Michael Baxley v. Daniel Driscoll

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 15, 2026 Decided June 26, 2026

No. 24-5104

MICHAEL C. BAXLEY,

APPELLANT

v.

DANIEL DRISCOLL, IN HIS OFFICIAL CAPACITY AS SECRETARY

OF THE ARMY, AND UNITED STATES ARMY BOARD FOR

CORRECTION OF MILITARY RECORDS,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-02245)

Michael C. Baxley, pro se, filed the briefs for appellant.

MaKade C. Claypool, appointed by the Court, argued the

cause as amicus curiae in support of appellant. With him on

the briefs was Matthew J. Glover.

Johnny H. Walker, III, Assistant United States Attorney,

argued the cause for appellees. With him on the brief were

Jeanine Ferris Pirro, United States Attorney, and Brian P.

Hudak, Assistant United States Attorney.

2

Before: HENDERSON and WILKINS, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WILKINS.

Concurring Opinion filed by Circuit Judge HENDERSON.

WILKINS, Circuit Judge: Michael C. Baxley brought suit

in the District Court to review the decision of the Army Board

of Correction of Military Records (the “Board”) to not upgrade

Mr. Baxley’s discharge to “honorable” status. Mr. Baxley

asserted that exempt evidence was used during his discharge

proceeding thus requiring an “honorable” discharge under the

1976 U.S. Army Regulation 600-85 Exemption Policy (the

“Exemption Policy”). He also asserted that the applicable

Army guidance regarding upgrading discharges due to mental

health conditions (the “Kurta Memorandum”) was not

followed. The District Court granted the Board’s motion for

summary judgment on both issues. Because the Board made

key errors regarding the exempt evidence issue that render the

Board’s decision arbitrary and capricious, we reverse and

remand in part. Because the Board did not make errors

regarding the applicable Army guidance, we affirm in part.

I.

A fuller recitation of the facts can be found in the District

Court’s opinions in Baxley v. Wormuth, No. 1:21-cv-2245,

2024 WL 774854 (D.D.C. Feb. 26, 2024), reconsideration

denied, No. 1:21-cv-2245, 2024 WL 3443326 (D.D.C. July 15,

2024), and aff’d in part sub nom. Baxley v. Driscoll, No. 24-

5104, 2025 WL 717384 (D.C. Cir. Feb. 28, 2025). Only the

most salient facts related to Mr. Baxley’s appeal are set forth

below.

3

Mr. Baxley joined the Army in 1974. Due to a series of

misconduct, Mr. Baxley was identified by the Army as a “drug

abuser” and joined the Alcohol and Drug Addiction Prevention

and Control Program (the “ADAPCP”), which is the Army’s

rehabilitation program. J.A. 140, 236. In November 1975,

however, the Army designated him a rehabilitation program

failure. Afterwards, Mr. Baxley was involved in further

misconduct and violence including at another service post to

which he was transferred.

Subsequently, Mr. Baxley’s captain recommended that

Mr. Baxley be discharged for “misconduct.” J.A. 155. At the

time, Mr. Baxley also participated in a mental health evaluation

to determine his fitness for service (the “September 1976

Mental Health Exam”), and the evaluator found that Mr.

Baxley did not appear to be “[d]epressed” or suffering from a

“[s]ignificant mental illness.” J.A. 160.

In October 1976, a discharge board convened to decide

whether Mr. Baxley should be discharged. At the start of those

proceedings, the Army’s prosecutor introduced evidence

including several documents highlighting Mr. Baxley’s

rehabilitation failure designation.1 Mr. Baxley’s counsel did

1

These documents include the following:

Exhibit C-6: A “Social Work Inprocessing Form” from August

1976, explaining that Mr. Baxley “qualifies for … discharge” based

on “the documentation in his 201 file” (i.e., his personnel file), which

included “records [that Mr. Baxley] was considered [an] ADAPCP

failure.” J.A. 204–05.

Exhibit C-8: “Correctional Progress Notes” from September 1976,

stating that Mr. Baxley “had been identified as a drug rehab failure.”

J.A. 173.

Exhibit C-18: “Bar to Reenlistment” certificate, stating that Mr.

Baxley “has been identified as a drug rehabilitation failure” with “no

feasible improvement in the future.” J.A. 236.

4

not object to the evidence, and the entire packet was given to

the discharge board. Mr. Baxley then offered his own

statement admitting he “was sent to a drug rehabilitation

program,” but was “found to be a rehabilitative failure.” J.A.

145.

The discharge board ultimately recommended that Mr.

Baxley be discharged with an “Undesirable Discharge

Certificate,” relying on Mr. Baxley’s court martial conviction

and “[n]umerous discreditable incidents.” J.A. 146. But the

discharge board recognized that some of the documents

presented “were . . . possibly exempt information according to”

the Exemption Policy and thus were not considered. Id. Less

than a week later, Mr. Baxley’s counsel filed an objection letter

explaining “that certain evidence present in the ‘board packet

. . .’ was in fact ‘exempt’ as defined in [the Exemption Policy].”

J.A. 141. Counsel also explained that while the discharge

board “indicated that it [had] disregarded this evidence,” the

Exemption Policy forbids even “the presence of the evidence

of the packet . . . presented to the board.” Id. Mr. Baxley’s

counsel also explained, “by referring to [Mr. Baxley] as a

rehabilitation failure,” the packet evidence “indirectly

indicates that he had used drugs after enrollment in the

program,” and this was prohibited evidence under the

Exemption Policy. Id. At any rate, Mr. Baxley’s counsel

argued, “once the evidence was read it [was] impossible to say

that it had no effect at all” on the discharge board’s decision.

Id.

This objection prompted a staff judge advocate to issue an

advisory opinion explaining why the evidence introduced was

Exhibit C-22: “Correctional Progress Notes” from August 1976,

stating that Mr. Baxley “has been declared a drug/alcohol rehab

failure.” J.A. 177.

5

not exempt. J.A. 140. Following the advisory opinion, the

discharge board’s recommendation was approved, and Mr.

Baxley was discharged on November 10, 1976 with an “under

other than honorable conditions discharge.” J.A. 33–34. A few

years later—and for reasons “unknown”—Mr. Baxley’s status

was upgraded to “under honorable conditions (general).” J.A.

34; accord J.A. 133.

Flashing forward a few decades, by early 2003, Mr.

Baxley was diagnosed with a major depressive disorder and

prescribed antidepressants and medication to curb his

substance addictions. In 2018, the Department of Veterans

Affairs (the “VA”) found that “[b]ased on a review of the

evidence” submitted, Mr. Baxley had a “[s]ervice connect[ed]”

mental health condition “for Persistent Depressive Disorder.”

J.A. 118. The VA also later found that Mr. Baxley’s service-

connected condition rendered him unemployable and

permanently disabled, qualifying him to receive one hundred

percent disability benefits. This determination allowed Mr.

Baxley to start receiving benefits in March 2018. However,

Mr. Baxley could not access some of these benefits because he

was unable to receive an identification card since his discharge

was not “honorable.”

In 2018, Mr. Baxley asked the Board to upgrade his “under

honorable conditions” discharge status to “honorable.” The

Board considered Mr. Baxley’s request initially and upon

voluntary remand as well. Two Army medical advisors

reviewed Mr. Baxley’s record and found that he did not

experience a “behavioral health condition” during service, J.A.

108, because the September 1976 Mental Health Exam

indicated Mr. Baxley “did not have a psychiatric disorder,” J.A.

69. The Board did analyze the questions outlined in the Kurta

Memorandum but found that “evidence” of a “mitigating

behavioral health condition … very thin.” J.A. 46. The Board

6

also did not find a violation of the Exemption Policy because

Mr. Baxley “did not object to the introduction of any

documents submitted by the government at the outset of the

hearing;” Mr. Baxley himself “introduced and discussed his

substance abuse rehabilitation efforts” during the discharge

hearing; and the staff judge advocate’s advisory opinion

“persuasively addresse[d] and answer[ed]” that “evidence of

substance abuse rehabilitation was [not] improperly used to

involuntarily separate” Mr. Baxley. J.A. 47. Mr. Baxley

challenged the Board’s decision in the District Court. The

District Court granted summary judgment to the Board, and

Mr. Baxley appealed.

II.

Because this case arises under the Administrative

Procedure Act, this Court “accord[s] no particular deference to

the judgment of the District Court,” and instead “review[s] the

administrative action directly.” Coburn v. Murphy, 827 F.3d

1122, 1124 (D.C. Cir. 2016) (citation omitted). Accordingly,

this Court reviews the Board’s decision de novo “to determine

whether it was ‘arbitrary, capricious, an abuse of discretion or

otherwise not in accordance with law.’” Id. (quoting 5 U.S.C.

§ 706(2)); accord Haselwander v. McHugh, 774 F.3d 990, 996

(D.C. Cir. 2014).

III.

Mr. Baxley contends that evidence indicating that he was

a rehabilitation program failure is exempt evidence that

requires him to receive an “honorable” discharge because it is

evidence directly or indirectly developed by information that

he revealed to a counselor in the rehabilitation program.

Because the Board did not engage with this key question, its

decision was arbitrary and capricious as to this issue.

7

A.

The 1976 U.S. Army Regulation 600-85 Exemption Policy

(i.e., the Exemption Policy) is the contemporaneous Army

policy that governed disciplinary and evidentiary immunity for

an Army member involved in the ADAPCP. The purpose of

the Exemption Policy “[wa]s to facilitate effective

identification, treatment, and rehabilitation by eliminating the

barriers to successful communications between alcohol or

other drug abusers on the one hand, and ADAPCP counselors

or physicians supporting the program on the other.” U.S. Dep’t

of the Army Regul. (“AR”) 600-85 ¶ 3-15 (J.A. 223).

Accordingly, the Exemption Policy sought to prevent

disclosure of certain ADAPCP-related information from being

used against a servicemember in discharge proceedings, except

in certain circumstances. In relevant part, the Exemption

Policy requires an “honorable” discharge for the

servicemember whenever, inter alia, the Army’s prosecuting

officer initially introduces the following prohibited evidence to

the discharge board: “information, or evidence developed by

or as a direct or indirect result of such information, that is

revealed to a physician or ADAPCP counselor at a scheduled

interview or evaluation . . . .” AR 600-85 tbl. 3-1, col. D (1976)

(J.A. 227). The key question on appeal is whether evidence

that Mr. Baxley was a rehabilitation failure falls within the

bounds of this prohibited evidence.

B.

The Board made key errors that rendered its decision on

this exempt evidence issue arbitrary and capricious.

To start, the Board described the Exemption Policy in

effect in 1976 as “analogous” to the current “Limited Use

Policy,” adopted in 2020, AR 600-85 ¶ 10-12 (2020), without

8

acknowledging key differences between the policies that are

relevant to the analysis. For instance, the current Limited Use

Policy permits the introduction of protected evidence in certain

cases, e.g., for impeachment or rebuttal purposes, AR 600-85

¶ 10-12(d) (2020), while the 1976 policy did not. This is

important, because the Board seemed to rely upon the fact that

Mr. Baxley’s attorney did not initially object to the evidence

that Mr. Baxley had been deemed a “rehabilitation failure” and

that Mr. Baxley mentioned the rehabilitation failure finding

during his testimony too, see J.A. 47, even though the 1976

Exemption Policy is categorical and leaves no room for any

sort of harmless error analysis if, as here, the Army prosecutor

introduced the allegedly exempt evidence first, see AR 600-85

¶ 3-18(d) (1976) (J.A. 226) (“[I]f either the commander (in

his/her recommendation for discharge or in documents

forwarded with his/her recommendation), or any member of

the board of officers adjudicating the servicemember's case, or

the investigating officer/recorder presenting the case before the

board, initially introduces evidence prohibited above, the

member will receive an honorable discharge certificate,

regardless of his overall performance of duty.”).

Most significantly, the Board’s decision did not engage

meaningfully with the central question of whether the allegedly

exempt evidence, i.e., Mr. Baxley’s rehabilitation failure

designation, falls within the definition found in the Exemption

Policy’s table 3-1, column D. AR 600-85 tbl. 3-1, col. D

(1976) (J.A. 227). The Exemption Policy prohibits use of

“information, or evidence developed by or as a direct or indirect

result of such information, that is revealed to a physician or

ADAPCP counselor at a scheduled interview or evaluation.”

Id. (emphasis added). The Board seemed to adopt the staff

judge advocate position, see J.A. 140, that evidence in the form

of a rehabilitation failure designation is never exempt evidence

under the Exemption Policy. See J.A. 47. Such a categorical

9

approach does not comport with the text of the policy and how

such a designation is commonly formulated.

The text of the Exemption Policy protects information

“developed by” or “directly or indirectly resulting from”

information that Mr. Baxley provided to counselors or

physicians at scheduled sessions in the ADAPCP program.

The Board never considered whether Mr. Baxley’s

rehabilitation failure designation was likely developed by or

indirectly resulted from exactly such information. This is a

crucial flaw in the Board’s decision. The regulations required

that the immediate unit commander consult with rehabilitation

program staff when determining “rehabilitation progress,” see

AR 600-85 ¶ 5-8 (1976) (J.A. 233), and one way that

rehabilitation could be deemed a failure was if “[t]he

immediate unit commander, in consultation with the ADAPCP

rehabilitation staff, has determined that the service member

has received maximum benefit from rehabilitation efforts and

clearly demonstrates recalcitrance to the degree that further

rehabilitative efforts in the military environment would not

result in return to full effective duty.” See AR 600-85 ¶ 5-

8(b)(3) (1976) (J.A. 233) (emphasis added).

In other words, the regulations require that the immediate

unit commander consult with ADAPCP program staff in

making a rehabilitation progress determination, including

rehabilitation failure. The regulations then provide that a

commander could “develop” his or her conclusion that a

servicemember is a rehabilitation failure from talking to the

ADAPCP counselors about the soldier’s statements to them

during treatment, which could “directly or indirectly result” in

the commander determining that the soldier was “recalcitrant”

to further treatment. Indeed, several courts have described

events as unfolding in this very manner. See, e.g., Rogers v.

United States, 24 Cl. Ct. 676, 679 (1991), opinion corrected,

10

26 Cl. Ct. 255 (1992), and aff’d, 996 F.2d 317 (Fed. Cir. 1993)

(“Accordingly, after the acting commander consulted with the

rehabilitation team, he determined that [the service member]

was a rehabilitation failure, and made his final decision . . . to

separate him from military service.”); Martin v. McDonald,

761 F.3d 1366, 1370 (Fed. Cir. 2014) (discussing that alcohol

rehabilitation failure may be based on the participant’s “state

of mind at the end of the rehabilitation program”); Burchell v.

Dep’t of Army, 679 F. Supp. 1393, 1397 (D.S.C. 1988), aff’d

in part, rev’d in part sub nom. Rodgers v. Lehman, 869 F.2d

253 (4th Cir. 1989) (“[T]he plaintiff was terminated from the

ADAPCP as a ‘rehabilitation failure’ based on his ‘lack of

commitment to the treatment process and poor attendance

record.’”).

In sum, it is entirely possible that a rehabilitation failure

designation was developed as a direct or indirect result of Mr.

Baxley’s statements to his ADAPCP counselors, which would

fall squarely within the bounds of the Exemption Policy. The

Board found that the rehabilitation failure designation could

never come within the scope of the Exemption Policy. See J.A.

140. We reject this suggestion as implausible. Indeed, it would

appear that the only way that the rehabilitation failure

designation could not have been developed from exempt

evidence is if the commander somehow ignored all of the

information he gleaned from his required conferral with the

ADAPCP program staff when making his rehabilitation

progress determination. This seems unlikely and the Board

made no such finding.

If the rehabilitation failure designation included the

commander’s consideration of what he knew from his required

conferral with the ADAPCP program staff, then the

rehabilitation failure information introduced by the Army

prosecutor at Mr. Baxley’s discharge proceeding would be

11

exempt evidence requiring an “honorable” discharge for Mr.

Baxley. The Board did not ask, let alone answer, this central

question of what information was directly or indirectly used to

develop the rehabilitation failure designation, and both parties

agree that the answer is unclear based on the present record,

Amicus Br. 39; Appellee Br. 35. Without this answer, the

Board could not have determined whether exempt evidence

was introduced in Mr. Baxley’s discharge proceeding.

Accordingly, we reverse the District Court’s grant of

summary judgment for the Board as to the Exemption Policy

issue and remand with instructions to vacate the Board’s

decision as to this issue and remand to the Board for further

proceedings consistent with this opinion.

IV.

Mr. Baxley also contends that the Board failed to fully

consider the relevant factors outlined in the Kurta

Memorandum. We conclude that the Board’s decision was not

arbitrary and capricious on this issue because the Board,

through its medical advisors, engaged with the Kurta

Memorandum’s questions, none of which are binding.

A.

The Memorandum & Clarifying Guidance to Review

Boards Considering Requests by Veterans for Modification of

their Discharge Due to Mental Health Conditions (i.e., the

Kurta Memorandum) provides guidance for reviewing boards

considering applications to upgrade discharge status based on

mental health conditions. J.A. 119–23. The guidance, adopted

in 2017, was to be immediately implemented. The Kurta

Memorandum outlines four questions that are “typically

involve[d]” in a discharge status upgrade: (1) Did the veteran

12

have a condition or experience that may excuse or mitigate the

discharge? (2) Did that condition exist / experience occur

during military service? (3) Does that condition or experience

actually excuse or mitigate the discharge? (4) Does that

condition or experience outweigh the discharge? J.A. 120. The

Kurta Memorandum additionally provides principles and

factors to help guide the reviewing board’s inquiry, including

evidentiary principles and liberal construction principles.

None of these are binding on or dispositive for the Board.

B.

Upon remand, the Board’s medical advisor did parse

through each of the Kurta Memorandum questions. The Kurta

Memorandum does not purport to require that each of these

questions be answered but rather states that a discharge

upgrade review will “typically involve” these questions. J.A.

120. Nevertheless, the crux of the Board’s analysis grappled

with whether Mr. Baxley’s mental illness occurred during

service and if so, whether it mitigated the discharge. Though

the Kurta Memorandum does state that the VA’s determination

of a service-connected disability should be “persuasive

evidence” that the condition existed during military service, it

is expressly “not binding” so the Board is free to not bind itself

by such a determination. J.A. 121. And even if the Board did

find that Mr. Baxley’s mental illness occurred during his

service, there is still no clear evidence in the record that shows

that it excused or mitigated his extensive misconduct.

The Kurta Memorandum does require “liberal

consideration” when mental health conditions form the basis of

the discharge status review, but there is nothing that shows that

the Board, via the medical advisor, did not give liberal

consideration here. Moreover, the Kurta Memorandum

specifically states that “[l]iberal construction does not mandate

13

an upgrade.” J.A. 123. So, again, the Board is free to conclude

that even with liberal construction Mr. Baxley does not get far

enough.

Critically, the Kurta Memorandum does not require that

all factors that it lists must be included and considered at length

in the review, as Mr. Baxley seems to assert. Instead, it uses

language like “may also include” or “may be evidence” which

is permissive, rather than mandatory. See J.A. 120–23. Even

if the review was remanded again to the Board to consider all

the factors at length that Mr. Baxley argues for, it is unclear to

us whether the ultimate outcome would change given the

discretion afforded to the Board, so that alone counsels against

vacatur and remand on this issue. See Zevallos v. Obama, 793

F.3d 106, 115 (D.C. Cir. 2015).

Accordingly, we affirm the District Court’s grant of

summary judgment for the Board as to the Kurta Memorandum

issue.

V.

For the foregoing reasons, we reverse the District Court’s

grant of summary judgment for the Board on the Exemption

Policy issue and remand with instructions for the District Court

to vacate the Board’s decision on the Exemption Policy and

remand to the Board for further proceedings consistent with

this opinion. However, we affirm the District Court’s grant of

summary judgment for the Board on the Kurta Memorandum

issue.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

I agree with my colleagues that the Army Board for Correction

of Military Records (Board) failed to give serious consideration

to whether Army Regulation (AR) 600-85, as it existed at the

time of Baxley’s discharge, mandated that he receive an

Honorable discharge characterization. Accordingly, I join the

majority opinion in full. I write separately, however, to

highlight my view that the equities do not favor Baxley in this

case.

Baxley was in the U.S. Army for just over two years, from

September 1974 to November 1976. I recount the details of his

disciplinary history to underscore that the vast majority of that

time—in fact, almost the entirety—involved mischief rather

than service. Baxley arrived at his first duty station in January

1975 after the completion of his initial training. Within just

over four months, he was confined at a civilian jail for drug

violations. Six months later, civilian authorities again detained

Baxley for driving while intoxicated, reckless driving and

failure to stop for a red light (ultimately reduced to improper

driving). He was then sent to the Army’s Alcohol and Drug

Abuse Prevention and Control Program (ADAPCP) where he

was eventually designated a “rehabilitation failure.” J.A. 30.

After returning to his unit, Baxley underwent a special

court martial for “unlawfully grabb[ing]” a female soldier and

was found guilty. J.A. 203. He received a reduction in rank

and forfeiture of pay and was sent to a Retraining Brigade for

a period of confinement. Although his conduct there initially

showed promise, it again took a turn for the worse. In

September 1976, military police arrested Baxley for possession

of suspected (and later confirmed) marijuana. A week later,

Baxley was found without his pass. As punishment, he was

required to sign in every hour but soon failed to do so. Two

days later, Baxley got into a fistfight with another soldier. By

the end of his first month in the Retraining Brigade, Baxley’s

commanding officer recommended that he be discharged.

2

In November 1976, Baxley was separated from the Army

“Under Other than Honorable Conditions.” J.A. 137. Despite

his persistent misconduct, and for reasons unclear on this

record, Baxley’s discharge was upgraded to “Under Honorable

Conditions (General)”—the second highest characterization—

in 1979. J.A. 133.

Now, almost a half century later, Baxley continues to seek

further upgrade of his discharge that would grant him access to

the complete package of military benefits. He claims that

entitlement based not on the nature of his service but on a

technicality. Granted, if the Army chooses to mandate an

Honorable discharge under certain circumstances—as it did in

AR 600-85’s Exemption Policy—we do not second-guess that

decision. See Ass’n of Am. R.Rs. v. ICC, 978 F.2d 737, 740

(D.C. Cir. 1992) (“This Court is not to inquire as to whether

the agency’s decision is wise as a policy matter; indeed, we are

forbidden from substituting our judgment for that of the

agency.” (citation modified)). And, here, that choice reflects

an admirable desire to incentivize those struggling with

addiction to seek help. See Joel R. Alvarey, The Scope of the

Alcohol and Drug Abuse Prevention and Control Program’s

Exemption Policy, Army Law., Aug. 1980, at 12, 12 (noting the

Exemption Policy “grant[s] immunity for the purpose of

eliminating the barriers to communication” between those

addicted to drugs or alcohol and counselors). But I do not

believe that we should enable manipulation of such solicitude

to achieve inequitable results.

Setting aside the issue of Baxley’s rehabilitation failure,

the Board soundly rejected Baxley’s discharge-upgrade request

on the basis of his service record. It noted that Baxley

“engaged in numerous episodes of misconduct” and had a

“litany of . . . misbehavior.” J.A. 46. Moreover, the “offenses

leading to [Baxley’s] separation” were “of a criminal nature.”

3

J.A. 34. Accordingly, Baxley’s “military conduct can hardly

be described as ‘honorable’ unless it can be excused or

mitigated by a behavioral health condition,” which the Board

found it could not. J.A. 45; see Majority Op. at 11–13. This

reasoning was neither arbitrary nor capricious (and Baxley

does not attempt to argue otherwise).

Consequently, the only way Baxley can receive a

discharge upgrade on remand is to show that his discharge was

improperly based on a communication protected under the

Exemption Policy. I suspect this will be a difficult task. As

the one seeking an upgrade, Baxley bears the burden of

establishing by a preponderance of evidence the existence of

either an error or an injustice. 32 C.F.R. § 581.3(e)(2). On this

record, there is no direct evidence Baxley’s discharge was

based on a protected communication with an ADAPCP

counselor. See J.A. 227 (outlining what information is

protected); Oral Arg. at 42:58–43:51 (amicus conceding that

the reason for Baxley’s rehabilitation failure is not in the

record). In fact, there is some evidence to the contrary. See

Appellee’s Br. at 35 (suggesting Baxley’s rehabilitation-failure

designation was based on his arrest for driving under the

influence); J.A. 208.* Granted, the Board must demonstrate a

better understanding of AR 600-85, but I am inclined to believe

that even a steadfast application of the regulation as we

interpret it today will lead to the same result.

*

Amicus argues it is implausible that Baxley’s DWI on

November 26, 1975, J.A. 208, was the basis for the “November

1975” rehabilitation-failure designation, J.A. 205. Amicus Reply Br.

at 14. I see no reason that the designation could not have occurred

in the final days of the month before his release from jail.