United States District Court, D. Oregon
DAMON J. CLAIBORNE, Plaintiff,
SECRETARY OF THE ARMY, Defendant.
D. WRIGHT, JOHN N. MAHER Attorneys for Plaintiff
J. WILLIAMS United States Attorney
E. COX, JR. Assistant United States Attorney Attorneys for
OPINION AND ORDER
J. BROWN, United States Senior District Judge
matter comes before the Court on Plaintiff's Amended
Motion (#48) for Limited Discovery and to Supplement the
Administrative Record. For the reasons that follow, the Court
DENIES Plaintiff's Motion.
following facts are taken from Plaintiff's Amended
Complaint and the parties' filings related to
Plaintiff's Amended Motion for Limited Discovery,
including the materials filed by the parties related to
Plaintiff's Motion for Temporary Restraining Order that
are incorporated by reference in the record currently before
the Court. The following facts are undisputed unless
Damon J. Claiborne was a Staff Sergeant (SSG) on active duty
in the United States Army currently assigned to Joint Base
Lewis-McChord (JBLM), Washington.
November 12, 2004, Plaintiff was charged in Kitsap County,
Washington, with one count of Child Molestation in the Second
Degree. Plaintiff submitted an Alford plea and was
sentenced to 15-months imprisonment. Plaintiff's status
with the Army was changed from "present for duty"
to "civilian confinement" from October 28, 2004, to
January 5, 2006.
January 6, 2006, Plaintiff's status was changed to
"present for duty, " and Plaintiff reported to his
unit. As a result of the state-court conviction, the Army
initiated involuntary separation proceedings against
Plaintiff on February 9, 2006, under the provisions of Army
Regulation 635-200, chapter 14-5, Active Duty Enlisted
Administrative Separations, ¶ 14-5, Conviction by Civil
10, 2006, the Acting Commander, I Corps and Fort Lewis,
reviewed the recommendation to discharge Plaintiff pursuant
to Army Regulation 635-200. The Acting Commander suspended
execution of the discharge for 12 months pursuant to Army
Regulation 635-200, ¶ 1-18.
point the suspended discharge was cancelled after
Plaintiff's successful completion of the probation period
pursuant to Army Regulation 635-200, ¶ l-18b, and
Plaintiff was retained by the Army.
25, 2008, Plaintiff reenlisted in the Army for a period of
four years. On October 1, 2010, Plaintiff reenlisted again
for a period of five years.
March 25, 2011, Plaintiff was determined to be eligible under
the Military Retirement Reform Act to elect either a one-time
career status bonus and remain under the REDUX retired pay
system or to retire under the "High-3" retirement
system. Plaintiff elected the one-time career status bonus,
which required Plaintiff to agree to stay in the Army until
he had a minimum of 20 years active service.
November 7, 2013, the Secretary of the Army issued Army
Directive 2013-21, which provided in pertinent part:
Commanders will initiate the administrative separation of any
Soldier convicted of a sex offense . . . whose conviction did
not result in a punitive discharge or dismissal. This policy
applies to all personnel currently in the Army, regardless of
when the conviction for a sex offense occurred and regardless
of component of membership and current status in that
Army Directive 2013-21(3).
point Plaintiff requested voluntary retirement from the Army
"upon completion of 20 years of active Federal
January 6, 2014, Plaintiff's request for retirement was
approved. Army Installation Management Command Orders
released Plaintiff from active duty effective January 31,
2015, and placed him on the Retired List effective February
1, 2015. AR000014.
February 10, 2014, however, Plaintiff was notified by the
Chief, Criminal Law Division, Headquarters, I Corps, that in
Administrative Directive 2013-21 the Secretary of the Army
"directed initiation of separation proceedings of all
Soldiers convicted of a sex offense if the conviction did not
result in a punitive discharge or dismissal, regardless of
when the conviction occurred." AR000014. The Chief also
advised Plaintiff that "if an enlisted Soldier who has
been convicted of a sex offense has already been subject to
administrative separation action, the separation authority
will initiate separation action under Secretarial plenary
authority as described in Army Regulation 635-200, paragraph
February 20, 2014, Plaintiff was advised by his Company
Commander that she was initiating a "flag" for
involuntary separation effective on that date.
TROAR003-04. On February 20, 2014, Plaintiff signed a
Developmental Counseling Form and initialed that he agreed
with the information. TROAR0 04.
16, 2014, Plaintiff was notified via memo by his Company
Commander, Chris Kim, that Kim was initiating involuntary
separation under Army Regulation 635-200, Chapter 5-3,
pursuant to the Secretary of the Army's plenary
authority. TROAR005-08. The notification
(1) informed Plaintiff that the reason for the separation was
his January 3, 2005, conviction for child molestation in the