Viernes v. United States

In the United States Court of Federal Claims ABRAHAM N. VIERNES, II, Plaintiff, No. 25-cv-117 v. Filed: July 31, 2026 THE UNITED STATES, Defendant. Brian D. Schenk, Midwest Military & Veterans Law, PLLC, Minneapolis, MN, argued for Plaintiff. Delisa M. Sanchez of the United States Department of Justice, Civil Division, Washington, D.C. argued for Defendant. With her on the briefs were Brett A. Shumate, Patricia M. McCarthy, and Deborah A. Bynum of the United States Department of Justice, Civil Division, Washington, D.C., and Lieutenant Jesse Williams of the United States Navy Office of the Judge Advocate General, General Litigation Division. MEMORANDUM AND ORDER This military pay case revolves around two decisions of authorities within the Department of the Navy (Navy) that occurred several years apart—one relating to a naval officer’s eligibility for retirement, the other to his retirement pay grade. Plaintiff Abraham N. Viernes, II, who spent most of his career as an enlisted servicemember, and finished his service as a commissioned officer, argues that he should have been allowed to retire with the pay grade of a lieutenant junior grade (lieutenant or LTJG), rather than the lower officer grade of ensign. In 2006, after being discharged from service due to substandard performance of duty prior to becoming eligible for retirement, Plaintiff applied to the Board for Correction of Naval Records (BCNR or Board) for relief. The Board determined that his separation was lawful, that he was not entitled to separation pay, and that restoration of Plaintiff to active duty would be inappropriate given his substandard professional performance during his brief time as a commissioned officer. However, the Board granted Plaintiff some relief from the consequences of his separation, in the form of a records correction making him eligible for retirement benefits in the Navy. The Board amended Plaintiff’s relief in 2009 so that he could transfer to the Navy’s Fleet Reserve as an enlisted servicemember and, a decade later, become eligible for retirement at his highest satisfactorily-served rank. In its 2009 amendment, the BCNR indicated that Plaintiff was expected to retire at the level of lieutenant junior grade, with a pay grade of O-2E. In 2019, Plaintiff applied to the Navy “to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily” pursuant to 10 U.S.C. § 8334, and received an official retirement designation of ensign (O-1E), a lower officer rank than lieutenant (O-2E). Plaintiff once more applied to the Board for correction, but the Board found no error or injustice and accordingly declined to alter Plaintiff’s military records. Plaintiff argues that the Board unreasonably affirmed his retirement grade of ensign (O- 1E) when he previously served at the lieutenant level at the pay grade of O-2E. Defendant responds that Plaintiff’s arguments merely seek to repackage a non-justiciable challenge to a discretionary function of the Navy as a procedural claim. In the alternative, Defendant argues that, based on the record, the Board did not act unreasonably, and its conclusion was based on substantial evidence. The Court finds that this case is justiciable and accordingly DENIES Defendant’s Motion to Dismiss. However, the Court DENIES Plaintiff’s Motion for Judgment on the Administrative Record and GRANTS Defendant’s Motion for Judgment on the Administrative Record. After thoroughly reviewing the Administrative Record, the Court holds that the Board’s decision was not arbitrary and capricious, nor was it lacking in substantial evidentiary support. Instead, the record reflects that the Board was well-supported in finding that the Navy’s determination of Plaintiff’s retirement grade did not merit correction. 2  BACKGROUND I. Statutory Framework A variety of Federal statutes regulate the payment of current and retired servicemembers, depending on their status, rank, and military service. In the Navy, enlisted members of the Regular Navy or the Navy Reserve who have “completed 20 or more years of active service in the armed forces,” may then be transferred to the Fleet Reserve. 10 U.S.C. § 8330(b). 1 Once a servicemember reaches 30 years of service, including time in the Fleet Reserve, the servicemember is transferred to the retired list. Id. § 8331(a). At that point, the servicemember may be placed on the retired list at “the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the Navy [(Secretary)].” Id. § 8334(a). Naval officers who serve at least 20 years in active duty, “of which at least 10 years was service as a commissioned officer,” id. § 8323(a)(1), may be directly retired “in the highest permanent grade in which such officer is determined to have served on active duty satisfactorily,” id. § 1370(a)(1). Congress has granted “the Secretary of the military department concerned”—here, the Secretary of the Navy—the authority to determine the highest permanent grade of satisfactory service for officers who served at or below the rank of rear admiral. Id. § 1370(a)(2)(A). When transferring officers to the Fleet Reserve, the Navy has established further regulations, including those encoded in Office of the Chief of Naval Operations Instruction (OPNAVINST) 1811.3A, Voluntary Retirement and Transfer to the Fleet Reserve of Members of the Navy Service on Active Duty (Feb. 28, 2012). The regulation states that, when considering 1 The Fleet Reserve is unique to the Navy and Marine Corps: enlisted members of the Army, Air Force, and Space Force may directly retire after 20 years of service. See 10 U.S.C. §§ 7314 (Army), 9314 (Air Force and Space Force). Servicemembers in the Fleet Reserve receive retainer pay, which is equivalent to retired pay. Id. § 8330(c)(1). 3 whether a member “served satisfactorily in the current grade held, or in a higher grade,” the following factors “are considered”: (1) Time served in current or higher grade[;] (2) If a member voluntarily requested retirement or transfer to the Fleet Reserve in the next lower grade and has not fulfilled the required time-in-grade requirements as stated in paragraph 7[;] (3) Any conviction by courts-martial, report of misconduct, moral, or professional dereliction, or conduct not in the interest of national security[;] (4) The nature and severity of any misconduct. OPNAVINST 1811.3A ¶ 7(i). In addition to making determinations of satisfactory service for retirement grades, the Secretary of the Navy has authority to “correct any military record of the [Navy] when the Secretary considers it necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1). This same statute establishes civilian correction boards and dictates that “such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department.” Id.; see Strand v. United States, 951 F.3d 1347, 1351 (Fed. Cir. 2020) (citing 10 U.S.C § 1552(a)(1)). The BCNR is one such military-records correction board. When a servicemember applies to the BCNR, the Board first determines whether to authorize a hearing, recommend correction without a hearing, or deny without a hearing. 32 C.F.R. § 723.3(e)(1). If the application is denied without a hearing, the Board provides brief written statement of the grounds for denial. 32 C.F.R. § 723.3(e)(3). The brief statement must include the reasons for rejection, the applicant’s claims of constitutional, statutory and/or regulatory violations that were rejected, and all the essential facts upon which the denial is based, including, if applicable, factors required by regulation to be considered for determination of the character of and reason for discharge. 32 C.F.R. § 723.3(e)(4). “Attached to the statement shall be any advisory opinion considered by the Board which is not fully set out in the statement.” Id. The Board makes its recommendation on the disposition of the case based on a record of the applicant’s 4 service, which it compiles for decision making. Strickland v. United States, 423 F.3d 1335, 1339 (Fed. Cir. 2005). The BCNR has authority to take corrective action on behalf of the Secretary. Strand, 951 F.3d at 1351–52. However, in certain cases, secretarial review is required, and the Board must forward the entire record, along with its recommendation, to the Secretary who will make the final decision. Id. at 1352; 32 C.F.R. §§ 723.6, 723.7(a) (“The record of proceedings, except in cases finalized by the Board under the authority delegated in § 723.6(e), and those denied by the Board without a hearing, will be forwarded to the Secretary.”). The Secretary is not bound by the recommendation of the Board. Strand, 951 F.3d at 1354 (“[A] service secretary may reject the recommendation of a records correction board—even a recommendation supported by the administrative record—so long as the secretary’s rejection decision is not arbitrary or capricious, unsupported by substantial evidence, or otherwise contrary to the law.”). “If the Secretary’s decision is to deny relief, such decision shall be in writing and, unless he or she expressly adopts in whole or in part the findings, conclusions and recommendations of the Board . . . shall include a brief statement of the grounds for denial.” 32 C.F.R. § 723.7(a) (citing § 723.3(e)(4)). Accordingly, if the Secretary adopts the Board’s recommendation, then the Court analyzes the Secretary’s decision “in terms of the Board’s rationale.” Strickland, 423 F.3d at 1339. The Secretary has delegated power to the Assistant Secretary of the Navy for Manpower and Reserve Affairs (ASN) to act on recommendations 2 from the Board. See Strand, 951 F.3d at 2 The decisions of the Board constitute final agency action. See Walls v. United States, 582 F.3d 1358, 1367 n.11 (Fed. Cir. 2009) (quoting Gillan v. Winter, 474 F.3d 813, 817 (D.C. Cir. 2007)). However, its conclusions are referenced as “recommendations,” including those decisions requiring secretarial review. See 32 C.F.R. § 723.6; Strand, 951 F.3d at 1351–52. 5 1349 n.2. The ASN has delegated the same power to the Assistant General Counsel for Manpower and Reserve Affairs (AGC). Id. II. Facts A. Plaintiff’s Military Service Plaintiff served in the Navy on active duty for 17 years. AR 151. On December 20, 2002, after 13 years, 7 months, and 25 days of enlisted service, he was commissioned and achieved the rank of ensign, which corresponds to a pay grade 3 of (O-1E). AR 8–9, 42, 652. Working at the Naval Medical Center San Diego, he achieved two relatively positive 4 fitness reports (FITREPs) from June 1, 2003, to November 24, 2003, and from November 25, 2003, to May 31, 2004. AR 856–58, 606 (defining “FITREP”). During those time periods, however, Plaintiff’s supervisors noted “numerous clinical deficiencies.” AR 77. Plaintiff’s personal life took a turn when, in September of 2004, his mother unexpectedly passed away. AR 149, 707. A few months later, in December, his father suffered a “debilitating stroke.” AR 149; see AR 707. That same month, however, Plaintiff received a promotion to lieutenant junior grade (LTJG), entailing the higher pay grade of O-2E. See AR 860; U.S. Department of War, U.S. Military Rank Insignia, https://www.war.gov/Resources/Insignias/ (last visited July 14, 2026). From June 1, 2004, to February 28, 2005, Plaintiff received a FITREP 3 “Paygrades are administrative classifications used primarily to standardize compensation across the military services. [For instance,] [t]he ‘E’ in E-1 stands for ‘enlisted’ while the ‘1’ indicates the paygrade for that position. The other pay categories are ‘W’ for warrant officers and ‘O’ for commissioned officers.” U.S. Department of War, U.S. Military Rank Insignia, https://www.war.gov/Resources/Insignias/ (last visited July 14, 2026). The rank of “ensign,” as well as its corresponding pay grade, is one officer rank or grade below that of lieutenant junior grade. Id. 4 More precisely, Plaintiff received a grade of 3.00 and 3.17 out of five on these two reports (still “[p]romotable” but scoring slightly below average for his summary group). AR 855–56, 857–58. 6 marking him as “Below Standards” in expertise. See AR 859. Again, he received a similarly adverse FITREP for his service from March 1, 2005, to June 24, 2005, marking his professional expertise as “Below Standards.” AR 863. On February 25, 2005, the hospital where Plaintiff worked convened a Competency Review Board (CRB) to consider his clinical performance. See AR 150. Plaintiff was not permitted to appear at the hearing, although he was allowed to provide a written statement. AR 150, 10. The CRB assessed Plaintiff as having “clearly demonstrated his inability to provide safe nursing care.” AR 379. Plaintiff was removed from patient care duties on June 25, 2005, and he was assigned to a research department. AR 631. For approximately eight months, from June 25, 2005 to February 28, 2006, while working in the Nursing Research and Analysis Department, Plaintiff received a favorable FITREP that marked him as meeting or exceeding standards and as “promotable.” AR 868–69. That same FITREP noted that Plaintiff was “separating from active Naval service.” AR 869. On February 28, 2006, at the request of the Commander for the Naval Medical Center, San Diego, Plaintiff was separated from service. AR 150–51. This separation left Plaintiff with just over 17 years of active-duty service: a few years short of the 20-year prerequisite to opt for transfer to the Fleet Reserve. AR 151; 10 U.S.C. § 8330(b). Although Plaintiff attempted to transfer to other sections of the Navy, such as the Supply Corps, he was unsuccessful. AR 89. Plaintiff’s involuntary discharge was characterized as “GENERAL, UNDER HONORABLE CONDITIONS,” and given a separation code for “SUBSTANDARD PERFORMANCE.” AR 13. B. The 2008 BCNR Relief Plaintiff applied to the BCNR after his discharge, arguing that the Navy failed to afford him a hearing before the Competency Review Board in accordance with regulation, and that his separation unjustly deprived him of a substantial retirement sum. AR 126–28, 137–38. He sought 7 reinstatement to the rank of LTJG with all back pay and allowances and other entitlements to which he would be rewarded but for his unlawful discharge. AR 116. In considering Plaintiff’s application, the BCNR obtained advisory opinions from the Deputy Assistant Judge Advocate General (DAJAG) for Administrative Law. AR 146–57. The DAJAG’s opinion stated that (i) Plaintiff should have been allowed to appear before the Competency Review Panel, (ii) Plaintiff’s performance of his duties leading up to the separation was reasonably determined to be unsatisfactory, (iii) Plaintiff’s separation was lawful, and (iv) stripping Plaintiff’s entire retirement fund based on a relatively short unsatisfactory service period during a time of personal strife was a disproportionate consequence. AR 154–57. On or about September 29, 2008, the Board adopted the DAJAG’s recommendation and accordingly found that, while Plaintiff’s separation for substandard performance was free from error, his case merited equitable action based on his 17 years of service with no misconduct. AR 27–28. Thus, the Board granted Plaintiff equitable relief. AR 11–12. Specifically, the Board gave a “RECOMMENDATION” indicating that Plaintiff’s naval records should be “corrected to show that he was not discharged . . . on 28 February 2006 but continued to serve until he transferred to the Retired List at the earliest possible date.” AR 11. The ASN approved the recommendation and directed that Plaintiff’s record be corrected accordingly. AR 24. C. The BCNR’s 2009 Amendment While correcting Plaintiff’s records, Navy Personnel Command (NPC) notified the BCNR that (i) its recommendation failed to specify whether Plaintiff would receive active-duty credit as an officer or an enlisted, and (ii) Plaintiff could not be transferred directly to the retired list, as he lacked sufficient commissioned service time to retire as an officer immediately. AR 17; see also 10 U.S.C. § 8323(a)(1). On July 14, 2009, the BCNR responded via email to NPC, detailing that “[Plaintiff] should be given active duty credit and back pay as an enlisted man (SK2)” and that he 8 “will transfer to the fleet reserve as an enlisted man, and be eligible to receive retired pay in the highest rank satisfactorily served (LT(jg)) after 30 years.” AR 16. On June 19, 2009, 5 the BCNR’s Executive Director issued a “Memorandum for the File,” which stated that the Board had “previously considered Petitioner’s case and directed retirement in the grade of LTJG” but that the NPC believed that “a separate grade determination should be made as to whether he should have been retired in his highest enlisted grade rather than as an officer.” AR 18. The memorandum concluded that the issue had been “resolved without further Board action.” Id. On July 14, 2009, the Chairman of the Board issued a letter to the Secretary of the Navy amending the Board’s recommended relief for Plaintiff. AR 15. The Chairman’s letter corrected Plaintiff’s records to show that “he be given active duty credit and back pay in the rank of SK2 (pay grade E-5)” and directing Plaintiff’s transfer into the Fleet Reserve with 20 years of active service as an SK2. Id. Further, the Chairman’s letter stated that Plaintiff would be “eligible to apply for advancement to the highest rank satisfactorily served after 30 years.” Id. That same day, an official record copy of the letter of amendment to the Secretary was created: this letter was nearly identical to the previous letter, except for the last line, which stated that he “will be eligible to receive retired pay in the highest rank satisfactorily served (LT(jg)) after 30 years.” Compare AR 15, with AR 925. The 2009 amended version entered Plaintiff’s official military personnel file as the official record version. AR 669. The next day, on July 15, 2009, the Defense Finance and Accounting Service (DFAS) wrote Plaintiff, informing him that it had corrected his military 5 It is unclear in the AR whether this memorandum is correctly dated as “June” instead of “July.” The memo appears to refer to NPC’s July 2009 back-and-forth with the Board concerning the necessity of an amendment to its 2008 decision, but appears to pre-date this discussion. At oral argument, neither party could affirm whether this was a typographical or other error. See Transcript, dated Apr. 2, 2026, (ECF No. 23) (OA Tr.) 70:6–9, 70:23–11. 9 pay from the date of his discharge until his 20-year retirement date. AR 598. The letter included a computation worksheet, which showed that Plaintiff’s backpay was, at least initially, calculated using the pay rate corresponding to the rank of lieutenant and grade of O-2E. AR 601. A few months later, Plaintiff avers, he received a DD 214 discharge form, which stated that he had an enlisted rank and a pay grade of E-5—a change from his prior DD 214 discharge form, which listed him as a lieutenant. AR 582 (containing Plaintiff’s statements that he received the amended DD 214 on October 27, 2009), 590 (amended DD 214 form), 591 (prior version of DD 214 form). D. The 2023 BCNR Decision In April of 2019, while in the Fleet Reserve and after reaching 30 years of total service, Plaintiff applied to the Board and requested an advancement to O-2E in his retirement grade. AR 581, 607–608. As Plaintiff’s April 2019 application states, the DFAS computations reflected that, although at least a portion of his backpay (from the date of his discharge in 2006 until sometime in 2009) had been calculated based on an O-2E grade, he was no longer listed at that grade. AR 582, 601. Plaintiff asserted that he was not given notice or explanation as to this change in pay grade. AR 582. As a result, the Board sought another advisory opinion from the NPC that May, which advised that Plaintiff was not eligible to retire at the O-2E level because he had been “automatically transferred to the retired list at the earliest possible date (April 2009)” and had not accrued sufficient time served as an officer. AR 577–78. On July 17, 2019, Plaintiff, in response, advised the Board that in his view, pursuant to 10 U.S.C. § 8334, he had reached 30 years of combined active service and service in the Fleet Reserve, entitling him to retire at the “highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the Navy.” AR 710 (quoting 10 U.S.C. § 8334). On September 18, 2019, the Board informed Plaintiff that he himself could accomplish his desired relief by submitting a request for advancement to NPC. AR 10 575. In October 2019, Plaintiff submitted such a request. AR 717–18. On April 28, 2021, the Acting Assistant Secretary to the Navy for Manpower and Reserve Affairs (ASN) informed Plaintiff that she had determined that the highest grade Plaintiff had satisfactorily served was Ensign (O-1E). AR 652. On October 12, 2022, Plaintiff again turned to the Board, seeking a correction to his record stating that he had completed 30 combined years of active-duty and Fleet Reserve service, and would be retired as a lieutenant junior grade (O-2E). AR 655–734. Once more, the Board sought an advisory opinion from NPC, which recommended denial, stating that Plaintiff received two adverse FITREPs as a LTJG, and that his retirement rank had already been approved by the ASN. AR 643. Plaintiff responded to the advisory opinion. AR 622. On March 10, 2023, the Board denied Plaintiff’s request. AR 606–11. The decision listed many material facts from Plaintiff’s record, portions of the arguments from his response to the advisory opinion, and portions of the NPC advisory opinion. See AR 606–11. In response to Plaintiff’s argument that the Board’s 2009 amended relief indicated “LTJG” as his highest satisfactorily-served grade, the Board replied that it “is not empowered to direct future decisions or outcomes. When the amendment to the Board’s recommendation . . . was issued on 14 July 2009, no determination had yet been made regarding the highest grade in which you served satisfactorily for retirement purposes.” AR 610. The Board described its 2009 relief as a non-binding recommendation for merely equitable relief. AR 610– 11. It pointed out that the 2008 decision and 2009 amendment did not find his service as a lieutenant satisfactory and affirmed the ASN’s determination of his rank as O-1E “based upon several adverse FITREPs that you received as a LTJG (O-2E).” AR 611. The Board denied Plaintiff’s application, concluding that there was insufficient evidence to establish probable 11 material error or injustice in Plaintiff’s records, and that there was no error in the NPC’s advisory opinion. AR 606, 611. PROCEDURAL HISTORY On January 21, 2025, Plaintiff filed his Complaint in this Court. ECF No. 1 (Complaint). On June 20, 2025, Plaintiff filed his Motion for Judgment on the Administrative Record (MJAR), in accord with this Court’s Scheduling Order. See ECF Nos. 11 (Pl. MJAR); 10 (Amended Scheduling Order). On August 27, 2025, Defendant filed its Motion to Dismiss, and In the Alternative, Response to Plaintiff’s MJAR and Cross-MJAR. ECF No. 16 (Defendant’s Motion or Def. Mot.). On September 26, 2025, Plaintiff filed his Response to Defendant’s Motion to Dismiss and Cross-MJAR and Reply to Defendant’s Response. ECF No. 17 (Pl. Reply). On December 18, 2025, Defendant filed its Reply in support of its Motion. ECF No. 21 (Def. Reply). The Court heard oral argument in this matter on April 2, 2026. See Minute Entry dated Apr. 2, 2026. APPLICABLE LEGAL STANDARDS I. Motion to Dismiss To withstand a motion to dismiss under Rule 12(b)(6), “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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007)). This Court “may properly grant a motion to dismiss under [Rule] 12(b)(6) when a complaint does not allege facts that show the plaintiff is entitled to the legal remedy sought.” Steffen v. United States, 995 F.3d 1377, 1379 (Fed. Cir. 2021) (citing Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002)). At the motion to dismiss stage, this Court must “take all factual allegations in the complaint as true and construe the facts in the light most favorable to the non-moving party.” Boyd v. United States, 134 F.4th 1348, 1352 (Fed. Cir. 2025) (quoting Jones v. United States, 846 12 F.3d 1343, 1351 (Fed. Cir. 2017)). The Court, however, need not “accept the asserted legal conclusions.” Am. Bankers Ass’n v. United States, 932 F.3d 1375, 1380 (Fed. Cir. 2019). A. Justiciability A court must grant a 12(b)(6) motion to dismiss where a claim is non-justiciable. Antonellis v. United States, 106 Fed. Cl. 112, 115 (2012), aff’d, 723 F.3d 1328 (Fed. Cir. 2013) (citing Murphy v. United States, 993 F.2d 871, 872–73 (Fed. Cir. 1993)); see, e.g., Bader v. United States, 160 Fed. Cl. 529, 543 (2022), aff’d, 97 F.4th 904 (Fed. Cir. 2024). “Justiciability is distinct from jurisdiction; it depends on ‘whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.’” Murphy v. United States, 993 F.2d 871, 872 (Fed. Cir. 1993) (quoting Baker v. Carr, 369 U.S. 186, 198 (1962)). Courts may evaluate a claim and fashion relief only when they can “finally and effectively decide [the controversy] under tests and standards which they can soundly administer within their special field of competence.” Voge v. United States, 844 F.2d 776, 780 (Fed. Cir. 1988) (quoting Greene v. McElroy, 254 F.2d 944, 953 (D.C. Cir. 1958)). Justiciability is a “particularly apt inquiry when one seeks review of military activities,” and the Court is “scrupulous” in discerning whether a military claim is nonjusticiable. Adkins v. United States, 68 F.3d 1317, 1322 (Fed. Cir. 1995) (quoting Murphy, 993 F.2d at 872 (internal quotation marks omitted), and Orloff v. Willoughby, 345 U.S. 83, 94 (1953)). II. Motions for Judgment on the Administrative Record In the Court of Federal Claims, suits for military pay are adjudicated under Rule 52.1(c), which provides an expedited trial on a “paper record, allowing fact-finding by the trial court.” Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005) (referencing Rule 56.1, which was replaced by Rule 52.1(c)); see Rule 52.1(c) of the Rules of the United States Court of Federal Claims (Rule(s)). Unlike at summary judgment, genuine disputes of material fact do not preclude 13 the Court from granting a motion for judgment on the administrative record. Bannum, 404 F.3d at 1357. “When called upon to review a decision of a corrections board, or of a Secretary taken upon recommendation from a corrections board, the standard of review is whether the decision is arbitrary, capricious, unsupported by substantial evidence, or contrary to law.” Porter v. United States, 163 F.3d 1304, 1312 (Fed. Cir. 1998). This standard is one taken from the Administrative Procedure Act (APA). Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009) (“[I]t has become well established that judicial review of decisions of military correction boards is conducted under the APA.”). The plaintiff must show such a violation of this standard by “cogent and clearly convincing evidence.” Stine v. United States, 92 Fed. Cl. 776, 791 (2010), aff’d, 417 F. App’x 979 (Fed. Cir. 2011) (quoting Kirwin v. United States, 23 Cl. Ct. 497, 503 (1991)). A. Arbitrary and Capricious The APA standard, applied when reviewing decisions of the Secretary, 6 requires a reviewing court to determine whether an agency’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Schussler v. United States, 152 Fed. Cl. 207, 213 (2021), aff’d, No. 2021-1819, 2023 WL 3090617 (Fed. Cir. Apr. 26, 2023) (“Accordingly, unless the Board's decision ‘is arbitrary, capricious, unsupported by substantial evidence, or contrary to law,’ this Court will not disturb the Board's decision.” (quoting Lewis v. United States, 458 F.3d 1372, 1376 (Fed. Cir. 2006))). The Court considers whether the “agency provided a coherent and reasonable explanation of its exercise of discretion.” Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 992 (Fed. Cir. 2018) (quoting Banknote Corp. of Am., 6 As the Board, ASN, and other delegates only act on military records by the authority of the Secretary of the Navy, this section references the Court’s ability to review the decisions of the “Board” or “Secretary” interchangeably. 14 Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004)). The Board’s statement of denial and response to non-frivolous arguments does not need to be of “ideal clarity” so long as the Board’s rationale can “reasonably be discerned.” Schussler v. United States, 152 Fed. Cl. 207, 213 (2021), aff’d, No. 2021-1819, 2023 WL 3090617 (Fed. Cir. Apr. 26, 2023) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Am agency’s decision lacks a rational basis when the agency “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or . . . is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting State Farm , 463 U.S. at 43. Courts will “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” State Farm, 463 U.S. at 43 (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)). However, the agency’s reasoning, especially if it has internal inconsistencies, must be sufficiently explained. Stahl v. United States, 167 Fed. Cl. 657, 686 (2023); Draper v. United States, 163 Fed. Cl. 284, 292 (2022) (“While the Government’s argument is certainly plausible, ‘an agency cannot simply adopt inconsistent positions without presenting some reasoned analysis.’” (quoting Quinton v. United States, 64 Fed. Cl. 118, 129 (2001))). Still, this Court does not serve as a “super correction board.” Van Cleave v. United States, 70 Fed. Cl. 674, 678 (2006) (quoting Skinner v. United States, 594 F.2d 824, 829 (Ct. Cl. 1979)). That is, the Court may not substitute its judgment for that of the BCNR because “responsibility for determining who is fit or unfit to serve in the armed services is not a judicial province.” Stine v. United States, 92 Fed. Cl. at 791 (quoting Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983)). The Court is restricted to evaluating whether the Board has done its duty in examining all 15 relevant evidence and making reasoned determinations. Id.; Adams v. United States, 117 Fed. Cl. 628, 654 (2014) (citation omitted) (“If the Board ‘entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the [Board], or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise[,]’ its decision runs afoul of even this lenient standard of review.”). Agency decisions are entitled to a “presumption of regularity.” Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 626–27 (1986) (quoting State Farm, 463 U.S. at 43 n.9). This “strong presumption of regularity” accordingly “accompan[ies] government proceedings,” and presumes “that the military carries out its responsibilities properly, lawfully and in good faith.” Banerjee v. United States, 77 Fed. Cl. 522, 533 (2007) (citing Richey v. United States, 322 F.3d 1317, 1326 (Fed. Cir. 2003); Porter, 163 F.3d at 1316). “The plaintiff bears the burden of overcoming the ‘strong . . . presumption.’” Id. (quoting Bernard v. United States, 59 Fed. Cl. 497, 501 (2004), aff’d, 98 F. App’x 860 (Fed. Cir. 2004)); Stine, 92 Fed. Cl. at 791 (“[Plaintiff] ‘must also overcome the presumption of regularity which attaches to the actions of the BCNR.’” (quoting Boyer v. United States, 81 Fed. Cl. 188, 191 (2008), aff’d per curiam No.2008–5080, 323 F. App’x 917 (Fed. Cir. 2009))). B. Supported by Substantial Evidence In examining the BCNR’s decision making for arbitrary and capricious behavior, the Court may inquire as to whether the Board’s conclusions are supported by substantial evidence. Stine, 92 Fed. Cl. at 791 (quoting Kirwin v. United States, 23 Cl. Ct. 497, 503 (1991)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Strand, 951 F.3d at 1351 (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). This standard requires “something less than the weight of the evidence but more 16 than a mere scintilla of evidence.” In re Nuvasive, Inc., 842 F.3d 1376, 1379–80 (Fed. Cir. 2016) (quoting In re Kotzab, 217 F.3d 1365, 1369 (Fed. Cir. 2000)). DISCUSSION Plaintiff’s argument is straightforward. He argues that since the BCNR’s 2009 determination providing him relief from his prior separation purportedly directed that he be retired at the LTJG (O-2E) level, the BCNR’s subsequent affirmation of the ASN’s determination of ensign (O-1E) for purposes of retirement pay neither reconciles the alleged inconsistency nor supports the decision for denial with sufficient reasoning. Defendant responds in two parts: first, Defendant moves for this Court to dismiss Plaintiff’s suit as non-justiciable. Second, in the alternative, Defendant argues that the Court should grant it favorable judgment on the administrative record, as the Board’s 2023 decision was not arbitrary and capricious, and its denial of Plaintiff’s benefits was adequately supported by the record. The Court concludes that this matter is justiciable based on controlling precedent. The Court then considers the parties’ dueling MJARs and determines that the Board’s decision was neither arbitrary and capricious, nor based on insubstantial evidence. I. Motion to Dismiss Defendant moves to dismiss the Complaint pursuant to Rule 12(b)(6) as non-justiciable. Plaintiff responds that his claim is justiciable as a request for compensation that was denied based on unreasonable or unsupported government decision-making. As explained further below, the Court agrees with Plaintiff that this action is justiciable and correspondingly denies Defendant’s Motion to Dismiss. A. Plaintiff’s Claim is Justiciable Defendant contends in its Motion to Dismiss that the determination of Plaintiff’s grade at retirement is a non-justiciable issue. Def. Mot. at 14, 15. Specifically, Defendant argues that for 17 all officers below rear admiral, the Secretary of the Navy retains sole discretion over whether an officer has served at a grade “satisfactorily” and accordingly merits that grade at retirement. Id. at 16 (citing 10 U.S.C. § 1370(a)(2)(A)). According to Defendant, a determination entirely under the discretion of the Secretary and not “limited” by any other “tests and standards” established by Congress is non-justiciable. Id. (citing Murphy, 933 F.2d at 872). In other words, Defendant asserts that the Court cannot question Plaintiff’s officer grade determination or restore his rank without intruding into the merits of the Secretary’s decision. Id. at 17 (citing Bader, 160 Fed. Cl. at 543). Plaintiff retorts that his claim is not lodged against the merits of the ASN’s grade determination in a vacuum; rather, he claims a procedural error in the BCNR’s affirmance of the ASN’s determination. Pl. Reply at 6. Said differently, as Plaintiff asserts, there is a world of difference between a challenge to reevaluate the merits of a secretarial grade determination and a challenge to a BCNR decision as arbitrary and capricious. Id. at 8–9. Finally, during oral argument, Plaintiff also pointed to Gersten v. United States, No. 2025-1233, 2026 WL 925596 (Fed. Cir. Apr. 6, 2026) and Bader 7 in support of his argument. OA Tr. 29:2, 14. Here, Plaintiff contends that the Board, by not reconciling the inconsistent positions it took on his grade, was arbitrary and capricious. Pl. Reply at 8. According to Plaintiff, the inscrutability of the Secretary’s (or ASN’s) decisions does not figure in the matter because Plaintiff’s contention is that the Board failed to adequately explain its own decision not to correct Plaintiff’s records to show his retirement as an LTJG. Id. Further, Plaintiff brings a claim that the Board failed to consider all his mitigating evidence, citing Chisolm v. United States, 41 F. App’x 394, 398–99 7 At oral argument, Plaintiff’s counsel only referenced the parties’ arguments in Gersten, as the Federal Circuit issued its opinion in Gersten a few days after oral argum