Claiborne v. McHugh

Filing 64

Opinion and Order. The Court DENIES Plaintiff's Motion (# 58 ) for Judgment on the Administrative Record and GRANTS Defendant's Cross-Motion (# 61 ) for Summary Judgment. IT IS SO ORDERED. See attached order for details. Signed on 11/15/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAMON J. CLAIBORNE,
Plaintiff,
v.
SECRETARY OF THE ARMY,
Defendant.
DANA MITCHELL
317 Court Street N.E.
Salem, OR 97301
[phone]
LISA D. WRIGHT
5680 Commercial Street, Suite 170
Salem, OR, 97306
[phone]
JOHN N. MAHER
KEVIN J. MIKOLASHEK
Maher Legal Services PC
7 East Main Street, No. 1053
St. Charles, Illinois 60174
[phone]
Attorneys for Plaintiff

1 - OPINION AND ORDER

3:15-cv-01192-BR
OPINION AND ORDER

BILLY J. WILLIAMS
United States Attorney
JAMES E. COX, JR.
Assistant United States Attorney
1000 S.W. Third Avenue
Suite 600
Portland, OR 97204
[phone]
Attorneys for Defendant
BROWN, Senior Judge.
This matter comes before the Court on Plaintiff’s Motion
(#58) for Judgment on the Administrative Record and Defendant’s
Cross-Motion (#61) for Summary Judgment.

The Court concludes the

record is sufficiently developed such that oral argument would
not be helpful to resolve these Motions.

For the reasons that

follow, the Court DENIES Plaintiff’s Motion and GRANTS
Defendant’s Motion.

BACKGROUND
The following facts are undisputed unless otherwise noted
and are taken from Plaintiff’s Amended Complaint, the
Administrative Record, and the parties’ filings related their
Motions.
In 1998 Plaintiff Damon J. Claiborne enlisted in the United
States Army and was assigned the rank of Specialist (SPC).
AR00013.
On November 12, 2004, when Plaintiff was an SPC, he was
2 - OPINION AND ORDER

charged in Kitsap County, Washington, with one count of Child
Molestation in the Second Degree.

Plaintiff submitted an Alford

plea and was sentenced to a term of 15 months imprisonment.
Plaintiff’s status with the Army was changed from “present for
duty” to “civilian confinement” from October 28, 2004, to
January 5, 2006.
On January 6, 2006, Plaintiff’s status was changed to
“present for duty,” and Plaintiff reported to his unit.

As a

result of the state-court conviction, the Army initiated
involuntary separation proceedings against Plaintiff on
February 9, 2006, under the provisions of Army Regulation
635-200, chapter 14-5, Active Duty Enlisted Administrative
Separations, ¶ 14-5, Conviction by Civil Court.
On May 10, 2006, the Acting Commander, I Corps and Fort
Lewis, reviewed the recommendation to discharge Plaintiff
pursuant to Army Regulation 635-200.

The Acting Commander

suspended execution of the discharge for 12 months.
At some point the suspended discharge was cancelled after
Plaintiff’s successful completion of the probation period
pursuant to Army Regulation 635-200 and Plaintiff was retained by
the Army.
On July 1, 2007, Plaintiff was promoted to Sergeant (SGT).
AR000068.
On June 25, 2008, Plaintiff reenlisted in the Army for a
3 - OPINION AND ORDER

period of four years.

On October 1, 2010, Plaintiff reenlisted

again for a period of five years.
On March 25, 2011, Plaintiff was determined to be eligible
under the Military Retirement Reform Act to elect either a
one-time, career-status bonus and to remain under the REDUX
retired pay system or to retire under the “High-3" retirement
system.

Plaintiff elected the one-time, career-status bonus,

which required Plaintiff to agree to stay in the Army until he
had a minimum of 20 years active service.
On December 1, 2012, Plaintiff was promoted to Staff
Sergeant (SSG).

AR000068.

On November 7, 2013, the Secretary of the Army issued Army
Directive 2013-21, which provides in pertinent part:
Commanders will initiate the administrative
separation of any Soldier convicted of a sex
offense . . . whose conviction did not result in a
punitive discharge or dismissal. This policy
applies to all personnel currently in the Army,
regardless of when the conviction for a sex
offense occurred and regardless of component of
membership and current status in that component.
Army Directive 2013-21(3).
At some point Plaintiff requested voluntary retirement from
the Army “upon completion of 20 years of active Federal service.”
AR00013.1

1

Citations to the transcript of record filed by the
Secretary of the Army on February 20, 2018, are referred to as
"AR."
4 - OPINION AND ORDER

On January 6, 2014, Plaintiff’s request for retirement was
approved.

Army Installation Management Command Orders released

Plaintiff from active duty effective January 31, 2015, and placed
him on the Retired List effective February 1, 2015.

AR000014.

In February 2014 the Army issued ALARACT 035/2014 in which
it reiterated the terms of Army Directive 2013-21 and implemented
Directive 2013-21 at the Army unit level.

AR000754-58.

On February 10, 2014, however, Plaintiff was notified by the
Chief, Criminal Law Division, Headquarters, I Corps, that in
Administrative Directive 2013-21 the Secretary of the Army
“directed initiation of separation proceedings of all Soldiers
convicted of a sex offense if the conviction did not result in a
punitive discharge or dismissal, regardless of when the
conviction occurred.”

AR000014.

The Chief also advised

Plaintiff that “if an enlisted Soldier who has been convicted of
a sex offense has already been subject to administrative
separation action, the separation authority will initiate
separation action under Secretarial plenary authority as
described in Army Regulation 635-200, paragraph 5-3.”

AR000014.

On February 20, 2014, Plaintiff was advised by his Company
Commander that she was initiating a “flag” for Plaintiff’s
involuntary separation effective on that date.
2

TROAR003-04.2

Citations to the transcript of record filed by the
Secretary of the Army on July 6, 2015, in association with
Plaintiff’s Motion for Temporary Restraining Order are referred
5 - OPINION AND ORDER

Also on February 20, 2014, Plaintiff signed a Developmental
Counseling Form and initialed that he agreed with the
information.

AR000399.

On July 16, 2014, Plaintiff was notified via memorandum by
his Company Commander, Chris Kim, that Kim was initiating
Plaintiff’s involuntary separation under Army Regulation 635-200,
Chapter 5-3, pursuant to the Secretary of the Army’s plenary
authority.
(1)

AR000342-43.

The notification

informed Plaintiff that the reason for the separation
was his January 3, 2005, conviction for child
molestation in the second degree in Kitsap County,

(2)

indicated Kim’s recommendation would be submitted to
the Secretary of the Army to make the final decision on
the matter, and

(3)

informed Plaintiff that he had the right to consult
with counsel and the right to submit statements on his
own behalf.

On July 18, 2014, Plaintiff met with a military attorney and
elected to submit a statement to be forwarded to the decisional
authority.

AR000340-41.

On July 20, 2014, Plaintiff submitted a Request for
Retirement in Lieu of Chapter 5-3 Proceedings and a Letter of
Intent to his Command.
to as "TROAR."
6 - OPINION AND ORDER

AR000400-401.

In an undated memorandum Kim considered the separation
action and recommended Plaintiff’s retention.

AR000103-106.

In an undated memorandum Plaintiff’s Battalion Commander
considered the separation action and recommended Plaintiff’s
retention as well as characterizing Plaintiff’s service as
Honorable and “General under honorable conditions.”

TROAR017-18.

In an undated memorandum Plaintiff’s Brigade Commander
considered the separation action and recommended Plaintiff to “be
. . . separated from the Army prior to the expiration of his
current term of service” and his service to “be characterized as
. . . General under honorable conditions.”

TROAR019.

On August 27, 2014, the Commanding General, I Corps,
considered the separation action and recommended Plaintiff to “be
. . . separated from the Army prior to the expiration of his
current term of service” and his service to “be characterized as
. . . General under honorable conditions.”

TROAR020.

On November 25, 2014, however, the Chief, Enlisted
Retirements and Separations, U.S. Army Human Resources Command,
suspended Plaintiff’s approved retirement and “revoked or
rescinded as appropriate” Plaintiff’s retirement orders noting
“[t]he approved retirement will remain in effect.”

AR000586.

On June 16, 2015, Assistant Secretary of the Army (Manpower
and Reserve Affairs) Debra S. Wada found separation of Plaintiff
“is clearly in the best interest of the Army in accordance with
7 - OPINION AND ORDER

Army Regulation 635-200, paragraph 5-3.”

AR000070.

Wada

directed Plaintiff to “be separated with a General (Under
Honorable Conditions) characterization of service.”

AR000070.

On June 24, 2015, the Directorate of Human Resources,
Military Personnel Division, JBLM, published orders directing
Plaintiff’s discharge on July 1, 2015.

AR000075.

On June 28, 2015, Plaintiff filed a Complaint in this Court
seeking an order to enjoin the Army from continuing his
separation, to set aside the Army’s decision, to compel the Army
to transfer him to the retired list with an effective date to be
determined, and also seeking a number of declarations about the
Secretary of the Army’s authority under various Army regulations.
On June 29, 2015, Plaintiff filed a Temporary Restraining
Order seeking an order preventing Defendant from separating
Plaintiff from the Army.
On June 30, 2015, the Court heard oral argument on
Plaintiff’s Motion for Temporary Restraining Order; granted the
Temporary Restraining Order through July 8, 2015; and directed
the parties to file a Joint Status Report that addressed venue,
contained agreed background facts, and included any further
argument about Plaintiff’s likelihood of success on the merits.
On June 30, 2015, the Directorate of Human Resources,
Military Personnel Division, JBLM, amended Plaintiff’s discharge
order to reflect a discharge date of July 9, 2015.
8 - OPINION AND ORDER

On July 8, 2015, the Court heard further oral argument on
Plaintiff’s Motion for Temporary Restraining Order, concluded
Plaintiff did not satisfy the criteria for injunctive relief,
found Plaintiff failed to establish that he had exhausted his
administrative remedies, and allowed the Temporary Restraining
Order to lapse.
On August 7, 2015, the parties filed a Joint Status Report
in which they requested the Court to stay this matter while
Plaintiff pursued his administrative remedies.
On August 10, 2015, the Court stayed this matter pending
Plaintiff’s pursuit of his administrative remedies.
On October 20, 2015, Plaintiff appealed Assistant Secretary
of the Army Wada’s June 16, 2015, decision to the Army Discharge
Review Board (ADRB).

In his appeal Plaintiff “request[ed] an

upgrade of [Plaintiff’s] general, under honorable conditions
discharge to honorable and change the narrative reason [for his
separation from Secretarial authority] to retirement.”

AR000020,

AR000301.
On April 27, 2016, the ADRB “voted to grant . . . relief in
the form of an upgrade of characterization of [Plaintiff’s]
service to honorable.

However, the [ADRB] determined that the

reason for discharge was proper and equitable and voted not to
change it.”

AR000301.

Specifically, the ADBR noted “the

information available for review . . . revealed no medical or
9 - OPINION AND ORDER

behavioral health conditions which could be seen as mitigating
for the misconduct, child molestation.”

AR000301.

On February 28, 2017, Plaintiff filed an application for
administrative review of the decision of the ADRB with the Army
Board for Correction of Military Records (ABCMR).
On September 28, 2017, the ABCMR concurred with the ADRB’s
recommendation to “upgrade [the] characterization of
[Plaintiff’s] service to honorable,” but denied Plaintiff’s
request to change the reason for his separation from Secretarial
authority to retirement.

Although the AMBCR acknowledged

Plaintiff’s military skills and years of service and noted it was
“sympathetic to [Plaintiff’s] situation “since he was likely
motivated by the prospect of a military retirement when he
decided during the latter years of his military career to remain
in the Army,” the AMBCR also noted
much of [Plaintiff’]s predicament is due to his
own misbehavior. It is indisputable that
[Plaintiff] was convicted of a serious sex
offense. Such misconduct by service members in
turn forces government officials, such as the
Secretary of the Army, to make difficult
decisions. . . . Had he not engaged in serious
misconduct (misconduct which involved a child
victim) [Plaintiff] would not be in the situation
he is.
AR000034.
On December 6, 2017, the parties filed a Joint Motion to
Lift Stay.
On December 7, 2017, the Court granted the parties’ Motion
10 - OPINION AND ORDER

and issued an Order lifting the stay.
On January 29, 2018, Plaintiff filed an Amended Complaint
seeking review of the Army’s decision pursuant to the
Administrative Procedures Act, 5 U.S.C. § 702, and a Writ of
Mandamus pursuant to 28 U.S.C. § 1361.

Plaintiff requests the

Court to compel the Army to transfer him to the retired list with
an effective date to be determined and to issue any other legal
or equitable relief that the Court deems proper.
On August 6, 2018, Plaintiff filed a Motion for Judgment on
the Administrative Record.

On September 10, 2018, Defendant

filed a Cross-Motion for Summary Judgment.

The Court took the

parties’ Motions under advisement on October 5, 2018.

STANDARDS
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).

See also Fed. R.

The moving party must show the absence of a

genuine dispute as to a material fact.
673 F.3d 1218, 1223 (9th Cir. 2012).

Emeldi v. Univ. of Or.,

In response to a properly

supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and point to "specific facts
demonstrating the existence of genuine issues for trial."
11 - OPINION AND ORDER

In re

Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
"This burden is not a light one. . . .

The non-moving party must

do more than show there is some 'metaphysical doubt' as to the
material facts at issue."

Id. (citation omitted).

A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."

Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citing Sherman Oaks Med. Arts
Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598
(9th Cir. 1982)).
"A non-movant's bald assertions or a mere scintilla of
evidence in his favor are both insufficient to withstand summary
judgment."

F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir.

2009)(citation omitted).

When the nonmoving party's claims are

factually implausible, that party must "come forward with more
persuasive evidence than otherwise would be necessary."

LVRC

Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)
(citing Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149
12 - OPINION AND ORDER

(9th Cir. 1998)).
The substantive law governing a claim or a defense
determines whether a fact is material.

Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.

Id.

DISCUSSION
As noted, Plaintiff brings claims under the APA and for
mandamus relief.

Specifically, Plaintiff requests the Court to

compel the Army to transfer him to the “retired list with an
effective date to be determined based on his credible service”
and “award any other legal or equitable relief which the Court
deems proper.”
I.

Standards of Review
Under 10 U.S.C. § 1169(a) “[n]o regular enlisted member of

an armed force may be discharged before his term of service
expires, except as prescribed by the Secretary concerned.”
The ABCMR acts for the Secretary of the Army and derives its
authority to correct servicemen’s military records from 10 U.S.C.
§ 1552, which provides in pertinent part:

“The Secretary of a

military department may correct any military record of the
Secretary's department when the Secretary considers it necessary
to correct an error or remove an injustice.”
13 - OPINION AND ORDER

10 U.S.C.

§ 1552(a)(1).

See also 32 C.F.R. § 581.3 (setting out purpose,

authority, and procedures for military records review by the
ABCMR).

As noted, Plaintiff challenges the Army’s application of

§ 1552 pursuant to the APA and mandamus.
A.

Review under the APA
Under the APA a court must set aside an agency action

that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A).

“Such review is deferential and narrow, requiring a high
threshold for setting aside agency action.”

Alliance for the

Wild Rockies v. Savage, 897 F.3d 1025, 1033 (9th Cir. 2018)
(quotation omitted).

The review is “highly deferential,

presuming the agency action to be valid and affirming the agency
action if a reasonable basis exists for its decision.”

Bahr v.

Env’t Protection Agency, 836 F.3d 1218, 1229 (9th Cir. 2016).
The court is “not empowered to substitute its judgment for that
of the agency.”

Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 416 (1971), abrogated on other grounds by
Califano v. Sanders, 430 U.S. 99 (1977).

See also Ctr. for Bio.

Diversity v. Bureau of Land Mgmt., 833 F.3d 1136, 1150 (9th Cir.
2016)(“[r]eview under the arbitrary and capricious standard is
narrow — a court will not substitute its judgment for that of the
agency.”).

The court’s
proper role is simply to ensure that the

14 - OPINION AND ORDER

[agency] made no clear error of judgment that
would render its action arbitrary and
capricious, and [the court] require[s] only a
rational connection between facts found and
conclusions made by the defendant agencies.
Friends of Santa Clara River v. United States Army Corps of
Engineers, 887 F.3d 906, 920 (9th Cir. 2018)(quotations omitted).
“Even when an agency explains its decision with less than ideal
clarity, a reviewing court will not upset the decision on that
account if the agency's path may reasonably be discerned.”

Bahr,

836 F.3d at 1229 (quotation omitted).
“The burden is on Plaintiff[] to show any decision or
action was arbitrary and capricious.’”

Planned Parenthood of

Greater WA and N. Idaho v. U.S. Dep’t of Health and Human Svcs.,
No. 2:18-CV-0055-TOR, 2018 WL 1934070, at *10 (E.D. Wash.
Apr. 24, 2018)(quoting Kleppe v. Sierra Club, 427 U.S. 390, 412
(1976)).
B.

Review of the ABCMR under the APA
The parties agree the Ninth Circuit has not interpreted

the scope of judicial review for a decision of the ABCMR pursuant
to § 1552(2).

The D.C. Circuit and Federal Circuit, however,

have addressed the standard of review.

The Court, therefore,

looks to the case law of those courts for guidance.
“Although the federal courts have jurisdiction to
review decisions of [military] Correction Board[s], [they] do so
under an unusually deferential application of the arbitrary or
15 - OPINION AND ORDER

capricious standard of the APA.”

Mueller v. Winter, 485 F.3d

1191, 1198 (D.C. Cir. 2007)(quotations omitted).

As one court

explained:
The [ABCMR] (under its delegated authority from
the Secretary of the [Army]) has broad discretion
when considering an application for correction.
Military corrections boards “may correct any
military record . . . necessary to correct
an error or remove an injustice.” 10 U.S.C.
§ 1552(a)(1)(emphasis added). As a result, a
court reviewing a military corrections board’s
decision applies an “unusually deferential
application of the ‘arbitrary or capricious’
standard.” Kreis v. Sec'y of Air Force, 866 F.2d
1508, 1514 (D.C. Cir. 1989).
Magneson v. Mabus, 174 F. Supp. 3d 114, 119 (D.D.C. 2016).

See

also Ey v. McHugh, 21 F. Supp. 3d 49, 55 (D.D.C. 2014)(“Deference
is doubly warranted . . . when Courts review administrative
decisions made by the armed forces.
sources.

That extra deference has two

First, courts are particularly unfit to review the

substance of military personnel decisions.

Second, the ABCMR's

enabling statute grants special discretion to the Secretary of
the Army, who acts through that body.”).

Citation omitted.

Although “the broad grant of discretion implicated [in
10 U.S.C. § 1552(a)] does not entirely foreclose review of the
Secretary’s action, the way in which the statute frames the issue
for review does substantially restrict the authority of the
reviewing court to upset the Secretary’s determination.”
866 F.2d at 1514.

Kreis,

“It is simply more difficult to say that the

Secretary has acted arbitrarily if he is authorized to act ‘when
16 - OPINION AND ORDER

he considers it necessary to correct an error or remove an
injustice.’”
original)).

Id. (citing 10 U.S.C. § 1552(a)(emphasis in
“Thus, when reviewing a military corrections board

decision, a court’s role is to determine only whether ‘the
decision making process was deficient, not whether [the] decision
was correct.’”

Magneson, 174 F. Supp. 3d at 120 (quoting Dickson

v. Sec'y of Def., 68 F.3d 1396, 1405 (D.C. Cir. 1995)).
C.

Mandamus
The writ of mandamus is a "drastic and extraordinary

remedy reserved for really extraordinary causes."

Cheney v.

United States Dist. Ct. for the Dist. of Columbia, 124 S. Ct.
2576, 2586 (2004)(internal quotation omitted).
[T]he Writ is one of the most potent weapons in the
judicial arsenal, three conditions must be satisfied
before it may issue. First, the party seeking issuance
of the writ must have no other adequate means to attain
the relief [s]he desires – a condition designed to
ensure that the writ will not be used as a substitute
for the regular appeals process. Second, the
petitioner must satisfy the burden of showing that
[her] right to issuance of the writ is clear and
indisputable. Third, even if the first two
prerequisites have been met, the issuing court, in the
exercise of its discretion, must be satisfied that the
writ is appropriate under the circumstances.
Id. at 2587 (internal quotations and citations omitted).
"For mandamus relief, three elements must be satisfied:
(1) the plaintiff's claim is clear and certain; (2) the
[defendant official's] duty is ministerial and so plainly
prescribed as to be free from doubt; and (3) no other adequate
17 - OPINION AND ORDER

remedy is available."
(9th Cir. 2003).

Johnson v. Reilly, 349 F.3d 1149, 1154

"Whether the elements of the mandamus test are

satisfied is a question of law reviewed de novo.

The trial court

retains discretion in ordering mandamus relief, however, even if
all elements are satisfied."

Indep. Mining Co. v. Babbitt, 105

F.3d 502, 505 (9th Cir. 1997).
In Cargill v. Marsh the plaintiff serviceman sought a
writ of mandamus to compel the Army to reassign him from the
Judge Advocate General’s Corps to the Army’s Corps of Engineers
as well as an amendment to his military records to reflect an
assignment to the Corps of Engineers rather than the Judge
Advocate General’s Corps.

902 F.2d 1006, 1007 (D.C. Cir. 1990).

The district court dismissed the plaintiff’s claims on the ground
that they were not justiciable pursuant to Mindes v. Seaman, 453
F.2d 197 (5th Cir. 1971).

The D.C. Circuit court noted it had

recently rejected the analysis of Mindes in Kreis.

The D.C.

Circuit, however, concluded “[u]nder the authority of Kreis . . .
[the plaintiff’s] mandamus claim is still nonjusticiable.”
Cargill, 902 F.2d at 1007.

The court reasoned:

The same “fundamental and highly salutary
principle” that caused the court to stay its hand
in Kreis applies in this case. “The Constitution
vests ‘[t]he complex, subtle, and professional
decisions as to the composition, training,
equipping, and control of a military force’
exclusively in the legislative and executive
branches,” not in the judicial. Id. at 1511
(quoting Gilligan v. Morgan, 413 U.S. 1, 10
(1973)). To grant the transfer sought here, like
18 - OPINION AND ORDER

the promotion in Kreis, “would require [the court]
to second-guess the Secretary's decision about how
best to allocate military personnel in order to
serve the security needs of the Nation.” Id.
Id.
II.

Plaintiff’s APA Claim
As noted, Plaintiff asserts the Army’s decision to separate

him involuntarily from service was arbitrary and capricious in
violation of the APA.

In his Response to Defendant’s Motion for

Summary Judgment Plaintiff notes he is not challenging the
“substance” of Army Directive 2013-21 and ALARACT 035-2014.
Plaintiff states he only challenges the “retroactive application
of them to his case.”3
A.

Army Directive 2013-21 Procedure
Army Directive 2013-21(3)(a)(3) relates to enlisted

soldiers convicted of sex offenses and provides:
3.
Commanders will initiate the administrative
separation of any Soldier convicted of a sex
offense . . . whose conviction did not result in a
punitive discharge or dismissal. This policy
applies to all personnel currently in the Army,
regardless of when the conviction for a sex
offense occurred and regardless of component of
membership and current status in that component.
a.

For enlisted personnel:
* * *

3

Plaintiff appears to have abandoned his claim that Army
Directive 2013-21 and ALARACT should be invalidated under the APA
on the ground that they were the enactment of illegal policies
with retroactive application.” Pl.’s Mot. at 18-19.
19 - OPINION AND ORDER

(3)

AR000750-51.

If an enlisted Soldier who has been
convicted of a sex offense already
has been subject to an administrative separation action . . .
for that conviction and has been
retained as a result of that
proceeding, the separation
authority will initiate a
separation action under the
Secretarial plenary authority, as
detailed in paragraph 3a(2) of this
directive.

Directive 2013-21(3)(a)(2), in turn, provides:

“If

the separation authority approves retention, he or she will
initiate an action for the exercise of Secretarial plenary
separation authority under . . . paragraph 5-3 of reference 1d.”
Paragraph 1(d) references Army Regulation 635-200.
Paragraph 5-3 of Army Regulation 635-200 provides in
pertinent part:
Secretarial plenary authority
a.
Separation under this paragraph is the
prerogative of the Secretary of the Army.
Secretarial plenary separation authority is
exercised sparingly and seldom delegated.
Ordinarily, it is used when no other provision of
this regulation applies, and early separation is
clearly in the best interest of the Army.
Separations under this paragraph are effective
only if approved in writing by the Secretary of
the Army or the Secretary’s approved designee as
announced in updated memorandums.
b.
Secretarial separation authority is normally
exercised on a case-by-case basis but may be used
for a specific class or category of soldiers. When
used in the latter circumstance, it is announced
by special HQDA directive that may, if
appropriate, delegate blanket separation authority
to field commanders for the class category of
soldiers concerned.
20 - OPINION AND ORDER

In summary, the Army directed commanders to initiate
administrative separation procedures for any soldier, who, as in
Plaintiff’s case, was convicted of a sex offense but whose
conviction did not result in a punitive discharge or dismissal
from the Army.

For enlisted soldiers “the separation authority”

is directed to initiate a separation action pursuant to an
“exercise of [the] Secretarial plenary separation authority” set
out in ¶ 5-3 of Army Regulation 635-200.

In turn, the

secretarial plenary authority is “the prerogative of the
Secretary of the Army” that may be exercised for a specific
category or class of soldiers and used when “no other provision
of . . . [R]egulation [635-200] applies and early separation is
clearly in the best interest of the Army.”
B.

Retroactivity
As noted, Plaintiff challenges the alleged “retroactive

application” of Army Regulation 2013-21 to his case.
Specifically, Plaintiff asserts the Army lacked the authority to
use Directive 2013-21 to reach back and to separate Plaintiff
involuntarily based on his 2005 conviction.
Defendant, however, notes neither Directive 2013-21 nor
ALARACT mandated Plaintiff’s discharge.

The Directive and

ALARACT require the Army to commence future proceedings for caseby-case discharge adjudications of soldiers convicted of sex
offenses.

The Directive requires the Assistant Secretary to

21 - OPINION AND ORDER

“consider and [to] act upon” Plaintiff’s case and to require
separation if the Secretary concludes “early separation is
clearly in the best interest of the Army.”

In addition, Army

Regulation 635-200 paragraph 2-6(e) provides the procedure for
“[w]hen a board of officers has recommended retention [of a
solider] and the separation authority believes that discharge is
warranted and in the best interest of the Army.”

AR000640.

Paragraph 2-6(e)(1) explains “[s]eparation under the provisions
of paragraph 5-3 [of Army Regulation 635-200] is based upon
different criteria from that considered by the board of officers
and does not constitute overturning the board.”

Thus, the

decision by the ABCMR to separate Plaintiff from service was not
retroactive and did not apply the same criteria as that applied
by the board of officers in 2006.
C.

Failure to Follow Army Regulations
Plaintiff asserts the Army’s decision was arbitrary and

capricious because the Army failed to follow its own regulations
in reaching its decision to separate Plaintiff.
When an individual challenges an “agency's action as
inconsistent with the agency's own policies, [the court] examines
whether the agency has actually departed from its policy and, if
so, whether the agency has offered a reasoned explanation for
such departure.”

Bahr, 836 F.3d at 1229 (citing Encino

Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125–26 (2016)).
22 - OPINION AND ORDER

Generally “[a]gencies are free to change their existing policies
as long as they provide a reasoned explanation for the change.”
Encino, 136 S. Ct. at 2125.

When an agency is “interpreting a

binding regulation, the agency's interpretation is ‘controlling’
unless ‘plainly erroneous or inconsistent with the regulation.’”
Bahr, 836 F.3d at 1229 (quoting Auer v. Robbins, 519 U.S. 452,
461 (1997)).
Plaintiff notes Army Regulation 635-200, paragraph 117(b) provides:
Separation per this regulation normally should not
be based on conduct that has already been
considered at an administrative . . . proceeding
and disposed of in a manner indicating that
separation was not warranted. Accordingly,
. . . no Soldier will be considered for
administrative separation because of conduct that—
* * *
(3) Has been the subject of an
administrative separation proceeding
resulting in a final determination by a
separation authority that the Soldier should
be retained, except [under circumstances not
relevant here].
According to Plaintiff, therefore, the Army violated its own
regulation when it separated Plaintiff pursuant to Army
Regulation 635-200 because his 2005 conviction had already been
considered at an administrative proceeding that resulted in a
final determination that he should be retained.
Defendant, however, points out that Paragraph 2-6(e) of
23 - OPINION AND ORDER

Army Regulation 635-200 specifically notes when “the separation
authority believes that discharge is warranted and in the best
interest of the Army,” it may do so pursuant to paragraph 5-3
notwithstanding the prior recommendation by a board of officers.
AR000639.

Moreover, paragraph 2-6(e)(1) makes clear:

“Separation under the provisions of paragraph 5–3 is based upon
different criteria from that considered by the board of officers
and does not constitute overturning the board.”

Id.

In

addition, paragraph 2-6(e) explains even though it is the Army’s
policy “not to direct separation per paragraph 5–3 when a duly
constituted board has recommended retention,” it may do so when
“sufficient justification is provided to warrant separation by
the Secretary of the Army, based on all the circumstances, as
being in the best interest of the Army.”

Id.

Courts have held “separations under [paragraph] 5 [of
Army Regulation 635-200] are separate and alternative from
separations authorized under other provisions of [that
Regulation].”

West v. United States, 103 Fed. Cl. 55, 62

(2012)(citation omitted).

Thus, the court held in West that

“provisions of Army Reg. 635–200 Chapter 14 do not limit the
authority of the Secretary to exercise his discretion to
discharge a soldier under Chapter 5.”

Id.

The court noted

“[i]t would be contrary to the language and intent of Chapter 5
to unduly limit the Secretary's ability to effect a discharge for
24 - OPINION AND ORDER

the convenience of the government.”

Id. (citation omitted).

On this record the Court concludes Defendant did not
“actually depart” from its policies and procedures in reaching
its decision to separate Plaintiff pursuant to paragraph 5-3.
D.

Failure to Support Decision with Substantial Evidence
Plaintiff alleges the ABCMR’s decision to separate him

was arbitrary and capricious because the Army did not do so based
on substantial evidence.

Specifically, Plaintiff asserts the

Army failed to consider and to weigh properly Plaintiff’s
achievements and good conduct after his 2005 conviction in
reaching its decision to separate Plaintiff.
Defendant asserts the substantial-evidence standard
does not apply in this context and that the Army actually
considered Plaintiff’s achievements and good conduct in reaching
its decision.
1.

Applicable Standard
As noted, Defendant contends the substantial-

evidence standard of the APA does not apply in this context.
Defendant points out that Plaintiff acknowledges in other
portions of his Motion for Judgment that the applicable standard
of review in this matter is “arbitrary and capricious” pursuant
to 5 U.S.C. § 706(2)(A).
The APA provides in § 706(2)(E) that a reviewing
court
25 - OPINION AND ORDER

shall hold unlawful and set aside agency action,
findings, and conclusions found to be . . .
unsupported by substantial evidence in a case
subject to sections 556 and 557 of this title or
otherwise reviewed on the record of an agency
hearing provided by statute.
5 U.S.C. § 556 applies by its terms to “hearings required by
section 553 or 554 of [Chapter 5].”

In turn, § 553 applies to

agency rule-making procedures “except to the extent that there is
involved a military . . . function of the United States.”
5 U.S.C. § 553(a)(1).

Similarly, § 554 applies “in every case of

adjudication required by statute to be determined on the record
after opportunity for an agency hearing, except to the extent
that there is involved . . . the conduct of military . . .
functions.”

5 U.S.C. § 554(a)(4).

Finally, 5 U.S.C. § 557

applies “when a hearing is required to be conducted in accordance
with section 556.”

Thus, the substantial-evidence standard set

out in § 706(2)(E) does not apply to the Court’s review of
military decisions under the terms of that provision.
As noted, numerous courts that have addressed this
issue have concluded a highly deferential arbitrary-andcapricious standard applies to the court’s scope of review of
military matters.

Accordingly, this Court concludes the

arbitrary-and-capricious standard applies to the Court’s
evaluation of the Army’s consideration of Plaintiff’s
achievement’s and good conduct in this matter.

26 - OPINION AND ORDER

2.

Analysis
Plaintiff asserts the Army failed to take proper

consideration of and/or to weigh properly Plaintiff’s good
conduct and military achievements in reaching its decision to
separate him from service.

Plaintiff relies on Crane v.

Secretary of the Army to support his assertion.
In Crane the Army began separation proceedings
against the plaintiff for his “[f]ailure to conform to prescribed
standards of dress, personal appearance, and military
deportment.”

92 F. Supp. 2d 155, 158 (W.D.N.Y. 2000).

The issue

of plaintiff’s separation went before a Board of Inquiry (BOI).
After a hearing the BOI recommended the plaintiff to “be
separated from the Army in accordance with AR 635–100 for failing
to meet the standards of dress, personal appearance, and military
deportment.”

Id. at 160.

Specifically, the BOI found the

plaintiff had “not complied with the prescribed standards of
dress, personal appearance, and military deportment, in that he
did not possess and maintain military bearing and appearance as
evidenced by testimonial and documentary” evidence.

Id.

The

BOI’s decision “was forwarded through the chain of command to the
United States Total Army Personnel Command” (PERSCOM).

PERSCOM

recommended the plaintiff to “be separated for substandard
performance, specifically, for his failure to conform to
prescribed standards of dress, personal appearance, and military
27 - OPINION AND ORDER

deportment.”

Id.

Ultimately the Secretary of the Army approved

the plaintiff’s involuntary discharge, “but not on the ground
that the BOI and PERSCOM had recommended.

Rather than granting

the separation on the ground that [the plaintiff] failed to
comply with AR 635–100, pertaining to military dress and
deportment, the Secretary approved separation on the ground that
[the plaintiff] failed to comply with Army weight standards under
600–9.”

Id.

The plaintiff brought an action under the APA in

federal district court against the Secretary of the Army in which
the plaintiff alleged his discharge was arbitrary and capricious.
The court concluded the Army’s decision to discharge the
plaintiff was arbitrary and capricious and noted the defendant
failed to follow its own procedures and regulations in reaching
its decision.

The court also noted the BOI’s decision to

discharge the plaintiff “was based on only three pieces of
evidence, each of which ha[d] been called into question by other
evidence in the administrative record.”

Id. at 165.

The court

found the BOI’s decision was actually “supported by only two out
of more than one hundred documents in the Administrative Record
and the testimony of one out of more than ten witnesses.”
This matter is distinguishable from Crane.

Id.

Here it is

undisputed that Plaintiff was convicted of molesting a child
between the ages of 12 and 14.

In addition, every level of

review that recommended Plaintiff’s separation did so for the
28 - OPINION AND ORDER

same reason and based on the same regulation.

Moreover, unlike

in Crane, Plaintiff’s Brigade Commander and Commanding General
recommended separation.

Finally, the Army did not fail to follow

its own polices or procedures in reaching its decision to
separate Plaintiff.
In addition, contrary to Plaintiff’s assertion that the
Army failed to consider properly or to weigh his service and
contributions, both the ADRC and the ABCMR explicitly recognized
Plaintiff’s military service and contributions.

The record

reflects Plaintiff’s counsel submitted to the ADRC and ABCMR
numerous certificates and awards garnered by Plaintiff after 2006
and those bodies considered such evidence when reaching their
decisions.

The ADRB weighed Plaintiff’s record against the

seriousness of his crime and “grant[ed] full relief in the form
of an upgrade of characterization of service to honorable” based
on Plaintiff’s record.

AR000301.

The ADRB, however, also

concluded “the reason for the discharge was proper and equitable”
and, therefore declined to change it to retirement from
separation.

AR000301.

ABCMR also weighed Plaintiff’s record

against the seriousness of his crime and adopted the ADRB’s
recommendation.

As noted, the ABCMR explained it was

“sympathetic to [Plaintiff’s] situation since he was likely
motivated by the prospect of a military retirement when he
decided during the latter years of his military career to remain
29 - OPINION AND ORDER

in the Army,” but the ABCMR also found
much of [Plaintiff’]s predicament is due to his
own misbehavior. It is indisputable that
[Plaintiff] was convicted of a serious sex
offense. Such misconduct by service members in
turn forces government officials, such as the
Secretary of the Army, to make difficult
decisions. . . . Had he not engaged in serious
misconduct (misconduct which involved a child
victim) [Plaintiff] would not be in the situation
he is.
AR000034.

The ABCMR also considered the fact that individuals

such as Plaintiff who had been convicted of sex offenses are no
longer eligible for assignment or deployment outside of the
continental United States under Army Regulation 635-200.
Under the APA, however, this Court is “not empowered to
substitute its judgment for that of the agency.”
at 416.

Volpe, 401 U.S.

The Ninth Circuit has made clear that “[r]eview under

the arbitrary and capricious standard is narrow — a court will
not substitute its judgment for that of the agency.”

See also

Ctr. for Bio. Diversity v. Bureau of Land Mgmt., 833 F.3d 1136,
1150 (9th Cir. 2016).
In light of the Court’s narrow jurisdiction to review
the Army’s decision herein, the Court concludes on this record
that the Army’s decision to separate Plaintiff was properly
supported by evidence in the record and within the parameters of
the Army’s discretion.
In summary, the Court concludes Plaintiff has not
established Defendant’s decision was arbitrary and capricious in
30 - OPINION AND ORDER

violation of the APA.

Accordingly, the Court grants Defendant’s

Cross-Motion for Summary Judgment and denies Plaintiff’s Motion
for Judgment on the Administrative Record as to Plaintiff’s APA
claim.
III. Plaintiff’s Mandamus Claim
Plaintiff also brings a claim for mandamus relief pursuant
to 28 U.S.C. § 1361 based on the same facts and arguments.
As noted, the Ninth Circuit has held "[f]or mandamus relief,
three elements must be satisfied:

(1) the plaintiff's claim is

clear and certain; (2) the [defendant official's] duty is
ministerial and so plainly prescribed as to be free from doubt;
and (3) no other adequate remedy is available."
Reilly, 349 F.3d 1149, 1154 (9th Cir. 2003).

Johnson v.

The trial court

retains discretion in ordering mandamus relief, however, even if
all elements are satisfied."

Indep. Mining Co. v. Babbitt, 105

F.3d 502, 505 (9th Cir. 1997).
Defendant contends in its Cross-Motion for Summary Judgment
that Plaintiff’s mandamus claim is not viable because he has an
adequate remedy available under the APA and the Secretary of the
Army does not have any nondiscretionary, ministerial, and plainly
prescribed duty to retain Plaintiff in active service until he
reaches retirement.

Plaintiff does not respond to Defendant’s

assertions.
The Ninth Circuit has recognized “mandamus relief and relief
31 - OPINION AND ORDER

under the APA are ‘in essence’ the same,” and it has “elected to
analyze [a mandamus] claim under the APA [when] there is an
adequate remedy under the APA.”

R.T. Vanderbilt Co. v. Babbitt,

113 F.3d 1061, 1065 (9th Cir. 1997)(citations omitted).

See also

Taiebat v. Scialabba, No. 17–cv–0805–PJH, 2017 WL 747460, at *4
(N.D. Cal. Feb. 27, 2017)(“Relief under the mandamus act and the
APA are virtually equivalent when a petitioner seeks to compel an
agency to act on a nondiscretionary duty”)(citing Independence
Mining Co., 105 F.3d at 507).
Here Plaintiff’s mandamus claim duplicates his claim under
the APA.

In the exercise of its discretion, the Court,

therefore, grants Defendant’s Motion for Summary Judgment on
Plaintiff’s mandamus claim on the ground that Plaintiff has an
adequate remedy available under the APA.

CONCLUSION
For these reasons, the Court DENIES Plaintiff’s Motion (#58)
for Judgment on the Administrative Record and GRANTS Defendant’s

32 - OPINION AND ORDER

Cross-Motion (#61) for Summary Judgment.
IT IS SO ORDERED.
DATED this 15th day of November, 2018.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

33 - OPINION AND ORDER