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Claiborne v. Secretary of Army

United States District Court, D. Oregon

November 15, 2018

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

          DANA MITCHELL, LISA D. WRIGHT, JOHN N. MAHER, KEVIN J. MIKOLASHEK Maher Legal Services PC Attorneys for Plaintiff

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

          OPINION AND ORDER

          ANNA J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE

         This matter comes before the Court on Plaintiff's Motion (#58) for Judgment on the Administrative Record and Defendant's Cross-Motion (#61) for Summary Judgment. The Court concludes the record is sufficiently developed such that oral argument would not be helpful to resolve these Motions. For the reasons that follow, the Court DENIES Plaintiff's Motion and GRANTS Defendant's Motion.

         BACKGROUND

         The following facts are undisputed unless otherwise noted and are taken from Plaintiff's Amended Complaint, the Administrative Record, and the parties' filings related their Motions.

         In 1998 Plaintiff Damon J. Claiborne enlisted in the United States Army and was assigned the rank of Specialist (SPC). AR00013.

         On November 12, 2004, when Plaintiff was an SPC, he 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 a term of 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.

         At some point the suspended discharge was cancelled after Plaintiff's successful completion of the probation period pursuant to Army Regulation 635-200 and Plaintiff was retained by the Army.

         On July 1, 2007, Plaintiff was promoted to Sergeant (SGT). AR000068.

         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 to 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 December 1, 2012, Plaintiff was promoted to Staff Sergeant (SSG). AR000068.

         On November 7, 2013, the Secretary of the Army issued Army Directive 2013-21, which provides 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.

         In February 2014 the Army issued ALARACT 035/2014 in which it reiterated the terms of Army Directive 2013-21 and implemented Directive 2013-21 at the Army unit level. AR000754-58.

         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 Plaintiff's involuntary separation effective on that date. TROAR003-04.[2] Also on February 20, 2014, Plaintiff signed a Developmental Counseling Form and initialed that he agreed with the information. AR000399.

         On July 16, 2014, Plaintiff was notified via memorandum by his Company Commander, Chris Kim, that Kim was initiating Plaintiff's involuntary separation under Army Regulation 635-200, Chapter 5-3, pursuant to the Secretary of the Army's plenary authority. AR000342-43. The notification

         (1) informed Plaintiff that the reason for the separation was his January 3, 2005, conviction for child molestation in the second degree in Kitsap County, (2) indicated Kim's recommendation would be submitted to the Secretary of the Army to make the final decision on the matter, and

         (3) informed Plaintiff that he had the right to consult with counsel and the right to submit statements on his own behalf.

         On July 18, 2014, Plaintiff met with a military attorney and elected to submit a statement to be forwarded to the decisional authority. AR000340-41.

         On July 20, 2014, Plaintiff submitted a Request for Retirement in Lieu of Chapter 5-3 Proceedings and a Letter of Intent to his Command. AR000400-401.

         In an undated memorandum Kim considered the separation action and recommended Plaintiff's retention. AR000103-106.

         In an undated memorandum Plaintiff's Battalion Commander considered the separation action and recommended Plaintiff's retention as well as characterizing Plaintiff's service as Honorable and “General under honorable conditions.” TROAR017-18.

         In an undated memorandum Plaintiff's Brigade Commander considered the separation action and recommended Plaintiff to “be . . . separated from the Army prior to the expiration of his current term of service” and his service to “be characterized as . . . General under honorable conditions.” TROAR019.

         On August 27, 2014, the Commanding General, I Corps, considered the separation action and recommended Plaintiff to “be . . . separated from the Army prior to the expiration of his current term of service” and his service to “be characterized as . . . General under honorable conditions.” TROAR020.

         On November 25, 2014, however, the Chief, Enlisted Retirements and Separations, U.S. Army Human Resources Command, suspended Plaintiff's approved retirement and “revoked or rescinded as appropriate” Plaintiff's retirement orders noting “[t]he approved retirement will remain in effect.” AR000586.

         On June 16, 2015, Assistant Secretary of the Army (Manpower and Reserve Affairs) Debra S. Wada found separation of Plaintiff “is clearly in the best interest of the Army in accordance with Army Regulation 635-200, paragraph 5-3.” AR000070. Wada directed Plaintiff to “be separated with a General (Under Honorable Conditions) characterization of service.” AR000070.

         On June 24, 2015, the Directorate of Human Resources, Military Personnel Division, JBLM, published orders directing Plaintiff's discharge on July 1, 2015. AR000075.

         On June 28, 2015, Plaintiff filed a Complaint in this Court seeking an order to enjoin the Army from continuing his separation, to set aside the Army's decision, to compel the Army to transfer him to the retired list with an effective date to be determined, and also seeking a number of declarations about the Secretary of the Army's authority under various Army regulations.

         On June 29, 2015, Plaintiff filed a Temporary Restraining Order seeking an order preventing Defendant from separating Plaintiff from the Army.

         On June 30, 2015, the Court heard oral argument on Plaintiff's Motion for Temporary Restraining Order; granted the Temporary Restraining Order through July 8, 2015; and directed the parties to file a Joint Status Report that addressed venue, contained agreed background facts, and included any further argument about Plaintiff's likelihood of success on the merits.

         On June 30, 2015, the Directorate of Human Resources, Military Personnel Division, JBLM, amended Plaintiff's discharge order to reflect a discharge date of July 9, 2015.

         On July 8, 2015, the Court heard further oral argument on Plaintiff's Motion for Temporary Restraining Order, concluded Plaintiff did not satisfy the criteria for injunctive relief, found Plaintiff failed to establish that he had exhausted his administrative remedies, and allowed the Temporary Restraining Order to lapse.

         On August 7, 2015, the parties filed a Joint Status Report in which they requested the Court to stay this matter while Plaintiff pursued his administrative remedies.

         On August 10, 2015, the Court stayed this matter pending Plaintiff's ...


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