United States District Court, D. Arizona
James M. Moten, Plaintiff,
v.
United States Air Force, Board for Correction of Military Records, Defendant.
ORDER
This
matter is before the Court on Cross-Motions for Summary
Judgment. On August 2, 2018, Plaintiff James M. Moten filed a
Motion for Summary Judgment (Doc. 10) along with a Statement
of Facts (Doc. 11) asking the Court to set aside a decision
of the United States Air Force Board for Correction of
Military Records (“Board”) pursuant to 5 U.S.C.
§ 706. Defendant Board filed a Response to
Plaintiff's Motion and a Cross-Motion for Summary
Judgment (Doc. 25) along with a Controverting and
Supplemental Statement of Facts. (Doc. 26). Mr. Moten filed a
Reply to the Board's Response (Doc. 27), and the Board
filed a Reply in Support of Its Cross-Motion for Summary
Judgment. (Doc. 28). Mr. Moten then filed a Reply to the
Board's Reply.[1] (Doc. 29).
I.
Background
Mr.
Moten enlisted in the military over 50 years ago and served
on active duty in the United States Air Force from June 16,
1966 to April 26, 1974. (Doc. 22-2 at 16-17). His enlistment
was divided into two tours: the first from June 16, 1966 to
April 28, 1970; the second from April 28, 1970 to April 26,
1974. (Id.) At the end of each of these tours, Mr.
Moten was honorably discharged and issued a DD 214, both of
which he signed.[2] (Id.)
During
Mr. Moten's second tour, he was selected to serve in the
United States Air Force 57th Fighter-Interceptor
Squadron aboard Keflavik Naval Station in Iceland. (Doc. 11
at 30-32). While serving in Iceland, Mr. Moten was assigned
to the Ground Defense Force as part of Third Rifle Platoon,
Company “B.” (Doc. 11 at 33). The record shows
that Mr. Moten was in Iceland from September 13, 1971 to
January 9, 1972, at which time he was granted thirty days
emergency leave. (Doc. 11 at 32, 35). His DD 214 reflects
this period of “FOREIGN AND/OR SEA SERVICE” only
by denoting “01” year of service in Block 18f but
does not specify further where or with what unit Mr. Moten
was stationed. (Doc. 11 at 16).
On
November 10, 2013, Mr. Moten applied to the Board for a
correction of his military record. (Doc. 22-1 at 69). He
requested that his DD 214 be corrected to indicate in Block
27 his “service on Ground Defense Forces Iceland with
the Marines from October 1971 through March 1972.”
(Id.) On September 19, 2014, the Board denied Mr.
Moten's request, stating that it was not timely filed and
“it would not be in the interest of justice to excuse
[the] failure to submit . . . in a timely manner.”
(Doc. 11 at 10).
In
rendering its decision, the Board considered the
recommendation of the Air Force Directorate of Personnel
Services which found “no errors in the processing of
his DD214” because “DoDI 1336.01 and governing
Air Force instructions and policy at the time the applicant
served did not authorize the listing of duty history or
mention of deployments . . . on a DD214.” (Doc. 11 at
9). In accordance with 10 U.S.C. § 1552(b), the Board
considered the evidence of record and concluded that Mr.
Moten's request was untimely, that he failed to show a
sufficient reason for the delay, and that the record did not
raise issues of error or injustice requiring resolution on
the merits. (Doc. 11 at 13). Although the Board denied the
request as untimely, it still evaluated Mr. Moten's
underlying claims of error in preparation. (Id.)
Mr.
Moten submitted two similar requests for correction of his DD
214 on November 7, 2014, (Doc. 22-1 at 27) and October 28,
2015 (Doc. 22-1 at 4); in both instances the Board informed
him that without new relevant information, the application
did not meet the criteria for reconsideration. (Doc. 22-1 at
3, 26).
II.
Procedure
A.
Standard of Judicial Review as to Military Board
Decisions
The
Board may correct a military record if the “concerned
files a request for the correction within three years after
discovering the error or injustice, ” but the Board
“may excuse a failure to file within three years after
discovery if it finds it to be in the interest of
justice.” 10 U.S.C. § 1552(b) (2018). “[I]n
assessing whether the interest of justice supports a waiver
of the statute of limitations [the Board] should analyze both
the reasons for the delay and the potential merits of the
claim based on a cursory review.” Allen v.
Card, 799 F.Supp. 158, 164 (D.D.C. 1992). “The
longer the delay has been and the weaker the reasons for the
delay are, the more compelling the merits would need to be to
justify a full review.” Id. at 164-65;
compare Gilbert v. Wilson, 292 F.Supp.3d. 426
(D.D.C. 2018) (refusing to remand a Board decision not to
waive the three-year limitation where former Air Force
officers sought retrospective promotions), with Guerrero
v. Stone, 970 F.2d 626 (9th Cir. 1992) (finding it to be
“in the interest of justice to waive the three-year
limitations” on application for correction where a
twice-captured World War II veteran had his Army status
completely revoked and restored twice before being revoked a
third and final time).
As the
Board is an “agency” within the meaning of the
APA, “Board decisions are subject to judicial review
and can be set aside if they are arbitrary, capricious or not
based on substantial evidence.” Chappell v.
Wallace, 462 U.S. 296, 303 (1983) (citations omitted);
see e.g., Guerrero, 970 F.2d at 628;
Burns v. Marsh, 820 F.2d 1108, 1110 (9th Cir. 1987).
“In reviewing whether an agency decision is arbitrary
or capricious, we ‘ensure that the agency considered
the relevant factors and articulated a rational connection
between the facts found and the choices made.'”
Ctr. for Biological Diversity v. Zinke, 900 F.3d
1053, 1067 (9th. Cir 2018) (quoting Greater Yellowstone
Coal., Inc. v. Servheen, 665 F.3d 1015, 1023 (9th Cir.
2011)). “The 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 of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
This
highly deferential standard mandates that an agency's
decision be set aside “only if the agency relied on
factors Congress did not intend it to consider, entirely
failed to consider an important aspect of the problem, or
offered an explanation that runs counter to the evidence
before [it] or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise.” The Lands Council v. McNair, 537
F.3d 981, 987 (9th Cir. 2008) (en banc) (citations and
internal quotations omitted) (overruled on other grounds
by American Trucking Ass'ns Inc. v City of Los
Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)).
B.
Summary Judgment Legal Standard
A court
shall grant summary judgment if the moving party “shows
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). In evaluating summary judgment motions, a
court's task is not “to weigh the evidence and
determine the truth of the matter but to determine whether
...