Parks v. United States ( 2016 )

In the United States Court of Federal Claims
No. 15-1275C
(Filed: August 1, 2016)
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ANTHONY JAMES PARKS, *
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Plaintiff, *
Review of Wrongful Military Discharge
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Allegations; Violation of Military
v. *
Protective Order; Standard of Review;
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Administrative Record.
THE UNITED STATES, *
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Defendant. *
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Andrew R. Rutz, Bosley & Bratch, P.C., Marion, Indiana, for Plaintiff.
Alison S. Vicks, Trial Attorney, with whom were Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Steven J. Gillingham,
Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, Washington, D.C., Jonathan B. Blazek, U.S. Navy Office of the Judge Advocate
General, Of Counsel, for Defendant.
OPINION AND ORDER
WHEELER, Judge.
On October 28, 2015, Plaintiff Anthony James Parks filed a complaint in this Court
alleging that the U.S. Navy wrongfully discharged him and provided him with a deficient
notice of separation. On March 2, 2016, the Government filed a motion for judgment on
the administrative record. On April 4, 2016, Mr. Parks filed a cross-motion for judgment
on the administrative record. Both motions are now fully briefed. The Court deems oral
argument unnecessary.
Background
Mr. Parks enlisted in the Navy on December 16, 2008, and was stationed in
Mayport, Florida. AR 1. On April 4, 2011, the Duval County Sheriff’s Department
arrested Mr. Parks on probable cause for domestic battery against his wife. AR 84. After
the Circuit Judge issued a verbal no-contact order, the Navy issued a military protective
order (“MPO”) on May 13, 2011, forbidding Mr. Parks from having any contact with his
wife. AR 84. After Mr. Parks violated the order by speaking to his wife on multiple
occasions, the Navy conducted a non-judicial punishment hearing. AR 232-238. The Navy
reduced Mr. Parks’ rank, ordered monetary penalties, and initiated administrative
separation proceedings against him. AR 240-243. On July 8, 2011, Mr. Parks sent a letter
to the General Court Martial Convening Authority (“GCMCA”) requesting disapproval of
his separation from service. AR 91-92. The GCMCA instead approved the separation, and
the Navy discharged Mr. Parks on July 22, 2011. AR 6, 93-94. On August 25, 2011, the
State Attorney dismissed the civilian domestic battery charge against Mr. Parks as nolle
prosequi. AR 151. Mr. Parks then submitted an application to the Naval Discharge Review
Board (“NDRB”) for review of his discharge and upgrade to an honorable characterization
of service. AR 104. The NDRB determined that Mr. Parks’ discharge for violating the
MPO was proper and that no relief was warranted. AR 97. Mr. Parks subsequently
petitioned the Board of Correction for Naval Records (“BCNR”), requesting the same
review and relief. AR 274. The BCNR determined that Mr. Parks was separated for
violating the MPO and not for the dropped domestic assault charge, and denied his
application for relief. AR 193-194.
Mr. Parks has now filed suit in this Court, alleging that he was improperly
discharged on the basis of conduct subject to judicial proceedings resulting in an acquittal,
a violation of due process due to deficiencies in his separation notice, violation of his
parental rights to care for his unborn child, and an arbitrary characterization of his
misconduct as simultaneously “minor” and “major.” Compl. at 5-7. Mr. Parks claims
$107,748 in lost pay, and requests re-characterization of his service to “honorable,”
expungement of his non-judicial punishment, as well as other equitable relief. Compl. at
8.
Standard of Review
In a motion for judgment on the administrative record, the Court’s review is
conducted based upon the paper record created by the agency. See Bannum, Inc. v. United
States, 404 F.3d 1346, 1356 (Fed. Cir. 2005). The existence of a fact question neither
precludes the granting of a motion for judgment nor requires the court to conduct a full
evidentiary proceeding, but must be resolved by reference to the administrative record. Id.2
at 1354. The use of judgment on the administrative record is appropriate in challenges to
military correction board decisions. Young v. United States, 497 F. App’x 53, 58-59 (Fed.
Cir. 2012). This Court will not overturn the decision of a corrections board unless it was
arbitrary, capricious, contrary to law, an abuse of discretion, or unsupported by substantial
evidence. See Porter v. United States, 163 F.3d 1304, 1312 (Fed. Cir. 1998).
Discussion
Mr. Parks asserts that his administrative separation from the Navy and the NDRB
and BCNR decisions upholding his separation were improper because he was discharged
despite his acquittal of domestic violence charges in civilian court. However, the
administrative record makes clear that the Navy discharged Mr. Parks not for the dropped
domestic violence charge, but for the commission of a serious offense: willfully
disobeying an order from a superior commissioned officer, in violation of Uniform Code
of Military Justice (“UCMJ”) Article 90. Mr. Parks’ Administrative Separation Processing
Notice describes his “Separation by Reason of Misconduct – Commission of a Serious
Offense as Evidenced by the Military Protective Order of 13 May 2011 and Jacksonville
Sheriff’s Office Report of 24 May 2011.” AR 87. Mr. Parks asserts that this notice
establishes he was illegally separated for the dropped domestic violence charge because it
references the MPO and a report from the sheriff’s office. However, the sheriff’s office
report is not in the administrative record. The only document in the record from May 24,
2011 is Mr. Parks’ voluntary statement to the Naval Station Mayport security office, in
which he admits to violating the MPO. AR 231-232. Further, the MPO referenced in the
notice does not contain any allegations of domestic abuse. It only mentions “a verbal
altercation which led to a domestic dispute, resulting in [Mr. Parks’] arrest.” AR 144. Mr.
Parks’ Commanding Officer explained the nature of the serious offense in a letter to the
GCMCA recommending separation: “[Mr.] Parks admitted to violating the MPO on
numerous occasions between 10 May 2011 and 24 May 2011.” AR 93-94. The
Commanding Officer’s letter makes no mention of the domestic violence allegations. Id.In its review of Mr. Parks’ separation, the NDRB determined that Mr. Parks was
“not discharged for violating UCMJ Article 128 (Assault) or on the basis of Misconduct
(Civil Conviction) but was discharged based on his violation of UCMJ Article 90 when he
violated the MPO on numerous occasions by his own admission.” AR 101. The NDRB
further noted that “[Mr. Parks’] command acted accordingly with full knowledge of this
evidence and was within established guidelines and policy in doing so.” Id. The BCNR
found similarly that “there is no indication in the record” that Mr. Parks was discharged
due to the dismissed domestic violence charge, and that instead he was “discharged for
willfully disobeying a superior commissioned officer’s military protective order to stay
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away from [his] spouse.” AR 194. This Court has found no evidence in the administrative
record for disturbing these findings.
Mr. Parks further alleges that his notice of separation was deficient because he was
not properly notified of the basis of his separation. Mr. Parks points to the notice’s
reference to a sheriff’s report not in the record as well as its lack of reference to any
provision of the UCMJ. Compl. at 6; Pl.’s Mot. at 3. Department of Defense regulations
require the Navy to notify an employee subject to separation in writing of “[t]he basis of
the proposed separation, including the circumstances upon which the action is based and a
reference to the applicable provisions of the Military Department’s implementing
regulation.” Department of Defense Issuance 1332.14, at Enclosure 5 ¶ 2(a)(1). Mr. Parks’
notice referenced the MPO he violated and the implementing regulation authorizing
discharge, MILPERSMAN 1910-142 (“Separation by reason of misconduct – Commission
of A Serious Offense.”). Moreover, Mr. Parks demonstrated his awareness of the basis for
his separation, including the relevant UCMJ article, in his letter to the GCMCA: “[M]y
wife reported to my command that she had contact with me even though there was a ‘no
contact order’ and MPO in place. I admitted to this and apologized . . . .” AR 243. Further,
“[m]y command is charging me with violation of UCMJ, Article 90 Assaulting or willfully
disobeying an order from a superior commissioned officer.” AR 244.
The NDRB specifically determined that Mr. Parks was properly notified of the
reasons for his separation, based on his own admissions and the above-quoted letter to the
GCMCA. AR 102. While the BCNR did not specifically address the notice issue, it held
that the Navy properly processed Mr. Parks’ discharge. AR 194. Mr. Parks’ notice
conformed to Department of Defense regulations, and Mr. Parks understood he was being
separated for violating the MPO. Any error in the notice was clearly harmless, and does
not justify reversing the decisions of the NDRB and BCNR. See Wagner v. United States,
365 F.3d 1358, 1361 (Fed. Cir. 2004) (“[S]trict compliance with procedural requirements
is not required where the error is deemed harmless.”); see also Milas v. United States, 42
Fed. Cl. 704, 712 (1999) (“Mere technical procedural error is insufficient to warrant
reversing the agency’s administrative decision. The error must be a violation of mandatory
published procedure of a substantive nature by which plaintiff has been seriously
prejudiced.”).
Mr. Parks further alleges that his parental rights to care for his unborn child were
violated by the no-contact order, and that his separation notice arbitrarily characterized his
misconduct as simultaneously “major” and “minor” for the purposes of punishment.
Compl. at 6-7. Mr. Parks has waived these arguments by failing to raise them in his
petitions to the NDRB and BCNR. When a plaintiff seeks relief from a military corrections
board and later brings suit in court, any argument not previously raised before the
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corrections board is waived. See Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006)
(“[A] plaintiff may waive an argument with respect to [a non-jurisdictional] issue by not
asserting it before the Board.”); Doyle v. United States, 599 F.2d 984, 1000 (Ct. Cl. 1979)
(“It has long been part of our law that a party cannot raise an issue on appeal to a court
when it failed to raise it before an administrative agency competent to hear it.”), amended
on other grounds by In re Doyle, 609 F.2d 990 (Ct. Cl. 1979).
For the foregoing reasons, this Court finds that the Navy’s decision to separate Mr.
Parks for commission of a serious offense, as well as the decisions of the NDRB and BCNR
upholding that decision, were not arbitrary, capricious, contrary to law, an abuse of
discretion, or unsupported by substantial evidence. Accordingly, the court GRANTS the
Government’s motion for judgment on the administrative record and DENIES Mr. Parks’
cross-motion for judgment on the administrative record. The Clerk shall enter judgment
accordingly. No costs.
IT IS SO ORDERED.
s/Thomas C. Wheeler
THOMAS C. WHEELER
Judge
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