IN THE UNITED STATES COURT
OF FEDERAL CLAIMS
DAVID ALAN
CARMICHAEL,
)
)
Plaintiff
)
) No. 99-958C
V,
)
)
UNITED
STATES,
)
)
Defendant.
)
COMPLAINT
This is a civil action for damages suffered by the Plaintiff, David
Alan Carmichael,
because his employer, the United States Navy, arbitrarily,
capriciously,
in bad faith, without any rational basis, in breach of statute,
regulation,
contract and the United States Constitution, unlawfully discharged
Plaintiff,
having unlawfully denied his request for an accommodation of his
sincerely
held religious conviction that he could no longer be identified with a
Social Security Number as his Military Identification Number.
JURISDICTION
1. This is a claim for damages arising under the First and Fifth
Amendments
to the United States Constitution, under Section 204, 402, 403,418 and
906 of Title 37 of the United States Code, Sections 1074, 1076,
1141-45,
1168, 1169, 1174 and 1176 of Title 10 of the United States Code, under
Sections 41.6, 51.3, 51.4 and 51.5 of Title 32 of the Code of
Federal
Regulations, under Directive Number 1300.17 of the Department of
Defense,
under Articles 1023, 1150, 1151, 1156, 1164, and 1973 of the
Regulations
of the United States Navy, under Instruction 1730.8 of the Secretary of
the Navy, and under the express and implied enlistment, reenlistment
and
extension of reenlistment contracts between plaintiff Carmichael and
defendant
United States.
2. In the alternative, this is a claim for damages arising under
Sections
1141, 1142, 1143, 1144, 1145, 1168, 1169 and 1174 of Title 10 of the
United
States Code, under Section 41.6 of Title 32 of the Code of
Federal
Regulations, under Directive Number 1332.36 of the Department of
Defense,
under Instruction 1900.7G of the Secretary of the Navy, and under the
express
and implied enlistment, reenlistment and extension of reenlistment
contracts
between plaintiff Carmichael and defendant United States.
3. The Court has jurisdiction of all claims by reason of Title 28
United
States Code,
Section 1491.
PARTIES
4. Plaintiff, David Alan Carmichael, is a natural born American citizen
residing with his wife and four (4) children in Hampton, Virginia.
5. Defendant is the United States of America.
STATEMENT OF FACTS
6. On June 27, 1980, Plaintiff, David Alan Carmichael (hereinafter
"Carmichael")
enlisted in the delayed entry program Of the United States Navy
(hereinafter
"Navy").
7. On July 11, 1980, Carmichael entered upon active duty pursuant to
his enlistment contract, attending bootcamp at Recruit Training Center,
San Diego, California.
8. From July 11, 1980, until he was unlawfully discharged on
March 17, 1997 - a
period of sixteen (16) years, eight (8) months and seven (7) days,
Carmichael provided exemplary service to the Defendant United States as
an enlisted man in the Navy.
9. During his period of Navy service, Carmichael progressed in
rank from Seaman
(E-3) to Chief Petty Officer (E-7), having achieved the rank of Chief
Petty Officer in seven years and two months after enlistment, an
achievement
of only a very small percentage of Navy personnel.
10. During his period of Navy service, Carmichael graduated from
numerous
special training courses as class honorman (top of class), ultimately
leading
to his appointment as an instructor, in which capacity he was nominated
and awarded the qualification of Master Training Specialist.
11. During his period of Navy service, Carmichael earned four
Good Conduct Medals in recognition of his exemplary high moral
standards
and respectful obedience to his superiors, culminating in an assignment
as Command Career Counselor, in which capacity he personally served
over
six hundred Navy personnel in one-on-one counseling, intervening on
occasions
to correct administrative improprieties and injustices.
12. During his period of Navy service, Carmichael served a total
of nine (9) years, six (6) months and twenty-one (21) days of sea duty,
including service from November 11, 1990 to October 1, 1992 on board
the
USS THOMAS C. HART (FF-1092) during operations Desert Shield and Desert
Storm, for which action lie received two Navy Achievement Medals for
meritorious
service and for which action he received the highest possible scores on
his evaluation from his commanding officer.
13. From October 1, 1994 to September 30, 1995, Carmichael served
as an Anti-Submarine Warfare Sonar Specialist, and while deployed to
the
Mediterranean, Aegean, Black and Adriatic Seas functioned as ASW
Tactical
Watch Officer for which action he was nominated and awarded his third
Navy
Commendation Medal, a Meritorious Unit Commendation, his third Sea
Service
Deployment Ribbon in recognition of his meritorious service and
received
the highest possible scores on his evaluation from his commanding
officer.
14. From October 1, 1995 to August 6, 1996, Carmichael continued
his service as an Anti-Submarine Warfare Sonar Specialist, again
receiving
from his superior officer the highest performance ratings (Above
Standards or Greatly Exceeding Standards) with the twin recommendations
of "Must Promote" and "Early Promote."
15. From August 6, 1996 to November 4, 1996, Carmichael continued
his service as Anti-Submarine Warfare Sonar Specialist, again receiving
from his commanding officer the highest performance ratings (Above
Standards
and Greatly Exceeds Standards) with the twin recommendations of "Must
Promote"
and "Early Promote."
16. During his entire period of Navy service, Carmichael earned a
reputation
for honesty, courage, and respect for authority, exemplifying the Navy
motto - "Honor, Commitment, Courage.'
17. From July 11, 1980 and continuing until his unlawful
discharge
from the Navy on March 17, 1997, the Navy assigned to Carmichael as his
Military Identification Number a Social Security Number.
18. Beginning on or about October 1, 1995, Carmichael earnestly
sought through prayer and Bible study whether he could any longer
engaged
in any act which identified him by a Social Security Number and, by
October
1, 1996, he was led by the Holy Spirit to the conviction that the
Social
Security Number is the "Number of the Beast" as revealed in Chapter 13
of the Book of Revelation of the Holy Bible and that, as revealed in
Chapter
14 of the Book of Revelation of the Holy Bible, he was prohibited by
the
commandment of God to engage in any act which identified him by a
Social
Security Number.
19. On or about October 1, 1996, Carmichael wrote to the
Commissioner
of Social Security, notifying her that Carmichael's religious
convictions
prohibit him from identifying with a Social Security Number, or
participating
in the Social Security Number system and that any previous application
for a Social Security Number made on Carmichael's behalf or that of his
children is rescinded.
20. From on or about October 1, 1996 until his unlawful discharge
on March 17, 1997, Carmichael signed all contracts and other official
documents
submitted by the Navy except those that unreservedly identified
Carmichael
by a Social Security Number.
21. On or about November 1, 1996, Carmichael notified Lieutenant
Commander Jack Roesner (hereinafter "Roesner"), the Chief Staff Officer
of Destroyer Squadron Thirty-Two, the squadron to which Carmichael was
then assigned, that because of his religious convictions Carmichael
could
no longer associate himself with a Social Security Number; and that he,
Carmichael, had written the Social Security Commissioner notifying her
of his religious convictions and requesting rescission of the Social
Security
Number assigned to him and his children; and that he was awaiting reply
from the Social Security Commission before submitting a request for a
religious
accommodation from the Chief of Naval Personnel, at which time. I
Roesner rebuked Carmichael for being a troublemaker and threatened
Carmichael.
22. On or about November 6, 1996, Carmichael submitted through Roesner
as his Chief Staff Officer (as required by Navy regulations) to the
Commander
of Destroyer Squadron Thirty-Two (his commanding officer) his request
(dated
November 4, 1996) for change of military identification number based
upon
his religious convictions prohibiting him from being identified any
longer
with a social security number, but contrary to regulations, Roesner
failed
to forward Carmichael's request to the commanding officer.
23. On or about November 19, 1996, Chief Staff Officer Roesner
advised Carmichael,
in writing, that "my research of NMPM and BUPERS liaison does not
support
your request and I can not forward your request. The NMPM and BUPERS
support
Navy-wide use of only the SSN as a SVCMBR MPIN. Please see me to
discuss
further."
24. On or about November 19, 1996, Carmichael did discuss further
his request for religious accommodation with Roesner, asserting that
Navy
regulations required Roesner to forward his request, prompting
Roesner
to refuse once again, threatening to cancel Carmichael's
Permanent
Change of Station orders and further prompting Roesner to rebuke
Carmichael
for his religious convictions stating "I (Roesner) have checked with
theologians
and they agree with me. You (Carmichael) cannot take the Bible
literally."
25. On or about November 22, 1996, Roesner reiterated his refusal
to forward Carmichael's request for religious accommodation to the
Commander
of the Destroyer Squadron Thirty-Two for forwarding to the Chief of
Naval
Personnel, informing Carmichael that "You'll have to send the letter
yourself."
26. On or about November 25, 1996, contrary to regulations,
Roesner
advised Carmichael that he would be transferred, and ordered Carmichael
not to attempt to discuss his request for religious accommodation with
the Commanding Officer, and, in response to that order, Carmichael
awaited
transfer before forwarding his request for religious accommodation to
his
future commanding officer.
27. On or about December 2, 1996, Carmichael resubmitted his
request for religious accommodation directly to the Chief of Naval
Personnel.
28. On or about December 6, 1996 the Chief of Naval Personnel
received Carmichael's resubmitted request for religious accommodation,
including the November 6, 1996 letter requesting such accommodation.
29. On or about December 9, 1996, prior to the insertion of any
number in the blocked space for his military identification number,
Carmichael
signed a Navy Personnel Administrative Form agreeing to "obligate
service"
until January 1999, having been continuously denied from November
19, 1996 the opportunity actually to obligate service in accordance
with
his then current "BUPERS ORDERS" dated July 17, 1996, requiring him
either
to reenlist or extend his enlistment to January 1999, taking him to
within
two years of fleet reserve retirement.
30. On or about December 10, 1996, the Commander of Destroyer
Squadron Thirty-Two transferred Carmichael to Officer-In-Charge, Afloat
Training Group, Surface Ship Acoustic Analysis Center, Norfolk,
Virginia
and on or about December 13, 1996, Carmichael reported for duty in
accordance
with said transfer.
31. On or about December 16, 1996, Carmichael notified said
Officer-In-Charge
of his pending request for religious accommodation and furnished to
said
Officer-In-Charge a copy of the November 6, 1996 letter to the Chief of
Naval Personnel.
32. On or about January 6, 1997, Carmichael attempted to renew his
request for religious accommodation and resubmitted through his
Officer-in-Charge
his original November 6, 1996 letter requesting religious accommodation
for forwarding to the Chief of Naval Personnel.
33. On or about January 28, 1997, Carmichael again resubmitted
his request for religious accommodation forwarding his November 6, 1996
submission for such accommodation to Commander James of the Office of
Chief
of Naval Personnel.
34. On or about February 11, 1997, the Deputy Chief of Naval
Personnel denied Carmichael's request on the sole ground that the Navy
requires that the military personnel identification number be the
Social
Security Number and that until the Social Security Administration
assigns
the social security number "000-00-000" to Carmichael the Navy will
continue
to require Carmichael to identify himself with the Social Security
Number
originally assigned for him, advising Carmichael that "[w]hen and if
the
Social Security Administration takes. ..action (formally
acknowledg[ing]
000-00-0000 as your new SSN), you may resubmit your request for more
favorable
consideration."
35. On or about February 13, 1997, Carmichael was ordered to
report for duty in Italy to provide support during a major
multi-national
coordinated undersea warfare exercise (called DOGFISH) on board USS
HAYLER
during which time Carmichael was told that he was being denied a Navy
Commendation
medal by Roesner because of his continued open and expressed contempt
for
Carmichael's religious convictions in relation to not being identified
with a Social Security Number.
36. On or about March 3, 1997, after return from the Italian
deployment, Carmichael received notice for the first time of the
February
11, 1997 decision by the Deputy Chief of Naval Personnel
rejecting
his November 6, 1996 request for religious accommodation of his
inability
to be identified with a Social Security Number.
37. On or about March 4, 1997, Carmichael sought permission from
his Officer-in-Charge to submit his request for religious accommodation
to the Chief of Naval Personnel, but was denied that opportunity.
38. On or about March 5, 1997, Carmichael submitted his request
to extend his current enlistment for twenty-one (21 ) months in
accordance
with his contractual agreement "to obligate service for two years from
reporting to a new command under Permanent Change of Station orders"
and,
to that end, completed an official request form placing the word,
"NONE",
in the space designated for his Social Security Number.
39. On or about March 6, 1997, Carmichael's request for
enlistment
extension, as he was obligated to do by contract, was approved by his
Officer-in-Charge.
40. On or about March 12, 1997, Carmichael was presented with
a reenlistment contract identifying him by a specific Social Security
Number
and was advised that he must sign the contract as is or the contract
would
be considered null and void.
41. On or about March 12, 1997, Carmichael advised his
Officer-in-Charge
that he could not "without violating God's sovereign law and my
convictions"
sign the reenlistment contract so long as it contained the identifying
Social Security Number.
42. On or about March 13, 1997, Carmichael, before witnesses
and qualified officers, swore a verbal oath committing to fulfill his
obligated
service requirement.
43. On or about March 17, 1997, notwithstanding Carmichael's
continuing efforts to extend his enlistment to fulfill his contract
obligated
service, Carmichael was unlawfully discharged and involuntarily
separated
from the Navy against his will, unlawfully preventing him from
fulfilling
his contractual obligation of extended service until January 1999, and
further, unlawfully preventing him from extending his enlistment to
within
two years of fleet reserve retirement.
44. From on or about June 13, 1997 until on or about May 6, 1998,
Carmichael made several attempts to obtain redress from the Chief of
Navy
Personnel and other personnel in the Executive Branch of the United
States
Government, all to no avail.
45. On or about May 6, 1998, Carmichael applied to the Board
of Naval Corrections requesting review of said "unlawful... discharge"
and "involuntary separation."
46. On or about March 31, 1999, in an advisory opinion to the
Board of Naval Corrections, Carmichael's request for accommodation of
his
religious conviction that he could not be identified with a Social
Security
Number was reviewed and rejected by the Office of the Judge Advocate
General,
Department of Navy.
47. On or about May 24, 1999, the Board of Naval Corrections
determined that Carmichael's discharge was not unlawful, resting its
decision
solely upon the March 31, 1999 advisory opinion of the Office of
the Judge Advocate General, Department of Navy, but declined to
decide
whether or not the separation was involuntary.
FIRST CAUSE OF ACTION
(Violation of Articles 1150, 1151, and 1156 of Navy- Regulations)
48. The allegations contained in Paragraphs 1 through 47 of this
Complaint are re-alleged and incorporated herein by reference.
49. Prior to Carmichael's discharge on March 17, 1997, the Navy
failed to forward Carmichael's request for accommodation of his
religious
convictions to his commanding officer in a proper manner and at a
proper
time and place, thereby denying to Carmichael prompt action on the
request
by his commanding officer, all in violation of Articles 1150, 1151 and
1156 of the General Regulations of the Navy and in violation of the
terms
of his enlistment and reenlistment contracts.
50. The failure of the Navy to comply with Articles 1150, 1151
and l156 and its contractual obligations in the handling of
Carmichael's
request for religious accommodation was arbitrary, capricious, in bad
faith,
without any rational basis and contrary to law, regulation and
mandatory
published procedure whereby Plaintiff Carmichael was seriously
prejudiced,
resulting in his unlawful discharge from the Navy in breach of his
enlistment
and reenlistment contracts and causing him monetary damages and other
economic
harm, in the amounts and ways set forth in the Prayer for Relief
below.
SECOND CAUSE OF ACTION
(Violation of Department Of Defense Directive 1300.17 and Navy
Secretary
Instruction 1730.8)
51. The allegations contained in Paragraphs 1 through 47 of this
Complaint are re-alleged and incorporated herein by reference.
52. Prior to Carmichael's discharge on March 17, 1997, the Navy
failed to review Carmichael's request for accommodation of his
religious
conviction that he could not be identified with a social security
number
according to the standards and procedures required by Directive 1300.17
of the United States Department of Defense and Instruction 1730. 8 of
the
Secretary of the Navy as required by law, regulation and the Navy's
contractual
obligations to Carmichael.
53. and procedures of Directive 1300.17, Instruction 1730.8 and
its contractual obligations was arbitrary and capricious, in bad faith
and without rational basis, and contrary to law, regulation. The
failure of the Navy to review Carmichael's request according to the
standards
and mandatory published procedure, whereby Carmichael was seriously
prejudiced,
resulting in his unlawful discharge from the Navy in breach of his
enlistment
contract and causing him monetary damages and other economic harm, in
the
amounts and ways set forth in the Prayer for, Relief below.
THIRD CAUSE OF ACTION
(Violation of Department of Defense Directive 1300.17 and Navy
Secretary
Instruction 1730.8)
54. The allegations contained in Paragraphs 1 through 47 of this
Complaint are re-alleged and incorporated herein by reference.
55. After Carmichael's discharge on March 17, 1997, the Board
of Naval Corrections failed to review Carmichael's request for
accommodation
of his religious conviction that he could not be identified with a
social
security number according to the standards and procedures required by
Directive
1300.17 of the Department of Defense and by Instruction 1730. 8 of the
Secretary of the Navy as required by law and by the terms of
Carmichael's
enlistment contract.
56. The failure of the Navy to review Carmichael's request in
accordance with the standards and procedures set forth in Directive
1300.17,
Instruction 1730.8 and its contractual obligations was arbitrary,
capricious,
in bad faith, without any rational basis and contrary to law,
regulation
and mandatory published procedure whereby Plaintiff Carmichael was
seriously
prejudiced, resulting in his unlawful discharge from the Navy in breach
of his enlistment contract and causing him monetary damages and other
economic
harm, in the amounts and ways set forth in the Prayer for Relief below.
FOURTH CAUSE OF ACTION
(Religious Discrimination in Violation of Sections 51.3. 51.4 and 51.5
of 32 Code of Federal Regulations
and Of Article 1164 of Navy- Regulations)
57. The allegations contained in Paragraphs 1 through 47 of this
Complaint are re-alleged and incorporated herein by reference.
58. From on or about November 6, 1996 through on or about March
17, 1997, the date of Carmichael's unlawful discharge, the Navy
illegally
and unlawfully discriminated against Carmichael based on religion,
adversely
affecting Carmichael and contrary to the good order and discipline of
the
Navy and counterproductive to combat readiness and mission
accomplishment
of the Navy and, further, the Navy failed to ensure a fair and
impartial
and timely investigation, resolution and follow-up of Carmichael's
complaints
of discrimination against him on the basis of religion, all in
violation
of Sections 51.3, 51.4, and 51.5 of Title 32 of the Code of Federal
Regulations,
Articles 1023 and 1164 of Navy Regulations, and its contractual
obligations.
59. The discriminatory actions taken against Carmichael on the
basis of religion were arbitrary, capricious, in bad faith, without any
rational basis, and contrary to law, regulation and mandatory procedure
whereby Plaintiff Carmichael was seriously prejudiced, resulting in his
unlawful discharge from the Navy in breach of its contractual
obligations
and causing Carmichael monetary damages and other economic harm, in the
amounts and ways as set forth in the Prayer for Relief below.
FIFTH CAUSE OF ACTION
(Violation of the First Amendment)
60. The allegations contained in Paragraphs 1 through 47 of this
Complaint are re-alleged and incorporated herein by reference.
61. Beginning on or about November 6, 1996 and continuing until
March 17, 1997, the date of Carmichael' s unlawful discharge, the Navy
illegally, unlawfully and unconstitutionally discriminated against
Carmichael
on account of his religious faith, beliefs, convictions and practices,
thereby depriving him of his right to the Free Exercise of Religion as
guaranteed by the First Amendment.
62. The failure of the Navy to afford Carmichael and to protect
Carmichael, in the free exercise of his religious faith, beliefs,
convictions
and practices was arbitrary, capricious, in bad faith, without any
rational
basis and contrary to the First Amendment, whereby Carmichael was
seriously
prejudiced, resulting in his unlawful discharge from the Navy in breach
of its contractual obligations and causing Carmichael monetary damages
and other economic harm, in such amounts and ways set forth in the
Prayer
for Relief below.
SIXTH CAUSE OF ACTION
(Violation of the first Amendment)
63. The allegations contained in Paragraphs 1 through 47 of this
Complaint are re-alleged and incorporated herein by reference.
64. In rejecting Carmichael's request for religious accommodation
with respect to his conviction not to be identified with a Social
Security
Number as his Military Identification Number, Carmichael was denied his
First Amendment rights, to be free from the establishment of religion
and
to be free to exercise his religion, by administrative standards and
procedures,
including, but not limited to Directive 1300.17 of the Department of
Defense
and Instruction 1730.8 of the Secretary of the Navy, that, on their
face
and as administered, discriminate in favor of some religious beliefs
and
practices and against other religious beliefs and practices without any
legitimate military purpose and rational distinction.
65. The Navy's administrative discrimination against
Carmichael's religious convictions and practices was arbitrary,
capricious,
in bad faith, without any rational basis and contrary to the both the
Establishment
Clause and the Free Exercise Clause of the First
Amendment, whereby Carmichael was seriously prejudiced, resulting in
his unlawful discharge from the Navy in breach of its contractual
obligations
and causing Carmichael monetary damages and other economic harm, in the
amounts and way set forth in the Prayer for Relief below.
SEVENTH CAUSE OF ACTION
(Violation of Section 41.6 of 32 Code of Federal Regulations
and Sections 3630900 and 3640200 of the Naval Military Personnel Manual)
66. The allegations contained in Paragraphs 1 through 47 of
this Complaint are re-alleged and incorporated herein by reference.
67. That on or about March 17, 1997, Carmichael was issued
a Certificate of Release or Discharge from Active Duty in which it was
stated that Carmichael had been voluntarily separated from the Navy
because
of "completion of required active service."
68. That Carmichael was not, in fact, voluntarily separated from
the Navy because of "completion of required active service," but was
involuntarily
separated from the Navy, and not allowed to reenlist prior to the end
of
his term of service, for an unstated reason or reasons established by
the
Navy.
69. That Carmichael's involuntary separation was processed in
violation of the notification procedure and other applicable procedures
prescribed in Section 41.6 of Title 32 of the Code of Federal
Regulations
and Sections 3630900 and 3640200 of the Naval Military Personnel Manual
and without lawful authority in violation of 10 U.S.C. Section 1169.
70. The failure to afford Carmichael his rights under Section
41.6 of Title 32 of the code of Federal Regulations, Sections 3630900
and
3640200 of the Navy Military Personnel Manual and 10 U.S.C. Section
1169
was arbitrary, capricious, in bad faith, without any rational basis,
and
contrary to law, regulation, and mandatory procedure whereby Plaintiff
Carmichael was seriously prejudiced, resulting in his unlawful
discharge
from the Navy in breach of its contractual obligations and causing
Carmichael
monetary damages and other economic harm, in the amounts and ways as
set
forth in the Prayer for Relief below.
EIGHTH CAUSE OF ACTION
(violation of the Fifth Amendment)
71. The allegations contained in Paragraphs 1 through 47 of this
Complaint are re-alleged and incorporated herein by reference.
72. Prior to his unlawful discharge on March 17, 1997, Carmichael
had a property and liberty interest in continuing employment with the
Navy.
73. Prior to his unlawful discharge on March 17, 1997, Carmichael
was not afforded a constitutionally sufficient opportunity to be heard
on the merits of his request for an accommodation of his religious
conviction
not to be identified with a Social Security Number.
74. By failing to afford Carmichael a predetermination hearing
on his claim for religious accommodation, the Navy denied Carmichael
his
property and liberty without due process of law contrary to the Fifth
Amendment,
whereby Carmichael was seriously prejudiced, resulting in his unlawful
discharge from the Navy in breach of its contractual obligations and
causing
Carmichael monetary damages and other economic harm, in the amounts and
ways set forth in the Prayer for Relief below.
ALTERNATIVE NINTH CAUSE OF ACTION
(Violation of 10 U.S.C, Sections 1141, 1142, 1145 and 1175 and
Regulations
and Instructions Thereunder)
75. The allegations contained in Paragraphs 1 through 7, 9,through 16,
18, 19, 34 and 38 through 42 of this Complaint are re-alleged and
incorporated
herein by reference.
76. From July 11, 1980 until he was involuntarily separated from
the Navy on March 17, 1997, Carmichael provided exemplary service to
the
Defendant United States as an enlisted man in the Navy.
77. From July 11, 1980 and continuing until his involuntary
separation
from the Navy on March 17, 1997, Carmichael was assigned a Social
Security
Number as his Military Identification Number.
78. From on or about October 1, 1996, until his involuntary
separation
on or about March 17, 1997, Carmichael signed all contracts and other
official
documents submitted by the Navy except those that unreservedly
identified
Carmichael by a Social Security Number.
79. From on or about November 1, 1996, until on or about January
28, 1997, Carmichael submitted and resubmitted his request for
religious
accommodation of this religious convictions prohibiting him from
identifying
with a Social Security Number through the Navy chain of command for
delivery
to the appropriate Navy officials for review and decision.
80. On or about March 17, 1997, Carmichael was involuntarily
separated from, and/or denied reenlistment in, the Navy.
81. On or about May 6, 1998, Carmichael applied to the Board
of Naval Corrections requesting review of the "Type of Discharge"
contending
that it was "wrongfully listed as
volunt[ary]."
82. On or about May 24, 1999, the Board of Naval Corrections
responded to Carmichael's request for review of the "Type of Discharge"
by simply noting that "[t]he
separation code assigned, KBK, indicates that the separation was
voluntary,"
without making any finding whatsoever whether such "indication" was
consistent
with or contrary to the facts, the rules, the regulations and the laws
governing involuntary separations.
83. Contrary to the notation on Carmichael's discharge papers,
Carmichael was involuntarily separated from the Navy, as defined by
Title
10, Section 1141 of the United States Code and Instruction 1900.7G of
the
Secretary of the Navy.
84. The Navy's action designating Carmichael's separation as
voluntary was arbitrary, capricious, in bad faith, without any rational
basis, and contrary to law, regulation and mandatory procedure, whereby
Carmichael was seriously prejudiced, resulting in the denial of
severance
pay, as provided for in 10 United States Code Section 1174 and
Instruction
1900.7G of the Secretary of the Navy, and health benefits, as provided
for in 10 United States Code Section 1145, and causing monetary damages
in the amount set forth in the Alternative Prayer for Relief below.
PRAYER FOR RELIEF
(First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Causes
of Action)
WHEREFORE, PLAINTIFF CARMICHAEL prays for judgment against Defendant as
follows:
(1) Damages in the amount of $549,754.54, including $129,729.54
for lost wages and benefits from March 17, 1997 through July 31, 2000,
the date upon which Carmichael would have completed twenty years of
Navy
service had the Navy not wrongfully discharged him and $419,962.00 for
lost retirement benefits, together with court costs and attorney's fees
incurred herein, and such further relief as would be just and
equitable;
or, in the alternative,
(2) Damages in the amount of $104,317.90 for lost wages and
benefits
from March 17, 1997 to date caused by wrongful discharge plus nine
percent
(9%) interest thereon from the date of unlawful discharge, together
with
court costs and attorney's fees incurred herein, and reinstatement to
active
duty as Chief Petty Officer with instructions to the Navy to consider
Carmichael's
request for religious accommodation in accordance with the standards
and
procedures of the Department of Defense and the Secretary of the Navy
so
that Carmichael's fights under Title 10, Section 1176 of the United
States
Code will be preserved and such further relief as would be just and
equitable;
or, in the alternative,
(3) Damages in the amount of $120,509.61, including $68,269.02
for lost wages and benefits from March 17, 1997 through December 17,
1998,
and $52,240.59 in severance pay plus nine percent (9%) interest thereon
from the date of wrongful discharge, together with court costs and
attorney's
fees incurred herein and such further relief as would be just and
equitable.
ALTERNATIVE PRAYER FOR RELIEF
(Ninth Cause of Action)
IN THE ALTERNATIVE, PLAINTIFF CARMICHAEL prays for judgment against
Defendant as follows:
Damages in the amount of $43,657.20 in severance pay and lost
benefits
plus nine percent (9%) interest thereon from the date of involuntary
separation,
together with court costs and attorney's fees incurred herein and such
further relief as would be just and equitable.
Of Counsel:
William J. Olson
John S. Miles
WILLIAM J. OLSON, P.C.
8180 Greensboro Drive, Suite 1070 McLean, Virginia 22102-3823 (703)
356-5070
(703) 356-5085 (Fax)
Herbert William Tires
TROY A. TITUS, P.C.
5221 Indian River Road Virginia Beach, Virginia 23464 (757) 467-0616
(757) 467-0834 (Fax)
Counsel for Plaintiff