Myles v. United States

In the United States Court of Federal Claims

MELVIN MYLES,

Plaintiff,

v. No. 21-1618C

(Filed: June 24, 2022)

THE UNITED STATES,

Defendant.

Melvin Myles, pro se, Atlanta, GA.

Galina I. Fomenkova, Civil Division, United States Department of Justice, Washington, DC, for

Defendant.

OPINION AND ORDER

LERNER, Judge.

Melvin Myles was administratively discharged from the United States Navy (“Navy”) for

misconduct related to unauthorized absences in 2005. Twelve years later, he petitioned the Navy

to correct his discharge records to reflect the undiagnosed post-traumatic stress disorder and

depression he suffered after experiencing military sexual trauma (“MST”), which, he states,

caused his unauthorized absences. The Board for the Correction of Naval Records (“BCNR” or

“Board”) amended Mr. Myles’s discharge records to an “honorable” discharge but did not

change the narrative reason for his discharge to account for his disability. He filed a claim in this

Court for review of that BCNR decision, and the Government filed a Motion for Judgment on the

Administrative Record under Rule 52.1 of the Rules of the United States Court of Federal Claims

(“RCFC”). See Def.’s Mot. for J. on the Admin. R. (“Def.’s Mot.”), Docket No. 14.

All parties agree that the trauma Mr. Myles experienced during his military service

mitigated his misconduct. Yet, his struggle in the intervening decade to correct his service

records has only been partially rewarded because of the Navy’s stringent disability discharge

requirements. The Court is sympathetic to Mr. Myles’s claim and acknowledges the barriers that

prevent survivors of MST from reporting their experiences. Nevertheless, this Court is bound by

a limited scope of review over military correction boards. Overall, the BCNR’s decision to deny

Mr. Myles’s claim was supported by substantial evidence of Mr. Myles’s condition at the time of

his separation and was not contrary to Navy regulations.

For the following reasons, the Court GRANTS the Government’s Motion for Judgment

on the Administrative Record and DENIES Plaintiff’s Cross-Motion and Motion to Supplement

the Administrative Record.

I. Background

A. Factual Background

1. Naval Service

Mr. Myles enlisted in the Navy and entered active-duty service on February 4, 2004. See

Admin. R. (“AR”), Docket No. 13, at 4, 13. He was assigned to the USS BATAAN, an

amphibious assault ship stationed in Norfolk, Virginia. AR 4, 120–24. Soon after entering the

service, Mr. Myles was “sexually assaulted and raped by a male shipmate in the bathroom stall

of the ship.” AR 67, 73, 82; see also AR 28, 44. Mr. Myles was told by his assaulter that “he

would kill me if I told anyone about it,” so he did not report the incident. AR 67, 73, 82.

Around the same time, in January 2005, Mr. Myles learned that a close friend had died by

suicide. AR 67, 73, 82. He also experienced significant marital issues with his wife, whom he

had recently married before joining the Navy. AR 82, 106; see also AR 45. Mr. Myles’s mental

health deteriorated, and he twice attempted suicide. AR 29, 67, 73.

Following one of these suicide attempts, Mr. Myles was taken to an emergency medical

facility and met with a psychiatrist for a consultation. AR 13, 28–29, 67, 73. Mr. Myles

reported “experiencing progressive anxiety and depressive symptoms over the past 7 months,” as

well as “occasional thoughts of harming some of his supervisors and passive fleeting thoughts of

self-harm.” AR 29. He was diagnosed with an “Adjustment Disorder with mild anxiety.”

AR 13. According to Mr. Myles, “nothing got any better” after this diagnosis. AR 21. He noted

that “I figured that after I was out of the military everything would be okay, so I decided to take

a break[.] [A]t that point I was not caring about anything or anyone anymore.” AR 68, 74, 83.

Starting March 26, 2005, Mr. Myles did not report to military service for “a little over a month”

before turning himself in on May 6, 2005. AR 65, 68, 74, 83. He was also absent from service

for a shorter period in January of that same year. AR 115.

While Mr. Myles’s early Navy performance evaluations demonstrated “fully successful

performance or better,” his worsening mental health and attendance began affecting his position

in the service. AR 29, 41; see, e.g., AR 124, 130. Absences without leave (“AWOL” or

“unauthorized absence”) and missing movement are eligible for non-judicial punishment and

court-martial under the Uniform Code for Military Justice (“UCMJ”). See AR 111, 115–16;

UCMJ, Art. 86, 10 U.S.C. § 886 (2005) (describing the UCMJ offense of “absence without

leave”); UCMJ, Art. 87, 10 U.S.C. § 887 (2005) (“Any person subject to this chapter who,

through neglect or design, misses the movement of a ship . . . shall be punished as a court-martial

may direct.”); UCMJ, Art. 15, 10 U.S.C. § 815 (authorizing non-judicial punishment).

For the first unauthorized absence in January 2005, Mr. Myles received non-judicial

punishment that required he forgo $500 of pay per month for two months and imposed “21 days

of restriction with extra duties and a suspended pay grade reduction.” Def.’s Mot. at 2; AR 115.

He was disciplined again after his month-long absence that began on March 26, during which he

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also missed the USS BATAAN’s movement from port. AR 116; see AR 68, 74, 83; Def.’s Mot.

at 2. For this second unauthorized absence and for missing movement of the ship, he was court-

martialed and sentenced to thirty days of confinement in the Navy brig, docked additional pay,

and reduced in pay grade to E-1. AR 47, 116, 133; see also AR 68, 74, 83. His misconduct

constituted a “serious offense” under Navy regulations, and he was administratively separated

from the Navy for misconduct on July 22, 2005. AR 138; see Naval Military Personnel Manual

(“MILPERSMAN”) 1910-142 (2005) (“Members may be separated based on commission of a

serious military or civilian offense.”). He was discharged with a “General (Under Honorable

Conditions)” characterization of service and a narrative reason of “Misconduct (Serious

Offense).” AR 138.

2. Post-Separation and BCNR Proceedings

In the years following his discharge, Mr. Myles received his undergraduate degree and

was intermittently employed. See AR 68, 74, 83. However, he also experienced homelessness

and reported that he was “still mentally suffering in silence” but “could not afford to get any

help.” AR 68, 74, 83. He applied for medical care with the Department of Veterans Affairs

(“VA”), where he was denied coverage multiple times. AR 35–43, 70, 76, 85; see AR 23–43.

In 2017, Mr. Myles petitioned the Naval Discharge Review Board (“NDRB”) and BCNR

to change his characterization of service from “General (Under Honorable Conditions)” to

“Honorable,” and change the narrative reason from “Misconduct (Serious Offense)” to “Mental

Health Conditions.” AR 52, 65–67, 72–73, 81–85. He contended that “his undiagnosed post-

traumatic stress disorder (PTSD) caused by a Military Sexual Trauma incident and Depression”

mitigated his conduct. AR 54. 1

This petition was denied for two reasons. See AR 63. First, the BCNR held it “lacked

evidence to find that [Mr. Myles was] unfit for continued naval service” based on his

employment and ability to complete a college degree in the years following separation. Id. It

noted that “[t]his was strong evidence to the Board that [he was] capable of performing the duties

of [his] office, grade, rank or rating despite any disability conditions that may have existed at the

time.” Id. Second, the BCNR claimed that Navy regulations precluded it from changing the

narrative reason on his discharge because his then-diagnosis of an adjustment disorder “did not

qualify for referral to the Disability Evaluation System.” Id. Further, “even if there was

evidence that [he was] suffering from a qualifying disability,” the BCNR highlighted that

“[d]isability regulations directed that separation processing for misconduct which may qualify

for an Other than Honorable characterization supersede disability processing.” AR 63–64.2

1

“The Department of Veterans Affairs (VA) uses the term ‘military sexual trauma’ (MST) to

refer to experiences of sexual assault or repeated, threatening sexual harassment experiences

while on federal active duty, active duty for training, or inactive duty training.” AR 57.

2

Additionally, the BCNR could have denied Mr. Myles’s petition on statute of limitations

grounds but waived this issue. AR 63.

3

In 2018, following appeal proceedings, the VA approved Mr. Myles for disability

treatment. AR 35–43; see AR 23–35, 76, 85. A psychiatrist with the VA diagnosed him with

major depressive disorder and post-traumatic stress disorder (“PTSD”), and noted that “the

PTSD was related to [MST].” AR 13. Mr. Myles was awarded benefits for service-connected

disability and rated under the VA rating system with a combined seventy percent rating, which

was later elevated to eighty percent. AR 4, 45.

Two years later, Mr. Myles again petitioned the BCNR with evidence of the 2018 VA

proceedings that granted him service-connected disability benefits. AR 21. This time, the

BCNR sought a mental health advisory opinion from a Navy Physician Advisor on whether

“Petitioner’s record indicate[s] behavior associated with victims of MST.” AR 20. The

Physician Advisor reviewed Mr. Myles’s service records and did not find any “entries of sexual

assault, or diagnoses of Major Depression or PTSD.” AR 44. However, the Physician Advisor

did find “behavioral markers that may be found in victims of MST” and highlighted Mr. Myles’s

treatment with the VA since 2017, his testimony about the sexual assault, and the emergency

department psychiatry consultation that diagnosed Mr. Myles with an adjustment disorder.

AR 44–45.

The Physician Advisor concluded that “Petitioner’s in-service records do contain direct

evidence of psychological or behavioral changes that may have indicated MST,” and

“Petitioner’s description of [his past] behaviors and psychological symptoms while he was on

active duty are sufficiently detailed that they do lend credibility to Petitioner’s contention” that

he experienced MST. AR 45. Overall, it was the Physician Advisor’s “considered medical

opinion that there is sufficient indirect evidence that Petitioner exhibited behaviors associated

with victims of MST during his military service and that his misconduct may be mitigated by his

experience of MST.” Id.

The BCNR considered the Physician Advisor’s report and granted Mr. Myles partial

relief. First, the Board decided “that the interests of justice warrant upgrading the

characterization of Petitioner’s service to honorable,” from a general (under honorable

conditions) discharge. AR 14. A majority of the Board “found that Petitioner’s misconduct was

substantially mitigated by . . . his undiagnosed mental health conditions and his struggle with

these conditions arising from the MST that he suffered.” AR 13. However, while the BCNR

found that these conditions warranted upgrading the characterization of Mr. Myles’s service, it

“found insufficient evidence to justify changing the narrative reason for his discharge,” and

observed that “while Petitioner’s MST and PTSD certainly mitigated his conduct, they did not

excuse it.” AR 14. Lastly, similar to the first BCNR recommendation, the Board held that Mr.

Myles “did not provide sufficient evidence that he suffered from a qualifying medical condition

or disability that impacted his fitness for duty at the time of his discharge,” and that, even if Mr.

Myles had a qualifying mental health disability, Navy regulations precluded the Board from

changing the narrative reason. Id.

In February 2021, Mr. Myles submitted a third petition to the BCNR in which he

appealed the BCNR’s partial denial. AR 6. He presented an updated summary of his VA

benefits—reflecting that he was still receiving eighty percent compensation for his disability—

and argued that the BCNR’s partial grant was erroneous because it found that his mental illness

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disability was enough to justify updating his discharge, yet not sufficient to amend the narrative

reason. AR 6, 8. The BCNR again denied Mr. Myles’s petition. AR 1–2. It found “no evidence

that [Plaintiff’s] disability condition impacted [his] inability to perform [his] duties.” Id. In

addition, the Board held that, regardless of his condition, Mr. Myles was “ineligible for disability

processing” because “regulations direct misconduct processing to supersede[] disability

processing when the misconduct qualified for a punitive or Other than Honorable discharge.” Id.

B. Court of Federal Claims Complaint

Following this third denial, Mr. Myles filed a complaint in this Court. See Compl.,

Docket No. 1. The Government submitted the Administrative Record, see AR, and Motion for

Judgment on the Administrative Record, see Def.’s Mot. Mr. Myles filed a Cross-Motion for

Judgment on the Administrative Record and submitted exhibits to supplement the record. See

Pl.’s Resp. and Cross Mot. for J. on the Admin. R. (“Pl.’s Resp.”), Docket No. 19. Each party

submitted a reply brief. See Def.’s Reply in Supp. of its Mot. for J. on the Admin. R. and Resp.

(“Def.’s Reply”), Docket No. 20; Pl.’s Resp. to Cross Mot. for J. on the Admin. R. (“Pl.’s

Reply”), Docket No. 24.

II. Discussion

A. Subject Matter Jurisdiction

The Tucker Act confers upon the Court of Federal Claims jurisdiction over “any claim

against the United States founded either upon the Constitution, or any Act of Congress or any

regulation of an executive department, or upon any express or implied contract with the United

States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C.

§ 1491(a)(1) (2022). Because the Tucker Act only waives sovereign immunity and does not

create substantive rights, a plaintiff must identify a separate source of law that can be fairly

interpreted as creating a right to money damages. Fisher v. United States, 402 F.3d 1167, 1172

(Fed. Cir. 2005); see also United States v. Navajo Nation, 556 U.S. 287, 289–90 (2009).

Mr. Myles submitted a form complaint that only cites 28 U.S.C. § 1491(a)(2) of the

Tucker Act. See Compl. at 1. While the Complaint does not specifically cite a money-

mandating statute, such as 10 U.S.C. §1201 or the Military Pay Act, it does request past

disability pay for what Plaintiff would have construed as a disability discharge that “will then

place [Mr. Myles] in Disability Retirement Status” and entitle him to disability benefits. Compl.

at 5; see Sawyer v. United States, 930 F.2d 1577, 1578 (Fed. Cir. 1991) (holding that the

disability retirement pay statute 10 U.S.C. § 1201 is a money-mandating statute); Holley v.

United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997) (holding that the Military Pay Act is a

money-mandating statute).

Generally, there is “no duty on the part of the trial court to create a claim which plaintiff

has not spelled out in his or her pleading.” El v. United States, 144 Fed. Cl. 741, 748 (2019)

(quotation marks omitted) (quoting Lengen v. United States, 100 Fed. Cl. 317, 328 (2011)).

Nevertheless, “a document filed pro se is to be liberally construed, and a pro se complaint,

however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted

by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (cleaned up) (quoting Estelle v.

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Gamble, 492 U.S. 97, 106 (1976)). This liberal construction applies even where a plaintiff does

not specifically cite the basis for subject matter jurisdiction so long as their entitlement to money

is clear. See, e.g., Banks v. United States, 119 Fed. Cl. 254, 256 (2014) (“Thus, even though

Plaintiff did not cite the Military Pay Act in his complaint, the Court will accept jurisdiction as if

it had been cited.”); Avery v. United States, 2012 WL 3854790, *4 (Fed. Cl. 2012) (“While

[plaintiff’s] complaint does not specifically cite its provisions . . . the Court may infer that he

seeks relief for military back pay in accordance with its provisions.”).

Here, Mr. Myles articulates a claim to amend his discharge records to reflect a disability

retirement, which would entitle him to disability retirement benefits under 10 U.S.C. § 1201. See

Compl. at 5; see also, e.g., LaBonte v. United States, 150 Fed. Cl. 552 (2020) (determining that

plaintiff’s disability retirement, back pay, and retirement benefit claims after only a partial re-

characterization of his discharge are based in 10 U.S.C. § 1201); Sabree v. United States, 90 Fed.

Cl. 683, 694 (2009) (describing the difference between a claim for disability retirement under

§ 1201 and claim for wrongful discharge originating under the Military Pay Act). Liberally

construed, this Court has subject matter jurisdiction under 10 U.S.C. § 1201, which is a money-

mandating statute that permits this Court to grant monetary relief. See Fisher, 402 F.3d at 1174

(citing Sawyer, 930 F.2d).3

B. Motion for Judgment on the Administrative Record

The BCNR rejected Mr. Myles’s appeal of his partial denial for two reasons. First, it

found “no evidence that [Mr. Myles’s] disability condition impacted [his] ability to perform [his]

duties” and “concluded there was insufficient evidence to conclude [he was] unfit for continued

naval service at the time of [his] discharge.” AR 1–2. Second, regardless of Mr. Myles’s fitness

for duty, the BCNR held that he was “ineligible for disability processing” because “[d]isability

regulations direct misconduct processing to supersede[] disability processing when the

misconduct qualified for a punitive or Other than Honorable discharge.” AR 2. On both points,

the Government argues that the BCNR was supported by substantial evidence and moves for

judgment on the administrative record. See Def.’s Mot.

1. Standards of Review

The Court of Federal Claims reviews military correction board decisions using the

administrative record compiled from the board proceedings. Walls v. United States, 582 F.3d

1358, 1367 (Fed. Cir. 2009). For cross-motions for judgment on the administrative record

pursuant to Rule 52.1, this Court makes “factual findings . . . from the record evidence as if it

were conducting a trial on the record.” Bannum, Inc. v. United States, 404 F.3d 1346, 1357 (Fed.

Cir. 2005). The question is, “given all the disputed and undisputed facts in the administrative

record, whether the plaintiff has met the burden of proof to show that the decision was not in

3

The Government interprets Plaintiff’s Complaint in the same manner. It notes that because

“Mr. Myles is proceeding pro se, we presume that the purpose of this relief . . . is to obtain

disability pay based on a disability discharge, and therefore, this suit encompasses a money-

mandating statute.” Def.’s Mot. at 7; see also id. at 8 (“Mr. Myles seeks a disability discharge

from the Navy. The statutory authority for such a discharge lies in 10 U.S.C. § 1201.”).

6

accordance with law.” Martinez v. United States, 77 Fed. Cl. 318 (2007) (citing Bannum, 404

F.3d at 1357).

Decisions by military correction boards are reviewed under the same standard that applies

under the Administrative Procedure Act. Walls, 582 F.3d at 1367; see also Metz v. United

States, 466 F.3d 991, 998 (Fed. Cir. 2006). Review is “limited to determining whether the action

was arbitrary, capricious, or in bad faith, or unsupported by substantial evidence, or contrary to

law, regulation, or mandatory published procedure of a substantive nature by which the

complainant has been seriously prejudiced.” Heisig v. United States, 719 F.2d 1153, 1156 (Fed.

Cir. 1983) (citing Clayton v. United States, 225 Ct. Cl. 593, 595 (1980)); see also Sharpe v.

United States, 945 F.3d 1352, 1358–59 (Fed. Cir. 2019) (applying this standard to judicial

review of military decisions). The standard has many definitions, but “when the standard is

applied to military pay cases in [the Federal Circuit], the court is largely concerned with whether

the correction board’s decision is procedurally fair and supported by substantial evidence.”

Miller v. United States, 119 Fed. Cl. 717, 726 (2015) (citing Heisig, 719 F.2d at 1156 & n.12).

Deferential review is particularly important for the military, as justiciability concerns have long

guided federal courts’ recognition that the “responsibility for determining who is fit or unfit to

serve in the armed services is not a judicial province; and that courts cannot substitute their

judgment for that of the military departments.” Heisig, 719 F.2d at 1156.

Overall, this Court cannot reweigh the BCNR’s determination. It may only consider

whether the Board’s conclusion was supported by “substantial evidence,” which is evidence that

“a reasonable mind might accept as adequate to support a conclusion.” Strand v. United States,

951 F.3d 1347, 1351 (Fed. Cir. 2020) (quotation marks omitted) (quoting Consol. Edison Co. of

N.Y. v. NLRB, 305 U.S. 197, 229 (1938)); see also Heisig, 719 F.2d at 1156–57. “So long as the

Board considered the relevant evidence and came to a reasonable conclusion, [courts] will not

disturb the Board’s decision.” Riser v. United States, 97 Fed. Cl. 679, 683–84 (2011).

2. The BCNR’s First Ground for Denial is Supported by Substantial

Evidence

Arguments by Party

The Government maintains that it is entitled to judgment on the administrative record

because to qualify for disability retirement, Mr. Myles must have been “unfit to perform the

duties of [his] office, grade, rank, or rating because of physical disability at the time of the

discharge,” and substantial evidence supports the BCNR’s finding that Mr. Myles was not

disabled or unfit for his duties at separation. Def.’s Mot. at 10–12. The Government contends

that there is no inherent inconsistency in finding that Plaintiff’s mental health conditions

mitigated his misconduct yet did not render him unfit for duty, or that Mr. Myles was not

disabled in 2005 despite currently receiving VA benefits. See Def.’s Mot. at 12–13.

In response, Mr. Myles asks this Court to change the narrative reason on his discharge

record and place him on the Permanent Disability Retirement List. See Pl.’s Resp. at 1. He

argues that the BCNR correctly claimed that it had enough information to warrant re-

characterizing his discharge to honorable, but it erred by finding that it did not have enough

information to update the narrative reason for the discharge. See Pl.’s Resp. at 3. Specifically,

7

Mr. Myles points to guidance by the Department of Defense to allow modification of discharges

due to mental health conditions, sexual assault, or sexual harassment. See Pl.’s Resp. at 1.

According to Mr. Myles, because his mental health condition mitigated his discharge, it should

also impact his discharge narrative. Lastly, Mr. Myles notes that he was downgraded in rank

because he was unfit for service and that he therefore met the disability definition. See Pl.’s

Reply at 4.4

The BCNR’s Fitness Determination

To receive a disability discharge, a servicemember must be “unfit to perform the duties of

the member’s office, grade, rank, or rating” at the time of the retirement. 10 U.S.C. § 1201

(2005); see also 10 U.S.C. § 1203 (authorizing disability discharge). The military’s

determination of whether a servicemember is fit is tied to the substantial evidence standard of

review; “responsibility for determining who is fit or unfit to serve in the armed services is not a

judicial province.” Heisig, 719 F.2d at 1156. Thus, if the BCNR had substantial evidence that

Mr. Myles was fit for service, this determination must be upheld.

The disability statutes further provide that servicemembers are entitled to disability

retirement only when they are unable to perform the duties of their pay grade “because of a

physical disability”—meaning they are physically or mentally unfit to perform the duties of their

role. 10 U.S.C. § 1201(a); see, e.g., Walker v. Dep’t of the Navy, 106 F.3d 1582, 1585 (Fed. Cir.

1997) (holding that a constructive demotion required that the plaintiff demonstrate they were

physically fit to perform all duties at the time of reassignment); Hoffman v. United States,

108 Fed. Cl. 106, 117 (2012), aff’d 560 Fed. App’x 987 (Fed. Cir. 2014) (reviewing the BCNR’s

determination of fitness following a servicemember’s illness and health treatment). Eligible

“physical disability” is defined by regulation to include psychiatric disorders and mood

disorders, but not adjustment disorders. See Secretary of the Navy Instruction

(“SECNAVINST”) 1850.4E, enclosure 8 (listing the “medical conditions and physical defects

which are cause for referral into the Disability Evaluation System”); id. ¶ 8013 (listing disorders,

including adjustment disorders, and noting “[t]hese conditions do not constitute a physical

disability despite the fact they may render a member unable to perform his or her duties”).

Finally, to prove unfitness based on disability, a servicemember must prove a disability rating of

at least thirty percent at the time of his retirement. 10 U.S.C. § 1201(b)(3)(B); see, e.g., Gant v.

United States, 417 F.3d 1328, 1331 (Fed. Cir. 2005) (finding plaintiff ineligible for disability

status because he had a rating of under thirty percent).

Mr. Myles brought three petitions to the BCNR and now challenges the BCNR’s final

denial. See Compl. At this stage, the BCNR considered all evidence in Mr. Myles’s prior

petitions, including his own statements, the Physician Advisor’s report, VA records (and Mr.

Myles’s eighty percent VA disability rating), and Mr. Myles’s service records. AR 1–2; see AR

12–16. These records detail Mr. Myles’s misconduct consisting of unauthorized absences and

missing ship movement. AR 4. They also show that during this same period, Mr. Myles was

raped by an unknown shipmate while onboard the USS BATAAN, learned of a close friend’s

death by suicide, had significant marital troubles with his new wife, and sought treatment

4

The page numbers cited to for Plaintiff’s filings correspond to the page numbers generated by

the Court’s electronic case filing system. See Compl.; Pl.’s Resp; Pl.’s Reply.

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following two suicide attempts. AR 13–14, 27–45, 65–66, 67–70, 73–74, 82–83, 149. The

records contain favorable evaluation reports in 2004 and early 2005, as well as medical records

related to Mr. Myles’s psychiatric treatment in 2005. AR 63–64. These medical records

document Mr. Myles’s diagnosis of an adjustment disorder—which, in 2005, was not

categorized as a condition constituting a disability. AR 63–64; SECNAVINST 1850.4E, ¶ 2016

(2002). Lastly, the records demonstrate that, following his discharge, Mr. Myles obtained

employment and completed an undergraduate degree, faced additional hardships, and was

ultimately diagnosed with PTSD and major depressive disorder in 2018, thirteen years after

discharge. AR 13, 63–64.

After reviewing the record, the BCNR reported to Mr. Myles that it “found no evidence

that your disability condition impacted your []ability to perform your duties or met the other

criteria for finding of unfitness.” AR 1. It further told him that “other than your misconduct, the

Board found no evidence that you suffered from a mental health condition while on active duty.”

AR 1–2. While a disability determination also requires evidence of a disability rating of at least

thirty percent at the time of the discharge, see 10 U.S.C. § 1201(b)(3)(B), the Board “found no

evidence” of any disability at the time of Mr. Myles’s separation. AR 1–2. Instead, it

considered that he was diagnosed in 2018, not “while on active duty.” AR 2, 12. From this, the

Board found that Mr. Myles was still fit for duty at the time of his separation and thus did not

qualify for a disability discharge. AR 1–2.

Mr. Myles’s Demotion in Rank Is Unrelated to Fitness

On the issue of fitness for duty, Mr. Myles points to his demotion in rank from E-3 to E-1

following his second unauthorized absence and after missing ship movement as evidence that he

was unable to perform the duties of his rank. See Pl.’s Reply at 4. While it is true that Mr.

Myles was “reduc[ed] to the pay grade of E-1,” AR 133–34, this reduction was based on Mr.

Myles’s failure to perform due to his proficiency and stemmed from his misconduct, and not

because of an inherent capability such as a disability. Navy personnel are referred for a

disability evaluation only when “a medical board [] has found the member’s fitness for continued

naval service questionable by reason of physical or mental impairment”—not each time a

servicemember is demoted or reassigned. SECNAVINST 1850.4E, ¶ 3201(a).

The “sole standard to be used” for disability determinations is whether the

servicemember is unfit “because of disease or injury incurred or aggravated while entitled to

basic pay.” Id. ¶ 3301. This determination is “considered by relating the nature and degree of

physical disability of the member to requirements and duties that member may reasonably be

expected to perform in his or her office, grade, rank or rating.” Id.; see generally Kelly v. United

States, 157 Fed. Cl. 114, 118–19 (2021) (describing considerations for disability fitness

determination). By contrast, Navy personnel may be reduced in rank both “as a punishment”

under Article 15 and “by reason of incompetency,” which is “when members have proven

themselves not qualified to perform properly the duties of their rates.” MILPERSMAN

1450-010; see UCMJ, Art. 15, 10 U.S.C. § 815 (authorizing non-judicial punishment).

Mr. Myles was reduced in rank as a result of his non-judicial punishment under Article

15 and summary court-martial. See AR 115–16. Additionally, he was arguably not qualified to

perform the duties of his rank because of his absences. In either case, Mr. Myles was demoted

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because of his failure to perform, not his inability to perform because of a disability. Along with

the rank reduction, Mr. Myles was also required to forfeit pay of “$500.00 per month for

2 months” for his first absence, which also included “restriction with extra duty for 21 days,” and

“$856.00 for one month” for his second absence. AR 133–34. These monetary sanctions and his

demotion—or “reduction to the next inferior pay grade”—stemmed from Mr. Myles’s UCMJ

offenses and make no reference to disability. AR 134. Taken to its fullest extent, Mr. Myles’s

argument that he should qualify for disability because of his demotion would render a possible

disability discharge for any servicemember that is demoted, regardless of the existence of a

disability condition. But Mr. Myles was not demoted for a disability and was never referred for

a disability evaluation during this period. Though he was unfit for his rank due to his

misconduct, he was not unfit for reasons of disability.

Mr. Myles’s VA Disability Rating Does Not Compel Disability

Separation

Mr. Myles also argues that the BCNR failed to properly consider his eighty percent

disability rating from the VA in determining his fitness for duty, which he says is relevant

evidence. See Compl. at 2; Heisig, 719 F.2d at 1157 (“Under the substantial evidence rule, all of

the competent evidence must be considered, whether original or supplemental, and whether or

not it supports the challenged conclusion.”). The BCNR considered Mr. Myles’s VA rating for

his disabilities but held that “neither were probative on the issue of whether [he was] unfit for

continued naval service . . . [because] eligibility for compensation and pension disability ratings

by the VA is tied to the establishment of service connection and is manifestation-based without a

requirement that unfitness for military duty be demonstrated.” AR 2. In the BCNR’s view, the

VA-established disability rating did not require a finding that Mr. Myles was unfit for military

duty, and therefore did not compel a disability narrative. See Def.’s Mot. at 12–13.

Cases vary on the relative weight to give to the VA’s rating in military disability

separation. Compare Stine v. United States, 92 Fed. Cl. 776, 796 (2010) (“[T]he Navy may—

and routinely does—find that the [VA’s] higher rating is not probative due to that agency’s

distinct rating standard.”), and Pomory v. United States, 39 Fed. Cl. 213, 219 (1997) (“The fact

that the Army gave little weight to the 1994 VA determination would not be arbitrary or

capricious in light of the different purposes of the Army evaluation and the VA evaluation.”),

with Valles-Prieto v. United States, No. 20-589, 2022 WL 1251759, at *6 (Fed. Cl. Apr. 27,

2022) (“The Board dismissed plaintiff’s disability rating, stating that the VA ‘operates under a

different set of laws.’ The Board therefore failed to consider relevant evidence in the form of

plaintiff’s disability rating when it failed to consider the rating in its findings and conclusion.”)

(internal citation omitted).

Regardless of how the BCNR weighs the VA rating, the BCNR is required to consider all

relevant evidence—including VA ratings—but “it is not bound by them” because of the differing

goals of each approach. Stine, 92 Fed. Cl. at 795, aff’d, 417 F. App’x 979 (Fed. Cir. 2011).

Specifically, “the Navy takes a snapshot of the service member’s condition at the time of

separation from the service, while the [VA] evaluates and adjusts disability ratings throughout

the individual’s lifetime.” Id. Because the VA’s rating can reflect recent changes in disability

conditions, especially for illnesses that manifest over time like PTSD, a VA rating does not

necessarily indicate that the servicemember was disabled at the time of separation. Id. Overall,

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so long as the BCNR considered Plaintiff’s VA rating, the Board met the standard for review.

And here, the BCNR stated to Mr. Myles that it “considered your current combined VA rating.”

AR 2.

The Department of Defense Guidance on Correcting Military

Records Does Not Compel the BCNR’s Outcome

Finally, Mr. Myles states that the BCNR should have been more deferential in

considering its determination given Department of Defense guidance that advocates for

modifications of discharges caused by mental health conditions, sexual assault, or sexual

harassment. See Pl.’s Resp. at 1; Pl.’s Reply at 2; Pl.’s Reply Ex. B at 8–9 (Sec’y of Def.,

Memorandum for Secretaries of the Military Departments, Supplemental Guidance to Military

Boards for Correction of Military / Naval Records Considering Discharge Upgrade Requests by

Veterans Claiming Post Traumatic Stress Disorder (Sept. 3, 2014) (the “Hagel Memorandum”)).

Mr. Myles is correct that as the Department of Defense has grappled with a history of

sexual trauma in the military branches, it has sought to “ensure[] fair and consistent standards of

review for veterans with mental health conditions, or who experienced sexual assault or sexual

harassment” that often went unreported. Pl.’s Reply Ex. D at 13 (Sec’y of Def., Memorandum

for Secretaries of the Military Departments, Clarifying Guidance to Military Discharge Review

Boards And Boards for Correction of Military / Naval Records Considering Requests by

Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault,

or Sexual Harassment (Aug. 25, 2017) (the “Kurta Memorandum”)). This guidance directs that

boards give “liberal consideration” to petitions like Mr. Myles’s and “special consideration” for

VA “determinations which document PTSD or PTSD-related conditions connected to military

service.” Pl.’s Reply Ex. B at 10 (Hagel Memorandum). In line with this guidance, Mr. Myles’s

second BCNR petition did grant partial relief and re-characterized his separation to an honorable

discharge. See AR 14 (“Applying the liberal consideration standard discussed above, the

Majority found that Petitioner’s misconduct was substantially mitigated by the factors discussed

above, primarily his undiagnosed mental health conditions and his struggle with these conditions

arising from the MST that he suffered.”).

However, while the Department of Defense guidance directs the BCNR to “fully and

carefully consider every petition based on PTSD,” it “is not intended to interfere with or impede

the Board’s statutory independence to correct errors or remove injustices through the correction

of military records.” Pl.’s Reply Ex. B at 8 (Hagel Memorandum). The guidance only directs

that the BCNR follow a comprehensive procedure, but does not direct an outcome: The “liberal

consideration” given to all petitions “does not mandate an upgrade.” Pl.’s Reply Ex. D at 17

(Kurta Memorandum). Therefore, the BCNR did not act in a manner contrary to law in granting

only partial relief, and this Court cannot substitute its judgment for the judgment of a military

correction board. Heisig, 719 F.2d at 1156.

Substantial Evidence Supports the BCNR’s Fitness Determination

Ultimately, the BCNR’s determination that Mr. Myles was fit for duty at the time of his

discharge is supported by substantial evidence. The BCNR determined that Mr. Myles was not

impaired by a disability that prevented him from active-duty service. AR 1–2, 14. Its decision

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was based on his favorable evaluation reports, the unknown impact of his military sexual trauma,

and his lack of a qualifying disability diagnosis following a psychiatric consultation at the time.

AR 1–2, 12–14. Each of these factors provide substantial evidence that “a reasonable mind

might accept as adequate to support a conclusion” that Mr. Myles was fit for service. See Strand,

951 F.3d at 1351 (quoting Consol. Edison Co. of N.Y., 305 U.S. at 229). It does not mean that

Mr. Myles did not have PTSD or major depressive disorder at the time of his separation or that

substantial evidence does not exist to also suggest that Mr. Myles was unfit for duty. However,

this Court can only deny the Government’s motion if the BCNR failed to come to a reasonable

conclusion after considering the relevant evidence, or otherwise acted in a manner that was

arbitrary, capricious, or otherwise not in accordance with law. See Riser, 97 Fed. Cl. at 683–84

(quoting Heisig, 719 F.2d at 1157). And here, the BCNR’s conclusion was not unreasonable.

3. The BCNR’s Second Ground for Denial Is Supported by Substantial

Evidence

The BCNR’s second ground for holding that Mr. Myles was “ineligible for disability

processing” was predicated on its finding that “disability regulations direct misconduct

processing to supersede[] disability processing when the misconduct qualified for a punitive or

Other Than Honorable discharge.” AR 2. On this point, too, the Government argues that the

BCNR is supported by substantial evidence and did not act in a manner that was arbitrary,

capricious, or contrary to law. Def.’s Mot. at 9, 14–16.

Mr. Myles’s Misconduct Proceeding Precluded a Disability

Discharge

Federal statutes authorize the Navy to issue servicemembers administrative discharges for

either misconduct or disability. See 10 U.S.C. §§ 1201–1203 (authorizing retirement and

separation for physical disability); 10 U.S.C. § 1169 (2005) (authorizing discharges “as

prescribed by the Secretary,” “by sentence of a general or special court martial,” or “as otherwise

provided by law”). These statutes do not distinguish between misconduct or disability for

narrative purposes when a servicemember qualifies for discharge based on both. However, the

disability regulation in effect at the time of Mr. Myles’s separation instructed that “[p]rocessing

for punitive discharge and processing for administrative discharge for misconduct takes

precedence over processing for disability.” SECNAVINST 1850.4E, ¶ 1002(b) (2002).

Though “disability statutes do not preclude disciplinary separation,” disciplinary or

misconduct actions—such as “administrative involuntary separation for misconduct”—

“normally supersede disability separation or retirement.” SECNAVINST 1850.4E, ¶ 3403(a);

see Def.’s Mot. Ex. 2, at 1. Stated differently, when Navy personnel qualify for separation for

both disability and misconduct, the misconduct is the basis for separation. See Malcolm v.

United States, 752 F. App’x 973, 977 n.2 (Fed. Cir. 2018) (recognizing that SECNAVINST

1850.4E “mandate[s] that misconduct discharge proceedings take precedence over processing for

disability”) (citing Malcolm v. United States, No. 17-1417, 2018 WL 1770525 at *3 (Fed.

Cl. 2018)).

The United States Court of Federal Claims has noted that this mandate does not prevent a

plaintiff from receiving benefits in all instances, and that “a plaintiff might be able to establish

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eligibility for benefits under SECNAVINST 1850.4E, ¶ 3414.b despite the misconduct

discharge.” Malcolm, 752 F. App’x at 977 n.2 (citing Malcolm, 2018 WL 1770525, at *3).

Under this regulation, a servicemember that is unable to appreciate the nature and quality of their

misconduct cannot be held responsible for their acts. See Kelly, 157 Fed. Cl. at 131 n.13 (citing

SECNAVINST 1850.4E, ¶ 3414.b). However, this would not apply to Mr. Myles because he

never presented an argument alleging that he could not be held responsible for his absences. See

id.; cf. Meyer v. United States, 127 Fed. Cl. 372, 383 (2016) (describing how a “soldier may be

discharged for misconduct despite having a medical condition that fails Army medical retention

standards” unless, under Army regulations, “the medical condition is the direct or substantial

contributing cause of the misconduct”).

Mr. Myles did not have a disability diagnosis at the time of his discharge. While he was

diagnosed with an adjustment disorder in 2005, adjustment disorders did not then qualify as a

disability. See SECNAVINST 1850.4E, ¶ 2016. But even if he did have a qualifying disability

during the administrative separation proceedings, SECNAVINST 1850.4E would have required

that the discharge narrative be only for misconduct. See Kelly, 157 Fed. Cl. at 131 (citing

Malcolm, 752 F. App’x at 977 n.2).

Mr. Myles’s Misconduct Proceeding Also Precluded Any

Disability Processing

One of Mr. Myles’s arguments for amending his discharge narrative is that he should

have been medically examined for disability during his separation, but never received medical

services. See AR 71–72, 77–78, 86–87. Typically, an active-duty servicemember with disability

conditions will apply for evaluation by a physical evaluation board (“PEB”), which rates the

level of disability under the VA rating system and processes the servicemember for disability

discharge or retirement when he meets the requirements of 10 U.S.C. §§ 1201 and 1203. See

generally Barnick v. United States, 591 F.3d 1372, 1374–75 (Fed. Cir. 2010) (explaining

disability retirement process); Walls, 582 F.3d at 1365 (same). Mr. Myles allegedly was never

examined by a PEB or received medical services beyond his psychiatric evaluation. See AR 67,

73.

But even if Mr. Myles was processed through a PEB prior to his discharge, disability

regulations under SECNAVINST 1850.4E would have again mandated that his processing for

misconduct supersede his disability processing:

Whenever a member is being processed through the PEB and, subsequently

the member is processed for an administrative involuntary separation for

misconduct, disciplinary proceedings which could result in a punitive

discharge, or an unsuspended punitive discharge is pending, or is pending

separation under provisions that authorize a characterization of service of

Under Other Than Honorable conditions (UOTH), disability evaluation

shall be suspended and monitored by the PEB.

SECNAVINST 1850.4E, ¶ 3403(a) (emphasis added).

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Therefore, even assuming that Mr. Myles were found to have a qualifying disability and

disability processing were initiated through a PEB, the PEB proceeding would have been

suspended and superseded by the misconduct-related proceedings. Ultimately, SECNAVINST

1850.4E forecloses disability processing. Id. The BCNR could retroactively re-classify Mr.

Myles’s discharge to “honorable” as a reflection of the characterization of service and “liberal

consideration . . . for mental health conditions” that mitigated his misconduct. AR 2; see AR 14.

But Mr. Myles’s discharge, whether honorable or not, was always a misconduct discharge that

could not be amended unless the Board found that Mr. Myles was not responsible for his

misconduct—an issue Mr. Myles never contested. AR 2; see Malcolm, 752 F. App’x at 977 n.2

(citing Malcolm, 2018 WL 1770525, at *3).

The Department of Defense Guidance on Correcting Military

Records Only Applies to Characterization of Service

On this point, the BCNR also noted that “the liberal consideration policy for mental

health conditions only applies to upgrades of characterization of service and not to obtaining

military disability benefits.” AR 2. The Department of Defense guidance on correcting

discharges caused by mental health conditions, sexual assault, or sexual harassment is targeted to

the correction of military records “for the purposes of upgrading [servicemember] discharges

based on claims of previously unrecognized [PTSD].” Pl.’s Reply Ex. B at 8 (Hagel

Memorandum). The guidance similarly notes that “[l]iberal consideration will be given in

petitions for changes in characterization of service,” and “will also be given in cases [where

PTSD] . . . might have mitigated the misconduct that caused the under other than honorable

conditions characterization of service.” Pl.’s Reply Ex. B at 10 (Hagel Memorandum). But the

guidance does not discuss applying this liberal consideration to discharge narratives. Updates to

the Department of Defense guidance specifically highlight that:

[c]hanges to the narrative reason for a discharge and/or an upgraded

character of discharge granted solely on equity, injustice, or clemency

grounds normally should not result in separation pay, retroactive

promotions, the payment of past medical expenses, or similar benefits that

might have been received if the original discharge had been for the revised

reason or had the upgraded character.

Pl.’s Reply Ex. E at 20–21 (Sec’y of Def., Memorandum for Secretaries of the Military

Departments, Guidance to Military Discharge Review Boards and Boards for Correction of

Military / Naval Records Regarding Equity, Injustice, or Clemency Determinations (July 25,

2018) (the “Wilkie Memorandum”)). This clarified that the Department of Defense guidance

only applies to discharge characterization, and not discharge narratives that impact benefits. Cf.

Philippeaux v. United States, No. 20-275, 2020 WL 7042908, at *9 (Fed. Cl. Dec. 1, 2020) (“By

its own terms, [Department of Defense guidance] applies to petitions for changes in discharge

characterizations, not to BCNR determinations with respect to disability benefits.”).

Mr. Myles Qualified for a Misconduct Separation

Lastly, the BCNR held that “[d]isability regulations direct misconduct processing to

supersede[] disability processing when the misconduct qualified for a punitive or Other Than

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Honorable discharge,” and concluded that Mr. Myles’s missing movement and absences made

him eligible for an other than honorable discharge. AR 2. This finding is also consistent with

military regulations, which authorize separation when a servicemember commits a serious

offense. See MILPERSMAN 1910-142. Mr. Myles was convicted at summary court-martial and

then administratively separated with the stated reason of “Misconduct (Serious Offense).” AR

138; see AR 116. The separation was administrative and he was originally awarded a general

discharge, which was later re-characterized as honorable. However, he qualified for an other

than honorable discharge because, under the UCMJ, the maximum punishment for the

misconduct underlying his separation included a punitive discharge. See UCMJ, Art. 87, 10

U.S.C. § 887; MILPERSMAN 1910-142 (“Members may be separated based on commission of a

serious military or civilian offense when . . . offense would warrant a punitive discharge per [the

Manual for Courts-Martial, appendix 12].”); Manual for Courts-Martial, United States (2005

ed.), app. 12 (authorizing punitive discharge for missing movement); AR 138.

Overall, the BCNR’s refusal to amend Mr. Myles’s discharge narrative is supported by

substantial evidence and not contrary to Navy regulations or law. Mr. Myles was discharged for

misconduct, which “supersede[s] disability separation or retirement,” SECNAVINST

1850.4E, ¶ 3403(a), and therefore required a discharge narrative reflecting the same.

Accordingly, the Government’s Motion for Judgment on the Administrative Record is

GRANTED, and Plaintiff’s Cross-Motion for Judgment on the Administrative Record is

DENIED.

C. Motion to Supplement the Administrative Record

Finally, Mr. Myles attached documents to his Response brief with the request that the

Court review and consider them alongside the Administrative Record. See Pl.’s Resp. at 3, 4–11;

Pl.’s Reply; see also Def.’s January 10, 2022 Status Rep., Docket No. 17 (demonstrating that

Plaintiff indicated to Government counsel that he intended to “enter these ‘relevant portions of

my record’ into evidence”). While Mr. Myles did not submit a formal “Motion to Supplement

the Administrative Record,” under a liberal pleading standard for pro se plaintiffs, this Court will

construe this request as a motion to supplement. See Erickson, 551 U.S. at 94 (“[A] document

filed pro se is to be liberally construed.”) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

The Government objects to admitting the documents because Mr. Myles did not provide them in

his BCNR submission even though they were in his possession. See Def.’s Reply at 4–7.

1. Standard of Review

The administrative record of the proceedings below “must be certified by the agency and

filed with the court.” RCFC 52.1(a). Parties are permitted to supplement the record with

additional evidence, but their ability to do so is limited because of the restricted scope of judicial

review. Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009). The

“focal point for judicial review should be the administrative record already in existence, not

some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142

(1973). This prevents courts from “using new evidence to convert the arbitrary and capricious

standard into effectively de novo review,” which is not the standard of review for military

decisions in the Court of Federal Claims. Axiom, 564 F.3d at 1380 (quotation marks omitted)

(citing Murakami v. United States, 46 Fed. Cl. 731, 735 (2000), aff’d, 398 F.3d 1342 (Fed. Cir.

15

2005)); see also Walls, 582 F.3d at 1367 (“[I]t has become well established that judicial review

of decisions of military correction boards is conducted under the APA.”).

Therefore, supplementing the administrative record is only permitted in “cases in which

the omission of extra-record evidence precludes effective judicial review.” Axiom, 564 F.3d at

1380 (quotation marks omitted) (citing Murakami, 46 Fed. Cl. at 735). The party with new

evidence must “explain why the evidence omitted from the record [would] frustrate[] judicial

review as to the ultimate question of whether [the agency decision] was arbitrary and

capricious.” AgustaWestland N. Am., Inc. v. United States, 880 F.3d 1326, 1332 (Fed. Cir. 2018)

(citing Axiom, 564 F.3d at 1379–80).

2. The Supplementary Evidence Cannot Be Admitted

There are two reasons that Mr. Myles’s request to supplement the record cannot be

granted. First, as the Government argues, Mr. Myles could have submitted this evidence to the

BCNR but failed to do so. See Def.’s Reply at 5. This prevents the evidence from being added

to the administrative record now. Barnick, 591 F.3d at 1382 (“[W]here evidence could have

been submitted to a corrections board and was not, the evidence is properly excluded by the

Court of Federal Claims.”) (citing Walls, 582 F.3d at 1368).

Included among Mr. Myles’s submission are documents from his January 2005

emergency department psychiatric consultation and other records from medical care received

during his military service. See Pl.’s Resp. at 4–11. Although they were considered by the VA

during his VA benefit proceedings, Mr. Myles did not include them in his BCNR petitions. See

AR 45. Mr. Myles also appeared to reject the Government’s offer to stay proceedings in this

case to provide him an opportunity to submit these records to the BCNR at this point. See Def.’s

Reply at 5; Def.’s January 10, 2022 Status Rep. Because the records were never submitted to the

BCNR, they are not in the administrative record and the evidence cannot be considered now.

Barnick, 591 F.3d at 1382. To do so would effectively require de novo review. See Axiom, 564

F.3d at 1379–80.

Second, Mr. Myles has not demonstrated why exclusion of this evidence would frustrate

effective judicial review. See AgustaWestland, 880 F.3d at 1332. Because the BCNR did not

have the evidence in the first instance, the records have little impact on the question of whether

the BCNR’s refusal to correct Mr. Myles’s military records was supported by substantial

evidence. While the records provide additional support that Mr. Myles suffered from a mental

health disability during his military service, they do not offer any basis to challenge the BCNR’s

decision as arbitrary, capricious, or contrary to law.

For example, the records support what the BCNR already held—that Mr. Myles had

“undiagnosed mental health conditions . . . arising from the MST that he suffered.” AR 14. But

they do not require a finding that the BCNR’s determination lacked substantial evidence, or that

the BCNR procedurally erred in applying the Navy regulation that precluded re-designation of

this discharge. Mr. Myles essentially asks this Court to re-weigh the evidence that was before

the Board and make its own determination on the merits using new evidence. This Court cannot

do so. See Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002) (“[T]he substance of

[military] decisions, like many other judgments committed to the discretion of government

16

officials, is frequently beyond the institutional competence of courts to review.”) (citing Voge v.

United States, 844 F.2d 776, 780 (Fed. Cir. 1988); Taylor v. United States, 199 Ct. Cl. 171, 174

(1972) (“This court will not reweigh the evidence presented at plaintiff’s court-martial in order

that it might substitute its judgment for that of the military trial court.”).

Therefore, Plaintiff’s request to supplement the administrative record with additional

medical records of his military service is DENIED.

III. Conclusion

For the reasons set forth above, the Government’s Motion for Judgment on the

Administrative Record is GRANTED. Plaintiff’s Cross-Motion for Judgment on the

Administrative Record and Motion to Supplement the Administrative Record are DENIED. The

Clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ Carolyn N. Lerner

CAROLYN N. LERNER

Judge

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