             In the United States Court of Federal Claims
                                         No. 18-458C
                                   (Filed: October 23, 2019)

                                             )
 THOMAS E. BAILEY,                           )     Military Pay; Judgment on the
                                             )     Administrative Record; AFBCMR;
                      Plaintiff,             )     Burden of Proof; Deference to Medical
                                             )     Advisory Opinions
 v.                                          )
                                             )
 THE UNITED STATES,                          )
                                             )
                      Defendant.             )
                                             )

William E. Cassara, Evans, GA, for plaintiff.

Sonia M. Orfield, Civil Division, United States Department of Justice, Washington, DC,
with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr.,
Director, and Deborah A. Bynum, Assistant Director, for defendant. Lt. Col. Kris-Lana
Carter, Air Force Civil Litigation, Joint Base Andrews, MD, of counsel.

                                        OPINION

FIRESTONE, Senior Judge.

       Pending before the court are the parties’ cross motions for judgment on the

administrative record in this military pay case filed pursuant to Rule 52.1 of the Rules of

the United States Court of Federal Claims (“RCFC”) and the United States’ (the

“government”) partial motion to dismiss for failure to state a claim under RCFC 12(b)(6).

The plaintiff, Mr. Thomas E. Bailey, a former Army Lieutenant Colonel, filed his original

complaint on March 28, 2018, and an amended complaint on April 10, 2018. Mr. Bailey

alleges that the Air Force Board of Corrections for Military Records (“AFBCMR” or the
“Board”) failed to follow proper procedures and applied the wrong burden of proof when

refusing to grant Mr. Bailey the relief he requested.

       For the reasons that follow, the court GRANTS IN PART AND DENIES IN

PART Mr. Bailey’s motion for judgment on the administrative record and DENIES the

government’s motion to dismiss and motion for judgment on the administrative record.

I.     STATEMENT OF THE FACTS

       Mr. Bailey entered the United States Air Force on December 13, 1990. A.R. 225.

During the relevant timeframe, Mr. Bailey was a Strategic Communications Planner for

Supreme Headquarters Allied Powers, Europe. A.R. 225-26. On September 10, 2011,

near Mons, Belgium, Mr. Bailey attended an outdoor festival with his family. A.R. 319-

21. During the festival, Mr. Bailey admits to having consumed five alcoholic beverages

over a six-hour period. A.R. 321. Thereafter, Mr. Bailey became irritable and admittedly

grabbed a technical sergeant around the throat, bit and kicked a corporal, threatened to

kill a staff sergeant security forces member, and resisted apprehension by another

security forces member. A.R. 243-47. A Belgian Police officer present at the scene

considered it possible that environmental or medical issues may better explain Mr.

Bailey’s behavior. A.R. 722.

       A.     Article 15 Proceeding

       Following the September 10, 2011 incident, the Air Force, on October 27, 2011,

offered Mr. Bailey the right to have his misconduct addressed in an Article 15

proceeding, pursuant to 10 U.S.C. § 815, rather than through a court-martial proceeding.

A.R. 243. Eight days later, Mr. Bailey voluntarily accepted the Article 15 forum and


                                             2
waived his right to demand a court-martial proceeding. A.R. 243. In the Article 15

charging document, Mr. Bailey was charged with three offenses under the Uniform Code

of Military Justice (“UCMJ”) – resisting arrest, assault, and communicating a threat. A.R.

243-47. Brigadier Gen Charles K. Hyde made the Officer Selection Record decision.

       In his response to the Article 15 charges, Mr. Bailey stated that his last memory

from September 10, 2011 was of consuming a fifth alcoholic drink called Aquavit. A.R.

321. After consuming the beverage, he felt “suddenly disoriented and very hot.” Id. Mr.

Bailey also stated that he had been taking “two prescription-level antihistamines daily.”

A.R. 323-24. He further indicated that it was hot which may have caused dehydration and

heat stroke. Id. Mr. Bailey included a medical opinion from his physician, Lt Col (Dr.)

Marshall Mendenhall. A.R. 326-27, 723. Dr. Mendenhall opined that Mr. Bailey’s

misconduct was the result of “two different antihistamines used, dehydration, and alcohol

. . . .” A.R. 723; see A.R. 74, 355. Dr. Mendenhall also speculated that long-term

insomnia, sleep deprivation, and associated symptoms and a possible heat-related injury

may have been contributing causes. A.R. 723; see A.R. 74, 355. In addition, Mr. Bailey

included the statement of Col Paul Bell, Mr. Bailey’s superior officer, who after speaking

with Belgian Federal Police authorities, stated that he “[found] it reasonable to question

whether [Mr. Bailey’s] actions that evening were the result of underlying medical issues”

although he did not witness the events or know Mr. Bailey before he was arrested. A.R.

721; see A.R. 354-55.

       On October 26, 2011, Brig Gen Charles K. Hyde determined in the Article 15

proceeding that Mr. Bailey’s irresponsible use of alcohol resulted in him assaulting


                                             3
several individuals and caused offense to many others. A.R. 247. Brig Gen Hyde stated

that Mr. Bailey’s “actions on the night of 10 September 2011 were completely

unacceptable and caused serious discredit upon the United States Air Force and the

officer corps.” Id. In reaching this conclusion, Brig Gen Hyde stated that he had

considered all eyewitness statements, the oral and written presentations from Mr. Bailey

and the memorandum from Dr. Mendenhall. A.R. 26. He also concluded that the alternate

medical explanations were too remote and not persuasive. Id.

       Brig Gen Hyde imposed a forfeiture of $4,035 per month for two months and a

reprimand. A.R. 247. The terms of the reprimand stated, in part, that Mr. Bailey elected

not to appeal the Article 15 determination, and the Article 15 determination was placed in

Mr. Bailey’s Officer Selection Folder. A.R. 245.

       B.     Removal From Promotion List

       Prior to the events of September 10, 2011, Mr. Bailey had qualified for the

Calendar Year 10C (“CY10C”) Colonel Line Central Selection Board and had been

selected for promotion. A.R. 72-73. The Third Air Force Commander, Lt Gen Frank

Gorenc, was tasked with reviewing the decision to place the Article 15 decision in Mr.

Bailey’s Officer Selection Folder. A.R. 184. Lt Gen Gorenc concluded that Mr. Bailey

“knew he was taking prescription medicine and that he made the conscious decision to

consume alcohol while on prescription medicine” and “[t]herefore, he was responsible for

his actions.” Id. Lt Gen Gorenc accordingly upheld the decision to place the Article 15

decision in Mr. Bailey’s Officer Selection Folder. Id.




                                            4
       On December 28, 2011, the Air Force initiated action to remove Mr. Bailey’s

name from the CY10C promotion list due to Mr. Bailey’s violations of the UCMJ arising

from his actions at the festival. A.R. 72-73. The Secretary of the Air Force approved the

removal of his name from the promotion list on April 12, 2012. A.R. 73, 367. Mr. Bailey

subsequently received an overall recommendation of “Do Not Promote” on his promotion

recommendation form and was passed over for promotion. A.R. 71-72, 346.

       C.     Officer Performance Reports

       Following Mr. Bailey’s removal from the promotion list, he received several

Officer Performance Reports (“OPRs”). Of significance here, on June 29, 2012, Mr.

Bailey received an OPR for the reporting period ending January 7, 2012. A.R. 68, 251-

52. The OPR was referred to Mr. Bailey for response because of a comment regarding the

off-duty incident which had resulted in the Article 15 Nonjudicial Punishment for

violations of Articles 95, 128, and 134 of the UCMJ. A.R. 71-72, 345-47. Mr. Bailey

responded by challenging the inclusion of the off-duty incident in his OPR; he stated that

a military neurologist in the months after the September 10, 2011 incident had diagnosed

him with a seizure disorder and had determined that Mr. Bailey’s neurological disorder

could have caused his behavior at the festival. A.R. 71, 345. The initial rater of his report,

an additional rater, and the reviewer/commander considered his response but upheld the

OPR. A.R. 71.

       D.     Retirement

       Mr. Bailey applied for retirement on February 27, 2013. A.R. 73. The Air Force

informed Mr. Bailey that due to the Article 15, the Air Force needed to determine the


                                              5
appropriate grade for Mr. Bailey’s retirement. A.R. 238; see A.R. 231-32, 349-50. On

November 12, 2013, the Secretary of the Air Force determined that Mr. Bailey had

served satisfactorily in the grade of lieutenant colonel (O-5), and Mr. Bailey was

permitted to retire on June 1, 2014 in that grade. A.R. 223, 329. He was credited with

twenty-three years, five months, and eighteen days of active duty service and given an

overall service characterization of “honorable.” A.R. 329.

       E.     First AFBCMR Decision

       Mr. Bailey initially sought relief from the AFBCMR on January 29, 2013. A.R.

497. Of significance, Mr. Bailey requested that the Article 15 action be reversed, the

January 7, 2012 OPR be voided, and the decision to not promote him be reversed. Id.

       At the AFBCMR proceeding, Mr. Bailey presented medical evidence that was not

available during the Article 15 proceeding. He relied on a doctor’s visit on April 22, 2013

to support his contention that the September 10, 2011 incident was the consequence of a

seizure. See A.R 477. Mr. Bailey was seen by a Dr. Mark Fishel. A.R. 102-03. Dr. Fishel

diagnosed Mr. Bailey with “transient alteration of awareness,” a seizure disorder. A.R.

356. Dr. Fishel opined that it was a “reasonable conclusion” that a complex seizure could

explain Mr. Bailey’s behavior on September 10, 2011. A.R. 74-75, 77 102, 356. Dr.

Fishel noted that he found no evidence of an abnormal EEG or brain MRI after testing

Mr. Bailey. A.R. 102-03. Nonetheless, Dr. Fishel prescribed Mr. Bailey an anticonvulsant

as a prophylactic measure. Id. Mr. Bailey also presented evidence that the Department of

Veterans Affairs awarded him a service connection disability rating for seizures. A.R. 75,

95.


                                             6
       The AFBCMR denied Mr. Bailey’s request on July 15, 2014. A.R. 465. The

AFBCMR held that “there was insufficient evidence of an error or injustice to warrant

corrective action.” A.R. 465, 485.

       F.     Second AFBCMR Decision

       On August 22, 2014, Mr. Bailey submitted a request for correction of military

record which the AFBCMR treated as a request for reconsideration that did not meet the

necessary criteria for reconsideration. A.R. 492. However, the AFBCMR discovered that

Mr. Bailey had not received and was, therefore, not able to comment on one of the six

advisory opinions the AFBCMR sought from Air Force experts and relied on for the first

AFBCMR decision. On December 16, 2014, the Executive Director of the AFBCMR

wrote a letter to Mr. Bailey which stated that “an error did occur by not providing you a

copy of the . . . advisory [opinions] for your review and comment as requested.” A.R.

412. Thus, Mr. Bailey’s case was reopened, and Mr. Bailey was given thirty days to

submit comments. Id. Following receipt of his comments, a different panel of the

AFBCMR was convened to consider his comments but on June 9, 2015 found that “there

is insufficient evidence to warrant corrective action.” A.R. 389-91. The AFBCMR found

that “it was more likely than not[] that the applicant’s alcohol intake was a major

contributing factor to his actions.” A.R. 390.

       G.     Third AFBCMR Decision

       Subsequently, Mr. Bailey alleged that the AFBCMR had erred again, arguing

among other things that the panel did not consider several filings he had made before

issuing its decision. A.R. 372-79. The Executive Director of the AFBCMR wrote Mr.


                                             7
Bailey a letter stating that he would be granted another opportunity to apply for

AFBCMR consideration due to the “administrative errors that took place during the

processing of [his] case.” A.R. 370. The Executive Director stated that Mr. Bailey

“should be provided an opportunity to re-apply to the AFBCMR where [Mr. Bailey’s]

case will be prepared for consideration by a new AFBCMR panel.” Id.. Additionally, the

Executive Director stated “[t]o preclude the possibility that the new panel could be

prejudiced by the original panel’s decision in your case,” Mr. Bailey should submit new

forms for relief. A.R. 370. The Executive Director indicated that he was “going to great

lengths to ensure that [Mr. Bailey’s] case is afforded a clean review by a new panel.”

A.R. 370.

       Mr. Bailey submitted two new requests for relief to the AFBCMR on December 1,

2015, again seeking removal of the Article 15 and requesting that he be promoted

retroactively and given back pay. A.R. 83, 167. Because “the requests for removal of the

Article 15 and promotion propriety overlap and correspond to the same [September 10,

2011] event,” the AFBCMR combined the two requests into a single case file. A.R. 69.

       In his requests, Mr. Bailey asserted that he was with his wife at the September 10,

2011 festival. A.R. 105. He recalled being offered a bag of ice because his face had

turned red, which he asserted was a sign of a seizure. Id. He recalled being hot and

feeling disoriented after consuming a small amount of alcohol and then claimed to have

no memory of the events that next transpired. A.R. 106. After he was offered the bag of

ice, his wife asked someone to watch him while she left to find a friend to see if the

friend needed a ride. Id. Mr. Bailey provided numerous references to literature on


                                             8
seizures to show that his symptoms were consistent with seizures. Id. Mr. Bailey stated

that witnesses described dramatic changes in his facial expressions and mood, going from

combative – grabbing and hitting two individuals – to asking witnesses for help and

speaking gibberish. A.R. 108-09. Mr. Bailey asserted that his behavior was the result of a

complex partial seizure and not alcohol intoxication. A.R. 109-17.

       On June 1, 2017, the AFBCMR considered Mr. Bailey’s requests to remove the

Article 15 from his record, void the promotion propriety action removing his name from

the colonels’ promotion list, retroactively promote him to the grade of colonel, and award

him back pay with interest. A.R. 80. In considering Mr. Bailey’s request, the AFBCMR

sought input from the Air Force Legal Operations Agency, Military Justice Division,

various sections of the Air Force Personnel Command, a medical opinion from Dr.

Horace Carson, and a psychiatric opinion from Dr. Natalya Chernyak. A.R. 81, 336-67.

The AFBCMR considered a total of eight advisory opinions, two of which – Dr. Carson’s

and Dr. Chernyak’s – recommended granting the requested relief. A.R. 358, 367.1

       Dr. Carson recommended that the AFBCMR consider granting Mr. Bailey’s

requested relief. A.R. 74-75, 353-58. Dr. Carson found it significant that Mr. Bailey had,

prior to the September 10, 2011 incident, reported symptoms including anxiety, “spells,”



1
  Five of the remaining advisory opinions recommended denying the relief sought, and one
offered no opinion as it was for information only. A.R. 339, 343, 346, 350-51, 361, 364. Of
particular note, the Air Force Legal Operations Agency considered the fact that Mr. Bailey’s
treating neurologist concluded that a complex seizure was a “reasonable possibility” to explain
Mr. Bailey’s behavior. A.R. 338. However, the opinion did not consider the medical evaluations
by Dr. Carson or Dr. Chernyak. Based on the evidence available at the time, the opinion
ultimately found that the original nonjudicial punishment should not be overturned. A.R. 339.


                                               9
and difficulty finding words when talking to groups of people. A.R. 75, 354, 357. This, in

combination with Mr. Bailey’s subsequent diagnosis of a seizure disorder by the

Department of Veterans Affairs and the precautionary treatment by Dr. Fishel, led Dr.

Carson to recommend favorably considering Mr. Bailey’s petition. A.R. 357-58. Dr.

Carson wrote that he previously opined that Mr. Bailey’s “behavior could be solely

attributed to simple alcohol intoxication.” A.R. 357. However, because of the evidence

Mr. Bailey “presented from a reputable Epilepsy authority, the poorly defined symptoms

he reported prior to September 2011, coupled with the reality that he has since been

formally diagnosed with and treated for a seizure disorder” (footnote omitted), Dr.

Carson decided to change his opinion to recommend that the Air Force “favorably

reconsider[ed Mr. Bailey’s] petition for establishing a causal relationship between his

actions and a medical condition.” A.R. 357.

       Dr. Carson acknowledged that it was not possible to eliminate overindulgence in

alcohol as a contributing cause of his behavior in 2011 because “[u]nfortunately, there

was no opportunity to conduct a critical objective clinical assessment [of Mr. Bailey] at

the time, such as breathalyzer test, blood alcohol level, drug screening, or a urinalysis for

evidence of rhabdomyolysis from heat illness . . . .” A.R. 75, 357. Dr. Carson thus

recommended that a mental health professional review Mr. Bailey’s records to provide an

opinion as to his behavior on the night in question could have been caused solely by

intoxication. A.R. 358.

       Dr. Chernyak provided the mental health opinion. She opined that there was

enough evidence to support the requested changes in Mr. Bailey’s record. A.R. 366-67.


                                              10
According to Dr. Chernyak, Dr. Fishel arrived at a reasonable conclusion in finding that

Mr. Bailey’s abnormal behavior could be a result of a complex seizure. A.R. 77, 367. In

Dr. Chernyak’s opinion, Mr. Bailey’s behavior at the festival was not consistent with an

intoxicated individual, was not consistent with Mr. Bailey’s description of how much he

had to drink, and was not consistent with Mr. Bailey’s prior, clean disciplinary history.

A.R. 77, 367. Dr. Chernyak stated that “it is highly unlikely that [Mr. Bailey’s] blood

alcohol level was tremendously elevated after 5 drinks consumed in 6 hours.” A.R. 367.

Thus, she found it unlikely that his behavior was caused by alcohol abuse. She also

opined that it is unlikely that his behavior was caused by “mind-altering substances” or

drug abuse. Id.

       Thus, Dr. Chernyak concluded based on the evidence presented that a medical

condition best explained Mr. Bailey’s behavior. Id. Dr. Chernyak found a medical

condition reasonable based on subsequent medical evidence. In addition, according to Dr.

Chernyak, diagnosing a seizure disorder is challenging and a negative EEG and MRI

would not fully exclude a seizure disorder. A.R. 77, 367. Dr. Chernyak found it

significant that prior to September 10, 2011 Mr. Bailey reported experiencing “spells,”

anxiety, difficulty finding words while talking to a group of people, and possible panic

attacks. A.R. 77, 367. Finally, Dr. Chernyak found it significant that Mr. Bailey reported

his seizure episodes had resolved after beginning antiepileptic medication. A.R. 77, 367.

For these reasons, Dr. Chernyak recommended granting Mr. Bailey relief and that the

facts allowed for “the possibility that an unknown medical condition could explain” Mr.

Bailey’s behavior on September 10, 2011. A.R. 77, 367.


                                            11
       After considering the evidence presented, the AFBCMR denied Mr. Bailey’s

request. A.R. 80. The AFBCMR stated that “[i]nsufficient relevant evidence has been

presented to demonstrate the existence of an error or injustice to warrant granting any of

the requested relief.” A.R. 78. The AFBCMR further stated that “it is our determination

the evidence does not clearly demonstrate it was a seizure or a medical condition which

caused [Mr. Bailey’s] misconduct on 10 September 2011.” Id. While the AFBCMR

acknowledged that Dr. Chernyak concluded that Mr. Bailey “was likely not overly

intoxicated after consuming five alcoholic drinks,” the AFBCMR relied the fact that

“there was not a determination to [Mr. Bailey’s] level of intoxication” as a grounds to

reject Dr. Chernyak’s conclusion. A.R. 78-79.

       The AFBCMR also found no evidence of error or an injustice in the processing of

the Article 15 and that Mr. Bailey was afforded all the requisite due process rights in the

Article 15 proceeding. The AFBCMR specifically considered Mr. Bailey’s contention

that the standard of proof for an Article 15 is proof beyond a reasonable doubt. A.R. 79,

336-39. The initiating commander’s decision, the AFBCMR determined, was based on

the evidence presented and the punishment was within the limits of his authority. A.R.

69, 79, 337-39. Furthermore, the AFBCMR noted that Mr. Bailey was aware of his right

to demand trial by court-martial where the standard of proof would be proof beyond a

reasonable doubt but had declined that opportunity. A.R. 79. For these reasons, the

AFBCMR concluded that Mr. Bailey failed to sustain his burden of establishing error or

injustice to warrant removal of his Article 15 and denied his request. A.R. 79-80.




                                             12
       The AFBCMR also stated in connection with Mr. Bailey’s requested “removal of

his referral OPRs” that the “OPR for the period ending 7 January 2012 was result of his

misconduct on 10 September 2011 and Article 15.” A.R. 80. Because the AFBCMR

found “no reason to remove the Article 15” it found “the OPR correct and accurate as

written.” Id.

       Finally, with respect to the promotion propriety action, the AFBCMR found that

Mr. Bailey’s commander had sufficient grounds to remove Mr. Bailey’s name from the

CY10C promotion list. A.R. 79. The AFBMCR determined that Mr. Bailey’s actions on

September 10, 2011 demonstrated an inability to satisfactorily serve as a colonel. A.R.

79-80. Accordingly, the AFBCMR denied Mr. Bailey’s requested relief.

       H.       Fourth AFBCMR Decision

       After issuing its third decision, the AFBCMR learned of another error in the

review of Mr. Bailey’s request. Although Mr. Bailey had submitted a rebuttal response to

the various advisory opinions sought by the AFBCMR on May 8, 2017, A.R. 8, 13-18,

21-62, the AFBCMR had not received Mr. Bailey’s response until August 24, 2017, after

it had issued its June 1, 2017 decision. A.R. 8. In his rebuttal to those advisory opinions,

Mr. Bailey asserted that his behavior was erratic and inconsistent with intoxication and

that the AFBCMR should follow the recommendations of Dr. Carson and Dr. Chernyak.

A.R. 13, 21-23, 31-33. Mr. Bailey also claimed that the subject matter experts who had

offered advisory opinions were influenced by the AFLOA/JAJM opinion recommending

denial of relief that he alleged were based on the wrong standard of proof. A.R. 21.

Additionally, he contended that the advisory opinions were prejudicial because they did


                                             13
not seek or review the medical opinions in this case. A.R. 22. Upon receiving Mr.

Bailey’s rebuttal response, the AFBMCR, sua sponte, elected to reconsider its June 1,

2017 decision considering Mr. Bailey’s rebuttal response. A.R. 10.

       On March 14, 2018, the AFBCMR issued its reconsideration decision. A.R. 7-8,

10-11. The AFBCMR addressed Mr. Bailey’s rebuttal but decided not to reverse its June

2017 decision. Id. The AFBCMR found “no evidence of an error or injustice in the

processing of [Mr. Bailey’s] [Article 15 action] or promotion propriety to warrant

granting the requested relief . . . .” A.R. 10. The AFBCMR stated that it found “the

applicant has provided no new relevant evidence to warrant granting the requested

relief.” Id. The AFBCMR further stated “other than his own uncorroborated assertions,

we find no evidence” that the AFLOA/JAJM evaluation unfairly influenced the subject

matter experts in Mr. Bailey’s case. Id.

       Regarding Dr. Carson’s and Dr. Chernyak’s conclusions that “a seizure disorder

could have attributed to his behavior,” the AFBCMR stated that Dr. Carson and Dr.

Chernyak “do not conclusively state it was a seizure which caused his misconduct and

that it was likely the result of multiple factors.” A.R. 10. The AFBCMR did not “find the

evidence provided by [Mr. Bailey] persuasive to conclude his misconduct was caused by

a medical condition.” Id. The AFBCMR also stated that Mr. Bailey’s other evidence was

not sufficient to persuade the AFBCMR “to conclude his conduct was caused by a

medical condition.” Id. The AFBCMR panel concluded that Mr. Bailey “displayed poor

judgment when he chose to combine alcohol with prescribed medication” and therefore

affirmed its June 1, 2017 decision to deny Mr. Bailey’s request. Id.


                                            14
II.    PROCEDURAL BACKGROUND

       On March 28, 2018, Mr. Bailey filed this complaint and then an amended

complaint on April 10, 2018. Mr. Bailey brings three types of claims. First, according to

Mr. Bailey, the AFBCMR made two procedural errors in “failing to incorporate [Mr.

Bailey’s] response to the advisory opinions into [the AFBCMR’s] decision” and “in 2018

reconsidering [Mr. Bailey’s] petition while using the decision of the 201[7] Board.”

Amend. Compl. ¶ 27-28. Second, Mr. Bailey alleges that the incorrect burden of proof

was applied in both the Article 15 and the AFBCMR proceeding. Amend. Compl. ¶ 30.

Third, Mr. Bailey alleges that the AFBCMR decision was arbitrary and capricious

because the AFBCMR’s medical and psychiatric consultants recommended granting his

requested relief, and the AFBCMR failed to give those opinions proper deference.

Amend Compl. at ¶¶ 21, 26, 29, 35.

       On April 3, 2019, after reviewing the parties’ cross motions for judgment on the

administrative record, the court issued an order seeking supplemental briefing on three

issues: 1. The authority of the AFBCMR to sua sponte reconsider its earlier decision; 2.

The deference owed to advisory medical opinions; and 3. The status of Mr. Bailey’s April

18, 2018 protest before the AFBCMR’s Executive Director. (ECF No. 22). Oral argument

was heard on September 18, 2019.

III.   STANDARD OF REVIEW

       The standard of review for an RCFC 52.1 motion for judgment upon the

administrative record depends on the specific law to be applied in the specific case. See

2006 Rules Committee Note to RCFC 52.1; Rominger v. United States, 72 Fed. Cl. 268,


                                            15
272 (2006). Review of AFBCMR decisions is governed by the standards for reviewing a

decision of a military correction board. Once a plaintiff seeks relief from a military

corrections board, the plaintiff must demonstrate that the board’s decision was arbitrary,

capricious, contrary to law, or unsupported by substantial evidence. Barnick v. United

States, 591 F.3d 1372, 1377 (Fed. Cir. 2010).

       This standard of review “does not require a reweighing of the evidence, but a

determination whether the conclusion being reviewed is supported by substantial

evidence.” Stein v. United States, 121 Fed. Cl. 248, 267 (2015) (quoting Heisig v. United

States, 719 F.2d 1153, 1157 (Fed. Cir. 1983) (emphasis in original)). When substantial

evidence supports a board’s action, and that action is reasonable given the evidence

presented, the court will not disturb the result because it does not sit as a “super

correction board.” Van Cleave v. United States, 70 Fed. Cl. 674, 678-79 (2006) (internal

quotation marks and citation omitted). There is a “strong, but rebuttable, presumption”

that the military discharges its duties “correctly, lawfully, and in good faith.” Bernard v.

United States, 59 Fed. Cl. 497, 501 (2004) (quoting Hary v. United States, 223 Ct. Cl. 10,

17 (1980)); Myers v. United States, 50 Fed. Cl. 675, 689 (2001). Questions of fact must

be resolved by reference to the administrative record. Bannum Inc. v. United States, 404

F.3d 1346, 1357 (Fed. Cir. 2005).

IV.    DISCUSSION

       A.     Mr. Bailey’s Procedural Challenges To The Board’s Decisions Are
              Without Merit




                                              16
       As discussed in detail above, this case has a somewhat tortured procedural history

and it is against this backdrop that the court considers Mr. Bailey’s allegation that the

AFBCMR committed two procedural errors in considering his petition for relief. First,

Mr. Bailey claims that the AFBCMR erred “in 201[7] in failing to incorporate [his]

response to the advisory opinions into their decision.” Amend. Compl. ¶ 27. Second, Mr.

Bailey alleges that the “actions of the AFBCMR in 2018 in reconsidering [his] petition

while using the decision of the 201[7] Board was contrary to law.” Id. ¶ 28. Mr. Bailey

argues that the AFBCMR should have assigned his application to another new panel.

A.R. 8. The government responds that even if the AFBCMR erred in 2017 by failing to

incorporate Mr. Bailey’s response to the advisory opinions, the AFBCMR properly

corrected that error by sua sponte reconsidering the petition in 2018 with Mr. Bailey’s

response. Thus, the question before the court is whether the AFBCMR’s actions violated

the statutory or regulatory procedures regarding corrections of military records.

       Under 10 U.S.C. § 1552(a)(1), “[t]he Secretary of a military department may

correct any military record of the Secretary’s department when the Secretary considers it

necessary to correct an error or remove an injustice.” The Secretary must also establish

procedures for making such corrections. Id. § 1552(a)(3)(A). These procedures must

permit reconsideration “of a determination of a board under this section, no matter when

filed, . . . if supported by materials not previously . . . considered by the board in making

such determination.” Id. § 1552(a)(3)(D).

       The Secretary of the Air Force established the AFBCMR pursuant to the terms of

Section 1552 for the express purpose of correcting military records. See 32 C.F.R.


                                             17
§ 865.0. The regulations governing the AFBCMR are found at 32 C.F.R. §§ 865, et. seq,

and Air Force Instruction (“AFI”), Air Force Board of Corrections of Military Records

(AFBCMR), 36-2603. The AFBCMR “considers all individual applications properly

brought before it” and “[i]n appropriate cases, it directs correction of military records to

remove an error or injustice, or recommends such correction.” 32 C.F.R § 865.2(a); AFI

36-2603, ¶ 2.1. An applicant must submit his or her application within three years after

the error or injustice was discovered or should have been discovered; however, the board

may excuse an untimely filing in the interests of justice. 32 C.F.R. § 865.3(f); AFI 36-

2603, ¶ 3.5. The only requirements imposed by regulation on the composition of the

AFBCMR is that there are at least three voting members and that all members are

civilians. 32 C.F.R. §§ 865.1, 865.4(c).

       In an action before the AFBCMR, the burden is on the applicant to establish by a

preponderance of the evidence the existence of an error or injustice. 32 C.F.R. § 865.4(a);

AFI 36-2603, ¶ 4.1. The AFBCMR may solicit advisory opinions from Air Force

organizations or officials in considering a petition. 32 C.F.R. § 865.4(a)(1). Applicants

must be given an opportunity to review and comment on any advisory opinions or

additional information obtained by the AFBCMR. Id. § 865.4(b); AFI 36-2603, ¶ 4.3.

Applicants are given no more than 30 days to review and respond to such advisory

opinions and requests for extension of the 30-day period will not be granted. AFI 36-

2603, ¶ 4.3.1-3.2. The regulations provide that an application will be processed at the end

of the 30-day period or upon receipt of the applicant’s rebuttal, whichever occurs first. Id.

¶ 4.3.1. Any finding of material error or injustice by the AFBCMR must be reduced to


                                             18
writing along with any corrections needed to grant relief. 32 C.F.R. § 865.4(h)(4); AFI

36-2603, ¶ 4.10.2.

       The AFBCMR is authorized to reconsider an application if the applicant submits

newly discovered relevant evidence that was not reasonably available when the

application was previously considered. 32 C.F.R. § 865.6(a); AFI 36-2603, ¶ 6; see King

v. United States, 65 Fed. Cl. 385, 398 (2005) (concluding that AFBCMR may only

reconsider its decision for newly submitted relevant evidence or on the ground of fraud).

If the request contains new evidence, the Executive Director of the AFBCMR is required

to refer the new evidence to a panel of the board for a decision. 32 C.F.R. § 865.6(b). The

AFBCMR panel is then tasked with deciding the relevance and weight of the new

evidence, whether it was reasonably available to the applicant when the application was

previously considered, and whether it was submitted in a timely manner. Id. The

AFBCMR may deny reconsideration if the request does not meet the criteria for

reconsideration; otherwise the AFBCMR will reconsider the application and decide the

case on timeliness or the merits. Id.; AFI 36-2603, ¶ 6.2.

       Mr. Bailey alleges the AFBCMR’s errors in 2017 stem from its failure to follow

proper procedures in 2015. Amend. Compl. ¶ 27. As discussed above, the AFBCMR sent

Mr. Bailey a letter in October 2015 authorizing him to reapply for relief so that it could

correct the administrative errors in processing his case. Amend. Compl. ¶ 17. Thereafter,

Mr. Bailey was able to submit an additional petition and that petition was ruled on by a

new panel in June 2017. Thus, the procedural error in the 2015 AFBCMR decision was

addressed by the 2017 decision.


                                             19
       Regarding Mr. Bailey’s assertion that the AFBCMR failed to consider his May 8,

2017 rebuttal response to the advisory opinions, the record demonstrates that the

AFBCMR addressed this error by sua sponte reconsidering the 2017 decision along with

Mr. Bailey’s May 8, 2017 rebuttal response. This procedural challenge therefore fails.

Likewise, Mr. Bailey’s challenge regarding the AFBMCR’s failure to assign

reconsideration of the 2017 decision to a different panel in 2018 lacks merit. Recognizing

that it had failed to consider his rebuttal response, the AFBMCR in 2018, in accordance

with AFI 36-2603 ¶ 6, decided that reconsideration was warranted in order to consider

Mr. Bailey’s late-found responses. A.R. 8, 10; see 32 C.F.R. § 865.6. There is nothing in

the Air Force regulations that requires assignment of a request for reconsideration to a

new panel. Moreover, nothing in the record suggests that the AFBCMR panel was biased

or could not fairly consider Mr. Bailey’s response. Indeed, the law presumes that

members of AFBCMR panels, like other public officers, discharge their duties correctly,

lawfully, and in good faith. Myers, 50 Fed. Cl. at 689 (stating that plaintiff in challenging

a military correction board decision must overcome the strong but rebuttable presumption

that administrators of the military discharge their duties correctly, lawfully, and in good

faith). For these reasons, Mr. Bailey’s procedural claims fail regarding the AFBCMR’s

consideration of his rebuttal response in 2017.

       B.     Mr. Bailey’s Challenge To The Article 15 Proceeding’s Evidentiary
              Burden Of Proof Is Without Merit

       Mr. Bailey next argues that the Air Force improperly applied a preponderance of

the evidence standard at his Article 15 nonjudicial punishment proceeding. Amend.



                                             20
Compl. ¶ 30. Mr. Bailey alleges that the application of the preponderance of the evidence

standard at his Article 15 nonjudicial punishment proceedings was arbitrary. Amend.

Compl. ¶ 30. The government responds that, because there is no specified evidentiary

standard for an Article 15 proceeding, Mr. Bailey’s claim fails. Def.’s Mot. for J. on the

Admin. R. at 18 (ECF No. 16). The Air Force regulation governing Article 15

proceedings, the government points out, explicitly states that “no specific standard of

proof applies to [Article 15] proceedings” but states “commanders should recognize that

a member is entitled to demand trial by court-martial, in which case proof beyond a

reasonable doubt of each element of every offense by legal and competent evidence is a

prerequisite to conviction” and “[i]f such proof is lacking, [Article 15] action is usually

not advisable.” AFI 51-202 ¶ 3.4.2

       Mr. Bailey concedes that the Air Force has not specified a standard of proof for an

Article 15 hearing. Amend. Compl. ¶ 30. Because there is no specified standard of proof,

the court agrees with the government that Mr. Bailey’s claim that the Air Force was

required to apply a particular standard is incorrect. Therefore, Mr. Bailey’s challenge to

the standard of proof applied in his Article 15 hearing must be rejected.



2
  AFI 51-202 is publicly available at https://static.e-
publishing.af.mil/production/1/af_ja/publication/afi51-202/afi51-202.pdf. This standard of proof
is in contrast to the implementing regulations of other parts of the military, which set a more
definitive burden of proof. See U.S. Dep’t of Army, Reg. 27-10, Legal Services: Military Justice
¶ 3-18.l (2011) (“Punishment will not be imposed unless the commander is convinced beyond a
reasonable doubt that the Soldier committed the offense(s)”); U.S. Dep’t of Navy, Navy Jag
Manual ¶ 0110(b) (2012) (providing that “the standard of proof by which facts must be
established at mast or office hours is a ‘preponderance of the evidence,’ rather than ‘beyond a
reasonable doubt’ as it is at courts-martial”).


                                               21
       C.      The AFBCMR Erroneously Required Mr. Bailey To Prove An
               Injustice By More Than A Preponderance Of The Evidence

       Mr. Bailey argues that the AFBCMR applied the wrong standard when reviewing

his petition to reverse his Article 15. Pl.’s Resp. at 19. Before the AFBCMR, Mr. Bailey

argued that he is the victim of an injustice because his Article 15 was predicated on a

finding that his conduct was within his control, namely “irresponsible drinking,” but that

new medical evidence from Air Force medical doctors confirms that he has a seizure

disorder which better explains his conduct on the date in question. Mr. Bailey accepts that

he had the burden to show that his then undiagnosed seizure disorder more likely than not

was a cause of his conduct on September 10, 2011 but argues that he did not have to

establish that his drinking played no role. Mr. Bailey argues that by requiring him (1) to

“clearly demonstrate” that his seizure disorder was the cause of his conduct on September

10, 2011 and (2) to definitively rule out drinking as a contributing factor, the AFBCMR

imposed a burden higher than the preponderance of the evidence standard applicable to

his claim under the AFI. See AFI 36-2603 ¶ 4.1 (“[T]he applicant has the burden of

providing sufficient evidence of material error or injustice. The board will recommend

relief only when a preponderance (more likely than not) of evidence substantiates that the

applicant was a victim of an error or injustice.”).3


3
 The court notes that the AFI do not indicate the deference due to advisory opinions like the
ones obtained in this case. The court could not find any cases where the AFBCMR rejected
medical recommendations without competing and contrary medical evidence and neither party
was aware of other similar cases. Oral Arg. 14:48:00-14:52:00. However, to the extent Mr.
Bailey argues that deference was required because AFI state that “[l]iberal consideration will be
given in cases where an applicant has presented evidence of a diagnosis of PTSD, or symptoms



                                               22
       The government agrees with Mr. Bailey’s articulation of the burden of proof

standard under the AFI. See Oral Arg. 14:36:45-14:37:40. Importantly, the government

also concedes that Mr. Bailey did not have to prove that alcohol consumption did not play

any role in causing his behavior on September 10, 2011. Oral Arg. 14:30:30-14:30:56.

The government argues, however, that the AFBCMR’s decision relied on the appropriate

standard because the medical opinions provided to the AFBMCR did not state that a

seizure disorder or medical condition “caused” Mr. Bailey’s behavior on September 10,

2011. Rather, the medical opinions state only that Mr. Bailey’s then undiagnosed seizure

disorder “could” have been a cause of his behavior on September 10, 2011. Oral Arg.

14:37:40-14:40:00. Because no medical tests were performed at the time of the incident,

the government argues, Mr. Bailey did not prove that his undiagnosed seizure disorder

was the cause of the behavior that led to the Article 15 and thus the AFBMCR rationally

concluded that the Article 15 finding of “irresponsible drinking” should stand.

       There is no dispute that Mr. Bailey was required to prove by a preponderance of

the evidence that there was a material error or injustice in his Article 15 determination

under AFI 36-2603 ¶ 4.1 and that under that standard he had to establish that it was more

likely than not that Mr. Bailey was a victim of an injustice. The court finds, however, that

the AFBCMR failed to apply this standard in determining that there was no injustice in

Mr. Bailey’s Article 15. As Mr. Bailey argues, the AFBCMR stated that Mr. Bailey failed




resembling PTSD,” AFI 36-2603 ¶ 4.8, this provision is not implicated here because Mr. Bailey
does not claim that he suffers from PTSD. See Oral Arg. 14:18:30-14:18:42.


                                             23
to meet his burden because “the evidence does not clearly demonstrate it was a seizure or

a medical condition which caused the applicant’s misconduct on 10 September 2011.”

Pl.’s Resp. at 19 (citing A.R. 78) (emphasis added). The AFBCMR rejected the medical

opinions it sought and which both recommended that Mr. Bailey be granted relief

because “they do not conclusively state it was a seizure which caused his misconduct.”

A.R. at 10 (emphasis added); see also id. (finding that Mr. Bailey did not provide

evidence enough “to conclude his conduct was caused by a medical condition”)

(emphasis added).

       Under the preponderance of the evidence standard, Mr. Bailey was not, however,

required prove to a medical certainty that he had a seizure or that his drinking played no

role in his conduct on September 10, 2011. Rather, he had to establish based on the

evidence now available that his behavior was more likely than not caused by a seizure

and was not consistent with “irresponsible drinking,” as stated in the Article 15. The fact

that the AFBCMR’s medical advisors could not make a definitive finding of causation

because medical testing was not performed, is not fatal to his claim as the government

argues. Importantly, both medical advisors recommend granting Mr. Bailey relief. In this

connection, the AFBCMR failed to address Dr. Chernyak’s express conclusion that Mr.

Bailey’s behavior was (1) inconsistent with the behavior of an intoxicated individual, (2)

inconsistent with someone having five drinks over the course of a day, but (3) consistent

with a medical condition. A.R. 366-67.

       By holding Mr. Bailey to a standard of “clear” evidence and requiring him to

prove a seizure was the sole cause of his actions on the date in question, the AFBCMR


                                            24
required Mr. Bailey to meet a higher standard than the preponderance of the evidence or

the “more likely than not” standard which the government concedes applies. For this

reason, the court must remand the case back to the AFBCMR for reconsideration of Mr.

Bailey’s claim for relief. On remand, the AFBCMR must address whether Mr. Bailey has

shown that his Article 15 was not resulted in an injustice because his behavior on

September 10, 2011 was at least in part more likely than not beyond his control due to a

then undiagnosed medical condition rather than solely due to “irresponsible drinking.”

The AFBCMR will have to decide how much weight to give Dr. Chernyak’s

uncontroverted medical opinion that Mr. Bailey’s blood alcohol level was not likely

elevated, that his behavior was not consistent with that of an intoxicated individual, but

instead better explained by his then undiagnosed medical condition. The AFBCMR will

also have to determine what weight to give to Dr. Carson’s conclusion that without

contemporaneous medical tests he could only conclude that a seizure “could” have

caused his behavior, and on that basis recommended granting Mr. Bailey’s relief. See

A.R. 357-58.

                                     CONCLUSION

       For the forgoing reasons, the government’s motion to dismiss and partial motion

for judgment on the administrative record is DENIED. Mr. Bailey’s cross motion for

judgment on the administrative record is GRANTED IN PART AND DENIED IN

PART. The case is REMANDED for six months to the AFBCMR for further review

consistent with this decision. A status report shall be filed every 90 days informing the

court of the status of the AFBCMR’s review. See RCFC 52.2(b)(1)(D).


                                             25
      The Clerk of the court is directed to serve a certified copy of this order to the

AFBCMR at 1500 West Perimeter Road, Join Base Andrews NAF Washington, MD

20762-7002. See RCFC 52.2(b)(2).

      IT IS SO ORDERED.



                                                           s/Nancy B. Firestone
                                                           NANCY B. FIRESTONE
                                                           Senior Judge




                                            26
