Blanco v. Wormuth

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DAVID A. BLANCO, :

:

Plaintiff, : Civil Action No.: 22-1883 (RC)

:

v. : Re Document Nos.: 11, 13

:

CHRISTINE E. WORMUTH, :

:

Defendant. :

MEMORANDUM OPINION

GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-

MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiff David A Blanco (“Plaintiff” or “Blanco”) brings the instant action against

Christine E. Wormuth in her official capacity as the United States Secretary of the Army, 1

claiming that the Army Board for Correction of Military Records (the “ABCMR”) violated the

Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et. seq., in denying his application to

remove certain adverse information from his military records. For the reasons explained below,

the Court grants Blanco’s motion for summary judgment and denies the Army’s cross-motion for

summary judgment. The Court therefore remands the matter to the ABCMR.

BACKGROUND

A. Factual Background

Blanco enlisted in the United States Army Reserves on October 20, 1989. Pl.’s Mem.

Supp. Pl.’s Mot. Summ. J. (“Pl.’s Mot. Summ. J.”) at 1, ECF No. 11. While enlisted, he served a

1

Because Blanco is suing Secretary Wormuth in her official capacity as the Secretary of

the Army, this opinion will refer to Defendant as “the Army.”

combat tour in Afghanistan. Id. at 2. In February 2004, while in Afghanistan, Blanco was issued

a non-judicial punishment (“NJP”) under Article 15 of the Uniform Code of Military Justice

(“UCMJ”) after he was allegedly found sleeping while on duty and then willfully disobeyed an

order to stand “at ease.” See Joint App. at 39–40, 42, ECF No. 18. Sergeant First Class Dencil

Harrison recalled that, although he had shone a flashlight into the pickup truck where Blanco was

sitting on duty, Blanco did not react to the light and had his eyes closed. Id. at 44. Blanco then

denied that he had been sleeping and, despite Harrison’s order to stand at ease, continued to talk

and stated that “[Harrison] was not in his chain of command and that he didn’t have to listen to

[Harrison].” Id. According to the NJP, this incident was not the first time Blanco had been

accused of sleeping while on duty. Id. at 42. As a result, Blanco was reduced in rank to

Sergeant/E5 and given 45 days of extra duty, and a record of the NJP was placed in his Army

Military Human Resource Record (“AMHRR”). Pl.’s Mot. Summ. J. at 2.

In 2010, Blanco was commissioned as a Second Lieutenant in the Army Reserves. Id.

While attending the Infantry Basic Officer Leadership Course, Blanco was issued a general

officer memorandum of reprimand (“GOMOR”) on August 29, 2011 for “conduct unbecoming

of an officer for exercising extreme insensitivity toward the religious practices of an Afghan

officer.” Joint App. at 326. According to the GOMOR, Blanco had gone to a local restaurant

with a group of other students, including a visiting student officer from Afghanistan. Id. Under

the impression that the ribs at the restaurant were made from beef, the Afghan student began

eating the ribs. Id. “Fully aware of the religious prohibition against consuming pork products,”

Blanco then videotaped the student as he ate the ribs. Id. Seeking to “evoke a ‘funny’ reaction

from the Muslim officer and to capture that reaction on camera,” Blanco then “made

inappropriate comments to the effect of, ‘Is it sweet?’ and ‘It’s Ramadan and you’re eating

2

pork.’” Id. The “immature and insensitive act was aggravated when it was revealed that the rib

was actually a pork product,” rather than being made of beef. Id. 2 An investigation following

the incident, however, found that the individuals involved had not knowingly fed the Afghan

student pork, but stated that Blanco “did knowingly commit an act of cruelty towards [the

Afghan student] by making statements to him while videotaping him eating a rib to ‘get a

reaction out of him.’” See id. at 344. In response to the GOMOR, Blanco apologized for his

actions, describing them as “immature and insensitive,” and stating that he had not had a “desire

to be cruel or to embarrass, degrade or insult anyone’s religious beliefs or cultural mores.” Id. at

331. He also noted that he had apologized to the two students involved. Id. at 332.

In March 2012, Blanco was promoted to the rank of First Lieutenant. Pl.’s Mot. Summ.

J. at 3. Then, in May 2016, a Promotion Selection Board selected Blanco for promotion to the

rank of Captain. Id. at 4. Subsequently, however, the post-selection screening process for

promotions flagged that Blanco had received the NJP and GOMOR. See Joint App. at 70. The

Army’s Human Resources Command then issued a memorandum stating that Blanco’s records

would be referred to a Promotion Review Board, which would recommend one or more of the

following: that Blanco “be retained on the promotion list,” that “[his] name be removed from the

promotion list,” and that “[he] show cause for retention on active duty.” Id.

In July 2017, the Promotion Review Board voted to remove Blanco from the promotion

selection list and to require that he “show cause for retention in an active status as a result of

misconduct and moral and professional dereliction,” citing the NJP and GOMOR. Id. at 74. On

May 14, 2018, then-Secretary of the Army Mark T. Esper removed Blanco from the promotion

2

Although the GOMOR only notes Blanco’s actions with respect to the Afghan student,

the investigation into the incident indicates that a Surinamese officer also ate the ribs, was filmed

by Blanco while doing so, and was upset by the recording. See Joint App. at 341.

3

list and directed the Commanding General of the Army Reserve Command to initiate elimination

proceedings, id. at 521, or administrative separation, Pl.’s Mot. Summ. J. at 5.

In March 2019, a Board of Inquiry (“BOI”) was convened to determine whether Blanco

should be separated from or retained in the Army. See Joint App. at 60–69. The BOI was also

charged with stating findings as to whether Blanco committed the misconduct alleged in the NJP

and GOMOR. See id. The BOI concluded that Blanco did not “commit intentional neglect or

failure to perform assigned duties” or “commit conduct unbecoming an officer,” and further

recommended that Blanco be retained. Id. at 69.

According to Blanco, because the “BOI results were not yet entered into [his] records”

and the NJP and GOMOR remained in his file, however, he was once again not selected for

promotion to the rank of Captain. Pl.’s Mot. Summ. J. at 6. Per Army policy, reserve officers

who were not selected for promotion twice were required to be separated from the Army unless

certain exceptions applied. See Joint App. at 77. On October 1, 2019, the Army issued a

memorandum advising that because Blanco had not been selected for promotion twice, his

“transition from an active status” was “mandatory.” Id.

In November 2019, Blanco requested that the Army’s Suitability Evaluation Board

(“DASEB”) transfer the NJP and GOMOR from his AMHRR, arguing in part that the BOI had

found “that the preponderance of evidence did not support or substantiate the derogatory

information in [his] file.” Id. at 81. But the DASEB “determined there [was] insufficient

evidence to justify removal or transfer of the unfavorable information to the AMHRR restricted

section,” id. at 92, concluding unanimously that “[t]he evidence presented [did] not provide

substantial evidence that the documents in question have served their intended purposes or are

untrue or unjust, and that their transfer would be in the best interest of the Army,” id. at 125.

4

As the DASEB explained, to remove a GOMOR from the AMHRR, an appellant has the

burden of proof “to provide evidence of a clear and convincing nature that the document is

untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the

AMHRR.” Id. at 130. Although Blanco put forward that the BOI had found that “the

preponderance of evidence did not support or substantiate the derogatory information in his

AMHRR,” the DASEB stated, neither the DASEB nor the imposing authority (“IA”)—the

command that issued the GOMOR—was bound by the BOI. Id. at 131. According to the

DASEB, the BOI was only “limited to making a determination on whether to retain (with or

without reassignment) an officer on active duty or to eliminate an officer.” Id. The DASEB

found that Blanco had not provided “clear and convincing evidence the GOMOR [was] unjust, or

that he should not be held liable for the alleged misconduct addressed in the GOMOR,” and had

also not “submit[ted] a letter from the IA stating the reprimand [was] unjust or untrue or new

evidence was being considered or discovered.” Id.

Alternatively, Blanco had also requested that the NJP and GOMOR be transferred to the

restricted portion of his AMHRR, which requires that “the appellant . . . show by substantial

evidence that [the derogatory documents] have served their intended purpose and that it is in the

best interest of the Army to transfer them.” Id. Despite recognizing that Blanco had received the

NJP and GOMOR years prior, had earned a number of awards and promotions, and had been

retained by the BOI, the DASEB stated: “Given the seriousness of the appellant’s misconduct,

his many years of experience, his rank and position, and his maturity in understanding proper

conduct, it does not appear that the appellant has demonstrated that the intent of the derogatory

documents have not been served.” Id. at 132. Accordingly, the DASEB concluded, Blanco

5

“[had] not provided sufficient evidence to show the [NJP] and GOMOR have served their

intended purposes or that it is in the best interest of the Army to transfer them at this time.” Id.

Blanco was “forced into retirement” in May 2020. Pl.’s Mot. Summ. J. at 6–7. That

same month, he requested that the ABCMR remove the NJP and GOMOR from his AMHRR.

Joint App. at 32. Blanco raised a number of arguments in support. See id. at 33–36. First, he

contended, he did not engage in inappropriate conduct and the BOI was a “more reliable forum”

for assessing Blanco’s conduct than the circumstances under which the GOMOR was issued.

See id. at 33–34. Second, Blanco stated, he had taken remedial training and appropriate

corrective action. Id. at 34. Third, he argued that the investigation leading to the GOMOR

was—unlike the BOI—“incomplete” because it “failed to account for different versions of what

happened, failed to reconcile those differences, and did not address biases of those personnel

involved.” Id. Fourth, he alleged that the government had not kept his exhibits or a summarized

transcript from the BOI, thus preventing him from demonstrating to the DASEB that the

underlying conduct had not occurred. Id. at 35; see also Pl.’s Mot. Summ. J. at 11. Fifth, the

NJP and GOMOR had served their intended purpose, according to Blanco, because he had since

“excelled” as a leader in various positions, but the GOMOR was “preventing further service.”

Joint App. at 35. Sixth, Blanco requested that the ABCMR consider various documents—

recommendations, officer evaluation reports, and ABCMR decisions supporting removal—that

“demonstrate[] that the GOMOR has served the intended purpose.” Id. Seventh, Blanco argued,

previous ABCMR decisions, including one in which the applicant had been promoted since

receiving a GOMOR, supported removal of the NJP and GOMOR. Id. Eighth, and finally,

Blanco contended that his being precluded from serving was an “injustice to him, the United

States Army and the nation” in light of the existing global circumstances. Id. at 36.

6

After summarizing the documentation and arguments that Blanco had put before it, the

ABCMR concluded as follows:

After reviewing the application, and all evidence provided, the Board determined relief is

not warranted. The applicant’s contentions, the military record, and regulatory guidance

were carefully considered. Regulatory guidance provides that once a reprimand is filed

in the OMPF, the reprimand and associated documents are permanent unless removed by

the appropriate authority. Furthermore, once an official document has been properly filed

in the OMPF, it is presumed to be administratively correct and to have been filed

pursuant to an objective decision by competent authority. Thereafter, the burden of proof

rests with the individual concerned to provide evidence of a clear and convincing nature

the document is untrue or unjust, in whole or in part, thereby warranting its alteration or

removal from the OMPF. The Board agreed the criteria allowing for the removal of the

GOMOR from his OMPF was not met. The Board also agreed the evidence does not

constitute a basis to support the setting aside of punishment, and the UCMJ has not

served its purpose. Based upon a preponderance of the evidence, the Board determined

there is insufficient evidence to grant any of the requested relief.

Id. at 25.

B. Procedural Background

On June 30, 2022, Blanco filed his Complaint in this Court to challenge the ABCMR’s

decision under the APA. See generally Compl., ECF No. 1. He asks that the Court hold

unlawful and set aside the ABCMR’s decision, then remand the matter to the ABCMR. Id. at 8.

Blanco has moved for summary judgment. See generally Pl.’s Mot. Summ. J. The Army

opposes Blanco’s motion and has also cross-moved for summary judgment. See generally Def.’s

Cross-Mot. Summ. J, ECF No. 13; Def.’s Opp’n Pl.’s Mot. Summ. J., ECF No. 14. Blanco

opposes the Army’s cross-motion for summary judgment. See generally Pl.’s Opp’n Def.’s

Cross-Mot. Summ. J., ECF No. 15. Each has replied to the other’s opposition. See generally

Pl.’s Reply Def.’s Opp’n, ECF No. 16; Def.’s Reply Pl.’s Opp’n, ECF No. 17. The pending

motions are now ripe for consideration.

7

LEGAL STANDARD

Where a court reviews a final agency action under the APA, 5 U.S.C. § 706, the usual

standard under Federal Rule of Civil Procedure 56(a) does not apply to motions for summary

judgment because of the court’s limited role in reviewing the administrative record. Albino v.

United States, 78 F. Supp. 3d 148, 163 (D.D.C. 2015). Instead, under the APA, “the function of

the district court is to determine whether or not as a matter of law the evidence in the

administrative record permitted the agency to make the decision it did.” Id. (quoting Occidental

Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985)). “Summary judgment thus serves as the

mechanism for deciding, as a matter of law, whether the agency action is supported by the

administrative record and otherwise consistent with the APA standard of review.” Id. (citing

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

A court may set aside an agency action only if it was “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This arbitrary and

capricious standard is “highly deferential” and “presumes the agency’s action to be valid.” Env’t

Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981). The scope of this review “is

narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs.

Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “[A] reviewing court

may not set aside an agency [decision] that is rational, based on consideration of the relevant

factors and within the scope of the authority delegated to the agency by the statute,” so long as

the agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its

action including a ‘rational connection between the facts found and the choice made.’” Id. at 42–

43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). A court

upholds an agency’s decision when it can “reasonably . . . discern[ ]” the agency’s path, Pub.

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Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993), even when the agency provides only a

“brief statement” explaining “why it chose to do what it did,” Tourus Records, Inc. v. DEA, 259

F.3d 731, 737 (D.C. Cir. 2001) (internal quotation marks omitted).

Review of the ABCMR’s decisions requires “an unusually deferential application of the

‘arbitrary and capricious’ standard” because the ABCMR is a military board. Jenkins v. Speer,

258 F. Supp. 3d 115, 124 (D.D.C. 2017) (quoting Kreis v. Air Force, 866 F.2d 1508, 1514 (D.C.

Cir. 1989)). “A court will disturb only the military board’s ‘most egregious’ decisions.” Id.

“[T]he function of [the court] is not to serve as a super correction board that reweighs the

evidence.” Poole v. Harvey, 571 F. Supp. 2d 120, 124 (D.D.C. 2008) (quoting Epstein v. Geren,

539 F. Supp. 2d 267, 275 (D.D.C. 2008)). Thus, a court’s review of the ABCMR’s decisions

“focuses not on whether the Army was ‘substantively correct’ . . . but rather on whether the

ABCMR’s explanations for that choice demonstrate that [a] defendant[ ] ‘permissibly exercised

[its] discretion and made a choice that is supported by at least substantial evidence.’” Albino, 78

F. Supp. 3d at 164 (quoting Hill v. Geren, 597 F. Supp. 2d 23, 29 (D.D.C. 2009)). The court

“need only find that the decision of a military review board ‘minimally contains a rational

connection between the facts found and the choice made.’” Id. (quoting Frizelle v. Slater, 111

F.3d 172, 176 (D.C. Cir. 1997)). A plaintiff who seeks a correction of military records at the

ABCMR bears the burden of proof. Jenkins, 258 F. Supp. 3d at 124.

Even so, the ABCMR’s actions “must be supported by reasoned decisionmaking,” id.

(quoting Haselwander v. McHugh, 774 F.3d 990, 996 (D.C. Cir. 2014)), and “must respond to

the plaintiff’s non-frivolous arguments,” id. (citing Frizelle, 111 F.3d at 177). “[T]he ABCMR

is not entitled to unlimited deference.” Id.

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ANALYSIS

In short, Blanco objects that the ABCMR’s decision did not engage with his arguments,

but instead only “acknowledged all of the evidence [and] then summarily denied relief.” Pl.’s

Mot. Summ. J. at 1. The Army disagrees, arguing that Blanco did not meet the standard for the

relief that he sought from the ABCMR, see Def.’s Cross-Mot. Summ. J. at 18–24, which had

“provided a detailed decision over [20] pages long,” id. at 21. Contrary to the Army’s

characterization of the decision, however, the ABCMR scarcely grapples with any of Blanco’s

evidence, which the ABCMR spends 18 of 19 pages simply recounting or parroting before

rejecting. See Joint App. at 7–25. Accordingly, the Court holds that the ABCMR’s decision was

arbitrary and remands the matter to the ABCMR for further consideration of Blanco’s potentially

non-frivolous arguments.

“It is well-established that a decision by the ABCMR that fails to address a plaintiff’s

non-frivolous, material arguments is arbitrary.” Albino, 78 F. Supp. 3d at 167; see also, e.g.,

Frizelle, 111 F.3d at 177 (concluding that the Coast Guard Board of Correction of Military

Records’ failure to respond to two of the plaintiff’s arguments that “[did] not appear frivolous on

their face and could affect [its] ultimate disposition” rendered its decision arbitrary); Poole, 571

F. Supp. 2d at 126 (finding the ABCMR’s decision to be arbitrary and capricious due to its

failure to address the plaintiff’s non-frivolous and potentially meritorious argument); Appleby v.

Harvey, 517 F. Supp. 2d 253, 266 (D.D.C. 2007), aff’d sub nom. Appleby v. Geren, 330 F. App’x

196 (D.C. Cir. 2009). That decision “need not be ‘a model of analytic precision to survive a

challenge.’” Poole, 571 F.Supp.2d at 124 (quoting Dickson v. Sec’y of Def., 68 F.3d 1396, 1404

(D.C. Cir. 1995)). And in fact, “[a] reviewing court will ‘uphold a decision of less than ideal

clarity if the agency’s path may reasonably be discerned.’” Dickson, 68 F.3d at 1404 (quoting

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Bowman Transp., Inc. v. Arkansas–Best Motor Freight System, 419 U.S. 281, 286 (1974)). But

the ABCMR’s decision must nevertheless “minimally contain ‘a rational connection between the

facts found and the choice made.’” Id. (quoting State Farm, 463 U.S. at 43).

For instance, should the ABCMR disregard a non-frivolous argument,

it must expressly indicate that it has done so. Otherwise neither the plaintiff nor [the]

court would be able to discern whether the ABCMR considered and was unpersuaded by

those factors or whether the ABCMR simply excluded them from its decision making

process. Moreover if the ABCMR excludes those factors from consideration it must

explain its rationale for doing so.

Rudo v. Geren, 818 F. Supp. 2d 17, 26 (D.D.C. 2011) (quoting Puerto Rico Higher Educ.

Assistance Corp. v. Riley, 10 F.3d 847, 853 (D.C. Cir. 1993)). That is, “it is not enough for the

ABCMR simply to identify a plaintiff’s non-frivolous arguments without responding to them,

either by addressing the arguments’ merits or explaining why the merits need not be addressed.”

Albino, 78 F. Supp. 3d at 167.

Here, “the ABCMR acknowledged many of Plaintiff’s arguments only to fail to address

or resolve those arguments in any discernible way in its analysis.” Id. The record of the

ABCMR’s proceedings summarizes Blanco’s arguments, see Joint App. at 8–12, and lays out his

history in service, including the NJP, the GOMOR, and his recommendations and awards, see id.

at 12–25. At first glance, it would appear that the ABCMR provides an assessment of the

incident underlying the GOMOR; but in fact, the ABCMR’s record largely parrots the language

in the GOMOR, compare Joint App. at 15–16 with id. at 326, without indicating whether the

ABCMR in fact agrees with the GOMOR’s disapproving appraisal of Blanco’s conduct. It does

not engage with his counsel’s assertion that the Army did not maintain the BOI records, thus

hampering his chances before the DASEB, see id. at 8, 10, nor does it provide any analysis of the

various ABCMR cases Blanco cites in support, see id. at 16–19. And perhaps most importantly,

11

the ABCMR does not grapple with the BOI’s findings that Blanco did not “commit intentional

neglect or failure to perform assigned duties under the provisions of Army Regulation 135-175

(Separation of Officer), paragraph 2-13e(1)” or “commit conduct unbecoming an officer under

the provisions of Army Regulation 135-175, paragraph 2-13p.” Id. at 22. The ABCMR simply

asserts that it “carefully considered” the “applicant’s contentions, the military record, and

regulatory guidance,” and found that “there [was] insufficient evidence to grant any of the

requested relief.” Id. at 25.

At minimum, Blanco has a non-frivolous argument that retention of the NJP and

GOMOR in his records is unjust given the BOI’s findings. Although the language of the BOI’s

conclusions is unclear to the Court, and could be interpreted as stating either that Blanco’s

conduct should not have constituted violations of the relevant regulations or that it believed

Blanco had not even committed the conduct at all, see Def.’s Cross-Mot. Summ. J. at 20–21, the

ABCMR does not provide any reasoning as to why the BOI’s findings should be discounted or

are of no import, see Joint App. at 16, 25. The Army avers that the ABCMR “agreed” with the

DASEB in its decision, and suggests that, because the DASEB provided its own “detailed

accounting,” the ABCMR’s decision is “well-explained and well-supported by the facts in the

administrative record.” Def.’s Cross-Mot. Summ. J. at 21, 23. Indeed, even Blanco assumes that

the ABCMR “simply relied on the analysis of the DASEB.” Pl.’s Mot. Summ. J. at 21; see also

id. at 21 (“The ABCMR ignored the harm and extreme prejudice suffered by Mr. Blanco as a

result, instead arbitrarily relying solely upon the opinion of the DASEB in opting against any

relief requested by Mr. Blanco.”). But the ABCMR did not in fact indicate that it was agreeing

with the DASEB specifically or that it meant to adopt or incorporate the DASEB’s conclusions.

See Joint App. at 25. Contrary to the Army’s objections otherwise, it would seem at least

12

plausible to argue that it would be unjust to retain the NJP and GOMOR in Blanco’s files if the

BOI determined that “the underlying acts were not so serious as to rise to the level of misconduct

outlined” in the Army Regulations. Def.’s Cross-Mot. Summ. J. at 21. If the ABCMR disagrees

with the BOI’s findings, and has chosen to disregard the BOI’s conclusions because the BOI

cannot bind the ABCMR, then the ABCMR should say so.

It is difficult for the Court to assess, however, whether Blanco’s argument regarding the

maintenance of the BOI’s records is non-frivolous. During the ABCMR proceedings, Blanco

asserted that “the Government failed to maintain the records of his BOI other than the recorder’s

packet, the board’s findings, and the script,” and that “[t]he summarized transcript of the

proceedings was not maintained.” Joint App. at 8; see also Pl.’s Mot. Summ. J. at 21 (“The

ABCMR also failed to consider Mr. Blanco’s arguments as to the error and injustice of the

improperly destroyed BOI transcript, including witness testimony and exhibits.”); see also id. at

22 (claiming that Blanco received only a “script” of the BOI hearing and that “[t]he entire

document is almost 100 pages, yet only 6 were left intact”). Now that the Army has included an

excerpt of the BOI transcript in the record, see Joint App. at 687–88, Blanco asserts that he “was

provided with a summarized transcript and informed that was all that existed,” Pl.’s Reply Def.’s

Opp’n at 10. The existence of a full transcript raises the possibility that Blanco may have been

misinformed when told that only a summarized transcript would be available. But the record

does not go so far as to indicate, as Blanco suggests, that other records were not kept or

affirmatively destroyed. See Joint App. at 59. To the extent that Blanco discovered that other

documentation could not be obtained, Blanco did not put that evidence before the ABCMR or

this Court. Further, his contradictory representations regarding the summarized transcript leave

the Court confused as to what he did or did not receive.

13

Thus, at least based on the information available to the Court, it would appear that

Blanco’s argument that the Army failed to maintain or destroyed certain records may have been

unfounded and frivolous at the time of the ABCMR proceedings. The record nevertheless leaves

open the possibility that Blanco did not receive a transcript when he requested one. 3 Given the

Army’s representations that it has now provided Blanco with the relevant records, and

considering that the Army has apparently shown that these records exist, he should consider

whether he has a foundation for reasserting his argument on remand. See Def.’s Reply Pl.’s

Opp’n at 7 (“Defendant, in seeking to respond to Plaintiff’s serious allegation, concluded that the

records were not, in fact, destroyed. In lieu of requiring Plaintiff to attempt to retrieve such

records under the Freedom of Information Act or through a motion for early and expedited

discovery, Defendant provided Plaintiff with a copy of the records.”). And “[o]n remand, the

[ABCMR] is of course free to decline to consider [Blanco]’s claim on the merits, but if it

continues to follow that course, it will have to articulate its reasons for doing so.” Roberts v.

Harvey, 441 F. Supp. 2d 111, 122 (D.D.C. 2006).

The Army also offers various reasons why the NJP and GOMOR are not unjust and

should not be transferred—Blanco’s chain of command had found the reprimands appropriate,

and he had not met the standard for transfer or removal of the derogatory information,

considering that the BOI cannot bind the ABCMR. See Def.’s Cross-Mot. Summ. J. at 18–21,

23–24. Moreover, the Army now distinguishes Blanco’s case from the other ABCMR decisions

that he cites, arguing that each of those other applications expressed remorse and apologized

whereas Blanco had not indicated remorse for his actions. See Def.’s Reply Pl.’s Opp’n at 4–6.

3

The Court does not consider, however, whether Blanco was entitled to such a transcript,

even if one existed at the time of his request.

14

But the ABCMR did not itself articulate any of these reasons for why Blanco did not meet the

requisite standard, nor did it explain why its previous decisions can be distinguished. See Joint

App. at 25. Thus, “[w]hatever the merits of these post-hoc justifications, they . . . cannot be

considered by this Court.” Albino, 78 F. Supp. 3d at 168; see also Poole, 571 F. Supp. 2d at 126

(“[A] court reviewing an agency’s decision must judge the propriety of agency action solely by

the grounds invoked by the agency. Because the [defendant’s] explanation . . . is neither in the

ABCMR decision nor in the administrative record, it is an improper post hoc justification.”

(internal quotation marks and citations omitted)). 4

In sum, because the ABCMR did not address certain of Blanco’s arguments that appear

to be non-frivolous and potentially meritorious, the Court holds the ABCMR’s decision to be

arbitrary and capricious. To be clear, however, the Court does not take a position on the

substance of Blanco’s request for relief. It merely remands the matter to the ABCMR. See

Albino, 78 F. Supp. 3d at 169–70.

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Summary Judgment (ECF No. 11) is

GRANTED, and Defendant’s Cross-Motion for Summary Judgment (ECF No. 13) is DENIED.

The Court remands the matter to the ABCMR to reassess Plaintiff’s claims within the next 180

days. An order consistent with this Memorandum Opinion is separately and contemporaneously

issued.

Dated: October 16, 2023 RUDOLPH CONTRERAS

United States District Judge

4

The Court also notes Blanco’s argument that the “ABCMR appears not to have applied

the proper standard,” but does not address it here given that the matter will be remanded to the

ABCMR for further consideration. Pl.’s Mot. Summ. J. at 20.

15