Robinson v. United States

In the United States Court of Federal Claims No. 24-1459 Filed: July 1, 2026 ) TYELIN ARIEON ROBINSON, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ) Wojciech Z. Kornacki, Pentagon Law Office, Washington D.C., for plaintiff. Delisa Maria Sanchez, Trial Attorney, United States Department of Justice, Civil Division, Commercial Litigation Branch, for defendant. With her on the brief was Lieutenant Colonel Suzanne M. Dempsey, United States Marine Corps, General Litigation Division (Code 14), Office of the Judge Advocate General. OPINION AND ORDER SMITH, Senior Judge Servicemembers of the United States Armed Forces are afforded certain rights when defending themselves against administrative separation. To protect these rights, each service branch has promulgated regulations that impose procedural requirements that disciplinary authorities and personnel must follow. However, procedural errors arising from the separation process may prejudice a servicemember’s defense and undermine the fairness of any subsequent proceeding. This case concerns whether procedural violations during a servicemember’s separation were harmless when the servicemember invoked or attempted to invoke certain rights that were allegedly waived. Plaintiff Tyelin Robinson served in the United States Navy (the “Navy”) from 2016 to 2022 before being separated for drug abuse. After testing positive for a prohibited substance following a night out while on leave, Mr. Robinson asserts that the Navy violated multiple procedural regulations that prevented him from adequately defending himself during his separation process. Mr. Robinson also alleges that the Navy lacked sufficient evidence to support its drug abuse charge against him and that a Navy Judge Advocate General provided him with ineffective counsel. After being reinstated into the Navy in 2024, Mr. Robinson now brings this military pay dispute and 1 charges that these errors entitle him to backpay and correction of his military records. Before the Court are the parties’ cross-motions for judgment on the administrative record under Rule 52.1 of the Rules of the Court of Federal Claims (“RCFC”). ECF Nos. 23, 26. For the following reasons, the Court GRANTS the Navy’s motion, ECF No. 26, and DENIES Mr. Robinson’s motion, ECF No. 23. I. BACKGROUND A. Mr. Robinson Serves in the Navy and Tests Positive for THC. In April 2016, Mr. Robinson formally enlisted in the Navy. See Administrative R. (“AR”) at 205. At the time he enlisted, Mr. Robinson signed a Drug and Alcohol Abuse Statement of Understanding in which he acknowledged that the Navy maintained a “Zero Tolerance policy toward drug and alcohol abuse,” that he would be subjected to urinalysis tests, and that “a single detection of drug abuse after entry” could result in separation from the Navy. Id. at 219 (quotation marks omitted). For the next four years, Mr. Robinson demonstrated exemplary service. See id. at 246–59. He progressed from a student to a supervisor technician and earned regular and “frocked” promotions. See id. One evaluator described Mr. Robinson as “a rising star who seeks out and accomplishes all tasks ahead of schedule!” Id. at 251. Another called him “an outstanding sailor who exudes superb leadership in every endeavor!” Id. at 259. Mr. Robinson was promoted to Avionics Electronics Technician Petty Officer Second Class with a corresponding E-5 pay grade. Id. at 191. During his initial enlistment, Mr. Robinson received several medals and commendations, including the Armed Forces Service Medal, the Humanitarian Service Medal, and the National Defense Service Medal. Id. at 144, 261. After his enlistment ended, Mr. Robinson signed a new three-year contract in November 2020. Id. at 260. He continued his service aboard the USS Theodore Roosevelt and again received high marks for his service. Id. at 270, 272–74. In December 2021, Mr. Robinson reported for duty at the Fleet Readiness Center West (“FRCW”) Detachment at Naval Air Station Fallon. Id. at 2. As a Calibration Technician, Mr. Robinson worked on and repaired “optical/dimensional, electronic, physical/mechanical and special support equipment.” Id. at 281. To facilitate his transfer, Mr. Robinson submitted a urine sample as a matter of routine drug screening procedure. Id. at 2, 43–46. But on January 27, 2022, the results from the urinalysis test came back positive for Tetrahydrocannabinol (“THC”) at twice the threshold for a positive result. Id. at 7, 15, 33, 35. 1 The following day, Mr. Robinson participated in a preliminary investigation and testified that his exposure to THC occurred during a month-long leave before his transfer to FRCW Fallon. Id. at 39, 41, 147. While on leave, Mr. Robinson visited a nightclub called McClouds and vaped with his fellow sailors, an activity “honestly done religiously amongst individuals that go there.” Id. at 41. As they continued to drink and vape, Mr. Robinson and his colleagues began passing around their different vape devices, including some provided by civilians. Id. at 37, 41. 1 THC “is believed to be the main ingredient that produces the psychoactive effect” in marijuana. See Marijuana, United States Drug Enforcement Administration, https://www.dea.gov/factsheets/marijuana, (last visited June 17, 2026). 2 Throughout the night, he vaped from his own device and vapes belonging to others, one of which may have allegedly contained an illegal substance. Id. at 37, 42. While “[it] may sound farfetched,” Mr. Robinson believed that his exposure was “without a doubt unintentional and I know I never willingly consumed or inhaled any THC/CBD.” Id. at 41–42. After his one-day investigation, a Preliminary Investigator concluded that Mr. Robinson became “exposed to THC while vaping prior to reporting to FRCW Det Fallon but is not being truthful about the entire situation.” Id. at 36–37. Mr. Robinson’s investigator also noted that “[h]is lack of situational awareness and carelessness possibly led to his exposure to THC,” but recommended further disciplinary action. Id. at 36. B. Separation from Service and Subsequent Re-Enlistment. On February 15, 2022, the Navy notified Mr. Robinson that he would face separation proceedings for drug abuse. Id. at 32. Legal Chief Matthew Nunn served Mr. Robinson with a NAVPERS 1910-31 form which advised him of his rights, among others, to “consult with qualified counsel” and to submit written statements for the separation authority to consider. 2 Id. at 33, 146. That form also suspended his separation proceedings for two days to give him an opportunity to exercise those rights. Id. at 34. Failure to respond to the NAVPERS form would result in “a waiver of all rights and processing may continue in [Mr. Robinson’s] absence.” Id. Mr. Robinson told Chief Nunn that he wanted to speak to an attorney before signing the form. Id. at 146. However, Chief Nunn wrote “member refused to sign” on his NAVPERS form that same day which initiated his separation process and allegedly waived his rights. Id. at 34–35. According to Mr. Robinson’s mother, who served in the Navy and who listened in on the conversation, Chief Nunn “said it would not matter anyway” that he signed on her son’s behalf. Id. at 150. Soon after, Mr. Robinson sought legal counsel from Lieutenant Mehra, a Navy JAG based in Lemoore, California. 3 Id. at 147, 151. Lieutenant Mehra allegedly told him that “something was wrong about the process and that I should be given more time.” Id. at 147. She also promised to contact Mr. Robinson’s commanding officer to re-start the separation process. Id. Based on her representations, Mr. Robinson collected character references in support of his retention and sent them to Lt. Mehra. Id. at 176–88. However, Lt. Mehra stopped responding, did not submit the character letters to the separation authority, and eventually told Mr. Robinson’s mother to stop sending her the letters. Id. at 9, 147, 150. On March 1, 2022, the separation authority recommended that Mr. Robinson be discharged for drug abuse. Id. at 144. The recommendation was adopted and fully executed in April 2022, resulting in Mr. Robinson receiving a general discharge under honorable conditions. Id. After his separation from the Navy, Mr. Robinson petitioned the Naval Discharge Review Board (“NRDB”) for equitable relief. Id. at 67–74. NDRB retains jurisdiction to review an applicant’s discharge and may change a servicemember’s character of service and the reason for discharge when appropriate. Id. at 125. In September 2023, NDRB concluded that Mr. Robinson’s “discharge was improper and clemency was warranted.” Id. at 126. As a result, the Board (1) changed the characterization of his discharge to “Honorable;” (2) adjusted the narrative of his 2 The administrative record appears to state Legal Chief Nunn’s position as “AMC.” AR at 35. At times, Mr. Robinson refers to Chief Nunn as a “clerk.” 3 The record also does not list a full name or official title for Lt. Mehra. 3 discharge to “Secretarial Authority;” and (3) changed his reentry code to “RE-1.” Id. Mr. Robinson then returned to active duty in May 2024. II. PROCEDURAL HISTORY Mr. Robinson filed this suit in September 2024 seeking back pay from April 1, 2022, to May 24, 2024, and correction of his military records. See Compl., ECF No. at ¶ 1. In January 2025, the parties moved to remand this case back to the Board for Correction of Naval Records (“BCNR”). See Joint Mot. to Remand, ECF No 9. Remanding this case “would allow Mr. Robinson to seek relief from . . . the only entity within the Navy” that retains jurisdiction to hear his claims. Id. at 4. It would also “create a thorough record for the Court’s benefit” if BCNR denied him relief and would comply with required procedures. Id. Thereafter, the Court granted the parties’ motion and remanded this matter to BCNR. See generally Order Granting Mot. to Remand, ECF No. 10. A. The Office of Judge Advocate General Issues an Advisory Opinion. Upon receipt of Mr. Robinson’s materials, BCNR requested an advisory opinion from the Office of the Judge Advocate General (“OJAG”). AR at 5, 77–80. In its opinion, OJAG concluded that Mr. Robinson did not receive ineffective assistance of counsel under the standard established in Strickland v. Washington, 466 U.S. 668 (1984). Id. at 77. According to OJAG, Mr. Robinson was not subject to criminal proceedings, and he filed no formal complaint against Lt. Mehra, which left him with just “vague assertions.” Id. at 77–78. The advisory opinion also held that the Navy did not violate Mr. Robinson’s due process rights. Id. at 78. Even though the Navy failed to give Mr. Robinson two business days to prepare a response to his separation, it did not send his separation package for final processing until March 1, 2022. Id. During that time, Mr. Robinson consulted with counsel and he could have submitted character statements to the separation authority himself. Id. OJAG further opined that the Navy did not abuse its discretion in separating Mr. Robinson. Id. at 79–80. The advisory opinion noted that Mr. Robinson’s character letters that “were not considered by the separation authority” lacked potential eyewitnesses or details that could corroborate his innocent ingestion theory. Id. at 80. B. BCNR’s Opinion and Subsequent Proceedings. On August 27, 2025, BCNR issued its opinion and denied Mr. Robinson relief. See id. at 1–13. The Board first held that sufficient evidence justified his discharge for drug abuse. Id. at 6–7. According to BCNR, Mr. Robinson’s commanding officer reasonably determined that his ingestion of THC was not innocent based on available evidence. Id. at 7. On this issue, BCNR concluded that Mr. Robinson “exaggerated the favorable findings” from his preliminary investigation and he “went out of [his] way” to absolve his military peers “when it would be impossible to know whether the THC in question came from one of them if [his] ingestion was actually innocent.” Id. at 7. Since he failed to acknowledge his charge for separation, Mr. Robinson also deprived himself of a forum to raise his innocent ingestion defense “and therefore shift[] the burden to disprove it to the Government.” Id. BCNR further concluded that Mr. Robinson disobeyed an order to attend a Transition Assistance Program which diminished his credibility. Id. at 8. Finally, the Board found that Mr. Robinson “misrepresented the nature” of 4 his investigator’s findings to NDRB which raised doubts “regarding the basis for the NDRB’s conclusions.” Id. BNCR then determined that the Navy failed to afford Mr. Robinson his right to consult with counsel before electing his NAVPERS rights. Id. at 8. Nevertheless, BCNR found this failure to be harmless error. Id. The Board also held that the Navy did not violate Mr. Robinson’s right to suspend his separation proceedings for two days so he could respond to his NAVPERS form. Id. at 8–9. Since nine days passed before the Navy acted upon Mr. Robinson’s separation, he received more time to exercise his rights under NAVPERS “than [he was] entitled to.” Id. As for his substantive rights under NAVPERS, Mr. Robinson consulted with Lt. Mehra and gathered character references that he “inexplicably returned” to her “rather than to command.” Id. at 9. Taken together, the Board concluded that Mr. Robinson waived his rights during his separation by his own omissions. Id. BCNR also rejected Mr. Robinson’s ineffective assistance of counsel claim against Lt. Mehra. Id. In addition to not filing a complaint against her, the Board noted that his right to counsel extended to consultation, not representation under NAVPERS. Id. at 10. BCNR again blamed Mr. Robinson for “inexplicably” sending the character references to Lt. Mehra—who was located over 300 miles away—when she “had no further responsibility regarding [his] case.” Id. at 11. Finally, the Board declined to grant Mr. Robinson additional equitable relief after NDRB granted him clemency following his separation. Id. at 12. In declining to grant this relief, BCNR noted that NDRB’s decision to upgrade Mr. Robinson’s characterization of service “essentially eliminated the adverse consequences of misconduct which was supported by the evidence.” Id. Mr. Robinson’s separation further allowed him to escape professional consequences at FRCW Fallon and additional relief would grant him a financial “windfall.” Id. at 12. Following BCNR’s opinion, Mr. Robinson requested that this Court review the Board’s decision. Joint Mot. to Lift Stay and Proposed Schedule or Proceedings, ECF No. 19 at 2. Following a lapse in Government appropriations and an adjusted scheduling order, Mr. Robinson filed his amended complaint in January 2026. See Scheduling Order, ECF No. 20; Am. Compl., ECF No. 22. He submitted his motion for judgment on the administrative record later that month. Pl.’s Mot. for J. on the Administrative R., ECF No. 23. Defendant filed its response and cross- motion for judgment on the administrative record in March 2026. Def.’s Resp. and Cross-Mot. for J. on the Administrative R., ECF No. 26. The parties further exchanged reply briefs and briefing concluded in mid-April 2026. Pl.’s Reply in Support of Mot. for J. on the Administrative R., ECF No. 27; Def.’s Reply in Support of Cross-Mot. for J. on the Administrative R., ECF No. 28. III. LEGAL STANDARDS A. Scope of Review. The Tucker Act grants this Court with jurisdiction to hear “any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). However, the Tucker Act “does not [] provide the substantive cause of action; instead” a plaintiff must identify a separate money-mandating source of law to establish jurisdiction. See Chambers 5 v. United States, 417 F.3d 1218, 1223 (Fed. Cir. 2005); Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997). “It is well established that the Military Pay Act is a money-mandating statute.” Smith v. Sec’y of Army, 384 F.3d 1288, 1294 (Fed. Cir. 2004); see 37 U.S.C. § 204. The court may also “order the correction of military records” that are “incident of and collateral to its award” of monetary damages. See Voge v. United States, 844 F.2d 776, 781 (Fed. Cir. 1998); 28 U.S.C. § 1491(a)(2). Courts review military pay disputes under the same standard as any other agency action. Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006). That means a plaintiff must show by “cogent and clearly convincing evidence” that a correction board’s decision was “arbitrary, capricious, unsupported by substantial evidence, or contrary to law.” Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986). A correction board acts in an arbitrary and capricious manner when it “entirely fail[s] to consider an important aspect of the problem, offer[s] an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Kelly v. United States, 69 F.4th 887, 894–95 (Fed. Cir. 2023). While many forms of this standard of review exist, courts are generally “concerned with whether the correction board’s decision is procedurally fair and supported by substantial evidence.” Tippett v. United States, 98 Fed. Cl. 171, 177 (2011) (emphasis added). Substantial evidence entails “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 619 (1966). Servicemembers “must also overcome the presumption of regularity which attaches to the actions of [a correction board].” Miller v. United States, 119 Fed. Cl. 717, 725–26 (2015) (citing Melendez Camilo v. United States, 642 F.3d 1040, 1045 (Fed. Cir. 2011)). The military is granted “substantial deference in the governance of its affairs.” Dodson v. United States Gov’t, Dep’t of Army, 988 F.2d 1199, 1204 (Fed. Cir. 1993); Voge, 844 F.3d at 766 (“Judicial deference must be ‘at its apogee’ in matters pertaining to the military and national defense.”). Indeed, “judges are not given the task of running the Army.” Antonellis v. United States, 723 F.3d 1328 1332 (Fed. Cir. 2013). This Court does not serve as a ‘super correction board’ responsible for determining which service members are fit to serve” either. Grooms v. United States, 113 Fed. Cl. 651, 660 (2013). In practice, 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); see id. at 1157 (refusing to reweigh evidence in these matters and instead determining whether the conclusion “is supported by substantial evidence.”). However, this deferential standard of review still requires administrators to provide an explanation that forms a “rational connection between the facts found and the choice made.” See Verbeck v. United States, 89 Fed. Cl. 47, 63 (Fed. Cl. 2009) (citing Heisig v. United States, 719 F.2d at 1156). B. Motion for Judgment on the Administrative Record. Under RCFC 52.1, “a motion for judgment on the administrative record examines whether the administrative body, given all the disputed and undisputed facts appearing in the record, acted in a manner that complied with the legal standards governing the decision under review.” Supreme Foodservice GmbH v. United States, 109 Fed. Cl. 369, 382 (2013). Courts are required “to make factual findings from the record evidence as if it were conducting a trial on the record.” Bannum, 6 404 F.3d at 1356. Unlike a motion for summary judgment, genuine issues as to a material fact do not preclude the Court from entering judgment. Id. at 1355–56; see id. at 1356 (opining that “proceeding under RCFC [52.1] merely restricts the evidence to the agency record. . . .”). Thus, courts must determine whether a party satisfied its burden of proof based on the record. Palantir USG, Inc. v. United States, 904 F.3d 980, 989 (Fed Cir. 2018). IV. DISCUSSION A. Since Mr. Robinson Failed to Provide Reliable, Exculpatory Evidence, the Navy Reasonably Initiated Separation Proceedings for Drug Abuse. First, BCNR upheld the Navy’s finding that sufficient evidence supported Mr. Robinson’s drug abuse charge. AR at 6–8. Based on the evidence presented, the Board held that his commanding offer made a reasonable determination and could infer knowing ingestion of THC. Id. In response, Mr. Robinson raises multiple questions presented in his opening brief that seem to address BCNR’s decision toward his drug charge. Id. at 4–5. Those questions are not answered in his argument section. After reviewing Mr. Robinson’s materials, he appears to devote his entire argument toward establishing his procedural defect claims. ECF No. 23 at 15–18. He does mention NDRB’s conclusion that defendant lacked sufficient evidence to sustain his drug charge. Id. at 16 (citing AR at 69). But instead of reconciling NDRB’s opinion with his drug charge, Mr. Robinson used such statement to reinforce his procedural violation arguments. See id.4 Skeletal arguments, “really nothing more than an assertion, does not preserve a claim.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (citations omitted). This Circuit recognizes that perfunctory and undeveloped arguments may be waived and not considered. SmartGene, Inc. v. Advanced Biological Lab’ys, SA, 555 F. App’x 950, 954 (Fed. Cir. 2014); Fresenius USA, Inc. v. Baxter Int’l, Inc., 582 F.3d 1288, 1296 (Fed. Cir. 2009); Patrick v. Fed. Deposit Ins. Corp., No. 2024-1962, 2026 WL 682235, at *5 (Fed. Cir. Mar. 11, 2026). Indeed, “[j]udges are not like pigs, hunting for truffles buried in briefs.” Dunkel, 927 F.2d at 956. Waived arguments include those first raised in a background section, footnote, or reply brief. See Seventh Dimension, LLC v. United States, 161 Fed. Cl. 110, 129 (2022); United States v. Ford Motor Co., 463 F.3d 1267, 1276–77 (Fed. Cir. 2006). The Court doubts whether Mr. Robinson developed any argument toward this issue. Nonetheless, the Court holds that substantial evidence confirms BCNR’s finding to uphold Mr. Robinson’s drug abuse charge. “Standing alone, a positive urinalysis [test] may be legally sufficient to sustain a conviction for wrongful use of a controlled substance, even in the face of evidence offered by the defense.” Chipimarquez v. United States, No. 24-887C, 2025 WL 2618982, at *9 (Fed. Cl. Sept. 10, 2025) (citing United States v. Hobbs, 62 M.J. 556, 558–59 (A.F. Ct. Crim. App. 2005); United States v. Ford, 23 M.J. 331, 332 (C.M.A. 1987)). In some contexts, a positive result allows corrections boards to infer knowing and wrongful use. See Hodges v. United States, 35 Fed. Cl. 68, 77–78 4 In his reply brief, Mr. Robinson contended that BCNR “arbitrarily concluded that the NDRB had incorrect information to conclude that the evidence was insufficient.” ECF No. 27 at 21. He followed this proposition with “the AR shows that the NDRB received the investigation in question.” Id. Not only does this reasoning fail to qualify as a developed argument, but the Court questions also whether that statement is an argument. 7 (1996); Wade v. United States, 716 F. App’x 943, 947–48 (2017). The Federal Circuit’s decision in Wade proves instructive. There, a servicemember tested positive for cocaine following a urinalysis test and expert confirmation that his medication did not cause that result. Wade, 716 F. App’x at 943–44. At a non-judicial hearing, the servicemember testified that “[he had] not and will not ever use any type of illegal drugs intentionally.” Id. at 944. To support an innocent ingestion theory, he speculated “that he may have unknowingly ingested cocaine because his drink might have been spiked.” Id. Unconvinced, the Federal Circuit concluded that “the factfinder was free to discredit” the innocent ingestion theory because of the servicemember’s positive test and instances of untruthfulness. Id. at 948. His submission of character evidence also failed “to undermine the substantial evidence” that supported his charge. Id. In this case, Mr. Robinson does not challenge the validity of his urinalysis test. See AR at 7, 43–46. Following his test, which “found THC at more than twice the threshold for a positive result,” Mr. Robinson consented to a preliminary investigation. Id. at 7, 30. But he waived “the opportunity to present [sic] further evidence to the OIC” to assist his case. Id. at 30. Instead, Mr. Robinson provided a statement of self-serving testimony that failed to persuade his commanding officer and the separation authority that he unknowingly ingested THC. See id. at 41. Like the servicemember in Wade, Mr. Robinson surmised that his drug use “is without a doubt unintentional and I know I never willingly consumed or inhaled any THC/CBD.” Id. He further attributed his positive test to sharing vape devices with civilians while absolving his military peers of any wrongdoing. Id. at 40–41. On these lines, his “farfetched” explanation alone cannot serve as the only evidence to prove innocent ingestion. Id. at 7. BCNR could also use his untruthfulness when he skipped a mandatory Transition Assistance Program course as bearing on his credibility. Wade, 716 F. App’x at 948; see also AR at 35. Against this evidence, Mr. Robinson’s commanding officer made a reasonable determination based on the investigation and urinalysis test results. Id.; AR at 7. And without reliable exculpatory evidence, BCNR did not err in its conclusion. 5 The Court also agrees with BCNR that Mr. Robinson misplaces his reliance on his investigator’s finding that his “lack of situational awareness and carelessness possibly” caused his exposure to THC. AR at 37 (emphasis added). That statement is taken out of context and disregards the investigator’s conclusion that he was being untruthful about his drug use. Id. at 37. While neither party provides authority regarding NDRB’s persuasive value, BCNR could ignore its adoption of Mr. Robinson’s representations of his investigation. Id. at 68; Wade, 716 F. App’x at 948. Mr. Robinson further takes issue with the preliminary investigator’s “hasty” one-day investigation. ECF No. 23 at 16. But he has not identified what the investigator should have done differently. Again, after waiving his right to present evidence, Mr. Robinson’s statement to the investigator disclaimed his peers from trouble and assigned blame to unidentified civilians. It seems unreasonable for the investigator to track down witnesses who Mr. Robinson refused to 5 Defendant’s brief makes multiple references to Mr. Robinson’s amended complaint when attacking his positions. See generally ECF No. 26. Defendant did not include this pleading in the administrative record which limits this Court’s judicial review. See CW Gov’t Travel, Inc. v. United States, 110 Fed. Cl. 462, 479 (2013). The Court hereby ignores any arguments flowing from his amended complaint or materials outside the record. 8 identify or seek physical evidence that has now disappeared. AR at 7. 6 Under these circumstances, his actions during the investigation also gave the investigator no reason to inquire further. Therefore, the Court holds that Mr. Robinson failed to demonstrate that BCNR erred when the Board determined that adequate evidence supported the Navy’s drug abuse charge against him. B. While the Navy Violated Some of Mr. Robinson’s Procedural Rights, Such Violations Were Harmless. Mr. Robinson next asserts that the Navy failed to comply with numerous regulations that would invalidate his separation. ECF No. 23 at 15–18. He also challenges BCNR’s conclusion that such defects amounted to harmless error. Id. The Court will address each alleged violation in turn. “It is well established that the military departments, like other federal agencies, are bound by their own regulations.” Rogers v. United States, 124 Fed. Cl. 757, 767 (2016) (citing Wagner v. United States, 365 F.3d 1358, 1361 (Fed. Cir. 2004); Service v. Dulles, 354 U.S. 363, 388 (1957)). While Congress gives the United States Armed Forces significant deference “in conducting its affairs, the military is bound to follow its own procedural regulations should it choose to promulgate them.” Fisher v. United States, 402 F.3d 1167, 1177 (Fed. Cir. 2005); see Voge, 844 F.2d at 779 (mandating compliance even if government officials “were not compelled to have them at all.”). Although some claims present justiciability issues, “the test or standards against which this court measures the military’s action are inherent: they are the applicable statutes and regulations.’” Goodwin v. United States, 338 F.3d 1374, 1378 (Fed. Cir. 2003); Lindsay v. United States, 295 F.3d 1252, 1257–58 (Fed. Cir. 2002). However, strict compliance with procedural requirements “is not required where the error is deemed harmless.” Wagner, 365 F.3d at 1361. Under this harmless error standard, two lines of cases stand out. Id. First, matters involving “substantive errors contained in a serviceman’s military record” should be reviewed for harmless error. Id. at 1362. Second, suits alleging “procedural errors regarding the composition of military selection boards” should not apply this standard. Id. Harmless error also does not apply when the “magnitude of the effect of the error on the proceeding defies assessment by a reviewing body.” Id. at 1364. Regardless, a plaintiff must “either make a showing that the defect substantially affected the decision to separate him,” or at least “set forth enough material to impel the court to direct a further inquiry into the nexus between the error or injustice and the adverse action.” Christian v. United States, 337 F.3d 1338, 1343 (Fed. Cir. 2003). 6 Mr. Robinson further contends that BCNR arbitrarily concluded that he covered for his peers “when there is no such evidence.” ECF No. 23 at 17. The Board pulled this conclusion from his investigator’s conclusions and his statement that absolved his military peers of repercussions without any explanation to support his reasoning. 9  1. The Navy did Not Violate MILPERSMAN 1910-146 Because Mr. Robinson Does Not Challenge the Process Under Which His Commanding Officer Reached a Decision. MILPERSMAN 1910-146 provides for mandatory processing should a servicemember receive a positive result for a prohibited substance on a urinalysis test. However, a servicemember may avoid separation proceedings if their positive test arose from administrative errors or unknowing ingestion. This determination is made by a servicemember’s commanding officer. MILPERSMAN 1910-146 at 1. BCNR did not address this regulation in its opinion. But for reasons discussed above, the Court holds that the Navy did not violate MILPERSMAN 1910-146. See AR at 8–9. Mr. Robinson proposes that NDRB’s finding that “the Government did not have sufficient evidence to show intentional ingestion” establishes a violation of MILPERSMAN 1910-146. ECF No. 23 at 16; see AR at 69. In his submissions to BCNR, Mr. Robinson represented that his “preliminary inquiry established that [he] was exposed to THC through lack of situational awareness and carelessness.” AR at 25, 115, 130, 140. He later challenges defendant’s statement of facts that failed to cite this information and that the Board “erroneously noted that the Navy had a zero tolerance for drug use.” ECF No. 27 at 2, 9. None of these arguments address his commanding officer’s decision-making process. In substance, Mr. Robinson attacks the outcome of his commanding officer’s determination rather than the process employed in reaching that decision. See ECF No. 26 at 17–19. However, this Court has already held that BCNR reasonably determined that substantial evidence supported Mr. Robinson’s drug abuse charge. See supra Section IV.A. Since NDRB’s decision came months after his commanding officer’s decision, Mr. Robinson also cannot retroactively cite NDRB’s conclusion that insufficient evidence supported his drug charge either. And the Navy indeed does maintain a zero tolerance policy toward drug use. AR at 219–20. Defendant discusses justiciability issues relating to military pay claims and argued that Mr. Robinson’s “injustice allegations are matters vested solely within the board’s military discretion.” Id. at 12–14. However, the Navy does not identify which of Mr. Robinson’s claims are non- justiciable. Courts typically review the justiciability of military pay claims under RCFC 12(b)(6), not on the administrative record or under RCFC 12(b)(1). See Winston v. United States, 177 Fed. Cl. 304, 318 n. 18 (2025). Procedural violations in which regulations lack objective “tests or standards for the court to apply” are non-justiciable. Antonellis v. United States, 723 F.3d 1328, 1334 (Fed. Cir. 2013) (citations omitted); see also Gilligan v. Morgan, 413 U.S. 1, 5–6, 8 (1973). Here, vesting a commanding officer with discretion to determine whether a positive urinalysis test resulted from administrative error or innocent ingestion does not provide an objective standard that the Court may use. See Driscoll v. United States, 158 Fed. Cl. 399, 409 (2022), opinion supplemented on denial of recons., No. 19-1640, 2022 WL 3330432 (Fed. Cl. Aug. 11, 2022) (finding review of a regulation that gave Army discretion to transfer certain documents based on the best interests of the Army as non-justiciable). In this instance, Mr. Robinson’s procedural violation should be dismissed as non-justiciable. But his flawed argumentation suffices as an independent ground for dismissal of his claim as well. 10  2. The Violation of Mr. Robinson’s Right to Consultation Before Electing His NAVPERS Rights and To Suspend His Separation for Two Days were Harmless. Mr. Robinson also alleges that the Navy violated MILPERSMAN 1910-406 and 1910-408 which “tainted the entire separation process.” ECF No. 27 at 18; ECF No. 23 at 15–16. Under MILPERSMAN 1910-406, a servicemember may consult with counsel before electing their rights when facing separation proceedings. In connection with this right, MILPERSMAN 1910-408 grants active duty servicemembers a minimum of two days to respond to a notice of processing. NAVPERS 1910-31 incorporates these provisions by advising that separation proceedings will be suspended for two days to allow servicemembers time to exercise their rights. AR at 34. According to Mr. Robinson, Legal Chief Nunn’s actions prevented him from consulting with an attorney before electing his rights. ECF No. 23 at 16. 7 BCNR conceded that the Navy violated MILPERSMAN 1910-406, but that such error was harmless. AR at 8–9, 16. At the same time, the Board rejected Mr. Robinson’s argument that the Navy violated MILPERSMAN 1910- 408 because nine days passed between his notification of separation and further action of his processing. Id. at 8–9. Put differently, the Navy erred by failing to provide Mr. Robinson with the right to consult with counsel, not two days to respond to his notification of separation. Id. at 9. Regarding MILPERSMAN 1910-406, the Court agrees with BCNR that any error by the Navy was harmless because it did not deprive Mr. Robinson of his substantive rights available under NAVPERS. AR at 8. Under the harmless error standard, this Court cannot void a separation based on the mere existence of a procedural violation. Without further explanation, the fact that Mr. Robinson did not speak to Lt. Mehra until after Chief Nunn signed his NAVPERS form does not establish that the separation authority would have reached a different conclusion. Christian, 337 F.3d at 1343. BCNR’s determination that the Navy did not violate MILPERSMAN 1910-408 presents a closer call. Because nine days elapsed between his notification of separation and further action being taken, the Navy provided Mr. Robinson with more time than the two-day minimum under MILPERSMAN. Id. at 9. However, it remains undisputed that the Navy did not give him any time to elect his NAVPERS rights. Any subsequent invocation of Mr. Robinson’s NAVPERS rights does not excuse the Navy’s failure for not suspending his separation proceedings for two days. Thus, BCNR erred in determining that the Navy did not violate MILPERSMAN 1910-408. Regardless, Mr. Robinson does not elaborate how delaying his separation from February 15, 2022, to February 17, 2022, would have substantially affected the separation board’s decision with respect to time. Instead, he appears to take issue with his rights under NAVPERS 1910-31 (discussed below), not that he lost two days to decide whether to elect those rights. Without further analysis, his argument amounts to a speculative and conclusory assertion. Therefore, the Court finds that BCNR maintained a rational basis in finding that the Navy’s violation of MILPERSMAN 1910-406 was harmless error. The Court also concludes that BCNR erred in finding that no violation of MILPERSMAN 1910-408 occurred, but that procedural defect was also harmless. 7 By contrast, defendant seems to advance that MILPERSMAN 1910-406 provides a narrower right than what Mr. Robinson asserts. ECF No. 26 at 24–26. Since the real issue for this claim revolves around the timing of electing rights as opposed to the scope of representation, the Navy’s argument is inapposite. 11  3. Chief Nunn Did Not Waive Mr. Robinson’s Rights and Mr. Robinson Invoked, or Took Steps to Invoke, His Rights Under NAVPERS. Mr. Robinson then alleges that he could not invoke his NAVPERS rights because Legal Chief Nunn wrote “member refused to sign” on his form without his consent. ECF No. 23 at 15– 16; see also AR at 9, 33, 147, 150. But for that error, Mr. Robinson contends that he would have been able to submit responses and review evidence that would be used against him. ECF No. 23 at 16; ECF No. 27 at 22. 8 Nonetheless, BCNR held that Chief Nunn’s actions “ultimately had no adverse effect upon [his] ability to exercise those rights.” Id. at 9. Instead, Mr. Robinson waived