Carlino v. United States ( 2022 )

In the United States Court of Federal Claims
No. 21-1313C
(Filed: February 7, 2022)
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DWAINE CARLINO, *
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Plaintiff, * Motion and Cross-Motion for Judgment
* on the Administrative Record, Military Pay,
v. * Witness Access
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THE UNITED STATES, *
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Defendant. *
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OPINION AND ORDER
DAMICH, Senior Judge
Before the Court are Plaintiff Dwaine Carlino’s (“Carlino’s”) Motion for Judgment on
the Administrative Record (“AR”) (ECF No. 10) and Defendant United States Government’s
(“Government’s”) Cross-Motion for Judgment on the Administrative Record (ECF No. 11)
regarding Carlino’s alleged unlawful discharge from the Marine Corps and entitlement to
benefits under the Military Pay Act, 37 U.S.C. § 204(a)(1).
In his Complaint, filed on May 4, 2021, Carlino alleges that he was wrongfully
discharged from active duty with an Other Than Honorable (“OTH”) characterization of service,
and that he was denied his due process rights during his administrative separation hearing before
a Board of Inquiry (“BOI”) and subsequent separation processing. First, Carlino argues that his
due process rights were infringed by the BOI’s recognition of a purported “ambush” witness
testifying without Carlino having an opportunity for a pre-hearing “talk” as guaranteed under
Navy BOI regulations. See ECF No. 10 at 18. Second, Carlino argues that the Navy violated his
due process rights by allegedly breaking its own regulations and separating him (A) without a
properly thorough medical evaluation and (B) while his Disability Evaluation Screening (“DES”)
was still pending. See, e.g., ECF No. 10 at 13, 20-22. Carlino seeks relief which entails (1) that
judgment be entered against the Government for monetary relief in the form of compensatory
damages including back pay and military benefits, (2) that his military records be amended so as
not to reflect a Navy decision to discharge Carlino on August 28, 2020 (but rather a continuation
of service without interruption), (3) that his legal fees and costs in this case be reimbursed, and
(4) that he receive other necessary or appropriate relief such as consideration for disability
retirement. See ECF No. 1.
1
For the reasons set forth below, the Court GRANTS Defendant’s Cross-Motion for
Judgment on the Administrative Record (“AR”) and DENIES Plaintiff’s Motion for the same.
I. Facts/Background
A. The Command Investigation Against Carlino and the BOI Proceeding
Captain Dwaine Carlino served honorably in the Marine Corps for 16 years with an
unblemished record before this case – he deployed four times, twice to Afghanistan and twice to
Iraq. ECF No. 10 at 4. Carlino originally enlisted in the Marines in 2004, became an officer in
2014, and was promoted several times so as to reach his current rank. ECF No. 10 at 4.
In May 2019, Captain Carlino became involved with the civilian wife (“wife”) of another
Marine (“husband”), a Staff Sergeant. The husband then formally reported the affair to the
Marine Corps. AR 107, 112. The response to the husband’s report entailed (A) several Military
Protective Orders (“MPO’s”) barring any contact between Carlino and the wife, or between
Carlino and the husband, and (B) a Command Investigation. 1 See AR 86-88, 263. However,
despite the MPO’s and the Command Investigation, Carlino and the wife continued to spend
time together. AR 64-65, 122-24, 131.
Carlino consented to an interview for the Command Investigation, in which he denied the
affair. See AR 111-18, 137, 140, 272-76. But the investigator found that the affair was highly
likely, and that Carlino had violated the Uniformed Code of Military Justice (“UCMJ”). See e.g.,
AR 275. On June 3, the investigator recommended that a Board of Inquiry (“BOI”) be convened
– the recommendation was endorsed. AR 271, 276. On June 13, Carlino was offered a Non-
Judicial Punishment (“NJP”), which would have placed a ceiling on the severity of the
punishment he might receive and pre-empt a Court-Martial or BOI proceeding. AR 264; see also
10 U.S.C. § 815 (Article 15, UCMJ). However, on June 18, Carlino rejected the NJP and
elected for a full proceeding. AR 265.
On November 13, 2019, Carlino was notified that a BOI was being convened to make a
recommendation about his status in the Marines. AR 245. Specifically, the BOI reviewed the
following charges against Carlino:
a. Failure to demonstrate qualities of leadership required of an officer of
your grade;
b. Failure to properly discharge duties expected of an officer of your grade
and experience;
c. Commission of a military or civilian offense which could be punished by
confinement of six months or more
1
The MPO issued to Carlino forbade him from “speaking with [the wife] and coming
within 50 feet of her….” AR 263; see also AR 218-19.
2
AR 245. The BOI was directed to review these allegations with reference to five articles of the
UCMJ:
(1) UCMJ Article 90: willfully disobeying superior commissioned officer;
(2) UCMJ Article 92: failure to obey order or regulation;
(3) UCMJ Article 107: false official statement;
(4) UCMJ Article 133: conduct unbecoming an officer or a gentleman; and
(5) UCMJ Article 134: extramarital sexual contact.
Id.During the Command Investigation and lead-up to the BOI, the wife was unwilling to
participate with the proceedings against Carlino, including an unwillingness to cooperate with
the Navy’s investigation and prosecution. AR 10, 70, 247. However, the night before the BOI,
Carlino’s counsel was notified at 7PM that the wife had decided to testify the next morning at the
BOI scheduled for 8:25AM. See ECF No. 10 at 8 (citing AR 10). The next morning, Carlino’s
counsel was allowed to briefly speak with the wife on the phone. Id. Also, the wife was only
willing to speak with Carlino’s attorney with her husband (also a witness) present. AR 10. After
the call, Carlino’s attorney did not request a continuance to halt the BOI proceedings.
Later that morning, the wife testified for 24 minutes, describing her relationship
(including her sexual relationship) with Carlino. See AR 56-75. His counsel did not raise
objections to her testifying, or to any of her testimony. Id. Asked if she was “conflicted” about
testifying, the wife replied, “yes.” AR 57. She also stated that she was “struggling with a sense
of guilt.” AR 57. In the husband’s testimony, when he was asked by Carlino’s counsel if he had
“encouraged his wife to testify,” the husband answered, “of course.” AR 111. He also stated,
“She’s the key to all of this. She has to take responsibility for what she has done.” AR 94. The
husband also explained that in the aftermath of the wife’s relations with Carlino, he and his wife
had been “very, very, very close to the brink of divorce.” AR 105.
Witness testimony before the BOI, including Carlino’s, widely substantiated the UCMJ
charges. Concerning UCMJ Article 90 (willfully disobeying superior commissioned officer) and
UCMJ Article 92 (failure to obey an order or regulation), numerous witnesses – including
Carlino – testified that Carlino and the wife had continued to spend time together after the MPO
barring contact, violating its terms. See AR 64-65, 122-24, 131. Sergeant Major William
Pinkerton, who had been briefed on the Command Investigation, testified about how he had
witnessed Carlino speaking casually with the wife at the gym (her place of employment) –
Pinkerton had then reminded Carlino that his contact with the wife violated the MPO. See AR
122-24. Madelyn Rogey, a co-worker of the wife, also testified that Carlino and the wife had
continued spending time together despite the MPO. See AR 129-31. Carlino admitted on the
stand that as a Marine officer subject to an MPO, he shouldered the burden of ceasing
communications with the wife even though she sought to stay in contact. AR 213-14. Pressed
about breaking the terms of the MPO, Carlino stated that he had not carefully read its text. AR
214. This led to an exchange in which the BOI panel asked Carlino, “As a Marine officer, you
sign documents that you don’t understand?” AR 219. Carlino replied, “Yes Sir.” Id.3
With respect to UCMJ 107 (false official statement), UCMJ 133 (conduct unbecoming an
officer or a gentleman) and UCMJ 134 (extramarital sexual contact), the officer leading the
Command Investigation testified that Carlino had “lied” during their interview. See AR 111-
118; see also 271-76. The officer also testified about the extent of the evidence corroborating
the affair, and the wife directly testified that her relationship with Carlino had been sexual. Id.;
see also AR 56-75.
The BOI found unanimously that Carlino violated UCMJ Articles 90, 92, 107, 133, and
134, and formally recommended Carlino’s separation from the Marine Corps with an OTH
discharge. See AR 237-39.
B. Captain Carlino’s Medical History
Overlapping these events is Captain Carlino’s medical history, corresponding to his four
combat deployments and 2007 “endorse[ment]” 2 of a Traumatic Brain Injury (“TBI”). See AR
19. In August 2019 – after rejecting the NJP but before the BOI proceeding in January 2020 –
Captain Carlino sought medical evaluation for TBI and Post-Traumatic Stress Disorder
(“PTSD”). AR 18-19, 259-60. On August 9, 2019, a provider ruled out PTSD, but was unable
to make a determination about whether Carlino had suffered a TBI while serving in Iraq. AR 18.
The result of this TBI screening was inconclusive. AR 19. On August 27, 2019, the
Government submitted a report of Carlino’s alleged misconduct to the Marine Corps
Commandant, and that Carlino had not been diagnosed with TBI or PTSD. AR 258. Then, on
March 27, 2020, after the BOI decision in January 2020, a psychologist at Camp Pendleton,
Lieutenant Kirk, diagnosed Carlino with PTSD and referred him to DOD’s Disability Evaluation
System (“DES”). AR 20. However, Lieutenant Kirk also concluded in her report that Carlino
was responsible for his actions and that PTSD had not been a factor in his conduct with respect
to the affair. AR 20.
C. Post-BOI, Post-PTSD Diagnosis Procedural History
On March 30, 2020, after the PTSD diagnosis on March 27, Carlino’s counsel contested
the BOI decision by submitting a letter of deficiency, requesting that he not be separated. AR 9-
11. Carlino also submitted a personal statement describing his PTSD diagnosis and requesting
that he not be separated from the Marines. AR 12-14. On April 17, 2020, the Commanding
General of the Marine Air Ground Task Force Training Command reviewed Carlino’s claims of
legal deficiency in the BOI proceedings, found them without merit, and endorsed the BOI’s
decision. AR 7-8.
On July 23, 2020, the Assistant Secretary of the Navy directed Carlino’s separation, and
finally, on August 28, 2020, Carlino was separated from the Marine Corps with an OTH
2
As reflected in the AR, the word “endorse” is used as a proper term to connote Carlino’s
2007 representation that he had suffered a TBI. See AR 19.
4
characterization of service. See, e.g., ECF No. 10 at 9. On May 4, 2021, Carlino filed a
Complaint with this Court. ECF No. 1.
II. Standard of Review
Where the parties have filed cross-motions for judgment on the administrative record, as
here, Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”) provides a
procedure for parties to seek the equivalent of an expedited trial on a “paper record, allowing
fact-finding by the trial court.” Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir.
2005). Unlike summary judgment standards, genuine issues of material fact do not preclude a
judgment on the administrative record. See id. at 1355-56. Questions of fact are resolved by
reference to the administrative record. Id. at 1356.
In reviewing the determinations of a military corrections board, a plaintiff must
demonstrate “by cogent and clearly convincing evidence,” Wronke v. Marsh, 787 F.2d 1569,
1576 (Fed. Cir. 1986), that the military board’s decision was “arbitrary, capricious, unsupported
by substantial evidence, or contrary to law.” Metz v. United States, 466 F.3d 991, 998 (Fed. Cir.
2006). It is well settled that “responsibility for determining who is fit or unfit to serve in the
armed services is not a judicial province; and that courts cannot substitute their judgment for that
of the military departments when reasonable minds could reach differing conclusions on the
same evidence.” Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983) (citations
omitted). Moreover, “military administrators are presumed to act lawfully and in good faith like
other public officers, and the military is entitled to substantial deference in the governance of its
affairs.” Dodson v. United States, 988 F.2d 1199, 1204 (Fed. Cir. 1993).
A court may set aside an agency’s decision if the agency “‘entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or the decision is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.’” Ala. Aircraft Indus., Inc. v. United
States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). However, “[w]hen substantial evidence supports
the board’s action, and when that action is reasonable in light of all the evidence presented, the
court will not disturb the result.” Pope v. United States, 16 Cl. Ct. 637, 641 (1989). The court’s
review “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.
III. Discussion
A. Introduction
Carlino makes two sets of due process arguments challenging the BOI’s decision. First,
Carlino argues that he was prejudiced by the BOI’s allowance of an “ambush” witness. See ECF
No. 10 at 18. Carlino specifically argues that his due process rights were violated because of (1)
the relatively late notice about the wife’s decision to testify before the BOI and (2) the short
5
duration of his lawyer’s preparatory phone exchange with the wife, and the fact that the husband
(also scheduled to testify) was present for the call.
Second, Carlino also separately argues that the Navy violated his due process rights by
purportedly breaking its own rules and separating him (1) without a properly thorough medical
evaluation and (2) while his Disability Evaluation Screening (“DES”) was still pending. See,
e.g., ECF No. 10 at 13.
Under 10 U.S.C. §1181, the Navy establishes its own procedures for BOI proceedings.
Thus, this Court examines Carlino’s arguments based on whether the BOI’s application of the
Navy’s rules was “arbitrary, capricious, unsupported by substantial evidence, or contrary to law.”
Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006). In the case of Carlino’s first argument
– due process with respect to pretrial witness notice and availability – the governing Navy
regulation is SECNAV Instruction 1920.6D. Carlino’s second due process argument –
separation despite allegedly incomplete medical status and disability screening – turns on
Department of Defense Instruction 1332.18 (“DODI 1332.18”) and Marine Corps Order 5800.16
(“MCO 5800.16”).
B. Pretrial Witness Notice and Availability
Carlino alleges that the circumstances of the wife’s testimony before the BOI rendered
her an “ambush” witness in violation of his due process rights, based on (1) the relatively late
notice that the wife would testify and (2) Carlino’s counsel’s purported inability to hold an
adequately preparatory “talk” with the wife before the BOI hearing.
Concerning BOI due process rights in general, SECNAV 1920.6D – US Navy BOI
protocol – provides:
The purpose of a BOI is to give officers a full and impartial hearing at which they
may respond to and rebut the allegations which form the basis for separation for
cause or retirement in the current grade or a lesser grade and present matters
favorable to their case on the issues of separation and, if applicable,
characterization of service.
AR 678; SECNAV 1920.6D (July 24, 2019). Specifically concerning due process rights with
respect to witnesses, the framework further states:
[Respondents have the right to be provided with] [t]he names of All Witnesses in
Advance of BOI Proceedings. Failure to provide any information or the name of a
witness cannot preclude the board from considering the information or hearing the
witness, provided the respondent has the opportunity to examine any statement,
or talk with any witness presented, before consideration by the Board.
AR 682; see also AR 247 (emphasis added).
6
It is factually undisputed that the wife was refusing to cooperate or testify, and then
reversed course the day before the hearing, with Carlino being informed at 7PM, that this took
place under the influence of her husband’s “encouragement,” and that Carlino’s counsel was
only finally able to speak with the wife in the presence of the husband, for a short period of time
on the morning of the BOI proceeding. See AR 10, 57, 70, 94, 111.
The Government argues that the notice to Carlino about the wife’s decision to testify –
the day beforehand – complied with SECNAV 1920.6D because the rule requires such
notification “in [a]dvance of BOI proceedings.” The Government observes that even if “in
advance” is read as generously as possible to Carlino, so that notification the day before the
proceeding might raise a problem, this was in fact the point at which the prosecution, too,
received notice of the wife’s decision to testify. ECF No. 11 at 8. In other words, both sides
enjoyed essentially equal durational access to the witness. Id. The Government also notes that
because military boards have no subpoena power over civilian witnesses (see Milas v United
States, 42 Fed. Cl. 704, 717-18 (1999)), they had no legal ability to induce the wife’s testimony
earlier. See ECF No. 11 at 8.
With respect to the circumstances of Carlino’s lawyer’s pretrial witness interview of the
wife, the Government argues that SECNAV 1920.6D was followed because Carlino’s lawyer
did, in fact, “talk” with the witness before the BOI proceeding. See ECF No. 11 at 9.
Concerning the timing of the notice to Carlino about the wife’s testimony, the Court
agrees with the Government that Carlino’s allegation of a due process rights violation is not
supported by the text of SECNAV 1920.6D. The rule requires that “[t]he names of [a]ll
[w]itnesses [should be provided to a respondent] in [a]dvance of BOI [p]roceedings,” but that
this also “cannot preclude” the BOI from hearing a witness as long as the respondent has “the
opportunity to… talk with any witness presented before consideration by the Board.” AR 682
(SECNAV 1920.6D). Carlino was informed of the wife’s decision to testify the evening before
the BOI hearing – i.e., “in advance” of the hearing. Carlino presents no caselaw suggesting or
demonstrating that notice on the evening before the BOI proceeding runs afoul of “in advance.”
The Government had no subpoena power over the wife and did not receive notice of the wife’s
testimony materially in advance of the notice to Carlino. Ultimately, the notice to Carlino that
the wife was testifying was relatively short, but it was certainly “in advance,” and therefore does
not violate the witness notice requirement of SECNAV 1920.6D. 3
Concerning Carlino’s assertion that his due process rights under SECNAV 1920.6D were
violated because he and his counsel were not able to hold an adequately extensive preparatory
“talk” with the wife, this argument draws scrutiny to construction of the word “talk.” SECNAV
1920.6D is silent about who may or may not be present during the pre-trial witness “talk.”
Neither party offers caselaw defining “talk” with respect to SECNAV 1920.6D, so as to establish
the extent of the right of BOI respondents to “talk” to witnesses. Nor has the Court found any
such caselaw relating to the definition of “talk.” The Court, therefore, looks to dictionary
3
Logic would also dictate that the wife would be a possible witness because her
involvement in the events giving rise to the case.
7
definitions. Webster’s Dictionary 4 ascribes “talk” numerous definitions, one of which aligns
with a setting such as pre-hearing proceedings: “a formal discussion, negotiation, or exchange of
views – often used in [plain language].” Merriam-Webster’s Collegiate Dictionary (10th ed.
2001) at 1199.
The SECNAV 1920.6D rule itself expressly states that its “purpose” includes “giv[ing]
officers a full and impartial hearing at which they may respond to and rebut … allegations…”
See AR 678. In other words, this rule is designed to enable respondents to prepare for BOI
proceedings, including preparatory exchanges with testifying witnesses. Therefore, on the
surface, Carlino’s argument – that his lawyer’s exchange with the wife on the morning of the
BOI misaligns with “talk” as guaranteed by SECNAV 1920.6 – might appear to have some
merit.
However, as the Government suggests, Carlino’s attorney could very well have asked on
the record for a continuance or could have objected to her testimony. The record is clear that she
did neither. See ECF No. 11 at 8. Rather, it appears to the Court that Carlino’s counsel chose
instead to emphasize through cross-examination that the wife was “encouraged” to testify by her
husband. 5 AR 111.
This Court upholds the BOI’s decision because (1) Carlino’s due process arguments
concerning the wife’s testimony do not credibly impugn the BOI proceedings as arbitrary and
capricious, and (2) the BOI’s decision was supported by substantial evidence even without the
wife’s testimony. The standard of review in this case is baseline “arbitrary and capricious”
scrutiny, with the further specification that this Court’s assessment “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. “Responsibility for determining
who is fit or unfit to serve in the armed services is not a judicial province; and . . . courts cannot
substitute their judgment for that of the military departments when reasonable minds could reach
differing conclusions on the same evidence.” Id. at 1156. Here, the record shows that the BOI’s
decision was supported by substantial evidence, and that the BOI’s substantiation of Carlino’s
alleged UCMJ violations did not hinge on the wife’s testimony 6: First, the BOI charged Carlino
4
“Talk” is not defined in Black’s Law Dictionary.
5
In closing arguments, Carlino’s counsel suggested that the wife’s husband “coerced”
her into testifying. See AR 206.
6
The BOI’s substantiation of the allegations against Carlino likewise did not rest on the
husband’s testimony. Carlino’s argument includes an allegation that the husband’s presence at
the wife’s pre-trial “talk” with Carlino’s lawyer prejudiced the husband’s BOI testimony (since
he had foreknowledge of Carlino’s BOI questions for the wife). See ECF No. 10 at 18-19. The
Government argues that this argument was not raised in Carlino’s post-BOI filings and therefore
cannot be raised before this Court. See ECF No. 11 at 10, note 3. This Court holds that the issue
has been preserved because Carlino’s post-BOI filings raised concerns about the husband’s
presence when the wife talked with Carlino’s lawyer (see AR 10). However, the possible
contamination of the husband’s testimony before the BOI is moot because the Administrative
Record indicates that the BOI’s allegations against Carlino were substantiated – supported by
8
with violating UCMJ Article 90 (willfully disobeying superior commissioned officer) and UCMJ
Article 92 (failure to obey an order or regulation). Carlino himself and also several other
witnesses aside from the wife – Pinkerton and Rogey – testified that Carlino violated the MPO,
which was issued by a superior officer. See AR 122-24, 129-31, 184, 263.
Second, the BOI charged Carlino with violating UCMJ 107 (false official statement).
The evidence and testimony considered by the BOI indicated that Carlino made false official
statements – this was emphasized by the testimony of the officer who led the Command
Investigation (independent of the wife’s testimony). See AR 111-18; see also AR 271-76.
Third and finally, in addition, the BOI charged Carlino with violating UCMJ Article 133
(conduct unbecoming an officer or a gentleman) and 134 (extramarital sexual contact). While it
is true that the wife’s testimony did inculpate Carlino for the affair, the evidence and testimony
in the case (again, reflecting the Command Investigation) otherwise strongly indicated that the
affair had in fact transpired. Id. Also, the BOI was well-aware of the possible “coercion” of the
wife. 7
The Court holds that while relatively short, the notice to Carlino that the wife would
testify on the evening before the BOI hearing did not violate due process because it was indeed
“in advance” of the hearing in compliance with SECNAV 1920.6D. The Court further holds that
because the allegations against Carlino were supported by substantial evidence independent of
the wife’s testimony (including by Carlino’s testimony), the BOI’s decision cannot be disturbed
by the questionable extent of Carlino’s counsel’s “talk” with the wife before the BOI proceeding.
This also weighs Carlino’s lawyer’s decision not to request a continuance or object to the wife
testifying, which would have enabled a BOI preliminary ruling on whether further “talk”
between Carlino and the wife was necessary or appropriate.
C. Carlino’s Due Process Rights and His Medical Status
Carlino presents two arguments that his separation from the military violated his due
process rights because of his medical status at the time. First, Carlino argues that given his
medical status – including a diagnosis of PTSD – military regulations required further medical
evaluation before he could be separated. Second, Carlino argues that he should not have been
separated because he was awaiting DOD Disability Evaluation System (“DES”) screening at the
time.
i. The Thoroughness of Carlino’s Medical Evaluation
substantial evidence (the scope of this Court’s review) – independently of the testimony of both
the wife and her husband.
7
The BOI heard (A) testimony confirming the wife’s “conflicted” feelings about
testifying, (B) the husband’s confirmation that he pressured his wife to testify, (C) Carlino’s
allegation that the wife’s testimony was colored by ulterior considerations about impending or
anticipated divorce and child custody proceedings, and (D) the allegation that the wife was being
“coerced” by her husband. See AR 10, 56-75, 94, 105, 111, 197-98, 206.
9
Concerning the thoroughness of Carlino’s medical evaluation relative to his separation,
Military Corps Order 5800.15 (“MCO 5800.15”) requires:
… an officer shall receive a medical evaluation to assess whether the effects of PTSD
or TBI constitute matters in extenuation that relate to the basis for administrative
separation if the officer (a) has been previously diagnosed with PTSD or TBI by an
appropriately privileged medical provider as described below, or reasonably alleges that
PTSD or TBI played a role in the officer’s misconduct or substandard performance; (b)
was deployed overseas to a contingency operation or was sexually assaulted during the
24 months before the initiation of separation processing, or (c) is being recommended for
separation with an Other Than Honorable characterization of service.
MCO 5800.16, v.15, § 010302 (see also ECF No.10 – Pl. Appx. at 67) (emphasis added). The
MCO further instructs:
The medical provider who conducts a PTSD or TBI evaluation must specifically
comment on the presence or absence of these conditions and, if present, the extent
to which they affected the officer’s judgment and may have been a contributing
factor in the basis for separation.
Id. In other words, for separation proceedings, an officer must receive a medical evaluation to
assess PTSD and TBI status, and whether these were extenuating circumstances in the conduct
for which the officer may be separated. The medical evaluation must include a finding about
whether such conditions, if present, impacted the officer’s judgment or conduct. Finally, in
addition, the MCO also states:
For those cases in which an appropriately privileged medical provider
determined that PTSD or TBI may have been a contributing factor to one or
more of the bases for separation, the [convening authority’s endorsement] shall, in
light of that identified possible PTSD or TBI contributing factor, explain the
reasons for the recommended separation and characterization of service.
(emphasis added)
Id.
In this case, Carlino was medically evaluated at some length. The evaluations in August
2019, post-dating the events giving rise to these BOI proceedings, ruled out PTSD and were
inconclusive insofar as TBI. AR 18-19. In March 2020, following the BOI proceedings and
decision in January 2020, Lieutenant Kirk diagnosed Carlino with PTSD, but also found that
Carlino had been responsible for his actions – PTSD had not been a factor with respect to the
events underlying the Command Investigation and BOI proceeding. AR 20. MCO 5800.16 v.15
triggers a further showing required for recommended separation and characterization of service
“for those cases in which an appropriately privileged medical provider determine[s] that PTSD
or TBI may have been a contributing factor to one or more bases for separation . . . .” Given
Lieutenant Kirk’s March 2020 findings, this does not apply to Carlino. Furthermore, the Navy
10
expressly considered the possibility that Carlino’s 2007 TBI endorsement might have impaired
his judgment, but reasoned that even if Carlino did endorse a TBI in 2007, his normal capacities
were reflected in the fact that he served an additional 12 years in the Marines and rose to the rank
of Captain. See AR 8.
Carlino received a thorough medical evaluation, and the Navy followed, rather than
transgressed, MCO 5800.16. The Navy’s separation of Carlino relative to the extent of his
medical examinations did not violate Carlino’s due process rights.
ii. Carlino’s Pending DES Evaluation at the Time of Separation
On March 27, 2020, Lieutenant Kirk referred Carlino for DOD Disability Evaluation
System (“DES”) screening (AR 20), but he was separated beforehand. Carlino argues that his
separation while the DES screening was still pending violated his due process rights.
Department of Defense Instruction 1332.18 (“DODI 1332.18”) establishes that military
service members “pending separation under provisions that authorize a characterization of
service under other than honorable conditions” may not be referred for DES screening, except as
otherwise provided by military regulations. DODI 1332.18 (see Pl. MJAR Appx. at 32). This
rule makes an exception for DES during a pending separation when such an evaluation “is
warranted as a matter of equity or good conscience.” Id.
Navy regulations permit DES referrals and screening during pending separation
proceedings empowered to issue OTH characterizations of service. SECNAVINST 1920.6D
(see AR 694). However, the same Navy regulations enable “Dual Processing,” meaning that an
officer may be separated before completion of DES screening if the Navy finds that this is
warranted. Id. In other words, the Navy has broad discretion to separate an officer before DES
screening is completed.
Thus, in summary, the Navy’s rules do not guarantee DES screening for officers facing
separation proceedings, and Dual Processing expressly permits such separations. In the case of
Carlino, the Navy exercised this discretion. As noted above, Lieutenant Kirk – who referred
Carlino for DES screening – made an express finding that Carlino was responsible for his
actions. AR 20. Carlino’s medical status was weighed by the BOI when it reached its decision,
and Carlino’s PTSD diagnosis was weighed by the Navy when it separated Carlino. See, e.g.,
194-95.
Carlino’s separation while DES screening was pending does not constitute a deprivation
of due process; rather, this was expressly permissible under the Navy’s rules.
IV. Conclusion
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The Court hereby GRANTS Defendant’s Cross-Motion for Judgment on the
Administrative Record and DENIES Plaintiff’s Motion. The Clerk is directed to enter judgment
accordingly.
IT IS SO ORDERED.
s/Edward J. Damich
EDWARD J. DAMICH
Senior Judge
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