1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ISRAEL A. MAGNESON , ) ) Plaintiff, ) ) v. ) ) Civil Action No. 1 2

- cv
- 1053 (TSC) (DAR) RAYMOND EDWIN MABUS, JR. , in his official capacity as the Secretary of the Navy , ) ) ) ) Defendant. ) )
MEMORANDUM OPINION Plaintiff Israel Magneson challenges the Board for Correction of Naval Records’ denial of his application to correct his military record

. Shortly after it was filed, th is case was referred to a Magistrate Judge for full case management. The parties then filed a motion to dismiss and

cross
- motions for summary judgment, all of which the Magistrate Judge denied without prejudic e to allow Magneson to amend his C omplaint, which he d id on October 1, 2013

. T he parties again filed cross
- motions for summary judgment, and t he Magistrate Judge issued a Report and Recommendation on October 28, 2014 , recommending that Plaintiff’s motion be denied, and Defendant’s granted. Without taking a position on the Magistrate Judge’s Report and Recommendation, t his court remanded the case to the Board for Correction of Naval
Records (the “Board”) to consider one of Plaintiff’s arguments

. After addressing Plaintiff’s arguments, the Bo ard again rejected Plaintiff’s application, and the parties renewed their cross

motions for summary judgment. Having considered the pleadings and the record, f or the reasons stated herein, Plaintiff’s motion is DENIED and Defendant’s motion is GRANTED

.2

I. B ACKGROUND
Plaintiff Magneson is a former Lieutenant in the United States Navy. (Am. Compl. ¶ 3 ). Pursuant to orders issued in February 2009, Magneson reported aboard the USS REUBEN
JAMES on August 4, 2009, and began duties as the Chief Engineer on September 28, 2009

. (Am. Co mpl. ¶

¶ 5

- 6 ; Administrative Record (“AR”) 15 ). The 2009 Orders also set Magneson’s
Planned Rotation Date

— the date he would transition from the JAMES to a different d uty station

— a s February 2011. ( AR 44 ). Magneson’s tenure as Chief Engineer proved troublesome. During his period aboard the
JAMES , Magneson’s Commanding Officer verbally counseled him multiple times for his
deficient performance

. ( Def.’s First Mot. for Summ. J. at 3 ). In addition to verbal counseling , Magneson received two written Letters of Instruction detailing his failure to maintain and lead his department, and requiring specific corrective actions. ( AR 15

- 24 ). On July 2, 2010, a fter determining t hat Magneson had failed to follow the directives in his second L etter of I nstruction , the C ommanding O fficer requested a Detachment for Cause ( “ DFC ” ) from Navy Personnel
Command , “based on [Magneson’s] unsatisfactory performance over an extended period of
time

. ” (AR 15

- 17 ). A DFC , which removes an officer from their current post prior to their normal transfer or planned rotation date, “has a serious effect on th e officer’s future naval

career , ” and “is one of the strongest administrative measures used in the case of officers.” ( Def. ’s F irst Mot. Summ. J., Ex. 1 at 2, Naval Military Personnel Manual ( the “M anual ”) 1611

- 020 (1)(b)).
D FC’s are processed according to M anual 1611

- 020 . ( Id

. ). Once a DFC is requested, the
offic er is given a chance to respond, which Magneson did on July 16, 2010. ( AR 25

- 30 ). The request and response are then forwarded through the officer’s chain of command and up to N avy3

P ersonnel C ommand , with each officer in the chain of command required to end orse the request
for it to take effect

. ( Def. ’s First Mot. Summ. J., Ex. 1 at 7

- 10 ). In Magneson’s case, the DFC
was endorsed five tim es by four different officers. ( AR 3 1

- 34 ). The first endorsement occurred
when the C ommanding O fficer originally reque sted the DFC

. (AR 13). T he C ommanding
O ff i cer then endorsed the DFC a second time on July 30, 2010 , after receiving Magneson’s
rebuttal

. ( Id .)

. The third, fourth, and fifth endorsements occurred on August 17, September 11, and September 23 , 2010, respectively. ( Id

. ). N avy P ersonnel C ommand acknowledged receipt
of the endorsed D FC request on January 5, 2011, and due to the pending DFC, extended Magneson’s orders aboard the JAMES past February 2011, setting a new P lanned R otation D ate of March 2011

. ( Am. Compl. ¶ 14 ).
While t he DFC request was pending, Magneson became eligible for promotion to
Lieutenant Commander. T he officers in his chain of command, all of whom had endorsed the
DFC , did not recommend that Magneson be removed from the promotion list, but the promotion was nonetheless delayed due to the pending D F C. ( Am. Compl. ¶ ¶ 15

- 16 ; AR 39 ). On March 10, 201 1 , a pproximately one month after notifying Magneson that his promotion was delayed , N avy P ersonnel C omman d formally approved the DFC request , and on May 3, 2011, issued Permanent Change of Station orders transferring Magneson to a new duty assignment. ( Am. Compl. ¶ 19 ; AR 66 ).
Because of the likelihood that a DFC would not only delay his promotion, but prevent a promotion entirely , i n early May 2011 Magne son submitted an application to the Board requesting that the D F C be expunged from his record , and that he be promoted to L ieutenant
C ommander

. ( Am. Compl. ¶ 28 ). The B oard was established by the Secretary of the Navy , and
is comp rised of civilians who “ consider applications properly before it for the purpose of4

determining the existence of error or injustice in the naval records of current and former members of the Navy and Mar ine Corps, to make recommendations to the Secretary or to take corrective action on the Secretary ’ s behalf when authorized

. ” 32 C.F.R. § 723.2 (b) ; see also 10 U.S.C. § 1552. The B oard reviews “ all pertinent evidence of record , ” and will deny an applicati on where it finds “ insufficient evidence to demonstrate the existence of probable material error or injustice

. ” 32 C.F.R. § 723.3(e)(1)

- (2). The B oard “ relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties

. ”
Id. § 723.3(e)(2). Magneson alleged in his B oard application that “the Navy failed to follow its own [nondiscretionary] regulatory s cheme” in two ways

. (AR 116 ). First, Magneson argued that
M anual 1611

- 020(1)(a) requires a DFC to be finalized prior to a service member’s Planned
Rotation Date , and because the Commander of Navy Personnel Command did not approve the
DFC until after his initial Planned Rotation Date of February 11, 2011 , th e Navy improperly ignored its own regulations

. (AR 107) (citing Bureau of Navy Personnel Instruction 1610.10B, para 3

- 6(h) )

. Second, Magneson claim ed that the DFC request was not forwarded from one
level of the chain of command to the next within five working days, again in violation of the Manual, which provide s that “[i]n the absence of unusual circumstances, the DFC request should be forwarded within 5 working days of receipt by each command in th e routing chain

. ” (AR
10 8 ) (citing M anual 1611

- 020(11)(h))

. After having his promotion delayed, Magneson was removed from the L ieutenant
C ommander promotion list o n December 7 , 2011

. ( Am. Compl. ¶ 20 ). The B oard denied Magneson’s application on March 15, 2012, on the grounds that “ the evidence submitted was5

insufficient to establish the existence of probable material error or injustice. ” (AR 1 ). Specifically, t he B oard noted that M anual 1611.020. (1)(a) states that a DFC is an administrative removal “before . . . [a n officer’s ] normal or planned rotation date,” and because Magneson’s DFC was approved prior to the issuance of his transfer orders on May 3, 2011 , there had been no
violation of Navy regulations

. (AR 2) (emphasis in original)

. The B oard also found that the
DFC provided a basis for removing Magneson from the promotion list, despite the fact that the
officers in his chain of command recommended keeping him on the list

. ( Id .). Magnes o n then
fi led this suit in June 2012

. Magneso n allege s that the Secretary of the Navy, through the B oard , abused discretion, acted arbitrarily and capriciously , and contrary to regulation for two reasons. (Am Compl. ¶ 41). First, the B oard did not address whether the Navy “failed to meet mandatory response dates required by i ts own procedural regulation” by not following the five

- day rule in M anual 1611

- 020(11)(h). ( Id .). Second, the B oard failed to find that the Navy violated its own regulations
when N avy P ersonnel C ommand approved Magneson’s DFC after his P lanned R otation Date. ( Id .). With regard to the second issue , Plaintiff also alleges that the B oard incorrectly concluded that “normal transfer” in M anual 1611

- 020(1)(a) is equival ent to “tr ansfer orders,” when nothing in the regulatory s cheme supports this conclusion. ( Id. ). These allegedly arbitrary and capricious actions harmed Magneson by “delaying his career progression and ultimately causing him to be involuntarily separated from the Navy.” 1 ( Id

. ¶ 42).
T his court remanded the case for consideration of Magneson’s five

- day rule allegation

. T he B oard reaffirmed its de nial of Magnes on’s claim , finding first that the use of the word

1 In February 2013 (after the suit was filed), Magneson was involuntarily separated from the United States Navy for non
- selection to the next higher rank, allegedly because of his removal from the Lieutenant Commander promotion list as a result of the DFC. (Am. Compl. ¶ 40).6

“should” in the five

- d ay rule rendered the pro vision advisory, not mandatory. (AR 137). Further, the Board found any violation of the five

- day rule harmless, as it did not affect the outcome of the DFC p roceedings . ( Id .). T he Board noted that the rationale for a DFC, as
discussed in Manual 1611

- 020(1)(b), is to remove an officer from his or her position when the officer’s “performance or conduct detracts from accomplishing the command’s mission, and the officer’s continuance in the billet can only negatively impact the command.” ( Id

. ). T he Board
found that s o as long as Magneson remained in his billet aboard the JAMES, and his Commanding Officer continued to believe that Magneson’s service there detrac ted from the mission, the n Navy Personnel Command could properly approve the DFC up until the point at
which Magneson transferred to a new duty station. ( Id .). Thus since Magneson’s transfer orders were issued in May , Navy Personnel Command complied with Navy regulations by approving
the DFC in March . ( Id. ). 2
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, a “ court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitle d to judgment as a matter of law.” F ED
. R. C IV
. P

. 56 (a)

. However, since t he c ourt reviews the
B oard ’ s decision under th e Administrative Procedure Act, 5 U.S.C. § 706 , the standard “ set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the administrative record.” Stuttering Found. of Am. v. Springer , 498 F. Supp. 2d 203, 207 (D.D.C. 2007)

. Instead , “[s] ummary judgment serves as the mechanism for deciding, as a matter of law,

2 Plaintiff asserts in his renewe d motion for summary judgment that the Board “abandoned May 3, 2011, as a dispositive or even meaningful date. ” (Pl. ’ Ren. Mot. Summ. J. at 3). But as Defendant correctly points out, the B oard ’s discussion of the “May” transfer in its decision clearly referred to the May 3 transfer date. (AR 137).7

whether the agency action is supported by the administrative record and otherwise consistent
with the APA standard of review .” Id.
Under APA S ection 706 , a c ourt must set aside a n a gency action that is “ arbitrary, capricious , an abuse of discretion, or otherwise not in accordance with law. ” 5 U.S.C. § 706(2) (A) . The c ourt ’ s review is “ highly deferential ” and begins with a presumption that the
agency ’ s actions are valid. Envtl

. Def. Fund , Inc. v. Costle , 657 F.2d 275, 283 (D.C. Cir. 1981).
The c ourt is “ not empowered to substitute its judgment for that of the agency, ” Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 416 (1971) , abrogated on other grounds by Califano v. Sanders , 430 U.S. 9 9 (1977) , but instead must consider only “ whether the agency acted within the scope of its legal authority, whether the agency has explained its decision, whether the facts on which the agency purports to have relied have some basis in the record, and
whet her the agency considered the relevant factors. ” Fulbright v. McHugh , 67 F. Supp. 3d 81,
89 (D.D.C. 2014) (citing Fund for Animals v. Babbitt , 903 F. Supp. 96, 105 (D.D.C. 1995)).
A p laintiff bears the burden of establishing the invalidity of the agency ’ s action. Id.

“ [A]n agency ’ s decision [need not] be a model of analytic precision to survive a challenge. ”
Dickson v. Sec ’

y of Def. , 68 F.3d 1396, 1404 (D.C. Cir. 1995 )

. All that is required is that the agency’s decisions provide “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) (internal citation and quotation marks omitted). Thus , a court “ will uphold a decision of less
than ideal cla rity if the agency ’ s path may reasonably be discerned .” Dickson, 68 F.3d at 1404 ( internal citation omitted)

. The B oard ( under its delegated authority from the Secretary of the Navy) has broad discretion when considering an application for correction. Military c orrection s b oard s “ may8

correct any military record . . . necessary to correct an error or remove an injustice

. ” 10 U.S.C. § 1552(a)(1) (emphasis added) . As a result, a court r eviewing a military correction s board ’s
decision applies 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 )

. In Kreis , which involved an Air Force officer seeking retroactive promotion, or correction of his military re cord due to allegedly arbitrary and capricious actions by the Secretary of the Air Force, the court noted that

“ [w] hile 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 upse t the Secretary ’ s determination

. ” Id

. “It is simply more difficult to say that the Secretary has acted arbitrar ily if he is authorized to act

‘ when he co nsiders it necessary to correct a n error or remove an injustice . . .’ ” Id. (citing 10 U.S.C. § 1552(a) ) (emphasis in original)

. Thus, when reviewing a military corrections board
decision , a court’s role is to determine only whether “ the decision making process was deficient, not whether [the] decision was correct. ” Dickson, 68 F. 3d at 1405 ( internal citation omitted). However, “ [t] o 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. ’ ” Pettiford v.
Sec ’ y of Navy , 774 F. Supp. 2d 173, 182 (D.D.C. 2011) ( citing Kreis, 866 F.2d at 1514

– 15 ). As
the D.C. Circuit recently noted , m ilitary c orrections b oards must “take care to sufficiently
address ea ch non

- frivolous claim raised b y an applicant for record correction.” Jackson v.
Mabus , 808 F.3d 933, 938 (D.C. Cir. 2015).9

III. ANALYSIS
Plaintiff reiterates the argument s he made before the Board here , namely that the Board erred and acted in an arbitrary and capricious manner for not finding that the Navy violated its own regulations by : (1) not follow ing the requirement in M anual 1611

- 020(11)(h) t hat a DFC request be forwarded within five days of receipt by each endorsing officer; and (2) not approving the DFC request by Magneson ’ s normal transfer or planned rotation date, as required by M anual
1611

- 020 (1)(a)

. (Pl. ’s Ren. Mot. Summ. J. at 3). Def endant argues that the B oard’s decision

wa s not arbitrary and capricious, and that while Magneson may disagree with the Board’s decision, he cannot claim that its decision making process was deficient since it only reached its decision after considering all relevant materials. ( Def. ’s Ren. Mot. Summ. J

. at 4 , 11 ).

a. The Five

- Day Rule
M anual 1611

- 020(11)(h) provides that: Expeditious processing and forwarding of a DFC request is mandatory, as the officer concerned is normally in a nonproductive status awaiting final determination of the request. In the absence of unusual circumstances, the DFC request should be forwarded wi thin 5 working days of receipt by each command in the routing chain.
The parties agree that it took each member of Magneson’s chain of command more than five days to sign off and forward his DFC , but disagree on the nature of the five

- day rule

. Magneso n ’s argument that the five

- day rule is a mandatory provision is based on the phrase “[e]xpeditious processing and forwarding of a DFC request is mandatory,” a nd he argues that these words make the entire provision directory in nature

. (Pl. ’s Mot. Summ. J. at 5 ). 3
Plaintiff further asserts that the word “mandatory” controls the entire provision, and not just the

3 Plaintiff incorporates the arguments from his Motion for Summary Judgment (ECF No. 24) into his Renewed Motion for Summary Judgment (ECF No. 39).10

phrase “expeditious processing , ” because

— as M anual 1611

- 020 states

— the officer facing the DFC “is normally in a nonproductive status awaiting f in al determination of the request, ” so it is in the interest of the Navy , and the officer in question , to act expeditiously. ( Pl. ’s Mot. Summ J.
at 5

- 6). M agneson argues that his own experience bears this out : had the five

- day rule been
followed , his DFC would have been resolved in August 2010. (Pl. ’s Ren. Mot. Summ. J at 4 ). Instead, he remained in “ nonproductive ” status until May 2011, when he was finally given
transfer orders. ( Id

. at 3). Magneson also points out that there were no unusual circ umstances connected to his DFC that excused any delay beyond five days. ( Pl.’ s Mot. Summ. J. at 5 ). 4
Defendant argues that the Board clearly explain ed its decision , and since the c ourt’s role
is to determine only whether “the decision making proc ess was deficient, not whether the decision was correct,” summary judgment for Defendant is proper. ( Def. ’s Ren

. Mot. Summ. J.
at 8 ) (citing Dickson , 68 F.3d at 1405 ) ( internal citation omitted)

. Defendant also argues that if the provision is mandatory , a de lay of one day for a single endorsement in the entire chain of
command would cause a per se violation voiding the DFC , which is an absurd result not required by the text of the rule. (Def.’s Mot. Summ. J. at 13 )

. On remand, the Board reconsidered Plaintiff’s five

- day rule argument , and found that: [Magneson’s] a llegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by t he Board consisted of your

4 Plaintiff attempts to distinguish the deference the co urt owes in the normal APA military board review context from his own situation. In his motion for summary judgment, he argues that no deference need be afforded by a court when “circumstance[s] arise[] when the courts are asked to determine whether the m ilitary had followed its self

- imposed procedural regulatory scheme.” (Pl.’s Mot. Summ. J. at 3). Plaintiff then cites to authority which does not support this proposition. For example, his citation to Bond v. U.S . 47 Fed. Cl. 641 (2000) is taken complet ely out of context. Bond noted that “although the deference accorded to military actions by the judiciary is substantial, it is not unlimited.” Id . at 647. This is far different from saying no deference is afforded. Further, the discussion from which P laintiff’s quote is excerpted is about the justiciability of a claim; e.g., that an Article III court may hear challenges on whether or not the military followed its own regulations, “because by their nature the procedures limit the military's discretion.” Id. at 648. Similar flawed logic attends to every other citation Plaintiff produces in support of his proposition that the court owes no deference to the Board’s decision. As the D.C. Circuit recently held in a review of the Board’s decision to deny a Naval Officer’s request to correct his record, “the arbitrary and capricious standard is even more deferential in the military records context.” Jackson , 808 F.3d at 936

.11

application, together with all material submitted in support thereof, the Board’s file on your previous case, and the applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion furnished by the Navy Personnel Command . . . [and] the Board found that the evidence submitted was insufficient to establish the existence of probably material error or injustice. (AR 136). After considering all of these materials , the B oard found the five

- day rule to be discretionary due to the use of the word “should .” (AR 137). Under the deferential standard of
review to which the c ourt must adhere , the B oard’s decision

- making process and proffered
response is not deficient, because the analysis of the text and related provisions provides “ a rational connection between the facts found and the choice made.” Motor Vehicle M f rs . Ass’n , 463 U.S. at 43 (internal citation and quotation marks omitted). Magneson’s case stands in contrast to Dickson v. Secretary of Defense , where the court found a military corrections board’s decision

- making flawed

. In that case, Plaintiffs applied for an upgrade to their discharge classifications, and the Army Board denied the ir requests to waive
the applicable sta tute of limitations period. Dickson , 68 F.3d at 1 398. The Court found the Army Board’s decision arbitrary and capricious because “ the Board failed to provide anything approaching a reasone d explanation for its decisions

. ” Id. at 1404

- 05. Specifically, the Board provided only a recitation of the applicable statutory language without giving an account of how it reached its decision, nor did it connect the facts of the case to the decision it made. Id

. In Magneson’s case, the B o ard discussed how the text of Manual 1611

- 0202(11)(h) and the fact that Magneson was not prejudiced led to its decision. The court is tasked “ only with gauging the adequacy of the Board's decision making process ,” and finds here that it was

. Jackson v. Mabus , 919 F. Supp. 2d 117, 121 (D.D.C. 2013) , aff’d sub nom

. , 808 F.3d 933 (D.C. Cir. 2015)

.

b. Normal Transfer or Planned Rotation Date Magneson ’ s second claim involves M anual 1611

- 020(1)(a) :12

Detachment for Cause (DFC) is the administrative removal of an officer, whether on active duty or in the Selected Reserve, from the officer’s current duty assignment before their normal transfer or planned rotation date. An approved DFC waives minimum time on station (MTS) and prescribed tour length (PTL) requirements for releasing permanent change of station (PCS) funds. Both parties agree that prior to the initiation of the DFC process, Magneson’s P lanned R otation
D ate was February 2011, and that Magneson’s DFC was approved on March 10, 2011. Magneson argues that the B oard ’s decision is arbitrary and capricious because the text of
the Manual and Bureau of Navy Personnel Instruction 1610.10B required Navy Personnel Command to approve his DFC prior to February 2011

. ( See Pl. ’s Mot. Summ. J. at 7 ). Magneson claims the term “normal transfer date” is a synonym for P lanned R otation D ate , so the
B oard’s position that his norm al transfer occurred in May has no grounding in law or regulation
and is an abuse of discretion

. ( Id . at 7

- 10 ). Magneson also asserts that moving his P lanned
R otation D ate from February 2011 to March 2011 was an attempt to evade the provisions of
M anual 1611

- 020. ( Id

. at 7

- 8). 5
Defendant argues that the B oard properly read M anual 1611

- 020 to mean that t he DFC
needed only to be approved prior to the date Magneson was actually transferable

— which
occurred in Ma y . ( Def. ’s Ren. Mot. Summ. J. at 8

- 9 ). Defendant also argues that any delays in processing occurred because the Commanding Officer was required to wait until complet ion of the administrative process for final approval

. ( Id . at 9

- 10). Thus P laintiff’s assertions are mere speculation, a nd do not meet the standard required to overturn the Board’s finding. ( Id . at 10).
Under its defe rential standard of review , the c ourt’s role is not to determine whether the
final decision was correct

. “ A reviewing court will ‘ uphold a decision of less than ideal clarity if the agency ’ s path may reasonably be discerned. ’ ” Dickson, 68 F.3d at 1404 (citing Bowman

5 The impact of moving the Proposed Rotation Date from February 2011 to March 2 011 was not discussed by the Board on remand.13

Transp., Inc. v. Arkansas

– Best Motor Freight System , 419 U.S. 281, 286 (1974)). T he April
2015 B oard decision was not the result of a flawed decision

- making process; the Board , in a
multi

- paragraph analysis, made a “ rational connection ” between the facts surrounding Magn eson’s DFC, the regulation at issue, its purpose, and the timing of the DFC

. Motor Vehicle Mfrs. Ass'n , 463 U.S. at 43 (internal citation and quotation marks omitted). Having so found, the court grants the Defendant’s motion for summary judgment.
IV. CONCLUSION For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED, and Plaintiff’s motion for summary judgment is DENIED. A corresponding order shall issue separately.

Date: March 31, 2016 

## Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge