Federal Circuit/
Sailors' Challenge to Their Honorable Discharges Unsuccessful
By Gabriella Khorasanee, JD on July 15, 2014 | Last updated on March 21, 2019
In 2011, the Navy was faced with a situation of "overmanning" and need to "optimize the quality of the navy," so it did the military's version of a layoff and created an Enlisted Retention Board, which resulted in the honorable discharge of many sailors. The Navy notified sailors about positions that were overmanned, quotas, and gave them the ability to convert to an undermanned position. After this process, 2,946 sailors were chosen for separation, and sailors were honorably discharged.
Three hundred sailors sued in the Court of Federal Claims for back pay, and challenged the Navy's decision to create the ERB, the decision to discharge, and also alleged the discharges violated due process, as well as statutory and regulatory requirements.
The sailors filed a motion to disqualify the judge, who had previous positions with the DoJ and as counsel to the Navy, and they also filed a motion to supplement the record. The court denied the sailors' motions, and instead, granted the Government's motions. The court dismissed the merit challenges as non-justiciable, and denied the rest of the motions on the administrative record. The sailors appealed.
Merit Challenges
The court relied longstanding jurisprudence that holds that military staffing, and ability to manage its workforce, is purely a military matter. The court stated: "The merits of a military staffing decision are committed 'wholly to the discretion of the military' ... and its decisions to institute the ERB and honorably discharge its sailors are 'unquestionably beyond the competence of the judiciary to review.'"
Procedural Challenges
The sailors were equally unsuccessful on the procedural challenges. The court found that no statutes or regulations were violated, and further found no violation of due process, finding that honorable discharge did "not implicate a liberty or property interest sufficient to invoke due process rights to notice and a hearing," and that the ERB stayed within "minimum concepts of basic fairness."
The Judge and Administrative Record
The court found that the judge's work, seventeen years at the DoJ and the Navy, "does not raise a reasonable question as to her impartiality." As to the motion to add documents to the administrative record, the court affirmed the trial court's dismissal of the motion because the documents were only relevant to the merit-based challenges -- which were not non-justiciable.
In the end, those are the breaks. The Navy saw a surge in recruitment due to the economy, but just like businesses, the military sometimes has to downsize during downturns too. As the court noted, the discharges were honorable with "no stigma attached."
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