UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 15-1870


CHRISTOPHER P. DOWNEY,

                   Plaintiff - Appellant,

             v.

UNITED STATES DEPARTMENT OF THE ARMY; ERIK FANNING, Secretary
of the United States Department of the Army,

                   Defendants - Appellees.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:14-cv-01503-LMB-TCB)


Argued: December 9, 2016                                     Decided: April 13, 2017


Before GREGORY, Chief Judge, MOTZ, Circuit Judge, and Richard D. BENNETT,
United States District Judge for the District of Maryland, sitting by designation.


Affirmed by unpublished opinion. Chief Judge Gregory wrote the opinion, in which
Judge Motz and Judge Bennett joined.


ARGUED: Erin Jude Kuenzig, THOMAS MORE LAW CENTER, Ann Arbor,
Michigan, for Appellant. Antonia Marie Konkoly, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellees. ON BRIEF: Richard Thompson,
Erin E. Mersino, THOMAS MORE LAW CENTER, Ann Arbor, Michigan;
Samuel C. Moore, LAW OFFICE OF SAMUEL C. MOORE, PLLC, Alexandria,
Virginia, for Appellant. Dana J. Boente, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                            2
GREGORY, Chief Judge:

       Lieutenant Colonel Christopher T. Downey appeals the district court’s grant of

summary judgment on his claims under the Administrative Procedure Act (“APA”),

5 U.S.C. § 702 et seq., in favor of the United States Department of the Army and

John M. McHugh, Secretary of the Department of the Army (“Appellees”), and dismissal

of his due process claims. Downey alleged that the Army Board for Correction of

Military Records (the “Board”) arbitrarily and capriciously denied his request to remove

a record from his personnel file that stated he was found guilty of assault. Downey also

alleged that the procedures used to determine his guilt violated the Due Process Clause.

For the reasons stated below, we affirm the district court’s judgment.



                                             I.

       The district court’s opinion sets forth the extensive procedural history of this case,

so we do not relay it here. See Downey v. U.S. Dep’t of the Army, 

(E.D. Va. 2015). We recount only the relevant factual background.

       On April 14, 2012, the 6th Squadron, 6th Cavalry, 10th Combat Aviation Brigade

held a ball where Downey, Commander of the Brigade, was the commanding officer.

During the ball, a soldier informed Downey of allegedly inappropriate behavior on the

dance floor. The soldier stated that he saw Captain Katherine Robinson and Second

Lieutenant Heather Parsons dancing and kissing. The soldier also stated that he believed

the couple was being photographed.




                                             3
       Downey approached two individuals holding cameras who he believed were

photographing the couple.      Downey attempted to lower Specialist Jeremy Reuter’s

camera by pushing it down, but instead knocked the camera into Reuter’s face. The

camera struck Reuter in the nose, causing him to fall to the floor. Downey approached

Robinson and Parsons and told them to “watch their behavior and what they were doing

was unacceptable and placed them in a compromising situation.”            J.A. 98.   When

Downey left the dance floor, he spoke to Captain Thomas Jones, who saw what

transpired, and Downey explained that he believed Reuter was taking inappropriate

photographs of Robinson and Parsons. Downey explained that in 2011 a male officer in

his unit videotaped several female officers who were showering and Downey’s intention

was to prevent any possible exploitation of Robinson and Parsons. Jones examined

Reuters’s photos and reported to Downey that he did not see any inappropriate pictures.

In the meantime, Reuter was taken to the hospital and was diagnosed with a concussion

and fractured nose. 1

       After Downey’s exchange with Robinson and Parsons, Command Sergeant Major

Patrick McGuire approached the couple and got into a heated discussion with Robinson,

in which he allegedly called her a disgrace and an abomination. McGuire eventually

pushed Robinson to the ground and walked away. The following evening, Downey

spoke to both Parsons and Robinson. He told Parsons that the unit had to move past the


       1
        It was later determined that Reuter did not have any facial bone fractures, but this
information was not provided to the Board.



                                             4
event, and told Robinson to forget the incident with McGuire and that if she reported it,

her career would be adversely affected. Downey also told them he had nothing against

their sexual orientation.

       On April 18, 2012, Major General Mark A. Milley, Downey’s superior officer,

assigned Colonel Paul Schlimm to investigate the incidents at the ball. After a thorough

investigation, in which Schlimm interviewed Downey, Reuters, Robinson, Parsons,

McGuire, and several other officers who witnessed the events, Schlimm determined that

Downey committed an “assault consummated by a battery.” J.A. 138. Schlimm also

found that Downey violated Army Directive 2011-01—the repeal of 10 U.S.C. § 654,

commonly known as “Don’t Ask, Don’t Tell”—by enforcing the public displays of

affection policy against Robinson and Parsons, but not against heterosexual couples
                               2
engaged in similar behavior.       Schlimm also found that Downey may have engaged in

obstruction of justice by advising Robinson not to report McGuire’s conduct.

       Based on Schlimm’s recommendation, Major General Milley initiated nonjudicial

punishment (“NJP”) proceedings against Downey pursuant to Article 15 of the Uniform

Code of Military Justice (“UCMJ”), 10 U.S.C. § 815, for the offense of assault

consummated by a battery. An Article 15 proceeding is a non-adversarial, summary

proceeding at which a commanding officer may impose discipline on his subordinates

“for minor offenses without the intervention of a court-martial.” 10 U.S.C. § 815(b).


       2
         Army Directive 2011-01 did not affect the enforcement of public displays of
affection (“PDA”) standards, as the policy is sexual orientation neutral. J.A. 341. PDA
is generally prohibited. J.A. 350.


                                             5
Service-members have the option to refuse an Article 15 proceeding and demand an

adversarial court-martial. 

see Guerra v. Scruggs, 

, 272 (4th

Cir. 1991). Courts-martial, which are nearly always presided over by lawyer-judges with

counsel for both the prosecution and the defense, generally resemble judicial

proceedings. Middendorf v. Henry, 

, 31 (1976) (referring to general and

special courts-martial); accord 10 U.S.C. § 816. Article 15 proceedings provide fewer

procedural rights than trials by court-martial, but limit the nature of punishments

imposed. See Dwight H. Sullivan, Overhauling the Vessel Exception, 43 Naval L. Rev.

57, 58–59 (1996) (identifying procedural rights not afforded during Article 15

proceeding, including legal representation, suppression of unconstitutionally obtained

evidence, confrontation of one’s accuser, and decision by a panel of disinterested service

members); see also Parker v. Levy, 

, 750 (1974) (noting that Article 15

proceedings imposed limited discipline, including suspension, reduction in pay grade,

and arrest in quarters for not more than thirty days).

       Upon notice of the Article 15 proceeding, Downey requested to speak to a military

lawyer, who allegedly told him that if he demanded a court-martial, he would be required

to hire a civilian lawyer. Downey chose to submit to the Article 15 proceeding and the

military lawyer allegedly recommended that she not appear as a spokesperson on his

behalf because he would seem weak. On May 30, 2012, during the Article 15 hearing,

Milley determined that Downey was guilty of assault consummated by battery in

violation of UCMJ Article 128. Milley found him not guilty of obstruction of justice and

dismissed a disorderly conduct charge. Downey appealed Milley’s assault finding, which


                                              6
was denied on June 27, 2012. On June 4, 2012, Milley completed an officer evaluation

report for Downey, giving him a satisfactory performance rating—a level below his usual

“outstanding performance” rating—and noting that he was relieved of his command

position due to his poor judgment at the ball. On June 8, 2012, Milley issued Downey

letters of reprimand for the assault against Reuter and for violating Army Directive 2011-

01. Milley also issued a letter that stated he lost confidence in Downey’s ability to

command the Brigade and relieved Downey from his position.

       On August 16, 2013, Downey applied to the Board for removal of the Article 15

record. Downey presented several arguments in his petition, including: the elements of

assault were not met because he used lawful force and the incident was an accident; there

were no facts demonstrating that his hand or fist came in contact with Reuter; x-ray

reports demonstrated that Reuter’s nose was not fractured; 3 he was not given the right to

present a full defense; Milley did not use the reasonable doubt standard when finding him

guilty; the refusal to produce a transcript of the Article 15 hearing hindered his ability to

file a meritorious appeal and obtain effective assistance of counsel; the letter of

reprimand regarding the assault was not supported by the evidence because the majority

of the Article 15 hearing discussed his alleged violation of Army Directive 2011-01; 4 the

finding that he violated the directive was legally incorrect; the repeal of Don’t Ask Don’t


       3
          Downey submitted an x-ray report showing that Reuter did not have a spinal
fracture, but it made no mention of Reuter’s nose. J.A. 88.
       4
           Downey did not seek removal or correction of the letters of reprimand.



                                              7
Tell was not an appropriate subject for a letter of reprimand because his conduct did not

involve denying homosexuals the right to serve in the armed forces; Robinson and

Parsons violated the PDA standard; he was not acting out of an intent to discriminate

against the women, but to protect them from exploitation; the publicity surrounding the

repeal of Don’t Ask Don’t Tell motivated the decision to find him guilty of assault; and

he had an outstanding military career.

       The Secretary of the Department of the Army, acting through the Board, is

authorized to correct any Army military record when he “considers it necessary to correct

an error or remove an injustice.” 10 U.S.C. § 1552(a)(1). An application for correction

of a military record is considered by a panel of at least three Board members. 32 C.F.R.

§ 581.3(e)(3)(i).   The Board members are charged with the responsibility to first

“[r]eview all applications that are properly before them to determine the existence of

error or injustice.” 

The Board will then recommend a correction if it

determines that “the preponderance of the evidence shows that an error or injustice

exists” in an applicant’s records. 

A denial of an application is a

final action of the Board, 

and the denial must be in writing, 

       On October 21, 2013, the Board issued an opinion denying Downey’s application.

The Board stated that it considered all of the evidence submitted by Downey and the

arguments in the brief submitted by his counsel. J.A. 24-29. The Board found that “[t]he

evidence of record confirms [Downey] violated the UCMJ while serving as [a Lieutenant

Colonel], in a leadership position and subsequently accepted NJP . . . for unlawfully


                                             8
striking a Soldier on his face with a camera which he pushed into his face.” J.A. 30-31.

The Board also acknowledged that Downey “was provided a defense attorney, was given

the right to demand trial by court-martial, and was afforded the opportunity to appeal the

Article 15 through proper channels.” J.A. 31. The Board concluded that the Article 15

proceeding was “conducted in accordance with law and regulation” and that “there is no

evidence of record and [Downey] provides no evidence to show the [Article 15 record] is

untrue or unjust.” 

error or injustice, the Board found “no reason” to

remove the Article 15 record. 

12, 2014, Downey brought this action against Appellees, alleging

that the Board’s decision was arbitrary and capricious and failed to address and correct

due process violations during his underlying Article 15 proceeding (Counts I and II).

Downey also alleged his Article 15 proceeding violated his Fifth Amendment right to due

process (Counts III and IV). Appellees moved for summary judgment as to Counts I and

II, and to dismiss Counts III and IV for failure to state a claim upon which relief could be

granted. Downey filed a cross-motion for summary judgment as to Counts I and II. On

June 19, 2015, the district court granted Appellees’ motions and denied Downey’s

motion. This appeal timely followed.



                                            II.

       We first address the district court’s judgment regarding the parties’ cross-motions

for summary judgment as to Counts I and II.




                                             9
       We review de novo the district court’s grant of summary judgment, employing the

same standard used by the district court. Randall v. United States, 

, 348 (4th

Cir. 1996). “A district court ‘shall grant summary judgment 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.’” Jacobs v. N.C. Admin. Office of the Courts, 

, 568 (4th

Cir. 2015) (quoting Fed. R. Civ. P. 56(a)). When reviewing an appeal from cross-

motions for summary judgment, this Court must separately review the merits of each

motion, taking care to “resolve all factual disputes and any competing, rational inferences

in the light most favorable to the party opposing that motion,” Defs. of Wildlife v. N.C.

Dep’t of Transp., 

, 392 (4th Cir. 2014), to ascertain “whether either of the

parties deserves judgment as a matter of law,” 

v. City of Richmond,

, 638 (4th Cir. 2007)).

       Under the APA, this Court’s review of a Board’s decision is quite limited as the

Board has broad authority to correct servicemembers’ records. 10 U.S.C. § 1552(a);

Guerra v. Scruggs, 

, 273 (4th Cir. 1991). We will set aside the Board’s

decision only if it was arbitrary, capricious, contrary to law, or unsupported by substantial

evidence. 

. Because review of an agency’s decision is narrow,

the function of this Court is not to reweigh the evidence presented to the Board, make

credibility determinations, or substitute its judgment for that of the agency. See 

; see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.

Ins. Co., 

, 43 (1983) (considering an agency’s ruling arbitrary and capricious

if it “offered an explanation for its decision that runs counter to the evidence before the


                                             10
agency, or is so implausible that it could not be ascribed to a difference in view or the

product of agency expertise.”).       Rather, this Court must determine “whether the

conclusion being reviewed is supported by substantial evidence.” 

(quoting Robbins v. United States, 

, 725 (1993)); see Platone v. U.S.

Dept. of Labor, 

, 326 (4th Cir. 2008) (stating substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion”).

       Primarily, Downey argues that the Board’s decision was arbitrary and capricious

because it failed to address or resolve all of his arguments and did not articulate a rational

connection between its factual findings and legal conclusions. Downey states that the

Board’s decision failed to address his arguments concerning an x-ray report that

demonstrated that Reuter’s nose was not fractured, his defense that Reuter’s injury was

an accident, his claim that Army Regulations were not followed, and his assertion that the

Article 15 proceeding was tainted by the appearance of unlawful command influence. 5

       The district court found that the Board’s decision was not arbitrary and capricious

given the substantial evidence supporting a finding that the Article 15 record was correct

and should not be removed. The court further stated that the Board was not required to

address in writing every argument raised in Downey’s petition because the arguments


       5
         UCMJ Article 37 “restricts the influence of higher authorities on the findings of
any military proceeding”—commonly referred to as unlawful command influence—and
“erects a safeguard against individual attempts to improperly sway” the commanding
officer in an Article 15 proceeding. (N G) v. United States, 

, 387 (2010).



                                             11
would not have altered the outcome that substantial evidence supported the finding of

guilt.

         We agree with the district court’s conclusion. Under the APA, an agency must

examine the relevant data and articulate a satisfactory explanation for its action including

a “rational connection between the facts found and the choice made.” Inova Alexandria

Hosp. v. Shalala, 

, 350 (4th Cir. 2001) (quoting State 

).

When addressing the adequacy of an agency’s explanation, a reviewing court must

“consider whether the decision was based on a consideration of the relevant factors and

whether there has been a clear error of judgment.” Bowman Transp. Inc. v. Arkansas-

Best Freight Sys., 

, 285 (1974). The agency’s explanation need not be a

“model of analytic precision.” 

(quoting Dickson v. Secretary of

Defense, 

, 1404 (D.C. Cir. 1995)). And while this Court may not supply a

reasoned basis for the agency’s action that the agency has not given, we must “uphold a

decision of less than ideal clarity if the agency’s path may reasonably be discerned.”

.

         Here, the Board’s decision demonstrates adequate consideration of the evidence

and Downey’s claims and a rational conclusion that Downey failed to show that his

Article 15 record was untrue or unjust and should be removed from his personnel file. In

fact, the opinion began with a summary of Downey’s arguments and the evidence he

provided to the Board for consideration. The opinion then summarized the arguments in

the brief submitted on his behalf by his counsel.        The Board noted, for instance,

Downey’s arguments that he was not guilty, “[h]e used no unlawful force,” “[h]is


                                            12
intentions were not to harm” Reuter, Reuter’s nose was not broken, Schlimm’s

investigation was “incomplete,” and Milley’s determination of his guilt “involved outside

influence by matters not within the scope of the investigation.” J.A. 24-25.

       The Board also restated the factual findings in Schlimm’s investigation report,

including that Downey approached Reuter and “attempted to take away [Reuter’s]

camera and in his attempt, he knocked the camera into [Reuter’s] face.”         J.A. 27.

According to UCMJ Article 128, the elements of assault consummated by battery include

“[t]hat the accused did bodily harm to a certain person” and “[t]hat the bodily harm was

done with unlawful force or violence.” J.A. 484. The Board concluded that “[t]he

evidence of record confirm[ed]” that Downey committed an assault consummated by

battery against Reuter by “unlawfully striking [Reuter] on his face with a camera which

[Downey] pushed into his face,” and that “[t]here is no evidence of record . . . to show

that the [Article 15 record] is untrue or unjust.” J.A. 30-31.

       Further, when addressing Downey’s arguments that Milley “did not conduct the

[Article 15] hearing in a fair and impartial manner,” J.A. 25, the Board stated that the

Article 15 proceeding was “conducted in accordance with law and regulation,” J.A. 31.

The opinion detailed that Downey was provided with a defense attorney, given the right

to demand a trial by court-martial, and afforded the opportunity to appeal the Article 15

decision through the proper channels. Finding no “error” or “injustice” during Downey’s

Article 15 proceeding, the Board concluded that “there [was] no reason to remove it from

his record.” J.A. 31.




                                             13
       It is evident from the Board’s explanation that it considered Downey’s claims. See

J.A. 24-25, 28-29 (twice detailing Downey’s arguments and evidence in support of his

application to the Board); see also 

(finding that “nothing more is

required” when a board’s explanation is “fairly comprehensive” and demonstrates

adequate consideration of relevant factors). Although the Board could have explained its

reasons for rejecting Downey’s claims in more detail and its decision may lack “ideal

clarity,” the Board’s opinion nevertheless demonstrates a rational connection between its

factual findings and its conclusion. 

. As a result, we hold that

the Board satisfactorily explained its rationale and its decision was not arbitrary and

capricious. 6 Accordingly, we affirm the district court’s grant of summary judgment.




       6
         Downey also argues that the Board committed reversible error by incorrectly
employing a clear and convincing burden of proof. Pursuant to 32 C.F.R. § 581.3(e)(2),
the Board was instead required to evaluate Downey’s claims of error and injustice “by a
preponderance of the evidence.” Though the Board erred by applying the wrong
standard, the Board’s mistake does not amount to reversible error. On appeal, Downey
has the burden of demonstrating that the Board’s error was prejudicial. Sea “B” Mining
Co. v. Addison, 

, 253 (4th Cir. 2016) (“The harmless error rule applies to
agency action because if the agency’s mistake did not affect the outcome, it would be
senseless to vacate and remand for reconsideration.”). After extensive review of the
evidence, the Board stated that “there is no evidence and [Downey] provides no
evidence” to demonstrate that the Article 15 record was untrue or unjust. J.A. 31
(emphasis added). Even under the preponderance of the evidence standard, Downey
would not have been able to meet his burden of proof. Downey has therefore failed to
show any prejudice. As such, we agree with the district court’s conclusion that the
Board’s error was harmless.



                                            14
                                             III.

       We now review the district court’s dismissal of Downey’s due process claims

regarding his Article 15 proceeding. We review the grant of a motion to dismiss for

failure to state a claim de novo. Weidman v. Exxon Mobil Corp., 

, 219 (4th

Cir. 2015). “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 

, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 

, 570 (2007)).

       Downey argues that the district court erred in dismissing his due process claims.

The district court concluded that Downey’s claims were nonjusticiable because he failed

to sufficiently allege a deprivation of a constitutional right or that Appellees violated

applicable statutes or Army regulations. The district court based its conclusion on the

justiciability doctrine set forth in Mindes v. Seaman, 

(5th Cir. 1971)

(providing a four-factor test for reviewability of claims based on internal military affairs).

See also Williams v. Wilson, 

, 359 (4th Cir. 1985) (adopting Mindes test

where a servicemember challenged the National Guard’s empaneling of a selective

retention board); 

(applying Mindes test).

       Under the Mindes test, a service member seeking to sue the military over an

internal military decision must demonstrate:        “an allegation of the deprivation of a

constitutional right, or an allegation that the military has acted in violation of applicable

statutes or its own regulations,” and “exhaustion of available intraservice corrective

measures.” 

(quoting Mindes, 

). Thus, the court


                                              15
must first determine whether the allegations are sufficiently pled. 

. If the allegations are “sufficient to withstand a motion to dismiss at the pleading

stage,” 

servicemember exhausted available intraservice remedies, the court

then weighs four factors to determine the justiciability of the allegations, 

. These factors include “(1) the nature and strength of the plaintiff’s challenge

to the military determination; (2) the potential injury to the plaintiff if review is refused;

(3) the type and degree of anticipated interference with the military function; (4) the

extent to which the exercise of military expertise or discretion is involved.” 

district court determined that Downey failed to satisfy the first threshold requirement of

sufficiently pleading his due process claims.

       We agree with the district court’s conclusion. As the court noted, many of the

allegations in the Amended Complaint directly contradict his due process claims. In the

Amended Complaint, Downey alleged that during his Article 15 proceeding he was not

able to fully present his arguments, the reasonable doubt standard was not used, he was

denied the ability to collect and proffer evidence and witness testimony in his favor, and

he did not make a knowing and voluntary choice to waive his right to a court-martial.

Yet, Downey paradoxically alleged that he was able to call witnesses to testify in his

favor and present arguments. See, e.g., J.A. 396-97. He further alleged that he chose to

proceed with the Article 15 proceeding after speaking with military counsel.              See

Fairchild v. Lehman, 

, 1559 (Fed. Cir. 1987) (stating that waiver of right to

court-martial proceeding must satisfy the standards set forth in Brady v. United States,

, 748 (1970), which require awareness of direct consequences of waiver);


                                             16
J.A. 438-39 (Army Regulation 27-10 explicitly provides servicemembers with a right to

counsel to determine whether to demand a trial by court-martial). The record also shows

that Milley found Downey guilty beyond a reasonable doubt. J.A. 49.

        More importantly, Downey failed to plausibly allege an actual deprivation of any

protected liberty or property interest. See 

(4th Cir. 1991)

(“Procedural due process imposes constraints on governmental decisions which deprive

individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process

Clause of the Fifth or Fourteenth Amendment.” (quoting Mathews v. Eldridge, 

, 332 (1976))). Downey argues he was removed from the National War College

attendance list, relieved of command, and deprived of his good name and reputation.

Downey, however, cites no statute, regulation, rule, or other basis for establishing a

property interest in his command position or attendance at the National War College. See

had no property interest in continued service). And assuming

without deciding that Downey has a liberty interest in his good name and reputation, he

cannot make out a due process claim because he cannot show that any statements made

by the Army in connection with his Article 15 proceeding were untrue. See 

(finding that servicemember had no liberty interest in his good name and reputation

because he could not show that the stated reasons for his discharge were untrue).

Accordingly, the Court concludes that Downey’s due process claims are nonjusticiable

and affirms the district court’s dismissal of the claims.




                                             17
                                     IV.

For the foregoing reasons, the district court’s judgment is

                                                              AFFIRMED.




                                     18