The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Dr. Michael S. Escobedo's request for correction of his military record arises from his claim for damage to his boat and truck, allegedly caused by a storage facility under government contract. Dr. Escobedo contended that the storage facility was responsible for the damage and he submitted a claim asking for reimbursement from the Army. The storage facility blamed Dr. Escobedo for the damage. After an investigation, the U.S. Army Criminal Investigation Command found probable cause to charge Dr. Escobedo with fraud, attempted larceny, and false official statement, and the Federal Bureau of Investigation National Criminal Information Center ("NCIC") placed his name in its records. Protesting his innocence, Dr. Escobedo applied to the Army Board for Correction of Military Records ("ABCMR"), requesting that his name and identifying information be removed from the NCIC records. ABCMR denied his request. As a result, Dr. Escobedo brought this suit against the Secretary of the Army under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2), asserting that the ABCMR denial was arbitrary and capricious. Having reviewed the record carefully, the Court cannot agree and will grant the Secretary's motion for summary judgment.
Dr. Escobedo is a former Army Captain who served in the Army Reserve starting in 1995 and then on active duty from July 1996 through January 1998. In June 1996, he attended the U.S. Army Flight Surgeon primary course at Fort Rucker, Alabama. Prior to his attendance, Lone Star Van Company ("Lone Star") packed and stored his household goods, including his boat. Lone Star was under contract with the government.
On August 23, 1996, Dr. Escobedo and his friend, Keith Young, drove to the Lone Star warehouse to retrieve the boat. Dr. Escobedo claims that he found his boat abutting a concrete wall with a bent propeller and damage to the wheel castor, pin, and taillights. Compl. ¶ 23. Dr. Escobedo further alleges that Lone Star's dock foreman, Dwight Tatum, attached the boat trailer to the ball hitch on Dr. Escobedo's truck. Id. ¶¶ 25-26. When Dr. Escobedo pulled forward, the trailer came off the hitch and slammed into the back of the truck, damaging the truck. Id. Dr. Escobedo submitted a damage claim to the Army's "3 Corps" claims office. Id. ¶ 29. The 3 Corps claims office indicated that it would cover the damage to the boat, but that Dr. Escobedo would have to file a claim with Lone Star's insurance company for coverage of damage to the truck. Id. ¶ 30; see also Administrative Record ("AR") at 270-72 (because the truck was not part of the shipment, Dr. Escobedo was required to seek coverage from the warehouse's insurance carrier).
Lone Star denied responsibility for damage to the boat, asserting that Lone Star employees had heard Dr. Escobedo say he had damaged the propeller on rocks in a lake but planned to make a claim so that the Army would pay for it. Compl. ¶ 31. Lone Star further denied responsibility for damage to the truck, contending that a Lone Star employee assisted in placing the trailer on the ball hitch, but that Dr. Escobedo handled the task of locking the hitch without the assistance of any Lone Star employees. Id.; see also AR at 194 & 272.
The Army's Criminal Investigation Division conducted an investigation and issued a Report of Investigation ("ROI"), concluding that probable cause existed to believe that Dr. Escobedo had committed fraud, attempted larceny of government funds, and false official statement with regard to the events of August 23, 1996 and his claim for damages. Id. ¶ 32; accord AR at 169-260. The ROI included reports of three witness interviews, all of whom asserted that Dr. Escobedo attached his boat to his truck. See AR at 189, 191, 194. Two of the three asserted that they heard Dr. Escobedo say that he previously had damaged the propeller passing over rocks in a lake and that he intended to file a claim to get the Army to pay for the damage. Id. at 189 & 194. As a result of the investigation, the Criminal Investigation Division "titled" him for the offenses, that is, the Division placed his name in the title block of a ROI. See Def.'s Mem. in Supp. of Mot. for Summ. J. ("Def.'s Mem."), Ex. A (DoDI 5505.7, Titling and Indexing Subjects of Criminal Investigations in the Department of Defense (Jan. 7, 2003) (Enclosure 1 ¶ E1.1.8 defining "titling")). His name was also indexed in the Defense Clearance and Investigations Index ("DCII"). See DoDI 5507 ¶ 6.1 (all names of subjects of DoD criminal investigations shall be listed in the DCII). Court martial charges were preferred against Dr. Escobedo. Compl. ¶ 44. On advice of counsel, Dr. Escobedo submitted a request for discharge in lieu of trial by court martial so that he could avoid the loss of his medical license. Id. ¶ 45. The Army approved the request and discharged Dr. Escobedo Under Other Than Honorable Conditions, In Lieu of Trial by Court Martial, effective January 13, 1998. Id. ¶ 46.
Subsequently, Dr. Escobedo submitted an application to the Army Discharge Review Board, requesting that the discharge characterization be upgraded to Honorable. Id. ¶ 47. On October 21, 2005, the Review Board granted the application. Id. ¶ 48; see also AR at 63-72. The characterization of the discharge was changed to Honorable, Miscellaneous/General Reasons. AR at 70-71. The Review Board explained:
The Board does not condone the applicant's misconduct; however, it determined that the discharge is inequitable. The applicant's misconduct was mitigated by service of sufficient length and merit to warrant an upgrade of the discharge being reviewed. Accordingly, the Board voted to grant relief in the form of an upgrade of characterization of service to fully honorable and in a change to the narrative for discharge to Miscellaneous/General Reasons.
AR at 69. On December 1, 2005, the Secretary adopted the findings of the Review Board. Compl. ¶ 50; AR at 59-62.
Dr. Escobedo submitted an application to the ABCMR,*fn1 requesting that his name and identifying information be removed from the ROI, in which he was titled with the larceny, false statement, and false claim offenses, and from the DCII. On March 8, 2007, ABCMR denied the request. AR at 3-9. ABCMR found that there was insufficient evidence to support Dr. Escobedo's claim that there was no probable cause to title Dr. Escobedo for the offenses for which he was charged. Id. at 8. Further, ABCMR explained that titling only requires credible information that an offense may have been committed and that the only way to administratively remove a titling action from the ROI and the DCII is to show either mistaken identity or a complete lack of credible evidence in support of the initial titling determination. Id. ABCMR concluded that Dr. Escobedo failed to meet this standard. Id.*fn2
Dr. Escobedo filed this lawsuit, alleging that he was wrongfully titled for these offenses based on witness statements that were biased and contradictory. Compl. ¶¶ 66 & 68. Because no crime was ever proved and because the Review Board amended his discharge to Honorable (for Miscellaneous/General Reasons), Dr. Escobedo asserts that ABCMR was arbitrary and capricious in denying his request to remove his name and identifying information from the ROI and the DCII. Id. ¶ 68. The parties have filed cross motions for summary judgment.*fn3