Mahoney v. Del Toro

99 F.4th 25

Daniel Richard MAHONEY, Plaintiff, Appellant, v. Carlos DEL TORO, Secretary, U.S. Department of the Navy, Defendant, Appellee.

No. 23-1615

United States Court of Appeals, First Circuit

April 18, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. F. Dennis Saylor, IV, U.S. District Judge]

Emily Dupraz, with whom Jeff Goldman and Morgan, Lewis & Bockius LLP were on brief, for appellant.

Michael L. Fitzgerald, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.

Before Rikelman, Lynch, and Howard, Circuit Judges.

LYNCH, Circuit Judge.

Appellant Daniel Richard Mahoney, a U.S. Navy veteran, argues that the district court erred in rejecting his Administrative Procedure Act ("APA") challenge to the Board for Correction of Naval Records' ("BCNR") decision denying his 2018 petition to upgrade his 1989 other than honorable discharge status. See Mahoney v. Del Toro, No. 22-11074, 2023 WL 3587285 (D. Mass. May 22, 2023). We agree with the district court that the BCNR reasonably determined that Mahoney had failed to provide "substantial evidence" of "probable material error or injustice" to overcome the BCNR's presumption that military officers "have properly discharged their official duties." 32 C.F.R. § 723.3(e)(2). We hold that the BCNR's decision was not arbitrary or capricious, an abuse of discretion, unsupported by substantial evidence, or contrary to law. See 5 U.S.C. § 706(2). We affirm the district court's decision and reject Mahoney's challenge to the BCNR's decision.

I.

The following undisputed facts were in the record before the BCNR. Mahoney had two periods of service. The first, from 1985 to 1988, resulted in an honorable discharge. The second period, from 1988 to 1989, resulted in the other than honorable discharge status at issue before the BCNR.

Mahoney first enlisted in the Navy on August 27, 1985. During this enlistment, he ''witnessed a number of traumatic events" while deployed on the USS Luce, which escorted oil tankers throughout the Persian Gulf during the Iran-Iraq war. Mahoney did not receive any non-judicial punishments ("NJPs") during this time, and he was awarded a commendation for his work on the USS Luce and another for outstanding performance. He received three service ribbons. On August 24, 1988, Mahoney's first deployment ended, and he was honorably discharged.

Mahoney reenlisted the next day. The second period of service was markedly different. He was again assigned to the USS Luce, which was then stationed in Florida. In December 1988, Mahoney received an NJP for an unauthorized absence of thirty minutes from his appointed place of duty. In January 1989, he was apprehended by civilian authorities for driving while intoxicated, speeding, and "attaching [a] tag to [a] vehicle not assigned" to it. In February 1989, he received a second NJP for a separate incident involving "drunkenness."

In March 1989, the Navy evaluated Mahoney for and diagnosed him with alcohol dependency. The Navy evaluator recommended that Mahoney participate in an inpatient program for treatment of his alcohol dependency. Mahoney received treatment at the Naval Hospital in Pensacola, Florida from April 23 to June 2, 1989. He did not receive treatment during this time for "[his] stress disorder or the stress symptoms [he provided some evidence to the BCNR he] was then experiencing." In July 1989, following a relapse of his alcohol dependency, Mahoney received a third NJP for an unauthorized absence of one hour and fifty-three minutes.

In September 1989, Mahoney tested positive for marijuana following a random urinalysis. He did not contest the positive result of the urinalysis. He received a fourth NJP that month for an unauthorized absence of eleven hours and thirty minutes, another and different unauthorized absence of thirty minutes, and for wrongful use of a controlled substance.

On September 28, 1989, Mahoney's commanding officer sent him a letter notifying him that he was "being considered for an administrative discharge from the naval service by reason of Misconduct due to drug abuse and a pattern of misconduct as evidenced by four Commanding Officer's Non-Judicial Punis[h]ments in this enlistment." The letter further gave him notice that "[i]f separation is approved, the characteri[ ]zation of your service may be under other than honorable conditions."

Mahoney in response declined an opportunity to consult with counsel or to be heard before an administrative board. In a voluntary statement to the Navy on September 29, 1989, Mahoney stated that he "underst[oo]d [he was] being processed for discharge for misconduct," and that he "still ha[s] not overcome [his] drinking problem." Mahoney further stated that his "only concern [was for] this processing [to go] as smoothly as possible" so that he could "receive treatment in connection with this processing." On October 16, 1989, Mahoney declined an offer by the Navy to participate in a Department of Veterans Affairs ("VA") thirty-day drug treatment program for which he was eligible.

On October 17, 1989, Mahoney was discharged from the Navy under other than honorable conditions. In discharge paperwork recommending administrative separation signed by Mahoney's commanding officer, the reason for the separation was stated as "misconduct due to drug abuse and pattern of misconduct." The recommendation further listed the dates of the four NJPs that Mahoney had received, as well as the reasons for each NJP. Under "Comments and recommendations of Commanding Officer," the recommendation stated:

[Mahoney] was discharged from active Naval Service due to drug abuse and a pattern of Misconduct with characterization of service as other than honorable. The action taken is considered appropriate due to [Mahoney's] continued flagrant and willful violations of the [Uniform Code of Military Justice], poor attitude and resultant burden to the command. [Mahoney] was counseled . . . on [July 16, 1989], and [December 12, 1988,] concerning being processed for a discharge under less than honorable conditions if his performance and behavior does not improve. [Mahoney] had previously indicated his desire to participate in the VA drug treatment program. On [October 16, 1989,] [Mahoney] changed his request for the VA drug program and signed page 13 stating he declines this treatment. [Mahoney's] disciplinary record documents his continued misconduct. The most recent incident includes two specifications of going on unauthorized absence and one specification of wrongful use of controlled substance. Based upon a thorough review of all evidence presented I have reached a conclusion that [Mahoney] is of no further use to the Naval Service and that any continued time spent in the Navy would only cause the Navy and the command more trouble than it is worth. [Mahoney] does not object to type of discharge.

On his discharge, Mahoney did not contest the finding that he had used marijuana during his service, his commanding officer's conclusions, or his other than honorable discharge status, nor did he explain his decision to reject the offered drug treatment program.

II.

A.

On September 17, 2018, approximately twenty-nine years after his discharge from the Navy, Mahoney submitted through counsel a petition to the BCNR "request[ing] that the [BCNR] upgrade his characterization of service to Honorable or, in the alternative, General Under Honorable Conditions." Mahoney provided three "main reasons" for his request. First, that

[Post-traumatic stress disorder ("PTSD")] should be considered a mitigating factor for the misconduct that [Mahoney] engaged in that ultimately led to [his] discharge under Other than Honorable circumstances, and in this review by the Board, these circumstances, as mitigating factors, should be given liberal and special consideration under the Hagel Memo and the Kurta Memo.

Second, Mahoney argued that his "commendable overall in-service performance and model post-discharge behavior demonstrate equitable considerations that weigh in favor of an upgrade." Third, Mahoney "would under current procedures likely have been medically discharged." Mahoney stated in his petition that his PTSD had caused his alcohol dependency, which in turn had led to misconduct that "amounted to no more than multiple instances of unauthorized absences, with some absences being very short in duration, and an instance of drunkenness."

Mahoney did not address in his petition the Navy's finding that he had wrongfully used a controlled substance. Mahoney requested an opportunity to appear before the BCNR as part of his petition.

Mahoney submitted in support of his petition an assessment report by Sandra A. Dixon, a licensed psychologist. Based on in-person interviews and medical records provided for review, Dr. Dixon concluded that during Mahoney's second enlistment he had met the criteria for a PTSD diagnosis "at a severe level" and a Major Depressive Disorder diagnosis. Dr. Dixon also concluded that, had Mahoney received a more thorough evaluation during his time in the Navy, it "likely would have revealed that he was meeting the diagnosis for PTSD," and further, that the treatment Mahoney had received for alcohol abuse during his enlistment was inadequate for "someone who was exhibiting trauma responses." Dr. Dixon concluded that "there is a clear nexus between [Mahoney's] mental health disorders, specifically PTSD, and the conduct leading to [his] discharge." Dr. Dixon also stated that Mahoney's PTSD symptoms "directly led to his abuse of alcohol."

Mahoney additionally submitted in support of his petition an affidavit. Mahoney in this affidavit stated that during his second enlistment,

[he] had extreme difficulty sleeping and felt like [he] was always under constant stress. [He] felt like [he] needed to sit with [his] back to the wall. [He] also had overwhelming feelings of horror, anger and guilt daily, and

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