Moten v. United States Air Force

          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 57^th 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 ...