UNITED ST ATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MARKEL, ) ) Plaintiff, ) ) v. ) Civil Case No. 22-1389 (RJL) ) CARLOS DEL TORO, Secretary ) of the Navy, et al., ) ) Defendants. )

MEMORANDUM OPINION � January�"\ 2025 [Dkt. #22, Dkt. #24]

Plaintiff James Markel . ("plaintiff' or "Markel") brings this action against

defendants Carlos Del Toro, Secretary of the Navy; the U.S. Department of the Navy; and

the Board for Correction of Naval Records ("BCNR" or "Board") (collectively,

"defendants") under the Administrative Procedure Act ("APA"),

et seq.

Plaintiff, a former Naval officer, seeks to set aside the BCNR's denial of his request to

correct his military records. Specifically, plaintiff believes he should have been "medically

retired," a type of separation from military service which would entitle him to numerous

benefits.

Now before the Court are the parties' cross-motions for summary judgment. See

Pl.'s Mot. for J. on the Admin. R. ("Pl.'s Mot.") [Dkt. #22]; Defs.' Cross-Mot. for Summ.

J. ("Defs.' Cross-Mot.") [Dkt. #24]. Upon consideration of the parties' briefing, the

relevant law, and the entire record in this case, both motions will be GRANTED IN PART

1 and DENIED IN PART, and the case will be REMANDED to the BCNR for further

proceedings.

I. BACKGROUND

A. Statut01y and Regulatmy Background

A service member can be medically retired from military service if he or she is

"unfit" for service because of a disability. 10 U.S.C.§ 1201(a). Medical retirement entitles

the service member to certain benefits, such as access to military bases, healthcare benefits,

and commissary privileges. The Navy evaluates service members' fitness through a multi­

step process.

First, a commanding officer or medical or dental officer refers a service-member for

evaluation by the Medical Evaluation Board ("MEB"). Navy Sec'y Instr. (hereinafter,

"SECNAVINST") 1850.4E (Dep't Disability Evaluation Manual)§§ 3102, 3106. If the

MEB determines further evaluation is warranted, it refers the service member to a Physical

Evaluation Board ("PEB"). Id.§ 3201(a).

Second, the PEB determines whether the service member is "fit" or "unfit" to

continue service. Id. § 1004(a). An unfit service member may be eligible for medical

retirement. Here, a "[s]ervice member shall be considered unfit when the evidence

establishes that the member, due to physical disability, is unable to reasonably perform the

duties of his or her office, grade, rank, or rating ... ." Dep't of Def. Instr. ("DoDI")

1332.38 § E3.P3.2; see also SECNAVINST 1850.4E § 3301. The PEB considers the

following factors when deciding whether a service member can reasonably perform his or

her duties:

2 Common Milita1y Tasks. The member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating. .. .

Physical Fitness Test. Whether the member is medically prohibited from taking the respective Service's required physical fitness test. ...

peployability. When a Service member's office, grade, rank or rating requires deployability, whether a member's medical condition(s) prevents pbsitioning the member individually or as part of a unit with or without prior notification to a location outside the Continental United States ....

Special Qualification . For members whose medical condition causes loss of qualification for specialized duties, whether the specialized duties comprise the member's current duty assignment; or the member has an alternate branch or specialty; or whether reclassification or reassignment is feasible.

DoDI 1332.38 § E3.P3.4; see also SECNAVINST 1850.4E § 3304(a).

Third, if the service member disagrees with the PEB's finding and has been

separated from the military, he can petition the BCNR for relief. SECNAVINST 1850.4E

§§ 3102(c), 5001(a). The BCNR may revise a military record when necessary to correct

an error or remove an injustice. 10 U.S.C.§ 1552(a)(l ); see also

(e)(2).

If the BCNR denies a service member's application, its "determination shall be made in

writing and include a brief statement of the grounds for denial."

(e)(3).

B. Factual Background

Plaintiff graduated from the U.S. Naval Academy in May 2006. Admin.R.("A.R.")

[Dkt. #29] 15, 97. He was commissioned as an Officer with the designator code 1160,

which means "Unrestricted Line Officer who is in training for Surface Warfare

qualification." A.R. 175, 356. He was flown out to his ship, the USS Forrest Sherman,

which was deployed at the time. A.R. 97. Shortly after arriving on the ship, plaintiff

3 reported anxiety, difficulty breathing, rapid heartbeat, difficulty sleeping, and thoughts of

running the ship aground and fighting his shipmates. A.R. 97-98. He was medically

evacuated to a Naval Hospital in Rota, Spain, where he was diagnosed with Bipolar I

Disorder. A.R. 83-84. Plaintiff was then flown back to the United States for outpatient

psychiatric treatment at the Naval Medical Center ("NMC") in Portsmouth, Virginia. A.R.

97. NMC Portsmouth determined plaintiff was "not psychiatrically fit for full duty" and

placed him on Limited Duty in an administrative role on shore. A.R. 95-96. He was also

referred to a MEB. A.R. 95-96.

The MEB evaluated plaintiff and described his impairment as "moderate"; changed

his diagnosis from Bipolar Disorder to Major Depressive Disorder,- Recurrent with

Psychotic Features; and referred him to a PEB. A.R. 97-100. In March 2008, an informal

PEB found plaintiff "FIT to perform the duties of his/her office, grade, or rank on active

duty." A.R. 436-38.

Nonetheless, a few months later, the Navy disqualified plaintiff from submarine

duty, nuclear field duty, sea duty, and deployment. A.R. 110-13, 312-14. His Limited

Duty service continued during this time and he earned glowing evaluations. See A.R. 119-

20. Given his success in this administrative role, plaintiff requested to be redesignated as

a Human Resources Officer. See A.R. 121. The Commander of Naval Surface Force

Atlantic strongly recommended plaintiff for redesignation, describing him as "an

exceptional Junior Officer" with "uncanny organizational, leadership, and deductive

reasoning skills." A.R. 121. The Navy declined to redesignate plaintiff and honorably

discharged him-but did not medically retire him-in March 2009. See A.R. 316-17.

4 C. Procedural Background

In August 2015, plaintiff petitioned the BCNR to correct his military record to

reflect a medical retirement. A.R. 283-86. The BCNR denied plaintiffs application in a

two-page letter. A.R. 273-74, 278. Plaintiff then filed this lawsuit, seeking judicial review

of the BCNR's decision under the APA. See generally Comp!. [Dkt. #1]. The parties

requested a joint remand back to the BCNR, which this Court granted in September 2022.

Order (Sept. 26, 2022) [Dkt. #13]. The remand instructed the BCNR to re-adjudicate

plaintiffs claim and "issue a new final decision explaining Plaintiffs entitlement to

medical retirement pursuant to

, DoDI 1332.38, and other statutory and

· regulatory guidance." -Id. at 1.

On remand, the BCNR again denied plaintiffs application in a 10-page letter. A.R.

1-11. The BCNR found that plaintiffs condition "was not so debilitating as to render

[him] incapable of performing [his] duties" and thus the PEB did not err in finding plaintiff

fit. A.R. 3-4. In reaching its conclusion, the BCNR highlighted plaintiffs exemplary

performance while on Limited Duty. A.R. 3-4. Plaintiff then filed an amended complaint

challenging that second BCNR decision, Am. Comp!. [Dkt. #17], and moved for judgment

on the administrative record, Pl.'s Mot. Defendant filed a cross-motion for summary

judgment. Defs.' Cross-Mot. These motions are fully briefed and ripe for review.

II. LEGAL STANDARD

A final decision of the BCNR is subject to judicial review under the APA.

; see Dickson v. Secretary of Defense,

(D.C. Cir. 1995)

(explaining "that when a Board reviews the merits of a former servicemember's application

5 under§ 1552(a)( l ), the decision is subject to judicial review" (citing Chappell v. Wallace,

(1983))). The Court must set aside agency action that is "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law."

(2)(a). The scope ofreview is narrow, as this Court "review[s] a decision ofa military

corrections board under an 'unusually deferential application of the "arbitrary and

capricious" standard."' Roberts v. United States,

(D.C. Cir. 2014)

(quoting Kreis v. Sec'y ofthe Air Force,

(D.C. Cir. 1989)). The Court

should "limit [its] inquiry to whether the 'Secretary's decision making process was

deficient, not whether his decision was correct."'

(quoting Kreis,

).

Still, this Court's review is not a rubber stamp. The Court "retain[s] a role, and an ·

important one, in ensuring that agencies have engaged in reasoned decisionmaking."

Judulang v. Holder,

(2011). "[T]he court must be satisfied that the agency

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."' Iaccarino

v. Duke,

(D.D.C. 2018) (alterations in original) (quoting

Alpharma, Inc. v. Leavitt,

(D.C. Cir. 2006)).

III. ANALYSIS

Plaintiffs amended complaint asserts three claims for relief, each of which posits

that the BCNR's decision violates the APA. See Am. Compl. ,r,r 66-76. Addressing each

6 claim in tum, I find that summary judgment is warranted for plaintiff on the first and third

claims for relief and for defendants on the second claim for relief.

A. Plaintiffs First Claim for Relief

First, plaintiff claims that the BCNR's decision was arbitrary and capricious because

it failed to evaluate all relevant criteria for a service member's fitness under binding statutes

and regulations. Am. Compl. ,r,r 66-70 (First Claim for Relief). The relevant criteria in

determining fitness are: (1) the service member's ability to reasonably perform the

common military tasks associated with his office, grade, rank, or rating; (2) the service

member's ability to pass required physical tests; (3) the service member's deployability;

and (4) whether the disability caused- the service member to lose qualifications or

specialized duties. DoDI 1332.38 § E3.P3.4.1; SECNAVINST 1850.4E § 3304(a). I find

the BCNR's findings regarding the first factor 1 arbitrary and capricious and therefore grant

summary judgment for plaintiff on his first claim for relief.

1 Factors two and three are undisputed; factor four is disputed. With respect to factor two,the BCNR found that "the deployability factor weighed in favor of a finding [] that you were not reasonably able to perform your duties due to your MDD condition." AR. 6. The parties do not contest this determination. See Pl. 's Mot. 26; Defs.' Cross-Mot. 19. Regarding factor three, plaintiff did not assert before the BCNR or in briefing that he is unable to pass the physical fitness test or that any BCNR findings regarding this factor are arbitrary and capricious. See A.R. 6 n.6; Pl.'s :tvt;ot. 26. Factor four,however, is disputed. Here,I find the BCNR's decision was not arbitrary or capricious. Plaintiff was disqualified from submarine and nuclear field duty because of his medical condition, see A.R. 110,113,312,but the BCNR did not view this as persuasive evidence of his unfitness in part because redesignation to another specialty was feasible,A.R. 8; see DoDI 1332.38 § E3.P3.4. l.4 (instructing the PEB to consider "whether reclassification or reassignment is feasible"). Plaintiff sought redesignation as a Human Resources Officer,but the Navy ultimately declined to redesignate him and instead separated him. The record does not indicate why the Navy made this decision. Plaintiff suggests that redesignation must have been infeasible because the Navy in fact did not redesignate him,but that logical leap assumes the Navy's reasoning without support in the record. The BCNR provided a sound justification-the strong endorsement from the Commander of Naval Surface Force Atlantic, see A.R. 121-to support its conclusion that redesignation was feasible, and plaintiff failed to provide countervailing evidence. Therefore,the BCNR' s decision on factor four was not arbitrary or capricious.

7 The first factor-plaintiffs ability to perform his common military tasks-requires

establishing (1) plaintiffs rating2 ; (2) the common military tasks associated with that

rating; and (3) plaintiffs ability to reasonably perform those common military tasks. The

BCNR's findings with respect to the third prong are arbitrary and capricious.

1. Plaintifrs Rating The BCNR determined plaintiffs rating was Unrestricted Line Officer, a

"generalist[]" rating "assigned to perform a wide variety of tasks." A.R. 7. Plaintiff

counters that his rating should be his designator code 1160, a narrower classification which

means Unrestricted Line Officer in training/or Surface Warfare qualification. Pl.'s Mot.

16-20. The BCNR's determination here was not arbitrary .or capricious. Contrary to

plaintiffs assertion, see Pl.' s Mot. 20, the BCNR did not ignore plaintiffs designator code

and instead explained why it did not consider that code determinative, see A.R. 7. The

BCNR stated that the Navy defines "ratings" as "occupational fields," and reasoned that

being "in training for Surface Warfare qualification" was not an occupational field. A.R.

7 (emphasis added); see SECNAVINST 1850.4E § 2057 (defining rating as "[t]he

occupational fields prescribed for Sailors ... . Does not include secondary specialties").

Plaintiff cites no persuasive authority for the assertion that his designator code is his rating3

2 The parties' dispute centers around plaintiffs rating rather than his office, grade, or rank. The heart of plaintiffs argument is that the BCNR should have evaluated his ability to complete the tasks associated with his designator code, which is, according to plaintiff, his rating. See Am. Compl. ,i 17; A.R. 7; Pl.'s Mot. 2 n.1, 16-20. 3 Plaintiff argues that "the Navy uses 'designator' codes to classify, identify, and document officer

occupational field duties and qualifications." Pl.'s Mot. 2 n.1. However, plaintiffs cited source-an excerpt of the Manual of Navy Officer Manpower and Personnel Classifications, Vol. !--does not state that designator codes describe officers' occupational fields or ratings. See A.R. 175. 8 and, given the deference owed to the BCNR here, its decision was neither arbitrary nor

capnc1ous. See Roberts,

.

2. Common Military Tasks Associated with Plaintiffs Rating

Finding no error with the BCNR's decision regarding plaintiffs rating, the next

question is whether the BCNR's determination of that rating's common military tasks was

arbitrary and capricious. Here again the BCNR's decision must stand.

According to the BCNR, the common military tasks associated with being an

Unrestricted Line Officer are: "training and leading Sailors; learning and becoming

proficient in the wide variety of technical tasks associated with service onboard service

ships; thinking; planning; organizing; coordinating; and performing administrative

functions." A.R. 7. This finding was not arbitrary or capricious. The BCNR reviewed

examples of common military tasks provided in SECNAVINST l 850.4E § 3304(a)-such

as "the need to fire a weapon, perform field duty, or wear load bearing equipment or

protective gear"-and determined that common military tasks are akin to general, day-to­

day tasks, not end goals or the achievement of certain qualifications, as plaintiff argues.

See A.R. 6-7. Additionally, the BCNR's broad list of tasks aligns with the Navy's broad

definition of Unrestricted Line Officer: "Officers of the line of the Regular Navy and Naval

Reserve who are not restricted in the performance of duty." See A.R. 171. This is another

area where the BCNR is owed significant deference, see Roberts,

, and its

findings here were neither arbitrary nor capricious.

9 3. Plaintifr s Ability to Perform His Common Military Tasks

The final question is whether the BCNR's determination that plaintiff could perform

an Unrestricted Line Officer's common military tasks was arbitrary and capricious. This

is where the BCNR's decision fails.

The BCNR included as common military tasks "the wide variety of technical tasks

associated with service onboard service ships" and explained that Unrestricted Line

Officers "are assigned to perform a wide variety of tasks, both at sea and on shore." A.R.

7 (emphases added). Plaintiffs condition prevented him from returning to service at sea,

as the BCNR acknowledged. A.R. 7 ("You proved that the circumstance of your condition

prevented you from returning to sea to obtain SWO qualification ...."); Defs.' Cross-Mot.

19 ("[T]he Correction Board recognized that Plaintiff was 'not medically cleared to return

to sea duty or for worldwide assignment before [his] discharge."').4

The BCNR offers a perplexing explanation for why plaintiffs medical

disqualification from serving at sea does not establish his inability to perform tasks at sea:

"There is a distinct difference between medical advice not to engage in certain activities

and an inability to do so." A.R. 6-7. Hogwash. Plaintiff was disqualified from returning

4 Defendants argue that plaintiffs inability to serve at sea cannot be the sole basis for finding plaintiff unfit. Defs.' Cross-Mot. 19. Defendants point to SECNAVINST 1850.4E § 3304(a)(3), which states that the inability to serve "in every geographic location and under every conceivable circumstance will not be the sole basis for a finding of Unfit." However, this provision speaks to fitness factor three, deployability, not factor one, common military tasks. Compare§ 3304(a)(3) ("Deployability") with§ 3304(a)(l) ("Common Military Tasks"). Defendants argue that allowing deployability to be determinative of whether plaintiff can perform common military tasks nullifies § 3304(a)(3)'s prohibition on treating the deployability factor as the sole basis for finding a service member unfit. Defs.' Cross-Mot. 19. This argument is unpersuasive. Common military tasks and deployability are separate factors, and there is no bar to considering a service member's ability to serve at sea as a common military task. Moreover, the ability to serve at sea is not a common military factor in every case, and allowing its consideration here does not nullify§ 3304(a)(3). 10 to sea, not just advised against doing so. Specifically, a Medical Assignment Screening

found plaintiff could not return to sea duty because of his mental state, and there is ample

evidence supporting that finding. A.R. 112; see also A.R. 83-84 (explaining that before

plaintiff was removed from the ship, "he would have thoughts of running the ship around

[sic] or punching someone in the ear"); A.R. 98-100 (stating that while on bridge watch,

plaintiff "would have thoughts of running the ship aground" and "fighting with shipmates

and even striking his captain"). The Navy never returned plaintiff to sea duty and instead

separated him. A.R. 316. There is no support in the record for the BCNR's assumption

that plaintiff could have eventually returned to sea duty and thus could perform his

common military tasks at sea.·

Given its determination that several of plaintiffs common military tasks are

"associated with service onboard service ships" and its acknowledgment that plaintiff could

not return to sea duty, the BCNR's conclusion that plaintiff could perform his common

military tasks is self-contradictory. Such illogical decisions are not rationally connected to

the facts and are thus arbitrary and capricious. See Constellation Mystic Power, LLC v.

FERC,

(D.C. Cir. 2022) ("[W]hen an agency 'fail[s] to provide an

intelligible explanation' for its decision, it 'has fail[ed] to engage in reasoned

decisionmaking' and we remand for further explanation. An order with apparent

contradictions as to a dispositive issue is not reasoned decisionmaking and requires further

clarification." (citation omitted)); see also laccarino,

. 5

5 The parties devote much of their briefing to whether the BCNR properly considered plaintiffs performance of administrative tasks while on Limited Duty. As explained above, I do not find the BCNR' s

11 B. Plaintiffs Second Claim for Relief

Second, plaintiff claims the BCNR's decision was arbitrary and capricious because

the BCNR improperly asserted that it need not determine plaintiffs fitness and refused to

identify the duties of plaintiffs office, grade, rank, or rating. Am. Comp1. ,r,r 71-73 (Second Claim for Relief). I disagree and therefore grant summary judgment for

defendants on plaintiffs second claim for relief.

The BCNR stated its "statutory and regulatory function ... is to correct errors in,

and remove injustices from, naval records. This Board is not the PEB and does not make

medical fitness determinations." A.R.2. Plaintiff vehemently disagrees: "the Board was

required to determine [plaintiffs] fitness." Pl.'s Reply 1. Plaintiff misunderstands the

BCl'_ffi.'s statements. The BCNR was clarifying that the question before it was not whether

plaintiff was unable to reasonably perform his duties; instead, it was tasked with

determining whether the PEB erred in finding plaintiff medically fit or whether plaintiffs

separation without medical retirement constitutes an injustice warranting relief. A.R. 2.

The BCNR further explained that "[t]he burden to prove either of these bases for relief is

on [plaintiff], presumably by establishing that [he was] incapable of reasonably performing

the duties of [his] office, grade, rank, or rating." A.R.2. The BCNR was simply setting

out the standard of review and plaintiffs burden. See A.R.2.

determinations of plaintiffs rating and common military tasks arbitrary or capricious. See supra Section III.A.1-2. Therefore, the BCNR' s consideration of plaintiffs performance of administrative tasks while on Limited Duty is not improper. Error lies elsewhere in the BCNR's decision.

12 Moreover, the BCNR did not "refuse[] to identify the duties of [plaintiffs] office,

grade, rank, or rating." See Am. Compl. ,r 72. The BCNR identified a list of common duties associated with being an Unrestricted Line Officer. A.R. 7. Plaintiff disputes.

whether those are the correct rating and duties, but the BCNR did identify them and its

findings on those points were not arbitrary or capricious. See supra Section III.A.1-2.

Therefore, I find the BCNR's decision was neither arbitrary nor capricious here.

C. Plaintiffs Third Claim for Relief

Third, plaintiff claims the BCNR's decision was unsupported by substantial

evidence. Am. Compl. ,r,r 74-76 (Third Claim for Relief) (citing

(2)(E) (instructing courts to set aside agency action "unsupported by substantial evidence")). I

agree and therefore grant summary judgment for plaintiff on his third claim for relief.

For the reasons discussed above regarding plaintiffs first claim for relief,the BCNR

failed to adequately grapple with evidence of plaintiffs inability to perform his common

military tasks associated with service at sea. See supra Section III.A.3. The BCNR's

decision is therefore not supported by substantial evidence. See Genuine Parts Co. v. EPA,

(D.C. Cir. 2018) ("[E]vidence that is substantial viewed in isolation may

become insubstantial when contradictory evidence is taken into account. Therefore, an

agency cannot ignore evidence that undercuts its judgment; and it may not minimize such

evidence without adequate explanation." (alteration in original) (citation omitted) (quoting

Landry v. Fed. Deposit Ins. Corp.,

(D.C. Cir. 2000))).

13 IV. CONCLUSION

For the foregoing reasons, plaintiffs motion for summary judgment is GRANTED

IN PART and DENIED IN PART; defendants' cross-motion for summary judgment is

GRANTED IN PART and DENIED IN PART; and this case is REMANDED to the

BCNR for further proceedings. A separate Order consistent with this decision accompanies

this Memorandum Opinion.

RICHARD J. LEON United States District Judge

14