Court of Appeals of Indiana | Memorandum Decision 22A01-1407-MI-321 | January 28, 2015 Page 1 of 14

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Gregory F. Zoeller

Attorney General of Indiana

Frances Barrow

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Edward J. Merchant

Ruckelshaus Kautzman Blackwell

Bemis & Hasbrook

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Indiana Law Enforcement 

Training Board,

Appellant-Respondent,

v.

Theodore D. Comer, Sr.,

Appellee-Petitioner

January 28, 2015

Court of Appeals Cause No.

22A01-1407-MI-321

Appeal from the Floyd Circuit Court

The Honorable J. Terrence Cody, 

Judge

Cause No. 22C01-1305-MI-777

Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 22A01-1407-MI-321 | January 28, 2015 Page 2 of 14

Case Summary

[1] The Indiana Law Enforcement Training Board (“the Board”) appeals a trial 

court judgment setting aside its revocation of Theodore D. Comer, Sr.’s 

certificate of completion of basic training (“certification”) at the Indiana Law 

Enforcement Academy (“the Academy”). Finding that the Board’s decision to 

revoke Comer’s certification was arbitrary and capricious and was not 

supported by substantial evidence, we affirm the trial court.

Facts and Procedural History

[2] In 2001, Comer enlisted in the U.S. Navy and served as an information systems 

technician third class petty officer in Iceland from 2002 through May 2005. 

During his time of service, he received various medals, ribbons, and letters of 

commendation. In 2004, he was disciplined for unauthorized absence when on 

one occasion he failed to return to his ship before it set sail for the next port. As 

a result, he received a demotion and a short-term pay reduction and restriction 

to the ship. 

[3] After his discharge from the Navy in 2005, Comer worked as a correctional 

officer for the Department of Correction and then as a deputy with the Marion 

County Sheriff’s Department. In January 2010, he was hired by the Indiana 

University Police Department (“IUPD”) for its southeast campus in New 

Albany. As part of the hiring process, he disclosed that he had received an 

honorable discharge from the Navy on May 25, 2005. Also as part of the 
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process, IUPD conducted a character and background investigation as well as a 

polygraph, which he passed. IUPD determined that he was a person of good 

reputation and character and sent him to the Academy for basic training in 

March 2010. On his first day there, Comer filled out a personnel data sheet in 

which he listed his military discharge status as “honorable.” He finished at the 

top of his training class and received his Academy certification in July 2010. 

[4] In January 2011, Comer accepted a position with the Michigan City Police 

Department (“MCPD”). In the hiring process, he presented his May 25, 2005 

discharge form. In December 2011, a domestic incident occurred at Comer’s 

home, but no charges were filed. Comer returned to his job with IUPD in New 

Albany in January 2012. When Comer left MCPD, some MCPD officers 

began investigating him. Three months later, MCPD contacted the Board 

concerning alleged discrepancies in Comer’s military discharge paperwork. 

The Board commenced an investigation, and IUPD Chief Charles Edelen 

informed Comer concerning a discrepancy in his military discharge status. The 

Board set a hearing and notified Comer that the hearing would be held to 

determine whether to revoke his Academy certification based on his military 

discharge status and lack of good character. The Board’s executive director, 

Rusty K. Goodpaster, would serve as administrative law judge (“ALJ”), and 

the deputy director, Michael J. Lindsay, would serve as prosecutor. 

[5] At the January 2013 hearing, two different Department of Defense discharge 

forms were presented: (1) a DD 214 dated May 25, 2005 (“May DD 214”), 

listing Comer’s discharge as “honorable”; and (2) a DD 214 dated August 9, 
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2005 (“August DD 214”), listing Comer’s discharge as “other than honorable.” 

Petitioner’s Exs. G, H. Comer’s official Navy file contained the August DD 

214 but not the May DD 214. The signature and initials on the May DD 214 

were consistent with those affixed on all of the other documents in Comer’s 

Navy file. The August DD 214 contained a signature and initials inconsistent 

with those affixed on all of his other Navy documents. 

[6] The hearing exhibits include a summary of Comer’s polygraph results as well as 

in-depth, question-by-question information. Comer also introduced a voucher 

and line of accounting form showing that the Navy had paid his moving 

expenses following his May 2005 discharge. Director John Lanzone of Navy 

Personnel Support Detachment testified telephonically that the Navy pays the 

expenses of moving household goods only for members receiving an honorable 

discharge. He also testified that he had examined Comer’s May DD 214 listing 

his discharge as honorable and that it appeared to be “very authentic.” 

Appellant’s App. at 190. He explained that when a DD 214 discharge form 

needs to be updated or corrected after it has been issued to the discharged 

member, the proper procedure is to issue a DD 215. Nothing in Comer’s Navy 

file indicates that a DD 215 was ever issued. Comer testified that following his 

June 2005 move back to Gary, Indiana, police arrested him based on a national 

crime database that indicated he had deserted his ship in May 2005. The Navy 

flew him to California to clear up the error. He testified that he never knew that 

there was any change in his discharge status, that he never saw or signed a 

second discharge form, and that he was unaware of the August DD 214’s 
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existence until Chief Edelen informed him of it in April 2012. Immediately 

thereafter, he filed a petition with the Navy Discharge Review Board to correct 

his discharge status, which was still pending as of the date of the legal 

proceedings below. 

[7] The ALJ issued an order revoking Comer’s certification, concluding that it had 

been issued on the basis of information later determined to be false. The Board 

affirmed the ALJ’s decision, and Comer filed a petition for judicial review. The 

trial court issued an order setting aside the revocation order, concluding that the 

Board’s determination was arbitrary and capricious and unsupported by 

substantial evidence. The Board now appeals. Additional facts will be 

provided as necessary. 

Discussion and Decision

[8] The Board maintains that the trial court erred in setting aside its order revoking 

Comer’s Academy certification. When reviewing the decision of an 

administrative agency, we are bound by the same standard as the trial court. 

Umbrella Family Waiver Servs., LLC v. Ind. Family & Soc. Servs. Admin., 7 N.E.3d 

272, 274 (Ind. Ct. App. 2014). This standard of review is outlined in the 

Administrative Orders and Procedures Act (“AOPA”) and prohibits the 

reviewing court from substituting its judgment for that of the agency. Id. at 274-

75. Instead, the reviewing court considers the evidence in the light most 

favorable to the administrative proceedings and neither reweighs evidence nor 

assesses witness credibility. Pendleton v. McCarty, 747 N.E.2d 56, 61 (Ind. Ct. 
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App. 2001), trans. denied. The reviewing court shall grant relief only if it 

determines that the person seeking judicial relief has been prejudiced by an 

agency action that is: 

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law;

(2) contrary to constitutional right, power, privilege, or immunity;

(3) in excess of statutory jurisdiction, authority, or limitations, or short 

of statutory right;

(4) without observance of procedure required by law; or

(5) unsupported by substantial evidence.

Ind. Code § 4-21.5-5-14(d).

[9] “An administrative act is arbitrary and capricious only where it is willful and

unreasonable, without consideration and in disregard of the facts and 

circumstances of the case, or without some basis that would lead a reasonable 

and honest person to the same conclusion.” Terra Nova Dairy, LLC v. Wabash 

Cnty. Bd. of Zoning Appeals, 890 N.E.2d 98, 104 (Ind. Ct. App. 2008) (citation

omitted). The burden of demonstrating the invalidity of agency action is on the 

party seeking review of the action. Id. “Substantial evidence is such relevant 

evidence which a reasonable mind might accept as adequate to support the 

conclusion.” Roberts v. Cnty. of Allen, 773 N.E.2d 850, 853 (Ind. Ct. App. 2002), 

trans. denied. 

[10] In the interest of public safety and general welfare, the Indiana General 

Assembly established mandatory training for law enforcement officers and 
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created the Board to oversee and carry out the law pertaining to the training of 

such officers. Ind. Code §§ 5-2-1-1, -3. The Board contends that it revoked 

Comer’s certification based on Indiana Code Section 5-2-1-12.5, which reads in 

pertinent part, “(a) The board may revoke a ... certificate ... showing 

compliance and qualification issued by the board for any of the following 

reasons: .... (3) The officer’s ... certificate ... showing compliance and 

qualification was issued in error or was issued on the basis of information later 

determined to be false.” (Emphasis added.) Specifically, the Board alleged that 

the “information later determined to be false” was Comer’s assertion that he 

was honorably discharged from the Navy.

[11] Throughout the proceedings, Comer steadfastly maintained that he never knew 

that his discharge status had changed, that he did not sign the second form, and 

that he never knew it existed. He claimed that he did not learn of the 

inconsistency in his discharge status until April 2012, after which he 

immediately petitioned the Navy Discharge Review Board for a correction of 

military record. In support of his claim that he received an honorable 

discharge, Comer presented evidence that the Navy paid for his June 2005 

move, which it would not have done if he had received an “other than 
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[12] honorable” discharge.1 See Respondent’s Ex. 2 (consisting of Department of 

Defense form for moving expenses and line of accounting from Navy showing 

issuance of reimbursement check dated March 29, 2006); see also Appellant’s 

App. at 194 (testimony of Director Lanzone that Navy pays expenses of 

moving household goods only for personnel who receive an honorable 

discharge). 

[13] The Board correctly points out that because Indiana Code Section 5-2-1-

12.5(a)(3) does not specifically require that the officer have knowledge of the 

falsity, it did not have the burden of establishing Comer’s awareness of his 

“other than honorable” discharge. Nonetheless, the ALJ found Comer not to 

be credible with respect to his claim of unawareness and concluded in part,

Deserting the U.S. Navy once or twice; being caught by a Gary, 

Indiana police officer while AWOL from the U.S. Navy; and 

representing to his first police employer, [IUPD] – New Albany, then 

to his second employer, [MCPD] when hired and to the [Academy], as

well when he was admitted for basic training that he had a[n] 

 

1 The ALJ’s findings emphasize a link between the classification of Comer’s discharge and his alleged lack of 

good reputation and character. 250 Indiana Administrative Code 2-3-5 requires that every applicant for 

officer training “be of good reputation and character as determined by a police department character and 

background investigation on the applicant ... .” (Emphasis added.) IUPD was the department that sent Comer 

to the Academy. The record indicates that during the hiring process, IUPD conducted a background check 

on Comer that included a polygraph, which he passed, and made a determination that he was of good 

reputation and character.
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honorable discharge (which was false), are all factors that individually 

and jointly clearly demonstrate a lack of good reputation and character at the 

time he applied for and received his [Academy] basic training 

certificate.

[14] Appellant’s App. at 322 (emphasis added). The Board agreed and affirmed the 

ALJ’s decision. 

[15] The Board now submits that the trial court violated its standard of review in 

finding Comer to be credible concerning his alleged unawareness of any change 

in his discharge status. In its order setting aside the Board’s decision, the trial 

court found in pertinent part, 

3. On May 25, 2005, Petitioner was issued a Certificate of Release or 

Discharge From Active duty (“DD214”) indicating an “Honorable 

Discharge. Petitioner signed the DD214. The DD214 contained a 

reserve obligation termination date of 2009 05 17. The Navy paid for 

the Petitioner to move his household goods, his vehicles and 

motorcycle, together with his wife’s articles back to Gary, Indiana. 

The uncontroverted evidence was that the Navy would not pay for 

such travel expenses if a less than honorable discharge was received. 

4. Petitioner was arrested for desertion by a Gary Police Officer on 

July 18, 2005.

5. Following Petitioner’s arrest, the Navy flew Petitioner back to 

California to face the desertion charge. An administrative hearing was 

held. Petitioner was not court martialed. Petitioner was ultimately 

separated from the U.S. Navy with no reserve obligation. 

6. According to military records but unbeknownst to Petitioner 

another DD214 was issued on August 9, 2005 indicating that he had 

received an “Other Than Honorable Discharge.”
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...

10. Prior to being hired by the IUPD, Petitioner successfully passed a 

background investigation. As part of the background investigation, 

Petitioner successfully completed a polygraph examination.

...

22. Petitioner testified at the hearing that the signature and the initials 

on the DD214 indicating “Other than Honorable Discharge” were not 

his.

...

24. Petitioner’s discharge characterization of “Other than Honorable”

is disputed and the subject of an application to the Board of Correction 

for Military Records and the Discharge Review Board. [The Board] 

became aware of such application on or about June 27, 2012.

25. The uncontroverted evidence was that Petitioner signed and 

initialed the DD214 issued on May 25, 2005 and that it was his 

genuine signature and initials. The signature on the DD214 indicating 

an “Other than Honorable Discharge” is not consistent with other 

records maintained in Petitioner’s Navy Personnel file. 

Id. at 54-55, 57.

The trial court concluded in part as follows:

A. There is substantial evidence in the record that would support the 

ALJ’s conclusion that Petitioner’s official U.S. Navy military 

discharge status is “other than honorable” based on the DD214 issued 

on August 9, 2005, however, this “other than honorable[”] discharge 

is being disputed and is the subject of an application by the Petitioner 

with the Board of Correction for Military Records and the Discharge 
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Review Board. Until there is a decision by the Review Board, the use 

of the “other than honorable” discharge in and of itself, does not

provide an adequate basis for revoking Petitioner’s certification under 

I.C. 5-2-1-12.5(a).

....

F. There is not substantial evidence in the record to support [t]he 

findings and conclusions of the ALJ that Petitioner misrepresented or 

gave false information concerning his discharge status from the United 

States Navy at the time of his application and hiring by IPUD [sic], his 

admission and graduation from the Academy and his application and 

hiring by MCPD.

G. In analyzing the Record as a whole, the decision of the [Board] to 

revoke Petitioner’s certificate is not supported by substantial evidence.

H. The decision of the [Board] to revoke Petitioner’s certificate is 

arbitrary and capricious in that it was made without consideration or 

in disregard to the facts and circumstances of the case regarding 

Petitioner’s knowledge of his discharge status at the time he applied 

and was hired by IUPD, attended and graduated from the Academy 

and at the time he applied and was hired by MCPD in not holding in 

abeyance a decision until such time as Petitioner’s discharge status was 

finally determined by the Board of Correction for Military Records 

and the Discharge Review Board.

Id. 65-67.

[16] The Board asserts that the trial court improperly substituted its judgment for the 

ALJ’s and did not defer to the expertise of the administrative agency. 

Where the matter lies within the particular expertise of the 

administrative agency, we afford the finding a greater level of 

deference. Where the matter does not lie within the particular 

expertise of the agency, however, the reviewing court is more likely to 
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exercise its own judgment. Regardless, the court examines the logic of 

the inference drawn and imposes any rules of law that may drive the 

result. The Board’s conclusion must be reversed if the underlying facts 

are not supported by substantial evidence or the logic of the inference 

is faulty, even where the agency acts within its expertise, or if the 

agency proceeds under an incorrect view of the law.

Chrysler Grp., LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d 118, 

122-23 (Ind. 2012).

[17] Here, the pivotal issue concerns the status of Comer’s military discharge, which 

is a matter within the expertise of the Department of Defense, not the state law 

enforcement training board. At the time of the trial court’s order, Comer’s 

petition to correct his discharge classification was still pending before the body 

most suited to resolve it – the Navy Discharge Review Board.2 

[18] At the ALJ hearing, Director Lanzone testified telephonically concerning 

Department of Defense procedures surrounding discharges. He explained that 

where a DD 214 discharge form has already been issued to the discharged 

member, a change in discharge status would be accomplished by issuing a DD 

 

2

In this vein, we also note the frequent use of the term “desertion” in the briefs and in the findings. The 

military has specific definitions for terms such as “desertion,” “AWOL,” and “unauthorized absence,” and 

these designations carry vastly different consequences. Because these are matters within the expertise of the 

military, we advise the parties and the tribunals below to exercise caution in using these terms without also 

including their specific military definitions.
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215 form to correct or update the original DD 214. Comer’s official 

Department of Defense record does not include a DD 215 form. Director 

Lanzone also testified that he had reviewed Comer’s May DD 214 indicating 

an honorable discharge and concluded that it appears to be “very authentic, it 

does not look to be forged at all.” Appellant’s App. at 190. Moreover, he 

testified that Comer’s signature and initials on the May DD 214 matched those 

contained in all of Comer’s other naval records. When asked to explain what 

might account for the inconsistent signature and initials contained on the 

August DD 214, Director Lanzone posited that when such a discrepancy exists, 

it could be attributable either to the discharged sailor intentionally signing the 

form differently in the hope of later challenging its authenticity or to the records 

clerk having failed to obtain the required signature and initials from the sailor 

and signing the form himself. He did not render a professional opinion as to 

what occurred in Comer’s case, and any attempt to characterize his testimony 

as such would be a misrepresentation of the record. 

[19] In sum, the ALJ’s decision to revoke Comer’s Academy certification was based 

on the status of his discharge from the Navy. At the time of the Board’s 

decision, Comer’s petition to correct his military record was pending with the 

Navy Discharge Review Board. As such, the truth or falsity of Comer’s 

assertion of an honorable discharge had not been determined. In other words, 

the character of Comer’s discharge is a question with a definite answer which 

should be provided by the body with expertise and access to the information. 
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[20] Even if the Navy Discharge Review Board determines that Comer’s correct 

discharge status is “other than honorable,” such status would not by itself 

constitute grounds for revocation of his certification. The administrative 

regulations disqualify from the Academy only applicants whose discharge 

status is “dishonorable.” See 250 Ind. Admin. Code 2-3-8 (“A dishonorable 

discharge from military service shall disqualify the applicant, and a discharge 

other than honorable may be grounds for rejection in accordance with other 

standards in this rule.”) (Emphasis added.) Here, Comer’s true discharge status 

is either “honorable” or “other than honorable.” Even assuming that it is 

“other than honorable,” he nonetheless could have been admitted to the 

Academy. Thus, it cannot be said that his certification was issued on the basis of

his “honorable” discharge. Based on the foregoing, we affirm the trial court’s 

decision to set aside the revocation of Comer’s certification.

[21] Affirmed. 

Friedlander, J., and Kirsch, J., concur.