*The HONORABLE JOHN B. JONES, United States District

Judge for the District of South Dakota, sitting by

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 BEAM 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 undesirable 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. Department

of the Navy, 886 F. Supp. 686 (E.D. Ark. 1995). We conclude that BCNR's

decision was neither arbitrary nor capricious and that it was in fact

supported by substantial evidence. We therefore reverse the judgment of

the district court.
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The BCNR may recommend that the Secretary of the Navy correct its

records when the BCNR considers such action necessary to correct an error

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

Accordingly, it may deny an application to correct such records if it

determines that insufficient relevant evidence has been presented to

demonstrate the existence of probable material error or injustice. 32

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 Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.,

narrowly confines the scope of our review of this appeal. We review the

district court's decision de novo, applying the same standard as the

district court, and making our own independent review of the agency's

decision. Shalala v. St. Paul-Ramsey Medical Center, 50 F.3d 522, 527 (8th

Cir. 1995); Good Samaritan Hospital v. Sullivan, 952 F.2d 1017, 1023 (8th

Cir. 1991), cert. denied, 506 U.S. 914 (1992). In reviewing a correction

board matter, the reviewing court must determine whether the board's

decision was arbitrary, 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 the

deference given to agencies' expertise within their respective fields. As

long as the agency provides a rational explanation for its decision, a

reviewing court cannot disturb it. Nat'l Wildlife 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, not whether the decision was

correct." Watson, 886 F.2d
-3-

at 1011 n. 16. In appraising the agency's factfinding, we note that

substantial evidence is something less than the weight of the evidence, and

the possibility of drawing 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 Marine Corps in July, 1968. Shortly after completing his

basic training, he was punished for an unauthorized absence and violating

a lawful order. He was 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 corporal in the face with a rifle butt and broke his nose. A

special court-martial was convened to consider assault charges against Mr.

Henry and two attorneys were appointed to defend him. Mr. Henry's lead

attorney, Captain William Iorio, informed him of the pending charges.

(Capt. Iorio testified that Mr. Henry was preoccupied with being discharged

from the Marine Corps and repeatedly raised the possibility of seeking an

administrative discharge in lieu of a court-martial.) Capt. Iorio

conducted an investigation into Mr. Henry's case, which Capt. Iorio

ultimately concluded was unlikely to have a favorable outcome. Mr. Henry

persisted in proposing a discharge and Capt. Iorio agreed that a discharge

would be a reasonable course of action. Capt. Iorio explained the likely

adverse consequences of such a discharge and advised Mr. Henry of his

rights. The attorneys prepared a document entitled Request for an

Undesirable Discharge for the Good of the Service 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

informed him of his rights, and that he waived those rights. Mr. Henry

read and signed the document, and the Marine Corps approved the request.

In November, 1969, he was discharged from the service.

The BCNR recognized that Mr. Henry and Capt. Iorio differed on the

issue of whether Mr. Henry received adequate legal representation. Mr.

Henry maintained that his lawyers and his commanding officer "badgered" him

until he succumbed to their coercion, despite his wish to stand trial. The

BCNR, however, specifically credited Capt. Iorio's contrary testimony in

light of his distinguished military legal career and because failing to

represent Mr. Henry aggressively within the bounds of the law would have

subjected both of Mr. Henry's attorneys to disciplinary action by the

Marine Corps and their respective bar associations. The BCNR concluded

that Mr. Henry's attorneys represented him properly and that the

circumstances surrounding his request for discharge did not violate his

right to due process of law.

The BCNR also considered whether an undesirable discharge was an

equitable and appropriate characterization of Mr. Henry's service. Mr.

Henry alleged that he had been a victim of racial discrimination in the

Marine Corps in Vietnam. Although the BCNR concluded that service in

Vietnam may have been somewhat more difficult for Mr. Henry and other

blacks, it noted that Capt. Iorio testified that his investigation

disclosed that race played no part, or a negligible part, in Mr. Henry's

offenses. According to the BCNR, other equitable considerations supported

mitigation in this case, including Mr. Henry's somewhat limited

intelligence as reflected in his test scores, his minor psychological and

emotional problems, his youth, and his immaturity. The BCNR was more

impressed, however, by the fact that during Mr. Henry's short tenure in the

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 unauthorized absences was compounded because they occurred

in a war zone. The BCNR concluded that Capt. Iorio correctly advised Mr.

Henry that it would be appropriate for him to request discharge for the

good of the service rather than face trial by court-martial; it believed

that the court-martial panel surely would have found Mr. Henry guilty and

would have punished him with a bad conduct discharge. The request for

discharge also enabled Mr. Henry, in the BCNR's opinion, to escape the

likelihood of a substantial period of confinement. The BCNR concluded that

the same considerations "now militate against any favorable action by this

Board on equity or clemency grounds."

We have reviewed the administrative record and conclude that the

BCNR's decision was not arbitrary, capricious, or unsupported in the

evidence. All of the BCNR's findings of fact are more than amply supported

in the record and we detect no legal error in the proceedings. We find

that the BCNR's decisionmaking process does not appear to have been

deficient, see Watson, 886 F.2d at 1011 n. 16, and we must therefore affirm

its decision.

For the foregoing reasons, we reverse the judgment of the district

court.

A true copy.

Attest:

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