JOHN F. SHARPE, Plaintiff-Appellant
UNITED STATES, Defendant-Appellee
from the United States Court of Federal Claims in No.
1:15-cv-01087-TCW, Judge Thomas C. Wheeler.
J. Elsby, Akin, Gump, Strauss, Hauer & Feld, LLP,
Washington, DC, argued for plaintiff-appellant. Also
represented by Devin S. Sikes; Caitlin Elizabeth Olwell, New
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,
Taranto, Schall, and Chen, Circuit Judges.
SCHALL, CIRCUIT JUDGE.
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.
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).
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. §
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.
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.
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.
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.
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.
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. 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. 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
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 ...