In the United States Court of Federal Claims

No. 10-263C

(Filed May 23, 2014)

* * * * * * * * * * * * * * * * * *

*

RICHARD R. WILLIAMS, * Board for Correction of Naval Records;

* separation from service; Board of

Plaintiff, * Inquiry; deference to interpretation of

* military regulations; judgment on

v. * administrative record, RCFC 52.1;

* inadequate explanation by correction

THE UNITED STATES, * board; remand, RCFC 52.2.

*

Defendant. *

*

* * * * * * * * * * * * * * * * * *

Charles W. Gittins, Middletown, Va., for the plaintiff.

Joseph A. Pixley, Commercial Litigation Branch, Civil Division, Department 

of Justice, with whom were Tony West, Assistant Attorney General, Jeanne E. 

Davidson, Director, and Donald E. Kinner, Assistant Director, all of Washington, 

D.C., for the defendant.

MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

Plaintiff, Richard R. Williams, a former major in the United States Marine 

Corps, sues the United States under the Tucker Act, 28 U.S.C. § 1491(a), and under 

the Military Pay Act, 37 U.S.C. § 204(a). Mister Williams began active duty as a

Marine Corps officer on May 17, 1985. Admin. R. (AR) at 91. After being convicted 

by a court-martial of violating the Uniform Code of Military Justice (UCMJ) for

committing adultery and engaging in conduct unbecoming an officer and a 

gentleman,1 and pursuant to the recommendation of a Board of Inquiry (BOI), he 

was discharged from the Marine Corps on May 13, 2005. See AR at 96.

1 UCMJ Art. 133, 10 U.S.C. § 933; UCMJ Art. 134, 10 U.S.C. § 934.

 
In his complaint, plaintiff alleges that the Board for Correction of Naval 

Records (BCNR) acted arbitrarily, capriciously, and contrary to law and regulation

when it failed to correct his military record in light of several purported errors 

which plaintiff claims resulted in his separation from the military only three days 

before he would have become eligible for retirement benefits. See Compl. ¶¶ 33, 35;

see also AR at 96 ¶ 12(c).2 Plaintiff also alleges that he was denied due process 

based on the errors he claims were committed by the BOI and the BCNR. Compl. 

¶ 37. These claims primarily stem from the BOI’s consideration of allegedly timebarred conduct in recommending that he be separated, and the BCNR’s failure to 

correct this error. See, e.g., Compl. ¶ 33.

Defendant moved for judgment on the administrative record, arguing that 

plaintiff could not demonstrate that the BCNR had acted arbitrarily or capriciously 

in upholding the decision of the BOI. Def.’s Mot. J. Admin. R. (Def.’s Mot.) at 1. In

his cross-motion for judgment on the administrative record and response to the 

government’s motion, plaintiff also claims that the BCNR failed to correct several 

other errors, including the insufficient notice provided to plaintiff regarding the 

evidence to be considered by the BOI and the BOI’s failure to include a statement 

required by regulation that it did not consider certain evidence when recommending 

how his military service should be characterized. See Pl.’s Opp’n Def.’s Mot. J. 

Admin. R. & Cross-Mot. J. Admin. R. (Pl.’s Mot.) at 13–16. Finally, Mr. Williams 

contends that the BCNR acted arbitrarily and capriciously when it failed to address 

his argument that his separation would constitute an injustice in light of the 

treatment of other officers convicted of similar offenses. See id. at 16–17.

Plaintiff accordingly seeks three days of back pay and the retirement benefits 

he would have received were he not discharged before his twenty-year retirement 

benchmark. See Compl. at 7–8. For the reasons set forth below, the government’s 

motion for judgment on the administrative record is DENIED, plaintiff’s crossmotion for judgment on the administrative record is GRANTED-IN-PART, and the 

case is REMANDED to the BCNR for further consideration.

2 The Complaint contains several inconsistencies in its citation of dates and time 

periods. See, e.g., Compl. ¶ 1 (indicating plaintiff was discharged “with 19 years, 11 

months and 28 days of active duty service”); id. ¶ 22 (referring to plaintiff’s 

“discharge with 19 years, 11 months and 27 days of service”); id. ¶ 13 (“Plaintiff was 

provided orders . . . directing that Plaintiff would be placed on the Retired List on 1 

June 2005.”); id. ¶ 14 (“Plaintiff was delivered a DD 214 that indicated he would be 

retired . . . effective 1 June 2006 . . . .”). Similarly, while the complaint states that 

Mr. Williams was separated “two days” short of retirement eligibility, Compl. ¶ 33, 

it also asks for “three days” of back pay, Compl. at 7. This opinion will refer to 

dates and time periods as calculated from the documents included in the 

administrative record.

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I. BACKGROUND

Mister Williams joined the Marine Corps on May 17, 1985. AR at 91 ¶ 12(a). 

The administrative record shows that Mr. Williams was disciplined on three 

separate occasions during his tenure in the Marine Corps. First, on October 29, 

1999, Mr. Williams received an adverse fitness report after receiving a non-judicial 

punishment (NJP) for violating an order by misusing his government-issued

computer to view pornography. See AR at 20. In his adverse fitness report for this 

incident, Mr. Williams’s reviewing officer stated, “I believe his mistake was an 

anomaly of poor judgement [sic], and he will successfully serve the Corps with a 

renewed sense of commitment.” AR at 290. It is this first incident which Mr. 

Williams contends was impermissibly considered by the BOI in recommending his

separation from the Marine Corps, in violation of a limitation found in the Secretary 

of Navy Instructions (SECNAVINST) 1920.6B --- the primary regulations governing 

the administrative separation of Navy and Marine Corps officers.3

In 2002, Mr. Williams was cited a second time for misusing his governmentissued computer to view pornography, as well as for lying to the investigating officer 

about the incident. See AR at 20. He did not receive an adverse fitness report or 

any other disciplinary action for this offense. AR at 84 ¶ 4; see also AR at 254–63

(fitness reports from 2002, which do not indicate his 2002 offense).

In June 2004, Mr. Williams engaged in an affair with a fellow officer who was 

a subordinate in his unit and was also the wife of a fellow officer. See AR at 20, 83. 

When confronted about this incident, Mr. Williams lied about this relationship in an 

official statement. AR at 83. This incident resulted in Mr. Williams’s conviction at 

a court-martial and ultimately prompted Mr. Williams’s referral for separation 

processing. See AR at 83–84; Compl. ¶¶ 3–9.

A. The Court-Martial Proceeding

On July 28, 2004, Mr. Williams was arraigned on four charges related to the 

adultery incident: violation of UCMJ article 92, violation of UCMJ article 107, 

violation of UCMJ article 133, and violation of UCMJ article 134. See AR at 57–59. 

He was then referred to a general court-martial on these charges. AR at 58 ¶ 14. 

The court-martial was held on November 12, 2004, February 1, 2005, and February 

14, 2005. See AR at 62. Mister Williams pled guilty to two charges: engaging in 

conduct unbecoming an officer in violation of UCMJ article 133 and committing 

adultery in violation of UCMJ article 134. AR at 61–62. The court-martial accepted 

Mr. Williams’s plea of guilty to one charge and two specifications of violating UCMJ 

article 133 (making a false official statement about his adulterous relationship, and 

3 All references to SECNAVINST 1920.6B in this opinion are to the December 13, 

1999 version in place at the time of plaintiff’s BOI.

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“wrongfully and willfully develop[ing] an unprofessional relationship of 

inappropriate familiarity . . . with a subordinate under his command”) and one 

charge and one specification of violating UCMJ article 134 (adultery). AR at 61–62.

The court-martial authority issued a trial report on February 14, 2005,

ordering Mr. Williams to forfeit $2000 and ordering that he receive a letter of 

reprimand. See AR at 62, 213. The judgment was to become effective on February 

28, 2005, fourteen days after the sentence was announced. AR at 213. The courtmartial conviction was sent up the chain of command after being approved by the 

2d Marine Aircraft Wing (2d MAW) Commander. See AR at 211–12.4

B. The Board of Inquiry Proceeding

On February 18, 2005, four days after his court-martial concluded, the 2d 

MAW Commander referred Mr. Williams to a BOI to show cause why he should be 

retained in the Marine Corps. See AR at 210–12.5 Mister Williams received a 

notification letter, which was dated February 18, 2005, informing him that he had 

been referred to the BOI because of his court-martial conviction. See AR at 65–66. 

The letter first set forth the “reasons for separation to be considered by the Board,”6

4 Mister Williams’s court-martial conviction became final on September 23, 2006, 

after he had already been separated from the Marine Corps. See AR at 391. 

Although he was convicted by court-martial on February 14, 2005, his conviction did 

not become final until the Deputy Assistant Judge Advocate General for the Navy 

conducted a formal review of his conviction pursuant to Article 69(A) of the UCMJ

and affirmed his conviction. See id.

5 On February 18, 2005, the II Marine Expeditionary Force (II MEF) Commander 

was designated the “Show Cause Authority” under SECNAVINST 1920.6B ¶ 13(d). 

See AR at 210 ¶ 1. Under this authority, he had the power to delegate the authority 

to convene a BOI to a subordinate commander. See SECNAVINST 1920.6B, encl. 

(1), ¶ 40. The II MEF Commander delegated this show cause authority to the 2d 

MAW Commander. See AR at 210 ¶ 1; SECNAVINST 1920.6B ¶ 13(d). The II MEF 

Commander provided Mr. Williams with notification of his Board of Inquiry on 

February 18, 2005. See AR at 65–67.

6 The “specific reasons” stated in the notification letter were

substandard performance of duty, misconduct, and moral or 

professional dereliction as evidenced by one of the following:

a. Failure to demonstrate acceptable qualities of leadership required 

of an officer of your grade by entering into an adulterous relationship 

with a female Captain of Marines, the wife of another Captain of 

Marines.

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all of which were charges related to Mr. Williams’s court-martial conviction, and 

then explained that the BOI “is not limited to considering these facts alone, and 

may consider any additional facts concerning the reasons for separation.” AR at 65 

(emphasis added). The notice did not provide further elaboration about what “any

additional facts” meant. The notification letter also went on to explain that the BOI 

would first make a finding on the reasons for separation, using the preponderance 

of the evidence standard, and “[i]f the Board finds that one or more of the reasons 

for separation are supported by sufficient evidence to warrant separation, it may 

recommend your separation and make an additional recommendation as to the 

appropriate characterization of service.” Id.

The 2d MAW Commander made his referral to the BOI with knowledge of 

Mr. Williams’s “mandated retirement date of 1 June 2005,” see AR at 211, and 

before Mr. Williams’s court-martial conviction had been affirmed on appellate 

review, see AR at 391. Meanwhile, Mr. Williams’s twenty-year anniversary of 

service was May 17, 2005, upon which he could retire with full benefits. See AR at 

91 ¶ 12(a). He submitted an application for retirement, and on March 9, 2005, the 

Marine Corps issued him a letter acknowledging that he would retire on June 1, 

2005, with full benefits. See AR at 87 ¶¶ 3–4. This same letter ordered the 

preparation of a DD-214 to formally recognize Mr. Williams’s retirement. AR at 87

¶ 6.

The BOI convened on March 22, 2005. AR at 19. According to the BOI 

report, the BOI considered two “specific reasons for separation” in determining 

whether Mr. Williams should be retained in the Marine Corps: “(a) Failure to 

demonstrate acceptable qualities of leadership required of an officer of his grade; 

and (b) Commission of a military offense which could be punished by confinement of 

6 months or more and any other misconduct which would require specific intent for 

conviction.” AR at 19 ¶ 3.

The BOI report recommended that the Secretary of the Navy discharge Mr. 

Williams and further recommended that he characterize Mr. Williams’s service as 

general (under honorable conditions), reduced from an honorable characterization. 

See AR at 20. In reaching its conclusion, the BOI evaluated three incidents: the 

1999 and 2002 pornography incidents and the 2004 adultery incident. See AR at 20 

¶ 4. Specifically, the BOI report stated:

b. Commission of a military offense which could be punished by 

confinement of 6 months or more and any other misconduct which 

would require specific intent for conviction, specifically conduct 

unbecoming an officer and adultery as evidenced by your conviction at 

general court-martial on 14 February 2005.

AR at 65.

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On the issue of retention, the board also considered two prior incidents 

of misconduct by the respondent: In 1999 the respondent, as a Major, 

received NJP and an adverse fitness report for an order violation, 

misuse of his government computer: viewing pornography. In 2002 the 

respondent again committed the same order violation: misuse of his 

government computer by viewing pornography.

Id. The report continued, “the respondent admitted all acts of misconduct, 

including the two prior incidents of misconduct considered on the issue of retention. 

He admitted that his actions were wrong, but he requested to be retained until 

retirement.” AR at 20 ¶ 5.

The Assistant Secretary of the Navy affirmed the BOI’s recommendation 

after it passed through the chain of command. See AR at 83–85. The Commanding 

General of the 2d MAW, first to endorse the BOI’s recommendations, approved the 

BOI findings but added a comment of his own. See AR at 79. He indicated that he 

agreed with the BOI’s recommendation for separation for adultery charges and 

related offenses, noting also that this was Mr. Williams’s third offense and that Mr. 

Williams had not been rehabilitated after his previous misconduct. AR at 79 ¶¶ 2–

3. The commander made his recommendation after reviewing the BOI’s findings 

and the Record of the BOI, see AR at 79–80, which contained the BOI transcript 

highlighting Mr. Williams’s 1999 and 2002 acts, see AR at 19 ¶ 2 (noting that the 

Record “is a verbatim transcript of the Board’s proceedings”). Specifically, the 2d 

MAW Commander wrote:

2. In addition to the three offenses for which the respondent was 

convicted of [sic] at a General Court-martial, the BOI record 

documents that this was Major Williams’ third incident of misconduct 

as a field grade officer. Major Williams received Non-Judicial 

Punishment [in] 1999 from the Commanding General of II Marine 

Expeditionary Force in conjunction with misuse of his government 

computer by viewing pornography. A second incident of similar 

misconduct was documented by testimony at the BOI. The record 

establishes that in 2002 Major Williams was again identified as having 

used his Government computer for the purpose of viewing 

pornography. Sadly, after this second incident he also chose to lie 

about the matter when questioned by a senior officer. The evidence 

establishes that Major Williams ultimately admitted his misconduct 

after being confronted with the incriminating physical evidence. (See 

Record of BOI, including pgs 17–26)

3. Regrettably, Major Williams was not rehabilitated by the results of 

his first two brushes with authority and misconduct. Most recently, 

after having served over nineteen years as a commissioned officer, he 

consciously chose to commit adultery and fraternization with a junior 

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officer. This junior officer also happened to be the wife of another 

subordinate officer in Major Williams’ unit. It is also worthy of note 

that Major Williams was the female junior officer’s reporting senior. 

Finally, after the aggrieved husband brought the allegation of 

misconduct to light, Major Williams again lacked the moral courage 

and integrity expected of a Marine Corps officer. He again chose to lie 

about his misconduct during the investigative process. (See Record of 

BOI, including Government Exhibits 1–3.)

3. [sic] After carefully considering all of the facts and circumstances 

surrounding this case, I fully concur with the Board’s 

recommendations for separation . . . .

AR at 79–80 (emphasis added). The Record of the BOI, while mentioned in the 

administrative record before the Court, is not included in the administrative record. 

See, e.g., AR at 72 (mentioning record as enclosure (3)).7

The second endorsement was made by the Commander of the II MEF. See 

AR at 81. Although this commander did not directly identify Mr. Williams’s prior 

acts, he stated that he concurred with the 2d MAW Commander’s analysis as well 

as the BOI findings and recommendations, and also noted that “[t]his officer has a 

serious character flaw.” AR at 81 ¶¶ 2–3.

The third endorsement, by the Commander of the Marine Forces Atlantic, 

approved the BOI’s recommendation for separation without commenting on Mr. 

Williams’s prior acts. See AR at 82. This commander added that, “[a]lthough 

clearly a capable logistician, Major Williams has proven that he lacks the integrity 

and leadership qualities to be a Marine officer.” AR at 82.

The fourth endorsement was made by the Commandant of the Marine Corps. 

See AR at 83. The Commandant began by detailing the chronology of events in 

Mister Williams’s case, beginning with the 2004 adultery incident, and stated that 

he concurred with the chain of command and recommended that Mr. Williams be 

separated. See AR at 83–84. He further emphasized that “Major Williams’ conduct 

is not a one-time lapse in judgment.” AR at 84 ¶ 4. To support his claim, the 

Commandant referenced both the 1999 and 2002 incidents, stating “Major Williams 

received non-judicial punishment in 1999 for viewing pornography on his 

government computer and the Board transcript revealed a second incident of 

viewing pornography and lying to the investigator in 2002, which did not result in 

any disciplinary action.” Id. The Commandant concluded that although Mr. 

Williams would soon be “retirement eligible,” he should be separated from the 

7 See infra, note 11.

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Marine Corps before retirement because “he continues to display a pattern of 

misconduct and character unsuitable for further service.” Id.

The final endorsement was made by the Assistant Secretary of the Navy, who 

on May 2, 2005, approved the recommendations of the chain of command with no 

recorded comment. See AR at 85. Pursuant to the BOI’s recommendation and the 

approval by the Secretary of the Navy, the Marine Corps issued a Form DD-215 on 

May 5, 2005, two months after Mr. Williams’s retirement letter was issued, 

reducing his characterization from honorable to general (under honorable 

conditions) and changing Mr. Williams’s discharge date from June 1, 2005, to May 

13, 2005. See AR at 39. Because plaintiff entered the military on May 17, 1985, 

this modification left him with nineteen years, eleven months and twenty-seven

days active duty service, and rendered him ineligible for retirement benefits, see AR 

at 91 ¶ 12(a), 96 ¶ 12(c).

C. Review by the Board for Correction of Naval Records

On September 25, 2008, plaintiff submitted an application to the BCNR

challenging the BOI’s recommendation that he be separated from the Marine Corps,

in which he alleged that the BOI committed “both legal error and injustice” in

discharging him a mere three days before his twenty year retirement. Compl. ¶ 22. 

He petitioned the BCNR to correct his record and allow him to “be retired by reason 

of completion of 20 years of active duty.” AR at 44.

On May 29, 2009, the Military Law Office of the Staff of the Judge Advocate 

to the Commandant of the Marine Corps (“SJACMC”) issued an advisory opinion for 

the BCNR to consider in making its determination. See AR at 5–9. The SJACMC 

advisory opinion recommended that the BCNR consider whether the BOI committed 

a substantial procedural error by considering Mr. Williams’s 1999 incident. AR at 7

¶ 4(c). On this issue, the advisory opinion argues that the “1999 incident, being 

more than five years prior to the initiation of processing for separation was clearly 

time-barred by [SECNAVINST 1920.6B] and should not have been considered by 

the BOI on the issue of separation or retention.” AR at 8 ¶ 4(d).8

The advisory opinion finds support in a district court case, Seifert v. Winter, 

555 F. Supp. 2d 3 (D.D.C. 2003), which interpreted the time limit in SECNAVINST 

1920.6B to at least require a separation board to clearly establish in its record that 

it did not rely on time-barred conduct as the primary reason for making a 

recommendation to separate. See AR at 7 ¶ 4(c); Seifert, 555 F. Supp. 2d at 14–15. 

8 The instruction referred to by the advisory opinion states: “Performance or 

conduct identified more than 5 years prior to the initiation of processing for 

separation under paragraph 2 of this enclosure shall not form the basis for 

processing under this enclosure.” SECNAVINST 1920.6B, encl. (4), ¶ 10.e (1999).

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The advisory opinion stated that “there is no way to determine from the record 

whether any one incident by itself or any combination of the three incidents would 

have caused the BOI to come to the same conclusion.” AR at 8 ¶ 4(e). The opinion 

highlights the fact that the BOI Recorder began his closing arguments before the 

BOI by stating: “[T]his whole situation is about a severe pattern of integrity 

problems. The first incident in ’99; NJP for misuse of government computer for 

porn.” Id. The advisory opinion also notes that the BOI’s purported error was 

compounded by the endorsements, which specifically referenced the 1999 incident. 

AR at 8 ¶ 4(f). Based on these findings, the SJACMC opinion advised the BCNR to 

approve Mr. Williams’s application for correction, restore him to the rank of Major, 

retire him with a general under honorable conditions characterization of service, 

and issue him back pay. AR at 8 ¶ 5.

Despite the SJACMC’s advisory opinion, on March 4, 2010, the BCNR denied 

Mr. Williams’s request for correction and affirmed the BOI’s and Secretary of the 

Navy’s decision. AR at 1–4. Plaintiff argues that the BCNR did not seriously 

consider the legal and regulatory deficiencies identified by the SJACMC and instead 

cursorily rejected the advisory opinion when denying plaintiff’s application. Compl. 

¶ 31.

D. Plaintiff’s Allegations Before the Court

Mister Williams’s complaint arises from the BCNR’s denial of his application 

to correct his Forms DD-214 and DD-215. Plaintiff alleges that the BOI denied him 

due process because it considered time-barred conduct in deciding to recommend 

that he be separated from the Marines “two days short of his already approved 20 

year retirement.” Compl. ¶ 37.9 He also complains that the BCNR acted 

arbitrarily, capriciously, and contrary to law and regulation in denying his 

application for correction. Compl. ¶¶ 33, 35. In response to Mr. Williams’s claim 

that the BOI considered time-barred conduct, the government contends that the 

BOI process is bifurcated into distinct phases, and that the time limitation in 

question does not apply during the phase in which the BOI decides whether to 

recommend that an officer be separated or retained. See Def.’s Mot. at 10–12; Def.’s 

Resp. Pl.’s Cross-Mot. J. Admin. R. & Reply Pl.’s Opp’n Def.’s Mot. J. Admin. R.

(Def.’s Reply) at 2, 7–8. The government contends that the BOI only considered the 

allegedly time-barred conduct during the phase in which the restriction does not 

apply. See id.

In addition, Mr. Williams claims that his due process rights were violated 

because he did not receive adequate advance notification that the BOI could 

consider facts beyond those related to the 2004 adultery incident. See Compl. ¶ 37; 

Pl.’s Mot. at 14–16. In response, the government argues that the BOI, on the issue 

9 See supra, note 2.

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of retention, may consider facts other than the conduct that formed the basis for 

convening the BOI, and that the notification letter sent to Mr. Williams informed 

him that the BOI was “not limited to considering these facts alone [i.e., those 

related to the 2004 incident] and may consider any additional facts concerning the 

reasons for separation.” See Def.’s Mot. at 4–5. Mister Williams contends that the 

plain language of this statement indicated that additional facts that might be 

considered would be related to the specific reasons for processing listed in the 

notification letter. See Pl.’s Mot. at 15–16.

Finally, plaintiff argues that the BCNR acted arbitrarily and capriciously by 

failing to address his claim that his separation was an injustice in light of his years 

of exemplary service and because he received a more severe punishment than other 

officers who committed similar offenses shortly before they were eligible to retire, 

noting that the SJACMC advisory opinion stated that his injustice claim “has some 

merit.” Pl.’s Mot. at 16–17. The government contends that the BCNR was not 

bound by the advisory opinion and that it did adequately respond to this argument, 

rejecting it as unpersuasive. Def.’s Reply at 12–13.

E. Relief Sought

Plaintiff’s request for relief has four elements. Compl. at 7–8. Plaintiff first 

seeks monetary damages for the following: back pay for three days of active duty in 

the pay-grade of Major (O-4) and retirement back pay for the same grade “from May 

16, 2005, to the date of judgment.” Id. at 7. Second, plaintiff requests that

defendant be ordered to correct his DD-214 to indicate that plaintiff retired with 

twenty years of service in the Marine Corps. Id. at 8. Third, plaintiff seeks 

attorney’s fees. Id. Finally, plaintiff seeks any additional relief this Court deems 

“proper and just.” Id.

II. DISCUSSION

A. Legal Standards

1. Judgment on the Administrative Record

A motion for judgment on the administrative record under Rule 52.1 of the 

Rules of the Court of Federal Claims (RCFC) differs from a motion for summary 

judgment under RCFC 56, as the existence of genuine issues of material fact does 

not preclude judgment on the administrative record. See Bannum, Inc. v. United 

States, 404 F.3d 1346, 1355–56 (Fed. Cir. 2005); Fort Carson Support Servs. v. 

United States, 71 Fed. Cl. 571, 585 (2006). Rather, a motion for judgment on the 

administrative record examines whether the administrative body, given all the 

disputed and undisputed facts appearing in the record, acted in a manner that 

complied with the legal standards governing the decision under review. See Fort 

Carson, 71 Fed. Cl. at 585; Greene v. United States, 65 Fed. Cl. 375, 383 (2005); 

Arch Chems., Inc. v. United States, 64 Fed. Cl. 380, 388 (2005). Factual findings are 

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based on the evidence in the record, “as if [the Court] were conducting a trial on the 

record.” Bannum, 404 F.3d at 1357; see also Carahsoft Tech. Corp. v. United States, 

86 Fed. Cl. 325, 337 (2009); Gulf Grp. Inc. v. United States, 61 Fed. Cl. 338, 350 

(2004).

2. Review of Military Decisions

Claims for back pay brought by former full-time active duty service members 

in which improper separation has been alleged are within this Court’s Tucker Act 

jurisdiction. See Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997); 

Adkins v. United States, 68 F.3d 1317, 1321 (Fed. Cir. 1995); Greene, 65 Fed. Cl. at 

379–80 (“Full-time active duty service members, by virtue of their status, are 

entitled to the pay of the rank to which they are assigned until they are properly 

separated from the service. Thus, if a full time active duty service member is 

wrongfully denied the benefits of that status, he has a cause of action under the 

Tucker Act, as section 204(a) is money-mandating.” (citation omitted)).

The Court of Appeals for the Federal Circuit has explained that the 

“responsibility for determining who is fit or unfit to serve in the armed services is 

not a judicial province.” Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 

1983); see also Chappell v. Wallace, 462 U.S. 296, 301–03 (1983) (“[J]udges are not 

given the task of running the Army.” (quoting Orloff v. Willoughby, 345 U.S. 83, 93 

(1953))); Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002) (noting that 

the substance of military decisions is often “beyond the institutional competence of 

courts to review”). But “even when granted unfettered discretion by Congress the 

military must abide by its own procedural regulations should it choose to 

promulgate them.” Lindsay, 295 F.3d at 1257. This limitation follows because “by 

their nature the procedures [implemented by the military] limit the military’s 

discretion.” Murphy v. United States, 993 F.2d 871, 873 (Fed. Cir. 1993). Thus, 

while the Court of Federal Claims will not review “those specific conclusions of 

military review boards that speak to the question of whether an officer deserved to 

be promoted or retained in service,” Lindsay, 295 F.3d at 1257, it “may 

appropriately decide whether the military followed [its] procedures,” Murphy, 993 

F.2d at 873. Accordingly, where the military has established procedures for the 

separation of its members, “a claim for relief based on an alleged failure to follow 

those procedures states a justiciable controversy.” Cameron v. United States, 106 

Fed. Cl. 551, 560 (2012), rev’d on other grounds, 550 Fed. App’x 867 (2013); see

Lindsay, 295 F.3d at 1257; Murphy, 993 F.2d at 873.

A court is limited to overturning the decisions of military correction boards 

when those decisions are arbitrary, capricious, unsupported by substantial 

evidence, or contrary to law. See, e.g., Barnick v. United States, 591 F.3d 1372, 1377 

(Fed. Cir. 2010); Haselrig v. United States, 333 F.3d 1354, 1355 (Fed. Cir. 2003);

Sobczak v. United States, 93 Fed. Cl. 625, 632 (Fed. Cl. 2010); Greene, 65 Fed. Cl. at 

382. Generally, “military administrators are presumed to act lawfully and in good 

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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); see also Richey v. United States, 322 F.3d 1317, 1326 (Fed. Cir. 2003) 

(“[T]he presumption of regularity . . . attaches to all administrative decisions.”); 

Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir.) (noting that the military should 

be afforded “great deference” in determining “the continued suitability of . . . a 

commissioned officer”), cert. denied, 479 U.S. 853 (1986). Therefore, a member of 

the military who has sought relief from a correction board is bound by its decision 

unless he can “demonstrat[e] by cogent and clearly convincing evidence that the 

correction board acted arbitrarily, capriciously, contrary to law, or that its 

determination was unsupported by substantial evidence.” Arens v. United States,

969 F.2d 1034, 1037 (Fed. Cir. 1992).

When reviewing decisions under the arbitrary and capricious standard, “the 

scope of review is a narrow one.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., 

Inc., 419 U.S. 281, 285 (1974). “[T]he standard of 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. Thus, 

this court should “consider whether the decision was based on a consideration of the 

relevant factors and whether there has been a clear error of judgment.” Bowman, 

419 U.S. at 285 (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 

416 (1971)). A court “may not supply a reasoned basis for the agency’s action that 

the agency itself has not given,” id. at 285–86 (citing SEC v. Chenery Corp., 332 

U.S. 194, 196 (1947)), but it may “uphold a decision of less than ideal clarity if the 

agency’s path may reasonably be discerned,” id. at 286 (citing Colo. Interstate Gas 

Co. v. FPC, 324 U.S. 581, 595 (1945)). 

When the interpretation of military regulations and instructions are at issue, 

the military’s own interpretation must typically be given controlling weight and 

deference, see Wronke, 787 F.2d at 1576, especially if the regulation or instruction 

has been consistently interpreted over a long period of time, see United States v. 

Clark, 454 U.S. 555, 565 (1982); Willingham v. United States, 35 Fed. Cl. 633, 646, 

aff’d, 104 F.3d 374 (Fed. Cir. 1996). Charges of procedural irregularity must fail 

when the applicable regulations are interpreted by the armed services in a 

reasonable manner, even though the plaintiff may present another reasonable 

interpretation of the regulation. Wronke, 787 F.2d at 1573; Willingham, 35 Fed. Cl. 

at 646. Thus, where a military regulation is susceptible to equally reasonable 

constructions, a court may not substitute an alternative interpretation for that 

chosen by the military service. Id. At the same time—as is the case with deference 

to agency decisions generally—a court may not accept counsel’s post hoc

rationalizations for agency action, but must find support for the agency’s action in 

the decision of the agency itself. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. 

Ins. Co., 463 U.S. 29, 50 (1983); see also Christopher v. SmithKline Beecham Corp.,

132 S. Ct. 2156, 2166 (2012) (“[D]eference is likewise unwarranted . . . when it 

appears that the interpretation is nothing more than a convenient litigating 

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position, or a post hoc rationalizatio[n] advanced by an agency seeking to defend 

past agency action against attack.” (citations and internal quotation marks 

omitted)); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988) (“We have 

never applied the principle of [deference] to agency litigating positions that are 

wholly unsupported by regulations, rulings, or administrative practice.”).

Although the Court of Federal Claims is confined to reviewing the 

administrative record, see Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006), 

when evaluating the totality of the evidence, a court must take into consideration 

the entire record, see Lopez-Velazquez v. United States, 85 Fed. Cl. 114, 134 (2008)

(citing Dixon v. Dep’t of Transp., 8 F.3d 798, 804 (1993)).

B. Analysis

1. The Alleged Shortcomings of the BOI and BCNR Decisions

The first question before the Court is whether the BCNR acted arbitrarily 

and capriciously in failing to correct Mr. Williams’s record in light of his claim that

the BOI considered matters that it was not permitted to consider under the 

military’s own regulations. See Compl. ¶ 33. This question cannot be answered 

absent an understanding of the Navy’s interpretation of the regulations governing 

administrative separation.

At the time of Mr. Williams’s discharge, the procedure for separating a 

serviceman from the Marine Corps was governed principally by SECNAVINST 

1920.6B, and secondarily by the more particularized Marine Corps Separation 

Manual (MARCORSEPMAN). Underlying Mr. Williams’s argument is his 

interpretation of one of the “limitations” contained in SECNAVINST 1920.6B, 

which states: “Performance or conduct identified more than 5 years prior to the 

initiation of processing for separation under paragraph 2 of this enclosure shall not 

form the basis for processing under this enclosure.” SECNAVINST 1920.6B, encl. 

(4), ¶ 10.e (emphasis added). Mister Williams relies on this limitation to argue that 

the BOI was prohibited from considering the 1999 incident for which he received an 

adverse fitness report when considering the issue of his separation or retention 

because that incident took place more than five years prior to February 18, 2005, 

the date on which his processing for separation was initiated. See Compl. ¶ 26; AR 

at 65 (Notification of Board of Inquiry dated February 18, 2005).

The SJACMC advisory opinion provided to the BCNR argued that the BOI 

committed a substantial procedural error by considering Mr. Williams’s 1999 

incident, maintaining the position that the 1999 incident should not have been 

considered at all. AR at 7–8 ¶ 4(c)–(d).10 The advisory opinion explained that the 

10 The plaintiff’s application to the BCNR raised the more general issue of whether 

the BOI improperly considered prior conduct, basing his challenge on insufficient 

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1999 incident was “clearly time-barred” by regulation, AR at 8 ¶ 4(d), and discussed 

the fact that the BOI Recorder, the BOI Report, and some of the BOI endorsements 

referenced Mr. Williams’s 1999 incident, see AR at 7–8. Citing Seifert v. Winter as 

authority, AR at 7 ¶ 4(c), the SJACMC concluded that “there is no way to determine 

from the record whether any one incident by itself or any combination of the three 

incidents would have caused the BOI to come to the same conclusion,” AR at 7

¶ 4(e).

The BCNR’s response to Mr. Williams’s challenge to the BOI decision based 

on the five-year limitation boils down to two rather cryptic sentences:

You were not processed for separation on the basis of performance or 

conduct identified or reported to the Show Cause Authority more than 

five years prior to the initiation of separation processing. The record of 

your nonjudicial punishment was not the basis of the separation 

processing, and the consideration of that record by the BOI was proper.

AR at 3 (emphasis added). Counsel for the government attempts to rationalize 

these seemingly self-contradictory sentences by contending that processing for 

separation contains several distinct phases. In the first phase, the military 

considers whether to initiate processing for separation, and conduct identified more 

than five years prior to the initiation of processing cannot form the “basis” of that 

decision. Under the government’s theory, the “basis” is simply the reason or 

reasons that processing is initiated --- reasons that must be substantiated by the 

BOI before separation can be recommended. See Def.’s Mot. at 10–12; Def.’s Reply

at 2, 7–8; Hr’g (Sept. 22, 2011). The second phase is the BOI’s consideration of 

whether to recommend separation or retention of the service member. See Def.’s 

Mot. at 10–12; Def.’s Reply at 2, 7–8; Hr’g (Sept. 22, 2011). The government 

contends that prior conduct, including conduct more than five years old, may 

permissibly be considered during this phase so long as such conduct did not form 

the “basis” for processing --- that is, it was not the reason for which processing was 

initiated. See Def.’s Reply at 8 (citing MARCORSEPMAN Ch. 1004 ¶ 4(a)(2)). 

Relying on this theory, the government argues that the “basis” for processing in Mr. 

Williams’s case was only his court-martial conviction for adultery and related 

offenses --- the offenses listed in the notification of processing letter --- not the 1999 

and 2002 pornography incidents. See, e.g., Def.’s Mot. at 12; Hr’g (Sept. 22, 2011).

notice. See AR at 48–50. The Court believes that the issue of time-barred conduct, 

though raised only by the advisory opinion, was incorporated into the petition for 

correction as subsumed within the plaintiff’s broader allegation that the BCNR 

erred in considering evidence of prior conduct. This issue was properly before the 

BCNR and should have been fully addressed in its written statement.

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In sum, there is no dispute that the 1999 incident was considered by the BOI 

on the issue of whether Mr. Williams should be separated from the Marine Corps. 

See, e.g., Def.’s Mot. at 12 (“On the issue of retention, the BOI ‘also considered’ Mr. 

Williams’s two prior incidents of misconduct in 1999 and 2002 . . . .”); Compl. ¶ 9, 

25–26. The question, however, is whether the consideration of that incident on the 

issue of retention violates the time restriction in SECNAVINST 1920.6B, enclosure 

(4), paragraph 10.e, and whether the BCNR acted arbitrarily and capriciously in 

affirming Mr. Williams’s discharge despite the BOI’s consideration of the 1999 

incident on the issue of retention.

Mister Williams also claims that his due process rights were violated because 

he did not receive adequate advance notification that the BOI could consider facts 

beyond those presented in his court-martial hearing. See Compl. ¶ 37; Pl.’s Mot. at 

14–16. In response, the government argues that the BOI may consider facts other 

than the conduct that forms the basis for which the BOI was convened on the issue 

of retention, and that Mr. Williams was given notice that the BOI was “not limited 

to considering these facts alone [i.e., those related to his court-martial conviction] 

and may consider any additional facts concerning the reasons for separation” in his 

notification letter. See Def.’s Mot. at 4–5. Mister Williams contends that the plain 

language of this statement indicates that additional facts that may be considered 

will be related to the reasons for separation listed in the notification letter. See Pl.’s 

Mot. at 15–16.

Finally, plaintiff argues that the BCNR acted arbitrarily and capriciously by 

failing to address his claim that his separation was an injustice because the BOI 

process seemed to be unduly rushed --- as if there was a concerted effort to ensure 

his separation before retirement --- and because he received a more severe 

punishment than other officers who committed similar offenses shortly before they 

were eligible to retire, particularly in light of the fact that the SJACMC advisory 

opinion noted that his injustice claim “has some merit.” Pl.’s Mot. at 16–17. The 

government again contends that the BCNR was not bound by the advisory opinion 

and that it did adequately respond to this argument, rejecting it as unpersuasive. 

Def.’s Reply at 12–13.

2. The Sufficiency of the BCNR Decision

When a Marine Corps officer petitions the BCNR to correct an alleged error 

in his military records, the BCNR must review “all pertinent evidence of record.” 32 

C.F.R. § 723.3(e)(1).11 In denying an application for correction without a hearing, 

11 Normally this would include the transcript of the BOI hearing --- known as the 

Record of the BOI --- which the BOI is required to produce. SECNAVINST 1920.6B,

encl. (8), ¶ 2.l(1); see also AR at 19 ¶ 2 (The Record “is a verbatim transcript of the 

Board’s proceedings.”). The report of the BCNR refers to the transcript, but it was 

not included in the administrative record submitted to the Court. The Court notes 

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see AR at 1 (“[T]he Board for Correction of Naval Records, sitting in executive 

session, considered your application . . . .”), the BCNR is required to provide a 

written statement “of the grounds for denial” that “include[s] the reasons for the 

determination that relief should not be granted, including the applicant’s claims of 

constitutional, statutory and/or regulatory violations that were rejected, together 

with all the essential facts upon which the denial is based.” See 32 C.F.R. 

§ 723.3(e)(3)–(4). Further, although the BCNR is not bound to accept the views

contained in the SJACMC advisory opinion, it is legally bound to consider the 

opinion and provide an explanation for any disagreement. 32 C.F.R. § 723.3(e). The 

BCNR failed to abide by this requirement when it considered Mr. Williams’s 

petition. The BCNR merely offered perfunctory and unsupported conclusions in 

response to the plaintiff’s claims.

For example, despite the SJACMC advisory opinion flagging SECNAVINST 

1920.6B as authoritative and offering an interpretation which barred consideration 

of the 1999 incident, the BCNR did no more than repeat the basic facts and 

cursorily reject Mr. Williams’s claims and the citations to law in the advisory 

opinion. Its analysis of this issue is limited to the following:

The [BCNR] concluded that you were processed for separation solely on 

the basis of your commission of the offenses of which you were 

convicted by general court-martial. It was clear to the [BCNR] that 

you would not have been considered for separation but for that 

conviction. You were not processed for separation on the basis of 

performance or conduct identified or reported to the Show Cause 

Authority more than five years prior to the initiation of separation 

processing. The record of your nonjudicial punishment was not the 

basis of the separation processing, and the consideration of that record 

by the BOI was proper. Had there been evidence of preservice 

misconduct, the BOI would have been permitted to consider that 

evidence for the purpose of deciding whether to recommend separation 

or retention, although not on the issue of characterization of service. 

The [BCNR] concluded that the particularly egregious nature of the 

misconduct of which you were convicted by general court-martial was 

more than sufficient by itself to warrant your discharge under 

that the parties agree that the BCNR need not consult the transcript from the BOI. 

See JSR of Feb. 10, 2012. While it is surprising that the Board would not see a need 

to consult the BOI record, nevertheless, the parties’ jointly stipulated that 

consideration of the record was not necessary. Id. (“[I]nclusion of the verbatim 

transcript in the record before the BCNR was not required and that the omission of 

these records from the board’s review was not substantively or procedurally 

improper.”) The Court will therefore disregard the Board’s failure to consider the 

record as part of its review.

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honorable conditions, with resulting loss of potential retirement 

benefits.

AR at 3.

The BCNR offers the conclusory statement, “[y]ou were not processed for 

separation on the basis of performance or conduct identified . . . more than five 

years prior to the initiation of separation processing,” but fails to account for the 

BOI’s evaluation of all three incidents in recommending discharge, see AR at 73; the 

endorsements which referred to all three incidents, see AR at 79–80, 83–85; and the 

Assistant Secretary of the Navy’s apparent reliance on those endorsements in 

approving his discharge, see AR at 85 (approving final endorsement from 

Commandant of the Marine Corps).12 Counsel for defendant explained this excerpt 

by advancing an interpretation of “basis for processing” that relies on a multi-phase 

understanding of “processing” that was first put forward by the government in the 

course of this litigation. It is far from clear in this excerpt that the BCNR draws a 

distinction between the decision to consider initiating discharge and the actual 

processing of the discharge. If it did in fact draw such a distinction, the BCNR does 

not articulate its interpretation; appeals to no evidence of a long-standing practice 

or external authority which justifies the characterization of the initiation of 

separation as a “phase” distinct from consideration of the separation itself; and fails 

to defend its interpretation against the alternative understanding put forward by

the SJACMC advisory opinion.

The Court is left on the one side with a decision from the BCNR that depends 

on a regulatory interpretation supported by the government’s litigation position in 

this case. On the other side there is a contrary interpretation of the applicable 

regulations from the plaintiff supported by the SJACMC advisory opinion and a

district court opinion. The Court finds that there are at least three possible

interpretations of the phrase “conduct identified more than 5 years prior to the 

initiation of processing for separation . . . shall not form the basis for processing,” 

found in SECNAVINST 1920.6B: conduct more than five years old is barred from 

use (1) as the basis for initiating a board of inquiry; (2) in finding that the officer is 

eligible for separation due to the seriousness of the alleged misconduct (as opposed 

to deciding whether separation is appropriate); or (3) in any phase of the “processing 

for separation.”

It bears repeating that a court must defer to the military’s own interpretation 

of its regulations, especially if the regulation has been consistently interpreted over 

12 Nor does the BCNR explain how these references to the 1999 incident can be 

squared with its claim that the “particularly egregious nature of the misconduct” 

which resulted in Mr. Williams’s court-martial was alone sufficient to justify his 

discharge.

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a long period of time. See Clark, 454 U.S. at 565; Wronke, 787 F.2d at 1576; 

Willingham, 35 Fed. Cl. at 646. Further, a court “may appropriately decide whether 

the military followed [its] procedures” as promulgated through regulation, Murphy, 

993 F.2d at 873, but it will not review “those specific conclusions of military review 

boards that speak to the question of whether an officer deserved to be . . . retained 

in service.” Lindsay, 295 F.3d at 1257. The Court will not impose its interpretation 

of the regulation, but is thereby left in the awkward position of trying to reconstruct 

the BCNR’s unspoken interpretation of SECNAVINST 1920.6B so that the Court

may evaluate whether either the BOI or BCNR acted consistently with that 

interpretation. At the same time, the Court cannot second-guess the BOI’s or the 

BCNR’s determination on the merits of Mr. Williams’s application, nor will it 

attempt to divine what evidence led the BCNR to its decision. SEC v. Chenery, 332 

U.S. 194, 197 (1947) (“It will not do for a court to be compelled to guess at the theory 

underlying the agency's action; nor can a court be expected to chisel that which 

must be precise from what the agency has left vague and indecisive. In other words,

[w]e must know what a decision means before the duty becomes ours to say whether 

it is right or wrong.” (internal quotation marks omitted)).

The BCNR’s treatment of the plaintiff’s claims of insufficient notice and 

injustice are equally superficial. Addressing the issue of notice, the BCNR states

without explanation:

[Y]ou were notified . . . that the BOI was not limited to considering the 

circumstances of your general court-martial conviction, and that it 

could consider other matters concerning the basis for separation. You 

were on notice that the BOI and reviewing authorities could consider 

your entire record, to include evidence of prior acts of misconduct.

AR at 3.13 With regard to the issue of injustice, the Board simply declared: “The 

Board carefully considered both the positive and negative aspects of your service. It 

was not persuaded that the positive aspects outweigh negative, or that it would be 

in the interest of justice to grant your request for correction . . . .” AR at 4.

In light of the above, the most appropriate course of action is to remand to 

the BCNR to further consider plaintiff’s application and render a decision that 

complies with the requirements of 37 C.F.R. §§ 723.3(e)(4). See Istivan v. United 

States, 231 Ct. Cl. 671, 678 (1982) (finding a lack of substantial evidence in support 

13 The question of whether Mr. Williams received sufficient notice is itself 

subsumed in large part by the prior matter of the Navy’s interpretation of 

SECNAVINST 1920.6B. The language of the notification takes on an entirely 

different meaning if the regulations are widely understood to allow the 

consideration of conduct over five-years old in making the narrow separation/

retention decision.

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of a correction board decision but also declining to hold that plaintiff was entitled to 

judgment based on the record before it).

III. CONCLUSION

For the reasons stated herein, defendant’s motion for judgment on the 

administrative record is DENIED; plaintiff’s cross-motion is GRANTED-IN-PART

insofar as it challenges the adequacy of the BCNR’s explanation, and is DENIED in 

all other respects. This case is REMANDED to the BCNR for further 

consideration.

Pursuant to RCFC 52.2(b), the Court provides the following directions to the 

parties on remand.

(1) The remand period shall terminate on Friday, November 21, 

2014, and proceedings in this case are STAYED until that date. If the 

BCNR has not issued a decision on or by November 19, 2014, the 

parties shall follow the procedures set forth in RCFC 52.2(d).

(2) The BCNR’s inquiry shall

(a) determine the scope of the limitation in SECNAVINST 

1920.6B, enclosure (4), paragraph 10.e --- specifically the 

meaning of the phrase “basis for processing” --- and explain the 

grounds for this interpretation;

(b) determine whether the BOI notification given to the plaintiff 

afforded him sufficient notice of the evidence the BOI would 

consider in conducting its inquiry; and

(c) determine whether the plaintiff’s separation three days short 

of retirement eligibility was so inconsistent with the usual 

practice in similar cases as to constitute injustice.

(3) The BCNR shall ensure that its written decision articulates the 

reasons for its judgment with sufficient detail that it is clear that each 

specific claim raised by Mr. Williams was considered.

(4) Pursuant to RCFC 52.2(b)(1)(D), defendant shall file a status 

report on or by Tuesday, July 22, 2014, and a second one on or by

Monday, September 22, 2014, indicating the status of the 

proceedings before the BCNR.

(5) When proceedings before the BCNR have concluded, the BCNR 

shall forward four copies of its decision to the clerk of the Court of 

Federal Claims pursuant to RCFC 52.2(e). Within thirty (30) days of 

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the filing of the BCNR’s decision, the parties shall then file the notices 

required by RCFC 52.2(f)(1).

IT IS SO ORDERED.

s/ Victor J. Wolski

VICTOR J. WOLSKI

Judge

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