Whether the Navy's Board for Correction of Naval Records has the authority to remove an unjust summary court-martial sentence from a service member's record

QUESTIONS PRESENTED 1. The scope of the authority of the United States Navy’s Board for Correction of Naval Records (“Naval Board”) to remove an unjust summary court-martial sentence from a_ service member’s record, by expungement or by clemency, is in need of clarification by this Court. 10 U.S.C. § 1552(a)(1) was previously interpreted by lower courts to allow the Naval Board to expunge or remove invalid or unjust courts-martial sentences. See, eg., Baxter v. Claytor, 652 F. 2d 181, 185 (D.C. Cir. 1981); Owings v. Secretary of the United States Air Force, 447 F.2d 1245, 1249-50 (D.C. Cir. 1971). In 1983, however, Congress amended 10 U.S.C. § 1552 to streamline and modernize the military justice review system. In doing so, to prevent redundancy, Congress limited the Naval Board’s powers with respect to courts-martial that are “tried or reviewed.” 10 U.S.C. § 1552(f). It is unclear, however, from the relevant legislative history and the text of the amendment, whether any changes were intended to be made to the Naval Board’s powers over non-adversarial summary courts-martial sentences. A summary court-martial is a special disciplinary procedure and, despite the similarities in name, a summary court-martial is a very different process than general courts-martial or special courts-martial. Most significantly, a summary court-martial is a nonadversarial process, unlike general courts-martial or special courts-martial. Further, summary courtsmartial are not considered criminal convictions and are often utilized because they require lesser due process. This Court, in Mittendorf v. Henry, 425 U.S. 25, 31-33 ii (1976), recognized that summary courts-martial are not criminal proceedings, as general and special courtsmartial are, and thus are not entitled to the same due process protections. The question now presented to this Court is whether or not the 1983 congressional amendment to 10 U.S.C. § 1552 revoked the power of the Naval Board to remove unjust summary courtmartial sentences from a service member’s record as a matter of basic fairness. 2. As a second question, it is unclear what due process must be afforded to an applicant to the Naval Board for correction of a military record. The decision of the Sixth Circuit below in this matter leaves in substantial doubt whether there are any procedural protections to ensure that an applicant’s full service record is reviewed or whether or not the decisionmaking process is entirely within the prerogative of the executive. The decision creates a circuit split with the D.C. Circuit, Morrison v. Sec’y of Def., 760 F. Supp. 2d 15 (D.D.C. 2011), as to whether the Naval Board must consider evidence of exemplary service in the military record before issuing a decision on an application for correction of a military record. This very minimalistic protection should be mandated for veterans applying for relief from the Naval Board.