Truitt v. Barrett

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WILLIAM G. TRUITT, JR.,

Plaintiff,

‘. Case No. 20-cv-963 (RCL)

FRANK KENDALL, Secretary

of the Air Force,

Defendant.

MEMORANDUM OPINION

Plaintiff William G. Truitt, Jr. brings this suit to challenge the Air Force Board for

Correction of Military Records’ denial of Truitt’s application for a correction of his records. ECF

No. 1 (“‘Compl.”). Specifically, Truitt alleges that the Board’s denial of his request should be set

aside as arbitrary and capricious under the Administrative Procedure Act (“APA”). Jd. at J 3; see

5 U.S.C. § 706(2)(A). Presently before the Court are the parties’ cross-motions for summary

judgment.

Upon consideration of the parties’ filings (ECF Nos. 18, 26, 30 & 33), the administrative

record (ECF No. 36-1), and the applicable legal standards, the Court will GRANT the Air Force’s

cross-motion for summary judgment, ECF No. 18, and will DENY Truitt’s cross-motion for

summary judgment, ECF No. 26. As the Air Force correctly argues, Truitt’s commander had the

authority to order Truitt not to participate in drill with his unit after his arrest for felony possession

of heroin and guilty plea to that offense. Accordingly, the Board’s refusal to credit Truitt with

' Pursuant to Federal Rule of Civil Procedure 25(d), Frank Kendall was “automatically substituted as a

party” when he was sworn in as Secretary of the Air Force on July 28, 2021. See Fed. R. Civ. P. 25(d).

participating in unit drill during the time he was prohibited from doing so was neither arbitrary nor

capricious.

I. BACKGROUND

A. Truitt’s Arrest & the Virginia Air National Guard’s Response

Truitt enlisted in the Virginia Air National Guard in the fall of 1988 and served until the

summer of 1994. ECF No. 18-1 at 8. Truitt then reenlisted in the spring of 1998 and served

continuously until the incident that gave rise to this lawsuit. Id.

In May 2009, Truitt was arrested by Virginia police officers and charged with felony

possession of heroin. ECF No. 36-1 (“Administrative Record” or “AR’”) at 15. Shortly after his

arrest, Truitt’s commander (Lieutenant Colonel Kjelvik) told Truitt’s supervisor (Master Sergeant

Pittman) to order Truitt not to participate in drill with his unit until Truitt’s criminal charge was

resolved. Jd. at 15, 25, 28-29. Participation in the Virginia Air National Guard involves two types

of unit drill: “Annual Tours,” which typically last two weeks, and “Unit Training Assemblies,”

which are shorter in duration and typically occur once per month. See id. at 68; ECF No. 18-1 at

9. Truitt’s supervisor prohibited him from participating in either. AR at 77.

In November 2009, Truitt pleaded guilty to felony possession of heroin in a Virginia state

court. AR at 25, 77. The presiding judge withheld entering judgment for one year to allow Truitt

to participate in a rehabilitation program. Jd. Two months later, in January 2010, Truitt received a

letter from the Air Force notifying him that his commander would be seeking Truitt’s

administrative discharge from the Virginia Air National Guard. Jd.

In November 2010, approximately one year after Truitt pleaded guilty, the Virginia judge

dismissed the felony drug charge due to Truitt’s successful participation in a rehabilitation

program. AR at 77. The next day, an Air Force Board of Inquiry recommended that Truitt be

discharged from the Virginia Air National Guard with an “other than honorable conditions service

characterization.” Jd. at 15, 77. The Board of Inquiry’s recommendation was then submitted to the

Secretary of the Air Force Personnel Council for consideration. /d. at 77. The Secretary approved

the discharge but ordered it to be under honorable conditions. /d. Truitt’s administrative discharge

became effective in approximately March 2012. Id. at 26, 77.7

From the time of his arrest in May 2009, until his administrative discharge became effective

in March 2012, Truitt was continuously prohibited from attending drill. AR at 25. He “tried to

make up the drills he had missed” but his commander would not let him. /d. On the date that

Truitt’s discharge became effective, Truitt had served in the Virginia Air National Guard for a total

of eighteen years, nine months, and twelve days. /d. at 77. Had Truitt been allowed to participate

in drill from the time he was arrested until the time his discharge became effective, however, Truitt

would have reached the twenty-year requirement for retirement eligibility. Jd. Doing so would

make him eligible to receive a pension and other benefits. Compl. at § 29.

B. Truitt’s First Application to the Board for the Correction of His Military Records

In April 2013, Truitt submitted an application to the Air Force Board for Correction of

Military Records (“the Board”). See AR at 20-33. His application asked the Board to retroactively

credit him with attendance at all scheduled Unit Training Assemblies and Annual Tours from May

2009 until March 2012. Jd. at 27. He also asked that “he be credited with the appropriate number

of retirement points” and “transferred to the Retired Reserve.” Jd.

* Some documents in the administrative record indicate that Truitt’s discharge became effective in March

2012 and others reflect that his discharge became effective in April 2012. Compare AR at 26, and AR at 77,

with AR at 5, and AR at 15. This discrepancy has no effect on the Court’s analysis. For the sake of

simplicity, the Court will use the March 2012 date because this is the date Truitt provided to the Board. See

AR at 26.

Truitt argued that the Board should give him credit for the time he was prohibited from

attending unit drill because his commander’s orders directing him not to attend drill were illegal.

AR at 27. The orders were illegal, he claimed, because the Virginia Air National Guard “had no

regulatory or statutory authority” to prohibit him from attending unit drill. Jd. And, he argued, “had

he not been illegally prohibited from attending [drill]” from May 2009 until March 2012, “he

would have accumulated a sufficient number of retirement points and 20 qualifying years of

service for retirement from the Virginia Air National Guard.” Jd.

Before the Board ruled on Truitt’s application for the correction of his military records, the

National Guard Bureau (“NGB/A1PP”) and the Secretary of the Air Force Personnel Council

(“SAF/MRBR?”) prepared non-binding recommendations to the Board on Truitt’s application. AR

at 68-70.° Both recommended that the Board deny Truitt’s request. Jd. at 15-16.

1. The National Guard Bureau’s Recommendation

The National Guard Bureau opined that Truitt should not be credited with attendance at

Unit Training Assemblies and Annual Tours during the period between May 2009 and March

2012. AR at 68. It explained that Truitt’s “commander legally ordered him not to attend drill

pending an administrative discharge” and that Truitt is not “entitled to be credited for [the drills]

that he missed while being discharged for his conduct which resulted in his arrest in May 2009.”

Id. The Bureau further opined that “‘Truitt’s arrest involved a controlled substance which is conduct

unbecoming of a non-commissioned officer.” Jd.

3 In the administrative record, the National Guard Bureau is referred to as “NGB/A1PP” and the Secretary

of the Air Force Personnel Council is referred to as “SAF/MRBR.” See AR at 16-17. For the sake of clarity,

the Court will use the full names.

2. The Air Force Personnel Council’s Recommendation

The Air Force Personnel Council also recommended that the Board deny Truitt’s

application. See AR at 16-17. Like the National Guard Bureau, the Personnel Council opined that

Truitt’s commander had the authority to prohibit him from attending unit drill after his arrest and

during the pendency of his administrative discharge proceedings. The memorandum explained:

By the nature of the position and the military structure, [Air National

Guard] and [U.S. Air Force] commanders have the authority to

govern the members under their command, limited only by

applicable federal (to also include AFIs [Air Force Instructions] or

ANGIls [Air National Guard Instructions]) or state law. Part and

parcel of that authority is the power to issue orders. An order is

lawful if it is reasonably necessary to safeguard and protect the

morale, discipline[,] and usefulness of the members of a command

and it is directly connected with the maintenance of good order in

the service. A commander’s authority to exclude a member from

duty is explicitly included in several AFIs. Duty is an obligation—

not a right—and it is within a commander’s purview to excuse or

exclude members of his or her command, even when doing so results

in loss of pay, allowances, and/or points. In this case, the fact known

to the commander when he denied drill participation was [that

Truitt] had pled guilty to felony possession of heroin. The order to

deny participation could be construed as a reasonable response to

protect people and assets from the risks posed by a known drug

offender.

Id. at 16.

Truitt was given the opportunity to respond to both recommendations, which he did. See

id. at 71-72.

3. The Board’s Denial

The Board denied Truitt’s application. AR at 13. It sent Truitt a letter notifying him of the

denial, which was accompanied by a written “record of proceedings.” AR at 14. The record of

proceedings contained: (1) a summary of Truitt’s application to the Board, (2) a statement of

pertinent facts, (3) a summary of the National Guard Bureau’s recommendation, (4) Truitt’s

response to the National Guard Bureau’s recommendation, (5) a summary of the Air Force

Personnel Council’s recommendation, (6) Truitt’s response to the Personnel Council’s

recommendation, and (7) the Board’s findings and an explanation for its findings. /d. at 14-19.

The Board explained that it “took notice of [Truitt’s] complete submission,” but that it

agreed with the opinion and recommendation of the Personnel Council and adopted its rationale

for the basis of its conclusion that Truitt “has not been the victim of an error of injustice.” Jd. at

17. The Board went on to agree that Truitt’s commander “had ample legal basis upon which to

act” to prohibit Truitt from participating in drill and found that “the lack of written guidance alone

does not render such an order illegal.” Jd. at 17-18. Alternatively, the Board explained that

‘“Tm]Jembers who are administratively [dis]charged for cause are generally not eligible to transfer

to the retired reserve without Secretary of the Air Force approval.” Jd. at 18. And here, the Board

explained, it was highly unlikely that the Air Force would have authorized Truitt’s retirement even

if he had reached the twenty-year service requirement. /d. It concluded that “[o]ther than argument

and conjecture, [Truitt] has provided no evidence whatsoever that would convince us the basis of

his discharge was somehow insufficient, or that he was deprived of rights to which he was

entitled.” /d. For these reasons, the Board denied Truitt’s request.

C. Truitt’s Request for Reconsideration of the Board’s Denial

Truitt sought reconsideration of the Board’s denial. AR at 42. In his request, Truitt once

again argued that his commander lacked the authority to prevent him from attending unit drill from

May 2009 to March 2012. Jd. at 43. To support this claim, Truitt pointed to Air Force Instruction

(“AFT”) 36-3209, | 6.1, which was implemented after his discharge. See id.

AFI 36-3209, { 6.1 reads:

6.1. Letter of Notification of Preferral or Charges. Members of

the Virginia Air National Guard serviced with a Letter of

Notification, advising the member they are being recommended for

administrative discharge . . . will immediately surrender their

military identification card to their commander[.] . . . In no event

will the member attend [Unit Training Assemblies] . . . , or other

military assemblies, events, or activities, unless authorized in

writing by the Assistant Adjutant General for Air.

Id. at 45.

Truitt argued that the implementation of AFI 36-3209, 6.1 after his commander ordered

him not to attend drill clearly indicates that, before its passage, Truitt’s commander did not have

the authority to prevent Truitt from attending drill. AR at 43. Indeed, Truitt claimed, there would

have been “no need to implement an instruction to provide a commander authority if the

commander already had the authority.” /d. Truitt later supplemented his request for reconsideration

with statements from three other members of the Virginia Air National Guard reporting previous

incidences where a member failed a drug test but was still allowed to attend unit drill. Jd. at 92—

98.

The Board denied Truitt’s request for reconsideration. AR at 9-12. It explained that “[a]fter

again reviewing the evidence in [Truitt’s] case, and taking into consideration the additional

documentation provided by [Truitt],” the Board “remain[ed] unconvinced that corrective action is

warranted.” Jd. at 11. The Board found the letters unpersuasive and instead explained that it would

“restrict itself to deliberating on the available facts and circumstances associated with [Truitt’s]

case.” Id. In any event, the Board explained, the “hearsay statements” are insufficient to “conclude

that [Truitt] was deprived of rights to which he was entitled,” that there was an “abuse of

discretionary authority,” or that Truitt “was treated differently than others similarly situated.” Jd.*

4 Years later, in January 2018, Truitt submitted another request to the Board for correction of military

records, which the Board denied. AR at 101. Truitt does not challenge his second denial in the present suit,

so the Court need not address that request. See AR 100-123.

D. Truitt’s Federal Suit (The Present Action)

Unable to obtain relief from the Board, Truitt brought this suit in federal court to challenge

the Board’s refusal to award him credit for Unit Training Assemblies and Annual Tours that

occurred during the period between his arrest in May 2009 and his administrative discharge in

March 2012. See Compl. Truitt launches several challenges at the Board’s denial. First, he alleges

that AFI 36-3209, ¥ 6.1—which was implemented after his discharge—is “an unconstitutional ex

post facto law.” Id. at J] 37-45 (alteration in capitalization). Second, Truitt claims that the Board

unlawfully relied on AFI 36-3209, § 6.1 when denying his request for a correction of his military

records. /d. at J 46-57. Third, Truitt alleges that the Board’s rejection of his application for a

correction of his military records was “arbitrary, capricious, and an abuse of discretion” and thus

should be set aside under the APA. Jd. at J] 58—66 (citing 5 U.S.C. § 706(2)(A)). As for this last

claim, Truitt alleges that the Board’s denial was arbitrary, capricious, and an abuse of discretion

because Truitt’s commander lacked authority to order him not to attend drills. Jd.

The Air Force answered, and the parties proceeded to discovery. ECF Nos. 9 & 11. After

the close of discovery, the Air Force moved for summary judgment on all of Truitt’s claims. ECF

No. 18. The Air Force argues that “the Board correctly relied on the record and the law when it

determined that [Truitt’s] commanding officers had the inherent authority to order Truitt to not

participate in [drill] with other service members while his criminal case and discharge proceedings

continued.” ECF No. 18-1 at 6. It further argues that the Board did not retroactively apply AFI 36-

3209, J 6.1 when it denied his request. Jd. at 27.

In Truitt’s combined opposition and cross-motion for summary judgment, Truitt did not

respond to the Air Force’s arguments regarding his challenges to AFI 36-3209, § 6.1. See generally

ECF No. 26-1.° Instead, he argued only that the Board’s denial was arbitrary and capricious

because his commander lacked the authority to prohibit him from participating in unit drill after

his arrest and while his administrative discharge was pending. /d. at 6. The Air Force filed a

combination opposition to Truitt’s cross-motion for summary judgment and reply in support of its

motion for summary judgment. ECF Nos. 29 & 30. Truitt replied. See ECF No. 33.

The parties’ cross-motions for summary judgment are now ripe for consideration.

Il. LEGAL STANDARDS

A. Setting Aside a Final Agency Action as “Arbitrary and Capricious” Under the APA

Under the APA, “[a] person suffering legal wrong because of agency action, or adversely

affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to

judicial review thereof.” 5 U.S.C. § 702. Federal courts may “hold unlawful and set aside” a final

agency action if the action is “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” Jd. at § 706(2)(A); see id. at § 704.

When deciding whether an agency action is arbitrary or capricious, courts may not

substitute their judgment for that of the agency. Motor Vehicle Mfrs. Ass’n. of U.S., Inc. v. State

Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). Instead, as long as the agency record contains

“a rational connection between the facts found and the choice made,” the agency action will stand.

Id. (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). Generally

speaking, an agency’s action is arbitrary and capricious if the agency: (1) “has relied on factors

which Congress has not intended it to consider,” (2) “entirely failed to consider an important aspect

of the problem,” (3) “offered an explanation for its decision that runs counter to the evidence before

> Truitt docketed his combination opposition and cross-motion for summary judgment twice. The first, ECF

No. 25, is captioned as an opposition to the Air Force’s summary-judgment motion. The second, ECF No.

26, is captioned as a cross-motion for summary judgment. These two documents are identical, so the Court

will refer to them as Truitt’s combination opposition and cross-motion for summary judgment.

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it,” or (4) makes a decision “so implausible that it could not be ascribed to a difference in view or

the product of agency expertise.” Jd.

Federal courts are “unusually deferential” when considering whether a decision of the Air

Force Board for the Correction of Military Records is arbitrary and capricious. Kreis v. Sec’y of

Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989). This doubly deferential standard flows from the

language of the statute authorizing the Air Force Board for the Correction of Military Records to

act. See id. Under 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.” 10 U.S.C. § 1552(a)(1). This “broad grant of discretion” to the

Secretary of a military department “substantially restrict[s] the authority of the reviewing court to

upset the Secretary’s determination.” Kreis, 866 at 1514. As the D.C. Circuit has explained, it is

“more difficult to say that the Secretary has acted arbitrarily if he is authorized to act ‘when he

considers it necessary to correct an error or remove an injustice,’ than it is if he is required to act

whenever a court determines that . . . there has been an error or injustice.” /d. (internal citation

omitted). Under this highly deferential standard of review, “only the most egregious decisions” by

the Air Force Board for the Correction of Military Records may be set aside as arbitrary and

capricious. Jd. at 1515.

B. Summary Judgment in the APA Context

Typically, Federal Rule of Civil Procedure 56 governs the resolution of summary-judgment

motions. That Rule directs courts to grant summary judgment if the movant “shows 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). In cases involving review of a final agency action under the APA,

however, Rule 56’s standard does not govern. Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90

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(D.D.C. 2006). That is so because under the APA, it is the role of the agency, not the district court,

to resolve factual issues and to reach a decision that is supported by the administrative record. Jd.

at 90. Thus, when faced with a summary-judgment motion on an APA claim, the district court

must determine as a matter of law whether the agency’s decision was arbitrary, capricious, an

abuse of discretion, or unlawful. See id. (citing Occidental Eng’g Co. v. INS, 753 F.2d 766, 769-

70 (9th Cir. 1985)) (emphasis added). In other words, the district court sits as an “appellate

tribunal” and must answer these legal questions based on the evidence in the administrative record.

Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001).

III. DISCUSSION

Before addressing the parties’ arguments in their cross-motions for summary judgment, the

Court must clarify the issue before it. Truitt alleged three errors in his complaint. He claims that

(1) AFI 36-3209, 6.1 “is an unconstitutional ex post facto law,” (2) that the Board’s reliance on

AFI 36-3209, 4 6.1 was an error of law, and (3) that the Board’s denial of his application should

be set aside as arbitrary, capricious, and an abuse of discretion under the APA. Compl. at J 37—

66. The Air Force moved for summary judgment on all three claims. See ECF No. 18-1. But when

Truitt filed his combined opposition and cross-motion for summary judgment, he addressed only

the APA claim. See ECF No. 26-1. The Court will therefore treat Truitt’s other two claims as

conceded. See Hayes v. District of Columbia, 923 F. Supp. 2d 44, 49 (D.D.C. 2013). Thus, the

only issue before the Court is whether the Board’s denial of Truitt’s application for a correction of

his military records should be set aside as arbitrary or capricious under the APA. See 5 U.S.C.

§ 706(2)(A).

ll

A. Truitt’s APA Claim is Justiciable

The justiciability of claims seeking review of military action is limited by the “fundamental

and highly salutary principle” that the judiciary must be “scrupulous not to interfere with legitimate

Army matters.” Kreis, 866 F.2d at 1511 (quoting Orloffv. Willoughby, 345 U.S. 83, 93-94 (1953)).

Indeed, the U.S. Constitution vests “‘[t]he complex, subtle, and professional decisions as to the

composition, training, equipping, and control of a military force’ exclusively in the legislative and

executive branches.” Jd. (quoting Gilligan v. Morgan, 413 U.S. 1, 10 (1973)). For this reason, a

service member’s claim seeking a retroactive promotion, for example, “falls squarely within the

realm of nonjusticiable military personnel decisions.” Jd.

But not all claims involving military action are immune from judicial review. As the D.C.

Circuit has held, federal courts have jurisdiction to review APA challenges to decisions by military

records correction boards. Kreis, 866 F.2d at 1512 (holding that the district court erred by

dismissing a claim challenging the Air Force Board for Correction of Military Records’ denial as

arbitrary and capricious under the APA); accord Piersall v. Winter, 435 F.3d 319, 321-22

(D.C. Cir. 2006) (“We have many times reviewed the decisions of boards for correction of military

records in light of familiar principles of administrative law.”) (internal quotation marks omitted).

Thus, the Court may consider Truitt’s APA challenge to the Board’s denial of his request for a

correction of his military records.

B. The Board’s Denial of Truitt’s Application for a Correction of His Military

Records Was Not Arbitrary or Capricious

After reviewing the entire administrative record and the Board’s written denial of Truitt’s

application for a correction of his military records, the Court finds that the Board’s decision was

neither arbitrary nor capricious. See 5 U.S.C. § 706(2)(A). The Board decided that there was no

“error or injustice” warranting a correction of Truitt’s military records because Truitt’s commander

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“had ample legal basis” to order Truitt not to attend unit drill after his arrest and while his

administrative discharge was pending. AR at 17. It further adopted the Personnel Council’s opinion

that “[t]he order to deny participation [in unit drill] could be construed as a reasonable response to

protect people and assets from the risks posed by a known drug offender.” Jd. at 16.

As the Board recognized, the Air Force has a legitimate interest in maintaining the safety

and order of its ranks by preventing drug offenders from participating in unit drills. The

commander’s order was certainly a rational response to Truitt’s arrest and subsequent guilty plea

to felony possession of heroin. Accordingly, the Board’s refusal to credit Truitt with attendance at

unit drills from May 2009 to March 2012 was far from “egregious.” Kreis, 866 F.2 at 1514.

Nor are any of the other hallmarks of an arbitrary or capricious agency action present here.

The Board did not “entirely fail to consider an important aspect of the problem.” Motor Vehicle

Mfrs. Assoc., 463 U.S. at 43. Nor did it “offer an explanation for its decision that runs counter to

the evidence before the agency.” Jd. The administrative record shows that Truitt’s commander

ordered him not to attend unit drill after he was arrested for felony possession of heroin in May

2009. AR at 15. Once Truitt pleaded guilty to that offense in November 2009, the Virginia Air

National Guard initiated administrative discharge proceedings. Jd. The evidence before the Board

thus supports its rationale that refusing to give Truitt credit for drill during this time was not an

“error or injustice.” /d. at 16. Next, the Board’s decision was not “so implausible that it could not

be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Assoc.,

463 U.S. at 43. To the contrary, the Board’s decision makes perfect sense; a branch of the U.S.

military has a strong interest in ensuring that drug users are not among its ranks. And finally, the

Board has not “relied on factors which Congress has not intended it to consider.” Id.

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Truitt’s arguments to the contrary are unpersuasive. First, he argues that the Board’s denial

of his application for a correction of his military records was arbitrary and capricious because his

commander’s order prohibiting him from attending unit drill was unlawful. ECF No. 26-1 at 10—

12. It was unlawful, he says, because the order exceeded the guidelines set forth in ANGI 36-2001,

43.3. Id. At the time Truitt was prohibited from attending unit drill, ANGI 36-2001, 4 3.3 listed a

handful of reasons why a commander “may excuse a member” from all or a portion of an Annual

Tour. ANGI 36-2001, 7 3.3 (provided in ECF No. 30-1 at 6).° Truitt argues that the list set forth in

43.3 is exhaustive by deceptively including the word “only” in his brief before quoting the

regulation. See ECF No. 26-1 at 11.

But as the Air Force correctly notes, 3.3 simply lists some of the reasons why a

commander may excuse a member from an Annual Tour. ANGI 36-2001, 4] 3.3; ECF No. 30 at 6—

7. The list is not exhaustive. See ANGI 36-2001, § 3.3 (providing that “[a] commander may excuse

a member (documentation required) from all or a portion of 15 days of [Annual Tour] if one or

more of the following applies”). Thus, the fact that § 3.3 does not list excusal from an Annual Tour

due to a member’s arrest or guilty plea to a felony drug charge does not make that excusal unlawful.

See United States v. Kisala, 64 M.J. 50, 52 (CAAF 2006) (recognizing that a commander’s order

to his subordinate can be lawful even when that order is not explicitly authorized by statute or

regulation).

Second, Truitt argues that the Board’s decision was arbitrary and capricious because his

commander’s order not to attend unit drill “directed Truitt to commit an illegal activity.” ECF No.

26-] at 12 (capitalization altered). The Air Force urges the Court to disregard this argument since

° The January 15, 1997 version of ANGI 36-2001 was in effect in May 2009 when Truitt’s commander

initially ordered him not to attend unit drill. In October 2009, ANGI 36-2001 was replaced with a new

version, but the language of ANGI 36-2001, § 3.3 in the new version did not change.

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it was not alleged in Truitt’s complaint or raised before the Board. See ECF No. 29 at 9. The Air

Force is correct that Truitt’s argument is late coming. See generally Compl. And even if Truitt had

properly preserved it, his argument would still fail. Truitt says that under ANGI 36-2001, { 6.3,

attendance at Unit Training Assemblies is mandatory. ECF No. 26-1 at 12. Thus, he argues, his

commander’s order not to attend Unit Training Assemblies directed Truitt to engage in an “illegal

activity.” Jd. But under this theory, a commander could never excuse a member from Unit Training

Assemblies. Not only is this theory absurd, but it is directly undercut by ANGI 36-2001, 4 6.3.6.2,

which permits commanders to grant excused absences for Unit Training Assemblies. See ANGI

36-2001, ¥ 6.3.6.2 (provided in ECF No. 30-1 at 10). Truitt’s reliance on ANGI 36-2001, { 6.3 is

thus unpersuasive.

Finally, Truitt says that because he was physically and mentally capable of attending unit

drill, his commander could not prohibit him from doing so. ECF No. 26-1 at 13. But ANGI 36-

2001, 4 3.3 shows that this is not the case. That regulation lists a handful of reasons for which a

commander may excuse a service member from his or her Annual Tour duties. ANGI 36-2001,

{ 3.3 (provided in ECF No. 30-1 at 6). Many of these reasons have nothing to do with physical or

mental fitness. See id. So Truitt’s final argument fails.

Accordingly, the Court finds as a matter of law that the Board’s denial of Truitt’s

application for a correction of his military records was not arbitrary or capricious under the APA.

See 5 U.S.C. § 706(2)(A).

IV. CONCLUSION

For these reasons, the Court will GRANT the Air Force’s cross-motion for summary

judgment, ECF No. 18, and will DENY Truitt’s cross-motion for summary judgment, ECF No.

26. A separate Order consistent with this Memorandum Opinion shall issue contemporaneously.

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Date: August ne! 2021 “tous Korte

Hon. Royce C. Lamberth

United States District Judge

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