Robert S. Carlborg v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT S. CARLBORG,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1339
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01994-AOB, Judge Armando O. Bonilla.
______________________
Decided: November 4, 2024
______________________
ROBERT S. CARLBORG, San Luis Rey, CA, pro se.
STEPHEN J. SMITH, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by BRIAN M. BOYNTON, STEVEN JOHN GILLINGHAM, PATRICIA
M. MCCARTHY.
______________________
Before MOORE, Chief Judge, CHEN and STOLL, Circuit
Judges.
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CARLBORG v. US 2
PER CURIAM.
Robert S. Carlborg appeals from a decision of the
United States Court of Federal Claims (Claims Court),
which granted the government’s motion for judgment on
the administrative record (MJAR) and denied Mr.
Carlborg’s. Carlborg v. United States, 168 Fed. Cl. 371
(2023) (Decision). For the reasons discussed below, we
affirm.
BACKGROUND
Mr. Carlborg served in the United States Marine Corps
(USMC) from 1995 through 2015, rising to the rank of
Major. Decision at 374. On December 9, 2014,
Mr. Carlborg’s command charged him for violations of
Article 133 (conduct unbecoming of an officer and a
gentleman) and Article 134 (adultery) of the Uniform Code
of Military Justice (UCMJ). Id.
In lieu of a court-martial, Mr. Carlborg elected to
submit a pretrial agreement (PTA), offering to accept non-
judicial punishment (NJP).1 J.A. 41.2 The PTA was
accepted by the Convening Authority, who agreed to
dismiss the charges with prejudice upon sentencing at NJP.
Id. At a February 5, 2015, NJP hearing, Mr. Carlborg
1 NJP, as provided in Article 15 of the UCMJ, is a form
of military justice to address offenses committed by service
members. Dumas v. United States, 620 F.2d 247, 250–53
(Ct. Cl. 1980). The NJP process is the least formal option
and is conducted by the accused’s commanding general. Id.
at 251. The proceeding is not criminal in nature, as
opposed to court-martial, and limited punishments may be
imposed. Id. at 251–52. An accused service member has
the right to elect to proceed with an NJP instead of with a
formal court-martial. Id. at 251; see also 10 U.S.C. § 815.
2 “J.A.” refers to the appendix filed by Mr. Carlborg.
See ECF No. 30.
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CARLBORG v. US 3
pleaded guilty to all charges. Decision at 375. As
punishment, Mr. Carlborg received a punitive letter of
reprimand and forfeited $7,430.10 of pay. Id.
Two weeks later, the Commanding General prepared
an NJP report recommending that Mr. Carlborg be
required to show cause for retention in the USMC at a
Board of Inquiry (BOI) based on Mr. Carlborg’s admitted
misconduct. Id. In response, Mr. Carlborg stated that he
planned to request voluntary early retirement under the
Temporary Early Retirement Authority (TERA) program
rather than face the BOI. Id. at 376.
On March 12, 2015, Mr. Carlborg was served with a
formal notice of a BOI ordering him to show cause for
retention. Id. That same day, Mr. Carlborg submitted his
early retirement request under TERA. Id.
In May 2015, the BOI convened and substantiated the
underlying misconduct. Id. The BOI recommended that
Mr. Carlborg be separated with an Other Than Honorable
characterization of service. Id. In July 2015, Mr. Carlborg
challenged the BOI’s findings on the grounds that he
qualified for early retirement and that the BOI proceedings
should have been paused during the processing of his
March 12, 2015, voluntary retirement request. Id.
Mr. Carlborg also alleged legal errors in his BOI
proceeding, contended that his post-traumatic stress
disorder (PTSD) was a mitigating factor, and requested an
honorable discharge. Id.
In September 2015, the Deputy Commandant rejected
Mr. Carlborg’s legal arguments and recommended that he
be discharged with an Other Than Honorable
characterization of service. Id. Mr. Carlborg was
subsequently ordered to be evaluated by a medical
professional to determine whether PTSD contributed to his
misconduct. Id. After reviewing Mr. Carlborg’s records
and interviewing him, a Division Psychiatrist concluded
that Mr. Carlborg was not suffering from PTSD. Id. The
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CARLBORG v. US 4
Assistant Secretary of the Navy then approved the Deputy
Commandant’s recommendation, and on October 9, 2015,
Mr. Carlborg was discharged with an Other Than
Honorable characterization of service. Id.
The next year, in October 2016, Mr. Carlborg filed a
disability claim with the Department of Veterans Affairs
(VA) for service-connected PTSD and in May 2017, the VA
assigned him a 70 percent disability rating. Id. at 376–77.
In October 2018, Mr. Carlborg petitioned the Board for
Correction of Naval Records (BCNR) for relief, raising a
variety of arguments. Id. at 377. In April 2020, the BCNR
recommended that certain negative comments be removed
from Mr. Carlborg’s fitness report, but denied all other
relief. Id.
On October 8, 2021, Mr. Carlborg filed a complaint “for
back-pay and collateral injunctive relief” in the Claims
Court. Complaint at 1, Carlborg v. United States, No. 21-
1994C (Fed. Cl. Oct. 8, 2021), ECF No. 1. Mr. Carlborg and
the government eventually filed cross-MJARs. On
November 6, 2023, the Claims Court denied Mr. Carlborg’s
MJAR and granted the government’s. In its decision, the
Claims Court rejected Mr. Carlborg’s arguments that: the
USMC violated the terms of the PTA by using his charged
conduct as the basis of his separation; he should have been
referred to the Disability Evaluation System (DES); the
USMC violated applicable rules and regulations; and his
proceedings were prejudiced by unlawful command
influence. Decision at 377–85.
Mr. Carlborg timely appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(3).
DISCUSSION
“We review a decision of the Court of Federal Claims
granting or denying a motion for judgment on the
administrative record without deference. That is, we
reapply the statutory review standards.” Chambers v.
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CARLBORG v. US 5
United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005) (citation
omitted). Under that standard, we will not disturb the
decision of the BCNR “unless it is arbitrary, capricious,
contrary to law, or unsupported by substantial evidence.”
Id.
On appeal, Mr. Carlborg raises the same arguments he
made before the Claims Court. We reject each one.
First, Mr. Carlborg argues that the USMC violated the
terms of the PTA by failing to dismiss his charges with
prejudice. The PTA called for the USMC to initially
withdraw Mr. Carlborg’s charges from court-martial
without prejudice and then for the withdrawal to be
converted into a dismissal with prejudice after sentencing
at the NJP. J.A. 44. The former step occurred but the latter
did not.
The BCNR’s conclusion that, despite his charges not
being formally dismissed with prejudice, Mr. Carlborg
received his benefit of the PTA—the withdrawal of his
charges from the court-martial, is in accordance with law.
J.A. 172. We agree that “Mr. Carlborg avoided a criminal
prosecution and the prospect of a federal criminal
conviction, dismissal (i.e., the officer equivalent of a
dishonorable discharge), and possible confinement.”
Decision at 378; J.A. 172. Instead of facing a criminal
prosecution, Mr. Carlborg pleaded guilty at the NJP
hearing and received a punitive letter of reprimand and
reduced pay. Decision at 375. As the Claims Court
explained, the USMC “effectively dismissed with prejudice
the charges preferred against Mr. Carlborg in that he was
not—and now cannot be—prosecuted under Articles 134
and 135 of the UCMJ.” Id. at 379.
Relatedly, Mr. Carlborg contends that the USMC
improperly used the dismissed court-martial charges as
the basis for the BOI that led to his separation. The
BCNR’s conclusion that the preclusive effect of the PTA
does not extend to the convening of a BOI and Mr.
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CARLBORG v. US 6
Carlborg’s related administrative discharge is in
accordance with law. J.A. 172; Decision at 378. The
Commanding General was required to file an NJP report
including a recommendation of whether Mr. Carlborg’s
conduct warrants separation. See Decision at 375 n.8; see
also Marine Corps Order (MCO) P5800.16A ¶ 4004.
Furthermore, Department of Defense Instruction (DoDI)
1332.30 provides, among other things, that “military
nonjudicial punishment in accordance with Article 15,
Uniform Code of Military Justice do[es] not preclude an
administrative discharge action.” DoDI 1332.30, Encl. 3,
¶ 6(d) (Nov. 25, 2013) (emphases added). In other words,
the resolution of criminal charges does not bar the USMC
from administratively discharging someone based on the
underlying conduct. The BCNR did not err in concluding
the same. See J.A. 172.
Second, Mr. Carlborg argues that the USMC should
have referred him to the DES as a matter of law. The “DES
is the mechanism for determining a service member’s
return to duty, separation, or retirement following a
disability diagnosis.” Decision at 379. In essence, qualified
medical authorities refer eligible service members to the
DES to be evaluated for permanent unfitness for duty. Id.
at 379–80.
The Claims Court, crediting the BCNR’s analysis,
determined that Mr. Carlborg failed to establish that he
was unfit for continued service due to PTSD or any other
disability. Id. at 379–81. We agree. The Claims Court
explained that the BCNR’s decision was supported by
Mr. Carlborg’s adequate performance up until allegations
of his misconduct and by “overwhelming” medical evidence
demonstrating his fitness for duty. Id. at 380. For
example, in March 2015, Mr. Carlborg represented to a
clinician that he was completing his work competently. Id.
Additionally, the Senior Medical Advisor who reviewed
Mr. Carlborg’s BCNR application concurred that the
evidence did not support referral to the DES. J.A. 46–48.
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CARLBORG v. US 7
For his part, Mr. Carlborg primarily relies on a
February 20, 2015, note from his Unit Medical Officer that
he was “[n]ot currently considered psychiologically [sic] fit
for duty.” J.A. 71. Both the Claims Court and the BCNR
considered this evidence and found it unpersuasive.
Decision at 380; J.A. 169–70. For example, the statement
was made the day after Mr. Carlborg received the NJP
report, stood in contrast to evaluations made at the time of
his discharge, and indicated that Mr. Carlborg was not
currently fit rather than permanently unfit. Decision at
380; J.A. 169–70. Accordingly, we agree with the Claims
Court that substantial evidence supports the BCNR’s
finding that Mr. Carlborg was not required to have been
referred to the DES.
Third, Mr. Carlborg argues that the USMC violated
various rules and regulations. Specifically, Mr. Carlborg
claims the USMC: denied his request for a 20-day
extension to respond to the BOI report; failed to conduct a
separation medical evaluation; and failed to forward his
retirement request to the Secretary of the Navy. We
address each alleged violation in turn.
Regarding the 20-day extension, Mr. Carlborg contends
that the request should have been forwarded to the
Alternate Show Cause Authority in accordance with
regulation. We see no error in the BCNR’s determination
otherwise. The BCNR explained the extension was
properly considered by the Staff Judge Advocate (SJA)
“who was, in fact, an alternative show cause authority.”
J.A. 178; Decision at 381–82. The Claims Court recognized
that it is “common practice” for the SJA to act on “non-
substantive requests,” such as extensions of time. Id. at
382 (citing Impresa Construzioni Geom. Domenico Garufi
v. United States, 238 F.3d 1324, 1338 (Fed. Cir. 2001)).
Additionally, the BCNR and Claims Court explained that
Mr. Carlborg was not entitled by right to a 20-day
extension. J.A. 178; Decision at 382 (noting that a party
“may submit an extension request to the Alternate Show
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CARLBORG v. US 8
Cause Authority or Show Cause Authority who directed the
BOI” (emphasis added) (citation omitted)).
The next alleged violation, that the USMC failed to
properly conduct a medical examination upon separation
as required under 10 U.S.C. § 1177, is also unpersuasive.
The record evidence indicates that Mr. Carlborg received a
PTSD evaluation in conjunction with his separation from
the USMC. J.A. 174–75; J.A. 90–95. Further, substantial
evidence supports the BCNR’s finding that, contrary to Mr.
Carlborg’s assertion, the chain of command was aware of
Mr. Carlborg’s medical conditions, and specifically directed
that he receive an evaluation to determine whether PTSD
contributed to his misconduct. J.A. 174–77; Decision at
382; see also, e.g., J.A. 78; J.A. 81–83.
Next, Mr. Carlborg contends that the USMC violated
10 U.S.C. § 1186(a) and Secretary of the Navy Instruction
(SECNAVINST) 1920.6C by failing to forward his March
12, 2015, retirement request to the Secretary of Navy. The
Claims Court considered and rejected this argument
because “he was not eligible for voluntary early
retirement.” Decision at 383–84; see 10 U.S.C. § 1186(a)(1)
(The Secretary may grant a request “for voluntary
retirement, if the officer is qualified for retirement”)
(emphasis added). We agree. Mr. Carlborg sought
retirement under TERA. But “officers pending legal action
or proceedings, administrative separation, or disability
separation or retirement are not eligible for TERA.”
MARADMIN 155/14, ¶ 2(H) (Mar. 28, 2014); J.A. 173.
Mr. Carlborg was therefore not eligible for TERA because
he was subject to both legal and administrative separation
proceedings at the time he requested retirement. J.A. 173;
Decision at 383–84.
For these reasons, we agree with the Claims Court that
the BCNR did not err in determining that the USMC did
not violate the rules and regulations raised by Mr.
Carlborg. Id. at 381–84.
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CARLBORG v. US 9
Fourth, Mr. Carlborg argues that his proceedings were
prejudiced by unlawful command influence. As the Claims
Court correctly determined, this argument is forfeited
because Mr. Carlborg failed to raise it before the BCNR.
Decision at 384 (“Unlawful command influence cannot be
raised for the first time in [the Claims Court].” (quoting
Pittman v. United States, 135 Fed. Cl. 507, 528 (2017),
aff’d, 753 F. App’x 904 (Fed. Cir. 2019) (per curiam))).
Finally, Mr. Carlborg argues that the Claims Court
violated his due process rights by sua sponte vacating the
briefing schedule and issuing its decision without
providing him notice and an opportunity to respond. The
relevant timeline is as follows. Mr. Carlborg filed his
complaint with the Claims Court in October 2021. J.A. 20.
After a remand to the BCNR, a five-month stay to allow
Mr. Carlborg to substitute counsel, and three extensions to
the briefing schedule, Mr. Carlborg filed his MJAR in
August 2023. Id. at 21–24. The government filed its
consolidated response and cross-MJAR in September 2023.
Id. at 24. Then, without waiting for Mr. Carlborg’s
consolidated response and reply, the Claims Court issued
an opinion and order denying his MJAR, granting the
government’s, and vacating the remaining briefing
schedule. Id.; see also Decision at 374 n.1 (“Additional
briefing and oral argument are unnecessary.”).
Generally, a court cannot enter a case-dispositive
judgment “without notifying the parties of its intentions
and allowing them an opportunity to . . . respond.” English
v. Cowell, 10 F.3d 434, 437 (7th Cir. 1993). For example,
district courts are permitted to enter summary judgment
sua sponte, but this power is tempered by the requirement
to first provide “notice and a reasonable time to respond.”
Fed. R. Civ. P. 56(f).
Although the Claims Court appears to have run afoul
of this procedural safeguard, that failure is not necessarily
a reversible error requiring remand. Other circuits have
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CARLBORG v. US 10
recognized that if “the appellant cannot demonstrate
[procedural] prejudice—by establishing that it was unable
to present evidence in support of its position as a result of
the unfair surprise—the failure to provide notice is
harmless error and a remand would be futile.” P.R. Elec.
Power Auth. v. Action Refund, 515 F.3d 57, 65–66 (1st Cir.
2008) (finding harmless error where appellant alleged a
due process violation from the district court’s failure to
provide notice and an opportunity to present evidence),
abrogated on other grounds by Portugues-Santana v.
Rekomdiv Int’l, 657 F.3d 56, 60–61 (1st Cir. 2011); see also
Leatherman v. Tarrant Cnty. Narcotics Intel. &
Coordination Unit, 28 F.3d 1388, 1398 (5th Cir. 1994)
(“When there is no notice to the nonmovant, summary
judgment will be considered harmless if the nonmovant has
no additional evidence or if all of the nonmovant’s
additional evidence is reviewed by the appellate court and
none of the evidence presents a genuine issue of material
fact.” (citation omitted)); Restigouche, Inc. v. Town of
Jupiter, 59 F.3d 1208, 1213 (11th Cir. 1995); Ward v. Utah,
398 F.3d 1239, 1245–46 (10th Cir. 2005); Bridgeway Corp.
v. Citibank, 201 F.3d 134, 139–40 (2d Cir. 2000).
In this case, Mr. Carlborg fails to make any claim of
prejudice. He does not identify any argument or fact that
he would have raised that was not already present in his
opening brief. Nor does he suggest that the government’s
motion raised any argument that he had not addressed in
his earlier filing. It is telling, too, that Mr. Carlborg’s
arguments on appeal are substantially identical to those
accompanying his MJAR, despite now asserting that the
Claims Court erroneously granted the government’s
motion. Just like the appellant in Restigouche,
Mr. Carlborg “has now had ample opportunity to marshal
facts and arguments, and does not assert on appeal that
there exists additional evidence, beyond the
record . . . which would have precluded [judgment on the
administrative record] in this case.” Restigouche, 59 F.3d
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CARLBORG v. US 11
at 1213. Under these circumstances, we find
Mr. Carlborg’s argument unpersuasive. See Tex. Advanced
Optoelectronic Sols., Inc. v. Renesas Elecs. Am., Inc., 895
F.3d 1304, 1316 (Fed. Cir. 2018) (explaining that “unless
prejudice is clear even without any explanation, the party
seeking reversal normally must explain why the erroneous
ruling caused harm” (cleaned up)).
CONCLUSION
We have considered Mr. Carlborg’s remaining
arguments and find them unpersuasive. For the foregoing
reasons, we affirm.
AFFIRMED
Costs
No costs.
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