dissenting:
I cannot agree with the majority’s holding that the ABCMR properly explained its re*368fusal to waive the three-year limitations period in this case. The ABCMR’s bare quotation of the statutory standard “that it was not in the interest of justice to excuse [Mr. Kendall’sJ failure to timely file” does not satisfy the requirements of reasoned agency decisionmaking. I therefore dissent.
I
As the majority recounts, Mr. Kendall was convicted before a United States Army court-martial on November 27, 1974, at the age of twenty, for assaulting and communicating a threat to kill a fellow soldier. He was sentenced to confinement at hard labor for one year, forfeiture of $269 pay per month for one year, a reduction in rank, and a bad conduct discharge upon completion of his prison term. The Secretary of the Army subsequently approved a recommendation of the Army Clemency and Parole Board to remit confinement in excess of 10 months.
The majority also provides a detailed account of Mr. Kendall’s various attempts to have his conviction reversed and his military record changed to reflect an honorable discharge. Yet, the majority’s rendering of events omits some important details, such as the course of the court-martial itself and certain particulars of Mr. Kendall’s subsequent appeal and application for correction of military records. The following facts — all of which were known to the ABCMR at the time of its decision not to waive the limitations period in the interest of justice — raise at the very least some serious and troubling questions about whether justice was done at Mr. Kendall’s trial and in his subsequent appeals.
A
During the two-day trial, Mr. Kendall and two witnesses testified that the victim, Private Orr, provoked Mr. Kendall by taunting him and swinging at him with a knife. There is no dispute that Mr. Kendall suffered a knife wound during the altercation with Private Orr. Notwithstanding Mr. Kendall’s claim of self-defense, his defense counsel, an Army judge advocate, failed to subpoena Private Orr although he intended to call him as a witness. Mr. Kendall asserts that defense counsel told him that a subpoena was unnecessary because Private Orr would attend the trial because he was the victim of the alleged crime. The prosecution chose not to call Private Orr, and he therefore did not attend or testify at the trial.
In addition to failing to ensure Private Orr’s presence at trial, defense counsel appeared woefully ill-equipped for the sentencing phase of the court-martial. He made the bizarre request that the prosecutor be called as a witness to testify on the consequences of a punitive discharge. The military judge refused, characterizing the request as “shocking” and “ridiculous,” and asked defense counsel if he could present the evidence through a different witness. General Court-Martial Record of Trial at 124. Defense counsel responded, “I am sure I could find another witness outside [the courtroom] that can testify to that.” Id. Since it appeared that defense counsel had no witness prepared, the military judge refused to allow a recess and proceeded with the sentencing. Id. at 125.
B
Mr. Kendall first appealed his conviction to the Army Court of Military Review (the “ACMR”), which reviews court-martial findings of fact and conclusions of law de novo. He was represented by judge advocates from the Defense Appellate Division, whom he maintains never met or consulted with him. The only error asserted by appellate defense counsel was the military judge’s failure to give instructions on the law of excuse and self-defense. The appellate counsel did not raise the fact that trial counsel had failed to take the necessary steps to compel Private Orr’s attendance. On May 21, 1975, the ACMR affirmed the conviction in a standard form decision without hearing oral argument.
Mr. Kendall next applied for discretionary review from the United States Court of Military Appeals (“CMA”). He was again represented by the Defense Appellate Division, and the very terse submissions to the CMA on his behalf rested on the same grounds presented to the ACMR. On July 17, 1975, CMA denied the petition for review. Mr. *369Kendall received a bad conduct discharge on September 12, 1975, shortly after completing his prison term.
C
Having exhausted his avenues of direct appeal, Mr. Kendall made two applications to the Army Board for Correction of Military Records (“ABCMR”) in connection with his court-martial conviction. First, on June 17, 1977, he filed an application requesting a new trial on the grounds that he had a right “to be tried by a full jury, not a court of five members” under the Uniform Code of Military Justice. First Application for Correction of Military or Naval Record (June 17, 1977). The ABCMR replied that
as a matter of policy, ... [the ABCMR] does not accept jurisdiction over applications where the issue is limited solely to the setting aside of a conviction by a military court after such conviction has become final and conclusive, or of the deletion of such a record, as in this case.
Letter from ABCMR to Mr. Kendall (August 24,1977). Thus, concluded the ABCMR, Mr. Kendall’s application would be “filed without further action.” Id.
On June 1, 1986, nearly nine years after nis first application was denied, Mr. Kendall filed a second application with the ABCMR alleging that he had not received proper legal representation. Second Application for Correction of Military or Naval Record (August 7, 1986). In support of his application, Mr. Kendall alleged, inter alia, that: (1) trial defense counsel was ineffective because counsel did not know that a subpoena was necessary to ensure Private Orr’s attendance; (2) Mr. Kendall was prejudiced by counsel’s failure to call Private Orr as a witness; (3) the military judge refused to halt the trial to demand Private Orr’s appearance or an explanation for his absence; and (4) Mr. Kendall was denied access to relevant records and contact with his appellate counsel because he was incarcerated at Fort Leavenworth at the time.
On April 6, 1988, the ABCMR issued a Memorandum of Consideration denying Mr. Kendall’s application on the ground that it was not timely filed. ABCMR Memorandum of Consideration (April 6, 1988). The ABCMR relied on the following limitations provision:
No correction [of military records] may be made ... unless the claimant or his heir or legal representative files a request for the correction within three years after he discovers the error or injustice. However, [the ABCMR] may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice.
10 U.S.C. § 1552(b). The ABCMR reasoned that the alleged error or injustice in this case was, or should have been, discovered no later than the date of Mr. Kendall’s discharge, September 12,1975. Thus, the ABCMR concluded, Mr. Kendall’s second application was filed more than ten years late.
As for the statutory exception to the three-year limitations period, the ABCMR concluded that Mr. Kendall “has not presented, nor do the records contain, sufficient justification to establish that it would be in the interest of justice to excuse the failure to file within the time prescribed by law.” ABCMR Memorandum of Consideration at 3 (April 6, 1988). The letter notifying Mr. Kendall of the ABCMR’s decision was even more cursory, stating without explanation the ABCMR’s judgment “that it was not in the interest of justice to excuse your failure to timely file.” Letter from Chief, Personnel Services Division to Mr. Kendall (undated).
D
Mr. Kendall next filed an action in the United States District Court for the Middle District of Pennsylvania. (He is currently incarcerated in a state prison within that judicial district on an unrelated charge.) In a filing inaptly titled a “Motion for Relief from Judgment Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure,” Mr. Kendall sought review of his court-martial conviction, expungement of his bad conduct discharge, and restoration of military benefits.
A federal magistrate erroneously construed Mr. Kendall’s action as a petition for habeas corpus and recommended transferring the case to the United States District *370Court for the District of Columbia on the theory that Mr. Kendall’s ultimate custodians were located here. The parties did not contest the magistrate’s recommendation, which was subsequently approved by the court.
Once the case had been transferred to the United States District Court for the District of Columbia, the government moved to dismiss or, in the alternative, for summary judgment. The motion consisted of a multifarious attack on the court’s competency to hear the case, and the district court dismissed the action, without opinion, “for the reasons set forth in defendant’s memorandum.” Kendall v. U.S. Army Board, No. 89-1989 (D.D.C. Jan. 15, 1991) (order granting the government’s motion and dismissing Mr. Kendall’s action). Thus, the particular grounds upon which the district court rested its decision cannot be determined.
II
A
The majority holds that the ABCMR was not arbitrary and capricious in rejecting Mr. Kendall’s second application with nothing more than an unexplained, conclusory statement “that it was not in the interest of justice to excuse [Mr. Kendall’s] failure to timely file.” Letter from Chief, Personnel Services Division to Mr. Kendall (undated). The majority asserts that the ABCMR decision was reasonable because Mr. Kendall “offered no evidence to the ABCMR to explain his delay.” Majority op. at 367.
But Mr. Kendall did offer reasons for the delay in filing, none of which the ABCMR acknowledged or addressed in its response. Mr. Kendall suggested in his application that he was suffering from a mental health ailment, and that he did not have access to relevant records and legal materials. Second Application for Correction of Military or Naval Record (August 7, 1986). These are factors that the ABCMR should have considered in making the “interest of justice” determination.
Furthermore, the majority appears to incorrectly assume that the reasons for delay in filing are the only relevant consideration, and that the underlying merits of Mr. Kendall’s application for correction are not germane to the “interest of justice” determination. But the ABCMR itself considered the merits evidence that Mr. Kendall presented to be relevant — its Memorandum of Consideration includes a recapitulation of those facts as the “evidence of record.” See ABCMR Memorandum of Consideration at 2 (April 6, 1988). Courts addressing the issue have also stated that the ABCMR should consider the merits of the application of correction when determining whether the limitations period should be waived in the interest of justice. See Guerrero v. Marsh, 819 F.2d 238, 241 (9th Cir.1987); Mullen v. United States, 17 Cl.Ct. 578 (1989).
The ABCMR had before it substantial evidence that the military had provided Mr. Kendall with gravely inadequate trial (and appellate) counsel. Whether or not these injustices are of constitutional dimensions, Mr. Kendall certainly presented a strong case that justice would be served by waiving any failure to timely file his second application with the ABCMR. The ABCMR was obligated at the very least to consider the merits of Mr. Kendall’s claim, and the proffered reasons for the delay, and to explain why they did not warrant an exception to the ABCMR’s three-year limitations period. The bare assertion “that it was not in the interest of justice to excuse [Mr. Kendall’s] failure to timely file,” which is nothing more than an unexplained parroting of the statutory standard, does not satisfy the requirements of reasoned agency decisionmaking.
B
The majority’s reasoning also ignores more than one of the “simple but fundamental rule[s] of administrative law.” SEC v. Chenery, 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). First, the majority appears to have forgotten that a reviewing court “must judge the propriety of [agency] action solely by the grounds invoked by the agency.” Id. at 196, 67 S.Ct. at 1577. Accord Burlington Truck Lines v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962) (“Chenery requires that an agency’s discretionary order be upheld, if at all, on the *371same basis articulated in the order by the agency itself.... ”); Fort Stewart Schools v. FLRA, 495 U.S. 641, 651-52, 110 S.Ct. 2043, 2049, 109 L.Ed.2d 659 (1990). The ABCMR never stated that its decision was based on the fact that Mr. Kendall did not explain the reasons for the delay in filing his second application. Rather, as discussed supra at 365-66, the ABCMR focused on the underlying merits of Mr. Kendall’s application. Having laid out Mr. Kendall’s case, however, the ABCMR merely concluded without explanation that the evidence did not warrant a waiver of the statute of limitations.
In approving the ABCMR’s mode of deci-sionmaking, the majority has also disregarded the “axiom of administrative law that an agency’s explanation of the basis for its decision must include “a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Assn. v. State Farm Mut. Automobile Insurance, 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck, 371 U.S. at 168, 83 S.Ct. at 245). The ABCMR cannot satisfy its obligation to explain its decision by presenting a laundry list of evidence followed by a conclusion that does not attempt to explain the connection between the former and the latter.
C
As the foregoing discussion indicates, I would reach the issue that the majority declines to decide — whether the ABCMR’s decision whether to waive a time-barred application in the interest of justice is subject to judicial review- — and settle the issue in favor of reviewability. The majority purports not to decide the issue, Majority op. at 366, 367, but also states that the ABCMR’s decision “appears to be wholly within the Board’s discretion.” Id. at 367 n. 5. See also id. at 366 n. 4 (citing Ballenger v. Marsh, 708 F.2d 349 (8th Cir.1983) (holding that the ABCMR decision not to entertain an untimely claim is unreviewable)).
The existing law in this Circuit is contrary to the Eighth Circuit’s approach and the majority’s suggestion. The District Court in this Circuit has already held that the the “[AjBCMR’s decision whether or not to waive [its] statute of limitations is reviewable under an abuse of discretion standard.” Allen v. Card, 799 F.Supp. 158 (D.D.C.1992). The Allen court relied in part on this Court’s decision in Baxter v. Claytor, 652 F.2d 181 (D.C.Cir.1981). The Baxter Court stated that the ABCMR determination whether to waive its limitation period in the interest of justice “is for the Board to make in the first instance,” suggesting that the decision is ultimately reviewable in federal court. Id. at 186 (emphasis added). Accord Guerrero, 819 F.2d at 241 (adopting Baxter)-, Mullen, 17 Cl.Ct. 578 (rejecting Ballenger and adopting an abuse of discretion standard of review). See also Thornton v. Coffey, 618 F.2d 686, 692 (10th Cir.1980) (“[W]e believe that it would be in the interest of justice for the [A]BCMR to consider [appellant’s] untimely application should he choose to make one.”).
D
The majority maintains that “the government’s objection to venue is well taken, 28 U.S.C. § 1391 (1991), as neither the plaintiff nor defendant in the district court action are located in this judicial district_” Majority op. at 367 n. 9. The government raised the objection for the first time after Mr. Kendall’s action was transferred to the District of Columbia, and I would hold that the government waived any claim of improper venue by failing to object to the transfer beforehand in the Middle District of Pennsylvania.
Federal Rule of Civil Procedure 12(h) provides that an improper venue defense is waived if it is available but is not raised in a motion or responsive pleading. Although the venue defense was not “available” to the government at the time of its answer to the Pennsylvania complaint, the government certainly could have raised the venue issue in opposition to the magistrate’s recommendation to transfer the case to Washington. To allow the government to assert an improper venue defense at this juncture, after acquiescing in the transfer to Washington, would violate both the spirit and the letter of the rule that venue objections are waivable.
*372Conclusion
I would remand to the district court with instructions to remand to the ABCMR for further consideration of its decision not to entertain Mr. Kendall’s application. I would also direct that in making its “interest of justice” determination, the ABCMR be instructed to consider both the merits of Mr. Kendall’s claim and the possible reasons for the filing delay.