United States Court of Appeals For the First Circuit
No. 23-1615
DANIEL RICHARD MAHONEY,
Plaintiff, Appellant,
v.
CARLOS DEL TORO, Secretary, U.S. Department of the Navy,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Rikelman, Lynch, and Howard, Circuit Judges.
Emily Dupraz, with whom Jeff Goldman and Morgan, Lewis & Bockius LLP were on brief, for appellant. Michael L. Fitzgerald, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.
April 18, 2024 LYNCH, Circuit Judge. Appellant Daniel Richard Mahoney,
a U.S. Navy veteran, argues that the district court erred in
rejecting his Administrative Procedure Act ("APA") challenge to
the Board for Correction of Naval Records' ("BCNR") decision
denying his 2018 petition to upgrade his 1989 other than honorable
discharge status. See Mahoney v. Del Toro, No. 22-11074, 2023 WL
3587285 (D. Mass. May 22, 2023). We agree with the district court
that the BCNR reasonably determined that Mahoney had failed to
provide "substantial evidence" of "probable material error or
injustice" to overcome the BCNR's presumption that military
officers "have properly discharged their official duties." 32
C.F.R. § 723.3(e)(2). We hold that the BCNR's decision was not
arbitrary or capricious, an abuse of discretion, unsupported by
substantial evidence, or contrary to law. See 5 U.S.C. § 706(2).
We affirm the district court's decision and reject Mahoney's
challenge to the BCNR's decision.
I.
The following undisputed facts were in the record before
the BCNR. Mahoney had two periods of service. The first, from
1985 to 1988, resulted in an honorable discharge. The second
period, from 1988 to 1989, resulted in the other than honorable
discharge status at issue before the BCNR.
Mahoney first enlisted in the Navy on August 27, 1985.
During this enlistment, he "witnessed a number of traumatic events"
- 2 - while deployed on the USS Luce, which escorted oil tankers
throughout the Persian Gulf during the Iran-Iraq war. Mahoney did
not receive any non-judicial punishments ("NJPs") during this
time, and he was awarded a commendation for his work on the USS
Luce and another for outstanding performance. He received three
service ribbons. On August 24, 1988, Mahoney's first deployment
ended, and he was honorably discharged.
Mahoney reenlisted the next day. The second period of
service was markedly different. He was again assigned to the USS
Luce, which was then stationed in Florida. In December 1988,
Mahoney received an NJP for an unauthorized absence of thirty
minutes from his appointed place of duty. In January 1989, he was
apprehended by civilian authorities for driving while intoxicated,
speeding, and "attaching [a] tag to [a] vehicle not assigned" to
it. In February 1989, he received a second NJP for a separate
incident involving "drunkenness."
In March 1989, the Navy evaluated Mahoney for and
diagnosed him with alcohol dependency. The Navy evaluator
recommended that Mahoney participate in an inpatient program for
treatment of his alcohol dependency. Mahoney received treatment
at the Naval Hospital in Pensacola, Florida from April 23 to June
2, 1989. He did not receive treatment during this time for "[his]
stress disorder or the stress symptoms [he provided some evidence
to the BCNR he] was then experiencing." In July 1989, following
- 3 - a relapse of his alcohol dependency, Mahoney received a third NJP
for an unauthorized absence of one hour and fifty-three minutes.
In September 1989, Mahoney tested positive for marijuana
following a random urinalysis. He did not contest the positive
result of the urinalysis. He received a fourth NJP that month for
an unauthorized absence of eleven hours and thirty minutes, another
and different unauthorized absence of thirty minutes, and for
wrongful use of a controlled substance.
On September 28, 1989, Mahoney's commanding officer sent
him a letter notifying him that he was "being considered for an
administrative discharge from the naval service by reason of
Misconduct due to drug abuse and a pattern of misconduct as
evidenced by four Commanding Officer's Non-Judicial Punis[h]ments
in this enlistment." The letter further gave him notice that "[i]f
separation is approved, the characteri[]zation of your service may
be under other than honorable conditions."
Mahoney in response declined an opportunity to consult
with counsel or to be heard before an administrative board. In a
voluntary statement to the Navy on September 29, 1989, Mahoney
stated that he "underst[oo]d [he was] being processed for discharge
for misconduct," and that he "still ha[s] not overcome [his]
drinking problem." Mahoney further stated that his "only concern
[was for] this processing [to go] as smoothly as possible" so that
he could "receive treatment in connection with this processing."
- 4 - On October 16, 1989, Mahoney declined an offer by the Navy to
participate in a Department of Veterans Affairs ("VA") thirty-day
drug treatment program for which he was eligible.
On October 17, 1989, Mahoney was discharged from the
Navy under other than honorable conditions. In discharge paperwork
recommending administrative separation signed by Mahoney's
commanding officer, the reason for the separation was stated as
"misconduct due to drug abuse and pattern of misconduct." The
recommendation further listed the dates of the four NJPs that
Mahoney had received, as well as the reasons for each NJP. Under
"Comments and recommendations of Commanding Officer," the
recommendation stated:
[Mahoney] was discharged from active Naval Service due to drug abuse and a pattern of Misconduct with characterization of service as other than honorable. The action taken is considered appropriate due to [Mahoney's] continued flagrant and willful violations of the [Uniform Code of Military Justice], poor attitude and resultant burden to the command. [Mahoney] was counseled . . . on [July 16, 1989], and [December 12, 1988,] concerning being processed for a discharge under less than honorable conditions if his performance and behavior does not improve. [Mahoney] had previously indicated his desire to participate in the VA drug treatment program. On [October 16, 1989,] [Mahoney] changed his request for the VA drug program and signed page 13 stating he declines this treatment. [Mahoney's] disciplinary record documents his continued misconduct. The most recent incident includes two specifications of going on unauthorized absence and one specification of wrongful use of controlled substance. Based upon a
- 5 - thorough review of all evidence presented I have reached a conclusion that [Mahoney] is of no further use to the Naval Service and that any continued time spent in the Navy would only cause the Navy and the command more trouble than it is worth. [Mahoney] does not object to type of discharge.
On his discharge, Mahoney did not contest the finding
that he had used marijuana during his service, his commanding
officer's conclusions, or his other than honorable discharge
status, nor did he explain his decision to reject the offered drug
treatment program.
II.
A.
On September 17, 2018, approximately twenty-nine years
after his discharge from the Navy, Mahoney submitted through
counsel a petition to the BCNR "request[ing] that the [BCNR]
upgrade his characterization of service to Honorable or, in the
alternative, General Under Honorable Conditions." Mahoney
provided three "main reasons" for his request. First, that
[Post-traumatic stress disorder ("PTSD")] should be considered a mitigating factor for the misconduct that [Mahoney] engaged in that ultimately led to [his] discharge under Other than Honorable circumstances, and in this review by the Board, these circumstances, as mitigating factors, should be given liberal and special consideration under the Hagel Memo and the Kurta Memo.
Second, Mahoney argued that his "commendable overall in-service
performance and model post-discharge behavior demonstrate
- 6 - equitable considerations that weigh in favor of an upgrade."
Third, Mahoney "would under current procedures likely have been
medically discharged." Mahoney stated in his petition that his
PTSD had caused his alcohol dependency, which in turn had led to
misconduct that "amounted to no more than multiple instances of
unauthorized absences, with some absences being very short in
duration, and an instance of drunkenness."
Mahoney did not address in his petition the Navy's
finding that he had wrongfully used a controlled substance.
Mahoney requested an opportunity to appear before the BCNR as part
of his petition.
Mahoney submitted in support of his petition an
assessment report by Sandra A. Dixon, a licensed psychologist.
Based on in-person interviews and medical records provided for
review, Dr. Dixon concluded that during Mahoney's second
enlistment he had met the criteria for a PTSD diagnosis "at a
severe level" and a Major Depressive Disorder diagnosis. Dr. Dixon
also concluded that, had Mahoney received a more thorough
evaluation during his time in the Navy, it "likely would have
revealed that he was meeting the diagnosis for PTSD," and further,
that the treatment Mahoney had received for alcohol abuse during
his enlistment was inadequate for "someone who was exhibiting
trauma responses." Dr. Dixon concluded that "there is a clear
nexus between [Mahoney's] mental health disorders, specifically
- 7 - PTSD, and the conduct leading to [his] discharge." Dr. Dixon also
stated that Mahoney's PTSD symptoms "directly led to his abuse of
alcohol."
Mahoney additionally submitted in support of his
petition an affidavit. Mahoney in this affidavit stated that
during his second enlistment,
[he] had extreme difficulty sleeping and felt like [he] was always under constant stress. [He] felt like [he] needed to sit with [his] back to the wall. [He] also had overwhelming feelings of horror, anger and guilt daily, and continued to relive [his] experience in the Persian Gulf. [He] discovered that alcohol helped stop some of these troubling thoughts and also helped [him] fall asleep. [He] was not aware at the time that [he] was exhibiting symptoms because of an undiagnosed post-traumatic stress disorder [he] had stemming from the traumatic experience in the Persian Gulf.
Key to the BCNR's decision was Mahoney's statement, also
in this affidavit, which addressed for the first time the positive
urinalysis:
I did not knowingly consume any marijuana or any other controlled substance during [my enlistments in the Navy]. . . . In 1989, I was involved in an incident during liberty where I was surrounded by other sailors who were consuming marijuana. I did not knowingly consume any marijuana that evening on liberty, but I was drinking alcohol. During this time, another sailor tossed a marijuana joint that landed in the alcoholic beverage I was drinking at the time. The next day, I was subject to a random urinalysis and I tested positive for marijuana.
- 8 - Mahoney has not contested the results of the urinalysis.
As part of the BCNR's review of Mahoney's petition, the
BCNR referred Mahoney's petition to a Navy mental health
professional, Dr. Molly Summers, who submitted an advisory opinion
based on her review of the administrative record. Dr. Summers
concluded in her opinion that "[i]t is reasonable to attribute
[Mahoney's] continued misconduct following alcohol treatment to
continued mental health symptoms."
On March 2, 2020, the BCNR denied Mahoney's petition in
a decision letter. The BCNR in its letter rejected Mahoney's
request for a personal appearance, determining that "a personal
appearance with or without counsel [would] not materially add to
[the BCNR's] understanding of the issues involved." The BCNR
therefore "considered [Mahoney's] case based on the evidence of
record."
The BCNR stated in its decision letter that it had
"carefully reviewed [Mahoney's] application, weighed all
potentially mitigating factors, and considered [Mahoney's]
contention that PTSD should be considered a mitigating factor for
the misconduct [he] engaged in that ultimately led to his [other
than honorable] discharge." (Emphasis added.) The BCNR in its
decision letter considered Mahoney's contention that his alcohol
abuse had resulted from his PTSD symptoms. The BCNR further
considered Mahoney's "commendable overall in-service performance
- 9 - and model post-discharge behavior, . . . [his] post-service
achievements, such as being sober since 2006, graduating from
college, as well as [his] involvement as an active church member
and community volunteer." The BCNR additionally "considered
[Mahoney's] contention that, under current procedures, [he] would
likely have been medically discharged instead of receiving an
administrative discharge with an [other than honorable]
characterization of service."
The BCNR concluded that these factors "did not mitigate
the drug-related misconduct which led to [Mahoney's] discharge,"
and so this misconduct continued to "support[] discharge from the
naval service with an other than honorable characterization of
service." The BCNR determined that Mahoney had "not meaningfully
address[ed] the . . . 'drug abuse' basis for [his
separation] -- other than contending that [he] did not knowingly
use a controlled substance." The BCNR stated that it was "not
persuaded to disturb th[e] finding" that "by a preponderance of
the evidence" Mahoney had wrongfully used a controlled substance
in-service. The BCNR stated that Mahoney had not "explain[ed] how
a 'marijuana joint' landing in [his] alcoholic beverage [had]
caused [him] to ingest marijuana." (Emphasis added.) The BCNR
took into account in its decision that Mahoney had "not admit[ted]
to wrongful drug use," and had not "contend[ed] that wrongful drug
or marijuana use was a part of [his] means of self-medicating due
- 10 - to PTSD. At no point [did] [Mahoney] or any medical professional
attribute [his] NJP for wrongful drug use to self-medication due
to PTSD." (Emphasis added.)
The BCNR provided further explanation of its reasoning:
Assuming, arguendo, that [Mahoney] had undiagnosed, in-service PTSD at the time of [his] misconduct, after thorough consideration of [his] contentions and mitigating factors, the Board, applying liberal consideration, determined that [Mahoney's] PTSD did not mitigate the drug-related misconduct which led to [his] discharge. . . . The Board determined that the explanation for testing positive for marijuana contained in [Mahoney's] sworn personal statement was neither plausible nor supported by [his] submission. Moreover, [Mahoney] ha[s] consistently denied wrongful use of drugs in-service -- let alone ever attributing it to another form of self-medication due to [his] undiagnosed, in-service PTSD. As such, [Mahoney's] PTSD cannot be said to have mitigated [his] wrongful drug use on this occasion, or [his] separation based on misconduct due to that drug abuse. As this determination is dispositive of [his] petition, the Board need not address the merits of [Mahoney's] PTSD contentions or the alternate, pattern of misconduct, basis of [his] separation. Accordingly, under the totality of the circumstances and for the foregoing reasons, the Board in its review discerned no probable material error or injustice that warrants changing [Mahoney's] characterization of service.
B.
On July 5, 2022, Mahoney filed a complaint against
appellee Carlos Del Toro, U.S. Secretary of the Navy, in the
- 11 - District Court for the District of Massachusetts, requesting
judicial review of the BCNR's decision. See Mahoney, 2023 WL
3587285, at *6. Mahoney "contend[ed] that the BCNR's decision was
arbitrary, capricious, an abuse of discretion, unsupported by
substantial evidence, and contrary to law." Id. Mahoney, pursuant
to the APA, 5 U.S.C. § 706(2), "request[ed] that the court enjoin
the BCNR to correct his record to reflect a discharge
characterization of honorable or general under honorable
conditions." Mahoney, 2023 WL 3587285, at *6.
On December 22, 2022, Mahoney, pursuant to Federal Rules
of Civil Procedure 12(c) and 56, moved for judgment on the
pleadings or in the alternative for summary judgment,
"request[ing] that the Court set aside the BCNR's decision and
remand the matter to the BCNR for reconsideration." Id. Del Toro
cross-moved for judgment on the pleadings. Id. The district court
concluded that "the decision of the BCNR to deny relief was not
arbitrary or capricious, an abuse of discretion, or contrary to
law." Id. at *10. The court denied Mahoney's motions and granted
Del Toro's cross-motion. Id. Mahoney timely appealed.
III.
Under the APA, a court may set aside an agency decision
if that decision is "arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law," or if the decision is
- 12 - "unsupported by substantial evidence." Sasen v. Spencer, 879 F.3d
354, 359-60 (1st Cir. 2018) (quoting 5 U.S.C. § 706(2)(A), (E)).
This APA standard applies to judicial review of BCNR decisions.
See Chappell v. Wallace, 462 U.S. 296, 303 (1983); Doyon v. United
States, 58 F.4th 1235, 1242 (Fed. Cir. 2023). In applying this
standard, this court must "review the whole record or those parts
of it cited by a party." Sasen, 879 F.3d at 360 (quoting 5 U.S.C.
§ 706(2)). We "afford no special deference to the district court's
determination[] [under this standard] but, rather, review [its]
determination[] de novo." Id. We therefore focus on the BCNR's
decision in reviewing Mahoney's APA claim.
"Judicial review of agency decisions is 'highly
deferential.'" Atieh v. Riordan, 797 F.3d 135, 138 (1st Cir. 2015)
(quoting River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 114
(1st Cir. 2009)). Accordingly, a reviewing court must uphold an
agency's decision that is free from "legal errors," United States
v. Sawyer, 521 F.3d 792, 794 (7th Cir. 2008), and "is supported by
any rational review of the record," Atieh, 797 F.3d at 138. This
court "may not substitute its judgment for that of the [BCNR],
even if it disagrees with the [BCNR's] conclusions." Id. (quoting
River St. Donuts, 558 F.3d at 114).1
1 Because this case involves review of cross-motions for judgment on the pleadings, we are required to "determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed." See Mercury Sys., Inc. v.
- 13 - B.
We outline the applicable law, all of which was
considered by the BCNR.
The Secretary of the Navy may through the BCNR "correct
any military record of the [Navy] when the Secretary considers it
necessary to correct an error or remove an injustice." 10 U.S.C.
§ 1552(a)(1). This textual language "enable[s] the Secretary,
acting through a civilian Correction Board, to change the kind of
discharge a former service [member] ha[s] received." Ashe v.
McNamara, 355 F.2d 277, 280 (1st Cir. 1965). We agree with those
circuits that have found this language to "substantially restrict
the authority of the reviewing court to upset the Secretary's
determination."2 Kreis v. Sec'y of Air Force, 866 F.2d 1508, 1514
(D.C. Cir. 1989); see also Williams v. Wynne, 533 F.3d 360, 368
(5th Cir. 2008) ("In light of this language, the review of military
board judgments is 'exceptionally deferential.'" (quoting Viles v.
Ball, 872 F.2d 491, 495 (D.C. Cir. 1989))); Bolton v. Dep't of the
Navy Bd. for Corr. of Naval Recs., 914 F.3d 401, 407 (6th Cir.
2019) ("[O]ur review involves 'an unusually deferential
S'holder Representative Servs., LLC, 820 F.3d 46, 51 (1st Cir. 2016) (quoting Barnes v. Fleet Nat'l Bank, N.A., 370 F.3d 164, 170 (1st Cir. 2004)).
2 Mahoney's claims lack merit whether we apply this unusually deferential standard of review or a typical APA deferential standard.
- 14 - application of the "arbitrary or capricious" standard' of the APA."
(quoting Kreis, 866 F.2d at 1514)).
Under its regulations, the BCNR "relies on a presumption
of regularity to support the official actions of public officers,"
and an applicant must present "substantial evidence" of "probable
material error or injustice" to overcome this presumption. 32
C.F.R. § 723.3(e)(2). Hence, "the Board may deny relief if it
concludes that 'the evidence of record fails to'" refute this
presumption. Sasen, 879 F.3d at 360-61 (quoting 32 C.F.R.
§ 723.3(e)(2)).
By statute, the BCNR must apply "liberal consideration"
in its review where a
claim . . . for review of a discharge or dismissal is based in whole or in part on matters relating to [PTSD] or traumatic brain injury as supporting rationale, . . . and [where such] [PTSD] or traumatic brain injury is related to combat or military sexual trauma as determined by the Secretary concerned. . . . [The BCNR shall] review the claim with liberal consideration to the claimant that [PTSD] or traumatic brain injury potentially contributed to the circumstances resulting in the discharge or dismissal or to the original characterization of the claimant's discharge or dismissal.
10 U.S.C. § 1552(h)(1), (2)(B) (emphasis added).
The Department of Defense has issued a series of
memoranda which advise Boards for Correction of Military and Naval
Records on review of these claims. On September 3, 2014, a
- 15 - memorandum was issued by then Secretary of Defense Chuck Hagel to
the secretaries of the military departments ("Hagel Memo"),
providing supplemental policy guidance for Boards reviewing
petitions to upgrade discharge statuses based on claims of
previously unrecognized PTSD diagnoses. The Hagel Memo is "not
intended to interfere with or impede the Boards' statutory
independence to correct errors or remove injustices through the
correction of military records." The memorandum provides that
"[l]iberal consideration will be given in petitions for changes in
characterization of service to Service treatment record entries
which document one or more symptoms which meet the diagnostic
criteria of [PTSD] or related conditions." The Hagel Memo further
provides that "[i]n cases in which PTSD or PTSD-related conditions
may be reasonably determined to have existed at the time of
discharge, those conditions will be considered potential
mitigating factors in the misconduct that caused the under other
than honorable conditions characterization of service."
On August 25, 2017, then Undersecretary of Defense
Anthony Kurta issued a memorandum ("Kurta Memo") whose purpose,
among others, is to provide "clarifying guidance to . . . Boards
for Correction of Military/Naval Records . . . considering requests
by veterans for modification of their discharges due in whole or
in part to mental health conditions, including [PTSD]." Like its
predecessor, the Kurta Memo's guidance is "not intended to
- 16 - interfere with or impede the Boards' statutory independence." In
that context, the Kurta Memo states that among its guidance,
"[c]onditions or experiences that may reasonably have existed at
the time of discharge will be liberally considered as excusing or
mitigating the discharge."3
On July 25, 2018, a memorandum was issued by then Under
Secretary of Defense Robert Wilkie ("Wilkie Memo"). The Wilkie
Memo provides "standards for . . . Boards for Correction of
Military / Naval Records . . . in determining whether relief is
warranted on the basis of equity, injustice, or clemency," and
reinforces the BCNR's broad discretion in reviewing claims. The
memorandum specifies that its
guidance does not mandate relief, but rather provides standards and principles to guide [the Boards] in application of their equitable relief authority. Each case will be assessed on its own merits. The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each board.
C.
The BCNR's determination that Mahoney did not provide
substantial evidence of probable material error or injustice in
his discharge characterization was "supported by a[] rational view
of the record," Atieh, 797 F.3d at 138, and was reasonably "based
3 The codification of the liberal consideration standard followed issuance of the Kurta Memo. See Doyon, 58 F.4th at 1239.
- 17 - on a consideration of the relevant factors," U.S. Dep't of the
Interior v. Fed. Energy Regul. Comm'n, 876 F.3d 360, 368 (1st Cir.
2015) (quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys.,
Inc., 419 U.S. 281, 285 (1974)). As the BCNR explained in its
decision letter, there was sufficient basis for Mahoney's other
than honorable discharge characterization due to his wrongful drug
use, his lack of candor about and refusal to take responsibility
for such use, and the absence of any evidence in the record that
this drug use resulted from PTSD symptoms. The BCNR reasonably
concluded that Mahoney's refusal to admit to his wrongful drug use
and his implausible explanation of the positive urinalysis result
did not warrant changing his other than honorable discharge
characterization.
Not addressing these holdings, Mahoney argues that his
wrongful drug use was "relatively minor" in nature, and so did not
on its own warrant his discharge characterization. He points to
language in the Wilkie Memo stating:
The relative severity of some misconduct can change over time, thereby changing the relative weight of the misconduct in the case of the mitigating evidence in a case. For example, marijuana use is still unlawful in the military, but it is now legal under state law in some states and it may be viewed, in the context of mitigating evidence, as less severe today than it was decades ago.
The argument misses the point. The Wilkie Memo lists among factors
that the Boards should consider "[a]n applicant's candor" and
- 18 - "[a]cceptance of responsibility, remorse, or atonement for
misconduct."
Mahoney next lodges two legal challenges to the BCNR's
decision: that it failed to apply the liberal consideration
standard to the entirety of his claim and that, even if it did, it
applied the standard incorrectly when it ultimately denied his
petition. This argument misapprehends the BCNR's decision letter.4
The BCNR did apply the liberal consideration standard to the
entirety of Mahoney's petition. The BCNR in its decision letter
acknowledged Mahoney's PTSD diagnosis and stated that it had
"considered [Mahoney's] contention that PTSD should be considered
a mitigating factor for the misconduct [he] engaged in that
ultimately led to [his] [other than honorable] discharge." The
BCNR further stated that it had considered "the diagnoses,
comments, and opinion of [Mahoney's] civilian mental health
provider that there was a clear nexus between [his] mental health
disorders and the conduct leading to [his] discharge." The BCNR
moreover stated explicitly that it had "appl[ied] liberal
consideration" before reaching its conclusion that Mahoney's PTSD
4 Mahoney also argues that the district court "erred in concluding that the BCNR could decline to apply the 'liberal consideration' standard in this case." The district court did not conclude that the BCNR could choose not to apply the liberal consideration standard, but rather determined that this standard did not require the BCNR to "give controlling weight" to Mahoney's PTSD diagnosis. See Mahoney, 2023 WL 3587285, at *10.
- 19 - diagnosis "did not mitigate the drug-related misconduct which led
to [his] discharge."5 (Emphasis added.)
The BCNR's decision, in accordance with Department of
Defense guidance, also took into account other potentially
mitigating factors raised by Mahoney in his petition. This
includes Mahoney's "'commendable overall in-service performance
and model post-discharge behavior' and the numerous advocacy
letters submitted on [his] behalf"; Mahoney's "post-service
achievements, such as being sober since 2006, graduating from
college, as well as [his] involvement as an active church member
and community volunteer"; and Mahoney's "contention that, under
current procedures, [he] would likely have been medically
discharged instead of receiving an administrative discharge with
an [other than honorable] characterization of service." The BCNR
moreover stated in its decision letter that it had taken into
account guidance provided in the Hagel, Kurta, and Wilkie Memos,
and that the BCNR had "weighed all potentially mitigating factors."
Mahoney argues that, on the basis of these potentially
mitigating factors, the BCNR was "virtually compelled" to grant
his petition and thus incorrectly applied the liberal
5Mahoney attempts to make much of the BCNR's statement in its decision letter that it "need not address the merits of [Mahoney's] PTSD contentions or the alternate, pattern of misconduct, basis for [his] separation." But the liberal consideration standard does not require the BCNR to reach the merits of arguments that do not pertain to its holding.
- 20 - consideration standard in failing to do so. This is not so. While
the Wilkie Memo instructs that the BCNR should consider various
principles and mitigating factors as part of its determination,
the memorandum also provides that "[t]he relative weight of each
principle and whether the principle supports relief in a particular
case, are within the sound discretion of each board." It was the
BCNR's role under the law to determine whether these factors, when
weighed against Mahoney's misconduct, indicated that there was
probable material error or injustice in Mahoney's discharge
characterization, and this is precisely what the BCNR did.6 The
BCNR moreover correctly applied the liberal consideration standard
when it denied Mahoney's petition in part on the basis that there
was no evident causal relationship between his PTSD symptoms and
6 Mahoney is also incorrect that the BCNR did not have the authority to uphold his discharge status solely on the basis of his marijuana use, a decision which Mahoney maintains effectively "altered the basis for [his] discharge ex post facto." It is clear from the record that Mahoney's discharge characterization at least in part resulted from his marijuana use: Mahoney's discharge paperwork listed as one of the military offenses leading to his separation his "wrongful use of a controlled substance." It is moreover apparent that the "drug abuse" basis for Mahoney's discharge encompassed Mahoney's use of marijuana; in an "Alcohol and Drug Abuse Screening Certificate" signed by Mahoney during his enlistment, the Navy defined drug abuse as "[a]ny illicit use or possession of drugs." The BCNR in its decision letter acknowledged that Mahoney was administratively separated both for misconduct due to drug abuse and a pattern of misconduct, but determined that "either basis of misconduct . . . supports discharge from the naval service with an other than honorable characterization of service." This determination was "reasonable and reasonably explained." See Jackson v. Mabus, 808 F.3d 933, 936 (D.C. Cir. 2015).
- 21 - his use of marijuana.7 See Coburn v. Murphy, 827 F.3d 1122, 1126-27
(D.C. Cir. 2016) (affirming decision by Army Board for Correction
of Military Records because Board "examined the relevant data and
articulated a satisfactory explanation for its action including a
rational connection between the facts found and the choice made"
(quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983))).
We additionally reject Mahoney's argument that there was
insufficient support in the record for the BCNR's conclusion that
his account of the positive urinalysis was not credible.8 The BCNR
explained in its decision letter that Mahoney had failed to
"explain how a 'marijuana joint' landing in [his] alcoholic
beverage caused [him] to ingest marijuana -- let alone in
sufficient quantity to test positive for THC at the level required
under Navy mass spectrometry analysis."9 The BCNR further noted
7 The Hagel Memo instructs the Corrections Boards to "exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of [PTSD] symptoms to the misconduct."
8 Da Rosa v. Secretary of Health & Human Services, 803 F.2d 24, 26 (1st Cir. 1986), cited by Mahoney, in which the court held that an administrative law judge's credibility finding "must be supported by substantial evidence and the [judge] must make specific findings as to the relevant evidence he considered in determining to disbelieve the [applicant]," is therefore inapposite, as the result here is supported by substantial evidence. 9 Mahoney contends that "[p]ublicly available information . . . indicates that ingestion of marijuana -- including drinking marijuana tea -- can lead to a
- 22 - that Mahoney had been found guilty of wrongful drug use by a
preponderance of the evidence.
We also find substantial evidence for the BCNR's factual
conclusion that "[a]t no point d[id Mahoney] or any medical
professional attribute [his] NJP for wrongful drug use to self-
medication due to PTSD." Mahoney maintained in the proceedings
before the BCNR that his ingestion of marijuana during service was
accidental, and he did not take the position that he intentionally
self-medicated with marijuana to alleviate his PTSD symptoms.
Nothing in Dr. Dixon's or Dr. Summers's opinions suggested
otherwise.
Mahoney is also wrong that it was "unfair for the BCNR
to discredit [his] affidavit as not credible" while "denying him
the opportunity for a personal appearance" or to "supplement his
application with more information."10 The discharge notice Mahoney
positive urinalysis." However, Mahoney points to nothing in the record to suggest that a positive urinalysis can result from consumption of a beverage in which a "marijuana joint" has fallen. Mahoney in his briefing cites an internet source which describes the potency of "marijuana tea," but he does not argue that this source was in the record and furthermore, Mahoney does not explain how this source establishes the plausibility of his account, which did not involve consumption of marijuana tea.
10 The law imposes no such requirements on the BCNR. See 32 C.F.R. § 723.4(a) ("In each case in which the Board determines a hearing is warranted, [the] applicant will be entitled to appear before the Board either in person or by counsel."); Burns v. Marsh, 820 F.2d 1108, 1110 (9th Cir. 1987) (holding that whether hearings are held under 10 U.S.C. § 1552(a) is at the discretion of the Board).
- 23 - received expressly stated his discharge was "due to drug abuse and
pattern of misconduct." Mahoney was on notice at the time he filed
his petition that it was his burden to "provide 'substantial
evidence' in order to overcome the [BCNR's] presumption that
'public officers,' including military officers, 'have properly
discharged their official duties.'" Roberts v. United States, 741
F.3d 152, 158 (D.C. Cir. 2014) (quoting 32 C.F.R. § 723.3(e)(2)).
Mahoney furthermore had the opportunity at the time of his petition
to put forth any evidence in support of his claim. See 32 C.F.R.
§ 723.4(e)(1) ("It is the responsibility of the applicant to
procure such evidence not contained in the official records of the
Department of the Navy as he/she desires to present in support of
his/her case.").
It is appropriate as we end this opinion to highlight
the BCNR's recognition of Mahoney's commendable efforts to
rehabilitate himself in the years following his discharge. We
affirm the district court's decision.
- 24 -