United States District Court, W.D. Washington, Tacoma
DANIEL M. SANDOVAL, Plaintiff,
DEPARTMENT OF THE ARMY, Defendant.
B. Leighton United States District Judge.
MATTER is before the Court on Plaintiff Daniel Sandoval's
Motion for Summary Judgment [Dkt. #15] and on the Defendant
Army Board for the Correction of Military Records
(ABCMR)'s Cross Motion for Summary Judgment [Dkt. #17]
Sandoval also asks the Court to strike [Dkt. #21] ABCMR's
Reply [Dkt. #19], calling it an unauthorized Surreply. That
motion is DENIED.
case involves an appeal of an administrative decision to
discharge Sandoval from the U.S. Army Reserve. The
Court's review is on the record.
entered the Army in July 2001, and he committed to stay in
for eight years. He was soon transferred to the Washington
Army National Guard. He was ordered to attend Officer Basic
Course (OBC) training in 2005, but the orders were revoked
because Sandoval failed his physical fitness test. In
February 2006, he was discharged from the National Guard into
the Army Reserve (USAR), for failing to complete a branch or
basic entry qualification course. Two months later, he was
again ordered to attend OBC, starting in April. He was
removed from the course for failing to pass height/weight
standards. He was then evaluated for “officer
elimination” for unsatisfactory performance. He
appeared before the administrative separation board in March
2007. In January 2008, the board recommended that he be
retained despite his substandard performance, and that he be
trained instead in a specialty that suited his abilities.
However, Sandoval was not eligible for OBC training while he
was under administrative consideration for separation.
the promotion board separately considered Sandoval for
promotion to Captain. It did so in November 2006 (before the
administrative separation review began), and again in
November 2007, while that review was pending. Both times,
Sandoval was not promoted because he did not meet the
required educational standards.
March 2008, the Army informed Sandoval he would be discharged
because he had twice been denied promotion. He was discharged
effective January 31, 2009.
appealed to the ABCMR. He complained that he could not get
the educational training he needed for promotion because he
was denied OBC training, due to the pending administrative
separation action (based on his performance). He asked to be
allowed to attend OBC. The ABCMR sought and obtained an
advisory opinion on this request, and the opinion recommended
denial, because not only had Sandoval been passed over for
promotion twice due to educational deficiencies, he was also
facing an administrative separation for performance
deficiencies. The ABCMR denied Sandoval's appeal, and he
is pro se. He vaguely claims that the ABCMR violated
his “constitutional rights, ” and that the bases
for his discharge were “fraudulent.” He seeks
summary judgment on these claims. He argues first that his
Mandatory Service Obligation (eight years) did not expire
until July 18, 2009, and that that he could not be discharged
before that obligation was met. He also claims that he could
not have been legally discharged prior to March 2, 2009,
because the Army “retained” him as of March 3,
2008; he claims that that retention lasted at least one year,
argues, persuasively, that a discharge before the expiration
of a soldier's mandatory service obligation is not a
violation of his rights-the obligation is binding on the
soldier, but not the Army:
The statutory MSO can be terminated by the Army prior to its
fulfillment. Separation due to discharge, dismissal or being
dropped from the rolls of the Army terminates a soldier's
AR 135-91(2-1)(b) (2005). Sandoval does not address the
merits of this position, or its common sense conclusion.
substance, ABCMR argues that its conclusion that
Sandoval's training opportunities were not wrongfully
withheld were not arbitrary or otherwise actionable as a
matter of law. It emphasizes that the standard of review for
administrative appeals requires Sandoval to demonstrate that
the ABCMR's decision was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). It argues that the
ABCMR's decision is entitled to “substantial
deference” and that the validity of its resolution is
“presumed.” Center for Biological Diversity
v. Kempthorne, 588 F.3d 701, 707 (9th Cir. 2009)
Court must evaluate only the legality of the decision, and
cannot second guess or otherwise substitute its judgement for
that of the agency. See Alcoa v Bonneville Power
Admin., 698 F.3d 774, 788 (9th Cir, 2012).
ABCMR determined and explained that Sandoval's discharge
for being twice passed over for promotion was not inequitable
(despite his inability to attend OBC at the end of his
tenure, and its refusal ...