                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 04 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


CHEN-LI SUNG, M.D.,                              No.   14-15283

              Plaintiff-Appellant,               D.C. No.
                                                 1:13-cv-00024-JMS-KSC
 v.

DENNIS D. DOYLE, Brigadier General,              MEMORANDUM*
in his official capacity as Commander of
Tripler Army Medical Center; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Hawaii
                    J. Michael Seabright, Chief Judge, Presiding

                      Argued and Submitted October 19, 2016
                                Honolulu, Hawaii

Before: WALLACE, FARRIS, and WATFORD, Circuit Judges.

      Chen-Li Sung appeals from the district court’s entry of summary judgment

in the defendants’ favor. We conclude that the decision of the Army Board for

Correction of Military Records (ABCMR) not to change Sung’s military records



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                          Page 2 of 3
was supported by substantial evidence and was neither arbitrary nor capricious.

See Burns v. Marsh, 820 F.2d 1108, 1110 (9th Cir. 1987). (Notwithstanding

Sung’s resignation from the Army, we conclude that his appeal is not moot because

he seeks a correction of his military records to show that he had been reinstated

into the Army’s general surgery residency program prior to his resignation.)

      1. Sung has not raised a triable issue as to whether the Army’s decision to

dismiss him from the residency program relied on impermissible military readiness

factors, as opposed to academic ones. The ABCMR determined that Sung’s

dismissal was based on “his regression as evidenced by his failure to complete

assignments and to convincingly show he was competent to practice

independently, without supervision as a surgeon.” That issue had dominated

Sung’s dismissal hearing, at which the program director and Sung’s probation

ombudsman testified that Sung arrived late to his rounds, was delinquent in

preparing for his most recent morbidity and mortality conference, and generally

did not display consistent competence as a surgeon. Sung himself testified at the

hearing to “breaks in discipline” and a failure to complete certain assignments in a

timely manner.

      To support his claim that the Army’s decision instead relied on military

readiness factors, Sung identifies the program director’s memo relieving him from
                                                                           Page 3 of 3
duty and isolated testimony by his probation ombudsman. Although the memo

mentioned that “deployment is almost certain” and that surgeons must be “ready to

perform in any environment,” the crux of the memo is the director’s determination

that Sung lacked “sufficient competence to enter practice without direct

supervision.” That conclusion is supported in the memo by Sung’s own

assessment that his performance was adequate only “60% of the time.” Likewise,

the ombudsman’s testimony primarily concerned whether Sung had the

competence to be a surgeon, and he discussed deployment only in response to a

single question on the subject.

      2. Nor did Sung raise a triable issue as to whether the Army failed to

consider the testimony of the two psychiatrists he called at his dismissal hearing.

Each psychiatrist was questioned at length by several members of the dismissal

committee, and the ABCMR expressly referred to their testimony in its decision.

Moreover, the psychiatrists’ testimony did not compel the Army to retain Sung. In

fact, Sung’s treating psychiatrist repeatedly suggested that Sung’s performance

issues may have been unrelated to his depression, which is consistent with the

Army’s decision to dismiss him.

      AFFIRMED.
