Background
Tracy A. Brown, a Major in the U.S. Army, was eliminated from active duty in 2018 following administrative proceedings. In March 2017, while attending the Command and General Staff School at Fort Lee, Virginia, a female officer reported that Brown had sexually assaulted her. The Army Criminal Investigation Division found probable cause for “Abusive Sexual Contact.” In April 2017, the Army issued Brown a General Officer Memorandum of Reprimand for sexual harassment under Army Regulation 600-20. The Army then initiated elimination proceedings in May 2017 for violations of sexual harassment regulations and conduct unbecoming an officer.
A Board of Inquiry convened in June 2017 and found by preponderance of evidence that Brown committed sexual harassment and conduct unbecoming an officer, recommending separation with a General (Under Honorable Conditions) characterization. Brown later sought retirement in lieu of elimination, but the Army returned his request without action citing adverse flags and an active duty service obligation. The Secretary of the Army ultimately approved Brown’s elimination on December 21, 2017, and he was separated January 5, 2018. Brown petitioned the Army Board for Correction of Military Records twice; both petitions were denied. He then sued in the Court of Federal Claims challenging his elimination.
The Court’s Holding
The court denied Brown’s motion for judgment on the administrative record and granted the government’s cross-motion, upholding the Army’s elimination action. On the Board of Inquiry proceedings, the court found that while the complaining witness’s presence during closing arguments and the reading of findings violated Army Regulations 600-8-24 and 15-6, this constituted harmless error because Brown and his counsel failed to object to her presence before proceedings adjourned. The regulation explicitly provides that errors are harmless when a respondent fails to object. The court also found the BOI’s findings satisfied regulatory requirements by making separate findings on each allegation, determining them supported by preponderance of evidence, and explaining the basis for recommendation.
Regarding the review process, the court held the Army lawfully used an Ad Hoc Review Board instead of a Board of Review. Although Army Regulation 600-8-24 ¶ 4-17a initially required a Board of Review, a December 9, 2016 memorandum from the Secretary of the Army superseded this requirement for cases initiated after that date, granting discretion to the Assistant Secretary of the Army to take final action without Board of Review referral and to establish an Ad Hoc Review Board. Because Brown’s BOI was initiated after December 9, 2016, the use of an Ad Hoc Review Board was within proper authority. The court held that a staff judge advocate’s earlier written notice to Brown that his case would go to a Board of Review, while not reflecting the regulatory change, did not obligate the Army to conduct one.
Key Takeaways
- Procedural violations in military proceedings may constitute harmless error when a servicemember’s counsel fails to timely object or raise the issue before proceedings conclude.
- The Secretary of the Army can supersede Army Regulations through memorandum, delegating modified authority to subordinate officials such as the Assistant Secretary of the Army for future cases.
- An inconsistent written notice by a subordinate staff judge advocate does not bind the Secretary of the Army or his designee to procedures superseded by higher authority.
- Military courts apply substantial deference to military administrative decisions and require the challenging party to demonstrate by clear and convincing evidence that a board’s decision was arbitrary, capricious, or unsupported by substantial evidence.
Why It Matters
This decision reinforces significant principles about judicial review of military discharge actions. It clarifies that procedural irregularities in military boards—even when they technically violate regulations—may be deemed harmless when not timely challenged. This has implications for servicemembers challenging elimination actions, as it creates a potential trap for the unwary: failure to immediately object during proceedings may waive important procedural protections. The decision also demonstrates that military leadership can modify established procedures through high-level delegation memoranda without updating underlying regulations, and subordinate officers’ written representations about procedures do not create binding obligations contrary to superseding directives.
For military practitioners and servicemembers, the decision underscores the importance of vigilant objections during board proceedings and the need to ensure counsel is aware of any regulatory changes affecting elimination actions. The court’s substantial deference to military decision-making bodies—combined with the harmless error doctrine—makes challenging military administrative actions difficult absent clear procedural violations that are properly preserved through timely objection.