Torrence v. United States

5IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________________________________ ) JENNER TORRENCE, ) ) Plaintiff, ) No. 24-258 ) v. ) Filed: August 10, 2026 ) THE UNITED STATES, ) ) Defendant. ) ______________________________________ ) OPINION AND ORDER Plaintiff Jenner Torrence alleges that the District of Columbia Air National Guard (“D.C. ANG”) improperly curtailed his tour as an Active Guard and Reserve (“AGR”) Officer, which deprived him of active duty pay and other benefits he would have received but for his curtailment. The D.C. ANG curtailed Plaintiff’s tour after Plaintiff received two separate Letters of Reprimand (“LORs”) that found he violated U.S. Air Force standards. The first LOR was premised on an investigative finding that Plaintiff engaged in an unprofessional relationship with a fellow officer, while the second LOR was premised on an investigative finding that he fraternized with an enlisted Airman and made false statements about the incident. The same findings resulted in the referral of his 2017–2018 Officer Performance Report (“OPR”), and ultimately led the D.C. ANG to curtail his tour. After the Air Force Board for Correction of Military Records (“Board”) denied Plaintiff’s request to correct his military record, Plaintiff brought suit in this Court. Following a remand to consider certain evidence, the Board again denied Plaintiff relief. In this action, Plaintiff challenges the Board’s decision as arbitrary, capricious, and unsupported by substantial evidence, arguing that: (1) the Commanding Officer who issued the first LOR lacked the authority to do so; (2) Plaintiff was denied an opportunity to rebut certain evidence on which the first LOR relied; and (3) both LORs were procedurally improper because they were not supported by a preponderance of the evidence and misapplied applicable military regulations. Before the Court are Plaintiff’s Motion for Judgment on the Administrative Record and Defendant’s Cross-Motion for Judgment on the Administrative Record. For the following reasons, the Court DENIES Plaintiff’s Motion and GRANTS Defendant’s Motion. I. BACKGROUND A. Factual and Procedural Background Plaintiff is a retired lieutenant colonel in the D.C. ANG. Commissioned on June 10, 2000, Plaintiff served as a pilot in the Air Force until April 29, 2012, when he was released from active duty to join the D.C. ANG. See Admin. R. (“AR”) at 203, 640, 681, 686. 1 From March 29, 2016, to June 30, 2018, Plaintiff served in AGR status. AR 640–43. On June 30, 2018, Plaintiff was involuntarily removed from full-time AGR status after the Commanding General of the D.C. ANG elected to curtail Plaintiff’s tour. AR 564, 640. Plaintiff’s curtailment was the result of substantiated allegations of misconduct underlying two LORs, which are summarized below. AR 564; see AR 285, 354. Plaintiff retired from the Air Force on March 1, 2022. AR 608–09. 1. The First LOR Plaintiff was deployed to Guam between December 22, 2016, and February 8, 2017, as part of an overseas Theater Support Package in federal active-duty status (i.e., Title 10 status). AR 277, 321. As such, he was subject to the laws and regulations governing the Air Force. See 10 U.S.C. § 12405; see also AR 277. While deployed, Plaintiff allegedly engaged in an 1 On July 25, 2024, the Government filed the Administrative Record. See Admin. R., ECF No. 10. On June 18, 2025, after remand proceedings, it filed a supplement. See Admin. R. Part II, ECF No. 26. In this opinion, all citations refer to the Administrative Record as “AR” and use the bates-labeled page numbers included in the filings. 2 unprofessional relationship with a female officer in his unit (“Major A.M.”), which formed the basis for Plaintiff’s first LOR. Plaintiff’s commander, Colonel John Vargas, issued Plaintiff’s first LOR on June 13, 2017. AR 285. The LOR reprimanded Plaintiff “for displaying poor judgment and fail[ing] to fulfill [his] responsibilities as a Field Grade Officer” by engaging in an unprofessional relationship with a fellow officer. 2 Id. Referencing Air Force Instruction (“AFI”) 1-1, Air Force Standards (Aug. 7, 2012), and AFI 36-2909, Professional and Unprofessional Relationships (May 1, 1999), the LOR concluded that Plaintiff’s actions during the December 2016 to May 2017 deployment violated those standards because they “were prejudicial to good order and discipline, and were of a nature to bring discredit upon the Armed Forces of the United States.” Id. The LOR was issued following a Commander Directed Investigation (“CDI”), dated May 31, 2017, which was initiated to investigate an Airman’s report that Plaintiff and Major A.M. had sexual intercourse in an intelligence vault at Joint Base Andrews. AR 271–73. While the investigating officer (“IO”) did not substantiate that separate claim, the suspicion of (at a minimum) an unprofessional relationship between Plaintiff and Major A.M. arose based on several witness reports detailing “a long series of events” dating back to the Guam deployment. AR 273– 74. The IO thus expanded his inquiry into whether Plaintiff and Major A.M. engaged in “an extramarital affair or unprofessional relationship that was prejudicial to good order and discipline or was of a nature to bring discredit upon the [A]rmed [F]orces of the [U]nited [S]tates in violation of AFI 1-1 and AFI 36-2909.” AR 274. 2 Plaintiff and Major A.M. were of equal rank during the Guam deployment. See AR 283 (describing each of them as commissioned officers). Moreover, Plaintiff represents that during the deployment they “were not in senior/subordinate positions (i.e., neither of them worked for or supervised the other).” Pl.’s Resp. and Reply at 5, ECF No. 35. 3  The IO ultimately substantiated the allegation that Plaintiff and Major A.M. engaged in an unprofessional relationship. AR 283. The IO’s report summarized numerous witness interviews indicating that fellow unit members in Guam began noticing that Plaintiff and Major A.M. spent a lot of time together, arrived at work and left work in the same car, ate meals together, and acted oddly when Plaintiff’s wife visited during the deployment. AR 278. Two witnesses, a Deputy Commander and a fellow officer, each talked to Plaintiff and Major A.M. about the appearance of an inappropriate relationship and the rumors circulating in the unit. AR 278–79. The IO noted that the Deputy Commander told Plaintiff and Major A.M. to “knock off” this behavior early in the deployment. AR 280. The IO also found that the appearance of an unprofessional relationship led to the sacrifice of good order and discipline in the unit because Plaintiff and Major A.M. did not correct their conduct after being counselled by the Deputy Commander and because of the rumors spreading through the unit. AR 283. After Colonel Vargas issued the LOR based on his review of the IO’s findings, Plaintiff submitted a written rebuttal. AR 289–332. Colonel Vargas considered the rebuttal but chose to sustain the LOR. AR 287. 2. The Second LOR The second LOR concerned Plaintiff’s conduct with a female enlisted Airman at a hotel bar in Tucson, Arizona, on October 16, 2017, while he was on temporary duty for the Air Force’s Weapons and Tactics Conference (“WEPTAC”). AR 344–45. Colonel Vargas issued this LOR on January 26, 2018, reprimanding Plaintiff because he “fraternized with an enlisted member and engaged in unprofessional behavior; a discredit to an officer of [his] rank, the Air Force, and the Armed Forces.” AR 354. The reprimand also concluded that Plaintiff “ma[d]e false verbal and written statements” about what occurred on the night in question and that his behavior and false 4 statements “were prejudicial to good order and discipline, contrary to the core values of the [Air Force], unbecoming of a field grade officer in the [Air Force], and were of a nature to bring discredit upon the Armed Forces of the United States in violation of AFIs 1-1 and 36-2909.” Id. Like the first LOR, the second LOR was based on a CDI. In this CDI, dated January 18, 2019, a different IO substantiated the allegation that Plaintiff had engaged in an unprofessional manner (i.e., he fraternized) with a female enlisted member of the Toledo Air National Guard at the bar of the hotel where WEPTAC was being held. AR 344–46. The IO based this conclusion on her review of the security video footage from the bar and photographs that a fellow officer in Plaintiff’s unit took of Plaintiff and the enlisted woman, which showed Plaintiff, in uniform, and the enlisted woman, wearing civilian clothes, in close physical contact at the bar. Id. The IO also interviewed witnesses, including the officer who took the photographs and another officer present at the time. The latter witness identified the enlisted woman as part of a group of enlisted women working on the WEPTAC services team. AR 344–45. The officer stated that, notwithstanding their civilian clothes, he “would think anyone would know that the women at the bar were the enlisted service women working refreshments” at the conference. AR 345. The IO further concluded that Plaintiff made false statements about the incident, as demonstrated through the inconsistencies between witness statements, Plaintiff’s texts, Plaintiff’s sworn statement and written submission, and the video and photographic evidence of the night in question. AR 350. Colonel Vargas reviewed the evidence presented in the CDI and determined that it warranted a LOR. AR 354. As with the first LOR, Plaintiff submitted a written rebuttal to the second LOR. AR 358–77. Colonel Vargas considered the rebuttal but, again, chose to sustain the LOR. AR 356. 5  3. The Curtailment Decision The consequence of the LORs was the curtailment of Plaintiff’s AGR tour. On March 15, 2018, Brigadier General Jeffrey Bozard recommended curtailment “due to substantiated allegations of false statements made to senior Air Force officers and substantiated allegations of unprofessional relationships with both officer and enlisted military members.” AR 564 (referencing the CDIs and the resulting LORs). The curtailment letter listed several attachments, including the IO reports of the two CDIs, the two LORs with Plaintiff’s rebuttals, and two additional witness statements from January 2018. Id. Based on this recommendation, the D.C. ANG released Plaintiff from active duty on June 30, 2018. AR 640. 4. The OPR Referral On May 31, 2019, Plaintiff received notification that his OPR for the 2017–2018 rating period was being referred to him, meaning he was being given the opportunity to respond and/or rebut negative findings or comments, according to AFI 36-2406, Officer and Enlisted Evaluation Systems, ¶ 1.10 (Nov. 8, 2016). AR 379. The OPR rated Plaintiff as not meeting standards for three performance factors: leadership skills, professional qualities, and judgment and decisions. See AR 408. Specifically, the report indicated that, during the previous period, Plaintiff “engaged in an unprofessional relationship with a junior officer in the same group,” “fraternized with an enlisted member of another [ANG] unit,” and “was untruthful about these relationships/encounters when questioned by his chain of command.” Id. Plaintiff submitted a written rebuttal to the referred OPR on August 17, 2019. AR 395–404. In response, Colonel Vargas revised the OPR by removing a bullet point related to performance outside the relevant rating period. AR 392; see AR 390–91. Plaintiff also submitted a written rebuttal to this revised OPR on September 14, 2019. AR 425–30. The record does not reflect any further action. 6  5. Plaintiff’s Petition with the Board and the Present Action Plaintiff filed a petition for correction with the Board on June 22, 2021, seeking to remove the LORs and OPR from his file. AR 249–51. The Board denied his request for relief on April 26, 2022. AR 242–48. The Board found that Plaintiff did not meet his burden of proof to overcome the presumption of regularity afforded to government officials in the exercise of their duties, that the evidence reviewed during the CDIs was sufficient to support the investigative findings, and that Plaintiff was not reprised against in violation of military whistleblower protections. AR 246. Plaintiff filed suit in this Court on February 20, 2024, challenging the Board’s decision to deny his petition. See Pl.’s Compl., ECF No. 1. After the Government filed the AR, see ECF No. 10, the parties jointly moved to remand the case to the Board because the security video footage that formed part of the evidentiary basis for the second IO report and the second LOR had not been before the Board when it made its decision. See Joint Mot. to Remand, ECF No. 11. The Court granted the parties’ request, stayed the case, and ordered the Board to consider the security video footage. See Order, ECF No. 12. Plaintiff thereafter filed a petition for reconsideration with the Board on October 3, 2024, which the Board denied on April 21, 2025. See Dec. on Remand, ECF No. 18; AR 232–41. It found that the security video footage and photographs supported the investigative findings of the second CDI and that Plaintiff’s conduct met the Air Force’s standard of an unprofessional relationship (fraternization). AR 239. The Board further held that both CDIs were conducted in accordance with the law, appropriately applied the standards provided in the relevant Air Force instructions, and were supported by the evidence. AR 240. Finally, the Board held that Colonel Vargas had the authority to discipline Plaintiff based on his inappropriate relationship with Major A.M. during the Guam deployment when Plaintiff was in Title 10 status 7 because of the “federal nexus between the officer’s ANG membership and a violation of law or federal military standards.” Id. Consistent with the Court’s scheduling order, on June 4, 2025, Plaintiff filed an Amended Complaint. See Pl.’s Am. Compl., ECF No. 24. The Government supplemented the Administrative Record on June 18, 2025, with the record of the remand proceedings. See ECF No. 26. The Government also filed copies of the security video footage and photographs on a portable drive. See ECF Nos. 27, 28. Plaintiff filed his Motion for Judgment on the Administrative Record on July 23, 2025, arguing that: (1) the CDIs and LORs were procedurally improper because they were not supported by a preponderance of the evidence and, with respect to the first CDI and LOR, were based on a misinterpretation of the relevant Air Force instruction; (2) the first LOR was procedurally improper because it rested on evidence Plaintiff was not allowed to rebut; (3) Colonel Vargas did not have authority to issue the first LOR; and (4) the Board’s findings were arbitrary, capricious, and unsupported by substantial evidence. See generally Pl.’s Mot. for J. on Admin. R., ECF No. 31. The Government filed its Response and Cross-Motion for Judgment on the Administrative Record on September 10, 2025. See generally Gov’t’s Resp. and Cross-Mot. for J. on Admin. R., ECF No. 34. The motions are now fully briefed. See Pl.’s Resp. and Reply, ECF No. 35; Gov’t’s Reply, ECF No. 39. The Court held oral argument on May 22, 2026. See Min. Entry (May 22, 2026). B. Statutory and Regulatory Framework 1. Standards for Conducting CDIs and Issuing LORs Department of the Air Force Manual (“DAFMAN”) 1-101, Commander Directed Investigations (April 9, 2021), which implements Air Force Policy Directive 1, Air Force Culture, outlines the procedures for CDIs. DAFMAN 1-101 ¶ 3.1.1 advises that “CDIs may be used to 8 investigate whether an individual has violated a standard defined by law, regulation, or policy.” Paragraph 1.4 states that the standard of proof for CDIs is a preponderance of the evidence. It also states that IOs “must use their own common sense, life experiences and knowledge of the ways of the world to assess the credibility of witnesses they interview and the evidence gathered in the investigation.” 3 Id. AFI 36-2907, Unfavorable Information File (UIF) Program (Nov. 26, 2014), implements Air Force Policy Directive 36-29, Military Standards, and establishes procedures for managing documents for the Unfavorable Information File program. The instruction applies to all Air Force Personnel, including members of the Air National Guard in Title 10 status. AFI 36-2907 at 1. Relevant here, AFI 39-2907 ¶ 4.1 defines who can issue reprimands and other administrative actions. Paragraph 4.1 specifies that “[c]ommanders, supervisors, and other persons in authority can issue administrative counseling, admonitions, and reprimands.” Paragraph 4.1.3 further states that commanders should use the preponderance of the evidence standard when evaluating alleged offenses and that “[t]here is no requirement to prove any allegation beyond a reasonable doubt.” 2. Standards for Unprofessional Relationships AFI 1-1 and AFI 36-2909 govern relationships between Air Force personnel. AFI 1-1 states that “[t]he importance of the Air Force’s mission and inherent responsibility to the Nation requires its Airmen to adhere to higher standards than those expected outside of Military Service.” AFI 1-1 at 1. It further explains that “[t]he Air Force environment, whether at home station or 3 At the time of the conduct at issue, DAFMAN 1-101 was not yet published, and there was no Air Force instruction prescribing a formal CDI process. However, CDI guidance was provided in the SAF/IGQ Commander Directed Investigation Guide (Feb. 18, 2016), https://www.kansastag.gov/DocumentCenter/View/797/Commander-Directed-Investigation- CDI-Guide-PDF, which outlined CDI authority and procedures. The 2016 CDI Guide contained the same standard of proof and guidance for assessing evidence. Id. ¶ 1.4. 9 forward deployed, encompasses the actions, values and standards Airmen live by each and every day, whether on or off duty.” Id. ¶ 1.1. Beyond this overview, ¶ 2.2.3 provides that “[u]nprofessional relationships can exist between officers, between enlisted members, between officers and enlisted members, and between military personnel and civilian employees or contractor personnel.” AFI 36-2909 specifically governs relationships between Air Force personnel. It mirrors the policy of AFI 1-1, stating: While personal relationships between Air Force members are normally matters of individual choice and judgment, they become matters of official concern when they adversely affect or have the reasonable potential to adversely affect the Air Force by eroding morale, good order, discipline, respect for authority, unit cohesion or mission accomplishment. AFI 36-2909 ¶ 1. The instruction then addresses in more detail how the Air Force defines professional versus unprofessional relationships, explaining that “[p]rofessional relationships are those that contribute to the effective operation of the Air Force,” id. ¶ 2.1, while “[r]elationships are unprofessional, whether pursued on or off duty, when they detract from the authority of superiors or result in, or reasonably create the appearance of, favoritism, misuse of office or position, or the abandonment of organizational goals for personal interests,” id. ¶ 2.2. The instruction further confirms that “[u]nprofessional relationships can exist between officers, between enlisted members, between officers and enlisted members, and between military personnel and civilian employees or contractor personnel.” Id. Fraternization is a type of unprofessional relationship. Id. AFI 36-2909 defines fraternization as “a personal relationship between an officer and an enlisted member that violates the bounds of acceptable behavior in the Air Force and prejudices good order and discipline, discredits the armed services, or operates to the personal disgrace or dishonor of the officer involved.” Id. ¶ 2.2.1. The instruction describes the custom as “recogniz[ing] that officers will 10 not form personal relationships with enlisted members on terms of military equality, whether on or off-duty.” Id. AFI 36-2909 ¶ 2.2.1 cites the Manual for Courts-Martial for a discussion of fraternization. Id. That authority lists the following elements of the offense: (1) That the accused was a commissioned or warrant officer; (2) That the accused fraternized on terms of military equality with one or more certain enlisted members in a certain manner; (3) That the accused then knew the person(s) to be (an) enlisted member(s); (4) That such fraternization violated the custom of the accused’s service that officers shall not fraternize with enlisted members on terms of military equality; and (5) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. MANUAL FOR COURTS-MARTIAL, UNITED STATES pt. IV, ¶ 83(b) (1998). The manual further explains that “[n]ot all contact or association between officers and enlisted persons is an offense. Whether the contact or association in question is an offense depends on the surrounding circumstances.” Id. ¶ 83(c)(1) (explaining factors to be considered, including “whether the conduct has compromised the chain of command, resulted in the appearance of partiality, or otherwise undermined good order, discipline, authority or morale”). “The acts and circumstances must be such as to lead a reasonable person experienced in the problems of military leadership to conclude that the good order and discipline of the armed forces has been prejudiced by their tendency to compromise the respect of enlisted persons for the professionalism, integrity, and obligations of an officer.” Id. II. LEGAL STANDARDS A. Motions for Judgment on the Administrative Record Rule 52.1(c) of the Rules of the United States Court of Federal Claims (“RCFC”) governs motions for judgment on the administrative record. Deciding such motions compares to an “expedited trial on the record.” Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 11 2005). In contrast to the standard for summary judgment, “the standard for judgment on the administrative record is narrower” and involves determining, “given all the disputed and undisputed facts in the administrative record, whether the plaintiff has met the burden of proof to show that the [challenged action or] decision was not in accordance with the law.” Martinez v. United States, 77 Fed. Cl. 318, 324 (2007) (citing Bannum, 404 F.3d at 1357). Therefore, a genuine dispute of material fact does not prevent the Court from granting a motion for judgment on the administrative record. See Bannum, 404 F.3d at 1357; Martinez, 77 Fed. Cl. at 324. B. Standard of Review in Military Pay Cases In military pay cases, the scope of judicial review is deferential and is limited to determining whether an action or decision by the military was “arbitrary, capricious, or in bad faith, or unsupported by substantial evidence, or contrary to law.” Doe v. United States, 132 F.3d 1430, 1434 (Fed. Cir. 1997) (quoting Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983)); see Martinez v. United States, 333 F.3d 1295, 1314 (Fed. Cir. 2003) (noting that arbitrary- and-capricious review is applied in suits challenging underlying discharge actions as well as the decisions of military correction boards). The Court’s review is limited to the administrative record. Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006). Therefore, the record must contain evidence of legal error or deficiency in the decision-making process meriting judicial relief and “overcom[ing] the strong, but rebuttable, presumption that the administrators of the military, like other public officers, discharge their duties correctly, lawfully, and in good faith.” Doe, 132 F.3d at 1434 (quoting Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979)). The burden is on the plaintiff to prove such error through “cogent and clearly convincing evidence.” Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986) (quoting Dorl v. United States, 200 Ct. Cl. 626, 633 (1973), cert. denied, 414 U.S. 1032 (1973)). 12  Beyond the presumption that military administrators lawfully discharge their duties, “[j]udicial deference must be ‘at its apogee’ in matters pertaining to the military and national defense.” Voge v. United States, 844 F.2d 776, 779 (Fed. Cir. 1988) (quoting Rostker v. Goldberg, 453 U.S. 57, 70 (1981)); see Murphy v. United States, 993 F.2d 871, 872 (Fed. Cir. 1993) (“Justiciability is a particularly apt inquiry when one seeks review of military activities.”). Nevertheless, not every claim arising from a military decision is beyond judicial review. Adkins v. United States, 68 F.3d 1317, 1323 (Fed. Cir. 1995). Even where Congress provides unlimited discretion, the military is “bound to follow its own procedural regulations if it chooses to implement some.” Murphy, 993 F.2d at 873 (citing Sargisson v. United States, 913 F.2d 918, 921 (Fed. Cir. 1990)); see also Fisher v. United States, 402 F.3d 1167, 1177 (Fed. Cir. 2005); Voge, 844 F.2d at 779 (“[T]he Claims Court may review the [challenged decision] process for compliance with established procedures.”). Accordingly, where procedural violations are alleged, “this [C]ourt does not improperly exercise any discretion reserved for the military” but rather determines only whether the challenged action violated applicable statutory and regulatory standards. Adkins, 68 F.3d at 1323. III. DISCUSSION A. The Court Reviews the Board’s Remand Decision Under a Deferential Standard. The parties dispute what the Court’s scope of review should encompass in this case. Plaintiff urges that the Court review not only the Board’s decision denying him relief on remand, 4 but also the underlying CDIs, LORs, OPR, and curtailment decision. See ECF No. 31 at 20–31. He argues that his challenges to these underlying decisions are justiciable because the decisions 4 At oral argument, Plaintiff clarified that he is not challenging the Board’s first denial decision. See Oral Arg. Tr. at 15:7–12, ECF No. 45. Plaintiff only challenges the Board’s remand decision and “the actions of the Command that led to [it].” Id. 13 involve procedural violations that ultimately led to his curtailment. Id. at 19. The Government, on the other hand, argues that the Court’s review is limited to the Board’s decision to which it must apply a deferential standard of review. See ECF No. 34 at 19–28. The Government is correct. As a general matter, the Court agrees that Plaintiff’s claim is justiciable. A case is justiciable when “‘tests and standards’ exist against which a court can measure the challenged action.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002) (citing Voge, 844 F.2d at 780). Although the merits of military decisions, including fitness to serve, are often nonjusticiable, “a court may decide whether the military has complied with procedures set forth in its own regulations because those procedures by their nature limit the military’s discretion.” Fisher, 402 F.3d at 1177. Here, the Air Force has provided standards of conduct regarding fraternization and unprofessional relationships, as well as procedures governing CDIs and disciplinary actions. See DAFMAN 1- 101; AFI 1-1; AFI 36-2907; AFI 36-2909; see also Adkins, 68 F.3d at 1323 (“In cases in which procedural violations are alleged, the test or standards against which this court measures the military’s conduct are inherent: they are the applicable statutes and regulations.” (citing Murphy, 993 F.2d at 873)). Where Plaintiff’s argument begins to fray is in his attempt to distort the Court’s standard of review by suggesting that the Court should directly review the underlying CDIs, LORs, OPR, and curtailment decision. See ECF No. 31 at 18–20. Plaintiff repeatedly takes issue with the findings in both CDIs and argues that the Court should rule in his favor because those findings were not sufficiently supported by preponderant evidence in the record. See, e.g., id. at 22–24 (arguing that the first CDI was not supported by a preponderance of the evidence); id. at 26–29 (arguing that the second CDI was also unsupported and disagreeing with the IO’s characterization 14 of the video). He asserts that because the IO’s underlying findings were erroneous, so too were the resulting LORs, OPR, curtailment decision, and the Board’s decision. Id. at 29–30. The Court’s duty, however, is to determine if the Board’s decision was arbitrary and capricious and if “substantial evidence supports [the] [B]oard’s action.” Bailey v. United States, 145 Fed. Cl. 453, 460 (2019) (holding that a court will sustain the board when its “[decision] is reasonable given the evidence presented”). “Substantial evidence, though less than a preponderance, is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” La. Pub. Serv. Comm’n v. FERC, 20 F.4th 1, 7 (D.C. Cir. 2021) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 217 (1938)). To be sure, this deferential standard of review allows the Court to consider the factual underpinnings of the Board’s decision (i.e., the military actions challenged before the Board), but it is doing so to determine whether the Board’s decision—“the conclusion being reviewed” here—is rationally explained and “supported by substantial evidence.” Heisig, 719 F.2d at 1157. One court has described “the layers of review” in military record correction cases as “onion-like.” Dorado-Ocasio v. Averill, 128 F.4th 513, 523 (4th Cir. 2025). In Dorado-Ocasio, the plaintiff’s evaluation report was subject to review by a senior rater, then a Commander, then the Army Soldier Records Branch, and finally the Army Board for Correction of Military Records (“ABCMR”) prior to review by the district court, which upheld the ABCMR’s decision to deny his application for correction of records. Ocasio-Dorado v. Wormuth, No. 123CV595PTGIDD, 2024 WL 712533, at *9 (E.D. Va. Feb. 21, 2024), aff’d sub nom. Dorado-Ocasio, 128 F.4th 513. The district court reasoned—and the Fourth Circuit agreed—that the ABCMR had adequately explained its decision to deny the plaintiff’s application by detailing the key factual findings in the 15 record and considering the plaintiff’s arguments. Id. That is the appropriate scope of judicial review. Plaintiff’s request that the Court re-evaluate the CDIs, LORs, OPR, and curtailment decision, rather than focus on the Board’s decision, seems to confuse the question of justiciability with the question of the correct standard of review. Justiciability is a threshold question: can the Court hear the case? Fisher, 402 F.3d at 1176. Evaluating the appropriate standard of review presumes justiciability: given that the Court can hear the case, what standard should it apply? Plaintiff’s misstep seems to be explained by his misreading of Adkins. See ECF No. 31 at 19. As Plaintiff sees it, under Adkins, all of Plaintiff’s evidentiary challenges to the CDIs and LORs should be considered because they address procedural violations. Id. The Federal Circuit’s decision in Adkins held that “[a]lthough the merits of a decision committed wholly to the discretion of the military are not subject to judicial review, a challenge to the particular procedure followed in rendering a military decision may present a justiciable controversy.” 68 F.3d at 1323. Specifically, in cases challenging the military’s determination of who should serve (and in what capacity), courts should avoid judging the merits of that determination and only consider whether the correct procedures were followed in arriving at it. 5 Loomis v. United States, 68 Fed. Cl. 503, 508 (2005) (citing Adkins, 68 F.3d at 1323). While the Court agrees with Plaintiff that it can review this case under Adkins, that does not change the fundamental conclusion that the decision the Court is reviewing is the Board’s 5 The Adkins standard contrasts with how courts approach cases challenging the military’s denial of benefits, where courts are permitted to examine the merits of an agency’s decision. Loomis, 68 Fed. Cl. at 508. The present case falls into the first category: the curtailment decision was a determination about whether Plaintiff should continue serving on his AGR tour. AR 234. Although the curtailment decision resulted in the loss of benefits Plaintiff would have received if his tour had not been curtailed, the decision itself was not a denial of benefits decision. 16 decision. Plaintiff’s argument in essence asks the Court to impermissibly conduct a de novo review of the facts and serve as a “super correction board.” Van Cleave v. United States, 70 Fed. Cl. 674, 678 (2006). As the Government correctly observes, the Court is not permitted to reweigh the facts relevant to the underlying military decisions. 6 Heisig, 719 F.2d at 1157; Oral Arg. Tr. at 42:6–25, ECF No. 45 (“So to the extent that the Plaintiff is requesting that the Court review the initial findings of the two CDIs, then that’s not justiciable in this Court.”). Plaintiff alternatively asserts that Adkins should not apply to this case because Plaintiff is challenging the existence of military misconduct in the first place. See ECF No. 31 at 20. In other words, because he claims there was no evidence to support the investigative findings that formed the basis for his LORs, referred OPR, and curtailment, the Court should create a “carveout” from Adkins. ECF No. 45 at 9:22–10:8 (arguing that courts are “well equipped” to determine whether a member of the military has committed misconduct). This alternative argument seems to concede that at least part of his challenge in this Court is a disagreement with the merits of—rather than the procedures underlying—the adverse military decisions at issue. Id. Regardless, such a rule has no basis in law. Plaintiff cites Loomis v. United States, 68 Fed. Cl. 503, 514 (2005), and Waters v. United States, 139 Fed. Cl. 9, 22 (2018), to support his contention that “judging the existence and the evidentiary support for military misconduct is very much the business of courts.” ECF No. 31 at 20. But in Loomis, the court applied the substantial evidence standard to review the board’s 6 Plaintiff insists that he is not asking the Court to reweigh the evidence because, in his words, “there is nothing to weigh.” ECF No. 45 at 11:9–16. In Plaintiff’s view, because the evidence supporting the investigative findings did not meet the Air Force’s standards for unprofessional relationships, there is no evidence supporting the LORs. As discussed below, asking the Court to assign a weight of zero to the evidence is still a form of reweighing evidence, which is something the Court cannot do. Heisig, 719 F.2d at 1157. 17 decision. See 68 Fed. Cl. at 513–14 (considering “the ABCMR’s determination that the alternative ground of conduct unbecoming an officer justified plaintiff’s elimination” (emphasis added)). Waters likewise applied that standard, and the discussion in Waters cited by Plaintiff pertained to a procedural challenge—not one contesting the sufficiency of the evidence. 139 Fed. Cl. at 19; see also id. at 22 (considering whether the Navy violated procedures by not giving plaintiff “the opportunity to review and comment on . . . ‘new factual material’”). In neither case did the court announce—or apply without announcing—a different standard of review because the cases involved military misconduct. In sum, the Court’s duty is to assess whether the Board’s decision is reasonable and supported by substantial evidence, meaning that which “a reasonable mind might accept as adequate to support a conclusion.” La. Pub. Serv. Comm’n, 20 F.4th at 7. The Court thus proceeds in applying that standard to Plaintiff’s challenges to the Board’s decision. B. The Board’s Remand Decision Is Reasonable and Supported by Substantial Evidence. 1. The Board’s Determination That the D.C. ANG Did Not Err in Issuing the First LOR Is Reasonable and Supported by Substantial Evidence. Substantial evidence supports the Board’s reasonable determination that there was no error or injustice in the D.C. ANG issuing Plaintiff the first LOR based on the findings of the May 2017 CDI. Plaintiff does not meet his heavy burden to show that the Board’s decision was irrational or unsupported by substantial evidence. In its remand decision, the Board disagreed with Plaintiff’s contention that the IO assigned to Plaintiff’s first CDI imposed his own religious and sexual values, rather than the Air Force standards, in determining that the evidence substantiated an unprofessional relationship between Plaintiff and Major A.M. AR 239. The Board found that the IO properly applied AFI 36-2909, and that DAFMAN 1-101 permitted him to assess the evidence gathered using his “own common 18 sense, life experiences and knowledge of the ways of the world.” AR 240. While Plaintiff may identify as an atheist who is “not bound to traditional values,” the Board correctly found that he was nonetheless required to follow Air Force regulations regarding professional relationships. Id. And despite his attempts to discredit the IO, the Board reasonably found that Plaintiff did not meet his burden to show that the IO applied any standard defining unprofessional relationships other than the one found in the applicable AFI. Id. The Board also perfor