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Burt v. Winter

September 7, 2007

KEVIN G. BURT, PLAINTIFF,
v.
DONALD C. WINTER, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

By this action against Donald Winter, Secretary of the Navy (the "Secretary"), plaintiff Kevin Burt seeks review of decisions made by the Board of Corrections of Naval Records ("BCNR") regarding his military records. Before the court are the parties' cross-motions for summary judgment. Upon consideration of the motions, the oppositions thereto, and the record of this case, the court determines that summary judgment must be granted in favor of the Secretary.

I. BACKGROUND

Burt enlisted in the U.S. Navy Reserve Delayed Entry Program on June 16, 2000. He was processed for a nonstigmatizing Entry Level Separation discharge shortly thereafter based on his diagnosis as having oppositional defiant disorder ("ODD"). Because of communication lapses within the Navy, however, he was not removed from his duties at this time, and he completed his initial training in October 2000. The discharge did trigger problems with his pay and records, and in response to these difficulties, Burt went absent without leave in November of that year.

Upon his return, he was reevaluated by a psychologist, who repeated the ODD diagnosis and recommended administrative separation, in part based upon Burt's expressed desire to receive a discharge. On December 5, 2000, Burt was issued a second Entry Level Separation discharge.

In 2002, Burt began seeking administrative remedies to alter his service record. First, he requested that the Naval Discharge Review Board ("NDRB") change his discharge to "Best Interest Of The Service" ("BIOTS") and upgrade his re-enlistment code from RE-4 to RE-1.*fn1

After NDRB denied him relief, Burt petitioned BCNR to remove both discharges and restore him to active duty. In the alternative, he asked that his discharge be changed to one based upon Secretarial authority, such as BIOTS. BCNR sought outside consultation, and a resulting independent opinion from the Naval Medical Center in Portsmouth, Virginia, determined that Burt's ODD diagnosis was insufficiently documented and that discharge for psychiatric reasons was therefore not justified.

Based upon its review of the record and the advisory opinion, BCNR concluded on August 30, 2004, that Burt's discharge was improper, but nonetheless also determined that restoration to active duty was unwarranted due to Burt's documented behavior problems, his failure to disclose information at various stages of his enlistment, and his previously expressed desire to receive a discharge. BCNR therefore removed the first (ODD-based) discharge and corrected the second discharge's basis to BIOTS. BCNR declined to remove the mental health records because though the diagnoses did not warrant a psychiatric-based discharge, BCNR determined that retaining the records was warranted for documentation purposes. Finally, BCNR declined to alter Burt's reenlistment code.

Upon review of Burt's request for reconsideration, BCNR revisited its reenlistment-code determination on August 15, 2006, and concluded that, in light of Burt's history of success in his professional and personal life, the RE-4 code no longer served a useful purpose. Accordingly, it changed the code to RE-1. Pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. ("APA"), Burt now seeks judicial review of these decisions.

II. ANALYSIS

A. Standard of Review

The court's ability to review matters related to military discharges is limited, as military personnel decisions themselves lie outside the court's jurisdiction. Piersall v. Winter, 435 F.3d 319, 321--22 (D.C. Cir. 2006) (claims for retroactive promotion are non-justiciable); Kreis v. Sec'y of the Air Force, 406 F.3d 684, 686 (D.C. Cir. 2005) ("Kreis III"). The court does have jurisdiction, however, "to evaluate, in light of familiar principles of administrative law, the reasonableness of the Secretary's decision not to take certain corrective action with respect to [military records]." Ibid. (quoting Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989) ("Kreis I")). Pursuant to such a review, the court may only "determine whether the Secretary's decision making process was deficient, not whether his decision was correct," ibid., and the decision must be upheld unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," ibid. (quoting 5 U.S.C. § 706(2)(A)). Thus, as with traditional review of administrative agency actions, the court will not disturb the decision so long as the decisionmaker "examine[d] the relevant data and articulate[d] a satsifactory explanation for its action including a 'rational connection between the facts found and the choice made.'" Ibid. (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)).*fn2 Finally, though judicial review of military records-correction decisions incorporates the core "arbitrary or capricious" standard of traditional administrative law, such review involves an "unusually deferential application" of that standard. Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000) (quoting Kreis I, 866 F.2d at 1514). "This deferential standard is calculated to ensure that the courts do not become a forum for appeals by every soldier dissatisfied with his or her ratings, a result that would destabilize military command and take the judiciary far afield of its area of competence." Ibid. (citing Orloff v. Willoughby, 345 U.S. 83, 94 (1953) ("Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.")).*fn3

B. Application

Burt raises two challenges to BCNR's decisions: first, he contends that the decisions reviewing his discharge are inconsistent with each other and are therefore arbitrary and capricious; second, he contends that BCNR's refusal to reinstate him, despite its determination that his original separation was ...


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