NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 12 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DAMON J. CLAIBORNE,                             No.    18-36023

                Plaintiff-Appellant,            D.C. No. 3:15-cv-01192-BR

 v.
                                                MEMORANDUM*
RYAN D. MCCARTHY, Acting Secretary
of the Army,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                    Anna J. Brown, District Judge, Presiding

              Argued and Submission Withdrawn December 11, 2019
                          Resubmitted March 12, 2020
                              Seattle, Washington

Before: GRABER and GOULD, Circuit Judges, and EZRA,** District Judge.


      Plaintiff Damon J. Claiborne appeals the district court’s grant of summary

judgment in favor of the Secretary of the Army. The district court upheld the

Army’s administrative determination to involuntarily separate Plaintiff just months

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
before he qualified for retirement benefits. On de novo review, Garris v. FBI, 

, 1291 (9th Cir. 2019), we affirm.

      1. The decision by the Army to discharge Plaintiff was not illegally

retroactive. Plaintiff could have been discharged under preexisting regulations

promulgated by the Army, such as Army Regulation 635-200, because those

regulations allow the Army to change its mind about separation decisions.

Furthermore, a dismissal from the Army is not a criminal penalty, so double

jeopardy principles are not at issue.

      2. Plaintiff waived the argument that the new rule was facially void, as

distinct from whether the new rule was being applied retroactively in an improper

way. Plaintiff conceded the issue below, and the district court relied on that

concession. The district court ruled that Plaintiff abandoned his claim that Army

Directive 2013-21 and ALARACT should be invalidated under the APA. The

court did not err in concluding that this argument was waived.

      3. The Army discharged Plaintiff for his conviction of child molestation, not

for a generalized “proclivity” for sexual misbehavior. The Army Board for

Correction of Military Records used the word “proclivity” once in its decision, but

a single appearance of that word did not change the clear basis of the Army’s

decision. Furthermore, the Army’s real ground for discharging Plaintiff (his felony



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conviction) was supported by substantial evidence.

      AFFIRMED.




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