The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 2015 Decided December 29, 2015
No. 14-5224
WALTER J. JACKSON, JR.,
APPELLANT
v.
RAYMOND EDWIN MABUS, JR., SECRETARY OF THE NAVY AND
CHAIRMAN OF THE BOARD FOR CORRECTION OF NAVAL
RECORDS,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01861)
John B. Wells argued the cause and filed the briefs for
appellant.
Wynne P. Kelly, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Vincent H.
Cohen Jr., Acting U.S. Attorney, and R. Craig Lawrence,
Assistant U.S. Attorney.
Before: BROWN and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
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Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: In 2006, the U.S. Navy
honorably discharged Petty Officer Walter Jackson. In so
doing, the Navy recommended against re-enlistment. The
recommendation against re-enlistment stemmed from
Jackson’s unauthorized absence from his naval base, a
subsequent disciplinary infraction, and two adverse
performance evaluations. Since his discharge in 2006,
Jackson has repeatedly asked the Board for Correction of
Naval Records to correct his Navy record. Under 10 U.S.C.
§1552(a)(1), the Board may correct any military record when
“necessary to correct an error or remove an injustice.” The
Board denied Jackson’s requests. Jackson filed suit, claiming
that the Board’s denials contravened the Administrative
Procedure Act, the Due Process Clause, and equitable
principles. The District Court ruled against Jackson. Given
Jackson’s infractions in the Navy, we likewise conclude that
the Board reasonably denied Jackson’s requests for record
correction. We therefore affirm the judgment of the District
Court.
I
As of 2005, Jackson was stationed at the U.S. Naval
Computer and Telecommunications Station in Bahrain. In
February 2005, Jackson was counseled for departing base a
day before his scheduled leave – in essence, he was warned
that he had done something wrong and should not do it again.
Later that year, a second incident occurred. Jackson
scheduled leave from July 30 to August 15, 2005. Without
first seeking a leave extension, Jackson left base on July 29 to
catch a flight. According to Jackson, the command duty
officer checked him out, even though Jackson’s leave did not
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begin until the next day. Although a command duty officer
lacks authority to approve leave extensions, Jackson said that
the command duty officer allowed him to go. So Jackson
departed one day earlier than his authorized leave date.
Jackson then returned to base on August 16, after his
authorized leave had expired.
For exceeding his scheduled leave, Jackson was
subsequently charged under the Uniform Code of Military
Justice with unauthorized absence. See 10 U.S.C. § 886.
Jackson elected a procedure known as nonjudicial punishment
instead of a court-martial. Nonjudicial punishment is a less
formal and speedier disciplinary process.
A servicemember who elects the nonjudicial punishment
process is entitled to a hearing before his or her commanding
officer or other designated official. At that hearing, the
servicemember may be accompanied by a spokesperson and
may present evidence and witnesses. If the commanding
officer concludes that the servicemember did not commit the
alleged offense, the commanding officer must terminate the
nonjudicial punishment proceeding. If the commanding
officer concludes that the servicemember committed the
offense, the commanding officer may impose punishment on
that servicemember without a court-martial.
Here, the commanding officer found Jackson guilty of
unauthorized absence and docked him a total of one month’s
pay. The commanding officer also imposed a suspended
punishment that would have reduced Jackson’s rank from
Petty Officer First Class/E-6 to Petty Officer Second Class/E-
5. Importantly, however, the rank reduction was suspended
for six months. Jackson would not have his rank reduced, so
long as he did not commit any further disciplinary infractions
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during that six-month period. Jackson was duly notified of
his right to appeal his punishment. He declined to appeal.
During that six-month probationary period, however,
Jackson disobeyed a direct order and engaged in a verbal
altercation with a superior officer. He later appeared before a
disciplinary military board, where he acknowledged his
insubordination. In light of his prior suspended rank
reduction, the disciplinary board recommended reducing
Jackson’s rank. Following that recommendation, the
commanding officer reduced Jackson’s rank to Petty Officer
Second Class/E-5.
Based on his conduct, Jackson received two adverse
performance evaluations. The evaluations referred to
Jackson’s “inability to obey direct orders,” his “detrimental”
effect on “unit cohesion and moral[e],” and the “significant
deterioration in his job performance.”
That same month, July 2006, the Navy honorably
discharged Jackson and recommended against re-enlistment.
In January 2007, Jackson asked the Board for Correction
of Naval Records to correct his record by removing the
nonjudicial punishment, the reduction in rank, and the later
adverse evaluations.
Under 10 U.S.C. § 1552(a)(1), the Board may amend any
military record if the Board considers such action “necessary
to correct an error or remove an injustice.” However, if the
Board “determines that the evidence of record fails to
demonstrate the existence of probable material error or
injustice,” then it may deny an application for record
correction. 32 C.F.R. § 723.3(e)(2).
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The Board denied Jackson’s request to correct his record.
The Board’s decision cited Jackson’s unauthorized absence
from base, his later disciplinary infraction, and his adverse
evaluations. The Board concluded, among other things, that
Jackson’s nonjudicial punishment for unauthorized absence
was warranted. In support of that conclusion, the Board
incorporated a letter by Jackson’s commanding officer
explaining that Jackson was properly found guilty of
unauthorized absence. The letter also noted that Jackson
declined to appeal that finding despite being duly notified of
his right to do so.
Jackson later submitted several requests for
reconsideration, which the Board denied.
Jackson next filed suit in federal court. In the District
Court, Jackson challenged the Board’s denial of his initial
request for record correction as well as the denial of his last
request for reconsideration. The District Court granted
summary judgment to the Board. Jackson v. Mabus, 56 F.
Supp. 3d 1 (D.D.C. 2014). We review the District Court’s
grant of summary judgment de novo. See Roberts v. United
States, 741 F.3d 152, 157-58 (D.C. Cir. 2014).
II
A
In considering Jackson’s initial request to correct his
record, the Board applied 10 U.S.C. § 1552(a)(1). That
statute permits the Board to amend any military record when
“necessary to correct an error or remove an injustice.”
Primarily citing the Administrative Procedure Act, Jackson
claims that the Board acted arbitrarily and capriciously by not
correcting his naval record. The APA’s arbitrary and
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capricious standard is deferential. See, e.g., Motor Vehicle
Manufacturers Association v. State Farm Mutual Automobile
Insurance Co., 463 U.S. 29, 43 (1983) (“The scope of review
under the arbitrary and capricious standard is narrow and a
court is not to substitute its judgment for that of the agency.”)
(internal quotation marks omitted). The question is not what
we would have done, nor whether we agree with the agency
action. Rather, the question is whether the agency action was
reasonable and reasonably explained. Moreover, the arbitrary
and capricious standard is even more deferential in the
military records context. See Roberts v. United States, 741
F.3d 152, 158 (D.C. Cir. 2014).
Here, the Board’s initial decision not to amend Jackson’s
record was reasonable in light of the substantial evidence
before it: Jackson was absent from his base without
authorization – indeed, he was twice absent, in February 2005
and again in July to August 2005; he committed a subsequent
disciplinary infraction; and he received adverse evaluations.
Applying our deferential standard of review, we cannot
say that the Board acted unreasonably by declining to amend
Jackson’s naval record. Absence from base and
insubordination are not insignificant offenses in the military.
The Board reasonably concluded that Jackson had not shown
an error or injustice in his nonjudicial punishment, his
reduction in rank, or his adverse evaluations.
B
As to the denial of Jackson’s request for reconsideration,
the Board considered that request under 32 C.F.R. § 723.9.
That regulation provides that the Board will consider requests
for reconsideration only if they contain “new and material
evidence or other matter not previously considered by the
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Board.” Evidence is new if it was “not previously considered
by the Board and not reasonably available to the applicant at
the time of the previous application.” Id. And “[e]vidence is
material if it is likely to have a substantial effect on the
outcome.” Id.
With respect to Jackson’s request for reconsideration, our
inquiry is this: Did the Board reasonably conclude that
Jackson had not come forward with any new and material
evidence, or other matter not previously considered by the
Board, that would support amendment of his record?
Jackson contends that his request for reconsideration
supplied new and material evidence, and new legal
arguments. He submitted a report prepared by a retired
special agent of the Navy. According to Jackson, the report
confirmed that he received authorization from his command
duty officer to leave early. In addition, Jackson claimed that
under relevant military regulations, his travel time did not
count as leave, much less unauthorized leave. Jackson also
submitted the results of a polygraph test. By Jackson’s
account, those results verified that he did not believe he was
violating military regulations by departing base a day before
his scheduled leave began.
The Board concluded that those arguments and evidence
did not require a different result. The Board reasoned, in
essence, that Jackson had erred by taking a second
unauthorized leave in July 2005 and that the new evidence
showed at most that he was mistaken rather than willful in his
violation. According to the Board, Jackson was not
authorized under the relevant military regulations to extend
his leave to cover travel time. Because his authorized time
away from base started on July 30, Jackson was not
authorized to depart on July 29. The leave regulation that
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Jackson cites – Department of Defense Instruction 1327.6 –
says that travel time is not counted as leave. But that
regulation can reasonably be read, as the Board necessarily
did here, as inapplicable to Jackson’s case because Jackson
did not seek authorization to be away from his base on July
29. The regulation therefore does not disturb the conclusion
that Jackson left his base without authorization, received
punishment, and did not challenge that punishment. Put
another way, the regulation may affect how much leave a
servicemember is counted as having taken during an
authorized absence. It does not alter the period for which a
servicemember is authorized to be absent. Moreover, the
relevant military regulations made clear that the command
duty officer was not authorized to extend Jackson’s leave. In
addition, the nonjudicial punishment for that violation –
namely, a reduction in rank – was suspended. So long as
Jackson stayed out of trouble for six months, he would have
suffered no reduction in rank for his unauthorized leave in
July 2005. Unfortunately for Jackson, he engaged in
substantial misconduct – insubordination – while in that
probationary status. In short, the Board acted reasonably in
denying Jackson’s request for reconsideration.
In his request for reconsideration, Jackson also claimed
that his rank was reduced in violation of the procedures set
forth in the JAG Manual. That reduction in rank occurred
after Jackson’s disciplinary infraction, which he committed
while he was in the six-month probationary status for his
unauthorized absence. Jackson says that JAG Manual section
0118d entitled him to a hearing before a reduction in rank. In
fact, that section states that a hearing is not always required.
Under the circumstances here, the Board could reasonably
have concluded that a hearing was not required.
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C
Jackson advances two final claims before this Court.
First, he claims that the Board violated his right to due
process under the Fifth Amendment. According to Jackson,
the Board did not afford him adequate opportunity to press his
claims. That argument is meritless. Jackson advanced a
number of theories, and the Board several times reviewed and
considered Jackson’s claims. Jackson received adequate
process. Second, he argues that the Board should have
afforded him equitable relief. See 10 U.S.C. § 1552. But the
Board necessarily possesses wide discretion whether to grant
equitable relief under that statute. We have no basis to
second-guess the Board’s decision not to grant equitable
relief.
***
This Court has previously cautioned the boards for
correction of military records that they must sufficiently
explain their reasoning in order to have their decisions
sustained. See, e.g., Roberts v. United States, 741 F.3d 152,
159 n.* (D.C. Cir. 2014); Frizelle v. Slater, 111 F.3d 172,
176-77 (D.C. Cir. 1997). Despite our admonitions, the
Board’s explanation for denying Jackson’s request for
reconsideration was thinner than it should have been – unlike
the Board’s detailed explanation for denying Jackson’s initial
application for correction. We again urge the relevant boards
to take care to sufficiently address each non-frivolous claim
raised by an applicant for record correction. We affirm the
judgment of the District Court.
So ordered.