Ey v. John McHugh

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CARL S. EY,

Plaintiff,
v. Civil Action No. 12-862 (JEB)
JOHN M. MCHUGH,
Secretary of the Army,

Defendant.

MEMORANDUM OPINION

In October 2009, an Army psychiatrist diagnosed Plaintiff Carl Ey, a Lieutenant Colonel

then on active duty, with anxiety and depression. Just a month later, Ey received notice that he

would be transferred to a new duty station some 1500 miles from his home in Washington, D.C.

In response, he asked to retire from active duty, effective six months later. This would allow him

to avoid reassignment and to continue his medical treatment until retirement. But Ey soon had

second thoughts – since retiring on that timetable would mean forfeiting the chance at a

promotion and certain benefits – and he subsequently asked the Army to allow him to stay on

active duty until August 2011. The Army obliged, although it refused to guarantee that he would

be considered for the promotion. Dissatisfied, Plaintiff decided to, in his words, “march on” into

retirement. That, however, did not end the matter in his mind. Alleging that he had been

improperly forced to choose between relocation and retirement, he asked the Army Board for

Correction of Military Records to reinstate him. The Board declined. Plaintiff sought

reconsideration by the ABCMR, and it again denied his claim, so he brought this suit.

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 A third round of Board review in the books – this one after remand from this Court –

Plaintiff now challenges the ABCMR’s decision as arbitrary and capricious, an abuse of

discretion, and contrary to law. As relief, he asks the Court to reinstate him to active duty and to

order the Army to consider him for promotion to Colonel. In light of the weighty deference

owed to administrative decisions made by the armed forces, however, the Court cannot overturn

the ABCMR’s ruling. As a result, it will grant Defendant’s Motion for Summary Judgment and

deny Plaintiff’s.

I. Background

No one here denies that Carl Ey had a distinguished career in the Army, rising from

Second Lieutenant to Lieutenant Colonel over the course of 19 years. See Administrative

Record at 390. Unfortunately, 18 years into that career, in October 2009, Plaintiff’s psychiatrist

diagnosed him with an “adjustment disorder with anxiety and depressed mood.” AR 5, 134.

This “temporary profile” specifically opined that Plaintiff should not take the Army Physical

Fitness Test, but it said nothing about reassignment or deployment, and Plaintiff was in fact

reassigned from Washington, D.C., to Fort Riley, Kansas, on November 17, 2009. See AR 4.

After some negotiating, it was agreed that the transfer would take effect on January 14, 2010.

See AR 135, 144.

From there, events picked up steam. Around December 10, 2009, Ey asked his

assignment manager for information regarding retirement in lieu of accepting a Permanent

Change of Station, and he was told that, if he decided to pursue that option, his retirement

paperwork would have to be submitted within thirty days of the original notification date of his

reassignment – i.e., by December 17, 2009. See AR 140. Getting in just under the wire, on

December 15, Plaintiff submitted a request for retirement in lieu of his reassignment, effective

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May 31, 2010. See AR 141-43. In his application for retirement, Plaintiff affirmed that he was

“familiar” with the regulations regarding retirement and promotion, and that he understood that

his retirement request could not be withdrawn. See AR 142.

Three days later, on December 18, Plaintiff notified Army Human Resources Command

via e-mail that his health-care provider would be issuing him a second temporary profile

recommending that he continue treatment at his present duty station through March 15, 2010, see

AR 144, though he apparently never showed the documents to Human Resources Command.

See AR 146. On December 30, his psychiatrist seconded that recommendation in a third

temporary profile. See id. In light of those updates, Plaintiff asked that the Army allow him to

rescind his retirement and delay his transfer until his treatment was complete. See id. Instead,

on January 21, 2010, the Army approved his retirement request, effective May 31, 2010. See AR

175.

On March 1, 2010, Plaintiff asked to delay his already-approved retirement, ostensibly

so he could complete his medical treatment. See AR 145. The Army declined. See AR 145.

After his health-care provider reiterated that he should remain in Washington for an additional 90

days – this time through the middle of June – Ey again asked the Army to allow him to amend

his retirement request. This time, it obliged and pushed his retirement date back to August 31,

2010. See AR 146.

At this point a bit of background on the Army’s promotion policies may be helpful.

Army officers are generally considered for promotion according to a strict schedule; promotion

boards consider candidates for each rank annually, and this is the predominant, though not

exclusive, avenue for promotion. Especially relevant to Plaintiff’s case is Army Regulation 600-

8-29, ¶ 1-10e, which states that an officer who is fewer than 90 days from retirement when a

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promotion board convenes is ineligible for promotion. The 2010 Colonel Promotion Board – the

body that would have had the authority to promote Plaintiff from Lieutenant Colonel – was

scheduled to meet in June of 2010. See AR 291. Because that meeting fell within 90 days of

Plaintiff’s scheduled retirement date of August 31, 2010, he was notified via automatic e-mail on

May 6 that he would not be considered for promotion. In response – or, as he tells it, because he

had scheduled a foot surgery for June 3, 2010, and his doctor had recommended that he remain

on active duty through his recovery, see AR 146 – Plaintiff petitioned to push his retirement back

a year, to August 31, 2011. See AR 146, 284-89. His branch manager communicated to him

that he would remain ineligible for consideration by the 2010 promotion board for the time

being, but that if his retirement date were officially moved back, he would then become eligible.

See AR 291. Of course, if the board met before Plaintiff’s retirement date was changed, it would

not be able to consider his candidacy. And that, indeed, appears to be what happened.

On July 21, 2010 – more than six weeks after the promotion board met – perhaps in

response to the Surgeon General’s determination that no physical or mental limitations should

preclude Plaintiff from continuing his service, see AR 225-28, the Army notified Ey that it

would approve his request to delay his retirement for a year, see AR 228, but that he would have

to submit a new retirement application for procedural reasons. See AR 325-26. Plaintiff

responded that unless he was seen by a Special Selection Board – a body that, per Army

regulations, may consider an officer for promotion when he or she is improperly passed over by

a regular selection board – he would continue with his plans to retire on August 31, 2010. See

AR 325.

No response was apparently forthcoming, and Plaintiff, perhaps unsurprisingly, was not

satisfied with the way things ended. In his mind, he had been offered a Hobson’s choice

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between transfer (and cessation of his medical treatment in Washington) and retirement by a

certain date, and thus he was deprived of the chance to earn his promotion to Colonel, which

would have carried with it significant monetary benefits. Since Army Human Resources

Command had effectively denied his request to delay his retirement and had not placed him

before a Special Selection Board, he went up the chain of (legal) command. Several weeks

before the date he was scheduled to retire, Ey filed a claim with the ABCMR requesting that he

be reinstated and that a Special Selection Board (SSB) consider him for promotion to Colonel.

See AR 266-309. While that body deliberated, Plaintiff’s retirement date arrived, and he left

active duty at the rank of Lieutenant Colonel. See AR 203-04. The ABCMR ultimately denied

his petition, concluding that his decision to retire was voluntary and that Army regulations did

not provide for the revocation of retirement in cases like his. Plaintiff requested reconsideration,

and the ABCMR again declined to grant relief. See AR 46.

Convinced of the purity of his cause, Plaintiff filed suit in this Court in May 2012. In

December of the same year, at Defendant’s request, the Court remanded the case to the ABCMR

and directed it to consider several issues, including whether Army regulations and Plaintiff’s

temporary profiles should have limited his ability to be reassigned at the time he was transferred

on November 17, 2009. See Order, December 21, 2012 (ECF No. 15). The Board revisited

Plaintiff’s case and held that the temporary profiles in effect at the time he received his transfer

orders had no effect on his eligibility for reassignment. As a result, the Board concluded,

Plaintiff had not been improperly forced to retire and, accordingly, that he was not entitled to an

SSB.

Plaintiff’s challenge to that decision is now before the Court. Ey argues that the Board’s

decision was arbitrary and capricious, an abuse of discretion, and contrary to law. As a result, he

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contends, the Court should overturn the Army’s decision and declare his retirement void, order

that he be returned to active duty in the rank of Lieutenant Colonel, and require the Army to

place him before a 2010-calendar-year promotion board. Defendant filed a Motion to Dismiss

or, in the Alternative, for Summary Judgment, and Plaintiff responded with his own Cross-

Motion for Summary Judgment.

II. Legal Standard

Defendant’s Motion relies in part on Federal Rule of Civil Procedure 12(b)(1), asking the

Court to dismiss this case on the ground that Plaintiff’s cause of action is moot. To survive a

motion to dismiss under Rule 12(b)(1), the plaintiff bears the burden of proving that the Court

has subject-matter jurisdiction to hear his claims. See Lujan v. Defenders of Wildlife, 504 U.S.

555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000).

A court has an “affirmative obligation to ensure that it is acting within the scope of its

jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d

9, 13 (D.D.C. 2001). For this reason, although the Court must “treat the complaint’s factual

allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived

from the facts alleged,’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir.

2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (citation omitted),

“‘the [p]laintiff’s factual allegations in the complaint . . . will bear closer scrutiny in resolving

[jurisdictional issues]’ than [merits questions].” Grand Lodge, 185 F. Supp. 2d at 13–14

(quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d

ed. 1987)). The Court, moreover, “may consider materials outside the pleadings in deciding

whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharms., Inc. v.

FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

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 Plaintiff relies on the Administrative Procedure Act, 5 U.S.C. § 701 et seq., to challenge

the ABCMR’s decision, and Defendant seeks summary judgment as an alternative to its

mootness argument. Summary judgment is one proper mechanism for adjudicating claims under

the APA. See Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010).

Due to the limited role federal courts play in reviewing administrative decisions, however, the

typical Federal Rule 56 summary-judgment standard does not apply in such cases. See Sierra

Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006) (citing Nat’l Wilderness Inst. v.

United States Army Corps of Eng’rs, 2005 WL 691775, at *7 (D.D.C. 2005)). Instead, “the

function of the district court is to determine whether or not . . . the evidence in the administrative

record permitted the agency to make the decision it did.” Id. (citations omitted). Summary

judgment thus serves as the mechanism for deciding, as a matter of law, whether an agency

action is supported by the administrative record and otherwise consistent with the APA standard

of review. See Bloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002) (citing Richards v. INS,

554 F. 2d 1173, 1177 (D.C. Cir. 1977)).

The APA “sets forth the full extent of judicial authority to review executive agency

action for procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513

(2009). It requires courts to “hold unlawful and set aside agency action, findings, and

conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). Under this “narrow” standard of review – which

appropriately encourages courts to defer to the agency’s expertise, see Motor Vehicle Mfrs.

Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) – an

agency is required to “examine the relevant data and articulate a satisfactory explanation for its

action including a rational connection between the facts found and the choice made.” Id.

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(internal quotation marks omitted). In other words, courts “have held it an abuse of discretion

for [an agency] to act if there is no evidence to support the decision or if the decision was based

on an improper understanding of the law.” Kazarian v. U.S. Citizenship and Immigration Serv.,

596 F.3d 1115, 1118 (9th Cir. 2010).

It is not enough, then, that the Court would have come to a different conclusion from the

agency. See Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir. 2003). The

reviewing court “is not to substitute its judgment for that of the agency,” id., nor to “disturb the

decision of an agency that has examine[d] the relevant data and articulate[d] . . . a rational

connection between the facts found and the choice made.” Americans for Safe Access v. DEA,

706 F.3d 438, 449 (D.C. Cir. 2013) (citation and internal quotation marks omitted). A decision

that is not fully explained, moreover, may be upheld “if the agency’s path may reasonably be

discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286

(1974).

Deference is doubly warranted, moreover, when Courts review administrative decisions

made by the armed forces. That extra deference has two sources. First, courts are particularly

unfit to review the substance of military personnel decisions. See Escobedo v. Green, 602 F.

Supp. 2d 244, 248-49 (D.D.C. 2009) (deference “calculated to ensure that the courts do not

become a forum for appeals by every soldier dissatisfied with [a military personnel decision], a

result that would destabilize military command and take the judiciary far afield of its area of

competence”) (internal quotation marks omitted). Second, the ABCMR’s enabling statute grants

special discretion to the Secretary of the Army, who acts through that body. It is true that federal

courts review final decisions of the ABCMR according to APA standards. See Kidwell v. Dep’t

of the Army, Bd. for Correction of Military Records, 56 F.3d 279, 286 (D.C. Cir. 1995).

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Considering the wide latitude granted to the Secretary by Congress, however, the D.C. Circuit

has held that ABCMR decisions are to be granted an “unusually deferential application of the

‘arbitrary or capricious’ standard”:

[T]he statute . . . substantially restrict[s] the authority of the
reviewing court to upset the Secretary’s determination. 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,” 10 U.S.C. § 1552(a), 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.

Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989) (Kreis I).

This, of course, does not mean that federal courts may not review ABCMR decisions.

Indeed, to affirm an Army ruling, “[t]he court . . . must be able to conclude that the Board

‘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.’” Kreis v. Sec’y of Air

Force, 406 F.3d 684, 686 (D.C. Cir. 2005) (Kreis II) (quoting Motor Vehicle Mfrs. Ass’n, 463

U.S. at 43). The Court need only determine, however, “whether the Secretary’s decision making

process was deficient, not whether his decision was correct.” Kreis I at 1511.

III. Analysis

Ey maintains that the ABCMR acted arbitrarily and capriciously when it denied his

request to be reinstated as a Lieutenant Colonel and declined to place him before a calendar-

year-2010 promotion board. As the Court will discuss shortly, this argument ultimately turns on

whether Ey’s resignation was voluntary. Before turning to that question, however, the Court

must address Defendant’s first argument – namely, that Plaintiff’s claim is moot because the

Army allowed him to delay his retirement.

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 A. Mootness

“[A] case is moot when the issues presented are no longer live or the parties lack a legally

cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)

(internal quotation marks omitted). A plaintiff, moreover, cannot have an interest in the outcome

of a case if the relief he seeks has already been provided. As a result, “[c]orrective action by an

agency is one type of subsequent development that can moot a previously justiciable issue.”

Natural Resources Defense Council, Inc. v. U.S. Nuclear Regulatory Comm’n, 680 F.2d 810,

814 (D.C. Cir. 1982) (citing Commissioner v. Shapiro, 424 U.S. 614, 622-23 n.7 (1976)). “Even

if [the] attack was originally well-founded,” after all, the Court “can hardly order the [defendant]

at this point to do something that it has already done.” Id.

Defendant asserts, in essence, that Plaintiff’s claim is moot because the Army “gave him

exactly what he wanted.” See Def. Mot. at 9. In particular, it points out that the Army approved

Ey’s request for an exception to its policy and allowed him to withdraw his retirement request so

that he could remain on active duty until at least 2011. See AR 228 (E-mail from Major General

Sean Byrne) (“I have directed that your request to withdraw your voluntary retirement action be

approved. You should return for duty.”). Even if Plaintiff’s retirement was induced by a

procedurally deficient reassignment notification, the Army claims, its decision to allow Plaintiff

to withdraw that retirement moots his objections. See Def. Mot. at 10.

This is not quite true, however, since the Army did not give Plaintiff everything he is

asking for here. In particular, it refused to place him before a 2010-calendar-year promotion

board, an important component of the relief he seeks. As a result, his case is not moot. In its

Reply, Defendant shifts gears, arguing that all of this is irrelevant because Plaintiff would

automatically have been placed before a Special Selection Board if he had chosen not to retire.

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See Def. Opp. and Reply at 5. Citing Army Regulation 600-8-29, ch. 7, Defendant points out

that “Plaintiff in no way suggests that he would not have been able to request consideration

before an SSB had he remained on active duty,” id., and thus seems to imply that Plaintiff would

have been eligible for promotion had he accepted the Army’s offer to allow him to rescind his

retirement. The regulations, however, do not appear to guarantee Plaintiff consideration before

an SSB. They state only that a person who was improperly denied access to a normal selection

board will be considered by an SSB, and the Army has not conceded any impropriety. In fact,

the Army’s position is premised on the opposite conclusion – namely, that because Plaintiff was

within 90 days of retirement when the 2010 Board met, he was ineligible for consideration had

he remained enlisted. See Def. SUMF, ¶¶ 28 (citing AR 312-326), 37 (citing ABCMR decision

of May 19, 2011).

As a result, the Court cannot conclude that Plaintiff’s case is moot. It will, therefore, turn

to his substantive claim: that the ABCMR erred in denying him reinstatement with the

opportunity for promotion on schedule.

B. APA Violation

The gravamen of Plaintiff’s claim is that it was arbitrary and capricious for the ABCMR

to refuse to grant him the remedies he sought. In particular, he argues that his retirement was

involuntary because the Army (1) required him to accept reassignment or retire, despite his level

T-3 temporary medical profile, which violated the regulatory scheme; and (2) misrepresented

material facts that induced the retirement. See Pl. Mot. at 3-5. He also contends that the

ABCMR applied the wrong standard in determining whether he was entitled to an SSB. See id.

at 17-18. The Court will address each argument in turn.

1. Temporary Profiles

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 Plaintiff first argues that his temporary profiles – i.e., his diagnoses of anxiety and

depression – should have prevented him from being reassigned. See id. at 6-9. More

specifically, he contends that an Army regulation and an internal policy memorandum preclude

transfer of soldiers with a T-3 profile – the type of profile he claims he possessed at the time of

his retirement. See id. at 8-9 The ABCMR, however, considered this argument and concluded

that it had no merit, holding that Plaintiff’s “temporary physical profile should have had no

impact on his ability to be reassigned or deployed at the time he received his [reassignment].”

AR 14.

The Board began with Plaintiff’s first two temporary profiles and concluded that they did

not explicitly limit his eligibility for reassignment. See id. It noted that the first profile – the one

issued in November 2009 – did prevent Plaintiff from taking the Army Physical Fitness Test but

contained no specific assignment limitations. AR 4, 134. The portion of the profile that would

have limited Plaintiff’s eligibility for reassignment, moreover, was “blank and did not indicate

[whether Plaintiff] had any limitations or conditions which prevented [him] from deployment or

[permanent change of station].” AR 14. The Board noted, similarly, that Plaintiff’s second

temporary profile – dated December 13, 2009, and unchanged by December 15, when Plaintiff

opted to retire – limited his eligibility for deployment but said nothing about transfer to a

different domestic duty station. See AR 5.

The ABCMR next disregarded the analysis Plaintiff’s psychiatrist filed on December 30,

2009. Observing that this third profile had been brought to the attention of Plaintiff’s superiors

more than two weeks after he had submitted his (irrevocable) request to retire in lieu of

reassignment, see AR 6, the Board concluded that the very premise of Plaintiff’s case – the

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notion that he was subject to a temporary profile limiting his eligibility to be reassigned at the

time of his retirement – was faulty. See id.

The Board then examined the applicable regulations to determine whether the mere

presence of a temporary profile prevents a soldier’s reassignment, even if it does not explicitly

say so. Plaintiff argued – and continues to maintain – that Army Reg. 600-8-101 and Office of

the Surgeon General/Medical Command Policy Memorandum 09-061 preclude reassignment of

those on a T-3 profile. Neither of those sources, however, is helpful to him. Regulation 600-8-

101 does not address the actual reassignment of soldiers on a temporary profile. Instead, it

discusses procedures for processing those who are arriving at or leaving a duty station. See

Army Reg. 600-8-101 at ¶ 1-1 to 1-5. The regulation, moreover, does not contain the language

Plaintiff cites in his Amended Complaint or in his Motion. Instead, that language comes from an

Army pamphlet that details how to process soldiers who are departing an installation but does

not alter the legal effect of the relevant regulations. See Def. Mot. at 18 n.8.

The ABCMR turned next to the Surgeon General’s Memorandum. Two characteristics of

the Memorandum render it wholly unhelpful to Plaintiff. First, it applies only to “Commanders

[of] MEDCOM Regional Medical Centers,” establishing the procedures that those commanders

must follow when dealing with a behavioral health patient. See OTSG Policy Memo. 09-061, ¶

5d, 5e. Plaintiff’s doctors were not MEDCOM officers, so the Memorandum is irrelevant to his

case. The document, moreover, provides only that facility commanders may “request deletion,

deferment, or reassignment for the purpose of stabilizing a Soldier utilizing appropriate current

policy and procedures.” Id., ¶ 5e (emphasis added). As the Board noted, that language

reinforces the fact that medical facility commanders do not possess ultimate authority over the

assignment of individual soldiers. Instead, it observed, the relevant regulations vest Army

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Human Resources Command with near-plenary authority to make those determinations. See AR

8-9.

Because nothing in the applicable regulations precludes reassignment of soldiers on

temporary profile, and because Human Resources Command made the final decision regarding

Plaintiff’s assignment, the Board concluded that the decision was sound. See AR 13-14.

Particularly given the deference owed to the military, the Court cannot find the ABCMR’s

conclusion to be arbitrary or capricious.

2. Misrepresentation

If Plaintiff is to prevail, then, he must prove that some other factor rendered his

retirement involuntary. Ey contended before the ABCMR – and maintains now – that his

retirement was involuntary and procedurally flawed because he was forced to choose between

retirement and reassignment when in fact he should have been allowed a third option: delaying

his retirement due to his medical diagnosis. This argument is flawed, as the ABCMR clearly

explained.

In his Cross-Motion, Plaintiff suggests that he “relied upon the Army’s statements that

his temporary profile had no meaning and that his only choices were PCS or retire.” Pl. Mot. at

16. Even if Plaintiff did rely on the Army’s statements, that is of no moment for what the Court

hopes is an obvious reason: his temporary profile did “ha[ve] no meaning” for reassignment

purposes at the time of his retirement, and, as a result, reassignment and retirement were his only

options when he picked the latter on December 15, 2009. Indeed, as the Court has just

explained, and as the ABCMR rationally concluded, the temporary profiles operative at the time

Plaintiff chose to retire did not restrict his eligibility for reassignment. The possibility of

delaying his transfer would have become real only after the Army was notified of the updated

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profile recommending against reassignment, which did not occur until sometime later. (The

ABCMR concluded that notification did not occur until at least December 18 and probably not

before December 30. See AR 21.) In those circumstances, it was not a “misrepresentation” for

the Army to let Plaintiff believe – or even to tell him directly – that he had to choose between

retirement and continuing on the road to reassignment, as that was the truth.

The ABCMR observed, moreover, that Plaintiff followed Army Regulation 600-8-24,

which outlines the proper procedure in cases just like his. The regulation states that an officer

may request retirement in lieu of reassignment if he has completed 19 years and 6 months of

active service – as Plaintiff had – and that a candidate for such retirement must submit his

request within thirty calendar days of the reassignment instructions – which Plaintiff did. See

AR 12. The Army had every right to reassign Plaintiff and he had every right to retire, but

Plaintiff is correct that his “only choices” were to accept one of those two fates. The Court

sympathizes with the difficulty of such a choice, particularly given Plaintiff’s mental health

situation, but it is no position to rewrite Army regulations.

3. Special Selection Board

Plaintiff last argues that the ABCMR acted irrationally when it concluded that he was not

eligible for consideration by a Special Selection Board. The Court cannot agree, as the

ABCMR’s conclusion stemmed from two premises that the Court has already endorsed. The

first is that because military regulations did not preclude the Army from reassigning Plaintiff, his

retirement was voluntary. See AR at 12. The second is that Plaintiff would have been entitled to

an SSB only if he should have been considered for promotion but was not. See id. Yet

Plaintiff’s voluntary retirement precluded such consideration.

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 Plaintiff responds that the ABCMR used the wrong standard in evaluating his claims.

Whereas he would have been entitled to an SSB if “administrative error” had caused a regularly

scheduled promotion board to overlook him, see 10 U.S.C. § 628(a), he points out, the ABCMR

instead evaluated his situation for material error. See Pl. Mot. at 17. This is true as far as it goes,

but Plaintiff’s logic does not withstand scrutiny. Although he is correct that the Board used the

wrong terminology to describe the type of error it had to look for, the Board in fact found no

evidence of any error on the part of the Army. See AR 46-47. Indeed, it concluded that

regulations prohibited the Army from considering him for promotion. In those circumstances,

the Court can hardly conclude that a mere slip of the tongue warrants reversal.

In sum, Plaintiff does not establish – or even argue – that the ABCMR’s review was

procedurally flawed. He nowhere suggests, for example, that the Board relied on factors

Congress did not intend for it to weigh, that it failed to consider an aspect of the problem, or that

it came to a conclusion belied by the evidence. See Escobedo, 602 F. Supp. 2d at 248. Rather,

he challenges only the substance of the Army’s conclusions. Given the standard of review the

Court employs, such argument has little chance of success.

IV. Conclusion

For the aforementioned reasons, the Court will grant Defendant’s Motion for Summary

Judgment and deny Plaintiff’s. A separate Order consistent with this Opinion will be issued this

day.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: February 28, 2014

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