Becky Roberts v. United States

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2013 Decided January 24, 2014

No. 12-5149

BECKY ROBERTS,
APPELLANT

v.

UNITED STATES OF AMERICA, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00706)

John B. Wells argued the cause and filed the briefs for
appellant.

Alexander D. Shoaibi, Assistant U.S. Attorney, argued
the cause for appellees. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.

Before: ROGERS, Circuit Judge, and WILLIAMS and
GINSBURG, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
 2
GINSBURG, Senior Circuit Judge: Becky Roberts brought
suit in the district court challenging the refusal of the Board
for Correction of Naval Records to amend certain of her
fitness reports. Specifically, Roberts claimed that her raters
violated Navy directives and discriminated against her on the
basis of her gender, and that the Board’s failure to correct
these errors was arbitrary and capricious, in violation of the
Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A),
and deprived her of due process and equal protection, both in
violation of the Fifth Amendment to the Constitution of the
United States. Discerning no violation of the APA or of the
Constitution, the district court entered a summary judgment
for the Government, which we now affirm.

I. Background

Like most employees of the federal government, officers
of the United States Navy receive periodic performance
evaluations, called “fitness reports,” from their superiors. The
preparation of these reports was regulated at all times relevant
to this case by Bureau of Naval Personnel (Bureau)
Instruction 1610.10 (1995), which required that each officer’s
performance be graded by a superior officer on a scale from 1
(unsatisfactory) to 5 (exemplary) for each of several traits,
such as “Tactical Performance” and “Leadership,” and to
average the scores into an “individual trait average.” BUREAU
INSTRUCTION 1610.10 at A-8, A-20. The instruction advised
that: “For the majority of Navy people, most of the trait
grades should be in the 2.0 to 4.0 range,” but it did not limit
the award of scores. Id. The distribution of trait scores could
therefore vary substantially from one rater to another.

Presumably in order to limit the effect of this variance,
Bureau Instruction 1610.10 also required the rating officer to
make one of five recommendations relating to the
 3
subordinate’s potential for promotion: “Significant
Problems,” “Progressing,” “Promotable,” “Must Promote,” or
“Early Promote.” Id. at A-12. The Instruction further advised
that the “recommendation should be consistent with the
performance trait grades, and may also take into account the
difficulty of the assignment and the reporting senior’s
judgment of the member’s likely value to the Navy in the next
higher grades.” Id. The rater’s ability to award strong
promotion recommendations, unlike his ability to award high
trait scores, was strictly limited: In no event could he
recommend more than 20% of the officers in the same rank,
or “summary group,” for “Early Promote;” the combined
percentage receiving recommendations of “Early Promote”
and “Must Promote” might also be capped, depending upon
the rank of the officers in a particular summary group. Id.

Roberts, then a Lieutenant Commander, reported to the
Office of Naval Intelligence (ONI) in February 1996. In
effect at that time was ONI Instruction 1610.2 (1996), which
provided “detailed command guidance in the administration
of [Bureau Instruction 1610.10] within the ... ONI.” ONI
INSTRUCTION 1610.2 at 1. Instruction 1610.2 specified that
the “promotion recommendation will be based on the
individual trait average,” id. at 4, and set forth a “baseline
guide ... to determine promotion recommendations,” id. at 5:

(1) 3.90 or above – Early Promote
(2) 3.50 to 3.89 – Must Promote
(3) 3.00 to 3.49 – Promotable

Id. “For example,” the Instruction explained, “if a member’s
trait average is 3.89, he/she will probably not be
recommended for ‘early promote.’” Id. Due to the upper
limit set forth in Bureau Instruction 1610.10, however, “if
greater than 20 percent of a summary group falls within the
 4
‘early promote’ range, those members with lower trait
averages may be recommended for ‘must promote’ instead.”
Id.

In Roberts’s first fitness report, for the period ending
October 1996, Captain J.R. Bentz gave her a trait average of
4.17 but classified her “Must Promote,” one notch below the
level available under the “baseline guide” quoted above. In
her next fitness report, for the period ending June 1997, the
same rating officer gave Roberts a higher trait average (4.33)
but a lower recommendation, viz., “Promotable.” In his
written comments Captain Bentz explained the lower
recommendation “in no way reflects a decline in her
performance, but a change in the number of officers in the
competitive category.” This explanation, however, was
incorrect; the size of the summary group had not changed. In
her third fitness report while at the ONI, for the period ending
October 1997, Roberts received a trait average of 3.83 but
again was deemed only “Promotable.” In her written
comments, the rater, Captain J.E. Darrah, noted: “New
Reporting Senior. Lower trait mark average does not reflect
decline in performance.”

In 1999 Roberts appealed her June and October 1997
fitness reports to the Board for Correction of Naval Records,
whose function it is to

determin[e] the existence of error or injustice in the naval
records of current and former members of the Navy and
Marine Corps [and] make recommendations to the
Secretary [of the Navy] or ... take corrective action on the
Secretary’s behalf when authorized.

32 C.F.R. § 723.2(b). Roberts claimed her June 1997 fitness
report was erroneous because, among other reasons, Captain
 5
Bentz gave her a lower recommendation for promotion than
the recommendation corresponding to her trait average in ONI
Instruction 1610.2. Roberts faulted her October 1997 fitness
report because, rather than evaluate each officer on his or her
merits, Captain Darrah had decided “to retain all officers in
[the] last promotion recommendation block for the brief ...
reporting period” July through October 1997.

In 2000 the Board denied Roberts’s petition. With
respect to the June 1997 report, the Board acknowledged that
Captain Bentz’s “stated reason for marking [Roberts]
‘promotable,’ which was a ‘change in the number of officers
in the competitive category,’ appeared” to be incorrect. The
Board was not persuaded, however, that Captain Bentz
“should have marked [Roberts] above any of the officers who
were marked ‘must promote’” or that ONI Instruction 1610.2
required him to do so. That Instruction, in the Board’s view,
merely provided “guidance concerning the relationship
between trait average and promotion recommendation; it did
not mandate a certain promotion recommendation for a
certain range of trait averages.” With respect to the October
1997 report, the Board determined there was insufficient
evidence to find Captain Darrah had resolved “to retain all
officers in their last promotion block.” Roberts did not seek
review of the Board’s decision.

As a result of these two contested fitness reports, Roberts
maintains, she was “passed over for Commander on the first
selection board to consider her,” which occurred in 2001. She
was nevertheless promoted to that rank a year later, and for a
time received sterling fitness reports. In May 2005, however,
Roberts again received a recommendation of “Promotable”
despite a trait average of 4.67. According to Roberts, the
rater, Captain W.F. Reiske, explained he gave her a lower
promotion recommendation because “another officer, a male,
 6
was being screened for a third time by the Commander Sea
Screening Board and ... [Reiske] needed to help out ‘fellow
officers.’” Roberts was passed over for promotion to Captain
in 2009 and 2010.

In 2009 Roberts again appealed her June and October
1997 fitness reports to the Board; this time she also
challenged her May 2005 report. With respect to the two
1997 reports, Roberts substantially reasserted the claims made
in her 1999 petition but she offered some new evidence in
support of them. First, she submitted two letters of
recommendation from Captain Bentz, dated 2001 and 2004,
urging Roberts’s advancement and acknowledging his
“unfamiliarity with the long term impact of subtle influences
of the new fitness reporting system.” In addition, she
proffered the affidavit of a private investigator she had hired,
recounting supportive comments from Roberts’s former
colleagues and superiors.

With respect to the May 2005 report, Roberts claimed
Captain Reiske had discriminated against her on the basis of
her gender, citing Reiske’s alleged comment that he needed to
help out “fellow officers.” Roberts argued this was “strong
evidence of invidious discrimination since ‘fellow’ is
normally used in the male sense.”

The Board denied Roberts’s petition. It explained “the
evidence submitted was insufficient to establish ... probable
material error or injustice,” see 32 C.F.R. § 723.3(e)(2) (“The
Board may deny an application ... if it determines that the
evidence of record fails to demonstrate the existence of
probable material error or injustice”), and that “[i]n this
connection, the Board substantially concurred with the ...
advisory opinions” it had received from the Navy Offices of
Legal Counsel (OLC) and of Equal Opportunity (EOO). The
 7
OLC opined that Roberts had “offered no new and material
evidence” to warrant reopening her earlier challenge to her
1997 fitness reports, and there was insufficient evidence to
show Captain Reiske “was motivated to mark the [two male]
officers” above her “solely based upon their gender.” The
EOO noted Reiske had “not demonstrated a pattern of gender
discrimination.”*

Roberts brought suit in the district court, claiming the
Board’s refusal to correct her records deprived her of due
process because her 1997 fitness reports did not reflect her
entitlement under ONI Instruction 1610.2 to a promotion
recommendation matching her trait average, and deprived her
of equal protection because her May 2005 fitness report was
the product of gender discrimination. See Roberts v. United
States, 883 F. Supp. 2d 56, 63–66 (D.D.C. 2012). Roberts
also claimed the Board’s decision was arbitrary and
capricious, in violation of the Administrative Procedure Act
(APA), 5 U.S.C. § 706(2)(A), because it merely “rubber
stamped” the advisory opinions and because it was
unsupported by substantial evidence. Id. at 68–69.

The district court rejected Roberts’s claims. It first held
the Board did not deny her due process because ONI
Instruction 1610.2 “simply does not create an entitlement to
an ‘early promote’ recommendation for all members receiving
trait averages above 3.90.” Id. at 65. The court next held
Roberts had submitted insufficient evidence to “suggest[]
intentional discrimination on the basis of gender.” Id. at 67.
Finally, the court held the Board’s decision was neither

*
The Board also received and “substantially concurred with” two
other advisory opinions from offices other than the OLC within the
Navy Personnel Command.
 8
arbitrary nor capricious because the Board was entitled to
“rely on advisory opinions without providing its own detailed
analysis of their correctness,” id. at 70, and because the
explanations in the advisory opinions and in the Board’s
earlier decision in 2000 provided a reasoned basis for the
Board’s 2009 decision, id. at 69–71. The district court
therefore entered summary judgment for the Government. Id.
at 71.

II. Analysis

We review the district court’s grant of summary
judgment de novo, which is to say we “review the
administrative action directly, according no particular
deference to the judgment of the District Court.” Holland v.
Nat’l Mining Ass’n, 309 F.3d 808, 814 (D.C. Cir. 2002). On
appeal Roberts again raises her APA, due process, and equal
protection claims.

A. APA Claim

The Secretary of the Navy, acting through the Board for
Correction of Naval Records, “may correct any military
record ... when the Secretary considers it necessary to correct
an error or remove an injustice.” 10 U.S.C. § 1552(a)(1); see
also 32 C.F.R. 723.2(b) (describing function of the Board).
The person seeking to correct a record must provide
“substantial evidence” in order to overcome the Board’s
presumption that “public officers,” including military officers,
“have properly discharged their official duties.” 32 C.F.R.
§ 723.3(e)(2). The Board may deny an application “if it
determines that the evidence of record fails to demonstrate the
existence of probable material error or injustice.” Id.
 9
It is the longstanding practice of this court to review a
decision of a military corrections board under an “unusually
deferential application of the ‘arbitrary or capricious’
standard” of the APA. Kreis v. Sec’y of the Air Force, 866
F.2d 1508, 1514 (1989); see also Piersall v. Winter, 435 F.3d
319, 324 (2006); Cone v. Caldera, 223 F.3d 789, 793 (2000).
Roberts urges us to reject this line of authority where, as here,
the decision is of a “personnel” rather than “operational,
strategic or tactical” nature; “the mere fact of military
context,” she argues, “is insufficient to require deference.”
The deference we recognized in Kreis turned, however, not
upon the “military context” but upon “the broad grant of
discretion” the Congress gave the Secretary in deciding
whether to correct a record. 866 F.2d at 1514. “It is simply
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 certain
objective conditions are met, i.e., that there has been an error
or injustice.” Id. (quoting 10 U.S.C. § 1552(a)(1)). In any
event, even were we inclined to revisit Kreis, we have no
“authority to overturn a decision by a prior panel of this
Court.” La. Pub. Serv. Comm’n v. FERC, 522 F.3d 378, 390
(D.C. Cir. 2008). We therefore follow Kreis and limit our
inquiry to whether the “Secretary’s decision making process
was deficient, not whether his decision was correct.” 866
F.2d at 1511.

In order to pass even this modest scrutiny, the Board
“must give a reason that a court can measure ... against the
‘arbitrary or capricious’ standard of the APA.” Id. at 1514–
15. In its decision, the Board explained its conclusion as
follows:
 10
[T]he Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice. In this connection, the Board
substantially concurred with the comments contained in
the advisory opinions.

Roberts argues this explanation is inadequate because the
Board “needed to do more than state their agreement with the
[a]dvisory opinions.” By simply “rubber stamping” the
advisory opinions, Roberts argues, the Board was able to
ignore important evidence and arguments, including some she
had filed in direct response to the advisory opinions.

As an initial matter, we cannot fault the Board for relying
upon the advisory opinions it received. The Board is obliged
to provide a “reasoned explanation,” Dickson v. Sec’y of Def.,
68 F.3d 1396, 1404 (D.C. Cir. 1995), but any agency may
meet that obligation by referring the reader to “clearly
relevant sources other than a formal statement of reasons,”
Envtl. Def. Fund, Inc. v. EPA, 465 F.2d 528, 537 (D.C. Cir.
1972). Indeed, we have looked before to the reasoning of an
advisory opinion in upholding a decision of this very Board.
See Mueller v. Winter, 485 F.3d 1191, 1199 (2007) (affirming
reasonableness of the Board’s position where it had
“substantially concurr[ed]” in the view of the Navy Personnel
Command).*

*
Although the Board is free to rely upon the reasoning of an
advisory opinion, it must still provide sufficient guidance that its
“path may reasonably be discerned.” Bowman Transp., Inc. v.
Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286 (1974); see
also Dickson, 68 F.3d at 1404–05. The phrase “substantially
concur” makes for a dim lantern. In a future case, the Board’s
“substantial concurrence” with internally inconsistent or conflicting
advisory opinions may make it difficult for the court to determine
 11
The advisory opinion of the Navy OLC supplies the bulk
of the relevant analysis. The OLC first noted that the Board
had previously denied Roberts’s 1999 petition to correct her
June and October 1997 fitness reports. Because Roberts
“offered no new and material evidence that was not
previously considered or reasonably available at the time of
the prior application,” the OLC advised, the Board should
deny Roberts’s petition with respect to the 1997 fitness
reports “as matters previously considered and finally
adjudicat[ed] by the Board.”

Roberts rightly points out that she did in fact offer new
evidence with respect to the June 1997 fitness report, viz., the
letters of recommendation from Captain Bentz and the
affidavit of her private investigator, Kenneth Lord, recounting
his interview with Bentz. Although the OLC opinion did not
explicitly address this evidence, it implicitly – and correctly –
deemed it immaterial. In June 1997 Bentz recommended 7 of
the 13 members of Roberts’s summary group for “Early
Promote” or “Must Promote,” thereby hitting the 50% upper
limit for those combined categories. See BUREAU
INSTRUCTION 1610.10 at A-12 (upper limit based upon the
rank of the officers — here, Lieutenant Commander — in the
summary group). In order to raise Roberts’s recommendation
above “Promotable,” therefore, Bentz would have had to
reduce the recommendation of an officer rated either “Must
Promote” or “Early Promote.” Because Bentz did not
repudiate any of his ratings in his letters of recommendation
or in his putative hearsay statement to Mr. Lord, new
evidence was immaterial.

the Board’s reasoning. On the present record, however, the Board’s
route is adequately lit.
 12
Although the Board had already addressed the issue in its
decision of 2000, the OLC opinion went on to consider
Roberts’s argument that ONI Instruction 1610.2 entitled her
to a higher promotion recommendation in June and October
1997. The OLC explained, consistent with the Board’s
reasoning in 2000, the Instruction “indicates that the overall
trait average should be used as a baseline guide and [is]
therefore not required to be determinative and binding.” The
OLC added, correctly we think, that the trait average could
not be determinative of the promotion recommendation
because the promotion recommendation, unlike the trait
average, is “constrained by the upper limits” in Bureau
Instruction 1610.10.

Roberts objects that ONI Instruction 1610.2 states “[t]he
promotion recommendation will be based on the individual
trait average,” ONI INSTRUCTION 1610.2 at 4; the word “will,”
she argues, means a rater must use only the trait average to set
the promotion recommendation as provided in the baseline
guide. Nowhere, however, does the Instruction say the
promotion recommendation must be based exclusively upon
the trait average; to the contrary, it explains the
recommendation “should also take into account the difficulty
of the assignment and the reporting senior’s judgment of the
member’s likely value to the Navy in the next higher grades.”
Id. at 5. A rater may depart from the baseline guide for either
of these reasons and indeed must depart from the baseline
guide if more than the allowed percentage of officers in the
summary group would otherwise get one of the two highest
recommendations. Under this scheme the baseline guide is
just that — a guide. It does not entitle an officer to a
particular recommendation on the basis of a particular trait
average.
 13
The OLC then turned to Roberts’s contention that
Captain Darrah froze all officers at their previous
recommendation levels for the October 1997 fitness report.
The OLC advised, consistent with the Board’s decision in
2000, that Roberts had failed to present any corroborating
evidence and therefore did not meet her burden to “rebut[] the
presumption that [Darrah] follow[ed] Navy directives in
submitting the fitness report.” The OLC’s factual premise is
undoubtedly correct: Even on appeal, Roberts points to no
evidence in the record to support her contention aside from
her own affidavit alleging “the new reporting senior [Darrah]
stated that she wished to maintain all officers in the same
category during the abbreviated reporting period.” In effect
the OLC advised that an applicant’s unsupported allegation of
misconduct is insufficient to rebut the presumption of
regularity. We cannot say it was unreasonable of the Board to
adopt this position.

Finally, the OLC turned to Roberts’s argument that her
May 2005 fitness report was the product of gender
discrimination. The OLC noted Roberts had provided “no
corroborating evidence to substantiate her allegation” that
Captain Reiske said he was lowering her recommendation to
“Promotable” in order to help out “fellow officers.”
Assuming Reiske did make that comment, however, the OLC
advised:

The term ‘fellow officer’ in military parlance is gender
neutral and refers to both female and male officers.
Although the other two officers may in fact be male
officers, the statement alone does not show by substantial
evidence that the reporting senior was motivated to mark
the officers as [Early Promote] and [Must Promote]
solely based upon their gender.
 14
We see no error in the OLC’s analysis. The OLC
correctly looked to whether the evidence showed Captain
Reiske was motivated by discrimination on the basis of
gender. Cf. Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 265 (1977) (absent an overtly
discriminatory classification, “[p]roof of racially
discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause”). Although the
word “fellow” may (or may not) mean “a man or boy” when
used as a noun, depending upon the context, see, e.g., Exec.
Order No. 11,183 § 2(c), 3 C.F.R. 256, 257 (1964–65)
(“White House Fellows shall be ... selected by the President
without discrimination on the basis of sex”), when used as an
adjective it simply means “in the same condition,”
WEBSTER’S NEW TWENTIETH CENTURY DICTIONARY 673 (2d
ed. 1983). Ordinary usage thus supports the OLC’s assertion
that the term “fellow officer” is not at all indicative of bias on
the basis of gender.

The Board also received, and again substantially
concurred in, an advisory opinion from the Navy EOO
concluding Reiske “had not demonstrated a pattern of gender
discrimination.” Roberts argues this reference to a “pattern”
invokes “the wrong standard for review of gender
discrimination,” but she misreads the advisory opinion. The
EOO did not suggest Roberts was required to show a pattern
of gender discrimination by Captain Reiske; rather, it
explained the lack of any pattern favoring men over women in
his prior recommendations “demonstrated [Reiske’s]
willingness to recommend an Early Promote ... regardless of
gender.” A pattern of discriminatory action, in other words,
would have been probative evidence of discriminatory intent,
but there was no such pattern.
 15
Roberts’s final APA argument is that the Board failed to
consider other evidence of Captain Reiske’s discriminatory
intent, including that the “two male officers were rated above
the two female officers;” that the two male officers, unlike
Roberts, “had not served in a combat area;” and the
supportive comments of her colleague, Marine Colonel
Francis Cubillo, as recounted by her private investigator.
None of this evidence is significant. That two male officers
were rated above two female officers goes to disparate
impact, which though “not irrelevant” cannot sustain
Roberts’s assertion of gender discrimination absent some
evidence of discriminatory intent. See Washington v. Davis,
426 U.S. 229, 242 (1976). That Roberts had more combat
experience than her male colleagues does not imply she
should have been recommended above them, or that Reiske
was motivated by gender discrimination in rating her below
them. The reported comments of Colonel Cubillo are
hearsay, but even if taken at face value they show simply that
Cubillo was of the opinion “Roberts should have been rated
the same as both” the male officers. Cubillo did not in any
way imply Reiske recommended the male officers ahead of
Roberts with discriminatory intent.

In sum, we hold the Board, drawing upon the advisory
opinions of the OLC and of the EOO, reasonably determined
“the evidence submitted was insufficient to establish the
existence of probable material error or injustice.” Roberts
presented no material evidence to show her June 1997,
October 1997, or May 2005 raters erred in giving her the
recommendation of “Promotable;” nor was she entitled by
ONI Instruction 1610.2 to a higher promotion
recommendation based upon her trait average. The decision
of the Board was neither arbitrary nor capricious nor
unsupported by substantial evidence, in contravention of the
APA.
 16
B. Due Process Claim

In order to make out a violation of due process, the
plaintiff must show the Government deprived her of a “liberty
or property interest” to which she had a “legitimate claim of
entitlement,” and that “the procedures attendant upon that
deprivation were constitutionally [in]sufficient.” Ky. Dep’t of
Corr. v. Thompson, 490 U.S. 454, 460 (1989). A “cognizable
liberty or property interest,” Hettinga v. United States, 677
F.3d 471, 480 (D.C. Cir. 2012) (per curiam), is essential
because “[p]rocess is not an end in itself. Its constitutional
purpose is to protect a substantive interest to which the
individual has a legitimate claim of entitlement,” Olim v.
Wakinekona, 461 U.S. 238, 250 (1983).

Roberts claims a violation of procedural due process but
has trouble identifying the substantive interest of which she
has been deprived. She says she has a “liberty and property
interest in a fair evaluation process,” but a “fair evaluation
process” is still a process, not a substantive interest in liberty
or property. Roberts says she has a property interest in her
“employment” and a liberty interest in her “freedom to
practice her chosen profession,” but these are not implicated
because Roberts remains employed by the Navy. Roberts
says she has a property interest in the “additional active duty
pay and future retirement pay that she would have received
had she been promoted properly,” but this additional pay is
conditional upon promotion, and “there exists no property or
liberty interest in a military promotion per se,” Blevins v. Orr,
721 F.2d 1419, 1422 (D.C. Cir. 1983). Roberts says she has a
“protected interest,” per ONI Instruction 1610.2, in a
promotion recommendation matching her performance
average, but as we have seen already, the Instruction creates
no such entitlement.
 17
Finally, Roberts claims she was entitled to performance
counseling, which she says she did not receive. See BUREAU
INSTRUCTION 1610.10 at C-1 (“Members will be counseled at
the mid-term point of the evaluation period and at the time of
receiving the fitness or evaluation report”)]. The Supreme
Court, however, has suggested an entitlement must have
“some ascertainable monetary value” in order to “constitute a
‘property’ interest for purposes of the Due Process Clause,”
Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 766
(2005) (internal quotation marks omitted), and Roberts has
not shown a counseling session between an officer and her
superior has any ascertainable monetary value. In any event,
there is no indication Roberts ever asked for and was refused
performance counseling. Even were we to assume Roberts
asked for and was denied counseling, the deprivation would
be harmless because the purpose of counseling is to “motivate
performance improvement,” BUREAU INSTRUCTION 1610.10 at
C-2, and Roberts’s performance, by her own account, did not
decline.

C. Equal Protection Claim

Roberts also recasts one of her gender discrimination
arguments as an argument she was denied equal protection of
the laws. Specifically, she claims the decision of Captain
Reiske to give a higher recommendation to a “fellow” male
officer, and the refusal of the Board to correct that purported
error, violated the equal protection component of the Due
Process Clause of the Fifth Amendment. We have already
considered the substance of this claim in its manifestation
under the APA; as we explained there, Roberts has presented
insufficient evidence that Reiske acted with discriminatory
intent. Roberts’s equal protection claim fails for the same
reason.
 18
III. Conclusion

We hold the Board’s denial of Roberts’s petition to
correct her military records was neither arbitrary nor
capricious and that her constitutional challenges are without
merit. Therefore, the judgment of the district court is

Affirmed.