or any chance for a fair and impartial decision. Defendant characterizes the senior m e m b e r's remarks as an honest and forthright explanation of the judgment. The senior m e m b e r, in defendant's view, was explaining why plaintiff and the Navy were not a good fit a n d , as such, the remarks were immaterial. T h e transcript of the hearing reflects that the senior member was upbraiding plaintiff a n d his counsel. Frankly, this part of the record reads like a rant. Although gratuitous, these c o m m e n ts did not render the board's decision arbitrary, capricious, contrary to law, or u n s u p p o rte d by substantial evidence. The board had made its decision prior to the senior m e m b e r's explanation of why he was "extremely offended" that plaintiff acted irresponsibly.

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Plaintiff contends that the senior member's statement that "[t]he fact is that it doesn't m a tte r what age the person is[,]" AR at 21, is inconsistent with the board's decision. However, plaintiff was charged with the offense of Misconduct ­ Commission of a Serious O f f e n s e , which is not limited to indecent acts with a minor. AR at 21. An Other Than H o n o ra b le characterization is appropriate for "[c]onduct involving one or more acts of o m is s io n s that constitute a significant departure from the conduct expected of members of naval service." MILPERSMAN 1910-304. Thus, the age of Female #2 is not an essential e le m e n t to finding that plaintiff could be discharged Other Than Honorably. The board is a u th o riz e d to recommend discharge for an array of conduct constituting a "serious offense," w h ic h includes sodomy under Article 125 of the UCMJ, 10 U.S.C. § 925, 8/ an offense that p ro v i d e s sufficient ground for an Other Than Honorable discharge. As such, the senior

8 / Sodomy consists of: a. Text. (a ) Any person subject to this chapter who engages in unnatural carnal c o p u la tio n with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense. .... b . Elements. (1 ) That the accused engaged in unnatural carnal copulation with a c e rta in other person or with an animal. .... (3) That the act was done with a child who had attained the age of 12 b u t was under the age of 16. .... c . Explanation. It is unnatural carnal copulation for a person to take into that p e rs o n 's mouth or anus the sexual organ of another person or of an animal; or to place that person's sexual organ in the mouth or anus of another person or o f an animal . . . . U C M J art. 125, 10 U.S.C. § 925. 12

member's comments do not render the action arbitrary, capricious, unsupported by s u b s ta n tia l evidence, or contrary to law. 4 . Command influence A lth o u g h plaintiff insists that command influence rendered the board's decision a rb itra ry, capricious, and contrary to law, defendant contends that plaintiff waived this a rg u m e n t by not raising it at the administrative level. See Murakami, 398 F.3d at 1354. Plaintiff, admittedly, did not mention "command influence" in his Letter of Deficiency, but m a in ta in s that the cited errors were caused by, and played a factor in, the board's failure to re n d e r an unbiased decision. According to plaintiff, "[t]here is no bright line test that re q u ire s the use of magic words." Pl.'s Br. filed June 20, 2010, at 2. Plaintiff insists that the s e n io r member's post-verdict remarks establish the presence of command influence. They re a d in full: T h e re are some things I want you to take away from this. In the grand s c h e m e of things this is like getting fired from a job and from what I see w h e th e r the civilian courts see it that way or not, it can get a lot worse for you. The Navy is 24-7. Just because you go home and take off a uniform does not m e a n you are out of the Navy. The age of the individuals, you know my q u e s t i o n to AO1 whether it mattered whether she was 17 or not had nothing to do with whether I had a problem with it. The fact is that it doesn't matter w h a t age the person is. What you did was indecent. I think you know exactly w h a t you were going out there for. There was no question in your mind. Whether you really cared about their age or not, the fact that you got caught in a parking lot, and from what I read about what happened in that car, it d o w n rig h t sickens me. You know what, the news really didn't play in to this a t all. You want to know why, because I can guarantee you the three of us on th is board by the time we got out of work, the news was already over. Because w e work so hard, and all it takes is one act like you did. Whether your lawyer th in k s it does or not, it affects VP-8. Everything everybody in VP-8 does is s e e n and it comes right back to VP-8. So I don't know what you (CR) were m a k i n g a statement about how it doesn't affect VP-8, but it most certainly d o e s . I take a lot of pride in my squadron. These guys take a lot of pride in th e ir squadron. If you think that we think that little of it, than that is as d is g u s tin g as what he did. I am extremely offended by the fact that you think it doesn't affect VP-8. There are some 350 to 400 people that make that s q u a d ro n as good as it can be. And if you think an act like this doesn't really s h a m e anybody else, then you have to rethink some things. There are people

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in that hangar that work so hard. There are people in that hangar that we have to tell to go home because they work so hard. A n d for you to go out and essentially just drag that name through the m u d for your own personal gains in what we saw here is just wrong. You're lu c k y you are only getting fired. I hope you understand that. You can sit there a n d cry and moan about how it's not fair and stuff like that. In the grand s c h e m e of things your only getting fired from a job right now. I wish I had the a u th o rity to throw you in jail. You know we are always worried about being a bastard to other countries we go to, how about being a bastard to the home to w n that you're living in. Did you think of that at all through this whole th in g . I can tell you didn't, otherwise we wouldn't be here. You owe a big th a n k you to AO1 [ ] for even stepping up for you. He did that because he d o e s that for all his guys. And you owe him an apology for putting him in the p la c e you did. That's all I got. A R at 21-22. Command influence may be found to exist if a reasonable citizen, knowing all of the f a c ts of a given case, would believe the military justice system to be unfair and, as such, lose c o n f id e n c e in the entire system. United States v. Lawson, 33 M.J. 946, 950 (N.M.C.M.R. 1 9 9 1 ). The mere appearance of command influence is sufficient. United States v. Stoneman, 5 7 M.J. 35, 42-43 (C.A.A.F. 2002). Although generally applied to military judicial p ro c e e d in g s , such as a court-martial, this principle also is applied to administrative hearings, e .g ., Werking v. United States, 4 Cl. Ct. 101, 105 (1983), and it must be raised during the a d m in is tra tiv e proceedings in order to be reviewed by this court, see Murakami, 398 F.3d at 1354. The initial burden lies with the defendant in the military proceeding [in the instant m a tte r, plaintiff] to show "facts which, if true, constitute unlawful command influence . . . [ w h ic h has a] potential to cause unfairness in the proceeding. United States v. Biagase, 50 M .J . 143, 150 (C.A.A.F. 1999). If the defendant is able to make a showing of such facts, the b u rd e n shifts to the Government to demonstrate beyond a reasonable doubt that unlawful c o m m a n d influence was either absent from or otherwise did not taint the proceedings. Stoneman, 57 M.J. at 41. 9/

9/ Upon initial allegations of unlawful command influence, the court presumes "that a d m in i s tra to rs of the military, like other public officers, discharge their duties correctly, la w f u lly, and in good faith." Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979) (en 14

MILPERSMAN governs the senior member's role in an administrative discharge b o a rd , granting the senior member the authority to "preside over proceedings of the board, a n d [ ] rule on all matters of procedure (to include granting on continuances) and evidence." MILPERSMAN 1910-506, Senior Member of the Board (June 7, 2005). However, "[r]ulings o f senior member may be overruled by a majority of the board." Id. A d d itio n a lly, Article 37 of the UCMJ restricts the influence of higher authorities on th e findings of any military proceeding, providing: (a ) No authority . . . may censure, reprimand, or admonish the court or a n y member, military judge, or counsel thereof with respect to the findings or s e n te n c e adjudged by the court . . . . No person subject to this chapter may a tte m p t to coerce or, by any authorized means, influence the action of a courtm a rtia l or any other military tribunal or any member thereof, in reaching the findings or sentence in any case . . . . The foregoing provisions of the s u b s e c tio n shall not apply . . . to statements and instructions given in the open c o u rt by the military judge, president of a special court martial, or counsel. 1 0 U.S.C. § 837 (2006). This does not prevent the board, or the senior member, from e x p re s s in g his opinions on the case, as the senior member did in United States v. OvandoM o ra n , 44 M.J. 753, 756-57 (N-M Ct. Com. App. 1996); rather, the provision erects a

9 / (Cont'd from page 14.) b a n c ), superseded in part by statute, 10 U.S.C. § 628 (2006), as recognized in Porter v. U n ite d States, 163 F.3d 1304, 1311 (Fed. Cir. 1998). However, if a defendant in a military p ro c e e d in g is able to show facts constituting the presence of command influence, the court s h o u ld presume the existence of command influence. Biagase, 50 M.J. at 150-51. Thus, the G o v e rn m e n t may satisfy its burden to rebut this presumption (1 ) by disproving the predicate facts on which the allegation of unlawful c o m m a n d influence is based; (2) by persuading the military judge or the a p p e lla te court that the facts do not constitute unlawful command influence; (3 ) if at trial, by producing evidence proving that the unlawful command in f lu e n c e will not affect the proceedings; or (4), if on appeal, by persuading th e appellate court that the unlawful command influence had no prejudicial im p a c t on the court-martial. Id . at 151. 15

safeguard against individual attempts to improperly sway the court or board. In OvandoM o ra n the senior member expressed that, "if the accused were a good person he would have b e e n at home with his pregnant wife, not `Tom-catting' around with another woman." Id. a t 756 (citation omitted). The court did not find this comment, and others similar to it, s u f f ic ie n t to support an assertion of command influence. See id. at 757. A c c o rd in g to plaintiff, the fact that the senior member consistently acted as though p la in tif f 's fate already had been decided is sufficient to support a finding of command in f lu e n c e . Plaintiff also compares the senior member's rank to that of the other two members a n d notes that the senior member was appointed by the commanding officer. None of these f a c tu a l assertions, however, signifies the presence of command influence. Throughout the adm inistrative proceeding, the senior member acted within his powers under MILPERSMAN 1 9 1 0 -5 0 6 and he did not attempt to coerce the findings of the court. The senior member re p rim a n d e d plaintiff and his counsel, but Article 37 of the UCMJ merely prevents an a u th o rity from reprimanding the other members about the findings of the board. During his e x te n d e d post-verdict remarks, the senior member announced, "I wish I had the authority to th ro w you in jail[,]" but he stopped short of censuring, reprimanding, or admonishing the o th e r members for not taking this action. AR at 22. Assuming, arguendo, that plaintiff has shown facts constituting command influence, p la in tif f failed to adduce them while arguing his case to the military. This is fatal to this p o s itio n . Plaintiff marshals these facts in support of his assignments of error argued in this ju d ic ia l proceeding. Because plaintiff could have assigned the conduct as error during the N a v y's administrative review, this court is precluded from considering the issue. See United S ta te s v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952); Murakami, 398 F.3d at 1 3 5 4 . 10/ 5 . Plaintiff's other claims P la in tif f asserts a violation of his due process rights under the Fourteenth Amendment to the U.S. Constitution and a violation of his right to privacy in his sexual acts. First, p la in tif f contends his due process rights were violated because he was unable to confront the p o lic e officer who made the incident report. The constitutional rights plaintiff invokes do n o t apply to Article 15 non-judicial proceedings, however. See Middendorf v. Henry, 425 U .S . 25, 48 (1976) (holding that Fifth and Sixth Amendments do not apply to summary

1 0 / Plaintiff has not only waived this argument, but also failed to put forth sufficient f a c ts demonstrating the presence of command influence. As such, the court need not discuss th e burden, per Biagase, that would have shifted to defendant in the presence of such facts. 16

courts-martial); Dumas v. United States, 620 F.2d 247, 253 (Ct. Cl. 1980) (same as to Article 1 5 proceeding). Even though the Government has the burden of persuasion, it is not required to call witnesses for the sole purpose of allowing plaintiff to examine them. Plaintiff could h a v e called these witnesses himself. S e c o n d , plaintiff asserts a right to privacy to engage in oral sex under Lawrence v. T e x a s, 539 U.S. 558, 578 (2003), and United States v. Marcum, 60 M.J 198, 206-07 (C .A .A .F . 2004). Under Marcum acts of sodomy by a member of the military are c o n s titu tio n a l if (1) the conduct was of a nature to bring it within the Lawrence liberty in te re s t; (2) the conduct does not encompass any behavior or factors identified by the S u p re m e Court as outside the analysis of Lawrence; and (3) no additional factors are present re le v a n t solely to the military environment that affect the nature and reach of the Lawrence lib e rty interest. 60 M.J. at 206-07. Arguing under the first two prongs of this test, plaintiff m a in ta in s that the conduct in question was consensual and that it does not fall outside the s c o p e of Lawrence because plaintiff had a reasonable belief that Female #2 was not a minor. Defendant aptly counters that not only was Female #2 incapable of consenting, but the c o n d u c t was in public and involved minors, removing it from the scope of Lawrence. Plaintiff's conduct does not fall under the Lawrence liberty interest. "[T]he first q u e s t i o n we ask is whether Appellant's conduct was of a nature to bring it within the L a w re n c e liberty interest. Namely, did Appellant's conduct involve private, consensual s e x u a l activity between adults?" Marcum, 60 M.J. at 207. Because Female #2 was a minor, s h e was not capable of consenting. Two other factors that the Supreme Court delineates as b e in g outside the rubric of Lawrence are whether the conduct involved minors or was in p u b lic . Id. (citing Lawrence, 539 U.S. at 578). The conduct in the case at bar involved two m in o r females, and the acts were performed in a public park. Plaintiff contends that sexual a c ts performed in a car are not open and notorious. Indeed, the conduct in question was not o n ly public because it was performed in a car parked in a public park, but also because two o th e r people were present during a phase of the incident in the vehicle. It seems c o u n te rin tu itiv e for plaintiff to assert a privacy interest when his acts actually were not p r iv a te . P la in tif f has not shown that the board's decision was arbitrary, capricious, contrary to law, or unsupported by substantial evidence. Although certain statements on the record w e re hyperbolic and the admission of evidence of prior conduct was improper, the board's p ro c e s s properly observed "reasonable restrictions" when making evidentiary determinations a n d satisfies the standard of review. MILPERSMAN 1910-510.

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CONCLUSION A c c o rd in g ly, based on the foregoing, 1. Defendant's motion for judgment on the administrative record is granted, and p la in tif f 's cross-motion is denied. The Clerk of the Court shall enter judgment for defendant. 2 . By August 19, 2010, the parties shall notify the court if either requests that this o p in io n should be issued for publication. If publication is requested, both parties shall id e n tif y in brackets any material subject to redaction before this opinion is published. I T IS SO ORDERED. N o costs.

/s/ Christine O.C. Miller ______________________________ C h r is tin e Odell Cook Miller Judge

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