Administrative: Domestic violence allegations to remain in military records

Where the secretary of the Army refused to expunge domestic violence allegations from plaintiff’s military records, and its decision was not arbitrary and capricious, it was affirmed.

Background

Joseph E. Whitlock brings a claim under the Administrative Procedure Act, or APA. Essentially, he challenges the Secretary of the Army’s decision to overturn the recommendation of the Army Board of Correction of Military Records, or ABCMR, to expunge domestic violence allegations from plaintiff’s military records. He also brings a Privacy Act claim against the United States on the basis it allegedly “contacted the news media” to report on his records.

There are multiple pending motions. Plaintiff seeks partial summary judgment on the APA claim, contending that the Secretary of the Army improperly interjected his personal opinion in his final decision, despite being bound by the ABCMR’s recommendation under agency regulations.

Conversely, defendant seeks summary judgment on the APA claim on the basis that the Secretary of the Army bears final decision-making authority under Army regulations, and that the court must grant its usual deference to military judgments here. Defendant additionally seeks to dismiss the Privacy Act claim because the statute of limitations lapsed.

Record

Plaintiff argues that defendant did not provide this court with the complete administrative record. The court agrees with plaintiff that the screenshots of text messages between Ms. Miller and Ms. D’Annunzio cannot be properly considered by this court.

At the hearing and in their briefing, neither party could definitively confirm whether those screenshots were explicitly considered by the DASA-RB and the ABCMR in their decision­making. Nor are the screenshots included in the list of “supporting documents” considered in the ABCMR record of proceedings.

Defendant nevertheless suggests that the court can consider the screenshots since the “ABCMR and the DASA-RB indirectly considered these text messages when reaching their decision because both referred to D’ Annunzio’s changed statements vis-a-vis the text messages.” However, while several text messages are referenced in the law enforcement investigative report and plaintiff’s expungement request, the screenshots provided in the latter half of the administrative record are far more comprehensive and detailed. Accordingly, the court will not consider the text message screenshots as part of the record in its review.

Apart from the screenshots, the court finds that the remainder of the administrative record is complete as it stands. Plaintiff argues that the “entire unredacted Army CID investigation file” must be included. However, the redactions in the record do not preclude effective judicial review here. Moreover, the record properly includes all the documents that the ABCMR considered in its decision.

Discretion

The parties dispute whether, under Army regulations, the Secretary of the Army is bound by the ABCMR’s recommendation. Plaintiff contends that because the ABCMR “unanimously agreed and recommended” expungement, the matter is final and therefore binding on the Secretary. The court disagrees.

Given the regulations and precedent consistently state that the Board acts for the Secretary, it would be illogical for the Secretary to be constrained by the actions of one of its agents. Accordingly, on the plain text of the regulation, the court finds that the Secretary acted within his authority under Reg. 15-185 when denying the ABCMR’s unanimous recommendation.

APA

The relevant factors for determining whether an agency action was arbitrary or capricious include “whether the agency considered the relevant factors and whether a clear error of judgment was made.” The court must determine whether the agency’s “written opinion made a ‘rational connection’ between that evidence and its conclusion.” Because the decision here provides an explanation supported by the record, and given the broad discretion granted to military decisions, the court will uphold the DASA-RB’s determination.

Privacy Act

Under the Privacy Act, the statute of limitations for bringing a valid cause of action is two years from when the action accrued. Based on the allegations in the amended complaint, plaintiff knew or had reason to know of the alleged violations on June 11, 2020, when the Army Times allegedly published his personal details.

However, plaintiff did not bring a Privacy Act claim against defendant until June 25, 2024, more than four years after the claim accrued. Accordingly, plaintiff’s Privacy Act claim is time-barred.

Defendant’s motion for summary judgment and motion to dismiss granted. Plaintiff’s motion for summary judgment denied.

Whitlock v. United States, Case No. 1:24-cv-1409, Sept. 29, 2025. EDVA at Alexandria (Giles). VLW 025-3-414. 21 pp.