LOWRY v. United States
1:20-cv-00682
Fed. Cl.Apr 8, 2021Background
- Daniel W. Lowry served ~19 years in the U.S. Navy as a Chief Petty Officer and Master Diver; two prior civilian DUIs (2001, 2009/2010) surfaced during an NCIS inquiry in 2013–14.
- After screening found no current alcohol dependency, his diving qualification was suspended; he applied for reinstatement and was later reinstated in July 2015.
- On October 17, 2014 he was notified he would be processed for administrative separation for ‘‘commission of a serious offense’’ based on multiple DUIs; the separation board found DUIs supported separation but recommended a 12‑month suspended separation and an Other‑Than‑Honorable characterization.
- The Commanding Officer (CO) concurred as to misconduct but recommended immediate separation (no suspension), citing Lowry’s alleged failure to report the DUIs and loss of trust; the Separation Authority (SA) approved immediate separation on March 3, 2016 with a General (Under Honorable Conditions) characterization.
- Lowry appealed to the NDRB and BCNR (both denied relief); he sued in the Court of Federal Claims under the Military Pay Act, arguing procedural errors (notably lack of notice and withholding of a substance‑abuse screening report) and that the BCNR decision was arbitrary and contrary to law.
- The court held the Navy violated its own regulations by basing the final separation on Lowry’s failure to disclose his DUIs—a ground not included in the separation notice or considered by the separation board—and remanded to the BCNR to correct Lowry’s record to reflect retirement and award back pay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of notice of separation grounds | Lowry: Navy failed to notify him that failure to disclose DUIs was a basis for separation, denying opportunity to rebut | Gov: Separation notice cited DUIs; CO’s later comments were proper input to SA; any procedural error was harmless | Court: Notice was inadequate; SA relied on failure to disclose (not in the notice), error was prejudicial; separation invalid on that ground |
| Withholding of substance‑abuse screening report | Lowry: Recorder withheld exculpatory report showing no current alcohol disorder, violating procedural rights | Gov: Any failure to provide was harmless; report was available to Lowry directly | Court: BCNR could have weighed this, but primary basis for remand was defective notice; Court granted partial supplementation of record (added reinstatement docs) but did not rely solely on report issue |
| Proper statutory/regulatory basis for separation (serious offense v. erroneous enlistment) | Lowry: If DUIs predated reenlistment and were unknown then, separation should be processed as erroneous enlistment, which carries different characterization rules | Gov: Processed under misconduct/serious offense and CO/SA acted within discretion | Court: Raised concern that DUIs during prior enlistment would ordinarily be processed as erroneous enlistment; BCNR did not explain why misconduct basis was appropriate—remand ordered for correction, not full resolution of this issue |
| Whether BCNR decision was arbitrary/capricious | Lowry: BCNR relied on an impermissible basis (failure to disclose) and failed to remedy procedural defects | Gov: BCNR considered the record and medical advisory opinion on PTSD and reasonably denied relief | Court: BCNR decision arbitrary as to notice issue; remand required to correct record and award retirement/back pay |
Key Cases Cited
- Wagner v. United States, 365 F.3d 1358 (Fed. Cir. 2004) (administrative agencies, including military, are bound by their own regulations)
- Fisher v. United States, 402 F.3d 1167 (Fed. Cir. 2005) (military must follow promulgated procedures; procedural challenges are justiciable)
- Heisig v. United States, 719 F.2d 1153 (Fed. Cir. 1983) (standard of review for military personnel decisions; scope of review limited)
- Melendez Camilo v. United States, 642 F.3d 1040 (Fed. Cir. 2011) (review of military correction boards under arbitrary and capricious/APA standards)
- Holley v. United States, 124 F.3d 1462 (Fed. Cir. 1997) (Military Pay Act right to pay until properly separated)
- Antonellis v. United States, 723 F.3d 1328 (Fed. Cir. 2013) (scope of Military Pay Act suits in Court of Federal Claims)
- Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009) (focal point for judicial review is the administrative record)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (RCFC 52.1 motions: trial on the administrative record)