WILLIAM G. BOLTON, Plaintiff-Appellant, v. DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS, Defendant-Appellee.
No. 18-3284
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: January 18, 2019
19a0007p.06
Before: COLE, Chief Judge; SUHRHEINRICH and MOORE, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:16-cv-02953—Benita Y. Pearson, District Judge.
COUNSEL
ON BRIEF: Thomas F. Hull, II, MANCHESTER NEWMAN & BENNETT, Youngstown, Ohio, for Appellant. Ruchi V. Asher, James R. Bennett, II, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee.
SUHRHEINRICH, Circuit Judge.
Plaintiff William G. Bolton petitioned Defendant Department of the Navy Board for Correction of Naval Records (BCNR) to expunge the summary-court martial from his military record based on his guilty plea to three military charges related to his arrest for driving while drunk on the Marine Corps Base Camp Lejeune, North Carolina. The BCNR held that it lacked the statutory authority to set aside the findings of a summary court-martial. Bolton challenged the BCNR‘s ruling in federal court. The district court granted the BCNR‘s motion to dismiss Bolton‘s amended complaint and he appealed to this court. We AFFIRM.
I. Background
A. Military Justice
The Uniform Code of Military Justice (UCMJ) has four methods for addressing offenses by servicemen: general courts-martial,
General and special courts-martial resemble judicial proceedings, nearly always presided over by lawyer judges with lawyer counsel for both the prosecution and the defense. General courts-martial are authorized to award any lawful sentence, including death.
Art. 18 UCMJ, 10 U.S.C. [§] 818 . Special courts-martial may award a bad-conduct discharge, up to six months’ confinement at hard labor, forfeiture of two-thirds pay per month for six months, and in the case of an enlisted member, reduction to the lowest pay grade,Art. 19, UCMJ, 10 U.S.C. [§] 819 .
Id. (footnote omitted).
By contrast, a nonjudicial punishment is less serious than a summary court-martial. See
The summary court-martial occupies a position between informal nonjudicial disposition under Art. 15 and the courtroom-type procedure of the general and special courts-martial. Its purpose, “is to exercise justice promptly for relatively minor offenses under a simple form of procedure.”
Manual for Courts-Martial P 79A (1969) (MCM) . It is an informal proceeding conducted by a single commissioned officer with jurisdiction only over noncommissioned officers and other enlisted personnel.Art. 20, UCMJ, 10 U.S.C. [§] 820 . The presiding officer acts as judge, factfinder, prosecutor, and defense counsel. The presiding officer must inform the accused of the charges and the name of the accuser and call all witnesses whom he or the accused desires to call. M P 79D (1). The accused must consent to trial by summary court-martial; if he does not do so trial may be ordered by special or general court-martial, or the case will be either dismissed or referred to a special or general court-martial.The maximum sentence elements which may be imposed by summary courts-martial are: one month‘s confinement at hard labor; 45 days’ hard labor without confinement; two months’ restriction to specified limits; reduction to the lowest enlisted pay grade; and forfeiture of two-thirds pay for one month.
Art. 20, UCMJ, 10 U.S.C. [§] 820 .
Id. at 32-33 (footnote omitted); see also
B. Facts and Procedural History
The following facts are taken from the amended complaint and attached exhibits, accepted as true for purposes of appeal. Bolton entered the Marine Corps on August
Bolton was also informed that he would face court-martial under the following articles of the Uniform Code of Military Justice: (1) Article 89 (Disrespect of a Commissioned Officer); (2) Article 92 (Unregistered Firearm on Base); and (3) Article 111 (Driving Under the Influence). These charges were initially brought as a criminal prosecution pursuant to a special court-martial, but Bolton entered into a pre-trial agreement to resolve them by accepting a non-criminal summary court-martial,2 based on advice by military defense counsel that all charges, including those assigned to the federal court, would be disposed of by the court-martial. He was not informed that his citation would still be heard by the base court.
As a result of this advice, Bolton did not appear at the base traffic court on August 13, 2010. He was convicted of driving under the influence, a violation of
Bolton‘s plea agreement was accepted on August 21, 2010. On August 30, 2010, Bolton pleaded guilty to all three military charges at the summary court-martial. As a consequence, he received a reduction in rank (by three pay grades), a forfeiture of $964, and fourteen days restricted confinement to the 3d Battalion, 2d Marine Regiment.
On October 1, 2010, Bolton completed his active duty service obligation and was honorably discharged. His discharge lists a reenlistment code of RE-1A, meaning that he was eligible to reenlist.
In 2015, Bolton filed a petition with the BCNR to have the summary court-martial expunged from his military record, claiming that he received inadequate legal counsel and was subject to multiple prosecutions for the same incident through the summary court-martial and the civilian courts. On September 21, 2016, the BCNR held that it did not have the statutory authority to set aside the findings of a summary court-martial. The BCNR also sua sponte reviewed the application for clemency, and based on “its review of [the] entire record and application, . . . [including the] assertions of inadequate legal
On December 8, 2016, Bolton filed a complaint in federal district court, and amended it on April 17, 2017. Bolton alleged that the BCNR‘s decision was arbitrary and capricious under
The district court dismissed the amended complaint on January 29, 2018. The court held that (1) Bolton did not state a claim for double jeopardy because neither the summary court-martial nor the base court conviction constituted a “criminal punishment” to which jeopardy attached; and (2) the BCNR did not have authority to grant Bolton‘s requested relief. In a footnote, the court observed that BCNR considered Bolton‘s petition as an application for clemency and denied it “with explanation.” Bolton appeals.
II. Jurisdiction
Bolton sought judicial review of BCNR‘s decision under
III. Standard of Review
To survive a motion to dismiss under
Federal courts have the authority to review the decision of a military board of correction under the Administrative Procedure Act (APA).
[t]he statutory provisions at issue here draw a . . . distinction between the objective existence of certain conditions and the Secretary‘s determination that such conditions are present. The Secretary, acting through the Board, “may correct any military record of that department when he considers it necessary to correct an error or remove an injustice,”
10 U.S.C. § 1552(a) (emphasis added), not simply when such action is necessary to correct an error or to remove an injustice.
Id. at 1513; see also id. at 1514 (“While the broad grant of discretion implicated here does not entirely foreclose review of the Secretary‘s action, the way in which the statute frames the issue for review does substantially restrict the authority of the reviewing court to upset the Secretary‘s determination.“). This extra-deferential standard “is calculated to ensure that the courts do not become a forum for appeals by every soldier dissatisfied” with military action against him, “a result that would destabilize military command and take the judiciary far afield of its area of competence.” Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000); see also Orloff v. Willoughby, 345 U.S. 83, 94 (1953) (“Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.“)
Although a correction board‘s decision to act is uniquely discretionary, it is still required to explain how it reached its decision. Kreis, 866 F.2d at 1514. When the BCNR denies a petition to correct a record, it must provide a “brief statement of the grounds for denial,” which must include “the reasons for the determination that relief should not be granted, including the applicant‘s claims of constitutional, statutory, and/or regulatory violations that were rejected, together with all the essential facts upon which the denial is based.”
IV. Analysis
A. Statutory Authority
First, Bolton objects to the district court‘s conclusion that the BCNR lacks authority to correct an unjust court-martial. The BCNR‘s statutory authority is found in
The language of § 1552(f) mirrors Congress‘s desire to prevent military corrections boards from setting aside court-martials:
The bill adjusts the authority of the administrative boards established pursuant to
10 U.S.C. § 1552 (Boards for the Correction of Military/Naval Records) and§ 1553 (Discharge Review Boards). In view of the military justice appellate system these administrative bodies should not render legal judgments on the results of courts-martial by overturning, as a matter of law, findings or sentences of courts-martial. This task is the job of the appellate review system established by the UCMJ. Therefore, the bill limits the authority of these Boards, in reviewing courts-martial in the future, to acting on courts-martial sentences as a matter of clemency after exhaustion of remedies under the UCMJ.
S. Rep. No. 98-53, at 11 (1983). Congress wanted to make “it clear that the appellate procedures under the UCMJ provide the sole forum under title 10, United States Code, for a legal review of the legality of courts-martial.” Id. at 36. Thus, the purpose of sub-section (f) was to limit the role of the BCNR, which “primarily involves a determination as to whether the sentences should be reduced as a matter of command prerogative (e.g., as a matter of clemency) rather than a formal appellate review.” H.R. Rep. No. 98-549, at 15; see also id. at 20 (“In court-martial review the functions of the [BCNR] would be primarily limited to clemency actions.“) To that end, the UCMJ sets forth exhaustive post-trial, appellate procedures to address legal challenges to courts-martial. See generally
Numerous courts have abided by this clear statutory directive. See, e.g., Cossio v. Donley, 527 F. App‘x 932, 935 (Fed. Cir. 2013) (per curiam) (“Just as the Board may not overturn a conviction, it likewise has no authority to amend sentencing judgments other than
through a grant of clemency.“) (citing
Thus, Bolton‘s reliance on Baxter and Owings is unavailing. The Cooper decision makes this clear. There the Federal Circuit Court of Appeals acknowledged that, prior to 1983, military record correction boards “could, if it considered it necessary to correct an error or remove an injustice, completely expunge all reference to a court-martial ever having occurred.” Cooper, 807 F.2d at 991: “Before the amendment [the Army Board of Corrections for Military Records] lacked the power to overturn a court-martial conviction . . . . After the amendment, it still lacks that power and is now limited in the extent to which it can correct a court-martial record. Id. (citing Baxter, 652 F.2d at 184-85).
Bolton argues that United States v. Stoltz, 720 F.3d 1127 (9th Cir. 2013), and Cooper v. United States, 285 F. Supp. 3d 210 (D.D.C 2018), support his reading of
B. APA Claim
Bolton attacks the BCNR decision as arbitrary and capricious. First, he claims that the summary court-martial was substantively unfair resulting in manifest injustice because he was (1) punished twice for the same infraction, and (2) unfairly induced to take a plea that forever bars him from reenlisting. Second, he alleges that the BCNR‘s decision was procedurally unreasonable because the BCNR (1) did not review a complete record, and (2) did not give him an opportunity to address the evidence it relied upon.
1.
Bolton argues that he was unfairly punished twice—both by the summary court-martial as well as a base court conviction (which led to a suspension of driving privileges in North Carolina as well). But the Double Jeopardy Clause “protects only against the imposition of multiple criminal punishments for the same offense,” Herbert v. Billy, 160 F.3d 1131, 1136 (6th Cir. 1998) (internal quotation marks and citations omitted); see also Hudson v. United States, 522 U.S. 93, 98-99 (1997) (holding that Double Jeopardy Clause precludes only successive criminal punishments,
Bolton‘s base traffic court driving suspension is also not a criminal punishment as a matter of law. Marine Corps regulations authorize commanding officers or their designees to immediately suspend on-base driving privileges when a service member is suspected of driving under the influence on a military installation.
defendants’ driving privileges pursuant to army regulations constituted a prior punishment under the Double Jeopardy Clause). In short, Bolton‘s driving suspensions were an administrative measure because the base traffic court did not have the authority to convict Bolton criminally, and the double jeopardy
2.
Next Bolton claims that he was “induced” to take a deal, which resulted in a de facto ban against re-enlistment, and that he was inadequately advised regarding his ability to re-enlist. There are several problems with this argument. First, Bolton did not raise the alleged bar against re-enlistment in his application before the BCNR. He has therefore waived this issue for review. Wilson Air. Ctr., LLC v. F.A.A., 372 F.3d 807, 813 (6th Cir. 2004) (“The administrative waiver doctrine, commonly referred to as issue exhaustion, provides that it is inappropriate for courts reviewing agency decisions to consider arguments not raised before the administrative agency involved.“); Kendall, 996 F.2d at 366 (“Indeed, the military justice system is sufficiently analogous to state justice systems to apply identical waiver rules to bar claims raised for the first time during a collateral attack on a court-martial.“). More important, Bolton would have to pursue any ineffective assistance claim through the UCMJ appellate and post-conviction review procedures, not before the BCNR.6 See United States v. Martinez, 914 F.2d 1486, 1488 (Fed. Cir. 1990) (failure to raise constitutional claim in the military court system barred serviceman from raising it in federal court absent a showing of cause and prejudice); Kendall, 996 F.2d at
366. This is so because the BCNR “has no authority to void court-martial convictions.” Martinez, 914 F.2d at 1488; see also
3.
Bolton contends that his sentence was procedurally flawed because “[t]he record upon which the [BCNR] issued its decision was incomplete and failed to include all relevant information in favor of [him].” He also contends that the BCNR failed to articulate a satisfactory explanation for its decision to deny him clemency.
It is not clear to this court how Bolton would know whether the Department of the Navy transferred a complete file to the BCNR. In fact, the record sent indicates that it is a “redacted
copy of the administrative files.”9 Nonetheless, Bolton did not request clemency in his petition. Bolton‘s brief in support of correcting the military record asked the BCNR to remove “a Summary Court Martial for violations of UCMJ, Arts 89, 92, and 111 . . . because he was inadequately informed of his legal rights and consequences of the plea agreement,” which resulted in double punishment. Bolton‘s failure to make this argument before the BCNR means that it is waived. See Wilson Air. Ctr., 372 F.3d at 813; Kendall, 996 F.2d at 366.
The BCNR considered clemency sua sponte. In “determin[ing] that the circumstances and serious nature of [Bolton‘s] misconduct did not warrant clemency in the form of changing the sentence awarded by the summary court-martial,” the BCNR focused on a similar prior incident in August 2007, when Bolton was counseled about his underage drinking and lack of judgment, and his failure to reform. The BCNR noted that at that time Bolton was “provided recommended corrective action, advised of available assistance, and warned of the consequence of further deficiencies.” The BCNR then observed that Bolton‘s civil conviction and the incident that led to the summary court-martial in 2010 was for reckless driving while intoxicated. Thus, the BCNR provided an adequate explanation for its decision to deny clemency based on factors it deemed most relevant. We cannot say that this decision was arbitrary or capricious. See
Although the BCNR did not expressly mention “the rest of Bolton‘s distinguished service record,” the military record provided to the BCNR included a list of Bolton‘s “Decorations Medals, Badges Citations
Bolton that it would reconsider its decision if he submitted new and material evidence within one year of its decision. He did not take that opportunity. Thus, his lament lacks merit.
4.
Bolton also complains that he was denied an opportunity present additional evidence at an oral hearing, namely evidence of a diagnosed sleep disorder that apparently caused Bolton to be counseled for underage drinking in 2007. But an applicant does not have a right to an oral hearing; the BCNR has discretion to rule on a petition without one. See
C. Denial of Clemency
Bolton also argues that the BCNR‘s denial of his request for clemency was arbitrary and capricious. The BCNR responds that an agency action is not reviewable if it is “committed to agency discretion by law,”
Under the extra-deferential standard we are obliged to apply in matters military, so as “not to interfere with legitimate [Navy] matters,” Orloff, 345 U.S. at 94, we reject Bolton‘s appeal of the BCNR‘s decision and affirm the decision of the district court.
V. Conclusion
The district court correctly held that Bolton failed to state a plausible claim for relief under