For lawyers assisting U.S. service members and veterans, some of the most challenging cases involve efforts to correct errors by military law enforcement agencies. These agencies have broad powers to list a person as a suspect (titling) and entered into law enforcement databases (indexing). These decisions can be fraught with error, yet difficult to undo, and can bring a host of lifelong consequences to the wrongfully titled.
The law enforcement agencies have their own procedures for expungement and correction of records based on service regulations. However, these reviews are done in-house and the agencies enjoy relative independence from oversight bodies of the services they support such as Inspectors General. As a result, and not surprisingly, such law enforcement reviews rarely grant relief.
U.S. service members and veterans who believe they have been wrongfully titled can also petition the service boards for correction of military records (so composed, a “Board” or “Boards”). These Boards are comprised of civilians vested with authority to correct errors or injustices—a broad mandate that includes review of law enforcement titling errors. Critics contend that these Boards are too overworked to give proper consideration to individual applications, make it too hard to conduct in-person hearings, and enjoy too-cozy relationships with the services from which they are ostensibly independent.
Those denied relief from a Board can sue in federal district court, and decisions there can be reviewed by the United States Courts of Appeals. Recently, the Court of Appeals for the D.C. Circuit decided such a case, Code v. McCarthy, No. 18-5122 (D.C. Cir. 2020).
When Navy Lieutenant Christopher Code enrolled his children in a Department of Defense subsidized school in Puerto Rico, he certified on the school enrollment form that his military orders for Puerto Rico were through 2008. Military law enforcement erroneously thought that his orders were only through 2007. They titled and investigated Code for making a false official statement and obtaining services under false pretenses. Nothing came of the charges but the titling determination remained on his record and in law enforcement databases.
Despite a clear factual record that the titling was erroneous, the Board declined to expunge Code’s record.
Upon review, the D.C. Circuit concluded that the Board’s decision was arbitrary and capricious and violated the Administrative Procedure Act’s requirement that rulings be based on “reasoned decisionmaking.”
The decision is a reminder that federal courts expect administrative regularity from military adjudicative bodies whose decisions affect procedural and substantive due process rights.
Two topics that were not in the opinion:
First, there was no mention of judicial deference to military decision-making. Here, the D.C. Circuit reviewed an administrative process in the Pentagon, not an action in a combat zone. This case also involved due process rights outside the well-established scheme of judicial review of criminal trials brought under the Uniform Code of Military Justice. Boards should be on notice: Article III courts may have the final say in their cases.
Second, the D.C. Circuit did not even need to unsheathe its powerful line of authorities recognizing expungement as an equitable remedy for government error. See Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 537 (D.C. Cir. 2015) (“expungement of government records is an equitable remedy that may be available under certain circumstances to vindicate constitutional and statutory rights.”). Instead the Court reviewed the issues as the Board saw them using the Board’s own standards.
The case was decided by Judges David Tatel, Cornelia Pillard, and Robert Wilkins. Opinion by Judge Pillard.