The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
RICHARD B. REITER )
)
Plaintiff, )
) NO. 3:23-cv-00678
v. )
) JUDGE CAMPBELL
FRANK KENDALL III, Secretary, United ) MAGISTRATE JUDGE HOLMES
States Air Force, )
)
Defendant. )
ORDER
Pending before the Court is the Magistrate Judge’s Report and Recommendation (Doc. No.
33), which was filed on February 7, 2025. Through the Report and Recommendation, the
Magistrate Judge recommends that Plaintiff’s cross motion for judgment on the administrative
record (Doc. No. 24) be denied and that Defendant’s motion for judgment on the administrative
record (Doc. No. 26) be granted. Plaintiff filed objections (Doc. No. 34), and Defendant filed a
response to Plaintiff’s objections (Doc. No. 35). For the reasons discussed below, the Magistrate
Judge’s Report and Recommendation is adopted and approved.
I. STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1) and Local Rule 72.02, a district court reviews de novo any
portion of a report and recommendation to which a specific objection is made. United States v.
Curtis, 237 F.3d 598, 603 (6th Cir. 2001). General or conclusory objections are insufficient. See
Zimmerman v. Cason, 354 F. Appx. 228, 230 (6th Cir. 2009). Thus, “only those specific objections
to the magistrate’s report made to the district court will be preserved for appellate review.” Id.
(quoting Smith v. Detroit Fed’n of Teachers, 829 F.2d 1370, 1373 (6th Cir. 1987)). In conducting
the review, the court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
II. ANALYSIS
A. Background
Plaintiff served as an active-duty Air Force officer from December 1993 until August 1998
and then served in the Air Force Reserves from September 1998 until he retired in June 2021.
(Doc. No. 1 ¶¶ 11, 26). In 2016, Plaintiff was eligible for promotion to the rank of Colonel. (Id. ¶
27). The CY 16 Air Force Reserve Line and Nonline Colonel Promotion Selection Board with
Board ID V0616A (the “Promotion Board”) oversaw Plaintiff’s promotion process.
Plaintiff’s senior rater, Lieutenant General Stayce D. Harris, completed a promotion
recommendation form (“PRF”) for Plaintiff. Before the Promotion Board meeting, Plaintiff
received a PRF completed by Lt. Gen. Harris that ranked Plaintiff as number 1 of the total number
of officers designated as “definitely promote” (the “#1 PRF”). (AR 15). However, the PRF for
Plaintiff that the Promotion Board received was also completed by Lt. Gen. Harris but ranked
Plaintiff the second of two officers designated as “definitely promote” (the “#2 PRF”). (AR 16).
Plaintiff was not promoted to Colonel. (Doc. No. 1 ¶ 29). Plaintiff subsequently learned that the
PRF he received was different than the PRF received by the Promotion Board. Plaintiff then
submitted an application to the Air Force Board for Correction of Military Records (the
“Correction Board”) to request that his records be corrected and that a Special Selection Board
consider the #1 PRF received by Plaintiff rather than the #2 PRF received by the Promotion Board.
(AR 12).
The Air Reserve Personnel Center, Promotion Board issued an advisory opinion that stated
that without documentation from Lt. Gen. Harris to confirm that the incorrect PRF was submitted,
the Promotion Board must use the PRF submitted by Lt. Gen. Harris. (AR 20). Plaintiff submitted
a rebuttal to the advisory opinion. (AR 38-41). The Correction Board determined that Plaintiff had
not been “the victim of an error or injustice” and denied Plaintiff’s application on March 19, 2018.
(AR 42 – 44). The Correction Board advised Plaintiff that it may be willing to reconsider if Plaintiff
submitted documentation from Lt. Gen. Harris stating that the incorrect PRF was submitted. (AR
44).
Plaintiff submitted a second application to the Correction Board on June 27, 2018. The Air
Reserve Personnel Center, Promotion Board issued a second advisory opinion and recommended
that Plaintiff be given an opportunity to submit a letter to the board regarding his concerns about
the PRF and that, if he did so, a Special Selection Board be convened in lieu of the Promotion
Board. (AR 82-84). Plaintiff again submitted a rebuttal to the advisory opinion and requested that
the Correction Board promote him to colonel without convening a Special Selection Board, or that
a Special Selection Board convene and consider the #1 PRF rather than the #2 PRF. (AR 92 –
100).
On January 24, 2019, the Correction Board determined that Plaintiff had demonstrated an
error or injustice with respect to part of his request. (AR 7-9). Specifically, the Correction Board
determined that the incorrect PRF was mailed to Plaintiff and that Plaintiff was denied the
opportunity to discuss his rating with his senior rater or submit a letter to the Promotion Board,
which the Correction Board found was an error or injustice. The Correction Board recommended
that Plaintiff’s pertinent military records be corrected to ensure that he be granted supplemental
promotion consideration utilizing the PRF provided by Lt. Gen. Harris and that Plaintiff be given
the opportunity to submit a letter to the board president. (AR 7-9). With regard to the remainder
of Plaintiff’s request, the Correction Board determined that “the evidence did not demonstrate
material error or injustice and the application could only be reconsidered upon receipt of relevant
evidence not already considered by the Board.” (AR 10). Plaintiff submitted a letter to the board’s
president and requested that his records be reviewed with the #1 PRF instead of the #2 PRF. (Doc.
No. 1-5). Plaintiff was not selected for promotion and retired as a Lieutenant Colonel in 2021.
(Doc. No. 1 ¶ 45). Plaintiff subsequently commenced this lawsuit under the Administrative
Procedure Act.
B. The Administrative Procedure Act
“Federal courts have the authority to review the decision of a military board of correction
under the Administrative Procedure Act (APA).” Bolton v. Dep't of the Navy Bd. for Correction
of Naval Recs., 914 F.3d 401, 406 (6th Cir. 2019) (internal citation omitted). Decisions of military
correction boards “are ‘subject to judicial review and can be set aside if they are arbitrary,
capricious or not based on substantial evidence.’” Id. (internal citation omitted). “Moreover, this
court is without authority to reverse a decision of [a military board of correction] unless it is: found
to be arbitrary, capricious, or in bad faith, or unsupported by substantial evidence, or is contrary
to applicable laws and regulations.” Covill v. United States, 959 F.2d 58, 63 (6th Cir. 1992).
The Supreme Court has recognized that an agency’s decision is “arbitrary and capricious”
when it “has relied on factors which Congress had not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Nat'l Ass'n of Home Builders v. Defs. of
Wildlife, 551 U.S. 644, 658, 127 S. Ct. 2518, 2529, 168 L. Ed. 2d 467 (2007) (internal citation
omitted). Regarding the “substantial evidence” standard, the court must “ask whether a ‘reasonable
mind might accept’ a particular evidentiary record as ‘adequate to support a conclusion.’” Visconi
v. United States, No. 3:12-CV-01012, 2013 WL 2467715, at *8 (M.D. Tenn. June 7, 2013)
(internal citation omitted). “If [the agency’s decision] is supported by substantial evidence, the
[agency’s] determination must stand regardless of whether the reviewing court would resolve the
issues of fact in dispute differently.” Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993).
Review of decisions of military correction boards “involves ‘an unusually deferential
application of the ‘arbitrary or capricious’ standard” of the APA’” because “[t]he statutory
provisions at issue here draw a ... distinction between the objective existence of certain conditions
and the Secretary's determination that such conditions are present. The Secretary, acting through
the Board, ‘may correct any military record of that department when he considers it necessary to
correct an error or remove an injustice,’ 10 U.S.C. § 1552(a) (emphasis added), not simply when
such action is necessary to correct an error or to remove an injustice.” Bolton, 914 F.3d at 407
(internal citation omitted) (emphasis in original). The Sixth Circuit has recognized that “[t]his
extra-deferential standard ‘is calculated to ensure that the courts do not become a forum for appeals
by every soldier dissatisfied’ with military action against him, ‘a result that would destabilize
military command and take the judiciary far afield of its area of competence.’” Id. (internal
citations omitted).
A military correction board has discretion in its decision-making but is “still required to
explain how it reached its decision” and when it “denies a petition to correct a record, it must
provide a ‘brief statement of the grounds for denial,’ which must include ‘the reasons for the
determination that relief should not be granted, including the applicant's claims of constitutional,
statutory, and/or regulatory violations that were rejected, together with all the essential facts upon
which the denial is based.’” Id. (internal citation omitted). A military correction board’s decision
is required to “minimally contain a rational connection between the facts found and the choice
made.” Id. (internal citation omitted).
C. Plaintiff’s First Objection
Plaintiff first objects to the Magistrate Judge’s “fail[ure] to conclude the Air Force Board
for Correction of Military Records (AFBCMR) did not properly determine the nature of the error
and act to fully erase it.” (Doc. No. 34 at PageID # 413). Plaintiff states that “[t]he Magistrate
Judge concluded, ‘while the referenced statute and regulations certainly set forth the process for
receiving, reviewing, and challenging PRFs, Plaintiff has failed to point to any language that would
required the PRF to be ‘expunged’ in the manner that Plaintiff argues is necessary’” and that “[t]he
Magistrate Judge further concludes, ‘Plaintiff has failed to demonstrate that the Correction Board
violated any applicable law or statutes.” (Id.). Plaintiff contends that it is undisputed that the
requirements for “issuing and downgrading PRFs were not followed regarding the #2/4 PRF” and
that it is undisputed “that the #1/9 PRF received by [Plaintiff] from Lt Gen Harris does meet all
regulatory requirements necessary to be a valid PRF and a valid agency action.” (Id. at PageID #
414).
Plaintiff also contends that he “has never been provided the #2/4 PRF by Lt. Gen. Harris,
as required by Air Force Instruction (AFI) 36-2406 ¶ 8.2.3.1.5,” that Plaintiff “was never notified
of the intent to change the PRF from the #1/9 PRF provided to him to the #2/4 PRF submitted to
the Central Selection Board…, as required by AFI 36-2406,” that he was “never provided a copy
of a changed PRF or the letter that must accompany it, as required by AFI 36-2406 ¶ 8.5.3.2,” and
that he “was never advised of his right to apply for a correction of the downgraded PRF or to
appeal the downgraded PRF, when AFI 36-2406, ¶A2.6 clearly states that ‘a material error in the
PRF preparation process, may justify changes to your PRF.” (Id.)
Plaintiff also asserts that “[t]he Magistrate Judge’s determination that Plaintiff failed to
demonstrate authority for the Court to ‘expunge’ the invalid PRF is found in the constitutional
created judicial power and the authority, and responsibility, inherent in that power to enforce the
law and set aside agency action inconsistent with the law” and that “[t]he Magistrate Judge
concludes that the #2/4 PRF was the ‘official document’… [b]ut the ‘official document’ is one that
was created in contravention of the law” and “[t]his Court must set aside the agency action of
issuing, and presenting to the CSB and SSB, the #2/4 PRF.” Id.
The Magistrate Judge determined that the Correction Board’s decision was not contrary to
law and that “[t]he Correction Board concluded that Plaintiff ‘presented evidence sufficient to
demonstrate an error or injustice regarding part, but not all, of his request’” and that while the
Correction Board found that Plaintiff proved that “he was mailed the incorrect PRF, and was
denied the opportunity to discuss his rating with his Senior Rater or to write a letter to the
promotion Board,” it determined that Plaintiff did not prove any other errors or injustices. (Doc.
No. 33 at PageID # 405). The Magistrate Judge also determined that the Correction Board’s finding
was “in line with the requirement in 10 U.S.C. § 14107 that certain specified information must
first be made available to the promotion eligible officer, who shall be afforded a ‘reasonable
opportunity’ to submit comments to the Promotion Board about that specified information” and
that “while the referenced statute and regulations certainly set forth the process for receiving,
reviewing, and challenging PRFs, Plaintiff has failed to point to any language that would require
PRFs to be ‘expunged’ in the manner that Plaintiff argues is necessary” and “[i]t may be necessary
for a senior rater to inform an officer if a PRF is being downgraded, but there is no indication that
a PRF be ‘expunged’ if the officer did not receive it, as is the case here.” (Doc. No. 33 at PageID
# 406).
The Court agrees with the Magistrate Judge’s finding. Here, the record establishes that the
Correction Board recommended partially granting Plaintiff’s application and acknowledged that
Plaintiff was not aware of the information in his record and did not have a reasonable opportunity
to submit comments to the Promotion Board regarding the #2 PRF because he did not receive it,
as required by 10 U.S.C. § 14107. (AR 9). Moreover, the Correction Board recommended that
Plaintiff’s military records be corrected to ensure he was granted promotion consideration utilizing
the performance recommendation form provided by Plaintiff’s senior rater and that Plaintiff be
given the opportunity to provide a letter to the board president. (AR 10). Plaintiff has not
established that the Correction Board failed to property determine the nature of the error or act to
fully erase it.
Accordingly, with regard to the Magistrate Judge’s finding that Plaintiff failed to
demonstrate that the Correction Board violated any applicable laws or statutes, the Court finds no
error.
D. Plaintiff’s Second Objection
Plaintiff next objects that the Magistrate Judge “failed to conclude the AFBCMR acted
arbitrarily and capriciously by not seeking additional evidence or opinions only it could have
secured.” (Doc. No. 34 at PageID # 417). Plaintiff specifically “objects to the R&R’s conclusion
that the AFBCMR had no obligation to secure additional information” on the grounds that “[t]he
AFBCMR did not need to become an ‘investigative body’ to obtain the missing information by
requesting an advisory opinion from 22nd Air Force, which required no more of the AFBCMR
than a staff officer creating a tasking to the unit, as was done with respect to ARPC/PB” and that
“this was warranted based on the absence of any factual information as to what actually happened
to cause the error (a question still not answered today), the imbalance of power between Plaintiff
(an O-5) and Lt Gen Harris (then an O-8), and the ease with which the AFBCMR could get 22nd
Air Force to put the complete facts on the record given it possessed information that Plaintiff could
not possibly obtain on his own.” (Doc. No. 34 at PageID # 418).
Plaintiff made similar arguments in his motion for judgment on the administrative record
(Doc. No. 24), which the Magistrate Judge addressed. The Magistrate Judge determined that under
32 C.F.R. § 365.2(c), the Correction Board “‘may’ call for additional evidence, but…such a
decision is ‘in its discretion” and “is under no obligation to do so.” (Doc. No. 33 at PageID # 410).
The Magistrate Judge also recognized that “[t]he Correction Board is explicitly deemed to ‘not’
be an ‘investigative body’” and that the case relied on by Plaintiff, Buchanan v. U.S., 621 F.2d 373
(Ct. Cl. 1980), is distinguishable from the present case. Specifically, the Magistrate Judge
determined that the Court in Buchanan “held that it could not determine the basis of the correction
board’s denial of the plaintiff’s appeal because the correction board’s ‘decision was without any
kind of discussion of the evidence presented to it’” and “the court was not able to determine what
consideration, if any, the correction board gave to evidence presented by the plaintiff” unlike the
present case, where the Correction Board considered Plaintiff’s evidence. (Id. at PageID # 401).
After reviewing the record, the Report and Recommendation, and the parties’ filings, the
Court agrees with the Magistrate Judge’s finding that the Correction Board’s decision to call for
additional evidence is discretionary. See 32 C.F.R. § 865.2 (“The Board…is not an investigative
body” and “the Board may, in its discretion…call for additional evidence or opinions in any case.).
Moreover, the Court agrees that Buchanan is distinguishable from the present case and fails to
support Plaintiff’s argument that the Correction Board’s decision not to seek additional evidence
was arbitrary and capricious. See Buchanan, 621 F.2d at 383 (“It is impossible for us to determine
what consideration the correction board gave specific submissions that plaintiff presented to
it…The court finds itself unable to determine the basis of the correction board's denial of LCDR
Buchanan's appeal, since its decision was without any kind of discussion of the evidence presented
to it…we conclude that the correction board's final determination to deny plaintiff's application
without a hearing or written explanation lacked a rational basis, was not supported by substantial
evidence, and was contrary to law.”). In the present case, the administrative record demonstrates
that the Correction Board considered Plaintiff’s evidence.
Accordingly, the Court finds no error in the Magistrate Judge’s conclusion that the
Correction Board’s decision to not seek additional evidence was not arbitrary or capricious or in
violation of any laws.
E. Plaintiff’s Remaining Objections
Plaintiff also objects to the Magistrate Judge’s conclusions that “(1) the record contains
substantial evidence to support the AFBCMR’s findings of fact; (2) that the AFBCMR’s
determination that the #2/4 PRF was the “correct” PRF and that presenting it to the CSB and SSB
did not constitute an error or injustice; and (3) the remedy ordered by the AFBCMR was adequate.”
(Doc. No. 34 at PageID # 420).
The Magistrate Judge determined that “[t]he Court must give the ‘benefit of the doubt’ to
the Correction Board” and that “a “reasonable mind” could find adequate support for the
Correction Board’s conclusion that the 2/4 PRF was the “correct” one.” (Doc. No. 33 at PageID #
411). The Magistrate Judge also determined that “[t]he relief provided by the Correction Board
allowed Plaintiff to provide feedback on his PRF because he was not afforded that opportunity
originally because of an error or injustice made by either Lt. Gen. Harris or others” and that “this
relief fully and effectively addresses and remedies the error that the Correction Board identified.”
(Id. at PageID # 408).
The Court agrees and finds no error in the Magistrate Judge’s determinations regarding
substantial evidence to support AFBCMR’s findings of fact, that a reasonable mind could find that
the #2 PRF was the “correct” one, and that the remedy by the AFBCMR was adequate.
Til. CONCLUSION
For the reasons stated, Plaintiff's objections ae OVERRULED and the Magistrate Judge’s
Report and Recommendation is ADOPTED and APPROVED. Accordingly, Plaintiffs Cross
Motion for Judgment on the Administrative Record (Doc. No. 24) is DENIED, and Defendant’s
Motion for Judgment on the Administrative Record (Doc. No. 26) is GRANTED.
It is so ORDERED.
he Zo C. Mf
Ala L. CAMPBELLWR.
CHIEF UNITED STATES DISTRICT JUDGE
11