CHARLES F. LETTOW, District Judge.
Sarah Jean Meyer seeks military back pay and disability retirement benefits. She enlisted in the Army and began training in 2010. After an accident during training caused pain in her shoulder, ankle, and hips, a doctor ordered her to avoid a range of physical training activities, such as running and jumping. But in the following month, several soldiers witnessed Ms. Meyer dancing vigorously. Ms. Meyer was then charged with malingering and found guilty beyond a reasonable doubt in a nonjudicial proceeding under Article 15 of the Uniform Code of Military Justice ("UCMJ"), codified at 10 U.S.C. § 815. The conviction was affirmed on appeal. Subsequently, an Army medical board concluded that Ms. Meyer had medical conditions that made her physically unfit for military service and referred her to a physical evaluation board, which is a prerequisite to a medical discharge. Despite that referral, the Army elected to halt the medical discharge process and instead administratively to separate Ms. Meyer for serious misconduct on the basis of her malingering conviction. She was given a discharge under honorable conditions (general). The Army Board for Correction of Military Records ("Army Correction Board" or "Board") upheld the Army's decision, which Ms. Meyer now challenges. She requests that the court enter an order requiring the Army to provide a medical discharge, expunge the Article 15 proceeding from her record, and award roughly $123,000 in lost pay and medical disability pay. Pending before the court are the parties' cross-motions for judgment on the administrative record. For the reasons stated, the court grants the government's motion for judgment in its favor.
Ms. Meyer enlisted in the Army on March 11, 2010 for a period of four years. AR-1040 to -43.
On August 7, 2010, she appeared at an Army hospital stating that she had "got lost" and had a "panic attack" after a "battle buddy ran into her." Am. Compl. Ex. 4, at 1-2. Records of that hospital visit do not show any physical symptoms. Id. On August 9, 2010, a doctor and her commanding officers concluded that Ms. Meyer was "at risk for self-harm or harm to others. Unit watch is being recommended." Id. at 3. Ms. Meyer would be permitted to continue training, however, she would not be permitted to participate in live-fire exercises. Id. The record does not explain why or how a doctor and her superiors reached that decision.
During training in September 2010, Ms. Meyer alleges she was injured when multiple ruck sacks were dropped on her while she was sitting in a truck. Am. Compl. ¶ 10. Ms. Meyer avers that she did not report the incident at the time, nor did she then seek medical attention, Am. Compl. ¶ 10, and there is no contemporaneous entry of this event in the administrative record. She did report the event to doctors and commanders later in 2010 and 2011.
On September 23, 2010, Ms. Meyer filled out a "trainee sick call slip," stating: "Both knees hurt. Was injured in Basic and had X-Rays taken of my hip. Might be nerve damage in right leg." AR-957.
On October 27, 2010, Ms. Meyer filled out another sick slip, explaining that "I was on [illegible] rest for 2 days, physical therapy for 2 weeks, nothing is helping my [illegible] knee, shoulder, back, hip. I'm not getting enough rest to recover. I would like con-leave. Might be stress fractures, nerve damage." AR-961.
Ms. Meyer again visited the doctor on November 2, 2010. AR-964. Dr. Pavic rated Ms. Meyer as L-2 on the PULHES scale and noted that she was not capable of running two miles, nor of doing push-ups or sit-ups. Id. Dr. Pavic set parameters for Ms. Meyer, writing that her maximum lifting weight would be 25 pounds or 2 miles distance, maximum running distance would be 2 miles, and maximum standing time would be 15 minutes. Id. On November 9, 2010, Ms. Meyer visited a neurologist, AR-982, and at some point near this time she received a CAT scan, although the record does not disclose whether that scan was of her shoulder, hips, legs, or feet, see AR-965 (setting out Ms. Meyer's request for results of her CAT scan). Ms. Meyer visited Dr. Pavic again on November 10, 2010 as a "follow-up" visit, complaining of problems with her left shoulder, neck, lower back, right foot, and ankle pain. AR-965. In response, Dr. Pavic ordered 21 days of limited physical activity. Id.
On November 15, 2010, Ms. Meyer was counseled by her platoon sergeant for disobedience and for acting in a manner that caused her superiors to question the extent of her injuries. AR-940. According to a counseling memorandum written by the platoon sergeant, Ms. Meyer left her assigned desk without permission from her superiors, apparently to go to a doctor's appointment. Id. The memo further elaborated that "this [counseling] action is due to your inconsistent behavior with wanting to be involved in training and then not wanting to be as well as your questionable activity while you are on your day passes during the weekends in regards to how injured you really are." Id. The platoon sergeant did not say specifically what had caused him to question her injuries. But he added that "[t]he possibility of your injuries being real is not in question, it is your choices and actions that make leadership question you." Id. As punishment, Ms. Meyer lost "pass privileges." Id. The platoon sergeant warned her that "[i]f this conduct continues, action may be initiated to separate you from the Army under A[rmy ]R[egulation] 635-200, Chapters 5, 9, 13, or 14." Id. In response to this counseling, Ms. Meyer informed her platoon sergeant that she disagreed with his assessment. AR-941. She furthered stated that "I am not faking my injuries. The doctors told me I have [fibro]myalg[i]a, heel spurs, left shoulder dislocated. Plus I thought it was better th[at] day to report to the CQ desk and heard nothing about appointment slips." Id.
Ms. Meyer again requested to see Dr. Pavic on December 1, 2010, at which time Dr. Pavic ordered another 25 days of limited physical activity. AR-968. On her sick slip, Ms. Meyer expressly requested to be given a "permanent profile." Id. Notably, a permanent profile involving a PULHES rating of 3 or 4 is grounds for medical discharge. See Army Reg. 40-501 ¶ 7-4b. The next day, Dr. Pavic rated Ms. Meyer as L-3 on the PULHES scale. AR-966.
By Ms. Meyer's own account she visited the doctor more than 28 times between July and December of 2010, complaining of the injuries described above as well as depression, bronchitis, and headaches. AR-486 to -89.
AR-490 (emphasis in original).
On January 10, 2011, four soldiers observed Ms. Meyer dancing. One soldier reported that
AR-871; see also AR-873 ("I witnessed SPC Meyer dancing. . . . She flipped, rolled around, and twisted."); AR-875 ("She was not limping on her hurt ankle that she says pains her so much. . . . She did a back flip roll over her dislocated shoulder without any signs of pain she usually displays."); AR-877 ("Spc. Meyer was dancing and flipping around with no problem."). She was also seen doing splits. AR-871. One of the soldiers filmed Ms. Meyer's dancing and showed this video to her commanding officers. See AR-830, -838. Another witness further averred that "there was another occasion . . . Sept 24-Oct 14, 2010, SPC Meyer was in the changing bay dancing around, bouncing around, and acting as if nothing was physically wrong." AR-873.
Consequently, Ms. Meyer's commanding officer, Lieutenant Colonel Christopher Drew, instituted non-judicial punishment proceedings against her on February 15, 2011, accusing her of malingering in violation of Article 115 of the UCMJ, codified at 10 U.S.C. § 915, which provides: "Any person subject to this chapter who for the purpose of avoiding work, duty, or service (1) feigns illness, physical disablement, mental lapse or derangement; or (2) intentionally inflicts self-injury; shall be punished as a court-martial may direct." AR-944 (charging papers). Pursuant to Article 15 of the UCMJ, codified at 10 U.S.C. § 815(a), Ms. Meyer was given an opportunity to demand trial by court-martial. Id. ("[Y]ou have the right to demand trial by court-martial instead [of permitting your commanding officer to decide the question of guilt]. In deciding what you want to do you have the right to consult with legal counsel located at Trial Defense Service."). Ms. Meyer did not exercise these rights, but rather initialed several boxes on a DA Form 2627 waiving trial by court-martial, requesting a closed hearing, waiving her right to have someone speak on her behalf, and stating she would be present at the proceeding in person. Id. On February 23, 2011, Lieutenant Colonel Drew found her guilty of malingering beyond a reasonable doubt. Id. As punishment, Ms. Meyer forfeited $733 of pay per month for two months, was reduced in rank, given extra duty for 45 days, and was restricted to the company area, dining facility, medical facility, and place of worship. AR-945.
Ms. Meyer filed an appeal on February 27, 2011, in which she did not deny dancing but instead offered the following mitigating statement: "During the video I was on five pain pills also listed in paper work." AR-1003. Captain Jennifer Donahue in the Office of the Judge Advocate denied the appeal on March 2, 2011 upon finding that the proceedings "were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offense committed." AR-945. Ms. Meyer filed no further appeals.
An Army Medical Evaluation Board ("MEB") examined Ms. Meyer on March 10, 2011. AR 904. The MEB concluded that Meyer suffered from fibromyalgia, a right ankle osteochondral defect, chronic low back pain, chronic neck pain with degenerative disk disease and osteophytes, and chronic left shoulder pain. AR-904 to -05. The MEB further concluded that these conditions were the result of "a training incident in which [s]oldiers accidentally place[d] 8-9 rucksacks on top of PV1 Meyer's left shoulder and neck while she was sitting in a truck." AR-905. Owing to these conditions, the MEB found Meyer "medically unfit" and recommended that she be evaluated by a Physical Evaluation Board ("PEB") for a possible medical discharge. Id.
On April 20, 2011, the commander of A Company, 554th Engineer Battalion, sent Ms. Meyer a letter informing her that he was initiating action to separate her from service pursuant to Army Reg. 635-200 ¶ 14-12c for commission of a serious offense. AR-919; see also AR-915 to -17. The company commander explained that his decision to begin the separation process was based on the following:
AR-919 (emphasis in original). Ms. Meyer was notified of these proceedings on or before April 26, 2011. AR-913 to -14. On April 29, 2011 she wrote a letter addressed to the brigade commander requesting "that I may leave the military without it affecting getting further employment once I leave the Army." AR-912. She further admitted to dancing in violation of her temporary profile but explained that her fellow soldiers in training had peer-pressured her into dancing:
Id.
Pursuant to Army Reg. 40-501, Ms. Meyer was required to undergo a mental status evaluation. AR-920. That evaluation found that she was mentally responsible and that she had the capacity to understand and participate in a discharge proceeding. AR-937. The evaluator further remarked that
Id. (emphasis added).
On May 4, 2011, the battalion commander concurred with the company commander that Ms. Meyer should be discharged. AR-911. By May 23, 2011, Ms. Meyer had retained legal counsel and requested to be evaluated for medical discharge, rather than being separated for misconduct. AR-909. She specifically asked that her medical conditions be found insufficient to meet Army retention standards, and she further recounted how she was injured during training when ruck sacks were dropped on her left shoulder. Id. Nevertheless, on June 1, 2011 the brigade commander concurred that she should be discharged for misconduct. AR-910.
On June 8, 2011, Ms. Meyer's case was referred to the pertinent General Court-Martial Convening Authority, Major General David Quantock, to render a final decision. AR-904. As an initial matter, Army regulations required General Quantock to decide whether Ms. Meyer should be processed medically, owing to the fact that a MEB had referred her to a PEB, or administratively for misconduct. Army Reg. 635-200 ¶ 1-33b(2). General Quantock concluded that the administrative separation should supersede the medical separation process, checking "NO" next to the statement "[t]he [s]oldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation." AR-905. General Quantock further checked "NO" next to the statement "[o]ther circumstances of the individual case warrant disability processing instead of further processing for administrative separation." Id. General Quantock then ordered Ms. Meyer's separation pursuant to Army Regulation 635-200 ¶ 14-12c, for commission of a serious offense, on the basis of her malingering in violation of UCMJ Article 115. AR-904 to -06.
Ms. Meyer filed a petition with the Discharge Review Board ("Discharge Board") on September 14, 2011, AR-896, which found that she was properly discharged for misconduct pursuant to Army Regulation 635-200, AR-892 to -94 (Discharge Board letter dated May 2, 2012). The Discharge Board found that Ms. Meyer "provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance." AR-894.
Not accepting that result, Ms. Meyer filed a petition with the Army Correction Board on August 23, 2012. AR-745. Ms. Meyer requested: that her misconduct discharge be changed to a "medical" discharge; expungement of the Article 15 proceeding for "failing to observe the proper legal standard (beyond a reasonable doubt);" restoration of rank as a specialist; or referral to a PEB. Id. The Board denied her petition on March 28, 2013. AR-720 to -44. The Correction Board noted that she had been discharged for committing a serious offense — malingering — and that "[a]ll requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process." AR-740. Turning to her argument that the Article 15 proceeding was in error, the Board noted that it "does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ." AR-741. Nonetheless, the Board commented that the evidence "confirms" that she violated Article 115 of the UCMJ, and that she submitted no evidence to show that her conviction and punishment were "untrue or unjust." Id. Moreover, the Board found that Ms. Meyer had waived her right to a court-martial, electing a closed hearing with her commander, whose decision would not be upset unless "clearly unsupported by the evidence." Id.
The Army Correction Board also specifically addressed whether Ms. Meyer was entitled to a medical discharge. AR-742. To that end, Ms. Meyer had argued that her disabilities were real, not fictional. AR-755 (Ms. Meyer's brief to the Board). However, the Board explained that the validity of her injury claims was not at issue:
AR-742. Rather, the Board explained that the issue was whether "the [s]oldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation and/or whether other circumstances of the individual case warrant disability processing." Id. (citing All-Army Activities Message 159/2012 (June 13, 2012)); see also Army Reg. 635-200, ¶ 1-33b(2) (stating the pertinent rule). In that respect, the Board found that Major General Quantock had "reviewed the applicant's separation packet and the evidence presented. This evidence included her profiles, MEB proceedings, clinical records, and the nature of her misconduct. . . . [General Quantock] was in the best position to determine that the applicant's medical condition did not contribute substantially to her misconduct." Id. "It is clear the separation authority weighed the medical evidence against the other evidence presented and determined that the preponderance of the evidence warranted further administrative separation processing instead of disability processing." Id.
The Board further found no other basis to upgrade her discharge, finding she had been negatively counseled multiple times for disrespect, failure to follow instructions, and wrongful use of a controlled substance. AR-740; see also AR-860 (counseling Ms. Meyer for possessing prescription drugs contrary to policy); AR-940 (counseling Ms. Meyer regarding disobedience and possibly fake injuries); AR-942 (counseling Ms. Meyer for failure to respect a non-commissioned officer).
Ms. Meyer filed this action on September 14, 2015 and amended her complaint on January 6, 2016. The amended complaint asserts four counts alleging that the Army's conduct was irrational. Count One contends that the conviction for malingering is inconsistent with the MEB's finding that Ms. Meyer is medically unfit, and that the Army Correction Board erred by failing to reconcile these contradictory findings. Am. Compl. ¶¶ 38-46. Counts Two and Three assert that General Quantock essentially overruled the MEB despite not having the authority to do so. Am. Compl. ¶¶ 47-50, 55-61. Finally, Count Four asserts that the Army inconsistently characterized Ms. Meyer's malingering offense as "minor" for the purpose of Article 15 of the UCMJ and yet "serious" within the meaning of Army Regulation 635-200. Am. Compl. ¶¶ 62-70.
In seeking judgment on the administrative record, Ms. Meyer has focused on the central theme of these claims. See Pl.'s Cross-Mot. for Judgment on the Admin. Record and Resp. to Def.'s Mot. ("Pl.'s Cross-Mot.") at 2, ECF No. 23. In her brief supporting her motion, plaintiff states that "the issue" is "whether the [Army Correction Board's] concession that the plaintiff did not feign injuries . . . contradicts the finding that the plaintiff did feign injuries beyond a reasonable doubt according to procedure found in Rule of Courts-Martial 918." Id.
This court has jurisdiction under the Tucker Act, codified at 28 U.S.C. § 1491(a)(1), to hear claims for back pay arising under the Military Pay Act, 37 U.S.C. § 204, see Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003), and claims for disability retirement pay arising under 10 U.S.C § 1201, see Chambers v. United States, 417 F.3d 1218, 1224 (Fed. Cir. 2005). Once the court's jurisdiction pursuant to such money-mandating statutes is established, the court may further "issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records" when such an order would "provide an entire remedy and . . . complete the relief afforded by the judgment [on a claim for monetary damages]." 28 U.S.C. § 1491(a)(2); see also James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (holding that the court may enter such declaratory and equitable relief when "subordinate to a money judgment"). Accordingly, the court has jurisdiction to hear Ms. Meyer's claims of entitlement to back pay and disability pay.
In a case dependent upon an administrative record, a party may move for judgment upon that record pursuant to RCFC 52.1(c). In cases concerning military pay where the claim has been presented to a military board, the court's role is to review the decision of the board pursuant to the standards of the Administrative Procedure Act, codified at 5 U.S.C. § 706. See Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009). Pursuant to these standards, the court shall set aside agency action if the plaintiff demonstrates that that action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Courts have found an agency's decision to be arbitrary and capricious when the agency "entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or [the decision] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Therefore, "[a]s long as the [military b]oard's action comported with the procedural standards mandated by statute or regulation, considered the relevant evidence, and reached a reasonable conclusion, the court will not disturb the [b]oard's decision." Verbeck v. United States, 118 Fed. Cl. 420, 424 (2014) (citing Melendez Camilo v. United States, 642 F.3d 1040, 1045 (Fed. Cir. 2011); Helferty v. United States, 113 Fed. Cl. 308, 316 (2013)).
Ms. Meyer does not expressly challenge the validity of her Article 15 proceeding, instead focusing upon her separation from the Army. See generally Pl.'s Cross-Mot. Nonetheless, Ms. Meyer's brief challenges whether the evidence at the Article 15 proceeding was sufficient to meet the beyond-a-reasonable-doubt standard. Pl.'s Cross-Mot. at 4. When reviewing an Article 15 proceeding, the court applies a deferential standard: "[I]t is not this court's function to review the merits of findings of guilt . . . but only the disregard or violation of the Constitution, statute or regulations in the conduct of the proceedings." Cochran v. United States, 1 Ct. Cl. 759, 770 (1983); see also Cappella v. United States, 624 F.2d 976, 979-80 (Ct. Cl. 1980) (reviewing an Article 15 proceeding for compliance with the Constitution, statutes, and regulations). As relevant here, an Army regulation requires a finding of guilt beyond a reasonable doubt before imposing punishment in an Article 15 proceeding, and this court may review an Article 15 proceeding for compliance with that regulation. Houghtling v. United States, 114 Fed. Cl. 149, 158 (2013) (citing Army Reg. 27-10 ¶ 3-18(1)). However, the court must not "reweigh the evidence" or "delve into the Army's decision to administer such a punishment." Id.
The Army Correction Board's decision here readily passes muster under these standards of review. The Board concluded that Ms. Meyer's commander applied the beyond-a-reasonable-doubt standard, AR-740 to -41, and it further found that "the evidence of record confirms that [Ms. Meyer] violated . . . Article 115 of the UCMJ," AR-741. The Board's decision is itself supported by substantial evidence, which includes the affidavits of four soldiers, as well as video evidence and Ms. Meyer's subsequent admission that she was dancing. Although Ms. Meyer now argues on brief that the MEB's findings contradict the Article 15 proceeding, those MEB findings came after the Article 15 proceeding, which was itself affirmed on appeal. See also infra (addressing plaintiff's argument that the results of the Article 15 proceeding and the MEB's findings were contradictory). Additionally, the Board noted that the Army had afforded Ms. Meyer the procedures required by law, offering her the right to demand trial by court-martial, a defense attorney, and an opportunity to appeal. AR-741. In these circumstances, the court "cannot identify any irrationality in the board's decision. It did not misapply [the beyond-a-reasonable-doubt] standard or fail to consider any evidence." Houghtling, 114 Fed. Cl. at 159.
Ms. Meyer contends that the Board arbitrarily failed to reconcile "two incompatible findings." Pl.'s Cross-Mot. at 4. "First," Ms. Meyer says, "the MEB found that Ms. Meyer sustained injuries that disqualified her from military duty." Id. (citing AR-904 to -05). "Second, Ms. Meyer's separation authority found that Ms. Meyer feigned th[ose] same injuries. . . . The [Board] found that the evidence supported both findings, but failed to reconcile the incompatible evidentiary findings. This is arbitrary and capricious." Id.
Army Regulation 635-200 ("Discharge Regulation") governs separation of enlisted soldiers. Clifford v. United States, 59 Fed. Cl. 440, 443 n.4 (2004). Among other reasons, an enlisted soldier can be discharged for misconduct. See Discharge Regulation ¶ 14-12. Such misconduct may include a pattern of minor infractions, id. at ¶ 14-12a, or the commission of a single "serious" offense, id. at ¶ 14-12c. In pertinent part, a soldier may be separated for commission of a "serious offense" when the soldier commits a "serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the M[anual for ]C[ourts ] M[artial]." Id. ¶ 14-12(c). Notably, a violation of Article 115 of the UCMJ, codified at 10 U.S.C. § 915, is punishable by dishonorable discharge under the Manual for Courts-Martial. See Manual for Courts-Martial, Chapter IV, ¶ 40(e) (2012) (providing that malingering is punishable by forfeiture of pay, confinement for one year, or dishonorable discharge).
The discharge process begins when an enlisted soldier's "immediate commander determines that separation for acts or patterns of misconduct is in the best interest of the Service." Discharge Regulation ¶ 14-15. Once the immediate commander determines that separation is appropriate, he or she reports that finding to an intermediate commander, who in turn approves or disapproves the finding and then forwards the case to a final separation authority. Id. ¶ 14-16. For that purpose, "commanders who are General Court-Martial Convening Authorities (GCMCAs)" and any "general officer in command who has a judge advocate or legal advisor available" are authorized to approve or disapprove the separation or release from active duty of soldiers pursuant to this regulation. Id. ¶ 1-19. If the GCMCA concurs with the findings of the immediate and intermediate commanders, and if certain other conditions not applicable here are met, then the soldier is separated. Id. ¶ 14-17.
However, the regulations governing separation for misconduct include an exception for soldiers who have a medical condition. See Discharge Regulation ¶ 1-33. As a general rule, "disposition through medical channels takes precedence over administrative separation." Id. ¶ 1-33. Thus if a soldier is being processed for misconduct, and if a MEB refers that soldier to a PEB for "disability processing," then:
Discharge Regulation ¶ 1-33(b)(1) (citing Army Reg. 635-40 ¶ 4-3b (in turn cross-referencing the Discharge Regulation)). Overlaying that regulation, the Army has also promulgated an All-Army Activities Message that amends the word "may" in the Discharge Regulation by replacing it with "must." See All-Army Activities Message 159/2012 at ¶ 4(B)(2) (June 13, 2012) (providing the GCMCA "must direct, in writing, whether to proceed with the" PEB referral). Thus when a soldier being processed for misconduct has been referred to a PEB, the GCMCA must determine whether the "medical condition is the direct or substantial contributing cause of the [mis]conduct" or whether other circumstances warrant disability processing in lieu of misconduct processing. Id. If so, then the medical process continues. If not, then the soldier may be discharged for misconduct despite having a medical condition that fails Army medical retention standards. See Houghtling, 114 Fed. Cl. at 149 (affirming a board's decision to uphold a soldier's separation for misconduct, despite referral to a PEB).
Applying these rules here, the Board found that the GCMCA properly determined that Ms. Meyer's injuries were not the direct or substantial contributing cause of her malingering. AR-742 to -43. The Board found that Major General Quantock "reviewed [Ms. Meyer's] separation packet and the evidence presented. This evidence includes her profiles, MEB proceedings, clinical records, and the nature of her misconduct." AR-742. The Board further concluded that Major General Quantock "weighed the medical evidence against the other evidence presented and determined that the preponderance of the evidence warranted further administrative separation processing instead of disability processing." Id. In particular, the Board noted that Major General Quantock found "the nature of [Ms. Meyer's] misconduct (malingering) had no relation to the medical conditions listed on her MEB" and that no "other circumstances" warranted disability processing over administrative separation. AR-743.
These findings by the Board are rational and supported by substantial evidence in the record. Despite plaintiff's complaints of pain limiting her ability to train, and despite express physical activity limitations instituted by Dr. Knife, Ms. Meyer was seen dancing by four other soldiers. AR-871 to -77. Her dancing included a somersault and shoulder roll, both inconsistent with her claim of inability to perform training. Id. Ms. Meyer admitted to dancing, although she denied doing a somersault, and she offered only the mitigating statement that she was on pain pills while dancing. AR-1003. Further, while her medical history confirmed that she had injuries, other parts of her medical records indicated that she had "no objective findings to substantiate her multiple complaints," AR-490, and a mental healthcare professional had rendered an opinion that "as for malingering, this provider believes that [she] believes what she is telling everyone, it is part of her victim mentality." AR-937. Her dancing had thus put at issue the extent of her injuries and ultimately led to her conviction for malingering. AR-919.
Facing this substantial evidence, Ms. Meyer argues that Major General Quantock's decision was a sub silentio reversal of the MEB's findings that she was actually injured. Pl.'s Cross-Mot. at 5 (citing Army Reg. 40-501 ¶ 7-12 for the proposition that a commander may not reverse a medical board). This argument misconstrues Major General Quantock's decision, as well as the Board's affirmance of it. The Board expressly held that Ms. Meyer does have medical conditions, as found by the MEB. AR-742. Thus the existence of her medical conditions was not disputed. Rather, the question was whether those medical conditions were the direct or substantially contributing cause of her malingering. The court agrees that the fact that Ms. Meyer actually had several medical conditions is not inherently inconsistent with a finding that she also feigned injury as shown by her dancing. Under these circumstances, the Board's decision was not in error. Houghtling, 114 Fed. Cl. at 158.
Ms. Meyer argues that the Army has arbitrarily classified her malingering charge as "minor" for the purpose of conducting an Article 15 proceeding, yet "serious" for the purpose of administrative separation under the Discharge Regulation ¶ 14-12(c). Am. Compl. ¶¶ 64-69. If Ms. Meyer is correct that an offense that is "minor" under Article 15 cannot be "serious" under the Discharge Regulation, that would mean the Army erred in separating her for misconduct on the sole basis of her malingering. Ms. Meyer nonetheless appears to have forfeited this argument by failing to raise it before the Board. See AR-745 to -59 (showing plaintiff's contentions before the Board, which do not include this argument). And although she raised the issue in her complaint, she failed to include it in her cross-motion for judgment on the record, compounding this procedural error. See Qwest Gov't Servs., Inc. v. United States, 112 Fed. Cl. 24 (2013) (addressing precedents holding that arguments not raised in a motion for judgment on the record are waived).
Even assuming this argument was preserved, the court finds it unpersuasive. An Article 15 proceeding is an administrative hearing conducted by a soldier's commanding officer, who decides whether the soldier is guilty and who then selects from a limited array of punishments. 10 U.S.C. § 815(b), (c) (listing punishments available). Unlike a court-martial, which resembles a judicial proceeding and which may enter any lawful punishment, an Article 15 proceeding was designed by Congress to resolve lesser violations of law, thereby serving "as a device for protecting the service member from the stigma of a court-martial, with consequent likely loss of later civilian job opportunities, and also protecting the military from the effect of a court-martial on the member's efficiency and morale." Turner v. Dep't of Navy, 325 F.3d 310, 314 (D. C. Cir. 2003). For this reason, the Armed Forces may only conduct Article 15 proceedings when the service member is charged with "minor offenses." Hagarty v. United States, 449 F.2d 352, 358 (Ct. Cl. 1971).
Accordingly, there is nothing inherently contradictory in Ms. Meyer's being discharged for "commission of a serious offense" under the Discharge Regulation ¶ 14-12c on the basis of her Article 15 conviction for the "minor offense" of malingering. Malingering is the type of offense that is well-suited to administrative resolution by an immediate commander, see Turner, 325 F.3d at 315, and in the circumstances of Ms. Meyer's case it was "minor" within the meaning of Article 15. But malingering is also deleterious to military discipline, see United States v. Doane, 54 M.J. 978, 996 (A. F. Ct. Crim. App. 2001) (Burd, J., concurring) (discussing the serious nature of malingering), thereby fitting within the meaning of a "serious" offense under Paragraph 14-12c of the Discharge Regulation. In sum, the court cannot find that the Board's decision was contrary to law or arbitrary and capricious. Rather, the Board rationally found that the Army properly separated Ms. Meyer for commission of a serious offense on the basis of her malingering. AR-740 ("The evidence of record shows the applicant committed a serious offense — malingering.").
The government's motion for judgment on the administrative record is GRANTED. Plaintiff's cross-motion for judgment on the administrative record is DENIED. The clerk is directed to enter judgment in accord with this disposition.
No costs.
IT IS SO ORDERED.
