Owen M. Cunningham v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
OWEN M. CUNNINGHAM,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1392
______________________
Appeal from the United States Court of Federal Claims
in No. 1:22-cv-01826-PSH, Judge Philip S. Hadji.
______________________
Decided: January 6, 2025
______________________
O WEN M. CUNNINGHAM , Lemon Grove, CA, pro se.
SONIA W. MURPHY , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
BRIAN M. BOYNTON, P ATRICIA M. MCCARTHY , D OUGLAS K.
MICKLE.
______________________
Before L OURIE, STOLL , and CUNNINGHAM , Circuit Judges.
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CUNNINGHAM v. US 2
P ER CURIAM .
Owen M. Cunningham filed a complaint before the
Court of Federal Claims seeking relief for his involuntary
discharge from the United States Army. The Court of Fed-
eral Claims granted the government’s motion for judgment
on the administrative record, denied Mr. Cunningham’s
cross-motion for judgment on the administrative record,
and denied the government’s motion to dismiss as moot.
Cunningham v. United States, No. 22-1826, 2023 WL
8852607, at *1 (Fed. Cl. Dec. 21, 2023) (“Decision”). For the
reasons discussed below, we affirm.
I. BACKGROUND
Mr. Cunningham first enlisted in the Army in 2005 as
a helicopter mechanic. Decision at *1; App’x 2.1 By June
2017, he served as a reserve warrant officer, but received a
new active-duty appointment as a chief warrant officer two
in June 2019. Decision at *1. In September 2020, Mr. Cun-
ningham took a urinalysis test that detected cocaine at a
value of 675 nanograms per milliliter, which exceeded the
100 nanograms per milliliter cutoff to pass a test for co-
caine metabolites. Decision at *1; App’x 3. After Mr. Cun-
ningham’s failed test, the Army flagged Mr. Cunningham
and suspended him from flying duties. Decision at *1;
App’x 3–4, 115; see Department of the Army, Army Regu-
lation (“AR”) 600-8-2, Suspension of Favorable Personnel
Actions (Flag) (2016); App’x 43–44.
Mr. Cunningham’s case was subsequently referred to
the Flying Evaluation Board. Decision at *1; App’x 4. On
March 23, 2021, the Flying Evaluation Board found by a
preponderance of the evidence that Mr. Cunningham “dis-
played undesirable habits in that he tested positive
1 We refer to the supplemental appendix filed with
the government’s informal response brief, ECF No. 8, as
“App’x” throughout this opinion.
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CUNNINGHAM v. US 3
for . . . cocaine” and recommended terminating his aviation
service. App’x 109; Decision at *1. Mr. Cunningham sub-
sequently asked the Appointing Authority to set aside the
Flying Evaluation Board’s findings and recommendations.
Decision at *1; App’x 287–89. To support this request,
Mr. Cunningham submitted an opinion from Dr. Jeff Wal-
terscheid, chief toxicologist for the Armed Forces Medical
Examiner System, providing new evidence. Decision at *1;
App’x 290–91. On September 7, 2021, the Appointing Au-
thority denied Mr. Cunningham’s request to set aside the
Flying Evaluation Board’s findings and recommendations.
Decision at *1; App’x 108, 326.
In parallel to Mr. Cunningham’s Flying Evaluation
Board referral, in February 2021, the Army initiated disci-
plinary proceedings against Mr. Cunningham under Arti-
cle 15 of the Uniform Code of Military Justice (“UCMJ”)
after Mr. Cunningham waived his right to challenge the
drug allegations at a court martial. Decision at *1; App’x
106; see 10 U.S.C. § 815. After a hearing, the Army found
Mr. Cunningham guilty of using cocaine in violation of
UCMJ Article 112a and issued him a written reprimand as
punishment. Decision at *1; App’x 142, 144. Mr. Cunning-
ham did not appeal this decision, but his counsel submitted
a request to set aside the Article 15 findings because of the
new evidence from Dr. Walterscheid. Decision at *1; App’x
146–48. On September 7, 2021, Mr. Cunningham’s request
to set aside the Article 15 findings was also denied. Deci-
sion at *1; App’x 6, 326.
In April 2021, the General Officer Show Cause Author-
ity began elimination proceedings against Mr. Cunning-
ham for use of cocaine pursuant to AR 600-8-24. Decision
at *2; App’x 6; see Department of the Army, AR 600-8-24,
Officer Transfers and Discharges (2020); App’x 45–83. The
General Officer Show Cause Authority recommended that
Mr. Cunningham receive a general discharge from the
Army with an honorable characterization of his service.
Decision at *2; App’x 10. Consistent with this
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CUNNINGHAM v. US 4
recommendation, Mr. Cunningham’s separation from the
Army was approved on June 6, 2022. Decision at *2; App’x
100. On June 30, 2022, the Army issued Mr. Cunning-
ham’s certificate of discharge from active duty. Decision at
*2; App’x 324.
On December 15, 2022, Mr. Cunningham filed a com-
plaint in the Court of Federal Claims, alleging procedural
violations occurred during his elimination proceedings.
Decision at *2; App’x 1–15. The Court of Federal Claims
concluded that the Army acted in compliance with AR 600-
8-24 by denying Mr. Cunningham a board of inquiry be-
cause he had not served for three years as a probationary
officer. Decision at *3. Next, the Court of Federal Claims
found that any alleged procedural errors in the processing
of Mr. Cunningham’s case were rendered harmless by the
Army’s reevaluation of Mr. Cunningham’s case and the un-
changed recommendation to still discharge him. Id. at *4.
Lastly, the Court of Federal Claims concluded that there
was substantial evidence to support the Army’s determina-
tion that Mr. Cunningham knowingly used cocaine in vio-
lation of UCMJ Article 112a. Id. The Court of Federal
Claims further concluded that the Army’s determination of
Mr. Cunningham’s guilt complied with AR 27-10. Id.; see
Department of the Army, AR 27-10, Military Justice (2020);
App’x 20–42. Accordingly, the Court of Federal Claims
granted the government’s motion for judgment on the ad-
ministrative record, denied Mr. Cunningham’s cross-mo-
tion for judgment on the administrative record, and denied
the government’s motion to dismiss as moot. Decision at
*5.
Mr. Cunningham appealed. We have jurisdiction un-
der 28 U.S.C.§ 1295(a)(3).
II. D ISCUSSION
“We review a decision of the [Court of Federal Claims]
‘granting or denying a motion for judgment on the admin-
istrative record without deference.’” Bader v. United
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CUNNINGHAM v. US 5
States, 97 F.4th 904, 909 (Fed. Cir. 2024) (quoting Barnick
v. United States, 591 F.3d 1372, 1377 (Fed. Cir. 2010)). We
will not disturb the Army’s decision unless “it is arbitrary,
capricious, contrary to law, or unsupported by substantial
evidence.” Barnick, 591 F.3d at 1377.
This appeal presents the following issues regarding
whether the Court of Federal Claims correctly concluded
that: (1) Mr. Cunningham was a probationary employee
under AR 600-8-24; (2) any procedural errors that occurred
in Mr. Cunningham’s elimination proceedings from the
Army were rendered harmless when Mr. Cunningham’s
case was reevaluated; and (3) the Army complied with
AR 27-10 and UCMJ Article 112a. We will address each
issue in turn.
A.
Mr. Cunningham argues that the Court of Federal
Claims did not adequately review the documentation re-
lated to his appointment date and incorrectly interpreted
and applied AR 600-8-24 in concluding that he was a pro-
bationary officer. Appellant’s Br. 1–2. Specifically,
Mr. Cunningham alleges that the operative date for deter-
mining probationary status was when he was appointed as
a reserve warrant officer on June 21, 2017, rather than
when he was appointed to the Regular Army on June 21,
2019. Id.; see App’x 322–23 (identifying Reserve and Reg-
ular Army appointment dates). Mr. Cunningham further
alleges that as a nonprobationary officer he would be enti-
tled to a board of inquiry.2 Appellant’s Br. 2–3; see AR
2 By contrast to probationary officers, nonprobation-
ary officers are entitled to a board of inquiry. “A board of
inquiry is a formal hearing procedure wherein the service
member may be represented by counsel and present
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CUNNINGHAM v. US 6
600-8-24 ¶ 4-18; App’x 56–58. We disagree that Mr. Cun-
ningham is entitled to nonprobationary status.
The Court of Federal Claims correctly held that
Mr. Cunningham was a probationary officer not entitled to
a hearing by a board of inquiry. The date of Mr. Cunning-
ham’s appointment to the Regular Army in the grade of
chief warrant officer two was June 21, 2019. Decision at
*1; App’x 323 (“The existing warrant officer Reserve ap-
pointment is vacated upon acceptance of this appointment”
to “the grade of Chief Warrant Two.”). The Court of Fed-
eral Claims also correctly concluded that the relevant end
date for determining probationary status is the date that
the Deputy Assistant Secretary of the Army issued a final
decision regarding Mr. Cunningham’s case, rather than the
date when Mr. Cunningham received his certificate of dis-
charge from active duty.3 Decision at *3. The Deputy As-
sistant Secretary of the Army “determined
[Mr. Cunningham] will be involuntarily eliminated from
the United States Army with an Honorable characteriza-
tion of service” on June 6, 2022, the date of the final deci-
sion in Mr. Cunningham’s case. App’x 100; see AR 600-8-24
¶ 4-19(j) (“Action by the [Deputy Assistant Secretary of the
Army] acting for [the Secretary of the Army] is final.”);
App’x 60. In sum, it was less than three years between
Mr. Cunningham’s appointment to the Regular Army and
the final decision by the Deputy Assistant Secretary of the
Army.
witnesses.” Holley v. United States, 124 F.3d 1462, 1464
n.1 (Fed. Cir. 1997); see also AR 600-8-24 ¶ 4-6; App’x 50.
3 Cf. AR 600-8-24 ¶ 4-19(c) (“[i]f at any time during
the processing of the recommendation (before a final deci-
sion in the case) the officer no longer meets the probation-
ary criteria,” the officer will be processed as a
nonprobationary officer) (emphasis added); App’x 60.
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CUNNINGHAM v. US 7
Mr. Cunningham’s appointment could be terminated
without going through a board of inquiry first. The Secre-
tary of the Army “may terminate the regular appointment
of any permanent regular warrant officer at any time
within three years after the date when the officer accepted
his original permanent appointment as a warrant officer in
that component.” 10 U.S.C. § 1165; see also AR 600-8-24
¶ 4-19(b)(1)–(2) (“A probationary officer is—(1) Any com-
missioned officer on the [active-duty list] with less than 6
years active commissioned service or a commissioned Re-
serve officer with less than 6 years commissioned service
(see 10 U.S.C. [§] 630). (2) Warrant officers who have less
than 3 years’ service since original appointment in their
present component (see 10 U.S.C. [§] 1165).”); App’x 60.
Because “[Mr.] Cunningham’s appointment to his most re-
cent component on June 21, 2019, was less than three years
before June 6, 2022, when the final decision was issued by
the [Deputy Assistant Secretary of the Army] to eliminate
him,” Decision at *3, the Court of Federal Claims did not
err in finding that Mr. Cunningham was a probationary of-
ficer who is not entitled to a hearing by a board of inquiry.
B.
Mr. Cunningham argues that the Court of Federal
Claims erred and acted in an arbitrary and capricious man-
ner when processing Mr. Cunningham’s elimination paper-
work under AR 600-8-24 because his original 165-page
rebuttal document was lost. Appellant’s Br. 3–6, 9.
Mr. Cunningham contends that the Army failed to “appro-
priately” review his documents, Appellant’s Br. 4, because
the Army “made a decision on over a year[’]s worth of legal
proceedings in three working days.” Appellant’s Br. 5. In
response, the government argues that this characterization
is inaccurate because the Army remedied any errors in the
processing of Mr. Cunningham’s claim before the Deputy
Assistant Secretary of the Army made a final decision. Ap-
pellee’s Br. 17. We agree with the government.
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CUNNINGHAM v. US 8
The Army did not act in an arbitrary and capricious
manner and did not commit any prejudicial error in pro-
cessing Mr. Cunningham’s elimination paperwork under
AR 600-8-24. “Table 4-2, Steps 3 and 9 [of AR 600-8-24]
mandate that upon the initiation of elimination proceed-
ings for a probationary officer, the initiating official must
advise ‘the officer that he or she has [thirty] calendar
days . . . to prepare a written statement or rebuttal’ and
that the initiating official may take action upon receipt of
the statement.” Decision at *3 (quoting AR 600-8-24
¶ 4-19, Table 4-2); App’x 60–61. There is no dispute that
the General Officer Show Cause Authority failed to con-
sider Mr. Cunningham’s original written rebuttal state-
ment documents before the initial recommendation of his
elimination. Decision at *3; Appellee’s Br. 16. The Court
of Federal Claims found that “the administrative record in-
dicates that this error was later discovered and remedied
by the Army.” Decision at *3. After Mr. Cunningham
acknowledged that the pertinent written rebuttal state-
ments responding to the elimination action were submit-
ted, App’x 102, the Army acknowledged that
Mr. Cunningham’s rebuttal documents were received on
March 23, 2022, App’x 101, and still reached the same con-
clusion. Decision at *2; App’x 100. Because the Army came
to the same conclusion as its initial recommendation after
reviewing Mr. Cunningham’s rebuttal statements, any al-
leged errors in processing Mr. Cunningham’s elimination
paperwork were harmless.
Mr. Cunningham also argues that the Army committed
prejudicial error because it did not properly consider En-
closure 4 of Mr. Cunningham’s rebuttal, titled “Article 15
Set Aside Request with Enclosures.” Appellant’s Br. 6.
Mr. Cunningham contends that “[t]his proves” the govern-
ment “cannot properly classify which documentation was
submitted” in his appeal. Id. In response, the government
argues that “[a]lthough Mr. Cunningham resubmitted the
evidence from Dr. Walterscheid in his rebuttal materials,
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CUNNINGHAM v. US 9
the record shows that [the Army] had already considered
the evidence from Dr. Walterscheid in the Article 15 set-
aside request.” Appellee’s Br. 18–19 (emphasis in original)
(citing App’x 326).
We agree with the government. AR 27-10 authorizes
an Article 15 finding to be “set aside” if punishment has
resulted in a “clear injustice”—for example, the “discovery
of new evidence unquestionably exculpating the Soldier.”
AR 27-10 ¶ 3-28(a); App’x 36. However, Mr. Cunningham’s
set aside request was denied on September 7, 2021,
App’x 326, which occurred over five months before
Mr. Cunningham resubmitted his materials and the Army
received his materials. App’x 102–05; Decision at *3.
There is substantial evidence showing the Army fully com-
plied with the requirements of AR 600-8-24 before the Gen-
eral Officer Show Cause Authority made its final
recommendation regarding Mr. Cunningham’s elimina-
tion.
C.
Mr. Cunningham also argues that his removal from the
Army violated AR 27-10. Appellant’s Br. 7–8 (discussing
Decision at *4). He urges that he was unlawfully removed
under UCMJ Article 112a because he did not knowingly
and willingly consume a controlled substance. Appellant’s
Br. 8. We disagree.
Under AR 27-10, imposition of punishment under Arti-
cle 15 requires a determination of guilt beyond a reasona-
ble doubt. AR 27-10 ¶ 3-18(l); App’x 30. UCMJ Article
112a mandates that “[a]ny person subject to this chapter
who wrongfully uses” cocaine “shall be punished as a court-
martial may direct.” 10 U.S.C. § 912a(a). The Manual for
Courts-Martial (“MCM”), which interprets the UCMJ, ex-
plains that “wrongful use” in Article 112a has two ele-
ments: “(a) That the accused used a controlled substance;
and (b) That the use by the accused was wrongful.” MCM
Part IV ¶ 50.b(2) (2019); App’x 87–88. “Knowledge of the
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CUNNINGHAM v. US 10
presence of the controlled substance is a required compo-
nent of use.” MCM Part IV ¶ 50.c(10); App’x 90. However,
“[k]nowledge of the presence of the controlled substance
may be inferred from the presence of the controlled sub-
stance in the accused’s body or from other circumstantial
evidence.” MCM Part IV ¶ 50.c(10); App’x 90.
The Court of Federal Claims found that Mr. Cunning-
ham’s urinalysis test detected cocaine at a value above the
cutoff for cocaine metabolites. Decision at *1; App’x 310.
There is substantial evidence supporting the conclusion
that Mr. Cunningham knowingly ingested cocaine, includ-
ing the evidence from the urinalysis test. Drawing reason-
able inferences from the urinalysis test, the Army’s
determination that Mr. Cunningham’s guilt satisfied the
burden of proof was also supported by substantial evidence.
Regardless of the new evidence from Dr. Walterscheid, De-
cision at *1, “courts cannot substitute their judgment for
that of the military departments when reasonable minds
could reach differing conclusions on the same evidence.”
Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir.
1983). Therefore, although Mr. Cunningham can identify
other evidence in the record that could support a contrary
conclusion, he has not shown that the Army’s decision was
unsupported by substantial evidence.
III. CONCLUSION
We have considered Mr. Cunningham’s remaining ar-
guments and find them unpersuasive. For the foregoing
reasons, we affirm the judgment of the Court of Federal
Claims.
AFFIRMED
COSTS
No costs.
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