Keith A. Houghtling v. United States

In the United States Court of Federal Claims

No. 13-171C

(Filed: December 23, 2013)

**********************

KEITH A. HOUGHTLING,

Plaintiff, Military pay; Article 15 Non-

judicial punishment; Justiciability;

v. Disability Retirement;

Administrative Separation

THE UNITED STATES,

Defendant.

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Emily M. Wexler, Chicago, IL, for plaintiff.

Barbara E. Thomas, United States Department of Justice, Commercial

Litigation Branch, Washington, DC, with whom were Marian E. Sullivan,

Assistant Director, Jeanne E. Davidson, Director, Stuart F. Delery, Assistant

Attorney General, for defendant. Lt. Col. Christopher C. Cox, U.S. Army

Litigation Division, of counsel.

_________

OPINION

_________

BRUGGINK, Judge.

This is an action for military pay. Plaintiff, Keith A. Houghtling,

challenges a decision by the Army Board of Correction of Military Records

(“ABCMR”) to deny his application challenging his administrative separation

from the U.S. Army. Plaintiff asserts that his separation was wrongful and that

he is entitled to back pay and retirement benefits. The United States

(“defendant”) filed a motion to dismiss the complaint for lack of jurisdiction

1

and failure to state a claim and, alternatively, a motion for judgment on the

administrative record. Plaintiff filed a response and cross-motion for judgment

on the administrative record. The motions are fully briefed, and oral argument

is unnecessary. For the reasons set forth below, we grant defendant’s motion

for judgment on the administrative record.

BACKGROUND

Plaintiff served in the Army during two separate time periods. He first

served from 1991 to 1994. In 2002, he re-enlisted, starting as a Private (E2)

and rising to the rank of Sergeant (E5) by April 1, 2004. AR1 430. On

October 29, 2005, plaintiff began a deployment in Iraq as a combat medic. AR

52. An evaluation of his service from February 2005 through January 2006

described him as “a confident leader that is dedicated to ensuring his soldiers

are well trained.” AR 104-05.

The Army performed drug tests on plaintiff’s unit in Iraq in February

2006. Plaintiff tested positive for Benzodiozepine (valium). AR 115-17. On

April 20, 2006, he received a notice that he was subject to an investigation and

other appropriate proceedings. See AR 117-18.

On April 30, 2006, a lieutenant sent an email to one of the physicians

of plaintiff’s unit, asking whether he had ever given plaintiff anything that

would cause him to test positive for valium. See AR 125. In a reply email, the

physician, Captain (“Capt.”) Sundquist, stated:

I have tried to recall all the medications that I gave, however, I

am truly unable to recall all the events. I only recal[l] having

given pain co[n]trol medications. I very well may have given a

few valium but if they were taken when I was there they would

have cleared out of the body by now.

AR 125. Captain Sundquist also emailed plaintiff on May 5, 2006. AR 126.

He noted that, “I have honestly tried to remember what I gave you, and I

cannot say with certainty that I did or did not give any benzo’s [valium]. I

recall giving you pain medications but not anxiety/sleep meds.” AR 126.

1

“AR” refers to the Administrative Record in this case filed by defendant on

May 16, 2013.

2

As a response to the test results of plaintiff and other soldiers, the

Army’s Criminal Investigation Command questioned members of plaintiff’s

unit. Acting on the advice of counsel, plaintiff did not provide information.

AR 98. The following soldiers provided sworn statements: Private First Class

(“PFC”) Pallenes, Specialist Devon Prince, PFC Christopher Mady, and PFC

James Kirlin.

PFC Pallanes stated that, on one occasion, he used valium to help him

sleep. AR 211. He asserted that he was given the valium by another solider,

PFC Johnson. When Pallanes asked Johnson where he got the valium,

Johnson said he bought the drugs while on patrol with plaintiff. AR 211.

Johnson allegedly told Pallenes that Johnson, plaintiff, and an interpreter

walked into an Iraqi pharmacy and “‘asked if they had Valium and they said -

yes.’” AR 211. According to Pallenes, Johnson also allegedly told him that

plaintiff bought steroids. AR 211. Pallenes never saw plaintiff take illegal

drugs and had no personal knowledge that plaintiff did so. See AR 212.

Specialist Prince also made a statement that referred to plaintiff visiting

an Iraqi pharmacy. AR 214. Prince stated that he went on a patrol to Ad Dawr

in January 2006. The patrol consisted of three humvees carrying Prince,

Johnson, plaintiff, and several other soldiers. AR 214. Prince stated that, after

the trucks stopped in Ad Dawr, plaintiff, Johnson, and two others dismounted

and walked out of sight. AR 214. Twenty minutes later, plaintiff and the

others came back to the truck, and the patrol moved out of Ad Dawr. Plaintiff

was in a separate humvee from Prince. AR 214.

The patrol eventually stopped at a tree line. According to Prince,

plaintiff and Johnson approached one of the other trucks. Prince stated that

Johnson then “approached our truck with some pills which were in a blister

package. He told us they were Valiums and was talking about how they were

legal in this country.” AR 214. Another private then left Prince’s truck and

came back with a package that was allegedly steroids. AR 211. Someone told

Prince that “Doc Houghtling had only paid $10.00 for each of these.” AR 214.

Prince also stated, however, that he never saw plaintiff take any illegal drugs.

AR 216.

PFC Mady also gave a statement that he saw plaintiff, a staff sergeant

named Smith, and other soldiers visit an Iraqi pharmacy in Ad Dawr in January

2006. AR 218. Mady stated that “they were car[ry]ing little plastic bags when

they left.” AR 218. He also stated that he saw plaintiff sleeping by an Iraqi

bunker at a later date and that plaintiff “was trying to put his right glove on his

3

left hand. He kept staring at it for the longest time and then attempted to try

to put it on again.” AR 219. According to Mady, Smith was nearby. Smith

allegedly said he gave plaintiff four pills and exclaimed “‘man I am f--d up!’”

Id. Mady stated that he asked Smith what pills he took. Smith allegedly

replied that they were the same pills that plaintiff took. AR 219.2

PFC Kirlin stated that he witnessed plaintiff trying to “put his gloves on

for 10-20 minutes.” AR 221. Kirlin also asserted that he saw Smith at that

time, who “seemed like he was in slow motion.” AR 221. In Kirlin’s opinion,

it looked like the two had taken valium, AR 221, but he added that he had not

actually seen plaintiff take valium. AR 221-22. He also asserted that plaintiff

had purchased steroids. AR 222.

The Criminal Investigation Command took all of the above statements

on or before May 29, 2006. See AR 211-23. On June 13, 2006, Lieutenant

Colonel (“Lt. Col.”) Louis Lartigue notified plaintiff that he was considering

whether to punish plaintiff under Article 15 of the Uniform Code of Military

Justice (“UCMJ”), 10 U.S.C. § 815 (2012). AR 358. The notice charged

plaintiff with the wrongful use of Benzodiazepine (valium), a violation of

Article 112a of the UCMJ, 10 U.S.C. § 912a (2012). AR 358.

According to the notice given to plaintiff, he had certain rights in an

Article 15 proceeding. Plaintiff could present evidence on his behalf, have an

open or closed hearing, and have someone speak on his behalf. AR 358. He

also could decline an Article 15 proceeding and exercise his right to a trial by

court martial. AR 358. Lt. Col. Lartigue stated that “I will not impose any

punishment unless I am convinced beyond a reasonable doubt that you

committed the offense(s).” AR 358.

Plaintiff did not exercise his right to a court-martial, nor did he request

an open hearing or ask for a person to speak on his behalf. He chose to present

his defense in person, AR 358, and prepared a letter for his defense, AR 98,

123-24.

In the letter, plaintiff stated, “I am 95 percent certain that I was given

valium by CPT Sundquist in January 2006. He treated me for stress/anxiety

2

The sworn statements of PFC Pallenes, Specialist Prince, PFC Mady, and

PFC Kirlin appear in the AR at pages 211-22 and were considered by the

ABCMR. See AR 53.

4

and gave me medication for it.” AR 123. He further asserted that, although

he did not have a copy of the prescription, Capt. Sundquist gave him one. Id.

The statement also asserts that a fire destroyed the unit’s aid station and its

medical records in late January. Id. An email in the administrative record

gives support for this assertion that a fire took place. AR 122.

Plaintiff’s closed hearing took place on June 18, 2006. AR 98. The

evidence before Lt. Col. Lartigue included the emails from Capt. Sundquist

regarding plaintiff and the statements from PFC Pallenes, Specialist Devon

Prince, PFC Christopher Mady, and PFC James Kirlin. The colonel found

plaintiff guilty of the charges. He demoted plaintiff to Specialist (E4) and

ordered plaintiff to forfeit $1009 pay for two months, to serve an extra 45 days

of duty, and to serve under restriction for 45 days. AR 358. Plaintiff’s appeal

of this decision was denied on June 23, 2006. AR 358.

On August 30, 2006, plaintiff arrived at Fort Carson, Colorado, to begin

the process of separation from the Army. AR 99. At Fort Carson, plaintiff

suffered from short-term memory loss, “anxiety, nightmares, and feelings of

panic.” AR 99. He had serious difficulty completing his tasks. AR 99.

The Army gave plaintiff’s unit a urinalysis test on September 21, 2006.

AR 54, 320. Plaintiff missed this test because he was at sick call. AR 54, 320.

On September 23, 2006, plaintiff visited a night club, got drunk, and used

cocaine. AR 99. At that point, he became worried about the harm the drugs

would cause and checked into the hospital. AR 99. He requested a drug test

and tested positive for cocaine. AR 99. He notified his chain of command the

next day. AR 320. Also on that day, the Army conducted drug tests for

plaintiff and others who missed the earlier test. The tests results showed that

plaintiff had used cocaine. See AR 54, 320, 325-27, 339.

On December 7, 2006, Major Christopher E. Barkocy gave plaintiff a

Notice of Separation pursuant to Army Regulation (“Army Reg.”) 635-200,

Chapter 14-12c, Commission of a Serious Offense. AR 28.3 The notice

3

The provision states:

Soldiers are subject to action for the following:

.....

c. Commission of a serious offense. Commission of a serious

military or civil offense, if the specific circumstances of the offense

5

initiated an action to separate plaintiff for the wrongful use of “Benzodizepine

in a deployed environment.” AR 28. Major Barkocy did not list any other

reason for separation. AR 28-29. The notice also indicated that the

Commander at Fort Carson, Major General Robert W. Mixon, would make the

final decision of whether to separate plaintiff. AR 28, 210.

Attached to the notice were six documents regarding plaintiff’s service.

See AR 29. According to the list, one attachment was “MFR, UA test code,

dtd 5 Dec 06.” AR 29. This title referred to a “Memorandum for Record.”

This memo recited that plaintiff tested positive for cocaine while visiting the

emergency room in September 2006 and his positive test for cocaine at the

base the next day. AR 28-31.

Major Barkocy also submitted a commanding officer’s report to the

separation authority. In the report, he recommended plaintiff’s separation

under Army Reg. 635-200, for “wrongfully using Benzodiazepine in a

deployed environment.” AR 30. The report contained a provision for

“[d]erogatory information other than Article 15 and Court-Martial

proceedings.” AR 31. Major Barkocy entered “None” as the response. AR

31. Attached to the report were several documents. One of those documents

included “MFR, UA test code, dtd 5 Dec 06,” the same “Memorandum for

Record” that was attached to the notice given to plaintiff and that recited

plaintiff’s positive test for cocaine at the hospital. See AR 22, 316, 315-18.

In January 2007, prior to the Army’s decision of whether to separate

plaintiff, a psychiatrist diagnosed him with Post-Traumatic Stress Disorder.

AR 129. This initiated proceedings before the Medical Evaluation Board

(“MEB”). As part of his statement to the board, Staff Psychiatrist Dr. Gerald

Bissell concluded that plaintiff suffered from “hyper vigilance, hyper startle,

irritability, emotional withdrawal, restricted affect, anxiety, insomnia,

dsyphoria, flashbacks, diminished interest in things, and feeling detached from

others.” AR 133. Dr. Bissell found that, according to Army Regulation 40-

warrant separation and a punitive discharge is, or would be,

authorized for the same or a closely related offense under the MCM.

(2) Abuse of illegal drugs is serious misconduct.

Army Reg. 635-200, ch. 14-12.

6

501 ¶ 3-33,4 plaintiff “did not meet retention requirements.” AR 133. Major

Barkocy also submitted a statement to the medical board. AR 130-31. He

asserted that plaintiff was “using the medical system as a way to get out of the

trouble that he is in and to obtain benefits as he exits the U.S. Army.” AR 130.

The MEB issued a report on March 8, 2007. The report noted that,

because of his post-traumatic stress disorder, plaintiff failed “to meet retention

standards in accordance with AR 40-501 chapter 3, paragraph 3-33.” See AR

149-50, 154-55. The report referred plaintiff to a Physical Evaluation Board

to determine if he was fit for duty. AR 155.5 Plaintiff never appeared before

that board, however, due to his intervening administrative separation.

Plaintiff appeared in front of the Elimination Board on or about March

12, 2007. See AR 55, 205-08, 292. Evidence considered by the board

included the commanding officer’s report to the board from Major Barkocy,

along with attachments. See AR 31, 315-18. Plaintiff also submitted a letter.

AR 205-08. In it, he described his continued difficulty with post-traumatic

stress. AR 205-08. The letter did not recite facts regarding plaintiff’s non-

judicial punishment in Iraq. The Administrative Record does not contain a

record of the proceeding from the Elimination Board.

On April 20, 2007, Major General Mixon issued his decision regarding

plaintiff’s administrative separation. He recognized that the MEB referred

plaintiff to a Physical Evaluation Board. He found, however, that plaintiff’s

“medical condition is not a direct or substantial contributing cause of his

misconduct and that administrative separation under Chapter 14-12c,

Commission of a Serious Offense, is appropriate in this case.” AR 210. He

approved plaintiff’s separation and ordered that plaintiff’s service “be

characterized as General, (under Honorable Conditions).” AR 210.

4

Army Reg. 40-501 ¶ 3-33 lists the reasons for referring a soldier to a Medical

Evaluation Board as a result of an anxiety disorder. Paragraph 3-1 of the same

regulation states that “This chapter gives the various medical conditions and

physical defects which may render a Soldier unfit for further military service.”

5

The United States Code provides that, if a soldier is unfit for duty because

of a disability, the Army may retire him with retirement pay. See 10 U.S.C. §

1201 (2012).

7

Plaintiff applied to the ABCMR on August 31, 2010. AR 63. He

requested, inter alia, that the ABCMR correct his records to show a medical

retirement, award an honorable discharge, expunge his Article 15 punishment

for Valium, and refer him to a Physical Evaluation Board for a disability rating

and possible benefits. AR 79.

Plaintiff specifically challenged the Article 15 punishment and his

administrative separation. According to plaintiff, the Army failed to prove that

he wrongfully used Valium beyond a reasonable doubt, as required by Army

Reg. 27-10 ¶ 3-18(l).6 AR 80. Plaintiff thus asserted that the Army failed to

comply with its own regulations. See AR 80. Plaintiff alleged that the

separation was improper because it was based on the Article 15 punishment.

AR 85.

The ABCMR denied the application on February 10, 2011. In its

decision, the Board recited the facts of plaintiff’s case in a section entitled

“Consideration of Evidence.” AR 52-58. This section recited several events

regarding plaintiff’s service.

After noting that plaintiff tested positive for valium in February 2006,

the Board described the events that followed. In its description of one of Capt.

Sundquist’s emails regarding plaintiff’s valium use, the Board notes that Dr.

Sundquist

only recalled giving [Mr. Houghtling] pain control medication.

He states he very well may have given [Mr. Houghtling] a few

valium but if they were taken when [Dr. Sundquist] was there

they would have cleared out of the body by the time of the

urinalysis. The doctor stated he had been gone for a few months

and the applicant should not be on any medications that he gave

him.

AR 53.

6

Army Regulation 27-10 ¶ 3-18(l) states that “[p]unishment will not be

imposed unless the commander is convinced beyond a reasonable doubt that

the Soldier committed the offense(s).”

8

The Board also referred to the statements made by other members of

plaintiff’s unit to the Criminal Investigation Command. Three of the

statements, according to the Board, “implicate[d] him in the purchase of illegal

substances (steroids) from an Iraqi pharmacy.” AR 53. The Board

characterized the evidence as revealing the “widespread availability of valium

illegally purchased off the Iraqi market by members of the applicant’s unit.”

AR 53. The decision also noted that, according to the statements given by

plaintiff’s fellow unit members, plaintiff was observed “having difficulty

putting on gloves, slurring his speech, and being drowsy during an operation

prior to the urinalysis.” AR 53.

Also recited by the Board were the events involving plaintiff’s service

when he returned to the States. The decision notes that plaintiff used cocaine

at a night club and that he tested positive for cocaine while at the emergency

room and after a drug test performed by the Army the next day. AR 53-54.

The Board noted that plaintiff was subject to a separation board proceeding

and that “[t]he results of this board were not available for review.” AR 55.

In its “Discussion and Conclusions” section, the Board found that there

was sufficient evidence to uphold plaintiff’s non-judicial punishment of June

2006. The Board noted: “[t]he prevalence of illegal valium obtained by a

member of [Mr. Houghtling’s] unit while he was present, the fact that his

doctor could not remember prescribing him valium, and the fact that the

applicant was unable to produce a prescription for valium.” AR 59.7 Also

relevant to the Board were the statements that plaintiff purchased steroids and

that he appeared to be under the influence of valium during an operation. AR

59. The Board found that “[i]t is reasonable to conclude the officer imposing

the applicant’s NJP [non-judicial punishment] exercised discretion in the NJP

process for the applicant’s offense. Therefore, there is insufficient basis to

expunge his Article 15, restore his rank, or restore the forfeiture of pay.” AR

59.

The ABCMR also noted that “[t]he applicant was not processed for

separation based solely on his positive urinalysis for cocaine. However, as

indicated in his commander’s letter, dated 31 January 2007, he was being

processed for separation based on his valium use in Iraq and a positive

7

On May 11, 2012, plaintiff asked the Board to partially reconsider its ruling.

The Board denied this request as untimely.

9

urinalysis for cocaine.” AR 59. The board concluded that plaintiff was

properly separated from the Army. “The records contain no indication of

procedural or other errors that would have jeopardized his rights.” AR 60.

In his complaint in this court, plaintiff makes his claim in four counts.

Count I makes a claim for disability and retirement pay under 10 U.S.C. §

1201 (2012), asserting that the non-judicial punishment and administrative

separation decision were “arbitrary, capricious, contrary to law, and

unsupported by substantial evidence.” Compl. ¶¶ 111-12.

Count II makes a claim under 37 U.S.C. § 204(a)(1) for the money that

plaintiff lost because of the non-judicial punishment: the fine imposed in his

Article 15 punishment, the subsequent reduction in rank, repayment of part of

his enlistment bonus, and what he would have earned but for his administrative

separation.

Count III challenges the status of plaintiff’s military records pursuant

to 28 U.S.C. § 1491(a)(2), specifically his DA Form 2627 that shows his

Article 15 punishment. He requests a correction of that record.

Count IV challenges the introduction of allegedly protected evidence

into the separation proceedings in March 2007.8 Plaintiff requests an

honorable discharge as a result of that introduction of evidence, also pursuant

to 28 U.S.C. § 1491(a)(2).

Defendant filed the Administrative Record and now moves to dismiss

the first three counts of the complaint as not justiciable under rule 12(b)(6).

Defendant also moves to dismiss Count IV for lack of jurisdiction. In the

alternative, the government moves for judgment on the administrative record

under rule 52.1 of the Rules of the United States Court of Federal Claims

(“RCFC”). Plaintiff opposes the government’s motion to dismiss on all but

one count and cross-moves for judgment on the administrative record. In his

reply brief, plaintiff conceded that this court lacks jurisdiction over Count IV

8

Paragraph 6-5(c) of Army Regulation 600-85 provides that, if protected

evidence is submitted in a soldier’s administrative separation proceedings, he

will receive an honorable discharge. See Compl. Exh. 2 at 11. Plaintiff alleges

that the results of his emergency room drug tests are protected evidence, per

paragraph 6-4a(3) of Army Regulation 600-85. See id. at 10.

10

of the complaint and requests that we dismiss that count without prejudice.

We grant that request.

DISCUSSION

We have jurisdiction over claims seeking money damages from the

United States. 28 U.S.C. § 1491(a)(1) (2006). This includes actions for back

pay pursuant to the Military Pay Act, 37 U.S.C. § 204 (2006). Metz v. United

States, 466 F.3d 991, 998 (Fed. Cir. 2006). This extends to claims for pay and

benefits that a service member would have received absent a wrongful

discharge. See Holley v. United States, 124 F.3d 1462, 1463 (Fed. Cir. 1997).

We may also order the correction of military records “as an incident of and

collateral to” an award of monetary damages. Id. § 1491(a)(2); see Voge v.

United States, 844 F.2d 776, 781 (Fed. Cir. 1988).

I. Justiciability

Although not challenging our jurisdiction over plaintiff’s complaint,

defendant argues that plaintiff has not presented issues for which we can

provide relief. That is to say, defendant believes that this case presents

questions beyond our competence. See generally Voge, 844 F.2d at 780 (“A

controversy is ‘justiciable’ only if it is ‘one which the courts can finally and

effectively decide, under tests and standards which they can soundly

administer within their special field of competence.’”) (citations omitted). We

must be able to identify a duty and a breach, and determine “whether

protection for the right asserted can be judicially molded.” Baker v. Carr, 369

U.S. 186, 192 (1962). If we are unable to do so, we will dismiss the complaint

for failure to state a claim for which relief may be granted pursuant to RCFC

12(b)(6). In deciding a motion under rule 12(b)(6), we will assume the

allegations in the complaint are true and make all reasonable inferences in the

favor of the non-moving party. Perez v. United States, 156 F.3d 1366,1370

(Fed. Cir. 1998).

The question of justiciability “is a particularly apt inquiry when one

seeks review of military activities,” as defendant points out. Murphy v. United

States, 993 F.2d 871, 872 (Fed. Cir. 1993). There are many “routine personnel

decisions regularly made by the services which are variously held . . . beyond

the competence . . . of courts to wrestle with.” Voge, 844 F.2d at 780. Judicial

review is only possible where the discretion inherent in the military command

is limited and there are “‘tests and standards’ against which the court can

11

measure [the military’s] conduct.” Murphy, 993 F.2d at 873 (quoting

Sargisson v. United States, 913 F.2d 918, 922 (Fed. Cir. 1990)). Even when

that discretion is unlimited, however, the military is “bound to follow its own

procedural regulations if it chooses to implement some.” Murphy, 993 F.2d

at 873. We are not called upon to exercise the discretion “reserved for the

military” but we can and do decide “whether the procedures were followed by

applying the facts to the statutory or regulatory standard.” Id.

We must examine plaintiff’s claims to determine whether they are

suited for judicial review. Count I of the Complaint alleges plaintiff’s

entitlement to disability pay and benefits, which he alleges he would have

received had he not be discharged prior to the Army referring him to a Physical

Evaluation Board (“PEB”). Plaintiff alleges that his administrative separation

was wrongful because it was based solely on an invalid Article 15 punishment.

He alleges specifically that it was in violation of the Army’s requirement that

Article 15 punishments not be imposed unless the commanding officer is

convinced beyond a reasonable doubt of the accused’s guilt. It follows, for

plaintiff, that it was arbitrary and capricious for the ABCMR to have upheld

the Army’s discharge and denied plaintiff disability benefits.

Count II is based on the same underlying allegation of wrongdoing in

the discharge based upon an invalid Article 15 punishment and the Board’s

denial of relief. Count II asks for the basic pay that Mr. Houghtling would

have received had he not been demoted and discharged prior to the expiration

of his term of service and for the amount of his enlistment bonus that he was

required to pay back due to early separation. Count III follows on by asking

the court to correct plaintiff’s service records to show his proper rank of E5

rather than E4, expunge his records pertaining to discharge for drug use, and

correct the denial of reference to a PEB.

Defendant argues that each of these claims is a challenge to the merits

of the Article 15 proceedings and resulting punishment. Defendant quotes the

language used in the complaint: “The Army’s imposition of nonjudicial

punishment on Houghtling in the absence of proof beyond a reasonable doubt

that he used Valium wrongfully was arbitrary, capricious, contrary to law, and

unsupported by substantial evidence.” Compl. ¶ 123. This is, in defendant’s

view, not a challenge to the due process afforded Mr. Houghtling and is

instead a disagreement with the Army’s conclusion that he used valium

without a prescription. Defendant cites the opinion of our predecessor court

in Cochran v. United States, in which the Court of Claims stated that “it is not

12

this court’s function to review the merits of findings of guilt in Article 15

punishment proceedings, but only the disregard or violation of the

Constitution, statute or regulations in the conduct of proceedings.” 1 Cl. Ct.

759, 770 (1983).

Plaintiff responds in two ways. First, plaintiff points us to Fisher v.

United States, 420 F.3d 1167 (Fed. Cir. 2005), and argues that the Federal

Circuit expressly declined to limit its review to procedure only. See id. at

1178-79. Second, plaintiff argues that this is a case in which “tests and

standards” can be applied to determine whether the Army’s actions were

proper. Plaintiff cites Army Regulation 27-10 ¶ 3-16(d)(4); ¶ 3-18l, which

plaintiff argues restricts the discretion of the Army by requiring proof beyond

a reasonable doubt in Article 15 proceedings. Thus, plaintiff argues, he seeks

review of the ABCMR’s decision that the Army properly applied the “‘beyond

a reasonable doubt’ standard.” Pl.’s Opp’n and Cross Mot. 21.

We begin by identifying the scope of review afforded by the procedural

posture of this case. Because plaintiff sought relief from the ABCMR, we are

limited to reviewing the decision of the board under the standards of review

for agency action. See Metz, 466 F.3d at 998. Although much of the

complaint is cast in the light of a challenge to the Article 15 proceedings, it is

only through the lens of the Board’s decision that we may look at those

proceedings. Plaintiff asked the ABCMR to correct his records by expunging

the Article 15 punishment, upgrading his discharge, restoring his rank to

sergeant, and referring him to a PEB. The basis for these requests is that the

Army failed to prove that he wrongfully used valium beyond a reasonable

doubt. Absent that, he would not have been discharged and would have been

referred to a PEB.

We are regularly confronted with claims for back pay for wrongful

discharge and with claims of entitlement to disability benefits. The fact that

a nonjudicial punishment is the root cause of the alleged wrongs is not

sufficient to remove the case from our competence. Plaintiff claims that a

particular regulation requiring a standard of proof was not followed in his

Article 15 proceedings. The same claim was made before the ABCMR. The

board disagreed with plaintiff, and now we are confronted with review of the

board’s decision under a highly deferential standard. This level of review is

sufficiently distinct from review of the sorts of decisions that are purely

discretionary and undertaken routinely by the military. We are not called upon

to reweigh the evidence presented at the Article 15 hearing or to delve into the

13

Army’s decision to administer such a punishment. Rather, we will decide only

whether the record supports the ABCMR’s decision that the Army followed

its own procedures. Plaintiff has therefore alleged a claim upon which this

court may afford relief. Defendant’s motion to dismiss Counts I, II, and III as

nonjudiciable is denied.

II. Judgment On The Administrative Record

We turn now to the merits of the ABCMR’s decision. We review a

decision of a military board for correction of records under the deferential

standards prescribed for review of agency action in the Administrative

Procedures Act, 5 U.S.C. §§ 701-06 (2012). Metz, 466 F.3d at 998. The

standard is whether the decision was “arbitrary, capricious, unsupported by

substantial evidence, or contrary to law.” Porter v. United States, 163 F.3d

1304, 1312 (Fed. Cir. 1998). Factual disputes are resolved by reference to the

administrative record, see Bannum, Inc. v. United States, 404 F.3d 1346, 1354

(Fed. Cir. 2005), and plaintiff must establish from this record “by clear and

convincing evidence that the board’s decision was arbitrary and capricious,”

Rose v. United States, 35 Fed. Cl. 510, 512 (1996).

This case hangs on the sole question of whether the Army followed its

own Army Reg. 27-10 ¶ 3-18(l), which provides that “[p]unishment will not

be imposed unless the commander is convinced beyond a reasonable doubt that

the Soldier committed the offense(s).” The ABCMR decided that it did and

from that concluded that the consequences of the Article 15

punishment–demotion, discharge, and no PEB– were proper as well. In light

of our standard of review, we agree.

It is clear from the ABCMR’s decision that it considered the relevant

facts pertaining to the Article 15 punishment. It recited them point by point in

seven pages of its written decision. See AR 52-58. It is also clear that the

board understood and considered the relevant Army regulation requiring that

the commander be convinced beyond a reasonable doubt. AR 59 (“The record

establishes the commander determined the evidence was sufficient to find the

applicant guilty beyond a reasonable doubt.”). The board likewise found that

it was reasonable to conclude from the record that the commander had

considered the mitigating factors and the evidence that raised doubt of

plaintiff’s guilt. Id. The board found nothing additional presented by plaintiff

to be sufficient to upset the Article 15 punishment. Id.

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It is telling that plaintiff’s arguments now concern how the evidence

ought to have been weighed and what testimony plaintiff’s commander and

then the ABCMR should have credited. Plaintiff argues that no evidence was

presented to show that he lacked a prescription, that valium was available at

the aid station where he was stationed, that the statements of Dr. Sundquist are

ambiguous and insufficient, that the amount of valium that plaintiff used was

within prescription norms, and that the testimony presented from fellow

soldiers did not affirmatively state that plaintiff used valium. Defendant

naturally counters each of those arguments with the statements and evidence

upon which Lt. Col. Lartigue concluded that Mr. Houghtling wrongfully used

valium. Defendant concludes that this is sufficient to support the board’s

conclusions to uphold the punishment. We agree.

We are not in a position to reconsider the evidence and draw our own

conclusions. The fact that a reasonable person might have reached a different

conclusion is insufficient to overturn the decision of a board. Heisig v. United

States, 719 F.2d 1153, 1156 (Fed. Cir. 1983). As long as there is substantial

evidence9 to support the board’s action, it must be upheld. See id. at 1157.

The ABCMR considered all of the evidence, considered whether Lt. Col

Lartigue applied the proper standard, and thereby followed the regulations, and

whether the subsequent administrative separation followed procedure. It

decided against plaintiff. We cannot identify any irrationality in the board’s

decision. It did not misapply any standard or fail to consider any evidence.

We must therefore affirm its conclusion and grant judgment on the

administrative record to defendant.

CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss Count IV for

lack of jurisdiction is granted, defendant’s motion to dismiss Counts I, II, and

III for failure to state a claim is denied, defendant’s motion for judgment on

the administrative record is granted, and plaintiff’s cross motion for judgment

on the administrative record is denied. Accordingly, the clerk of court is

directed to enter judgment for defendant and dismiss the complaint with

prejudice. No costs.

9

Substantial evidence is defined as “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Nippon Steel Corp.

v. United States, 458 F.3d 1345, 1351 (Fed. Cir. 2006).

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s/Eric G. Bruggink

ERIC G. BRUGGINK

Judge

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