42 Fed. Cl. 704 | Fed. Cl. | 1999
ORDER
Plaintiff Theodore Patrick Milas was administratively discharged from the United States Navy for sexually abusing his son. After seeking relief at the Board for Correction of Naval Records (BCNR), plaintiff filed a complaint in this court seeking reinstatement with full pay and benefits. The case is now before the court on cross-motions for judgment on the administrative record.
BACKGROUND
In 1966, plaintiff became an ordained minister and married his first wife, Cordelia. Plaintiff was commissioned as a reserve officer in the Chaplain Corps of the Naval Reserve in October 1973. In 1975, plaintiff divorced Cordelia and married his second wife, Shirley Ann Herold (Shirley), who had four children. In 1983, plaintiff and Shirley were divorced after a bitter court battle. No allegations of physical or sexual abuse were raised during the course of the divorce. By September 1982, plaintiff had been promoted to Lieutenant Commander and entered the Regular Navy. Plaintiff married his third wife, Mary, on February 17, 1983. In October 1983, Mary gave birth to plaintiffs son, Theodore Patrick, Jr. (Patrick). In August 1986, plaintiff was promoted to Commander.
On February 24, 1990, plaintiff allegedly struck and tried to choke six-year-old Patrick. Mary took Patrick and moved out of the house that same day. Maryland State Police investigated the incident and concluded that the alleged physical abuse was unfounded and fell “within acceptable corporal punishment.” On May 18, 1990, St. Mary’s County contacted the Family Support Program of the National Naval Medical Center (NNMC) and notified the military that it was investigating plaintiff. Dr. Sandra Ross-work, plaintiffs civilian supervisor, took over as ease manager.
Patrick had been receiving psychological counseling from Dr. Mary McCloy, and on May 22, 1990, Patrick told Dr. McCloy that plaintiff had “put soap in my [anus]” and “Daddy always did this.” The following day, Mary took Patrick to Dr. Barbara De-Francesca, a civilian pediatrician, for documentation of physical or sexual abuse. When asked if plaintiff hurt Patrick in any way other than striking him in February 1990, Patrick answered “yes, with the soap, he put the soap in my [anus].” On further questioning, Patrick said that plaintiff would shower with Patrick every night and insert a bar of soap into him, then apply cream to his anus. Patrick said plaintiffs penis was always erect during the showers. He added that plaintiff was always asking him to sit on plaintiffs pelvic region and plaintiff would be “jiggling a lot” until plaintiff told Patrick to get off. The doctor opined that Patrick’s responses did not appear coached. Examination found normal anal tone, but observed some redness. The doctor recommended that the
The Naval Investigative Service (NIS) began investigating the allegations immediately. By May 25, 1990, Mary had provided a written statement that she had “never observed any physical or sexual abuse of my son, Patrick.” She said she first became aware that plaintiff was sexually abusing Patrick when Dr. McCloy told her about Patrick’s complaints, but noted that in January 1989 she had once heard Patrick scream while plaintiff and Patrick were showering together. When she asked what was the matter, plaintiff had replied that he was cleaning Patrick’s anus. “That night I had a conversation with [plaintiff] concerning his obsession with Patrick’s [anus] and always cheekking [sic] it and applying medication/ointment and wiping it,” she said.
By June 5, 1990, a detective from the Charles County Sheriffs office had investigated the sexual abuse charge and closed the file as unfounded. Meanwhile, NIS continued its investigation. On June 8, 1990, NIS searched Mary’s home for pornographic materials depicting anal sex allegedly kept by plaintiff. None were found. That same day, NIS special agent Theresa Bland interviewed Patrick at his home. Patrick said plaintiff would put a bar of soap in his rectum during nightly showers together, and said plaintiffs penis was “hard” at the time. About four times a week, once they were done showering, Patrick would lay face down on plaintiffs bed with his “ ‘butt’ in the air” while plaintiff “put the ointment in him.”
In July 1990 Patrick underwent a medical examination at the request of NIS. The physician found no anal scarring, but stated that this did not rule out sexual abuse. On July 2, 199(1, Nancy Wolfe of Maryland Child Protective services opined that based upon interviews^vvith plaintiff, Patrick, and Mary, “sexual abuse has occurred.”
In August 1990, -Cheryl Crook, Shirley’s oldest daughter, provided NIS a written statement alleging in detail that plaintiff sexually abused her several times a week over a period of about three years. All of Shirley’s children stated that plaintiff had physically abused them and their mother.
On October 30, 1990, NIS interviewed plaintiff, who followed the legal advice of his attorney and declined to discuss the allegations that he had put soap in Patrick’s anus. He said he did take showers with Patrick, but not all the time, and he only bathed Patrick if he “had poo on his rear end.” He also denied sexually abusing Cheryl.
In November 1990, the child subcommittee of the NNMC Family Advocacy Program determined that there was substantiated child sexual and physical abuse. On December 20, 1990, a Board of Officers reviewed the allegations of misconduct and concluded that there was sufficient evidence to require plaintiff to show cause before a Board of Inquiry why he should be retained as an officer. Six days later, plaintiff was arrested by Charles County Police. A six-count criminal information was filed in Charles County, Maryland, on February 7, 1991, alleging sexual and physical abuse.
In preparation for his defense, plaintiff took a privately administered polygraph test on February 26, 1991. The results indicated that plaintiff “did not attempt deception” when he answered the following two questions in the negative: (1) “On 24 February 1990, did you choke Patrick?” and (2) “Did you ever put soap in Patrick’s anus for sexual gratification.”
On February 26, 1991, the Commander of NMPC appointed Captain F.L. Bowman, Captain H.W. Nesbitt, and Captain J.R. McNeil, to serve on the Board of Inquiry. A hearing was held from March 12-15, 1991, and plaintiff was represented by both military and civilian counsel. At the hearing, Dr. Davis testified that she had interviewed Patrick and, using anatomically correct dolls, Patrick had asked for an object he called a bar of soap, placed it in the adult doll’s hand, and inserted it in the child doll’s anus. Dr. Davis said she believed Patrick’s testimony and opined that he had not been coached because, inter aha, he “was not in any [way] willing to change his story” despite her attempts to confuse him.
After the government’s case in chief was closed, plaintiffs counsel announced that Mary Milas had decided not to testify even though the government had identified her as a witness and had encouraged her to appear. Plaintiffs counsel also noted that Mary could not be compelled to testify because the Board of Inquiry lacked subpoena power.
Plaintiff called numerous defense witnesses who testified of his good character. They described him as kind, dependable, incapable of hurting others, absolutely honest, credible, a superlative chaplain, and an officer capable of continued honorable service as a chaplain in the Navy. Some volunteered that they would trust plaintiff with their own children.
Plaintiff elected to offer an unsworn statement because civilian criminal charges were pending at the time and his civilian attorney had advised him not to make a sworn statement prior to the criminal action.
In rebuttal, the government called Rear Admiral Roberta Hazard (RADM Hazard). RADM Hazard gave her opinion that “if the charges are true there is no place for Chaplain Milas in the naval service.” She also stated that “even if he is found not guilty of the charges as brought, ... he may lack within his own community ... some of the credibility that is particularly desirous in a chaplain,” and added that she would have “some trepidations with regard to the degree to which the individual who is a chaplain could successfully execute his or her role after the Board of Inquiry found him or her not guilty.” However, she later clarified her statement by explaining that she would not ask the Board of Inquiry to separate him from the service regardless of its findings about the underlying abuse. RADM Hazard also stated that Admiral Boorda would make the final decision on appropriate disciplinary action.
Dr. Sandra Rosswork, a psychologist and the Family Advocacy Program manager and plaintiffs superior, explained that the Navy can choose between separating or attempting to treat a sex offender. Dr. Rosswork clearly acknowledged that even though separation processing is mandatory for enlisted personnel who committed serious sexual perversion, it is not mandatory for officers. In this case, Dr. Rosswork said she and two ease managers had reviewed the subcommittee’s recommendation and decided that plaintiff was not eligible for the treatment option. Captain Urice, plaintiffs commanding officer, signed the recommendation.
On March 15, 1991, the Board of Inquiry unanimously concluded that plaintiff had not assaulted his son, but did find that he had committed indecent and perverted acts by inserting soap and ointment into Patrick’s anus with intent to arouse and gratify his lust and sexual desires, that he engaged in conduct unbecoming an officer by sexually abusing his son, and that he had failed to demonstrate the acceptable leadership and conduct required of an officer of his grade. The Board of Inquiry recommended an Other Than Honorable discharge, and expressly stated that “any evidence of preservice misconduct, and/or evidence of misconduct iden
On July 17, 1991, the jury in the civilian criminal trial conducted in the Charles County Circuit Court acquitted plaintiff on all counts of alleged physical and sexual abuse against Patrick.
On August 27, 1991, a Board of Review met and issued a report unanimously sustaining the Board of Inquiry’s findings that plaintiff should be separated for indecent acts with a child, conduct unbecoming an officer, sexual perversion, and substandard performance of duty. The Assistant Secretary of the Navy (Manpower and Reserve Affairs) recommended on April 30,1992, that plaintiff be discharged under other than honorable conditions. On May 11, 1992, plaintiff asked the Assistant Secretary of the Navy to reconsider her decision. She denied the request the same day. On May 13,1992, plaintiff was discharged under conditions other than honorable for commission of a serious offense.
Plaintiff petitioned the Board for Correction of Naval Records (BCNR) on March 3, 1994, requesting that his administrative separation be set aside, that he be restored to duty, and that all references to sexual abuse in his records be expunged. The BCNR convened an executive session on November 15, 1994. The BCNR refused to grant the relief sought, concluding that the evidence relied upon below had been properly presented and there was a preponderance of evidence that plaintiff had sexually molested his son.
On April 13, 1998, plaintiff filed his complaint in this court asserting three causes of action. First, plaintiff alleges violation of the Fifth Amendment’s right to due process. The second cause of action claims that the BCNR failed to correct plaintiffs record despite substantial evidence that plaintiff did not commit the alleged misconduct. Third, plaintiff complains that his Sixth Amendment rights to compulsory process, confrontation, and cross-examination were violated. The United States filed the Defendant’s Motion for Judgment Upon the Administrative Record on July 27, 1998. Plaintiff responded on September 21, 1998, with Plaintiffs Opposition to Defendant’s Motion for Judgement on the Administrative Record and Cross Motion for Judgement on the Administrative Record.
DISCUSSION
Motions for judgment on the administrative record are reviewed under the same standards as motions for summary judgment. See RCFC 56.1(a); Hoskins v. United States, 40 Fed.Cl. 259, 270 (1998). Consequently, judgment on such motions is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The role of the court is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249, 106 S.Ct. 2505. In this case, the parties do not attempt to demonstrate any genuine disputes over material facts, and the court finds that none exist. Therefore, the court turns to the issues of law.
A. Jurisdiction
It has long been established that a court created by statute has no jurisdiction except that which is conferred by statute. See Boddie-Noell Enters. v. United States, 36 Fed.Cl. 722, 728 (1996), aff'd, 132 F.3d 54 (Fed.Cir.1997). Therefore, as an Article I court created by Congress, see Slovacek v. United States, 40 Fed.Cl. 828, 833 (1998), the Court of Federal Claims cannot exercise its limited jurisdiction beyond that which Congress has provided.
In section 1491 of Title 28 (Tucker Act), the court is granted “jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department.” 28 U.S.C. § 1491(a)(1) (1994). The court is also granted jurisdiction to “provide an entire remedy and to complete the relief afforded by the judgment” rendered pursuant to § 1491(a)(1), including the power to “is
In this case, plaintiff relies upon 37 U.S.C. § 204 as the statutory basis for money damages. “It is well established that 37 U.S.C. § 204 (‘Pay and Allowances of the Uniformed Services’) serves as the money-mandating statute applicable to military personnel claiming damages and ancillary relief for wrongful discharge.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.1997). Therefore, “[p]ursuant to 28 U.S.C. § 1491(a)(2) and 37 U.S.C. § 204, a service member may file a complaint in the Court of Federal Claims for back pay on the basis that he has been unlawfully discharged.” Kindred v. United States, 41 Fed.Cl. 106, 111 (1998).
If plaintiff had asserted his first and third causes of action exclusively on the basis that the constitution had been violated, the court would be required to dismiss those claims because the Fifth and Sixth Amendments are not money mandating and, consequently, cannot combine with the Tucker Act to provide the court jurisdiction. See Black v. United States, 28 Fed.Cl. 177, 186, aff'd, 16 F.3d 421 (Fed.Cir.1993) (“Although plaintiff seeks money damages against the United States based on statutory grounds, the Due Process Clause does not provide an additional cause of action,” hence no jurisdiction over claimed violation of “due process right to cross-examine and confront adverse witnesses”); Yount v. United States, 23 Cl.Ct. 372, 379 n. 8 (1991), aff'd, 985 F.2d 583 (Fed.Cir.1992) (“it is well established that the court lacks jurisdiction to consider due process claims based on the fifth or fourteenth amendments”).
The court finds that plaintiff’s first and third claims are not based solely upon the constitutional amendments. In his cross-motion, plaintiff cites 37 U.S.C. § 204 as statutory authority mandating money damages for wrongful termination from the military. Therefore, the court derives jurisdiction from the money-mandating statute and the alleged constitutional violations constitute “a factor in the claim for which Tucker Act jurisdiction is established.” Holley, 124 F.3d at 1466. Consequently, the court may “consider[ ] the constitutional issue[s] in the course of determining whether the discharge was wrongful.” Id.; see also Cameron v. United States, 34 Fed.Cl. 422, 426-27 n. 10 (1995) (“the pay statutes are the only necessary requisite to jurisdiction. Once jurisdiction attaches, the serviceman can argue that his deprivation of pay was improper for various reasons, including an infringement of constitutional rights”).
B. Scope of Review
A naval officer may obtain review of an administrative discharge by proceeding directly to the Court of Federal Claims, or the officer may petition the BCNR for relief before filing suit in this court. See, e.g., Kindred, 41 Fed.Cl. at 109 & n. 1. “An appeal to a board for the correction of military records is not a statutorily mandated prerequisite to federal court jurisdiction.” Gallucci v. United States, 41 Fed.Cl. 631, 644 (1998). The decision to pursue a remedy before the BCNR provides the claimant an extra level of review, but
[l]egal precedent dictates that it is inappropriate for this court to review on appeal[ ] new issues which should have been brought to the attention of the administrative agency competent to hear it, in this case, the BCNR. A party is not entitled to many independent chances to prevail, and his voluntary choice [to appeal to the BCNR] determines the extent of the court’s review.
... Allowing a party to withhold important issues from the board and later present them to this court is impermissible.
Id. (citations omitted); see also Moyer v. United States, 41 Fed.Cl. 324, 328 (1998) (failure to raise argument at board of corrections waived the claim because officer “was obligated to raise before the [board of corrections] any known objections ... that he wished to preserve for judicial review in this court”); Doyle v. United States, 220 Ct.Cl.
In order for the issue to have been “raised,” plaintiff must have given the BCNR a reasonable opportunity to identify and address the alleged error. The court reads objections made before the BCNR broadly, but “plaintiffs are required to voice their objections in such a way that the Secretary or Correction Board is aware of [the] problems.” Doyle, 599 F.2d at 1001. An argument which “addresse[s] the same general theme” but is based on a different legal theory is not sufficient. See Moyer, 41 Fed.Cl. at 328 & n. 3.
Several of plaintiff’s arguments are not properly before the court because they raise procedural issues which were not raised before the BCNR. For example, plaintiff argues for the first time that the government violated NAVMEDCOMINST 6320.22(i)(ll) (Jan. 19, 1989), which directs the Family Advocacy Representative to ensure that an alleged offender is “apprised of the implications of FAP [Family Advocacy Program] involvement and is given the opportunity to give information to the CRS (Case Review Subcommittee).” In his petition to the BCNR, plaintiff mentioned the child subcommittee as a step in the procedural history of the case, but nowhere in the petition or any of the twenty documents appended to the BCNR petition did plaintiff complain that he had been denied notice and an opportunity to submit information. Because the BCNR was not made aware of the alleged error, the issue “was not ventilated administratively before the BCNR,” Laningham v. United States, 30 Fed.Cl. 296, 315 (1994), and the agency was left without “an opportunity to make adjustments and correct errors on the administrative level, thus permitting the government to mitigate or avoid large damage claims that might otherwise be created.” Doyle, 599 F.2d at 1001 (citations and quotation marks omitted). Therefore, “this claim may not be raised for the first time in this court.” See Laningham, 30 Fed.Cl. at 315.
Plaintiff also argues for the first time that the case review subcommittee procedures violate due process because plaintiff was “tried and found guilty” by the subcommittee without being given the constitutionally required notice and hearing. Having failed to raise this issue before the agency, he may not raise it here for the first time. See id. However, even if the court were authorized to consider this argument, the court would find it meritless.
Plaintiff asserts that the ease review subcommittee took away both a property interest and a liberty interest without providing him due process. In Canonica v. United States, 41 Fed.Cl. 516 (1998), the court recently reviewed the due process rights of military personnel:
Persons are entitled to due process before they can be deprived of property or liberty. Courts have held that an enlisted member of the armed forces does not have a property interest in his employment because he may be discharged “as prescribed by the Secretary” of his service. However, courts have held that an enlisted member of the armed forces has a liberty interest in his employment.
This liberty interest prevents the military from discharging a service member without due process — but only in cases where a “stigma” would attach to the discharge.
Id. at 524 (citations omitted). These principles also apply to officers. Compare Paskert v. United States, 20 Cl.Ct. 65, 77 (1990) (case involving discharged Army captain; court held that “[sjervice members have no constitutional rights to remain on active duty, and their rights are defined by the applicable statutes”).
Because plaintiff had no property interest in his employment, he had no right to due process to protect that nonexistent interest when his case was being considered by the subcommittee. Therefore, plaintiff’s reliance on the theory that he lost a property interest is misplaced.
C. Standard of Review
In addition to limiting the scope of review, plaintiffs decision to petition the BCNR before seeking relief from this court also affects the standard of review.
Once a plaintiff has sought relief from a correction board, ... the plaintiff is bound by that board’s determination unless he can satisfy the difficult standard of proof that the correction board’s decision was illegal because it was arbitrary, capricious, or in bad faith, or unsupported by substantial evidence, or contrary to law, regulation or mandatory published procedure of a substantive nature by which plaintiff has been seriously prejudiced, or money is due.
Hoskins v. United States, 40 Fed.Cl. 259, 271-72 (1998) (quoting Palmer v. United States, 38 Fed.Cl. 316, 324 (1997)); see also Gallucci, 41 Fed.Cl. at 643. Great deference is afforded the BCNR’s decisions because “Congress has entrusted the primary duty of correcting military records to the correction boards.” Hoffman v. United States, 16 Cl.Ct. 406, 408 (1989) (Hoffman I), aff'd 894 F.2d 380 (Fed.Cir.1990) (Hoffman II).
Mere technical procedural error is insufficient to warrant reversing the agency’s administrative decision. The error must be a violation of “mandatory published procedure of a substantive nature by which plaintiff has been seriously prejudiced.” Gallucci, 41 Fed.Cl. at 643 (citation omitted); Krauss v. United States, 40 Fed.Cl. 834, 838 (1998) (quoting Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 811 (1979)); Hoskins, 40 Fed.Cl. at 271-72 (quoting Palmer, 38 Fed.Cl. at 324); compare Porter v. United States, 163 F.3d 1304, 1319 (Fed.Cir.1998) (surveying earlier case law and concluding that “[i]n-stances of fundamental error ... are not susceptible to review under the harmless error test” and require an appropriate remedy, but non-fundamental procedural defects are subject to the “but for” or “harmless error” tests). The heavy burden of demonstrating clear and convincing evidence that the BCNR erred rests on the plaintiff. See Gallucci, 41 Fed.Cl. at 643; see also Doe v. United States, 132 F.3d 1430, 1434 (Fed.Cir.1997).
D. Improper Command Influence
Plaintiff alleges that RADM Hazard and Dr. Rosswork exerted improper command influence over the Board of Inquiry and Board of Review in violation of 10 U.S.C. § 837 (1994).
Plaintiff does not suggest that any of the board members fell under the command of RADM Hazard. Instead, plaintiff weakly argues that RADM Hazard worked for Admiral Boorda, and the members of the Board of Inquiry and the Board of Review were on Admiral Boorda’s staff. The fact that the board members and RADM Hazard share a common superior officer is not sufficient on its own to demonstrate a command relationship. See Hoffman II, 894 F.2d at 384 (colonel reporting to brigadier general was not in same chain of command as a captain who reported to same brigadier general through different colonels).
Plaintiff also argues that RADM Hazard exerted improper command influence by pressuring the Board of Review, which “merely performed a perfunctory cursory review.” This allegation is unsubstantiated by any evidence to support the existence of a command relationship between the Board of Review members and RADM Hazard. Furthermore, plaintiff provides no evidence to support the accusation that RADM Hazard communicated her alleged desires to the Board of Review in any improper way, and fails to prove that the allegedly insufficient review seriously prejudiced him. See discussion infra at I (Board of Review did not fail to fulfill its duties).
Plaintiff also attempts to demonstrate command influence by attributing RADM Hazard’s testimony to Admiral Boorda. Plaintiff argues that the members of the boards of inquiry and review “could have reasonably inferred that she [RADM Hazard] was speaking with the approval and consent of the Chief of Naval Personnel, Admiral Boor-da.” However, nothing in the record substantiates plaintiffs assertion. Therefore, plaintiffs conclusion that RADM Hazard exerted improper command influence “rests upon hypothetical speculation and conjecture,” and the court has “no basis for rejecting the decision of the Correction Board that [plaintiff] had not established a basis for correction of his military records.” Hoffman II, 894 F.2d at 385.
2. Dr. Rosswork
Plaintiffs contention that Dr. Rosswork, a civilian, exerted improper command influence is also without merit. Plaintiff suggests that Dr. Rosswork’s involvement in the case and her testimony before the Board of Inquiry “should be imputed to her boss, RADM Hazard and to the Chief of Naval Personnel,” but plaintiff gives no reason why. These bare accusations, which rely on the already rejected suggestion that RADM Hazard’s conduct should, without supporting evidence, be imputed to Admiral Boorda, also fail to demonstrate improper command influence.
E. Acquittal by a Civilian Criminal Court
Plaintiff argues that his acquittal in state court required the BCNR to correct his military record under the doctrine of collateral estoppel. “The principle of collateral estoppel dictates that an issue that is fully and fairly litigated, is determined by a final judgment, and is essential to that judgment, is conclusive in a subsequent action between the same parties.” Bingaman v. Dep’t of the Treasury, 127 F.3d 1431, 1436-37 (Fed.Cir.1997). Because plaintiff does not satisfy all of these elements, his reliance on this doctrine is misplaced.
The issue of plaintiffs misconduct for purposes of administrative discharge was not fully and fairly litigated in Maryland criminal court because the state court considered different issues. To be convicted of criminal child abuse under Maryland law, plaintiff had to be found guilty beyond a reasonable doubt. See Wills v. State, 329 Md. 370, 620 A.2d 295, 297 (Md.1993) (“We have been taught by the Supreme Court of the United States that the reasonable doubt standard is constitutionally mandated ... and is an indispensable component of every criminal proceeding”). In administrative discharge proceedings, by contrast, the Board of Inquiry is required only to find a preponderance of evidence that an officer should be discharged
Because the reasonable doubt standard is higher than the preponderating evidence standard, when a jury in a criminal ease concludes that there is insufficient evidence to establish proof of guilt beyond a reasonable doubt, it does not necessarily follow that a preponderance of evidence was also lacking. Therefore, the issue of guilt by preponderating evidence was not an issue essential to the judgment of acquittal in Maryland court, and the doctrine of collateral estoppel cannot apply in this case.
Collateral estoppel is also unavailable to plaintiff because the federal government was not a party to the Maryland state prosecution. “Although collateral estoppel can be applied in some instances when the parties to the two proceedings in question differ, it is available against the government only when the parties to the two proceedings are the same.” Bingaman, 127 F.3d at 1439. Consequently, the doctrine of collateral estoppel cannot foreclose the Navy’s right to pursue administrative separation proceedings against plaintiff.
F. Polygraph Evidence
In its decision, the BCNR noted that it “considered the exculpatory evidence introduced in [plaintiffs] behalf, especially the polygraph results and the testimony of the polygraph examiner at the board of inquiry. However, the [BCNR] is reluctant to give great weight to the results of a polygraph examination.” The BCNR reasoned that Military Rule of Evidence 707 (Rule 707) prohibits the use of polygraph evidence in courts-martial because of the danger that the trier of fact will be misled; its use could distract attention from the facts of the case by focusing on the validity of polygraphs, the competence of the examiner, and the reliability of the particular test; and the value of polygraph evidence is questionable because its reliability has not been sufficiently established. Plaintiff argues that these statements show that the BCNR failed to properly consider the exculpatory polygraph evidence. Plaintiff is wrong.
In United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), eight members of the Supreme Court recently concluded that “there is simply no consensus that polygraph evidence is rehable. To this day, the scientific community remains extremely polarized about the reliability of polygraph techniques.” Id., 523 U.S. 303, 118 S.Ct. at 1265 (Part II-A of the opinion of the Court authored by Thomas, J., and joined by Rehnquist, C. J., Scalia, J., and Souter, J.); id., 523 U.S. 303, 118 S.Ct. at 1269 (Kennedy, J., concurring in part with Parts I, II-A, and II-D of the opinion of the Court and concurring in the judgment, joined by O’Connor, J., Ginsburg, J., and Breyer, J.). The Court continued: “there is simply no way to know in a particular case whether a polygraph examiner’s conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams.” Id., 523 U.S. 303, 118 S.Ct. at 1266 (Part II-A). In the end, the Court held that Rule 707, “a per se rule excluding all polygraph evidence,” was “a rational and proportional means of advancing the legitimate interest in barring unreliable evidence.” Id. (Part II-A).
The language of Scheffer justifies the BCNR’s decision to discount the weight of plaintiff’s polygraph examination because it squarely approves of the BCNR’s reasoning that “the probative value of such [polygraph] evidence is questionable since the reliability of polygraph evidence has not been sufficiently established.” Therefore, under Schef-fer, the BCNR’s decision to admit the polygraph evidence but discount its weight on the basis of questionable reliability was not error.
Plaintiff argues that Scheffer does not control this case because Scheffer postdates the BCNR’s decision and the “reviewing court must look to the law in effect at the time of the ruling.” This argument is erroneous. In Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993), the Supreme Court held:
*715 When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.
Id. at 97, 113 S.Ct. 2510. Consequently, this court must give Scheffer full retroactive effect, and must uphold the BCNR’s finding that the unreliable polygraph evidence deserved little exculpatory weight.
G. Limitations on Use of Conduct Prior to Service or More Than Five Years Old
1. Error Allegedly Committed by the Board of Inquiry
Plaintiff argues that proceedings before the Board of Inquiry were tainted by evidence of misconduct that occurred before plaintiff entered the military and misconduct that was more than five years old. Navy regulations state that “conduct identified more than five years prior to the initiation of processing for separation under paragraph 2 of this enclosure
In this case, the record indicates that all of the evidence of misconduct was discovered during investigations conducted after the alleged assault against Patrick on February 24, 1990. The Board of Inquiry convened approximately one year later in March 1991. Thus, plaintiff has not shown that the evidence of prior misconduct was identified more than five years prior to the initiation of discharge proceedings. Consequently, the evidence was admissible.
Furthermore, the evidence was only used for the limited purposes allowed by Navy regulations:
Whenever evidence of preservice misconduct is presented to a board, the board may consider it only for the purpose of deciding whether to recommend separation or retention of the respondent. Such evidence shall not be used in determining the recommendation for characterization of service. The board shall affirmatively state in its report that such evidence was considered only for purposes of determining whether it should recommend retention or separation of the officer.
SECNAVINST 1920.6A, enclosure 4, U 10(d) (Nov. 21 1983). Plaintiff acknowledges that “the report of the board [of Inquiry] indicates that the evidence of pre-service misconduct was not used in determining the characterization of service.” He complains, however, that a large proportion of evidence showed preserviee abuse, and concludes that “the large quantity of the testimony would tend to negate [the Board’s] statement.”
Plaintiffs argument is wrong. The evidence of preservice misconduct could properly be used by the Board of Inquiry to decide whether plaintiff should be administratively discharged. Therefore, it was properly admitted. The court also finds that the evidence was properly used. This court presumes that ‘“administrators of the military, like other public officers, discharge their duties correctly, lawfully, and in good faith.’” Doe, 132 F.3d at 1434 (quoting Sanders, 594 F.2d at 813). Plaintiff has failed to rebut this presumption with any evidence. Therefore, the court finds that the Board of Inquiry acted in accordance with its express statement that the evidence of preservice misconduct was not used improperly to characterize the nature of plaintiffs discharge.
2. Error Allegedly Committed by the BCNR
The BCNR found that evidence of preser-vice misconduct was properly considered by the Board of Inquiry. Plaintiff argues that the BCNR’s reasoning was flawed because, if plaintiff had been prosecuted in a court martial, the Military Rules of Evidence would have excluded evidence of propensity to commit sexual abuse, including evidence of pre-
This argument is erroneous for several reasons. First, it is based on a misunderstanding of the BCNR’s decision. The BCNR did not use the Military Rules of Evidence to justify exclusion of plaintiffs polygraph evidence — the polygraph evidence was admitted and considered by the Board of Inquiry and the BCNR. The BCNR cited Military Rule of Evidence 707 as persuasive authority that polygraph evidence was not reliable and should be afforded little weight. Thus, the BCNR did not selectively apply the Military Rules of Evidence to exclude exculpatory polygraph evidence while admitting inculpatory evidence of prior misconduct.
Plaintiff is also wrong because, as plaintiff acknowledges in his motion, the Military Rules of Evidence do not apply to administrative proceedings. See SECNAVINST 1920.6A, enclosure 8, H B(10)(a) (Apr. 17, 1984). Consequently, “matter not admissible in a court of law may be accepted by Boards of Inquiry.” SECNAVINST 1920.6A, enclosure 8, HB(10)(b) (Apr. 17, 1984). Furthermore, the regulations allow the Board of Inquiry to consider evidence of prior misconduct for purposes of discharge. See SEC-NAVINST 1920.6A, enclosure 4, 1110(d). Therefore, the BCNR did not err in allowing the Board of Inquiry to consider evidence of preservice misconduct.
H. Right to Confront Witnesses
1. Sixth Amendment Rights to Confrontation, Cross-examination, and Compulsory Process
Plaintiff argues that his inability to examine Mary Milas at the Board of Inquiry hearing violated his constitutional rights under the Sixth Amendment. The court has held that it does have jurisdiction to consider those alleged violations. See discussion supra at A. However, a finding that the court has jurisdiction to consider a claim does not necessarily make that claim viable. In this case the claim is without merit.
The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him [and] to have compulsory process for obtaining witnesses in his favor.” U.S. Const, amend. VI (emphasis added). In this case, as in Yount v. United States, “plaintiff misapprehends the nature of the sixth amendment, which pertains only to criminal prosecutions.” 23 Cl.Ct. 372, 379-80 n. 8 (1991). In Yount, the Air Force National Guard discharged an officer under other than honorable conditions for misconduct. Prior to discharge, the officer was afforded a review by an Officers Efficiency Board (OEB) which considered oral and documentary evidence. The officer complained that he had been denied due process, and the court held that the officer’s reliance on the Sixth Amendment was misplaced because the proceeding was not criminal in nature.
This case, like Yount, involves administrative discharge proceedings, not criminal prosecution. See Kindred, 41 Fed.Cl. at 113 (“an administrative discharge hearing is not a criminal proceeding”). Consequently, plaintiff’s reliance on the Sixth Amendment is no more availing than it was in Yount, and the court will dismiss plaintiffs third claim as a matter of law.
2. Fifth Amendment Rights to Confrontation, Cross-examination, and Compulsory Process
Plaintiff also argues that the Fifth Amendment’s right to procedural due process guaranteed him the right to call, confront, and cross examine Mary Milas as a witness before the Board of Inquiry. The court recognizes that plaintiffs other than honorable discharge did stigmatize him and the administrative discharge proceedings did affect his liberty interests. Consequently, the court holds that plaintiff is entitled to due process. See discussion supra at B; Canonica, 41 Fed.Cl. at 524. However, a careful analysis of the applicable law and facts demonstrates that plaintiffs due process rights were not violated.
However, the Supreme Court has also “recognized in past cases that ‘the tests and limitations [of due process] may differ because of the military context.’” Weiss v. United States, 510 U.S. 163, 177, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994) (quoting Rostker v. Goldberg, 453 U.S. 57, 67, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981) (text as modified in Weiss)). The Supreme Court explained that
Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs, and that Clause provides some measure of protection to defendants in military proceedings.6 But in determining what process is due, courts “must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U.S. Const., Art. I, § 8.”
Weiss, 510 U.S. at 176-77, 114 S.Ct. 752 (quoting Middendorf v. Henry, 425 U.S. 25, 43, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976)). “Judicial deference thus “is at its apogee” when reviewing congressional decisionmaking in this area.” Id. (quoting Rostker, 453 U.S. at 70, 101 S.Ct. 2646).
Plaintiffs primary objection is that the “government refused to produce Mary Mi-las”
In Chapter 60 of Title 10, Congress outlined the procedures to be used for the separation of regular officers for misconduct. See 10 U.S.C. §§ 1181-87 (1994). The statute directed the Secretary of the Navy to convene Boards of Inquiry to “receive evidence and to make findings and recommendations” whether an officer had shown cause for retention, and to “give a fair and impartial hearing to each officer” accused of misconduct or substandard performance. 10 U.S.C. § 1182. Definition of many of the detañed procedures was entrusted to the Secretary of Defense and the Secretary of the Navy, see 10 U.S.C. § 1181(b), but Congress did establish specific minimum procedural requirements. See 10 U.S.C. § 1185(a). The Secretary for Defense must assure that each officer subjected to adminis
Because judicial deference is at its apogee when reviewing congressional decisions about due process in military proceedings. Weiss, 510 U.S. at 177, 114 S.Ct. 752, the court holds that, in administrative proceedings to discharge military officers for misconduct, due process does not require compulsory process of civilian witnesses who are beyond the jurisdiction of the military. Therefore, the Board of Inquiry’s inability to subpoena Mary Milas to testify against her will was not a violation of due process.
Plaintiff also complains that he had a right to confront and cross-examine Mary Milas because she was a “key witness”:
Plaintiff was deprived of his Sixth Amendment right to confront and cross-examine witnesses and by extension his Fifth Amendment right to due process. Mary Milas was a key witness. She was present in the same house when the alleged molestation took place. She was a trained social worker who should have detected any designs [sic] of molestation long before they happened. More importantly, she was knowledgeable enough to coach young Pah rick into saying the most damaging things. Finally, there was evidence that she used her professional contacts to help manipulate the system to try to persecute Chaplain Milas. Denying the plaintiff the opportunity to confront and cross-examine her sounded the death knell of fundamental fairness in this case.
Pl.’s Mot. at 25-26; see also Complaint at UK LXVII-LXXI.
Plaintiffs argument erroneously assumes that a witness “who, being present, personally sees or perceives a thing” is necessarily a witness “who testifies to what [s]he has seen, heard, or otherwise observed.” Black’s Law Dictionary 1603 (6th ed.1990). This non se-quitur is based on the misconception that two distinct meanings of the word “witness” are fungible.
Furthermore, even if the court were to interpret plaintiffs argument in a way that would avoid the non sequitur, plaintiffs argument still fails. On the one hand, if plaintiffs argument is construed to assert that he was denied the right to confront and cross-examine Mary Milas because she was not a witness against him, the argument fails because the constitution guarantees plaintiff the right “to be confronted with the witnesses against him,” U.S. Const, amend. VI, not the right to be confronted with any person who “sees or perceives a thing,” Black’s Law Dictionary 1438. On the other hand, if plaintiffs brief is construed to argue that he was denied the right to confront and cross-examine Mary Milas because, as a key witness, she should have been called as a witness against him, then the argument fails because it is merely a variation on plaintiffs assertion that he should have been afforded
I. Adequate Consideration by the Board of Review
Plaintiff alleges that the Board of Review violated SECNAVINST 1920.6A, enclosure 8, 1 C(5) (Apr. 17, 1984), which states: “The Board of Review shall review the record, the findings and recommendations of the Board of Inquiry, and any minority reports or rebuttal submitted thereto.” Id. Plaintiff argues that the Board of Review convened for only four hours, and it would be “physically impossible” for the Board of Review to have reviewed all of the voluminous record in so short a time.
The court must begin the analysis of plaintiffs argument by reiterating the powerful presumption that military officials, including the officers who served on the Board of Review, “‘discharge their duties correctly, lawfully, and in good faith.’” Doe, 132 F.3d at 1434 (quoting Sanders, 594 F.2d at 813). Plaintiff bears the burden of producing “well-nigh irrefragable proof to overcome the presumption.” Hoffman I, 16 Cl.Ct. at 410 (quoting Sanders v. United States Postal Serv., 801 F.2d 1328, 1331 (Fed.Cir.1986)). The court finds that plaintiff has not made the necessary showing to demonstrate error. Although the applicable regulation does require the board to “review” the record, findings, and rebuttals, see SECNAVINST 1920.6A, enclosure 8, 1f C(5), neither the regulation nor the applicable statute define with any greater precision the scope of the activity contemplated by the word “review.” See 10 U.S.C. § 1183, see also SECNAVINST 1920.6A, enclosure 1 (definitions section). The court is loathe to impose additional requirements on a procedure which Congress expressly granted the Secretary of the Navy discretion to devise. See 10 U.S.C. §§ 1181(a) (Secretaries of Defense and military departments authorized to prescribe regulations to govern review procedures), 1183(a) (Secretary to convene Boards of Review “at such times as the Secretary may prescribe”). Therefore, the court finds plaintiffs argument to be without merit.
J. Substantial Evidence
Plaintiff argues that the BCNR’s decision not to “correct” plaintiffs military record was unsupported by substantial evidence. This argument, too, is unavailing. “The court is not required to re-weigh the evidence, but [to determine] whether the conclusion being reviewed is supported by substantial evidence.” Black, 28 Fed.Cl. at 183 (internal quotations and emphasis omitted). “Substantial evidence is ‘[s]ueh relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Hoffman I, 16 Cl.Ct. at 409 n. 2 (quoting Richardson, 402 U.S. at 401, 91 S.Ct. 1420). The court finds that substantial evidence did exist to justify the BCNR’s decision. The testimony provided by Patrick and the expert witnesses who examined and treated him is adequate to support the BCNR’s conclusion that the Secretary did not err in his decision to discharge plaintiff for sexual abuse of a child and to characterize that discharge as other than honorable.
CONCLUSION
In the absence of any questions of material fact, this case is appropriate for disposition on the administrative record. Having found that none of the claims or arguments advanced by the plaintiff are valid, plaintiffs cross-motion for judgment on the administrative record (filed September 21,1998) is DENIED and Defendant’s Motion for Judgment Upon the Administrative Record is ALLOWED.
IT IS SO ORDERED.
. Unsworn statements are not subject to cross-examination or examination by the Board of Inquiiy members. See SECNAVINST 1920.6A, enclosure 8, V (B)(6)(j) (April 17, 1984).
. Section 837(a) states, in pertinent part:
No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.
10 U.S.C. § 837(a).
. Plaintiff also contends that Dr. Rosswork’s testimony prejudiced plaintiff because the two had experienced "professional conflicts,” but, again, plaintiff fails to support his argument with evidence to support his conclusoty accusations.
. Plaintiff's other arguments that the state acquittal should have foreclosed administrative discharge have been considered and found equally meritless.
. SECNAVINST 1920.6A, enclosure 4, 112 (Nov. 21, 1983) requires the Chief of Naval Personnel to initiate discharge proceedings against active duty officers whose record indicates that they should be required to show cause for retention because of misconduct.
. See also Weiss, 510 U.S. at 194, 114 S.Ct. 752 (Ginsburg, J., concurring) ("[Mjen and women in the Armed Forces do not leave constitutional safeguards and judicial protection behind when they enter military service”); Doe, 132 F.3d at 1434 (quoting Weiss, 510 U.S. at 194, 114 S.Ct. 752 (Ginsburg, J., concurring)); Holley, 124 F.3d at 1466 (same).
. It is noteworthy that plaintiffs argument mis-characterizes the facts. The Navy did not refuse to produce Mary Milas. On the contrary, the government designated Mary Milas as an anticipated witness prior to the time that the Board of Inquiry convened and invited her to appear and testify. In fact, at the hearing, plaintiff's own counsel acknowledged "for the record that I know that the Government has over a period of time indicated to her [Mary Milas] there [sic] desire for her to make herself available." Plaintiff’s counsel further conceded that "the board members as well as I, as well as the Government do not have subpoena power so we can not [sic] compel her to appear.” Thus, the government did not "refuse to produce Mary Milas,” but rather, she, as a civilian outside of the military’s jurisdiction, decided not to testify despite the invitations extended to her.
. Plaintiff suggests that Mary Milas might admit that she had coached Patrick to accuse plaintiff of sexual abuse.
. Rather than complaining that he should have been able to subpoena Mary Milas to testify on his behalf, plaintiff would be complaining that the government should have subpoenaed Mary Milas as a material witness so that plaintiff could cross-examine and confront her.
