# ORIGINAL

1fn tbe Wniteb**~tates** 

# (!Court ofjf 

# eberal (!Claims

MCCLENDON N. WATERS, III,
Plaintiff ,



### v
. (Pro Se) No

. 17-699C Filed: July 31, 2018 Keywords: Military Records Correction; Voluntary Retirement; SECNA VINST 1920.6C; Board ofInquiry; Non-Judicial Punishment; BCNR; Retirement Grade; Retirement Pay.

THE UNITED STATES OF AMERICA, ) ) ) 

### ) ) ) ) ) ) ) 

# FILED JU L 312018 Defendant.**~~ ~~~~** **~~ ~~~** **~~ ~~)**  U.S

. COURT OF FEDERAL CLAIMS
McClendon N Waters, III, 

### Tampa, FL, Plaintiffprose.
Veronica 

### N Onyema, 

### Trial Attorney, Commercial Litigation Branch, Civil Division, U

.S. Department ofJustice, Washington, D.C., with whom were Tara K. Hogan, 

### Assistant Director, Robert

### E. Kirschman, Jr

., 

### Director, and ChadA. Readier, 

### Acting Assistant Attorney General, for Defendant. Lt. Cmdr. Adam 

### E. Inch, 

### U.S. Navy Office ofthe Judge Advocate General, Of Counsel.


### OPINION AND ORDER KAPLAN, Judge.
ProseplaintiffMcClendonN. Waters, III is a retired officer ofthe United States Marine Corps. During Mr. Waters's service, a Marine Corps investigation determined that he had engaged in an inappropriate relationship with the wife ofa service memberunder his command. As a result, the Marine Corps imposednon-judicial punishment for conductunbecoming an officer and a gentleman. It

### then began separateproceedings to determine whether Mr. Waters should r emain a Marine

. Mr. Waters chose to voluntarily request retirement rather than go through those proceedings. The Secretary ofthe Navy granted Mr. Waters's request, but retired him at the lesser grade ofmajor, rather than at the rank oflieutenant colonel, whichhe then held.
A few years later, Mr

. Waters challenged the Secretary's decision to retire him at a lesser grade before the Board for Correction ofNaval Records. The Board rejected his claims and Mr. Waters filed suithere. He asserts that the Marine Corps failed to follow the applicable Navy instruction for processing his retirement request and that he should have been retired as a lieutenant colonel. Consequently, he alleges that the Board erred in failing to correcthis records

. The matter is now before the Court on the government's motionto dismiss for failure to state a claim, its alternative motion forjudgment on the administrative record, and Mr. Waters's

7012 3460 0001 7791 7890cross-motion forjudgment onthe administrative record. Forthe reasons set forth below, the Court finds that the military retirement statutes provide it withjurisdictionover Mr. Waters's claims. To the extentthat Mr. Waters is also pressing claims under the Military Pay Act, the Court agrees with the government that those claims mustbe dismissed in light ofhis voluntary decision to retire. Finally, it holds that onthe merits ofMr. Waters's claims under the retirement statutes, the Board's decision was not arbitrary or capricious or contrary to law. 

### BACKGROUND
I. Mr. Waters's Service in the Marine Corps
Mr. Waters enlisted inthe United States Marine Corps in 1984. Admin. R. (AR) Tab 1 at 3; see also id. at 40. During his service, his primary specialty was as an intelligence officer. Id. at 68. In 2008, Mr. Waters, then a lieutenant colonel, was selectedto command the Marine Cryptologic Support Battalion. Id. at 115.
In 2010, while Mr. Waters was the commanding officer ofthat battalion, the Marine Corps received an allegation thathe "was involved in an inappropriate personal relationship" with the wife ofa Marine Corps gunnery sergeant, and thatMr. Waters was also married at the time. See id. Tab 4 at 420. As a result ofthe allegation, the Marine Corps relieved Mr. Waters of command on September 3, 2010. Id. Tab 1 at 117. Italso began aninvestigation into the allegations ofmisconduct. Id. Tab 4 at 419-25.
The investigating officer substantiated the allegation made against Mr. Waters in a report issued later that month. Specifically, he concluded that while Mr. Waters "was married," he "engaged in and maintained a relationship of [a] []sexual nature with" the wife ofa Marine Corps gunnery sergeant. Id. at 424. The investigating officerbased his conclusions upon, among other things, statements from the individuals involved, a review ofthe service histories ofboth Mr. Waters and the gunnery sergeant, and transcripts ofonline conversations. See id. at 419-24. He recommendedthat Mr. Waters be charged with a violation ofthe Uniform Code ofMilitary Justice (UCMJ), Article 133, entitled ConductUnbecoming an Officer and a Gentleman. Id. at 425. The investigating officer recommendedthat the charge be basedupon his finding that "betweenDecember 2008 and the presenttime, while married, [Mr. Waters] established and maintained an in appropriate [sic] relationship of [a] []sexual nature with a woman otherthanhis wife and a womanthat he knewto be married," and did so "as an enlisted Marine." Id. 1

1 The investigating officer concluded thatthere was insufficient evidence to prove adultery pursuant to the General Article, Article 134, ofthe UCMJ. ARTab 4 at424. According to the Manual for Courts-Martial, a charge ofadultery under Article 134 has three elements: 1) "[t]hat the accused wrongfully had sexual intercourse with a certainperson"; 2) "[t]hat, at the time, the accused orthe otherpersonwas marriedto someone else"; and 3) "[t]hat, under the circumstances, the conduct ofthe accused was to the prejudice ofgood order and discipline in the armedforces or was ofa nature to bring discredit uponthe armed forces." Manual for CourtsMartial United States

## iJ 62(b) (2016), https://jsc.defense.gov/Portals/99/Documents/ MCM2016.pdf?ver=2016-12-08.

2

### II. Non-Jndicial Pnnishment and Referral to Board ofInquiry
On October 5, 2010, the commanding officer ofthe Marine Corps Intelligence Activity, Colonel Dimitri Henry, endorsed the investigative report and "recommend[ed] approval ofthe findings offact, opinions, and recommendation ofthe investigating officer." Id. at 418. The commander ofMarine Corps Base Quantico then gave his endorsement on October 7, 2010. Id. at 417. On October 14, 2010, the commanding general ofthe Marine Corps Combat Development Command, George J. Flynn, provided a third endorsement. Id. at 416. Lieutenant General Flynn stated that he "approve[d] the recommendation that Lieutenant Colonel Waters be subject ofnonjudicial punishment" and that he would "provide notification ofnonjudicial punishment under separate cover." Id. at 416. He did so that same day. See id. Tab 1 at 117.2


### On November 15, 2010, Lieutenant General Flynn convened a hearing to consider nonjudicial punishment ofMr. Waters based upon the conduct set out in the investigator's report. Id. Tab 5 at 432-37. He advised Mr. Waters that he was:

Id. at 433. [C]harged with committing

... [ v]iolation ofthe [UCMJ], Article 133, conduct unbecoming an officer and a gentleman; inthat you, a manied man on active duty as the Commanding Officer of [the] Marine Cryptologic Support Battalion, did on diverse occasions at various locations from August 2008 through September 2010 wrongfully engage in an inappropriate relationship with

. . . a ma1Tied woman, the wife ofa Marine Corp Gunnery Sergeant, that
was unduly familiar, personal, romantic, [and] sexual.

Mr. Waters stated thathe understood the charge. Id. He also confirmed that he understood his legal rights, including the right to be advised by counsel. See id. at 434; see also id. at 428. Mr. Waters did not offer any evidence at the hearing. When asked ifhe was "admittingthat [he] did it," Mr. Waters stated that he took "responsibility for [his] actions." Id. at 434. Lieutenant General Flynn clarified by asking Mr. Waters whether he "admit[ted] that [his] conduct was unbecoming an officer and a gentleman, and that [he] had an inappropriate relationship with [the] wife ofa Gunnery Sergeant who was [his] subordinate." Id. at 435. Mr. Waters responded "[y]es, sir." Id.

2 

### Non-judicial punishment is one ofa number ofoptions available to military authorities to address offenses committed by service members. Dumas v. United States, 620 F.2d 247, 250-53 (Ct. Cl. 1980). Set out in Article 15 ofthe UCMJ, the non-judicial punishmentprocess is the least formal option and is conducted by an accused's commanding officer. Id. at 251. The proceeding is not criminal in nature and no formal evidentiary standards apply. Id. An 

### accused service member maypresent evidence to his commanding officer. Id. 

### Ifthe commanding officer is convinced that the service member committedthe offense, he may impose certain limited punishments, including forfeiture ofpay. Id. at 251-52. An 

### accused service member has the right to electto proceed instead with a formal court martial. Id. at 251; see also 10 U.S.C. § 815.

3As a result, Lieutenant General Flynn imposed non-judicial punishment inthe fonn ofa letter ofreprimand and the forfeiture ofa portion ofMr. Waters's pay for two months. Id. He then informedMr. Waters ofhis appeal rights and ended the hearing. Id. at 436. Mr. Waters did not appeal the imposition ofnon-judicial punishment.
OnNovember 24, 2010, Lieutenant General Flynnprepared a report onthe matter for the Commandant ofthe Marine Corps. Id. at 427-28. In it, Lieutenant General Flynn stated that "this incidenthas provided evidence ofpoordecision-making and a complete failure ofleadership." Id. at 428. He opined that "amarried Marine officer who engages in a sexual relationship with an enlistedMarine's wife is appalling." Id. Accordingly, Lieutenant General Flynn wrote that he had "determined that Lieutenant Colonel Waters['s] knowing and willful disregard for the oath ofoffice should bar him from continued service as a Marine officer," and that "as the designated showcause authority for the Marine Corps, [he would] direct that Lieutenant Colonel Waters be required to show cause for retention inthe Marine Corps at a Board ofinquiry." Id. 3


### III. Mr. Waters's Request to 

### Retire
OnNovember 24, 2010, the same day that Lieutenant General Flynn prepared his report, he sent a "Notification ofBoard ofinquiry" to Mr. Waters. Id. Tab 1at140. The notice stated that "aBoard ofinquiry will be convened to make a recommendation on [Mr. Waters's] retention inthe U.S. Marine Corps" based upon his conduct and the non-judicial punishment. Id. It continued that "[t]he specific reasons for separationto be considered by the Board [are] misconduct and moral orprofessional dereliction ofduty, as evidencedby commission ofa military or civilian offense which could be punishedby confinement of6 months or more." Id. The notice also informed Mr. Waters that as "aretirement-eligible officer, if [his] retirement [was] recommended, the Board [would] also recommend whether [he] should be retired in the current grade or a lesser grade." Id. at 140-41. That decision, however, ultimately "rest[ed] with the Secretary ofthe Navy." Id. at 141. Finally, the notice informed Mr. Waters that he wouldbe provided the opportunity to prepare and present a case to the Board ofInquiry. See id.
Sometime shortly thereafter, Mr. Waters inquired, through counsel, concerning the procedures that would apply ifhe chose to voluntarily retire rather thanproceeding before the Board ofinquiry. See id. Tab 14 at 934-35. OnNovember 29, 2010, a colonel inthe StaffJudge Advocate's office ofthe Marine Corps Combat Development Command responded by directing Mr. Waters to "paragraph2.c. ofenclosure (6) ofSECNAVINST 1920.6C." Id. at 934. He advised that the cited section "would indicate that [Mr. Waters] gets an opportunity for a rebuttal if [the commanding general] adds any new factual material" inhis recommendation to the

3 

### Ifa service member's perfo1mance falls below duty standards, the Secretary ofthe Navymay require that service memberto show cause before a Board ofInquiry as to why he or she should be retained on active duty. See 10U.S.C.§l18l(a). A Board ofinquiry "receive[s] evidence and make[s] findings and recommendations as to whether an officer

... should be retained on active duty." Id. § l l 82(a). The Secretary ofthe Navy is then permittedto remove an officer from active duty iftheboard so recommends. Id.§ 1184. Alternatively, "[a]t any time during proceedings

... with respect to the removal ofan officer from active duty," an officer, if otherwise qualified, may request voluntaryretirement. Id. § l l 86(a).

4Secretary regarding the grade at which Mr. Waters would be retired. Id. at 934-35. He cautioned, however, thatMr. Waters would not get an opportunityto rebut any recommendation that was based solely onthe material ofrecord. Id. at 935. The colonel also advised that the Marine Corps "has included comments submitted by a respondent to an endorsement in the past," but that there
was "no right to do so." Id.
OnDecember 21, 2010, Mr. Waters wrote to the Assistant Secretary ofthe Navy for Manpower and Reserve Affairs, stating thathe was submitting a "voluntary request to retire in lieu offurther processing for administrative separationfor cause." Id. Tab 8 at 446. He stated that he "underst[oo]dthat a board ofinquiry [would] notbe convenedto recommend [his] retirement grade to the Secretary ofthe Navy," that his "request [was] purely voluntary," and that "once submitted, [it could] onlybe withdrawn withthe permission ofthe Secretary ofthe Navy." Id. Mr. Waters also acknowledged that the Secretary "has the plenary authority to determine the last grade inwhich [he] served satisfactorily, and may determine that [he] retire in
a lesser pay grade" than the one he held at that time. Id. at 447. Further, Mr. Waters again admitted to engaging inthe affair with the gunnery sergeant's wife. See id. Finally, Mr. Waters notedthathis request was "madeinconsultation with Mr. Greg Rinckey, ESQ, and Mr. Yancey Ellis, ESQ," as well as "Major Yong Lee, USMC, Senior Defense Counsel." Id.
The commander ofMarine Corps Base Quantico endorsed Mr. Waters's retirement request onJanuary 3, 2011, and forwarded itto Lieutenant General Flynn. Id. at 444--45. In a January 13, 2011 endorsement, Lieutenant General Flynn summarizedthat "an investigating officer [had] investigate[d] allegations ofan inappropriate personal relationship between Lieutenant Colonel Waters

... and the wife ofa gunnery sergeant within his command" and that the "investigating officer opined that Lieutenant Colonel Waters was involved in an adulterous relationship." Id. at 444. Lieutenant General Flynnrecommended approval ofMr. Waters's retirementrequest, but at the rank ofmajor, not lieutenant colonel, concluding that the former
was the "the last rank [Mr. Waters] satisfactorily held." Id.
OnMarch 1, 2011, the Deputy Commandant ofthe Marine Corps for Manpower and Reserve Affairs issued a third endorsement. Id. Tab 7 at 441. He also summarizedthe prior proceedings and Mr. Waters's conduct. Id. at 441--42. The deputy commandant similarly recommended that Mr. Waters "beretired inthe lesser grade ofmajor." Id. at 442. Mr. Waters's retirementrequest and all three endorsements were then forwarded to the Office ofthe Secretary ofthe Navy for decision. See id. Tab 14 at 918-20.
OnApril 4, 2011, the Assistant Secretary ofthe Navy for Manpower and Reserve Affairs approved the recommendations contained inthe endorsements and stated that "Lieutenant Colonel Waters is voluntarily retired inthe lesser grade ofmajor." Id. Tab 7 at 443. Mr. Waters
was notified via email two days later. Id. Tab 14 at 767-68. His separation was to become effective May 31, 2011. See id. Tab 1at68.
On May 30, 2011, at 1:45pm, Mr. Waters emailed the Department ofthe Navy's Office ofGeneral Counsel. Id. Tab 14 at 779. He statedthathe had "reasonto believe" his case had

· been "mishandled at multiple levels" and thathe "intend[ed] to address potential procedural

defects via the Board ofCorrections for Naval Records." Id. at 780. Mr. Waters also informed the Navy's Office ofGeneral Counsel that he had recently received new informationthat

5"raise[ d] deep concerns ofpossible prejudicial activity andunlawful command influence by individuals responsible for handling and disposing of [his] case." Id. He notedthat he had originally sent notice ofthese concerns to the Marine Corps's inspector general, but now understood "that onlythe separation authority [i.e., the Secretary ofthe Navy] has the powerto take action." Id. Mr. Waters thus requested "an emergency delay in [his] retirement until [he could] formally present grievances to SECNAV." Id.
The Navy did not take any immediate action in response to Mr. Waters's May 30, 2011 email andhis retirement became effective as scheduled. See id. at 777-79. Mr. Waters was thus separated from the Marine Corps on May 31, 2011. Id. Tab 9 at 485.4


### IV. Proceedings Before the Board for Correction ofNaval Records
OnMay 29, 2014, Mr. Waters submitted an application for correction ofhis military records to the Board for Correction ofNaval Records (BCNR or Board). Id. Tab 13 at 501. He asserted error based on"[u]nlawful command influence & prejudicial activity within chain of command"; "unfounded chain ofcommand endorsement"; and"[ n]oncompliance with SECNA VINST 1920.6C" through "failure ofnotification and right to review upon newmaterial added by govermnent." Id. Mr. Waters did not seekreinstatement; instead, he soughtto have his records changedto reflect retirement as a lieutenant colonel. Id. He also sought the removal of "derogatory language" from his service record. Id.
Inthe supporting documents Mr. Waters submitted with his application, he alleged that the Marine Corps failed to comply with enclosure six to SECNA VINST 1920.6C. Id. at 532. That instrnction sets forth certainprocedures the Marine Corps must follow in handling voluntary requests for retirement. See Def.'s Mot. to Dismiss, Alternative Mot. for J. onthe Adrnin R., and Opp'nto Pl.'s Mot. to Suppl. the Admin. R. (Def.'s Mot.) Ex. A, DocketNo. 22. Accordingto Mr. Waters, the Marine Corps violated the instruction when it did not notify him in advance that his retirementrequest was being submitted to the Secretary ofthe Navy, did not give him an opportunityto review the package that wentto the Secretary, and did notprovide him an opportunity to rebut what he characterized as newfactual material that Lieutenant General Flynn had provided. ARTab 13 at 532-41. He also asserted that the Marine Corps failed to considerthe required factors set out inthe instructionfor determining satisfactory service in the grade currentlyheld. Id. at 543.
Mr. Waters further asserted, among otherthings, that the command investigation into his conduct was "taintedby crime, prejudicial activity & unlawful command influence." Id. at 553- 54 (capitalization altered). He also challenged as improper the conduct ofcertain superior officers during the investigation and highlighted alleged discrepancies inthe investigation report. Id. at 557-65.

4 It appears that inJune 2011, Mr. Waters's inquiry to the Navy's Office ofGeneral Counsel was referred backto the Marine Corps. See AR Tab 14 at 777. The record does not indicate what, if anything, the Marine Corps did inresponse.



### 6Over a year later, on July 14, 2015, and after Mr. Waters wrote to the BCNRregarding the status ofhis case, the Board requested an advisory opinion from the Commandant ofthe Marine Corps regarding the validity ofMr. Waters's allegations and whetherhis record should be con-ected to reflectretirement at the grade oflieutenant colonel. Id. Tab 10 at 488. On August 4, 2015, the head ofthe Marine Corps's Military Personnel LawBranch, Lieutenant Colonel S.D. Schrock, responded, recommending that the BCNR deny Mr. Waters's request. Id. Tab 15 at 977-83. Lieutenant Colonel Schrocknoted that Mr. Waters had accepted non-judicial punishment without appeal and admitted that he engaged in the conduct charged. Id. at 981. He then opined that Mr. Waters had misinterpreted the procedural requirements ofSECNAVINST l920.6C by relying upon provisions that were applicable "to voluntaryretirementrequests from 'officers who have beenthe subject ofany substantiated adverse finding or conclusion from an officially documented investigation or inquiry,"' as opposedto provisions applicable to those, like himself, who were "being considered for administrative show causeproceedings." Id. at 982 (quoting Enclosure 6 to SECNA VINST l920.6C).5
Further, Lieutenant Colonel Schrock observed that evenunder the applicable portion of the instruction, Lieutenant General Flynn's endorsement did not trigger any fmther procedural protections for Mr. Waters because Lieutenant General Flynnhadnot, in fact, added any new factual material inhis endorsement. Thus, he asserted that Lieutenant General Flynn's use ofthe word "adulterous" "reflect[ed] the common, rather than legal, usage ofthe word," and therefore did not constitute newfactual material. See id. at 982-83. He similarly rejected Mr. Waters's challenge to Lieutenant General Flynn's characterization ofthe gunnery sergeant as being "within his command" because the record reflected that the gunnery sergeant was Mr. Waters's subordinate. Id. at 983.
OnNovember 30, 2015, the BCNRissued its decision, finding "the evidence submitted
was insufficient to establishthe existence ofprobable material error or injustice." Id. Tab 3 at 394. Itobserved that Mr. Waters had neither demanded trial by court martial with respect to the charges against him nor appealed the imposition ofnon-judicial punishment. Id. at 395. The Board also highlighted that Mr. Waters voluntarily submitted his retirement request and acknowledged that the Secretary oftheNavy hadplenary authority to determine the last grade in which he satisfactorily served. Id. Further, the Board stated that the contentions Mr. Waters raised "were not sufficient to wanantrelief, giventhe seriousness of[his] misconduct whichresulted in [his] relieffor cause, NJP, and a punitive letter ofreprimandbased on a loss oftrust and confidence, conduct unbecoming an officer, and disregard for the officer oath ofoffice." Id. at 396. Itfound thathis contention ofunlawful command influence was without merit because the non-judicial punishment was supported legally and factually by the record. Id.
The Board also rejected Mr. Waters's argument regarding the Marine Corps's failure to follow the procedures set forth in SECNA VINST l920.6C, agreeing with the Marine Corps that

5 Lieutenant Colonel Schrock also observedthatMr. Waters's request was untimely because it
was filed more than three years after his non-judicial punishment, but noted that the Board had authority to waive that defect. See AR Tab 15 at 980.

7the provision on which Mr. Waters relied was not applicable to him. Id. (stating that Mr. Waters's "contention [was] based on policy not germane to [his] case"). And under the applicable provision, the Board also agreed with the advisory opinionthat Lieutenant General Flynnhad not "introduce[ d] newmatter" when he used the word "adulterous" in its colloquial rather than legal sense, and that Mr. Waters was already onnotice ofthe facts supporting that usage-i.e., ofthe relationship's existence and the fact that he conducted it with a married
woman. Id. at 396-97. Similarly, it determined that the use ofthe phrase "within his command" to describe the gunnery sergeant "was not [a] new matter" because "the phrase 'under his command' [was] used in an approved finding offact." Id. at 397 (alteration omitted). Finally, the BCNR concluded thatbecause Mr. Waters had admitted to conduct unbecoming an officer and a gentleman, the record did not support his contentionthat he should have beenretired at the grade oflieutenant colonel. Id.


### V. This Action
On May 25, 2017, Mr. Waters filed a prose complaint inthis Court. Comp!., DocketNo. 1. He challenges the Board's refusal to correcthis records to reflect retirement at the grade of lieutenant colonel onthe ground that the Marine Corps violated Enclosure 6 to SECNA VINST 1920.6C. See id. '1!'1! 25, 39, 46, 68-70. Asthe Court reads his complaint, Mr. Waters primarily asserts that the Marine Corps violated paragraph 2 ofthe instruction by inserting new "factual material" into the record presented to the Secretary ofthe Navy withhis retirement request withoutproviding him withthe opportunity to review and commentonthe same. See id. 

### '1!'1! 21, 68. He also attacks the Marine Corps's alleged failure to comply withthe forwarding procedures and written notification and rebuttal requirements ofparagraph 1 ofthe instruction. See id. 

### '1! 68. Inlight ofthese asserted flaws, he argues that the BCNR erredby failing to correct his records. Id. 

### '1! 71. Mr. Waters seeks c01Tection ofhis records to reflect retirement at the grade oflieutenant colonel, expungement of"all correspondence related to the command investigation, NJP, and administrative separation," and $67,905.50, representing the difference between whathe has received inretirement pay and whathe would have received had he beenretired at the rank of lieutenant colonel. See id.
The goverrnnent filed the administrative record on August 24, 2017. DocketNo. 8. Mr. Waters filed a motion to supplementthe record on December 1, 2017. DocketNo. 16. OnMay 3, 2018, the goverrnnent filed a motion to dismiss pursuantto Rule 12(b)(6) ofthe Rules ofthe Comi ofFederal Claims (RCFC), and inthe alternative, a motionforjudgment on the administrative record, as well as an oppositionto Mr. Waters's motion to supplementthe record. DocketNo. 22. On June 4, 2018, Mr. Waters filed an oppositionto the government's motion, and, givinghis filing a liberal reading inlight ofhis prose status, a cross-motion forjudgment on the administrative record. DocketNo. 25.


### DISCUSSION
I. Subject Matter Jurisdiction
Pursuantto the Tucker Act, the United States Comi ofFederal Claims hasjurisdictionto "renderjudgmentupon any claim against the United States founded either upon the Constitution,
or any Act ofCongress or any regulation ofan executive department, or upon any express or

8implied contract with the United States, or for liquidated orunliquidated damages in cases not sounding intort." 28 U.S.C. § 149l(a) (2012). The Tucker Act serves as a waiver ofsovereign immunity and ajurisdictional grant, but it does not create a substantive cause ofaction. Jan's Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). A plaintiff, therefore, must establishthat "a separate source ofsubstantive law

... creates the right to money damages." Id. (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevant part)).
Mr. Waters asserts that this Comi hasjurisdiction overhis claims pursuant to the Military PayAct, 37 U.S.C. § 204. Comp!. at 2. But while that statute is money-mandating, Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006), Mr. Waters does not appear to be seeking reinstatementto the military, nor does he appearto be requesting an award ofback pay based on a theory that the Marine Corps erredby removing him from active duty. Instead, he is seeking an increase inhis retirement benefits and a corresponding correction ofhis records. His claims are therefore based on 10 U.S.C. 

### § 6323(e), under which an eligible Marine Corps officer is "entitledto retired pay," and on 10 U.S.C. § 1370, which requires that such an officer "be retired inthe highest grade in which he served on active duty satisfactorily, as determinedbythe Secretary ofthe military department concerned, for not less than six months." The Court ofFederal Claims "possessesjurisdiction over military retirement pay claims based not onthe MilitaryPay Act, but onthe applicable retirement pay statutes." Piotrowski v. United States, No. 13-760C, 2014 WL 7476033, at *8 (Fed. Cl. Dec. 30, 2014) (citing cases), affd, 722 F. App'x 982 (Fed. Cir. 2018) (per curiam); see also Lewis v. United States, 458 F.3d 1372, 1376 n.2 (Fed. Cir. 2006) (stating that "[r]etirement pay claims are brought under othermoney-mandating statutes" such as "10 U.S.C. §[] 6323"); Randolph v. United States, 179 Ct. Cl. 425, 426-33 (1967) (per curiam) (deciding onmerits plaintiffs claim that he was wrongfully retired at a lesser grade); Robe1is v. United States, 151 Ct. Cl. 360, 361- 66 (1960) (deciding on summaryjudgmentplaintiff's claim that he was retired at an incorrect, lesser grade). Accordingly, the Courthas Tucker Actjurisdiction over Mr. Waters's claims seeking a correction ofhis records to reflect retirement at the grade oflieutenant colonel, rather thanmajor.


### II. Motion to Dismiss
The governmenthas filed a motionto dismiss Mr. Waters's claims to the extentthat they
are based onthe Military Pay Act. As noted, this Court is ofthe viewthatthe properbasis for its jurisdiction in this case lies inthe militaryretirement statutes, notthe Military Pay Act. But assuming that Mr. Waters is attempting to state a claimthat arises underthe Military Pay Act, the Court agrees withthe governmentthathe has failed to do so.
As bothparties recognize, where a former service member seeks reliefpursuantto the Military Pay Act, he or she must sufficiently allege (and ultimately demonstrate) thathis or her discharge was involuntary. Metz, 466 F.3d at 999. Mr. Waters fails to do so.
As noted, Mr. Waters admits that he submitted a request to voluntarilyretire to avoid facing a Board ofInquiry, whichmighthave ledto his involuntary separation for cause. He



### 9submitted the request in consultation with counsel, and with the knowledge that it could only be withdrawn with the permission ofthe Secretary ofthe Navy. Comp!. 

## ifil 24-25, 28-29. His request was ultimately granted. Nevertheless, he argues thathis retirement should not be considered voluntary. He first points to the email he sent to the Navy's General Counsel onthe day before his retirement became effective. See Pl.'s Resp. to Def.'s Mot. to Dismiss, Alternative Mot. for J. on the Admin. R., & Opp'n to Pl.'s Mot. to Suppl. the Admin. R. (Pl.'s Resp.) at 35, DocketNo. 25. In that email, Mr. Waters raised concerns about allegedly improper command influence and other "prejudicial activity" inthe handling ofhis non-judicial punishment and asked for a delay inhis retirement to allow him to presentthose concerns (whichhe had already raised with the inspector general) to the Secretary. See ARTab 14 at 779-80.
But Mr. Waters's eleventh-hourrequest did notrender his retirement involuntary. First, he did not actually ask thathis retirementrequest be withdrawn or otherwise indicate he no longer wished to retire. Rather, he asked for an "emergency delay" ofhis retirement so thathe could presentthe grievances he had putbefore the inspector general to the Secretary ofthe Navy. Id. at 780. Second, to the extentMr. Waters was attempting to withdrawhis voluntary retirement request, the attempt was ineffective because it was not made in compliance withthe Navy's instructionthathe pose any such request directly to the Secretary ofthe Navy-arestriction Mr. Waters explicitly acknowledged when he submitted his voluntary retirementrequest. See id. Tab 8 at 446; see also Def.'s Mot. Ex. A at 4 (Enclosure 6 to SECNAVINST 1920.6C, 

## if 2(a)(5)). Instead, Mr. Waters sentthe email to the Navy's Office ofGeneral Counsel. See ARTab 14 at 779-80. And finally, to the extentMr. Waters canbe deemed to have effectively soughtto withdraw his retirement request, that effort does not affect the voluntary nature ofthe initial request, because the decision whether to grant the withdrawal lies solely withinthe discretion of the Secretary. Scarseth v. United States, 52 Fed. Cl. 458, 474-75 (2002). 6

In sum, the Courthas no basis upon which to conclude thatMr. Waters's voluntary retirement was somehow ineffective. The government's motionto dismiss any Military PayAct
causes ofaction for failure to state a claim is therefore 

### GRANTED.


### III. Cross-Motions for Judgment on the Administrative Record
A. Standard ofReview
The Court ofFederal Claims reviews decisions ofmilitary correctionboards based upon the administrative record. Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009). Parties

6Mr. Waters also appears to argue thatthe voluntariness ofhis retirementrequest was vitiated by what he characterizes as misrepresentations in Lieutenant General Flynn's endorsementnamely, his statement that Mr. Waters had engaged in an "adulterous" relationship and that the relationship was with the wife ofa service memberwho was "withinhis command." Pl.'s Resp. at 27. But that endorsement was not written until weeks after Mr. Waters requested retirement; it thus did not affect his decision to retire. Moreover, and in any event, as discussed in more detail below, the comments Lieutenant General Flynn made were not misrepresentations.

10may move forjudgment on the administrative record pursuantto RCFC 52.1. In deciding a motion pursuant to RCFC 52.1, the court makes "factual findings

... from the record evidence as ifit were conducting a trial onthe record." Bannum, Inc. v. United States, 404 F.3d 1346, 1357 (Fed. Cir. 2005). Thus, "resolution ofa motionrespecting the administrative record is akin to an expedited trial onthe paperrecord, and the Court must make fact findings where necessary." Baird v. United States, 77 Fed. Cl. 114, 116 (2007). The Court's inquiry is "whether, given all the disputed and undisputed facts, a partyhas met its burden ofproofbased on the evidence in the record." A&D Fire Prot., Inc. v. United States, 72 Fed. CL 126, 131 (2006). Unlike a summaryjudgmentproceeding, genuine issues ofmaterial fact will not foreclosejudgment on the administrative record. Bannum, Inc., 404 F.3d at 1356.
The Courtreviews the administrative record to determine whether a board's decision is arbitrary, capricious, unsupported by substantial evidence, or contrary to law. See Chappell v. Wallace, 462 U.S. 296, 303 (1983) (noting that a decision ofthe Board for the Correction of Naval Records is "subjecttojudicial review" and maybe set aside ifit is "arbitrary, capricious or notbased on substantial evidence"); Barnick v. United States, 591 FJd 1372, 1377 (Fed. Cir. 2010). The scope ofthisjudicial review is a deferential one. See Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983). The arbitrary and capricious standard ofreview "does not require a reweighing ofthe evidence, but a determination whether the conclusionbeingreviewed is supportedby substantial evidence." Id. at 1157 (emphasis in original). In determining whether the conclusion is supportedby substantial evidence, "all ofthe competent evidence must be considered

... and whether or not it supports the challenged conclusion." Id. (emphasis omitted). Substantial evidence is "such relevant evidence as a reasonable mindmight accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). This Court maynot "substitute [its]judgmentfor that ofthe military departments whenreasonable minds could reach differing conclusions on the
same evidence." Heisig, 719 F.2d at 1156 (footnote omitted).


### B. Mr. Waters's Motion to Supplement the Administrative Record
As noted above, Mr. Waters has moved to supplementthe administrative record. He primarily seeks to introduce documents that he received inresponse to FOIA requests he made after the Board issued its decision. These documents include, among others, materials related to the inspector general's investigation ofalleged misconduct by the gunnery sergeant with whose wife he had an affair, news reports, photographs, a variety ofgovernment directives related to access to classified information, and internal Marine Corps documents. Mr. Waters argues that these documents should be admitted into the record to substantiate his allegations that the "the government, at multiple levels, engaged in selective ethics and prosecution, investigative misconduct, unlawful command influence, infringement ofcivilian privacy and rights, and wrongheaded endorsements." Mem. ofP. & A. in Supp. ofPL Mot. to Suppl. the Admin. R. at 1, DocketNo. 16.
Mr. Waters's motion lacks merit. Judicial review ofdecisions ofmilitary correction boards is conducted "underthe AP A," and suchreview "is generally limitedto the administrative record." Walls, 582 F.3d at 1367-68; see also Axiom Res. Mgmt., Inc. v. United States, 564 FJd 1374, 1379 (Fed. Cir. 2009) (observing that "the focal point forjudicial review should be the administrative record already in existence, not some newrecord made initially inthe reviewing

11

### court" (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973))). Supplementation ofthe administrative record is proper only in those "cases in which 'the omission ofextra-record evidence precludes effectivejudicial review."' Axiom Res. Mgmt., Inc., 564 F.3d at 1380 (citing Murakami v. United States, 46 Fed. CL 731, 735 (2000)).
This is not such a case. Mr. Waters's retirement claims are based on alleged violations of the Navy's procedural rules. The administrative record contains Mr. Waters's entire military service record, the complete investigative reportprepared by the Marine Corps, all endorsements ofthat repo1t, the record ofhis non-judicial punishment, and all documentation relating to his request to retire. The record also contains the decision ofthe BCNRand the advisory opinion upon which itrelied. These documents provide a satisfactorybasis for the Court's review ofMr. Waters's challenge to the BCNR's decision. Conversely, none ofthe documents Mr. Waters proffers are necessary for this Court's review. A number ofthe documents relate to extraneous issues such as Mr. Waters's allegations ofcriminal activity, invasions ofprivacy, and inappropriate relationships among other members ofthe Marine Corps. These matters, which were apparently referred to the inspector general for investigation, have no bearing on whether the Marine Corps followed SECNA VINST 1920.6C
or whether the BCNR's decision was arbitrary and capricious. Further, while Mr. Waters is correct that in some circumstances supplementation ofthe record is permissible to support a claim ofbad faith, he alleges no hard facts to showthat the actions he challenges inthis case were infected by bias. 7

### Thus, Mr. Waters's bias claims appear to be primarilybased on an alleged close relationship between the gunnery sergeant and Colonel Hemy, who oversaw the original investigation ofMr. Waters's affair with the gunnery sergeant's wife and who approved the investigating officer's recommendation that Mr. Waters be charged with a violation ofthe UCMJ. According to Mr. Waters, Colonel Hemyhad "served closely" withthe gunnery sergeant "on at least two separate occasions" and had written him a positive recommendation that included "details ofthe pair's 15th Marine Expeditionary Unit operational exploits together." PL's Resp. at 6.
These allegations, even iftrue, do not support a finding ofbias sufficient tojustify supplementation ofthe administrative record. There is no evidence that the investigation was tainted by any alleged regard that Colonel Hemy had for the gunnery sergeant. In fact, Mr.

7 

### The Court observes that because Mr. Waters did not appeal his non-judicial punishment and is not seeking damages inthis Court for the loss ofpaythat resulted from that punishment, any claims that the non-judicial punishmentproceedings were infected bybias are not before the Court. Cf. Cochran v. United States, 1 CL Ct. 759, 765-66 (1983) ("In a suit seeking to overturn nonjudicial punishment imposed under Article 15, this court'sjurisdictionis limited to cases involving money claims founded upon allegations oflack ofcompliance withthe requirements ofthe statute, the controlling regulations and the Constitution."). Fmther, for the reasons set forth inthe subsequent text, even ifsuch allegations were relevant to the issues before the Court, Mr. Waters has not provided a sufficientjustification for the Court to supplementthe record with any evidence purporting to showbias during the investigation or during the non-judicial punishment process.

12Waters twice admitted to the misconduct uncovered inthe investigation, and it was that admitted misconduct that served as the basis for both his non-judicial punishment and the Secretary's decision to retire him at the rank ofmajor. Further, Colonel Henry was not a decision-maker with respect to the actions about which Mr. Waters complains. His recommendation that the investigating officer's report be approved was reviewed by his superiors, who agreed that nonjudicial punishment was appropriate based on the investigative record. 

### Itwas Lieutenant General Flynn who imposed the non-judicial punishment based on the investigation and Mr. Waters's admission. Lieutenant General Flynn is also the officer who referred the matter to a Board of Inquiry and recommended that Mr. Waters be retired at the grade ofmajor. And it was ultimately the Assistant Secretary ofthe Navy who accepted that recommendation.
In short, Mr. Waters has failed to supply hard facts or to explain how any alleged "bad faith" relates to the claims in his complaint, which are based on allegations that the Navy violated its procedural rules in processing his voluntary retirement request. Accordingly, Mr. Waters's motion to supplementthe administrative record is DENIED.
C. Merits
As noted, Mr. Waters challenges the BCNR's decision onthe grounds that his procedural rights were violated in connection withthe decision that he be retired atthe rank ofmajor. First, he argues that the Navy violated paragraph 2(c) ofEnclosure 6 to SECNA VINST l920.6C by failing to give him an opportunity to respond to Lieutenant General Flynn's endorsement, which he claims added new factual material to his retirement package. Second, he argues thatthe Marine Corps failed to follow the notification and forwarding requirements ofparagraph l(c)(l) ofthe same instruction. These arguments lack merit.
1. Alleged Violation ofParagraph 2(c) First, the Court rejects Mr. Waters's argument that the Marine Corps violated his rights under paragraph 2 ofEnclosure 6 to SECNA VINST 1920.6C. Paragraph 2(a) ofthe instruction states that"[a]ny officer being considered for administrative show cause proceedings per this instruction who is eligible for voluntary retirement under any provision oflawmayrequest voluntary retirement." See Def. 's Mot. Ex. A at 4. Subsection (a) ofthis paragraph states that the voluntary retirement request must include certain information, including "[a] statement that the officer understands that a BO! will not be convened" and "[a] statement that the officer admits that his or her performance ofduty was substandard, and[,] ifthe officer is being required to show cause for misconduct, that he or she admits committingthe misconduct." Id. Pursuantto subsection (b), "[t]he request shall also include a copy ofthe investigation or other documentation pertaining to the misconduct." Id. Finally, and mostpertinent here, subsection (c) states that "[t]he request shall be forwarded with appropriate command endorsements" and that "@.]ny new factual material shall be provided to the officer for review and comment." Id. at 

### 4-5. (emphasis supplied).
Mr. Waters does not dispute that he was "being considered for administrative show cause proceedings"-i.e., a Board ofInquiry-at the time he requested a voluntary retirement, and that his request was therefore subject to the procedures inparagraph 2. According to Mr. Waters, the Navy violated the procedures ofparagraph 2 when it did not give him the opportunityto review

13and comment on what he alleges was "newfactual material" contained in Lieutenant General Flynn's endorsement. Specifically, he cites the lieutenant general's characterization ofMr. Waters's relationship withthe gunnery sergeant's wife as "adulterous" and his assertion that the gunnery sergeant was "within [Mr. Waters's] command." See Pl.'s Resp. at 18-20. Mr. Waters contends that using the word "adulterous" "aggravate[d] the original nature ofthe [non-judicial punishment] charge," given that the investigating officer had found that there was not sufficient evidence to charge him withthe offense of"adultery" under the UCMJ. Id. at 28. He further contends that the formal charge in the non-judicial punishmentphase ofthe case did not reference the fact that the gunnery sergeant was under his command. See id. at 20. These arguments lack merit. First, contrary to Mr. Waters's arguments, Lieutenant General Flynn's statementthat Mr. Waters had engaged in an "adulterous relationship" did not add new factual material to the record; nor did it suggest thatMr. Waters had admitted to the offense of"adultery" as defined by the UCMJ. The word "adulterous" is the adjectival fonn ofthe word "adultery," which is defined in commonparlance as "[ v]oluntary sexual intercourse between a maffied person and someone otherthanthe person's spouse." Adultery, Black's Law Dictionary (10th ed. 2014). Here, the investigation determined (and Mr. Waters in fact admitted) that he had a sexual relationship while maffied with another person's wife; thus, he was partyto an adulterous relationship. Moreover, it was clear from the investigativepackage that the charge against Mr. Waters was "conductunbecoming an officer and a gentleman" and not adultery; the use ofthe phrase "adulterous relationship" accordingly was not misleading. Second, and likewise, describing the gunnery sergeant as withinMr. Waters's command
was not a newfact. At his non-judicial punishment hearing, Mr. Waters was asked by Lieutenant General Flynn whether he "admit[ted] that

... [he] had an inappropriate relationship with [the] wife ofa Gunnery Sergeant who was [his] subordinate." ARTab 5 at 435. Mr. Waters stated "[y]es, sir." Id. As the gunnery sergeant was Mr. Waters's subordinate, he was within Mr. Waters's command

..See Subordinate, Black's LawDictionary (10th ed. 2014) (definition including "[s]ubject to another's authority or control").
In short, Lieutenant General Flynn's endorsement contained nothing more than an accurate description ofthe known facts ofthe case. The Marine Corps therefore was notrequired by paragraph 2(c) ofits instruction to give Mr. Waters an opportunity to respond to the endorsementbecause 

### itdid not include new factual info1mation.


### 2. Alleged Violation ofParagraph 

### l(c)
As noted, Mr. Waters also claims that the Marine Corps failed to follow the notification and forwarding requirements ofparagraph 1 ofthe instruction. Subsection (c) ofparagraph 1 states that"[a]ll voluntary retirement requests from officers who have beenthe subject ofany substantiated adverse finding or conclusion from an officially documented investigation or inquiry

... shall be forwarded to SECNAV for a retirement grade determination." Def.'s Mot. Ex. A at 2. Subsection (c)(!) further statesthatbefore the voluntaryretirement request is forwarded, the officer shall be notified inwriting: 1) that the request is being forwarded for a retirement grade determination; 2) of"[t]he factual basis supporting the substantiated adverse finding or conclusionfrom the officially documented investigation or inquiry"; 3) ofthe

14

### recommended retirement grade; and 4) "[t]hat the officer may submit a rebuttal or decline to make a statement." Id. at 3. According to the government, Mr. Waters was not afforded the specifiedrights because he was not coveredby the procedures set forth in paragraph 1(c)(1). See Def.'s Mot. at 22. It contends thatMr. Waters's procedural rights were prescribed exclusively by paragraph 2 because, at the time ofhis request, he was "being considered for administrative show cause proceedings."
The language ofthe instruction is less than crystal clear. As explained above, Mr. Waters
was clearly entitled to the procedural rights set forth inparagraph 2, because at the time ofhis request he was an "officer being considered for administrative show cause proceedings

... who [was] eligible for voluntary retirement under any provision oflaw." Id. Ex. A at 4. Yet it also appears that he was within the category ofofficers who are described in paragraph 1(c

### )(I), which
covers "[a]ll voluntary retirement requests from officers who have been the subject ofany substantiated adverse finding or conclusion from an officially documented investigation or inquiry." Id. at 3. Nonetheless, the notion that Mr. Waters's request was subject to both sets ofprocedural requirements cannot be correctbecause the two sets ofrequirements are mutually inconsistent in
a number ofrespects. For example, paragraph 2(a)(4) requires an officer seeking approval ofhis voluntary retirement to admit that his performance was substandard orthat he committed misconduct. Id. at 4. On the other hand, paragraph l(c)(l)(d) affords the officer the right to submit a rebuttal or decline to make a statement in response to the substantiated adverse finding
or conclusion. Id. at 3. Similarly, paragraph l(c)(l)(b) requires the Navy to provide the officer with the factual basis for the adverse finding or conclusion, id., while paragraph 2(b) places the burden onthe officer to provide a copy ofthe investigative report or other documentation of misconduct, id. at 4. Further, language in the opening portion ofparagraph 1 strongly suggests that these provisions set forth alternative procedures. See id. at 1. Thus, paragraph 1 states at the outset that the detennination ofthe last grade in which the officer served satisfactorily will be made by the Secretary ofthe Navy without a Board oflnquiry "inthose cases, forwarded per paragraph le
or 2 ofthis enclosure, where the officer[] h[as] submitted [a] voluntary retirement request[]." Id. (emphasis supplied).
Even assuming thatthe text ofthe instruction is ambiguous, in ordinary circumstances (such as these) the agency's interpretation ofits ownrules is "controlling unless 'plainly
erroneous or inconsistent with the regulation."' See Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)); see also Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); Gose v. U.S. Postal Serv., 451 F.3d 831, 837 (Fed. Cir. 2006) (in the ordinary case, the court "defer[s] even more broadly to an agency's interpretation[] ofits own regulations thanto its interpretation ofstatutes, because the agency, as the promulgator ofthe regulation, is paiiicularly well suitedto speak to its original intent in adopting the regulation"); Wronke v. Marsh 787 F.2d 1569, 1576 (Fed. Cir. 1986) (holding that Army's interpretation ofits ownprocedural rules is entitled to great deference). The Navy's interpretation ofthe instruction here, as noted above, is that itprovides two separate

15sets ofprocedures for ce1iain officers who seek approval to retire voluntarily. See ARTab 15 at 982 (Lieutenant Colonel Schrock's advisory opinion setting forth this view). One set of procedural rights (set forth at paragraph 2) applies where an officer is being considered for proceedings before a Board oflnquiry (as was Mr. Waters) and another (atparagraph l(c)) applies where there has been a substantiated adverse finding or conclusionfrom an official investigation or inquiry but show cause proceedings have not been instituted. See id.
This interpretation is neither plainly eirnneous nor inconsistent withthe text. Therefore, in light ofthe text ofthe instruction and the Navy's interpretation, the Court concludes that only paragraph 2 ofEnclosure 6 to SECNAVINST 1920.6C applied to Mr. Waters's voluntary retirementrequest, and notparagraph 1. As a result, he was not entitled to the additional procedures upon which his second challenge to the Board's decision relies.


### CONCLUSION
Forthe reasons set forth above, the government's motion to dismiss is 

### GRANTED-INPART, and any claims under the Military Pay Act are 

### DISMISSED withprejudice for failure to state a claim. As to Mr. Waters's remaining claims underthe military retirement statutes, the government'smotion forjudgment on the administrative record is 

### GRANTED. Mr. Waters's motionto supplementthe administrative record is 

### DENIED andhis motion forjudgment on the administrative record is 

### DENIED. The Clerk is directed to enterjudgment accordingly. Each side shall bear its own costs.


### IT IS SO ORDERED.

16 

# alt;{__

ELAINE D. KAPLAN Judge