MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                         Jan 28 2015, 9:33 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Gregory F. Zoeller                                        Edward J. Merchant
Attorney General of Indiana                               Ruckelshaus Kautzman Blackwell
                                                          Bemis & Hasbrook
Frances Barrow                                            Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Indiana Law Enforcement                                   January 28, 2015
Training Board,                                           Court of Appeals Cause No.
                                                          22A01-1407-MI-321
Appellant-Respondent,
                                                          Appeal from the Floyd Circuit Court
        v.                                                The Honorable J. Terrence Cody,
                                                          Judge
                                                          Cause No. 22C01-1305-MI-777
Theodore D. Comer, Sr.,
Appellee-Petitioner




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A01-1407-MI-321 | January 28, 2015     Page 1 of 14
                                             Case Summary

[1]   The Indiana Law Enforcement Training Board (“the Board”) appeals a trial

      court judgment setting aside its revocation of Theodore D. Comer, Sr.’s

      certificate of completion of basic training (“certification”) at the Indiana Law

      Enforcement Academy (“the Academy”). Finding that the Board’s decision to

      revoke Comer’s certification was arbitrary and capricious and was not

      supported by substantial evidence, we affirm the trial court.


                                 Facts and Procedural History

[2]   In 2001, Comer enlisted in the U.S. Navy and served as an information systems

      technician third class petty officer in Iceland from 2002 through May 2005.

      During his time of service, he received various medals, ribbons, and letters of

      commendation. In 2004, he was disciplined for unauthorized absence when on

      one occasion he failed to return to his ship before it set sail for the next port. As

      a result, he received a demotion and a short-term pay reduction and restriction

      to the ship.


[3]   After his discharge from the Navy in 2005, Comer worked as a correctional

      officer for the Department of Correction and then as a deputy with the Marion

      County Sheriff’s Department. In January 2010, he was hired by the Indiana

      University Police Department (“IUPD”) for its southeast campus in New

      Albany. As part of the hiring process, he disclosed that he had received an

      honorable discharge from the Navy on May 25, 2005. Also as part of the


      Court of Appeals of Indiana | Memorandum Decision 22A01-1407-MI-321 | January 28, 2015   Page 2 of 14
      process, IUPD conducted a character and background investigation as well as a

      polygraph, which he passed. IUPD determined that he was a person of good

      reputation and character and sent him to the Academy for basic training in

      March 2010. On his first day there, Comer filled out a personnel data sheet in

      which he listed his military discharge status as “honorable.” He finished at the

      top of his training class and received his Academy certification in July 2010.


[4]   In January 2011, Comer accepted a position with the Michigan City Police

      Department (“MCPD”). In the hiring process, he presented his May 25, 2005

      discharge form. In December 2011, a domestic incident occurred at Comer’s

      home, but no charges were filed. Comer returned to his job with IUPD in New

      Albany in January 2012. When Comer left MCPD, some MCPD officers

      began investigating him. Three months later, MCPD contacted the Board

      concerning alleged discrepancies in Comer’s military discharge paperwork.

      The Board commenced an investigation, and IUPD Chief Charles Edelen

      informed Comer concerning a discrepancy in his military discharge status. The

      Board set a hearing and notified Comer that the hearing would be held to

      determine whether to revoke his Academy certification based on his military

      discharge status and lack of good character. The Board’s executive director,

      Rusty K. Goodpaster, would serve as administrative law judge (“ALJ”), and

      the deputy director, Michael J. Lindsay, would serve as prosecutor.


[5]   At the January 2013 hearing, two different Department of Defense discharge

      forms were presented: (1) a DD 214 dated May 25, 2005 (“May DD 214”),

      listing Comer’s discharge as “honorable”; and (2) a DD 214 dated August 9,

      Court of Appeals of Indiana | Memorandum Decision 22A01-1407-MI-321 | January 28, 2015   Page 3 of 14
      2005 (“August DD 214”), listing Comer’s discharge as “other than honorable.”

      Petitioner’s Exs. G, H. Comer’s official Navy file contained the August DD

      214 but not the May DD 214. The signature and initials on the May DD 214

      were consistent with those affixed on all of the other documents in Comer’s

      Navy file. The August DD 214 contained a signature and initials inconsistent

      with those affixed on all of his other Navy documents.


[6]   The hearing exhibits include a summary of Comer’s polygraph results as well as

      in-depth, question-by-question information. Comer also introduced a voucher

      and line of accounting form showing that the Navy had paid his moving

      expenses following his May 2005 discharge. Director John Lanzone of Navy

      Personnel Support Detachment testified telephonically that the Navy pays the

      expenses of moving household goods only for members receiving an honorable

      discharge. He also testified that he had examined Comer’s May DD 214 listing

      his discharge as honorable and that it appeared to be “very authentic.”

      Appellant’s App. at 190. He explained that when a DD 214 discharge form

      needs to be updated or corrected after it has been issued to the discharged

      member, the proper procedure is to issue a DD 215. Nothing in Comer’s Navy

      file indicates that a DD 215 was ever issued. Comer testified that following his

      June 2005 move back to Gary, Indiana, police arrested him based on a national

      crime database that indicated he had deserted his ship in May 2005. The Navy

      flew him to California to clear up the error. He testified that he never knew that

      there was any change in his discharge status, that he never saw or signed a

      second discharge form, and that he was unaware of the August DD 214’s


      Court of Appeals of Indiana | Memorandum Decision 22A01-1407-MI-321 | January 28, 2015   Page 4 of 14
      existence until Chief Edelen informed him of it in April 2012. Immediately

      thereafter, he filed a petition with the Navy Discharge Review Board to correct

      his discharge status, which was still pending as of the date of the legal

      proceedings below.


[7]   The ALJ issued an order revoking Comer’s certification, concluding that it had

      been issued on the basis of information later determined to be false. The Board

      affirmed the ALJ’s decision, and Comer filed a petition for judicial review. The

      trial court issued an order setting aside the revocation order, concluding that the

      Board’s determination was arbitrary and capricious and unsupported by

      substantial evidence. The Board now appeals. Additional facts will be

      provided as necessary.


                                     Discussion and Decision

[8]   The Board maintains that the trial court erred in setting aside its order revoking

      Comer’s Academy certification. When reviewing the decision of an

      administrative agency, we are bound by the same standard as the trial court.

      Umbrella Family Waiver Servs., LLC v. Ind. Family & Soc. Servs. Admin., 7 N.E.3d

      272, 274 (Ind. Ct. App. 2014). This standard of review is outlined in the

      Administrative Orders and Procedures Act (“AOPA”) and prohibits the

      reviewing court from substituting its judgment for that of the agency. Id. at 274-

      75. Instead, the reviewing court considers the evidence in the light most

      favorable to the administrative proceedings and neither reweighs evidence nor

      assesses witness credibility. Pendleton v. McCarty, 747 N.E.2d 56, 61 (Ind. Ct.

      Court of Appeals of Indiana | Memorandum Decision 22A01-1407-MI-321 | January 28, 2015   Page 5 of 14
       App. 2001), trans. denied. The reviewing court shall grant relief only if it

       determines that the person seeking judicial relief has been prejudiced by an

       agency action that is:

               (1) arbitrary, capricious, an abuse of discretion, or otherwise not in
               accordance with law;

               (2) contrary to constitutional right, power, privilege, or immunity;

               (3) in excess of statutory jurisdiction, authority, or limitations, or short
               of statutory right;

               (4) without observance of procedure required by law; or

               (5) unsupported by substantial evidence.

       Ind. Code § 4-21.5-5-14(d).


[9]    “An administrative act is arbitrary and capricious only where it is willful and

       unreasonable, without consideration and in disregard of the facts and

       circumstances of the case, or without some basis that would lead a reasonable

       and honest person to the same conclusion.” Terra Nova Dairy, LLC v. Wabash

       Cnty. Bd. of Zoning Appeals, 890 N.E.2d 98, 104 (Ind. Ct. App. 2008) (citation

       omitted). The burden of demonstrating the invalidity of agency action is on the

       party seeking review of the action. Id. “Substantial evidence is such relevant

       evidence which a reasonable mind might accept as adequate to support the

       conclusion.” Roberts v. Cnty. of Allen, 773 N.E.2d 850, 853 (Ind. Ct. App. 2002),

       trans. denied.


[10]   In the interest of public safety and general welfare, the Indiana General

       Assembly established mandatory training for law enforcement officers and

       Court of Appeals of Indiana | Memorandum Decision 22A01-1407-MI-321 | January 28, 2015   Page 6 of 14
       created the Board to oversee and carry out the law pertaining to the training of

       such officers. Ind. Code §§ 5-2-1-1, -3. The Board contends that it revoked

       Comer’s certification based on Indiana Code Section 5-2-1-12.5, which reads in

       pertinent part, “(a) The board may revoke a … certificate … showing

       compliance and qualification issued by the board for any of the following

       reasons: …. (3) The officer’s … certificate … showing compliance and

       qualification was issued in error or was issued on the basis of information later

       determined to be false.” (Emphasis added.) Specifically, the Board alleged that

       the “information later determined to be false” was Comer’s assertion that he

       was honorably discharged from the Navy.


[11]   Throughout the proceedings, Comer steadfastly maintained that he never knew

       that his discharge status had changed, that he did not sign the second form, and

       that he never knew it existed. He claimed that he did not learn of the

       inconsistency in his discharge status until April 2012, after which he

       immediately petitioned the Navy Discharge Review Board for a correction of

       military record. In support of his claim that he received an honorable

       discharge, Comer presented evidence that the Navy paid for his June 2005

       move, which it would not have done if he had received an “other than




       Court of Appeals of Indiana | Memorandum Decision 22A01-1407-MI-321 | January 28, 2015   Page 7 of 14
[12]   honorable” discharge.1 See Respondent’s Ex. 2 (consisting of Department of

       Defense form for moving expenses and line of accounting from Navy showing

       issuance of reimbursement check dated March 29, 2006); see also Appellant’s

       App. at 194 (testimony of Director Lanzone that Navy pays expenses of

       moving household goods only for personnel who receive an honorable

       discharge).


[13]   The Board correctly points out that because Indiana Code Section 5-2-1-

       12.5(a)(3) does not specifically require that the officer have knowledge of the

       falsity, it did not have the burden of establishing Comer’s awareness of his

       “other than honorable” discharge. Nonetheless, the ALJ found Comer not to

       be credible with respect to his claim of unawareness and concluded in part,

               Deserting the U.S. Navy once or twice; being caught by a Gary,
               Indiana police officer while AWOL from the U.S. Navy; and
               representing to his first police employer, [IUPD] – New Albany, then
               to his second employer, [MCPD] when hired and to the [Academy], as
               well when he was admitted for basic training that he had a[n]




       1
         The ALJ’s findings emphasize a link between the classification of Comer’s discharge and his alleged lack of
       good reputation and character. 250 Indiana Administrative Code 2-3-5 requires that every applicant for
       officer training “be of good reputation and character as determined by a police department character and
       background investigation on the applicant … .” (Emphasis added.) IUPD was the department that sent Comer
       to the Academy. The record indicates that during the hiring process, IUPD conducted a background check
       on Comer that included a polygraph, which he passed, and made a determination that he was of good
       reputation and character.



       Court of Appeals of Indiana | Memorandum Decision 22A01-1407-MI-321 | January 28, 2015          Page 8 of 14
               honorable discharge (which was false), are all factors that individually
               and jointly clearly demonstrate a lack of good reputation and character at the
               time he applied for and received his [Academy] basic training
               certificate.


[14]   Appellant’s App. at 322 (emphasis added). The Board agreed and affirmed the

       ALJ’s decision.


[15]   The Board now submits that the trial court violated its standard of review in

       finding Comer to be credible concerning his alleged unawareness of any change

       in his discharge status. In its order setting aside the Board’s decision, the trial

       court found in pertinent part,

               3. On May 25, 2005, Petitioner was issued a Certificate of Release or
               Discharge From Active duty (“DD214”) indicating an “Honorable
               Discharge. Petitioner signed the DD214. The DD214 contained a
               reserve obligation termination date of 2009 05 17. The Navy paid for
               the Petitioner to move his household goods, his vehicles and
               motorcycle, together with his wife’s articles back to Gary, Indiana.
               The uncontroverted evidence was that the Navy would not pay for
               such travel expenses if a less than honorable discharge was received.


               4. Petitioner was arrested for desertion by a Gary Police Officer on
               July 18, 2005.


               5. Following Petitioner’s arrest, the Navy flew Petitioner back to
               California to face the desertion charge. An administrative hearing was
               held. Petitioner was not court martialed. Petitioner was ultimately
               separated from the U.S. Navy with no reserve obligation.


               6. According to military records but unbeknownst to Petitioner
               another DD214 was issued on August 9, 2005 indicating that he had
               received an “Other Than Honorable Discharge.”


       Court of Appeals of Indiana | Memorandum Decision 22A01-1407-MI-321 | January 28, 2015   Page 9 of 14
        …


        10. Prior to being hired by the IUPD, Petitioner successfully passed a
        background investigation. As part of the background investigation,
        Petitioner successfully completed a polygraph examination.


        …


        22. Petitioner testified at the hearing that the signature and the initials
        on the DD214 indicating “Other than Honorable Discharge” were not
        his.


        …


        24. Petitioner’s discharge characterization of “Other than Honorable”
        is disputed and the subject of an application to the Board of Correction
        for Military Records and the Discharge Review Board. [The Board]
        became aware of such application on or about June 27, 2012.


        25. The uncontroverted evidence was that Petitioner signed and
        initialed the DD214 issued on May 25, 2005 and that it was his
        genuine signature and initials. The signature on the DD214 indicating
        an “Other than Honorable Discharge” is not consistent with other
        records maintained in Petitioner’s Navy Personnel file.


Id. at 54-55, 57.


The trial court concluded in part as follows:

        A. There is substantial evidence in the record that would support the
        ALJ’s conclusion that Petitioner’s official U.S. Navy military
        discharge status is “other than honorable” based on the DD214 issued
        on August 9, 2005, however, this “other than honorable[”] discharge
        is being disputed and is the subject of an application by the Petitioner
        with the Board of Correction for Military Records and the Discharge

Court of Appeals of Indiana | Memorandum Decision 22A01-1407-MI-321 | January 28, 2015   Page 10 of 14
               Review Board. Until there is a decision by the Review Board, the use
               of the “other than honorable” discharge in and of itself, does not
               provide an adequate basis for revoking Petitioner’s certification under
               I.C. 5-2-1-12.5(a).


               ….


               F. There is not substantial evidence in the record to support [t]he
               findings and conclusions of the ALJ that Petitioner misrepresented or
               gave false information concerning his discharge status from the United
               States Navy at the time of his application and hiring by IPUD [sic], his
               admission and graduation from the Academy and his application and
               hiring by MCPD.


               G. In analyzing the Record as a whole, the decision of the [Board] to
               revoke Petitioner’s certificate is not supported by substantial evidence.


               H. The decision of the [Board] to revoke Petitioner’s certificate is
               arbitrary and capricious in that it was made without consideration or
               in disregard to the facts and circumstances of the case regarding
               Petitioner’s knowledge of his discharge status at the time he applied
               and was hired by IUPD, attended and graduated from the Academy
               and at the time he applied and was hired by MCPD in not holding in
               abeyance a decision until such time as Petitioner’s discharge status was
               finally determined by the Board of Correction for Military Records
               and the Discharge Review Board.


       Id. 65-67.


[16]   The Board asserts that the trial court improperly substituted its judgment for the

       ALJ’s and did not defer to the expertise of the administrative agency.

               Where the matter lies within the particular expertise of the
               administrative agency, we afford the finding a greater level of
               deference. Where the matter does not lie within the particular
               expertise of the agency, however, the reviewing court is more likely to

       Court of Appeals of Indiana | Memorandum Decision 22A01-1407-MI-321 | January 28, 2015   Page 11 of 14
                exercise its own judgment. Regardless, the court examines the logic of
                the inference drawn and imposes any rules of law that may drive the
                result. The Board’s conclusion must be reversed if the underlying facts
                are not supported by substantial evidence or the logic of the inference
                is faulty, even where the agency acts within its expertise, or if the
                agency proceeds under an incorrect view of the law.


       Chrysler Grp., LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d 118,

       122-23 (Ind. 2012).


[17]   Here, the pivotal issue concerns the status of Comer’s military discharge, which

       is a matter within the expertise of the Department of Defense, not the state law

       enforcement training board. At the time of the trial court’s order, Comer’s

       petition to correct his discharge classification was still pending before the body

       most suited to resolve it – the Navy Discharge Review Board.2


[18]   At the ALJ hearing, Director Lanzone testified telephonically concerning

       Department of Defense procedures surrounding discharges. He explained that

       where a DD 214 discharge form has already been issued to the discharged

       member, a change in discharge status would be accomplished by issuing a DD




       2
         In this vein, we also note the frequent use of the term “desertion” in the briefs and in the findings. The
       military has specific definitions for terms such as “desertion,” “AWOL,” and “unauthorized absence,” and
       these designations carry vastly different consequences. Because these are matters within the expertise of the
       military, we advise the parties and the tribunals below to exercise caution in using these terms without also
       including their specific military definitions.



       Court of Appeals of Indiana | Memorandum Decision 22A01-1407-MI-321 | January 28, 2015           Page 12 of 14
       215 form to correct or update the original DD 214. Comer’s official

       Department of Defense record does not include a DD 215 form. Director

       Lanzone also testified that he had reviewed Comer’s May DD 214 indicating

       an honorable discharge and concluded that it appears to be “very authentic, it

       does not look to be forged at all.” Appellant’s App. at 190. Moreover, he

       testified that Comer’s signature and initials on the May DD 214 matched those

       contained in all of Comer’s other naval records. When asked to explain what

       might account for the inconsistent signature and initials contained on the

       August DD 214, Director Lanzone posited that when such a discrepancy exists,

       it could be attributable either to the discharged sailor intentionally signing the

       form differently in the hope of later challenging its authenticity or to the records

       clerk having failed to obtain the required signature and initials from the sailor

       and signing the form himself. He did not render a professional opinion as to

       what occurred in Comer’s case, and any attempt to characterize his testimony

       as such would be a misrepresentation of the record.


[19]   In sum, the ALJ’s decision to revoke Comer’s Academy certification was based

       on the status of his discharge from the Navy. At the time of the Board’s

       decision, Comer’s petition to correct his military record was pending with the

       Navy Discharge Review Board. As such, the truth or falsity of Comer’s

       assertion of an honorable discharge had not been determined. In other words,

       the character of Comer’s discharge is a question with a definite answer which

       should be provided by the body with expertise and access to the information.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1407-MI-321 | January 28, 2015   Page 13 of 14
[20]   Even if the Navy Discharge Review Board determines that Comer’s correct

       discharge status is “other than honorable,” such status would not by itself

       constitute grounds for revocation of his certification. The administrative

       regulations disqualify from the Academy only applicants whose discharge

       status is “dishonorable.” See 250 Ind. Admin. Code 2-3-8 (“A dishonorable

       discharge from military service shall disqualify the applicant, and a discharge

       other than honorable may be grounds for rejection in accordance with other

       standards in this rule.”) (Emphasis added.) Here, Comer’s true discharge status

       is either “honorable” or “other than honorable.” Even assuming that it is

       “other than honorable,” he nonetheless could have been admitted to the

       Academy. Thus, it cannot be said that his certification was issued on the basis of

       his “honorable” discharge. Based on the foregoing, we affirm the trial court’s

       decision to set aside the revocation of Comer’s certification.


[21]   Affirmed.


       Friedlander, J., and Kirsch, J., concur.




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