The following excerpts are from the January 13, 2025 unanimous decision of the U.S. Court of Appeals for the Fourth Circuit in Dorado-Ocasio v. Wormuth (Wilkinson, J.):
[T]his case involves no ordinary “arbitrary and capricious” review. The ABCMR, and other military boards akin to it, are afforded “an unusually deferential application of the ‘arbitrary and capricious’ standard.” Kreis v. Sec'y of Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989); see also Bolton v. Dep't of the Navy Bd. for Corr. of Naval Recs., 914 F.3d 401, 407 (6th Cir. 2019); Mahoney v. Del Toro, 99 F.4th 25, 34 (1st Cir. 2024). Our deferential standard in military contexts is “calculated to ensure that the courts do not become a forum for appeals by every soldier dissatisfied with his or her ratings, a result that would destabilize military command and take the judiciary far afield of its area of competence.” Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). Indeed, “[p]erhaps only the most egregious decisions [of the boards] may be prevented under such a deferential standard of review.” Kreis, 866 F.2d at 1515. This degree of deference is rooted in (1) the statutory language giving life to the ABCMR, (2) the judiciary's longstanding commitment and obligation to avoid unnecessary intrusion into the military chain of command, and (3) the most basic principles of judicial economy.
A.
In enabling military record correction boards, Congress granted significant discretion to military leaders. The ABCMR's governing statute provides that “[t]he Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1) (emphasis added). This language is permissive rather than mandatory. Ultimately, so long as she follows the provisions of relevant law, the Secretary of the Army can correct any record in a soldier's AMHRR for those reasons she deems appropriate.
Failure to defer to the ABCMR's decisions would render the Secretary of the Army's discretion effectively meaningless. Therefore, to avoid undermining the Board's congressional design, courts read the statute as “substantially restrict[ing] the authority of the reviewing court to upset the Secretary's determination.” Kreis, 866 F.2d at 1514.
Our conclusion that the statutory language requires considerable deference to the ABCMR's decision-making is hardly exceptional. We merely add to the chorus of our sister circuits, who have long held that “[i]n light of this [statutory] language, the review of military board judgments is ‘exceptionally deferential.’ ” Williams v. Wynne, 533 F.3d 360, 368 (5th Cir. 2008) (quoting Viles v. Ball, 872 F.2d 491, 495 (D.C. Cir. 1989)); see also Kreis, 866 F.2d at 1513; Bolton, 914 F.3d at 406-07; Mahoney, 99 F.4th at 34.
B.
The reasons for significant judicial deference to military decisions are multiple. The Framers of the Constitution left no doubt as to the Judiciary's limited authority in military affairs. To Congress, the drafters gave the power to “declare War,” to “raise and support Armies,” to “provide and maintain a Navy,” to “make Rules for the Government and Regulation of the land and naval Forces.” U.S. Const. art I, § 8. To the Executive, the drafters gave the title of “Commander in Chief of the Army and Navy of the United States.” Id. art II, § 2; see also Saikrishna Prakash, Deciphering the Commander-in-Chief Clause, 133 YALE L.J. 1, 58-59 (2023). But to the Judiciary, the drafters left no such explicit power.
