United States Court of Appeals 

for the Federal Circuit ______________________ 

JOHN F. SHARPE,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2018-1406

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:15-cv-01087-TCW, Judge Thomas C. Wheeler.

______________________ 

Decided: August 27, 2019

______________________ 

RACHEL J. ELSBY, Akin, Gump, Strauss, Hauer & Feld, 

LLP, Washington, DC, argued for plaintiff-appellant. Also 

represented by DEVIN S. SIKES; CAITLIN ELIZABETH 

OLWELL, New York, NY. 

 IGOR HELMAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, argued for defendant-appellee. Also represented by 

ROBERT EDWARD KIRSCHMAN, JR., JOSEPH H. HUNT,

DOUGLAS K. MICKLE; STEPHEN ROBERT STEWART, Office of 

the Judge Advocate General, General Litigation Division, 

United States Department of the Navy, Washington, DC. 
2 SHARPE v. UNITED STATES

 ______________________ 

Before TARANTO, SCHALL, and CHEN, Circuit Judges.

SCHALL, Circuit Judge.

John E. Sharpe is an officer in the U.S. Navy. In a decision dated February 8, 2016, the Board for Correction of 

Naval Records (“BCNR” or “Board”) found Mr. Sharpe’s 

2009 separation from the service to have been unlawful. 

Accordingly, the Board recommended that Mr. Sharpe be 

returned to active duty, and the Assistant Secretary of the 

Navy approved the Board’s recommendation. Before us 

now is Mr. Sharpe’s appeal of the November 8, 2017 decision of the United States Court of Federal Claims that sustained the Navy’s decision to deny Mr. Sharpe, upon his 

return to active duty, certain categories of back pay associated with his military record. See Sharpe v. United States, 

134 Fed. Cl. 805 (2017). For the reasons set forth below, 

we affirm.

BACKGROUND

I 

The pertinent facts are not in dispute. Mr. Sharpe

checked in aboard the aircraft carrier USS Carl Vinson 

(“Carl Vinson”) as a Public Affairs Officer (“PAO”) on June 

20, 2006. Id. at 809. At the time of his assignment to the 

Carl Vinson, the ship was undergoing a refueling and complex overhaul and thus was non-operational and uninhabitable. Id. The overhaul was “set to last during the entire 

pendency of Mr. Sharpe’s assignment to the Carl Vinson.” 

Id. Thus, Mr. Sharpe was instructed to report to the Media 

Department, which was located ashore on the eighth floor 

of the “Bank Building” attached to the Northrop Grumman 

Newport News complex in downtown Newport News, Virginia. Id. Mr. Sharpe regularly reported to this onshore 

location throughout the entirety of his assignment to the 

Carl Vinson and carried out the majority of his duties at 
SHARPE v. UNITED STATES 3

this location, except when he reported to a few other onshore locations in Hampton Roads, Virginia. Id. At no time 

during his assignment did Mr. Sharpe perform any regular 

duties onboard the Carl Vinson or “eat, work, live, stand 

watch or serve any punishment aboard the Carl Vinson or 

any other ship.” Id. (citing Administrative R. at 248, J.A. 

1104).

In March of 2007, a reporter contacted a Media Relations Officer from the office of the U.S. Fleet Forces Public 

Affairs Office, inquiring about Mr. Sharpe’s alleged involvement in “hate group activity.” Id. (quoting Administrative R. at 34, J.A. 890). The next day, Mr. Sharpe was 

ordered to turn over his duties and report to his home in 

Carrollton, Virginia, as his assigned place of duty until further notice. Id. As a result, Mr. Sharpe began a temporary 

assignment to the Commander, Naval Air Forces Atlantic. 

Id. at 809–10. On March 9, 2007, the Naval Criminal Investigations Service began a formal investigation into the 

reporter’s query, and approximately two months later, in 

May of 2007, Mr. Sharpe was informed that the Commanding Officer (“CO”) of the Carl Vinson intended to impose a 

non-judicial punishment on him. Id. at 810. On May 16, 

2007, the CO issued Mr. Sharpe a punitive letter of reprimand for two alleged violations of UCMJ Article 88, 10 

U.S.C. § 888.1 When Mr. Sharpe inquired about the 

 

1 Article 88, 10 U.S.C. § 888, states: 

Any commissioned officer who uses contemptuous 

words against the President, the Vice President, 

Congress, the Secretary of Defense, the Secretary 

of a military department, the Secretary of Homeland Security, or the Governor or legislature of any 

State, Commonwealth, or possession in which he is 

on duty or present shall be punished as a courtmartial may direct.
4 SHARPE v. UNITED STATES

process for demanding a trial by court-martial, the CO informed him that, due to the “vessel exception,” he had no 

right to make such a demand. Id. The “vessel exception” 

denies the right of a service member “attached to or embarked in a vessel” to refuse a non-judicial punishment and 

demand a trial by court-martial. Id.; 10 U.S.C. § 815(a). 

On July 9, 2009, the Assistant Secretary of the Navy 

approved a recommendation by the Commander, Navy Personnel Command, to discharge Mr. Sharpe from the Navy. 

Sharpe, 134 Fed. Cl. at 810. Mr. Sharpe formally separated 

from the Navy on September 30, 2009. Id. 

II

Mr. Sharpe submitted an application for Correction of 

Naval Record to the BCNR on September 28, 2012. Id. In 

his application, he requested reinstatement. He also requested that his naval record be corrected by removing all 

documentation pertaining to his non-judicial punishment. 

Id.; J.A. 2620–22. In addition to seeking reinstatement 

and correction of his record, Mr. Sharpe requested that he 

receive “back payment of all regular or special pay, allowances, allotments, compensation, emoluments, or other pecuniary benefits” due to him as a result of his alleged 

erroneous separation from the Navy. J.A. 884. In his application, Mr. Sharpe argued that the vessel exception had 

been improperly invoked because the dry-docked Carl 

Vinson was not a “vessel” and because, although he was 

officially assigned to the ship, he was not “attached to or 

embarked in a vessel,” as he did not “live, eat, work, stand 

watch, or serve any punishment aboard” the Carl Vinson. 

J.A. 912; J.A. 1104. 

On February 8, 2016, the BCNR recommended to the 

Secretary of the Navy that Mr. Sharpe’s non-judicial punishment be set aside, along with its administrative consequences. Sharpe, 134 Fed. Cl. at 811–12; J.A. 898. In 

addition, the Board recommended that Mr. Sharpe be 

treated as if he had not been discharged but “ha[d] 
SHARPE v. UNITED STATES 5

continued to serve on active duty without interruption.” 

J.A. 901. The Board also recommended that Mr. Sharpe be 

retroactively promoted. Id. In arriving at its recommendations, the BCNR noted, as Mr. Sharpe had, the significance of the Carl Vinson’s non-operational status during 

the entirety of Mr. Sharpe’s assignment. In addition, the 

Board observed that “neither [Mr. Sharpe’s] regular place 

of work, nor his [non-judicial punishment] rights-advice 

session or . . . hearing, were aboard ship.” J.A. 898. The 

Assistant Secretary of the Navy approved the BCNR’s findings and recommendations on April 25, 2016. Sharpe, 134 

Fed. Cl. at 812; J.A. 902. 

The Navy proceeded to implement the Board’s recommendations. As a result, Mr. Sharpe was issued orders to 

report to active duty by February 13, 2017, and to report to 

his new duty station in Washington, D.C. by May of 2017. 

Sharpe, 134 Fed. Cl. at 812. On May 5, 2017, Mr. Sharpe 

was retroactively promoted to the rank of Commander effective August 1, 2008. Id. Mr. Sharpe’s case was then 

forwarded to the Defense Finance and Accounting Services 

(“DFAS”) for calculation of the appropriate back pay to 

which he was entitled. J.A. 857. 

A memorandum by Brian D. Bourne (“Bourne memorandum”), which was issued by the Naval Personnel Command on May 11, 2017, set forth the Personnel Command’s 

position regarding DFAS’s calculations. J.A. 858–60. 

First, the memorandum noted that, before his separation, 

Mr. Sharpe was assigned to the Carl Vinson for three years 

and three months, a time period that exceeded the normal 

twenty-four-month sea duty tour for a PAO. Thus, the 

memorandum stated that, “[c]ommensurate with PAO detailing policy, [Mr. Sharpe] would not have continued to 

serve aboard [the Carl Vinson] past 2009 and his record 

(including pay) should be corrected to show that his sea 

duty ended on 30 Sep 09.” J.A. 858–59. The Bourne memorandum thus recommended that Mr. Sharpe not receive 

career sea pay (“CSP”) or a CSP premium, since he “did not 
6 SHARPE v. UNITED STATES

serve aboard ship, and for constructive service purposes 

would not have been assigned to a ship” from October 1, 

2009, to February 12, 2017. J.A. 859.2 Next, the Bourne 

memorandum recommended that Mr. Sharpe receive basic 

allowance housing (“BAH”) at the rate for Norfolk, Virginia

for the period of his separation, despite a change in the 

home port of the Carl Vinson from Norfolk to San Diego, 

California, in 2010. Id.3 In line with the recommendation 

in the Bourne memorandum, DFAS declined to pay Mr. 

Sharpe CSP or a CSP premium for the period of his separation. Also consistent with the Bourne memorandum, 

DFAS awarded Mr. Sharpe BAH at the Norfolk rather than 

San Diego rate for the period of his separation. 

III

While his application was pending before the BCNR, 

Mr. Sharpe filed suit in the Court of Federal Claims “to 

preserve his right to judicial review.” Sharpe, 134 Fed. Cl. 

at 811 (quoting Compl. at 8). The case was stayed while 

the BCNR reviewed Mr. Sharpe’s application. Id. 

 

2 As stated by the Court of Federal Claims, “CSP is 

an allowance for service members entitled to basic pay who 

are ‘assigned to’ and ‘serving on’ a ship.” Sharpe, 134 Fed. 

Cl. at 818 (quoting 37 U.S.C. § 305a(e)). Additionally, “[a] 

CSP premium is paid to those members who serve on sea 

duty for over 36 consecutive months.” Id. (citing 37 U.S.C. 

§ 305a(c)). During the period between June 20, 2006, when 

he joined the Carl Vinson, and September 30, 2009, when 

he was separated from the Navy, Mr. Sharpe received CSP. 

See Sharpe, 134 Fed. Cl. at 819 n.8. The record does not 

reflect that he received a CSP premium.

3 As the Court of Federal Claims explained, “BAH is 

a variable, basic housing allowance awarded to service 

members eligible for basic pay in order to address higher 

costs of living in certain geographic areas.” Sharpe, 134 

Fed. Cl. at 817 (citing 37 U.S.C. § 403(a)(1)).
SHARPE v. UNITED STATES 7

Following the Board’s decision and the Navy’s implementation of it, proceedings resumed before the court. Id. at 

812.

In due course, Mr. Sharpe filed a motion for summary 

judgment. In it, he argued that he is entitled to the BAH 

rate for San Diego, beginning April 1, 2010, when the Carl 

Vinson’s home port changed. He also argued that he is entitled to CSP and a CSP premium for the period of his separation from the Navy. Id.4 The government filed a crossmotion arguing (1) that judgment on the administrative 

record, not summary judgment, was the proper procedural 

vehicle, (2) that Mr. Sharpe should be judicially estopped 

from making inconsistent arguments before the BCNR and 

the Court of Federal Claims, and (3) that Mr. Sharpe is entitled only to the amounts of back pay that DFAS calculated. Id. 

The Court of Federal Claims first determined that 

judgment on the administrative record was appropriate. 

Id. at 814. The court then held that, because of arguments 

he made before the BCNR, Mr. Sharpe was judicially estopped from seeking BAH at the rate for San Diego and 

from seeking CSP and a CSP premium. The basis for the 

court’s ruling was its determination that Mr. Sharpe presented inconsistent arguments before the Board and the 

court. Id. at 814–16. The court stated: 

[Mr. Sharpe] now argues that this Court cannot ignore and must instead give full weight to the technicality of his formal assignment to the Carl 

Vinson, and that this “on-paper assignment” entitles him to the BAH rate for San Diego, CSP, and 

the CSP premium. Simply put, Mr. Sharpe urged 

 

4 Before the Court of Federal Claims, Mr. Sharpe alleged his thirty-seventh month of consecutive sea duty began on June 21, 2009. J.A. 631.
8 SHARPE v. UNITED STATES

the BCNR to ignore his technical “assignment” to 

the ship in order to nullify his non-judicial punishment and correct his record but now urges this 

Court to give full weight to that very same technical “assignment” in determining his back pay. 

These arguments are plainly inconsistent. It is 

clear that Mr. Sharpe’s interests have changed, so 

he has changed his position accordingly. 

Id. at 815–16 (citation and footnote omitted).

The court concluded that all three requirements for the 

application of judicial estoppel were met: (1) Mr. Sharpe 

made inconsistent arguments before the BCNR and the 

court relating to his status vis-à-vis the Carl Vinson; 

(2) Mr. Sharpe was successful in persuading the Board to 

accept the position he argued before it (that the Board 

should ignore his technical “assignment” to the Carl Vinson 

and recognize that he really was assigned to shore duty); 

and (3) absent the application of judicial estoppel, Mr. 

Sharpe would gain an unfair advantage in the litigation. 

Id. at 814–17; see also New Hampshire v. Maine, 532 U.S. 

742, 750–51 (2001) (setting forth factors that “typically inform” the decision of whether to apply judicial estoppel). 

In the alternative, the Court of Federal Claims determined that the Navy’s decision to award Mr. Sharpe the 

BAH rate for Norfolk, Virginia, and to deny him CSP and 

a CSP premium was not arbitrary or capricious, or contrary 

to law. Id. at 817. Turning first to BAH, the court rejected 

Mr. Sharpe’s argument that he should be paid the higher 

rate for San Diego based on his “on-paper assignment” to 

the Carl Vinson. The court did so on the grounds that Mr. 

Sharpe never moved to San Diego and that, regardless of 

his separation, his assignment to the Carl Vinson was set 

to expire in June of 2008 and he had already exceeded the 
SHARPE v. UNITED STATES 9

average tour length on the ship for a PAO. Id. at 818.5 To 

award Mr. Sharpe the BAH for San Diego, the court stated,

would confer on him a substantial windfall and would “defeat the very purpose behind the regulations governing 

BAH: to aid service members in obtaining housing in the 

vicinity of their permanent duty station and to help with 

corresponding cost-of-living expenses.” Id. The court concluded that “the Navy’s decision to place Mr. Sharpe in the

same position he was in before his improper separation by 

paying him the BAH rate for Norfolk—which he was receiving at the time of his unlawful separation—was not arbitrary or capricious, or contrary to law; rather, it was quite 

reasonable.” Id. (citing Holley v. United States, 33 Fed. Cl. 

454 (1995), rev’d on other grounds, 124 F.3d 1462 (Fed. Cir. 

1997); Ulmet v. United States, 17 Cl. Ct. 679 (1989), aff’d

935 F.2d 280 (Fed. Cir. 1991)).

Turning next to CSP, the Court of Federal Claims 

“[found] it illogical to award Mr. Sharpe CSP and [a] CSP 

premium when he never actually went to sea or performed

any sea duties.” Id. at 818–19. The court relied on Boruski 

v. United States, 155 F. Supp. 320 (Ct. Cl. 1957), where the 

court held that a service member was not entitled to “flight 

pay” because the member “did not participate in any aerial 

flight.” Sharpe, 134 Fed. Cl. at 819 (quoting Boruski, 155 

F. Supp. at 324). The court held it was reasonable for the 

Navy to deny Mr. Sharpe CSP, since he had not experienced the rigors of sea duty. 

 

5 On appeal the government contends that the reason Mr. Sharpe was not issued orders to another duty station was because, after he received non-judicial 

punishment, on June 17, 2008, the Navy determined that 

he should be administratively separated, and he underwent out-processing prior to the issuance of his separation 

orders on September 15, 2009. Appellee’s Br. 47. 
10 SHARPE v. UNITED STATES

Mr. Sharpe timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). 

DISCUSSION

I 

We review the grant or denial of a judgment on the administrative record without deference. Cleveland Assets, 

LLC v. United States, 883 F.3d 1378, 1381 (Fed. Cir. 2018) 

(citing Croman Corp. v. United States, 724 F.3d 1357, 1363 

(Fed. Cir. 2013)). Thus, we apply the same standard of review as the Court of Federal Claims, namely, the standard 

set forth in the Administrative Procedure Act (“APA”). 28 

U.S.C. § 1491(b)(4); 5 U.S.C. § 706; Walls v. United States, 

582 F.3d 1358, 1367 & n.11 (Fed. Cir. 2009) (observing “it 

has become well established that judicial review of decisions of military correction boards is conducted under the 

APA” and collecting cases). Under the APA, a court must 

set aside agency action if the plaintiff demonstrates that 

the action is “arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law.” 5 U.S.C. 

§ 706(2)(A). In performing this review under § 706(2)(A): 

Our scope of review is “narrow”: we determine only 

whether [the agency] examined “the relevant data” 

and articulated “a satisfactory explanation” for [its] 

decision, “including a rational connection between 

the facts found and the choice made.” We may not 

substitute our judgment for that of [the agency], 

but instead must confine ourselves to ensuring that 

[it] remained “within the bounds of reasoned decisionmaking.” 

Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2569 

(2019) (first quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. 

v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983); then 
SHARPE v. UNITED STATES 11

quoting Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 

462 U.S. 87, 105 (1983)).6

Mr. Sharpe challenges both bases for the decision of the 

Court of Federal Claims: (1) its application of judicial estoppel; and (2) its ruling on the merits. We turn first to Mr. 

Sharpe’s claims with respect to BAH and CSP. Because we 

conclude that the Court of Federal Claims did not err in its 

ruling on the merits, we do not reach the issue of judicial 

estoppel. 

II

“Under the constructive service doctrine, ‘military personnel who have been illegally or improperly separated

from service are deemed to have continued in active service 

until their legal separation.’” Barnick v. United States, 591 

F.3d 1372, 1379 (Fed. Cir. 2010) (quoting Christian v. 

United States, 337 F.3d 1338, 1347 (Fed. Cir. 2003)). “The 

basic premise of the constructive service doctrine is to ‘return successful plaintiffs to the position that they would 

have occupied “but for” their illegal release from duty.’” Id.

(quoting Dilley v. Alexander, 627 F.2d 407, 413 (D.C. Cir. 

1980)). Accordingly, military pay claimants are “entitled 

to be placed in the same position they would have been in” 

but for the wrongful action they suffered, “but not in a better position.” Christian, 337 F.3d at 1344. This approach 

is consistent with the fundamental principle of corrective 

 

6 We note that a discretionary decision by the Secretary of the Navy would be beyond our review. See Dysart 

v. United States, 369 F.3d 1303, 1317–18 (Fed. Cir. 2004); 

Groves v. United States, 47 F.3d 1140, 1144 (Fed. Cir. 

1995); Voge v. United States, 844 F.2d 776, 780 (Fed. Cir. 

1988). Instead, we “merely determine[] whether the procedures were followed by applying the facts to the statutory 

or regulatory standard.” Murphy v. United States, 993 F.2d 

871, 873 (Fed. Cir. 1993). 
12 SHARPE v. UNITED STATES

remedies in general: “The injured party is to be placed, as 

near as may be, in the situation he would have occupied if 

the wrong had not been committed.” Wicker v. Hoppock, 73 

U.S. 94, 99 (1867); see also Pirkl v. Wilkie, 906 F.3d 1371, 

1378 (Fed. Cir. 2018) (collecting cases).

Mr. Sharpe argues that the Court of Federal Claims 

erred when it upheld the Navy’s decision to award him the 

BAH rate for Norfolk, Virginia. According to Mr. Sharpe, 

(1) his duty station at the time of his separation was the 

Carl Vinson, (2) the determination of BAH for a service 

member assigned to a ship is a function of the ship’s home 

port, and (3) the Carl Vinson undisputedly moved home 

ports from Norfolk to San Diego on April 1, 2010. Thus,

Mr. Sharpe argues, he should receive the San Diego BAH 

rate for the period from April 1, 2010, to February 12, 2017. 

Mr. Sharpe relies on Holley, a case in which an Army serviceman was held entitled to receive an overseas housing 

allowance for the entire period of his constructive active 

duty service, although it was “probable” that, but for his 

illegal discharge, he would have remained abroad for only 

ten more months. 33 Fed. Cl. at 457. In this vein, Mr. 

Sharpe contends that it was improperly speculative for the 

Navy and the Court of Federal Claims to infer that he 

would not have continued to serve on the Carl Vinson past 

2009. 

Next, Mr. Sharpe contends that because he was receiving CSP at the time of his separation, he should have received CSP and a CSP premium for the period of his 

separation, regardless of whether he was “serving on” the 

Carl Vinson. According to Mr. Sharpe, returning him to 

his prior status takes priority over whether his CSP payments were originally proper. Mr. Sharpe relies on Groves, 

arguing that it supports his contention that although the 

Secretary has certain discretion to award or terminate special pay, that discretion may not be exercised when a service member is denied special pay by virtue of an unlawful 

conviction. 
SHARPE v. UNITED STATES 13

The government responds that it was not arbitrary or 

capricious for the Navy to provide Mr. Sharpe with the 

BAH he was receiving at the time of his separation and 

that it would have created a windfall for Mr. Sharpe to receive the higher BAH rate for San Diego, where he never 

resided. To find otherwise, the government argues, would 

do more than make Mr. Sharpe “whole.” Instead, it would

put him in a better position than he would have been in 

had he not been separated. The government also contends 

that it is Mr. Sharpe’s burden to show that he would have 

continued to serve on the Carl Vinson during the time of 

his separation, and that the Navy’s determination that Mr. 

Sharpe would not have served on the ship for that time period is entitled to deference, citing Voge. Appellee’s Br. 45–

47 (citing 844 F.2d at 779–80). The government contends 

that to award Mr. Sharpe the San Diego BAH is contrary 

to its purpose, which is to assist service members with the 

cost-of-living expenses in the area within the vicinity of 

their permanent duty station, not to award a post-hoc 

windfall for servicemembers retroactively restored to duty. 

Next, the government contends that the purpose of 

CSP and the CSP premium are to compensate service 

members for the arduous conditions of sea duty and separation from home and family. The government states that 

the fact that Mr. Sharpe was receiving CSP before his separation does not entitle him to receive it during his separation.7 

III

As noted, the law requires that Mr. Sharpe be placed 

in the same position he would have been in but for his 

 

7 Counsel for the government stated at oral argument that the Navy believes it was error for Mr. Sharpe to 

have received CSP before his separation. Oral Arg. at 

26:18–27:06 (May 6, 2019).
14 SHARPE v. UNITED STATES

wrongful separation. At the time of his wrongful separation, Mr. Sharpe was assigned to the Carl Vinson, which 

was at home port in Norfolk, Virginia. Accordingly, the

Navy used the best approximation it had for the position 

Mr. Sharpe would have been in but for his illegal separation—that position he was in before he was improperly separated—assigned to the Carl Vinson and receiving the 

BAH rate for Norfolk, Virginia. 

As we have previously acknowledged, the constructive 

service doctrine is a “legal fiction,” and it is improper for us 

to speculate exactly where Mr. Sharpe’s career path would 

have led him but for his separation. See Barnick, 591 F.3d 

at 1379; Boruski, 155 F. Supp. at 324. Mr. Sharpe relies on 

Holley to support his argument that the Navy was not permitted to speculate that he would have separated from the 

Carl Vinson and not continued with the ship to San Diego. 

However, that Mr. Sharpe was assigned to a ship whose 

home port, and correspondingly, the associated BAH rate, 

could change is of no moment here, where the facts make 

clear that regardless of where Mr. Sharpe would have been 

assigned next, he would not have continued to be assigned 

to the Carl Vinson. As explained by the Bourne memorandum, during the relevant period, the normal length of a sea 

duty tour for PAOs was twenty-four months and “commensurate with PAO detailing policy, [Mr. Sharpe] would not 

have continued to serve aboard [the Carl Vinson] past 

2009.” J.A. 858–59. Moreover, Mr. Sharpe’s original orders to the ship were set to expire in June of 2008, and Mr. 

Sharpe’s replacement had reported to the ship by June 20, 

2008. Sharpe, 134 Fed. Cl. at 818; J.A. 2606. 

Given the facts of this case, the Navy’s decision to place 

Mr. Sharpe in the same position he was in before his improper separation by paying him the BAH rate for Norfolk 

was not arbitrary, capricious, or contrary to law. Rather, 

we agree with the Court of Federal Claims that it was 

“quite reasonable.” Sharpe, 134 Fed. Cl. at 818; see also 

Ulmet, 17 Cl. Ct. at 710 (concluding that a wrongfully 
SHARPE v. UNITED STATES 15

discharged service member was entitled to “basic allowance for quarters [and] the variable housing allowance, 

. . . all at the appropriate rates applicable to the location 

where the plaintiff was assigned to duty prior to his improper release.”) 

That Mr. Sharpe should be placed in the “same position” does not mean that the BCNR erred when it declined 

to pay him CSP or a CSP premium.8 Mr. Sharpe’s reliance 

on Groves on this point is misplaced. In that case, until his 

trial by court-martial on charges of larceny, an orthopedic 

surgeon who was an officer in the Army Reserve was receiving “financial bonuses designed to attract and retain 

certain professionals in military service.” 47 F.3d at 1142. 

These were in the form of Variable Special Pay, Incentive 

Special Pay, and Additional Special Pay. Id. His conviction was later set aside, and he sought back pay, allowances, and restoration to active duty. Id. at 1143. The 

Court of Federal Claims awarded him basic pay and allowances, but it denied his request for special pay because he 

did not demonstrate that he had satisfied the additional

eligibility requirements for it. Id. We reversed, noting 

that, under 10 U.S.C. § 875(a) Groves was entitled to the 

restoration of “all rights, privileges, and property affected 

by an executed part of a court-martial sentence which has 

been set aside or disproved.” Id. at 1144. With respect to 

Variable Special Pay, we noted that that pay “depends 

solely on an officer’s status on active duty under orders to 

active duty for at least one year,” and “there is no reason to 

believe that [Groves] would not have continued to [receive 

Variable Special Pay] but for the conviction and sentence.” 

Id. (quoting 37 U.S.C. § 302(a)). With respect to Incentive 

Special Pay and Additional Special Pay, the Secretary of 

the Army had discretion not to renew those forms of special 

 

8 As noted, Mr. Sharpe was receiving CSP at the 

time of his separation. 
16 SHARPE v. UNITED STATES

pay, but in Groves’s case, no such discretionary decision 

was ever made. Id. We stated:

Absent evidence that the Secretary would have otherwise denied Groves the special pay at issue, the 

statutory mandate to restore all rights, privileges, 

and property includes any special pay that Groves 

was receiving prior to his court-martial, and for 

which he would have continued to be eligible had 

the conviction never occurred. 

Id. (emphasis added). The facts here are noticeably different. Here, unlike in Groves, there is reason to believe that 

Mr. Sharpe would not have continued to receive CSP or 

have received a CSP premium. Namely, for the reasons 

discussed above, the facts make clear that Mr. Sharpe 

would not have continued to be assigned to the Carl 

Vinson. 

Whether Mr. Sharpe’s original award of CSP was 

proper is not before us, although we note Mr. Sharpe’s 

statements in his application to the BCNR suggest otherwise. See, e.g., J.A. 912 (“I was at no relevant time attached 

to or embarked in a vessel within the meaning of Art. 15. 

At no time did I live, eat, work, stand watch, or serve any 

punishment aboard ship.”). In any event, what is determinative is that Mr. Sharpe cannot claim to have been “assigned to” or “serving on” a ship during the time of his 

constructive service. See Sharpe, 134 Fed. Cl. at 818 (quoting 37 U.S.C. § 305a(e)). On this basis, the Navy’s decision 

to deny him CSP and a CSP premium for that time period

was not arbitrary, capricious, or contrary to law. Finally, 

like the Court of Federal Claims, we find Boruski, 155 F. 

Supp. at 324, to be instructive. As noted above, in that 

case, an Army officer was denied flight pay for the period 

of his constructive service since he did not participate in 

any aerial flight during that period. 
SHARPE v. UNITED STATES 17

CONCLUSION

For the foregoing reasons, we hold that the Court of 

Federal Claims properly sustained the Navy’s decisions to 

(1) award Mr. Sharpe the BAH rate for Norfolk, Virginia, 

and (2) deny Mr. Sharpe CSP and a CSP premium. We 

therefore affirm the decision of the Court of Federal 

Claims. 

AFFIRMED

COSTS

Each party shall bear its own costs.