UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

ISAAC J. MORRISON, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civil Action No. 10-0362 (ESH) 

 ) 

SECRETARY OF DEFENSE, et al., ) 

 ) 

 Defendants. ) 

 ) 

MEMORANDUM OPINION 

Plaintiff Isaac Morrison has sued the Secretaries of Defense, Veterans Affairs and the 

Navy, the Executive Director of the Board for Correction of Naval Records (“Board”) and the 

Commandant of the Marine Corps (collectively, “government”), seeking review under the 

Administrative Procedure Act (“APA”) of the Board’s decision not to vacate five entries in his 

record relating to non-judicial punishment (“NJP”) that Morrison received in 1986. (See Compl. 

at 1, 4.) The government has moved for summary judgment. (Def.’s Mot. for S.J. (“Def.’s 

Mot.”).) For the reasons stated herein, the government’s motion will be granted. 

BACKGROUND

Isaac Morrison enlisted in the United States Marine Corps (“Marines”) in 1978 for a 

period of four years. (Compl. at 2; Def.’s Mot. at 1.) In 1982 he reenlisted for an additional six 

years and was promoted to the rank of Sergeant. (Compl. at 1-2; Def.’s Mot. at 1-2.) In July 

1986, Morrison was advised that his Commanding Officer intended to impose NJP because he 

had been absent without leave. (Administrative Record (“AR”) at 27.) Morrison was found 

guilty of an “unauthorized absence” and was punished with a reduction in rank and a fine of 
2 

nearly $1,000, deducted from two months’ paychecks, on July 10, 1986. (Id.) This punishment 

was immediately suspended, with orders that the punishment be remitted after ninety days. (Id.) 

Morrison did not appeal the finding or the punishment. (Id.) 

On September 10, 1986, Morrison failed to return to his ship by his 2:00 a.m. curfew. 

(AR at 34.) The next day, the order suspending Morrison’s punishment was vacated and 

Morrison was demoted to Corporal. (Id. at 27.) On July 4, 1987, Morrison disobeyed a direct 

order from a Lance Corporal. (Id.) On September 23, 1987, Morrison was again told that his 

Commanding Officer intended to impose NJP. (Id.) Again, Morrison accepted NJP, was found 

guilty, and had a month’s pay reduced by $100, although the punishment was suspended for 

ninety days. (Id.) 

On June 25, 1987, Morrison submitted a response to an evaluation that described his 

fitness from June 1, 1986 through August 15, 1986. (Id. at 32-34.) Morrison’s response alleged 

“prejudiced vindictiveness” and suggested that “several new officers” in his unit “did not savor” 

his “outspokenness, frankness, or personality.” (Id. at 32.) He expressed an “intention to 

continue to serve honorably . . . despite this conspicuous adulteration of Military hierarchy, 

integration, and judiciary,” which “reinforce[d] the concepts of prejudiced, bias[ed], racist, 

opinionated individuals.” (Id.) The Executive Officer for Morrison’s squadron submitted a 

response on July 15, 1987, which stated that Morrison did “adequate work” but was “continually 

identified for minor disciplinary infractions during his off duty hours,” and that Morrison’s 

“leadership qualities . . . [were] sincerely in question.” (Id. at 35.) Morrison received an 

honorable discharge from the Marines when his enlistment expired on January 13, 1988. (Id. at 

1.) However, because of his disciplinary record, he was assigned an “RE-4 reenlistment code,” 

which barred him from reenlisting in any branch of the service. (Id.; Def. Mot. at 7.) 
3 

In February 2008, Morrison filed an application with the Board, requesting that the five 

entries relating to the July 10, 1986 NJP be removed from his record. (AR at 16.) In support of 

his claim, he submitted fitness reports “that substantiate the fact that [he] was and still is an 

outstanding marine.” (Id. at 16, 62.) He asked the Board to consider his application, despite the 

considerable delay, “because of the gravity of the injustice and its racial overtones.” (Id. at 37.) 

The Board sought the “comments and recommendation” of the Commandant for the Marine 

Corps to help in “arriving at a fair and equitable decision.” (Id. at 3.) In response, the Judge 

Advocate Division submitted a three-page opinion recommending that the Board reject 

Morrison’s request. (Id. at 17-19.) The opinion noted that Morrison argued that his NJP was 

unjust because the “overall character of his performance and service indicate that he was unjustly 

punished.” (Id. at 18.) It stated that Morrison’s procedural claims were “without merit” because 

he was “afforded his full procedural rights,” including his right to an attorney, to refuse NJP, and 

to appeal. (Id.) The opinion also rejected Morrison’s suggestion that his constitutional right to a 

speedy trial had been violated, because this right does not apply to the NJP process. (Id.) 

Finally, the opinion concluded that Morrison’s assertions of racial bias and injustice “have no 

merit based on the record,” because the suspension of Morrison’s punishment in 1986 illustrated 

a “tempered approach” taken toward Morrison’s misconduct that “would have allowed him to 

continue on active duty.” (Id. at 19.) The opinion noted that Morrison bore the burden of 

showing that the record entries were “in error or unjust,” and that there was no evidence in the 

record to support his claims. (Id.) 

Morrison’s response to the advisory opinion, which was submitted on August 6, 2008, 

summarizes his overall theory of the case: “[The opinion] never explains how a marine whose 

fitness reports alway[s] had the highest markings ‘particularly desired’ even after his reduction! 
4 

How was the marine the only one in his field selected for promotion for 1986? If his NJP was 

not motivated by racism, maybe the respondent can elucidate.” (Id. at 21.) Morrison also argued 

that “the whole procedure was flawed from the very onset” because the “initiator of the charge 

was not in my command chain.” (Id.) Finally, Morrison suggested that “based on the record 

before the board that there must have been some ulterior motive” because his “fitness reports 

verify [his] exemplary performance.” (Id. at 22.) 

The Board issued its decision on October 2, 2008, which stated that it had “carefully 

weighed all potentially mitigating factors” and that Morrison’s discharge was “based on the type 

warranted by [his] service record, which reflected [his] work performance while in the Navy.” 

(Id. at 11.) The Board noted that Morrison received three NJPs while enlisted as a Marine, and 

that the “seriousness of [his] misconduct” outweighed the mitigating factors he had identified, 

making any changes to his record unwarranted. (Id. at 10-11.) 

Morrison’s pro se complaint, filed on March 5, 2010, challenged the “arbitrary and 

capricious ruling” of the Board and sought de novo review of the Board’s decision, as well as an 

order requiring “reinstate[ment]” of back pay for the period 1986 through 1998 and 

reinstatement to active duty. (Compl. at 1, 4.) On August 30, 2010, the government moved to 

dismiss for lack of jurisdiction and for failure to state a claim on which relief could be granted. 

(Mot. to Dismiss [Dkt. No. 14].) The Court denied the government’s motion in a Memorandum 

Opinion and an Order issued on January 12, 2011. (Memorandum Opinion [Dkt. No. 24]; Order 

[Dkt. No. 25].) 

In its Opinion, the Court held that Morrison had stated a claim for relief under the APA 

because he alleged that the Board failed to consider evidence that he was “an excellent marine” 

when deciding whether to change his records. (Mem. Op. at 7-8.) More specifically, Morrison 
5 

alleged that the Board overlooked “specific facts,” such as his promotions and his receipt of 

“nothing but outstanding proficiency marks and exemplary fitness reports.” (Id. (quoting Compl. 

at 2).) The Court held that if the Board “failed to consider this mitigating evidence, [it] may 

have acted arbitrarily and capriciously.”1

 (Id.) The Court did not reach the Secretary’s other 

arguments for dismissing Morrison’s complaint. (Id. at 8 n.2.) 

STANDARD OF REVIEW 

Under the APA, a reviewing court must defer to an agency’s decision unless it “is 

arbitrary and capricious, contrary to law, or unsupported by substantial evidence.” Frizelle v. 

Slater, 111 F.3d 172, 176 (D.C. Cir. 1997). Generally, “[t]he 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 v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 

(1983). Thus, a court “will not disturb the decision of an agency that 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.’” MD Pharm. v. Drug Enforcement 

Admin., 133 F.3d 8, 16 (D.C. Cir. 1998) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43). 

An agency’s decision need not “be a model of analytic precision to survive a challenge.” 

Dickson v. Sec’y of Defense, 68 F.3d 1396, 1404 (D.C. Cir. 1995). Rather, “[a] reviewing court 

will uphold a decision of less than ideal clarity if the agency’s path may reasonably be 

discerned.” Id.

A final decision of the Board is subject to judicial review under § 706 of the APA, 5 

U.S.C. § 706. See Frizelle, 111 F.3d at 176. Reviewing the decision of a military correction 

 

1

 Contrary to Morrison’s understanding, the Court did not hold that “mitigating evidence 

was never taken into account.” (Pl.’s Opp’n at 2.) 
6 

board requires an “unusually deferential application” of the arbitrary or capricious standard. 

Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989); see also Musengo v. White, 

286 F.3d 535, 538 (D.C. Cir. 2002); Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). As 

the Court of Appeals explained in Kreis: 

the question whether a particular action is arbitrary or capricious must turn on the 

extent to which the relevant statute, or other source of law, constrains agency 

action. While the broad grant of discretion implicated here does not entirely 

foreclose review of the Secretary’s action, the way in which the statute frames the 

issue for review does substantially restrict the authority of the reviewing court to 

upset the Secretary’s determination. It is simply more difficult to say that the 

Secretary has acted arbitrarily if he is authorized to act “when he considers it 

necessary to correct an error or remove an injustice,” 10 U.S.C. § 1552(a) 

(emphasis added), than it is if he is required to act whenever a court determines 

that certain objective conditions are met, i.e., that there has been an error or 

injustice. 

Kreis, 866 F.2d at 1514. Thus, a court’s role in reviewing the decision of a military corrections 

board is to determine whether “the decision making process was deficient, not whether [the] 

decision was correct.”2

 Dickson, 68 F.3d at 1405-06 (quoting Kreis, 866 F.2d at 1511). To 

enable a court to perform that review and ensure that the decision is not “utterly unreviewable,” a 

military corrections board “must give a reason that a court can measure, albeit with all due 

deference, against the ‘arbitrary or capricious' standard of the APA.” Kreis, 866 F.2d at 1514-

15. Moreover, if the Board “fail[s] to address . . . arguments that are not facially frivolous,” its 

decision must be reversed and the matter remanded. Frizelle, 111 F.3d at 174, 177; Dickson, 68 

F.3d at 1404 (“fail[ure] to provide anything approaching a reasoned explanation” rendered 

military correction board’s decision “arbitrary and capricious”); see also Poole v. Harvey, 571 F. 

Supp. 2d 120, 125 (D.D.C. 2008) (the Board “must respond to all non-frivolous and potentially 

meritorious arguments an applicant raises”). 

 

2

 For this reason, the government’s failure to provide “one shred of evidence to fortify 

and or support the decision made” by the Board is irrelevant. (Pl.’s Opp’n at 3.) 
7 

ANALYSIS

 The Secretary, acting through the Board, “may correct any military record” when “the 

Secretary considers it necessary to correct an error or remove an injustice.” See 10 U.S.C. § 

1552(a)(1). In presenting his case to the Board, Morrison bore the burden of establishing by 

“cogent and clearly convincing evidence” that the record to be corrected was the result of a 

material error or injustice. Calloway v. Brownlee, 366 F. Supp. 2d 43, 54 (D.D.C. 2005). In 

doing so, he was required to “overcome the strong, but rebuttable, presumption that 

administrators of the military, like other public officers, discharge their duties correctly, lawfully, 

and in good faith.” Frizelle, 111 F.3d at 177 (internal quotation marks omitted). Morrison’s 

complaint alleges that the Board’s decision not to correct his records was arbitrary and capricious 

because the Board “overlooked the facts” that: A) his “charge/suspension/vacation was clearly 

vindictive and racist”; B) he was an “outstanding marine” with an “exemplary” career; and C) 

his constitutional rights were violated.3

 (Compl. at 3.) Because the Board considered and 

responded to the first two claims, and because the third claim was frivolous, the Court will grant 

the government’s motion for summary judgment. 

 

3

 The government also argues that it was not a “procedural error” for someone outside 

Morrison’s chain of command to initiate charges against him. (Def.’s Mot. at 19-20 (quoting AR 

at 21).) Morrison does not contest this point and argues only that the Commanding Officer was 

“without jurisdiction to offer NJP as the plaintiff[] was assigned to a ship.” (Pl.’s Opp’n at 2.) 

However, Morrison’s complaint does not allege that the Board failed to address either procedural 

issue. (See Compl. at 3-4.) Therefore, the Court need not determine whether the Board 

adequately considered them. See Quinn v. District of Columbia, 740 F. Supp. 2d 112, 130 

(D.D.C. 2010) (“It is well established that plaintiffs may not, through summary judgment briefs, 

raise new claims where such claims were not raised in the complaint”) (internal quotation marks 

and alterations omitted). Even if Morrison’s complaint had argued that his Commanding Officer 

lacked jurisdiction over him, Morrison did not raise this issue with the Board (see AR 16, 20-22, 

57), so it cannot be raised now. Buckingham v. Mabus, 772 F. Supp. 2d 295, 300 (D.D.C. 2011) 

(“‘hard and fast rule of administrative law’ that ‘issues not raised before an agency are waived 

and will not be considered by a court on review’”) (quoting Nuclear Energy Inst. v. EPA, 373 

F.3d 1251, 1297 (D.C. Cir. 2004)). 
8 

A. Racial Bias 

 Morrison argues that the Board erred in overlooking the clearly “vindictive and racist” 

nature of the charges against him (Compl. at 3) and that the government has failed to produce 

“one shred of evidence to fortify and or support the decision made by the Commanding Officer 

and the [Board].” (Pl.’s Opp’n at 3.) So long as the Board “examine[s] the relevant data and 

articulate[s] a satisfactory explanation for its action,” it does not act arbitrarily or capriciously. 

See Puerto Rico Higher Educ. Assistance Corp. v. Riley, 10 F.3d 847, 850 (D.C. Cir. 1993) 

(quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43). Here, Morrison’s claim is directly 

contradicted by the Board’s statement that it “carefully weighed” his allegations of “racism and 

prejudice” and determined that the decision to allow Morrison to “stay in the Navy until the end 

of [his] enlistment instead of being separated for a pattern of misconduct or for commission of a 

serious offense, due to [his] numerous NJP’s, shows no indication of prejudice or 

vindictiveness.” (AR at 11) Morrison introduced no evidence of racism and relied solely on his 

own opinion that he was treated harshly.4

 (Pl.’s Opp’n at 4.) The Board specifically dealt with 

this argument by pointing out that he was allowed to serve as a Marine until the end of his 

enlistment, despite the numerous disciplinary violations in his record. (AR at 11.) Thus, there 

was nothing unreasonable about the Board’s determination that Morrison’s assertions of racial 

bias were meritless. See Mueller v. Winter, 485 F.3d 1191, 1198 (D.C. Cir. 2007) (“nothing 

unreasonable” about Board’s finding that there was insufficient evidence of injustice where 

neither plaintiff nor affiant had identified a “single factual inaccuracy” in contested report). 

 

 

4

 As the advisory opinion points out, “[t]here is no evidence of any racial bias in the case 

other than [Morrison’s] assertions,” which were “directly contradicted by his command.” (AR at 

18.) 
9 

B. Morrison’s Record as a Marine

 The Court identified Morrison’s allegation that the Board “failed to consider” evidence 

that he was an “excellent marine” as a potential basis for Morrison’s claim for relief under the 

APA. (Mem. Op. at 8.) A military review board acts arbitrarily and capriciously when it “fail[s] 

to address” arguments that are not “facially frivolous.” Frizelle, 111 F.3d at 175, 177. However, 

the record shows that the Board did address this argument in its opinion, which noted that it 

reviewed Morrison’s “entire record and application” and found that Morrison’s discharge was 

“based on the type warranted by [his] service record, which reflected [his] work performance.” 

(AR at 11.) Moreover, the Board “concluded” that the “seriousness of [Morrison’s] misconduct” 

outweighed the mitigating factors he identified. (Id.) Thus, because the Board addressed 

Morrison’s argument that he was an exemplary marine by finding that the seriousness of the 

offenses with which he was charged outweighed his previous record of service, and because 

there is, at the very least, a “rational connection between” the facts and the choice made by the 

Board, it did not act arbitrarily and capriciously. See Frizelle, 111 F.3d at 176 (quoting Dickson, 

68 F.3d at 1404). 

C. Violation of Constitutional Rights

 Morrison’s complaint alleges that his constitutional rights were violated. He has, 

however, not produced any evidence to support this claim, and his brief opposing summary 

judgment offers no further explanation as to what argument, if any, the Board failed to consider. 

Moreover, Morrison’s response to the advisory opinion submitted to the Board makes no 

mention of constitutional violations. (AR at 20-22.) To the extent the constitutional right 

Morrison refers to is his right to a speedy trial (AR at 23), the Board was not obligated to 

respond because his claim was frivolous. The protections of the Sixth Amendment right to a 
10 

speedy trial are “triggered only by a federal arrest or indictment.” United States v. Chapman, 

954 F.2d 1352, 1358 n.8 (7th Cir. 1992). They do not apply to non-judicial punishment, in 

which an armed services member essentially waives his right to trial by court-martial.5

 Cf. 

Middendorf v. Henry, 425 U.S. 25, 34 & n.13 (1976) (Sixth Amendment does not apply to 

summary court-martial proceedings because they are not criminal proceedings). Thus, because 

the issue was frivolous, the Board was not arbitrary or capricious in failing to address it. 

CONCLUSION 

For the reasons stated above, the Court will grant the government’s motion for summary 

judgment. A separate Order accompanies this Memorandum Opinion. 

 /s/ 

ELLEN SEGAL HUVELLE 

 United States District Judge 

DATE: August 5, 2011 

 

5

 Even if Morrison had been court-martialed, the government would only have been 

required to bring charges within 120 days. See United States v. Anderson, 50 M.J. 447, 448 

(C.A.A.F. 1999). Morrison’s letter to the Board argued that the offense took place on May 26, 

1986, and that the non-judicial punishment did not take place until July 10, 1986, a difference of 

45 days. (AR at 23.)