The parties in the longstanding Ford v. United States military pay case in the U.S. Court of Federal Claims recently filed as an exhibit a Board for Correction of Naval Records (BCNR) Policy Letter 23-1 outlining “Board Member Responsibilities.” It is attached to this post as an item of interest that is not readily available either on the BCNR website or otherwise.
The policy letter is interesting in several respects. First, it acknowledges that BCNR decisions have precedential effect and that it is arbitrary and capricious for the BCNR to treat similar cases in a dissimilar manner absent an explanation of distinguishing factors. On the other hand, the policy letter appears to indicate that it is appropriate for the BCNR to consider the precedential effect of a decision, particularly its impact on the Department of the Navy, in deciding whether to grant relief rather than focusing on whether a material error or injustice exists on the facts of the specific case under consideration. Denying relief due to precedent concerns due to cost or bureaucratic impact concerns despite the existence of an error or injustice would be arbitrary and capricious decision making. Second, it acknowledges that the BCNR has an obligation to consider and to respond to all of an applicant’s non-frivolous arguments or at least to explain why the BCNR has not responded. Third, it acknowledges that the BCNR must provide a rational basis or explanation for its decision and cannot rely on conclusory language or boilerplate conclusions. Given the substantial number of decisions issued by the BCNR that do not comply with the policy letter, it would appear it is aspirational and that the actual board operations have fallen far short of the requirements it articulates.
By way of background, the Ford litigation – which is now in its eighth year – is a case study in how the Navy and the BCNR will relentlessly dig in, drag their heels, and continue to repeatedly deny relief in a military pay case despite repeated errors by the Navy and the BCNR – all happily aided and abetted by the cadre of trial lawyers from the National Courts Section of the Dept. of Justice Civil Division’s Commercial Litigation Branch. The plaintiff initially filed this case in 2017. Since then, the Claims Court has remanded the matter to the BCNR four times and has also published four substantive orders on the matter. See 2024 WL 3666113 (Aug. 6, 2024); 172 Fed. Cl. 300 (2024); 170 Fed. Cl. 458 (2024); 150 Fed. Cl. 220 (2020). The plaintiff is a retired member of the U.S. Navy Reserve who seeks medical disability retirement benefits as well as incapacitation benefits (also known as Line of Duty benefits) he claims are due him as a result of injuries incurred during his service. Plaintiff also seeks review of a BCNR decision concluding that he was ineligible for disability retirement benefits, challenges the subsequent denial of his incapacitation benefits claim by the Navy for failure to submit adequate documentation, and challenges the Navy's 2016 denial of LOD benefits for back and PTSD injuries.
After the parties filed cross motions for judgment on the administrative record relating to the most recent BCNR remand decision denying relief, plaintiff filed a motion to supplement the record by being allowed to depose Board members to ascertain whether the Board members had among other things, consistent with BCNR Policy Letter 1-23, made the findings of fact and conclusions of law in the BCNR decision document or were some or all of those findings improperly made by career, civil service BCNR support staff. The government opposed the motion, which remains pending before the Court.
The policy letter is interesting in several respects. First, it acknowledges that BCNR decisions have precedential effect and that it is arbitrary and capricious for the BCNR to treat similar cases in a dissimilar manner absent an explanation of distinguishing factors. On the other hand, the policy letter appears to indicate that it is appropriate for the BCNR to consider the precedential effect of a decision, particularly its impact on the Department of the Navy, in deciding whether to grant relief rather than focusing on whether a material error or injustice exists on the facts of the specific case under consideration. Denying relief due to precedent concerns due to cost or bureaucratic impact concerns despite the existence of an error or injustice would be arbitrary and capricious decision making. Second, it acknowledges that the BCNR has an obligation to consider and to respond to all of an applicant’s non-frivolous arguments or at least to explain why the BCNR has not responded. Third, it acknowledges that the BCNR must provide a rational basis or explanation for its decision and cannot rely on conclusory language or boilerplate conclusions. Given the substantial number of decisions issued by the BCNR that do not comply with the policy letter, it would appear it is aspirational and that the actual board operations have fallen far short of the requirements it articulates.
By way of background, the Ford litigation – which is now in its eighth year – is a case study in how the Navy and the BCNR will relentlessly dig in, drag their heels, and continue to repeatedly deny relief in a military pay case despite repeated errors by the Navy and the BCNR – all happily aided and abetted by the cadre of trial lawyers from the National Courts Section of the Dept. of Justice Civil Division’s Commercial Litigation Branch. The plaintiff initially filed this case in 2017. Since then, the Claims Court has remanded the matter to the BCNR four times and has also published four substantive orders on the matter. See 2024 WL 3666113 (Aug. 6, 2024); 172 Fed. Cl. 300 (2024); 170 Fed. Cl. 458 (2024); 150 Fed. Cl. 220 (2020). The plaintiff is a retired member of the U.S. Navy Reserve who seeks medical disability retirement benefits as well as incapacitation benefits (also known as Line of Duty benefits) he claims are due him as a result of injuries incurred during his service. Plaintiff also seeks review of a BCNR decision concluding that he was ineligible for disability retirement benefits, challenges the subsequent denial of his incapacitation benefits claim by the Navy for failure to submit adequate documentation, and challenges the Navy's 2016 denial of LOD benefits for back and PTSD injuries.
After the parties filed cross motions for judgment on the administrative record relating to the most recent BCNR remand decision denying relief, plaintiff filed a motion to supplement the record by being allowed to depose Board members to ascertain whether the Board members had among other things, consistent with BCNR Policy Letter 1-23, made the findings of fact and conclusions of law in the BCNR decision document or were some or all of those findings improperly made by career, civil service BCNR support staff. The government opposed the motion, which remains pending before the Court.
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