# Taylor v. Del Toro

> District Court, D. Massachusetts · August 14, 2025

URL: https://www.frixlaw.com/law-library/cases/11120910

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** August 14, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11120910

## How later opinions describe it (automated extraction)

- 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)

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11120910. Public record. Not legal advice.