United States District Court, D. Oregon
DAMON J. CLAIBORNE, Plaintiff,
SECRETARY OF THE ARMY, Defendant.
MITCHELL, LISA D. WRIGHT, JOHN N. MAHER, KEVIN J. MIKOLASHEK
Maher Legal Services PC Attorneys for Plaintiff
J. WILLIAMS United States Attorney, JAMES E. COX, JR.
Assistant United States, Attorneys for Defendant
OPINION AND ORDER
J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE
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
following facts are undisputed unless otherwise noted and are
taken from Plaintiff's Amended Complaint, the
Administrative Record, and the parties' filings related
Plaintiff Damon J. Claiborne enlisted in the United States
Army and was assigned the rank of Specialist (SPC). AR00013.
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.
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.
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.
1, 2007, Plaintiff was promoted to Sergeant (SGT). AR000068.
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 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
December 1, 2012, Plaintiff was promoted to Staff Sergeant
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
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 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.
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
Plaintiff's involuntary separation effective on that
date. TROAR003-04. Also on February 20, 2014, Plaintiff
signed a Developmental Counseling Form and initialed that he
agreed with the information. AR000399.
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
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
informed Plaintiff that he had the right to consult with
counsel and the right to submit statements on his own behalf.
18, 2014, Plaintiff met with a military attorney and elected
to submit a statement to be forwarded to the decisional
20, 2014, Plaintiff submitted a Request for Retirement in
Lieu of Chapter 5-3 Proceedings and a Letter of Intent to his
undated memorandum Kim considered the separation action and
recommended Plaintiff's retention. AR000103-106.
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.
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.
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
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
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.
24, 2015, the Directorate of Human Resources, Military
Personnel Division, JBLM, published orders directing
Plaintiff's discharge on July 1, 2015. AR000075.
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
29, 2015, Plaintiff filed a Temporary Restraining Order
seeking an order preventing Defendant from separating
Plaintiff from the Army.
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
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.
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.
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.
August 10, 2015, the Court stayed this matter pending