Code v. McHugh (139 F. Supp. 3d 465, 2015)

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge

Plaintiff filed suit on January 9, 2015 against Defendant John M. McHugh, Secretary of the Army (“Defendant”). Plaintiff seeks a judicial review of a final decision of the Army Board for Correction of Military Records (“ABCMR”) denying Plaintiff’s request to correct his military records and determine that he does not owe a debt of $44,200 to the Department of Defense. Presently before the Court is Defendant’s [10] Motion for a Voluntary Remand and Motion for Stay of Proceedings. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant’s Motion for a Voluntary Remand and Motion for Stay of Proceedings. For the reasons stated below, the Court remands to the ABCMR for further proceedings consistent with this Memorandum Opinion. This case will be stayed pending the ABCMR’s final decision on remand.

I. BACKGROUND

As stated in the complaint, Plaintiff was a Lieutenant in the Navy until his honorable discharge in February 2009, and currently is a member of the Navy Individual Ready Reserves. Compl. ¶ 3. On or shortly after September 30, 2010, Plaintiff received a letter from the Defense Finance and Accounting Service, stating that he owed a debt to the Department of Defense (“DoD”) in the amount of $44,200.00. Id. ¶43. The letter indicated that the debt was due to a larceny charge repohtéd in a Report of Investigation prepared by the Army Criminal Investigation Command. Id. This letter was Plaintiff’s first notice of the alleged debt and the larceny charge. Id.

The investigation performed by the Army Criminal Investigation Command concerned events surrounding Plaintiffs enrollment of his children in a DoD sCfefol located at Ft. Buchanan, San Juan, Riier*. to Rico (“the Ft. Buchanan school”)'’between 2007 and 2008. Id. ¶¶ 29-40. It was alleged that Plaintiff had fraudulently enrolled his children in the school by providing false information on the official application. Id. The Report of Investigatiori concluded that there was probable' cause to believe that Plaintiff had committed the alleged crimes, resulting in a loss to the government in the amount of $44,200.00, Id. ¶ 31. On December 4, 2008, the U.S. Attorney’s Office, San Juan, Puerto Rico, declined prosecution of Plaintiff, referring any further action to DoD or Plaintiffs chain of command. Id. ¶39. No disciplinary or adverse administrative action was taken by Plaintiffs chain of command against him as a result of the investigation. Id. ¶40.

On or about September 28, 2010, the Army Criminal Investigation Command “presented documentation and a structured time line of events” to the Defense Finance and Accounting Service with the intent that it pursue collection of the $44,200.00. Id. ¶42. The Defense Finance and Accounting Service “accepted financial responsibility for the $44,200.00 loss” and agreed to collect the debt from Plaintiff. Id. After Plaintiff protested the debt, the Defense Finance and Accounting Service informed Plaintiff that the debt would remain valid until the. Army Criminal Investigation Command overturned its prior determination. Id. ¶ 52.

In January 2013, pursuant to the Privacy Act, Plaintiff formally requested that the Army Criminal Investigation Command