SUHRHEINRICH, Circuit Judge.
Plaintiff William G. Bolton petitioned Defendant Department of the Navy Board for Correction of Naval Records (BCNR) to expunge the summary-court martial from his military record based on his guilty plea to three military charges related to his arrest for driving while drunk on the Marine Corps Base Camp Lejeune, North Carolina. The BCNR held that it lacked the statutory authority to set aside the findings of a summary court-martial. Bolton challenged the BCNR's ruling in federal court. The district court granted the BCNR's motion to dismiss Bolton's amended complaint and he appealed to this court. We AFFIRM.
A. Military Justice
The Uniform Code of Military Justice (UCMJ) has four methods for addressing offenses by servicemen: general courts-martial, UCMJ art. 18, 10 U.S.C. § 818; special courts-martial, UCMJ art. 19, 10
Id. (footnote omitted).
By contrast, a nonjudicial punishment is less serious than a summary court-martial. See Manual for Courts-Martial, United States [MCM] pt. V, para. 1.c. ("Nonjudicial punishment provides commanders with an essential and prompt means of maintaining good order and discipline and also promotes positive behavior changes in servicemembers without the stigma of court-martial conviction."); UCMJ art. 15, 10 U.S.C. § 815. "Article 15 punishment, conducted personally by the accused's commanding officer, is an administrative method of dealing with the most minor offenses." Middendorf, 425 U.S. at 31-32, 96 S.Ct. 1281. Summary court-martial is somewhere in between. As Middendorf clarifies:
Id. at 32-33, 96 S.Ct. 1281 (footnote omitted); see also Rule For Courts-Martial (RCM) 1301(b) ("Function. The function of the summary court-martial is to promptly adjudicate minor offenses under a simple procedure. The summary court-martial shall thoroughly and impartially inquire into both sides of the matter and shall ensure that the interests of both the Government and the accused are safeguarded and that justice is done.").
B. Facts and Procedural History
The following facts are taken from the amended complaint and attached exhibits, accepted as true for purposes of appeal. Bolton entered the Marine Corps on August
Bolton was also informed that he would face court-martial under the following articles of the Uniform Code of Military Justice: (1) Article 89 (Disrespect of a Commissioned Officer); (2) Article 92 (Unregistered Firearm on Base); and (3) Article 111 (Driving Under the Influence). These charges were initially brought as a criminal prosecution pursuant to a special court-martial, but Bolton entered into a pre-trial agreement to resolve them by accepting a non-criminal summary court-martial,
As a result of this advice, Bolton did not appear at the base traffic court on August 13, 2010. He was convicted of driving under the influence, a violation of North Carolina General Statutes Section 20-138.1, and his on-base driving privileges were suspended. As a further result of the base court conviction, Bolton's driver's license was also administratively suspended effective November 4, 2010, by the state of North Carolina for a period of one year. The state of Ohio followed suit on November 24, 2010, but later removed the suspension.
Bolton's plea agreement was accepted on August 21, 2010. On August 30, 2010, Bolton pleaded guilty to all three military charges at the summary court-martial. As a consequence, he received a reduction in rank (by three pay grades), a forfeiture of $964, and fourteen days restricted confinement to the 3d Battalion, 2d Marine Regiment.
On October 1, 2010, Bolton completed his active duty service obligation and was honorably discharged. His discharge lists a reenlistment code of RE-1A, meaning that he was eligible to reenlist.
In 2015, Bolton filed a petition with the BCNR to have the summary court-martial expunged from his military record, claiming that he received inadequate legal counsel and was subject to multiple prosecutions for the same incident through the summary court-martial and the civilian courts. On September 21, 2016, the BCNR held that it did not have the statutory authority to set aside the findings of a summary court-martial. The BCNR also sua sponte reviewed the application for clemency, and based on "its review of [the] entire record and application, ... [including the] assertions of inadequate legal
On December 8, 2016, Bolton filed a complaint in federal district court, and amended it on April 17, 2017. Bolton alleged that the BCNR's decision was arbitrary and capricious under 10 U.S.C. § 1558(f)(3) because: (1) it failed to consider his defenses of double jeopardy and ineffective assistance of counsel; and (2) lacked a complete record. Bolton also complained that he was not given the chance to address the evidence used against him. He asked the district court to expunge his court-martial and restore his rank to Corporal.
The district court dismissed the amended complaint on January 29, 2018. The court held that (1) Bolton did not state a claim for double jeopardy because neither the summary court-martial nor the base court conviction constituted a "criminal punishment" to which jeopardy attached; and (2) the BCNR did not have authority to grant Bolton's requested relief. In a footnote, the court observed that BCNR considered Bolton's petition as an application for clemency and denied it "with explanation." Bolton appeals.
Bolton sought judicial review of BCNR's decision under 10 U.S.C. § 1558(f). Venue was proper under 28 U.S.C. § 1402 because Bolton resides within the territorial jurisdiction of the court. The district court granted the BCNR's motion to dismiss and entered judgment on January 29, 2018. Bolton filed this timely notice of appeal on March 29, 2018. We have appellate jurisdiction under 28 U.S.C. § 1291.
III. Standard of Review
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). We "consider[ ] the complaint in its entirety," including "documents incorporated into the complaint by reference." Solo v. United Parcel Serv. Co., 819 F.3d 788, 794 (6th Cir. 2016) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)). Our review is de novo. Stein v. hhgregg, Inc., 873 F.3d 523, 528 (6th Cir. 2017).
Federal courts have the authority to review the decision of a military board of correction under the Administrative Procedure Act (APA). 5 U.S.C. § 701 et seq.; Piersall v. Winter, 435 F.3d 319, 323-25 (D.C. Cir. 2006). Decisions of the BCNR are "subject to judicial review and can be set aside if they are arbitrary, capricious or not based on substantial evidence." Chappell v. Wallace, 462 U.S. 296, 303, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); see also 5 U.S.C. § 706(2)(A),(E) (requiring the reviewing court to "set aside agency action ... found to be" "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "unsupported by substantial evidence...."); and 10 U.S.C. § 1558(f)(3)(A) (authorizing a court to set aside an action of the Secretary of any military department "only if the court finds that the recommendation or action was — (A) arbitrary or capricious; (B) not based on substantial evidence; (C) a result of material error of fact or material administrative error; or (D) otherwise contrary to law").
Id. at 1513; see also id. at 1514 ("While the broad grant of discretion implicated here does not entirely foreclose review of the Secretary's action, the way in which the statute frames the issue for review does substantially restrict the authority of the reviewing court to upset the Secretary's determination."). This extra-deferential standard "is calculated to ensure that the courts do not become a forum for appeals by every soldier dissatisfied" with military action against him, "a result that would destabilize military command and take the judiciary far afield of its area of competence." Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000); see also Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 97 S.Ct. 842 (1953) ("Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.")
Although a correction board's decision to act is uniquely discretionary, it is still required to explain how it reached its decision. Kreis, 866 F.2d at 1514. When the BCNR denies a petition to correct a record, it must provide a "brief statement of the grounds for denial," which must include "the reasons for the determination that relief should not be granted, including the applicant's claims of constitutional, statutory, and/or regulatory violations that were rejected, together with all the essential facts upon which the denial is based." 32 C.F.R. § 723.3(e). But "[a]ll that is required is that the [BCNR's] decision minimally contain a rational connection between the facts found and the choice made." Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997) (internal quotation marks and citations omitted).
A. Statutory Authority
First, Bolton objects to the district court's conclusion that the BCNR lacks authority to correct an unjust court-martial. The BCNR's statutory authority is found in 10 U.S.C. § 1552. That section authorizes the Secretary of any military department, acting through a board, to "correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a)(1). Bolton claims this authority includes the ability to expunge an invalid court-martial like his, citing Baxter v. Claytor, 652 F.2d 181, 185 (D.C. Cir. 1981) (holding that the BCNR had statutory authority to review a petitioner's collateral attack on his court-martial conviction on constitutional grounds), and Owings v. Secretary of United States Air Force, 447 F.2d 1245, 1249-50 (D.C. Cir. 1971) (holding that even if the plaintiff-serviceman could make a collateral attack in a civil court of his court martial, review was limited to constitutional defects and none were presented), in support. However, both cases predate Congress's amendment of 10 U.S.C. § 1552 in 1983 with the addition of
The language of § 1552(f) mirrors Congress's desire to prevent military corrections boards from setting aside court-martials:
S. Rep. No. 98-53, at 11 (1983). Congress wanted to make "it clear that the appellate procedures under the UCMJ provide the sole forum under title 10, United States Code, for a legal review of the legality of courts-martial." Id. at 36. Thus, the purpose of sub-section (f) was to limit the role of the BCNR, which "primarily involves a determination as to whether the sentences should be reduced as a matter of command prerogative (e.g., as a matter of clemency) rather than a formal appellate review." H.R. Rep. No. 98-549, at 15; see also id. at 20 ("In court-martial review the functions of the [BCNR] would be primarily limited to clemency actions.") To that end, the UCMJ sets forth exhaustive post-trial, appellate procedures to address legal challenges to courts-martial. See generally UCMJ arts. 59-76b, 10 U.S.C. §§ 859-876b.
Numerous courts have abided by this clear statutory directive. See, e.g., Cossio v. Donley, 527 F. App'x 932, 935 (Fed. Cir. 2013) (per curiam) ("Just as the Board may not overturn a conviction, it likewise has no authority to amend sentencing judgments other than through a grant of clemency.") (citing § 1552(f)); Kendall v. Army Bd. for Corr. of Military Records, 996 F.2d 362, 364 & n.2 (D.C. Cir. 1993) (noting that Army Board of Corrections for Military Records "properly decided that it lacked jurisdiction" where the issue was limited to setting aside the conviction or deleting the record); Martinez v. United States, 914 F.2d 1486, 1488 (Fed. Cir. 1990) (holding that the Army Board for the Correction of Military Records "has no authority to void court-martial convictions" under § 1552(f)); Cooper v. Marsh, 807 F.2d 988, 991 (Fed. Cir. 1986) (explaining that, before the 1983 amendment, the Army Board of Military Records lacked authority to overturn a court-martial conviction, and after the amendment is limited to extent to which it can correct a court-martial record); Cothran v. Dalton, 83 F.Supp.2d 58,
Thus, Bolton's reliance on Baxter and Owings is unavailing. The Cooper decision makes this clear. There the Federal Circuit Court of Appeals acknowledged that, prior to 1983, military record correction boards "could, if it considered it necessary to correct an error or remove an injustice, completely expunge all reference to a court-martial ever having occurred." Cooper, 807 F.2d at 991: "Before the amendment [the Army Board of Corrections for Military Records] lacked the power to overturn a court-martial conviction.... After the amendment, it still lacks that power and is now limited in the extent to which it can correct a court-martial record." Id. (citing Baxter, 652 F.2d at 184-85).
Bolton argues that United States v. Stoltz, 720 F.3d 1127 (9th Cir. 2013), and Cooper v. United States, 285 F.Supp.3d 210 (D.D.C. 2018), support his reading of § 1552. Stoltz held that double jeopardy did not bar a civilian criminal prosecution of a servicemember after he received a nonjudicial punishment, reversing the district court's dismissal of the indictment. Stoltz, 720 F.3d at 1131-32. Stoltz remarked that if the servicemember suffered a constitutional violation during the nonjudicial punishment proceedings the proper remedy would be to vacate the nonjudicial punishment, id. at 1132-33 and suggested that the Board for Correction of Military Records has the authority to "correct his military record if it determines that imposition of [nonjudicial punishment] on [the defendant] was improper," id. at 1133 (citing § 1552(a)(1)). In Cooper, the petitioner alleged that he received inadequate counsel before he elected the nonjudicial punishment and waived his right to court-martial. Cooper, 285 F.Supp.3d at 215. The district court held that the BCNR's refusal to remove a non-judicial punishment was arbitrary because the BCNR failed to provide an adequate explanation of its rationale and remanded for further consideration. Id. at 216. The cases involve nonjudicial punishments, not court-martials. Because Bolton requested relief the BCNR cannot grant — expungement of the record of his summary court-martial, the district court correctly held that Bolton failed to state a claim.
B. APA Claim
Bolton attacks the BCNR decision as arbitrary and capricious. First, he claims that the summary court-martial was substantively unfair resulting in manifest injustice because he was (1) punished twice for the same infraction, and (2) unfairly induced to take a plea that forever bars him from reenlisting. Second, he alleges that the BCNR's decision was procedurally unreasonable because the BCNR (1) did not review a complete record, and (2) did not give him an opportunity to address the evidence it relied upon.
Bolton argues that he was unfairly punished twice — both by the summary court-martial as well as a base court conviction (which led to a suspension of driving privileges in North Carolina as well). But the Double Jeopardy Clause "protects only against the imposition of multiple criminal punishments for the same offense," Herbert v. Billy, 160 F.3d 1131, 1136 (6th Cir. 1998) (internal quotation marks and citations omitted); see also Hudson v. United States, 522 U.S. 93, 98-99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (holding that Double Jeopardy Clause precludes only successive criminal punishments,
Bolton's base traffic court driving suspension is also not a criminal punishment as a matter of law. Marine Corps regulations authorize commanding officers or their designees to immediately suspend on-base driving privileges when a service member is suspected of driving under the influence on a military installation. MCO § 5110.1D, paras 2-4, 2-6c. The base traffic officer and base traffic court do not have authority to impose criminal punishment; their authority is limited to administratively suspending or revoking on-base driving privileges. MCO 5110.1D para. 2-6. Furthermore, once a member's on-base driving privileges are suspended or revoked, the state agency that issued the member's license and the North Carolina authorities must be notified. MCO 5110.1D para. 2-11.c.(2). Because Bolton was issued a DD Form 1408, he was required to appear before the base traffic officer or have his on-base driving privileges revoked. Camp Lejeune Base Order P5560.2M (Base Order) p.6-1 para. 2, p. 6-4 para. 5(a)(1). Bolton's DD Form 1408 listed the date and location to appear before the base traffic officer. Bolton signed his acknowledgement. Indeed, this court has rejected the claim that an administrative driving suspension is the primary evil that the Double Jeopardy Clause was designed to protect. See Herbert, 160 F.3d at 1137-39 (rejecting argument that administrative license suspensions issued to individuals arrested for drunk driving prior to criminal prosecution violated Fifth Amendment Double Jeopardy Clause because administrative license suspensions were "remedial, not punitive, in nature"); Allen v. Attorney Gen. of State of Me., 80 F.3d 569, 577 (1st Cir. 1996) (holding that criminal prosecution after an administrative suspension of license for driving under the influence did not violate double jeopardy). Instead, administrative suspensions are intended to promote public safety by removing drivers who drive under the influence. United States v. Imngren, 98 F.3d 811, 816 (4th Cir. 1996). In fact, the Fourth Circuit held that prosecution for driving under the influence on a military reservation following suspension of driving privileges did not violate double jeopardy. Id. at 817 (reversing the district court's dismissal of federal criminal charges on the grounds that the previous suspension of the defendants' driving privileges pursuant to army regulations constituted a prior punishment under the Double Jeopardy Clause). In short, Bolton's driving suspensions were an administrative measure because the base traffic court did not have the authority to convict Bolton criminally, and the double jeopardy clause
Next Bolton claims that he was "induced" to take a deal, which resulted in a de facto ban against re-enlistment, and that he was inadequately advised regarding his ability to re-enlist. There are several problems with this argument. First, Bolton did not raise the alleged bar against re-enlistment in his application before the BCNR. He has therefore waived this issue for review. Wilson Air. Ctr., LLC v. F.A.A., 372 F.3d 807, 813 (6th Cir. 2004) ("The administrative waiver doctrine, commonly referred to as issue exhaustion, provides that it is inappropriate for courts reviewing agency decisions to consider arguments not raised before the administrative agency involved."); Kendall, 996 F.2d at 366 ("Indeed, the military justice system is sufficiently analogous to state justice systems to apply identical waiver rules to bar claims raised for the first time during a collateral attack on a court-martial."). More important, Bolton would have to pursue any ineffective assistance claim through the UCMJ appellate and post-conviction review procedures, not before the BCNR.
Bolton contends that his sentence was procedurally flawed because "[t]he record upon which the [BCNR] issued its decision was incomplete and failed to include all relevant information in favor of [him]." He also contends that the BCNR failed to articulate a satisfactory explanation for its decision to deny him clemency.
It is not clear to this court how Bolton would know whether the Department of the Navy transferred a complete file to the BCNR. In fact, the record sent indicates that it is a "redacted copy of the administrative files."
The BCNR considered clemency sua sponte. In "determin[ing] that the circumstances and serious nature of [Bolton's] misconduct did not warrant clemency in the form of changing the sentence awarded by the summary court-martial," the BCNR focused on a similar prior incident in August 2007, when Bolton was counseled about his underage drinking and lack of judgment, and his failure to reform. The BCNR noted that at that time Bolton was "provided recommended corrective action, advised of available assistance, and warned of the consequence of further deficiencies." The BCNR then observed that Bolton's civil conviction and the incident that led to the summary court-martial in 2010 was for reckless driving while intoxicated. Thus, the BCNR provided an adequate explanation for its decision to deny clemency based on factors it deemed most relevant. We cannot say that this decision was arbitrary or capricious. See 10 U.S.C. § 1552(a)(1) (stating that a military record be corrected "when the Secretary considers it necessary to correct an error or remove an injustice") (emphasis added).
Although the BCNR did not expressly mention "the rest of Bolton's distinguished service record," the military record provided to the BCNR included a list of Bolton's "Decorations Medals, Badges Citations
Bolton also complains that he was denied an opportunity present additional evidence at an oral hearing, namely evidence of a diagnosed sleep disorder that apparently caused Bolton to be counseled for underage drinking in 2007. But an applicant does not have a right to an oral hearing; the BCNR has discretion to rule on a petition without one. See 32 C.F.R. § 723.3(e)(1). In any event, Bolton could have presented this evidence in writing to the BCNR. Again, Bolton's argument is unpersuasive.
C. Denial of Clemency
Bolton also argues that the BCNR's denial of his request for clemency was arbitrary and capricious. The BCNR responds that an agency action is not reviewable if it is "committed to agency discretion by law," 5 U.S.C. § 701(a)(2), and clemency is traditionally understood as one of those decisions committed to executive discretion. See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 276, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (plurality opinion) (reaffirming its view that pardon and commutation decisions are committed to the authority of the executive and not appropriate subjects for judicial review); United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2d Cir. 1950) (clemency "is a matter of grace, over which courts have no review") (Learned Hand, J.); United States v. Pollard, 416 F.3d 48, 57 (D.C. Cir. 2005); United States v. Tu, 30 M.J. 587, 591 (A.C.M.R. 1990). Notwithstanding, as Bolton points out in his reply brief, although Congress has narrowed the scope of a correction board's ability to correct the record of a court-martial, it did not remove judicial review of such board's decisions more generally under the APA. See Wilhelm v. U.S. Dep't of Navy Bd. for Corr. of Naval Records, No. 2:15-CV-0276-TOR, 2016 WL 3149710, at * 3 (E.D. Wash. June 3, 2016). Moreover, "section 1552 empowers the [BCNR] to grant clemency pursuant to the same `error' or `injustice' standard as its other decisions." Id. (quoting 10 U.S.C. § 1552); see also Penland v. Mabus, 181 F.Supp.3d 100 (D.D.C. 2016) (reviewing the BCNR's denial of clemency under the APA).
Bolton suggests that clemency was warranted based upon his double jeopardy and ineffective assistance of counsel claims, but he fails to identify any law or standard establishing that these bases rendered the BCNR's denial of clemency arbitrary or capricious under the APA. Even so, the BCNR did consider clemency (noting that it had the authority to reduce the sentence awarded as a matter of clemency), and "determined that the circumstances and serious nature of [Bolton's] misconduct did not warrant clemency in the form of changing the sentence awarded by the summary court-martial." Bolton has failed to show that this decision was irrational. The record reflects that he was charged with multiple offenses, including driving under the influence, disrespecting a commissioned officer, and possessing an
Under the extra-deferential standard we are obliged to apply in matters military, so as "not to interfere with legitimate [Navy] matters," Orloff, 345 U.S. at 94, 73 S.Ct. 534, we reject Bolton's appeal of the BCNR's decision and affirm the decision of the district court.
The district court correctly held that Bolton failed to state a plausible claim for relief under Fed. R. Civ. P. 12(b)(6).
10 U.S.C. § 1552(f).