United States Court of Federal Claims

UNITED STATES COURT OF FEDERAL CLAIMS

PIETRO SCARSELLI )

) No.: 1:17-cv-00507

Plaintiff, )

) (Judge Firestone)

v. )

)

THE UNITED STATES OF AMERICA, )

)

Defendant. )

PLAINTIFF’S MOTION FOR JUDGMENT

ON THE ADMINISTRATIVE RECORD

Herein, plaintiff moves this Court for Judgment on the Administrative Record. As set forth herein, the decision of the Board for Correction of Naval Records denying plaintiff relief for his discharge under circumstances where the Marine Corps denied plaintiff substantial rights, failed to provide the plaintiff with the benefit of the bargain struck in order to obtain his surrender of Constitutional rights and affirmative use of the fruits of that denial to involuntarily discharge plaintiff constituted arbitrary and capricious decision-making and its decision failed to comply with law and regulation governing military administrative due process and discharges rendering plaintiff’s discharge in violation of law and regulation denying plaintiff military pay to which he otherwise would have been entitled under the provisions of the Military Pay Act, 37 U.S.C. § 204(a).

Facts Relevant to All Counts

Plaintiff entered active duty in the United States Marine Corps as an enlisted member, AR 1422, and was selected for the Enlisted Commissioning Program and Commissioned as a Marine Corps Officer on April 17, 1995. AR 1575, AR 1562. Through April 2009, plaintiff had a very successful Marine Corps career, AR 1562, and had been selected for promotion to Lieutenant Colonel on the FY 2011 Active Duty Lieutenant Colonel Selection Board. AR 0913, AR 1186, AR 1388. By law, officer promotions require that the selected officer be “best qualified” among those officers determined by the promotion selection board to be “fully qualified” for promotion. 10 U.S.C. § 617(a).

In April 2009, plaintiff was serving as the Provost Marshal at Marine Corps Air Ground Combat Center (“MCAGCC”), Twenty-nine Palms, California. AR 1518.

On 11 May 09, the Chief of Staff, Marine Corps Air Ground Task Force Training Command, MCAGCC, appointed Mr. David N. Gill, the Command Inspector General, to conduct an IG investigation into allegations of misconduct by plaintiff. AR 0141 (GE-3).

The Command Inspector General (IG) investigation was not conducted in accordance with the Navy Marine Corps Assistance and Investigation Manual. Rather than obtaining narrative statements from witnesses, as is called for by the Assistance and Investigation Manual, the Investigating Officer used a “cookie cutter” questionnaire and made notes of his interpretation of the witnesses’ answers. Id.

On 2 November 2009, as a result of the findings of the IG investigation, court-martial charges were preferred against plaintiff for alleged violations of Article 81, UCMJ (Conspiracy) , Article 90, UCMJ (Willfully Disobeying a Superior Commissioned Officer), Article 92 (8 Specifications) (Orders Violation and Negligent Dereliction of Duty), Article 93, UCMJ (3 Specifications) (Cruelty and Maltreatment), Article 107, UCMJ (3 Specifications of False Official Statement), and Article 134, UCMJ (6 Specifications) (Fraternization, Obstructing Justice, and Solicit ing Another to Commit an Offense). AR 0094-0098.

The Commanding General, Marine Corps Air Ground Task Force Training Command, referred the charges to trial by General Court-Martial on December 18, 2009.[1] AR 0095. Following referral of charges, plaintiff’s defense counsel negotiated a pre-trial agreement which required plaintiff to plead guilty to specified charges at Commanding General’s non-judicial punishment (“NJP”) in return for dismissal of all other charges “with prejudice.” AR 0100-0104.

The Agreement subsequently was supplemented by additional specially negotiated terms requiring that plaintiff agree to expeditiously resolve the case and not require the Government to produce witnesses not located at Twenty-nine Palms at Government expense in the event a Board of Inquiry was directed. AR 0106-0107.

On 2 December 2010, the Commanding General dismissed the charges without prejudice in anticipation of the upcoming NJP hearing. AR 0109.

On 6 December 2010, plaintiff was called before the Commanding General for disposition of the specific charges for which he was provided notice in the pre-trial agreement. AR 0111-0115. Those Charges and Specifications were read aloud into the record of the NJP. The specifications included a violation of Article 90 (violation of a lawful order from a superior commissioned officer); Article 92 (four specifications alleging negligent dereliction of duty) and Article 134 (fraternization with a Master Gunnery Sergeant who rented a room from plaintiff) and Article 133 (Conduct Unbecoming an Officer). Id.

In accordance with the pre-trial agreement, plaintiff agreed to accept NJP and pleaded guilty to the specific allegations before the Commanding General for disposition. Prior to deciding plaintiff’s case, the Commanding General heard testimony from two of plaintiff’s superior Marine officers, Lieutenant Colonel DB and Colonel WG, who testified to plaintiff’s superior performance of duty while assigned to the Advisor Training Group at Twenty-nine Palms. AR 0111-0125. The Commanding General found plaintiff Guilty and imposed non-judicial punishment in the form of a Punitive Letter of Reprimand with no additional punishment. The Commanding General never dismissed the court-martial charges with prejudice as required by the pre-trial agreement. AR 0124.

Plaintiff did not appeal the punishment, however, he exercised his right to provide a statement to be filed in his Official Military Personnel File (“OMPF”) concerning the NJP. Plaintiff also exercised his right to submit a statement for filing in his OMPF with his Punitive Letter of Reprimand. AR 0127-0129; AR 0131.

In both submissions, plaintiff accepted responsibility and accountability for his conduct and pledged to continue to provide faithful service to the Marine Corps. AR 0133-0134; AR 0136.

On 18 January 2011, the Commanding General, Marine Corps Combat Development Command (“MCCDC”) directed that plaintiff be required to show cause for retention in the Marine Corps. AR 0138. The Commanding General, MCCDC directed that the Commanding General, Marine Corps Air-Ground Training Center convene a Board of Inquiry for substandard performance of duties and misconduct, “as evidenced by the commission of a military or civilian offense which could be punished by confinement of 6 months or more.” AR 0138. The sole factual reference for such offenses consisted of the Report of NJP, which addressed only allegations to which plaintiff pleaded guilty in accordance with the pre-trial agreement. AR 0138-0139.

All of the members who sat as members of the BOI were subordinate to and worked for the putative Show Cause Authority and were flown TDY from the East Coast to the BOI rather than selected from among potential members in geographically local commands. Petitioner timely objected to the improper Show Cause Authority, which denied Petitioner members assigned to the West Coast commands and substituted officers who worked under the direct command of MCCDC at Quantico. AR 1497-98.

Plaintiff’s Board of Inquiry was conducted on 31 March 2011—1 April 2011. AR 1191. At plaintiff’s Board of Inquiry, the counsel for the Government submitted as evidence the Charge Sheet containing all charges originally preferred against plaintiff, including those that the court-martial convening authority had previously agreed to dismiss with prejudice, but which he failed to dismiss with prejudice. AR 0141; see also Report of Board of Inquiry AR 1191-1196 and BOI Findings Worksheet, AR 1197-1201.

In addition, the counsel for the Government submitted evidence of statements taken from plaintiff in violation of Article 31, UCMJ, 10 U.S.C. § 831, for the consideration of the Board of Inquiry over defense objection and those statements were accepted by the BOI and were used to support misconduct findings by the BOI. AR 1494.

The provisions of Article 31(b) apply at a BOI and no statement taken in violation of Article 31 should have been admitted against plaintiff. Plaintiff’s counsel timely objected to the BOI’s consideration of the statements, was overruled and raised the issue in his May 31, 2011 Letter of Deficiency. AR 1494.

Over defense objection, the BOI considered the inaccurate document checklists prepared by the IG rather than hearing from the actual witnesses first hand, denying plaintiff the opportunity to cross-examine the witnesses against him. Several witnesses whose “checklists” were submitted to the BOI provided statements that the information contained in their “checklists” was incorrect, and these statements were included in plaintiff’s Letter of Deficiency. AR 1493-1502.

Counsel for the Government also offered testimony concerning a fitness report that had been ordered expunged from plaintiff’s OMPF by order of the Commandant of the Marine Corps. AR 1318.

The Board of Inquiry recommended plaintiff be separated from the Marine Corps and that plaintiff receive a General (Under Honorable) characterization of discharge. AR 1196, 1201. On 16 May 2011, counsel for the respondent submitted a letter noting, inter alia, material deficiencies in the transcription of the BOI.

On 31 May 2011, plaintiff’s counsel submitted a rebuttal to the findings and recommendations of the report of BOI in which he argued the legal, administrative, and factual errors in the proceedings. AR 0144-0274 (including enclosures).

Counsel requested that plaintiff be retained and requested that plaintiff be permitted to personally appear before the Deputy Commandant (Manpower Reserve Affairs) to plead his case for retention on active duty. Id.

Plaintiff personally submitted a Supplement to the Letter of Deficiency dated 12 Aug 2011, which provided additional information to the Assistant Secretary of the Navy, AR 0242-0274, as well as a letter directed to the Assistant Secretary of the Navy, which appears from the Administrative Record to have never been provided to either the Assistant Secretary of the Navy of the Assistant Secretary’s Special Assistant for Military Law (“SAML”) AR 1526-28. The Assistant Secretary of the Navy (Manpower & Reserve Affairs) received the recommendation of the Deputy Commandant (M & RA) and personally took final action ordering plaintiff’s administrative discharge with a characterization of General (Under Honorable Conditions) with 18 years, 3 months and 5 days of active duty effective on 22 April 2012. Id. see also AR 1562.

The Tucker Act provides the Court of Federal Claims with jurisdiction to hear “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2012). While the Tucker Act waives the sovereign immunity of the United States to allow a suit for money damages, United States v. Mitchell, 463 U.S. 206, 212 (1983), it does not confer any substantive rights on a plaintiff. United States v. Testan, 424 U.S. 392, 398 (1976). Therefore, in order to invoke the court’s Tucker Act jurisdiction must identify an independent source of a substantive right to money damages from the United States arising out of a contract, statute, regulation, or constitutional provision. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008).

JURISDICTION AND STANDARD OF REVIEW

The Military Pay Act, 37 U.S.C. § 204, “confers on an officer the right to the pay of the rank he was appointed to up until he is properly separated from the service.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997) (quoting Sanders v. United States, 594 F.2d 804, 810 (Ct. Cl. 1979) (en banc)). Accordingly, the Military Pay Act “provides for suit in [the Court of Federal Claims] when the military, in violation of the Constitution, a statute, or a regulation, has denied military pay.” Antonellis v. United States, 723 F.3d 1328, 1331 (Fed. Cir. 2013) (quoting Dysart v. United States, 369 F.3d 1303, 1315 (Fed. Cir. 2004)). Therefore, this Court has jurisdiction over Mr. Scarselli’s claim for back pay under the Military Pay Act.

II. Standard of Review of Military Correction Board Decisions

The scope of judicial review of military correction board decisions is “limited to determining whether a decision of the Correction Board is arbitrary, capricious, unsupported by substantial evidence, or contrary to applicable statutes and regulations.” Melendez Camilo v. United States, 642 F.3d 1040, 1044 (Fed. Cir. 2011) (quoting Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983)). The court’s evaluation “does not require a reweighing of the evidence, but a determination whether the conclusion being reviewed is supported by substantial evidence.” Heisig, 719 F.2d at 1157

However, it is now well-established in the law and by regulation that the military service records correction boards “have a duty to determine whether there has been an error or injustice, and, if there has been, to grant thorough and fitting relief.” Dodson v. United States, 988 F.2d 1199, 1204 (citing Sanders v. United States, 594 F.2d 804, 812-13, 817, 219 Ct.Cl. 285 (1979) (en banc) and Yee v. United States, 512 F.2d 1383, 1387-88, 206 Ct. Cl. 388 (1975)); see also Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004) (“Indeed, ‘when a correction board fails to correct an injustice clearly presented in the record before it, it is acting in violation of its mandate.’”) (citing Yee, supra); see also Caddington v. United States, 178 F. Supp. 604, 607, 147 Ct. Cl. 629 (Ct. Cl. 1959) ("We feel that the Secretary and his boards have an abiding moral sanction to determine, insofar as possible, the true nature of an[16] alleged injustice and to take steps to grant thorough and fitting relief.")). Service record correction board decisions may be reviewed for “failure to correct plain legal error committed by the military, Dodson, 988 F.2d at 1204, and the service record correction boards’ decisions may be overruled by a reviewing court where a military member is able to demonstrate that the Board acted arbitrarily, capriciously, contrary to law or regulation, or that the Board decision is unsupported by substantial evidence. Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); see also Chappell v. Wallace, 462 U.S. 296, 303 (1983); Porter v. United States, 163 F3d 1304, 1312 (Fed. Cir. 1998). Against these standards, the BCNR decision denying plaintiff any relief was arbitrary, capricious and contrary to law and regulation and plaintiff is entitled to judgment on the administrative record.

ARGUMENT ON PLAINTIFF’S SUBSTANTIVE CLAIMS

I.  The Board that Considered Plaintiff’s Case Was Not Composed of “Civilians” as Required by 10 U.S.C. § 1552(a).

The membership of the Board for Corrections of Naval Records panel that considered plaintiff’s case was composed of three individuals: Daniel M. Fitzgerald, Patrick A. Hodges, and Thomas J. Lundstrom. AR 0019. [2] The Service Record Correction Board enabling statute provides: