Douglas A. Alarid v. Department of the Army

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DOUGLAS A. ALARID,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2023-1886
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-14-0256-B-2.
______________________
Decided: December 4, 2024
______________________
DOUGLAS ALARID, Union City, CA, pro se.
JANA MOSES, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.
MCCARTHY.
______________________
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ALARID v. ARMY 2
Before MOORE, Chief Judge, TARANTO, Circuit Judge, and
SCHROEDER, District Judge.1
PER CURIAM.
In 2013, the Army removed Douglas A. Alarid from his
position as a police officer after finding that he had engaged
in misconduct involving a conspiracy to purchase and
distribute an unauthorized federal police badge and
involving the manufacture and distribution of an
unauthorized federal police identification (ID) card. The
Merit Systems Protection Board (Board) sustained the
removal. Alarid v. Department of the Army, No. SF-0752-
14-0256-B-2, 2023 WL 2482656, at *1 (¶ 1) (M.S.P.B. Mar.
13, 2023) (2023 Board Order), adopting, as Board decision,
Alarid v. Department of the Army, No. SF-0752-14-0256-B-
2, 2016 WL 6837435 (M.S.P.B. Nov. 14, 2016) (Board
Decision). Mr. Alarid timely petitioned for review by this
court. We affirm.
I
Mr. Alarid was working for the Army as a Police Officer
at the Camp Parks police department when the events
underlying the present appeal occurred. In 2011 and 2012,
the Camp Parks police department received “several
threatening letters and packages” and anonymous letters
containing emails about Mr. Alarid’s involvement in
unlawful police-badge purchases and ID-card
manufacturing. SAppx198.2 Richard DeOcampo, who had
been an Army police officer until he agreed to resign in
1 Honorable Robert W. Schroeder III, District Judge,
United States District Court for the Eastern District of
Texas, sitting by designation.
2 “SAppx” refers to the Supplemental Appendix
submitted by the Respondent.
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2011, was arrested in mid-2012 in connection with those
mailings.
When arrested, Mr. DeOcampo had with him an
unauthorized Camp Parks police ID card and a police flat
badge. Earlier, in the 2011 settlement agreement for Mr.
DeOcampo to resign, the Army had agreed to provide Mr.
DeOcampo with a police ID card that would state the
period during which he had worked as a Camp Parks police
officer on the back. The ID card that was recovered from
Mr. DeOcampo in mid-2012, however, contained
unauthorized language on the back stating that he was
allowed to carry firearms, make arrests, and serve
warrants.
The 2011–12 mailings also led to an internal
investigation of Mr. Alarid by then-Chief of Police
Morningstar, then-Deputy Chief Chappell, and then-
Detective Hunt. Chief Morningstar was replaced by Chief
Lovett, and in October 2013, Chief Lovett issued a Notice
of Proposed Removal of Mr. Alarid based on two charges:
(1) that Mr. Alarid had conspired with Mr. DeOcampo to
purchase unauthorized federal police badges and to
distribute the badges among themselves, in violation of 18
U.S.C. § 371, and (2) that Mr. Alarid had manufactured an
unauthorized federal police ID card for Mr. DeOcampo, in
violation of 18 U.S.C. § 701. SAppx197–202. Mr. Alarid
responded by denying both charges and asserting that the
removal proposal was rooted in reprisal for several
grievances that he, as vice president of the police union,
had brought against then-Chief Morningstar on behalf of
other employees. SAppx190–95. In December 2013, the
deciding official, Director of Emergency Services Walker,
found that both charges were supported by a
preponderance of evidence and warranted Mr. Alarid’s
removal from his position. SAppx177–88.
Mr. Alarid appealed to the Board. In March 2015, the
assigned Board administrative judge (AJ) issued an initial
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decision, Alarid v. Department of the Army, No. SF-0752-
14-0256-I-1, 2015 WL 1539301 (M.S.P.B. Mar. 30, 2015)
(2015 Initial Decision); SAppx24–39, affirming the
removal. The AJ determined that the Army had proven
both charges by a preponderance of the evidence and that
Mr. Alarid failed to carry his burden of proving the
affirmative defense of retaliation for protected equal
employment opportunity activity. 2015 Initial Decision, at
2–14.3 The AJ also found that the Army had shown that a
nexus existed between Mr. Alarid’s actions and his removal
to promote the efficiency of the service and that removal
was the maximum reasonable penalty. Id. at 15–16.
Mr. Alarid petitioned the full Board for review. In
August 2015, the Board determined that the AJ had
misconstrued Mr. Alarid’s affirmative defenses—which
were accurately understood as reprisal against union-
related activities in violation of 5 U.S.C. § 2302(b)(9)(B)
and reprisal against whistleblowing in violation of 5 U.S.C.
§ 2302(b)(8)—and failed to inform Mr. Alarid of the
burdens of proof on those defenses. Alarid v. Department
of Army, 122 M.S.P.R. 600, 605–09 (¶¶ 7–15), 610–11 (¶ 18)
(2015) (2015 Board Decision); SAppx50–57. The Board also
ruled that the AJ had failed to consider Mr. Alarid’s
allegation of a due process violation. 2015 Board Decision,
at 609–10 (¶¶ 16–17). Accordingly, the Board remanded
the matter to the AJ. Id. at 610–11 (¶ 18).
On remand, the AJ held a supplementary hearing on
March 3, 2016, and issued a new initial decision in
3 For the 2015 Initial Decision and the Board
Decision, we cite the page numbers on the AJ opinions in
the Board file. See Alarid v. Department of the Army,
No. SF-0752-14-0256-I-1, Initial Appeal File, Tab 41
(M.S.P.B.) (2015 Initial Decision); Alarid v. Department of
the Army, No. SF-0752-14-0256-B-2, id., Refiled Remand
File, Tab 5 (Board Decision).
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ALARID v. ARMY 5
November 2016—which we will call the Board Decision
because the full Board, in 2023, adopted it as such. Board
Decision; SAppx69–101. The AJ again found that the Army
had proven the two charges, that a nexus to the efficiency
of the service existed, and that the penalty of removal was
reasonable. Board Decision, at 2–12, 25–26. The AJ then
determined that Mr. Alarid had neither established a
violation of due process rights nor proven his affirmative
defenses of reprisal for union activity or whistleblowing.
Id. at 13–25.
Regarding reprisal for participation in union activity,
the AJ first noted that the Army (agency) had conceded
that Mr. Alarid had engaged in protected activity under 5
U.S.C. § 2302(b)(9)(B). Id. at 18 n.12. Applying the
burden-shifting standard set forth in 5 U.S.C. § 1221(e),
the AJ then determined that Mr. Alarid had not shown that
the proposing official, Chief Lovett, was aware of the
protected activity (personally or by imputation) when
proposing to remove Mr. Alarid but had shown that the
deciding official, Director Walker, had such awareness
when deciding to remove him (because Mr. Alarid disclosed
the activity in responding to the removal proposal). Id. at
20. The AJ then concluded that the agency nonetheless
prevailed because it had shown by clear and convincing
evidence that it would have taken the removal action in the
absence of the protected union activity. Id. at 21.
Regarding reprisal for whistleblowing, the AJ
determined that Mr. Alarid had been involved in filing
three complaints that constituted protected disclosures
under 5 U.S.C. § 2302(b)(8). Id. at 24. The AJ noted,
however, that “Chief Lovett and [Director] Walker testified
that they were unaware of the appellant having filed the
[three complaints], and there is no evidence to the
contrary.” Id. The AJ also noted that Mr. Alarid had not
mentioned those complaints in responding to the removal
proposal, even though he had discussed his union activity
in that response. Id. Accordingly, the AJ concluded that
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ALARID v. ARMY 6
Mr. Alarid had not shown that the proposing or deciding
official had knowledge of his protected disclosures or
(therefore) that they contributed to his removal. Id.
Mr. Alarid petitioned for review. On March 13, 2023,
the full Board issued a final order, with an accompanying
opinion reviewing the AJ decision point by point. 2023
Board Order; SAppx1–18. The Board denied the petition
for review and affirmed the AJ’s 2016 decision, which, the
Board declared, “is now the Board’s final decision.” 2023
Board Order, at *1 (¶ 1). Mr. Alarid timely petitioned for
review by this court. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
II
We may set aside the Board’s decision only if it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). The petitioner bears the burden of
establishing reversible error in the Board’s final decision.
Sistek v. Department of Veterans Affairs, 955 F.3d 948, 953
(Fed. Cir. 2020). We review the Board’s legal decisions
without deference and its findings of fact for substantial
evidence. McIntosh v. Department of Defense, 53 F.4th 630,
638 (Fed. Cir. 2022). “Substantial evidence consists of ‘such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Frederick v.
Department of Justice, 73 F.3d 349, 352 (Fed. Cir. 1996)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). We conclude that Mr. Alarid has not presented
any argument that warrants setting aside the Board
decision.
A
To remove an employee, the government must prove,
by a preponderance of the evidence, that “(1) the charged
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ALARID v. ARMY 7
misconduct occurred, (2) there is a nexus between what the
employee did and disciplining the employee to promote the
efficiency of the service, and (3) the particular penalty is
reasonable.” Hansen v. Department of Homeland Security,
911 F.3d 1362, 1366 (Fed. Cir. 2018) (first citing Pope v.
U.S. Postal Service, 114 F.3d 1144, 1147 (Fed. Cir. 1997);
and then citing Hale v. Department of Transportation,
Federal Aviation Administration, 772 F.2d 882, 885 (Fed.
Cir. 1985)). Mr. Alarid challenges the Board’s ruling on
those elements.
1
Mr. Alarid challenges numerous factual findings made
by the Board in finding that the Army proved its charges.
See 2023 Board Order, at *1–3 (¶¶ 1–8); Board Decision, at
2–12. He argues that the Board should have found that he
had not admitted to wrongdoing, that he had not created
the ID card he was accused of creating, that he did not
know that the ID card he did prepare for Mr. DeOcampo
was unauthorized, and that he did not know that the
purchase of a police badge for Mr. DeOcampo was
unauthorized, among other things. He also contends that
the Board should not have relied on the testimony of the
deciding official, Director Walker, or the testimony of
former Chief Morningstar and former Deputy Chief
Chappell. We reject these challenges.
Mr. Alarid’s arguments rest on disagreement with the
Board’s decision to credit the testimony of the agency
witnesses over the conflicting testimony of Mr. Alarid and
his witnesses in making its factual findings. But the
crediting of the agency witnesses in this case reflected the
AJ’s demeanor assessment, and we have held that “[t]he
determination of the credibility of the witnesses is within
the discretion of the presiding official who heard their
testimony and saw their demeanor.” Griessenauer v.
Department of Energy, 754 F.2d 361, 364 (Fed. Cir. 1985);
see also Kahn v. Department of Justice, 618 F.3d 1306, 1313
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(Fed. Cir. 2010) (stating that “an evaluation of witness
credibility is within the discretion of the Board and that, in
general, such evaluations are ‘virtually unreviewable’ on
appeal” (quoting King v. Department of Health & Human
Services, 133 F.3d 1450, 1453 (Fed. Cir. 1998))). In the
present case, the AJ considered the relevant evidence,
including the evidence in Mr. Alarid’s favor, and explained
the resulting credibility determinations. Mr. Alarid has
not met the high standard for disturbing the credibility
determinations.
The evidence besides demeanor provides no basis for
disturbing the Board’s factual findings, which are
supported by substantial evidence. Regarding the charge
of conspiracy to purchase and distribute an unauthorized
federal police badge, the Board had before it Mr. Alarid’s
testimony (admitting that he ordered the badge for Mr.
DeOcampo but arguing that he thought it was permissible
to order the badge because it was commemorative), the
testimony of several police officers (stating that the “flat”
badges at issue were carried by officers for off-duty
identification and that they needed a letter of
authorization from the Chief to order a flat badge), the
testimony of a sales representative for the badge vendor
(stating that the badge Mr. Alarid ordered for Mr.
DeOcampo was not marked as commemorative, nor was it
marked as being for a retired officer), and records of emails
between Mr. Alarid, Mr. DeOcampo, and that sales
representative. See Board Decision, at 10–12; SAppx233–
57, 1293–1304, 1330–39, 1349–50, 1416–29. This was
substantial evidence.
Regarding the charge of making an unauthorized
federal police ID card, the Board had before it, among other
things, Mr. Alarid’s testimony identifying the unauthorized
ID card recovered from Mr. DeOcampo as the ID card he
made. See Board Decision, at 4; SAppx272 (ID-card
images), 1417–18 (Mr. Alarid’s testimony). The Board
noted Mr. Alarid’s testimony that he had been directed to
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ALARID v. ARMY 9
make a card by Chief Morningstar pursuant to Mr.
DeOcampo’s 2011 settlement agreement and had never
been shown the settlement agreement, and the Board
observed that it was unclear what instruction had been
given to Mr. Alarid regarding the card. Board Decision, at
4–7. The Board found, however, that Mr. Alarid should
have known what language was—and was not—allowed on
the backs of the cards, and that finding was sufficiently
supported by the testimony of other officers (stating that
Mr. Alarid was responsible for making most of the ID cards
for Camp Parks police), the lack of evidence that Chief
Morningstar had personally reviewed or approved the card,
and the lack of evidence that Chief Morningstar had ever
approved the use of the expansive language on the back of
Mr. DeOcampo’s card. Id. at 8–10; SAppx1297, 1330–31.
We are not persuaded that the Board lacked
substantial-evidence support, considering the record as a
whole, for its finding that the Army had proven both
charges against Mr. Alarid.
2
Mr. Alarid argues that the Board erred in concluding
that the Army had shown that there was a nexus between
what he did and removing him to promote the efficiency of
the service. He contends that his alleged misconduct
occurred off-duty; that his actions were unknown to the
press, public, or other government agencies; and that
Director Walker presented no evidence to support his
assertion that Mr. Alarid’s actions affected the efficiency of
the service. We reject this challenge.
An agency can prove the required nexus by showing
that an employee’s conduct led to a “reasonable loss of trust
and confidence” in the employee. Brook v. Corrado, 999
F.2d 523, 527 (Fed. Cir. 1993); Kruger v. Department of
Justice, 32 M.S.P.R. 71, 74 (1987). The Board so found in
the present case. Board Decision, at 25. Neither logic nor
cited authority requires that the agency’s loss of trust and
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ALARID v. ARMY 10
confidence in the employee occur due to on-duty or public
misconduct.
The Board’s finding that Mr. Alarid’s conduct led to the
Army’s loss of trust and confidence in him—because Mr.
Alarid’s actions were “directly antithetical to his duties and
the agency’s mission,” as Mr. Alarid was a Police Officer
who “was charged with enforcement of Federal criminal
laws such as the ones he violated here,” Board Decision, at
25—is supported by substantial evidence. Director Walker
stated, in the removal decision letter, that Mr. Alarid’s
“unlawful” conduct was “contradictory to expectations of a
Federal Police Officer” who is “held to a higher standard,”
as an officer’s “duties include the enforcement of Federal
criminal laws involving persons and property, and the
protection of government property and facilities.”
SAppx185–86. Director Walker added that Mr. Alarid did
not acknowledge his actions or Mr. DeOcampo’s
harassment of him until Mr. DeOcampo revealed them to
the agency. SAppx186. And Director Walker stated that
he had lost trust and confidence in Mr. Alarid even while
recognizing Mr. Alarid’s good record in his eight years of
service. Id. We see no reversible error in the Board’s
finding on this issue.
3
We similarly see no error in the Board’s determination
that removal was a reasonable penalty, after the Board
properly sustained the Army’s charges. Board Decision,
at 26. Director Walker determined, in light of the conduct
at issue, that “alternative measures” such as “suspension
or demotion” would be “detrimental to this organization,”
as alternative measures could create a “hostile
environment for others” and “[o]fficers must be able to
trust each other in the office and out on the field.”
SAppx187. That was a reasonable determination. See
Watson v. Department of Justice, 64 F.3d 1524, 1530 (Fed.
Cir. 1995) (“Law enforcement officers are held to a higher
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ALARID v. ARMY 11
standard of conduct than are other federal
employees. . . .”); Lawton v. Department of Veterans
Affairs, 53 M.S.P.R. 153, 158 (1992) (similar); Dikiy v.
Department of Treasury, 23 M.S.P.R. 454, 457 (1984)
(similar). We have no basis to overturn the penalty
determination. See Mings v. Department of Justice, 813
F.2d 384, 390 (Fed. Cir. 1987) (“This court . . . will not
disturb a choice of penalty within the agency’s discretion
unless the severity of the agency’s action appears totally
unwarranted in light of all the factors.”); see also Lachance
v. Devall, 178 F.3d 1246, 1251 (Fed. Cir. 1999) (collecting
cases).
B
Mr. Alarid argues the Board’s decision regarding
reprisal for whistleblowing and union-related activities
should be set aside. We disagree.
The framework for addressing assertions of reprisal
under 5 U.S.C. § 2302(b)(8) or § 2302(b)(9), whether as an
affirmative defense to a removal action or in an individual-
right-of-action appeal to the Board, is well established.
First, an employee must show via a preponderance of the
evidence that a protected disclosure was a “contributing
factor” to an adverse employment decision. See Kewley v.
Department of Health & Human Services, 153 F.3d 1357,
1361 (Fed. Cir. 1998). One way that an employee may
make this showing is by meeting the “knowledge/timing
test”: an employee may show that “(A) the official taking
the personnel action knew of the disclosure or protected
activity; and (B) the personnel action occurred within a
period of time such that a reasonable person could conclude
that the disclosure or protected activity was a contributing
factor in the personnel action.” 5 U.S.C. § 1221(e)(1);
Kewley, 153 F.3d at 1361–62. If the knowledge/timing test
is satisfied, the burden then shifts to the agency to
“demonstrate[] by clear and convincing evidence that it
would have taken the same personnel action in the absence
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ALARID v. ARMY 12
of such disclosure.” 5 U.S.C. § 1221(e)(2); Kewley, 153 F.3d
at 1361–63. To determine whether the agency has carried
its burden, the Board considers “the strength of the
agency’s evidence in support of its personnel action; the
existence and strength of any motive to retaliate on the
part of the agency officials who were involved in the
decision; and any evidence that the agency takes similar
actions against employees who are not whistleblowers but
who are otherwise similarly situated.” Carr v. Social
Security Administration, 185 F.3d 1318, 1323 (Fed. Cir.
1999).
Here, the AJ applied the established framework. The
AJ first found that Mr. Alarid had in fact met the
knowledge/timing test because the deciding official,
Director Walker, knew of the protected activity when
making the removal decision, as Mr. Alarid had told him
about it in responding to the removal proposal. See Board
Decision, at 20; SAppx193. The AJ then turned to the Carr
factors and found, in relevant part, that the strength of any
motive to retaliate on the part of Chief Lovett or of Director
Walker was at best weak, because the evidence in the
record showed only that former Chief Morningstar and
former Deputy Chief Chappell may have had animosity
towards Mr. Alarid. Board Decision, at 21. The AJ also
found that there is “no evidence” that Mr. Alarid’s protected
activities were “personally directed at either of [Chief
Lovett or Director Walker].” Id.
On appeal, Mr. Alarid first argues that Director Walker
constructively knew of the protective activity, Petitioner’s
Informal Br. 13, but this argument addresses a piece of the
reprisal-analysis framework already decided in Mr.
Alarid’s favor. The AJ found that Director Walker knew of
Mr. Alarid’s protected union activity when deciding on the
proposed removal and, under the knowledge/timing test,
that the protected activity was a contributing factor in his
removal. Board Decision, at 20. To the extent, then, that
Mr. Alarid argues about imputing a mental state of former
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ALARID v. ARMY 13
Chief Morningstar or former Deputy Chief Chappell to
Director Walker, the argument can only be about a
retaliatory motive relevant under the second Carr factor:
“the existence and strength of any motive to retaliate on
the part of the agency officials who were involved in the
decision.” Carr, 185 F.3d at 1323. But Mr. Alarid has not
shown reversible error by the Board on this step of the
reprisal analysis.
The Board’s finding that Director Walker lacked
retaliatory motive was supported by substantial evidence,
especially given the wide discretion the Board has
regarding credibility determinations (as already noted).
The Board reasonably credited Director Walker’s
testimony that he had never spoken to the former Chief;
that the former Deputy Chief had never shared with him
any opinion about Mr. Alarid; and that, while he knew Mr.
Alarid was a union representative at Camp Parks there,
the grievances that reached his level (as Director at Fort
Hunter Liggett, which oversees Camp Parks) were filed by
the union at that facility, not by Mr. Alarid’s union at Camp
Parks. Board Decision, at 19–20; SAppx1304. There was
evidence, moreover, that the former Chief had been on
administrative leave starting before Director Walker’s
arrival at Camp Parks and was decertified as a police
officer, pending removal, for a year before issuance of the
proposal to remove Mr. Alarid. Board Decision, at 21;
SAppx179, 197, 1304. And there was no evidence that any
of Mr. Alarid’s protected activities had been personally
directed at Director Walker. Board Decision, at 21;
SAppx193 (alleging reprisal for grievances filed by Mr.
Alarid under former Chief Morningstar).
For those reasons, we see no merit in Mr. Alarid’s
attack on the Board’s implementation of the established
reprisal-analysis framework. Nor do we see any merit in
his suggestion that the Board should have provided him an
individual-right-of-action appeal and corrective action
under 5 U.S.C. § 1221. Petitioner’s Informal Br. 14–15. He
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ALARID v. ARMY 14
points to no material difference in the evaluation of the
reprisal contentions whether analyzed in an individual-
right-of-action appeal or as an affirmative defense to the
removal appeal under 5 U.S.C. § 7701. And he is not
entitled to corrective action under § 1221(g)(1) if, as here,
the Board has properly rejected the reprisal assertion on
its merits.
C
Mr. Alarid suggests that the Army should have carried
out its investigation of him under Army Regulation (AR)
15-6—which, among other things, requires investigators to
be at level GS-13 or above and senior to the person being
investigated—rather than relying on two Military Police
Investigation (MPI) investigators, one at level GS-7 and
one at GS-8, to conduct the investigation. Petitioner
Informal Br. 7. But he has not shown error in the AJ’s
conclusion that “AR 15-6 does not govern” investigations
into law-enforcement personnel. Board Decision, at 15.
The Army regulation that covers the use of MPI
investigators and Department of the Army Civilian (DAC)
detectives/investigators states that, “[e]xcept as otherwise
provided, MPI and DAC detectives/investigators will
normally be employed in the following investigations: . . .
Allegations against law enforcement personnel, when not
within the investigative responsibilities of [U.S. Army
Criminal Investigation Command].” AR 190-30, paragraph
4-2 (2005). That regulation permits use of MPI
investigators for an investigation, like this one, of a law-
enforcement employee. Moreover, AR 15-6 states that its
requirements “may be made applicable to investigations or
boards that are authorized by another regulation or
directive, but only by specific incorporation by that
regulation or directive, or in the memorandum of
appointment,” AR 15-6, paragraph 1-5 (2016) (emphasis
added), and Mr. Alarid has not pointed to any portion of AR
190-30 or a directive, or the memorandum of appointment,
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ALARID v. ARMY 15
that would require the use of AR 15-6 procedures in his
investigation.
D
Finally, Mr. Alarid argues that the AJ fell “asleep
during much of the Supplemental Hearing” and thereby
“violated federal law” and “sections of the MSPB Judges
Handbook, and deprived [him] of [his] due process right to
a full and fair hearing.” Petitioner’s Informal Br. 7; see also
id. at 6, 8–10; Appendix to Petitioner’s Informal Br. at
7–15. Mr. Alarid identifies only one specific instance of the
AJ allegedly falling asleep: during the testimony of Chief
Lovett, when Chief Lovett stated that he believed that
Chief Morningstar had briefed Director Walker about the
investigation. Petitioner’s Informal Br. 8; see
SAppx1214–15. We see no reversible error in the Board’s
rejection of this challenge to the AJ’s ruling. 2023 Board
Order, at *3 (¶¶ 9–10).
The Board determined, first, that Mr. Alarid “did not
raise the [AJ’s] alleged inattentiveness at any point during
the proceedings [before the AJ] or in his written closing
argument” and that “failure to object below precludes him
from pursuing this argument on review.” Id. Mr. Alarid
has not shown error in the finding that he did not raise the
matter to the AJ. See Alarid v. Department of the Army,
No. SF-0752-14-0256-B-2, Refiled Remand File, Tab 4
(M.S.P.B.) (appellant written closing argument); id.,
Petition for Review File, Tab 3 at 17–20 (raising the issue
for the first time in the Petition for Review). Nor has he
shown error in the Board’s insistence that this is the kind
of issue that needs to be raised when the alleged problem
arises and when contemporaneous remediation is possible.
The Board also found that “the record does not support
[Mr. Alarid’s] claim that the [AJ] was asleep during
testimony,” specifically focusing on the allegation that the
AJ was sleeping during a portion of Chief Lovett’s
testimony. 2023 Board Order, at *3 (¶¶ 9–10). We see no
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ALARID v. ARMY 16
reversible error in that finding, which the record supports.
The AJ asked the question that elicited Chief Lovett’s
statement as an answer, and the AJ asked a relevant
follow-up question immediately following that answer.
SAppx1214. Mr. Alarid provides no other citations to the
record for his generalized allegation that the AJ was asleep
during “much” of the hearing, Petitioner’s Informal Br. 7,
and we see no such indication in the transcript of the
March 3, 2016 hearing. See Transcript of Hearing, Alarid
v. Department of the Army, No. SF-0752-14-0256-B-1
(M.S.P.B. Mar. 3, 2016).
Mr. Alarid has therefore not shown error—much less
prejudicial error—on this ground.
III
We have considered Mr. Alarid’s remaining arguments
and find them unpersuasive. We affirm the Board’s
decision.
The parties shall bear their own costs.
AFFIRMED
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