Krzysztof G. Sobczak v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
KRZYSZTOF G. SOBCZAK,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2010-5152
__________________________
Appeal from the United States Court of Federal
Claims in case no. 09-CV-189, Senior Judge Eric G. Brug-
gink.
__________________________
Decided: February 15, 2011
__________________________
K RZYSZTOF G. SOBCZAK , Chestnut Hill, Massachu-
setts, pro se.
PATRYK J. D RESCHER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for defendant-
appellee. With him on the brief were TONY WEST, Assis-

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SOBCZAK v. US 2
tant Attorney General, JEANNE E. D AVIDSON , Director,
and REGINALD T. BLADES , JR., Assistant Director.
__________________________
Before DYK , FRIEDMAN , and PROST, Circuit Judges.
PER CURIAM.
Appellant Krzysztof G. Sobczak appeals from the final
decision of the United States Court of Federal Claims
granting the government’s motion for judgment on the
administrative record and upholding the Marine Corps’
decision to separate Captain Sobczak from service.
Sobczak v. United States, 93 Fed. Cl. 625 (2010). We
affirm.
BACKGROUND
Mr. Sobczak enlisted in the Marine Corps in 1998 and
became an officer in 2000. As an officer, Mr. Sobczak was
eventually promoted to the rank of Captain. On June 2,
2006, Capt. Sobczak reported to the Chicago Marine
Corps Recruiting Station (“RS”) to serve as its executive
officer. Shortly after his arrival, the RS leadership
learned that Capt. Sobczak had installed unauthorized
software on his work computer. He was instructed to
remove the software. Several months later, Capt.
Sobczak was accused of improper personal use of one of
the RS’s government vehicles. Thereafter, an investiga-
tion began under the direction of Lieutenant Colonel
Marr. Lt. Col. Marr interviewed several Marines during
the course of his investigation and also learned of further
alleged improper acts by Capt. Sobczak. Specifically, Lt.
Col. Marr received statements from Staff Sergeants
(“SSgts.”) Baker and Bodin alleging that both witnessed

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SOBCZAK v. US 3
Capt. Sobczak consume alcohol at a local radio station
event and then drive away in a government vehicle.
Lt. Col. Marr met with Capt. Sobczak and informed
him of each allegation, including (1) installation of unau-
thorized software, (2) driving a government vehicle within
eight hours of consuming alcohol, (3) misusing transpor-
tation vouchers, and (4) misusing a government vehicle
for personal travel. According to Lt. Col. Marr’s summary
of the meeting, Capt. Sobczak (1) admitted that his com-
puter still had unauthorized software installed, (2) admit-
ted to consuming alcohol and driving a government
vehicle in violation of vehicle use restrictions, (3) denied
misuse of transportation vouchers, stating that he used
them to cover commuting costs for visiting superior
officers, and (4) denied that his use of a government
vehicle to commute between home and work was im-
proper. Upon informing Lt. Col. Marr that he wanted to
question SSgts. Baker and Bodin to prove they were lying,
Capt. Sobczak was ordered to abstain from contacting
them.
Lt. Col. Marr recommended to General Salinas, the
Marine Corps Recruiting Depot’s Commanding General,
that she impose Non-Judicial Punishment (“NJP”) against
Capt. Sobczak under Article 15 of the Uniform Code of
Military Justice (“UCMJ”). 10 U.S.C. § 815. Gen. Salinas
notified Capt. Sobczak of the charges against him under
UCMJ Articles 92 and 133. 10 U.S.C. §§ 892, 933. Capt.
Sobczak was informed of his rights under the Article 15
NJP process. He further elected to waive his right to a
trial by court-martial, which would have provided him
with additional procedural rights. During the NJP hear-
ing, Capt. Sobczak pled guilty to installing unauthorized
software and not guilty to the remaining charges. He also
denied operating a government vehicle after consuming

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SOBCZAK v. US 4
alcohol at a local radio station event. Capt. Sobczak
further alleged that he was given permission by a supe-
rior officer to use a government vehicle for his commute.
Capt. Sobczak declined to produce a recording of an
alleged phone conversation with that superior officer in
which he purportedly received permission to commute
with the government vehicle. At the end of the hearing,
Capt. Sobczak was given the opportunity to offer further
evidence for Gen. Salinas’s consideration and also given
the opportunity to call additional witnesses. Capt.
Sobczak declined.
Gen. Salinas found Capt. Sobczak guilty of two
charges: Dereliction of Duty and Conduct Unbecoming an
Officer and Gentleman. Capt. Sobczak was not found
guilty for the Violation of a Lawful Order charge compris-
ing the alleged misuse of the government vehicle and
alleged misuse of transportation vouchers. Gen. Salinas
informed Capt. Sobczak that she would issue a Punitive
Letter of Reprimand (“PLOR”) and impose a $4,000 fine.
Capt. Sobczak was also informed of his appeal rights.
Following an unsuccessful appeal of the NJP result
and punishment, Gen. Salinas issued the PLOR. Gen.
Salinas further recommended that General Amos insti-
tute a Board of Inquiry (“BOI”) to require Capt. Sobczak
to show cause as to why he should remain in the Marine
Corps. Gen. Amos adopted the recommendation and
informed Capt. Sobczak that a BOI would convene. The
BOI hearing occurred on December 14, 2007. Voting two
to one, the Board recommended that Capt. Sobczak be
separated from the Marine Corps with a general dis-
charge. Capt. Sobczak’s appeal of the separation recom-
mendation was denied. He received separation
counseling and was discharged on September 30, 2008.

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SOBCZAK v. US 5
Mr. Sobczak initially appealed the Marine Corps’ de-
termination to the United States District Court for the
Northern District of Illinois. The government successfully
moved to transfer the case to the Court of Federal Claims.
At the Court of Federal Claims, Mr. Sobczak sought to
show that the Marine Corps violated various procedural
requirements of the administrative process resulting in
his discharge. The parties filed cross-motions for judg-
ment on the administrative record. The court determined
that the “decision to separate [Capt.] Sobzcak was not
arbitrary, capricious, or not in accordance with law.”
Sobzcak, 93 Fed. Cl. at 637. Thus, his cross-motion for
judgment on the administrative record was denied and
the government’s cross-motion was granted. Mr. Sobczak
appealed. We have jurisdiction under 28 U.S.C. §
1295(a)(3).
D ISCUSSION
On appeal of a judgment on the administrative record
by the Court of Federal Claims, “[w]e apply the same
standard of review as the United States Court of Federal
Claims, which means ‘we will not disturb the decision of
the corrections board unless it is arbitrary, capricious,
contrary to law, or unsupported by substantial evidence.’”
Barnes v. United States, 473 F.3d 1356, 1361 (2007)
(citing Chambers v. United States, 417 F.3d 1218, 1227
(Fed. Cir. 2005)). The scope of our review of the record is
limited to the administrative record before us. Axiom
Res. Mgmt. v. United States, 564 F.3d 1374, 1379-80 (Fed.
Cir. 2009).
Mr. Sobczak argues that the separation process fol-
lowed by the Marine Corps violated procedural require-
ments and protections afforded to respondents.
Specifically, Mr. Sobczak first argues that the NJP hear-

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SOBCZAK v. US 6
ing was flawed because the Marine Corps denied him the
ability to inspect the evidence considered by Gen. Salinas
and also denied him the ability to question adverse wit-
nesses. Mr. Sobczak, however, “does not deny that he was
provided a copy of the documents that the NJP officer
would be considering during the hearing.” Sobzcak, 93
Fed. Cl. at 632. Thus, Mr. Sobczak effectively admits that
he was not denied an inspection of the evidence to be
considered by Gen. Salinas.
As to Mr. Sobczak’s ability to question adverse wit-
nesses, he alleges that he could not contact witnesses
prior to the hearing because Lt. Col. Marr ordered him to
avoid contact with SSgts. Baker and Bodin. There is no
record evidence, however, to suggest that the Court of
Federal Claims clearly erred in its determination that the
“no contact order” was no longer in effect around the time
of the hearing. Further, the record shows that Gen.
Salinas asked Capt. Sobczak if he would like to call any
additional witness at the NJP hearing and he declined.
Thus, the Marine Corps did not violate any procedural
requirements or protections related to the NJP hearing.
Mr. Sobczak’s second argument is that the Marine
Corps violated its own orders and regulations during the
BOI hearing, which followed the NJP hearing. Specifi-
cally, Mr. Sobczak argues that the BOI violated regula-
tions by denying his request for a continuance and by
preventing him from accessing relevant evidence and
witnesses. The denial of Capt. Sobczak’s continuance
request, however, did not violate any regulation. Under
Secretary of Navy Instruction (“SECNAVINST”) 1620.6C,
the grant of a continuance request is not compulsory.
Further, we note that the record shows that Capt.
Sobczak had more than the minimum thirty days re-
quired to prepare for the BOI hearing. Regarding access

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SOBCZAK v. US 7
to relevant evidence and witnesses, Mr. Sobczak argues
that he was denied his right to depose thirty individuals
prior to the BOI hearing. We note, however, that
SECNAVINST 1620.6C provides only for a right to re-
quest “the appearance before the Board of any witness
whose testimony is considered to be pertinent to the case.”
The right to depose witnesses, at most, is limited to the
circumstances where “witnesses [are] not deemed to be
reasonably available or witnesses [are] unwilling to
appear voluntarily.” SECNAVINST 1620.6C. The record
also shows that just three days before the BOI convened,
“[t]he defense ha[d] not provided a witness list or docu-
ments to be presented.” Appellant’s App. 56. Thus, any
potential delay in determining whether Capt. Sobczak’s
requested witnesses would be reasonably available or
willing to appear voluntarily appears to have been related
to Capt. Sobczak’s delay in providing a proper witness list
requesting the appearance of certain individuals.
Upon an exhaustive review of the administrative re-
cord, we have considered all of Mr. Sobczak’s remaining
arguments including those regarding: (1) the best evi-
dence rule, (2) the right to authenticate, (3) the timing of
the BOI, (4) the alleged alteration of the administrative
record by the Marine Corps, (5) the timing of his separa-
tion counseling, (6) the payment of his final travel vouch-
ers, and (7) the alleged improper transfer of the case from
the district court to the Court of Federal Claims. None of
these arguments are persuasive. Because the Court of
Federal Claims did not clearly err in determining that the
Board’s decision to separate was not arbitrary, capricious,
or not in accordance with law and because the court made
no error of law, we affirm.
COSTS

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Each party shall bear its own costs.
AFFIRMED

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