Reape v. Mabus

Filing 28

ORDER granting 9 Defendant's Motion for Summary Judgment ; denying 12 Plaintiff's Motion for Summary Judgment. Signed by District Judge Robert J. Conrad, Jr on 3/29/17. (ssh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-00007-RJC-DCK
HUBERT REAPE,
Plaintiff,
v.
RAY MABUS, Secretary of the Navy,
Defendant.

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ORDER

THIS MATTER comes before the Court on Defendant Secretary of the Navy1 Ray
Maybus’ (“Defendant”) Motion for Summary Judgment, (Doc. No. 9); Plaintiff Hubert Reape’s
(“Plaintiff”) Motion for Summary Judgment, (Doc. No. 12); and the memoranda and exhibits
submitted in support of and in opposition to each motion. For the reasons stated below, the
Court grants Defendant’s Motion for Summary Judgment and denies Plaintiff’s Motion for
Summary Judgment.
I.

BACKGROUND
This case is the latest episode of Plaintiff’s attempt to upgrade his discharge status from

the United States Marine Corps. On September 15, 1983, Plaintiff was discharged from the
Marine Corps as “Other than Honorable,” but seeks to be upgraded to “Honorable” or “General
Under Honorable Conditions.” (Doc. 1 at 5). Specifically, Plaintiff challenges the denial of his
request for upgrade by the Board of Correction of Naval Records (“BCNR”) because the
decision was not sufficiently clear regarding its findings and conclusions, failed to make

1

As of January 20, 2017, Sean Stackley is the Acting Secretary of the Navy. See
http://www.navy.mil/navydata/bios/navybio.asp?bioID=477.

determinations necessary to resolve Plaintiff’s request for a discharge upgrade, made findings
that are not supported by substantial evidence, and involved the review of unfairly prejudicial
material that was not provided to Plaintiff. (Doc. No. 12-1)
As an 18-year old in 1980, Plaintiff enlisted in the Marine Corps for a term of four years
of active service. (Doc. No. 7 to 7-12: Administrative Record (“A.R.”) at 27). Plaintiff’s term
was cut short due to his discharge after just over three years in service, during which Plaintiff
received several commendations. (Id.). Notwithstanding the commendations, Plaintiff also
received four non-judicial punishments (“NJPs”) for violations of the Uniform code of Military
Justice during his service. (Id. at 209).
First, on July 9, 1980, Plaintiff received an NJP for failing to obey a lawful order. (Id. at
209). Second, on August 26, 1981, Plaintiff received an NJP for failure to go to his appointed
place of duty. (Id.). Third, on September 22, 1981, Plaintiff received an NJP for absenting
himself from the U.S.S. Ponce, LPD-15 and for carrying a concealed weapon, brass knuckles.
(Id.). Fourth, on September 29, 1981, Plaintiff received an NJP for having knowledge of and
failing to report another sailor who was in possession of illicit drugs. (Id.). Additionally,
Plaintiff was counseled repeatedly due to his repeated NJPs. On January 9, 1982, August 18,
1982, and June 15, 1983, Plaintiff was counseled for his misconduct and informed of the
potential consequences for his misconduct, including disciplinary action, administrative
separation, judicial proceedings, and discharge status consequences. (Id. at 207).
Finally, in May 1983, Plaintiff was found guilty of the wrongful use of marijuana during
a summary court martial proceeding. (Id. at 68). On August 22, 1983, Plaintiff’s commanding
officer notified him that the Plaintiff was going to be recommended for administrative separation
and could receive an Other Than Honorable discharge. (Id. at 142). As part of the separation

process, Plaintiff repeatedly acknowledged and waived his rights to counsel and to an
administrative board hearing. (Id. at 143). On September 15, 1983, Plaintiff was discharged
under Other Than Honorable conditions. (Id. at 27).
Almost 28 years later, on July 11, 2011, Plaintiff requested that the BCNR upgrade his
discharge status based on his post-service conduct. (Id. 117). The BCNR denied this request on
April 18, 2012. (Id. at 112–13). Over a year later, Plaintiff submitted a second request to the
BCNR. (Id. at 18–26). Plaintiff modified his argument, contending that changes in Marine
Corps policy had an unjust impact and were not communicated to him, errors in the discharge
process existed, and Plaintiff’s drug use should be viewed more leniently due to the impact of
Plaintiff’s service in Beirut. (Id.). On September 2, 2014, the BCNR again denied Plaintiff’s
request, stating that Plaintiff did not submit “any material evidence or other matter not
previously considered by the Board.” (Id. at 4).
Plaintiff then instituted a civil suit before this Court on April 2, 2015, which was
eventually remanded at the joint request of the parties on July 20, 2015. Reape v. Mabus, No.
3:15-CV-00140-RJC-DSC (filed Apr. 2, 2015). According to the supplemental record Defendant
submitted, Defendant agreed to remand the case because Plaintiff “was denied reconsideration
by someone in BCNR without proper authority.” (Doc. No. 22 at 8). The improper denial
referred to is the September 2, 2014 letter signed by Brian George. (Id. at 10). On September
22, 2015, the BCNR issued a letter to Plaintiff denying his request that it upgrade his discharge
status. (A.R. at 1–3). The letter stated that the BCNR considered Plaintiff’s complaints and
allegations, but “concluded these factors were not sufficient to warrant relief in your case
because of the seriousness of your repetitive misconduct, which included drug abuse, and
because there is sufficient evidence in the record that is contrary to your allegations.” (Id. at 3).

Plaintiff filed his complaint in the current suit on January 6, 2016, seeking judicial review
of the BCNR’s September 22, 2015 decision. (Doc. No. 1). Plaintiff alleges that Defendant
violated the Administrative Procedure Act (“APA”), due process, and BCNR regulations, and
that Defendant has unreasonably withheld and delayed Plaintiff’s discharge upgrade. (Id. at 3–
5). On May 12, 2016, Defendant filed his Motion for Summary Judgment. (Doc. No. 9). On
May 26, 2016, Plaintiff filed his Motion for Summary Judgment. Both parties timely filed
response and reply memoranda. (Doc. Nos. 14, 18, 19, and 23). The cross motions for summary
judgment are ripe for adjudication.
II.

STANDARD OF REVIEW
Summary judgment is appropriate where there is no genuine dispute as to any material

fact, and it appears that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c)(2); United States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991). Any permissible inferences
to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587–88
(1986). The party moving for summary judgment bears the burden of demonstrating the absence
of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A
factual dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
material only if it might affect the outcome of the suit under governing law. Id.
In the context of reviewing an administrative agency’s decision, “a motion for summary
judgment ‘stands in a somewhat unusual light, in that that administrative record provides the
complete factual predicate for the court’s review.’” Chan v. U.S. Citizenship and Immigration
Servs., 141 F. Supp. 3d 461, 464 (W.D.N.C. 2015) (citations omitted). Section 706 of the APA

limits a court’s role to “decid[ing] all relevant questions of law, interpret[ing] constitutional and
statutory provisions, and determin[ing] the meaning or applicability of the terms of an agency
action.” 5 U.S.C. § 706 (2015). In other words, “it is the role of the agency to resolve factual
issues to arrive at a decision that is supported by the administrative record, whereas ‘the function
of the district court is to determine whether or not as a matter of law the evidence in the
administrative record permitted the agency to make the decision it did.’” Sierra Club v.
Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006) (citing Occidental Eng’g Co. v. Immigration &
Naturalization Service, 753 F.2d 766, 769–70 (9th Cir. 1985); Nw. Motorcycle Ass’n v. U.S.
Dep’t of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994)). “Summary judgment thus serves as the
mechanism for deciding, as a matter of law, whether the agency action is supported by the
administrative record and otherwise consistent with the APA standard of review.” Id. (citations
omitted). Furthermore, military decisions receive “great deference” due to the differences in
military and civilian decisions and the relevant expertise. See Rostker v. Goldberg, 453 U.S. 57,
65 (1981); Berry v. Bean, 796 F.2d 713, 716 (4th Cir. 1986). This deference creates “an
unusually deferential application of the ‘arbitrary and capricious’ standard.” Kreis v. Air Force,
866 F.2d 1508, 1515 (D.C. Cir. 1989).
III.

DISCUSSION
Plaintiff generally argues that the BCNR’s decision to deny him a discharge upgrade

violated his due process rights, the APA, and the rules governing the BCNR. (Doc. No. 12-1 at
1). Plaintiff specifically suggests that the decision is not sufficiently clear regarding its findings
and conclusions, the decision makes findings that are not supported by substantial evidence,
Defendant’s process involved review of material that was unfairly prejudicial, and Defendant
reviewed information that was not provided to Plaintiff. (Id. at 5). Defendant contests that the

BCNR decision was in full accordance with the APA and did not violate Plaintiff’s due process
rights. (Doc. No. 9-1 at 9–17).
A court may “hold unlawful and set aside agency action, findings and conclusions found
to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
contrary to constitutional right, power, privilege, or immunity; . . . [or] without observance of
procedure required by law.” among other things. 5 U.S.C. § 706(2)(A–B, D); see Ohio Valley
Envtl. Coal., Inc. v. U.S. Army Corps of Eng’r, 828 F.3d 316, 321 (4th Cir. 2016). Specifically,
decisions by the BCNR are subject to such judicial review. See Chappell v. Wallace, 462 U.S.
296, 303 (1983). Although the court must conduct a careful review of the agency’s decision,
“the ultimate standard of review is a narrow one.” Marsh v. Oregon Nat. Res. Council, et al.,
490 U.S. 360, (1989) (citation omitted). Moreover, “[r]eview under this standard is highly
deferential, with a presumption in favor of finding the agency action valid.” Ohio Valley, 556 at
192 (citing Natural Res. & Def. Council, Inc. v. Envtl. Protection Agency, 16 F.3d 1395, 1400
(4th Cir. 1993).
5 U.S.C. § 706(2) provides six areas where judicial review of an agency action is
appropriate, and Plaintiff’s allegations, at their core, fall into three of those categories: (1) was
the BCNR decision arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law; (2) did Defendant act contrary to Plaintiff’s constitutional right of due process; and (3)
did Defendant observe the appropriate procedures required by law. The Court will review
Plaintiff’s allegations within that framework. Ultimately, the Court finds that Defendant’s
decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law, did not violate Plaintiff’s due process rights, and did not violate BCNR regulations.

a. Whether the BCNR Decision Was Arbitrary, Capricious, an Abuse of Discretion, or
Otherwise Not in Accordance with Law
“In determining whether agency action was arbitrary or capricious, the court must
consider whether the agency considered the relevant factors and whether a clear error of
judgment was made.” Ohio Valley, 556 F.3d at 192. Part and parcel of this analysis, the Court
must determine whether the agency’s decision was supported by substantial evidence. Mickens
v. United States, 760 F.2d 539, 541 (4th Cir. 1985). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951). Additionally, an
agency’s decision “must be set forth with such clarity as to be understandable.” Securities &
Exchange Commission v. Chenery Corp., 332 U.S. 194, 196–97 (1947). Court are not to guess
at the agency’s basis for its decision where what the agency has provided is vague and
indecisive. Id.
Here, the agency action challenged is Defendant’s denial of Plaintiff’s request to correct
his military records—specifically, upgrade his discharge characterization—which Defendant
denied on April 18, 2012, September 2, 2014, and September 22, 2015 after remand from this
Court. The Secretary of the Navy “may correct any military record of the Secretary’s department
when the Secretary considers it necessary to correct an error or remove an injustice.” 10 U.S.C.
§ 1552(a)(1) (2015). “A board for correction of military records may decline to make a
correction ‘if it determines that insufficient relevant evidence has been presented to demonstrate
the existence of probable material error or injustice.’” Powe v. Sec'y of Navy, 35 F.3d 556 (4th
Cir. 1994) (quoting 32 C.F.R. § 723.3(e)(2) (1993)).
Plaintiff contends that Defendant’s decision here was not supported by substantial

evidence, but a review of the administrative record reveals that Defendant’s decision clearly was
supported by substantial evidence and was not arbitrary, capricious, or an abuse of discretion.
Plaintiff argues that Defendant did not adequately consider positive information from Plaintiff’s
service records, specifically Plaintiff’s proficiency ratings. (Doc. No. 12-1 at 7–8). First,
Defendant is only required to provide “a brief statement of the grounds for denial.” 32 C.F.R.
723.3(e)(3) (2017). Nowhere do the regulations require specific mention of every fact
considered or any and every positive fact. In fact, the focus of 32 C.F.R. 723.3(e)(4) is on
providing “reasons for the determination that relief should not be granted” and “all the essential
facts upon which the denial is based.”
Second, the BCNR decision states that it considered the entire record, including
Plaintiff’s naval record and “all potentially mitigating factors.” (A.R. at 2). The decision even
listed each of Plaintiff’s arguments that it considered and explained that Plaintiff’s arguments did
not outweigh Plaintiff’s repeated misconduct. (Id. at 2–3). The courts have recognized that
Defendant’s explanation need not be explained “in great detail.” Peoples v. United States, 87
Fed. Cl. 553, 569 (2009) (citing Bray v. United States, 515 F.2d 1383, 1391 (Ct. Cl. 1975)).
Court will even uphold decisions of “less than ideal clarity” if the decisionmaker’s “path may be
reasonable discerned . . . .” Id. Nevertheless, the decision contained adequate clarity, stating
what arguments and factors the BCNR considered and not leaving the Court’s review of
Defendant’s basis to conjecture.
Third and most importantly, this is a case where there can be little doubt that the agency’s
decision was supported by substantial evidence, which was clearly presented in the BCNR’s final
decision. Plaintiff was discharged from the Marine Corps after four NJPs and a summary court
martial conviction for marijuana use, all in a less-than-three-year time period and all of which the

BCNR discussed in its decision. (Id. 1–2). Plaintiff does not deny that he committed any of this
misconduct. Plaintiff’s other than honorable discharge was not controversial under the
circumstances. The Marine Corps Separation and Retirement Manual states that when a Marine
is involved in misconduct, “[c]haracterization of service normally shall be under other than
honorable conditions.” (Id. at 79). And in Plaintiff’s case, a characterization more favorable
than other than honorable could only have been accomplished with the approval of the
Commandant of the Marine Corps, the highest ranking officer in the Marine Corps. (Id. at 80).
Plaintiff’s argument that his naval record, including a promotion and his proficiency
scores, was not adequately considered does not rebut the substantial evidence upon which
Defendant relied. Nor do Plaintiff’s arguments that the sole basis for his other than honorable
discharge was his marijuana-use conviction, he was not informed about changes to Marine Corps
policy, there were subsequent changes to the Marine Corps’ drug-use policy, improper
information was provided to Plaintiff’s commanding officer regarding discharge characterization
options for Plaintiff, and Plaintiff’s stress from service in a combat situation caused his
marijuana use.2 See (Doc. No. 12-1 at 15). While the BCNR should have and did consider these
arguments in light of the evidence presented, (A.R. at 2–3), it is not the Court’s job to reweigh
and reevaluate the evidence de novo. Furthermore, as Defendant convincingly argues, even if
Plaintiff’s factual allegations regarding the events surrounding his discharge are true, under
Marine Corps policy, they would not have had an effect on his discharge such that it would result

2

Plaintiff also argues that there is no evidence that the commanding general ever approved
Plaintiff’s other than honorable discharge. (Doc. No. 12-1 at 8). This argument does not seem
grounded in reality as the record contains evidence that the discharge was approved. (A.R. at
129). Moreover, the rule of regularity supports the assumption that the commanding general did
approve Plaintiff’s other than honorable discharge because Plaintiff did not present substantial
evidence to the contrary. 32. C.F.R. § 723.3(e)(2).

in a higher characterization. See (Doc. No. 19 at 8–13). Plaintiff’s repeated misconduct and
interaction with military authority in a short period of time provided substantial evidence for
Defendant to conclude that there was not an error or injustice that required correcting Plaintiff’s
military records.
b. Whether Defendant Acted Contrary to Plaintiff’s Due Process Rights
To establish a procedural due process claim, a plaintiff must first identify a liberty or
property interest of which he has been deprived. Mathews v. Eldridge, 424 U.S. 319, 332
(1976). Procedural due process applies to administrative offices act in a way that involves a
person’s liberty. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 161 (Frankfurter,
J. concurring). And while “some state and federal administrative procedures are summary by
reason of necessity or history . . . where the State attaches ‘a badge of infamy’ to the citizen, due
process comes into play.” Wisconsin v. Constantineau, 400 U.S. 433, 436–37 (1971); see also
Cafeteria & Rest. Workers Union, Local 473, AFL-CIO v. McElroy, (367 U.S. 886, 894–95).
Plaintiff has not alleged any specific liberty or property interest of which he was denied,
and indeed, none exists. In discharge cases such as this one, two interests are potentially
invoked—a liberty interest in a one’s good name, reputation, honor, or integrity and a property
interest in one’s employment. See Guerra v. Scruggs, 942 F.2d 270, 277–78 (4th Cir. 1991).
Addressing the latter first, Plaintiff does not have a property interest in his continued
employment with the Navy. 10 U.S.C. § 1169(1) provides for the discharge of enlisted members
of the armed forces before their term of service expires “as prescribed the Secretary concerned.”
See Guerra 942 F.2d at 277 (“The language of the statute, particularly subsection (1), shows that
the Army has discretion to discharge enlisted personnel and that [Plaintiff] has no property
interest.”); Spadone v. McHugh, 842 F. Supp. 2d 295, 304 (D.D.C. 2012) (“There is no protected

property interest in continued military service.”) (citation omitted); see also Sims v. Fox, 505
F.2d 857, 861–62 (5th Cir. 1974), cert. denied, 421 U.S. 1011 (1975).
Second, Plaintiff does not have a liberty interest which has been denied. While Plaintiff
does have a liberty interest in his “good name, reputation, honor, or integrity,” Defendant did not
deprive Plaintiff of that interest. Constantineau, 400 U.S. at 437. Despite Plaintiff’s other than
honorable discharge, which may impugn his good name, Plaintiff does not show, indeed has
made no attempt to show, that Defendant’s charges are untrue—“a critical element” to Plaintiff’s
due process claim. Guerra, 942 F.2d at 278 (“A critical element of a claimed invasion of a
reputational liberty interest . . . is the falsity of the government’s asserted basis for the
employment decision at issue.”) (emphasis in original) (quoting Doe v. Garrett, 903 F.2d 1455,
1462–63 (11th Cir. 1990)); see also Vaugh v. Danzig, 18 Fed. App’x 122, 124 (4th Cir. 2001)
(holding that the Secretary of the Navy did not violate Plaintiff’s liberty interest where Plaintiff
did not show that the statements relating to his discharge were false); Rich v. Sec’y of Army, 735
F.2d 1220, 1227 (10th Cir. 1984); Sims, 505 F.2d at 864.
Thus, Plaintiff has neither a liberty nor property interest which Defendant has denied.
Accordingly, Plaintiff’s charges of an insufficiently clear decision, consideration of evidence that
created unfair prejudice, and consideration of information Plaintiff was not able to review do not
raise a plausible due process violation as a matter of law.3

3

Even if Plaintiff was able to show a property or liberty interest which Defendant denied,
his claim would still fail as a matter of law. “[A]ll due process requires is notice and an
opportunity to be heard.” Alberico v. United States, 783 F.2d 1024, 1027 (Fed. Cir. 1986)
(citing Cleveland Bd. of Educ. V. Loudermill, 470 U.S. 532, 545 (1985)). Plaintiff received
notice of his discharge, the opportunity to consult counsel and have a hearing, and expressly
waived those rights.

c. Whether Defendant Observed Procedure Required by Law
“A court may decide whether the military has complied with procedures set forth in its
own regulations because those procedures by their nature limit the military’s discretion.” Fisher
v. United States, 402 F.3d 1167, 1177 (Fed. Cir. 2005) (citing Murphy v. United States, 993 F.2d
871, 873 (Fed. Cir. 1993)). Here, Defendant followed all applicable procedures and did not
abuse his discretion.
Plaintiff’s complaint alleges that Defendant violated its own regulations, including 32
C.F.R. § 723.3 in how it addressed Plaintiff’s argument and evidence and by failing to address
Plaintiff’s arguments and evidence. Under 32 C.F.R. § 723.3(e)(3), the BCNR must put its
decision “in writing and include a brief statement of the grounds for denial” if it denies relief
without a hearing. Specifically, the statement:
shall include the reasons for the determination that relief should not be granted,
including the applicant’s claims of constitutional, statutory and/or regulatory
violations that were rejected, together with all the essential facts upon which the
denial is based, including, if applicable, factors required by regulation to be
considered for determination of the character of and reason for discharge.
Id. § 723.3(e)(4). Defendant did this, stating that a three-member panel of the BCNR reviewed
his request in executive session and providing a three-page letter explaining the reasons for
which it denied Plaintiff’s request. (A.R. at 1–3). The letter discussed, among other things,
Plaintiff’s four NJPs in less than three years and his conviction by summary court-martial for use
of marijuana. (Id. at 1–2). The letter also mentioned multiple counseling sessions Plaintiff
received for frequent involvement with military authorities. (Id. at 2). Moreover, the letter
explained that the BCNR considered Plaintiff’s arguments regarding:
(a) Errors that occurred during your discharge processing and the effect they had
on the presumption of regularity, (b) the commanding officer’s failure to specify
the characterization of service for which you were being recommended for
discharge, (c) failure to advise you of the Marine Corps’ changing policies

regarding the illegal use of drugs and the effect these changes had on your
discharge, and (e) how your misconduct was effected by serving in a combat zone.
(Id. at 3). The letter also stated that the BCNR considered “the effect of [Plaintiff’s] combat
zone stress.” (Id.). Nevertheless, the BCNR ultimately concluded that these factors did not
warrant relief because of “the seriousness of [Plaintiff’s] repetitive misconduct, which included
drug abuse, and because there is sufficient evidence in the record that is contrary to your
allegations and/or complaints.” (Id.). In short, Defendant abided by the regulations by issuing a
written statement that stated the grounds for denial, including the essential facts and Plaintiff’s
claims that were rejected. Plaintiff may have preferred a more detailed explanation of
Defendant’s decision but the law did not require one.
Plaintiff also contends that Defendant improperly considered certain documents, which
were unfairly prejudicial and which Plaintiff did not have an opportunity to address. (Doc. No.
12-1 at 9–11). The documents BCNR did not provide to Plaintiff include five pages of
discharge-processing documents, a summary prepared by BCNR staff, and Plaintiff’s motion for
attorney fees related to the prior proceeding in this Court. (Doc. No. 12-1 at 9, 11). Plaintiff
asserts that consideration of these documents violated his due process rights, but also that it
violated 32 C.F.R. §§ 723.2 and 723.6(a)(2) because review of these documents essentially was
BCNR conducting its own investigation and further because the BCNR did not give Plaintiff an
opportunity to respond to the documents. But, Plaintiff’s arguments involve a very tenuous
interpretation of the law and Defendant’s behavior. The regulations Plaintiff relies on state that
the BCNR is not an investigative body and provides a mechanism for obtaining additional
evidence from the Plaintiff—they do not limit the BCNR review to only documents provided by
Plaintiff, nor do they preclude the BCNR from drafting documents as part of its review and
decision. Regarding the summary sheet which was not provided to Plaintiff during the BCNR’s

review of his request, it is an administrative document that the BCNR is not required to produce
to Plaintiff nor give Plaintiff an opportunity on which to comment. 10 U.S.C. § 1556(b)(4). The
summary sheet also only contains information available elsewhere in the record. (Doc. No. 19 at
17). The inadvertent preclusion of the summary sheet from Administrative Record was
insubstantial and remedied by the filing of a supplemental administrative record. (Doc. Nos. 19
at 17 n.9; 22 at 3–4).
Additionally, largely because some of these documents were not provided to Plaintiff or
as part of the initial Administrative Record Plaintiff argues that he is entitled to additional
discovery and that the case is not ripe for adjudication because the Administrative Record is not
complete. (Doc. No. 12-1 at 15–17). The Court does not agree. Since Plaintiff filed his Motion
for Summary Judgment, Defendant sought leave to file a supplemental administrative record,
which was granted. (Doc. Nos. 20–22). The Supplemental Administrative Record is a 38-page
document consisting of documents primarily related to the Court’s remand in the prior
proceeding, including Plaintiff’s complaint and his motion for attorney fees, all of which were
forwarded to BCNR by counsel for Defendant in light of the remand. (Doc. Nos. 19 at 17; 20 at
2; 22). Defendant filed the supplemental record despite its contention that the Administrative
Record was complete already. (Doc. No. 20 at 1–2). Defendant has also represented that the
supplemental administrative record contains the “only evidence not a part of the filed
Administrative Record that the BCNR considered on remand.” (Doc. No. 19 at 17). Finally,
Defendant notes that the substantive documents in the supplemental administrative record were
already filed with the Court and in Plaintiff’s possession. (Id.).
Plaintiff argues that he and the Court can still not be sure that the record is complete and
that additional discovery is needed regarding, among other things, the members of the panel who

denied his request and possible conflicts they may have had. (Doc. No. 23 at 4–5). The Court is
convinced that the record is complete and that the additional discovery requested by Plaintiff is
outside the scope of his complaint and the Administrative Record, which is the scope of this
Court’s review. Plaintiff’s request for additional discovery is denied.
Thus, it does not appear to the Court that any procedural violations occurred. Regardless,
the alleged violation of these rules in this case, though none appears, would not render
Defendant’s decision arbitrary, capricious, or an abuse of discretion. It is clear from the
September 22, 2015 letter that Defendant, through the BCNR, conducted a thorough, wellreasoned analysis of Plaintiff’s claims of material error and injustice before concluding that a
discharge upgrade was not warranted—a conclusion that was supported by substantial evidence.
In light of the discussion and conclusions above, Plaintiff’s request for the Court to
change the character of his discharge is denied. After careful review of the parties’ briefs,
exhibits, and the Administrative Record, the Court finds that Defendant’s September 22, 2015
decision to deny Plaintiff’s request for a discharge upgrade is supported by substantial evidence
and not arbitrary or capricious. Furthermore, Defendant acted in accordance with law, including
BCNR regulations, and did not abuse his discretion or violate Plaintiff’s due process rights.
IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1. Defendant’s Motion for Summary Judgment, (Doc. No. 9), is GRANTED;
2. Plaintiff’s Motion for Summary Judgment, (Doc. No. 12), is DENIED; and
3. The Clerk of the Court is directed to close the case.

Signed: March 29, 2017