No. 23-1615

DANIEL RICHARD MAHONEY,

Plaintiff, Appellant,

v.

CARLOS DEL TORO, Secretary, U.S. Department of the Navy,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Rikelman, Lynch, and Howard, Circuit Judges.

Emily Dupraz, with whom Jeff Goldman and Morgan, Lewis & Bockius LLP were on brief, for appellant. Michael L. Fitzgerald, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.

April 18, 2024 LYNCH, Circuit Judge. Appellant Daniel Richard Mahoney, a U.S. Navy veteran, argues that the district court erred in rejecting his Administrative Procedure Act ("APA") challenge to the Board for Correction of Naval Records' ("BCNR") decision denying his 2018 petition to upgrade his 1989 other than honorable discharge status. See Mahoney v. Del Toro, No. 22-11074, 2023 WL 3587285 (D. Mass. May 22, 2023). We agree with the district court that the BCNR reasonably determined that Mahoney had failed to provide "substantial evidence" of "probable material error or injustice" to overcome the BCNR's presumption that military officers "have properly discharged their official duties." 32 C.F.R. § 723.3(e)(2). We hold that the BCNR's decision was not arbitrary or capricious, an abuse of discretion, unsupported by substantial evidence, or contrary to law. See 5 U.S.C. § 706(2). We affirm the district court's decision and reject Mahoney's challenge to the BCNR's decision.

I.

The following undisputed facts were in the record before the BCNR. Mahoney had two periods of service. The first, from 1985 to 1988, resulted in an honorable discharge. The second period, from 1988 to 1989, resulted in the other than honorable discharge status at issue before the BCNR.

Mahoney first enlisted in the Navy on August 27, 1985. During this enlistment, he "witnessed a number of traumatic events"

- 2 - while deployed on the USS Luce, which escorted oil tankers throughout the Persian Gulf during the Iran-Iraq war. Mahoney did not receive any non-judicial punishments ("NJPs") during this time, and he was awarded a commendation for his work on the USS Luce and another for outstanding performance. He received three service ribbons. On August 24, 1988, Mahoney's first deployment ended, and he was honorably discharged.

Mahoney reenlisted the next day. The second period of service was markedly different. He was again assigned to the USS Luce, which was then stationed in Florida. In December 1988, Mahoney received an NJP for an unauthorized absence of thirty minutes from his appointed place of duty. In January 1989, he was apprehended by civilian authorities for driving while intoxicated, speeding, and "attaching [a] tag to [a] vehicle not assigned" to it. In February 1989, he received a second NJP for a separate incident involving "drunkenness."

In March 1989, the Navy evaluated Mahoney for and diagnosed him with alcohol dependency. The Navy evaluator recommended that Mahoney participate in an inpatient program for treatment of his alcohol dependency. Mahoney received treatment at the Naval Hospital in Pensacola, Florida from April 23 to June 2, 1989. He did not receive treatment during this time for "[his] stress disorder or the stress symptoms [he provided