Taylor v. Del Toro

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

EDUARDO TAYLOR, )

)

Plaintiff, )

) Civil Action

v. ) No. 24-cv-11479-PBS

)

JOHN C. PHELAN, SECRETARY OF THE )

NAVY, )

)

Defendant. )

___________________________________)

MEMORANDUM & ORDER

August 14, 2025

Saris, J.

INTRODUCTION

Ex-Marine Eduardo Taylor challenges the decision of the Board

for Correction of Naval Records (“BCNR” or “the Board”), a civilian

board within the Department of Navy, that denied his request to

upgrade his discharge status from Other-Than-Honorable (“OTH”) to

Honorable. Taylor contends that, at the time of his service, he

had undiagnosed post-traumatic stress disorder (“PTSD”) and major

depressive disorder caused by racism that mitigated his pattern of

misbehavior. He argues that the Board’s denial was arbitrary and

capricious under the Administrative Procedure Act (“APA”) and that

the Board failed to faithfully follow guidance from binding

Department of Defense (“DOD”) memoranda requiring liberal

consideration of PTSD and other mental health conditions in

discharge cases. The parties have filed cross-motions for summary

judgment.

After a hearing, the Court DENIES Taylor’s motion for summary

judgment (Dkt. 24) and ALLOWS the Secretary of the Navy’s cross-

motion for summary judgment (Dkt. 31).

BACKGROUND

I. Military Service

Taylor, an African American male, grew up in Medford,

Massachusetts, in the late 1970s where he experienced racism. In

1981, Taylor joined the Army National Guard two months after

graduating from Medford High School and served for two years.

During that time, he began drinking alcohol and experimenting with

marijuana.

On December 22, 1983, Taylor enlisted in the Marine Corps. He

completed bootcamp, graduating as platoon “Honorman” in 1984, and

attended Amphibious Assault Vehicle Training. He was assigned as

a Private First Class to Company C, 3d Assault Amphibian Battalion,

1st Marine Division, FMF, Camp Pendleton (“Charlie Company”).

While in Charlie Company, he was subjected to racial epithets

and physical harassment by fellow marines. Traumatized, Taylor

drank alcohol to excess. While drunk, he got into a fight with two

lance corporals. Although he claims there were no hard feelings,

he was found guilty of assault.

During his service in Charlie Company, Taylor received three

non-judicial punishments (“NJPs”) for disrespectful language,

assault, and wrongful appropriation of a stereo. He denied the

stereo theft charge, contending that it was later dropped when the

Marine who implicated him recanted. He also received four

administrative counseling sessions for poor judgment, lack of

professionalism, professional deficiencies, and driving under the

influence (“DUI”). In June 1986 he tested positive for cocaine,

but he denies intentionally using drugs.

Taylor was placed in summary court martial proceedings

(“SCM”) based on his violation of base driving privileges after

his DUI and the positive drug test. He was acquitted of the drug

charge but found guilty of driving without privileges.

Following that proceeding, Taylor was transferred to a new

command where there were no further racial incidents or

disciplinary problems. Nevertheless, the Corps initiated

separation proceedings for “a pattern of misconduct.” AR 48.1 The

Separation Board cited (1) disrespectful language to a corporal in

1984, (2) Taylor’s altercation with two lance corporals, (3) the

stereo theft, and (4) driving without base privileges. It

recommended, and the Corps approved, an OTH discharge for

1 Citations to “AR” refer to the Bates-stamped page numbers in the

Administrative Record filed by the parties.

misconduct by reason of a “Pattern of Misconduct.” Id. at 7. Taylor

was discharged on December 4, 1986.

Over the next three decades, Taylor struggled with alcohol

and drug use and, at times, physical aggression. In 2018, he began

therapy and has remained sober since. In 202l, a psychologist at

the Veterans Administration diagnosed him with PTSD related to his

military service.

II. Board Proceedings

On December 1, 2022, Taylor applied to the BCNR for an upgrade

of his OTH discharge to Honorable, contending that racial

discrimination and harassment during service caused PTSD and

depression that mitigated his misconduct. He submitted a

psychologist’s report, a personal affidavit, character references,

and documentation of post-service accomplishments. The BCNR also

received an advisory opinion from a staff psychologist, who

concluded that “[i]t is possible that some of [Taylor’s] misconduct

could be attributed to undiagnosed symptoms of PTSD or depression.”

Id. at 327.

On May 2, 2023, the BCNR issued a written decision denying

Taylor’s application. It concluded that “the mitigation evidence

[Taylor] provided was insufficient to outweigh the seriousness of

[his] misconduct.” Id. at 4. As to the Board’s treatment of the

diagnoses, the Board stated as follows:

In accordance with the Kurta, Hagel, and Wilkie Memos,

the Board gave liberal and special consideration to your

record of service, and your contentions about mental

health and the possible adverse impact your mental

health had on your conduct during service. Specifically,

the Board felt that your misconduct, as evidenced by

your three NJPs and SCM, outweighed these mitigating

factors. The Board considered the seriousness of your

misconduct and the fact that it involved assault and a

DUI. Further, the Board also considered the likely

negative impact your conduct had on the good order and

discipline of your command. The Board determined that

such misconduct is contrary to the Marine Corps values

and policy, renders such Marine unfit for duty, and poses

an unnecessary risk to the safety of fellow service

members.

Id. at 3.

The Board also noted that Taylor had not been diagnosed with

mental health conditions during service and denied any such issues

at separation and that the PTSD diagnosis was “temporally remote”

from his service. Id. at 3-4. It found that some “misconduct was

not due to mental health-related symptoms” but “was intentional

and demonstrated [he was] unfit for further service.” Id. at 4.

The Board acknowledged Taylor’s post-service accomplishments, but

found that they did not mitigate his in-service misconduct.

DISCUSSION

I. Legal Standard

A. Administrative Procedure Act

The APA allows a court to “set aside an agency decision if

that decision is ‘arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law,’ or if the decision is

‘unsupported by substantial evidence.’” Mahoney v. Del Toro, 99

F.4th 25, 34 (1st Cir. 2024) (quoting Sasen v. Spencer, 879 F.3d

354, 359-60 (1st Cir. 2018)); see 5 U.S.C. § 706(2)(A), (E). This

standard governs “judicial review of BCNR decisions.” Mahoney, 99

F.4th at 34. In conducting this review, the court must examine

“the whole record or those parts of it cited by a party.” Id.

(quoting Sasen, 879 F.3d at 360); see 5 U.S.C. § 706.

“Judicial review of agency decisions is ‘highly

deferential.’” Mahoney, 99 F.4th at 34 (quoting Atieh v. Riordan,

797 F.3d 135, 138 (1st Cir. 2015)). Thus, “a reviewing court must

uphold an agency’s decision that is free from ‘legal errors’ and

‘is supported by any rational review of the record.’” Id. (citation

omitted) (first quoting United States v. Sawyer, 521 F.3d 792, 794

(7th Cir. 2008); and then quoting Atieh, 797 F.3d at 138). The

“court ‘may not substitute its judgment for that of the [BCNR],

even if it disagrees with the [BCNR’s] conclusions.” Id.

(alterations in original) (quoting Atieh, 797 F.3d at 138).

B. Statutory Standard

Under 10 U.S.C. § 1552(a)(1), the “Secretary of the Navy may

through the BCNR ‘correct any military record of the [Navy] when

the Secretary considers it necessary to correct an error or remove

an injustice.’” Id. (alteration in original) (quoting 10 U.S.C.

§ 1552(a)(1)). This “language ‘enable[s] the Secretary, acting

through a civilian Correction Board, to change the kind of

discharge a former service [member] ha[s] received.” Id.

(alterations in original) (quoting Ashe v. McNamara, 355 F.2d 277,

280 (1st Cir. 1965)). The First Circuit has held that the language

of § 1552(a)(1) “substantially restrict[s] the authority of the

reviewing court to upset the Secretary’s determination” and

imposes an “unusually deferential standard of review.” Id. at 34

& n.2 (quoting Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1514

(D.C. Cir. 1989)). Other circuits agree. See, e.g., Bolton v. Dep’t

of the Navy Bd. for Corr. of Naval Recs., 914 F.3d 401, 407 (6th

Cir. 2019) (explaining that the court’s “review involves ‘an

unusually deferential application of the “arbitrary or capricious”

standard’ of the APA” (quoting Kreis, 866 F.2d at 1514));

Williams v. Wynne, 533 F.3d 360, 368 (5th Cir. 2008) (“In light of

this language, the review of military board judgments is

‘exceptionally deferential.’” (quoting Viles v. Ball, 872 F.2d

491, 495 (D.C. Cir. 1989))).

“Under its regulations, the BCNR ‘relies on a presumption of

regularity to support the official actions of public officers,’

and an applicant must present ‘substantial evidence’ of ‘probable

material error or injustice’ to overcome this presumption.”

Mahoney, 99 F.4th at 35 (quoting 32 C.F.R. § 723.3(e)(2)).

Accordingly, “‘the Board may deny relief if it concludes that “the

evidence of record fails to”’ refute this presumption.” Id.

(quoting Sasen, 879 F.3d at 360-61); see 32 C.F.R. § 723.3(e)(2).

The statute directs the BCNR to apply “liberal consideration”

when a “claim . . . for review of a discharge or dismissal is based

in whole or in part on matters relating to [PTSD] or traumatic

brain injury as supporting rationale” and the “[PTSD] or traumatic

brain injury is related to combat or military sexual trauma as

determined by the Secretary.” 10 U.S.C. § 1552(h)(1), (2)(B); see

Mahoney, 99 F.4th at 35. Under such circumstances, the BCNR must

“review the claim with liberal consideration to the claimant that

[PTSD] or traumatic brain injury potentially contributed to the

circumstances resulting in the discharge or dismissal or to the

original characterization of the claimant’s discharge or

dismissal.” 10 U.S.C. § 1552(h)(2)(B); see Mahoney, 99 F.4th at

35.

C. Department of Defense Memoranda

As the First Circuit has explained:

[DOD] has issued memoranda which advise Boards for

Correction of Military and Naval Records on review of

these claims. On September 3, 2014, a memorandum was

issued by then Secretary of Defense Chuck Hagel to the

secretaries of the military departments (“Hagel Memo”),

providing supplemental policy guidance for Boards

reviewing petitions to upgrade discharge statuses based

on claims of previously unrecognized PTSD diagnoses. The

Hagel Memo is “not intended to interfere with or impede

the Boards’ statutory independence to correct errors or

remove injustices through the correction of military

records.” [Dkt. 27-1 at 2.] The memorandum provides that

“[l]iberal consideration will be given in petitions for

changes in characterization of service to Service

treatment record entries which document one or more

symptoms which meet the diagnostic criteria of [PTSD] or

related conditions.” [Id. at 4.] The Hagel Memo further

provides that “[i]n cases in which PTSD or PTSD-related

conditions may be reasonably determined to have existed

at the time of discharge, those conditions will be

considered potential mitigating factors in the

misconduct that caused the under other than honorable

conditions characterization of service.” [Id.]

On August 25, 2017, then Undersecretary of Defense

Anthony Kurta issued a memorandum (“Kurta Memo”) whose

purpose, among others, is to provide “clarifying

guidance to . . . Boards for Correction of

Military/Naval Records . . . considering requests by

veterans for modification of their discharges due in

whole or in part to mental health conditions, including

[PTSD].” [Dkt. 27-3 at 3.] Like its predecessor,

the Kurta Memo’s guidance is “not intended to interfere

with or impede the Boards’ statutory independence.” [Id.

at 2.] In that context, the Kurta Memo states that among

its guidance, “[c]onditions or experiences that may

reasonably have existed at the time of discharge will be

liberally considered as excusing or mitigating the

discharge.” Id. at 4.

On July 25, 2018, a memorandum was issued by then

Under Secretary of Defense Robert Wilkie

(“Wilkie Memo”). The Wilkie Memo provides “standards

for . . . Boards for Correction of Military/Naval

Records . . . in determining whether relief is

warranted on the basis of equity, injustice, or

clemency,” and reinforces the BCNR’s broad discretion in

reviewing claims. [Dkt. 27-4 at 3.] The memorandum

specifies that its “guidance does not mandate relief,

but rather provides standards and principles to guide

[the Boards] in application of their equitable relief

authority. Each case will be assessed on its own merits.

The relative weight of each principle and whether the

principle supports relief in a particular case, are

within the sound discretion of each board.” [Id.]

Mahoney, 99 F.4th at 35-36 (footnote omitted).2 These memoranda

are binding on the Board when reviewing discharge upgrade

2 The Court has supplied citations to the record in this case for

quotations from the Hagel, Kurta, and Wilkie memoranda. Other

alterations are in the original.

petitions. See Doyon v. United States, 58 F.4th 1235, 1239 (Fed.

Cir. 2023).

II. Analysis

Taylor argues that the Board’s denial of his petition must be

set aside because the Board (1) failed to faithfully apply the DOD

memoranda by discounting his PTSD diagnosis as “temporally

remote,” (2) inadequately explained its conclusions, (3) did not

consider his conduct after Charlie Company and relied on

speculation, and (4) failed to treat him consistently with

similarly situated applicants. Applying the “unusually deferential

standard,” Mahoney, 99 F.4th at 34 n.2, the Court considers each

argument in turn.

A. Application of the DOD Memoranda

First, Taylor asserts that the Board failed to faithfully

apply the principles of the Hagel, Kurta, and Wilkie memoranda by

downplaying his service-connected PTSD and major depressive

disorder as “temporally remote to [his] service.” AR 3. The record

shows otherwise. While the Board noted that the diagnoses were

made decades after his discharge, it explicitly stated that it was

giving them “liberal and special consideration” and did not dispute

their validity. Id. Specifically, the Board recognized the

“possible adverse impact [Taylor’s] mental health had on [his]

conduct during service.” Id. The BCNR nonetheless concluded that

the misconduct “posed an unnecessary risk to the safety of fellow

service members.” Id.

The DOD memoranda do not compel a finding that PTSD and

related conditions mitigated all misconduct. The Hagel Memo

cautions that in cases of “serious misconduct” resulting in an OTH

discharge, “[p]otentially mitigating evidence of the existence of

undiagnosed combat-related PTSD or PTSD-related conditions . . .

will be carefully weighed against the severity of the misconduct.”

Dkt. 27-1 at 4-5 (emphasis added). Similarly, the Kurta Memo

provides that “the severity of misconduct may outweigh any

mitigation from mental health conditions.” Dkt. 27-3 at 5. In its

weighing, the Board cited “the seriousness of [Taylor’s]

misconduct,” including “the fact that it involved assault and a

DUI” and “the fact that [he was] driving while in a suspended

status after being arrested for DUI and totaling [his] car.” AR 3-

4. This reasoning aligns with precedent holding that the Board may

reasonably conclude that the severity of misconduct outweighs

mitigating factors, even where PTSD is established. See Mahoney,

99 F.4th at 36–37 (upholding denial where BCNR gave liberal

consideration but found drug-related misconduct dispositive).

While the racial incidents Taylor describes are serious, the BCNR’s

conclusion that his misconduct outweighed mitigating factors

reflects precisely the type of discretionary weighing contemplated

by the DOD memoranda and entitled to deference under the APA.

B. Adequacy of the Board’s Explanation

Second, Taylor argues that the Board failed to adequately

explain two aspects of its decision. Specifically, the Board

concluded that some of Taylor’s misconduct “was not due to mental

health-related symptoms [but], rather, was intentional and

demonstrated [he was] unfit for further service,” without

specifying which incidents it considered intentional, how that

conduct rendered him unfit, or why the mitigating evidence was

insufficient. AR 4. He also challenges as illogical the Board’s

statement that “[a]s Taylor denies the charges of theft and cocaine

usage, that misconduct cannot be attributed to a mental health

condition.” Id. at 3. The Court agrees that a denial of the

underlying allegations does not, by itself, foreclose the

possibility that the conduct, if it occurred, was influenced by a

mental health condition.

Nonetheless, the record demonstrates that the BCNR’s decision

rested on the DUI, the assaults, and their “negative impact” on

the “good order and discipline” of the command, not the theft or

cocaine allegations. Id. The Board was not required to accept

Taylor’s explanation that the assaults were minor and that “there

were no hard feelings.” Id. at 46; see Mahoney, 99 F.4th at 36-37

(upholding BCNR’s rational rejection of petitioner’s effort to

minimize the misconduct).

Moreover, while the Board’s opinion could have identified

which conduct it found was likely unrelated to Taylor’s PTSD and

mental illness, an agency’s decision need not “be a model of

analytic precision to survive a challenge.” Dickson v. Sec’y of

Def., 68 F.3d 1396, 1404 (D.C. Cir. 1995). Rather, the question is

whether the Board articulated a rational connection between the

evidence and its conclusion. See Motor Vehicle Mfrs. Ass’n of U.S.,

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

Here, the BCNR’s emphasis on the nature of the DUI and assault,

and their adverse effect on unit discipline, provides such a

connection.

C. Impact on Good Order and Discipline

Third, Taylor points to his strong in-service performance

after leaving Charlie Company and his subsequent good conduct as

evidence undermining the BCNR’s conclusion that his misconduct had

a negative impact on his command and rendered him unfit for duty.

The record reflects that after his transfer, he experienced no

further disciplinary incidents and received positive evaluations,

and in recent years he has maintained sobriety and been an active

member of his community. Commendable as these facts are,

rehabilitation and post-transfer performance are only two of many

factors the BCNR must consider under the DOD memoranda. See Dkt.

27-4 at 5. Under the deferential standard of review, the Court

cannot reweigh those factors in place of the BCNR. See Conservation

L. Found. of New Eng., Inc. v. Sec’y of the Interior, 864 F.2d

954, 958 (1st Cir. 1989) (“It is important to note that this Court

cannot substitute its own judgment for that of the agency.”).

Taylor further argues that, in light of his strong performance

after leaving Charlie Company, the BCNR’s conclusion that his

misconduct “likely” had a negative impact on the unit is

speculative. AR 3. The record, however, supports the BCNR’s

determination that Taylor’s assaults, DUI, and unauthorized use of

a vehicle were serious offenses that could reasonably be viewed as

threatening the “good order and discipline” of the command. Id.

While reasonable minds might weigh the evidence differently, the

BCNR’s judgment on this point falls within the broad discretion

afforded to it under 10 U.S.C. § 1552(a)(1) and the APA.

D. Comparison to Allegedly Similarly Situated Applicant

Finally, Taylor argues that the Board erred by failing to

treat him the same as another applicant who experienced racial

discrimination during service and successfully obtained an upgrade

from a general to an honorable discharge. See id. at 71–74. “It is

axiomatic that ‘[a]n agency must treat similar cases in a similar

manner unless it can provide a legitimate reason for failing to do

so.’” Wilhelmus v. Geren, 796 F. Supp. 2d 157, 162 (D.D.C. 2011)

(alteration in original) (quoting Kreis v. Sec’y of Air Force, 406

F.3d 684, 687 (D.C. Cir. 2005)).

This obligation arises when cases are similarly situated.

But, as the government points out, the comparator case differs

from Taylor’s. The comparator sought to upgrade a general

discharge, not an OTH discharge; the nature and severity of his

underlying misconduct differed; and the comparator did not assert

PTSD or another mental health condition as a basis for relief.

Ultimately, under the Court’s “unusually deferential” review,

Taylor has not provided “‘substantial evidence’ of ‘probable

material error or injustice,’” and the Court therefore upholds the

BCNR’s decision. Mahoney, 99 F.4th at 34 n.2, 35 (quoting 32 C.F.R.

§ 723.3(e)(2)).

ORDER

For the foregoing reasons, the Court DENIES Taylor’s motion

for summary judgment (Dkt. 24) and ALLOWS the Secretary’s cross-

motion for summary judgment (Dkt. 31).

SO ORDERED.

/s/ PATTI B. SARIS

Hon. Patti B. Saris

United States District Judge