Sparks v. United States

In the United States Court of Federal Claims No. 25-48C Filed: February 28, 2026 Reissued for Publication: May 15, 20261 * * * * * * * * * * * * * * * DANIEL B. SPARKS, * Plaintiff, * v. * UNITED STATES, * Defendant. * * * * * * * * * * * * * * * * Wojciech Z. Kornacki, Pentagon Law Office, Washington, DC, for plaintiff. William P. Rayel, Senior Trial Counsel, Department of Justice, Commercial Litigation Branch, Civil Division, Washington, DC, for defendant. With him were Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Patricia M. McCarthy, Director, Commercial Litigation Branch, and Brett A. Shumate, Assistant Attorney General, United States Department of Justice, Washington, DC. Lieutenant Carlos A. Pagán, Office of the Judge Advocate General, United States Navy, General Litigation Division, Washington, DC, of counsel. OPINION HORN, J. On January 13, 2025, plaintiff, Daniel B. Sparks, a retired United States Marine Corps field grade officer, filed a complaint against the United States in the United States Court of Federal Claims. Plaintiff seeks review of a February 24, 2023 decision by the Board for Correction of Naval Records (BCNR) which upheld the reduction in his retired pay grade from Lieutenant Colonel (Pay Grade O-5) to Major (Pay Grade O-4), and an Other Than Honorable characterization of service. Plaintiff asks this court to set aside the BCNR decision, correct plaintiff’s military records and “that the judgment be entered against Defendant to the maximum amount allowed by law.” Plaintiff asserts that this court has jurisdiction over his complaint pursuant to 10 U.S.C. § 1370 (2024) and the Tucker 1 This Opinion was issued under seal on February 28, 2026. The parties were asked to propose redactions prior to the public release of the Opinion. This Opinion is issued without redactions as the parties filed a submission with the court indicating the parties “have no proposed redactions to the Court’s February 28, 2026 opinion.” Act, 28 U.S.C. § 1491 (2024). The parties have filed and fully briefed cross-motions for judgment on the Administrative Record and oral argument on the cross-motions for judgment on the Administrative Record was held. FINDINGS OF FACT According to the Administrative Record in the above captioned case, plaintiff Sparks enlisted in the United States Marine Corps on March 25, 1987 and was commissioned as an officer in the United States Marine Corps Reserve on March 17, 1995. On May 1, 2011, he was promoted to the rank of Lieutenant Colonel in the Marine Corps Reserve. Throughout plaintiff’s service in the Marine Corps Reserve, he “was periodically activated.” According to plaintiff’s “Certificate of Release or Discharge from Active Duty,” between 2013 and 2016, plaintiff was on active duty from May 13, 2014 to November 8, 2014 and from April 16, 2016 to August 14, 2016. According to plaintiff’s testimony at a Board of Inquiry, discussed below, in 2013 plaintiff was a member of the Individual Ready Reserve, and went to Korea where he participated in a command post exercise for approximately 45 days. Plaintiff also had civilian employment working as a project manager for a civilian contracting firm that was providing services to the “Joint IED Defeat Organization.”2 At his Board of Inquiry, plaintiff testified that he was mobilized to go on active duty at the Marine Forces Reserve Headquarters into the G3 section in New Orleans in March 2014. In plaintiff’s testimony at the Board of Inquiry, plaintiff stated that in 2015, he returned to Northern Virginia and was employed as a general manager for an aviation catering company.3 From June 2015 to January 2016, plaintiff worked as a project 2 At his Board of Inquiry, plaintiff testified the name of the organization also was called the “Joint Improvised Explosive Device Organization.” 3 Plaintiff’s testimony at the Board of Inquiry included the following exchange with counsel: Q. So I want to move into 2015 please. Tell us, did your New Orleans assignment transition into 2015 or was it over by then? A. My New Orleans assignment transitioned into 2015. Q. When the New Orleans assignment was complete, what was the next thing that you did work wise, either civilian or in the Marine Corps? A. The orders ended. I returned to Northern Virginia. I searched and I found job as a general manager for an aviation catering company. I was sought out to do that and that was located at Dulles Airport. Q. And did you have that employment throughout 2015? A. I did not have that employment throughout 2015. 2 manager for a firm providing IT support and services to the National Reconnaissance Office. In early 2016, plaintiff moved to Japan, and he went on active duty with III Marine Expeditionary Force G6 in Okinawa in February 2016.4 Between June 2, 2016 and June 8, 2016, plaintiff took emergency leave from Japan because one of his sons was hospitalized in Virginia. Plaintiff also went back to Virginia from June 16, 2016 to June 25, 2016 to be with his son, to spend Father’s Day with his children and his father, to attend mediation and marriage counseling, and to attend a government conference, after which he returned to Japan. Plaintiff left active duty while in Japan in March 2017, but stayed on in an IMA (Individual Mobilization Augmented) billet until October 2018. Plaintiff then moved to Abu Dhabi, where he lived from March 2017 to March 2018 and worked with Knowledge Point as the maritime subject matter expert on communications. According to plaintiff, in 2008, plaintiff and his then-spouse, Tracy Sparks, adopted their daughter AS,5 who suffered from a medical condition leading her to be overly active and engage in impulsive behaviors. Subsequently, AS also was diagnosed with Attention- Deficit/Hyperactivity Disorder and other medical conditions. At the time, plaintiff and Tracy Sparks had two biological sons together, “DS” and Korben Sparks. During the adoption process, it was discovered that their adoptive daughter AS had previously accused her biological mother’s boyfriend of abuse and that she had engaged in sexually inappropriate behavior toward one of their two sons. According to plaintiff, he and Tracy Sparks discovered that AS watched a lot of pornography online. The Sparks family also discovered that AS posted oversexualized pictures of herself on Instagram, and listed herself on a dating site. Plaintiff claims AS told plaintiff that she looked a lot older than her age. In 2014, plaintiff and Tracy Sparks separated, and, in 2016, they initiated divorce proceedings. Plaintiff contends that by July 2016, Tracy Sparks told the children that she and plaintiff would get divorced and the children would have to relocate to Japan with plaintiff because the children “were stressing her out.” Q. Was there point time when it ended -- well, when it ended what did you do? A. I left that position when I was selected by a firm to work at the National Reconnaissance Office. I was a project manager for a firm providing IT support and services to NRO. I started that job in 2015, and I was at that civilian job until 2016 when I went back to III MEF in Okinawa on active-duty orders. 4 Plaintiff’s motion for judgment on the Administrative Record states that in Japan, “he drilled in a Reserve unit two days a month.” 5 Throughout the Administrative Record, the Sparks’ adopted daughter is addressed as “AS,” “A.S.,” “Miss ARS,” “ARS,” and “A[redacted].” Unless in quotations, which remain unchanged, this Opinion refers to the Sparks’ adopted daughter as “AS.” 3  On July 6, 2016, according to the June 8, 2018 Commanding General, III Marine Expeditionary Force’s Report of Misconduct, discussed below, plaintiff’s adopted daughter AS reported to her mother that her father plaintiff Sparks had been touching her inappropriately on various occasions over a nearly three-year period. AS informed her mother that the last attempted act occurred in June 2016 when plaintiff was home on leave from Japan. On July 8, 2016, AS’s mother reported the allegations to the Fairfax County, Virginia, Child Protective Services. The Fairfax County, Virginia, Police Department assumed lead agency responsibilities, with the Naval Criminal Investigative Service (NCIS) providing limited assistance. On July 21, 2016, AS participated in a forensic interview. According to the Report of Misconduct, during the interview, AS made numerous allegations against plaintiff for conduct when AS was between 12 and 15 years old. The Fairfax County, Virginia, Police Department placed telephone calls to plaintiff in order to confront plaintiff with the allegations. In September 2016, the Deputy Commonwealth Attorney of Fairfax County declined to prosecute the case. Thereafter, the NCIS assumed lead agency responsibilities. On October 6, 2016, Fairfax County, Virginia, Child Protective Services “determined that a preponderance of the evidence— gathered pursuant to the agency’s administrative investigation—established that Lieutenant Colonel Sparks had sexually abused Miss ARS, a Serious/Level One finding.” On September 18, 2017, the NCIS completed their investigation and forwarded the results of their investigation to the headquarters of the Commanding General, III Marine Expeditionary Force. On September 27, 2017, the Commanding General, III Marine Expeditionary Force directed that charges be preferred, ordered an Article 32, UCMJ preliminary hearing, and requested from the Secretary of the Navy authority to recall plaintiff involuntarily to active duty. On December 15, 2017, the Secretary of the Navy approved this request. Plaintiff was recalled to active duty and the charges were issued on February 27, 2018. Plaintiff was charged with violating the Uniform Code of Military Justice (UCMJ) between September 1, 2013 and June 30, 2016. Specifically, plaintiff was charged with violating UCMJ Articles 80, 120, and 133. After a preliminary hearing on April 10, 2018, “the Preliminary Hearing officer determined probable cause existed and recommended trial by general court-martial” on April 20, 2018. The Commanding General, III Marine Expeditionary Force referred the charges to a general court-martial on May 10, 2018, and plaintiff was arraigned on May 29, 2018. On June 8, 2018, the Commanding General, III Marine Expeditionary Force, “directed that the referred charges be withdrawn and dismissed, without prejudice.” The Commanding General, III Marine Expeditionary Force, stated in the Report of Misconduct that the “seriousness of Lieutenant Colonel Sparks’ misconduct unquestionably warrants trial by general court-martial. However, significant issues arose after the Article 32 hearing which make [sic] the officer’s amenability to court-martial jurisdiction unlikely.” (alteration added). On June 8, 2018, the Commanding General, III Marine Expeditionary Force sent a Report of Misconduct regarding plaintiff to the Deputy Commandant for Manpower and Reserve Affairs, and requested that the Deputy Commandant for Manpower and Reserve Affairs do the following: exercise your authority as the Show Cause Authority for the Marine Corps and direct that: 4  a. A Board of Inquiry (BOI) be convened to recommend whether Lieutenant Colonel Sparks should be involuntarily retired from the Marine Corps for misconduct (including those military offenses contained in enclosure (5), Article 133, UCMJ, and any other qualifying military offense you deem appropriate) and moral dereliction; and, b. The BOI be authorized to make a characterization of service recommendation, with the least favorable characterization of service being Under Other Than Honorable Conditions, if involuntary retirement is recommended by the board. Plaintiff acknowledged receipt of the Report of Misconduct on the same day, in an “Acknowledgement of Receipt of Report of Misconduct and Inclusion of Adverse Material in Official Military Personnel File,” and selected the option: “I do not desire to submit a statement and understand that this letter will be included in my OMPF [Official Military Personnel File] if DC M&RA [Deputy Commandant for Manpower and Reserve Affairs] elects to include the adverse material in my OMPF.” (alteration added). On September 24, 2018, the Deputy Commandant for Manpower and Reserve Affairs directed the Commanding General, III Marine Expeditionary Force, to convene a Board of Inquiry (BOI) for a recommendation as to whether Lieutenant Colonel Sparks should be involuntarily retired from the Marine Corps and, if retirement is recommended, whether Lieutenant Colonel Sparks should be retired in his current grade or a lesser grade, as well as a recommendation as to characterization of service, with the least favorable characterization being Under Other Than Honorable Conditions. . . . The specific reasons for separation to be considered by the Board [Board of Inquiry] are misconduct and moral dereliction as evidenced by the following: misconduct and moral dereliction as evidenced by the following: a. Commission of a military offense which could be punished by confinement of six months or more, or any other misconduct which would require specific intent for conviction—specifically, Articles 80 (Attempt to commit rape of a child who has attained the age of 12 years old), 120b (Rape by force of a child who has attained the age of 12 years old), and 133 (Conduct unbecoming an officer), UCMJ. b. Sexual perversion. (alteration and omission added). The alleged commission of a military offense which could be punished by confinement of six months or more or sexual perversion, which the Board of Inquiry considered were: 5 a. Violations of Article 80, UCMJ. (1) Specification 1: [Attempt to Commit Rape by force of a child who has attained the age of 12, 120b(a) (2)] Between on or about 1 June 2016 and on or about 30 June 2016, at or near Centerville, VA, U.S. Marine LtCol Daniel Sparks attempted to commit sexual acts upon Ms. ARS, a child who had attained the age of 12, but had not attained the age of 16, by attempting to use force against Ms. ARS to penetrate her mouth and vulva with a part of his body, with the intent to arouse and gratify his own sexual desire. (2) Specification 2: [Attempt to Commit Sexual Assault of a child who has attained the age of 12 involving penetration of vulva or anus or mouth by any part of the body or any object, 120b(b)] Between on or about 1 June 2016 and on or about 30 June 2016, at or near Centerville, VA, U.S. Marine LtCol Daniel Sparks attempted to commit sexual acts upon Ms. ARS, a child who had attained the age of 12, but had not attained the age of 16, by attempting to penetrate her mouth and vulva with a part of his body, with the intent to arouse and gratify his own sexual desire. (3) Specification 3: [Attempt to Commit Sexual Abuse of a child by sexual contact involving the touching of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, 120b(c)] Between on or about 1 June 2016 and on or about 30 June 2016, at or near Centerville, VA, U.S. Marine LtCol Daniel Sparks attempted to commit sexual acts upon Ms. ARS, a child who had attained the age of 12, but had not attained the age of 16, by attempting to touch Ms. ARS’s breasts and genitalia, with the intent to arouse and gratify his own sexual desire. b. Violations of Article 120b, UCMJ. (1) Specification 1: [Rape by force of a child who has attained the age of 12, 120b(a) (2)] On divers occasion between on or about 1 September 2013 and on or about 30 June 2016, at or near Centerville, VA, U.S. Marine LtCol Daniel Sparks committed sexual acts upon Ms. ARS, a child who had attained the age of 12, but had not attained the age of 16, by using force against Ms. ARS to penetrate her vulva with his finger, with the intent [sic] arouse and gratify his own sexual desire. (2) Specification 2: [Rape by force or [sic] child who has attained the age of 12, 120b(a) (2)] On divers occasion between on or about 1 September 2013 and on or about 30 June 2016, at or near Centerville, VA, U.S. Marine LtCol Daniel Sparks committed sexual acts upon Ms. ARS, a child who had attained the age of 12, but had not attained the age of 16, by using force against Ms. ARS to penetrate her vulva with his tongue, with the intent [sic] arouse and gratify his own sexual desire. 6  (3) Specification 3: [Rape by force or [sic] child who has attained the age of 12, 120b(a) (2)] On divers occasion between on or about 1 September 2013 and on or about 30 June 2016, at or near Centerville, VA, U.S. Marine LtCol Daniel Sparks committed sexual acts upon Ms. ARS, a child who had attained the age of 12, but had not attained the age of 16, by using force against Ms. ARS to penetrate her mouth with his finger, with the intent [sic] arouse and gratify his own sexual desire. (4) Specification 4: [Sexual assault of a child who has attained the age of 12 involving penetration of vulva or anus or mouth by any part of the body or any object, 120b(b)] On divers occasion between on or about 1 September 2013 and on or about 30 June 2016, at or near Centerville, VA, U.S. Marine LtCol Daniel Sparks committed sexual acts upon Ms. ARS, a child who had attained the age of 12, but had not attained the age of 16, by penetrating Ms. ARS’s vulva with his fingers, with an intent to arouse and gratify his own sexual desire. (5) Specification 5: [Sexual assault of a child who has attained the age of 12 involving penetration of vulva or anus or mouth by any part of the body or any object, 120b(b)] On divers occasion between on or about 1 September 2013 and on or about 30 June 2016, at or near Centerville, VA, U.S. Marine LtCol Daniel Sparks committed sexual acts upon Ms. ARS, a child who had attained the age of 12, but had not attained the age of 16, by penetrating Ms. ARS’s vulva with his tongue, with an intent to arouse and gratify his own sexual desire. (6) Specification 6: [Sexual assault of a child who has attained the age of 12 involving penetration of vulva or anus or mouth by any part of the body or any object, 120b(b)] On divers occasion between on or about 1 September 2013 and on or about 30 June 2016, at or near Centerville, VA, U.S. Marine LtCol Daniel Sparks committed sexual acts upon Ms. ARS, a child who had attained the age of 12, but had not attained the age of 16, by penetrating Ms. ARS’s mouth with his fingers, with an intent to arouse and gratify his own sexual desire. (7) Specification 7: [Sexual abuse of a child by sexual contact involving the touching of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, 120b(c)] On divers occasion between on or about 1 September 2013 and on or about 30 June 2016, at or near Centerville, VA, U.S. Marine LtCol Daniel Sparks committed lewd acts upon Ms. ARS, a child who had attained the age of 12, but had not attained the age of 16, by intentionally and directly touching Ms. ARS’s breasts and genitalia, with an [sic] intent to arouse and gratify his own sexual desire. (8) Specification 8: [Sexual abuse of a child by sexual contact involving the touching of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, 120b(c)] On divers occasion between on or about 7  1 September 2013 and on or about 30 June 2016, at or near Centerville, VA. U.S. Marine LtCol Daniel Sparks committed lewd acts upon Ms. ARS, a child who had attained the age of 12, but had not attained the age of 16, by intentionally causing Ms. ARS to directly touch his penis, with an intent to arouse and gratify his own sexual desire. (9) Specification 9: [Sexual abuse of a child by sexual contact involving the touching of any body part, 120b(c)] On divers occasion between on or about 1 September 2013 and on or about 30 June 2016, at or near Centerville, VA, U.S. Marine LtCol Daniel Sparks committed lewd acts upon Ms. ARS, a child who had attained the age of 12, but had not attained the age of 16, by intentionally kissing, hugging, and grinding on Ms. ARS, with an intent to arouse and gratify his own sexual desire. c. A violation of Article 133, UCMJ. Specification: [Conduct unbecoming an officer and a gentleman] On divers occasion between on or about 1 September 2013 and on or about 30 June 2016, at or near Centerville, VA, U.S. Marine LtCol Daniel Sparks sexually abused his adopted daughter, Ms. ARS, a child who had attained the age of 12, but had not attained the age of 16, and that, under the circumstances, these acts constituted conduct unbecoming an officer and a gentleman. (alterations in original except for [sic]). According to the transcript of the Board of Inquiry proceedings, during the Board of Inquiry, an Assistant Recorder explained that the three Article 80 violations are “charged in the alternative,” such that the members of the Board of Inquiry could only substantiate one Article 80 violation. Also, according to the transcript of the Board of Inquiry proceedings, an Assistant Recorder explained that Article 120b Specifications 1 through 3 are alternatives of 4 through 6. On October 29, 2018, the Commanding General, III Marine Expeditionary Force sent a letter notifying plaintiff about the Board of Inquiry. Plaintiff acknowledged this notification on November 13, 2018. The Board of Inquiry was convened from December 19, 2018 to December 20, 2018. Regarding the composition of the Board of Inquiry, at the beginning of the proceeding, the Recorder6 stated that “[t]he following member is a reserve officer as is the respondent, Colonel Sean W. Maita.” (alteration added). During voir dire of the members of the Board of Inquiry, Colonel Maita stated “[m]y current billet is the director of the Office of Marine Forces Reserves and it’s up at the Naval Support 6 According to Department of Defense Instruction 1332.30, Section 5.3: “The government may be represented before the board [BOI] by a recorder whose duties will be prescribed by the Secretary of the Military Department concerned.” Department of Defense Instruction 1332.30 § 5.3 (May 11, 2018) (alteration added). 8 Facility in Arlington.” (alteration added). Plaintiff’s then civilian counsel7 did not question Colonel Maita during voir dire and made no challenges before starting the proceeding. During opening statements, the Recorder and plaintiff’s civilian counsel referenced the issue of personal jurisdiction. The Recorder stated: After the report [of plaintiff’s sexual abuse of AS] was made, Fairfax County decided to not prosecute, and declined prosecution for this case. Following that decision, the Marine Corps, after referring charges and arraigning the respondent, determined that the evidence was insufficient to prove beyond a reasonable doubt that jurisdiction existed under the Uniform Code of Military Justice, and those charges were withdrawn, meaning there was insufficient evidence to show that the respondent was on active duty during the time of the charged offenses. And so those charges were withdrawn. Procedurally, the case then proceeded to a report of misconduct with the recommendation for a board of inquiry, which ultimately led to us being here today. (alteration added). In his opening statement, plaintiff’s civilian counsel stated plaintiff was on an Individual Mobilization Augmented billet in Okinawa, so General Nicholson directed an Article 32 investigation. You may be familiar with this if you’ve been in a court. You have some idea of this. Colonel Jim Bartolotto, senior Marine Corps judge advocate, smart guy, was given most of what you have minus the SRB [Selective Retention Bonus] stuff, essentially. He - - I will tell you he recommended trial, and he identified that there were some jurisdictional issues, but one of his recommendations was very solid. There is jurisdiction over some of these charges just not all of them. I’m not going to - - I’m going to try to avoid lawyering you on this because this issue is about your status when you are a reserve officer whether you are on orders, IMA, ADT [Active Duty Training], whatever. Okay. So I just want to make that clear is - - he, in fact, determined there would be jurisdiction on some of those charges. (alterations added). During the proceeding, the Board of Inquiry members heard testimony from AS, Maria Bonilla,8 the forensic interview specialist who had interviewed AS, plaintiff, and 7 Plaintiff’s civilian counsel before the Board of Inquiry also represented plaintiff when plaintiff applied to the BCNR. Plaintiff’s is represented by different counsel in this court . 8 Ms. Bonilla worked for Safe Spot Children’s Advocacy Center, and Ms. Bonilla testified at the Board of Inquiry that AS’s case “was referred to my center [Safe Spot Children’s Advocacy Center] by Fairfax County Police Department and Fairfax County Child Protective Services.” (alteration added). 9 Tracy Sparks.9 The Board of Inquiry watched recordings of AS’s forensic interview, heard telephone calls from the Fairfax County, Virginia, Police Department to plaintiff, and heard a recording of the NCIS interrogation of plaintiff. The Board of Inquiry also reviewed a series of exhibits.10 After receiving all of the testimony and exhibits, but before the Board of Inquiry deliberated, the Senor Board Member asked if either side had any objections, the Reporter stated: “Thank you, sir. No objections,” and plaintiff’s civilian counsel stated: “Yeah. I’m fine. Thank you.” After deliberating on December 20, 2018, the Senior Board Member of the Board of Inquiry announced the findings and recommendations of the Board of Inquiry: The Board [of Inquiry] found that a preponderance of the evidence proved the acts alleged in violation of Article 120b Specifications 1, 2, 3, 7, 8, and 9 A discussion of infidelity arose during Tracy Sparks’ testimony. During direct examination by the Assistant Recorder, Tracy Sparks testified: “I found out about things that caused the divorce in 2010, infidelity.” There was also a discussion during cross examination by plaintiff’s civilian counsel: Q. [Plaintiff’s civilian counsel] Okay. I think I may have misheard you. I think you said that you wanted to get divorced because of infidelity; is that right? A. [Tracy Sparks] Infidelity, anger management, financial issues, there was a lot of - - it just seemed irreconcilable at the time. Q. Okay. A. We tried for four years, and, you know, you could forgive that, the infidelity and work through those issues, but abusing a child is unforgivable. Q. Okay. And the infidelity would be mutual? A. Later, yes, But no. Initially it was his from - - he told me that. He owned up to all of that in 2010. So there was never an issue of whether not infidelity occurred. Q. Did you own up to yours? A. Mine was not until later. Yes. I did. (alterations added). 10 The exhibits before the Board of Inquiry included the Board of Inquiry direction letter; the Board of Inquiry notification letter; the Board of Inquiry appointment letter; the June 8, 2018 Report of Misconduct; the Department of Special Services Individual Education Program for AS; a diagnosis for AS; and plaintiff’s official military profile. 10  9, and in violation of Article 133, UCMJ. The Board [of Inquiry] found that the acts alleged in violation of Article 80, and the acts alleged in violation of Article 120b Specifications 4, 5, and 6, were not substantiated. In light of these findings, the Board [of Inquiry] found that both specific reasons for separation, detailed in paragraph 4 above, were supported by the evidence. (alterations added). “The Board [of Inquiry] recommended that the respondent be retired in the lesser grade of Major/O-4” and “that the respondent’s service be characterized as Other Than Honorable.” (alteration added). On March 13, 2019, the Senior Board Member of the Board of Inquiry sent these findings and recommendations to the Secretary of the Navy in a Report of the Board of Inquiry. During the announcement of the Board of Inquiry’s findings and recommendations, and in the Senior Board Member’s Report of the Board of Inquiry, the Senior Board Member of the Board of Inquiry stated: “The Board [of Inquiry] did not consider any preservice misconduct.” “The Board [of Inquiry] did not consider misconduct identified more than five years prior to the initiation of processing for retirement.” “There is no minority report.” (alterations added). On April 9, 2019, plaintiff acknowledged receipt of the Report of the Board of Inquiry and that the Report of the Board of Inquiry would be “forwarded to the Deputy Commandant, Manpower and Reserve Affairs (DC M&RA) for a decision on whether the material will be included in my Official Military Personnel File (OMPF).” Plaintiff did not submit a statement in response to the Board of Inquiry’s Report. The Commanding General, III Marine Expeditionary Force endorsed the Report of the Board of Inquiry on May 8, 2019. The Commandant of the Marine Corps also endorsed the Report of the Board of Inquiry, as indicated by a memorandum signed by the Deputy Commandant for Manpower and Reserve Affairs. On November 22, 2019, the Assistant Secretary of the Navy, Manpower and Reserve Affairs approved the Commandant of the Marine Corps’ endorsement memorandum. In a March 31, 2020 memorandum, plaintiff was notified that “[t]he Assistant Secretary of the Navy, in reference (a) [JPL Memo of 22 Nov 2019], directed your involuntary retirement with an Other Than Honorable characterization of service and in the lesser-grade of major.” (alterations added). Plaintiff was involuntarily transferred to the Retired Reserve Awaiting Pay at Age Sixty, effective April 1, 2020, and was involuntarily retired in the rank of Major on August 16, 2022. Subsequently, plaintiff received a Certificate of Retirement, dated August 16, 2022, reflecting that he was honorably retired in the rank of Lieutenant Colonel. Defendant contends that “[t]his certificate was issued in error, as Major Sparks’ retired rank was reduced to Major, and his characterization of service is Other Than Honorable.”11 (alteration added). 11 On his Department of Defense Form 149 (Application for Correction of Military Record) (DD Form 149), dated August 16, 2022, plaintiff checked the box indicating that his characterization of service was “Honorable.” In addition, in the section titled “Additional Remarks/Continuation of Information,” Plaintiff stated “[i]n 2018, the Board of Inquiry recommended Lt Col (ret.) Sparks for separation with an other than honorable characterization of service, but he recently received a certificate of honorable retirement. 11  In August 2022, 12 plaintiff submitted to the BCNR an “Application for Correction of Military Record,” requesting that the BCNR “1) set aside his retirement in pay grade of O- 4; 2) retire Lt Col (ret.) Sparks in the pay grade of O-5; and 3) correct all other military records.” Plaintiff contended: The corrections should be made because Lt Col (ret.) Sparks qualifies to retire in the rank of O-5. Lt Col (ret.) Sparks asserts that his Board of Inquiry was improperly constituted because the only reserve officer board member (Col Maita) was ‘the director of the Office of Marine Forces Reserves’ which suggests that he was an active reserve officer on full time status. In addition, Lt Col (ret.) Sparks was not allowed to request a minority member, the allegations were not supported by the evidence, and reducing him in rank is unjust and unfair. In his application to the BCNR, plaintiff argued that he qualified for retirement in the rank of lieutenant colonel because: Secretary of the Navy Instruction (SECNAVINST) 1920.6C13 states “that the Board of Inquiry is required to recommend the grade in which the officer last served satisfactorily for a period of not less than 6 months.” Plaintiff claimed that he “was promoted to the rank of Lt Col. on 1 May 2011. He was honorably retired 16 August 2022,” and, therefore, plaintiff has “served for over 3 years in the grade of O-5 and is eligible to retire in that rank for pay purposes.” Additionally, plaintiff argued that the Board of Inquiry was not properly composed. Plaintiff stated that “SECNAVINST 1920.6C requires that in the cases of Reserve commissioned officers, at least one member be a Reserve Officer,” however, plaintiff argued that “the recorder presented Col Sean W. Maita as a Reserve officer.” Plaintiff stated that “it appears Col Maita served in full-time status or active Reserve because he explained that his current billet was the Director of Lt Col (ret.) Sparks did not receive a final DD Form 214.” (alteration added). In his written petition to the BCNR, citing to an exhibit he had submitted which contained a copy of his Certificate of Honorable Discharge, plaintiff stated that “he has been honorably retired from the U.S. Marine Corps on 16 August 2022.” In an Advisory Opinion dated November 22, 2022, the Head of the Marine Corps Military Personnel Branch wrote “Applicant’s retirement certificate contains obvious administrative errors (which inure to his benefit). He was not honorably retired as a lieutenant colonel, as the certificate states—he was retired in the lesser grade of major with an other than honorable characterization of service.” 12 The Advisory Opinion from the Head of the Marine Corps Military Personnel Branch states the petition to the BCNR was filed on August 16, 2022, and the application itself is dated August 16, 2022. Plaintiff’s response to the Advisory Opinion, and the BCNR’s letter acknowledging receipt of plaintiff’s application, however, state that plaintiff submitted his application on August 25, 2022. 13 Throughout this Opinion, the court will reference Secretary of the Navy Instruction (SECNAVINST) 1920.6C (Aug. 26, 2015), which is the applicable regulation in place at the time of plaintiff’s separation proceedings. 12 the Office of Marine Forces Reserves, at the Navy Support Facility in Arlington.” Plaintiff argued “[b]ecause it appears that the only ‘Reserve’ officer was in full time status / active Reserve and not in Reserve officer status – like Lt Col (ret.) Starks [sic], his rights were violated and the BOI was improperly convened.” (alterations added). Plaintiff also contended that he was denied due process because there were no minority members present at his Board of Inquiry. As described below, the Administrative Record does not reflect that plaintiff requested a minority member as part of his Board of Inquiry. Plaintiff also argued to the BCNR that the Board of Inquiry made arbitrary and capricious findings that were not supported by the evidence, specifically that the Board of Inquiry erred because there was no evidence to corroborate the allegations of misconduct between 2013 and 2016. Plaintiff argued that there were no eyewitness corroborations of the allegations. Plaintiff also stated that AS also alleged that Tracy Sparks was in the house when AS claimed she was assaulted, but Tracy Sparks did not hear anything.” Plaintiff also stated that “Tracy, DS, and Korben [AS’s two brothers] never observed any questionable activity and AS never told them about anything – until she was told that she would have to relocate.” (alteration added). Plaintiff cited to seven declarations written in support of plaintiff and said “[n]one of the numerous individuals who visited the house, babysat AS, and otherwise interacted with her and other family members observed any suspicious activity.” (alteration added). In addition, plaintiff contended that “AS only made the allegation after she was told that she would have to relocate due to the divorce proceedings. She never told her therapist about them.” Plaintiff also contended that: ”During the NCIS investigation, Agent Dittmer pointed out that AS was in trouble with her parents and only made the allegation when she seemed to perceive that based on the divorce she would have to move out from the house and live with Lt Col (ret.) Sparks.”14 Plaintiff also argued Fairfax Count [sic] Deputy Commonwealth Attorney declined prosecution based on lack of any corroborating evidence.” (alteration added; footnotes added).15 Furthermore, plaintiff contended that the Board of Inquiry “never considered the 14 The August 8, 2016 email was sent from Detective Patrick Dittmer, Major Crimes Division, Criminal Investigation Bureau, Fairfax, Virginia, with the subject line “[Non-DOD Source] Re: Interview of Suspect Sparks.” It states: Like I told SA McMains and others I’ve spoken too [sic]. The alleged victim was in trouble with her parents before [sic] This caused the mother to say that the kids had to go with her father she’s too stressed out that is when the disclosure came out. The daughter said something like she didn’t want to go with dad. Is this because she was in fact abused or did she say the allegation because she didn’t want to go with dad. Albeit they were still in the same house. (alterations added). 15 The excerpt cited by plaintiff from the NCIS entry states: “On 09Sep16, Katherine E. STOTT, Deputy Commonwealth Attorney of Fairfax (VA) County, CIV declined to prosecute due to the lack of corroborating evidence; Exhibit (3) pertains.” 13 substantial evidence of AS’s oversexualization. The evidence shows that AS molested DS, made unsupported allegations against her mother’s boyfriend, posted sexualized pictures on Instagram, watched sexual acts on Pornhub and other pornographic websites, and had to be send [sic] to a special camp to correct her behavior.” (alteration added). Plaintiff argued that “[a]ll this evidence suggests that AS’s allegation and the timing of it is not credible.” (alteration added). Finally, plaintiff argued that the interests of justice and equity strongly suggest that plaintiff should be retired in the pay grade of O-5. Plain