Indiana Law Enforcement Training Board v. Theodore D. Comer, Sr. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jan 28 2015, 9:33 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Gregory F. Zoeller Edward J. Merchant
Attorney General of Indiana Ruckelshaus Kautzman Blackwell
Bemis & Hasbrook
Frances Barrow Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Indiana Law Enforcement January 28, 2015
Training Board, Court of Appeals Cause No.
22A01-1407-MI-321
Appellant-Respondent,
Appeal from the Floyd Circuit Court
v. The Honorable J. Terrence Cody,
Judge
Cause No. 22C01-1305-MI-777
Theodore D. Comer, Sr.,
Appellee-Petitioner

Crone, Judge.

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 Case Summary

[1] The Indiana Law Enforcement Training Board (“the Board”) appeals a trial

court judgment setting aside its revocation of Theodore D. Comer, Sr.’s

certificate of completion of basic training (“certification”) at the Indiana Law

Enforcement Academy (“the Academy”). Finding that the Board’s decision to

revoke Comer’s certification was arbitrary and capricious and was not

supported by substantial evidence, we affirm the trial court.

Facts and Procedural History

[2] In 2001, Comer enlisted in the U.S. Navy and served as an information systems

technician third class petty officer in Iceland from 2002 through May 2005.

During his time of service, he received various medals, ribbons, and letters of

commendation. In 2004, he was disciplined for unauthorized absence when on

one occasion he failed to return to his ship before it set sail for the next port. As

a result, he received a demotion and a short-term pay reduction and restriction

to the ship.

[3] After his discharge from the Navy in 2005, Comer worked as a correctional

officer for the Department of Correction and then as a deputy with the Marion

County Sheriff’s Department. In January 2010, he was hired by the Indiana

University Police Department (“IUPD”) for its southeast campus in New

Albany. As part of the hiring process, he disclosed that he had received an

honorable discharge from the Navy on May 25, 2005. Also as part of the

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 process, IUPD conducted a character and background investigation as well as a

polygraph, which he passed. IUPD determined that he was a person of good

reputation and character and sent him to the Academy for basic training in

March 2010. On his first day there, Comer filled out a personnel data sheet in

which he listed his military discharge status as “honorable.” He finished at the

top of his training class and received his Academy certification in July 2010.

[4] In January 2011, Comer accepted a position with the Michigan City Police

Department (“MCPD”). In the hiring process, he presented his May 25, 2005

discharge form. In December 2011, a domestic incident occurred at Comer’s

home, but no charges were filed. Comer returned to his job with IUPD in New

Albany in January 2012. When Comer left MCPD, some MCPD officers

began investigating him. Three months later, MCPD contacted the Board

concerning alleged discrepancies in Comer’s military discharge paperwork.

The Board commenced an investigation, and IUPD Chief Charles Edelen

informed Comer concerning a discrepancy in his military discharge status. The

Board set a hearing and notified Comer that the hearing would be held to

determine whether to revoke his Academy certification based on his military

discharge status and lack of good character. The Board’s executive director,

Rusty K. Goodpaster, would serve as administrative law judge (“ALJ”), and

the deputy director, Michael J. Lindsay, would serve as prosecutor.

[5] At the January 2013 hearing, two different Department of Defense discharge

forms were presented: (1) a DD 214 dated May 25, 2005 (“May DD 214”),

listing Comer’s discharge as “honorable”; and (2) a DD 214 dated August 9,

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 2005 (“August DD 214”), listing Comer’s discharge as “other than honorable.”

Petitioner’s Exs. G, H. Comer’s official Navy file contained the August DD

214 but not the May DD 214. The signature and initials on the May DD 214

were consistent with those affixed on all of the other documents in Comer’s

Navy file. The August DD 214 contained a signature and initials inconsistent

with those affixed on all of his other Navy documents.

[6] The hearing exhibits include a summary of Comer’s polygraph results as well as

in-depth, question-by-question information. Comer also introduced a voucher

and line of accounting form showing that the Navy had paid his moving

expenses following his May 2005 discharge. Director John Lanzone of Navy

Personnel Support Detachment testified telephonically that the Navy pays the

expenses of moving household goods only for members receiving an honorable

discharge. He also testified that he had examined Comer’s May DD 214 listing

his discharge as honorable and that it appeared to be “very authentic.”

Appellant’s App. at 190. He explained that when a DD 214 discharge form

needs to be updated or corrected after it has been issued to the discharged

member, the proper procedure is to issue a DD 215. Nothing in Comer’s Navy

file indicates that a DD 215 was ever issued. Comer testified that following his

June 2005 move back to Gary, Indiana, police arrested him based on a national

crime database that indicated he had deserted his ship in May 2005. The Navy

flew him to California to clear up the error. He testified that he never knew that

there was any change in his discharge status, that he never saw or signed a

second discharge form, and that he was unaware of the August DD 214’s

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 existence until Chief Edelen informed him of it in April 2012. Immediately

thereafter, he filed a petition with the Navy Discharge Review Board to correct

his discharge status, which was still pending as of the date of the legal

proceedings below.

[7] The ALJ issued an order revoking Comer’s certification, concluding that it had

been issued on the basis of information later determined to be false. The Board

affirmed the ALJ’s decision, and Comer filed a petition for judicial review. The

trial court issued an order setting aside the revocation order, concluding that the

Board’s determination was arbitrary and capricious and unsupported by

substantial evidence. The Board now appeals. Additional facts will be

provided as necessary.

Discussion and Decision

[8] The Board maintains that the trial court erred in setting aside its order revoking

Comer’s Academy certification. When reviewing the decision of an

administrative agency, we are bound by the same standard as the trial court.

Umbrella Family Waiver Servs., LLC v. Ind. Family & Soc. Servs. Admin., 7 N.E.3d

272, 274 (Ind. Ct. App. 2014). This standard of review is outlined in the

Administrative Orders and Procedures Act (“AOPA”) and prohibits the

reviewing court from substituting its judgment for that of the agency. Id. at 274-

75. Instead, the reviewing court considers the evidence in the light most

favorable to the administrative proceedings and neither reweighs evidence nor

assesses witness credibility. Pendleton v. McCarty, 747 N.E.2d 56, 61 (Ind. Ct.

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 App. 2001), trans. denied. The reviewing court shall grant relief only if it

determines that the person seeking judicial relief has been prejudiced by an

agency action that is:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;

(2) contrary to constitutional right, power, privilege, or immunity;

(3) in excess of statutory jurisdiction, authority, or limitations, or short
of statutory right;

(4) without observance of procedure required by law; or

(5) unsupported by substantial evidence.

Ind. Code § 4-21.5-5-14(d).

[9] “An administrative act is arbitrary and capricious only where it is willful and

unreasonable, without consideration and in disregard of the facts and

circumstances of the case, or without some basis that would lead a reasonable

and honest person to the same conclusion.” Terra Nova Dairy, LLC v. Wabash

Cnty. Bd. of Zoning Appeals, 890 N.E.2d 98, 104 (Ind. Ct. App. 2008) (citation

omitted). The burden of demonstrating the invalidity of agency action is on the

party seeking review of the action. Id. “Substantial evidence is such relevant

evidence which a reasonable mind might accept as adequate to support the

conclusion.” Roberts v. Cnty. of Allen, 773 N.E.2d 850, 853 (Ind. Ct. App. 2002),

trans. denied.

[10] In the interest of public safety and general welfare, the Indiana General

Assembly established mandatory training for law enforcement officers and

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 created the Board to oversee and carry out the law pertaining to the training of

such officers. Ind. Code §§ 5-2-1-1, -3. The Board contends that it revoked

Comer’s certification based on Indiana Code Section 5-2-1-12.5, which reads in

pertinent part, “(a) The board may revoke a … certificate … showing

compliance and qualification issued by the board for any of the following

reasons: …. (3) The officer’s … certificate … showing compliance and

qualification was issued in error or was issued on the basis of information later

determined to be false.” (Emphasis added.) Specifically, the Board alleged that

the “information later determined to be false” was Comer’s assertion that he

was honorably discharged from the Navy.

[11] Throughout the proceedings, Comer steadfastly maintained that he never knew

that his discharge status had changed, that he did not sign the second form, and

that he never knew it existed. He claimed that he did not learn of the

inconsistency in his discharge status until April 2012, after which he

immediately petitioned the Navy Discharge Review Board for a correction of

military record. In support of his claim that he received an honorable

discharge, Comer presented evidence that the Navy paid for his June 2005

move, which it would not have done if he had received an “other than

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[12] honorable” discharge.1 See Respondent’s Ex. 2 (consisting of Department of

Defense form for moving expenses and line of accounting from Navy showing

issuance of reimbursement check dated March 29, 2006); see also Appellant’s

App. at 194 (testimony of Director Lanzone that Navy pays expenses of

moving household goods only for personnel who receive an honorable

discharge).

[13] The Board correctly points out that because Indiana Code Section 5-2-1-

12.5(a)(3) does not specifically require that the officer have knowledge of the

falsity, it did not have the burden of establishing Comer’s awareness of his

“other than honorable” discharge. Nonetheless, the ALJ found Comer not to

be credible with respect to his claim of unawareness and concluded in part,

Deserting the U.S. Navy once or twice; being caught by a Gary,
Indiana police officer while AWOL from the U.S. Navy; and
representing to his first police employer, [IUPD] – New Albany, then
to his second employer, [MCPD] when hired and to the [Academy], as
well when he was admitted for basic training that he had a[n]

1
The ALJ’s findings emphasize a link between the classification of Comer’s discharge and his alleged lack of
good reputation and character. 250 Indiana Administrative Code 2-3-5 requires that every applicant for
officer training “be of good reputation and character as determined by a police department character and
background investigation on the applicant … .” (Emphasis added.) IUPD was the department that sent Comer
to the Academy. The record indicates that during the hiring process, IUPD conducted a background check
on Comer that included a polygraph, which he passed, and made a determination that he was of good
reputation and character.

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 honorable discharge (which was false), are all factors that individually
and jointly clearly demonstrate a lack of good reputation and character at the
time he applied for and received his [Academy] basic training
certificate.

[14] Appellant’s App. at 322 (emphasis added). The Board agreed and affirmed the

ALJ’s decision.

[15] The Board now submits that the trial court violated its standard of review in

finding Comer to be credible concerning his alleged unawareness of any change

in his discharge status. In its order setting aside the Board’s decision, the trial

court found in pertinent part,

3. On May 25, 2005, Petitioner was issued a Certificate of Release or
Discharge From Active duty (“DD214”) indicating an “Honorable
Discharge. Petitioner signed the DD214. The DD214 contained a
reserve obligation termination date of 2009 05 17. The Navy paid for
the Petitioner to move his household goods, his vehicles and
motorcycle, together with his wife’s articles back to Gary, Indiana.
The uncontroverted evidence was that the Navy would not pay for
such travel expenses if a less than honorable discharge was received.

4. Petitioner was arrested for desertion by a Gary Police Officer on
July 18, 2005.

5. Following Petitioner’s arrest, the Navy flew Petitioner back to
California to face the desertion charge. An administrative hearing was
held. Petitioner was not court martialed. Petitioner was ultimately
separated from the U.S. Navy with no reserve obligation.

6. According to military records but unbeknownst to Petitioner
another DD214 was issued on August 9, 2005 indicating that he had
received an “Other Than Honorable Discharge.”

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 …

10. Prior to being hired by the IUPD, Petitioner successfully passed a
background investigation. As part of the background investigation,
Petitioner successfully completed a polygraph examination.

…

22. Petitioner testified at the hearing that the signature and the initials
on the DD214 indicating “Other than Honorable Discharge” were not
his.

…

24. Petitioner’s discharge characterization of “Other than Honorable”
is disputed and the subject of an application to the Board of Correction
for Military Records and the Discharge Review Board. [The Board]
became aware of such application on or about June 27, 2012.

25. The uncontroverted evidence was that Petitioner signed and
initialed the DD214 issued on May 25, 2005 and that it was his
genuine signature and initials. The signature on the DD214 indicating
an “Other than Honorable Discharge” is not consistent with other
records maintained in Petitioner’s Navy Personnel file.

Id. at 54-55, 57.

The trial court concluded in part as follows:

A. There is substantial evidence in the record that would support the
ALJ’s conclusion that Petitioner’s official U.S. Navy military
discharge status is “other than honorable” based on the DD214 issued
on August 9, 2005, however, this “other than honorable[”] discharge
is being disputed and is the subject of an application by the Petitioner
with the Board of Correction for Military Records and the Discharge

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 Review Board. Until there is a decision by the Review Board, the use
of the “other than honorable” discharge in and of itself, does not
provide an adequate basis for revoking Petitioner’s certification under
I.C. 5-2-1-12.5(a).

….

F. There is not substantial evidence in the record to support [t]he
findings and conclusions of the ALJ that Petitioner misrepresented or
gave false information concerning his discharge status from the United
States Navy at the time of his application and hiring by IPUD [sic], his
admission and graduation from the Academy and his application and
hiring by MCPD.

G. In analyzing the Record as a whole, the decision of the [Board] to
revoke Petitioner’s certificate is not supported by substantial evidence.

H. The decision of the [Board] to revoke Petitioner’s certificate is
arbitrary and capricious in that it was made without consideration or
in disregard to the facts and circumstances of the case regarding
Petitioner’s knowledge of his discharge status at the time he applied
and was hired by IUPD, attended and graduated from the Academy
and at the time he applied and was hired by MCPD in not holding in
abeyance a decision until such time as Petitioner’s discharge status was
finally determined by the Board of Correction for Military Records
and the Discharge Review Board.

Id. 65-67.

[16] The Board asserts that the trial court improperly substituted its judgment for the

ALJ’s and did not defer to the expertise of the administrative agency.

Where the matter lies within the particular expertise of the
administrative agency, we afford the finding a greater level of
deference. Where the matter does not lie within the particular
expertise of the agency, however, the reviewing court is more likely to

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 exercise its own judgment. Regardless, the court examines the logic of
the inference drawn and imposes any rules of law that may drive the
result. The Board’s conclusion must be reversed if the underlying facts
are not supported by substantial evidence or the logic of the inference
is faulty, even where the agency acts within its expertise, or if the
agency proceeds under an incorrect view of the law.

Chrysler Grp., LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d 118,

122-23 (Ind. 2012).

[17] Here, the pivotal issue concerns the status of Comer’s military discharge, which

is a matter within the expertise of the Department of Defense, not the state law

enforcement training board. At the time of the trial court’s order, Comer’s

petition to correct his discharge classification was still pending before the body

most suited to resolve it – the Navy Discharge Review Board.2

[18] At the ALJ hearing, Director Lanzone testified telephonically concerning

Department of Defense procedures surrounding discharges. He explained that

where a DD 214 discharge form has already been issued to the discharged

member, a change in discharge status would be accomplished by issuing a DD

2
In this vein, we also note the frequent use of the term “desertion” in the briefs and in the findings. The
military has specific definitions for terms such as “desertion,” “AWOL,” and “unauthorized absence,” and
these designations carry vastly different consequences. Because these are matters within the expertise of the
military, we advise the parties and the tribunals below to exercise caution in using these terms without also
including their specific military definitions.

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 215 form to correct or update the original DD 214. Comer’s official

Department of Defense record does not include a DD 215 form. Director

Lanzone also testified that he had reviewed Comer’s May DD 214 indicating

an honorable discharge and concluded that it appears to be “very authentic, it

does not look to be forged at all.” Appellant’s App. at 190. Moreover, he

testified that Comer’s signature and initials on the May DD 214 matched those

contained in all of Comer’s other naval records. When asked to explain what

might account for the inconsistent signature and initials contained on the

August DD 214, Director Lanzone posited that when such a discrepancy exists,

it could be attributable either to the discharged sailor intentionally signing the

form differently in the hope of later challenging its authenticity or to the records

clerk having failed to obtain the required signature and initials from the sailor

and signing the form himself. He did not render a professional opinion as to

what occurred in Comer’s case, and any attempt to characterize his testimony

as such would be a misrepresentation of the record.

[19] In sum, the ALJ’s decision to revoke Comer’s Academy certification was based

on the status of his discharge from the Navy. At the time of the Board’s

decision, Comer’s petition to correct his military record was pending with the

Navy Discharge Review Board. As such, the truth or falsity of Comer’s

assertion of an honorable discharge had not been determined. In other words,

the character of Comer’s discharge is a question with a definite answer which

should be provided by the body with expertise and access to the information.

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[20] Even if the Navy Discharge Review Board determines that Comer’s correct

discharge status is “other than honorable,” such status would not by itself

constitute grounds for revocation of his certification. The administrative

regulations disqualify from the Academy only applicants whose discharge

status is “dishonorable.” See 250 Ind. Admin. Code 2-3-8 (“A dishonorable

discharge from military service shall disqualify the applicant, and a discharge

other than honorable may be grounds for rejection in accordance with other

standards in this rule.”) (Emphasis added.) Here, Comer’s true discharge status

is either “honorable” or “other than honorable.” Even assuming that it is

“other than honorable,” he nonetheless could have been admitted to the

Academy. Thus, it cannot be said that his certification was issued on the basis of

his “honorable” discharge. Based on the foregoing, we affirm the trial court’s

decision to set aside the revocation of Comer’s certification.

[21] Affirmed.

Friedlander, J., and Kirsch, J., concur.

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