Sharpe v. United States

          Appeal from the United States Court of Federal Claims in No. 1:15-cv-01087-TCW, Judge Thomas C. Wheeler.

          Rachel J. Elsby, Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, DC, argued for plaintiff-appellant. Also represented by Devin S. Sikes; Caitlin Elizabeth Olwell, New York, NY.

          Igor Helman, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Robert Edward Kirschman, Jr., Joseph H. Hunt, Douglas K. Mickle; Stephen Robert Stewart, Office of the Judge Advocate General, General Litigation Division, United States Department of the Navy, Washington, DC.

          Before Taranto, Schall, and Chen, Circuit Judges.

          SCHALL, CIRCUIT JUDGE.

         John E. Sharpe is an officer in the U.S. Navy. In a decision dated February 8, 2016, the Board for Correction of Naval Records ("BCNR" or "Board") found Mr. Sharpe's 2009 separation from the service to have been unlawful. Accordingly, the Board recommended that Mr. Sharpe be returned to active duty, and the Assistant Secretary of the Navy approved the Board's recommendation. Before us now is Mr. Sharpe's appeal of the November 8, 2017 decision of the United States Court of Federal Claims that sustained the Navy's decision to deny Mr. Sharpe, upon his return to active duty, certain categories of back pay associated with his military record. See Sharpe v. United States, 134 Fed.Cl. 805 (2017). For the reasons set forth below, we affirm.

         Background

         I

         The pertinent facts are not in dispute. Mr. Sharpe checked in aboard the aircraft carrier USS Carl Vinson ("Carl Vinson") as a Public Affairs Officer ("PAO") on June 20, 2006. Id. at 809. At the time of his assignment to the Carl Vinson, the ship was undergoing a refueling and complex overhaul and thus was non-operational and uninhabitable. Id. The overhaul was "set to last during the entire pendency of Mr. Sharpe's assignment to the Carl Vinson." Id. Thus, Mr. Sharpe was instructed to report to the Media Department, which was located ashore on the eighth floor of the "Bank Building" attached to the Northrop Grumman Newport News complex in downtown Newport News, Virginia. Id. Mr. Sharpe regularly reported to this onshore location throughout the entirety of his assignment to the Carl Vinson and carried out the majority of his duties at this location, except when he reported to a few other onshore locations in Hampton Roads, Virginia. Id. At no time during his assignment did Mr. Sharpe perform any regular duties on board the Carl Vinson or "eat, work, live, stand watch or serve any punishment aboard the Carl Vinson or any other ship." Id. (citing Administrative R. at 248, J.A. 1104).

         In March of 2007, a reporter contacted a Media Relations Officer from the office of the U.S. Fleet Forces Public Affairs Office, inquiring about Mr. Sharpe's alleged involvement in "hate group activity." Id. (quoting Administrative R. at 34, J.A. 890). The next day, Mr. Sharpe was ordered to turn over his duties and report to his home in Carrollton, Virginia, as his assigned place of duty until further notice. Id. As a result, Mr. Sharpe began a temporary assignment to the Commander, Naval Air Forces Atlantic. Id. at 809-10. On March 9, 2007, the Naval Criminal Investigations Service began a formal investigation into the reporter's query, and approximately two months later, in May of 2007, Mr. Sharpe was informed that the Commanding Officer ("CO") of the Carl Vinson intended to impose a non-judicial punishment on him. Id. at 810. On May 16, 2007, the CO issued Mr. Sharpe a punitive letter of reprimand for two alleged violations of UCMJ Article 88, 10 U.S.C. § 888.^[1] When Mr. Sharpe inquired about the process for demanding a trial by court-martial, the CO informed him that, due to the "vessel exception," he had no right to make such a demand. Id. The "vessel exception" denies the right of a service member "attached to or embarked in a vessel" to refuse a non-judicial punishment and demand a trial by court-martial. Id.; 10 U.S.C. § 815(a).

         On July 9, 2009, the Assistant Secretary of the Navy approved a recommendation by the Commander, Navy Personnel Command, to discharge Mr. Sharpe from the Navy. Sharpe, 134 Fed.Cl. at 810. Mr. Sharpe formally separated from the Navy on September 30, 2009. Id.

         II

         Mr. Sharpe submitted an application for Correction of Naval Record to the BCNR on September 28, 2012. Id. In his application, he requested reinstatement. He also requested that his naval record be corrected by removing all documentation pertaining to his non-judicial punishment. Id.; J.A. 2620-22. In addition to seeking reinstatement and correction of his record, Mr. Sharpe requested that he receive "back payment of all regular or special pay, allowances, allotments, compensation, emoluments, or other pecuniary benefits" due to him as a result of his alleged erroneous separation from the Navy. J.A. 884. In his application, Mr. Sharpe argued that the vessel exception had been improperly invoked because the dry-docked Carl Vinson was not a "vessel" and because, although he was officially assigned to the ship, he was not "attached to or embarked in a vessel," as he did not "live, eat, work, stand watch, or serve any punishment aboard" the Carl Vinson. J.A. 912; J.A. 1104.

         On February 8, 2016, the BCNR recommended to the Secretary of the Navy that Mr. Sharpe's non-judicial punishment be set aside, along with its administrative consequences. Sharpe, 134 Fed.Cl. at 811-12; J.A. 898. In addition, the Board recommended that Mr. Sharpe be treated as if he had not been discharged but "ha[d] continued to serve on active duty without interruption." J.A. 901. The Board also recommended that Mr. Sharpe be retroactively promoted. Id. In arriving at its recommendations, the BCNR noted, as Mr. Sharpe had, the significance of the Carl Vinson's non-operational status during the entirety of Mr. Sharpe's assignment. In addition, the Board observed that "neither [Mr. Sharpe's] regular place of work, nor his [non-judicial punishment] rights-advice session or . . . hearing, were aboard ship." J.A. 898. The Assistant Secretary of the Navy approved the BCNR's findings and recommendations on April 25, 2016. Sharpe, 134 Fed.Cl. at 812; J.A. 902.

         The Navy proceeded to implement the Board's recommendations. As a result, Mr. Sharpe was issued orders to report to active duty by February 13, 2017, and to report to his new duty station in Washington, D.C. by May of 2017. Sharpe, 134 Fed.Cl. at 812. On May 5, 2017, Mr. Sharpe was retroactively promoted to the rank of Commander effective August 1, 2008. Id. Mr. Sharpe's case was then forwarded to the Defense Finance and Accounting Services ("DFAS") for calculation of the appropriate back pay to which he was entitled. J.A. 857.

         A memorandum by Brian D. Bourne ("Bourne memorandum"), which was issued by the Naval Personnel Command on May 11, 2017, set forth the Personnel Command's position regarding DFAS's calculations. J.A. 858-60. First, the memorandum noted that, before his separation, Mr. Sharpe was assigned to the Carl Vinson for three years and three months, a time period that exceeded the normal twenty-four-month sea duty tour for a PAO. Thus, the memorandum stated that, "[c]ommensurate with PAO detailing policy, [Mr. Sharpe] would not have continued to serve aboard [the Carl Vinson] past 2009 and his record (including pay) should be corrected to show that his sea duty ended on 30 Sep 09." J.A. 858-59. The Bourne memorandum thus recommended that Mr. Sharpe not receive career sea pay ("CSP") or a CSP premium, since he "did not serve aboard ship, and for constructive service purposes would not have been assigned to a ship" from October 1, 2009, to February 12, 2017. J.A. 859.^[2] Next, the Bourne memorandum recommended that Mr. Sharpe receive basic allowance housing ("BAH") at the rate for Norfolk, Virginia for the period of his separation, despite a change in the home port of the Carl Vinson from Norfolk to San Diego, California, in 2010. Id.^[3] In line with the recommendation in the Bourne memorandum, DFAS declined to pay Mr. Sharpe CSP or a CSP premium for the period of his separation. Also consistent with the Bourne memorandum, DFAS awarded Mr. Sharpe BAH at the Norfolk rather than San Diego rate for the period of his separation.

         III

         While his application was pending before the BCNR, Mr. Sharpe filed suit in the Court of Federal Claims "to preserve his right to judicial review." Sharpe, 134 Fed.Cl. at 811 (quoting Compl. at 8). The case was stayed while the BCNR reviewed Mr. Sharpe's application. Id. Following the Board's decision and the ...