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Angelo Antonelli v. John M. Mchugh

May 9, 2011


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiff Angelo Antonelli brings this action under the Administrative Procedure Act, 5 U.S.C. § 701, et seq., against John M. McHugh, the Secretary of the Army, seeking review of a decision of the Army Board for Correction of Military Records (the "Board").*fn1 That decision denied plaintiff's application for relief from the Army's decision to deny him admission into the Army National Guard. Plaintiff seeks an order setting aside the Board's decision and directing the Board to issue a recommendation to the Army National Guard that plaintiff be allowed to enlist.*fn2 The matter is before the Court on defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment. For the reasons explained herein, defendant's motion will be granted and plaintiff's motion will be denied.


In February 2008, plaintiff applied to enlist into the New Jersey National Guard. (Administrative Record ["AR"] 3; Compl. ¶ 27; Def.'s Statement of Facts ¶ 6 ["Def.'s Facts"].) Under the Army National Guard's Enlistment Criteria for fiscal year 2007, an applicant was "eligible for enlistment if . . . 18 years of age and less than 42 years of age." (AR 84.) An applicant without prior military service was also required to ship out to initial active duty training before his 42nd birthday. (AR 84.) Plaintiff, who had no prior military service and was forty-three at the time he applied, was denied enlistment based on his failure to satisfy this requirement. (AR 75 (Letter from National Guard Bureau to Representative Frank LoBionido explaining that "[b]ecause this maximum age policy is established by the Secretary of the Army, as authorized by federal law, the National Guard Bureau does not have the authority to either change this standard or grant an exception").)*fn3

Plaintiff challenged the National Guard's refusal to allow him to enlist by filing an Application for Correction of Military Records with the Board (AR 7-8), asking that it "grant[] him enlistment into the United States Army National Guard." (AR 14.) The Board, which is composed of civilians appointed by the Secretary of the Army, "may correct any military record ... when [the Secretary of the Army acting through the Board] considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a). Army Regulation 15-185 "prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the [Board.]." Army Reg. 15-185, § 1-1 (Def.'s Mot. for Summ. J., Ex. A, at 1). An applicant to the Board must overcome "the presumption of administrative regularity" and "has the burden of proving an error or injustice by a preponderance of the evidence." Id. § 2-8. If the Board is "persuaded that material error or injustice exists and that sufficient evidence exists on the record," it is to "direct or recommend changes in military records to correct the error or injustice. Id. § 1-8(b). Otherwise, it is to "deny relief." Id. §§ 1-8(d), 2--10(c).

Plaintiff proffered two "conceptually different" arguments in support of his application to the Board. (AR 17.) First, he argued that the Board should grant him relief because "the Army incorrectly applied and, in effect, violated federal law that governs National Guard eligibility requirements and specifically provides that individuals are eligible for enlistment until they reach the age of forty-five." (AR 9, 16 (citing 32 U.S.C. § 313(a) ("to be eligible for original enlistment in the National Guard, a person must be at least 17 years of age and under 45") .) Second, he argued that even absent any "evidence of error with regard to particular legal and procedural issues," the Board had the "power to grant broad equitable relief" based on "other considerations related, for example, to the extreme prejudice suffered by an agency action." (AR 17.) Thus, plaintiff argued, the Board should "exercise its authority and grant relief solely for equitable reasons" because plaintiff "possesses a strong desire to serve his country as a member of the United States Army. He is well-educated, physically fit for duty and would be a valuable asset to the Army and to the United States in general." (AR 17-18.)

After meeting on March 11, 2010, the Board denied plaintiff's application. (AR 1-6.) The Board concluded that plaintiff was "properly denied enlistment" pursuant to the National Guard Enlistment Criteria because 32 U.S.C.§ 313(a) merely "sets the upper age limit which the Service Secretaries may not exceed in determining age qualifications for initial enlistment. It does not establish the age qualification to be used." (AR 5.) The Board also concluded that "[t]he evidence presented does not demonstrate the existence of a probable error or injustice" and, therefore, that "the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned." (AR 6.)

On August 16, 2010, plaintiff filed a complaint against the Secretary of the Army seeking to set aside the Board's decision under the APA and as a violation of his right to due process. Both parties moved for summary judgment.



In reviewing the decision of a military correction board under the APA, 5 U.S.C. § 706, a court must "defer" unless the decision "is arbitrary and capricious, contrary to law, or unsupported by substantial evidence." Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997); Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989). Generally, "[t]he scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Thus, a court "will not disturb the decision of an agency that has 'examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made.'" MD Pharm. v. Drug Enforcement Admin., 133 F.3d 8, 16 (D.C. Cir.1998) (quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43). "[A]n agency's decision [need not] be a model of analytic precision to survive a challenge." Dickson v. Sec'y of Def., 68 F.3d 1396, 1404 (D.C. Cir. 1995); Frizelle, 111 F.3d at 176. Rather, "[a] reviewing court will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned" Dickson, 68 F.3d at 1404; Frizelle, 111 F.3d at 176.

Reviewing the decision of a military correction board requires an "unusually deferential application of the arbitrary or capricious standard" given the language of 10 U.S.C. § 1552(a). Kreis, 866 F.2d at 1514; see Musengo v. White, 286 F.3d 535, 538 (D.C. Cir. 2002); Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). As the Court of Appeals explained in Kreis:

In practice, however, the question whether a particular action is arbitrary or capricious must turn on the extent to which the relevant statute, or other source of law, constrains agency action. While the broad grant of discretion implicated here 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. It is simply more difficult to say that the Secretary has acted arbitrarily if he is authorized to act "when he considers it necessary to correct an error or remove an injustice," 10 U.S.C. § 1552(a) (emphasis added), than it is if he is required to act whenever a court determines that certain objective conditions are met, i.e., that there has been an error or injustice.

Kreis, 866 F.2d at 1514. Thus, a court's role in reviewing the decision of a military corrections board is to determine whether "the decision making process was deficient, not whether [the] decision was correct." ...

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