                                                     UNITED STATES DISTRICT COURT
                                                     FOR THE DISTRICT OF COLUMBIA
 


ALAN BEAUREGARD,                                                                   

                                               Plaintiff,                    

                                               v.                           Civil Action No. 10-cv-1972 (RLW)

HONORABLE RAY MABUS,                                                         

                                             Defendant.                      


                                                                         

                                                               MEMORANDUM OPINION1

              Plaintiff Alan P. Beauregard, (“Beauregard”), father and personal representative of the

late First Lieutenant James J. Beauregard (“Lt. Beauregard”), brings this action against Secretary

of the Navy, Honorable Ray Mabus, seeking judicial review of the March 15, 2006 decision of

the Board for Correction of Naval Records (“the Board”) under the Administrative Procedure

Act (“APA”). 5 U.S.C. § 701 et seq. (2000). Beauregard challenges the Board’s decision

regarding the delay and denial of the promotion of Lt. Beauregard, the characterization of Lt.

Beauregard’s discharge, and the correction of Lt. Beauregard’s military records. (See generally

Compl.). Beauregard alleges that the Board’s actions in denying Beauregard’s application for

relief were arbitrary and capricious.
                                                            
1
         This unpublished memorandum opinion is intended solely to inform the parties and any
reviewing court of the basis for the instant ruling, or alternatively, to assist in any potential future
analysis of the res judicata, law of the case, or preclusive effect of the ruling. The Court has
designated this opinion as "not intended for publication," but this Court cannot prevent or
prohibit the publication of this opinion in the various and sundry electronic and legal databases
(as it is a public document), and this Court cannot prevent or prohibit the citation of this opinion
by counsel. Cf. Fed. R. App. P. 32.1. Nonetheless, as stated in the operational handbook
adopted by our Court of Appeals, “counsel are reminded that the Court's decision to issue an
unpublished disposition means that the Court sees no precedential value in that disposition.”
D.C. Circuit Handbook of Practice and Internal Procedures 43 (2011). 
                                                                        1
 
       Defendant has moved for summary judgment pursuant to Fed. R. Civ. P. 56, arguing that

the Board used an adequate decision making process as to all issues relating to Lt. Beauregard’s

promotion and discharge. (Dkt. No. 9 at 11-12). Plaintiff has cross-moved for summary

judgment, arguing that summary judgment should be granted in Plaintiff’s favor because the

Board’s decision was arbitrary, capricious and an abuse of discretion. (Dkt. No. 14 at 17). Upon

a complete review of the administrative record (“AR”), and for the reasons set forth below, the

Court concludes that the administrative record supports the Board’s determination. Accordingly,

Defendant’s Motion for Summary Judgment is granted, and Plaintiff’s Cross-Motion for

Summary Judgment is denied.

                                        BACKGROUND

       Lt. Beauregard entered active duty as an officer candidate in the United States Marine

Corps on May 10, 1996. (AR at 4). In March 2001, Lt. Beauregard became the subject of a

criminal investigation by both civilian and military authorities regarding allegations of larceny

and several other related offenses. (Compl. at ¶ 28-29). While this investigation was pending,

Lt. Beauregard was selected for promotion from First Lieutenant to Captain and his name was

added to the promotion list on June 1, 2001. (Compl. at ¶ 27; AR at 5, 40). On June 8, 2001, Lt.

Beauregard’s Commanding Officer recommended that his promotion be delayed and that his

name be possibly removed from the promotion list due to the ongoing investigation. (Compl. at

¶ 49; Dkt. No. 9 at ¶ 8; AR at 182). On June 25, 2001, Lt. Beauregard acknowledged the

promotion delay by submitting a written response to his Commanding Officer regarding the

decision to withhold his promotion. (Compl. at ¶ 50; Dkt. No. 9 at ¶ 9; AR 42). On June 28,

2001, the official “Notification of Promotion Delay and Possible Removal from Fiscal Year 2002

Promotion List” notice was issued recommending to the Commandant of the Marine Corps that



                                                 2
 
due to the “serious nature of the pending charges” the Commander of the First Marine Division

“strongly recommend[ed] that [Lt. Beauregard’s] promotion be delayed until his case is

resolved.” (Dkt. No. 9 at ¶ 11; AR at 44, 183). On July 11, 2001, the Staff Judge Advocate to

the Commandant of the Marine Corps ordered that Lt. Beauregard not be separated, promoted, or

transferred without coordination with the Judge because of the pending charges. (Dkt. No. 9 at ¶

15; AR at 5, 49-51).

       Based on Lt. Beauregard’s position on the promotion list, he was set for promotion on

August 1, 2001; however, on August 16, 2001, the Commandant of the Marine Corps approved

the recommendation that Lt. Beauregard’s promotion be delayed due to “the potentially adverse

allegations of larceny and fraud.” (Compl. ¶ 37; Dkt. No. 9 at ¶ 16; AR at 5, 52-53). On August

12, 2001, Lt. Beauregard was arrested and charged with driving under the influence of alcohol

(“DUI”). (Compl. ¶ 37; Dkt. No. 9 at ¶ 18; AR at 5, 56-57). Investigative hearings on the

criminal charges were held on September 5, 2001 and October 4, 2001. (Compl. ¶33). During

the September 5, 2001 hearing, Lt. Beauregard testified to being charged with a DUI. (Compl. ¶

41). Lt. Beauregard admitted his guilt to the DUI offense to civilian authorities on September

17, 2001. (Compl. at ¶ 42; Dkt. No. 9 at ¶ 20; AR at 5-6, 67).

       On May 22, 2002, the Commanding General withdrew and dismissed all charges against

Lt. Beauregard regarding his larceny and other related offenses. (Compl. ¶¶ 35-36; Dkt. No. 9 at

23; AR at 6). Lt. Beauregard’s Commanding Officer initiated separation actions on June 28,

2002. (Compl. at ¶ 60; Dkt. No. 9 at ¶ 24; AR at 6, 70-71). Lt. Beauregard was notified of the

separation proceedings on July 3, 2002, at which time Lt. Beauregard was informed of his

procedural rights, including his right to a Board of Inquiry hearing and his right to render his

resignation in lieu of separation processing. (Dkt. No. 9 at 25-26; AR at 72-73). On July 9,



                                                 3
 
2002, Lt. Beauregard submitted a resignation request in lieu of separation processing and waived

his right to a Board of Inquiry hearing. (Compl. ¶ 72; Dkt. No. 9 at ¶ 27-28; AR at 6, 74-75,

197). The First Endorsement of Lt. Beauregard’s separation was issued July 12, 2002, the

Second Endorsement was issued on July 25,2002, and the Third Endorsement was issued

October 9, 2002. (Compl. at ¶¶ 63, 69, 74; Dkt. No. 9 at ¶¶ 30, 31, 33; AR at 6, 77-83). Lt.

Beauregard’s resignation request was ultimately denied on October 2, 2002. (Dkt. No. 9 at ¶ 32;

AR at 7, 80).

       Lt. Beauregard was separated from the United States Marine Corps on October 15, 2002,

at which time he was issued a Certificate of Release or Discharge from Active Duty (“DD Form

214”) indicating a discharge characterization of “Honorable” by reason of completion of his

required active service. (Compl. at ¶ 10; Dkt. No. 9 at ¶¶ 34-35; AR at 7, 84). On October 24,

2002, the Assistant Secretary of the Navy for Manpower for Reserve Affairs directed that Lt.

Beauregard receive a “General” discharge by reason of unacceptable conduct. (Compl. at ¶ 75;

Dkt. No. 9 at ¶ 36; AR at 7). Consequently, on February 6, 2003, Lt. Beauregard’s DD Form

214 was corrected by issuance of a DD Form 215 designating a “General” discharge by reason of

unacceptable conduct. (Compl. at ¶ 77; Dkt. No. 9 at ¶ 37; AR at 7, 85-86).

       Following Lt. Beauregard’s death on August 6, 2004, his father and personal

representative completed the application process for the correction of records on behalf of his

son pursuant to 32 C.F.R. § 723.3(a)(3). (Compl. at ¶ 7, 11-12, 80; Dkt. No. 9 at ¶ 38; AR at 87).

In his application, Beauregard requested that the Board: 1) void the existing DD-215 Form with

its “General” characterization; 2) reinstate the original DD-214 Form with its “Honorable”

characterization; 3) direct that Lt. Beauregard be posthumously promoted to Captain; 4) award

Lt. Beauregard’s back pay; 5) direct the removal from Lt. Beauregard’s official military



                                                4
 
personnel file of all documents referencing the withdrawn and dismissed criminal charges.

(Compl. at ¶ 81; Dkt. No. 9 at ¶ 39; AR 88-111). On March 15, 2006, after the issuance of an

Advisory Opinion from the Military Law Branch of the Judge Advocate Division (“JAM”) that

recommended the denial of the application for relief, the Board issued its decision concluding

that, despite procedural deficiencies, the Department had substantially complied with all relevant

procedures. (Compl. at ¶ 13, 15; Dkt. No. 9 at ¶ 40-48; AR at 3-12, 18). The Board denied

Beauregard’s application on all counts finding that Beauregard’s requests were without merit.

(AR at 11). Beauregard timely filed his Complaint in this Court seeking review of the Board’s

decision on November 17, 2010. See 28 U.S.C. § 2401(a).

                                   STANDARD OF REVIEW

       The Secretary of a military department, acting through a civilian board of the executive

part of that 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.” 10 U.S.C.

§ 1552(a)(1). Once a civilian board makes a final decision, that decision is “subject to review

under § 706 of the Administrative Procedure Act.” Pettiford v. Sec’y of the Navy, 774 F. Supp.

2d 173, 181 (D.D.C. 2011). Under the APA, a reviewing court may hold unlawful or set aside an

agency action that the court determines to be “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A).

       When reviewing an agency’s action under the APA, it is not the role of the court to

resolve factual issues, rather the court need only “determine whether or not as a matter of law the

evidence in the administrative record permitted the agency to make the decision it did.” Fuller v.

Winter, 538 F. Supp. 2d 179, 185 (D.D.C. 2008) (quoting Occidental Eng’g Co. v. INS, 753 F.2d

766, 769-70 (9th Cir. 1985)).



                                                 5
 
       Given the language of 10 U.S.C. § 1552(a), which grants the Secretary broad discretion

to correct an error or injustice, federal courts review the decisions of military correction boards

with “an unusually deferential application of the ‘arbitrary and capricious’ standard.” Kreis v.

Secretary of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989); see also Orloff v. Willoughby,

345 U.S. 83, 93 (1953) (“[G]iven the special circumstances in which the military must operate,

the courts are ill-equipped to resolve controversies arising from the use of discretionary powers

specifically designed to provide military authorities with the freedom and flexibility needed to

establish and maintain a well-trained and well-disciplined armed force.”). “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). Moreover, there exists a “strong but rebuttable presumption that administrators

of the military, like other public officials, discharge their duties correctly, lawfully, and in good

faith.” Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997) (quoting Collins v. United States,

24 Cl. Ct. 32, 38 (1991), aff’d, 975 F.2d 869 (Fed Cir. 1992)).

       Generally, summary judgment is appropriate “if the movant shows [through facts

supported in the record] 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); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). However, when parties seek “review of a final agency action under

the Administrative Procedure Act, . . . the standard set forth in [Rule 56(a)] does not apply

because of the limited role of a court in reviewing the administrative record.” Calloway v.

Harvey, 590 F. Supp. 2d 29, 35-36 (D.D.C. 2008). Thus, “summary judgment [is] the

mechanism for deciding, as a matter of law, whether agency action is supported by the



                                                  6
 
administrative record and otherwise consistent with the APA standard of review.” Fuller, 538 F.

Supp. 2d at 185 (citing Richard v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977)).

       The Court is permitted to “determine only whether the Secretary’s decision making

process was deficient, not whether his decision was correct.” Kreis, 866 F.2d at 1508.

Accordingly, the Court must defer to the Board’s decision unless the Secretary’s action in this

area was “arbitrary, capricious, or contrary to the statutes and regulations governing that

agency,” which resulted in an error in its own decision making process. Id. at 1512 (quoting

Dilley v. Alexander, 603 F.2d 914, 920 (D.C. Cir. 1979)); Frizelle, 111 F.3d at 176. The court

“will not disturb the decision so long as the deciding body examine[d] the relevant data and

articulate[d] a satisfactory explanation for its action, including a rational connection between the

facts found and the choice made.” Poole v. Harvey, 571 F.Supp.2d 120, 124 (D.D.C. 2008)

(citing Kreis, 406 F.3d at 686).

                                           ANALYSIS
    A. Parties’ Arguments

       Beauregard brings three counts under the APA alleging that the Board ignored significant

regulatory violations in its decision making process resulting in an arbitrary and capricious

decision. (Compl. at ¶¶ 25-38). In Counts One and Two, Beauregard challenges the Board’s

conclusions that the alleged procedural defects related to Lt. Beauregard’s promotion and

discharge characterization of service were harmless error because, according to Beauregard,

these conclusions were contrary to applicable law and regulations. (Compl. at ¶¶ 25-32). In

Count Three, Beauregard seeks a determination that the Board’s ultimate decision in denying the

full and complete relief requested by Beauregard—promotion, re-characterization of discharge,

awarding of back pay, and removing all mention of the withdrawn and dropped charges brought

against Lt. Beauregard—was arbitrary and capricious. (Compl. at ¶¶ 32-38).

                                                 7
 
       Defendant contends that summary judgment is appropriate because there is no genuine

issue of material fact and it is entitled to judgment as a matter of law. (Dkt. No. 9 at 12).

Moreover, because military correction boards are reviewed under “an unusually deferential

application of the ‘arbitrary and capricious’ standard,” Defendant contends the Court is only

asked to determine whether the decision making process was deficient, not whether the decision

itself was correct. Kreis, 866 F.2d at 1515; Dickson v. Secretary of Defense, 68 F.3d 1396, 1405-

06 (D.C. Cir. 1995). For this reason, Defendant argues the Court should rule in its favor by

finding the Board’s decision making process was not conducted in an arbitrary manner. (Dkt.

No. 9 at 13-15). Finally, Defendant submits that Plaintiff bears the burden to overcome the

strong but rebuttable presumption that the military administrators discharged their duties

correctly, lawfully and in good faith and that Beauregard failed to meet this burden. (Dkt. No. 9

at 13); Frizelle, 111 F.3d at 177.

    B. Delay and Failure to Promote

       Beauregard argues that the Board provided no legal basis for its conclusion that Lt.

Beauregard was not entitled to a promotion. With respect to the delay of Lt. Beauregard’s

promotion, Plaintiff contends that Lt. Beauregard was not provided with the requisite notice

pursuant to 10 U.S.C. § 624(d), and Department regulations Secretary of the Navy Instruction

(“SECNAVINST”) 1420.1A. Section 624(d)(3) provides that:

               The appointment of an officer may not be delayed under this
               subsection unless the officer has been given written notice of the
               grounds for the delay, unless it is impracticable to give such
               written notice before the effective date of the appointment, in
               which case such written notice shall be given as soon as
               practicable. An officer whose promotion has been delayed under
               this subsection shall be afforded an opportunity to make a written
               statement to the Secretary concerned in response to the action
               taken. Any such statement shall be given careful consideration by
               the Secretary.

                                                  8
 
    10 U.S.C. §624(d)(3). Plaintiff maintains that Lt. Beauregard was not properly notified of the

initial six-month promotion delay pursuant to Section 624(d)(3) because he was not notified of

the delay until August 16, 2001, two weeks after his scheduled promotion date. Beauregard also

contends that the original six-month promotion delay was never formally extended, in violation

of Section 624(d)(4), which provides that an officer’s promotion may not be delayed six months

beyond the date he would have been otherwise appointed unless the Secretary specifies a further

period of delay. 10 U.S.C. § 624(d)(4). Further, under Section 624(d)(4), “[a]n officer’s

appointment may not be delayed more than 90 days after final action has been taken in any

criminal case . . . or more than eighteen months after the date on which such officer would

otherwise have been appointed, whichever is later.” Id.

          The Board acknowledged that there were procedural deficiencies with regard to the delay

of Lt. Beauregard’s promotion. Specifically, the Board noted that “ the delay itself was not

directed until about two weeks after [Lt. Beauregard] was due to be promoted, and the initial

period of delay was never formally extended.” (AR at 11). However, with respect to the initial

delay, the Board noted that: (1) Lt. Beauregard had been informed of the intent to delay his

promotion on June 8, 2001; (2) he replied to the June 8, 2001 notice on June 25, 2001, and his

statement was forwarded to the decision-maker; (3) he was again notified of the delay on August

16, 2001, and given another opportunity to respond. Id. With respect to Plaintiff’s contention

that the period of delay was never formally extended, the Board concluded that “although the

initial delay was never extended, the total period of delay did not exceed the maximum allowable

period of 18 months, and the Secretary essentially ratified further delay when [Lt. Beauregard’s]

separation was directed. (AR at 11-12). The Board also concluded that Lt. Beauregard’s DUI

provided additional grounds to delay Lt. Beauregard’s promotion even though the criminal

                                                   9
 
larceny and forgery charges had been dropped. (AR at 11-12). Although the Board conceded

that the initial delay was never extended, the Board provided a reasoned explanation for its

conclusion that the procedural deficiencies were harmless error.

              Moreover, the Board concluded that these failures to comply with the procedural

requirements for delay do not compel promotion. It is well established that military officers do

not have a property or liberty interest in a promotion per se and, therefore, are not entitled to a

promotion as a matter of law. Blevins v. Orr, 721 F.2d 1419, 1422 (D.C. Cir. 1983); see also

Dysart v. United States, 369 F.3d 1303, 1314 (Fed. Cir. 2004); Pauls v. Secretary of the Air

Force, 457 F.2d 294, 297 (1st Cir. 1972). Additionally, although the language of Section

624(a)(1) indicates that officers on a promotion list shall be promoted to the next higher grade,

the President of the United States is afforded complete discretion to choose whether or not to

appoint an officer and the “statute does not [] alter that process by providing for automatic

appointment.”2 Dysart, 369 F.3d at 1311. Thus, after considering the evidence in the record, as

well as Plaintiff’s arguments regarding the procedural deficiencies in the delay action, the Board

rationally determined that the delay in receiving notice was harmless error and did not justify

Plaintiff’s requested remedy of promotion.

              Consequently, the Board is “free to draw [its] own reasonable inferences and conclusions

from the evidence before [it].” Mudd v. Caldera, 134 F. Supp. 2d 138, 143 (D.D.C. 2001) (citing

Mail Order Ass’n of America v. United States Postal Serv., 2 F.3d 408, 421 (D.C. Cir. 1993)).

Furthermore, an agency’s decision need not be a model of analytic precision to survive, but

rather the agency needs only to have used its discretion in a reasoned manner. Frizelle, 111 F.3d

at 176; Kreis, 866 F.2d at 1512. As the Court must employ an “unusually deferential application

                                                            
2
      The President may, however, delegate this appointment power to another; in this case, the
power was vested in the Secretary of the Navy. 
                                                               10
 
of the arbitrary and capricious standard,” the Court concludes that the Board provided a

sufficient rational explanation for its conclusion that the procedural deficiencies in the delay of

Lt. Beauregard’s promotion amount to harmless error and, therefore, does not compel the

promotion requested by Plaintiff here. Kreis, 866 F.2d at 1514.

    C. Separation and Characterization of Service

       Plaintiff argues that the Board’s decision upholding Lt. Beauregard’s General discharge

characterization was arbitrary, capricious or contrary to law because the Marine Corps

impermissibly considered the withdrawn and dismissed larceny charges. Additionally, Plaintiff

contends that the Marine Corps did not adequately consider the meritorious aspects to Lt.

Beauregard’s record. Further, Plaintiff argues that the conduct that purportedly gave rise to

separation action—Lt. Beauregard’s DUI—does not provide an adequate basis for a less than

“honorable” service characterization. The Board’s decision addresses each of these arguments

and provides a rational basis for its ultimate conclusion. Essentially, the Board’s decision

indicates that Plaintiff’s arguments were not sufficient to “overcome the strong but rebuttable

presumption that administrators of the military, like other public officers, discharge their duties

correctly, lawfully, and in good faith.” Frizelle, 111 F.3d at 177. The Court defers to the

Board’s conclusion and reasoning that Lt. Beauregard could be processed for separation under

the notification procedure because the separation procedure was initiated before Lt. Beauregard

had attained five years of service. The Board’s determination is consistent with the binding

guidance which provides that an officer with less than five years of service may be processed for

separation with the notification procedure as long as he is notified of the separation and given the

opportunity to submit a statement. (AR at 8, 470-567) (SECNAVINST 1920.6B,

“Administrative Separation of Officers” (Dec. 13, 1999)). Furthermore, under the same



                                                 11
 
guidance, an officer need only be afforded the right to a Board of Inquiry if he or she is to be

discharged under an “other than honorable” service characterization, but need not be provided

this right if he or she is being discharged under a “general” or “honorable” service

characterization. ( Id.). The Court also defers to the Board’s conclusion that Lt. Beauregard’s

DUI conviction was sufficient basis for his separation by reason of misconduct. The directive

which provides guidance on the administrative separation of officers in the Navy and Marine

Corps explains that an officer may be released from active duty for cause on the basis of

misconduct if the officer has committed a military or civilian offense that could be punished by

confinement of six months or more. (Id.) Therefore, Lt. Beauregard’s DUI provided a sufficient

basis for administrative separation. Finally, the Court defers to the Board’s ultimate

determination that the “general” discharge characterization given to Lt. Beauregard was

appropriate. In making this determination, the Board explicitly stated that it considered “not

only the overall quality of [Lt. Beauregard’s] service, as reflected in his fitness reports, but also

that the officers in his chain-of-command recommended an honorable discharge.” (AR 12).

Nonetheless, the Board concluded that the general discharge was appropriate, even though the

Board noted that a general discharge is “rarely appropriate when an officer is separated for

misconduct” and that officer misconduct normally warrants discharge under an “other than

honorable” service characterization. Id. Therefore, the Court defers to the Board’s conclusion

that Lt. Beauregard’s DUI conviction, even when balanced against his meritorious record,

provided sufficient basis for Lt. Beauregard’s general characterization of service.

       Plaintiff contends that the Board failed to address two additional arguments which

Plaintiff raised in his Response to the JAM Advisory Opinion. First, Plaintiff takes issue with

the assertion in the JAM Advisory Opinion that the July 16, 2002 DD Form 214 should not have



                                                  12
 
issued due to the JAM’s July 11, 2001 request that no action to promote or separate Lt.

Beauregard be taken without prior coordination with the Judge Advocate Division. Plaintiff

argued in his response to the Advisory Opinion that this request was no longer relevant in July

2002 because the underlying criminal charges that were the basis for the request were withdrawn

and dismissed on May 22, 2002. Plaintiff now contends that the Board did not address this

argument and merely adopted the conclusion of the Advisory Opinion. The Court disagrees.

While it is true that the Board agreed with the JAM’s conclusion that the July 16, 2002 DD Form

214 should never have been issued, the Board reached that conclusion for a different reason. The

Board explained that the July 16, 2002 DD Form 214—which released Lt. Beauregard from

active duty on October 15, 2002 with an honorable service characterization—should have never

been issued because administrative separation proceedings had already been initiated on July 3,

2002. (AR at 12). The Board noted that Lt. Beauregard “never should have been released from

active duty on 15 October 2002, prior to Secretarial action on the pending administrative

separation and relies on the provision of the applicable regulation to the effect that a release

should not occur if separation for cause, clearly the situation here.” (Id.) (emphasis added).

Thus, the Board relied on the directive set forth in SECNAVINST 1920.6B, “Administrative

Separation of Officers,” which provides that an officer may be released from active duty unless

separation processing for cause is warranted. Consistent with this directive, the Board concluded

that Lt. Beauregard should not have been released from active duty on October 15, 2002 for

completion of his service term because administrative separation for cause had already been

initiated. Therefore, the Board did not rely on the July 11, 2001 order as a basis for its

conclusions. Although the Board did not squarely address Plaintiff’s argument concerning the




                                                 13
 
July 11, 2001 request, the Board has, however, given “a reason that a court can measure” for its

decision. Kreis, 866 F.2d at 1514.

       Second, Plaintiff challenges the assertion in the Advisory Opinion that no DD Form 214

should have been issued until after the Secretary’s order of October 24, 2002 directing that Lt.

Beauregard receive a general service characterization. Plaintiff argues that the Secretary’s order

should be considered invalid because it was issued after Lt. Beauregard’s final End of Service

Date, October 15, 2002. Essentially, Plaintiff contends that because Lt. Beauregard was released

from active duty for “Completion of Required Active Service” on October 15, 2002, the

Secretary’s later order discharging Lt. Beauregard for cause should be invalid or ineffective.

Plaintiff cites to no authority for this proposition. Moreover, as previously discussed, the Board

explained that Lt. Beauregard’s October 15, 2002 release should not have occurred because

separation for cause had already been initiated. Accordingly, the Board directed that the record

should be corrected to reflect that Lt. Beauregard was not released from active duty, but instead

was retained on active duty until October 25, 2002, when he was issued a general discharge by

reason of misconduct/unacceptable conduct. Therefore, the Court concludes that the Board’s

decision addresses all of Plaintiff’s arguments and gives reasons, sufficiently supported by the

administrative record, for the Board’s ultimate decision.

                                         CONCLUSION

       For the reasons set forth above, summary judgment will be entered in favor of the

defendant. An Order accompanies this Memorandum.
                                                                      Digitally signed by Judge Robert L.
                                                                      Wilkins
                                                                      DN: cn=Judge Robert L. Wilkins,
                                                                      o=U.S. District Court, ou=Chambers
                                                                      of Honorable Robert L. Wilkins,
                                                                      email=RW@dc.uscourt.gov, c=US
                                                                      Date: 2012.10.15 09:48:22 -04'00'
Date: October 15, 2012
                                                     ROBERT L. WILKINS
                                                     United States District Judge



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