The opinion of the court was delivered by: Robert L. Wilkins United States District Judge
Plaintiff Alan P. Beauregard, ("Beauregard"), father and personal representative of the late First Lieutenant James J. Beauregard ("Lt. Beauregard"), brings this action against Secretary of the Navy, Honorable Ray Mabus, seeking judicial review of the March 15, 2006 decision of the Board for Correction of Naval Records ("the Board") under the Administrative Procedure Act ("APA"). 5 U.S.C. § 701 et seq. (2000). Beauregard challenges the Board's decision regarding the delay and denial of the promotion of Lt. Beauregard, the characterization of Lt. Beauregard's discharge, and the correction of Lt. Beauregard's military records. (See generally Compl.). Beauregard alleges that the Board's actions in denying Beauregard's application for relief were arbitrary and capricious.
Defendant has moved for summary judgment pursuant to Fed. R. Civ. P. 56, arguing that the Board used an adequate decision making process as to all issues relating to Lt. Beauregard's promotion and discharge. (Dkt. No. 9 at 11-12). Plaintiff has cross-moved for summary judgment, arguing that summary judgment should be granted in Plaintiff's favor because the Board's decision was arbitrary, capricious and an abuse of discretion. (Dkt. No. 14 at 17). Upon a complete review of the administrative record ("AR"), and for the reasons set forth below, the Court concludes that the administrative record supports the Board's determination. Accordingly, Defendant's Motion for Summary Judgment is granted, and Plaintiff's Cross-Motion for Summary Judgment is denied.
Lt. Beauregard entered active duty as an officer candidate in the United States Marine Corps on May 10, 1996. (AR at 4). In March 2001, Lt. Beauregard became the subject of a criminal investigation by both civilian and military authorities regarding allegations of larceny and several other related offenses. (Compl. at ¶ 28-29). While this investigation was pending, Lt. Beauregard was selected for promotion from First Lieutenant to Captain and his name was added to the promotion list on June 1, 2001. (Compl. at ¶ 27; AR at 5, 40). On June 8, 2001, Lt. Beauregard's Commanding Officer recommended that his promotion be delayed and that his name be possibly removed from the promotion list due to the ongoing investigation. (Compl. at ¶ 49; Dkt. No. 9 at ¶ 8; AR at 182). On June 25, 2001, Lt. Beauregard acknowledged the promotion delay by submitting a written response to his Commanding Officer regarding the decision to withhold his promotion. (Compl. at ¶ 50; Dkt. No. 9 at ¶ 9; AR 42). On June 28, 2001, the official "Notification of Promotion Delay and Possible Removal from Fiscal Year 2002 Promotion List" notice was issued recommending to the Commandant of the Marine Corps that due to the "serious nature of the pending charges" the Commander of the First Marine Division "strongly recommend[ed] that [Lt. Beauregard's] promotion be delayed until his case is resolved." (Dkt. No. 9 at ¶ 11; AR at 44, 183). On July 11, 2001, the Staff Judge Advocate to the Commandant of the Marine Corps ordered that Lt. Beauregard not be separated, promoted, or transferred without coordination with the Judge because of the pending charges. (Dkt. No. 9 at ¶ 15; AR at 5, 49-51).
Based on Lt. Beauregard's position on the promotion list, he was set for promotion on August 1, 2001; however, on August 16, 2001, the Commandant of the Marine Corps approved the recommendation that Lt. Beauregard's promotion be delayed due to "the potentially adverse allegations of larceny and fraud." (Compl. ¶ 37; Dkt. No. 9 at ¶ 16; AR at 5, 52-53). On August 12, 2001, Lt. Beauregard was arrested and charged with driving under the influence of alcohol ("DUI"). (Compl. ¶ 37; Dkt. No. 9 at ¶ 18; AR at 5, 56-57). Investigative hearings on the criminal charges were held on September 5, 2001 and October 4, 2001. (Compl. ¶33). During the September 5, 2001 hearing, Lt. Beauregard testified to being charged with a DUI. (Compl. ¶ 41). Lt. Beauregard admitted his guilt to the DUI offense to civilian authorities on September 17, 2001. (Compl. at ¶ 42; Dkt. No. 9 at ¶ 20; AR at 5-6, 67).
On May 22, 2002, the Commanding General withdrew and dismissed all charges against Lt. Beauregard regarding his larceny and other related offenses. (Compl. ¶¶ 35-36; Dkt. No. 9 at 23; AR at 6). Lt. Beauregard's Commanding Officer initiated separation actions on June 28, 2002. (Compl. at ¶ 60; Dkt. No. 9 at ¶ 24; AR at 6, 70-71). Lt. Beauregard was notified of the separation proceedings on July 3, 2002, at which time Lt. Beauregard was informed of his procedural rights, including his right to a Board of Inquiry hearing and his right to render his resignation in lieu of separation processing. (Dkt. No. 9 at 25-26; AR at 72-73). On July 9, 2002, Lt. Beauregard submitted a resignation request in lieu of separation processing and waived his right to a Board of Inquiry hearing. (Compl. ¶ 72; Dkt. No. 9 at ¶ 27-28; AR at 6, 74-75, 197). The First Endorsement of Lt. Beauregard's separation was issued July 12, 2002, the Second Endorsement was issued on July 25,2002, and the Third Endorsement was issued October 9, 2002. (Compl. at ¶¶ 63, 69, 74; Dkt. No. 9 at ¶¶ 30, 31, 33; AR at 6, 77-83). Lt. Beauregard's resignation request was ultimately denied on October 2, 2002. (Dkt. No. 9 at ¶ 32; AR at 7, 80).
Lt. Beauregard was separated from the United States Marine Corps on October 15, 2002, at which time he was issued a Certificate of Release or Discharge from Active Duty ("DD Form 214") indicating a discharge characterization of "Honorable" by reason of completion of his required active service. (Compl. at ¶ 10; Dkt. No. 9 at ¶¶ 34-35; AR at 7, 84). On October 24, 2002, the Assistant Secretary of the Navy for Manpower for Reserve Affairs directed that Lt. Beauregard receive a "General" discharge by reason of unacceptable conduct. (Compl. at ¶ 75; Dkt. No. 9 at ¶ 36; AR at 7). Consequently, on February 6, 2003, Lt. Beauregard's DD Form 214 was corrected by issuance of a DD Form 215 designating a "General" discharge by reason of unacceptable conduct. (Compl. at ¶ 77; Dkt. No. 9 at ¶ 37; AR at 7, 85-86).
Following Lt. Beauregard's death on August 6, 2004, his father and personal representative completed the application process for the correction of records on behalf of his son pursuant to 32 C.F.R. § 723.3(a)(3). (Compl. at ¶ 7, 11-12, 80; Dkt. No. 9 at ¶ 38; AR at 87). In his application, Beauregard requested that the Board: 1) void the existing DD-215 Form with its "General" characterization; 2) reinstate the original DD-214 Form with its "Honorable" characterization; 3) direct that Lt. Beauregard be posthumously promoted to Captain; 4) award Lt. Beauregard's back pay; 5) direct the removal from Lt. Beauregard's official military personnel file of all documents referencing the withdrawn and dismissed criminal charges. (Compl. at ¶ 81; Dkt. No. 9 at ¶ 39; AR 88-111). On March 15, 2006, after the issuance of an Advisory Opinion from the Military Law Branch of the Judge Advocate Division ("JAM") that recommended the denial of the application for relief, the Board issued its decision concluding that, despite procedural deficiencies, the Department had substantially complied with all relevant procedures. (Compl. at ¶ 13, 15; Dkt. No. 9 at ¶ 40-48; AR at 3-12, 18). The Board denied Beauregard's application on all counts finding that Beauregard's requests were without merit. (AR at 11). Beauregard timely filed his Complaint in this Court seeking review of the Board's decision on November 17, 2010. See 28 U.S.C. § 2401(a).
The Secretary of a military department, acting through a civilian board of the executive part of that 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." 10 U.S.C. § 1552(a)(1). Once a civilian board makes a final decision, that decision is "subject to review under § 706 of the Administrative Procedure Act." Pettiford v. Sec'y of the Navy, 774 F. Supp. 2d 173, 181 (D.D.C. 2011). Under the APA, a reviewing court may hold unlawful or set aside an agency action that the court determines to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A).
When reviewing an agency's action under the APA, it is not the role of the court to resolve factual issues, rather the court need only "determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Fuller v. Winter, 538 F. Supp. 2d 179, 185 (D.D.C. 2008) (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)).
Given the language of 10 U.S.C. § 1552(a), which grants the Secretary broad discretion to correct an error or injustice, federal courts review the decisions of military correction boards with "an unusually deferential application of the 'arbitrary and capricious' standard." Kreis v. Secretary of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989); see also Orloff v. Willoughby, 345 U.S. 83, 93 (1953) ("[G]iven the special circumstances in which the military must operate, the courts are ill-equipped to resolve controversies arising from the use of discretionary powers specifically designed to provide military authorities with the freedom and flexibility needed to establish and maintain a well-trained and well-disciplined armed force."). "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." Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). Moreover, there exists a "strong but rebuttable presumption that administrators of the military, like other public officials, discharge their duties correctly, lawfully, and in good faith." Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997) (quoting Collins v. United States, 24 Cl. Ct. 32, 38 (1991), aff'd, 975 F.2d 869 (Fed Cir. 1992)).
Generally, summary judgment is appropriate "if the movant shows [through facts supported in the record] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, when parties seek "review of a final agency action under the Administrative Procedure Act, . . . the standard set forth in [Rule 56(a)] does not apply because of the limited role of a court in reviewing the administrative record." Calloway v. Harvey, 590 F. Supp. 2d 29, 35-36 (D.D.C. 2008). Thus, "summary judgment [is] the mechanism for deciding, as a matter of law, whether agency action is supported by the ...