UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

JEFFREY A. SCHMIDT, 

Plaintiff,

v.

RICHARD V. SPENCER, Secretary,

U.S. Department of the Navy,

Defendant.

Civil Action No. 14-1055 (DLF)

MEMORANDUM OPINION

Jeffrey Schmidt challenges a 2011 decision by the Board for Correction of Naval 

Records. The Board declined to reconsider a decision it made nineteen years earlier. In that 

1992 decision, the Board refused to change the separations disability rating assigned by the Navy 

when Schmidt was discharged in 1989. Before the Court is the Secretary of the Navy’s Motion 

for Summary Judgment. Dkt. 33. For the reasons that follow, the Court will grant the motion.

I. BACKGROUND

A member of the military “may be separated” from the military if a military secretary, 

such as the Secretary of the Navy, determines that the member is “unfit to perform [his or her]

duties” due to physical disability. 10 U.S.C. § 1203(a). The secretary assesses whether the 

member can perform his or her duties through a physical evaluation board. See Disability 

Evaluation System, Department of Defense Instruction No. 1332.18 at 16–19 (Aug. 5, 2014). 

The physical evaluation board may recommend separation and certain disability ratings that 

affect pay and benefits upon separation. See 10 U.S.C. §§ 1203(b), 1212(a); Department of 

Defense Instruction No. 1332.18 at 18; Navy Disability Evaluation Manual, SECNAVINST 
2

1850.4E § 3801. The “sole standard” for separations disability ratings is fitness to perform 

military duties. SECNAVINST 1850.4E §§ 3301, 3306. This suit arises from Jeffrey Schmidt’s 

encounter with a physical evaluation board. 

Schmidt enlisted in the United States Marine Corps in 1983. Administrative Record 

(AR) 18, Dkt. 30. During his time in service, he served as a field radio operator, rose to the rank 

of corporal, and was awarded the Good Conduct Medal and the Sea Service Deployment Ribbon. 

Id. In December 1988, a Navy physical evaluation board found that Schmidt had suffered from

non-combat-related lower back pain for several years, and a water-skiing incident had caused the 

pain to increase in the months before the evaluation board. AR 76, 80. Due to the pain, Schmidt 

had been unable to run for the prior two and a half years, AR 80, and according to his 

commanding officer, Schmidt’s injuries “ke[pt] him from participating in physical fitness tests, 

field duty, troop marches, any prolonged walking or standing and other activities required of the 

basic Marine,” AR 83. The physical evaluation board concluded that Schmidt was unfit for full 

duty and would not be fit for full duty within a reasonable period of time. AR 76, 81. The board 

also rated Schmidt’s lower back condition as 10% disabling. AR 76. After receiving counseling 

on the board’s findings from a Disability Evaluation System counselor, Schmidt signed a 

certification stating that he accepted the findings of the physical evaluation board. AR 78.

The next month, after the Navy Judge Advocate General performed a legal review, the 

physical evaluation board notified the Commandant of the Marine Corps of its finding that 

Schmidt was unfit for duty and recommended that Schmidt be separated from the Marine Corps
3

under 10 U.S.C. § 1203. AR 74, 77. On March 1, 1989, the Marine Corps honorably discharged 

Schmidt with a 10% separations disability rating and severance pay. AR 18.1 

Such decisions, however, are not always final. A military secretary “may correct any 

military record”—including records related to separations—“when the [s]ecretary considers it 

necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1). A secretary 

makes such corrections through civilian boards for correction, established under procedures 

promulgated by the secretary. Id. § 1552(a)(1), (a)(3)(A). Relevant here, the Secretary of the 

Navy’s Board for Correction of Naval Records “determin[es] the existence of error or injustice in 

the naval records of current and former members of the Navy and Marine Corps” and “take[s]

corrective action on the Secretary’s behalf when authorized.” 32 C.F.R. § 723.2(b). Also, the 

Board for Correction may reconsider its prior decisions in certain narrow circumstances: “After 

final adjudication, further consideration will be granted only upon presentation by the applicant 

of new and material evidence or other matter not previously considered by the Board.” Id. 

§ 723.9. New evidence is “evidence not previously considered by the Board and not reasonably 

available to the applicant at the time of the previous application.” Id. To be material, evidence 

must be “likely to have a substantial effect on the outcome.” Id.

Schmidt first availed himself of this review process when he submitted an application to 

the Board for Correction in 1990. AR 58. The application requested that the Board for

Correction increase his 10% disability rating because the physical evaluation board’s rating was 

 

1 At times, the parties refer to medical “retirement,” which is generally governed by 10 U.S.C. 

§ 1201(a). See, e.g., Def.’s Mot. at 14, Dkt. 33; Pl.’s Opp’n at 10, Dkt. 37. To be medically 

retired when discharged, however, Schmidt needed to be at least 30% disabled, which he was 

not. 10 U.S.C. § 1201(b)(3)(B) (1988); accord 10 U.S.C. § 1201(3)(B) (current code). 

Accordingly, Schmidt was “separated” under 10 U.S.C. § 1203(a), not medically retired. See AR 

74, 77. 
4

“unjust” and his “medical evaluations were incomplete and unjust.” Id. In support, the 

application noted that the Department of Veterans Affairs (VA) had assigned him a 34% 

disability rating, “with an upgrade pending, effective date 04-01-89.” Id. The Board for

Correction ultimately denied Schmidt’s application in 1992, explaining that the higher VA rating 

was “insufficient to demonstrate that [Schmidt’s] discharge from the Marine Corps was 

erroneous, because the VA, unlike the military departments, may assign disability ratings 

without regard to the issue of fitness for military service.” AR 39.

Sixteen years later, in 2008, Schmidt asked the Board for Correction to reconsider its 

1992 decision. AR 11–41; see also Def.’s Mot. at 3 n.1, Dkt. 33. Schmidt again challenged the 

physical evaluation board’s 10% separations disability rating by pointing to the higher rating 

assigned by the VA. AR 14–16. He attached a 2007 VA letter showing that his total VA rating 

had increased to 100%, including a 70% disability rating for “major depressive disorder/PTSD,” 

40% for “degenerative arthritis of the spine,” 30% for “hypertensive heart disease,” and 10% for 

both clavicle/scapula impairment and “residuals of foot injury.” AR 17. According to Schmidt, 

“[t]o go from a 10% service-connected military medical discharge to a 100% service-connected 

VA disability evaluation offends common sense.” AR 15. The Board for Correction’s Acting 

Executive Director rejected Schmidt’s request for reconsideration, AR 7, but this decision was 

later set aside voluntarily and the request was remanded to the Correction Board for further 

consideration, AR 9–10. 

On remand, the Board for Correction denied Schmidt’s request for reconsideration in 

2011. AR 1–4. The Board for Correction stated that Schmidt’s request was untimely and did not 

present new material evidence. Id. The Board therefore refused to reconsider its 1992 decision. 

AR 3. 
5

In 2014, Schmidt filed this action against the Secretary of the Navy, asserting that the 

Board for Correction’s 2011 decision was arbitrary and capricious, unsupported by substantial 

evidence, and contrary to law. Compl. at 7, ¶¶ 2, 5, Dkt. 1.2 The Court dismissed the action for 

lack of jurisdiction, Dkt. 19, but on appeal, the Secretary’s counsel noted that the Court’s 

decision may have conflicted with D.C. Circuit precedent. Therefore, the Secretary moved to 

vacate the Court’s decision and remand for further proceedings, which the D.C. Circuit did in 

late 2016. See Dkt. 22-1; see also Schmidt v. Mabus, No. 15-5298 (D.C. Cir.), Doc. 1643066

(Secretary’s motion), Doc. 1648618 (per curiam order). Following the remand, the Secretary 

moved for summary judgment in April 2017, Dkt. 33, and the case was reassigned to the 

undersigned judge on December 5, 2017. 

II. LEGAL STANDARDS

A court grants summary judgment if the moving party “shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A 

“material” fact is one with potential to change the substantive outcome of the litigation. See 

Liberty Lobby, 477 U.S. at 248; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A 

dispute is “genuine” if a reasonable jury could determine that the evidence warrants a verdict for 

the nonmoving party. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. When a 

plaintiff seeks review of an agency decision under the Administrative Procedure Act (APA), 

summary judgment “serves as the mechanism for deciding, as a matter of law, whether the 

agency action is supported by the administrative record and otherwise consistent with the APA 

 

2 When Schmidt filed his complaint, Ray Mabus was the Secretary of the Navy, but Richard 

Spencer has since taken that position and is automatically substituted as the defendant. See Fed. 

R. Civ. P. 25(d).
6

standard of review.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006). “[T]he 

entire case . . . is a question of law” and the district court “sits as an appellate tribunal.” Am. 

Biosci., Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (quotation marks and footnote 

omitted).

The APA requires courts to set aside agency decisions that are arbitrary and capricious, 

not in accordance with law, or unsupported by substantial evidence. 5 U.S.C. § 706(2).

3

 When 

the agency decision was made by a military correction board, judicial review proceeds “under an 

‘unusually deferential application of the arbitrary or capricious standard.’” Roberts v. United 

States, 741 F.3d 152, 158 (D.C. Cir. 2014) (quoting Kreis v. Sec’y of the Air Force, 866 F.2d 

1508, 1514 (D.C. Cir. 1989)). This “unusual deference” arises from the statute permitting the 

Secretary of a military department—acting through correction boards—to correct military 

records “when the Secretary considers it necessary . . . .” 10 U.S.C. § 1552(a)(1); see also 

Roberts v. Harvey, 441 F. Supp. 2d 111, 119 (D.D.C. 2006). Due to that language, “[i]t is simply 

more difficult to say that the Secretary has acted arbitrarily . . . 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. 

Accordingly, “[t]he question is not what [the court] would have done, nor whether [the 

court] agree[s] with the agency action. Rather, the question is whether the agency action was 

 

3 The arbitrary and capricious standard of § 706(2)(A) is a “catchall” that generally subsumes the 

“substantial evidence” standard of § 706(2)(E). See Ass’n of Data Processing Serv. 

Organizations, Inc. v. Bd. of Governors of Fed. Reserve Sys., 745 F.2d 677, 683–84 (D.C. Cir. 

1984) (“When the arbitrary or capricious standard is performing that function of assuring factual 

support, there is no substantive difference between what it requires and what would be required 

by the substantial evidence test, since it is impossible to conceive of a ‘nonarbitrary’ factual 

judgment supported only by evidence that is not substantial in the APA sense . . . .”); accord Safe 

Extensions, Inc. v. FAA, 509 F.3d 593, 604 (D.C. Cir. 2007).
7

reasonable and reasonably explained.” Jackson v. Mabus, 808 F.3d 933, 936 (D.C. Cir. 2015); 

see also Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) 

(“The 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.”). The court must determine “only whether the 

Secretary’s decision making process was deficient, not whether his decision was correct,” and 

“[p]erhaps only the most egregious decisions may be prevented under such a deferential standard 

of review.” Kreis, 866 F.2d at 1511, 1515. “This deferential standard is calculated to ensure that 

the courts do not become a forum for appeals by every soldier dissatisfied with his or her ratings, 

a result that would destabilize military command and take the judiciary far afield of its area of 

competence.” Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). Indeed, “[o]rderly 

government requires that the judiciary be as scrupulous not to interfere with legitimate [military]

matters as the [military] must be scrupulous not to intervene in judicial matters.” Id. (quoting 

Orloff v. Willoughby, 345 U.S. 83, 94 (1953)).

III. ANALYSIS

To begin, a brief word about the scope of review. “It is black-letter administrative law 

that in an [APA] case, a reviewing court should have before it neither more nor less information 

than did the agency when it made its decision.” CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 

2014) (internal quotation marks omitted). Therefore, this Court reviews only the record before 

the Board for Correction in 2011 when it refused to reconsider its 1992 decision. Review is not 

based on extra-record documents submitted with Schmidt’s opposition brief, such as an affidavit 

signed by Schmidt in 2017 and documents concerning the VA’s disability decisions. See Dkt. 

37-1; Dkt. 37-2. 
8

Turning to the Board’s 2011 decision refusing to reconsider its 1992 decision, the inquiry 

is: “Did the Board reasonably conclude that [Schmidt] had not come forward with any new and 

material evidence, or other matter not previously considered by the Board, that would support 

amendment of his record?” Jackson, 808 F.3d at 936; see also 32 C.F.R. § 723.9. The Board for 

Correction denied Schmidt’s request for reconsideration because the request was not timely filed 

and was not accompanied by new material evidence. AR 1–4. Schmidt’s counsel 

“acknowledged that [the] request was not timely,” but “argued that the Board should consider it 

because [it] raised unspecified ‘new facts, arguments and evidence.’” AR 1. The Board for 

Correction responded:

The Board found your new argument to be little more than a reiteration of your 

previous argument, i.e., that the conditions rated by the Department of Veterans 

Affairs (VA) after you were discharged from the Marine Corps rendered you unfit 

for military duty prior to your discharge, and that the Department of the Navy 

should have assigned the same disability ratings assigned by the VA. The Board 

concluded that in view of your unexplained fifteen-year delay in submitting your 

request for further consideration of your application, and your failure to submit 

significant new evidence or argument in support of that request, you have not 

demonstrated that it would be in the interest of justice for the Board to excuse 

your failure to submit the request in a timely manner.

AR 1–2. Schmidt submitted some new information, the Board continued, but the information 

was not material: 

Although you contend that you were unfit for duty by reason of physical disability 

in 1989 due to a mental disorder, cardiovascular disease, and conditions of a toe, 

ankle and shoulder, in addition to the unfitting back condition, you did not submit 

any new material evidence in support of that contention. . . . The [new] documents 

. . . mostly pertain to your condition after you were separated from the Navy 

and/or contain recitations of subjective reports concerning your military and 

medical history that you presented to the authors of those documents. There is no 

credible evidence that the findings made by the Physical Evaluation Board in your 

case represent anything other than fair and impartial assessments of your fitness 

for duty and determination of an appropriate disability rating for the condition that 

it determined was unfitting.

AR 2–3.
9

The Board’s conclusion was reasonable. When requesting reconsideration, Schmidt 

offered evidence of VA rating upgrades that occurred after his 1989 discharge. In particular, he 

attached a 2007 VA letter showing that his total VA rating had increased to 100%. AR 17. He 

also attached letters describing his conditions, sent from private physicians to the VA in 1991, 

1992, 1993, 1996, 1998, and 1999. AR 21–38. While acknowledging that the submissions were

new, the Board reasonably concluded that it was not material. In other words, the new material 

was unlikely to substantially affect the Board’s 1992 decision that the Navy did not err or inflict 

injustice when assigning Schmidt’s separations disability rating in 1989. See 10 U.S.C. 

§ 1552(a)(1); 32 C.F.R. §§ 723.2(b), 723.9. Critically, separations disability ratings require 

different assessments than VA disability ratings: the military and the VA use the same disability 

rating schedule (the VA Schedule for Rating Disabilities), but in entirely different ways. See 

Stine v. United States, 92 Fed. Cl. 776, 795 (Fed. Cl. 2010), aff’d, 417 F. App’x 979 (Fed. Cir. 

2011); Gay v. United States, 116 Fed. Cl. 22, 32 & n.9 (Fed. Cl. 2014); see also Pl.’s Opp’n at 8, 

Dkt. 37 (“Granted, the Board is correct by stating that VA medical treatment is not controlling 

over [physical evaluation board] matters.”). Separations hinge on whether a servicemember is 

“unfit to perform” his or her specific military duties. 10 U.S.C. § 1203(a). Thus, separations

disability ratings assess a servicemember’s fitness for service based on a “snapshot of the service 

member’s condition at the time of separation from the service,” and the ratings “determine what 

compensation the service member is due for the interruption of his military career.” Stine, 92 

Fed. Cl. at 795; accord Jardon v. United States, No. 10-738C, 2013 WL 677028, at *18 (Fed. Cl. 

Feb. 14, 2013).

In contrast, the VA “determine[s] disability ratings based on an evaluation of the 

individual’s capacity to function and perform tasks in the civilian world.” Stine, 92 Fed. Cl. at 
10

795; see also Gay, 116 Fed. Cl. at 32. The VA “holistically examin[es] the individual’s ability to 

engage in civilian employment” and “evaluates and adjusts disability ratings throughout the 

individual’s lifetime.” Stine, 92 Fed. Cl. at 795. Due to the differences between separations 

disability ratings and VA disability ratings, “the rating systems . . . often produce disparate 

results,” Gay, 116 Fed. Cl. at 32, and “a comparison for the sake of finding error [is] of little 

value,” Pomory v. United States, 39 Fed. Cl. 213, 219 (Fed. Cl. 1997); see also Zappley v. United 

States, 135 Fed. Cl. 272, 277–78 (Fed. Cl. 2012) (“Ordinarily, then, the []VA’s ratings are not 

particularly helpful to the [Board for Correction] in assessing whether the [physical evaluation 

board] made a correct rating.”); SECNAVINST 1850.4E § 3802 (“Because of differences 

between military department and []VA applications of rating policies for specific cases, 

differences in ratings may result.”). Accordingly, Schmidt’s submissions indicating that the VA 

increased his VA disability rating in the decades after his separation do not establish that the 

Navy erred by assigning him a lower separations disability rating in 1989. “The military 

constitutes a specialized community governed by a separate discipline from that of the civilian,” 

Orloff, 345 U.S. at 94, and when assigning separations ratings, “the Navy may—and routinely 

does—find that the []VA’s higher rating is not probative due to that agency’s distinct rating 

standard, namely the []VA’s focus on the effect of the disability on the veteran’s civilian 

employment,” Stine, 92 Fed. Cl. at 796.

Even when examined in greater detail, Schmidt’s new submissions to the Board for 

Correction appear no more material. See 32 C.F.R. § 723.9. First of all, the Board for 

Correction reasonably discounted the many letters sent by private physicians to the VA in the 

1990s because the letters “contain recitations of subjective reports concerning [Schmidt’s]
11

military and medical history that [Schmidt] presented to the authors of those documents.” AR 2; 

see Stine, 92 Fed. Cl. at 796–97.

Second, the new submissions do not show that the Navy erred when evaluating Schmidt’s 

fitness for duty. Navy physical evaluation boards assign disability percentages only to 

conditions found “unfitting.” See SECNAVINST 1850.4E § 3301. Here, the physical evaluation 

board found one condition unfitting at the time of separation: Schmidt’s back pain, rated as a 

separations disability of 10%. AR 76. The physical evaluation board explicitly considered two 

other conditions—scapulothoracic bursitis and bilateral metatarsophalangeal joint arthralgia—

but found that those shoulder and foot conditions “are not separately unfitting and do not 

contribute to the unfitting conditions.” Id. After being counseled on these findings, Schmidt 

accepted them in 1989. AR 78. 

Schmidt’s new submissions document that he experienced further back pain (his one 

unfitting condition) as a civilian in the 1990s and 2000s, but they do not demonstrate that the 

physical evaluation board erred. The physical evaluation board specifically considered how back 

pain affected Schmidt’s fitness for military duty and assigned a disability rating accordingly. 

Moreover, some of Schmidt’s new submissions actually undercut his request. A 1992 letter 

noted that Schmidt suffered injuries in the Marine Corps, but the letter was prompted by neck, 

hand, back, and hip pain experienced by Schmidt “since a work accident suffered on February 

28, 1992,” three years after Schmidt’s discharge from the Marine Corps. AR 36. 

The new submissions also document that Schmidt experienced conditions in addition to 

back pain in the decades after separation, specifically clavicle/scapula impairment, residuals of a 

foot injury, a degenerative spine condition, hypertensive heart disease, depressive disorder, and 

PTSD. AR 2, 17. As to the first two conditions, the physical evaluation board specifically
12

considered shoulder and foot issues, but found that they “do not contribute to the unfitting 

conditions.” AR 76. And Schmidt offers no evidence that the physical evaluation board should 

have found any of the conditions unfitting in 1989. As the Board for Correction explained to 

Schmidt, “[t]hat you now suffer from a degenerative condition of your spine which severely 

limits its range of motion is not material evidence of the severity of your back condition” at 

separation. AR 2. At that time, rather, the physical evaluation board “found that you were able 

to flex forward to a point where your fingertips were within six inches from the floor before 

producing low back pain, which indicates you had a range of motion in excess of ninety degrees 

of forward flexion.” Id. (citation omitted). The Board for Correction acknowledged that 

Schmidt’s VA rating of 10% for hypertension increased to a 30% rating for hypertensive heart 

disease, and that Schmidt was “entitled to VA disability ratings for major depressive disorder 

and posttraumatic stress disorder on 26 April 2007.” Id. But as the Board for Correction 

explained to Schmidt, these facts “do not even suggest that you suffered from heart disease 

and/or a ratable mental disorder in 1989, or that the hypertension rendered you unfit for duty at 

the time of your discharge.” Id.; see also Stine, 92 Fed. Cl. at 795 (stating that it “would be 

erroneous” to equate a Navy rating of 10% for major depressive disorder and anxiety disorder—

the two conditions found unfitting—with a VA rating of 70% for anxiety disorder/major 

depressive disorder/PTSD, which was assigned in part for conditions not found unfitting). Based 

on this explanation, the Board for Correction reasonably concluded that Schmidt’s new 

submissions did not materially support amending his records. Because the Board’s decision was 

reasonable and reasonably explained, the Court will not disturb it. See Jackson, 808 F.3d at 936. 
13

CONCLUSION

For the foregoing reasons, the Court grants the Secretary of the Navy’s Motion for 

Summary Judgment. Dkt. 33. A separate order consistent with this decision accompanies this

memorandum opinion. 

________________________

DABNEY L. FRIEDRICH

United States District Judge

Date: August 8, 2018