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Court Determines that Marine Captain Properly Separated After Affair with Staff Sergeant’s Wife

The Court of Federal Claims recently granted the Government’s motion for judgment on the administrative record in Carlino v. United States, the case of a Marine Captain who was administratively separated with an Other Than Honorable characterization of discharge after the command learned of his affair with the wife of a Staff Sergeant.

The Captain filed the lawsuit with the Court of Federal Claims alleging that his Board of Inquiry was unfair when he was not told until the night before the Board that the Staff Sergeant’s wife would be testifying. He also claimed that the Marine Corps violated its policies in separating him without a thorough medical examination and while he was going through the Disability Evaluation Screening (DES) process.

At 7pm, the night before the Board was to convene to hear testimony and receive evidence, the Captain and his attorney were notified that the Staff Sergeant’s wife would testify. She had previously refused to cooperate or be interviewed by either party and changed her mind at her husband’s urging. The morning of the proceedings, the Captain’s attorney was able to interview her briefly over the telephone and in the presence of her husband.

The Court found that this last minute notice did not violate the SecNavInst 1920.6D requirement that respondents be provided with notice of all witnesses in advance of the proceedings. The Court did express concern that the brief telephonic interview conducted by the Captain’s attorney in the presence of her husband might not satisfy the requirement that the respondent have an opportunity to talk to any witnesses before the proceedings. However, since the attorney did not raise the issue to the Board or request more time to interview the witness or to prepare, ultimately, the Court found that the Board of Inquiry proceedings were not conducted in an arbitrary or capricious manner. The Court further emphasized that the Board had evidence other than the Staff Sergeant’s wife to support the allegations before it.

The Captain had four combat deployments with a possible traumatic brain injury (TBI) in 2007. He sought evaluation for PTSD and TBI in late 2019, before the BOI. The provider ruled out PTSD but was unable to form a conclusion as to the TBI. After the BOI was conducted, a psychologist did diagnose PTSD and referred the Captain’s case for DES processing. Before that screening was completed, the Captain was administratively separated as a result of his misconduct with an Other Than Honorable characterization.

The Court found that the administrative separation was appropriate because the governing Marine Corps Order requires evaluation for PTSD or TBI to determine whether those conditions contributed to the conduct for which the servicemember is being separated. Here, the diagnosing psychologist determined that the Captain’s PTSD did not contribute to his misconduct. Further, although the Captain had not completed the DES process, the DoD Instruction concerning separations allows for Dual Processing for administrative and medical separation. Since the Captain’s administrative separation was completed first, it was appropriate to separate him even without a conclusion to the DES evaluation.

Ultimately, the Court reiterated that its job is not to determine which servicemembers are fit or unfit to serve. That is the job of the military departments. The Court will only act where a military board’s decision was arbitrary, capricious, unsupported by substantial evidence, or contrary to the law.

If you or your loved one has been wrongfully separated or improperly denied a medical retirement, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.

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