Cooper v. United States, Civil Action No. 2017-1076

Cooper, a Navy Reserve commander, faced Non-Judicial Punishment (NJP) after alleged fraudulent travel claims; he consulted a JAG who gave only limited, "generic" advice and would not form an attorney-client relationship.
After being found guilty at NJP and receiving a Punitive Letter of Reprimand, Cooper was ordered to show cause; he was offered the option to voluntarily retire instead, with a negotiated recommendation to the Secretary that he be retired at O-5.
Cooper elected voluntary retirement (pleading not guilty at NJP) but the Secretary ultimately accepted a recommendation to retire him at O-3, lowering his retirement pay grade.
Cooper petitioned the Board for Correction of Naval Records to (1) remove records of the NJP/validate that his waiver of court-martial was invalid due to inadequate counsel before electing NJP, and (2) correct his retirement grade to O-5 based on the Navy’s alleged promise to recommend O-5 to the Secretary.
The Board denied both claims; on reconsideration it addressed the pay-grade claim (finding no breach) but did not address Cooper’s contention about the inadequacy of pre-NJP legal advice.
The district court held the Board’s denial arbitrary and capricious for failing to address the counsel-advice claim and remanded that issue to the Board; it upheld the Board’s rejection of the breach-of-promise/pay-grade claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Cooper’s waiver of court-martial was voluntary, knowing, and intelligent given limited pre-NJP counsel	Cooper: JAG’s restricted, generic advice meant he lacked meaningful consultation and couldn’t make an informed waiver	U.S.: No right to representation at NJP; Board correctly denied relief	Remanded: Board’s denial arbitrary for failing to address Cooper’s pre-NJP consultation claim; remand for further consideration
Whether Navy breached promise to recommend retirement at O-5 to the Secretary	Cooper: He agreed to retire in exchange for Navy recommending O-5 to SECNAV	U.S.: Recommendation process is discretionary and routed through chain of command; SECNAV could accept lower grade	Denied for Cooper: Board’s explanation adequate; record shows chain endorsements and no bargained promise to bind SECNAV

Fairchild v. Lehman, 814 F.2d 1555 (Fed. Cir.) (waiver of trial rights must be voluntary, knowing, and intelligent)
Middendorf v. Henry, 425 U.S. 25 (U.S. 1976) (constitutional criminal-procedure rights do not apply in NJP administrative proceedings)
Brady v. United States, 397 U.S. 742 (U.S. 1970) (voluntary and intelligent plea standards)
Frizelle v. Slater, 111 F.3d 172 (D.C. Cir.) (agency decisions must minimally connect facts and choice; failure to address non-frivolous arguments requires explanation)
Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir.) (Board need not be analytic masterpiece but must provide reviewable rationale)
Coburn v. McHugh, 679 F.3d 924 (D.C. Cir.) (agency must provide explanation enabling judicial evaluation of rationale)
Kreis v. Secretary of the Air Force, 866 F.2d 1508 (D.C. Cir.) (judicial review of military correction boards follows administrative-law principles)
Association of Civilian Technicians v. Federal Labor Relations Bd., 269 F.3d 1112 (D.C. Cir.) (post-hoc rationalizations cannot sustain an administrative decision)