PRICE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BRANDON PRICE, )

)

Plaintiff, )

)

vs. ) Case No.: 2:24-cv-01561-MJH

)

ARMY REVIEW BOARD AGENCY )

)

Defendant. )

)

)

)

OPINION

Pending before the Court is an action brought by Plaintiff, Brandon Price, proceeding pro

se, under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06, against Defendant, the

Army Review Board Agency (“ARBA” or “the Board”). Plaintiff seeks judicial review of the

Army Discharge Review Board’s (“ADRB”) decision not to upgrade his military discharge

characterization from “Bad Conduct” to “Honorable.” The ADRB is a constituent board of the

Defendant, ARBA. Plaintiff contends that the ADRB’s decision was arbitrary and capricious, an

abuse of discretion, or otherwise not in accordance with law. Plaintiff asks this Court to set aside

the ADRB’s decision and remand to the ADRB with a recommendation that Plaintiff’s discharge

be upgraded to Honorable.

The parties filed cross motions for summary judgment pursuant to Rule 56(c) of the

Federal Rules of Civil Procedure. The matter is now ripe for decision. Having considered the

parties’ respective motions and briefs (ECF Nos. 33, 34, 39, 40, 43, and 44), and for the

following reasons, the Court will grant Plaintiff’s motion for summary judgment in part and deny

it in part. Defendant’s motion for summary judgment will be denied. The case will be remanded

to the ADRB for further proceedings consistent with this opinion.

I. Background

All material facts set forth below are undisputed unless otherwise indicated. Both parties

stipulated that no traditional fact discovery was necessary in this case, and that the case should

be decided on the administrative record created by the ADRB. (ECF No. 31, at ¶¶ 2(a)–(e)). All

factual determinations relied upon by this Court were made by the ADRB or are otherwise

reflected in the administrative record. (ECF No. 42-1). Where the parties disagree about a fact, or

engage in argument about an alleged fact on which the ADRB did not make a clear

determination, the Court will cite to specific evidence of record to support the fact.

A. Plaintiff’s Military Service

On January 19, 2010, Plaintiff began his military service in the United States Army. (ECF

No. 42-1, at 84, 113). Plaintiff served two years and eighteen days. (Id. at 18). One year, eleven

months, and twenty-nine days of that time was “Lost Time”––a consequence of Plaintiff being

“Absent Without Leave” (“AWOL”) and a deserter. (Id.).

On May 25, 2010, after completing basic training and infantry training, Plaintiff was

assigned to Fort Polk, Louisiana. (Id. at 113). On or about June 18, 2010, Plaintiff witnessed an

explosion that caused him tinnitus and mild to moderate hearing loss. (Id. at 22, 28–29). Plaintiff

contends that the explosion made him medically unfit to serve. (Id. at 34). He also contends the

explosion was the root cause of significant mental health injuries, including major depressive

disorder (“MDD”) and post-traumatic stress disorder (“PTSD”). (Id. at 26). Plaintiff claims both

of these conditions affected his ability to process information and make sound decisions. (Id.).

B. Plaintiff’s Absence and Desertion

Plaintiff was granted four days of leave over the weekend of July 4, 2010. (ECF No. 42-

1, at 282 ¶ 3). Plaintiff claims he used the weekend to seek medical help for his mental health

conditions outside Fort Polk. (Id. at 36). At some point during his leave, Plaintiff traveled to

Pittsburgh, Pennsylvania, his hometown. (Id. at 218). Plaintiff claims that, during his attempt to

return to the base, he was denied reentry due to his lack of proper identification. (Id. at 36).

Plaintiff did not return to Fort Polk at the end of his four-day leave. (Id. at 219). As a

consequence, on July 8, 2010, Plaintiff’s duty status was changed to “Absent Without Leave.”

(Id. at 93, 98). On August 6, 2010, his status was changed from AWOL to “Dropped from the

Rolls,” as Plaintiff still had not returned to his base. (Id. at 93). At that time, Plaintiff was labeled

a deserter wanted by the armed forces. (Id. at 92–97, 99).

The United States Army attempted to locate Plaintiff. (ECF No. 42-1, at 92–93, 97–98).

The Army completed and filed DD Form 553 (Deserter/Absentee Wanted by the Armed Forces)

to assist law enforcement in the identification and return of Plaintiff. (Id. at 97–98). The Army

also sent two letters to Plaintiff’s mother, one on July 18, 2010, and one on August 6, 2010,

asking her to help locate Plaintiff and facilitate his return. (Id. at 92–93). These efforts proved

unsuccessful. By Plaintiff’s own admission, he never intended to return to the United States

Army, and there were no extenuating circumstances preventing him from returning to military

service during his desertion. (Id. at 225, 283).

C. Plaintiff’s Apprehension and Court Martial

On March 2, 2012, Plaintiff was apprehended by civilian law enforcement in Pittsburgh

on charges unrelated to his desertion. (Id. at 282). He was detained by police for eighteen days

until March 19, 2012. (Id. at 282). On that date, Plaintiff was returned to Fort Polk. (Id. at 283).

Upon Plaintiff’s return to military control, he was instructed that he was not to leave Fort Polk.

(Id.).

The conditions Plaintiff was subjected to upon his return to Fort Polk are not entirely

clear. Plaintiff claims that upon his return he was confined to his barracks, prevented from using

a cell phone or any other communication device, and prevented from hiring outside counsel.

(ECF No. 42-1, at 36). Defendant admits Plaintiff’s movement was restricted to some degree

upon his return, but denies he was confined to his barracks. (ECF No. 41, at 2). Plaintiff’s court

martial record only states that Plaintiff was not given new name badges for his uniform, resulting

in him being “kicked out of the [dining facility] a few times” and “constantly questioned about

the nametapes when he was outside [his] company area.” (ECF No. 41-2, at 208–209). The

ADRB found that Plaintiff “did not provide evidence of being confined to the barracks”;

however, it did not make any further findings regarding Plaintiff’s alleged confinement or its

conditions. (Id. at 19).

On May 30, 2012, Plaintiff appeared before a military judge sitting as a special court

martial. (ECF No. 42-1, at 141). Pursuant to Plaintiff’s plea agreement, Plaintiff was convicted of

absence without leave terminated by apprehension, in violation of Article 86, Uniform Code of

Military Justice, 10 U.S.C. § 886. (ECF No. 42-1, at 141, 237–38). Pursuant to the plea

agreement, Plaintiff forfeited $994 pay per month for eight months, was sentenced to eight

months’ confinement, and was set to receive a Bad Conduct discharge upon completion of his

confinement. (Id. at 10, 126). In addition, the military judge ordered confinement credit,

reducing Plaintiff’s sentence by 33 days: 18 days for the time he was detained by police, and 15

days of “Article 13 credit.” (Id. at 174). The “Article 13 credit” was awarded based on Plaintiff’s

treatment following his return to Fort Polk. (Id. at 270). This credit originated from an agreement

between prosecution and defense counsel that was separate from Plaintiff’s plea. (Id. at 208,

290). Following his conviction, Plaintiff was assigned to the Midwest Joint Regional

Confinement Facility at Fort Leavenworth, Kansas, to serve his sentence. (Id. at 119). At the

conclusion of his sentence, on January 24, 2014, Plaintiff was discharged from the Army. (Id. at

136). The characterization of Plaintiff’s discharge was “Bad Conduct.” (Id.).

D. Plaintiff’s Application for Record Correction

On June 2, 2022, Plaintiff applied to the ADRB to request that his court martial charges

be dismissed and that his discharge be upgraded to an Honorable characterization. (ECF No. 42-

1, at 9, 26). Plaintiff’s application largely focused on his pretrial confinement and the

circumstances leading up to Plaintiff’s trial. Plaintiff argues that proper confinement procedures

were not followed in his case. (ECF No. 42-1, at 25). Specifically, he claims that DD Form 2707-

1, a confinement order form, was either not filed or improperly completed in his case. (Id.).

Plaintiff also claims that any decision to confine an accused service member must be conducted

within 48 to 72 hours of the beginning of confinement. (Id.). Plaintiff states that this did not

happen in his case, “raising serious questions about the lawfulness of [Plaintiff’s] confinement.”

(Id. at 25).

In his application, Plaintiff alleges that he suffered 33 days of confinement leading up to

his trial. (ECF No. 42-1, at 36–38). He claims that during this confinement he was restricted to

his barracks. (Id. at 36). He alleges he was “denied everything but food, and water.” (Id. at 38).

This includes access to the outside world, as he alleges he was not given any form of

communication device and was not permitted to hire non-military counsel. (Id. at 36, 38). He

further alleges that he was treated unfairly and harassed. (Id. at 38). All of this, according to

Plaintiff, was done intentionally. (Id. at 38). Plaintiff claims the procedural errors and conditions

of his confinement resulted in “significant deterioration in [Plaintiff’s] mental health”, “a

substantial impact on the fairness of [Plaintiff’s] trial”, and “material[] prejudice [to] the

substantial rights of the [Plaintiff].” (Id. at 25–26).

In support of these claims, Plaintiff relies upon a document contained within his court

martial record. (ECF No. 42-1, at 280). Plaintiff highlights the last sentence of the document,

which reads: “The accused will be credited with 33 days of confinement against the sentence to

confinement.”1 (Id. at 38). Plaintiff concluded from this sentence that Brigadier General Clarence

K.K. Chinn, the commanding officer who signed off on Plaintiff’s sentence, “did not know of

[Plaintiff’s] pre-trial confinement before the court martial.” (Id.).

Plaintiff also argues that his PTSD, MDD, and the hearing damage that resulted from the

June 18, 2010, explosion are mitigating factors that should have been considered during his

confinement and trial. (ECF No. 42-1, at 26). He argues that those conditions significantly

affected his ability to process information and make sound decisions. (Id.).

In support of this contention, Plaintiff submitted a letter signed by Dr. Alan Reis, a

licensed psychiatrist, stating that Plaintiff was diagnosed with PTSD. (ECF No. 42-1, at 43). The

letter is dated October 25, 2023. (Id.). Plaintiff also submitted VA Health Care Service “Problem

Lists” showing Plaintiff had two separate episodes stemming from MDD. (Id. at 44). The dates

of those episodes are not provided, only the dates when the reports were entered into the VA’s

system. (Id.). Those dates are May 10, 2013, and May 16, 2013, respectively. (Id.). The medical

provider listed for those entries is Dr. Arthur I. Timbus, another licensed psychiatrist. The VA

1 In his application to the ADRB, Plaintiff used a blue highlighter to emphasize this sentence. He also calls it, “the

only evidence Plaintiff could find” of his mistreatment.

Problem List also shows that Plaintiff experienced an “unspecified psychosocial circumstance” at

some point. (Id.). No date for that circumstance is provided.

E. The ADRB’s Decision and Report

The ADRB received Plaintiff’s application on June 7, 2022. (ECF No. 42-1, at 9). On

April 1, 2025, the ADRB finished its “Case Report and Directive” pertaining to Plaintiff’s

application. (Id. at 9–24). On May 2, 2025, the ADRB issued Plaintiff a “Decision

Memorandum” denying Plaintiff’s application. (Id. at 7). The Memorandum informed Plaintiff

he could reapply to the ADRB for a personal appearance hearing or apply to have the Army

Board for Correction of Military Records (“ABCMR”) change his military records. (Id.).

The April 1, 2025, Case Report summarized and responded to the contentions in

Plaintiff’s application. The Report found that “despite applying liberal consideration of all

evidence before the Board, the Board determined the discharge was proper and equitable. The

[Plaintiff]’s misconduct fell below that level of meritorious service warranted for an upgrade to

Honorable discharge.” (ECF No. 42-1, at 23). The Board also refused to change Plaintiff’s reason

for discharge or his accompanying military separation code. (Id.).

F. Procedural Background

On November 14, 2024, Plaintiff commenced this action, requesting that the Court direct

the ARBA to expedite Mr. Price’s then-pending application. Compl. ECF No. 6, at 4. In the

interim, the ADRB issued its April 1, 2025 “Case Report and Directive” followed by its’ May 2,

2025 Decision Memorandum. As a result, on May 22, 2025, Plaintiff filed an Amended

Complaint seeking judicial review of the ADRB’s May 2, 2025 decision. Am. Compl., ECF No.

11. Plaintiff requests that this Court declare the ADRB’s May 2, 2025 decision, arbitrary and

capricious, vacate the decision, and remand with a recommendation that the ADRB change

Plaintiff’s discharge designation to Honorable. (ECF No. 11, at ¶¶ (6)(a)(i)–(ii)).

Plaintiff has moved for summary judgment. Plaintiff’s motion repeats his requests that

this Court set aside the ADRB’s May 2, 2025, decision as arbitrary and capricious, and asks this

Court to remand the case to the ADRB with instructions to properly apply liberal consideration

to Plaintiff’s PTSD claims, recognize the Article 13 violation Plaintiff suffered, and issue a

recommendation for an Honorable discharge. (ECF No. 33, at 4). Defendant has cross-moved for

summary judgment. Defendant’s motion asks this Court to uphold the ADRB’s decision. (ECF

No. 40, at 17). In the alternative, Defendant asks this Court to stay the case or dismiss it without

prejudice, so that Plaintiff may reapply for a personal appearance before the ADRB, or appeal the

ADRB’s decision to the ABCMR. (Id.).

II. Summary Judgment Standard Under the APA

Normally, summary judgment will be granted “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). However, in cases where the parties are seeking judicial review under the APA, “the

usual summary judgment standard does not apply.” Uddin v. Mayorkas, 862 F. Supp. 2d 391, 399

(E.D. Pa. 2012) (quoting UPMC Mercy v. Sebelius, 793 F. Supp. 2d 62, 67 (D.D.C. 2011)). In this

context, “a motion for summary judgment is simply a vehicle to tee up a case for judicial review.”

Boston Redevelopment Auth. v. Nat’l Park Serv., 838 F.3d 42, 47 (1st Cir. 2016). This is because

in an administrative law context “the district judge sits as an appellate tribunal.” Am. Bioscience,

Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). “[I]t is the role of the agency to resolve

factual issues to arrive at a decision that is supported by the administrative record.” Stuttering

Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007). It is “the function of the district

court . . . to determine whether or not as a matter of law the evidence in the administrative record

permitted the agency to make the decision it did.” Id.

The authority for reviewing the ADRB’s actions rests in the APA. The United States

Army is an “agency” within the meaning of the APA. Jaffee v. U.S., 592 F.2d 712, 719 (3d Cir.

1979). As such, judicial review of the ADRB’s decision not to change Plaintiff’s military records

is provided for by federal law. 5 U.S.C. § 702; see also Neal v. Secretary of Navy and

Commandant of Marine Corps, 639 F.2d 1029, 1037 (3d Cir. 1981) (explaining that district

courts “have both the power and the duty to review the actions” of military boards).

This Court may only set aside the ADRB’s decision if it is “arbitrary or capricious,

unsupported by substantial evidence, or otherwise not in accordance with the law.” Fischer v.

U.S., 402 F.3d 1167, 1180 (Fed. Cir. 2005);2 5 U.S.C. § 706(2)(A), (E). “Substantial evidence is

‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept

as adequate.’” Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting Richardson v.

Perales, 402 U.S. 389 (1971)). Additionally, although this Court must ensure that the agency has

articulated “‘a rational connection between the facts found and the choice made,’ an agency

explanation of ‘less than ideal clarity’ should not be invalidated if ‘the agency’s path may be

reasonably discerned.’” Zodiac Pool Sys. LLC v. United States DOE, No. 23-3094, 2025 U.S.

App. LEXIS 2012 (3d Cir. Jan. 29, 2025) (citations omitted).

While district courts should uphold military board decisions when they find substantial

evidence supports them, Green v. Westphal, 94 Fed. Appx. 902, 904 (3d Cir. 2004), a district

2 The Fischer Court succinctly combined subsections (A) and (E) of 5 U.S.C. § 706(2). The United States Supreme

Court has formerly done the same. See Chappell v. Wallace, 462 U.S. 296, 303 (1983) (“Board decisions are subject

to judicial review and can be set aside if they are arbitrary, capricious or not based on substantial evidence.”).

court can only affirm a decision “upon the validity of the grounds upon which the [agency] itself

based its action.” Sec. and Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 88 (1943). Those

reasons are garnered by a review of the administrative record, and the order may only be judged

upon grounds “which the record discloses.” Id. at 87. Not only that, “[i]f an order is valid only as

a determination of policy or judgment which the agency alone is authorized to make and which it

has not made, a judicial judgment cannot be made to do service for an administrative judgment.”

Id. at 88.

III. Discussion

The Court first addresses Plaintiff’s arguments challenging the Board’s consideration of

his pretrial confinement and treatment. Next, Plaintiff’s arguments concerning how the Board

considered his medical evidence are discussed. Finally, the Court addresses Defendant’s

alternative arguments requesting a stay or dismissal without prejudice.

A. Plaintiff’s Arguments Regarding Pretrial Confinement

In the ADRB’s Case Report, the ADRB summarized Plaintiff’s contentions regarding his

pretrial confinement, identified as “g.” and “h.”, as follows:

g. The applicant contends, the applicant was confined to their barracks and does

not recall or have any evidence of their commanding officer approving pretrial

confinement which makes the confinement illegal. The military justice system

requires a review of confinement for an accused be conducted within 48 to 72

hours. The applicant was confined a week after returning to post which was

over 72 hours. Specifically, the necessary DD Form 2707-1 (DD Form 2707

(Confinement Order)), which is required to justify and document the reasons

for confinement, was either not filed or improperly completed. This failure

violated the procedures outlined in R.C.M. 305, which governs the

administration of pre-trial confinement in the military justice system. The

presiding judge for the applicant’s case was unaware of their 33 day

confinement, once discovered, the applicant was credited with 33 days. The

applicant did not have an Article 32 preliminary hearing which would have

helped the applicant’s case.

h. The applicant contends, procedural errors and lack of adherence to proper

confinement orders constitute a direct violation of the applicant’s rights under

R.C.M. 305(k), which states that improper pre-trial confinement procedures

may warrant remedies such as confinement credit or dismissal of charges.

Additionally, the denial of basic privileges and failure to provide proper

oversight reflect unfair pre-trial punishment, prohibited by Article 13, UCMJ.

The totality of these errors supports a finding that the applicant’s treatment

was inequitable and unjust. And also, DA Form 3881 (Rights Warning

Procedure/Waiver Certificate) was not completed before the applicant’s

questioning, another major violation.

(ECF No. 42-1, at 19–20). After considering the evidence presented by Plaintiff and

contained within Plaintiff's Army Military Human Resource Record (“AMHRR”), the

ADRB concluded there was “insufficient evidence . . . to show that the command acted in

an arbitrary or capricious manner, other than [Plaintiff]’s contention[s].” (Id. at 22). The

ADRB’s report found that Plaintiff “did not provide evidence of being confined to the

barracks.” (Id. at 20). The ADRB’s report also acknowledged that Plaintiff “was credited

with 33 days of confinement towards the sentence to confinement.” (Id. at 20).

Plaintiff argues that the ADRB’s report contains a self-contradiction because it

acknowledges the 33-day credit Plaintiff received for his unlawful confinement, and yet finds

“insufficient evidence” regarding such confinement. (ECF No. 34, at ¶ II). Plaintiff also argues

that his Bad Conduct discharge “flowed from tainted proceedings”, that “the ADRB minimized

one of the most serious due process violations recognized in the UCMJ”, and that the ADRB

“cannot lawfully deny relief while ignoring that a military judge already found unlawful

punishment.” (Id. at ¶ III). Defendant argues that Plaintiff already received a remedy for any

unlawful confinement, and that the ADRB was under no obligation to award another remedy in

the form of a discharge upgrade. (ECF No. 40, at 15).

The administrative record shows that Plaintiff was subjected to “some degree of

punishment or penalty other than arrest or confinement” upon his return to Fort Polk. (ECF No.

42-1, at 290). However, the exact conditions Plaintiff was subjected to are contested, and the

record is not clear on this point. Plaintiff claims that he was confined to his barracks, he was

prevented from communicating with those outside the base, he was prevented from securing

civilian counsel, and he was intentionally mistreated. Said claims are either contradicted by, or

not supported by, the administrative record. By Plaintiff’s own admission, the only evidence he

had of this mistreatment was the sentence from Brigadier General Chinn, approving Plaintiff’s

Article 13 credit. (Id. at 38). That sentence does not support Plaintiff’s claims regarding the

conditions of his pretrial confinement, or the inference that the General did not know of

Plaintiff’s pretrial confinement. No other evidence in the administrative record substantiates

Plaintiff’s allegations regarding his conditions and treatment after he returning to base.

Plaintiff’s court martial record also contradicts and weighs against his claims. The Article

13 credit Plaintiff received was the result of an agreement between his counsel and the

prosecution. (ECF No. 42-1, at 208, 290). The military judge merely approved that prearranged

agreement; she did not sua sponte award Article 13 credit for unlawful treatment. (Id. at 209).

Furthermore, at the court martial, it was explained that the time credit was the result of military

command failing to obtain nametapes for Plaintiff in a timely manner. (Id. at 208). This resulted

in Plaintiff constantly being questioned about lacking his nametapes, and his being removed

from Fort Polk's dining facility a few times. (Id. at 208–09). Not only does this weigh against

Plaintiff’s claims of unlawful treatment, it weighs against his allegation that he was confined to

the barracks. If Plaintiff were confined to the barracks, he would not have been in the dining

facility or outside his company area.

The court martial record also cautions against a finding that Plaintiff was denied access to

civilian counsel. The record demonstrates that Plaintiff was informed of his right to civilian

counsel, chose to be represented by military counsel, and expressed that he was satisfied with his

counsel. (/d. at 201, 236).

Regarding Plaintiff’s contention about his lack of an Article 32 preliminary hearing,

Article 32 preliminary hearings are only required for general courts martial. 10 U.S.C. § 832.

Plaintiff was discharged as the result of a special court martial. (ECF No. 42-1, at 10, 201).

Plaintiff’s contention that he was not given an Article 32 hearing was rightfully ignored by the

ADRB.

Plaintiffs contention that “the necessary DD Form 2707-1 . . . was either not filed or

improperly completed” appears to result from a misunderstanding. (ECF No. 42-1, at 19).

Plaintiff likely confused DD Form 2707-1? with another Department of Defense form—DD

Form 2707*. Plaintiffs argument relates to his pretrial confinement. Contention “g” of the

ADRB’s report summarizes several of Plaintiff's written contentions, submitted alongside his

application. Compare ECF No. 42-1, at 19 with ECF No. 42-1, at 25 & 36. In the written

contentions, Plaintiff claimed that, “[d]uring [his] pre-trial confinement, the procedural

requirements mandated by military law were not followed ... . Specifically, the necessary DD

3 DD Form 2707-1 is titled, “Department of Defense Report of Result of Trial,” and thus this form would not

have been filed during any alleged physical confinement to barracks.

*DD Form 2707 is titled “Confinement Order,” and 2707 allows the preparer to specify that the service

member is being confined “Pre-Trial,” and may be required when a service member is confined before their

trial. See Army Regulation 27-10 4 5-21(c). DD Form 2707 specifies that it is used in three “Type of

Confinement” situations: “Pre-Trial,” as the “Result of NJP,” or as the “Result of Court Martial.” DD Form 2707,

lines 1.a.1.-c. ECF No. 42-1, at 126.

13

Form 2707-1 (Confinement Order) . . . was either not filed or improperly completed.” (Id. at 25)

(emphasis added).

Assuming Plaintiff meant that DD Form 2707 “was either not filed or improperly

completed,” this Court does not find any reason to disturb the ADRB’s conclusion that there was

“insufficient evidence in the applicant's AMHRR or applicant-provided evidence to show that

the command acted in an arbitrary or capricious manner, other than the applicant's contention.”

(ECF No. 42-1, at 22). As previously stated, this Court has found no evidence (outside Plaintiff’s

contentions) that Plaintiff was physically confined to his barracks prior to trial. In the absence of

further evidence, it cannot be said the ADRB’s decision not to upgrade Plaintiff’s discharge

characterization, based on the lack of a pretrial DD Form 2707, was arbitrary or capricious.

If Plaintiff meant that procedural requirements were not followed because his AMHRR is

devoid of any post-court martial DD Form 2707-1, his claim has some technical merit. His

administrative record is devoid of any DD Form 2707-1, and such a form should have been filed

following Plaintiff’s court martial. Army Regulation 27-10 ¶ D-2(a). However, Plaintiff’s

AMHRR contains DD Form 2707, dated May 30, 2012––the date of Plaintiff’s court martial––

and that form appears to be doing the work of DD Form 2707-1. This lone procedural error,

especially when an effort was clearly made to follow procedure, cannot be said to constitute

substantial evidence that the military command acted in an arbitrary or capricious manner.

Even if Plaintiff’s evidence or the AMHRR had established major procedural violations,

which we do not find, Plaintiff’s reliance upon R.C.M. 305(k) does not provide for the dismissal

of charges. It appears that Plaintiff is actually referring to R.C.M. 305(l), which discusses

remedies for unlawful confinement; however, R.C.M. 305(l) only permits administrative

confinement credit as a remedy. That is exactly the remedy Plaintiff was granted in his case.

Plaintiff’s pretrial confinement contentions “g” and “h” are either unsupported by the

record or contradicted by the administrative record. This Court finds that the Board’s conclusion,

related to those contentions was not arbitrary and capricious, it was supported by substantial

evidence, and it was not otherwise contrary to law. Although the Board did not explain its exact

rationale concerning these issues, the “path” for the Board’s finding “may be reasonably

discerned” as demonstrated above. Zodiac, 2025 U.S. App. LEXIS 2012, at *9. As such, this

Court will not disturb the ADRB’s findings as regards Plaintiff’s arguments about pretrial

confinement and procedural violations.

B. Plaintiff’s Arguments Regarding his Medical Records and Medical Conditions

1. Consideration of Plaintiff’s Medical Records and Conditions

In the ADRB’s Case Report, the ADRB separated Plaintiff’s medical records and medical

conditions claims into two different “contentions,” identified as “e.” and “i.” The Board

summarized Plaintiff’s first contention as follows:

e. The applicant contends, the applicant was diagnosed with tinnitus and

sensorineural hearing loss on 18 June 2010 at Bayne-Jones Army Community

Hospital, Fort Polk, LA due to a live fire incident during training which made

the applicant medically unfit to serve. The applicant later developed major

depression. The applicant decided to seek help for their condition outside the

base. The applicant tried to get back on base and was denied access by the

military police due to not having proper identification. When the applicant

returned the applicant was charged with being AWOL. The administrative

failures and procedural errors worsened the applicant’s already fragile mental

and physical health. The applicant’s PTSD, MDD, and hearing damage which

resulted from an explosive injury severely affected the applicant’s ability to

make decisions and communicate effectively. The lack of access to proper

counsel, coupled with the psychological strain of being confined without

procedural justification, caused significant deterioration in the applicant’s

mental health. This resulted in episodes of heightened anxiety, inability to

concentrate, and a sense of hopelessness, further complicating the applicant’s

ability to participate in their own defense. Under Article 59, UCMJ, legal

errors that materially prejudice the substantial rights of the accused warrant

dismissal or reversal of charges.

(ECF No. 42-1, at 18). Regarding this contention, the ADRB found “insufficient

evidence . . . to show that the command acted in an arbitrary or capricious manner, or did

not provide the [Plaintiff] access to care. . . .” (Id. at 22).

The ADRB summarized Plaintiff’s second contention as follows:

i. The applicant contends, the applicant’s hearing injury from an explosion

during service played a significant role in the behavior and decisions leading

to the applicant’s situation. The associated PTSD, MDD, and hearing damage

are documented conditions that affected their cognitive functioning and

communication abilities. These medical conditions should have been taken

into account during confinement and trial, as required by R.C.M. 706, which

mandates mental health evaluations when mental fitness is in question. Failure

to properly consider this evidence constitutes an additional procedural failure

and a violation of rights.

(ECF No. 42-1, at 18). “The Board acknowledged this contention.” (Id. at 22).

In addition to responding to Plaintiff’s contentions, the Board’s report states:

a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the

following factors:

(1) Did the applicant have a condition or experience that may excuse or mitigate

the discharge? No. The Board’s Medical Advisor reviewed DoD and VA

medical records and found no mitigating [behavioral health] diagnoses on the

applicant. The applicant provided no documents or testimony of a condition or

experience, that, when applying liberal consideration, could have excused or

mitigated a discharge.

(2) Did the condition exist or experience occur during military service? N/A

(3) Does the condition or experience actually excuse or mitigate the discharge? N/A

(4) Does the condition or experience outweigh the discharge? N/A

(ECF No. 42-1, at 21). In coming to its conclusions, the ADRB acknowledged reviewing the

medical records submitted by Plaintiff. (Id. at 13, 18, 20). As stated above, the ADRB also stated

that it applied “liberal consideration” to Plaintiff’s application. (Id. at 14, 21).

In challenging these conclusions by the ADRB, Plaintiff argues that the ADRB’s decision

is arbitrary and capricious because it is self-contradicting. (ECF No. 34, at ¶ I). Plaintiff argues

that the ADRB cannot both acknowledge medical evidence submitted by Plaintiff while

simultaneously finding that Plaintiff “provided no documents” demonstrating the existence of

mitigating mental conditions. (Id.) In Response, Defendant argues that the Board’s conclusion is

not arbitrary and capricious, because it is supported by substantial evidence. (ECF No. 40, at 12).

Defendant argues that Plaintiff’s submission of medical evidence to the ADRB does not require

the ADRB to find such conditions existed at the time of Plaintiff’s misconduct and that they

affected Plaintiff’s behavior to such a degree that they mitigate or excuse Plaintiff’s misconduct.

(Id. at 13). Defendant argues the ADRB evaluated and weighed all the evidence before it and

came to its decision. (Id. at 14).

Liberal consideration must be given to applications seeking to change the

characterization of the applicant’s discharge, based in whole or in part on post-traumatic stress

disorder (“PTSD”). 10 U.S.C. § 1553(d)(3)(A)(ii); AR 15-180, ¶ 3-3(b). Generally, liberal

consideration refers to a requirement that military correction boards liberally consider the claim

that the servicemember’s service-connected mental health condition affected the circumstances

of their discharge. Bee v. U.S., No. 24-2306, 2026 WL 2050176 (Fed. Cir. July 16, 2026). The

Ninth Circuit has described liberal consideration as “a lenient evidentiary standard, that is not

strict or literal.” Bussey v. Driscoll, 131 F.4th 756, 763 (9th Cir. 2025). It “require[d] the [ADRB]

to resolve doubts . . . in favor of the veteran.” Id.5

5 The action in Bussey, involved a denial by the ABCMR, not the ADRB. As such the claim was brought under 10

U.S.C. § 1552, not § 1553. However, the “liberal consideration” language used in both statutes has a shared origin in

Department of Defense Memoranda used by both parties and the ADRB in this case. See Off. of the Sec'y of Def.,

Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge

Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder (Sept. 3, 2014) (“Hagel Memorandum”);

The idea of liberal consideration originates with two Department of Defense (then the

Department of Defense) Memoranda. On September 3, 2014, former Secretary of Defense Chuck

Hagel issued a Memorandum providing guidance on discharge upgrade requests by veterans

claiming previously unrecognized PTSD. Off. of the Sec'y of Def., Supplemental Guidance to

Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade

Requests by Veterans Claiming Post Traumatic Stress Disorder (Sept. 3, 2014) (“Hagel

Memorandum”), (ECF No. 42-3). The Hagel Memorandum instructs military review boards to

give “liberal consideration” to a later “finding that PTSD existed at the time of service.” Id.

On August 25, 2017, then Acting Undersecretary of Defense Anthony M. Kurta issued a

Memorandum providing clarifying guidance on what liberal consideration entails. Off. of the

Under Sec'y of Def., Clarifying Guidance to Military Discharge Review Boards and Boards for

Correction of Military Records (Aug. 25, 2017) (“Kurta Memorandum”), (ECF No. 42-4).

Liberal consideration includes the following concepts:

a. Some circumstances require greater leniency and excusal from normal

evidentiary burdens.

b. It is unreasonable to expect the same level of proof for injustices committed

years ago when . . . mental health conditions, such as PTSD . . . were far less

understood than they are today.

…

d. Mental health conditions, including PTSD . . . impact veterans in many

intimate ways, are often undiagnosed or diagnosed years afterwards, and are

frequently unreported.

e. Mental health conditions, including PTSD . . . inherently affect one’s

behaviors and choices causing veterans to think and behave differently than

might otherwise be expected.

…

k. Liberal consideration does not mandate an upgrade. Relief may be

appropriate, however, for minor misconduct commonly associated with

Off. of the Under Sec'y of Def., Clarifying Guidance to Military Discharge Review Boards and Boards for

Correction of Military Records (Aug. 25, 2017) (“Kurta Memorandum”).

mental health conditions, including PTSD . . . and some significant

misconduct sufficiently justified or outweighed by the fact and circumstances.

Id. In addition, the Kurta Memorandum states that requests for discharge upgrades involve

answering the following four questions:

1. Did the veteran 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?

Id. The Kurta Memorandum explains that “[t]he veteran’s testimony alone, oral or written, may

establish the existence of a condition or experience, that the condition or experiences existed

during . . . military service, and that the condition or experience excuses or mitigates the

discharge.” Id. “Evidence that may reasonably support more than one diagnosis should be

liberally considered as supporting a diagnosis, that could excuse or mitigate [the veteran’s]

discharge.” Id. The Memorandum also makes clear that “[a]bsent clear evidence to the contrary,

a diagnosis rendered by a licensed psychiatrist or psychologist is evidence [that a] veteran had a

condition that may excuse or mitigate the discharge.” Id.

As explained above, Plaintiff submitted medical evidence showing that he suffers from

PTSD and MDD. (ECF No. 42-1, at 43–44). Plaintiff also offered written statements that he

suffers from PTSD and MDD. (Id. at 25). In light of these records and Plaintiff’s personal

statements, the ADRB’s finding, that Plaintiff “provided no documents or testimony of a

condition or experience, that, when applying liberal consideration, could have excused or

mitigated a discharge” is conclusory. Further, the Report lacks any discussion or analysis of the

relevant medical evidence and Plaintiff’s statements. Review of the record evidence is a

necessary step that may impact the Board’s ultimate decision. Thus, the absence of analysis and

explanation supports that the ADRB’s decision is flawed.

Defendant correctly points out that the ADRB was required to determine whether any

condition existed during Plaintiff’s service, and whether that condition excuses or mitigates

Plaintiff’s discharge; however, because the Board found that there were no documents or

testimony of a condition, the ADRB failed to fully evaluate and discuss the record in order to

reach, and answer, the subsequent Kurta Memorandum question, 2, 3, and 4s. This Court must

limit its review to the determinations and rationale provided by the agency. This Court cannot

assume how the ADRB would answer said questions. As it stands, this Court must find that the

ADRB’s factual determination, based upon Plaintiff’s medical evidence and statements, was

reached without analysis of the record evidence and was arbitrary and capricious.

Because a material determination, on which the ADRB’s opinion was founded, lacked

discussion and analysis of the record evidence regarding Plaintiff’s PTSD and MDD, the

ADRB’s opinion was arbitrary and capricious. Therefore, this Court must grant summary

judgment for Plaintiff and remand this case for reconsideration to the ADRB. On remand, the

ADRB should provide discussion and reasoning that consider the record evidence in light of the

Kurta Memorandum, supra.

2. Plaintiff’s Remaining Arguments regarding Consideration of Medical Issues

Plaintiff has two additional arguments that can be discussed jointly. First, Plaintiff argues

that the ADRB’s decision is contrary to the law, because the Board’s report states that it applied

the Kurta Memorandum’s liberal consideration standard and yet failed to upgrade Plaintiff’s

discharge. (ECF No. 43, at 5). According to Plaintiff, the Kurta Memorandum requires a

discharge upgrade to an Honorable characterization when a nexus is reasonably indicated. (Id.).

Defendant argues that the Board specifically states that it applied liberal consideration and the

factors specified in the Kurta Memorandum. (ECF No. 44, at 1). Second, Plaintiff argues that

under 10 U.S.C. § 1553(d)(3)(A)(ii), AR 635-200 ¶ 3-10, and Department of Defense Instruction

(“DoDI”) 1332.28 Enclosure 4, an Honorable discharge is mandated when: 1) a service-

connected mental-health condition began during service; 2) the condition is documented or

reasonably indicated; and 3) the misconduct may reasonably be attributed to the condition. (Id. at

6). Plaintiff argues that all three prongs are met in his case.

This Court has carefully reviewed those authorities cited by Plaintiff and cannot find any

support for Plaintiff’s arguments. This Court has likewise been unable to find any other source

supporting Plaintiff’s argument. For that reason, this Court finds Plaintiff’s mandatory upgrade

argument flawed, and Plaintiff’s request to upgrade his discharge characterization unwarranted.

Finally, Plaintiff argues that the ADRB’s decision was arbitrary and capricious, because it

failed to consider that Plaintiff had no behavioral or disciplinary problems prior to the June 18,

2010, live-fire incident. (ECF No. 34, at ¶ V). Plaintiff argues that under AR 635-200, and

Department of Defense policy, a service history such as his––coupled with his claimed mental

health injury––warrants a discharge upgrade. (Id.). Defendant does not directly address

Plaintiff’s argument, but argues generally that the evidence submitted by Plaintiff in support of

his contention does not constitute substantial evidence. (ECF No. 44, at 3–4).

This Court has not found anything within AR 635-200 to support Plaintiff’s argument.

However, both the Hagel and Kurta Memoranda offer some support to Plaintiff’s position. The

Hagel Memorandum states that liberal consideration will be given “when case records contain

narratives that may support symptomatology at the time of service . . . .” (ECF No. 42-3, at 4).

The Kurta Memorandum states that “changes in behavior” may constitute evidence supporting

the existence of a condition or that condition’s existence at the time of service. (ECF No. 42-4, at

1). It also states that the veteran’s testimony alone “may establish the existence of a condition or

experience, [or] that the condition or experience existed during . . . military service.” (Id. at 4).

In his application to the ADRB, Plaintiff pointed to his behavior before and after the June

18, 2010, explosion as affecting his ability to process information and make sound decisions.

(ECF No. 42-1, at 26). It is unclear from the ADRB’s report whether the Board considered

changes in Plaintiff’s behavior as grounds for upgrading Plaintiff’s discharge characterization.

The ADRB did acknowledge Plaintiff’s contention “i,” which included an allegation that

Plaintiff’s “hearing injury from an explosion during service played a significant role in the

behavior and decisions leading to [Plaintiff]’s situation.” (Id. at 22). Plaintiff put forth written

statements supporting that his behavior changed following the June 18, 2010, incident. (Id. at

26). Finally, Plaintiff’s AMHRR record does not indicate Plaintiff had any “behavioral issues or

medical concerns” prior to the June 18, 2010, explosion. Plaintiff does have documented medical

issues, and the narrative of a soldier without any issues suddenly going AWOL suggests a need

for consideration. (Id. at 28–29, 43–44). The ADRB’s decision did not provide supplemental

analysis to support that such record evidence was considered in light of the standards to be

applied.

This evidence, while not overwhelming, is sufficient to warrant explicit consideration by

the ADRB in its report. Because it is beyond the purview of this Court to make factual findings

in this case, on remand the ADRB decision should include sufficient analysis to support its

conclusion as to whether Plaintiff’s AMHRR or any Plaintiff-provided evidence supports any

discharge upgrade or not.

C. Defendant’s Request to Allow Plaintiff to Pursue other Administrative Remedies

Defendant requests that instead of granting summary judgment for Plaintiff, this Court

should dismiss the case without prejudice or stay the case to allow Plaintiff to pursue other

administrative remedies. (ECF No. 40, at 17). Plaintiff is wholly against Defendant’s request.

Plaintiff argues that administrative exhaustion is only required when Congress expressly

demands it. (ECF No. 43, at 4). Plaintiff argues no such express mandate exists regarding this

case. He argues that no further administrative remedies are mandatory in his case; and therefore,

there is no reason to dismiss or stay Plaintiff’s case (ECF No. 43, at 4).

Under the APA “final agency action for which there is no other adequate remedy in a

court [is] subject to judicial review.” 5 U.S.C. § 704. The Supreme Court has made clear that,

pursuant to the APA, “an appeal to ‘superior agency authority’ is a prerequisite to judicial review

only when expressly required by statute or when an agency rule requires appeal before review

and the administrative action is made inoperative pending that review.” Darby v. Cisneros, 509

U.S. 137, 154 (1993).

Despite Defendant’s request, Defendant’s Brief in Support of motion for summary

judgment does not provide this Court with either statutory language or an agency rule that

requires exhaustion of administrative remedies before filing suit. Section 1553 of United States

Code Title 10 contains no such express requirement. The statutory language relating to additional

administrative remedies reads as follows: “If a board . . . does not grant a request for an

upgrade . . . that declination may be considered under section 1552 or 1553(a) of this title, as

applicable.” The statute’s use of the permissive “may,” instead of the mandatory “must,” fails to

convince this Court that additional administrative efforts are required. Most convincingly,

Defendant concedes “that the ADRB’s decision is a final agency action subject to judicial review

under the APA.” (ECF No. 44, at 3). For those reasons, this Court finds that judicial review after

a final decision from the ADRB is appropriate, and that dismissal or a stay order is unnecessary

in this case.

IV. Conclusion

Accordingly, Defendant’s motion for summary judgment will be denied. Plaintiff’s

motion for summary judgment will be granted in part and denied in part. The portions of

Plaintiff's motion for summary judgment, asking this Court to recognize the Article 13 violations

committed against Plaintiff and issue a recommendation for an Honorable Discharge, will be

denied. The portion of Plaintiff’s motion for summary judgment seeking to vacate the ADRB's

May 2, 2025 decision, will be granted, and this case will be remanded to the ADRB for further

proceedings consistent with this Opinion.

A separate Order will be entered.

__s/Marilyn J. Horan__________

Marilyn J. Horan

United States District Court Judge

Brandon Price, pro se

APT. 3

150 1st Street

Blawnox, PA 15238