Edison W. Miller v. John F. Lehman, Jr.

801 F.2d 492, 255 U.S. App. D.C. 278, 1986 U.S. App. LEXIS 30682
CourtCourt of Appeals for the D.C. Circuit
DecidedSeptember 19, 1986
Docket85-5328
StatusPublished
Cited by37 cases

This text of 801 F.2d 492 (Edison W. Miller v. John F. Lehman, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edison W. Miller v. John F. Lehman, Jr., 801 F.2d 492, 255 U.S. App. D.C. 278, 1986 U.S. App. LEXIS 30682 (D.C. Cir. 1986).

Opinions

Opinion for the court filed by Circuit Judge BUCKLEY.

Opinion concurring in the result filed by Circuit Judge EDWARDS.

BUCKLEY, Circuit Judge:

The government appeals a decision of the district court ordering Secretary of the Navy John Lehman to expunge a letter of censure from the service record of Edison W. Miller, a retired Marine Corps colonel, 603 F.Supp. 164. The letter was issued by one of Lehman’s predecessors, John Warner, and concerned Miller’s conduct while held as a prisoner of war in North Vietnam.

The court reasoned that Secretary Lehman acted arbitrarily in rejecting a finding of the Board for Correction of Naval Records (“BCNR” or “Board”) that ex-pungement was required because the procedures used to censure Miller were unjust. The court further reasoned that the Secre[494]*494tary should have found that the censure was legally erroneous because it violated the twin limitations on secretarial censures that they be nonpunitive in nature and relate only to minor offenses.

We conclude that the district court’s decision misconstrues controlling legal principles and therefore must be reversed. We nevertheless find that, because the determinations of both the Secretary and the BCNR concerned only the procedures used to censure Miller, the merits of the censure have never been reached. Accordingly, we remand this case to the district court with instructions that it be remanded to the BCNR for a determination as to whether Miller’s conduct warranted censure by the Secretary of the Navy.

I. Factual Background

Edison W. Miller was shot down while flying a combat mission over North Vietnam on October 13, 1967. He was captured by the North Vietnamese and imprisoned until February 13, 1973. Upon Miller’s return to the United States, Admiral James Stockdale, the most senior naval officer imprisoned in North Vietnam, formally preferred charges against Miller and several other former prisoners concerning their conduct while in captivity. Among the charges against Miller were soliciting fellow prisoners to mutiny, refusing to obey lawful orders, accepting special favors from the enemy, and informing on fellow prisoners.

Secretary of the Navy John Warner assumed personal control of Miller’s case. Warner interviewed nineteen potential witnesses (including several potential defense witnesses identified by Miller’s lawyers), reviewed reports on the case by the Naval Investigative Service and the Navy Judge Advocate General, and met with Miller’s lawyers. On October 27, 1973, Warner publicly announced his decision to issue an administrative letter of censure to Miller in lieu of having him tried by a court-martial. The letter of censure, a copy of which was placed in Miller’s service record, stated in pertinent part:

I have reached the judgment that your conduct during certain of the periods when you were a prisoner of war in North Vietnam failed to meet those high standards which are required of an officer in the Armed Forces of the United States. You placed your personal comfort and welfare above that of your fellow prisoners of war. But of greater seriousness, your conduct, at times and for extended periods, was severely detrimental to both the welfare and morale of your fellow prisoners, many of whom had been in captivity with you for a number of years.
Based upon the foregoing, and pursuant to section 0102b of the Manual of the Judge Advocate General, you are hereby administratively censured.
Although the charges preferred against you do warrant the convening of a pretrial investigation under Article 32, Uniform Code of Military Justice, and thereafter possible trial by general court-martial, I have decided to dismiss those charges. I feel that further proceedings, with their attendant publicity, would subject many former prisoners of war and their families, as well as your own family, to additional serious disruption and hardship disproportionate to any national interest which could conceivably be served thereby. I make this decision with a view to the best interests of the United States Naval Service and the community of returned prisoners of war and their families.

Administrative Record (“A.R.”) at 147-48.

At a subsequent press conference, Warner elaborated on his reasons for dismissing the charges against Miller. Among other things, he stated that “administratively I could achieve the same thing as the courts-martial and I thereby removed the inconvenience to perhaps 100 or more from being brought back from all corners of the United States to participate in a long trial.” A.R. at 40.

Upon dismissal of the charges, Miller received a promotion and then retired for medical reasons, receiving full pension and [495]*495medical disability benefits. Miller also availed himself of his right under section 0102b of the Manual of the Judge Advocate General to have a written reply to the letter of censure included in his service record.

II. Subsequent Proceedings

In September 1974, Miller applied to the BCNR for expungement of the letter of censure from his record. The Board’s authority to recommend modifications of naval records derives from 10 U.S.C. § 1552(a) (1982), which provides in relevant part:

The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice.... Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States.

This statute authorizes relief if the Secretary determines that a serviceman has suffered from either an “error” or an “injustice.” See Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 812 (1979).

Miller appeared before the Board in May 1977 and January 1980 to testify in support of his application. In October 1981 the Board unanimously recommended to the Secretary of the Navy that the letter of censure be expunged from Miller’s record. This recommendation was based on the Board’s conclusion that the procedures used to issue the censure constituted an “injustice” within the meaning of section 1552(a). Specifically, the Board found that Miller improperly had been denied access to the “charge sheet” setting forth the precise crimes of which he was accused and identifying potential witnesses against him. In addition, the Board found that the report of the Naval Investigative Service on Miller’s case was wrongfully withheld from him, that he was not permitted to confront his accusers, and that Secretary Warner and the Naval Investigative Service both declined to interview him despite his requests for an opportunity to explain his conduct. In view of these findings, the Board concluded that Miller had been “deprived of the fundamental fairness traditionally accorded a member of the Naval Service.” A.R. at 6.

The Board emphasized that its recommendation did not rest on an evaluation of the merits of Miller’s censure. In its report to the Secretary, the Board stated:

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Bluebook (online)
801 F.2d 492, 255 U.S. App. D.C. 278, 1986 U.S. App. LEXIS 30682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edison-w-miller-v-john-f-lehman-jr-cadc-1986.