Emoto v. United States
17-228
| Fed. Cl. | Nov 8, 2017Background
- Todd Emoto, an Army lieutenant colonel and former Special Forces soldier, retired June 30, 2012 and was placed on the retired list at pay grade O-4 (Major) rather than O-5 (Lt. Col.) after administrative actions based on findings of adultery and conduct unbecoming.
- In 2011 an AR 15-6 investigation (IO) concluded Emoto had engaged in an inappropriate/sexual relationship with a subordinate’s wife (incidents alleged in 2001 and continuing into 2011); the IO found several witnesses credible and recommended disciplinary/admin actions.
- As a result Emoto received an Article 15 non-judicial punishment (Oct. 2011), a General Officer Memorandum of Reprimand (GOMOR) (Sept. 2011), and revocation of his Special Forces Tab (Nov. 2011).
- Emoto retired with 21+ years of service and petitioned the Army Grade Determination Review Board (AGDRB) for advancement; AGDRB determined his highest satisfactory grade was O-4.
- Emoto applied to the Army Board for Correction of Military Records (ABCMR) to remove the Article 15, GOMOR, reinstate his Tab/CMF-18 status, and have retirement grade corrected; ABCMR denied relief.
- Emoto sued in the Court of Federal Claims seeking record correction and past pay; the court reviewed cross-motions on the administrative record and affirmed the ABCMR (denying Emoto’s motion and granting the government’s).
Issues
| Issue | Emoto’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether substantial evidence supported the 2011 adultery finding (Article 15/GOMOR) | Emoto: evidence proves only a 2001 sexual relationship; no proof of sexual intercourse in 2011; IO/command improperly relied on stale or ambiguous statements | Gov: IO and ABCMR relied on Emoto’s own admission to SFC White, corroborating witness statements, texts, and conduct; credibility determinations supported finding | Court: Held substantial evidence supports the 2011 adultery finding and court defers to IO/ABCMR credibility determinations |
| Whether Article 15 punishment was time-barred by Article 43 (two-year limit) because primary misconduct occurred in 2001 | Emoto: punishment impermissibly rests on 2001 conduct outside the two-year window | Gov: Article 15 adjudicated misconduct in 2011; 2001 conduct was relevant background but not sole basis for Article 15 | Court: Rejected Emoto’s statute-of-limitations argument; 2001 conduct was admissible background and Article 15 was properly applied to 2011 conduct |
| Whether the GOMOR and Special Forces Tab revocation were arbitrary or unsupported | Emoto: GOMOR relied improperly on 2001 events and was untimely; Tab revocation flowed from erroneous findings | Gov: GOMOR and Tab revocation were administrative actions supported by evidence of misconduct and suitability concerns | Court: Upheld GOMOR and Tab revocation as supported by record and not arbitrary |
| Whether AGDRB erred in retiring Emoto at O-4 instead of O-5 based on the above actions | Emoto: AGDRB relied on wrongful Article 15/GOMOR and thus misapplied 10 U.S.C. §1370 | Gov: AGDRB decision rests on properly supported records and ABCMR correctly affirmed it | Court: Affirmed ABCMR’s refusal to change retirement grade; no basis to overturn AGDRB decision |
Key Cases Cited
- Barnick v. United States, 591 F.3d 1372 (Fed. Cir. 2010) (court’s review of military board decisions is limited to administrative-review standards)
- Metz v. United States, 466 F.3d 991 (Fed. Cir. 2006) (same; deference to military records corrections boards)
- Wronke v. Marsh, 787 F.2d 1569 (Fed. Cir. 1986) (plaintiff bears burden of cogent and clearly convincing evidence to overturn board)
- Porter v. United States, 163 F.3d 1304 (Fed. Cir. 1998) (standards for reviewing corrections-board factual findings)
- Jennings v. Merit Systems Protection Bd., 59 F.3d 159 (Fed. Cir. 1995) (definition of substantial evidence)
- Skinner v. United States, 594 F.2d 824 (Ct. Cl. 1979) (court is not a super corrections board and must defer to agency factfinding)
- Lewis v. United States, 458 F.3d 1372 (Fed. Cir. 2006) (Tucker Act and money-mandating statutes for military retirement claims)
- Spellissy v. United States, 103 Fed. Cl. 274 (Fed. Cl. 2012) (jurisdictional discussion for retirement-pay claims)
- Stine v. United States, 92 Fed. Cl. 776 (Fed. Cl. 2010) (deference to credibility determinations by military investigators)
- Houghtling v. United States, 114 Fed. Cl. 149 (Fed. Cl. 2013) (challenge to Article 15/GOMOR decisions does not alter review standard)