Albino v. United States, 78 F. Supp. 3d 148

Background

David Albino, an Army Reserve JAG officer, received an "Unsatisfactory" OER for his Iraq deployment (Dec 1, 2003–June 22, 2004) with negative narratives from his rater and senior rater. The OER impacted promotions and career opportunities.
Albino challenged the OER administratively: he requested a Commander’s Inquiry (2004), appealed to the Officer Special Review Board (OSRB) (2006), and applied to the Army Board for Correction of Military Records (ABCMR) (2008). A Commander’s Inquiry (15-6) later found multiple procedural errors and recommended removal of the OER.
The OSRB identified several administrative errors and ordered limited corrections (e.g., removal of a support-form notation; add suitable future assignments) but denied deletion of the OER. The ABCMR initially denied relief in 2009 in a brief decision.
Subsequent litigation produced remands; on remand the ABCMR corrected some administrative errors (e.g., weight/height notation) but again declined deletion, providing limited analysis and relying in part on OSRB conclusions.
Albino sued under the Administrative Procedure Act, arguing the ABCMR’s June 20, 2009 decision was arbitrary and capricious for (a) misapplying the presumption of regularity and (b) failing to address numerous non-frivolous, potentially dispositive arguments and evidence.
The District Court granted Albino’s cross‑motion, found the ABCMR’s decision arbitrary and capricious, concluded Albino overcame the presumption of regularity, and remanded to the ABCMR for reconsideration without that presumption (180‑day remand; court retains jurisdiction).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Albino overcame the presumption that OERs are administratively correct	Albino pointed to multiple procedural errors (erroneous weight/height data, incorrect suspense/referral dates, missing support form, delayed Commander’s Inquiry, rating-chain questions) that, taken together, rebut the presumption	The government relied on the presumption of regularity and on OSRB findings to contend Albino did not meet the clear‑and‑convincing standard	Court: Albino overcame the presumption by clear and convincing evidence; many irregularities warranted removing the presumption and remand to ABCMR without it
Whether the ABCMR’s decision addressed Albino’s non‑frivolous arguments	Albino argued ABCMR failed to meaningfully respond to evidence (e.g., he was not physically shown the OER on July 1; November 2005 memorandum misstates suspense date; possible unlawful command influence; rater qualification/timing)	Gov’t contended ABCMR adequately identified and rejected Albino’s claims and/or Albino waived some arguments	Court: ABCMR failed to address numerous non‑frivolous, potentially dispositive arguments; failure to do so made the decision arbitrary and capricious; remand required
Whether limited corrections (post‑remand) cured defects or justified denial of deletion	Albino argued corrections did not resolve the substantive and procedural defects and post‑dating favorable evidence did not negate errors in the contested OER	Gov’t argued corrections and OSRB findings showed no basis to delete the OER and that post‑period evidence was irrelevant	Court: Corrections did not resolve many material issues; ABCMR could not rely on its cursory analysis or the presumption; substance must be reassessed without presumption
Scope of remand and standard of review to apply on remand	Albino sought full reconsideration of all claims without presumption and chance to supplement record	Gov’t urged deference to military board determinations and that many arguments were untimely or waived	Court: Remand ordered for ABCMR to reassess all potentially meritorious arguments and evidence without applying the presumption of regularity; parties may supplement the record; court retains jurisdiction

Key Cases Cited

Occidental Eng'g Co. v. INS, 753 F.2d 766 (9th Cir. 1985) (scope of district court review of administrative records)
Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275 (D.C. Cir. 1981) (deference and presumption of agency validity)
Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989) (arbitrary and capricious standard: consideration of relevant factors)
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (agency must articulate rational connection between facts and decision)
Frizelle v. Slater, 111 F.3d 172 (D.C. Cir. 1997) (ABCMR must address non‑frivolous arguments; minimal rational connection requirement)
Cone v. Caldera, 223 F.3d 789 (D.C. Cir. 2000) (presumption that OERs represent considered opinions; burden to overcome presumption)
Piersall v. Winter, 435 F.3d 319 (D.C. Cir. 2006) (judicial review of military correction boards is unusually deferential)
Kreis v. Secretary of the Air Force, 866 F.2d 1508 (D.C. Cir. 1989) (deference to military boards)