     In the United States Court of Federal Claims
                                 No. 13-171C
                         (Filed: December 23, 2013)


**********************

KEITH A. HOUGHTLING,

                     Plaintiff,             Military pay; Article 15 Non-
                                            judicial punishment; Justiciability;
v.                                          Disability Retirement;
                                            Administrative Separation
THE UNITED STATES,

                     Defendant.

**********************

       Emily M. Wexler, Chicago, IL, for plaintiff.

       Barbara E. Thomas, United States Department of Justice, Commercial
Litigation Branch, Washington, DC, with whom were Marian E. Sullivan,
Assistant Director, Jeanne E. Davidson, Director, Stuart F. Delery, Assistant
Attorney General, for defendant. Lt. Col. Christopher C. Cox, U.S. Army
Litigation Division, of counsel.
                                 _________

                                  OPINION
                                  _________

BRUGGINK, Judge.

       This is an action for military pay. Plaintiff, Keith A. Houghtling,
challenges a decision by the Army Board of Correction of Military Records
(“ABCMR”) to deny his application challenging his administrative separation
from the U.S. Army. Plaintiff asserts that his separation was wrongful and that
he is entitled to back pay and retirement benefits. The United States
(“defendant”) filed a motion to dismiss the complaint for lack of jurisdiction

                                      1
and failure to state a claim and, alternatively, a motion for judgment on the
administrative record. Plaintiff filed a response and cross-motion for judgment
on the administrative record. The motions are fully briefed, and oral argument
is unnecessary. For the reasons set forth below, we grant defendant’s motion
for judgment on the administrative record.

                              BACKGROUND

       Plaintiff served in the Army during two separate time periods. He first
served from 1991 to 1994. In 2002, he re-enlisted, starting as a Private (E2)
and rising to the rank of Sergeant (E5) by April 1, 2004. AR1 430. On
October 29, 2005, plaintiff began a deployment in Iraq as a combat medic. AR
52. An evaluation of his service from February 2005 through January 2006
described him as “a confident leader that is dedicated to ensuring his soldiers
are well trained.” AR 104-05.

       The Army performed drug tests on plaintiff’s unit in Iraq in February
2006. Plaintiff tested positive for Benzodiozepine (valium). AR 115-17. On
April 20, 2006, he received a notice that he was subject to an investigation and
other appropriate proceedings. See AR 117-18.

       On April 30, 2006, a lieutenant sent an email to one of the physicians
of plaintiff’s unit, asking whether he had ever given plaintiff anything that
would cause him to test positive for valium. See AR 125. In a reply email, the
physician, Captain (“Capt.”) Sundquist, stated:

       I have tried to recall all the medications that I gave, however, I
       am truly unable to recall all the events. I only recal[l] having
       given pain co[n]trol medications. I very well may have given a
       few valium but if they were taken when I was there they would
       have cleared out of the body by now.

AR 125. Captain Sundquist also emailed plaintiff on May 5, 2006. AR 126.
He noted that, “I have honestly tried to remember what I gave you, and I
cannot say with certainty that I did or did not give any benzo’s [valium]. I
recall giving you pain medications but not anxiety/sleep meds.” AR 126.



1
 “AR” refers to the Administrative Record in this case filed by defendant on
May 16, 2013.

                                       2
       As a response to the test results of plaintiff and other soldiers, the
Army’s Criminal Investigation Command questioned members of plaintiff’s
unit. Acting on the advice of counsel, plaintiff did not provide information.
AR 98. The following soldiers provided sworn statements: Private First Class
(“PFC”) Pallenes, Specialist Devon Prince, PFC Christopher Mady, and PFC
James Kirlin.

        PFC Pallanes stated that, on one occasion, he used valium to help him
sleep. AR 211. He asserted that he was given the valium by another solider,
PFC Johnson. When Pallanes asked Johnson where he got the valium,
Johnson said he bought the drugs while on patrol with plaintiff. AR 211.
Johnson allegedly told Pallenes that Johnson, plaintiff, and an interpreter
walked into an Iraqi pharmacy and “‘asked if they had Valium and they said -
yes.’” AR 211. According to Pallenes, Johnson also allegedly told him that
plaintiff bought steroids. AR 211. Pallenes never saw plaintiff take illegal
drugs and had no personal knowledge that plaintiff did so. See AR 212.

        Specialist Prince also made a statement that referred to plaintiff visiting
an Iraqi pharmacy. AR 214. Prince stated that he went on a patrol to Ad Dawr
in January 2006. The patrol consisted of three humvees carrying Prince,
Johnson, plaintiff, and several other soldiers. AR 214. Prince stated that, after
the trucks stopped in Ad Dawr, plaintiff, Johnson, and two others dismounted
and walked out of sight. AR 214. Twenty minutes later, plaintiff and the
others came back to the truck, and the patrol moved out of Ad Dawr. Plaintiff
was in a separate humvee from Prince. AR 214.

        The patrol eventually stopped at a tree line. According to Prince,
plaintiff and Johnson approached one of the other trucks. Prince stated that
Johnson then “approached our truck with some pills which were in a blister
package. He told us they were Valiums and was talking about how they were
legal in this country.” AR 214. Another private then left Prince’s truck and
came back with a package that was allegedly steroids. AR 211. Someone told
Prince that “Doc Houghtling had only paid $10.00 for each of these.” AR 214.
Prince also stated, however, that he never saw plaintiff take any illegal drugs.
AR 216.

       PFC Mady also gave a statement that he saw plaintiff, a staff sergeant
named Smith, and other soldiers visit an Iraqi pharmacy in Ad Dawr in January
2006. AR 218. Mady stated that “they were car[ry]ing little plastic bags when
they left.” AR 218. He also stated that he saw plaintiff sleeping by an Iraqi
bunker at a later date and that plaintiff “was trying to put his right glove on his

                                        3
left hand. He kept staring at it for the longest time and then attempted to try
to put it on again.” AR 219. According to Mady, Smith was nearby. Smith
allegedly said he gave plaintiff four pills and exclaimed “‘man I am f--d up!’”
Id. Mady stated that he asked Smith what pills he took. Smith allegedly
replied that they were the same pills that plaintiff took. AR 219.2

        PFC Kirlin stated that he witnessed plaintiff trying to “put his gloves on
for 10-20 minutes.” AR 221. Kirlin also asserted that he saw Smith at that
time, who “seemed like he was in slow motion.” AR 221. In Kirlin’s opinion,
it looked like the two had taken valium, AR 221, but he added that he had not
actually seen plaintiff take valium. AR 221-22. He also asserted that plaintiff
had purchased steroids. AR 222.

        The Criminal Investigation Command took all of the above statements
on or before May 29, 2006. See AR 211-23. On June 13, 2006, Lieutenant
Colonel (“Lt. Col.”) Louis Lartigue notified plaintiff that he was considering
whether to punish plaintiff under Article 15 of the Uniform Code of Military
Justice (“UCMJ”), 10 U.S.C. § 815 (2012). AR 358. The notice charged
plaintiff with the wrongful use of Benzodiazepine (valium), a violation of
Article 112a of the UCMJ, 10 U.S.C. § 912a (2012). AR 358.

       According to the notice given to plaintiff, he had certain rights in an
Article 15 proceeding. Plaintiff could present evidence on his behalf, have an
open or closed hearing, and have someone speak on his behalf. AR 358. He
also could decline an Article 15 proceeding and exercise his right to a trial by
court martial. AR 358. Lt. Col. Lartigue stated that “I will not impose any
punishment unless I am convinced beyond a reasonable doubt that you
committed the offense(s).” AR 358.

       Plaintiff did not exercise his right to a court-martial, nor did he request
an open hearing or ask for a person to speak on his behalf. He chose to present
his defense in person, AR 358, and prepared a letter for his defense, AR 98,
123-24.

      In the letter, plaintiff stated, “I am 95 percent certain that I was given
valium by CPT Sundquist in January 2006. He treated me for stress/anxiety


2
 The sworn statements of PFC Pallenes, Specialist Prince, PFC Mady, and
PFC Kirlin appear in the AR at pages 211-22 and were considered by the
ABCMR. See AR 53.

                                        4
and gave me medication for it.” AR 123. He further asserted that, although
he did not have a copy of the prescription, Capt. Sundquist gave him one. Id.
The statement also asserts that a fire destroyed the unit’s aid station and its
medical records in late January. Id. An email in the administrative record
gives support for this assertion that a fire took place. AR 122.

         Plaintiff’s closed hearing took place on June 18, 2006. AR 98. The
evidence before Lt. Col. Lartigue included the emails from Capt. Sundquist
regarding plaintiff and the statements from PFC Pallenes, Specialist Devon
Prince, PFC Christopher Mady, and PFC James Kirlin. The colonel found
plaintiff guilty of the charges. He demoted plaintiff to Specialist (E4) and
ordered plaintiff to forfeit $1009 pay for two months, to serve an extra 45 days
of duty, and to serve under restriction for 45 days. AR 358. Plaintiff’s appeal
of this decision was denied on June 23, 2006. AR 358.

       On August 30, 2006, plaintiff arrived at Fort Carson, Colorado, to begin
the process of separation from the Army. AR 99. At Fort Carson, plaintiff
suffered from short-term memory loss, “anxiety, nightmares, and feelings of
panic.” AR 99. He had serious difficulty completing his tasks. AR 99.

        The Army gave plaintiff’s unit a urinalysis test on September 21, 2006.
AR 54, 320. Plaintiff missed this test because he was at sick call. AR 54, 320.
On September 23, 2006, plaintiff visited a night club, got drunk, and used
cocaine. AR 99. At that point, he became worried about the harm the drugs
would cause and checked into the hospital. AR 99. He requested a drug test
and tested positive for cocaine. AR 99. He notified his chain of command the
next day. AR 320. Also on that day, the Army conducted drug tests for
plaintiff and others who missed the earlier test. The tests results showed that
plaintiff had used cocaine. See AR 54, 320, 325-27, 339.

      On December 7, 2006, Major Christopher E. Barkocy gave plaintiff a
Notice of Separation pursuant to Army Regulation (“Army Reg.”) 635-200,
Chapter 14-12c, Commission of a Serious Offense. AR 28.3 The notice

3
    The provision states:

         Soldiers are subject to action for the following:
         .....
         c. Commission of a serious offense. Commission of a serious
         military or civil offense, if the specific circumstances of the offense

                                          5
initiated an action to separate plaintiff for the wrongful use of “Benzodizepine
in a deployed environment.” AR 28. Major Barkocy did not list any other
reason for separation. AR 28-29. The notice also indicated that the
Commander at Fort Carson, Major General Robert W. Mixon, would make the
final decision of whether to separate plaintiff. AR 28, 210.

       Attached to the notice were six documents regarding plaintiff’s service.
See AR 29. According to the list, one attachment was “MFR, UA test code,
dtd 5 Dec 06.” AR 29. This title referred to a “Memorandum for Record.”
This memo recited that plaintiff tested positive for cocaine while visiting the
emergency room in September 2006 and his positive test for cocaine at the
base the next day. AR 28-31.

        Major Barkocy also submitted a commanding officer’s report to the
separation authority. In the report, he recommended plaintiff’s separation
under Army Reg. 635-200, for “wrongfully using Benzodiazepine in a
deployed environment.” AR 30. The report contained a provision for
“[d]erogatory information other than Article 15 and Court-Martial
proceedings.” AR 31. Major Barkocy entered “None” as the response. AR
31. Attached to the report were several documents. One of those documents
included “MFR, UA test code, dtd 5 Dec 06,” the same “Memorandum for
Record” that was attached to the notice given to plaintiff and that recited
plaintiff’s positive test for cocaine at the hospital. See AR 22, 316, 315-18.

        In January 2007, prior to the Army’s decision of whether to separate
plaintiff, a psychiatrist diagnosed him with Post-Traumatic Stress Disorder.
AR 129. This initiated proceedings before the Medical Evaluation Board
(“MEB”). As part of his statement to the board, Staff Psychiatrist Dr. Gerald
Bissell concluded that plaintiff suffered from “hyper vigilance, hyper startle,
irritability, emotional withdrawal, restricted affect, anxiety, insomnia,
dsyphoria, flashbacks, diminished interest in things, and feeling detached from
others.” AR 133. Dr. Bissell found that, according to Army Regulation 40-




       warrant separation and a punitive discharge is, or would be,
       authorized for the same or a closely related offense under the MCM.
       (2) Abuse of illegal drugs is serious misconduct.

Army Reg. 635-200, ch. 14-12.

                                       6
501 ¶ 3-33,4 plaintiff “did not meet retention requirements.” AR 133. Major
Barkocy also submitted a statement to the medical board. AR 130-31. He
asserted that plaintiff was “using the medical system as a way to get out of the
trouble that he is in and to obtain benefits as he exits the U.S. Army.” AR 130.

       The MEB issued a report on March 8, 2007. The report noted that,
because of his post-traumatic stress disorder, plaintiff failed “to meet retention
standards in accordance with AR 40-501 chapter 3, paragraph 3-33.” See AR
149-50, 154-55. The report referred plaintiff to a Physical Evaluation Board
to determine if he was fit for duty. AR 155.5 Plaintiff never appeared before
that board, however, due to his intervening administrative separation.

        Plaintiff appeared in front of the Elimination Board on or about March
12, 2007. See AR 55, 205-08, 292. Evidence considered by the board
included the commanding officer’s report to the board from Major Barkocy,
along with attachments. See AR 31, 315-18. Plaintiff also submitted a letter.
AR 205-08. In it, he described his continued difficulty with post-traumatic
stress. AR 205-08. The letter did not recite facts regarding plaintiff’s non-
judicial punishment in Iraq. The Administrative Record does not contain a
record of the proceeding from the Elimination Board.

        On April 20, 2007, Major General Mixon issued his decision regarding
plaintiff’s administrative separation. He recognized that the MEB referred
plaintiff to a Physical Evaluation Board. He found, however, that plaintiff’s
“medical condition is not a direct or substantial contributing cause of his
misconduct and that administrative separation under Chapter 14-12c,
Commission of a Serious Offense, is appropriate in this case.” AR 210. He
approved plaintiff’s separation and ordered that plaintiff’s service “be
characterized as General, (under Honorable Conditions).” AR 210.




4
 Army Reg. 40-501 ¶ 3-33 lists the reasons for referring a soldier to a Medical
Evaluation Board as a result of an anxiety disorder. Paragraph 3-1 of the same
regulation states that “This chapter gives the various medical conditions and
physical defects which may render a Soldier unfit for further military service.”
5
  The United States Code provides that, if a soldier is unfit for duty because
of a disability, the Army may retire him with retirement pay. See 10 U.S.C. §
1201 (2012).

                                        7
       Plaintiff applied to the ABCMR on August 31, 2010. AR 63. He
requested, inter alia, that the ABCMR correct his records to show a medical
retirement, award an honorable discharge, expunge his Article 15 punishment
for Valium, and refer him to a Physical Evaluation Board for a disability rating
and possible benefits. AR 79.

       Plaintiff specifically challenged the Article 15 punishment and his
administrative separation. According to plaintiff, the Army failed to prove that
he wrongfully used Valium beyond a reasonable doubt, as required by Army
Reg. 27-10 ¶ 3-18(l).6 AR 80. Plaintiff thus asserted that the Army failed to
comply with its own regulations. See AR 80. Plaintiff alleged that the
separation was improper because it was based on the Article 15 punishment.
AR 85.

       The ABCMR denied the application on February 10, 2011. In its
decision, the Board recited the facts of plaintiff’s case in a section entitled
“Consideration of Evidence.” AR 52-58. This section recited several events
regarding plaintiff’s service.

      After noting that plaintiff tested positive for valium in February 2006,
the Board described the events that followed. In its description of one of Capt.
Sundquist’s emails regarding plaintiff’s valium use, the Board notes that Dr.
Sundquist

       only recalled giving [Mr. Houghtling] pain control medication.
       He states he very well may have given [Mr. Houghtling] a few
       valium but if they were taken when [Dr. Sundquist] was there
       they would have cleared out of the body by the time of the
       urinalysis. The doctor stated he had been gone for a few months
       and the applicant should not be on any medications that he gave
       him.

AR 53.




6
  Army Regulation 27-10 ¶ 3-18(l) states that “[p]unishment will not be
imposed unless the commander is convinced beyond a reasonable doubt that
the Soldier committed the offense(s).”

                                       8
        The Board also referred to the statements made by other members of
plaintiff’s unit to the Criminal Investigation Command. Three of the
statements, according to the Board, “implicate[d] him in the purchase of illegal
substances (steroids) from an Iraqi pharmacy.” AR 53. The Board
characterized the evidence as revealing the “widespread availability of valium
illegally purchased off the Iraqi market by members of the applicant’s unit.”
AR 53. The decision also noted that, according to the statements given by
plaintiff’s fellow unit members, plaintiff was observed “having difficulty
putting on gloves, slurring his speech, and being drowsy during an operation
prior to the urinalysis.” AR 53.

        Also recited by the Board were the events involving plaintiff’s service
when he returned to the States. The decision notes that plaintiff used cocaine
at a night club and that he tested positive for cocaine while at the emergency
room and after a drug test performed by the Army the next day. AR 53-54.
The Board noted that plaintiff was subject to a separation board proceeding
and that “[t]he results of this board were not available for review.” AR 55.

        In its “Discussion and Conclusions” section, the Board found that there
was sufficient evidence to uphold plaintiff’s non-judicial punishment of June
2006. The Board noted: “[t]he prevalence of illegal valium obtained by a
member of [Mr. Houghtling’s] unit while he was present, the fact that his
doctor could not remember prescribing him valium, and the fact that the
applicant was unable to produce a prescription for valium.” AR 59.7 Also
relevant to the Board were the statements that plaintiff purchased steroids and
that he appeared to be under the influence of valium during an operation. AR
59. The Board found that “[i]t is reasonable to conclude the officer imposing
the applicant’s NJP [non-judicial punishment] exercised discretion in the NJP
process for the applicant’s offense. Therefore, there is insufficient basis to
expunge his Article 15, restore his rank, or restore the forfeiture of pay.” AR
59.

       The ABCMR also noted that “[t]he applicant was not processed for
separation based solely on his positive urinalysis for cocaine. However, as
indicated in his commander’s letter, dated 31 January 2007, he was being
processed for separation based on his valium use in Iraq and a positive


7
 On May 11, 2012, plaintiff asked the Board to partially reconsider its ruling.
The Board denied this request as untimely.

                                       9
urinalysis for cocaine.” AR 59. The board concluded that plaintiff was
properly separated from the Army. “The records contain no indication of
procedural or other errors that would have jeopardized his rights.” AR 60.

       In his complaint in this court, plaintiff makes his claim in four counts.
Count I makes a claim for disability and retirement pay under 10 U.S.C. §
1201 (2012), asserting that the non-judicial punishment and administrative
separation decision were “arbitrary, capricious, contrary to law, and
unsupported by substantial evidence.” Compl. ¶¶ 111-12.

        Count II makes a claim under 37 U.S.C. § 204(a)(1) for the money that
plaintiff lost because of the non-judicial punishment: the fine imposed in his
Article 15 punishment, the subsequent reduction in rank, repayment of part of
his enlistment bonus, and what he would have earned but for his administrative
separation.

       Count III challenges the status of plaintiff’s military records pursuant
to 28 U.S.C. § 1491(a)(2), specifically his DA Form 2627 that shows his
Article 15 punishment. He requests a correction of that record.

       Count IV challenges the introduction of allegedly protected evidence
into the separation proceedings in March 2007.8 Plaintiff requests an
honorable discharge as a result of that introduction of evidence, also pursuant
to 28 U.S.C. § 1491(a)(2).

        Defendant filed the Administrative Record and now moves to dismiss
the first three counts of the complaint as not justiciable under rule 12(b)(6).
Defendant also moves to dismiss Count IV for lack of jurisdiction. In the
alternative, the government moves for judgment on the administrative record
under rule 52.1 of the Rules of the United States Court of Federal Claims
(“RCFC”). Plaintiff opposes the government’s motion to dismiss on all but
one count and cross-moves for judgment on the administrative record. In his
reply brief, plaintiff conceded that this court lacks jurisdiction over Count IV


8
  Paragraph 6-5(c) of Army Regulation 600-85 provides that, if protected
evidence is submitted in a soldier’s administrative separation proceedings, he
will receive an honorable discharge. See Compl. Exh. 2 at 11. Plaintiff alleges
that the results of his emergency room drug tests are protected evidence, per
paragraph 6-4a(3) of Army Regulation 600-85. See id. at 10.

                                      10
of the complaint and requests that we dismiss that count without prejudice.
We grant that request.

                                DISCUSSION

        We have jurisdiction over claims seeking money damages from the
United States. 28 U.S.C. § 1491(a)(1) (2006). This includes actions for back
pay pursuant to the Military Pay Act, 37 U.S.C. § 204 (2006). Metz v. United
States, 466 F.3d 991, 998 (Fed. Cir. 2006). This extends to claims for pay and
benefits that a service member would have received absent a wrongful
discharge. See Holley v. United States, 124 F.3d 1462, 1463 (Fed. Cir. 1997).
We may also order the correction of military records “as an incident of and
collateral to” an award of monetary damages. Id. § 1491(a)(2); see Voge v.
United States, 844 F.2d 776, 781 (Fed. Cir. 1988).

I. Justiciability

        Although not challenging our jurisdiction over plaintiff’s complaint,
defendant argues that plaintiff has not presented issues for which we can
provide relief. That is to say, defendant believes that this case presents
questions beyond our competence. See generally Voge, 844 F.2d at 780 (“A
controversy is ‘justiciable’ only if it is ‘one which the courts can finally and
effectively decide, under tests and standards which they can soundly
administer within their special field of competence.’”) (citations omitted). We
must be able to identify a duty and a breach, and determine “whether
protection for the right asserted can be judicially molded.” Baker v. Carr, 369
U.S. 186, 192 (1962). If we are unable to do so, we will dismiss the complaint
for failure to state a claim for which relief may be granted pursuant to RCFC
12(b)(6). In deciding a motion under rule 12(b)(6), we will assume the
allegations in the complaint are true and make all reasonable inferences in the
favor of the non-moving party. Perez v. United States, 156 F.3d 1366,1370
(Fed. Cir. 1998).

        The question of justiciability “is a particularly apt inquiry when one
seeks review of military activities,” as defendant points out. Murphy v. United
States, 993 F.2d 871, 872 (Fed. Cir. 1993). There are many “routine personnel
decisions regularly made by the services which are variously held . . . beyond
the competence . . . of courts to wrestle with.” Voge, 844 F.2d at 780. Judicial
review is only possible where the discretion inherent in the military command
is limited and there are “‘tests and standards’ against which the court can

                                      11
measure [the military’s] conduct.” Murphy, 993 F.2d at 873 (quoting
Sargisson v. United States, 913 F.2d 918, 922 (Fed. Cir. 1990)). Even when
that discretion is unlimited, however, the military is “bound to follow its own
procedural regulations if it chooses to implement some.” Murphy, 993 F.2d
at 873. We are not called upon to exercise the discretion “reserved for the
military” but we can and do decide “whether the procedures were followed by
applying the facts to the statutory or regulatory standard.” Id.

        We must examine plaintiff’s claims to determine whether they are
suited for judicial review. Count I of the Complaint alleges plaintiff’s
entitlement to disability pay and benefits, which he alleges he would have
received had he not be discharged prior to the Army referring him to a Physical
Evaluation Board (“PEB”). Plaintiff alleges that his administrative separation
was wrongful because it was based solely on an invalid Article 15 punishment.
He alleges specifically that it was in violation of the Army’s requirement that
Article 15 punishments not be imposed unless the commanding officer is
convinced beyond a reasonable doubt of the accused’s guilt. It follows, for
plaintiff, that it was arbitrary and capricious for the ABCMR to have upheld
the Army’s discharge and denied plaintiff disability benefits.

        Count II is based on the same underlying allegation of wrongdoing in
the discharge based upon an invalid Article 15 punishment and the Board’s
denial of relief. Count II asks for the basic pay that Mr. Houghtling would
have received had he not been demoted and discharged prior to the expiration
of his term of service and for the amount of his enlistment bonus that he was
required to pay back due to early separation. Count III follows on by asking
the court to correct plaintiff’s service records to show his proper rank of E5
rather than E4, expunge his records pertaining to discharge for drug use, and
correct the denial of reference to a PEB.

        Defendant argues that each of these claims is a challenge to the merits
of the Article 15 proceedings and resulting punishment. Defendant quotes the
language used in the complaint: “The Army’s imposition of nonjudicial
punishment on Houghtling in the absence of proof beyond a reasonable doubt
that he used Valium wrongfully was arbitrary, capricious, contrary to law, and
unsupported by substantial evidence.” Compl. ¶ 123. This is, in defendant’s
view, not a challenge to the due process afforded Mr. Houghtling and is
instead a disagreement with the Army’s conclusion that he used valium
without a prescription. Defendant cites the opinion of our predecessor court
in Cochran v. United States, in which the Court of Claims stated that “it is not

                                      12
this court’s function to review the merits of findings of guilt in Article 15
punishment proceedings, but only the disregard or violation of the
Constitution, statute or regulations in the conduct of proceedings.” 1 Cl. Ct.
759, 770 (1983).

        Plaintiff responds in two ways. First, plaintiff points us to Fisher v.
United States, 420 F.3d 1167 (Fed. Cir. 2005), and argues that the Federal
Circuit expressly declined to limit its review to procedure only. See id. at
1178-79. Second, plaintiff argues that this is a case in which “tests and
standards” can be applied to determine whether the Army’s actions were
proper. Plaintiff cites Army Regulation 27-10 ¶ 3-16(d)(4); ¶ 3-18l, which
plaintiff argues restricts the discretion of the Army by requiring proof beyond
a reasonable doubt in Article 15 proceedings. Thus, plaintiff argues, he seeks
review of the ABCMR’s decision that the Army properly applied the “‘beyond
a reasonable doubt’ standard.” Pl.’s Opp’n and Cross Mot. 21.

       We begin by identifying the scope of review afforded by the procedural
posture of this case. Because plaintiff sought relief from the ABCMR, we are
limited to reviewing the decision of the board under the standards of review
for agency action. See Metz, 466 F.3d at 998. Although much of the
complaint is cast in the light of a challenge to the Article 15 proceedings, it is
only through the lens of the Board’s decision that we may look at those
proceedings. Plaintiff asked the ABCMR to correct his records by expunging
the Article 15 punishment, upgrading his discharge, restoring his rank to
sergeant, and referring him to a PEB. The basis for these requests is that the
Army failed to prove that he wrongfully used valium beyond a reasonable
doubt. Absent that, he would not have been discharged and would have been
referred to a PEB.

        We are regularly confronted with claims for back pay for wrongful
discharge and with claims of entitlement to disability benefits. The fact that
a nonjudicial punishment is the root cause of the alleged wrongs is not
sufficient to remove the case from our competence. Plaintiff claims that a
particular regulation requiring a standard of proof was not followed in his
Article 15 proceedings. The same claim was made before the ABCMR. The
board disagreed with plaintiff, and now we are confronted with review of the
board’s decision under a highly deferential standard. This level of review is
sufficiently distinct from review of the sorts of decisions that are purely
discretionary and undertaken routinely by the military. We are not called upon
to reweigh the evidence presented at the Article 15 hearing or to delve into the

                                       13
Army’s decision to administer such a punishment. Rather, we will decide only
whether the record supports the ABCMR’s decision that the Army followed
its own procedures. Plaintiff has therefore alleged a claim upon which this
court may afford relief. Defendant’s motion to dismiss Counts I, II, and III as
nonjudiciable is denied.

II. Judgment On The Administrative Record

       We turn now to the merits of the ABCMR’s decision. We review a
decision of a military board for correction of records under the deferential
standards prescribed for review of agency action in the Administrative
Procedures Act, 5 U.S.C. §§ 701-06 (2012). Metz, 466 F.3d at 998. The
standard is whether the decision was “arbitrary, capricious, unsupported by
substantial evidence, or contrary to law.” Porter v. United States, 163 F.3d
1304, 1312 (Fed. Cir. 1998). Factual disputes are resolved by reference to the
administrative record, see Bannum, Inc. v. United States, 404 F.3d 1346, 1354
(Fed. Cir. 2005), and plaintiff must establish from this record “by clear and
convincing evidence that the board’s decision was arbitrary and capricious,”
Rose v. United States, 35 Fed. Cl. 510, 512 (1996).

       This case hangs on the sole question of whether the Army followed its
own Army Reg. 27-10 ¶ 3-18(l), which provides that “[p]unishment will not
be imposed unless the commander is convinced beyond a reasonable doubt that
the Soldier committed the offense(s).” The ABCMR decided that it did and
from that concluded that the consequences of the Article 15
punishment–demotion, discharge, and no PEB– were proper as well. In light
of our standard of review, we agree.

        It is clear from the ABCMR’s decision that it considered the relevant
facts pertaining to the Article 15 punishment. It recited them point by point in
seven pages of its written decision. See AR 52-58. It is also clear that the
board understood and considered the relevant Army regulation requiring that
the commander be convinced beyond a reasonable doubt. AR 59 (“The record
establishes the commander determined the evidence was sufficient to find the
applicant guilty beyond a reasonable doubt.”). The board likewise found that
it was reasonable to conclude from the record that the commander had
considered the mitigating factors and the evidence that raised doubt of
plaintiff’s guilt. Id. The board found nothing additional presented by plaintiff
to be sufficient to upset the Article 15 punishment. Id.



                                      14
        It is telling that plaintiff’s arguments now concern how the evidence
ought to have been weighed and what testimony plaintiff’s commander and
then the ABCMR should have credited. Plaintiff argues that no evidence was
presented to show that he lacked a prescription, that valium was available at
the aid station where he was stationed, that the statements of Dr. Sundquist are
ambiguous and insufficient, that the amount of valium that plaintiff used was
within prescription norms, and that the testimony presented from fellow
soldiers did not affirmatively state that plaintiff used valium. Defendant
naturally counters each of those arguments with the statements and evidence
upon which Lt. Col. Lartigue concluded that Mr. Houghtling wrongfully used
valium. Defendant concludes that this is sufficient to support the board’s
conclusions to uphold the punishment. We agree.

        We are not in a position to reconsider the evidence and draw our own
conclusions. The fact that a reasonable person might have reached a different
conclusion is insufficient to overturn the decision of a board. Heisig v. United
States, 719 F.2d 1153, 1156 (Fed. Cir. 1983). As long as there is substantial
evidence9 to support the board’s action, it must be upheld. See id. at 1157.
The ABCMR considered all of the evidence, considered whether Lt. Col
Lartigue applied the proper standard, and thereby followed the regulations, and
whether the subsequent administrative separation followed procedure. It
decided against plaintiff. We cannot identify any irrationality in the board’s
decision. It did not misapply any standard or fail to consider any evidence.
We must therefore affirm its conclusion and grant judgment on the
administrative record to defendant.

                               CONCLUSION

        For the foregoing reasons, defendant’s motion to dismiss Count IV for
lack of jurisdiction is granted, defendant’s motion to dismiss Counts I, II, and
III for failure to state a claim is denied, defendant’s motion for judgment on
the administrative record is granted, and plaintiff’s cross motion for judgment
on the administrative record is denied. Accordingly, the clerk of court is
directed to enter judgment for defendant and dismiss the complaint with
prejudice. No costs.



9
  Substantial evidence is defined as “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Nippon Steel Corp.
v. United States, 458 F.3d 1345, 1351 (Fed. Cir. 2006).

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     s/Eric G. Bruggink
     ERIC G. BRUGGINK
     Judge




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