
    Donald W. ZAPPLEY, Sr., pro se, Plaintiff, v. The UNITED STATES, Defendant.
    No. 10-299C
    United States Court of Federal Claims.
    (Filed: December 3, 2012)
   OPINION

ALLEGRA, Judge:

In this military pay case, Donald W. Zapp-ley, Sr. (Mr. Zappley or plaintiff) challenges various decisions made by the Board for Correction of Naval Records. With respect to those issues, the parties have filed cross-motions for judgment on the administrative record. Having carefully reviewed the briefs, and for the reasons that follow, the court DENIES plaintiffs motion for judgment on the administrative record and GRANTS defendant’s cross-motion for judgment on the administrative record.

I. BACKGROUND

On January 15,1978, Mr. Zappley enlisted in the United States Naval Reserves and agreed to enlist in the U.S. Navy. On January 4, 1978, Mr, Zappley was examined by Navy personnel and found to be in “very good health.” On February 1, 1978, Mr. Zappley was discharged from the Reserves, and, on the same day, enlisted in the Navy.

On February 3, 1973, Mr. Zappley began recruit training at the Naval Training Center in Great Lakes, Illinois. On February 21, 1973, he was approved for enrollment in the Medical and Dental Specialist Ratings. On April 2, 1973, Mr. Zappley graduated from recruit training; he enrolled in Naval Hospital Corps School on April 26, 1973. Qn May 22, 1973, Mr. Zappley’s occupational rating was changed to Seaman Recruit. On June 1, 1973, he was transferred to the U.S.S. Independence.

On or about July 5, 1973, Mr. Zappley had an altercation with another sailor. He received injuries in this altercation and received treatment. On July 9, 1973, Captain Hodges, the Flight Surgeon and Medical Officer for the Independence, observed that Mr. Zappley was suffering, inter alia, from insomnia and nervousness; Captain Hodges recommended that Mr. Zappley be discharged because he was “deteriorating rapidly.” Captain Hodges diagnosed him with “Inadequate Personality,” characterized by findings that he was indecisive, depressed and unable to handle ordinary life stress. On July 19,1973, Captain Hodges recommended to the Independence’s Personnel Officer that Mr. Zappley be separated administratively from the Navy based upon this diagnosis.

On July 23, 1973, the Commanding Officer (CO) of the Independence notified Mr. Zapp-ley that he was being considered for administrative separation ‘Toy reason of Inadequate Personality.” On July 23, 1973, Mr. Zappley acknowledged this notice, but declined to make any statement. On July 24, 1973, the CO of the Independence recommended to the Chief of Naval Personnel that Mr. Zappley be processed for discharge by reason of unsuitability, adding that “[fjurther retention in the Naval Service would not be in the best interest of the U.S. Navy.” On August 16, 1973, Mr. Zappley received his discharge exam, at which time he was found not to reflect the presence of any injury, disease, disability, or defect regarding his left eye. At that time, Mr. Zappley’s vision was tested to be 20/20 for both eyes and he was found to be physically qualified for duty and able “to perform all the duties of his rate both at sea and foreign shore.” On August 20, 1973, Mr. Zappley was honorably discharged from the Navy.

As the years passed, Mr. Zappley periodically requested service-connected disability benefits relating to his left eye. Pursuant to these requests, his eye was examined by doctors at the Department of Veterans Affairs (the VA) and elsewhere in 1995, 2000 and 2001, with each examination reflecting 20/20 eyesight or better in the left eye. On May 4, 2002, the VA sent Mr. Zappley a supplemental statement of his case explaining why it had denied Mr. Zappley’s request for a service-connected disability relating to his left eye. The report noted that, although Mr. Zappley’s “service medical records show [that he] suffered a left eye injury that he attributed to a fight... that resulted with multiple contusions,” “[t]here was no evidence of chronic ... residuals,” adding that his “separation examination shows the eyes as normal with vision reported being normal (20/20).” The report noted that examinations of his eyes in 1995 and 2000 had revealed no abnormalities, and recorded the fact that plaintiff was in a car accident in 1987 in which his left eye was injured.

On January 8, 2003, Mr. Zappley petitioned the Board for Correction of Naval Records (BCNR) to correct alleged errors in his military record. In particular, Mr. Zapp-ley sought to have his record modified to: (i) reflect that the altercation in which he reportedly was involved on July 5,1973, was a “sneak attack” rather than a “fight;” (ii) delete references to the race of the other sailor involved in the altercation (who was African-American); (iii) reflect a more favorable reentry code; and (iv) change the basis of his discharge to physical disability. On February 21, 2003, the BCNR requested that Mr. Zappley provide it with additional information supporting his petition for relief. On March 5, 2003, Mr. Zappley submitted a letter for consideration by the Board. On April 1, 2003, the BCNR again offered him the opportunity to submit additional information. He did not respond to this second request.

On June 9, 2003, the staff of the BCNR requested that the VA provide a copy of Mr. Zappley’s service medical record, VA rating decisions, and other VA-generated medical and administrative records. On November 20, 2003, the BCNR informed Mr. Zappley that the VA had not yet responded to its requests and requested that Mr. Zappley verify his service member number, social security number and VA claim number, as well as provide a copy of his VA rating decisions and medical records. On February 3, 2004, the BCNR administratively closed Mr. Zappley’s application because is had not yet received his records. On June 21, 2004, the BCNR received a large number of records from the VA, and on June 22, 2004, reopened Mr. Zappley’s application. However, neither Mr. Zappley nor the VA provided any VA ratings decisions to the BCNR at this time.

On June 80, 2005, a three-member panel of the BCNR,.sitting in executive session, considered and denied Mr. Zappley’s petition for relief. The panel found that the evidence submitted by Mr. Zappley did not establish the existence of probable material error or injustice. On July 26, 2006, Mr, Zappley requested that the BCNR reconsider its decision, relying on the VA’s March 16, 2005, decision to grant him a ten-percent, service-connected disability benefit. In his request to the VA, Mr. Zappley argued that his motor vehicle accident in 1987 had aggravated the pre-existing injury to his left eye, experienced while he was in the service. On September 7, 2005, the Executive Director of the BCNR determined that Mr, Zappley had failed to submit any new evidence or other matter not previously considered by the board and concluded that further review was unwarranted.

On May 17, 2010, Mr. Zappley filed a complaint in this court. On August 30, 2010, defendant filed a motion requesting dismissal of Mi\ Zappley’s tort, criminal, and -wrongful discharge claims for lack of jurisdiction under RCFC 12(b)(1); this motion also sought a remand of Mr. Zappley’s disability benefits claim to the BCNR. On November 15, 2010, this court transferred Mr. Zappley’s tort and criminal claims to the United States District Court for the Western District of Michigan, dismissed his wrongful discharge claim as barred by the statute of limitations, and remanded the remainder.of the case to the BCNR to consider the remaining issues relating to Mr. Zappley’s disability claim.

On December 17, 2010, a three-member panel of the BCNR considered the matters raised in the court’s remand. The Board found that the VA’s March 16, 2005, disability determination did not provide a basis for reconsideration of Mr. Zappley’s application, finding, inter alia, that this determination was reasonably available to Mr. Zappley before the Board’s June 30, 2005, decision. The BCNR further found that the determination was not probative of the existence of material error or injustice in his naval record because the VA had granted Mr. Zappley’s request for a disability rating “without regard to the issue of your fitness for military duty on 20 August 1973.’’ The Navy’s decision on remand was filed with the court on January 11, 2011.

On October 12, 2011, plaintiff filed a motion to supplement the administrative record, which the court, on January 6, 2012, denied. On January 6, 2012, Mr. Zappley filed a motion for judgment on the administrative record. On March 21, 2012, defendant filed a cross-motion for judgment on the administrative record. Briefing on those cross-motions has been completed. Oral argument is deemed unnecessary.

II. DISCUSSION

In his motion for judgment on the administrative record, Mr. Zappley challenges both the BCNR’s original, June 30, 2005, denial of his petition, as well as the Board’s December 17, 2010, denial, on remand, of his request for reconsideration.

The Federal Circuit, in Bannum, Inc. v. United States, 404 F.3d 1346, 1355 (Fed. Cir. 2005), instructed that courts must distinguish “[a] judgment on the administrative record from a summary judgment requiring the absence of a genuine issue of material fact,” Bannum teaches that two principles commonly associated with summary judgment motions—that the existence of a genuine issue of material fact precludes a grant of summary judgment and that inferences must be weighed in favor of the non-moving party—do not apply in deciding a motion for judgment on the administrative record. Id. at 1356. The existence of a question of fact thus neither precludes the granting of a motion for judgment on the administrative record nor requires this court to conduct a full-blown evidentiary proceeding. Id.; see also Int’l Outsourcing Servs., LLC v. United States, 69 Fed.Cl. 40, 45-46 (2005). Rather, such questions must be resolved by reference to the administrative record, as properly supplemented—in the words of the Federal Circuit, “as if [the Court of Federal Claims] were conducting a trial on [that] record.” Bannum, 404 F.3d at 1354; see also Carlisle v. United States, 66 Fed.Cl. 627, 631 (2005).

Bannum’s approach is well-suited to the limited nature of review conducted in cases such as this. Thus, in reviewing administrative decisions affecting military status, this court applies a traditional administrative standard of review, ie., whether the decision 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) (citations omitted); see also Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983); Wells v. United States, 46 Fed.Cl. 178, 181 (2000). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Overall, a plethora of authority mandates judicial deference to military decisions, including those rendered by the corrections boards. Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973) (“[D]ecisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments.”); Orloff v. Willoughby, 345 U.S. 83, 93, 73 S.Ct. 534, 97 L.Ed. 842 (1953) (“[J]udges are not given the task of running the Army.”); Sanders v. United States, 594 F.2d 804, 814 (Ct. Cl. 1979) (this court will “not substitute [its] judgment for the board’s when reasonable minds could reach differing conclusions”), As the Federal Circuit has observed, “[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, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981)); see also Carlisle, 66 Fed.Cl. at 631.

Plaintiff has not shown that the BCNR’s 2005 denial of his petition for relief was arbitrary, capricious, contrary to law, or unsupported by substantial evidence in the record. In its 2005 decision, the BCNR carefully reviewed the evidence in the record and saw no basis to question the contemporaneous diagnosis, and associated findings, rendered by the medical officer aboard the Independence. The Board found that Mr. Zappley had not provided evidence to support any modifications to his records, and specifically rejected his assertion that he was unfit for duty, at the time of his discharge, by reason of a physical disability. The latter view, the Board found, was supported by the VA’s periodic denials of Mr. Zappley’s requests for disability compensation based upon alleged injuries that occurred during the confrontation on the Independence. This court has likewise carefully reviewed the evidence in the administrative record and finds that the BCNR’s determination is supported by substantial evidence, to ivit, “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed. Cir. 2006) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477-78, 71 S.Ct. 456, 95 L.Ed. 456 (1951)); see also Consol. Edison Co., 305 U.S. at 229, 59 S.Ct. 206.

Furthermore, plaintiff has failed to show that the BCNR’s 2010 denial of reconsideration was arbitrary, capricious, contrary to law, or unsupported by substantial evidence in the record. The BCNR found that the VA’s March 16, 2005, disability determination did not constitute new and material evidence or otherwise provide a basis for reconsideration of Mr. Zappley’s application. In this regard, the Board noted that the VA’s disability determination was not “new” as it had been issued before the Board’s June 30, 2005, decision. Nevertheless, the Board also found that this information did not prove the existence of a material error or injustice in Mr. Zappley’s naval record because the disability rating had been granted as of 1996, without regard to Mr. Zappley’s fitness for military duty at the time of his discharge. Contrary to plaintiffs claims, there is no reason to question the BCNR’s consideration of the 2005 disability determination. While the board was required to consider the VA’s action, it was not required to give the VA’s finding determinative weight. See Stine v. United States, 92 Fed.Cl. 776, 796 (2010) (“Certainly the BCNR may not ignore an applicant’s DVA records altogether, but in its job of weighing evidence, the Board may give less weight to DVA records if this decision is rational and supported by evidence.”). Again, plaintiff has provided no evidence or other arguments that persuade this court that it should disturb the Board’s findings.

In arguing otherwise, plaintiff sometimes misstates the record and, more often, relies on materials that are not in the administrative record. As to the latter point, as recently noted by the Federal Circuit, “the Supreme Court has established that review under the [arbitrary and capricious standard] is generally limited to the administrative record.” Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009) (citing Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)). “The focus of judicial review of agency action remains the administrative record,” and supplementation thus-“should be limited to cases in which ‘the omission of extra-record evidence precludes effective judicial review.’ ” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380-81 (Fed. Cir. 2009) (quoting Murakami v. United States, 46 Fed.Cl. 731, 735 (2000), aff'd, 398 F.3d 1342 (Fed. Cir. 2005)); see also Levine v. United States, 453 F.3d 1348, 1350 (Fed. Cir. 2006). Supplementation under this standard ought to occur rarely, lest the addition of new evidence provide an opportunity to “convert the ‘arbitrary and capricious’ standard into effectively de novo review.” Axiom, 564 F.3d at 1380 (quoting Murakami, 46 Fed.Cl. at 735).

In the instant case, the court rejected plaintiffs motion seeking to supplement the administrative record with a variety of documents. None of the documents provided by plaintiff had been submitted to the BCNR. At that time it denied this motion, the court noted that many of the materials submitted by plaintiff with its motion related to claims before the VA that are not before this court. Others of the documents in question did not appear relevant to the disability claims before the court. As such, the court found that there was no indication that the omission of the materials in question would “preclude effective judicial review.” Zappley v. United States, Order No. 10-299C (Fed. Cl. Jan. 6, 2012) (quoting Axiom, 564 F.3d at 1381). Nothing in plaintiffs subsequent filings persuades the court that this earlier ruling was wrong when decided or should be reconsidered.

Beyond his reliance on these excluded materials, plaintiffs arguments reflect little more than mere disagreements with the BCNR’s findings. “‘Such naked claims,’” this court has stated, “by all appearances unsupported by anything ⅛ the record, fall far short of meeting the heavy burden of demonstrating that these findings were the product of an irrational process and hence arbitrary and capricious.’” Doyle ex rel. Doyle v. Sec’y of Health and Human Servs., 92 Fed.Cl. 1, 7 (2010) (quoting JWK Int’l Corp. v. United States, 52 Fed.Cl. 650, 660 (2002), aff'd, 56 Fed.Appx. 474 (Fed. Cir. 2003)).

III. CONCLUSION

This court need go no further. For the foregoing reasons, the court finds that the BCNR’s decisions were not arbitrary, capricious, contrary to law, or unsupported by substantial evidence in the record. Plaintiffs motion for judgment on the administrative record, therefore, is DENIED, and defendant’s cross-motion in that regard is GRANTED. The Clerk is hereby ordered to dismiss the complaint. No costs.

IT IS SO ORDERED. 
      
      . In his notes, Captain Hodges described Mr. Zappley as "wide eyed,” "rambling," "mildly anxious,” and suffering from "paranoid feel-tags.” Captain Hodges' notes also contained an extensive discussion of Mr, Zappley’s experiences before and after joining the Navy,
     
      
      . Following the 2000 examination, however, it was reported—"trace nuclear sclerosis with pho-tophobia (abnormal tolerance to light), left eye, unknown etiology,”
     
      
      . That decision indicated that the VA was "acknowledging service connection for the mild superior temporal field distortion in your loft eye and assigning a disability evaluation of 10 percent for that condition effective March 14, 1995.”
     
      
      . On January 3, 2012, the district court dismissed these claims with prejudice. See Zappley v. United States, 2:10-cv-00333-RAED (W.D. Mich. Jan. 3, 2012).
     
      
      . On January 7, 2011, Mr. Zappley moved for reconsideration of this court’s order dismissing his wrongful discharge claim as time-barred. On March 16, 2011, the court denied his motion. Mr. Zappley appealed the dismissal to the United States Court of Appeals for the Federal Circuit, which, on August S, 2011, dismissed the appeal as interlocutory. Zappley v. United States, 435 Fed.Appx. 937 (Fed. Cir. 2011).
     
      
      . As recounted by the Board:
      In the latter regard, the Board noted that VA rating officials granted your request for service connection for a visual field defect based on their determination that the defect is "consistent” with the orbital fracture you allegedly sustained in 1973, that your service medical records are ambiguous regarding whether the trauma you suffered to tire area of your left eye "involved any fractures", and that "ambiguity in your service • records must be resolved in favor of your report..."
     
      
      . This was one of several attempts plaintiff made to bring before the court materials that he did not timely submit to the BCNR. Most recently, on May 29, 2012, plaintiff filed a motion for leave to file an administrative document (a witness statement) out of time. On November 28, 2012, the court denied that motion, essentially for the same reasons it had denied plaintiff’s earlier requests.
     
      
      . For example, Mr. Zappley contends that his contemporaneous medical records reflect "permanent and continued injury and disability." However, the records reflect no such thing. And, indeed, when Mr. Zappley was subsequently examined in 2000 and 2001, no eye abnormalities were identified.
     
      
      . In forceful terms, the Federal Circuit rejected the lenient approach to the use of extra-record evidence reflected in Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989), noting that the latter decision: (i) "departs from fundamental principles of administrative law as articulated by the Supreme Court;” (ii) has "questionable" vitality "even within the D.C. Circuit... in light of more recent opinions by that court which demonstrate a more restrictive approach to extra-record evidence;” and (iii) at all events, "is not the law of this circuit.” Axiom, 564 F.3d at 1380-81.
     
      
      .To the extent Mr. Zappley seeks to reargue his tort claims, it is sufficient to point out that those claims were transferred to the district court and have now been resolved.
     