                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA


STEVEN A. HARDY,                 :
                                 :
          Plaintiff,             :
                                 :
     v.                          : Civil Action No. 09-0660 (JR)
                                 :
JOHN M. McHUGH, Secretary of the :
Army,                            :

           Defendant.            :

                            MEMORANDUM

           Plaintiff is a retired United States Army Reserve

officer.   He sues the Secretary of the Army,1 alleging, in four

counts: violations of the Privacy Act, 5 U.S.C. § 552a, because

the Army (1) maintained an inaccurate General Officer Memorandum

of Reprimand (“MOR”) in his file; and (2) allowed him to suffer

adverse determinations based on the inaccurate MOR; and

violations of the Administrative Procedure Act (“APA”), 5 U.S.C.

§§ 702, et. seq., because (3) the Army Board for Correction of

Military Records (“ABCMR”) arbitrarily and capriciously denied

his application to correct the inaccurate MOR; and (4) the ABCMR

arbitrarily and capriciously failed to recommend him for

consideration by a Special Selection Board (“SSB”).2   Hardy



     1
          Pursuant to Fed. R. Civ. P. 25(d), John McHugh is
substituted as the defendant in his official capacity.
     2
          Under 10 U.S.C. § 628(b), the Secretary of the Army has
discretion to appoint a group of five or more officers to
determine whether a non-selected person should be recommended for
promotion due to “material unfairness” in the selection process.
requests that this Court order the Army to remove the MOR from

his record, order the Army to determine if he should be

considered for promotion by an SSB, and award him damages,

attorneys’ fees, and costs.

                         Factual Background

           Hardy served in the Army for more than 35 years.    While

on active duty, he also pursued a bachelor’s degree at a total of

six different institutions.   AR 78.   One of those institutions

was Hawaii Pacific University, where he took courses from late

1995 to early 1997.   Compl. ¶ 31.   Believing that he had

completed the requirements necessary to qualify for a bachelor’s

degree in anthropology, Hardy asked HPU to send his transcript to

the Army for inclusion in his records.    AR 102.   At some point

after he made that request, the degree was listed on Hardy’s

official Army records.   Subsequently, the Army selected Hardy to

attend the Army’s National Defense University, where he earned a

master’s degree.

           In fact, Hardy did not have a bachelor’s degree from

HPU.   He asserts that he discovered the error only in March

2003, when the Army conducted an informal investigation of him

under Army Regulation 15-6, after his ex-wife made entirely

unrelated allegations about security clearance violations.     AR

50-52.   The Army found those allegations to be baseless, but the

investigation uncovered questions about Hardy’s college degree.


                               - 2 -
          While the investigation was on-going, the Army

reassigned Hardy from a new post in Colorado Springs to a

temporary position in Virginia.    AR 103.    Believing that he would

eventually make his way back to Colorado Springs, Hardy left his

possessions - including his academic records - behind.      AR 103.

When an investigator asked for proof of his HPU degree, Hardy

answered that his records were in storage, and instead requested

an official transcript from the university.      AR 54, 103.   HPU was

slow to respond to his request, but eventually notified him that

he had not completed the degree.    AR 7.    The Army emphasizes

that, during the investigation, Hardy represented that he had

documentation in his stored belongings in Colorado, AR 88, 90-1,

but he was never able to produce it.    AR 52.

          In his final report, the investigator made the

following findings: Hardy (1) did not have a bachelor’s degree of

science in anthropology from Hawaii Pacific University when he

applied for the 2000 USAR Professional Development Education

Board (PDE); (2) was reckless, by his own admission, in allowing

the entry about his degree to remain on his Officer Record Brief

while his application was under consideration by the PDE (even

though his conduct was not clearly intentional, it amounted to a

negligent misrepresentation to the board); (3) was reckless in

allowing the degree entry to remain on the Officer Record Brief

he submitted to Colonel Robinson for use by the National Defense


                              - 3 -
College, with the result that he was awarded a master’s degree in

error; (4) did not use this ORB for any other competitive board;

(5) did not correct the misrepresentation after the Army’s

investigation (the failure to correct amounting to an intentional

misrepresentation); (6) knew he could not substantiate the

degree; and (7) would not have been selected for the National War

College if it had been known that he did not have a bachelor’s

degree.   AR 52.

           As a result of the 15-6 findings, the Army issued an

MOR on August 15, 2003, reprimanding Hardy for repeatedly

misrepresenting his educational credentials.   The MOR stated,

           “[Y]ou repeatedly misrepresented your educational
           credentials for official purposes. Your
           misrepresentations resulted in your selection for
           resident senior service college attendance and caused
           the National Defense University (NDU) to incorrectly
           issue a masters degree to you. . . . [Y]ou
           misrepresented your credentials to secure yourself a
           highly coveted resident military education opportunity
           and credential.” AR 60.

           Hardy immediately disputed the investigator’s findings

and the MOR, arguing that his mistake was not intentional and

insisting that he did not specifically apply to the NDU, rather

he applied to “Any Resident School,” some of which did not

require a bachelor’s degree for admission.   AR 62.   He did

acknowledge that he was reckless in failing to correct the error.

Id.




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            In April 2004, the Army referred the case to a Board of

Inquiry to determine whether Hardy should be separated from the

Army.    AR 71-72.   The BOI determined that Hardy’s derelict

failure to review the academic credentials in his file resulted

in a “negligent misrepresentation” of his educational level.        The

BOI found that this conduct demonstrated poor judgment in “not

aggressively pursuing confirmation of the academic entries

contained in his ORB,” but that it was not misconduct requiring

separation from the Army.     AR 83.

            After the BOI decision, the MOR remained in Hardy’s

file.    Hardy was not selected for promotion to the rank of

colonel in 2004, 2005 and 2006.     AR 67-69.   After he was notified

of his 2004 non-selection, he requested that the Department of

the Army Suitability Evaluation Board (“DASEB”) transfer his MOR

to the restricted part of his file.      The DASEB denied Hardy’s

initial request, but in November 2007, after two more non-

selections, the DASEB granted Hardy’s request to transfer the MOR

to the restricted part of his file.      AR 142.

            On December 31, 2007, Hardy was released from active

duty and transferred to the United States Army Reserve Control

Group.    AR 9.

            In January 2008, Hardy filed an application with the

ABCMR, requesting that the MOR be voided, that he be considered

for promotion to colonel by a SSB, and that he receive additional


                                 - 5 -
pay, back pay and credit for service.    AR 13-40.   The ABCMR

denied his application, finding that the MOR was neither

factually incorrect nor inaccurate.    The ABCMR reasoned that,

even though the 15-6 investigation and the BOI had both found it

unclear whether Hardy had acted intentionally, their findings of

“negligent misrepresentation” were consistent with the MOR.      AR

1-11.

                          Legal Standards

          Hardy brings this case under two statutes - the Privacy

Act and the APA.   The Privacy Act requires agencies to “maintain

all records which are used by the agency in making any

determination about any individual with such accuracy, relevance,

timeliness, and completeness as is reasonably necessary to assure

fairness to the individual in the determination.”     5 U.S.C.

§ 552a(e)(5).   A civil action is available to correct an

inaccurate record that the agency has refused to amend, 5 U.S.C.

§ 552a(d)(1)-(3), and to individuals who suffer an adverse

determination caused by an inaccurate record, 5 U.S.C.

§ 552a(g)(1)(C).

          Under the APA, the court can set aside Corrections

Board decisions that are “arbitrary, capricious or not based on

substantial evidence.”   See, e.g., Chappell v. Wallace, 462 U.S.

296, 303 (1983).   “When reviewing a decision by a military

Correction Board, a Court must do so under an ‘unusually


                               - 6 -
deferential application of the arbitrary and capricious standard

of the APA.’” Lebrun v. England, 212 F. Supp. 2d 5, 14 (D.D.C.

2002).   That “unusually deferential” standard means that a

Corrections Board need only provide a “rational connection”

between the facts and the ultimate decision.    See, e.g., Frizelle

v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997).

            The Army argues that it did not violate the Privacy Act

because the MOR was factually accurate, because the BOI findings

did not undermine the MOR, and because, even if the MOR was

factually inaccurate, it did not cause the adverse action against

Hardy.   As for the APA claims, the Army argues that the ABCMR is

entitled to additional deference from the Court where, as it did

in this case, the Board provided a rational explanation for its

decision.   Finally, the Army argues it would be improper for this

Court to award damages because the Army did not act willfully or

intentionally.   [Dkt. #6].   Hardy cross-moves for summary

judgment on Counts 1, 3 and 4, arguing that the BOI findings

discredited the factual assertions relied upon in the MOR and

that the ABCMR ignored the BOI findings.    As for Count 2, he

argues that a genuine issue of material fact exists as to whether

the MOR was the proximate cause of the adverse action.    [Dkt.

#9].




                                - 7 -
                              Analysis

            For Hardy’s Privacy Act claims, the question is whether

the Army’s judgment and decision to reprimand him rendered his

official file “inaccurate.”    As one might expect, the Privacy Act

does not authorize a court to substitute its own judgment for an

agency’s.   However, a court may correct an agency’s judgment or

opinion that is based upon clearly erroneous facts.    See, R.R. v.

Dep’t of the Army, 482 F. Supp. 770, 774 (D.D.C. 1980).

            The “judgment” that Hardy focuses on is the MOR’s

implication that he intentionally misrepresented his educational

credentials to gain admission into the NDU.    Hardy argues that

this conclusion is clearly erroneous because it has been

discredited by the BOI findings.    There are several problems with

this argument.    First, the sentence highlighted by Hardy - “you

misrepresented your credentials to secure yourself a highly

coveted resident military education opportunity and credential” -

can be read to imply a conclusion about intent, but it is hardly

the thrust of the MOR.    Rather, the MOR focuses on the causal

relationship between Hardy’s misrepresentation and his erroneous

admission into NDU and receipt of a master’s degree.    AR 60.

Second, the MOR is based on the same set of facts, and comes to

essentially the same conclusion, as all of the other

documentation in this case: the 15-6 investigation, the BOI

findings, and Hardy’s own rebuttal letter.    AR 52, 60, 62-3, 83.


                                - 8 -
Finally, even if the MOR were somehow inconsistent with the BOI

findings, Hardy has no authority for the proposition that the

Army is obligated to reconcile its conclusions, and it is not

clear that either would outweigh the other.3   That the BOI

decided to retain Hardy is irrelevant, because the MOR did not

address that issue at all.

          Hardy presents the same facts that have been considered

by various Army boards and asks me to substitute my judgment for

theirs.   I may indeed believe that it is too harsh to reprimand a

lieutenant colonel for something that may have been prompted by

an administrative error, or I may find it difficult to believe

that an army officer could mistakenly believe that he graduated

from college when he was actually a few credits shy of doing so,

but my belief is of no consequence when the Army’s judgment is

based on accurate facts.

          Hardy’s APA claim is easily disposed of.   The ABCMR

provided essentially the same explanation as I just did in its

denial of Hardy’s application, and it is neither arbitrary nor




     3
          Hardy argues that the BOI procedure is a “formal”
process, and therefore, is more thorough. Because I find that
the BOI findings are consistent with the MOR, there is no need to
address which investigation would likely come to the more
accurate result.

                               - 9 -
capricious.   Nor did the ABCMR ignore the BOI findings: in its

final decision, the ABCMR specifically addresses them.   AR 8, 10.

                            *     *      *

          An appropriate order accompanies this memorandum.




                                      JAMES ROBERTSON
                                United States District Judge




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