                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-2341


JOSEPH W. HOFFLER, Lieutenant Colonel, USAF-Retired,

                Plaintiff - Appellant,

          v.

JAMES N. MATTIS, Secretary       of   Defense;    LISA   S.   DISBROW,
Secretary of the Air Force,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Dever
III, Chief District Judge. (2:14-cv-00063-D)


Submitted:   August 31, 2016                 Decided:    February 22, 2017


Before GREGORY, Chief Judge, and KING and DIAZ, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina,
for Appellant.      John Stuart Bruce, Acting United States
Attorney, Matthew L. Fesak, Assistant United States Attorney,
Raleigh, North Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Joseph W. Hoffler, a retired Lieutenant Colonel with the

United    States    Air    Force,       appeals    the    district      court’s      order

dismissing in part and granting summary judgment in part to the

Defendants in Hoffler’s action challenging the Air Force Board

for Correction of Military Records’ (“AFBCMR” or “Board”) denial

of Hoffler’s application for correction.                       For the reasons that

follow, we affirm in part and dismiss in part.

       “We review a grant of summary judgment de novo, employing

the same standards used by the district court.”                            Randall v.

United    States,    95    F.3d    339,     348    (4th    Cir.    1996).        Summary

judgment is appropriate when no genuine dispute of material fact

exists and the moving party is entitled to judgment as a matter

of law.     Fed. R. Civ. P. 56(a).               “Only disputes over facts that

might affect the outcome of the suit under the governing law

will     properly    preclude       the         entry     of    summary        judgment.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

       Decisions of the AFBCMR are final agency actions subject to

judicial review under the Administrative Procedure Act.                                See

Chappell v. Wallace, 462 U.S. 296, 303 (1983).                            The Board’s

decisions    can    only   be     set    aside     by    this   court     if    they    are

arbitrary, capricious, not based on substantial evidence, or not

in     accordance   with     law.         Id.;     Randall,       95   F.3d     at     348;

Mickens v. United States, 760 F.2d 539, 541 (4th Cir. 1985); see

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5 U.S.C. § 706(2) (2012).         “In determining whether agency action

was arbitrary or capricious, the court must consider whether the

agency considered the relevant factors and whether a clear error

of judgment was made.”        Ohio Valley Envtl. Coal. v. Aracoma Coal

Co., 556 F.3d 177, 192 (4th Cir. 2009).

     Hoffler   contends       that    the    AFBCMR        acted    arbitrarily          and

capriciously in rejecting his claim that he should have been

promoted to colonel by the 1984 promotion board.                         The scope of

judicial review of military promotion decisions is very limited.

Unless a special selection board (“SSB”) has been convened, our

jurisdiction   over     military       promotion           claims   is       limited      to

“review[ing]   a    determination       by     the    Secretary         of   a    military

department . . . not to convene a special selection board.”                              10

U.S.C. § 628(g)(1)(A) (2012); see also § 628(h).                             No SSB was

convened for Hoffler, and Hoffler did not request that one be

convened.    Thus, we lack jurisdiction over Hoffler’s promotion

claim and must dismiss this portion of his appeal.

     Hoffler also asserts that the AFBCMR acted arbitrarily and

capriciously   in     denying    his    request           to   remove    a    letter     of

reprimand   (“LOR”)    from     his    file.         He    argues   that         the   Board

failed to consider the determination of an Equal Opportunity and

Treatment (“EOT”) inquiry that the investigation underlying the

LOR was flawed.     We disagree.        The AFBCMR expressly acknowledged

some of the conclusions of the EOT inquiry that Hoffler alleges

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it   overlooked.      Moreover,     we   conclude         that    the   Board      acted

reasonably   in    refusing    to   remove        the    LOR.     While      the   Board

acknowledged      Hoffler’s    attacks       on   the     procedure     of    the   LOR

investigation, it was faced with Hoffler’s own admission that he

committed the reprimanded conduct.

      Finally,     Hoffler      challenges         the     Board’s      refusal       to

reinstate his Meritorious Service Medal, which was revoked in

1985.     Although     the    record     contains        various     assertions      by

Hoffler as to why the revocation of his medal was improper,

these   assertions      constitute       no       more     than    unsubstantiated

speculation.      We concur with the district court that Hoffler has

failed to provide evidence that the discretionary decision to

revoke the medal was inappropriate.

      Accordingly,     we     dismiss    Hoffler’s         promotion      claim      and

affirm as to Hoffler’s remaining claims.                   We dispense with oral

argument because the facts and legal contentions are adequately

expressed in the materials before this court and argument would

not aid the decisional process.

                                                                  AFFIRMED IN PART;
                                                                  DISMISSED IN PART




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