                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



TROY L. WILSON,

       Plaintiff,
               v.                                        Civil Action No. 11-303 (JEB)
JOHN M. McHUGH,
Secretary of the Army,

       Defendant.


                                 MEMORANDUM OPINION

       Plaintiff Troy Wilson, formerly a cadet in good standing at the United States Military

Academy at West Point, tested positive for cocaine during a urinalysis conducted in January

2007. He was subsequently charged under the Uniform Code of Military Justice with having

wrongfully used the drug. Wilson ultimately resigned from the USMA in lieu of disputing the

charge in a trial by court-martial and received an “other than honorable” (OTH) discharge. He

was also directed to repay $143,021 in education costs he had accrued prior to his discharge.

       In January 2009, Wilson submitted an Application for Correction of Military Record to

the Army Board for Correction of Military Records (ABCMR), requesting that he be

commissioned as an officer and provided with back pay, his discharge be upgraded from OTH to

Honorable, his debt be discharged, and a press release concerning the cocaine charge be removed

from the USMA’s website. The ABCMR denied his application, and Wilson now seeks review

of that decision in this Court. Having considered the parties’ Cross-Motions for Summary

Judgment, the Court finds that because he voluntarily resigned instead of contesting the charge

leveled against him in a court-martial, Wilson cannot challenge the underlying evidence in this


                                                1
forum. With respect to his remaining claims, the Court finds that the ABCMR’s decision to deny

Wilson’s request was supported by substantial evidence and was not otherwise arbitrary and

capricious. It will, therefore, grant Defendant’s Motion and deny Plaintiff’s.

I.     Background

       Wilson was appointed as a cadet at the USMA on June 28, 2004. See Administrative

Record (A.R.) at 4. He performed well at the Academy, receiving assessments that placed him in

the “Center of Mass – lower half” in 2004 and “Above Center of Mass – lower half” in 2005.

See id. at 4-5. It was clear to his 2005 reviewer that Wilson was on his way to becoming “a very

good team leader and an officer.” Id. at 5. He was, however, subjected to discipline on three

occasions during 2006: once for underage drinking, once for being absent, and once for driving

an unauthorized vehicle. See id.

       According to a Forensic Toxicology Drug Testing Laboratory record dated February 7,

2007, initial and verification screening tests conducted on January 11, 2007, both revealed the

presence of cocaine metabolites in a urine sample provided by Wilson. See id. at 5, 51-53. The

next day, “a confirmation test revealed a positive reading of 148 n[g]/ml for benzoylecgonine

which was produced by the metabolism of cocaine.” Id. Because the Department of Defense’s

cutoff for acceptable levels of benzoylecogonine is 100 ng/ml, the test led to Wilson’s being

charged on February 5, 2007, under the Uniform Code of Military Justice with having

wrongfully used cocaine. See id. at 6; Compl., ¶¶ 25-26.

       The following day, the USMA Public Affairs Office issued a press release that stated that

four cadets, including Wilson, who was mentioned by name, had been charged with drug-related

offenses. See A.R. at 6. The release, which was posted to the internet, further noted that the

cadets would be “presumed innocent until proven guilty in trials by courts-martial” and



                                                2
explained that “[t]he preferring of charges against a service member is the first step in the court-

martial process.” Id. at 113. It also provided details about the pretrial investigation that would

follow. See id. at 113-14.

        On March 2, 2007, Wilson’s then-attorney Ronald Gladney wrote a letter “requesting and

recommending a finding that the evidence in support of the Charge and its Specification against

. . . Wilson [was] not sufficient to warrant referral to a court-martial, and a recommendation that

the same be dismissed.” A.R. at 55. Gladney contended that the drug test had been “barely

positive” and suggested that the results were “consistent” with Wilson’s having merely

“touch[ed] objects that at one time contained the drug.” Id. He also insisted that the charge was

inconsistent with Wilson’s character. See id. at 56. Attached to the letter were the curriculum

vitae of and a report written by Terry Martinez, a Ph.D. in Pharmacology. See id. at 61-75.

Martinez identified three potential “sources of error or concern with regard to this case: 1) there

[was] no record of the urine specimen collection, 2) the level of cocaine metabolites reported by

the gas-chromatograph/mass spectrophotometer (GC/HS) [was] higher than the level reported by

the enzyme immunoassay (EMIT) technology, and 3) the levels of reported cocaine metabolites

[were] very low — all levels were below the threshold for reporting positive by the U.S.

Department of Transportation, the Labor Department, the Department of Defense[,] etc. . . . .”

Id. at 73.

        Despite these potential avenues for attacking the prosecution, on March 7, 2007, Wilson

requested to resign from the USMA in lieu of disputing the charges in a trial by court-martial.

See id. at 6, 76-77. His signed request for resignation stated that he understood that he might be

discharged under “other than honorable” conditions and might be required to repay the cost of

his educational expenses. See id. at 76. It also confirmed that he was resigning voluntarily and



                                                  3
noted that he had consulted with counsel and been “fully advised . . . of the nature of [his] rights

prior to, during and after an appearance before a General Court-Martial.” Id. His resignation

was approved and his OTH discharge made effective on June 27, 2007. See id. at 7, 78-79, 120.

Wilson was also directed to repay $143,021 in education costs. See id. at 7, 81-82, 120.

         In a letter dated June 27, 2007, Wilson’s current counsel, David Sheldon, requested on

his behalf that the February 6th press release be taken down because the Privacy Act, 5 U.S.C. §

552a, “requires that the government maintain accurate records” and “[t]he release [was] no

longer accurate with respect to Mr. Wilson.” Id. at 115. Nearly two years later, in January 2009,

Wilson submitted an Application for Correction of Military Record to the ABCMR. See id. at

16-31. In it, he asked the ABCMR to commission him as an officer, upgrade his discharge from

OTH to Honorable, discharge his debt, remove the press release from the USMA’s website, “and

grant any other relief necessary to effect whole relief such as back pay, allowances, . . . and other

benefits the Board deems appropriate.” Id. at 27.

         “In the processing of [the ABCMR] case, an advisory opinion was obtained from the

Office of the Deputy Chief of Staff.” Id. at 7, 14-15. Colonel Paul Aswell, Chief of the Officer

Division, recommended that Wilson’s requests be denied. See id. at 15. Aswell noted that the

“doctrine of administrative finality” precluded reconsideration of Wilson’s discharge absent

circumstances not present in the instant case. See id. 14. He emphasized that Wilson

“voluntarily tendered his request to resign . . . in lieu of trial by court-martial” and that his

request acknowledged that his discharge might be characterized as OTH. See id. at 14-15. In

addition, he recommended denial of Wilson’s request that the press release be removed. See id.

at 15.




                                                   4
       The ABCMR issued its decision officially denying Wilson’s application on September 9,

2009. See id. at 11. It stressed that the DOD had properly applied its 100 ng/ml

benzoylecgonine limit in preferring cocaine charges against Wilson. See id. at 10. In light of the

fact that Wilson’s request for resignation was “voluntary, administratively correct, and in

compliance with applicable regulations,” it found no basis to reconsider his OTH discharge or

cancel his debt. See id. at 10-11. Neither did it grant his request to have the press release

removed from the internet. See id. at 10.

        On February 4, 2010, Wilson filed a Complaint that initiated the instant action. He seeks

review of the ABCMR’s decision under the Administrative Procedure Act, 5 U.S.C. § 701 et seq.

Both parties have now filed Cross-Motions for Summary Judgment.

II.    Legal Standard

       Summary judgment may be granted if “the movant 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); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S. at

248. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, Inc.,

477 U.S. at 248; Holcomb, 433 F.3d at 895.

       Although styled Motions for Summary Judgment, the pleadings in this case more

accurately seek the Court’s review of an administrative decision. The standard set forth in Rule

56(c), therefore, does not apply because of the limited role of a court in reviewing the

administrative record. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006)



                                                 5
(citing National Wilderness Inst. v. United States Army Corps of Eng'rs, 2005 WL 691775, at *7

(D.D.C. 2005); Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995), amended on

other grounds, 967 F. Supp. 6 (D.D.C. 1997)). “[T]he function of the district court is to

determine whether or not as a matter of law the evidence in the administrative record permitted

the agency to make the decision it did.” Id. (internal citations omitted). Summary judgment thus

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 standard of review. See

Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977), cited in Bloch v. Powell, 227 F.

Supp. 2d 25, 31 (D.D.C. 2002), aff’d, 348 F.3d 1060 (D.C. Cir. 2003).

       The Administrative Procedure Act “sets forth the full extent of judicial authority to

review executive agency action for procedural correctness.” FCC v. Fox Television Stations,

Inc., 129 S. Ct. 1800, 1810 (2009). It requires courts to “hold unlawful and set aside agency

action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This is a “narrow” standard of

review as courts defer to the agency’s expertise. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency is required to “examine the

relevant data and articulate a satisfactory explanation for its action including a rational

connection between the facts found and the choice made.” Id. (internal quotation omitted). The

reviewing court “is not to substitute its judgment for that of the agency,” id., and thus “may not

supply a reasoned basis for the agency's action that the agency itself has not given.” Bowman

Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86 (1974) (internal

quotation omitted). Nevertheless, a decision that is not fully explained may be upheld “if the

agency's path may reasonably be discerned.” Id. at 286.



                                                  6
III.   Analysis

       By statute, the Secretary of the Army, who acts through the ABCMR, “may correct any

military record of [his] department when [he] considers it necessary to correct an error or remove

an injustice.” 10 U.S.C. § 1552(a)(1). Federal courts review final decisions of the ABCMR

under the APA, which provides that a court may “hold unlawful and set aside” agency actions

found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law” or that are “unsupported by substantial evidence.” 5 U.S.C. §§ 706(2)(A), (E); see Baker v.

Dep’t of Army, 1998 WL 389097, at *1 (D.C. Cir. 1998) Kidwell v. Dep’t of the Army, Bd. for

Correction of Military Records, 56 F.3d 279, 286 (D.C. Cir. 1995).

       Considering the wide latitude granted to the Secretary by Congress, this Circuit has found

that decisions by the ABCMR receive the benefit of an “unusually deferential application of the

‘arbitrary or capricious’ standard”:

               While the broad grant of discretion implicated here does not
               entirely foreclose review of the Secretary's action, the way in
               which the statute frames the issue for review does substantially
               restrict the authority of the reviewing court to upset the Secretary's
               determination. It is simply more difficult to say that the Secretary
               has acted arbitrarily if he is authorized to act “when he considers it
               necessary to correct an error or remove an injustice,” 10 U.S.C. §
               1552(a), 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 v. Sec’y of Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989) (emphasis in original) (Kreis

I). But this does not mean that the ABCMR’s decision cannot be reviewed by federal courts;

indeed, “[t]he court . . . must be able to conclude that the Board ‘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.’” Kreis v. Sec’y of Air Force, 406 F.3d 684, 686 (D.C. Cir.

2005) (Kreis II) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43). The Court need only

                                                 7
determine, however, “whether the Secretary’s decision making process was deficient, not

whether his decision was correct.” Kreis I at 1511.

        Wilson here maintains that the ABCMR acted arbitrarily and capriciously or contrary to

law when it denied his request to be commissioned as an officer, neglected to offer him back pay

and other appropriate relief, declined to upgrade his discharge from OTH to Honorable, failed to

discharge his debt, and did not remove the press release from the USMA’s website. 1 These

challenges fall into three analytically distinct categories. First, he disputes on various grounds

the cocaine charge originally leveled against him. As the Court will discuss shortly, these

arguments all ultimately turn on whether Wilson’s resignation was voluntary. Second, he argues

that he should not have to suffer the consequences — in particular, his OTH discharge and

$143,021 debt — of having resigned in response to the charge. Third, he contends that the press

release issued shortly after he was charged should be removed from the USMA’s website. The

Court will address each category of challenges in turn. In the end, Wilson will have to live with

the consequences of his decisions.

        A. The Underlying Cocaine Charge

        Wilson’s primary complaint concerns the positive drug test that kick-started the events at

issue in this suit. He asks the Court to remand the case to the ABCMR because it did not address

his arguments that his drug test results were consistent with mere passive ingestion of cocaine,

that his urine sample may not have been properly collected, and that the tests may not have been

accurate. See Pl.’s Mot. & Opp. at 11-14, 16. Each of these arguments aims to undermine the

validity of the cocaine charge initially brought against him. Assuming Wilson’s resignation was

   1
     Wisely, Wilson has “expressly waive[d] any right or entitlement to recover monetary damages greater than
$10,000.” Compl, ¶ 6. Had Wilson not made such a concession, the Court would lack subject matter jurisdiction
because for claims exceeding $10,000, the Tucker Act, 38 U.S.C. § 1436(a)(2), vests exclusive jurisdiction in the
U.S. Court of Federal Claims. See Bowen v. Massachusetts, 487 U.S. 879, 910 n. 48 (1988); Brown v. West, 1995
WL 623038, at *3 (D.D.C. 1995).

                                                         8
voluntary, however — an assumption that he challenges and that the Court will address — the

fact that he resigned instead of contesting the charge in a court-martial precludes this line of

attack.

          Just as a criminal defendant who voluntarily accepts a plea offer thereby waives his right

to challenge the prosecution’s evidence in court, so, too, does a cadet who voluntarily resigns

forgo the opportunity to dispute the strength of his charge in a court-martial. Our justice system

allows those accused of unlawful conduct to evaluate the potential risks and benefits of

contesting those accusations in a trial — military or otherwise — and, in light of those risks, to

choose whether to accept an opportunity to resign or a plea bargain. To allow an individual who

has chosen to resign or plead guilty to retain the right to challenge the evidence against him

would undermine the finality of pleas and destroy the incentives that encourage the government

to offer that alternative in the first place. Cf. Brady v. United States, 397 U.S. 742, 752 (1970)

(highlighting the advantages — such as the conservation of “scarce judicial and prosecutorial

resources” — that accrue to the government from offering plea bargains).

          Indeed, in Veitch v. England, 471 F.3d 124 (D.C. Cir. 2006), our Circuit held that a

serviceman could not seek review of court-martial charges brought against him when he resigned

instead of contesting those charges in a court-martial. Id. at 129. Claims regarding the

lawfulness of those charges, it suggested, were unexhausted:

                 Congress . . . carefully designed a scheme of military appeals to
                 prevent needless federal court review of military affairs. By
                 resigning in the face of his court-martial charges, however,
                 [Plaintiff] neglected to exhaust his military court remedies. See
                 Parisi v. Davidson, 405 U.S. 34, 41-46 (1972) (recognizing the
                 exhaustion requirement applied to courts-martial when the accused
                 could gain complete relief before such tribunals). . . . Successfully
                 contesting the court-martial would have provided [him] full relief
                 from the allegedly unlawful charge . . . , and when full relief is



                                                   9
               available from a court-martial, civilian courts should require resort
               to that tribunal in the first instance.


Id. If Wilson’s resignation was valid, therefore, he cannot challenge the sufficiency of the

evidence relating to his cocaine charge.

        Wilson appears to concede that his signed request for resignation was facially valid. He

nevertheless contends, however, that his resignation was tendered involuntarily. “Resignations

or retirements are presumed to be voluntary.” Veitch, 471 F.3d at 134 (quoting Tippett v. United

States, 185 F.3d 1250, 1255 (Fed. Cir. 1999)) (internal quotation marks omitted); see also Kim v.

United States, 47 Fed. Cl. 493, 497 (2000) (citing Covington v. Dep’t of Health and Human

Servs. 750 F.2d 937, 941 (Fed. Cir. 1984)). “[A] party alleging that a facially valid resignation

was in fact the product of unlawful duress must prove three elements: (1) one side involuntarily

accepted the terms of another; (2) the circumstances permitted no other alternative; and (3) the

circumstances were the result of coercive acts of the opposite party.” Veitch, 471 F.3d at 134

(citing Roskos v. United States, 549 F.2d 1386, 1389 n.11 (Ct. Cl. 1977)). Wilson argues that

his resignation was involuntary because he “faced the Hobson’s choice of a potential felony

conviction or resignation.” Pl.’s Mot. & Opp. at 14. In addition, he suggests that his “then-

attorney’s advice rendered his decision involuntary.” Id. at 15. Because, he contends, the

ABCMR did not explicitly consider these arguments and its determination that his resignation

was voluntary was merely conclusory, he asks the Court to remand this case to the ABCMR for

further consideration. The Court declines to do so for two reasons.

       First, Wilson did not adequately raise these arguments before the ABCMR. Wilson’s

Memorandum in Support of Application for Correction of Records makes no mention of any

unsound legal advice that may have induced him to resign. While its Introduction, Statement of

Facts, and Conclusion sections allude to the fact that Wilson resigned under pressure created by

                                                10
the charges hanging over his head, see A.R. at 19, 25, 30-31, the Argument section, which

contains arguments concerning the drug test and the press release, is entirely devoid of any

mention of Wilson’s resignation. See id. at 27-30. Though the Conclusion in particular details

the pressure Wilson was under when he decided to resign — specifically, he was “[f]aced with

the prospect of a felony conviction and the prospect of serving five years in prison,” id. at 31 —

the Memorandum provides no indication that Wilson actually claimed that his resignation was

involuntary as a matter of law.

       Second, to the extent Wilson did raise the argument that he resigned under duress before

the ABCMR, the Board’s determination that the “[e]vidence of record show[ed Wilson’s]

request for resignation in lieu of court-martial . . . was voluntary, administratively correct, and in

compliance with applicable regulations” was supported by substantial evidence and was not

otherwise arbitrary and capricious. Wilson’s signed request to resign itself purports to have

been made “voluntarily” and after consultation with counsel. See A.R. at 76-77. It specifically

acknowledges, moreover, the possibility that he would be discharged under OTH conditions and

be made to repay his educational expenses. See id. Coupled with the presumption of

voluntariness, this document is strong evidence that his resignation was voluntary.

       The only argument even arguably presented to the ABCMR was that the resignation was

rendered involuntary by the risk of a felony conviction and jail time that would have followed

from his proceeding to trial by court-martial. This contention comes nowhere close to meeting

the three-element test for duress. Wilson may well have felt that he had no option but to resign.

“[D]uress,” however, “is not measured by Plaintiff's subjective evaluation of [his]

circumstances.” Kim, 47 Fed. Cl. at 497 (citing Bergman v. United States, 28 Fed.Cl. 580, 586




                                                  11
(1993)). Instead, “the test for duress is objective . . . .” Veitch, 471 F.3d at 128; see also Kim,

47 Fed. Cl. at 497.

       Applying the three-element, objective test to similar facts, our Circuit has plainly held

that a serviceman cannot “escape the consequences of [his] decision [to resign] by characterizing

the court-martial charges themselves as evidence of coercion.” Veitch, 471 F.3d at 129. Indeed,

if this Court were to find that Wilson was put to a Hobson’s choice of deciding between

resignation and pursuing his arguments before a court-martial, all criminal defendants who had

pled guilty in the face of the potential for significant jail time could press a duress argument in

seeking to withdraw their pleas. Having been presented with a signed request for resignation that

contained thorough acknowledgements of the consequences of resignation and no evidence of

duress beyond the fact that charges had been proffered against him, the Court will not disturb the

ABCMR’s conclusion that Wilson’s resignation was tendered voluntarily.

       Ultimately, the Court is not unsympathetic to the difficult choice Wilson had before him.

It was, however, a choice. In choosing to resign instead of contesting the drug charge before a

court-martial, Wilson avoided the potential for a felony conviction and five years of jail time.

But losing the ability to challenge the adequacy of the evidence against him — in particular, the

drug test — was part of the bargain. Therefore, even if Wilson raised an argument that his

resignation was involuntary, the ABCMR’s rejection of that argument was supported by

substantial evidence and was not arbitrary and capricious. No reconsideration of Plaintiff’s

claims concerning the underlying cocaine charge is thus appropriate.

       B. The Consequences of Resignation

       Wilson’s Complaint, however, is not limited to the underlying charge. He also seeks to

have his discharge upgraded from OTH to Honorable and to have his $143,021 debt canceled.



                                                 12
The only argument he presents in his Motion concerning ABCMR’s denial of his claims on these

issues, however, relates to the “questionable urinalysis” and “the underlying validity of his

separation.” Pl.’s Mot. & Opp. at 17. In light of the Court’s decision that Wilson had no right to

ABCMR review of the drug test, his subsequent OTH discharge and educational debt similarly

cannot be called into question on that ground.

       Were Wilson to argue alternatively that the Board, despite his resignation, still should

have upgraded his discharge to Honorable and canceled his debt, the ABCMR’s decision was

supported by substantial evidence and was not arbitrary and capricious. As the ABCMR noted,

when Wilson enrolled at the USMA he “entered into an agreement to reimburse the United

States if he failed to complete the course of instruction at the USMA due to misconduct.” A.R.

at 8; see also id. at 32. His request for resignation, furthermore, acknowledged that he could be

required to repay the cost of his education and that he could receive an OTH discharge. See id.

at 76. In addition, he was provided with an account of the cost of his education on April 2, 2007,

which was before his request for resignation was approved. See id. at 81-82. Wilson has raised

no question as to the accuracy of the amount owed nor any reason independent from the validity

of the cocaine charge that he should not be made to pay it. Although it is unfortunate that “a

young adult without a college degree and his family are burdened with a $143,021 debt that will

undoubtedly impose a substantial hardship on them,” A.R. at 30, that is not cause to overturn as

arbitrary and capricious the ABCMR’s judgment.

       C. The Press Release

       Finally, Wilson maintains that the ABCMR erred by denying his request to have the press

release about his charge taken down from the USMA’s website. He asserts that the information

contained therein “is inaccurate as . . . Wilson did not undergo court-martial processing as the



                                                 13
press release suggests.” Id. at 27, 30. Once he resigned, he suggests, “the information regarding

his court-martial process no longer applied” and, accordingly, the release “no longer accurately

portrayed [his] legal situation.” Compl., ¶¶ 35-37. The ABCMR denied Wilson’s request to

have the release removed, however, reasoning that “since there is insufficient evidence to show

the applicant was improperly discharged, there is an insufficient basis on which to grant this

relief.” A.R. at 10. Wilson contends that this decision evinced “a clear lack of regard for truth

and the privacy of [Plaintiff]” and “denied Plaintiff his right to be free from false reports

published regarding his character and legal status,” Compl., ¶ 54, and was thus arbitrary and

capricious and contrary to law in violation of the APA.

       In response, the Agency argues that because Wilson’s claim concerning the press release

“invokes the Privacy Act as his statutory source of relief, dismissal of this claim is warranted for

lack of subject-matter jurisdiction.” Def.’s Opp. & Reply at 13. The Agency is correct that

because the APA provides review of final agency action only where “there is no other adequate

remedy,” 5 U.S.C. § 704, a “plaintiff cannot bring an independent APA claim predicated on a

Privacy Act violation.” Tripp v. Dep’t of Defense, 193 F. Supp. 2d 229, 238 (D.D.C. 2009); see

also Mittleman v. U.S. Treasury, 773 F. Supp. 442, 449 (D.D.C. 1991). To the extent he relies

on the Privacy Act and believes the Privacy Act provides him a legal remedy, therefore, Wilson

cannot seek review in this Court under the APA.

       While Wilson mentions the Privacy Act in his Complaint as one of the “applicable

statutory directives to DOD and the Army” of which the ABCMR’s decision ran afoul, see

Compl., ¶ 54, he seems to do so only in passing and premises his claim to relief on the APA, not

the Privacy Act. In his Cross-Motion, however, his only argument regarding the press release is

that the Board did not consider, as the Privacy Act requires, “whether the press release itself is



                                                 14
‘not accurate, relevant, timely, or complete.’” Pl.’s Mot. & Opp. at 18 (quoting a section of the

Privacy Act, 5 U.S.C. § 552a(d)(b)(i)). His Reply does not respond to the Agency’s argument

that APA review is unavailable for Privacy Act claims and merely reiterates this argument. See

Pl.’s Reply at 6-7. His briefing thus suggests that the Privacy Act does form the basis of his

claim, and if that is the case, § 704 of the APA precludes this Court’s review.

        To the extent Wilson’s claim concerning the press release is independent from and goes

beyond the Privacy Act, however, the ABCMR’s decision was supported by substantial evidence

and was not arbitrary and capricious. The portion of the press release that concerned Wilson

stated, in relevant part:

                Cadet Troy Wilson, E Company, 4th Regiment, Class of 2008, was
                charged with one violation of Article 112a (Wrongful Use of a
                Controlled Substance – Cocaine) of the UCMJ. . . .

                The cadets will continue with their regular duties and are not in
                pretrial confinement. They are presumed innocent until proven
                guilty in trials by courts-martial. Cadets, like other members of the
                military, are subject to military law contained in the UCMJ, a
                federal statute.

                The preferring of charges against a service member is the first step
                in the court-martial process. The next step is a pretrial
                investigation pursuant to Article 32, which is similar to a civilian
                grand jury.

A.R. at 113-14.

      Because the ABCMR found that the charge brought against Wilson was founded on a valid

drug test and that he resigned voluntarily, it determined that the press release was not inaccurate

as Wilson had claimed. That that determination was not arbitrary and capricious seems self-

evident: Wilson was in fact charged as the press release states. Although Wilson resigned in lieu

of proceeding through the court-martial process, this does not undermine the accuracy of the

release’s description of the manner in which that process ordinarily unfolds. The Court,

                                                 15
accordingly, will deny Wilson’s claim that the ABCMR erred in denying his request to have the

press release removed from the internet.

IV. Conclusion

       For the aforementioned reasons, the Court will grant Defendant’s Motion for Summary

Judgment and deny Plaintiff’s. A separate Order consistent with this Opinion will be issued this

day.

                                                    /s/ James E. Boasberg
                                                    JAMES E. BOASBERG
                                                    United States District Judge
Date: February 9, 2012




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