Wilson v. McHugh , 842 F. Supp. 2d 310 ( 2012 )

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
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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
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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
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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.
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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)
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(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.
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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
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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
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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).
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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
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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
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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.
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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
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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
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‘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,
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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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