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# FILED No. 15-1087C 

### NOV
- 82017 (Filed: November 8, 2017) U.S

. COURTOF FEDERAL CLAIMS 

### ******************************************* 

## * JOHN F

. SHARPE,
Plaintiff ,

v
.
THEUNITED STATES,

Defendant. 

## * * 

## * * * * 

## * * * 

## * *******************************************

John 

### F. Sharpe, Glenelg, Maryland,

### prose Plaintiff. Military Pay Act, 37 U

.S

.C. §§ 204, 305a, 403; IO U.S.C. § 1552; Motion for Summary Judgment; Judgment on the Administrative Record; Judicial Review of BCNR Decision and Implementation; Vessel Exception to UCMJ Article 15; Judicial Estoppel; Basic Allowance for Housing; Entitlement to Career Sea Pay and Career SeaPay Premium.



### Igor Helman, with whom were 

### Chad A. Readier, Acting Assistant Attorney General, 

### Robert 

### E. Kirschman, Jr., Director, 

### Douglas 

### K. Mickle, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department ofJustice, Washington, D.C., and 

### Lt. Maryam Austin, Of Counsel, Office ofthe Judge Advocate General, General Litigation Division (Code 14), U.S. DepartmentoftheNavy, Washington, D.C., for Defendant.

OPINION AND ORDER
WHEELER, Judge

. 

### Prose PlaintiffJohn F. Sharpe seeks review ofthe U

.S. Navy's decision to deny him certain categories ofbackpay associated with corrections to his military record. Mr. Sharpe was separated from theNavy on September 30, 2009 afterreceiving a non-judicial punishment. In September 2015, Mr. Sharpe argued before the Board for Correction of NavalRecords ("BCNR"or"theBoard")that his non-judicial punishmentwas unlawfully imposed andthathe shouldbe treated as ifhewasnever discharged fromtheNavy andhas continued to serve on active duty without interruption. In February 2016, theBCNRtook favorable action on Mr. Sharpe's application, voiding his non-judicial punishment and correcting his military record to reflect his continued service in the Navy without



### 7017 1450 0000 1346 1116interruption. In light ofhis corrected record, Mr. Sharpe is entitledto appropriate backpay and allowances covering the eight-yearperiod ofhis unlawful separation.

Mr. Sharpe now disputes certain aspects ofthe Navy's calculation ofhis backpay. In his motion for summaryjudgment, Mr. Sharpe argues that he is entitled to the basic allowance for housing ("BAH") rate for San Diego, California and to career sea pay ("CSP") and a CSP premium. In its cross-motion for judgment on the administrative record, the Government argues thatMr. Sharpe should bejudicially estopped from making inconsistent arguments before the BCNR and this Court, and, alternatively, that the Navy properly awarded him the BAH rate for Norfolk, Virginia and properly denied him CSP and the CSP premium. 1 For the reasons explained below, the Court GRANTS the Government's cross-motion forjudgment on the administrative record and DENIES Mr. Sharpe's motion for summaryjudgment. Background2

A. Mr. Sharpe's Naval Service

Mr. Sharpe graduated from the U.S. Naval Academy in 1993 andwas certified as a Submarine Officer and Nuclear Engineer Officer shortly thereafter. AR 29, 153. Mr. Sharpe transferred into the Public Affairs Officer ("PAO") community in November 1999 and accepted a permanent appointment to Lieutenant Commander on December 1, 1999. Id. at 29. In June 2004, Mr. Sharpe was assigned to the office of the Navy Chief of Information ("CHINFO") in the Pentagon, taking a role as the Director for Plans and Policy. Id. During his assignment to CHINFO in 2004 and 2005, Mr. Sharpe co-edited a twovolume anthology ofarticles critical ofthe Iraq War. Id. The anthology waspublished in April2005. Id. Mr. Sharpe didnotauthor any ofthe articleshimselfandhisname appeared only once on an interiorpage, wherehewas listed as a co-editorunderthe name "J. Forrest Sharpe." Id. While Mr. Sharpe took no part in writing the articles, he and his co-editors did co-author 71 summaries describing the contents ofthe articles, which appearedjust prior to the article they introduced. Id. at 30. One ofthese summaries was charged as showing contempt toward then-President George W. Bush. Id.
On October 31, 2005, the United States Fleet Forces Inspector General received a "hotline complaint" over Mr. Sharpe's alleged "improper participation in the anti-war

1 The parties also disagree over the proper procedural vehicle for resolving this case. Mr. Sharpe argues that summary judgment is proper, while the Goverrnnent contends thatjudgment on the administrative record is proper.

2 As the Court explains below,judgmentonthe administrative record is the appropriate procedural vehicle for resolving this case. Accordingly, the facts in this decision are taken from the administrative record ("AR").
2

### movement," prompting the Navy Inspector General to conduct a preliminary inquiry into the matter. Id. On November 21, 2005, the Inspector General reported his results to CHINFO in a memo stating, for the most part, that Mr. 

### Sharpe was "exercising his free speech rights under the Constitution," and that his personal writings and speaking "predated the war in Iraq." Id. Regarding the anti-war anthology, the memo stated that some ofthe language contained in the second volume's dedication could be problematic under Article 88 ofthe Uniform Code ofMilitary Justice ("UCMJ"), but that the anthology was written "in a very academic and reasoned way." Id. The Inspector General chose not to recommend or take any further action on the matter, other than to refer the memo to CHINFO. Id. at 31. In response to the memo, Mr. 

### Sharpe's Reporting Senior at CHINFO issued a non-punitive letter ofcaution urging Mr. 

### Sharpe to "exercise greater care in the performance of [his] duties in order to measure up to the high standards ofCHINFO and the Navy Public Affairs community" in the future. Id.
On June 20, 2006, Mr. Sharpe checked in aboard the USS Carl Vinson ("Carl Vinson"), a nuclear-powered aircraft carrier, as a PAO. Id. at 33, 170-71. At the time of Mr. 

### Sharpe's assignment to the Carl Vinson, the ship was non-operational and uninhabitable because it was undergoing arefueling and complex overhaul ("RCOH"). Id. at 33, 170. The RCOH was set to last during the entire pendency of Mr. 

### Sharpe's assignment to the Carl Vinson. Id. at 42. As such, 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. at 33-34. Mr. 

### Sharpe regularly reported to this onshore location throughout the entirety ofhis assignment to the Carl Vinson and carried out the majority ofhis duties at this location, except for reporting to a few other onshore locations in Hampton Roads, Virginia. Id. at 168, 248. Mr. 

### Sharpe's duties while onshore at the BankBuilding included conducting "routinebusiness" andproviding "personal and staffed public-affairs coordination and photography support" for various on-shore command events. Id. at 169. Atno time during his assignment did Mr. 

### Sharpe perform any regular duties on board the Carl Vinson; nor did he eat, work, live, stand watch or serve any punishment aboard the Carl Vinson or any other ship. Id. at 248. On April 1, 2010, the Carl Vinson's home port officially changed from Norfolk, Virginia to San Diego, California. Id. at 3.
B. Non-Judicial Punishment
OnMarch 6, 2007, a Media Relations Officer ("MRO") from the office ofthe U.S. Fleet Forces PAO received a query from a reporter affiliated with a small publication in the Newport News area regarding an allegation, in a nongovernmental report, that Mr. 

### Sharpe was involved in "hate group activity." Id. at 34. The MRO prepared an email to the immediate superior in command ofthe Carl Vinson summarizing the query, and on March 7, 2007, the Executive Officer ofthe Carl Vinson ordered Mr. Sharpe to tum over his duties to his deputy and reportto his home in Carrollton, Virginia as his assignedplace

3

### of duty "until further notice." Id. Mr. 

### Sharpe was relieved of all watch and command duties and began a temporary assignment to the Commander, Naval Air Forces Atlantic ("CNAL") in Norfolk, Virginia. Id. at 34-35.
On March 9, 2007, the Naval Criminal Investigations Service ("NCIS") began a formal investigation into the reporter's query. Id. at 35. Approximately two months later, in May 2007, Mr. Sharpe was informed that the Commanding Officer ("CO") ofthe Carl Vinson intended to impose a non-judicial punishment on him. Id. On May 16, 2007, the CO issued Mr. 

### Sharpe a punitive letter ofreprimand for two alleged violations ofUCMJ Article 88. Id. at 35. Article 88 states, in relevant part: Any commission officerwho uses contemptuous words against the President, the Vice President, Congress, the Secretary ofDefense, the Secretary ofa 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.
10 U.S.C. § 888; AR 35. These violations pertained to the two-volume anthology of articles co-edited by Mr. 

### Sharpe critical ofthe Iraq War. AR 35. When Mr. Sharpe inquired about the process for demanding a trial by court-martial, the CO informed Mr. 

### Sharpe that he had no right to make such a demand due to his assignment to the Carl Vinson. Id. at 35. TheCO therebyinvokedArticle 15 oftheUCMJ,the "vesselexception," which denies the right ofa service member "attachedto or embarked on a vessel" to refuse
a non-judicial punishment and demand a trial by court-martial. 10 U.S.C. § 815(a). 3 

### On July 9, 2009, afterthe Commander, NavyPersonnel Command ("CNPC") made a series of reports and recommendations to the Assistant Secretary ofthe Navy ("ASN") related to Mr. 

### Sharpe's non-judicial punishment, the ASN approved the CNPC's recommendation thatMr. Sharpebe discharged from theNavy. AR39; see also id. at 35-38. On September 30, 2009, Mr. 

### Sharpe formally separated from the Navy. Id. at 39.
C. Administrative and Judicial Proceedings

1. 

### Applications to the Board for Correction ofNaval Records

On September 28, 2012, Mr. 

### Sharpe submitted his first application to the BCNR, challenging his non-judicial punishment and subsequent separation from the Navy. Id. at

3 Article 15 ofthe UCMJ states, "except in the case ofa member attached to or embarked in a vessel, punishmentmaynotbe imposed upon any memberofthe armed forces underthis article ifthe memberhas, before the imposition ofsuch punishment, demandedtrial by court-martial in lieu ofsuch punishment." 10 U.S.C. § 815(a).

4

### 122, 1704. This initial application was misdirected by the Board to the Navy Personnel Command ("the NPC") instead ofthe Code 20 Criminal Law Division, prompting the Board to allow Mr. 

### Sharpe to submit a supplemented application on September 28, 2015, which accounted for subsequently discovered information. Id. at 121-52.

In his supplemented application to the Board, Mr. 

### Sharpe primarily argued that the Article 15 "vessel exception" did not apply to him because he was not "attached to or embarked in a vessel within the meaning ofArt[icle] 15" and thus, was unjustly deprived ofhis right to demand a trial by court-martial before the imposition ofhis non-judicial punishment iμ 2007. Id. at 129, 187, 247-48. Inmakinghis case to the Board, Mr. 

### Sharpe put forth two main, overarching arguments: first, that the Carl Vinson was not a vessel withinthemeaning ofUCMJArticle 15 because ithad completed only nineteen months of
a 43-month drydock refueling overhaul, did not go out to sea, and thus, was effectively inoperable at the time he received his non-judicial punishment;4 

### and second, that despite his technical assignment to the vessel, his actual permanent duty station ("PDS") was ashore in various locations away from the ship and thus, his PDS also was not a vessel within the meaning ofArticle 15. Id. at 187-88; 1708. Relying heavily on the analysis performed by the Court ofAppeals for the Armed Forces in United States v. Edwards, 46 M.J. 41 (C.A.A.F. 1997), Mr. 

### Sharpe stressed that the Board should give little weight to the "on-paper"technicality ofhis "assignment"tothe ship and instead focus ontherealities ofhis relationship to the ship and the ship's operational status. AR 132.

Mr. 

### Sharpe further argued, among other things, that he was likewise ashore in Norfolk, Virginia while he was assigned to CNAL after being ordered home, and did not engage in any activities on the sea before the implementation of his non-judicial punishment and formal separation from the Navy in September 2009. Id. at 188. Mr. Sharpe also contended that the "nexus" between himselfand the Carl Vinson was not in line with the legislative intent behind the phrase "attached to or embarked in a vessel" in Article 15, because he did not live, perform duties, or stand watch aboard the ship; his regular place of duty was an on-shore office building in downtown Newport News, Virginia; and he was not requiredto check in with the ship after being ordered back home and subsequently assigned to CNAL in Norfolk, Virginia. Id. Lastly, in addition to requesting his reinstatement to active duty and correction of his naval record, Mr. 

### Sharpe requested that he be paid all "regular or special pay, allowances, allotments, compensation, emoluments orotherpecuniarybenefits" dueto him
as aresult ofhis alleged erroneous separation from the Navy. Id. at 1759-61.

4 Mr. Sharpealso noted thatthe crew (l)did notbeginreturning aboardthe CarlVinsonuntil fifteen months afterthe imposition ofhis non-judicial punishment; (2) did not complete the process ofmoving aboard the ship until over 21 months later; and (3) did not actually go outto sea on the ship until 25 months after the imposition ofthe non-judicial punishment. See AR 129.



### 52. Initial Proceedings Before This Court

In conjunction with his revised application to the BCNR, Mr. Sharpe filed suit in this Court on September 29, 2015 "topreserve his right tojudicial review" ofthe Board's final action. Comp!. at 8. In his complaint, Mr. Sharpe asserts the same arguments he submitted to the Board challenging his non-judicial punishment and requests the same relief. See id. at 51-97. On November 24, 2015, Mr. Sharpe and the Government filed a jointmotionto stay the case while the BCNRreviewed Mr. Sharpe's application for relief. Dkt. No. 6. This Court granted the parties' motion on December I, 2015 and stayed the
case pending a final determination by the Boardwith respect to Mr. Sharpe's application. Dkt. No. 7.
3. The BCNR'sDecision
OnFebruary 8, 2016, the BCNRtook favorable action on Mr. Sharpe's application and recommended to the Secretary ofthe Navy that Mr. Sharpe be granted appropriate relief. AR 42-46. In its decision, the Board agreed with Mr. Sharpe that he was not attached to a vessel within the meaning ofUCMJ Article 15 and was unfairly deprived of his right to demand a trial by court-martial. Id. In so doing, the Board pointed to the following considerations andjustifications: (1) Mr. Sharpe was ordered away from the ship before the imposition ofhis non-judicial punishment; (2) Mr. Sharpe was assigned to on-shore duties after being ordered home; (3) the Carl Vinson was completely nonoperational during the entirety ofMr. Sharpe's assignmentto the ship; and (4) neither Mr. Sharpe's regularplace ofwork norhis non-judicial punishmenthearing took place aboard the ship. Id. at 42. TheBoard also noted that inmaking its decision, it looked beyond the technicality ofMr. Sharpe's "on-paper assignment" to the ship and instead focused on the "totality ofth[e] case's factual circumstances" in concluding that Mr. Sharpe fell outside the vessel exception, as Mr. Sharpe had urged the Boardto do in his application. Id.
Based on this conclusion, the Board recommended that Mr. Sharpe's non-judicial punishment and its resulting consequences be set aside and ordered that his record be corrected to remove any references to the punishment and its consequences. Id. at 42-44. The Board further recommended that Mr. Sharpe be treated as ifhe "was not discharged from the Naval Service, but has continued to serve on active duty without interruption." Id. at 45. The Board's recommendation did not specify how Mr. Sharpe's back pay and appropriate compensation should be calculated.
On April 25, 2016, the Assistant Secretary of the Navy approved the Board's recommendations. Id. at 46. Mr. Sharpe received orders to report to active duty no later than February 13, 2017, and to report to his ultimate duty station in Washington, D.C. by May 2017. Id. at 18-23. Additionally, the Assistant Secretary issued an amended order
onDecember 21, 2016 putting into effect Mr. Sharpe's appropriate promotions, id. at 24,



### 6andMr. Sharpe endorsedhis permanentappointmentletter onMay 5, 2017, promotinghim to the rank of"Commander" effective August 1, 2008. Id. at 5.
4. CurrentProceedings Before This Court
AftertheBCNRissued its recommendations to the Assistant Secretary oftheNavy, the parties provided this Court with a series ofjoint status reports keeping the Court appraised of the Navy's final approval and implementation of the Board's recommendations, including the calculation ofMr. Sharpe's back pay. See Dkt. Nos. 8, 10, 14, 20, 26, 28, 32. On May 5, 2017, the Court ordered the Government to submit its final position onthe amount ofbackpayto which Mr. Sharpe is entitled on or beforeMay 12, 2017, andtopayMr. Sharpe the undisputed amount "as soon as practicable." Dkt. No. 33. The Court also ordered Mr. Sharpe to file a status report responding to the Government's final calculations on or before May 19, 2017. Dkt. No. 33.
On May 12, 2017, the Government filed its status report detailing what it believed to betheproper amount ofbackpay owed to Mr. Sharpe. Dkt. No. 34. In its status report, the Government indicated that the NPC issued a memorandum to Defense Finance and Accounting Services ("DFAS"), the entity responsible for calculating military back pay, recommendingDFAS take certain actions withrespecttoMr. Sharpe's backpay. Dkt. No. 34, at 1-3; see also AR 2--4. While Mr. Sharpe and the Government agree with most of the Navy's recommendations regarding Mr. Sharpe's back pay calculations-a sum totaling $666,471.495-theparties remain in disagreement overMr. Sharpe'sproper BAH rate, whether Mr. Sharpe is entitled to CSP, and, relatedly, whether Mr. Sharpe is entitled to the CSP premium. The Government and Navy opine that Mr. Sharpe is entitled to the BAHrate for Norfolk, Virginia covering theperiod from October 1, 2009 to February 13, 2017, and that Mr. Sharpe is not entitled to CPS orthe CPS premium for that same period. See Dkt. No. 34, at 2. Mr. Sharpe takes a different view, outlined below.

In response to the Government's status report, Mr. Sharpe submitted together as a single filing a status report, motion for leave to file portions thereof as plaintiffs second amended complaint, andmotion for summaryjudgment, which this Courtfiled by its leave
as a motion for summaryjudgment. SeeDkt. No. 36. InMr. Sharpe'smotion for summary judgment, he argues, among otherthings, that he is entitled to the BAHrate for SanDiego, California beginning April 1, 2010, when the Carl Vinson's home port changed from Norfolk, Virginia to San Diego, California. Pl.'s Mot. at 44-77. Mr. Sharpe also argues that he is entitled to CSP andthe CSP premium for the period covering October 1, 2009 to February 12, 2017. Id. at78-89. Finally, Mr. Sharpe argues that summaryjudgmentis the appropriate vehicle for resolving the issues in this case. Id. at 13-16.
On July 19, 2017, the Government filed a cross-motion for judgment on the administrative record, arguing (1) thatjudgment on the administrative record is the proper

5 This amount has already been paid to Mr. Sharpe. See Dkt. No. 39, atEx. I.
7proceduralvehicle forresolvingthis case; (2)thatMr. Sharpe shouldbejudicially estopped from making inconsistent arguments before the BCNR and this Court; and (3) that Mr. Sharpe is entitled only to the amounts DFAS calculated pursuant to the Navy's recommendations, as reflected in the Government's status report. See Dkt. No. 43. The parties finished briefing these issues on September 6, 2017, and the Court heard oral argument on theparties' motions on October 25, 2017.
Discussion
This case presents unique andnovel factual circumstances that give rise to complex issues. While the parties dispute procedural mechanisms and certain aspects of Mr. Sharpe's back pay, they do not challenge this Court'sjurisdictionto hearthese issues or to resolve this case. The Court agrees that it hasjurisdictionto hear this case and derives its subject matter jurisdiction from both the Tucker Act, 28 U.S.C. § 1491, and the Administrative Procedure Act ("APA"), 5 U.S.C. 

### § 703. The Tucker Act grants jurisdictionover claims "againstthe United States founded eitheruponthe Constitution, or any Act ofCongress or any regulation ofan executive department, orupon any express or implied contract withthe United States, or for liquidated orunliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(l). The APA in tum entitles a person legally wrongedby agency actionto seekjudicial review, thus waiving sovereign immunity ofthe United States. 5 U.S.C. § 703; Weaver v. United States, 46 Fed. Cl. 69, 76 (2000). Additionally, aPlaintiffmustestablishanindependentrightto money damages from
a money-mandating sourcewithin a contract, regulation, statute orconstitutionalprovision in order for the case to proceed. Jan's Helicopter Serv. Inc. v. FAA, 525 F.3d 1299, 1306 (Fed. Cir. 2008); Volk v. United States, 111 Fed. Cl. 313, 323 (2013). Here, the separate money-mandating sources are 37U.S.C. §§ 204, 305a, and 403, which governtheportions ofMr. Sharpe's paythat are currently in dispute. Thus, in conjunction withthe APA, this Court hasjurisdictionpursuantto the Tucker Actto review the Navy's decision regarding theproper calculation ofMr. Sharpe's backpay.
As the Court notes above, in accordance with the correction ofMr. Sharpe's naval record, the parties have agreed on most ofthe Navy's calculations ofMr. Sharpe's back pay. The following three issues remain in dispute: (1) whetherthis case shouldbe decided
on summaryjudgment orjudgment on the administrative record; (2) whether Mr. Sharpe is judicially estopped from making inconsistent arguments before the BCNR and this Court; and (3) whether the Navy's decision to pay Mr. Sharpe the BAH rate for Norfolk, Virginia and deny him CSP andthe CSP premiumwas arbitrary, capricious, orcontrary to law. The Court will resolve each ofthese issues intum.



### 8A. Judgment on the Administrative Record Is the Proper Procedural Vehicle for Resolving This Case.
The parties first dispute whether summary judgment or judgment on the administrative record is the appropriate procedural vehicle for resolving this case. In his motion for summaryjudgment, Mr. Sharpe argues that summaryjudgment is appropriate because there is no genuine dispute as to any material fact and that he is entitled to judgmentas a matter oflawbecausehe is merely seeking to enforce the BCNR's decision. Pl.'s Mot. at 13-16. In its cross-motion for judgment on the administrative record and replytoMr. Sharpe's subsequentresponse, the Government contends thatjudgment onthe administrative record is appropriate because (1) this is a military pay case, and such cases arereviewedontheadministrativerecordlike all otheragency action; and (2) agency action here consists ofboththeBCNR's decision andtheNavy's implementation ofthat decision, which includes the calculation ofMr. Sharpe's backpay. Def.'s Mot. at 13; Def's Rep. at 1-4. Mr. Sharpe disputes this latter point in his response to the Government's crossmotion, noting that only the BCNR's decision to correct his record constitutes "agency action,'' and thatthe Board's decision here is not in dispute. See Pl.'s Resp. at 7-9.6 Military pay cases involving decisions ofa military correction board and a service member's subsequent entitlement to appropriate monetary compensation under the U.S. Code are reviewed on the administrative record under the same standard as any other agency action. Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006); Martinez v. United States, 333 F.3d 1295, 1314-15 (Fed. Cir. 2003). "Agency action" is not limitedto
a correction board's decisions; rather, agency action also includes the implementation of that decision and any recommended relief. See Laningham v. United States, 30 Fed. Cl. 296, 304 (1994) ("[F]inal and binding decisions made by the General Counsel and [Assistant Secretary], in furtherance of processing plaintiff's claims based upon a resolution of the BCNR, are also given the same weight as resolutions of the BCNR. Together, they compromisethe 'administrative decision' ofthe defendant

....").
Here, Mr. Sharpe defines the relevant agency as solely the BCNR and the relevant agency action as solelythe BCNR'sfavorable decisionto void his non-judicialpunishment and correcthis record. However, Mr. Sharpe adopts fartoo narrow a definition of"agency action." The proper agency here is the Navy as a whole, and the proper agency action includes boththeBCNRdecision

### andthe implementation ofthat decisionbyDFAS, under the direction andrecommendations ofthe NPC. The fact that the BCNR did not have the Navy's recommendations regarding Mr. Sharpe's back pay and DFAS' final calculations

6 In response to the Government's cross-motion forjudgment on the administrative record, Dkt. No. 43, Mr. Sharpe filed two appendices: "AppendixA" and "AppendixB." See Dkt. Nos. 46, 47. "AppendixA" is Mr. Sharpe's response to the Government's cross-motion for judgment on the administrative record, while "Appendix B" is Mr. Sharpe's reply to the Government's opposition ofhis motion for summary judgment. As such, the Court cites to "Appendix A" as "Pl.'s Resp. at_" and to "Appendix B" as "Pl.'s Rep. at_."
9before it while contemplating its decision on Mr. Sharpe's application does not mean that those recommendations and calculations are not agency action subject to this Court's review onthe administrative record. To the contrary, the BCNRdecision, theNPC's back payrecommendations, andDFAS' calculations together constitute agency actioncurrently under review bythis Court. See id. at 304. As such, the Court finds thatjudgment on the administrative record is the appropriate procedural vehicle for resolving this case and will review the Navy's decision under the same standard as any other agency action.

B. Mr. Sharpe Is Judicially Estopped from Making Inconsistent Arguments Before the BCNR and This Court.
Before addressing the reasonableness ofthe Navy's decision to deny Mr. Sharpe certain aspects ofwhat he believes to be his properbackpay, the Court first finds that Mr. Sharpe isjudicially estopped from making inconsistent arguments before the BCNR and this Court. In order for a court to invoke the doctrine of judicial estoppel, this Court has noted thatthe following three elements must be satisfied: First, a party's later position must be 'clearly inconsistent' with its earlierposition. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled. Finally, [a] third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party ifnot estopped. Cuyahoga Metro. Rous. Auth. v. United States, 65 Fed. Cl. 534, 556 (2005) (citing New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001)); see also Moreland Corp. v. United States, 76 Fed. Cl. 268, 294 (2007). Here, all three elements of the judicial estoppel doctrine are plainly satisfied.
1. Mr. Sharpe'sArguments Beforethe BCNRand This CourtAreInconsistent.
The parties here primarily disagree over whether Mr. Sharpe made inconsistent arguments before the BCNR and this Court. The disputed "inconsistency" relates to how Mr. Sharpe arguedthathis case did not fall withinthe Article 15 "vessel exception,"which denies therightofa servicememberto demand a trialbycourt-martial ifthey are "attached to or embarked in a vessel within the meaning ofArt[icle] 15," 10 U.S.C. § 815(a), and how Mr. Sharpe argues before this Court that he is entitled to certain categories ofback pay based onhis formal "assignment" to the Carl Vinson.

10

### The Government asserts that Mr. 

### Sharpe argued before the BCNR that the vessel exception did not apply because he was not actually "attached to or embarked in" the Carl Vinson, sincehe was stationed onshore in an office building and the Carl Vinson itselfwas non-operational during his entire assignment to the ship. Def.'s Mot. at 17. The Government also argues that Mr. 

### Sharpe stressed to the Board that it give little weight to his "on-paper assignment"to the ship and instead focus onwhere he was physically located to determine whetherhe was "attachedto or embarked in" the Carl Vinson for purposes of the vessel exception. Def.'s Rep. at 5. Now, the Government argues, Mr. Sharpe is contradicting himself by urging this Court to focus on the formality of his "on-paper assignment" to the Carl Vinson, as reflected by his corrected record, in order to grant him CSP, the CSP premium, and the BAHrate for SanDiego afterthe ship changedhomeports. Def.'s Mot. at 17; Def.'s Rep. at 5.

In his briefings and arguments before the Court, Mr. 

### Sharpe frames his argument before the BCNR in a different way. Mr. Sharpe first asserts that his argument before the Board focused on the fact that there was no "operational inconvenience" to giving him a trial by court-martial since he was on land andnever at sea, andthen argues thathis current argument before this Court focuses on the fact that he is entitled to the BAH rate for San Diego, CSP, and a CSP premium by way of his corrected record stating that he was continuously "assigned"to the CarlVinson from June 20, 2006 to February 12, 2017. Pl.'s Resp. at 2, 16; see also AR 129. Mr. 

### Sharpe further argues that the Government falsely equates the terms "assignment" and "attachment," that each ofthese terms mean separate and distinct things, and that he has maintained the same position with respect to whether he was "assigned" or "attached" to the Carl Vinson before both the BCNRand this Court. See Pl.'s Resp. at 16-18.
While at first glancethese arguments, as framed by Mr. 

### Sharpe to the Court, appear to be distinct enough to defeat any notion ofinconsistency, the administrative recordwhich this Court relies upon in making its decision-tells a wholly different story. Mr. 

### Sharpe's argument before the BCNR goes far beyond stating that there were no impediments to conducting a trial by court-martial since he was not physically serving on the Carl Vinson. To the contrary, the cruxofMr. 

### Sharpe's argumentbefore the BCNRlies in his explicit urging ofthe Board to ignore the technicality ofhis "on-paper assignment" to the ship and to instead focus on the realities ofhis physical relationship to the ship and the ship's operational status to determine that he did not fall within the vessel exception. Mr. 

### Sharpe's application to the BCNR states as much:
To be sure, no one disputes that the MCM says that 'aperson is "attachedto" or "embarkedin" avessel if

... [he] is assigned
or attached to the vessel.' What is disputed-and what the courts and the Board have clarified-is what 'attached to or embarked in a vessel' means, and the relevant authorities, which Code 20 fails to cite, have made clear that, contrary to

11the facial language of the MCM, the Art[icle] 15 [vessel exception] is to be applied not on the sole basis ofan on-paper assignmentto a ship,butonthebasis offacts thatestablishboth the nature of a member's relationship to a ship, and the operational-readiness status ofthe ship itself.

AR 132 (emphasis in original) (footnote omitted); see also id. at 129, 168. Now, before this Court, Mr. Sharpe starkly changes his tune. He now argues that this Court cannot ignore and must instead give full weightto the technicality ofhis formal assignment to the Carl Vinson, and that this "on-paper assignment" entitles him to the BAH rate for San Diego, CSP, andthe CSP premium. Pl.'s Resp. at 1-2. Simply put, Mr. Sharpe urged the BCNRto ignore his technical "assignment" to the ship in order to nullify his non-judicial punishment and correcthis record butnow urges this Courtto give full weightto 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,7 so he has changed his position accordingly. Mr. Sharpe's attempt to draw distinctions betweenthe meanings of theterms "assignment" and "attachment"does nothingto changethis analysis. Mr. Sharpe simply cannot urge the BCNRto ignore a technicality and then askthis Courtto give full weight to that same technicality after his interests have changed. See Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1565 (Fed. Cir. 1996). Thus, Mr. Sharpe's arguments are inconsistent and the Court finds that the first element ofthejudicial estoppel doctrine is satisfied.

2. Mr. Shame Persuaded the BCNRto Accept His Earlier Position.
The second element of the judicial estoppel doctrine looks to see if the party asserting inconsistent positions was successful in persuading a court or any other tribunal ofits first position, such that the acceptance ofthe second position by a subsequent court
or tribunal would "create the perception that either the first or second court [or tribunal]
was misled." New Hampshire, 532 U.S. at 750. This element is also met. After hearing and reviewing Mr. Sharpe's application, the BCNRagreed withMr. Sharpe's positionthat hewas notattachedto orembarked in the CarlVinson for purposes ofthe vessel exception. AR42. In so doing, the Board specifically accepted Mr. Sharpe's argument that it ignore his literal "on-paper assignment" and instead look to the realities ofhis relationship to the ship and the ship's operational status:
And in light ifthe DDC's remark, in the case referred to by Code 20 in enclosure (4), that vessel-exception cases 'have generally

... looked not to literal definitions but to multiple factors thataffectthepropriety ofallowingor denyingthe right to refuse mast,' the Board feels that the totality ofthis case's

7 Mr. Sharpe's interest before the BCNRwas to nullify his non-judicial punishment and correct his record, while his interest before this Court is to obtain monetary reliefrelated to his backpay. 12factual circumstances make it appropriateto applytheEdwards factors as a matter ofequity.
Id. It is clear that Mr. Sharpe persuaded the Board to ignore his technical and literal "assignment" to the ship; therefore, to persuade this Court that such a literal "assignment" shouldnowbe given full weightwouldcertainly create theperceptionthateitherthis Court
orthe BCNRwas misled. As such, the Court finds that the second element ofthejudicial estoppel doctrine is also satisfied.
3. Absent Judicial Estoppel, Mr. Sharpe Would Derive an Unfair Advantage.
The last element of the judicial estoppel doctrine considers whether the party asserting inconsistent positions would stand to derive an unfair advantage or impose an unfair detriment on the opposing party ifnot estopped. See New Hampshire, 532 U.S. at 751. Here, Mr. Sharpe stands to derive an unfair advantage ifhe is not estopped: he will avoid non-judicial punishment by arguing that his "on-paper assignment" to the Carl Vinsonwas practically meaningless since hewas sufficiently removed from the ship to fall outside the vessel exception, while gaining improper back pay allotments by arguing that this "on-paper assignment" conclusively entitles himto suchpay. While Mr. Sharpeplays semantic games in an attempt to undercut this conclusion, he is, in reality, doing nothing
more than "playing fast and loose with the courts." See U.S. Philips Corp. v. Sears Roebuck & Co., 55 F.3d 592, 596 (Fed. Cir. 1995). As such, the Court finds that the third element of the judicial estoppel doctrine is satisfied and thus, Mr. Sharpe is judicially estopped from taking inconsistent positions before the BCNRand this Court.
C. Alternatively, the Navv's Decision to Award Mr. Sharpe the BAH Rate for Norfolk, Virginia and Deny him CSP and the CSP Premium Was NotArbitrary
or Capricious, or Contrary to Law.

In the alternative, having determined thatjudgment on the administrative record is the proper procedural vehicle for resolving this case, the Court also finds that the Navy's decisionto awardMr. Sharpethe BAHrate for Norfolk, Virginia and to denyhim CSP and the CSP premium was not arbitrary or capricious, or contrary to law.
Rule 52.1 ofthis Court governs motions forjudgment on the administrative record. A review ofthis kind is like a paper trial based upon the documents assembled by the agency. The Court makes factual findings based upon the evidence presented in this record. See, e.g., Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005); Coastal Envtl. Grp., Inc. v. United States, 118 Fed. Cl. 1, 10 (2014). To review a motion under Rule 52.1, this Court must decide whether a partyhas met its burden ofproofbased
on the evidence in the record given all disputed and undisputed facts. Anderson v. United States, 111 Fed. Cl. 572, 578 (2013), aff'd (Fed. Cir. 13-5117, July 11, 2014); Bannum, Inc., 404 F.3d at 1356.

13In reviewing agency actions related to decisions ofmilitary correction boards, this Court must apply the standard ofreview set forth in the APA, 5 U.S.C. § 706. Under section 706(2)(A), this Court must "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law

...." Id. § 706(2)(A). The Court shall overturn an agency's decision only ifit determines that the decision was "arbitrary and capricious, unsupported by substantial evidence, or not in accordance with the applicable laws or regulations." Laningham, 30 Fed. CL at 310. Accordingly, as long as the agency's decision was reasonable and based upon substantial evidence, this Court will not disturb the result. Wronke v. Marsh, 787 F.2d 1569 (Fed. Cir. 1986); Van Cleave v. United States, 70 Fed. CL 674, 678-79 (2006).

Mr. Sharpe has the burden ofproving that the Navy's decision regarding his proper BAH rate and its denial of his CSP and CSP premium was arbitrary, capricious, unsupported by substantial evidence, or contrary to law. See Lewis v. United States, 458 F.3d 1372, 1376 (Fed. Cir. 2006). In his motion for summaryjudgment and subsequent filings before the Court, Mr. Sharpe first argues that the APA standard described above does not apply to this case, and then argues that he is entitled to the BAH rate for San Diego, CSP, and the CSP premium by way ofhis corrected record only, and without any further exercise ofdiscretion from the NPC. See PL's Mot. at 13-16, 65-87;PL'sResp. at 22-24. In its cross-motion for judgment on the administrative record, the Government counters thattheNavyproperly awarded Mr. Sharpe the BAHrate forNorfolk, Virginiathe Carl Vinson's home port at the time ofMr. Sharpe's unlawful separation-and also properly denied Mr. Sharpe CSP and the CSP premium, because both require that Mr. Sharpephysicallybe "atsea,"whichhewasnot. SeeDef.'sMot. at 19-24. Forthereasons discussed below, the Court finds that the Navy's decision was reasonable and that Mr. Sharpe has failed to meethis burden inproving otherwise.
1. The Navv Properly Determined that Mr. Sharpe Was Entitled to the BAH Rate for Norfolk, Virginia, Not SanDiego, California.

BAH is a variable, basic housing allowance awarded to service members eligible for basic pay in orderto address higher costs ofliving in certain geographic areas. See 37 U.S.C. § 403(a)(l); see alsoPl.'sMot. at 65-66. Itis undisputedthatMr. Sharpe is entitled to BAH, since he is also entitled to basic pay. Mr. Sharpe argues that he is entitled to the BAHrate ofwhereverthe Carl Vinson'shomeportwas duringthe length ofhis assignment to the ship, which lasted from June 20, 2006 to February 12, 2017, as reflected by his correctedrecord. See Pl.'sMot. at 65-69, 72. Followingthis logic, Mr. Sharpe claims that he is entitledto the BAHrate for SanDiego from April 1, 2010 to February 12, 2017, after the Carl Vinson'shomeport changed fromNorfolkto San Diego onApril 1, 2010. See id. at 65-77. Mr. Sharpe further argues that the NPC had no discretion or authority to recommend to DFAS thathis BAHrate bekept atthe lowerNorfolkrate, even though Mr.

14Sharpe did not physically relocate with the ship to San Diego and instead remained at his home in Virginiathroughout his separation. Id. at 59-65.
As bothparties note andthe Court agrees, the factual circumstances in this case are unlike any this Court has dealtwith in thepast. However, the Court sees no logical reason why Mr. Sharpe shouldbepaidthe higher BAHrate for San Diego when he at no time set foot in San Diego nor sought housing in San Diego. While Mr. Sharpe urges the Court to give full weighttohis "on-paper assignment" to the Carl Vinson and acceptthe fiction that he traveled with the ship from Norfolk to San Diego-andremained in San Diego for the past seven years-the Court will instead take the tack Mr. Sharpe successfully advanced before the BCNR: to look to factors beyond his literal "on-paper assignment" to the ship. Those factors show that Mr. Sharpe never moved with the ship to San Diego and never sought housing in San Diego betweenApril 1, 2010 and February 12, 2017.

EvenifMr. Sharpe hadnotbeenerroneously separated from theNavytobeginwith, hestill offersno evidencetoprovethathewouldhaveremained assignedtotheCarlVinson until February 12, 2017. In fact, on his own admission, Mr. Sharpe'srotationwiththe Carl Vinsonwas setto expire inJune 2008 and mostPAO officertour lengths only lastbetween 24to 36 months. Id. at 33, 43. Thus, to award him the higher BAHrate for San Diego for seven years would not only be illogical, but would also confer a substantial windfall on Mr. Sharpe and defeat the very purpose behind the regulations governing BAH: to aid service members in obtaining housing inthevicinity oftheirpermanent duty station and to help with corresponding cost-of-living expenses. See OPNAVINST 7220.12 CH-I 

## if 3;
see also Def.'s Rep. at 9. The Court therefore finds 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 ofhis unlawful separationwas not arbitrary or capricious, or contrary to law; rather, it was quite reasonable. See generally Holley v. United States, 33 Fed. Cl. 454 (1995); Ulmet v. United States, 17 Cl. Ct. 679 (1989), affd 935 F.2d 280 (Fed. Cir. 1991).
2. The Navv's Decision to Deny Mr. Sharpe CSP and the CSP Premium Was Likewise Reasonable.
CSP is an allowance for service members entitled to basic pay who are "assigned to" and "serving on" a ship. See 37 U.S.C. § 305a; see also Pl.'s Mot. at 79-80. A CSP premium is paidto those members who serve on sea duty for over 36 consecutive months. See 37 U.S.C. §305a(c). Mr. Sharpe arguesthatheis entitledto CSP andthe CSPpremium because his corrected record reflects his continuous assignment to the ship through February 2017, and whether he actually served on the ship through this time does not control whether he is entitled to such special pay. See Pl.'s Mot. at 25-26.
Like before, Mr. Sharpe looks to derive a windfall from a technicality he told the BCNR to ignore yet implores this Court to give full weight. The heart ofMr. Sharpe's

15argumenthere is thatbecause his correctedrecordreflects his continuous assignmentto the Carl Vinson, the Courtmust determine that he served onthe ship from October 1, 2009 to February 12, 2017 and is therefore entitled to CSP and the CSP premium. See id. at 79- 89. Again, the Court finds it illogical to award Mr. Sharpe CSP and the CSP premium when he never actually went to sea or performed any sea duties. The Court finds the Government's analogy to Boruski v. United States, 155 F. Supp. 320 (Ct. CL 1957), particularly persuasive. See Def.'s Mot. at 21. In Boruski, a five-judge panel of this Court'spredecessorheldthata service memberwas not entitledto "flightpay"because the member "did not participate in any aerial flight," which was imperative for entitlement to that pay. See Boruski, 155 F. Supp. at 324. The Court sees no reason not to extend this principle to sea pay for purposes of CSP and the CSP premium. Further, to award Mr. Sharpe CSP andthe CSP premium would again defeatthe purposes behind the regulations governing such pay: to recognize "the greater than normal rigors ofsea duty, the arduous duty involved in long deployments and the repetitive nature ofassignment to such duty." OPNAVINST 7220.14 

### if 3; see also Def.'s Rep. at 9. Mr. Sharpe did not experience these rigors; thus, itwas reasonable for the Navy to deny him this specializedpay.8 Additionally, Mr. Sharpe's reliance on Carlisle v. United States, 66 Fed. CL 627 (2005), for thepropositionthat entitlement to special dutypay is not controlled by whether
a service member actually performed special duty is misplaced. See id. at 637; Pl's Resp. at 26. In Carlisle, this Court held that whether a member of the Army was entitled to continue receiving "special duty assignment pay" was a decision for either the Secretary ofthe Army or the Army Board for the Correction ofMilitary Records to make. Carlisle, 66 Fed. CL at 639. In so holding, the Court relied on the Federal Circuit's decision in Groves v. United States, 47 F.3d 1140 (Fed. Cir. 1995). In Groves, the Federal Circuit determined that Mr. Groves, a member ofthe Army, was erroneously denied "special pay by virtue of[alater overturned] court-martial conviction and sentence." Id. at 1144. In its decision, the Federal Circuit noted: [i]t is inarguable that the special pay at issue here is awarded atthe discretion ofthe Secretary oftheArmy, and thatno court is qualified to review the substantive merits of a decision to deny it, so long as the decision comports with any procedural standards mandated by statute or regulation.

8 The Courtrecognizes that Mr. Sharpe was receiving CSP before his unlawful separation, despite the fact thathe was neither serving onthe shipnor outto sea. While the Court questionswhetherthis paymentwas propertobeginwith, thatissueis notbeforethe Courtandthus,theCourtwillnotdisturb thispre-separation payment.

16

### Id. (citations omitted). The Federal Circuitthennotedthatthe Secretary oftheArmy could have lawfully exercised its discretion to discontinue Mr. 

### Groves' special pay,9 

### but that no such discretion was exercised; rather, Mr. 

### Groves was deniedhis specialpayby some other
means. Id. The Court in Carlisle faced the same factual scenario:
As in Groves

...this court is not called upon to review whether the Secretary of the Amy correctly terminated plaintiffs [special duty assignment pay]. Rather, the issue is whether defendant has failed to comply with the first Board's recommendation

... that plaintiffshould receive 'restoration of all rights and privileges, including all back pay and allowances.' Carlisle, 66 Fed. CL at 637. The factual scenarios described above are notcurrentlypresent in the case before this Court; rather, this Court 

### is being called upon to review the decision of the Navy-through the NPC and DFAS-to deny Mr. 

### Sharpe CSP and the CSP premium. As the Court explains above, theNavy's decision was reasonable and the Court will not disturb the Navy's lawful exercise of discretion denying Mr. 

### Sharpe these categories ofspecialized seapay.
D. A Remand to the BCNR or Any Other Applicable Subdivision ofthe Navy Is NotNecessary. Finally,the Courtnotesthatthere are no gaps inthe administrativerecordthatwould preclude it from reaching its conclusions or enteringjudgment in this case. Accordingly, the Court finds that aremand to the BCNRor any other applicable subdivision ofthe Navy is not necessary.
Conclusion
In sum, for the foregoing reasons, the Court finds that (1) judgment on the administrative record is the proper procedural vehicle for resolving this case; (2) Mr. 

### Sharpe isjudicially estopped from making inconsistent arguments before the BCNR and this Court; and (3) the Navy's decision to award Mr. 

### Sharpe the BAH rate for Norfolk, Virginia and to deny him CSP and the CSP premium was not arbitrary or capricious, or contrary to law. Mr. Sharpe has received the appropriate amount ofback pay in light of his corrected record and is entitled to nothing further. The Court therefore GRANTS the Government's cross-motion forjudgment on the administrative record and DENIES Mr.

9 The Federal Circuit's holding here also cuts against Mr. Sharpe's argument thatthe NPC, by way ofthe "Bourne Memorandum," had no discretion to make recommendations to DF AS concerningthe calculation ofMr. Sharpe's backpay and allowances. See Pl.'s Mot. at 46-51. 17

### Sharpe's motion for summaryjudgment. The Clerk shall enterjudgment in favor ofthe Government. No Costs.

IT IS SO ORDERED.

18 

# L-

# c1JJviL

THOMAS C. WHEELER 

### Judge