### *The H ONORABLE JOHN B. JONES, United States Distric t

Judge for the District of South Dakota, sitting b y designation. ___________ No. 95-2158

___________ Ronald Eugene Henry, * * Appellee, * Appeal from the United States * District Court for the v. * Eastern District of Arkansas. * United States Department * of the Navy, Secretary of * the Navy, and Board for * Correction of Naval Records, * * Appellants. *

___________ Submitted: January 12, 1996 Filed: March 1, 1996

___________ Before B EAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and JONES, * District Judge.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge.
The Board for Correction of Naval Records (BCNR) refused to upgrade Ronald Henry's undesi rable discharge from the Marine Corps. The district court reversed the BCNR, finding that its decision was arbitrary , capricious, and not supported by substantial evidence. Henry v. Departmen t of the Navy , 886 F. Supp. 686 (E.D. Ark. 1995). We conclude that BCNR's decision w as neither arbitrary nor capricious and that it was in fac t supported by substantial evidence. We therefore reverse the judgment of the district court.

### -2- The BCNR may recommend that the Secretary of the Navy correct it s records when the BCNRconsiders such action necessary to correct an error

or remo ve an injustice. See 10 U.S.C. § 1552(a); 32 C.F.R. § 723.2(b)

. Accordingl y, it may deny an application to correct such records if i t de termines that insufficient relevant evidence has been presented t o demonstrate the existence of probable material error or injustice. 3 2 C.F.R. § 723.3(e)(2). The BCNR reviewed the evidence in Mr. Henry's case in painstaking detail and concluded that it was "insufficient to establish the existence of probable material error or injustice."

The Admin istrative Procedure Act (APA), 5 U.S.C. § 701 et seq. , narrowly confines the scope of our review of this appeal. We review the dist rict court's decision de novo, applying the same standard as th e distric t court, and making our own independent review of the agency' s decision. Shalala v. St. Paul-Ramsey Medical Center , 50 F.3d 522, 527 (8t h Cir. 1995); Good Sama ritan Hospital v. Sullivan , 952 F.2d 1017, 1023 (8th Cir. 1991), cert. den ied , 506 U.S. 914 (1992). In reviewing a correction board matter, the reviewing court must determine whether the board' s decision was arbitrar y, capricious, or not based on substantial evidence. Chappell v. Wallace , 462 U.S. 296, 303 (1983); Watson v. Arkansas Nat' l Guard , 886 F.2d 1004, 1011 (8th Cir. 1989); see 5 U.S.C. § 706(2)(A) & (E)

. The arbitrary and capricious standard is a narrow one that reflects th e deference given to agencies' expertise within th eir respective fields. As long as the agency provides a rational explanation for its decision, a reviewing court cannot disturb it. Nat'l Wildli fe Federation v. Whistler , 27 F.3d 1341, 1344 (8th Cir. 1994). Review of a military agency's ruling,
moreover, must be extremely deferential because of the confluence of the

narrow scope of review under the APA and the military setting. Falk v

. Secretary of the Army , 870 F.2d 941, 945 (2d Cir. 1989). Our review of a military correction board's decision is limited to deciding "whether the Board's decisionmaking process was deficient, no t whether the decision was correct." Watson , 886 F.2d

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at 101 1 n. 16. In appraising the agency's factfinding, we note tha t substantial evidence is something less than the weight of the evidence, an d the possibility of dr awing two inconsistent conclusions does not indicate that substantial evidence fails to support an agency's findings. See , e.g. , Baker v. Secretary of Health and Human Services , 955 F.2d 552, 554 (8th Cir. 1992).

We summarize in this paragraph the BCNR's findings regarding Mr

. Henry's service record and the facts surrounding his discharge. Mr. Henry enlisted in the Marin e Corps in July, 1968. Shortly after completing his basic training, he wa s punished for an unauthorized absence and violating a lawful order. He w as assigned to Vietnam in April, 1969. In August of that year, he hit a corporal in the head with a bicycle chain, for which he was reduced in rank and fined. In September, 1969, he went on two more unauthorized absences. Upon his return, he was referred for psychiatric examination, and his evaluator concluded that he was accountable for his actions and that a psychiatric discharge was not warranted. The next day, he hit a cor poral in the face with a rifle butt and broke his nose. A special court-martial was convened to consider a ssault charges against Mr. Henry and two attorneys were appointed to defend him. Mr. Henry's lea d attorn ey, Captain William Iorio, informed him of the pending charges

. (Capt. Iorio testified that Mr. Henry was preoccupied with being discharge d from the Marine Corps and repeatedly raised the possibility of seeking an admini strative discharge in lieu of a court-martial.) Capt. Iori o conduc ted an investigation into Mr. Henry's case, which Capt. Iori o ultimately concluded was unlikely to have a favorable outcome. Mr. Henry persisted in proposing a discharge and Capt. Ior io agreed that a discharge would be a reasonable course of action. Capt. Iorio explained the likely adverse co nsequences of such a discharge and advised Mr. Henry of hi s rights. The attorneys prepared a document entitled Request for a n Undesirable Discharge for the Good of the Servic e to Escape Court-Martial, which stated that Mr. Henry had received advice of

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counsel (with which he was satisfied), that his counsel had specifically informe d him of his rights, and that he waived those rights. Mr. Henr y read and signed the document, and the Marine Corps approved the request. In November, 1969, he was discharged from the service.

The BCN R recognized that Mr. Henry and Capt. Iorio differed on th e iss ue of whether Mr. Henry received adequate legal representation. Mr

. Henry maintained that his lawyers and his commanding officer "badgered" hi m until he succumbed to their coercion, despite his wish to stand trial. Th e BCNR, however, specifically credited Capt. Iorio's contrary testimony in lig ht of his distinguished military legal career and because failing t o represent Mr. Henry aggressively within the bounds of the law would have subject ed both of Mr. Henry's attorneys to disciplinary action by th e Mar ine Corps and their respective bar associations. The BCNR conclude d that M r. Henry's attorneys represented him properly and that th e circum stances surrounding his request for discharge did not violate hi s right to due process of law.

The BCNR also considered whether an undesirable discharge was a n equita ble and appropriate characterization of Mr. Henry's service. Mr

. Henry all eged that he had been a victim of racial discrimination in th e Marine Cor ps in Vietnam. Although the BCNR concluded that service i n Vietnam ma y have been somewhat more difficult for Mr. Henry and othe r blacks , it noted that Capt. Iorio testified that his investigatio n disclosed that race played no part, or a negligible part, in Mr. Henry's offenses. According to the BCNR, other equitabl e considerations supported mitigation in this case, including Mr. Henry's somewhat limite d intelligence as refle cted in his test scores, his minor psychological and emotional problems, his youth, and his immaturity. The BCNR was mor e impressed, however, by the fact that during Mr. Henry's short tenure in th e military he committed numerous offenses including two violent assaults on superiors. The seriousness of the two assaults

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and two of the unauth orized absences was compounded because they occurred in a war zone. The B CNR concluded that Capt. Iorio correctly advised Mr. Henry tha t it would be appropriate for him to request discharge for th e good of the service rather than face trial by court-martial; it believed that the court-martia l panel surely would have found Mr. Henry guilty and would have punished him with a bad conduct discharge. The request fo r disch arge also enabled Mr. Henry, in the BCNR's opinion, to escape th e likelihood of a substantial period of confinement. The BCNR concluded tha t the same considerations "now militate against an y favorable action by this Board on equity or clemency grounds."

We have reviewed the administrative record and conclude that th e BCNR's decision was not arbitrary, capricious, or unsupported in th e evidence. All of the BCNR's findings of fact are more than amply supporte d in th e record and we detect no legal error in the proceedings. We fin d that the BCNR's decisionmaking process does not appear to have bee n deficient, see Watson , 886 F.2d at 1011 n. 16, and we must therefore affir m its decision.

For the foregoing reasons, we reverse the judgment of the distric t court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.