Bailey v. United States

In the United States Court of Federal Claims

No. 18-458C

(Filed: September 1, 2020)

)

THOMAS E. BAILEY, ) Military Pay; Judgment on the

) Administrative Record; AFBCMR;

Plaintiff, ) Burden of Proof; Deference to Medical

) Advisory Opinions; Motion to

v. ) Supplement the Administrative Record;

) Post-Remand

THE UNITED STATES, )

)

Defendant. )

William E. Cassara, Evans, GA, for plaintiff.

Sonia M. Orfield, Civil Division, United States Department of Justice, Washington, DC,

with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr.,

Director, and Deborah A. Bynum, Assistant Director, for defendant. Major Todd Swensen

and Captain Micah S. Pischnotte, Air Force Civil Litigation, Joint Base Andrews, MD, of

counsel.

OPINION

FIRESTONE, Senior Judge.

Pending before the court in this military pay case are the parties’ cross motions for

judgment on the administrative record filed pursuant to Rule 52 of the Rules of the

United States Court of Federal Claims (“RCFC”) and the plaintiff Mr. Thomas E.

Bailey’s motion to supplement the administrative record following a remand to the Air

Force Board of Corrections for Military Records (“AFBCMR” or “Board”). See Bailey v.

United States, 145 Fed. Cl. 453 (2019).

The court had remanded the matter to the Board on October 23, 2019 after finding

that the Board, in deciding not to reverse the Article 15 determination which ended Mr.

Bailey’s Air Force career, had held Mr. Bailey to a higher standard of proof than required

by law and had also failed to adequately address medical evidence that had been

presented. Bailey, 145 Fed. Cl. at 464. Specifically, the court determined that by

requiring Mr. Bailey to “clearly demonstrate” a seizure or medical condition led Mr.

Bailey to assault certain individuals and failing to explain why the Air Force’s medical

advisory opinions were rejected, the Board had required Mr. Bailey to prove the

existence of a material error or injustice in his Article 15 determination by more than a

preponderance of evidence, contrary to law. Id. at 463.

On remand, the Board re-examined the evidence and concluded that Mr. Bailey

had failed to provide sufficient evidence to demonstrate the existence of a material error

or injustice by a preponderance of evidence. In reaching this conclusion, the Board

explained why the medical opinions presented by Air Force doctors did not establish that

a medical condition diagnosed more than a year after the assault at issue was the cause of

Mr. Bailey’s actions. The Board thus concluded that Mr. Bailey had failed to meet the

preponderance of evidence standard for reversing the Article 15 determination.

Mr. Bailey now argues that the Board’s decision following remand is arbitrary,

capricious, unsupported by substantial evidence, and contrary to law for two reasons.

First, Mr. Bailey argues that the Board failed to properly address the court’s remand order

by again rejecting medical opinions and, in doing so, improperly required Mr. Bailey to

show with certainty that there is a material error or injustice in his Article 15

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determination. Second, Mr. Bailey argues that the Board mischaracterized evidence

regarding the role weather played on the day of the incident.

Mr. Bailey has also filed a motion to supplement the administrative record with a

complaint filed by Mr. Bailey with the Air Force Inspector General (“IG”) in 2015.1 This

complaint alleges that the Board, in a 2015 decision, mischaracterized the content of a

doctor’s note to improperly assert that Mr. Bailey was unaware of how much alcohol he

consumed on the day of the incident because it was hot that day. Mr. Bailey argues that

supplementing the record with this complaint is necessary to show a pattern of

mischaracterizing the evidence regarding the outside temperature on the day of the

incident or to show repeated unfairness because a Board member for the 2015 decision

was also on the Board for the decision following remand.

The defendant United States (the “government”) has cross moved for summary

judgment. The government argues that the Board applied the correct evidentiary standard

on remand and properly weighed the medical experts’ opinions. The government further

argues that the remand decision properly considers the potential role of heat on the day of

the incident and is supported by the administrative record. Because there is no

mischaracterization of evidence and Mr. Bailey has not alleged a violation of law

1

Neither the Administrative Record nor Mr. Bailey’s motion to supplement the administrative

record indicate the result of Mr. Bailey’s IG complaint. However, as discussed in its prior

opinion, the Executive Director of the AFBCMR permitted Mr. Bailey to reapply for new

consideration following the 2015 decision due to the various administrative errors. See Bailey,

145 Fed. Cl. at 457. The medical advisory opinions at issue here were submitted following Mr.

Bailey’s reapplication. Id. at 457-58.

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regarding the composition of the Board following remand, the government opposes Mr.

Bailey’s motion to supplement the record with his IG complaint.

For the reasons that follow, the court GRANTS the government’s cross motion for

judgment on the administrative record (ECF No. 40) and DENIES Mr. Bailey’s

combined motion for judgment on the administrative record and his motion to

supplement the administrative record (ECF No. 39).

I. FACTUAL AND PROCEDURAL BACKGROUND

The AFBCMR has now issued five opinions in connection with Mr. Bailey’s

requests for relief. The court’s prior opinion sets forth in detail the factual background of

Mr. Bailey’s complaint and the prior four AFBCMR decisions. See Bailey, 145 Fed. Cl.

at 454-60. For the purposes of ruling on the pending motions, the following facts are

relevant.

On September 10, 2011, Mr. Bailey attended an outdoor festival in Belgium while

he was a Strategic Communications Planner for Supreme Headquarters Allied Powers in

Europe. Administrative Record (“A.R.”) 321. Mr. Bailey admits that at that time, he was

taking two prescription-level antihistamines daily. A.R. 323-24. Mr. Bailey further

admits to having consumed five alcoholic beverages over a six-hour period at the event.

A.R. 321. Mr. Bailey indicated that after consuming the fifth beverage, he felt disoriented

and “very hot.” A.R. 323-24. Thereafter, the record indicates that Mr. Bailey attacked a

technical sergeant, threatened a staff sergeant security forces member, and resisted

apprehension. A.R. 243-47.

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Mr. Bailey’s conduct on September 10, 2011 was addressed through an Article 15

proceeding pursuant to 10 U.S.C. § 815. A.R. 243. Brig Gen Charles K. Hyde decided in

the Article 15 proceeding to reprimand Mr. Bailey because his “irresponsible use of

alcohol ultimately resulted in [Mr. Bailey’s] assaulting of several individuals and most

certainly caused offense to many others.” A.R. 247.

As detailed in the court’s prior opinion, Mr. Bailey challenged the Article 15

determination before the AFBCMR. See Bailey, 145 Fed. Cl. at 456-60. In its first

decision, the Board denied Mr. Bailey’s request to reverse the Article 15 determination.

Id. at 456. However, the Board failed to provide Mr. Bailey a copy of the initial advisory

opinions and reconsidered Mr. Bailey’s request. Id. In its second decision, the Board

provided Mr. Bailey a copy of these advisory opinions and again denied Mr. Bailey’s

request. Id. at 456-57. In its second decision, the Board failed to consider Mr. Bailey’s

responses to the advisory opinions. Id. at 457.

Due to the numerous administrative errors, the Executive Director of the Board

permitted Mr. Bailey to reapply to the Board for relief for consideration by a new panel.

Id. After Mr. Bailey challenged the Article 15 determination again, the Board sought

input from the Air Force Legal Operations Agency, Military Justice Division, various

sections of the Air Force Personnel Command, a medical opinion from Dr. Horace

Carson, and a psychiatric opinion from Dr. Natalya Chernyak. A.R. 81, 336-67.

Dr. Carson recommended that the Board consider granting Mr. Bailey’s requested

relief. A.R. 353-58. Dr. Carson noted that there were competing possible causes of Mr.

Bailey’s behavior – solely alcohol related without a seizure disorder versus an

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undiagnosed seizure disorder that was possibly precipitated by alcohol consumption.

A.R. 357-58. Dr. Carson also acknowledged it was not possible to eliminate

overindulgence in alcohol as a cause of his behavior in 2011 because no appropriate test

was taken at the time. A.R. 357.

Dr. Chernyak opined that the facts allowed for “the possibility that an unknown

medical condition could explain” Mr. Bailey’s behavior on September 10, 2011. A.R.

367. However, Dr. Chernyak acknowledged that because “the case file lacks any

objective clinical evidence, [Mr. Bailey’s] arguments are at large just hypothetical

scenarios. A.R. 366. Dr. Chernyak had recognized that Mr. Bailey did not undergo a

medical evaluation immediately after his aggressive behavior. Id. Dr. Chernyak also

recognized that Mr. Bailey’s “deviant behavior displayed by the applicant [in September

2011] was most likely multifactorial in nature,” with multiple factors contributing to his

conduct. Id. In 2015, following receipt of these advisory opinions, the Board issued its

third decision denying Mr. Bailey’s request. A.R. 79-80.

The Board then discovered that it failed to consider Mr. Bailey’s rebuttal response

to various advisory opinions. Bailey, 145 Fed. Cl. at 459. Thus, the Board sua sponte

elected to reconsider its third decision with Mr. Bailey’s rebuttal response. Id. The Board

issued its fourth decision denying Mr. Bailey’s request. Id. In this fourth decision, the

Board found Mr. Bailey’s reliance on the opinions of Dr. Carson and Dr. Chernyak

unpersuasive. See Bailey, 145 Fed. Cl. at 459 (citing A.R. 10).

On March 28, 2018, Mr. Bailey filed a complaint in this court challenging the

Board’s fourth decision and amended his complaint on April 10, 2018. The court issued

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its decision on the parties’ motions for judgment on the administrative record on October

23, 2019 and remanded the claim to the Board. Now pending before the court is the

Board’s fifth decision, issued on February 12, 2020, following remand. Remand Decision

(“Remand Dec.”) at 1 (ECF No. 32 at 2).

The Board determined after another review of the evidence that it remains

“unconvinced [that] the evidence presented demonstrates an error or injustice.” Id. at 5.

The Board stated that although medical advisory opinions “are given considerable

weight, credibility and deference,” the Board expects that the advisory opinions “include

relevant evidence based on the specifics of the case and that recommendations are

supported by evidence.” Id. Relevant here, the Board explained that the medical and

psychiatric advisories that recommended granting relief to Mr. Bailey were not

convincing. Indeed, the Board found them “unconvincing, uncertain and half-hearted.”

Id. The Board found that the two advisory opinions “lacked any objective clinical

evidence.” In addition, the Board emphasized that “the repeated uses of words such as

‘possible,’ ‘may have been’ or ‘could have’” to explain how Mr. Bailey’s later diagnosed

seizure disorder could have been the cause of his behavior was not based on facts but was

a “hypothetical scenario.” Id. In this connection, while the Board acknowledged that Mr.

Bailey has “since been diagnosed with a seizure disorder by the [Department of Veterans

Affairs],” the Board explained it was “not persuaded a post-service diagnosis 18 months

after the incident for which he received the Article 15 . . . is sufficient to conclude his

misconduct was due to a medical condition or seizure disorder.” Id. The Board found “the

applicant’s consumption of alcohol while taking prescribed medications, along with the

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heat of the day” better explained Mr. Bailey’s actions on the day in question. Id. The

Board stated “it was [Mr. Bailey’s] own poor decision to consume alcohol while taking

medication” and “[b]y doing so, he exhibited poor judgment and the negative

consequences of that unfortunate day were due to his own misconduct.” Id.

Briefing on the cross motions for judgment on the administrative record in

connection with the remand decision and Mr. Bailey’s motion to supplement was

completed on July 1, 2020. No party requested oral argument and the court has

determined that oral argument is not necessary in this case.

II. LEGAL STANDARDS

A. Motion to Supplement the Administrative Record

“[L]imiting judicial review to the record actually before the agency [guards]

against courts using new evidence to ‘convert the arbitrary and capricious standard into

effectively de novo review.’” AugustaWestland N. Am., Inc. v. United States, 880 F.3d

1326, 1331 (Fed. Cir. 2018) (quoting Axiom Res. Mgmt., Inc. v. United States, 564 F.3d

1374, 1381 (Fed. Cir. 2009)). “Supplementation of the record should be limited to cases

in which the omission of extra-record evidence precludes effective judicial review,” i.e.,

precludes review “consistent with the [Administrative Procedure Act (‘APA’)],” which

may occur “if the existing record is insufficient to permit meaningful review.” Id.

(quoting Axiom, 564 F.3d at 1380). When granting a motion to supplement the record, the

court is “required to explain why the evidence omitted from the record frustrated judicial

review as to the ultimate question of whether” the agency action was arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law. Id. at 1332.

8

B. Motion for Judgment on the Administrative Record

It is “well established that judicial review of decisions of military corrections

Boards is conducted under the APA.” Walls v. United States, 582 F.3d 1358, 1367 (Fed.

Cir. 2009). Accordingly, the court “will not disturb the decision of the Board unless it is

arbitrary, capricious, contrary to law, or unsupported by substantial evidence.”

Prestonback v. United States, 965 F.3d 1363, 1368 (Fed. Cir. 2020).

Under this standard the “scope of review is ‘narrow’: we only determine whether

[the agency] examined ‘the relevant data’ and articulated ‘a satisfactory explanation’ for

[its] decision.” Sharpe v. United States, 935 F.3d 1352, 1358 (Fed. Cir. 2019) (alterations

in original) (quoting Dep’t of Comm. v. New York, 139 S. Ct. 2551, 2569 (2019)). The

court “may not substitute [its] judgment for that of [the agency], but instead must confine

[itself] to ensuring that [the agency] remained ‘within the bounds of reasoned

decisionmaking.’” Id. (second alteration in original) (quoting Dep’t of Comm., 139 S. Ct.

at 2569).

III. DISCUSSION

A. Motion to Supplement the Administrative Record

Before turning to the merits, the court begins with Mr. Bailey’s request to

supplement the administrative record with a complaint he filed with the IG against the

members of the Board following the Board’s second decision, issued in 2015, denying

Mr. Bailey’s request for relief. Pl.’s Mot. for J. on the Admin. R. and Mot. to Supp. the

Admin. R. (“Pl.’s Mot.”) at 10-11 (ECF No. 39). The IG complaint alleges that the Board

mischaracterized a note written by a doctor that spoke with Mr. Bailey soon after the

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incident. See Pl.’s Mot. Att. 1. According to Mr. Bailey, the doctor’s note includes a list

of thoughts written “like a long run-on sentence, with different thoughts separated by a

comma,” and that the note states, in part: “unsure of how much alcohol after, was hot

that day.” Pl.’s Mot. at 10. Mr. Bailey’s complaint to the IG alleges that the Board

misquoted the note as instead stating that Mr. Bailey was “unsure how much alcohol as

it was hot that day.” Pl.’s Mot. Att. 1 at 2 (emphasis added). Mr. Bailey does not indicate

whether this challenge was upheld in any proceedings before the IG.

Mr. Bailey argues that supplementing the record with his IG complaint “is

necessary to complete meaningful judicial review” because the IG complaint shows that

the Board has repeatedly mischaracterized the evidence regarding the “heat of the day”

during the incident, both in 2015 and now in the challenged remand decision. Pl.’s Mot.

at 10-11. Mr. Bailey further argues that supplementation is necessary to show a lack of

fairness or bias because one of the members of the Board in 2015 was on the Board for

the decision on remand. Id.

The government opposes Mr. Bailey’s motion to supplement the administrative

record. To the extent that Mr. Bailey alleges that it is necessary to supplement the record

to show a pattern of mischaracterizing the evidence regarding the temperature, the

government responds that the decision on remand is supported by substantial evidence in

the record regarding the potential role that heat played in causing Mr. Bailey’s conduct.

See Def.’s Mot. for J. on the Admin. R. (“Def.’s Mot.”) at 10-11 (ECF No. 40). The

government also argues that the misquote at issue in the IG complaint is not present in the

decision following remand. Def.’s Reply at 7-8 (ECF No. 42). The government further

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responds that although the panel chair on remand was also on the panel in 2015, Mr.

Bailey has not identified a violation of any Air Force regulations and Mr. Bailey has not

shown that any member of the panel acted in bad faith. Id. at 8-9.

The Federal Circuit has held that this court may consider “extra-record” evidence

in limited circumstances. Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006). It is

well settled that the court may only supplement the record where supplementation is

needed for effective judicial review. Axiom Res. Mgmt., 564 F.3d at 1380. “Judicial

review is ‘effective’ if it is consistent with the APA.” See AugustaWestland, 880 F.3d at

1331. Thus, the court considers whether Mr. Bailey’s complaint to the IG against the

Board members following the 2015 decision is needed for effective judicial review of the

parties’ motions for judgment on the administrative record.

Applying these standards, the court must deny Mr. Bailey’s motion to supplement.

Mr. Bailey’s 2015 IG complaint is a separate matter from the merits of the parties’

motions for judgment on the administrative record regarding the Board’s decision on

remand. The court remanded Mr. Bailey’s case for the Board to apply the appropriate

“more likely than not” standard when determining if Mr. Bailey’s conduct was “beyond

his control due to a then undiagnosed medical condition.” Bailey, 145 Fed. Cl. at 464.

The court further required the Board to determine how much weight to give the medical

advisory opinions. Id. Mr. Bailey’s complaint to the IG concerning the characterization of

a particular doctor’s note is outside the scope of the court’s remand order. In addition, for

the reasons discussed below, the Board did not mischaracterize the evidence regarding

the weather in its remand decision. Therefore, the court has no occasion to consider a

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pattern of mischaracterizing the evidence and supplementation of the record with a prior

complaint is not necessary for effective judicial review.

To the extent that Mr. Bailey seeks to show repeated unfairness or bias, the court

agrees with the government that the IG complaint is not needed for effective judicial

review. Mr. Bailey has not alleged that the panel’s composition following remand of this

case violated a military regulation. Indeed, the court previously explained that there is

nothing in the Air Force regulations that requires assignment of a request to reconsider a

Board decision to an entirely new panel. See Bailey, 145 Fed. Cl. at 462. Regarding bias,

it is well settled that members of the panel, as public officials, are presumed to discharge

their duties correctly, lawfully, and in good faith. Myers v. United States, 50 Fed. Cl. 674,

689 (2001).

In addition, besides his own allegations regarding the mischaracterization of the

doctor’s note, Mr. Bailey has shown no other evidence of bias, has shown no violation of

Air Force regulation, and, as discussed below, has not identified any mischaracterizations

of evidence in the remand decision. Moreover, Mr. Bailey’s IG complaint contains only

his own allegations of error. He does not provide an IG Report addressing those

allegations or any supplemental supporting evidence of bias. Mr. Bailey’s IG complaint

does not in and of itself demonstrate bad faith. In sum, Mr. Bailey’s proposed supplement

would not enhance the court’s ability to evaluate the Board’s rationale on remand and

decide whether the remand decision is supported by substantial evidence. As such, Mr.

Bailey’s motion to supplement the administrative record with his 2015 IG complaint is

denied.

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B. The Board Properly Evaluated The Medical Evidence

Having concluded not to supplement the administrative record, the court turns to

Mr. Bailey’s arguments on the merits of the Board’s decision following remand. Mr.

Bailey first argues that the Board’s treatment of the medical opinions shows that the

Board “continues to demand certainty” in evidence and to hold Mr. Bailey to an

increased evidentiary standard. Pl.’s Mot. at 8. Although Mr. Bailey concedes that the

medical opinions use words like “possible,” “may have been” or “could have” to describe

the role of Mr. Bailey’s then-undiagnosed medical condition, he contends that this

language was used because of an absence of evidence at the time of the incident, rather

than contradicting evidence. Id. Mr. Bailey asserts that the medical experts’ conclusions

recommending relief reflect the “available evidence at hand at the time of the incident,

the medical information now known about [Mr. Bailey]” and indicate that Mr. Bailey’s

“behavior was, more likely than not, caused by the undiagnosed medical condition.” Id.

at 8-9. Mr. Bailey also argues that the Board’s decision following remand is arbitrary and

capricious because the Board mischaracterized evidence when considering the role that

the “heat of the day” played in Mr. Bailey’s behavior. In this connection, Mr. Bailey

adds, without record or other support, that the “[w]eather for the day in questions shows a

high of 81 and a temp of 73 when the incident took place.” Id. at 9.

The government argues that the Board applied the appropriate standard and

properly considered the medical experts’ opinions. Def.’s Mot. at 6-7. According to the

government, the “Board’s language [on remand]––‘unfounded,’ ‘conjecture’, and ‘did not

provide substantial evidence to sustain his burden’––is markedly different than the

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language identified in the Court’s decision as reflecting the application of a heighted

burden of proof.” Id. at 6 (quoting Remand Dec. at 5). The government further argues

that the Board reasonably concluded that the medical experts’ opinions did not indicate

that “it was more likely than not that a seizure caused Mr. Bailey’s conduct.” Id. at 9. The

government explains that neither medical expert was applying a preponderance of

evidence standard when evaluating the medical evidence or recommending relief and the

Board reasonably rejected the recommendations because the underlying evidence was too

speculative. See Def.’s Reply at 4-5. The government further responds that the Board’s

decision on remand is supported by substantial evidence and did not mischaracterize the

evidence regarding the weather on the day of the incident.

The court now reviews the Board’s remand decision to determine if it applied the

appropriate standard, if its review of the medical experts’ opinions was rational, and if its

conclusions were supported by substantial evidence. As discussed in its prior opinion,

“Mr. Bailey was required to prove by a preponderance of the evidence that there was a

material error or injustice in his Article 15 determination.” Bailey, 145 Fed. Cl. at 463;

see 32 C.F.R. § 865.4(a). The court previously found that the Board “failed to apply this

standard” because it required Mr. Bailey to provide evidence which “clearly

demonstrate[s] it was a seizure or medical condition” that caused his behavior and

because the Board rejected the medical experts’ opinions because the opinions did “not

conclusively state it was a seizure which caused his misconduct.” Id. at 458-59. For this

reason, the court remanded the case to the Board to apply the preponderance of evidence

14

standard and determine the weight to give the medical experts’ conclusions under that

standard. Id. at 464.

As discussed above, the court’s review of the Board’s decision is highly

deferential. The court must affirm the Board’s decision unless “it is arbitrary, capricious,

contrary to law or unsupported by substantial evidence.” Barnes v. United States, 473

F.3d 1356, 1361 (Fed. Cir. 2007). Thus, even if the court were inclined to find different

facts in the first instance, the court cannot reweigh the evidence. See Heisig v. United

States, 719 F.2d 1153, 1157 (Fed. Cir. 1983). The court must accept the Board’s view as

long as the Board’s conclusion contain “‘such relevant evidence as a reasonable mind

might accept as adequate to support” the decision.’” Strand v. United States, 951 F.3d

1347, 1351 (Fed. Cir. 2020) (quoting Consol. Edison Co. of N.Y v. NLRB, 305 U.S. 197,

229 (1938)).2

On remand, the Board explicitly considered whether Mr. Bailey was held to a

higher standard than the preponderance of evidence and considered the weight of the

medical experts’ conclusions. Remand Dec. at 6. The Board concluded that Mr. Bailey

did not provide “substantial evidence” to sustain his burden of proof, and the Board

stated “[w]hile [Mr. Bailey] provided an abundance of information,” the Board found his

2

The Air Force Instructions do not indicate that any deference is due to advisory opinions like

the ones obtained in this case. Air Force Instruction (“AFI”), Air Force Board of Corrections of

Military Records (AFBCMR), 36-2603. The Instructions only indicate that advisory opinions are

one of a few enumerated items that the AFBCMR is permitted to obtain from any

organization/official within the Air Force or Department of Defense. AFI 36-2603, Paragraph 4.

They explain the timing for submission of the opinions, AFI 36-2603, Paragraph 4.2.2, and the

contents of the opinions, AFI 36-2603, Paragraph 4.2.2.2, 4.2.2.3, and 4.2.2.5. They require that

applicant be given an opportunity to review and respond to advisory opinions, AFI 36-2603,

Paragraph 4.3, and establish timing for the review, AFI 36-2603, Paragraph 4.3.1 and 4.3.2.

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arguments “suppositional, unfounded, and conjectural in nature.” Id. The Board further

found Mr. Bailey’s diagnosis with a seizure disorder “18 months after the incident”

insufficient “to conclude his misconduct was due to a medical condition or seizure

disorder.” Id. It was “[i]n view of the totality of the evidence” that the Board concluded

that “it was [Mr. Bailey’s] consumption of alcohol while taking prescribed medications,

along with the heat of the day that caused him to respond aggressively and commit

assault rather than an undiagnosed medical condition or seizure disorder.” Id.

The court finds that the Board applied the appropriate burden of proof on remand.

The Board’s language on remand contains no indication that the Board has applied a

heightened burden of proof. The Board’s prior analysis which concluded that Mr. Bailey

failed to “clearly demonstrate” or “prove to a medical certainty” is different from the

Board’s conclusion on remand that Mr. Bailey failed to provide “substantial evidence to

sustain his burden of proof.” Compare Remand Dec. at 5 with Bailey, 145 Fed. Cl. at 463.

Whereas the requirement to clearly demonstrate or provide medical certainty is indicative

of requiring Mr. Bailey to show more than a preponderance of the evidence, the failure to

provide “substantial evidence to sustain his burden of proof” reflects the appropriate

standard. There is no evidence that the Board on remand required Mr. Bailey to do more

than provide evidence sufficient to show that it was more likely than not that a seizure

disorder caused his behavior. Rather, the Board found the evidence regarding the later

diagnosed seizure disorder as the cause of Mr. Bailey’s behavior on the day in question

speculative, and, conversely, the evidence regarding Mr. Bailey’s consumption of alcohol

while taking prescribed medications as the cause of his behavior substantiated.

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The court further agrees with the government that the Board’s consideration of the

medical experts’ opinions was reasonable and supported. The Board found these

“medical and psychiatric advisories relevant” but concluded that the “recommendations

for granting relief were unconvincing, uncertain and half-hearted.” Remand Dec. at 5.

The Board noted that the opinions “concede that since the case lacked any objective

clinical evidence, [Mr. Bailey’s] arguments were at large just hypothetical scenarios.” Id.

Further, although the “Psychiatric Consultant states that [Mr. Bailey’s] behavior was

inconsistent with someone who had five drinks over the course of a day” the Board stated

that “there is no documentation to show how much and over what course of time [Mr.

Bailey] consumed alcohol” while at the event. Id. Because medical experts repeatedly

used “words such as ‘possible,’ ‘may have been’ or ‘could have’” the Board “did not find

the recommendations overly persuasive” and that the opinions “did not substantiate [Mr.

Bailey’s] contentions and were insufficient to grant relief.” Id.

The Board’s characterization of these medical experts’ recommendations is

supported by substantial record evidence. Dr. Carson only recommended “consideration

of granting the applicant relief.” A.R. 358. This recommendation was based on the

existence of “competing possible causes of the applicant’s aberrant behavior.” A.R. 358.

Indeed, Dr. Carson acknowledged that eliminating overindulgence in alcohol as a cause

of Mr. Bailey’s behavior was impossible because there was no “objective clinical

assessment of [Mr. Bailey] at the time.” A.R. 357. Similarly, although Dr. Chernyak

found “sufficient evidence” to recommend relief, A.R. 367, Dr. Chernyak stated the

behavior was “most likely . . . multifactorial in nature with multiple factors,” A.R. 366

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(emphasis added). Dr. Chernyak acknowledged that it would be “very challenging to

prove or disprove” Mr. Bailey’s contention given that “the case file lacks any objective

clinical evidence.” A.R. 366. Dr. Chernyak further stated that Mr. Bailey’s “arguments

are at large just hypothetical scenarios.” A.R. 366. Nor do these opinions recommending

relief purport to consider the preponderance of the evidence standard as applied to Mr.

Bailey’s claims. As such, it was not irrational for the Board to give less weight to the

medical experts’ recommendation for relief where it disagreed with the significance of

the underling evidence.

Under the proper standard of review, this court is precluded from reweighing the

evidence. Myers, 50 Fed. at 689 (2001) (“This Court, under the applicable standard of

review, is not allowed to reweigh the evidence that the [Board] considered in reaching its

decision.”). If Dr. Chernyak’s opinion were the only evidence before the Board, Mr.

Bailey might have a strong argument. However, that was not the case. The Board knew

that Mr. Bailey was taking prescription medication and made a conscious decision to

consume alcohol. Even the medical experts’ opinions acknowledged that alcohol could

not be excluded as a contributing factor of Mr. Bailey’s behavior. A.R. 78-79.

Ultimately, the burden of proof was on Mr. Bailey to establish by a preponderance

of the evidence that his conduct was the result of a medical condition and not his

voluntary decision to drink alcohol after taking antihistamines. It is undisputed that Mr.

Bailey voluntarily consumed alcohol on the day of the incident and the medical experts

could not exclude the possibility that alcohol was a factor in Mr. Bailey’s behavior. It

was primarily for this reason that the Board determined that Mr. Bailey had failed to

18

establish an alternative cause for his behavior by a preponderance of the evidence. The

court finds that the Board’s conclusion is supported by substantial evidence.

Finally, the court turns to Mr. Bailey’s claim that the Board mischaracterized the

evidence in its decision on remand. The court may set aside the Board’s remand decision

if the Board “offered an explanation for its decision that runs counter to the evidence

before the agency.” See Ala. Aircraft Indus., Inc. v. United States, 586 F.3d 1372, 1375

(Fed. Cir. 2009) (internal quotation omitted). However, the court must accept the Board’s

view as long as the Board’s conclusion contain “such relevant evidence as a reasonable

mind might accept as adequate to support” the decision. See Strand, 951 F.3d at 135

(internal quotation omitted).

The court finds that the Board’s statement that “consumption of alcohol, while

taking prescribed medications, along with the heat of the day” likely caused Mr. Bailey’s

behavior is supported by the record. See Remand Dec. at 6 (emphasis added). It is

undisputed that Mr. Bailey consumed alcohol and had taken prescribed medication on the

day of the incident. Regarding the role that weather may have played, the record includes

Mr. Bailey’s own references to the impact of heat on his behavior. See A.R. 324 (Mr.

Bailey stating that the day of the incident “had been an unusually hot day,” he “had been

in the sun for many hours,” and recalled “feeling very hot as one of [his] last memories”);

id. (Mr. Bailey indicating that taking “two prescription-level antihistamines daily . . .

makes heat stress an even bigger threat”); A.R. 323-24 (Mr. Bailey saying he felt

“suddenly disoriented and very hot”). The record further references other individuals

discussing how heat contributed to Mr. Bailey’s conduct. See A.R. 723-24 (Mr. Bailey’s

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physician stating that a possible heat-related injury could have been a contributing cause);

A.R. 323 (Mr. Bailey stating that a Belgian police detective believed Mr. Bailey was

“suffering from heat stress or a minor heat stroke”).

That Mr. Bailey has now identified the temperature the day of the incident does

not mean that the Board mischaracterized the evidence by relying on the record’s

repeated references to the potential impact of the heat on Mr. Bailey’s behavior. The

Board did not provide an inaccurate nor misleading characterization of evidence in the

record. To the contrary, a review of the administrative record plainly supports the

conclusions reached following remand. At bottom, Mr. Bailey’s alleged

mischaracterization amounts to a request to reweigh the evidence regarding whether heat

played a role on the day of the incident. This is beyond the court’s review. See Heisig,

719 F.2d at 1157.

CONCLUSION

For the reasons stated above, Mr. Bailey’s combined motion for judgment on the

administrative record and motion to supplement the administrative record (ECF No. 39)

is DENIED. The government’s cross-motion for judgment on the administrative record

(ECF No. 40) is GRANTED. Each party shall bear its own costs. The Clerk is directed to

enter judgment accordingly.

IT IS SO ORDERED.

s/Nancy B. Firestone

NANCY B. FIRESTONE

Senior Judge

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