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Indiana Law Enforcement Training Bd. v. Comer

Court of Appeals of Indiana

January 28, 2015

Indiana Law Enforcement Training Board, Appellant-Respondent,
Theodore D. Comer, Sr., Appellee-Petitioner

Page 58

Appeal from the Floyd Circuit Court The Honorable J. Terrence Cody, Judge Cause No. 22C01-1305-MI-777.

ATTORNEYS FOR APPELLANT: Gregory F. Zoeller, Attorney General of Indiana; Frances Barrow, Deputy Attorney General, Indianapolis, Indiana.

ATTORNEY FOR APPELLEE: Edward J. Merchant, Ruckelshaus Kautzman Blackwell, Bemis & Hasbrook, Indianapolis, Indiana.

Crone, Judge. Friedlander, J., and Kirsch, J., concur.


Page 59

Crone, Judge.

Case Summary

[¶ 1] The Indiana Law Enforcement Training Board (" the Board" ) appeals a trial court judgment setting aside its revocation of Theodore D. Comer, Sr.'s certificate of completion of basic training (" certification" ) at the Indiana Law Enforcement Academy (" the Academy" ). Finding that the Board's decision to revoke Comer's certification was arbitrary and capricious and was not supported by substantial evidence, we affirm the trial court.

Facts and Procedural History

[¶ 2] In 2001, Comer enlisted in the U.S. Navy and served as an information systems technician third class petty officer in Iceland from 2002 through May 2005. During his time of service, he received various medals, ribbons, and letters of commendation. In 2004, he was disciplined for unauthorized absence when on one occasion he failed to return to his ship before it set sail for the next port. As a result, he received a demotion and a short-term pay reduction and restriction to the ship.

[¶ 3] After his discharge from the Navy in 2005, Comer worked as a correctional officer for the Department of Correction and then as a deputy with the Marion County Sheriff's Department. In January 2010, he was hired by the Indiana University Police Department (" IUPD" ) for its southeast campus in New Albany. As part of the hiring process, he disclosed that he had received an honorable discharge from the Navy on May 25, 2005. Also as part of the process, IUPD conducted a character and background investigation as well as a polygraph, which he passed. IUPD determined that he was a person of good reputation and character and sent him to the Academy for basic training in March 2010. On his first day there, Comer filled out a personnel data sheet in which he listed his military discharge status as " honorable." He finished at the top of his training class and received his Academy certification in July 2010.

[¶ 4] In January 2011, Comer accepted a position with the Michigan City Police Department (" MCPD" ). In the hiring process, he presented his May 25, 2005 discharge form. In December 2011, a domestic incident occurred at Comer's home, but no charges were filed. Comer returned to his job with IUPD in New Albany in January 2012. When Comer left MCPD, some MCPD officers began investigating him. Three months later, MCPD contacted the Board concerning alleged discrepancies in Comer's military discharge paperwork. The Board commenced an investigation, and IUPD Chief Charles Edelen informed Comer concerning a discrepancy in his military discharge status. The Board set a hearing and notified Comer that the hearing would be held to determine whether to revoke his Academy certification based on his military discharge status and lack of good character. The Board's executive director, Rusty K. Goodpaster, would serve as administrative law judge (" ALJ" ), and the deputy director, Michael J. Lindsay, would serve as prosecutor.

[¶ 5] At the January 2013 hearing, two different Department of Defense discharge forms were presented: (1) a DD 214 dated

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May 25, 2005 (" May DD 214" ), listing Comer's discharge as " honorable" ; and (2) a DD 214 dated August 9, 2005 (" August DD 214" ), listing Comer's discharge as " other than honorable." Petitioner's Exs. G, H. Comer's official Navy file contained the August DD 214 but not the May DD 214. The signature and initials on the May DD 214 were consistent with those affixed on all of the other documents in Comer's Navy file. The August DD 214 contained a signature and initials inconsistent with those affixed on all of his other Navy documents.

[¶ 6] The hearing exhibits include a summary of Comer's polygraph results as well as in-depth, question-by-question information. Comer also introduced a voucher and line of accounting form showing that the Navy had paid his moving expenses following his May 2005 discharge. Director John Lanzone of Navy Personnel Support Detachment testified telephonically that the Navy pays the expenses of moving household goods only for members receiving an honorable discharge. He also testified that he had examined Comer's May DD 214 listing his discharge as honorable and that it appeared to be " very authentic." Appellant's App. at 190. He explained that when a DD 214 discharge form needs to be updated or corrected after it has been issued to the discharged member, the proper procedure is to issue a DD 215. Nothing in Comer's Navy file indicates that a DD 215 was ever issued. Comer testified that following his June 2005 move back to Gary, Indiana, police arrested him based on a national crime database that indicated he had deserted his ship in May 2005. The Navy flew him to California to clear up the error. He testified that he never knew that there was any change in his discharge status, that he never saw or signed a second discharge form, and that he was unaware of the August DD 214's existence until Chief Edelen informed him of it in April 2012. Immediately thereafter, he filed a petition with the Navy Discharge Review Board to correct his discharge status, which was still pending as of the date of the legal proceedings below.

[¶ 7] The ALJ issued an order revoking Comer's certification, concluding that it had been issued on the basis of information later determined to be false. The Board affirmed the ALJ's decision, and Comer filed a petition for judicial review. The trial court issued an order setting aside the revocation order, concluding that the Board's determination was arbitrary and capricious and unsupported by ...

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