Driscoll v. United States
19-1640
| Fed. Cl. | Mar 3, 2022Background
- Ronald J. Driscoll, a Staff Sergeant and career Army recruiter with ~17.5 years’ service, received an on-base DWI citation (Apr. 19, 2015) that resulted in three adverse administrative actions (GOMOR, Article 15, NCOER).
- LTG Mangum suspended Driscoll from recruiting duty, but on May 23, 2016 reinstated him to recruiting duty after review.
- Driscoll was later referred to a Qualitative Management Program (QMP) selection board (notified Oct. 11, 2016) and was entitled to submit matters of mitigation/extenuation by Jan. 27, 2017.
- Driscoll timely submitted mitigation materials; the Army returned them to him (January 27 deadline), he resubmitted by Jan. 30, and the QMP board recommended denial of continued active duty (Apr. 3, 2017); Driscoll was discharged Nov. 1, 2017.
- After an ABCMR remand denying relief, Driscoll sued in the Court of Federal Claims under the Military Pay Act; the court found some challenges nonjusticiable but held the Army committed prejudicial procedural error by mishandling Driscoll’s mitigation submission, rendering the discharge void and ordering remand for correction, reinstatement, and back pay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| DASEB refusal to move adverse documents to restricted fiche | DASEB wrongly refused to transfer GOMOR/Article 15/NCOER; reviewable procedural error | Decision is discretionary and committed to Army judgment about "Army’s best interests" | Dismissed as nonjusticiable (discretionary military matter) |
| Effect of LTG Mangum’s reinstatement to recruiting duty | Reinstatement should bind or at least strongly constrain QMP Board | Reinstatement applies only to recruiting duty and is not binding on QMP selection boards | Nonjusticiable when framed as challenge to weight of evidence; not binding as a matter of regulation |
| Whether QMP Board considered Driscoll’s mitigation/extenuation materials | Army returned timely submission, causing untimely resubmission; QMP may not have considered materials — procedural deprivation of right to present mitigation | Army invokes presumption of administrative regularity and later-produced record items to show materials were considered | Court found Army committed procedural error by returning materials; presumption of regularity inapplicable/overcome; government failed to show QMP actually considered the materials |
| Harmlessness and remedy | If error not harmless, relief is required (back pay, record correction, reinstatement) | ABCMR considered materials on remand and reached same result, so any error was harmless | Harmlessness standard not met: QMP discretion is unreviewable and outcome speculative; discharge voided; remand to ABCMR for correction, reinstatement, and computation of back pay |
Key Cases Cited
- Orloff v. Willoughby, 345 U.S. 83 (courts may not substitute judgment for military on fitness decisions)
- Adkins v. United States, 68 F.3d 1317 (procedural challenges to military decisions can be justiciable)
- Voge v. United States, 844 F.2d 776 (justiciability requires manageable standards for review)
- Waller v. United States, 461 F.2d 1273 (discharge void if procedural rights ignored)
- Wagner v. United States, 365 F.3d 1358 (harmless error doctrine in military discharge review)
- Christian v. United States, 337 F.3d 1338 (burden shifting: plaintiff must show error; government to prove harmlessness)
- Dodson v. United States, 988 F.2d 1199 (ABCMR cannot cure a defective selection decision by de novo substitution)
- Martinez v. United States, 333 F.3d 1295 (Military Pay Act provides money-mandating remedy for wrongful discharge)
- Bannum, Inc. v. United States, 404 F.3d 1346 (RCFC 52.1 review on the administrative record)