Free Cross Motion [Dispositive] - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) MARIO R. LOPEZ-VELAZQUEZ, ) ) Plaintiff, ) ) No. 05-410C v. ) ) (Chief Judge Damich) THE UNITED STATES, ) ) Defendant. ) __________________________________________)

DEFENDANT'S MOTION TO DISMISS, CROSS MOTION FOR JUDGMENT UPON THE ADMINISTRATIVE RECORD, AND RESPONSE TO PLAINTIFF'S MOTION TO REMAND

JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director TODD M. HUGHES Deputy Director OF COUNSEL: Major Thomas R. Uiselt Air Force Legal Operations Agency Air Force Military Personnel Litigation Branch 1501 Wilson Bld., 7th Floor Arlington, VA 22209 MICHAEL J. DIERBERG Trial Attorney Department of Justice Civil Division Commercial Litigation Branch 1100 L. Street, NW Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tel: (202) 353-0536 Fax: (202) 305-7643 Attorneys for Defendant

February 27, 2008

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TABLE OF CONTENTS PAGE(S) STATEMENT OF FACTS & PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 I. Mr. Lopez-Velazquez Has A High Hurdle To Overcome In Demonstrating That His Separation Was Involuntary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The BCMR Did Not Abuse Its Discretion By Electing Not To Hold An Evidentiary Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. Mr. Lopez-Velazquez Is Attempting To Impose A General Requirement Not Found In Any Statute Or Regulation . . . . . . . . . . . . . . 8 Mr. Lopez-Velazquez Fails To Demonstrate That A Hearing Was Necessary Based Upon The Facts In This Case . . . . . . . . . . . . . . . . . . . . 9 1. The BCMR Had Ample Evidence With Which To Make Its Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Mr. Lopez-Velazquez's Challenges To The BCMR's Analysis Are Unavailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

II.

B.

2.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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TABLE OF AUTHORITIES CASES PAGE(S)

Armstrong v. United States, 205 Ct. Cl. 754, 1974 WL 21688 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Bell v. United States, 32 Fed. Cl. 259 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Dodson v. United States, 988 F.2d 1199 (Fed. Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 Hill v. Lockhart, 474 U.S. 52 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Kurfess v. United States, 169 Ct. C 486, 1965 WL 1444 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Law v. United States, 11 F.3d 1061 (Fed. Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Lopez- Velazquez v. United States, 69 Fed. Cl. 64 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Masai Technologies Corp. v. United States, 79 Fed. Cl. 433 (Fed. Cl. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Metz v. United States, 466 F.3d 991 (Fed. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Moody v. United States, 58 Fed. Cl. 522 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Nishitani v. United States, 42 Fed. Cl. 733 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Porter v. United States, 163 F.3d 1304 (Fed. Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Rogers v. Zant, 13 F.3d 384 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Strickland v. United States, -ii-

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36 Fed. Cl. 651 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11 Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Voge v. United States, 844 F.2d 776 (Fed. Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Wales v. United States, 132 Ct. C 130 F. Supp. 900 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Wronke v. Marsh, 787 F.2d 1569 (Fed. Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 REGULATIONS & STATUTES 32 C.F.R. § 865.2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 32 C.F.R. § 865.4(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 5 U.S.C. § 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 10 U.S.C. §§ 801-946 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 10 U.S.C. § 856, Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 37 U.S.C. § 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) MARIO R. LOPEZ-VELAZQUEZ, ) ) Plaintiff, ) ) No. 05-410C v. ) ) (Chief Judge Damich) THE UNITED STATES, ) ) Defendant. ) __________________________________________)

DEFENDANT'S MOTION TO DISMISS, CROSS MOTION FOR JUDGMENT UPON THE ADMINISTRATIVE RECORD, AND RESPONSE TO PLAINTIFF'S MOTION TO REMAND Pursuant to the Court's September 14, 2007 order and Rules 12(b)(6) and 52.1 of the rules of this Court, defendant, the United States, respectfully opposes plaintiff's motion to remand to hold an evidentiary hearing, and requests that this Court grant judgment upon the administrative record in favor of the Government and dismiss plaintiff's suit. In his motion to remand, Mr. Lopez-Velazquez's sole contention is that the Air Force Board for Correction of Military Records ("AFBCMR," "BCMR," or "board") abused its discretion by not holding a hearing in which he could present live testimony and cross examine witnesses. However, as we demonstrate below, whether to hold a hearing is a matter entirely within the discretion of the BCMR, and the BCMR reasonably decided not to hold a hearing. The BCMR had ample evidence with which to evaluate Mr. Lopez-Velazquez's contention that he was the victim of ineffective assistance of counsel. In fact, Mr. Lopez-Velazquez does not contend in his dispositive motion that substantial evidence was lacking to support the BCMR's decision. Therefore, the BCMR's decision should be sustained and Mr. Lopez-Velazquez's suit should be dismissed.

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STATEMENT OF FACTS & PROCEDURAL BACKGROUND Mr. Lopez-Velazquez is a former Air Force Technical Sergeant (TSgt) who served in the Security Forces for over 18 years. Compl. ¶¶ 2, 6. While plaintiff was stationed at Grand Forks Air Force Base (AFB), North Dakota, in November 2000, his commander preferred four charges and 10 specifications against him. A158-59, 418-19. The charged offenses arose from alleged sexual harassment by plaintiff of four female airmen who also served in the Security Forces Squadron. A196. Mr. Lopez-Velazquez was charged with one charge and three specifications of cruelty and maltreatment under Article 93 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. §§ 801-946, a charge and specification of sodomy under Article 125, UCMJ, a charge and five specifications of assault under Article 128, UCMJ, and a charge and specification of indecent assault under Article 134, UCMJ. A158-59, 418-19. Under the law in effect at the time, the maximum sentence which plaintiff, an enlisted member, could have received at a special court-martial was a bad conduct discharge (BCD), confinement for six months, forfeiture of two-thirds pay per month for six months and reduction to the lowest enlisted grade, Airman Basic. 10 U.S.C. § 856; Rules for Court-Martial, Rule 201(f)(2)(B), Manual for Courts-Martial, United States (2000 edition).1 On December 7, 2000, after consulting both military and civilian counsel, plaintiff signed a Request for Discharge in Lieu of Trial by Court-Martial ("Request") in which, as the title

The 2002 Amendments to the Manual for Courts-Martial increased the confinement and forfeiture components of the maximum punishment that can be imposed by special courts-martial to confinement for one year and forfeiture of two-thirds pay per month for one year. See Executive Order 13262 of April 11, 2002, http://www.whitehouse.gov/news/releases/2002 /04/20020412-4.html. -2-

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suggests, he requested discharge in lieu of trial by court-martial. A36, 165, 175, 282. Additionally, the Request stated, inter alia, that plaintiff had consulted counsel, that he was aware of the adverse nature of a discharge under other than honorable conditions (e.g., loss of veterans benefits), and that he was not requesting lengthy service probation consideration. A165. The Request was also included a statement from plaintiff's military defense counsel which stated that the Request was plaintiff's "voluntary decision" made after being counseled about his rights and privileges and the possible effects of discharge under those circumstances and the consequences of waiving his right to request a lengthy service determination. A165. The Request was granted and he was discharged from the Air Force on January 5, 2001 with an under other than honorable conditions (UOTHC) discharge and a reenlistment code which bars plaintiff from reenlisting. A197, Compl. ¶10. After being discharged, on February 15, 2001, plaintiff, through counsel, contended that he received ineffective assistance of counsel from his military counsel, Captain Brand, regarding his request for discharge in lieu of court-martial. A18-23. Specifically, Mr. Lopez-Velazuez claimed that Captain Brand "failed to thoroughly investigate the case," was adamant that a Request for discharge in lieu of court-martial was "the only appropriate tactical choice" and provided incorrect advice regarding the impact of a UOTHC discharge on his ability to obtain employment in law enforcement. A19. As a result of the complaint, Captain Brand's commander, the Commander of the Air Force Legal Services Agency ("AFLSA"), appointed an inquiry officer to investigate plaintiff's allegations on April 10, 2001. AR 16. The inquiry officer completed a report of investigation in which he found plaintiff's allegations to be not substantiated. A31-43. On October 15, 2001, the AFLSA Commander concurred with the

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inquiry officer's findings. A12. The Judge Advocate General of the Air Force also concurred with the inquiry officer's findings, and he directed the case be closed. A11. Plaintiff sought relief from the Air Force Discharge Review Board ("DRB") in 2002 in the form of upgrading his discharge from UOTHC to honorable and to change the reason and authority for discharge. A196. In November 2002, the DRB granted plaintiff the relief requested. A196. However, in doing so, the DRB concluded "the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority." A196. In granting relief, the DRB noted "the possible incorrect advice" (emphasis added) plaintiff received from his defense counsel, the absence of "third party eyewitnesses confirming any of the alleged incidents" and plaintiff's "18 years of outstanding service." A196. By granting relief to plaintiff, the DRB did not exonerate him or even find that he actually received ineffective assistance of counsel. A196. In April 2003, plaintiff sought relief from the BCMR. Compl ¶ 15. His basis for relief was "the gross failure of his military counsel to properly represent him." A354. Plaintiff requested a personal appearance before the BCMR, but the BCMR denied relief without granting the requested personal appearance. AR 340-44, 345. Mr. Lopez-Velazquez filed his complaint with this Court in March 2005. On November 1, 2005, this Court remanded the case "to the AFBCMR with instructions to review the Air Force records of its investigation of Plaintiff's claim of ineffective assistance of counsel." Lopez-Velazquez v. United States, 69 Fed. Cl. 64, 66 (2005), AR 10. The Court specifically instructed the BCMR as follows: if the AFBCMR does not conduct an evidentiary hearing, it shall provide an explanation as to why it did not do so. In addition, the -4-

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AFBCMR is directed to consider the DRB's alleged findings that `an error and injustice' had occurred with regard to Plaintiff or to provide an explanation as to why it did not consider these findings. A10. On remand, the BCMR reviewed the Air Force records of its investigation of Mr. LopezVelazquez's claim of ineffective assistance of counsel and the transcribed testimony from the DRB hearing. A4, 31-43, 195-251. The BCMR denied relief without an evidentiary hearing on August 9, 2007. A1, 2-6. SUMMARY OF THE ARGUMENT Mr. Lopez-Velazquez contends that the BCMR abused its discretion by not holding a hearing to consider live testimony regarding his claim of ineffective assistance of counsel. However, he does not identify any evidence lacking from the BCMR's consideration, nor does he contend that the BCMR's conclusion that he was not the victim of ineffective assistance of counsel was unsupported by substantial evidence. Under these circumstances, Mr. LopezVelazquez cannot demonstrate that the BCMR abused its discretion by not holding a hearing. Because this is the sole error alleged by Mr. Lopez-Velazquez in his dispositive motion, and because he has failed to demonstrate that his discharge from the military was involuntary, Mr. Lopez-Velazquez's suit should be dismissed.

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ARGUMENT I. Mr. Lopez-Velazquez Has A High Hurdle To Overcome In Demonstrating That His Separation Was Involuntary A member of the armed services who is separated and files suit seeking relief pursuant to 37 U.S.C. § 204 must establish that his separation was involuntary.2 Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006). The issue of whether a plaintiff's discharge was voluntary is not considered jurisdictional, but instead "should be considered in the context of the merits of a plaintiff's case in determining whether a plaintiff can take advantage of [37 U.S.C. § 204's] money-mandating status." Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006). When challenging a decision of the correction board, a claimant must establish through "cogent and clearly convincing evidence" that the board's findings were arbitrary and capricious, an abuse of discretion, unsupported by substantial evidence, or contrary to law or regulations. See Dodson v. United States, 988 F.2d 1199, 1204 (Fed. Cir. 1993); Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986); see also 5 U.S.C. § 706. To prevail, a claimant must overcome the strong presumption that administrators of the military, like other public officers, discharge their duties correctly, lawfully, and in good faith. Porter v. United States, 163 F.3d 1304, 1316 (Fed. Cir. 1998); see also Moody v. United States, 58 Fed. Cl. 522, 525 (2003) (describing heavy burden of proof in ineffective assistance cases). Judicial review in military pay cases is

Although Mr. Lopez-Velazquez does not mention § 204 in his complaint, this section is the only possible money-mandating provision upon which he could reasonably assert his claims in this Court. The only statutory provision he cites in the complaint, 28 U.S.C. § 1491, is not itself a substantive basis for plaintiff's cause of action; "instead a plaintiff must look elsewhere for the source of substantive law on which to base a Tucker Act suit against the United States." Metz, 466 F.3d at 996-96. -6-

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generally limited to the administrative record developed before the military board. Metz, 466 F.3d at 998. Furthermore, particularly broad deference is owed here to the BCMR's decision because the only issue being challenged by Mr. Lopez-Velazquez upon remand is whether the BCMR abused its discretion in deciding not to hold a hearing. As we demonstrate in greater detail later in this brief, the decision whether to grant a hearing is a matter solely within the discretion of the BCMR, and no statute or regulation limits the BCMR's discretion. See 32 C.F.R. § 865.4(f). Although this Court and the Court of Claims have reviewed such discretionary decisions, the same considerations underlying a finding of non-justiciability in other contexts weigh in favor of broad deference by this Court here. See Nishitani v. United States, 42 Fed. Cl. 733, 737-38 (1999) (finding that a procedural allegation in a military pay case was not justiciable because "the regulations and procedures cited by plaintiff contain no tests and standards against which the court can measure the military's conduct").3 As one court explained in reviewing the decision of a civilian agency:

In the absence of bad faith or abuse of discretion, it is normally not for a court to substitute its judgment for that of the administrative agency in determining what otherwise appropriate and relevant data is particularly helpful in fulfilling the agency's statutory responsibilities, or in defining the most effective means in acquiring it. 9 to 5 Organization for Women Office Workers v. Board of Governors of Federal Reserve,

In fact, many decisions discussing the standard of review in military pay cases omit the "abuse of discretion" standard found in the Administrative Procedures Act ("APA"), see, e.g., Dodson, 988 F.2d at 1204, perhaps based upon the premise that matters within the discretion of the military are often not justiciable. -7-

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721 F.2d 1, 10 (1st Cir. 1983); These concerns are only heightened when reviewing a decision by the military within its sole discretion. See Voge v. United States, 844 F.2d 776, 779 (Fed. Cir. 1988) ("Judicial deference must be at its apogee in matters pertaining to the military and national defense."). II. The BCMR Did Not Abuse Its Discretion By Electing Not To Hold An Evidentiary Hearing A. Mr. Lopez-Velazquez Is Attempting To Impose A General Requirement Not Found In Any Statute Or Regulation

Mr. Lopez-Velazquez contends that the BCMR abused its discretion by not holding a hearing because "there is no meaningful way to reconcile" conflicting statements between him and his wife and Captain Brand and Sergeant Johnson. Pl. Br. at 4. Plaintiff does not specify which statements were in conflict that necessitated a hearing. Instead, plaintiff suggests that a hearing should be required any time there are conflicting statements in the record. See Pl. Br. at 6-7 ("Statements and affidavits are fine for some purposes but where parties utter statements and affidavits in order to support their self interest which are manifestly in conflict, only the cauldron of under oath, oral testimony subject to cross-examination will do."). Plaintiff's suggestion that a hearing should held anytime there are conflicting statements in the record is contrary to established law. Applicants do not have a right to a hearing. Strickland v. United States, 36 Fed. Cl. 651, 657 (1996); Armstrong v. United States, 205 Ct. Cl. 754, 1974 WL 21688, at *6 (1974) ( "[A] hearing is not required on these matters since the BCMR's function does not involve conducting adversary proceedings."). Instead, whether to grant a hearing is a matter committed to the BCMR's discretion. Strickland v. United States, 36 Fed. Cl. 651, 657 (1996); 32 C.F.R. § 865.4(f). Furthermore, as the BCMR's regulations

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demonstrate, a hearing is the exception, rather than the rule. 32 C.F.R. § 865.2(c) (stating that the BCMR normally decides cases on the record without a hearing). Requiring a hearing whenever there are conflicting statements on the record would impose a requirement upon the BCMR that is not found in the regulations or any statute. See Law v. United States, 11 F.3d 1061, 1067-68 (Fed. Cir. 1993) ("Congress has not imposed the procedural limitations on the President's exercise of the authority which appellant asserts. It would be outside our province to create them."). Moreover, such a blanket rule is inconsistent with the non-adversarial nature of these proceedings. For example, although Mr. LopezVelazquez contends that only the "cauldron" of in-person testimony and cross examination will suffice to evaluate conflicting statements, his contention should be greeted with skepticism. Because BCMR proceedings are non-adversarial, the only attorney who is likely to be present to zealously cross-examine witnesses would be Mr. Lopez-Velazquez's counsel. Furthermore, BCMR does not have subpoena power, and many of the witnesses such as the alleged victims understandably may not voluntarily appear at such a hearing. See AFBCMR Doc. No. 00-03347, http://boards.law.af.mil/AF/BCMR/CY2001/0003347.doc (denying relief without a hearing and noting the absence of subpoena authority). Thus, Mr. Lopez-Velazquez's "cauldron" of truth would be decidedly one-sided. B. Mr. Lopez-Velazquez Fails To Demonstrate That A Hearing Was Necessary Based Upon The Facts In This Case 1. The BCMR Had Ample Evidence With Which To Make Its Determination

To the extent that Mr. Lopez-Velazquez contends that the specific facts of his case required a hearing, he has not provided any specifics to support such a contention. Rather,

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plaintiff vaguely states that there is a conflict in testimony, and provides general page cites for his and his wife's testimony before the DRB, and statements by Captain Brand and Sergeant Johnson. Pl. Br. at 44 Mr. Lopez-Velazquez fails to specify where there was a conflict of testimony, or demonstrate how such a conflict necessitated a hearing. See Pl. Br. at 4. Plaintiff's vague assertions are insufficient to overcome the high hurdle for establishing that the BCMR abused its discretion. See Masai Technologies Corp. v. United States, 79 Fed. Cl. 433, 452 (Fed. Cl. 2007) (finding "broad, vague assertions" insufficient to support challenge in case reviewed under the APA standards). Plaintiff's vague assertions are particularly deficient given that Mr. Lopez-Velazquez also had a high hurdle to overcome before the board in establishing that his separation was involuntary based upon ineffective assistance of counsel. When evaluating claims of ineffective assistance of counsel with respect to plea agreements, the two-part test enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 688-692 (1984), applies. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Under the first part of the test, Mr. Lopez-Velazquez was obligated to demonstrate that his prior counsel's advice during the plea bargaining process "fell below an objective standard of reasonableness." See Strickland, 466 U.S. at 688. In evaluating his claims under this prong, the Supreme Court has explained,

Plaintiff's suggestion that there is a conflict in the record because he and his wife "say that Capt Brand failed them," but "Capt Brand and his paralegal say he did not" is nothing more than an indication that the parties differ as to the ultimate conclusion (whether there was ineffective assistance of counsel), and is certainly not a basis for requiring a hearing. Pl. Br. at 4. -10-

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Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance . . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . . Id. at 689; see also Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994) (stating party seeking relief must show that no reasonable lawyer under in the same circumstances would have acted in the same way). Under the second prong, a person seeking to invalidate his or her plea must demonstrate prejudice arising from the allegedly deficient representation. See Hill v. Lockhart, 474 U.S. at 58 (noting that the prejudice requirement serves "the fundamental interest in the finality of guilty pleas"). In order to satisfy the prejudice requirement, the individual "must show that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial." Id. at 59. Mr. Lopez-Velazquez failed to overcome this high hurdle, and the BCMR reasonably concluded that it had sufficient information with which to make a determination. When courts have reviewed discretionary decisions by BCMRs whether to hold a hearing, their review has generally been confined to determining whether the written record before the board was adequate to support the BCMR's determination. See, e.g., Strickland v. United States, 36 Fed. Cl. 651, 657 (1996) ("The BCMR's decision [not to hold a hearing] was reasonable because plaintiff's case was adequately documented."); Bell v. United States, 32 Fed. Cl. 259, 264 (1994) (summarily concluding that the board was not obligated to hold a hearing in light of the written -11-

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evidence already before the board); Kurfess v. United States, 169 Ct. Cl. 486, 1965 WL 1444, * 3 (1965) (same); Wales v. United States, 132 Ct. Cl. 765, 130 F. Supp. 900, 903-04 (1955).5 The BCMR possessed sufficient information to make a reasonable decision. In fact, Mr. Lopez-Velazquez does not identify any evidence that the BCMR failed to obtain by not having a hearing. The BCMR had before it, among other things the investigation by the Air Force Legal Services Agency ("AFLSA"), which found each of Mr. Lopez-Velazquez's allegations of ineffective assistance of counsel to be unsubstantiated. A26-29.6 In addition, the BCMR had before it declarations from Captain Brand and Sergeant Johnson, and a memorandum to the file written by Captain Brand prior to his discharge, which was consistent with Captain Brand's and Sergeant Johnson's declarations. A175, 178-79; 193-94. Other things considered by the BCMR included the report of investigation by the Air Force Office of Special Investigations which led to the charges against Mr. Lopez-Velazquez (containing statements by the alleged victims and other witnesses), A44-104, an e-mail exchange between Mr. Lopez-Velazquez and the AFLSA investigator, A190-91, and proceedings before the DRB. Mr. Lopez-Velazquez has not demonstrated that the record before the BCMR was inadequate. Thus, this Court should sustain the BCMR's decision.

Given the manner in which courts have reviewed boards' discretionary decisions whether to hold a hearing, it is difficult to imagine a situation in which a court could find that it was an abuse of discretion to not hold a hearing, but that there was substantial evidence to support the board's conclusion. Here, Mr. Lopez-Velazquez has not even attempted to demonstrate that the board's decision is unsupported by substantial evidence. Although Mr. Lopez-Velazquez attempts to minimize the AFLSA investigation report as the product of an ethics inquiry, see Pl. Br. at 6, the AFLSA inquiry officer applied the Strickland v. Washington test for ineffective assistance of counsel and found each allegation of ineffective assistance to be without merit. A27-29. -126

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2.

Mr. Lopez-Velazquez's Challenges To The BCMR's Analysis Are Unavailing

Mr. Lopez-Velazquez contends that the it did not matter to BCMR if there was ineffective assistance of counsel, because plaintiff understood the deal he was offered. Pl. Br. 5. Furthermore, Mr. Lopez-Velazquez contends that The question is not what different result might have come from different counsel. The question is rather did Capt Brand provide effective assistance in the decision making process. Pl. Br. at 5. Mr. Lopez-Velazquez's contentions mischaracterize the BCMR's decision, as well as the law regarding ineffective assistance of counsel. The BCMR stated that the decision not to hold a hearing was based "primarily" upon the BCMR's conclusion that Mr. Lopez-Velazquez "fundamentally understood the deal he was offered and we are not convinced he would have made a different choice had he been given different counsel." A5-6. This does not mean that the BCMR found it irrelevant whether the advice given was reasonable. Instead, the BCMR specifically found that Mr. Lopez-Velazquez failed to demonstrate that he was the victim of ineffective assistance, or that any advice provided by Captain Brand was unreasonable. A4. Furthermore, contrary to Mr. Lopez-Velazquez's suggestion, it was material to his ineffective assistance of counsel claim whether the outcome would have been different if he had different counsel. The Supreme Court has consistently held that a party cannot obtain relief based upon ineffective assistance of counsel absent a showing that there was a reasonable likelihood that the outcome would have been different. See, e.g., Strickland, 466 U.S. at 693-94; Hill, 474 U.S. at 58-59. Mr. Lopez-Velazquez failed to demonstrate that, but for the advice given by counsel, there is a reasonable likelihood that he would have instead proceeded to trial. -13-

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Mr. Lopez-Velazquez also suggests that a hearing was warranted given what he perceives to be an inconsistency between the DRB's decision and the BCMR's decision. Pl. Br. at 6. Furthermore, he contends that there was no distinction between the standard applied by the DRB and the BCMR. Id. However, as the BCMR reasonably concluded, the criteria for relief by the DRB is not the same as the criteria for relief by the BCMR. As the DRB's discharge review standards indicate, "The primary function of the DRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis." A318 (E4.1.1) (emphasis added). Furthermore, in making this determination, the DRB may consider a wide variety of factors, such as service history, awards and decorations, and length of service. A319-320. The DRB concluded: [T]he discharge was consistent with the procedural and substantive requirements of the discharge regulation and was consistent with the discretion of the discharge authority. However, . . . the Board also concludes that the overall quality of applicant's service is more accurately reflected by an Honorable discharge. A196. Although the DRB noted "possible" incorrect advice given to him by Captain Brand in reaching its decision, the DRB did not find that he was involuntarily separated based upon ineffective assistance of counsel. See A196. Furthermore, the board did not need to make such a finding because the DRB possessed the discretion to upgrade his discharge without finding ineffective assistance of counsel. Furthermore, while counsel for Mr. Lopez-Velazquez now suggests that the DRB was engaged in an identical analysis limited to whether his discharge was voluntary based upon ineffective assistance of counsel, before the DRB he suggested that the

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DRB should send a message as an initial step to review by the BCMR: "We need to get a result from you [so that] organization understands that the people who have been on the ground as the observers of these folks believe in him." A251. Moreover, the concerns by the board appear to have been wide-ranging. See, e.g, A242-43, 249 (suggesting that sexual misconduct was widespread, and inquiring what were the consequences for other individuals engaged in "unprofessional" relationships); A246 (statement by board member apparently concluding based upon the limited information presented that Mr. Lopez-Velazquez was innocent). In any event, the BCMR considered the DRB proceedings, but reasonably found that Mr. Lopez-Velazquez had not demonstrated ineffective assistance of counsel. The only people who testified at the DRB hearing were Mr. Lopez-Velazquez and his wife, and the DRB reached its decision without the benefit of the AFLSA investigation. A227 (statement by DRB member that he is "only getting one side of this" and noting the DRB's lack of subpoena power); A253 (lack of consideration by DRB of investigation). In contrast, the BCMR had before it both the DRB's proceedings and the AFLSA investigation, and reasonably concluded that Mr. Lopez-Velazquez had failed to demonstrate ineffective assistance of counsel. Mr. Lopez-Velazquez does not contend that substantial evidence was lacking to support this conclusion. Upon remand to the BCMR, Mr. Lopez-Velazquez focused his ineffective assistance claim upon his contention that Captain Brand "gave palpably bad advice on the question of whether [Mr. Lopez-Velazquez] could enter police work saddled with a UOTHC." A286. However, Mr. Lopez-Velazquez fails to demonstrate that Captain Brand's and Mr. LopezVelazquez's recollections with respect to this issue varied significantly. Mr. Lopez-Velazquez does not contend that Captain Brand promised him a job. See also A178 (statement by Captain

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Brand: "No assurances were ever given regarding TSgt Lopez-Velazquez's prospects for future employment."). Rather, Captain Brand informed him that he knew of one person with a UOTHC who later obtained a job as a police officer, and relayed information he obtained through the New York Police Department that the only absolute disqualifier is a dishonorable discharge, and otherwise everything else is handled on a case-by-case basis. A178.7 Mr. Lopez-Velazquez fails to demonstrate that anything Captain Brand said regarding a UOTHC was false, or that there were meaningful differences between the way Captain Brand recalled events and the way that Mr. Lopez-Velazquez recalled events. Even if there were a meaningful difference between their testimony, Mr. Lopez-Velazquez fails to demonstrate how any such difference compelled the BCMR to hold a hearing. CONCLUSION For the foregoing reasons, we respectfully request that the Court deny Mr. LopezVelazquez's motion to remand and dismiss his suit.

Captain Brand obtained this information by contacting his mother, the director of the Correctional Educational Consortium (a consortium designed to place ex-offenders and recovering drug and alcohol abusers in colleges and jobs) in New York, who then contacted the New York Police Department hiring department. A178. -16-

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Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Todd M. Hughes TODD M. HUGHES Deputy Director OF COUNSEL: Major Thomas R. Uiselt Air Force Legal Operations Agency Air Force Military Personnel Litigation Branch 1501 Wilson Bld., 7th Floor Arlington, VA 22209 s/ Michael J. Dierberg MICHAEL J. DIERBERG Trial Attorney Department of Justice Civil Division Commercial Litigation Branch 1100 L. Street, NW Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tel: (202) 353-0536 Fax: (202) 305-7643 Attorneys for Defendant

February 27, 2008

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