OPINION
Mr. Michael B. Volk (plaintiff or Mr. Volk), enlisted in the United States Navy (defendant, the Navy or the government) in December 1990 and served as a Navy SEAL for seventeen years.
Defendant filed a motion requesting that the court dismiss plaintiffs claims for lack of jurisdietion and failure to state a claim upon which relief can be granted or, in the alternative, enter judgment for defendant on the administrative record. See Mot. to Dismiss, or, in the Alternative, Mot. for J. on the Admin. R. (defendant’s Motion or Def.’s Mot.), Dkt. No. 8, at 1. With his response to defendant’s Motion, plaintiff filed a cross-motion for judgment on the administrative record. See Resp. to Def.’s Mot. to Dismiss & Pl.’s Cross Mot. for J. on the Admin. R. (plaintiffs Motion or Pl.’s Mot.), Dkt. No. 11, at 1. Now before the court are: defendant’s Motion, filed October 1, 2012; plaintiffs Motion, filed December 31, 2012; Defendant’s Response to Plaintiffs Cross-Motion for Judgment on the Administrative Record and Reply in Support of Defendant’s Motion to Dismiss, or, in the Alternative, Motion for Judgment on the Administrative Record (defendant’s Reply or Def.’s Reply), Dkt. No. 13, filed January 23, 2013; and Plaintiffs Reply to Defendant’s Response to Motion to Dismiss and Cross-Motions for Judgment on the Administrative Record (Pl.’s Reply), Dkt. No. 16, filed February 11, 2013. For the reasons stated below, defendant’s Motion is GRANTED-IN-PART and DENIED-IN-PART; plaintiffs Motion is DENIED.
A. Events Leading to Revocation of Mr. Yolk’s SEAL NEC
The events leading up to the revocation of plaintiffs SEAL NEC took place during a training period before Mr. Volk’s unit was deployed to Iraq. See AR 6 (Bonelli letter) (stating that the training period ran from May 2006 to October 2007). Plaintiffs description of these events portrays plaintiff as a whistleblower against whom the Navy retaliated because he revealed the reckless behavior of two superior officers. See Compl. ¶ 52; PL’s Mot. 2-5. Defendant’s description stresses Mr. Volk’s disciplinary problems, his poor performance as a Navy SEAL and his refusal to deploy with his unit. See Def.’s Mot. 2-4.
During the training period, Mr. Volk became concerned with the behavior of two of his superiors, Leading Chief Petty Officer John Previtera (LCPO Previtera), see Compl. ¶¶ 8-12,15-18 (describing L CPO Previtera’s actions) and Lieutenant Commander Ledford (Lt. Cdr. Ledford), see AR 44-45 (Volk statement) (describing Lt. Cdr. Ledford’s actions). On May 8, 2006 plaintiff was promoted to leading petty officer, a position in which he reported directly to LCPO Previtera. Compl. ¶ 8. Plaintiff alleges that, between September 2006 and November 2006, “Plaintiff became concerned with LCPO Previtera’s reckless and unsafe behavior during military training events.”
Plaintiff also alleges that “[o]n January 07, 2007, while off[]duty, LCPO Previtera became intoxicated and assaulted a superior officer.”
Mr. Volk’s concerns about Lt. Cdr. Led-ford resulted from Lt. Cdr. Ledford’s “scrutinizing” and “ ‘targeting’ ... everything [plaintiff] did,” Lt. Cdr. Ledford’s actions during training exercises, and Lt. Cdr. Led-ford’s attempts to cover for LCPO Previt-era’s misconduct. See AR 44-45 (Volk statement). For example, Mr. Volk states that, during a “live fire exercise,” Lt. Cdr. Ledford “pointed a loaded weapon ... at an instructor and said ‘bang.’ ” Id. at 45. Mr. Volk believes that if Mr. Volk had done this, his SEAL NEC would have been revoked. Id. Mr. Volk further states that, during a training exercise — in which the court understands that live ammunition was not being used— Lt. Cdr. Ledford “shot an unarmed instructor and put a weapon on him to make it look like he was armed.” Id. Mr. Volk also states that Lt. Cdr. Ledford “blatantly lied to [plaintiffs] platoon and tried to cover for
During the training period, Mr. Volk suffered a series of disciplinary and other problems that led his commanding officer, Commander J.D. Thorleifson (Cdr. Thorleifson), “to completely lose all of his faith and confidence in [Mr.] Volk’s ability to carry out his duties as a Navy SEAL.” AR 18 (Thorleifson statement); see also AR 28-30 (BCNR advisory op.) (chronicling plaintiffs “noted deficiencies and incidents”). On October 13, 2006 Mr. Volk was counseled by LCPO Prev-itera “for failure to present a positive demeanor or establish any level of authority over his subordinates.” AR 28 (BCNR advisory op.). At 4:00 a.m. on January 20, 2007, before a freefall parachute training mission later on the same day, Mr. Volk was in a fight at a bar and was arrested.
In addition, on April 17, 2007 Mr. Volk was “counseled for knowing[ly] lying to his task unit commander ... when questioned about who he had informed of his whereabouts.” AR 29 (BCNR advisory op.). On May 9, 2007 Mr. Volk was issued a letter of instruction by Cdr. Thorleifson, which directed him to improve his poor performance and warned him that a failure to do so could result in the revocation of his SEAL NEC. Id. Mr. Volk was directed to “routinely cheek in with one of his Master Chiefs, so they could keep an eye on him.” AR 19 (Thorleifson statement).
Plaintiffs commanding officer, Cdr. Thor-leifson, also cited Mr. Volk’s “extensive leave periods during critical pre-deployment training detachments” as a “difficultfy].” Id. During the spring of 2007, Cdr. Thorleifson granted M r. Volk more than six weeks of leave to deal with certain family issues and to move his family to his permanent duty station. See AR 29 (BCNR advisory op.); AR 20 (Thorleifson statement) (discussing Mr. Volk’s use of the leave granted). Despite the significant amount of leave he was granted, Mr. Volk did not move his family to his permanent duty station, and even requested leave to attend a voluntary sniper training program when he “could have asked to use the time to move his family” — a decision that “puzzled” Cdr. Thorleifson. AR 20 (Thorleif-son statement).
On September 4, 2007 Mr. Volk met with Cdr. Thorleifson and requested to transfer to a different unit, Compl. ¶ 18, stating that “he was concerned for his personal safety should he deploy with [LCPO Previtera],” id. ¶ 19; see also AR 18 (Thorleifson statement) (stating that plaintiff told Cdr. Thorleifson that he “did not want to deploy with [his unit]” because “he wasn’t getting along with the leadership”). At the time, Mr. Volk was at the end of “an 18-month training cycle ... and was less than one month away from deployment.” AR 28 (BCNR advisory op.). Cdr. Thorleifson denied Mr. Volk’s request, Compl. ¶20, on the ground that replacing Mr. Volk with another SEAL “was not only
On September 11, 2007, after speaking with a lawyer, M r. Volk reconsidered his decision and asked to rescind the request to relinquish his SEAL NEC. Compl. ¶¶ 25-26; see also AR 45 (Volk statement). The same day, Mr. Volk learned that his paperwork had not yet been processed and informed Cdr. Thorleifson that he had changed his mind. Compl. ¶ 27; AR 45-46 (Volk statement). Cdr. Thorleifson advised Mr. Volk that he could either deploy with his unit or continue with the voluntary relinquishment. AR 46 (Volk statement). When plaintiff responded that “he would deploy anywhere but not with [his unit],” id., Cdr. Thorleifson informed Mr. Volk that he intended to submit a request for the involuntary revocation of Mr. Volk’s SEAL NEC,
Cdr. Thorleifson filled out an NEC change request form, stating as follows: “Recommend revocation of [SEAL NEC] due to sustaining low professional performance in NEC[-]related skills and a major lack of confidence in his capability to operate as [a] Navy SEAL.” AR 26 (NEC change request form). The relevant Navy rules require that revocation of a SEAL NEC “shall not be used as a punitive measure” and must be “based on [the] [commanding officer’s] determination [the] member is no longer suitable for assignments] ... requiring the NEC.” Naval Military Personnel Manual
Mr. Volk’s disciplinary problems continued after the revocation of his SEAL NEC. On October 17 and 22, 2007 Mr. Volk was
B. Plaintiffs Pursuit of Administrative Remedies
1. Article 138 Complaint
On November 30, 2007 Mr. Volk filed a complaint of wrong against Cdr. Thorleifson pursuant to Article 138 of the Uniform Code of Military Justice.
Cdr. Tate found, as a result of his investigation, that Cdr. Thorleifson had not provided the required “sufficient background and reasonable justification” to involuntarily revoke Mr. Volk’s SEAL NEC. AR 15 (Art. 138 investigation report) (internal quotation marks omitted). Nevertheless, Cdr. Thor-leifson explained “[a]ll of his reasons to involuntarily remove [Mr.] Volk’s trident” in a written response to Mr. Volk’s Article 138 complaint. AR 19 (Thorleifson statement). Further, in an interview with Cdr. Tate conducted as part of the Article 138 investigation, Cdr. Thorleifson explained that Mr. Volk had “put him in a bad situation” by “trying to use his Trident as a bargaining device to get out of deploying” less than a month before the deployment was to begin. Id. at 18. According to Cdr. Thorleifson, if he had agreed to Mr. Volk’s ultimatum, he would have “lost the respect [of] his command” and encouraged other SEALs to “view [threats of relinquishment] as a method to make further demands upon him.” Id. Cdr. Thorleifson expressed that Mr. Volk “did not live up to the ethos and spirit of the SEAL Creed or SEAL community” because “[a] true SEAL would never even think of using his Trident as a bargaining device or relinquish it to avoid his responsibility to deploy into combat.” Id. at 20.
In his interview with Cdr. Tate, Cdr. Thor-leifson also explained that Mr. Volk “was a problem in his command” and described Mr. Volk’s disciplinary problems. Id. at 19. Cdr. Thorleifson stated that, on one occasion, he had “reached out to support and assist [Mr.] Volk’s wife, only to have [Mr.] Volk[ ] greatly distort the accounts of the event[] and wrongfully discredit him.” Id. at 20. Cdr. Thorleifson stated that Mr. Volk had failed to advance through the ranks as was typical although “[e]veryone in CDR Thor-leifson’s command wanted [Mr.] Volk to succeed” and “gave [Mr.] Volk every opportunity to overcome his problems and get back on pace.” Id. Cdr. Thorleifson further stated that he had given Mr. Volk an “opportunity to advance” by promoting him to leading petty officer, had ensured that the punishment issued in Mr. Volk’s captain’s mast proceeding was conditionally suspended and had given Mr. Volk a year to comply with the terms of the letter of instruction. Id. Cdr. Thorleifson expressed that he had given Mr. Volk “every opportunity to recover from his mistakes,” but that “it became apparent” that Mr. Volk “wasn’t going to take advantage of the command’s assistance.” Id.
During the interview, Cdr. Tate referenced paragraph four of MILPERSMAN 1220-300,' see AR 19 (Thorleifson statement), which contains an illustrative list of “general circumstances” that “warrant revocation” of the SEAL NEC, see MILPERSMAN 1220-300 ¶ 4; see also infra Part III.C (discussing the list). Cdr. Tate asked Cdr. Thorleifson whether each of the circumstances listed in MILPERSMAN 1220-300 as warranting revocation applied to Mr. Volk. See AR 19
In furtherance of Cdr. Tate’s Article 138 investigation, Lieutenant Commander Angela Rongotes (Lt. Cdr. Rongotes), on behalf of Captain Ben Clancy, provided a legal advisory opinion in which she determined that Cdr. Thorleifson had not complied with the substantiation requirement in MILPERSMAN 1220-300 and recommended that Cdr. Thor-leifson resubmit the request to revoke Mr. Volk’s SEAL NEC. AR 51, 53 (Art. 138 advisory op.). Lt. Cdr. Rongotes stated that, under MILPERSMAN 1220-300, the commanding officer is required to provide documentation or “articulate specific instances” supporting the request and that “[a] couple of sentences from the [commanding officer] that say[ ] he lacks confidence in the sailor’s abilities ought not fly.” Id. at 53.
Accordingly, in his report assessing Mr. Volk’s Article 138 complaint, Cdr. Tate recommended that Mr. Volk’s SEAL NEC and trident “be restored with all back pay.” AR 16 (Art. 138 investigation report). Cdr. Tate found that, “[although CDR Thorleifson’s reasons were not vindictive,” the revocation should be construed as a punitive measure as a result of its timing. Id. He further recommended that Cdr. Thorleifson resubmit the paperwork to request the involuntary revocation of Mr. Volk’s SEAL NEC, attaching “sufficient background and reasonable justification.” Id. at 17.
The commander of the Naval Special Warfare Command, G.J. Bonelli (Cdr. Bonelli), rejected Cdr. Tate’s recommendation. See AR 6-9 (Bonelli letter). In a July 15, 2008 letter to the Secretary of the Navy assessing the merits of Mr. Volk’s Article 138 complaint and providing recommendations, Cdr. Bonelli found that Cdr. Thorleifson was not wrong to deny Mr. Volk’s request for a transfer less than a month before deployment in light of the “very extensive training and team[-]building exercises” Mr. Volk’s task unit had completed. Id. at 6-7. Summarizing Mr. Volk’s disciplinary history, unsatisfactory performance and ultimatum that he would resign his trident to avoid deployment if not granted a transfer, Cdr. Bonelli found that Cdr. Thorleifson was not wrong to recommend the removal of Mr. Volk’s SEAL NEC on the grounds stated in the NEC change request form. Id. at 7. Cdr. Bonelli noted that “[i]t is clear ... that the command leadership went to substantial measures to try to help [Mr.] Volk to continue to live up to the SEAL Ethos as well as assist him with his family matters.” Id. at 8. Cdr. Bonelli “specifically note[d]” “the failure of [Cdr. Thorleifson] to articulate in the [NEC change request] form his justification for the NEC removal,” but found that “the justification is amply laid out in the administrative record.” Id. at 8; see also id. at 7 (stating same). The acting assistant secretary of the Navy for Manpower and Reserve Affairs, agreeing with the conclusions reached by Cdr. Bonelli, informed Mr. Volk by a letter dated October 24, 2008 that no additional action would be taken on his Article 138 complaint. AR 27 (Article 138 decision).
2. BCNR Proceedings
By an application dated June 16, 2009 Mr. Volk petitioned the BCNR for correction of his military records and backpay. AR 4 (BCNR appl.). On October 6, 2009, J.L. Schultz, the Director of Military Community Management, issued an advisory opinion to the BCNR, concluding that “the involuntary removal of [Mr.] Volk’s NEC was justified with proper cause and procedure,” AR 30 (BCNR advisory op.), and recommending that Mr. Volk’s application be denied, id. at 31. The BCNR advisory opinion discussed the circumstances surrounding the removal of Mr. Volk’s SEAL NEC in detail and applied the provisions of MILPERSMAN 1220-300 to them. Id. at 28-30, On January 28, 2010 the BCNR, sitting in executive session,
Plaintiff filed this action in the United States Court of Federal Claims (Court of Federal Claims) on July 10, 2012. See generally Compl. In count one of the Complaint, plaintiff alleges that Cdr. Thorleifson violated the First Amendment to the United States Constitution and the Military Whistleblower Protection Act (Whistleblower Act), 10 U.S.C. § 1034 (2006), by revoking Mi-. Volk’s SEAL NEC in retaliation for Mr. Volk’s “reporting his superiors’ misconduct.” Compl. ¶¶ 49-52. In count two of the Complaint, plaintiff alleges that his SEAL NEC was revoked without due process of law. Id. ¶¶ 53-56. In addition, although plaintiffs Complaint does not specifically state a claim based upon the Military Pay Act, 37 U.S.C. § 204 (2006), as defendant acknowledges, “illiberally construed, ... the complaint seeks review of the decision of the BCNR and back pay under the Military Pay Act.” Def.’s Mot. 5; cf. Compl. ¶ 2 (asserting that this court has jurisdiction pursuant to the Tucker Act and the Military Pay Act); id. ¶¶ 55-56 (alleging that the revocation of plaintiffs SEAL NEC and trident “resulted in the deprival of Plaintiffs monetary benefits, including all back pay, allowances, retirement, and other warranted remuneration”). The court, therefore, also understands the Complaint to assert a claim for relief under the Military Pay Act.
Defendant filed a motion requesting that the court dismiss plaintiffs count one and count two for lack of jurisdiction and plaintiffs Military Pay Act claim for failure to state a claim or, in the alternative, enter judgment for defendant on the administrative record with respect to plaintiffs Military Pay Act claim. See generally Def.’s Mot. Plaintiff filed a cross-motion for judgment on the administrative record. PL’s Mot. 1. For the reasons discussed below, defendant’s Motion is GRANTED-IN-PART and DENIED-IN-PART. Plaintiffs Motion is DENIED.
II. Legal Standards
A. Motions to Dismiss Under RCFC 12(b)(1)
The Tucker Act establishes and limits the jurisdiction of the Court of Federal Claims. See 28 U.S.C. § 1491 (2006). The Tucker Act affords this court jurisdiction over claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” Id. § 1491(a)(1). Although the Tucker Act waives the sovereign immunity necessary for a plaintiff to sue the United States for money damages, United States v. Mitchell,
In considering a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC), the court must accept as true all undisputed allegations of fact made by the non-moving party and draw all reasonable inferences from those facts in the non-moving party’s favor. See Trusted Integration, Inc. v. United States,
B.Motions to Dismiss Under RCFC 12(b)(6)
A motion to dismiss pursuant to RCFC 12(b)(6)
When ruling on a Rule 12(b)(6) motion to dismiss, the court “must accept as true all the factual allegations in the complaint.” Sommers Oil Co. v. United States (Sommers Oil),
C. Motions for Judgment on the Administrative Record
Motions for judgment on the administrative record are governed by Rule 52.1(c) of the RCFC. See RCFC 52.1(c). “A motion for judgment upon the administrative record is distinguishable from a motion for summary judgment.” Mission Critical Solutions v. United States,
D. Review of Military Personnel Decisions
1. Justiciability
“Justiciability is a particularly apt inquiry when one seeks review of military activities,” and the court may not address a claim that presents a nonjusticiable issue. See Murphy v. United States,
When the merits of a military personnel decision are nonjusticiable, the process by which the decision was made nevertheless may be subject to judicial review. Adkins v. United States,
2. Review of the Decisions of Corrections Boards
To prevail in a challenge to a correction board decision, a service member “bears the burden of demonstrating by cogent and clearly convincing evidence that the correction board acted arbitrarily, capriciously, contrary to law, or that its determination was unsupported by substantial evidence.” Arens v. United States,
“The arbitrary and capricious standard ... is highly deferential” and “requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.” Advanced Data Concepts, Inc. v. United States,
III. Discussion
A. The Court Has Jurisdiction over Plaintiffs Military Pay Act Claim Only
Counts one and two of the Complaint assert claims under the Whistleblower Act, the First Amendment and the Fifth Amendment Due Process Clause. Compl. ¶¶ 49-56. De
Plaintiff responds that the court’s jurisdiction over this case is properly based, in part, on the Military Pay Act, see Pl.’s Mot. 10-12, and—quoting selectively from the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Holley v. United States,
Because the Tucker Act does not confer any substantive rights, Testan,
The Military Pay Act, however, is money mandating, Metz,
Accordingly, defendant’s Motion is GRANTED with respect to plaintiffs claims based on the Whistleblower Act, the First Amendment and the Due Process Clause, and plaintiffs claims based on the Whistle-blower Act, the First Amendment and the Due Process Clause are DISMISSED for lack of jurisdiction. Cf. RCFC 12(h).
Defendant contends that plaintiffs Military Pay Act claim must be dismissed under Rule 12(b)(6) for failure to state a claim upon which relief can be granted because plaintiffs “fundamental request is that this Court redo the Navy’s fitness decision,” an issue that is nonjusticiable. Def.’s Mot. 7, 9; see also Def.’s Reply 3. The court agrees that Mr. Volk’s suitability for further service as a Navy SEAL is a professional military decision and therefore nonjustieia-ble. Cf. Gilligan,
C. Cross-Motions for Judgment on the Administrative Record
To prevail in a challenge to a correction board decision, a service member “bears the burden of demonstrating by cogent and clearly convincing evidence that the correction board acted arbitrarily, capriciously, contrary to law, or that its determination was unsupported by substantial evidence.” Ar-ens,
The revocation of a SEAL NEC is governed by MILPERSMAN 1220-300, which provides that involuntary “revocation shall not be used as a punitive measure” and must be “based on [the] [commanding officer’s] determination [the] member is no longer suitable for assignments] ... requiring the NEC.” MILPERSMAN 1220-300 fl3(a). The next paragraph of the regulation lists the following “[g]eneral circumstances” in which a commanding officer could determine that a service member “is no longer suitable” for the SEAL NEC:
4. Reasons for Revocation. General circumstances which warrant revocation of an NEC include
b. sustained low or erratic professional performance in NEC-related skills such as
(1) declining physical capability,
(2) culpable negligence, or
(3) bre[a]ches in diving, ordnance, or parachuting safety;
c. failure or unwillingness to perform duties required of NEC[.]
MILPERSMAN 1220-300 ¶ 4. On the form requesting revocation of Mr. Volk’s SEAL NEC, Cdr. Thorleifson listed two justifications for his request: “sustained] low professional performance in NEC[-]related skills” and “a major lack of confidence in [Mr. Volk’s] capability to operate as a Navy SEAL.” AR 26 (NEC change request form).
Plaintiff appears to make five arguments with respect to Cdr. Thorleifson’s decision to revoke his SEAL NEC and the BCNR’s subsequent decision upholding Cdr. Thorleifson’s action.
However, the court is persuaded by Cdr. Bonelli’s interpretation of Cdr. Thorleif-son’s statement on the NEC change request form. In light of Mr. Volk’s unsatisfactory performance, disciplinary problems and ultimatum that he would resign his SEAL NEC if not transferred to another unit, see supra Part I.A (describing the foregoing problems in detail), Cdr. Bonelli interpreted Cdr. Thor-leifson’s statement that he had “‘a major lack of confidence in [Mr. Volk’s] capability to operate as a Navy SEAL,’ ” AR 7 (Bonelli letter) (quoting AR 26 (NEC change request form)), to reflect one of the “‘[g]eneral circumstances’ ” listed in MILPERSMAN 1220-300 ¶4 as warranting removal of a SEAL NEC; “ ‘failure or unwillingness to perform duties required of NEC,’ ” see id. (quoting MILPERSMAN 1220-300 ¶4(<:)). To the extent that Cdr. Thorleifson added the term “major lack of confidence” to his description of Mi'. Volk’s failure or unwillingness to perform his duties, see AR 26 (NEC change request form), the court agrees with Cdr. Bonelli that Cdr. Thorleifson’s justification fits the general requirement that revocation of a service member’s SEAL NEC must be based on the commanding officer’s determination that the service member is “ ‘no longer suitable’ ” for assignments requiring the SEAL NEC because it “convey[ed] his determination regarding [Mr. Volk’s] suitability,” see AR 8 (Bonelli letter) (quoting MILPERSMAN 1220-300 ¶3^)).
The court understands plaintiffs second argument to be that, to the extent that the BCNR concluded that revocation of Mr. Volk’s SEAL NEC was warranted on the basis of “sustained low professional performance in NEC[-]related skills,” see Pl.’s Reply 3 (internal quotation marks omitted), this conclusion was “unsupported by substantial evidence,”
However, the Administrative Record contains substantial evidence of Mr. Volk’s poor performance. Cf. O’Brien,
Furthermore, Mr. Volk had been counseled “for failure to present a positive demeanor or establish any level of authority over his subordinates,” AR 28 (BCNR advisory op.), and had failed to advance through the ranks along with his peers although given “every opportunity to overcome his problems and get back on pace,” AR 20 (Thorleifson statement), both of which could reasonably be interpreted as evidence of “sustained low or erratic professional performance in NEC-related skills,” cf. MILPERSMAN 1220-300 ¶ 4(b). Although plaintiff contends that this ground for revocation is limited to the examples provided in MILPERSMAN 1220-300 ¶ 4, Pl.’s Mot. 5, plaintiffs interpretation of the regulation is too narrow. MILPERS-MAN 1220-300 ¶ 4 describes “sustained low or erratic professional performance in NEC-related skills such as ... culpable negligence, or ... bre[a]ehes in ... parachuting safety.” MILPERSMAN 1220-300 ¶40>) (emphasis added). The use of the term “such as” indicates that the list of NEC-related skills listed is illustrative, not exhaustive. See supra note 14 (discussing plaintiffs overly narrow reading of MILPERSMAN 1220-300 ¶ 4, in general). Therefore, the consideration of these examples of Mr. Volk’s poor performance is not contrary to the regulation.
It is not the role of the court to reweigh this evidence to determine whether revocation of Mr. Volk’s SEAL NEC was warranted. Cf. Heisig v. United States,
The court understands plaintiffs third argument to be that Cdr. Thorleifson’s failure to submit “‘sufficient background and reasonable justification’ ” with his request to revoke Mr. Volk’s SEAL NEC was a violation of the Navy’s rules and therefore should have been reversed by the BCNR. Pl.’s Mot. 2 (quoting MILPERSMAN 1220-300 ¶ 3(a)); see also id. at 18 (same). In support of this argument, plaintiff quotes the following passage of the legal advisory opinion submitted by Lt. Cdr. Rongotes regarding Mr. Volk’s Article 138 complaint: “If the Navy isn’t going to follow their own rules in how matters are adjudicated then, one, why have the rule, and two, how can we expect our service members to follow the rules[?] What it comes down to is have the requirements outlined in the MILPERSMAN been met,
Plaintiff is correct that, under MIL-PERSMAN 1220-300 ¶ 3(a), the commanding officer “must substantiate” the determination that the service member is no longer suitable for assignments requiring the SEAL NEC “by providing sufficient background and reasonable justification for removal of the member’s NEC.” MILPERSMAN 1220-300 ¶ 3(a); see also MILPERSMAN 1440-010 ¶ 8(a)(10) (stating that “[wjritten documentation ... is mandatory ..., and must be included in a forced conversion package for loss of confidence”). However, plaintiff must “show[ ] a ‘nexus’ between the error or injustice and the subsequent” adverse military decision, meaning that the procedural error must have “substantially affected the decision in question.” Cf. Lindsay,
Additionally, although Cdr. Thorleifson failed to comply with the requirement to include background and justification with the NEC change request form, this error was remedied during plaintiffs Article 138 proceedings. Cdr. Thorleifson explained “[a]ll of his reasons to involuntarily remove [Mr.] Volk’s trident” in his written response to Mr. Volk’s Article 138 complaint, AR 19 (Thorleifson statement), explaining his justification “in detail” and providing supporting documentation, AR 7 (Bonelli letter). Cdr. Bonelli “specifically note[d]” that Cdr. Thor-leifson had not submitted background and justification with the NEC change request form, but found that Cdr. Thorleifson was not wrong to request revocation of Mr. Volk’s SEAL NEC based on the justification that was “amply laid out in the administrative record” of the Article 138 proceedings. Id. at 7. The court therefore concludes that plaintiff has not “show[n] a ‘nexus’ between the error or injustice and the subsequent” decision to revoke his SEAL NEC. Cf. Lindsay,
The court understands plaintiffs fourth argument to be based on alleged due process violations. To the extent that M r. Volk claims that revocation of his SEAL NEC was contrary to law and should have been overturned by the BCNR on due process grounds, the court may consider whether the BCNR violated Mr. Volk’s constitutional rights. Cf. Holley,
Defendant contends that notice and opportunity to be heard before a trident review board are not required under MIL-PERSMAN 1220-300 and that due process is afforded by, “among other things, [Mr. Volk’s] hearing before the BCNR and this limited appeal.” Def.’s Mot. 15. In his briefing, plaintiff does not contend otherwise except to state that the court “may properly consider the underlying due process orientated nature of alleged wrongful governmental conduct.” Pl.’s Mot. 14. The court observes that its review is limited to the decision of the BCNR. See supra note 15. Plaintiff does not explain why the lack of notice or the lack of opportunity to be heard by a trident review board would be contrary to the Navy’s regulations or Mr. Volk’s right to due process such that the BCNR was required to correct the Navy’s error. Furthermore, plaintiff has been provided an opportunity to be heard in his Article 138 proceedings, be
Finally, the court understands plaintiffs fifth argument to be that the BCNR decision arbitrarily failed to address or apply MIL-PERSMAN 1220-300, relying instead on the Bonelli letter and the BCNR advisory opinion. See Pl.’s Mot. 8; see also id. at 21 (same); Pl.’s Reply 1 (stating that “the ... BCNR opinion does not even cite the regulation,” rendering the BCNR’s review “arbitrary”). Defendant, quoting the BCNR decision, responds that the BCNR reviewed “Mr. Volk’s ‘application together with all material submitted in support thereof,’ ” Def.’s Mot. 13 (quoting AR 1 (BCNR decision)), and “the ‘applicable statutes, regulations, and policies,’ ” Def.’s Reply 6 (quoting AR 1 (BCNR decision)). Defendant notes that both the Bonelli letter and the BCNR advisory opinion discussed MILPERSMAN 1220-300 and applied it to Mr. Volk’s record. Id.
The applicable regulation provides that, when the BCNR denies an application for the correction of military records without a hearing, it must provide “a brief statement of the grounds for denial.” 32 C.F.R. § 723.3(e)(3) (2012). This statement 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, including, if applicable, factors required by regulation to be considered for determination of the character of and reason for discharge.... Attached to the statement shall be any advisory opinion considered by the Board which is not fully set out in the statement.
Id. § 723.3(e)(4).
Plaintiff cites Citizens to Preserve Overton Park, Inc. v. Volpe (Overton Park),
Plaintiffs citation to eases in which courts found that the Army or the Navy failed to make mandatory factual determinations, see Pl.’s Mot. 20-21 (citing Kindred v. United States,
In Martin, the plaintiff sought recharac-terization of his discharge from the Army as honorable. Martin,
In this case, neither the court nor the BCNR must choose among the reasons that revocation of Mr. Volk’s SEAL NEC might have been warranted, cf. id. or make factual determinations in the first instance, cf. Kindred,
A court applying the arbitrary and capricious standard “may not supply a reasoned basis for the agency’s action that the agency itself has not given, ... [but] will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc. (Bowman),
In this ease, the BCNR’s analytical path, although not set out in detail in its decision, “may reasonably be discerned.” Cf. Bowman,
IV. Conclusion
For the foregoing reasons, defendant’s Motion is GRANTED insofar as defendant requests, pursuant to RCFC 12(b)(1), that the court dismiss plaintiffs claims under the First Amendment, the Due Process Clause of the Fifth Amendment and the Whistleblower Act. See supra Part III.A. Defendant’s Motion is also GRANTED insofar as defendant seeks judgment on the Administrative Record regarding plaintiffs Military Pay Act claim. See supra Part III.C. Defendant’s Motion is DENIED insofar as defendant requests that the court dismiss plaintiffs Military Pay Act claim pursuant to RCFC 12(b)(6). See supra Part III.B.
Plaintiffs Motion is DENIED. See supra Part III.C.
The Clerk of Court shall ENTER JUDGMENT in favor of defendant. No costs.
IT IS SO ORDERED.
Notes
. During this time, Mr. Michael B. Volk (Mr. Volk or plaintiff) received several awards, including the Sailor of the Quarter Award and a Navy Commendation Award. Compl, Docket Number (Dkt. No.) 1, ¶ 7; Administrative Record (AR), Dkt. Nos. 7 to 7-2, at 42 (Volk statement). For three years during his service as a SEAL, Mr. Volk served as an instructor at the Naval Special Warfare Center. Compl. ¶ 6.
. This case follows administrative proceedings conducted by the United States Navy (defendant, the Navy or the government) and the Board for Correction of Naval Records (BCNR or the board). See Compl. ¶¶ 32, 44 (describing Mr. Volk’s initiation of the proceedings). Accordingly, much of the factual background in this Opinion is drawn from documents associated with those proceedings. For convenient reference, the court provides a partial list of these documents and the names by which the court refers to them.
The documents related to Mr. Volk’s complaint under Article 138 of the Uniform Code of Military Justice are: the report in which Commander John H. Tate (Cdr. Tate) investigated the circumstances of Mr. Volk’s Article 138 complaint and provided recommendations (Art. 138 investigation report), AR 10-17; three documents submitted as attachments to that report: (1) Cdr. Tate’s statement of his interview of Mr. Volk (Volk statement), AR 42-46, (2) Cdr. Tate’s statement of his interview of Commander J.D. Thorleifson (Cdr. Thorleifson) (Thorleifson statement), AR 18-20, and (3) a legal advisory opinion in which Lieutenant Commander Angela Rongotes answered questions posed by Cdr. Tate about Mr. Volk’s Article 138 complaint (Art. 138 advisory op.), AR 51-54; and a letter dated July 15, 2008, in which the commander of the Naval Special Warfare Command, G.J. Bonelli (Cdr. Bonelli), assessed Mr. Volk’s Article 138 complaint based on the Article 138 investigation report and provided recommendations to the Secretary of the Navy as to the disposition of the Article 138 complaint (Bonelli letter), AR 6-9.
The documents related to proceedings before the BCNR are: the advisory opinion in which J.L. Schultz, the Director of Military Community Management, provided recommendations to the BCNR with respect to Mr. Volk’s request for correction of his military records, AR 28-31 (BCNR advisory op.), and the BCNR’s decision denying Mr. Volk's request, AR 1-2 (BCNR decision).
. The "reckless and unsafe behavior" about which plaintiff complains, see Compl. ¶ 9, appears to refer to the "dangerous tactical decision making skills” displayed by Leading Chief Petty Officer John Previtera (LCPO Previtera), see AR 71 (witness statements). The court understands the alleged danger to be that SEALs under LCPO Previtera's command could, as a result of his leadership, be placed in immediate physical danger in actual combat situations. The court does not understand the alleged danger to encompass SEALS having been placed in immediate physical danger during the simulated exercises.
. Plaintiff states that LCPO Previtera attacked the same superior officer again during the deployment and was arrested and relieved of his duties. AR 40 (BCNR appl. statement).
. Mr. Volk states that there was no evidence that he provoked the fight, that the local police "dismissed all of the charges” and that the preliminary officer's investigation found him not to be at fault. AR 44 (Volk statement). Mr. Volk further states that LCPO Previtera “plann[ed] to leave [him] behind while the platoon left on a plane” rather than attempting to secure his release from jail. Id.
. The precise sequence of Mr. Volk’s interactions with Cdr. Thorleifson and the timing of the paperwork filed by Mr. Volk and Cdr. Thorleifson are not clear from the record. See, e.g., AR 19 (Thorleifson statement) (stating that Cdr. Thor-leifson “wasn’t exactly sure of the sequence of events”); Resp. to Def.’s Mot. to Dismiss and Pl.’s Cross Mot. for J. on the A.R. (plaintiff’s Motion or Pl.'s Mot.), Dkt. No. 11, at 5 (asserting that Cdr. Thorleifson submitted the request for an involuntary NEC change on September 12, 2007 but that the request was "backdated to September 5, 2007”); cf. AR 13-14 (Art. 138 investigation report) (stating that Cdr. Thorleif-son "filled out and signed” the paperwork for the involuntary NEC rescission on September 5, 2007 but did not submit it or the paperwork for the voluntary relinquishment "until 5 to 6 days later”).
. A copy of the relevant provisions of the Naval Military Personnel Manual (MILPERSMAN) was submitted as an attachment to defendant’s Motion to Dismiss, or, in the Alternative, Motion for Judgment on the Administrative Record (defendant’s Motion or Def.’s Mot.), Dkt. No. 8. See Dkt. No. 8-1 (relevant provisions of MILPERS-MAN). The parties appear to agree that the 2004 edition is the relevant edition of MILPERSMAN. See id. (attaching portions of the 2004 edition of MILPERSMAN to defendant's Motion); Pl.'s Reply to Def.’s Resp. to Mot. to Dismiss & Cross-Mot. for J. on the Admin. R. (Pl.’s Reply), Dkt. No. 16, at 5 (citing the 2004 edition of MIL-PERSMAN).
. Article 138 of the Uniform Code of Military Justice provides:
Any member of the armed forces who believes himself wronged by his commanding officer ... may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings had thereon.
10 U.S.C. § 938 (2006).
. After the BCNR accepts an application for consideration, a three-member panel of the BCNR, sitting in executive session, determines whether to deny the application, recommend that the applicable records be corrected or grant a hearing. 32C.F.R. § 723.3(e)(1) (2012).
. The Rules of the United States Court of Federal Claims (RCFC) generally mirror the Federal Rules of Civil Procedure (FRCP). C. Sanchez & Son, Inc. v. United States,
. Plaintiff appears to concede that claims based on the Due Process Clause are not within the jurisdiction of the court. See PL's Mot. 23 (stating that, "[w]hile the due process clause may not be jurisdictionally applicable, the precepts of 'fairness' certainly are”).
. To the extent that plaintiff appears to suggest in briefing that the court has jurisdiction over its claims pursuant to the Administrative Procedure Act (A PA), 5 U.S.C. § 706 (2006), see PL’s Mot. 15, plaintiff is incorrect, see Murphy v. United States,
. In addition, plaintiff contends that "the Government lost significant records” and appears to request that the court draw an adverse inference — which plaintiff does not describe — against the government. See Pl.’s Mot. 23. Although, during the Article 138 investigation, the Navy was unable to locate the original NEC change request form submitted by Cdr. Thorleifson and the form submitted by Mr. Volk when he attempted to voluntarily resign his SEAL NEC, see
The official whose office handled both forms stated to Cdr. Tate that, although the absence of the forms "was extremely strange and unusual,” "he did not believe there was any 'foul play.' ” AR 24 (McIntyre statement). Because there is no evidence in the record that foul play caused the loss of Mr. Volk’s original paperwork, because accurate copies of the documents appear to have been provided to the court and because of the "presumption that administrators of the military, like other public officers, discharge their duties correctly, lawfully, and in good faith,” Sanders v. United States,
. Additionally, by its terms, the regulation does not provide an exhaustive list of circumstances demonstrating that a SEAL is no longer suitable for assignments requiring the SEAL NEC. In
.Plaintiff phrases this argument in terms of Cdr. Thorleifson's decision to revoke Mr. Volk’s SEAL NEC not being supported by substantial evidence. See, e.g., Pl.'s Mot. 2 (referring to the evidence available to the Navy at the time that Mr. Volk’s SEAL NEC was revoked). However, the court’s review is focused on the decision of the BCNR. See Sanders,
. Cdr. Tate believed that he had all of Mr. Volk’s evaluations. See AR 42 (Volk statement) (stating that Cdr. Tate had reviewed “[a]ll of [Mr. Volk’s] evals”).
. Plaintiff quotes from what it describes as Mr. Volk’s "last performance evaluation” to support its view that Mr. Volk’s NEC-related skills did not decline. See PL’ s Mot. 8. This evaluation, however, is not'part of the Administrative Record.
. During his interview with Cdr. Thorleifson, Cdr. Tate asked whether "Mr. Volk had any documented history” with respect to each of the general circumstances listed in MILPERSMAN 1220-300 ¶ 4 as warranting involuntary removal of a SEAL NEC. See AR 19 (Thorleifson statement). Cdr. Thorleifson answered no to each factor. See id. Plaintiff interprets this statement to be a concession that Mr. Volk’s history did not warrant involuntary revocation of his SEAL NEC pursuant to MILPERSMAN 1220-300. Pl.’s Reply 2; see also id. at 4 (citing this statement for the proposition that Mr. Thorleifson did not believe that Mr. Volk’s alcohol-related arrest before a parachute freefall exercise warranted revocation of Mr. Volk’s SEAL NEC).
It is not clear from the Administrative Record why Cdr. Thorleifson answered Cdr. Tate the way he did. However, in light of Cdr. Thorleif-son’s description of Mr. Volk’s performance as a SEAL, see supra Part I.A, and his request that Mr. Volk’s SEAL NEC be revoked "due to sustaining low professional performance in NEC[-]related skills and a major lack of confidence in his capability to operate as a Navy SEAL,” AR 26 (NEC change request form), the court concludes that Cdr. Thorleifson did not intend to concede that Mr. Volk’s actions did not warrant involuntary removal of his SEAL NEC pursuant to MILPERSMAN 1220-300.
. Bullock v. United States,