DWORJAN v. UNITED STATES OF AMERICA et al
MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 1/28/2016. (kas, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GREGORY S. DWORJAN,
Civil Action No. 13-2671 (MAS)(TJB)
UNITED STATES OF AMERICA, et al.,
SHIPP, District Judge
This matter comes before the Court on Defendants United States of America; Ray Mabus,
Secretary of the Navy; Board for Correction ofN aval Records ("BCNR"); and the Naval Discharge
Review Board's ("NDRB") (collectively, "Defendants" or the "Navy") Motion for
Reconsideration, pursuant to Local Civil Rule 7.l(i), of the Court's June 15, 2015 Order denying
Defendants' Motion for Summary Judgment (ECF No. 62). (ECF No. 63.) Plaintiff Gregory S.
Dworjan ("Plaintiff' or "Mr. Dworjan") filed an opposition brief (ECF No. 64), and Defendants
replied (ECF No. 70). In addition, Defendants filed a response to the Court's Order to Show Cause
(ECF No. 65), which required Defendants to show cause by July 6, 2015, why summary judgment
should not be granted in.favor of Plaintiff, and Plaintiff filed an opposition brief (ECF No. 68).
Reconsideration under Local Civil Rule 7.1 is "an extraordinary remedy" that should be
granted "very sparingly." Interfaith Cmty. Org. v. Honeywell Int'!, Inc., 215 F. Supp. 2d 482, 507
(D.N.J. 2002) (internal quotation marks omitted). The moving party must show "at least one of
the following grounds: (1) an intervening change in the controlling law; (2) the availability of new
evidence that was not available when the court granted the motion for summary judgment; or
(3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood
Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). The scope of the motion
is "extremely limited," and the party moving for reconsideration cannot use the motion "as an
opportunity to relitigate the case." Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011). Local
Civil Rule 7.1 (i) provides that the moving party must set forth "concisely the matter or controlling
decisions" that the party believes the court has overlooked. "Mere disagreement with a court's
decision normally should be raised through the appellate process and is inappropriate on a motion
for [reconsideration]." United States v. Pinkhasov, No. 08-285, 2009 WL 150669, at *1 (D.N.J.
Jan. 21, 2009).
In their Motion for Reconsideration, Defendants contend that the Court's June 15, 2015
Decision (Op., ECF No. 61) denying their Motion for Summary Judgment, was contrary to the law
governing the Administrative Procedures Act ("APA"), because it "(1) afforded the Navy no
deference, (2) rejected the Navy's interpretation of its own regulations, (3) determined, on its own,
that other sections of the MILPERSMAN [an administrative document issued by the Chief of
Naval Personnel] applies to plaintiffs separation, (4) found that the Navy failed to comply with
those sections, and (5) concluded that the Navy's failure to comply with those MILPERSMAN
sections prejudiced plaintiff." (Defs.' Moving Br. 7, ECF No. 63-1.) In particular, Defendants
argue that the "Court overlooked the well-established standard controlling judicial review of APA
Actions" by stating that sections 1910-233, 1910-400, 1910-404, 1910-408, 1910-504, and 1910-
The background for this dispute is set forth in detail in this Court's decision on Defendants'
motion for summary judgment. (ECF No. 61.)
508 of the MILPERSMAN "appear to be directly applicable" to Plaintiffs separation. (Id. at 7.)
As discussed below, the Court disagrees that the APA compels the Court to review only those
particular sections of the Navy's regulations that the Navy cites and simply ignore other sections
of its regulations. Nonetheless, based on Defendants' submissions in support of their Motion for
Reconsideration, and in particular the Declaration of Lieutenant Commander Dennis ("LCDR
Dennis"), the Court grants Defendants' Motion for Reconsideration and finds that the Navy did
not act arbitrarily, capriciously or contrary to law.
Defendants' Motion for Reconsideration
Defendants argue that, pursuant to the standard of review for AP A actions, the Court should
have ignored the "Mandatory Separation Processing" guidelines in section 1910-233 of the
MILPERSMAN and simply accepted "the Navy's representation that the only regulation
controlling the Disciplinary Review Board ("DRB") proceeding was [Officer Training Command
Newport ("OTCN")] Instruction 1610 and that the separation was in accordance with
MILPERSMAN 1910-182." (Def.'s Moving Br. 6-7.) The Court disagrees. The APA does not
relieve the Court of its duty to review an agency's decisions. Wisotsky v. United States, 69 Fed.
Cl. 299, 304 (Ct. Cl. 2006) ("Although [c]ourts should be responsible and seek not to interfere in
military matters beyond their competence, it, nonetheless, is a court's duty to identify and review
errors in process and procedure, especially when those procedures have been established by the
military itself."). Nor does it permit the Court to ignore seemingly "mandatory" procedures in
conducting this review.
See also id. ("Agencies are bound by the applicable statutes and
regulations.") Particularly here, where the Court was charged with the responsibility of examining
a decision that effectively deprived an individual of his chosen profession and the honor of serving
his country, the Court must ensure that the Navy did not act arbitrarily, capriciously, or contrary
to law in both identifying and adhering to the applicable regulations. Accordingly, consistent with
the standard of review prescribed by the APA, in reviewing Plaintiff's separation, the Court
reviewed the following articles of the Navy's regulations which pertain to administrative
separations: (1) article 1910-200, which provides guidelines for separations; and (2) article 1910400, which provides notice procedures for separations. As discussed below, however, based on
Defendants' submissions in support of their Motion for Reconsideration and in particular, the
Declaration of Lieutenant Commander Dennis, the Court finds that its interpretation of these
provisions in its June 15, 2015 Decision was incorrect.
The Nayy's "Mandatory" Separation Procedures
Article 1910-200 of the MILPERSMAN, titled "Guidelines on Separation and Suspension
of Separation," states that it is applicable to "all enlisted administrative separations."
MILPERSMAN 1910-200. Nothing in the language of article 1910-200 limits its application to
particular administrative separations. On the contrary, paragraph one of this article provides that,
in addition to the guidance provided in article 1910-200, "[f]urther guidance is provided under the
specific reason for processing in MILPERSMAN 1910-100," and article 1910-100 in turn refers
to separations for "voluntary," "involuntary," and a catchall "other" reasons. MILPERSMAN
1910-200; 1910-100. Thus, by its terms, article 1910-200 appears to mandate that the guidelines
provided in this article apply to all administrative separations, including Plaintiff's.
One of the "guidelines" provided in article 1910-200, is titled "Mandatory Separation
Consistent with the plain meaning of the word
"mandatory" and the directive in article 1910-200 that it is to be applied to "all enlisted
administrative separations," in its June 15, 2015 Decision the Court found that the "Mandatory
Separation Processing" guidelines, which are contained in section 233 of article 1910-200, were
to be applied to all enlisted administrative separations. (Op. 10.) Section 233 directs the Navy to
"[u]se the administrative board procedures per MILPERSMAN 1910-404, except as noted in the
table below." MILPERSMAN 1910-233. The table provided in section 233 describes eleven
specific offenses and refers to particular guidelines for processing these offenses. Id. Noting that
the "Plaintiff's stated basis for separation ... is incompatible" with the offenses listed in the table,
the Court found that the procedures under MILPERSMAN 1910-404, rather than the procedures
referenced in the table, were applicable to Plaintiff's separation. (Op. 10 n.11.)
In their Motion for Reconsideration, Defendants contend that the Court's interpretation of
section 233 is incorrect. (Defs.' Reply Br. 5.) Defendants assert that section 233 applies only to
the eleven offenses described in the table provided in the section, and as such its provisions are
"mandatory" only with respect to those particular offenses. (Id.) To support this interpretation,
Defendants provide the Declaration of LCD R Dennis, the Navy officer currently serving as branch
head of Enlisted Separations. (LCDR Dennis Deel.
if 1, ECF No. 70-1.) LCDR Dennis is
responsible for administering MILPERSMAN article 1910-200 and "other articles pertinent to
enlisted separations." (Id.) In his declaration, LCDR Dennis asserts that:
The purpose of Paragraph 1ofMILPERSMAN1910-233 is to direct
commanding officers to elevate the decision to retain a service
member, who has committed specific offenses, beyond the
commanding officer of the unit. The statement "Use administrative
procedures per MILPERSMAN 1910-404, except as noted below"
only applies to cases where the offenses listed in [the table in]
MILPERSMAN 1910-233 have been committed. This article2 does
not direct that administrative board procedures be provided to all
In his declaration LCDR Dennis refers to both the MILPERSMAN articles as well as their
subparts as "articles." To avoid confusion, the Court distinguishes between articles and their
subparts by referring to the subparts as "sections."
Furthermore, LCDR Dennis states that "DODI 1322.14 and MILPERSMAN 1910-
400 make clear that enlisted Sailors are entitled to an administrative separation board in only two
circumstances: if the member is facing the possibility of an other than honorable discharge and/or
if the member has over six years of active and/or reserve duty service." (Id.
if 3(a).) Applying the
deferential standard of review given to an agency's interpretation of its own regulations, 3 the Court
finds that LCDR Dennis's interpretation of section 233 and the sections referenced therein is
controlling. Accordingly, based on LCDR Dennis's Declaration, the Court grants Defendants'
Motion for Reconsideration to correct its interpretation of these sections of the MILPERSMAN.
Applying LCDR Dennis's interpretation of section 233 and article 1910-400, the Court
finds that because Plaintiff was honorably discharged and had served less than six years, the Navy
did not act arbitrarily, capriciously, or contrary to law in discharging the Plaintiff without an
administrative separation board or any of the concomitant rights. 4 Whether the Navy acted
arbitrarily, capriciously, or contrary to law in failing to give Mr. Dworjan notice as to the reasons
for separation is, however, a much closer question.
The Navv's Separation Notification Procedures
Plaintiff argues that "a reading ofMILPERSMAN 1910-400 and 1910-182 together leads
to the initial conclusion that Plaintiff was due notification under 1910-402." (Pl.'s Opp'n Br. 11.)
Because the Court found that Plaintiff was entitled to notification pursuant to his right to ati
administrative separation board under MILPERSMAN 1910-404, the Court did not address section
See Chevron U.S.A., Inc. v. Natural Res. Defense Council, 467 U.S. 837, 844 (1984) (discussing
deference given to an agency's interpretation of its own regulations).
Some of these concomitant rights are described in MILPERSMAN sections 1910-404 ("Notice
of Administrative Board Procedure"), 1910-504 ("Right to Counsel"), and 1910-508 ("Witnesses
at [an] Administrative Board").
1910-402 in its June 15, 2015 Decision. Having granted Defendants' Motion for Reconsideration
and having found that the Navy's regulations did not mandate review by an administrative
separation board pursuant to MILPERSMAN 1910-404, the Court now considers whether Plaintiff
was nonetheless entitled to notice as to the reasons for separation and a chance to respond pursuant
to MILPERSMAN 1910-402 and 1910-408.
LCDR Dennis's Declaration does not address the notification procedures described in
MILPERSMAN 1910-400(1)(a), 1910-402 and 1910-408. MILPERSMAN 1910-400 states that
"[a] member may be processed for [administrative separation] by either Notification or
Administrative Board Procedures." MILPERSMAN 1910-400 (emphasis added). Importantly, in
contrast to separation by administrative board procedures, separation by notification does not
require a dishonorable discharge or a particular length of service. MILPERSMAN 1910-400(1 )(a).
Thus, the notification procedure appears to be a minimum procedural safeguard that is applicable
to individuals, like Plaintiff, who are not entitled to an administrative separation board.
The merits of affording members of the military some notice before convening a hearing
that could result in the individual's separation from the military are well illustrated by Plaintiff's
case. Here, without notice of the Disciplinary Review Board ("DRB") or even the charges against
him, 5 Plaintiff failed to offer a defense to the accusations of assault at the DRB hearing. While the
DRB found that "Candidate Officer Dworjan refused to answer questions about the alleged assault
charges on the advice of his lawyer," it does not appear that Mr. Dworjan actually had the
opportunity to respond to these allegations at the DRB hearing or that he ever "refused" to answer
(Dworjan Statement, A.R. 40-41, ECF No. 17) ("At no point during this DRB was I read my
rights, the charges, or accusations against me. I had no opportunity to prepare statements, consult
with my lawyer, talk to persons who could help my case, or in any way prepare for the ambush of
the DRB. Worst of all, I had no idea why I was there.").)
questions regarding these allegations. (DRB Findings ICO Candidate Officer Dworjan
Administrative Record ("A.R.") 162, ECF No. 22.) In his statement to the BCNR, Mr. Dworjan
asserted: "During the course of the DRB, LCDR Favata told me that I was accused of dating three
women at the same time- in fact, this was the only allegation.... No one in the DRB mentioned
the assault . . . ." (March 14, 2011 Statement of Applicant Gregory S. Dworjan ("Dworjan
Statement"), A.R. 41, ECF No. 17.) Defendants have not disputed or offered any evidence that
contradicts this account of the DRB hearing.
Accordingly, it appears that Mr. Dworjan's
"refus[al]" to answer questions occurred "[d]uring the week of June 15, [when] Base Police
contacted [Mr. Dworjan] in an attempt to get him to meet with them without legal counsel present."
(Synopsis, A.R. 47, ECF No. 18.) Furthermore, it appears that what the DRB construed as Mr.
Dworjan's "refus[al] to answer questions about the alleged assault charges on the advice of his
lawyer" was in fact Mr. Dworjan's insistence, on the advice of counsel, to have an attorney present
during questioning by the Base Police regarding assault charges. (DRB Findings ICO Candidate
Officer Dworjan ~ 2, A.R. 162). 6
In a submission to the BCNR, Plaintiff explained that after a defense attorney from the
Navy Legal Service Office "advised [him] not to make any statements regarding the case without
[counsel] being present," and contacted the Base Police who were investigating the assault
accusations to request that they send questions for Mr. Dworjan in writing, the Base Police
"abruptly stopped [their investigation] without interviewing all the witnesses or [Mr. Dworjan]."
(Synopsis, A.R. 47.) Thereafter, the DRB considered only the uncontested statements of Officer
Mr. Dworjan provided a response to the allegations of assault in his submission to the BCNR.
(March 23, 2011 Application for Correction of Military Record, A.R. 28-213, ECF Nos. 17-24.)
Candidates Elizabeth Wilcockson and Miranda Rosenbaum, and rather than recognizing that the
investigation had been stopped, the DRB stated that Mr. Dworjan refused to answer questions:
Candidate Officer Dworj an refused to answer questions about the
alleged assault charges on the advice of his lawyer. The board could
only consider the statements in the investigation by the victim
(Wilcokson [sic]) and the witness (Roesnbaum [sic]) as evidence
when contemplating the alleged assault.
(DRB Findings ICO Candidate Officer Dworjan if 2, A.R. 162). Thus, here the failure to afford
Mr. Dworjan notice pursuant to MILPERSMAN section 1910-402 and time to respond pursuant
to MILPERSMAN section 1910-408, effectively deprived Mr. Dworjan of the opportunity to
contest the allegations of assault at the DRB hearing. 7
Unfortunately, however, the Navy's regulations do not mandate that its members receive
the protections of these notice provisions. MILPERSMAN 1910-400(1) states: "A member may
be processed for [Administrative Separation] by either Notification or Administrative Board
Procedures." MILPERSMAN 1910-400(1) (emphasis added). Furthermore, while some sections
of the MILPERSMAN explicitly state that a particular basis for separation triggers the right to
notice pursuant to either 1910-402 or 1910-404, MILPERSMAN 1910-182, the provision under
which Plaintiff was separated, does not reference any notification procedure.
MILPERSMAN 1910-154 (stating that "Notice ofNotification Procedure (MILSPERMAN 1910-
In addition to the allegations of assault, the DRB also considered an alleged order violation. With
respect to the order violation, Mr. Dworjan disputed Master Sergeant Sundermeir's statement that
he had advised Mr. Dworjan that "there are no woman [sic] allowed in the barracks at all." (Id.
il 3.) In response to formal written counseling by LCDR Gray on Mr. Dworjan's violation of this
order, Mr. Dworjan stated that he "did not recall being given the order by [Master Sergeant]
Sundermeier [sic]." (Dworjan Statement, A.R. 40.) Thus, in addition to the "results of the criminal
investigation for the alleged assault," the DRB also based its decision to immediately attrite Mr.
Dworjan from the OTCN on "his unwillingness to accept responsibility for his actions regarding
his orders violation." (DRB Findings ICO Candidate Officer Dworjan il 5, A.R. 162.)
402) shall be used to process member for separation."). Thus, given the "strong but rebuttable
presumption that administrators of the military, like other public officials, discharge their duties
correctly, lawfully, and in good faith," Frizzelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997)
(quoting Collins v. United States, 24 Cl. Ct. 32, 28 (1991), aff'd, 975 F.2d 869 (Fed. Cir. 1992)),
the Court is compelled to conclude that the DRB did not act arbitrarily, capriciously, or contrary
to law in denying Plaintiff notice or time to respond pursuant to MILPERSMAN 1910-402 and
Accordingly, the Court grants Defendants' Motion for Reconsideration and finds that the
Navy did not act arbitrarily, capriciously or contrary to law in denying Plaintiff the procedural
protections provided in MILPERSMAN 1910-233, 1910-404, 1910-408, 1910-504, and 1910-508.
Defendant's Motion for Summary Judgment
In Plaintiffs opposition to Defendants' Motion for Summary Judgment, Plaintiff argued
that the DRB violated Articles 31and32 of the Uniform Code ofMilitary Justice ("UCMJ"). (Pl. 's
Summary Judgment Opp'n Br. 3-18, 20-23, ECF No. 48.) In their reply brief, Defendants did not
contest that the DRB did not comply with the procedures of Articles 31 and 32 of the UCMJ.
Rather, Defendants argued that these articles are inapplicable because the DRB was not a criminal
proceeding and Plaintiff was not subject to a court-martial. (Def.'s Summary Judgment Reply Br.
6-8, ECF No. 54.) Because the Court found that the "Navy did not act in accordance with the
MILPERSMAN," it did not address these arguments in its June 15, 2015 Decision. (Op. 12 n.12.)
Having granted Defendants' Motion for Reconsideration and having found that the Navy acted in
accordance with MILPERSMAN, the Court now addresses Plaintiffs' argument regarding Articles
31and32 of the UCMJ.
First, with respect to Article 31 of the UCMJ, this provision prohibits self-incrimination.
While the rights that Article 31 provides would arguably have been applicable to Plaintiff because
Plaintiff was suspected of having committed assault, the only remedy that it provides is the
exclusion of incriminating statements in a trial by court martial. 10 U.S.C. § 831 (a)-(d); see also
Kindred v. United States, 41 Fed. Cl. 106, 112 (Ct. Cl. 1998) ("[B]ecause plaintiff was not the
subject of a court-martial, but the subject of an administrative discharge, the Article 3 l(d) remedy
does not apply."). Here, Plaintiff was not subject to a trial by court martial nor has he alleged that
he made any incriminating statements. Accordingly, Article 31 is not applicable.
Second, Article 32 of the UCMJ pertains to a preliminary hearing, which is held to
determine ifthere is probable cause and jurisdiction for a general court martial. 10 U.S.C. § 832(a).
The DRB, which is governed by OTCN Instruction 1610, was not a court-martial. Accordingly,
this provision is not applicable.
Having found that the Navy was not required to afford Plaintiff the protections provided in
MILPERSMAN 1910-233, 1910-404, 1910-408, 1910-504,1910-508 or UCMJ Articles 31or32,
the Court concludes that the Navy did not act arbitrarily, capriciously, or contrary to law in
separating the Plaintiff. Accordingly, Defendants are entitled to judgment as a matter oflaw.
For the reasons set forth above, the Court grants Defendants' Motion for Reconsideration,
vacates its June 15, 2015 Order denying Defendants' Motion for Summary Judgment, and grants
Defendants' Motion for Summary Judgment.
UNITED STATES DISTRICT JUDGE
Dated: January 28, 2016
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