Military Personnel Have Some Appeal Rights Too

Who has authority to decide whether a member of the military stays or goes? A court weighs in on the issue. readers who are members of the military might like to know that the authority of the Navy Assistant Secretary for Manpower and Reserve Affairs to overrule decisions of the Board for Corrections of Naval Records still stands–thanks to a decision by the U.S. Court of Appeals for the Federal Circuit.

In Strickland v. U.S. (No. 05-5012, September 16, 2005), the appeals court overruled the decision of the U.S. Court of Federal Claims that had nullified the Assistant Secretary’s authority. (Strickland v. United States, 61 Fed.Cl. 443 (2004)).

The lower court had directed that Strickland’s Naval record be expunged of all references to his general discharge following his conviction in state court of a sex offense, and that he receive three months of constructive service to qualify him for retirement. Under Naval regulations apparently general discharge under honorable conditions is mandated since Strickland had pled “no contest” in state court to a misdemeanor charge of indecent exposure.

Strickland, believing his discharge to be unfair, petitioned the Board for Corrections of Naval Records. He managed to persuade the Board, which concluded that the plea arrangement had been based on incorrect advice from Strickland’s commanding officer, who had told him that such a plea would not require his discharge from the Navy.

The Assistant Secretary disagreed with the Board’s recommendation and decided to let the matter stand. His decision was based on the conclusion that factors other than the CO’s advice had persuaded Strickland to plea to a lesser offense, including fear of conviction of a felony, the prospect of serving prison time and large legal fees. (Opinion pp. 3-4)

When Strickland took his case to the lower court, the high legal fees paid off for him. His representative managed to persuade the court that the language in the law giving authority to the Assistant Secretary vested this authority solely in the Board. In what many would call a questionable interpretation of statute, the lower court found that the phrase “acting through boards” meant that the Assistant Secretary could not overrule his Board. The court directed that the decision of the Board in Strickland’s case was therefore final.

Not so said the Federal Circuit, saying the lower court “erred” in its interpretation (p 7), going on the state: “Contrary to the trial court’s ruling, the statutory provision that “corrections shall be made by the Secretary acting through boards” does not unambiguously exclude the Secretary from the corrections process by divesting Secretarial authority to alter Board recommendations under all circumstances.” (p. 10)

The appeals court reversed the lower court’s decision and sent the case back for the claims court to determine whether the Secretary’s rejection of the Board recommendation was arbitrary or capricious, unsupported by substantial evidence, or otherwise contrary to the law. (p. 16)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.