Tennekoon v. Fanning

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ERAJ V. TENNEKOON, )

)

Plaintiff, )

)

v. ) Civil Action No. 15-0148 (ABJ)

)

ERIC K. FANNING, )

Acting Secretary of the Army 1, )

)

Defendant. )

____________________________________)

MEMORANDUM OPINION

Plaintiff Eraj V. Tennekoon brought this action under the Administrative Procedure Act

(“APA”), 5 U.S.C. § 701 et seq., against Eric K. Fanning, the Acting Secretary of the Army, in his

official capacity, alleging that the Army arbitrarily and capriciously denied plaintiff’s request to

remove derogatory information from his personnel records. Compl. [Dkt. # 1] ¶ 58.

Plaintiff is an active-duty U.S. Army Captain who served two tours in Iraq. Id. ¶¶ 18–20.

In August 2008, plaintiff was on leave from Iraq and residing on a military base in New York. Id.

¶ 21. Shortly after his return, he was arrested by military police when his wife reported an incident

of domestic violence, and the Army ultimately charged him by court martial. Id. ¶¶ 21, 28. In an

October 2, 2008 Officer Evaluation Report (OER), while the criminal case was pending, plaintiff’s

supervisors recommended that he not be promoted because his “off-duty behavior severely

1 The complaint names former Secretary of the Army John M. McHugh as the defendant in

this case. Pursuant to Federal Rule of Civil Procedure 25(d), his successor, Acting Secretary Eric

K. Fanning, is automatically substituted as the new defendant.

impacted his ability to perform his duties . . . .” Compl. ¶¶ 24–25; AR53–54 2. Plaintiff was

subsequently acquitted of those charges, Compl. ¶ 29, and he brought this action after multiple

unsuccessful efforts to persuade the Army to correct his military record and remove the 2008 OER.

Id. ¶¶ 37, 43, 48. The gravamen of his complaint is that the Army’s regulations prohibit making

reference to unproven derogatory information such as charges that have not yet been adjudicated.

The parties have filed cross-motions for summary judgment. See Def.’s Mot. for Summ.

J. [Dkt. # 7] (“Def.’s Mot.”); Def.’s Mem. in Supp. of Mot. for Summ. J. [Dkt. # 7-1] (“Def.’s

Mem.”); Pl.’s Cross-Mot. for Summ. J. & Opp. to Mot. for Summ. J. [Dkt. # 10] (“Pl.’s Cross-

Mot.”); Pl.’s Mem. of P. & A. in Supp. of Pl.’s Cross-Mot. for Summ. J. & Opp. to Def.’s Mot.

for Summ. J. [Dkt. # 10-1] (“Pl.’s Cross-Mem.”). The Court will grant plaintiff’s motion in part

and deny it in part, and grant defendant’s motion in part and deny it in part, because it finds that

the Army Board for Correction of Military Records (“ABCMR” or the “Board”) failed to respond

directly to the legal argument at the heart of plaintiff’s request for reconsideration before the Board,

which does not appear to be frivolous and could affect the Board’s ultimate determination. The

Court will therefore remand this matter to the agency for further action.

BACKGROUND

Plaintiff currently serves as a Captain in the United States Army, and he is stationed in

Grafenwoehr, Germany. Compl. ¶ 6. He was originally appointed as a commissioned officer at

the rank of second lieutenant in December 2004. Id. ¶ 17. He served in Iraq from March to July,

2006, and again from September 2007 to August 2008. Id. ¶¶ 18–19; AR140. In February 2008,

plaintiff was promoted to Captain. Compl. ¶ 20. Throughout his career in the Army, plaintiff

2 The parties filed the 333-page administrative record in this case. Admin. R. [Dkt. # 6]

(“AR”). For ease of reference, the Court cites to the Bates numbers in the bottom right-hand corner

of each page of the record.

2

received exceptional Officer Evaluation Reports and regular career advancements. See AR45–46

(2006 OER describing plaintiff as an “outstanding platoon leader” with “unlimited potential for

advancement”); AR48 (2007 review describing him as “the best platoon leader I currently rate and

in the top 10% of officers . . . in 12 years of service”); AR52 (2008 review noting that plaintiff

should be “[p]romote[d] ahead of peers,” and describing him as “the best Executive Officer in the

Battalion.”).

For his “exceptionally meritorious service” in Iraq, plaintiff received a Bronze Star in June

2008. AR65. But there was a significant change in the nature of the evaluation plaintiff received

after he returned from Iraq to the military base in Fort Drum, New York in August 2008. Compl.

¶¶ 21, 25–26. On August 4, 2008, the Military Police were called to plaintiff’s home to respond

to a report of an alleged domestic disturbance. Id. ¶ 21. Plaintiff was arrested, placed into pretrial

confinement, and eventually charged by court martial for the events related to the alleged

altercation. Id. ¶¶ 22, 28; AR41–42. The Army alleged that plaintiff “unlawfully grab[bed] [his

wife] on the neck and arm with his hands” in the presence of their child, and that plaintiff

“criminally possess[ed]” a firearm. AR41–42; see Compl. ¶ 28. In light of plaintiff’s arrest, his

Bronze Star was revoked. AR66.

On October 2, 2008, plaintiff received a Relief for Cause Officer Evaluation Report 3 for

the period of January 26, 2008 through August 4, 2008. AR53–54. The evaluator commended

3 A “Relief for Cause” OER is “required when an officer or warrant officer is relieved for

cause . . . .” Army Regulation 623–3 ¶ 3–58 (Aug. 10, 2007) (“Army Reg.”); see Def.’s App’x

[Dkt. # 7-3] at 6 (attaching relevant portions of Army Reg. 623–3). Army Regulations define

“relief for cause” as “an early release of an officer from a specific duty or assignment directed by

superior authority and based on a decision that the officer has failed in his or her performance of

duty.” Id.; see also AR9. The regulations further explain that “duty performance will consist of .

. . the accepted professional officer standards . . . . These standards will apply to conduct both on

and off duty.” Id.

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plaintiff’s “solid performance” in Iraq, but noted that “[d]espite CPT Tennekoon’s strong job

performance, he failed to meet the standard we expect of officers by being involved in a domestic

disturbance dispute and possessing unregistered firearms.” AR54. The report continued, under

the section titled “Comment on Potential for Promotion,” “Captain Tennekoon has no potential for

future service in our Army and absolutely should not be promoted to Major. He fails to meet the

standards we expect of all officers in the United States Army.” Id. The Senior Rater echoed praise

for plaintiff’s job performance, but concluded:

Unfortunately while on Environmental Leave, CPT Tennekoon’s off duty

behavior severely impacted his ability to perform his duties as the Battalion

S4 and he could not return to Iraq and rejoin the unit. In the course of a

domestic dispute, he demonstrated extremely poor judgment and conduct

unbecoming for a US Army officer. His behavior has cost him the respect

of his subordinates, peers, and supervisors. As a result, I relieved him of

his duties. At this time, he should not be promoted.

Id.

One month later, on November 13, 2009, plaintiff appeared before the court martial and

was acquitted after trial on all charges. AR41.

On August 23, 2010, Plaintiff appealed his October 2008 Evaluation Report to the Officer

Special Review Board (OSRB). 4 He argued that the report was substantively inaccurate when it

was issued because it referenced the then-pending allegations, and that after the acquittal, the

continued inclusion of the OER in his military record was unjust. See AR122–33. The OSRB

denied plaintiff’s appeal and explained:

An internal legal opinion was obtained opining that while the court-martial

proved beyond a reasonable doubt that the appellant was not guilty of the

4 The OSRB is the military board to which appeals of Officer Evaluation Reviews are

submitted. Army Reg. 623–3 ¶ 6–7(i); see also Ex. 1 to Pl.’s Reply in Supp. of Pl.’s Cross-Mot

[Dkt. # 13-1] (containing relevant sections of Army Regulation 623–3). Pursuant to that

regulation, the OSRB is bound to assess whether the OER at issue was the product of “[a]lleged

bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error . . . .” Id.

4

specific charges therein, the general comments regarding the appellant’s

involvement in a domestic dispute which involved poor judgment and

conduct unbecoming an officer, were not undermined by the court-martial

results and represented a fair assessment of the situation leading to the basis

of the evaluation report.

AR124. Based on that recitation of the substance of the legal opinion, the OSRB concluded that

the “overall merits of this case do not warrant the relief requested.” AR121. That decision was

affirmed by the President of the OSRB on April 12, 2011. AR119.

On July 19, 2011, plaintiff filed an application pursuant to 10 U.S.C. § 1552 with the Army

Board for Correction of Military Records, and again requested removal of the 2008 OER from his

file on the basis of “substantive inaccuracy.” AR91. He complained that the OER was based

“solely on the allegations of which [plaintiff] was acquitted.” 5 Id. On November 3, 2011, the

Board informed plaintiff that it had denied his application. AR77–78. It detailed the history of

the matter and the evidence presented, see AR79–84, and stated:

Counsel contends the OER is unjust, contains negative markings and

comments based entirely on allegations, and should be removed because the

applicant was acquitted at court-martial. However, there is evidence which

shows the applicant’s unbecoming conduct during a domestic dispute led to

him not being able to perform his duties.

Although the applicant was acquitted of charges, the fact remains that at the

time the report was rendered, his senior rater objectively opined he

exhibited extremely poor judgment during a domestic dispute that led to

charges being preferred.

AR83.

On November 5, 2012, plaintiff requested reconsideration of the Board’s decision. Compl.

¶ 43; AR18–39. This time, he submitted a twenty-two page memorandum that laid out specific

5 Plaintiff also appealed the revocation of his Bronze Star, but that appeal was rejected

because plaintiff failed to exhaust his administrative remedies. AR125. The decision is not before

the Court, and in any event, appears moot in light of evidence that plaintiff was re-issued a Bronze

Star in 2012. See AR68.

5

legal challenges to the Board’s decision based on Army Regulations, in particular, Army

Regulation 623–3 § 3–23. See AR18–39. In addition, plaintiff included letters from the two rating

officials who prepared the 2008 OER. AR43–44. In practically identical letters, the rating officials

both indicated that “[a]t the time [the official] wrote the OER, all data reflected in the OER was

accurate.” AR43, 44. The letters go on to say, though, that each rating official “would not have

included the negative comments on [plaintiff’s] OER had [the official] known he was going to be

acquitted at court-martial of the underlying misconduct . . . . Had the acquittal come before the

rating period closed, [the official] would not have referred to the underlying misconduct.” AR43,

44. 6

On August 1, 2013, the Board denied plaintiff’s request for reconsideration. AR5. With

respect to the letters from the rating officials, it observed:

The senior rater still states that at the time the OER was written all the data

was accurate . . . . Both the rater and senior rater now support the applicant’s

request to remove the subject OER from his [personnel file]. They both

clearly state that had they known the outcome of the court-martial they

would not have mentioned the underlying misconduct that resulted in the

applicant’s relief for cause. However, neither rating official contends that

the applicant would not still have been relieved for cause due to his inability

to perform his duty.

AR9–10.

Plaintiff then brought this two count action against the Secretary of the Army on January

29, 2015. See generally Compl. In Count I, plaintiff submits that the Board’s decision on

reconsideration was arbitrary and capricious because the Board “failed to consider in its written

decision non-frivolous arguments raised in Plaintiff’s application which may have affected the

ultimate disposition of the application.” Compl. ¶ 58. Specifically, plaintiff asserts that the Board

6 The letters differ in minor ways. For example, the senior rating official’s letter omits the

word “the” before the phrase “negative comments” and omits the word “closed” after “rating

period.” Compare AR44 with AR43. In all material respects, the letters are identical. Id.

6

failed to consider his argument that under Army Regulations, neither rater should have made any

reference at all to the pending charges, because at the time that the OER was written, the

investigation into the domestic violence situation was still ongoing. Compl. ¶¶ 59–64. Count II

alleges that decision on reconsideration was arbitrary and capricious because the Board “failed to

adequately provide a rational connection between the facts of the case and their choice to deny

[p]laintiff’s application.” Compl. ¶ 66.

On May 11, 2015, defendant moved for summary judgment. Def.’s Mot. Plaintiff opposed

the motion, and filed a cross-motion for summary judgment on July 10, 2015. Pl.’s Cross-Mot.

Defendant opposed the cross-motion and replied in support of his original motion on August 3,

2015. Mem. in Opp. to Pl.’s Cross-Mot. & Reply in Supp. of Def.’s Mot. [Dkt. # 11] (“Def.’s

Cross-Opp.”), and plaintiff replied in support of his cross-motion. Reply in Supp. of Pl.’s Cross-

Mot. [Dkt. # 13] (“Pl.’s Cross-Reply”).

LEGAL BACKGROUND

I. Standard of Review

Summary judgment is ordinarily appropriate when the pleadings and evidence show that

“there is no genuine dispute as to any material fact and [that] the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). However, in cases involving review of

agency action under the APA, Rule 56 does not apply due to the limited role of a court in

reviewing the administrative record. Select Specialty Hosp.-Akron, LLC v. Sebelius, 820 F. Supp.

2d 13, 21 (D.D.C. 2011). Under the APA, the agency’s role is to resolve factual issues and

arrive at a decision that is supported by the administrative record, and the court’s role is 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.” Occidental Eng’g Co. v. INS, 753 F.2d 766,

7

769–70 (9th Cir. 1985), citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,

415 (1971); see also Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977).

According to the APA, a court must “hold unlawful and set aside agency action, findings,

and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law,” 5 U.S.C. § 706(2)(A), in excess of statutory authority, id. § 706(2)(C),

or “without observance of procedure required by law,” id. § 706(2)(D). However, the scope

of review “is narrow and a court is not to substitute its judgment for that of the agency.” See

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

II. The Correction of Military Records

Officer Evaluation Reports “are presumed to be ‘administratively correct’ and to

‘[r]epresent the considered opinions and objective judgment of the rating officials at the time of

preparation.’” Cone v. Caldera, 223 F.3d 789, 792 (D.C. Cir. 2000), quoting Army Reg. 623–

105 at ¶ 5–32. “An officer seeking a correction must prove ‘clearly and convincingly’ that the

‘presumption of regularity’ in the preparation of administrative records should not apply, and that

‘[a]ction is warranted to correct a material error, inaccuracy, or injustice.” Id. at 792–93, quoting

Army Reg. 623–105 at ¶ 9–7.

The Secretary of the Army, acting through the Board, “may correct any military record

. . . when the Secretary considers it necessary to correct an error or remove an injustice.” 10

U.S.C. § 1552(a)(1); see also 32 C.F.R. § 581.3 (describing the function and power of the Board).

“The ABCMR begins its consideration of each case with the presumption of administrative

regularity. The applicant has the burden of proving an error or injustice by a preponderance of

the evidence.” 32 C.F.R. § 581.3(e)(2); see also Frizelle v. Slater, 111 F.3d 172, 177, 179 (D.C.

Cir. 1997).

8

Once the Board has acted, its ruling on a request for correction must receive particular

deference from the court because Congress has accorded the Secretary of the Army wide

discretion in deciding when to make corrections to military records. See 10 U.S.C. § 1552(a)(1)

(“The Secretary of a military department may correct any military record of the Secretary’s

department when the secretary considers it necessary to correct an error or remove an injustice

. . . . [S]uch corrections shall be made by the Secretary acting through boards of civilians of the

executive part of that military department.”) (emphasis added). In the case of Board decisions,

the Court must apply “an ‘unusually deferential application of the arbitrary or capricious standard’

of the APA.” Roberts v. United States, 741 F.3d 152, 158 (D.C. Cir. 2014), quoting Kreis v. Sec’y

of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989); Piersall v. Winter, 435 F.3d 319, 324

(D.C. Cir. 2006); Cone, 223 F.3d at 793.

The D.C. Circuit has explained that this high level of deference is warranted “to ensure

that the courts do not become a forum for appeals by every [officer] dissatisfied with his or her

ratings, a result that would destabilize military command and take the judiciary far afield of its

area of competence.” Mueller v. Winter, 485 F.3d 1191, 1198 (D.C. Cir. 2007). To that end, the

Army need only show that the Board’s decision “minimally contain[s] ‘a rational connection

between the facts found and the choice made.’” See Dickson v. Sec’y of Defense, 68 F.3d 1396,

1404 (D.C. Cir. 1995), quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. The court must “limit

[its] inquiry to whether the ‘Secretary’s decision making process was deficient, not whether his

decision was correct.’” Roberts, 741 F.3d at 158, quoting Kreis, 866 F.2d at 1511.

But while the Board’s decision is entitled to this level of deference, the D.C. Circuit has

also made it clear that a decision must be remanded to the Board if the Board fails to address a

petitioner’s non-frivolous argument. See Frizelle, 111 F.3d at 177. In Frizelle, a Coast Guard

9

officer challenged an OER which criticized his performance, management, and interpersonal

skills, and led to his being passed over for a promotion to lieutenant. Id. at 175. The officer

argued, among other things, that the report was unfair because it “failed to give him credit for

significant accomplishments,” and that “his supervisors were biased against him . . . .” Id. at 176.

The Coast Guard denied the petition for relief, but the district court granted Frizelle’s motion for

summary judgment and remanded the matter, finding that the Board had failed to address Frizelle’s

arguments in detail and explain its reasoning adequately. Id. On remand, the Board agreed with

two of Frizelle’s contentions but rejected the vast majority of them, and it again left the denial of

promotion undisturbed. Id. The district court granted summary judgment for the Board that time,

and Frizelle appealed. Id.

On appeal, the D.C. Circuit explained that “an agency’s decision [need not] be a model of

analytic precision to survive a challenge.” Id., quoting Dickson, 68 F.3d at 1404 (alterations in

original); see also Dickson, 68 F.3d at 1404 (A reviewing court will “uphold a decision of less

than ideal clarity if the agency’s path may reasonably be discerned”), quoting Bowman Transp.,

Inc. v. Arkansas-Best Motor Freight Sys., 419 U.S. 281, 286 (1974). But it went on to find the

district court’s ruling in that case to be arbitrary “because the Board’s decision did not respond to

two of Frizelle’s arguments, which do not appear frivolous on their face and could affect the

Board’s ultimate disposition . . . .” Id. at 177.

As other courts in this district have noted, the guidelines in Frizelle are “well-established,”

and “a decision by the ABCMR that fails to address a plaintiff’s non-frivolous, material arguments

is arbitrary.” Albino v. United States, 78 F. Supp. 3d 148, 167 (D.D.C. 2015), citing Frizelle, 111

F.3d at 177; see also Rudo v. Geren, 818 F. Supp. 2d 17, 26–27 (D.D.C. 2011) (the Board must

respond in some way to a plaintiff’s non-frivolous arguments; it may not simply identify them

10

without further comment). As the D.C. Circuit has explained, if the agency chooses to disregard

one of plaintiff’s contentions:

it must expressly indicate that it has done so. Otherwise neither [the

plaintiff] nor [the] court would be able to discern whether the [agency]

considered and was unpersuaded by those factors or whether the [agency]

simply excluded them from its decision making process. Moreover, if the

[agency] excludes those factors from consideration, it must explain its

rationale for doing so.

Puerto Rico Higher Educ. Assistance Corp. v. Riley, 10 F.3d 847, 853 (D.C. Cir. 1993).

ANALYSIS

Plaintiff argues that the Board failed to consider legal arguments included in his request

for reconsideration that the disputed OER should be removed based on: (1) Army Reg. 623–3 §

3–23(a), (b), or (c); (2) Army Reg. 623–3 § 3–39(c); and (3) Army Reg. 623–3 § 3–40. Pl.’s Cross-

Mem. at 13–21.

The government counters that the “ABCMR is not required to conform its decision to an

‘answer’ style format and address Plaintiff’s case line by line.” Def.’s Cross-Opp. at 2. Instead,

according to the defendant, the Board needed only to provide “a reason that a court can measure.”

Id. at 3, quoting Kreis, 866 F.2d at 1514. But the Court finds that the Board did not live up to that

standard when it addressed plaintiff’s arguments based upon section 3–23 of Army Regulation

623–3.

I. The Court will grant summary judgment in favor of the plaintiff on Count I because

the Board failed to address plaintiff’s non-frivolous arguments based on Army

Regulation 623–3 § 3–23.

In Count I, plaintiff maintains that the Board’s determination on reconsideration was

flawed because the decision did not specifically address the legal arguments he advanced which

cited Army Regulations, including the regulation that prohibits including references to “unproven

derogatory information” in Officer Evaluation Reports.

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Army Regulation 623–3 sets forth the Army’s system for evaluating its personnel. Section

3–23 of the Regulation, entitled “[u]nproven derogatory information,” provides:

a. No reference will be made to an incomplete investigation (formal or

informal) concerning a Soldier.

b. References will be made only to actions or investigations that have been

processed to completion, adjudicated, and had final action taken before

submitting the evaluation to HQDA [Headquarters, Department of the

Army]. If the rated official is absolved, comments about the incident

will not be included in the evaluation.

c. This restriction is intended to prevent unverified derogatory information

from being included in evaluation reports. It will also prevent unjustly

prejudicial information from being permanently included in a Soldier’s

OMPF [Official Military Personnel File] such as –

1) Charges that are later dropped.

2) Charges or incidents of which the rated individual may later be

absolved.

d. Any verified derogatory information may be entered on an evaluation.

This is true whether the rated Soldier is under investigation, flagged, or

awaiting trial. 7 While the fact that a rated individual is under

investigation or trial may not be mentioned in an evaluation until the

investigation or trial is completed, this does not preclude the rating

chain’s use of verified derogatory information. For example, when an

interim report with verified information is made available to a

commander, the verified information may be included in an OER,

NCOER [noncommissioned officer evaluation report], or AER

[academic evaluation report]. For all reports, if previously reported

information later prove to be incorrect or erroneous, the Soldier will be

notified and advised of the right to appeal the report in accordance with

Chapter 6.

7 In his request for reconsideration of the Board’s decision, plaintiff took the position that

no information could be “verified” for purposes of this regulation until after the Court Martial

process is complete. AR24. But subsection 3–23(d) plainly contemplates that some information

may be “verified” even before a trial on the merits has concluded, and it may then be mentioned

in an evaluation. Army Reg. 623–3 § 3–23(d).

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Army Reg. 623–3 § 3–23 (2007) 8; see App’x A to Def.’s Mot. for Summ. J. [Dkt. # 7-3]. While

the regulation draws a clear distinction between the use of “unverified” and “verified” information,

it does not define the term, identify a standard of proof that must be met, or specify the means by

which information could be “verified.”

The record reflects that in his request for reconsideration of the Board’s decision, plaintiff

specifically argued that the Army had violated its own regulations: he argued that the unverified

information should never have been included in the OER, and it must now be removed. AR24–

25. 9 Plaintiff asserted that “there is no legal and competent evidence to positively establish any of

the negative markings or comments in the OER,” AR25, and that “[t]he ‘facts’ considered at the

8 Though the parties rely on the 2007 regulations, they have since been amended, the most

regulations took effect on January 1, 2016. See Army Reg. 623–3 (2015), http://

www.apd.army.mil/pdffiles/r623_3.pdf. Because the 2007 regulations were in effect at the time

that the contested OER was issued, and because the parties seem to agree that the 2007 regulations

apply to this dispute, the Court will rely on that version of the regulations in this opinion.

However, the Court notes that the 2015 regulations include changes in the “Unproven

Derogatory Information” section. Now, the regulation begins with a broad statement that “[a]ny

mention of unproven derogatory information in an evaluation report can become an appealable

matter if later the derogatory information is unfounded.” Army Reg. 623–3 § 3–19, http://

www.apd.army.mil/pdffiles/r623_3.pdf. The regulations also state:

[R]ating officials are not prohibited from commenting on a court-martial

(judicial) if completed, but the comments should focus on the behavior that

led to the court-martial rather than the court-martial itself. If the rated

Soldier is acquitted at a court-martial . . . comments about the underlying

incident will not be included in the evaluation . . . .

Id. at § 3–19(b).

9 In submissions to the Officer Special Review Board, and the first Army Board of

Corrections of Military Records panel, plaintiff’s counsel argued only that the Officer Evaluation

Report was “substantively inaccura[te]” and “unjust” in light of plaintiff’s acquittal. See AR97–

98; 111–12; 122. However, the motion for reconsideration submitted by new counsel addressed

the applicability of each prong of section 3–23 at length. See AR21–39.

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time of writing the report were still unverified and would not be verified until the completion of

the General Court-Martial in November 2009.” AR24.

The Board responded:

1. The applicant contends that his OER for the period 26 January to 4

August 2008 should be removed from his AMHRR [Army Military Human

Resource Record] because it contains negative markings and inaccurate

comments that are unjustly prejudicial to his character and career, which

were based on allegations of which he was absolved at a general court-

martial.

2. In the original ROP [Report of Proceedings], the Board determined that

the evidence showed the applicant’s unbecoming conduct during a domestic

dispute resulted in him not being able to perform his duties. Even though

the applicant had been acquitted of the charges, the fact remained that at the

time the OER was rendered, the senior rater objectively opined he had

exhibited extremely poor judgment during a domestic dispute that led to

charges being preferred. The senior rater still states that at the time the OER

was written all the data was accurate.

AR9.

In rendering this decision, the panel did not mention – and therefore, it is impossible to

measure if it fully or properly considered – any of the subsections of section 3–23. It failed to

discuss subsections (a), (b), or (c), which govern the use of derogatory information which has not

yet resulted in a conviction, and it makes no finding that the information was properly included as

“verified” material under subsection (d). When the Board dismisses an argument with any

substance, “it must expressly indicate that it has done so.” Puerto Rico Higher Educ. Assistance

Corp., 10 F.3d at 853. Therefore, because the Board’s opinion is silent on the regulatory issue,

the Court must consider whether the arguments that were ignored were non-frivolous contentions

that could have affected the outcome. See Frizelle, 111 F.3d at 177.

The government argues that plaintiff’s regulatory arguments did not merit attention

because only Army Regulation 623–3 § 3–23(d) applies, and the information in plaintiff’s OER

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was “verified.” 10 Def.’s Cross-Opp. at 3–5. The government points to the sentence in the Board’s

decision on reconsideration that observes: “[t]he senior rater still states that at the time the OER

was written all the data was accurate.” Id.; AR9.

In other words, the defendant is asking the Court to find that the Board applied the

regulation and made a determination that the information was “verified” for purposes of subsection

(d) based simply on the Board’s quotation of the rater’s use of the word “accurate.” See Def.’s

Cross-Opp. at 4 (dismissing plaintiff’s argument that “verified” is different from “accurate” as

“semantics,” and noting that the ABCMR found “that the information in the OER was accurate

and, therefore, ‘verified.’”). But none of this is stated in the Board’s opinion, and the Supreme

Court has been clear that “an agency’s action must be upheld, if at all, on the basis articulated by

the agency itself.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 50, citing Burlington Truck Lines v.

United States, 371 U.S. 156, 168 (1962), SEC v. Chenery, 332 U.S. 194, 196 (1947), and Am.

Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 539 (1981).

Furthermore, the Court cannot simply assume that the Board’s repetition of the word

“accurate” satisfies the regulation. It is not at all clear whether the rating official was saying that

“at the time,” the data was “accurate” because charges were in fact pending at the time or because

the underlying facts had been established to the rater’s satisfaction. And the Board’s reliance on

the rater’s statement without more obscures the question of whether, in the judgment of the Board,

the raters could properly rely on the verifiable fact that the charges had been lodged, or whether

10 The government also argues that subsections (a) and (b) of Army Regulation 623–3 § 3–

23 are “irrelevant” because the OER did not contain a “specific reference to any ongoing

investigation.” Def.’s Mem. at 9–10. But subsection (b) also refers to “comments about the

incident,” and subsection (c) states broadly that the “restriction is intended to prevent unverified

derogatory information” – not simply statements about the existence of an investigation – “from

being included in evaluation reports.” Army Reg. 623–3 § 3–23 (emphasis added).

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the Board concluded that the rating officials’ comments were fairly based upon some independent

confirmation.

Moreover, the two terms are not synonymous. According to the Oxford English

Dictionary, the adjective “accurate” means “exact, precise; conforming exactly with the truth or

with a given standard; free from error.” See Oxford English Dictionary, http://www.oed.com

/view/Entry/1283, definition (3). By contrast, it defines the verb “verify” as “to prove by good

evidence or valid testimony; to testify or affirm formally or under oath.” 11 http://www.oed.com

/view/Entry/222511, definition (1).

The Board’s recitation of the word “accurate,” then, does not suffice as a finding that the

raters relied on proven facts, as opposed to the mere pendency of an allegation, to support the OER

at issue. Indeed, the record is completely silent on how the raters came to learn about the domestic

incident, and what information they relied upon when they drafted their evaluation. Army

Regulations are clear that unverified information must not be included in an evaluation, and they

cite as an example the very situation at issue in this case: “this restriction . . . will . . . prevent

unjustly prejudicial information” – such as information about “charges or incidents of which the

rated individual may later be absolved” – from being permanently included in a soldier’s personnel

file. Army Reg. 623–3 § 3–23(c). The Board’s failure to respond directly to plaintiff’s non-

frivolous argument and its failure to articulate whether or how the regulatory requirements were

satisfied in this case render its decision arbitrary and capricious under the APA. See Frizelle, 111

F.3d at 177.

11 Merriam-Webster Dictionary similarly defines “accurate” as “free from mistakes or

errors.” Merriam-Webster, http://www.merriam-webster.com/dictionary/accurate. It defines the

verb “verify” as “to establish the truth, accuracy, or reality of.” Merriam-Webster,

http://www.merriam-webster.com/dictionary/verified.

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The government argues that even if the Court were to find that the Board failed to consider

plaintiff’s arguments, any error was harmless. Def.’s Cross-Opp. at 6–7, citing Bechtel v. Admin.

Review Bd., 710 F.3d 443, 449 (2d Cir. 2013). Plaintiff contends that harmless error is not the

appropriate standard, but he does not put forth a standard of his own. See Pl.’s Cross-Reply at 7–

8.

In Frizelle, the D.C. Circuit made clear that a remand is required if an unanswered

nontrivial argument “could affect the Board’s ultimate disposition,” Frizelle, 111 F.3d at 177, and

plaintiff has satisfied that standard. The regulations state that unverified information, and in

particular, information about as-yet-unproven criminal allegations, has no place in an official

personnel file. If the Board finds that the raters relied upon unverified information, it would be

required under the regulations to remove the contested OER.

The Board also concluded that the Relief for Cause OER was not issued because of the

domestic violence allegation itself, but rather because in the course of that incident, plaintiff

“exhibited extremely poor judgment.” AR9. The Court accords substantial deference to the

military to determine what sanctions should flow from an exercise of bad judgment by one of its

officers. See Cone, 223 F.3d at 793. But again, it is unclear whether the raters’ conclusions that

the officer exhibited poor judgment or engaged in conduct unbecoming to an officer were

predicated on verified information or merely the pendency of as yet unproven charges.

In sum, on Count I, as to Army Regulation 623–3 § 3–23, the Court finds that the Board

failed to grapple with what appear to be substantial issues. See Mori v. Dep’t of Navy, 917 F. Supp.

2d 60, 64 (D.D.C. 2013). Because the Court cannot discern “a rational connection between the

facts found and the choice made,” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, citing Burlington

Truck Lines, 371 U.S. at 168, the Court cannot sustain the agency’s action, even under the

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“unusually deferential” standard of review. See Kreis, 866 F.2d at 1514. For those reasons, the

Board’s decision will be remanded to the Board for further explanation of the reasons that underlie

its decision. See Frizelle, 111 F.3d at 177. In light of the remand, the Court need not consider

whether the Board’s decision concerning the inclusion of derogatory information was rationally

connected to the facts for purposes of Count II.

II. The Court will grant summary judgment to defendant on Count I and Count II as to

Army Regulation 623–3 § 3–39(b) and 3–40.

In Count I, plaintiff also alleges that the Army failed to respond to his argument that the

Officer Evaluation Report should have been removed from his personnel records under Army

Regulations 623–3 §§ 3–39(c) and 3–40. Compl. ¶¶ 63–64; Pl.’s Cross-Mem. at 8, 19–21;

AR20-21, 26, 27, 28, 32.

Army Regulation 623–3 § 3–40 provides: “[i]f rating officials become aware of

information that would have resulted in a higher evaluation of a rated Soldier, they will take action

to alter or remove the report . . . .” Plaintiff argued that once he was acquitted, his rating officials

should have taken action to remove the report because the report was no longer factual. AR27,

32. He submits that such a change is authorized by section 3–39(b), which prohibits an OER from

being “altered, withdrawn, or replaced with another report,” but includes the following exception:

An exception to paragraph 3–39b is granted for OERs only when –

(1) Information that was unknown or unverified when the report was

prepared is brought to light or verified.

(2) This information is so significant that it would have resulted in

a higher or lower evaluation had it been known or verified when the

report was prepared.

Army Reg. 623–3 § 3–39(c).

In support of this argument, plaintiff provided the Board with letters from his rating

officials, who both stated, in practically identical language, that:

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[The rater] would not have included the negative comments on his OER had

[the rater] known he was going to be acquitted at court-martial of the

underlying misconduct. [The rater] fully support[s] his appeal to have this

OER removed from his OMPF. Had the acquittal come before the rating

period closed, [the rater] would not have referred to the underlying

misconduct.

AR43–44.

But the Board did not overlook or ignore this line of attack. It specifically addressed the

letters and rejected them, noting that notwithstanding the letters, “neither rating official contends

that the applicant would not still have been relieved for cause due to his inability to perform his

duty.” AR10.

Therefore, since the Army did not fail to address this argument, the Court must go on to

consider, applying the appropriate level of deference, whether defendant’s explanations were

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A).

Plaintiff cannot rely on the letters from his rating officials to prove that the Board’s decision

was not supported by substantial evidence, because in this Circuit, after-the-fact letters from rating

officials are not dispositive. See Musengo v. White, 286 F.3d 535, 539 (D.C. Cir. 2002) (explaining

that “raters may attempt to retract otherwise accurate assessments when requested to do so by their

disappointed officers”), citing Cone, 223 F.3d at 794 (similar letters “often reflect retrospective

thinking, or second thoughts, prompted by an appellant’s non-selection or other unfavorable

personnel action claimed to be the sole result of the contested report,” and concluding that such a

letter from an officer should be viewed as expressions of “sympathy for the pleas of his

subordinates, rather than as accurate statements of his original intent.”).

As those cases have concluded, the letters that plaintiff submitted are not probative because

they reflect the rating officials’ “second thoughts” and not their actual conclusions at the time. The

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Army adequately responded to plaintiff’s argument by identifying it and noting that it was not

persuaded by it. Given the high level of deference that the Court accords the decisions of the

military, see Roberts, 741 F.3d at 158, the Court concludes that the Board’s decision, while brief,

“minimally contain[s] ‘a rational connection between the facts found and the choice made’”

because it reflects that the Board considered the letters and explains why it found them to be

unpersuasive. See Dickson, 68 F.3d at 1404, quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43.

And, the Court is not in a position to comment on whether that decision was correct, because, as

the D.C. Circuit has explained, the Court must “limit [its] inquiry to whether the ‘Secretary’s

decision making process was deficient, not whether his decision was correct.” Roberts, 741 F.3d

at 158, quoting Kreis, 866 F.2d at 1511. The Court will therefore grant summary judgment on

Count I and II to defendant insofar as those counts are based on Army Regulation 623–3 §§ 3–39

and 3–40, and the failure to grand reconsideration based upon the rating officials’ letters.

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CONCLUSION

For the foregoing reasons, the Court will grant summary judgment in favor of plaintiff on

that portion of Count I based on Army Regulation 623–3 § 3–23, and grant summary judgment in

favor of defendant on Counts I and II insofar as they are based on Army Regulations 623–3

§ 3–39 and 623–3 § 3–40 and the decision of the ABCMR to disregard the rating officials’ letters.

The Court will remand the matter to the Board to address plaintiff’s argument based on Army

Regulation 623–3 § 3–23 by July 15, 2016. The Court will retain jurisdiction while the remand is

pending.

A separate order will issue.

AMY BERMAN JACKSON

United States District Judge

DATE: January 15, 2016

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