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Claiborne v. Secretary of the Army

United States District Court, D. Oregon

June 14, 2018

DAMON J. CLAIBORNE, Plaintiff,
v.
SECRETARY OF THE ARMY, Defendant.

          LISA D. WRIGHT, JOHN N. MAHER Attorneys for Plaintiff

          BILLY J. WILLIAMS United States Attorney

          JAMES E. COX, JR. Assistant United States Attorney Attorneys for Defendant

          OPINION AND ORDER

          ANNA J. BROWN, United States Senior District Judge

         This 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.

         BACKGROUND

         The 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 otherwise noted.

         Plaintiff 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.

         On 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.

         On 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 Court.

         On May 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.

         At some 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.

         On June 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.

         On 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.

         On 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 component.

Army Directive 2013-21(3).

         At some point Plaintiff requested voluntary retirement from the Army "upon completion of 20 years of active Federal service." AR00013.[1]

         On 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.

         On 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 5-3." AR000014.

         On 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.[2] On February 20, 2014, Plaintiff signed a Developmental Counseling Form and initialed that he agreed with the information. TROAR0 04.

         On July 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 ...

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