UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
NICHOLAS VOEGELI,
Plaintiff,
v. Civil Action No. 24-1236 (TJK) JOHN C. PHELAN, in his official capacity as Secretary of the Navy,
Defendant.
MEMORANDUM OPINION
Plaintiff is a retired U.S. Navy Reserve officer who seeks recognition for saving someone’s
life over 30 years ago. But a nomination for the Navy’s heroism award must include at least two
eyewitness statements describing the basis for the award. And in Plaintiff’s case, although he and
another Naval officer say these statements once existed, they apparently no longer do. Plaintiff
asked the U.S. Navy Board for Correction of Naval Records to alter his military record to reflect
that he met the eyewitness statement requirement, but the Board declined. So he sued the Secretary
of the Navy, alleging that the Board acted arbitrarily and capriciously in denying his application.
Both parties move for summary judgment. For the reasons below, the Court will deny Plaintiff’s
motion, grant Defendant’s cross-motion, and enter judgment for Defendant.
I. Background
Plaintiff is a retired U.S. Navy Reserve officer who served in the military for over 20 years.
Administrative Record (“AR”) 5, 131. In 1992, while off-duty, Plaintiff was instructing sailing
students in “heavy wind sailing” at a pier on Wisconsin’s Lake Mendota, when he saw a struggling
student whose boat had capsized. Id. at 70, 73. Plaintiff ordered another instructor to get a mo-
torboat, “leaped into deep water,” and swam about 200 feet “through high waves to the victim,” who “was coughing excessively.” Id. He held the student’s head above the water until the boat
arrived, saving his life. Id.
Someone at the U.S. Coast Guard told Plaintiff that his actions might qualify for the Coast
Guard Lifesaving Medal (“GLM”) and encouraged him to submit a nomination. AR 44, 69. Plain-
tiff assembled a nomination packet, which, he represents, included statements of two eyewit-
nesses—the student whose life he saved, and the sailing instructor who arrived by motorboat. Id.
And Plaintiff’s executive officer at the time, Captain David Lipinski, wrote a “summary of action
. . . based on [his] reading of” those eyewitness statements. Id. at 68. Plaintiff recalls that the
Coast Guard then told him that, “given [his] Navy status, the more appropriate recognition . . . was
the Navy and Marine Corps Medal” (“Navy Medal”). Id. at 44. That award recognizes Navy
officers’ “distinguish[ing]” acts of “heroism not involving actual conflict with an enemy.” 10
U.S.C. § 8296(a)(1). Thus, Plaintiff’s GLM nomination was “terminated,” and the Coast Guard
instead awarded him a Public Service Commendation. AR 44, 68, 70–71.
For over two decades, Plaintiff thought he missed his shot for the Navy Medal because
nominations generally must be submitted within three years of the “distinguishing act.” AR 36,
56; Secretary of Navy, Navy and Marine Corps Awards Manual (SECNAV M-1650.1), App. 8A,
¶ 8A.1.a.1 But in 2018, Plaintiff learned that this time limit does not apply to nominations referred
by a member of Congress. AR 44; see 10 U.S.C. § 1130(a). So he reached out to Senator Ron
Johnson. In 2019, Senator Johnson submitted Plaintiff’s nomination materials to the Navy’s Coun-
cil of Review Boards. AR 24, 44, 47. But the Council responded that it could not act on the
request because the documents submitted did not comply with several nomination requirements.
1 Available at https://www.marines.mil/Portals/1/Publications/SECNAV%20M- 1650.1.pdf?ver=2019-08-23-121307-600 (Aug. 16, 2019).
2 AR 48. In particular, the documents did not originate with Plaintiff’s 1992 commanding officer,
and they lacked statements “from at least two eyewitnesses.” Id. The latter is a “vital require-
ment[],” for “heroism awards are based on objectively verifiable facts,” and Plaintiff’s own “ac-
count” of what happened “cannot form the factual basis for any decoration for heroism.” Id. The
Council enclosed the Navy’s award manual, which makes that clear. AR 48; see SECNAV M-
1650.1, App. 8A. It explains that a nomination package “must include” a “detailed description of”
the nominee’s “actions” that itself “includ[es] only facts that are substantiated by the accompany-
ing evidence” and are not “derived from the award nominee.” SECNAV M-1650.1, App. 8A,
¶ 8A.2.b, b(2), b(2)(b). And for “all awards for heroism,” that evidence “must” include “notarized
statements by at least two eyewitnesses,” id. ¶ 8A.2.b, which must be “sufficient[ly] detail[ed] to
support how the heroic act(s) rendered the awardee conspicuous and well above the standard ex-
pected,” id. ¶ 8A.2.b(4)(a). The witnesses should also “opin[e]” on “the extent to which the nom-
inee risked his . . . own life.” Id.
Plaintiff tried to retrieve the eyewitness statements. He submitted a Freedom of Infor-
mation Act request to the Coast Guard for all documents “submitted . . . relating to [his] nomina-
tion . . . for the Coast Guard Gold Lifesaving Medal.” AR 72. But the Coast Guard found no such
records. Id. And Plaintiff’s efforts to find the individuals who had previously authored the sworn
statements fared no better. See id. at 45.
In 2020, Senator Johnson followed up on his initial nomination, this time with an endorse-
ment letter from Captain Lipinski. AR 24, 68. In an affidavit, Captain Lipinski “attest[ed] to the
existence of the[] two sworn witness statements,” noting that he “relied on them to write the sum-
mary of action which was included in” Plaintiff’s nomination package for the GLM. Id. at 69.
The Coast Guard, he explained, then “incorporated” this summary “into the citation for the Public
3 Service Commendation” that Plaintiff received “in lieu of” that medal. Id. Captain Lipinski also
provided Plaintiff’s Commendation, id. at 71, and the “citation [he] wrote as a summary of action,
which he “hope[d] . . . the Board w[ould] consider” as “equivalent to the witness statements,” id.
at 68.
Because these materials included no endorsement from Plaintiff’s “commanding officer at
the time of the act,” however, the Council of Review Boards again responded that they were in-
complete. AR 74. Once Plaintiff received the necessary chain-of-command endorsement letters,
Senator Johnson sent the revised nomination packet—which included Captain Lipinski’s affida-
vit—to the Office of the Chief of Naval Operations. Id. at 78. The Office, however, declined to
act on the request. Id. at 78. Navy policy “require[d]” two eyewitness statements, and the Secre-
tary would “not accept” Captain Lipinski’s letter “as a substitute.” Id.
So Plaintiff applied to the Board for Correction of Naval Records (“Board”), AR 28, a
civilian board authorized to “correct any military record when it considers it necessary to correct
an error or remove an injustice,” 10 U.S.C. § 1552(a)(1); 32 C.F.R. § 723.2(a). The “error or
injustice” he identified: “the absence of the[] two witness statements.” AR 40. Plaintiff thus asked
the Board to “amend[] or otherwise correct[]” his records “to reflect,” that he met “all require-
ments” for the Navy Medal, “including the two eyewitness statements required by regulation,” and
“that he was awarded the medal.” Id. at 39. The Board should do so, Plaintiff argued, because
Captain Lipinski swore that the eyewitness statements existed at one time and Plaintiff did all he
could to find them. Id. at 40–41.
The Board sought an advisory opinion from the Navy Department Board of Decorations
and Medals, which recommended denying Plaintiff’s request. AR 23–26. It reasoned that, alt-
hough Captain Lipinski “claim[ed]” he nominated Plaintiff for the GLM in 1992—and “that two
4 eyewitness statements were included with that nomination”—neither he nor Plaintiff “provide[d]
any documentary evidence to support that claim.” Id. at 25. Nor were “those witness statements
. . . made available to the Department of the Navy.” Id. And Plaintiff had previously been told
that Captain Lipinski’s “statements about alleged previous eyewitness testimony” and his “review”
of them could not “substitute for” the actual statements. Id. The opinion also noted that Plaintiff’s
commanding officers at the time could have nominated him for the Navy Medal, yet they “opted
not to.” Id. at 25–26. Indeed, Plaintiff’s service record contained “no nomination documents” at
all; the Board had “only a copy of the [Coast Guard] commendation he ultimately received.” Id.
at 25. So given the presumption of regularity in government affairs, the Board had to presume that
Plaintiff’s chain of command did not nominate him for a Navy decoration for one of two reasons:
either he did not meet the criteria for the medal, “or the chain of command thought a [Commen-
dation] award was more appropriate.” Id. at 25–26. Because “there has never been an official
nomination for the” Navy Medal “that complied with the fundamental requirements for such nom-
inations,” and Plaintiff’s petition also “fail[ed] to include the eyewitness testimony required in all
such cases,” Plaintiff was not entitled to that award. Id. at 23, 26.
Plaintiff responded to the advisory opinion, arguing it “contain[ed] numerous factual and
substantive errors.” AR 9. Among other things, Plaintiff quibbled that he “d[id] not merely ‘claim’
to have been nominated for the [GLM]” but that “[h]e was, in fact, nominated” for that award. Id.
Captain Lipinski “attested” as much. Id. The advisory opinion also did not reflect Plaintiff’s
extensive efforts to procure the missing eyewitness statements. Id. at 10. But the opinion’s main
flaw was that it did not “engage [with] the evidence” Plaintiff had submitted to “fill[] the eviden-
tiary gap caused by the absence of the eye-witness statements.” Id. at 11. On Plaintiff’s account,
Captain Lipinski’s affidavit was “direct evidence that these eyewitness statements existed and
5 attested to actions supporting the GLM.” Id. at 12. Plaintiff also objected to the Board’s misap-
plication of the presumption of regularity and its speculation about the reasons Plaintiff was not
nominated for a Navy decoration. Id. at 12–13.
In August 2022, the Board denied Plaintiff’s application for “insufficient” evidence show-
ing “the existence of probable material error or injustice.” AR 1. After considering “the entire
record,” including Plaintiff’s responses to the advisory opinion, the Board “concurred” that Plain-
tiff’s “own account of [his] own action cannot form the factual basis of any decoration of heroism.”
Id. at 3. And it “was not willing to ‘fill the evidentiary gap’ and waive the eyewitness testimony
requirement based on [Captain] Lipinski’s testimony that such eyewitness statements previously
existed as part of a [GLM] submission.” Id. The Board also “noted that neither [Plaintiff] nor
[Captain] Lipinski provided any documentary evidence to support such a claim, and the witness
statements to date ha[d] not been made available.” Id. Moreover, it would have “like[d] to have
reviewed the [Public Service Commendation] nomination and/or any supporting evidence upon
which it was based, but such evidence” had not been “made available to the Board” either. Id.
Thus, it “concluded that [Plaintiff] did not meet the baseline eligibility criteria for” the Navy Medal
“consideration” and that “[Captain] Lipinski’s testimony was not a functional equivalent of, or
adequate substitute for, the two required eyewitness statements.” Id.
After the Board’s denial, Plaintiff sued. ECF No. 1. He alleges that the Board acted arbi-
trarily and capriciously under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A),
when it “denied [his] application citing the lack of witness statements when the very error or in-
justice” he asked the Board to correct “was that his record lacks these witness statements. Id. ¶ 64.
Yet, Plaintiff says, “there is clear evidence that they existed at the time and satisfied” the GLM,
and “therefore [the Navy Medal], award criteria.” Id. Both parties now move for summary
6 judgment. ECF Nos. 11, 12.
II. Legal Standard
In APA cases, the usual summary-judgment standard does not apply because the Court’s
role is “limited” to “reviewing the administrative record.” Albino v. United States, 78 F. Supp. 3d
148, 163 (D.D.C. 2015). That is, the Court has no factfinding role because the case presents “a
question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). It
must ask “whether the agency action is supported by the administrative record and otherwise con-
sistent with the APA standard of review.” Citizens for Resp. & Ethics in Wash. v. SEC, 916 F.
Supp. 2d 141, 145 (D.D.C. 2013). On top of its purely procedural requirements, the APA directs
courts to “hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious . . .
or otherwise not in accordance with law.” 5 U.S.C. § 706(2).
When evaluating a claim that agency action is arbitrary or capricious, courts must ensure
that the agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for
its action.” FCC v. Fox Television Stations, 556 U.S. 502, 513 (2009) (citation omitted). That
standard does not empower a court to “substitute its judgment for that of the agency.” Id. (citation
omitted). In other words, the agency’s “policy choices” are not up for debate—only the “explana-
tion it has given.” Id. at 530. That explanation must include a “rational connection between the
facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto
Ins. Co., 463 U.S. 29, 43 (1983) (citation omitted). The agency must also consider all “important
aspect[s] of the problem”—that is, those Congress considered relevant. Id.
Military corrections boards like the Navy’s may meet their obligation to provide a “rea-
soned explanation” for their decision by referencing or incorporating the reasoning of an advisory
opinion. Roberts v. United States, 741 F.3d 152, 158–59 (D.C. Cir. 2014) (citation omitted). And
they are “entitled to even greater deference” than civilian administrative agencies. Powers v.
7 Donley, 844 F. Supp. 2d 65, 70 (D.D.C. 2012). Indeed, the Court “will only step in to correct ‘the
most egregious decisions’” to avoid becoming “‘a forum for appeals by every soldier dissatisfied
with [a military corrections board’s conclusion].’” Barber v. Emmert, No. 23-cv-2465 (LLA),
2025 WL 870364, at *4 (D.D.C. Mar. 20, 2025) (first quoting Kreis v. Sec’y of the Air Force, 866
F.2d 1508, 1515 (D.C. Cir. 1989), then quoting Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir.
2000)). The Court asks only whether the Board’s “decision-making process was deficient,” not
whether [the] decision” itself “was correct.” Id. (quoting Dickson v. Sec’y of Def., 68 F.3d 1396,
1405 (D.C. Cir. 1995)). And the Board’s decision will pass muster if it “minimally contains a
rational connection between the facts” in the record “and the choice it made.” Albino, 78 F. Supp.
3d at 164 (quoting Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997)). It “need not be a model
of analytic precision.” Wilhelmus v. Geren, 796 F. Supp. 2d 157, 163 (D.D.C. 2011) (internal
quotation marks and citation omitted).
III. Analysis
A. The Board’s Decision Not to Correct Plaintiff’s Military Records to Reflect That He Met the Requirements for a Navy Medal Is Reviewable
Defendant first contends that the Court cannot resolve Plaintiff’s APA claim because it
would require review of a non-justiciable military decision. See ECF No. 12-1 at 11–15. It says
that the decision to award a medal for heroism is a “discretionary” one that “reflects professional
military judgment . . . similar to military personnel decisions,” which courts “routinely find are not
subject to judicial review.” Id. at 12–13. But that argument is a strawman because Plaintiff does
not seek to have the Court award him the Navy Medal or even declare that he should receive it.
Judicial review under the APA is unavailable if the challenged “action is committed to
agency discretion by law,” 5 U.S.C. § 701(a)(2), either because it is “traditionally” viewed as such
or because the governing statute “is drawn so that a court would have no meaningful standard
8 against which to judge the agency’s exercise of discretion,” Schieber v. United States, 77 F.4th
806, 813 (D.C. Cir. 2023) (quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993)). Thus, when a
statute “plainly confers a discretionary authority” to act—which the word “‘may’ clearly” sig-
nals—then the decision not to act is unreviewable under the APA. Biden v. Texas, 597 U.S. 785,
802 (2022) (emphases removed and citation omitted).
The decision to award the Navy Medal—an authority delegated to the Secretary of the
Navy—is “the quintessential type of matter that courts have determined to be wholly within the
agency’s discretion.” Watervale Marine Co., Ltd. v. DHS, 555 F. Supp. 3d 124, 140 (D.D.C.
2014). Under the statute, “[t]he President may award a medal called the ‘Navy and Marine Corps
Medal’ . . . to any person who . . . distinguishes himself by heroism not involving actual conflict
with an enemy.” 10 U.S.C. § 8296(a)(1) (emphasis added). So there is no standard by which the
Court could determine whether Plaintiff deserves that decoration. See Coleman v. Kendall, No.
22-cv-1822 (JDB), 2023 WL 4762582, at *11 (D.D.C. July 26, 2023) (“[A]warding the [Air Force
Meritorious Service Medal] is a discretionary decision . . . which reflects essentially professional
military judgment” and is “non-justiciable.” (internal quotation marks and citation omitted)).
But Plaintiff is not challenging the Secretary’s decision not to award him the Navy Medal.
Nor is he asking the Court to order that Plaintiff receive that award. Rather, he claims that the
Board arbitrarily and capriciously refused to correct his military record to reflect that he met the
eyewitness-statement requirement—a violation for which he seeks a “[r]emand” to the Board “for
further actions.” ECF No. 1 ¶¶ 59–67; id. at 15. And without a doubt, “courts have the competency
to review the decision of a military board of correction” like the one Plaintiff challenges “using
9 ‘familiar principles of administrative law.’” Saint-Fleur v. McHugh, 83 F. Supp. 3d 149, 154
(D.D.C. 2015) (quoting Kreis, 866 F.2d at 1511).2
Plaintiff’s APA claim seems limited to challenging the Board’s reasoning (or lack thereof)
for refusing his request to waive the eyewitness requirement. True, one line in his complaint sug-
gests otherwise. ECF No. 1 ¶ 65 (“Th[e] direct evidence could have supported a different decision
regarding whether it was an error or injustice for [Plaintiff] not to be awarded the [Navy Medal].”).
As noted, the Court has no business determining whether Plaintiff should receive that award, and
it may not review an unfavorable decision on that score. But whether the Board’s “decision-mak-
ing process was deficient”—in part because, as Plaintiff contends, it “failed to grapple with” the
evidence he put before it, id. ¶ 66—is a question the Court can decide. Saint-Fleur, 83 F. Supp.
3d at 154 (quoting Kreis, 866 F.2d at 1511).
B. The Board’s Decision Not to Correct Plaintiff’s Miliary Records Was Not Ar- bitrary or Capricious
Plaintiff’s main argument is that the Board acted arbitrarily and capriciously in denying his
application to correct his military records “solely because he could not provide eyewitness state-
ments to support the [Navy Medal] nomination.” ECF No. 11-1 at 22. That reasoning, he says,
runs headlong into Haselwander v. McHugh, 774 F.3d 990 (D.C. Cir. 2014), because “the lack of
eyewitness statements [wa]s the very error or injustice” his “application sought to correct.” ECF
2 To be sure, Plaintiff’s application to the Board was broader: he asked not only that “his records be amended . . . to reflect that” he met “all requirements” for the Navy Medal, but also that his records show “that he was awarded the medal.” AR 39; see id. at 32 (requesting “direct relief that awards [Plaintiff] the medal that his actions clearly merit”). Perhaps that is why the Board of Decorations and Medals’ advisory opinion found, among other things, that he was “not entitled to the [Navy Medal].” Id. at 26. And in responding to that opinion, Plaintiff again asked that the Board “award him the [Navy Medal] for his heroic action.” Id. at 14. But his application and supporting materials also make clear that was not all he requested.
10 No. 11-1 at 22. Although the Court sympathizes with Plaintiff, it disagrees with his analogy to
Haselwander.
In Haselwander, the plaintiff sought to correct his military records to reflect that he had
been wounded in combat, required medical treatment, and was therefore eligible for a Purple Heart
decoration. 774 F.3d at 993–94. After receiving treatment for his injuries, Haselwander had “left
immediately,” and the medical team “never had a chance to fill out any medical paperwork.” Id.
at 991, 994. So his “Army records [di]d not show that he was wounded in hostile action.” Id. at
991. Haselwander later asked the Army Board to correct the missing medical documentation and
award him the Purple Heart, and he supported that request with evidence of his injuries and treat-
ment. Id. But the Army Board found “no basis for [that] award” because “there [wa]s no evidence
of record to show that [Haselwander] was treated for a wound that was sustained as the result of
enemy action.” Id. at 995. Haselwander followed up with more evidence, including “letters from
fellow soldiers corroborating that [he] was injured in the rocket blast and treated by medical per-
sonnel.” Id. Though the Army Board found that this evidence “clearly state[d] that the applicant
was wounded in action,” it still denied the application because “[t]here [wa]s no available medical
record to corroborate the photographs” of Haselwander’s injuries. Id. (emphasis added).
The D.C. Circuit held that the Board’s decision was arbitrary and capricious, “stunningly
myopic,” and “devoid of reasoned decisionmaking.” 774 F.3d at 999 (internal quotation marks
omitted). “Haselwander proffered undisputed, creditable evidence to support his application,” and
it “ma[de] no sense for the Board to say, ‘We are denying his application because he has no medical
records,’ where the very error stated in Haselwander’s application . . . was that his Army record
lacks the medical records of his injury and treatment.” Id. at 1000. Haselwander’s main takeaway
is this: when a servicemember asks the Board to correct his records by filling in the gap left by the
11 missing documentation, the Board acts arbitrarily and capriciously when it denies the application
based solely on the absence of the missing records. The logic of that reasoning “runs in circles.”
Haselwander, 774 F.3d at 999.
This case is not like Haselwander. Plaintiff asked the Board to correct his military records
to reflect that they contained “the two eyewitness statements required by regulation” so that he
may qualify for the Navy Medal. AR 39. He submitted his own affidavit describing the rescue of
the capsized student and explaining that Captain Lipinski had assembled a nomination packet that
“included two sworn witness statements attesting to [his] actions. Id. at 44. He also provided the
citation for the Public Service Commendation that he received, which summarizes his actions. Id.
at 70. And he included Captain Lipinski’s affidavit “attest[ing]” that the witness statements “ex-
ist[ed]” and that he “relied on them to write the summary of action” that the Coast Guard “incor-
porated into the citation for the Public Service Commendation.” Id. at 69.
The Board did not, as Plaintiff contends, ignore these materials and deny his request for
correction of his military records “solely because he could not provide [two] eyewitness statements
to support the [Navy Medal] nomination,” the equivalent of what it did in Haselwander. ECF No.
11-1 at 22 (emphasis added). True, the line that “the witness statements to date have not been
made available” raises a Haselwander red flag. AR 3. That is, of course, “the very error” Plaintiff
stated in his application: “that his [Navy] record lack[ed]” these eyewitness statements. Haselwan-
der, 774 F.3d at 1000; see AR 39. But the Board’s reasoning did not end there. It “considered
. . . all material[s]” Plaintiff had submitted and explained that it could not “‘fill the evidentiary gap
and waive the eyewitness testimony requirement based on [Captain] Lipinski’s testimony that such
eyewitness statements previously existed as part of a Coast Guard GLM submission.” AR 1, 3
12 (internal quotation marks omitted).3 And while the Board would have “like[d]” to “review[]” the
nomination materials submitted for the award Plaintiff did receive—the Public Service Commen-
dation—“and/or any supporting evidence upon which it was based,” such evidence was not “made
available.” Id. at 3. So it concluded that “[Captain] Lipinski’s testimony was not a functional
equivalent of, or adequate substitute for, the two required witness statements.” Id. As such, the
Board allowed for the possibility that some evidence could have substituted for the missing two
eyewitness statements but concluded, after reviewing what Plaintiff submitted, that it was insuffi-
cient. That is not what happened in Haselwander.
Plaintiff also argues that the Board “unreasonably discounted” Captain Lipinski’s affidavit
and the citation in concluding that his evidence could not substitute for the two required eyewitness
statements. ECF No. 11-1 at 25. Of course, the Court cannot reweigh the evidence, and its role is
not to determine whether the Board’s decision was correct. See Kight v. United States, 850 F.
Supp. 2d 165, 170 (D.D.C. 2012), aff’d, 2013 WL 1164035 (D.C. Cir. Mar. 1, 2013); Barber, 2025
WL 870364, at *4. That said, it was entirely reasonable (and not arbitrary or capricious) for the
Board to conclude that Captain Lipinski’s testimony—explaining how he wrote a summary of
Plaintiff’s actions based on the two witness accounts which was then “incorporated into the cita-
tion” for a different award—could not replace the witness statements themselves. AR 69. As
Defendant emphasizes, the two-eyewitness requirement is “substantive,” because “eyewitness tes-
timony is a necessary element to assess whether a service member exhibited ‘heroism’” and to
weigh the “actual level of personal ‘life threatening’ risk experienced by the awardee.” ECF No.
12-1 at 16; see SECNAV M-1650.1, App. 8A, ¶ 8A.2.b(4)(a) (eyewitness statement “must
3 The Board also concluded that Plaintiff’s own account of his actions “cannot form the factual basis of any decoration of heroism.” AR 3.
13 describe the awardee’s actions in sufficient detail to support how the heroic act(s) rendered the
awardee conspicuous and well above the standard expected” and “opin[e] as to the extent to which
the nominee risked his . . . own life”). And importantly, as Defendant points out, Captain
Lipinski’s affidavit “merely recounts the existence” of those statements, rather than what they said.
ECF No. 21-1 at 16.
True, the Board also had the citation for the Public Service Commendation that Plaintiff
received. But a citation is only “an abstract” of the summary of action and “contain[s] only the
most important highlights.” SECNAV M-1650.1, App. 8A, ¶ 8A.2.b(3). Thus, it was hardly un-
reasonable for the Board to conclude that it “lack[ed] the detail necessary to make the substantive
determination of eligibility” for the Navy Medal. ECF No. 12-1 at 16; see AR 70. And that—
along with Plaintiff’s own affidavit—was all the Board had as a “description of the actions” for
which Plaintiff sought “recognition.” SECNAV M-1650.1, App. 8A, ¶ 8A.2.b(2).
Plaintiff objects that Defendant’s assertions about why the Board acted as it did in its brief-
ing are nothing but “impermissible post hoc rationalization[s].” ECF No. 15 at 9. Not so. Though
an agency may “not present a new basis for its action, it may supply a clearer or more detailed
explanation” for a “previously-articulated rationale.” Nat’l Oilseed Processors Ass’n v. Browner,
924 F. Supp. 1193, 1204 (D.D.C) (citing Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 1225,
1233 n.11 (D.C. Cir. 1994)). As noted, the Board explained then that it could not “fill the eviden-
tiary gap” based on Plaintiff’s “own account of [his] actions” or Captain Lipinski’s affidavit. AR
3. And it characterized the latter as “not a functional equivalent of, or adequate substitute for, the
two required eyewitness statements.” Id. So Defendant’s explanation for why the materials could
not replace the mandatory two eyewitness statements “falls more squarely in the ‘more detailed
explanation’ camp than the ‘post-hoc rationalization’ camp.” Grossmont Hosp. Corp. v. Sebelius,
14 903 F. Supp. 2d 39, 58–59 n.10 (D.D.C. 2012). No doubt “the Board’s reasoning could . . . be
clearer and more thorough.” McKinney v. Esper, No. 18-cv-371 (TSC), 2020 WL 2735571, at *4
(D.D.C. May 26, 2020), aff’d sub nom. McKinney v. Wormuth, 5 F.4th 42 (D.C. Cir. 2021). But
it “need not be ‘a model of analytical precision to survive a challenge,’” provided its “path may
reasonably be discerned.” Annicelli v. Kendall, No. 20-cv-02647 (CJN), 2022 WL 951268, at *6
(D.D.C. Mar. 30, 2022) (quoting Dickson, 68 F.3d at 1404). The Board’s decision passes muster.
Taking a final stab at a Haselwander comparison, Plaintiff argues that the Board “disre-
gard[ed]” what Plaintiff says is “uncontested, creditable evidence of the existence and substance
of the eyewitness statements.” ECF No. 15 at 8; see ECF No. 11-1 at 24–26. This analogy comes
up short as well. To begin, and as already explained, the Board did not disregard any evidence
Plaintiff submitted. And more to the point, while Captain Lipinski’s affidavit unquestionably sup-
ported the existence of those statements at one time, the Board had no direct evidence of their
contents (other than the citation). So it was not arbitrary and capricious for the Board to conclude
that Plaintiff’s evidence was insufficient. By contrast, the Board in Haselwander ignored “uncon-
tested, creditable evidence” that the plaintiff had been wounded in combat and required medical
treatment—direct evidence of what the medical records would have shown, had they existed. 774
F.3d at 1000. Similar evidence of what the missing eyewitness statements here would have shown,
especially given the level of detail needed to decide whether Plaintiff qualified for the Navy Medal,
is what the Board reasonably found lacking here.
Nothing about the above analysis diminishes Plaintiff’s actions on Lake Mendota back in
1992 or says anything about whether those actions deserve the Navy Medal. And it is regrettable
that Plaintiff was not nominated for the award before the two eyewitness statements were appar-
ently lost. But under the unusually deferential standard of review in the military-records context,
15 the Court “cannot say that the Board acted unreasonably by declining to amend [Plaintiff’s] naval
record” in the way he requested. Jackson v. Mabus, 808 F.3d 933, 936 (D.C. Cir. 2015).
IV. Conclusion
For all these reasons, the Court will grant deny Plaintiff’s Motion for Summary Judgment,
grant Defendant’s Cross-Motion, and enter judgment for Defendant. A separate order will issue.
/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: May 19, 2025