Mahoney v. Del Toro

Filing 27

Chief Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER.For the foregoing reasons, plaintiff's motions for judgment on the pleadings and for summary judgment (Dkt. No. 20 ) are DENIED. Defendant's cross-motion for judgment on the pleadings (Dkt. No. 23 ) is GRANTED.So Ordered. (de Oliveira, Flaviana)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________

)
DANIEL RICHARD MAHONEY,
)
)
Plaintiff,
)
)
v.
)
)
CARLOS DEL TORO, Secretary of
)
the Navy,
)
)
Defendant.
)
_______________________________________)

Civil Action No.
22-11074-FDS

MEMORANDUM AND ORDER ON
PARTIES’ MOTIONS FOR JUDGMENT ON THE PLEADINGS,
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
SAYLOR, C.J.
This is a case concerning a denial of a veteran’s petition for a recharacterization of his
discharge. Plaintiff Daniel Mahoney asserts that the Board for Correction of Naval Records
(“BCNR”) improperly denied his petition to upgrade his discharge characterization from “other
than honorable” to “honorable” or (alternatively) “general under honorable conditions.” He
contends that the BCNR’s decision should be reversed under the Administrative Procedure Act,
5 U.S.C. § 500 et seq. Defendant Carlos Del Toro, the Secretary of the Navy, contends that the
BCNR’s decision should be upheld.
Mahoney received a general discharge from the Navy in 1989 under “other than
honorable conditions” for “misconduct due to drug abuse and [a] pattern of misconduct.”
Among other things, a urinalysis test detected marijuana in his system; he contended that he
tested positive because another sailor “tossed” a joint into his alcoholic beverage, and that
therefore his consumption of marijuana was not knowing.

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Mahoney now contends that he was suffering at the time from post-traumatic stress
disorder (“PTSD”), and that under current military policies, the BCNR should have granted his
petition to upgrade the characterization of his discharge. The BCNR denied his petition, in
substance, because he has not admitted that his marijuana use was knowing, and therefore
wrongful; that his version of events is not credible; and that neither Mahoney himself nor any
expert has attributed his marijuana use to PTSD.
This action, in substance, is an appeal from that decision. Mahoney has moved for
judgment on the pleadings and for summary judgment. Del Toro has cross-moved for judgment
on the pleadings.
Without question, the United States military is entitled to take substance abuse seriously.
And it is likewise entitled to give substantial weight to issues such as candor, credibility, and
acceptance of responsibility in its personnel decisions, including the determination of whether a
characterization of a service discharge should be upgraded. Indeed, the guidance provided by the
Department of Defense to the BCNR specifically provides that the Board may consider “[a]n
applicant’s candor” and his “[a]cceptance of responsibility, remorse, or atonement for
misconduct” in deciding whether to grant relief. See Memorandum from Robert Wilkie, Under
Sec’y of Def. for Personnel and Readiness (July 25, 2018).
Furthermore, it is not the role of this Court to simply second-guess the decisions of
military boards of review. Its role is a limited one, confined to determining whether such a
decision was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.
Under the circumstances presented here, the Court cannot make the necessary findings to
overturn the decision of the BCNR. Accordingly, and for the following reasons, plaintiff’s
motions for judgment on the pleadings and for summary judgment will be denied, and

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defendant’s motion for judgment on the pleadings will be granted.
I.

Background
A.

Factual Background

The following facts, unless noted otherwise, are set forth as alleged in the complaint. The
Court also takes notice of the administrative record before the BCNR, as a document whose
authenticity is not in dispute. See Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007).
Daniel Mahoney is a resident of Massachusetts. He served two tours of duty in the Navy
between 1985 and 1989. (Admin. Rec. at 0076, 0084-85).
Carlos Del Toro is the Secretary of the Navy. (Compl. ¶ 4).
Mahoney first enlisted in the Navy on August 27, 1985. (Admin. Rec. at 0109). During
his first enlistment, between February and August 1986, he was deployed on the USS Luce. (Id.
at 0077). The USS Luce “escorted oil tankers throughout the Persian Gulf, and through the Suez
Canal to the Mediterranean Sea” during the Iran-Iraq War. (Id.). “During this period, many
commercial ships operating in the Gulf were hit by Iranian and Iraqi attacks.” (Id.).
While serving on the USS Luce, Mahoney “witnessed a number of traumatic events.”
(Id.). He “observed an explosion on an oil tanker” and “witnessed crew members engulfed in
flames jumping into sea while others were being burned to death.” (Id.). He “smelled burning
flesh.” (Id.). He “felt intense fear, horror, and helplessness,” and “wanted to do something to
help those sailors, but [ ] could not.” (Id. at 0077-78).
Mahoney rose in paygrade and rank. (Id. at 0078, 0163). He did not receive any nonjudicial punishments (“NJPs”). (Compl. ¶ 15). He was awarded a commendation for his work
on the USS Luce’s pump in “hostile waters off the coast of Libya,” and another for “outstanding
performance” of “demanding duties with great dedication.” (Id. ¶ 16; Admin. Rec. at 0169). He
received three service ribbons. (Compl. ¶ 17; Admin. Rec. at 0088).
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On August 24, 1988, Mahoney’s first deployment ended, and he was honorably
discharged. (Admin. Rec. at 0007). He reenlisted the next day. (Id.).
Mahoney’s second deployment was difficult. According to the complaint, he “had
extreme difficulty sleeping and felt like [he] was always under constant stress.” (Id. at 0079).
He “had overwhelming feelings of horror, anger, and guilt daily, and continued to relive [his]
experience in the Persian Gulf.” (Id.). He “discovered that alcohol helped stop some of these
troubling thoughts and also helped [him] fall asleep.” (Id.).
In December 1988, Mahoney received an NJP for “an unauthorized absence of 30
minutes.” (Id. at 0080).
In January 1989, Mahoney was apprehended in Jacksonville, Florida, for a “DWI,
speeding, and having the wrong tag on [his] vehicle.” (Id.).
In February 1989, Mahoney received an NJP for drunkenness. (Id.).
In March 1989, Mahoney was evaluated for “drug/alcohol dependency.” (Id.).
From about April 23, 1989, to June 2, 1989, Mahoney was treated at the Naval Hospital
in Pensacola, Florida. (Id. at 0081). His treatment “emphasized abstinence” from alcohol. (Id.).
He was not treated for his “stress disorder or the stress symptoms” that he was experiencing.
(Id.).
In July 1989, Mahoney received an NJP for an unauthorized absence of “one hour and 53
minutes.” (Id. ¶ 26).
In September 1989, Mahoney received a single NJP for “(1) an unauthorized absence
lasting 11 hours and 30 minutes; (2) an unauthorized absence lasting 30 minutes; and (3) a single
positive urinalysis for marijuana.” (Compl. ¶ 29; Admin. Rec. at 0275). Mahoney asserts that he
tested positive because another sailor “tossed” a joint into “the alcoholic beverage [he] was

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drinking” the day before the urinalysis. (Admin. Rec. at 0082).
In late September, Mahoney’s commander informed him that he was being considered for
separation. (Id. at 0083).
On October 16, 1989, Mahoney declined further “drug/alcohol care.” (Id.). He was then
administratively separated and discharged under other than honorable conditions. (Id. at 0275).
Mahoney’s discharge paperwork notes that the basis for his discharge was “misconduct
due to drug abuse and pattern of misconduct.” (Id. at 0275). It listed four NJPs. (Id. at 0275).
According to the complaint, immediately after his discharge, Mahoney was homeless for
six months before moving back to Massachusetts. (Id. at 0083-84). Until 2006, he struggled to
find “steady employment” and “struggle[d] with controlling [his] alcohol dependency.” (Id. at
0084). He found himself “hitting rock bottom.” (Id.).
Mahoney began participating in “group meetings with other people who similarly had
reached the lowest points of their lives and who were also trying to turn their lives around.”
(Id.). He also began regularly attending Alcoholics Anonymous meetings. (Id.). He has been
sober since December 2006. (Id.).
Mahoney graduated from North Shore Community College in 2008 with an associate’s
degree in drug and alcohol rehabilitation. (Id.). He graduated from Salem State University in
2015 with a bachelor’s degree in social work in 2015. (Id.).
From 2016 to 2019, Mahoney was employed at the Essex Country Club in Manchester,
Massachusetts, working as a member of the kitchen utility staff. (Id. at 0085). In 2019,
however, he “was forced into early retirement due to the development of Superficial Siderosis, a
serious brain hemorrhage, which has made him very ill.” (Compl. ¶ 55).
Since 2009, Mahoney has “actively volunteered for the North Shore Health Project,” for

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which he received a client appreciation award in 2017. (Admin. Rec. at 0085). He
“participate[s] in lobbying activities on behalf of the Massachusetts Coalition to End
Homelessness.” (Id.). He also served as a board member for the Department of Mental Health
Citizens Board in Lynn, Massachusetts. (Id.).
Mahoney has been married since 2006. (Id.).
B.

Procedural Background
1.

Plaintiff’s Petition

On September 17, 2018, Mahoney submitted a petition to the BCNR requesting that his
characterization of service be upgraded to “Honorable” or, in the alternative, “General Under
Honorable Conditions.” (Id. at 0018). He contended that an upgrade would be appropriate for
three reasons. First, he contended that his “PTSD should be considered a mitigating factor for
the misconduct that [he] engaged in that ultimately led to [his] discharge under Other than
Honorable circumstances.” (Id.). He argued that two Department of Defense memoranda
required “liberal and special” consideration of his PTSD as a mitigating factor. (Id.). Second, he
contended that his “commendable overall in-service performance and model post-discharge
behavior demonstrate equitable considerations that weigh in favor of an upgrade.” (Id.). Third,
he contended that “under current procedures [he] likely have been medically discharged.” (Id. at
0018-19).
Mahoney’s petition included a report by Dr. Sandra A. Dixon, a licensed psychologist
who examined him in April 2018. (See id. at 0090). Dr. Dixon concluded that after his initial
service on the USS Luce, he met the diagnostic criteria for “Post Traumatic Stress Disorder, at a
Several Level” and “Major Depressive Disorder, Recurrent, Severe.” (Id. at 0105). She noted
that his “conduct leading to discharge, substance abuse, can better be understood as a trauma
response” that “directly impacted [his] ability to execute his military duties competently and
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consistently.” (Id. at 0106). She stated that it was her “professional medical opinion there is a
clear nexus between his mental health disorders, specifically PTSD, and the conduct leading to
discharge.” (Id. at 0105-06).
2.

The BCNR Opinion

On March 2, 2020, the BCNR denied Mahoney’s petition in a written opinion. (Id. at
0001). The Board concluded that “[a]fter careful and conscientious consideration of the entire
record, [it] found that the evidence submitted was insufficient to establish the existence of
probable material error or injustice.” (Id.).
The opinion began by noting that “[a]lthough the application was not filed in a timely
manner, the Board found it in the interest of justice to waive the statute of limitations and
consider [the] application on its merits.” (Id.). The opinion then reviewed the circumstances of
Mahoney’s military service and his discharge. (Id. at 0001-02).
Because Mahoney’s request for an upgrade to his characterization of service was based in
part on the contention that he unknowingly suffered from PTSD at the time of the misconduct
that ultimately led to his discharge, his request was “fully and carefully considered by the Board
in light of” three potentially relevant memoranda that had been issued by the Department of
Defense. (Id. at 0002 (citing Memorandum from Chuck Hagel, Sec’y of Def. (Sept. 3, 2014) (the
“Hagel Memorandum”); Memorandum from A.M. Kurta, Acting Under Sec’y of Def. for
Personnel and Readiness (Aug. 25, 2017) (the “Kurta Memorandum”); and Memorandum from
Robert Wilkie, Under Sec’y of Def. for Personnel and Readiness (July 25, 2018) (the “Wilkie
Memorandum”))). The specific guidance provided by those memoranda will be discussed in
further detail below.
Next, the BCNR noted that it reviewed an advisory opinion (“AO”) performed by a Navy
mental-health professional in January 2019. (Admin. Rec. at 0002). The Board’s opinion stated:
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The AO stated you have been diagnosed by a civilian psychologist with PTSD
and major depressive disorder which can be attributed to your military service.
Additionally, the AO noted that, while in-service, you were diagnosed with what
would now be called alcohol use disorder and stated there is evidence you were
experiencing emotional difficulties in addition to alcohol use symptoms. The AO
further stated it is “reasonable to consider Petitioner’s alcohol treatment was
unsuccessful due to his concurrent mental health symptoms” and to “attribute his
misconstrued misconduct following alcohol treatment to continued mental health
symptoms.”
(Id. at 0002).
The BCNR then noted that it had “carefully reviewed [Mahoney’s] application, weighed
all potentially mitigating factors, and considered [his] contention that PTSD should be
considered a mitigating factor for the misconduct [he] engaged in that ultimately led to [his]
OTH discharge.” (Id.). Specifically, the Board stated that it had considered (1) “the diagnoses,
comments, and opinion of [his] civilian mental health provider that there was a clear nexus
between [his] mental health disorders and the conduct leading to [his] discharge” and that any
treatment for alcohol abuse he had received at the time did “not seem adequate”; (2) “[his]
commendable overall in-service performance and model post-discharge behavior,” “numerous
advocacy letters submitted on [his] behalf,” and his “post-service achievements”; and (3) his
contention that he would have likely been medically discharged under current Navy procedures.
(Id. at 0002).
Finally, the BCNR—“noting the wrongful use of a controlled substance which spurred
the initiation of administrative separation proceedings”—considered Mahoney’s continued
contention that he did “not knowingly consume marijuana” and that his positive drug test
resulted from another sailor tossing a joint into his alcoholic beverage. (Id. at 0003). It further
noted that his psychologist had opined that his undiagnosed PTSD had led to alcohol abuse and
resulting misconduct, and that he himself likewise believed that his PTSD resulted in alcohol
dependency. (Id. at 0003).
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The BCNR then pointed out that Mahoney was discharged for “misconduct due to drug
abuse and [a] pattern of misconduct as evidenced by four nonjudicial punishments.” (emphasis
in original). (Id.). It noted that either drug abuse or a pattern of misconduct supported a lessthan-honorable discharge, adding: “However, you do not meaningfully address the alternative,
‘drug abuse,’ basis for your separation—other than contending that you did not knowingly use a
controlled substance.” (Id.).
The BCNR concluded:
At no point do you admit to wrongful drug use [for the September 1989
urinalysis] or at any time during your military service. At no point do you
contend that wrongful drug or marijuana use was a part of your means of selfmedicating due to PTSD. At no point do you or any medical professional
attribute your NJP for wrongful drug use to self-medication due to PTSD. Nor do
you explain how a “marijuana joint” landing in your alcoholic beverage caused
you to ingest marijuana — let alone in sufficient quantity to test positive for THC
at the levels required under Navy mass spectrometry analysis. Rather, you simply
contend, under oath, that your ingestion of this controlled substance was
unknowing and by this method. However, you were found guilty at NJP in
September 1989 by a preponderance of the evidence and, after three decades, the
Board is not persuaded to disturb that finding.
(Id. at 0004).
The Board went on to state that “[a]ssuming, arguendo, that [Mahoney] had undiagnosed,
in-service PTSD at the time of [his] misconduct, after a thorough consideration of [his]
contentions and mitigating factors, the Board, applying liberal consideration, determined that
[his] PTSD did not mitigate the drug-related misconduct which led to [his] discharge.” (Id.). It
further “noted that the command did not pursue administrative separation processing after [his]
13 July 1989 NJP, which by [his] statement was the result of [his] return to alcohol, but did
pursue processing over two months later after [his] positive urinalysis and 29 September 1989
NJP for drug use.” (Id.). And it determined that his explanation for the positive test was
“neither plausible nor supported by [his] submission,” and that his denial of knowingly using
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marijuana meant that his “PTSD cannot be said to have mitigated [his] wrongful drug use on this
occasion.” (Id.). As a consequence, the BCNR did not “address the merits of [his] PTSD
contentions or the alternate, pattern of misconduct, basis of [his] separation.” (Id.).
The Board determined that the explanation for testing positive for marijuana
contained in your sworn personal statement was neither plausible nor supported
by your submission. Moreover, you have consistently denied wrongful use of
drugs in-service – let alone ever attributing it to another form of self-medication
due to your undiagnosed, in-service PTSD. As such, your PTSD cannot be said to
have mitigated your wrongful drug use on this occasion, or your separation based
on misconduct due to that drug abuse. As this determination is dispositive of your
petition, the Board need not address the merits of your PTSD contentions or the
alternate, pattern of misconduct, basis of your separation.
(Id.).
Finally, the Board concluded:
Accordingly, under the totality of the circumstances and for the foregoing
reasons, the Board in its review discerned no probable material error or injustice
that warrants changing your characterization of service.
(Id.).
3.

Proceedings in this Court

On July 5, 2022, Mahoney filed a complaint in this court requesting judicial review of the
BCNR’s decision. He contends that the BCNR’s decision was arbitrary, capricious, an abuse of
discretion, unsupported by substantial evidence, and contrary to law. The complaint requests
that the court enjoin the BCNR to correct his record to reflect a discharge characterization of
honorable or general under honorable conditions, pursuant to the Administrative Procedure Act,
5 U.S.C. § 706(2).
Mahoney has moved for judgment on the pleadings and for summary judgment. His
motion requests that the Court set aside the BCNR’s decision and remand the matter to the
BCNR for reconsideration. Del Toro has cross-moved for judgment on the pleadings.

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II.

Legal Standard
A motion for judgment on the pleadings under Rule 12(c) differs from a motion to

dismiss under Rule 12(b)(6) primarily because it is filed after the close of pleadings and
“implicates the pleadings as a whole.” Aponte-Torres v. University of P.R., 445 F.3d 50, 54-55
(1st Cir. 2006). It is, however, treated similarly. See id. at 54. To survive a motion for
judgment on the pleadings, a complaint must state a claim that is plausible on its face. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For a claim to be plausible, the “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” Id. at 555
(internal citations omitted). “The plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556).
In determining whether a complaint satisfies that standard, a court must assume the truth
of all well-pleaded facts and give the plaintiff the benefit of all reasonable inferences. See R.G.
Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 182 (1st Cir. 2006). In addition to well-pleaded
facts, a court may consider documents incorporated by reference into the complaint, matters of
public record, and facts susceptible to judicial notice. Grajales v. Puerto Rico Auth., 682 F.3d
40, 44 (1st Cir. 2012). A court may also consider documents whose authenticity is not disputed
by the parties and documents central to the plaintiff’s claim, even when those documents are
incorporated into the movant’s pleadings. Curran, 509 F.3d at 44.
A court may only enter a judgment on the pleadings “only if the uncontested and properly
considered facts conclusively establish the movant’s entitlement to a favorable judgment.”
Aponte-Torres, 445 F.3d at 54.

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III.

Analysis
A.

The Administrative Procedure Act

Plaintiff challenges the BCNR’s evaluation of the administrative record. Federal courts
may review the decisions of military boards of correction under the Administrative Procedure
Act (“APA”). Bolton v. Department of the Navy Bd. for Correction of Naval Recs., 914 F.3d
401, 406 (6th Cir. 2019); 5 U.S.C. § 701.
Judicial review under the APA is “narrow” because the court “affords great deference to
agency decision-making.” International Jr. Coll. of Bus. & Tech., Inc. v. Duncan, 802 F.3d 99,
106 (1st Cir. 2015) (quoting Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st
Cir. 1997)). An agency’s decision is “presumed to be valid” if it is “supported by a rational
basis.” Puerto Rico Tel. Co. v. Telecommunications Regulatory Bd. of P.R., 665 F.3d 309, 319
(1st Cir. 2011). “Even if an inquiring court disagrees with the agency's conclusions, it ‘cannot
substitute its judgment for that of the agency.’” Boston Redevelopment Auth. v. National Park
Serv., 838 F.3d 42, 47 (1st Cir. 2016) (quoting Associated Fisheries, 127 F.3d at 109). A court
may only “hold unlawful and set aside agency action, findings, and conclusions found to
be . . . arbitrary, capricious, an abuse of discretion,” or otherwise contrary to law. 5 U.S.C.
§ 706(2)(A)-(D); Associated Fisheries, 127 F.3d at 109.
In determining whether agency action is arbitrary and capricious under the APA, the
court must examine the evidence relied on by the agency and the reasons given for its decision.
The 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.’” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)); see Citizens
Awareness Network, Inc. v. United States, 391 F.3d 338, 351-52 (1st Cir. 2004). “An agency
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action is arbitrary and capricious when the agency ‘relied on improper factors, failed to consider
pertinent aspects of the problem, offered a rationale contradicting the evidence before it, or
reached a conclusion so implausible that it cannot be attributed to a difference of opinion or the
application of agency expertise.’” Boston Redevelopment Auth., 838 F.3d at 47 (quoting
Associated Fisheries, 127 F.3d at 109).
Remand to the agency is appropriate if “the record before the agency does not support the
agency action, [or] if the agency has not considered all relevant factors.” Florida Power & Light
Co. v. Lorion, 470 U.S. 729, 744 (1985).
B.

Statutory and Administrative Standards

The Secretary of the Navy, acting through the BCNR, may “may correct any military
record of the [Navy] when the Secretary considers it necessary to correct an error or remove an
injustice.” 10 U.S.C. § 1552(a)(1). The BCNR may review such requests from “former
member[s] of the armed forces whose claim[s] under this section for review of a discharge or
dismissal [are] based in whole or in part on matters relating to post-traumatic stress disorder.”
Id. § 1552(h)(1). The BCNR must “review the claim with liberal consideration to the claimant
that post-traumatic stress disorder or traumatic brain injury potentially contributed to the
circumstances resulting in the discharge or dismissal or to the original characterization of the
claimant's discharge or dismissal.” Id. § 1552(h)(2)(B).
Both parties rely on three Department of Defense memoranda that provide guidance to
the BCNR: the Hagel Memorandum, the Kurta Memorandum, and the Wilkie Memorandum.
The Hagel Memorandum, which was promulgated on September 3, 2014, provides
“supplemental policy guidance which details medical considerations, mitigating factors, and
procedures for review.” (Admin. Rec. at 0049). It requires that “[l]iberal consideration [ ] be
given in petitions for changes in characterization of service to Service treatment record entries
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which document one or more symptoms which meet the diagnostic criteria of [PTSD].” (Id. at
0051). “Liberal consideration will be given to finding that PTSD existed at the time of service”
or “at the time of discharge,” where service records and diagnoses from “civilian providers”
support that finding. (Id. at 0051). “In cases in which PTSD or PTSD-related conditions may be
reasonably determined to have existed at the time of discharge, those conditions will be
considered potential mitigating factors in the misconduct that caused the other than honorable
conditions characterization of service.” (Id. at 0051).
The Kurta Memorandum, which was promulgated on August 25, 2017, provides
“clarifying guidance” to military review boards “regarding mental health conditions.” (Id. at
0054). It requires that “liberal consideration” be given “to veterans petitioning for discharge
relief when the application for relief is based in whole or in part on matters relating to mental
health conditions, including PTSD.” (Id. at 0055). It notes that a “veteran’s testimony
alone . . . may establish the existence of a condition or experience that the condition or
experience existed during or was aggravated by military service and that the condition or
experience excuses or mitigates the discharge.” (Id. at 0056). “Evidence of misconduct,
including any misconduct underlying a veteran's discharge, may be evidence of a mental health
condition, including PTSD.” (Id. at 0055).
The Wilkie Memorandum, which was promulgated on July 25, 2018, “provides standards
and principles” for military review boards “to guide [them] in application of their equitable relief
authority.” (Wilkie Mem. at 1). It notes that “[e]ach case will be assessed on its own merits,”
and that “[t]he relative weight of each principle[,] and whether the principle supports relief in a
particular case, are within the sound discretion of each board.” (Id.). The guidance applies to
“any . . . corrections, including changes in a discharge, which may be warranted on equity or

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relief from injustice grounds.” (Id.).
Among other things, the Wilkie Memorandum provides the following:
In determining whether to grant relief on the basis of equity [or] an injustice . . . ,
[boards] shall consider the following:
...
g. The relative severity of some misconduct can change over time, thereby
changing the relative weight of the misconduct in the case of the mitigating
evidence in a case. For example, marijuana use is still unlawful in the military,
but it is now legal under state law in some states and it may be viewed, in the
context of mitigating evidence, as less severe today than it was decades ago.
h. Requests for relief based in whole or in part on a mental health condition,
including post-traumatic stress disorder (PTSD) . . . , should be considered for
relief on equitable [or] injustice, . . . grounds whenever there is insufficient
evidence to warrant relief for an error or impropriety.
...
k. Relief is generally more appropriate for nonviolent offenses than for violent
offenses.
(Id. at 2).
The Wilkie Memorandum also provides that “[i]n determining whether to grant relief on
the basis of equity [or] an injustice . . . [boards] should also consider the following as
applicable:”
a. An applicant's candor
b. Whether the punishment, including any collateral consequences, was too harsh
c. The aggravating and mitigating facts related to the record or punishment from
which the veteran . . . wants relief
d. Positive or negative post-conviction conduct, including any arrests, criminal
charges, or any convictions since the incident at issue
e. Severity of misconduct
f. Length of time since misconduct
g. Acceptance of responsibility, remorse, or atonement for misconduct
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...
j. Critical illness or old age
k. Meritorious service in government or other endeavors
l. Evidence of rehabilitation
...
n. Job history
o. Whether misconduct may have been youthful indiscretion
p. Character references
q. Letters of recommendation
...
(Id. at 3).
C.

Analysis

Plaintiff contends that the BCNR made three errors in reviewing his application. First, he
contends that it did not account for his retroactive diagnosis of PTSD and changed social views
on marijuana to mitigate his positive urinalysis. Second, he contends that it did not properly
weigh the factors identified in the Wilkie Memorandum. Finally, he contends that “liberal
consideration” required it to address whether his PTSD was a mitigating factor for the entirety of
the conduct leading to his discharge.
Plaintiff first contends that the BCNR did not consider how his retroactive diagnosis of
PTSD and changed social views on marijuana should mitigate his positive urinalysis. He
contends that the medical opinions available to the BCNR state that all of his misconduct and
substance abuse was attributable to PTSD.
That argument misreads both opinions. Dr. Dixon’s opinion states that “there is a clear
nexus between his mental health disorders, specifically PTSD, and the conduct leading to
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discharge.” (Admin. Rec. at 0106). However, her opinion clearly specifies that it uses
“substance abuse” to mean “alcohol abuse.” (Id. at 0104). It repeatedly notes that plaintiff’s
response to trauma was “abuse of alcohol.” (Id. at 0106). The only mention of marijuana is in
the opinion’s summary of background information. (Id. at 0091 (“He was also randomly
selected for a urinalysis test, and tested positive for marijuana.”). The Navy’s expert opinion,
which relies on plaintiff’s service record, his affidavit, and Dr. Dixon’s report, states that “[i]t is
reasonable to attribute his continued misconduct following alcohol treatment to continued mental
health symptoms.” (Id. at 0013). Like Dr. Dixon’s opinion, the Navy’s expert opinion does not
mention marijuana use, except for a single reference to his positive urinalysis. (Id. at 0012). The
sum of the medical evidence in the record supports a retroactive diagnosis of PTSD, but the
medical opinions, read in context, do not support the conclusion that his PTSD was the cause of
his use of marijuana and his subsequent positive urinalysis.
Plaintiff further contends that changed social views on marijuana use should be
considered a mitigating factor. The Kurta Memorandum provides that
[t]he relative severity of some misconduct can change over time, thereby
changing the relative weight of the misconduct to the mitigating evidence in a
case. For example, marijuana use is still unlawful in the military but it is now
legal in some states and it may be viewed, in the context of mitigating evidence,
as less severe today than it was decades ago.
(Id. at 0058). However, whatever the contemporary view of marijuana use, plaintiff has never
acknowledged that his positive urinalysis was due to intentional ingestion of marijuana. In his
reply memorandum, he contends—apparently for the first time—that the positive result could
have been attributable to a “marijuana tea” or a “false positive.” (See Pl.’s Reply at 4). But
those arguments were not presented to the BCNR, and in any event they are not supported by the

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citations in plaintiff’s briefing. 1 Furthermore, the Court cannot credit the argument that
intentional marijuana use should be treated less severely when plaintiff has repeatedly said that
he did not knowingly consume marijuana.
Second, plaintiff contends that the BCNR did not properly weigh the factors set forth in
the Wilkie Memorandum. Some of those factors, certainly, appear to weigh in his favor. His
NJPs were based on “nonviolent offenses.” (Wilkie Mem. at 2). His request for relief is based
in part on PTSD. (Id. at 2). It has been more than thirty years since his discharge. (Id. at 3
(listing “[l]ength of time since misconduct” as an equitable factor)). He suffers from hearing loss
that “affects [his] balance,” making it difficult for him to walk “without the use of a cane.”
(Admin. Rec. at 0085). And he has suffered from a “serious brain hemorrhage,” and his
discharge characterization “reduces his eligibility for benefits and support services administered
by the U.S. Department of Veterans Affairs.” (Compl. ¶¶ 55, 50); (see Wilkie Mem. at 3 (listing
“[c]ritical illness” as an equitable factor). 2
Plaintiff’s post-discharge conduct appears to have been relatively exceptional: he
overcame homelessness, became sober, found steady employment, obtained a college degree,
volunteered in his community, and has been married for more than fifteen years. (See Wilkie
Mem. at 3 (listing “positive or negative post-conviction conduct,” “character and reputation,”
“evidence of rehabilitation,” and “job history” as equitable factors)). And the administrative
record contains a number of very positive character references. (Admin. Rec. at 0193-99).
The BCNR’s decision was based in substantial part on plaintiff’s apparent lack of candor

See Pl.’s Reply at 4 n.1 (discussing the potency of marijuana tea without explaining how a joint thrown
into a beverage could create such a tea); id at 4 n.2 (noting that “various medications” can result in a positive
marijuana test without citing any such medications that plaintiff was taking).
1

2

Plaintiff’s brain hemorrhage was not described in his petition to the BCNR.

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and failure to accept responsibility. It specifically noted that plaintiff still has not admitted that
he intentionally ingested marijuana; it essentially concluded that his explanation was not
credible, was rejected at the time of his discharge, and that it was “not persuaded to disturb that
finding.” (Admin. Rec. at 0004). Furthermore, it noted that neither plaintiff nor any medical
professional had attributed his marijuana use to PTSD. 3
The BCNR’s decision states that it “weighed all potentially mitigating factors,” including
the opinion of his mental-health provider, his “commendable overall in-service performance and
model post-discharge behavior,” and his contention that he likely would have been medically
discharged under current Navy procedures. (Id. at 0002-03). Plaintiff contends that the Board
should have given more liberal consideration of those mitigating factors, and provided a more
detailed explanation as to why those factors were not sufficient to recharacterize his discharge.
The Board made clear that it would not reconsider the issue of drug abuse in light of
(what it perceived to be) plaintiff’s lack of candor and credibility and his failure to accept
responsibility. Without question, that is a decision it was empowered to make. And it was
entitled to make that decision notwithstanding the presence of countervailing mitigating factors;
the requirement that it give “liberal consideration” to mental-health issues, including PTSD, does
not require that it give controlling weight to those issues. Furthermore, and as noted, the Board

3

As noted, the BCNR’s decision reads:

Assuming, arguendo, that you had undiagnosed, in-service PTSD at the time of your misconduct, after
thorough consideration of your contentions and mitigating factors, the Board, applying liberal
consideration, determined that your PTSD did not mitigate the drug-related misconduct which led to your
discharge. The Board noted that the command did not pursue administrative separation processing after
your 13 July 1989 NJP, which by your statement was the result of your return to alcohol, but did pursue
processing over two months later after your positive urinalysis and 29 September 1986 NJP for drug use.
(Admin. Rec. at 0004).

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expressly noted that plaintiff himself did not contend that his drug use was caused by PTSD;
instead, he denied any intentional drug use.
Finally, the level of explanatory detail in the opinion is sufficient under the circumstances
to withstand review under the APA. It is true that the APA requires administrative agencies to
justify their decisions; a decision made “without explanation” may be arbitrary and capricious.
Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1912 (2020). But the
opinion here contains more than sufficient information from which the Court can “conclude that
[the Board’s decision] was the product of reasoned decisionmaking.” State Farm, 463 U.S. at
52. The Board was not required to explain its conclusions in any greater detail—particularly
when the basis of its decision, on a relatively narrow ground, was quite clear.
Again, plaintiff’s discharge was “due to drug abuse and pattern of misconduct.” (Admin.
Rec. 0275). As the opinion expressly states, the drug-abuse finding was a sufficient basis for the
discharge. Having determined that that finding would not be reconsidered, the Board was not
required to address the other reasons supporting the “other than honorable” discharge.
In summary, under the circumstances, the decision of the BCNR to deny relief was not
arbitrary or capricious, an abuse of discretion, or contrary to law.
IV.

Conclusion
For the foregoing reasons, plaintiff’s motions for judgment on the pleadings and for

summary judgment are DENIED. Defendant’s cross-motion for judgment on the pleadings is
GRANTED.
So Ordered.

Dated: May 22, 2023

/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Chief Judge, United States District Court
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