The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff Isaac Morrison has sued the Secretaries of Defense, Veterans Affairs and the Navy, the Executive Director of the Board for Correction of Naval Records ("Board") and the Commandant of the Marine Corps (collectively, "government"), seeking review under the Administrative Procedure Act ("APA") of the Board's decision not to vacate five entries in his record relating to non-judicial punishment ("NJP") that Morrison received in 1986. (See Compl. at 1, 4.) The government has moved for summary judgment. (Def.'s Mot. for S.J. ("Def.'s Mot.").) For the reasons stated herein, the government's motion will be granted.
Isaac Morrison enlisted in the United States Marine Corps ("Marines") in 1978 for a period of four years. (Compl. at 2; Def.'s Mot. at 1.) In 1982 he reenlisted for an additional six years and was promoted to the rank of Sergeant. (Compl. at 1-2; Def.'s Mot. at 1-2.) In July 1986, Morrison was advised that his Commanding Officer intended to impose NJP because he had been absent without leave. (Administrative Record ("AR") at 27.) Morrison was found guilty of an "unauthorized absence" and was punished with a reduction in rank and a fine of nearly $1,000, deducted from two months' paychecks, on July 10, 1986. (Id.) This punishment was immediately suspended, with orders that the punishment be remitted after ninety days. (Id.) Morrison did not appeal the finding or the punishment. (Id.)
On September 10, 1986, Morrison failed to return to his ship by his 2:00 a.m. curfew. (AR at 34.) The next day, the order suspending Morrison's punishment was vacated and Morrison was demoted to Corporal. (Id. at 27.) On July 4, 1987, Morrison disobeyed a direct order from a Lance Corporal. (Id.) On September 23, 1987, Morrison was again told that his Commanding Officer intended to impose NJP. (Id.) Again, Morrison accepted NJP, was found guilty, and had a month's pay reduced by $100, although the punishment was suspended for ninety days. (Id.)
On June 25, 1987, Morrison submitted a response to an evaluation that described his fitness from June 1, 1986 through August 15, 1986. (Id. at 32-34.) Morrison's response alleged "prejudiced vindictiveness" and suggested that "several new officers" in his unit "did not savor" his "outspokenness, frankness, or personality." (Id. at 32.) He expressed an "intention to continue to serve honorably . . . despite this conspicuous adulteration of Military hierarchy, integration, and judiciary," which "reinforce[d] the concepts of prejudiced, bias[ed], racist, opinionated individuals." (Id.) The Executive Officer for Morrison's squadron submitted a response on July 15, 1987, which stated that Morrison did "adequate work" but was "continually identified for minor disciplinary infractions during his off duty hours," and that Morrison's "leadership qualities . . . [were] sincerely in question." (Id. at 35.) Morrison received an honorable discharge from the Marines when his enlistment expired on January 13, 1988. (Id. at 1.) However, because of his disciplinary record, he was assigned an "RE-4 reenlistment code," which barred him from reenlisting in any branch of the service. (Id.; Def. Mot. at 7.)
In February 2008, Morrison filed an application with the Board, requesting that the five entries relating to the July 10, 1986 NJP be removed from his record. (AR at 16.) In support of his claim, he submitted fitness reports "that substantiate the fact that [he] was and still is an outstanding marine." (Id. at 16, 62.) He asked the Board to consider his application, despite the considerable delay, "because of the gravity of the injustice and its racial overtones." (Id. at 37.) The Board sought the "comments and recommendation" of the Commandant for the Marine Corps to help in "arriving at a fair and equitable decision." (Id. at 3.) In response, the Judge Advocate Division submitted a three-page opinion recommending that the Board reject Morrison's request. (Id. at 17-19.) The opinion noted that Morrison argued that his NJP was unjust because the "overall character of his performance and service indicate that he was unjustly punished." (Id. at 18.) It stated that Morrison's procedural claims were "without merit" because he was "afforded his full procedural rights," including his right to an attorney, to refuse NJP, and to appeal. (Id.) The opinion also rejected Morrison's suggestion that his constitutional right to a speedy trial had been violated, because this right does not apply to the NJP process. (Id.) Finally, the opinion concluded that Morrison's assertions of racial bias and injustice "have no merit based on the record," because the suspension of Morrison's punishment in 1986 illustrated a "tempered approach" taken toward Morrison's misconduct that "would have allowed him to continue on active duty." (Id. at 19.) The opinion noted that Morrison bore the burden of showing that the record entries were "in error or unjust," and that there was no evidence in the record to support his claims. (Id.)
Morrison's response to the advisory opinion, which was submitted on August 6, 2008, summarizes his overall theory of the case: "[The opinion] never explains how a marine whose fitness reports alway[s] had the highest markings 'particularly desired' even after his reduction!
How was the marine the only one in his field selected for promotion for 1986? If his NJP was not motivated by racism, maybe the respondent can elucidate." (Id. at 21.) Morrison also argued that "the whole procedure was flawed from the very onset" because the "initiator of the charge was not in my command chain." (Id.) Finally, Morrison suggested that "based on the record before the board that there must have been some ulterior motive" because his "fitness reports verify [his] exemplary performance." (Id. at 22.)
The Board issued its decision on October 2, 2008, which stated that it had "carefully weighed all potentially mitigating factors" and that Morrison's discharge was "based on the type warranted by [his] service record, which reflected [his] work performance while in the Navy." (Id. at 11.) The Board noted that Morrison received three NJPs while enlisted as a Marine, and that the "seriousness of [his] misconduct" outweighed the mitigating factors he had identified, making any changes to his record unwarranted. (Id. at 10-11.)
Morrison's pro se complaint, filed on March 5, 2010, challenged the "arbitrary and capricious ruling" of the Board and sought de novo review of the Board's decision, as well as an order requiring "reinstate[ment]" of back pay for the period 1986 through 1998 and reinstatement to active duty. (Compl. at 1, 4.) On August 30, 2010, the government moved to dismiss for lack of jurisdiction and for failure to state a claim on which relief could be granted. (Mot. to Dismiss [Dkt. No. 14].) The Court denied the government's motion in a Memorandum Opinion and an Order issued on January 12, 2011. (Memorandum Opinion [Dkt. No. 24]; Order [Dkt. No. 25].)
In its Opinion, the Court held that Morrison had stated a claim for relief under the APA because he alleged that the Board failed to consider evidence that he was "an excellent marine" when deciding whether to change his records. (Mem. Op. at 7-8.) More specifically, Morrison alleged that the Board overlooked "specific facts," such as his promotions and his receipt of "nothing but outstanding proficiency marks and exemplary fitness reports." (Id. (quoting Compl. at 2).) The Court held that if the Board "failed to consider this mitigating evidence, [it] may have acted arbitrarily and capriciously."*fn1 (Id.) The Court did not reach the Secretary's other arguments for dismissing Morrison's complaint. (Id. at 8 n.2.)
Under the APA, a reviewing court must defer to an agency's decision unless it "is arbitrary and capricious, contrary to law, or unsupported by substantial evidence." Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997). 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 'examine[d] the relevant data and articulate[d] 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). An agency's decision need not "be a model of analytic precision ...