Gardenia M. Dorado-Ocasio v. MARK AVERILL, Acting Secretary of the Army

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 24-1360
GARDENIA M. DORADO-OCASIO,
Plaintiff – Appellant,
v.
MARK AVERILL, Acting Secretary of the Army,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Patricia Tolliver Giles, District Judge. (1:23−cv−00595−PTG−IDD)
Argued: December 13, 2024 Decided: February 13, 2025
Amended: February 13, 2025
Before WILKINSON, KING, and HEYTENS, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion in which Judge King
and Judge Heytens joined.
ARGUED: Brian Anthony Pristera, DANIEL CONWAY & ASSOCIATES, San Antonio,
Texas, for Appellant. Carolyn Michaela Wesnousky, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee.

-- 1 of 21 --

2
WILKINSON, Circuit Judge:
The plaintiff, an Army officer, challenges a decision made by the Army Board for
Correction of Military Records (“ABCMR”) as arbitrary and capricious because the Board
failed to provide a lengthy explanation of its rationale. The ABCMR’s decision centered
around an adverse performance evaluation that plaintiff received, in part, because of her
failure to comply with her superior’s orders. The district court upheld the Board’s decision.
Because we find that the Board provided a discernible path for its determination, we now
affirm. In doing so, we acknowledge and respect the special deference Article III courts
exercise in reviewing military judgments.
I.
Plaintiff-appellant Gardenia Dorado-Ocasio (“CPT Dorado-Ocasio” or “Captain”)
is a captain in the United States Army. In September 2019, she was deployed to Iraq to aid
in Operation Inherent Resolve, a mission to “defeat[] ISIS in designated areas of Iraq and
Syria and set[] conditions for follow-on operations to increase regional stability.” Fact
Sheet, C OMBINED JOINT T ASK FORCE – O PERATION INHERENT RESOLVE . Plaintiff served
as the commanding officer of the 258th Movement Control Team, which consisted of
twenty-one soldiers tasked with handling the logistics of moving Army personnel,
equipment, and cargo for various military operations. J.A. 225. CPT Dorado-Ocasio was
subject to performance reviews, one of which constitutes the central issue before our court.

-- 2 of 21 --

3
The regimented procedures by which the Army reviews officers merit a brief
description. It is a system characterized by bureaucratic overlay whose multiple levels,
however cumbersome, serve to afford fair treatment to individual service members.
A.
Under Army Regulation 623-3, all officers, including both commissioned and
warrant officers, are subject to periodical Officer Evaluation Reports (“OERs”). OERs
consist of documents known collectively as the DA Form 67-10 series. The primary
function of an OER is to analyze how well an officer “performs their assigned tasks as
related to the Army Leadership Requirements Model.” Army Reg. 623-3 § 1-8(a)(4)(a).
This model emphasizes three core “attributes”—“character, presence, and intellect”—and
three core “competencies”—“lead[ing] others”; “develop[ing] the environment,
themselves, others, and the profession as a whole”; and “achiev[ing] organizational goals.”
A RMY LEADERSHIP , ADRP 6-22, D EP ’ T A RMY , at 1-5 & fig.1-1 (2012). OERs thus include
“judgments about a Soldier’s ability to perform at the current and higher grade or rank,
whether a Soldier will be given greater responsibility at the present rank” or “retained for
further military service,” and are an “extremely important factor[]” in comparing different
officers’ leadership potential. Army Reg. 623-3 § 1-8(a)(4)(a).
Two supervising officers are assigned the duty of completing these forms, a process
known as “rating.” In order to promote military discipline and the accuracy of performance
evaluations, these two raters reflect the rated officer’s chain of command. The initial “rater”
is the “immediate supervisor of the rated Soldier responsible for directing and assessing

-- 3 of 21 --

4
the rated Soldier’s performance. . . . [and] will normally be senior to the rated Soldier in
grade or date of rank.” Id. § 2-5(a). The rater must typically serve as the rated officer’s
supervisor for a minimum of 90 days before submitting an OER. Id. § 2-5(a)(1). The
“senior rater,” in turn, is normally the “the immediate supervisor of the rater and a
supervisor above all other rating officials in the rated officer’s chain of command.” Id. § 2-
7(a)(3) (emphasis added). And senior raters cannot typically issue a written OER until they
have served as the rated officer’s senior rater for a minimum of 60 days. Id.
Every twelve months, a rated soldier receives the standard “annual” OER.
Additional OERs may be compiled if interceding events occur, such as a change in rater or
a change in a rated officer’s duty. See id. §§ 2-10(a)(2), 3-34(c)-(d). Raters must also issue
“Relief for Cause” OERs when they seek the “early release” of an officer that they deem
“has failed in their performance of duty.” Id. § 3-55.
The procedures required in completing OERs are hardly perfunctory steps taken
only at the end of the relevant rating period. Army regulations require the continual
participation of both the rated officer and the rater. At the beginning of the rating period,
officers must complete DA Form 67-10-1A, listing their goals and objectives. Officers
must then meet with their rater to discuss how they will go about achieving these markers
of success. Rated soldiers must constantly evaluate their performance and make any
necessary alterations to their goals and objectives during the rating period. Id. §§ 2-10(b);
3-6(a).
Raters must conduct in-person counseling with the rated officer at the beginning of
and throughout the rating period; simply submitting initial performance objectives and

-- 4 of 21 --

5
OERs without face-to-face engagement is deemed an “unacceptable shortcut” of army
regulations. Id. § 3-7(a)(1)(a). Raters must counsel officers on how well those officers are
currently performing and how their development can continue in a positive trajectory.
Occasionally, this may involve the rater making alterations to objectives. Id. §§ 2-12(a)-
(e); 3-7(a)(1)-(2). When producing written OERs, raters will make final judgments about
the rated officer’s overall performance during that rating period and leave comments
describing their conclusions. Id. § 3-7(a)(3).
Senior raters conduct a more high-level analysis of the rated officer’s performance.
They initially review and approve the officer’s DA Form 67-10-1A. Id. § 3-9(a)(1)(a). At
the end of the rating period, the senior rater “will assess the rated officer’s potential
compared to all officers of the same rank,” including all those officers who the senior rater
has previously reviewed while serving as a senior rater. Id. § 3-9(a)(3)(c)(1); see also id.
§ 2-14(b)(3). The senior rater will also normally review and sign the lower rater’s OER
before it is provided to the rated officer. Id. § 2-14(c)(1).
Army regulations provide additional safeguards when either rater desires to make
derogatory comments about a rated officer. All disparaging information included in an
OER must be well-founded or proven. Id. § 3-20. And even if well-founded, not all
derogatory comments are permitted. But raters may include substantiated derogatory
information about “[a]cts of reprisal” and “[b]ehavior that is inconsistent or detrimental to
good order, conduct, and discipline,” among other exceptions. Id. § 3-26(a)(6)-(7).
Furthermore, if either rater requests relief for cause, additional review is required and will

-- 5 of 21 --

6
be performed by the person next most senior in the Army chain of command, who must
“[v]erify that any derogatory information has been accurately reflected.” Id. § 2-17(a)-(b).
If rated officers believe an OER contains any inaccuracy, injustice, or illegality, they
should first raise this claim with their supervising Commander. Id. §§ 4-3, 4-4. The
supervising Commander is typically someone higher up the chain of command than the
aforementioned raters. Id. § 1-11. The Commander will initiate an inquiry and produce a
report with his independent judgment. Id. § 4-5. If this does not resolve a rated officer’s
complaint, he may bring claims of bias or inaccuracy in an OER to the Army Special
Review Board (“ASRB”). The burden of proof in an appeal to the ASRB always rests with
the appellant—the rated officer in most cases—and must be met by clear and convincing
evidence. Id. § 4-11(a)-(b).
Under Army Regulation 15-185, rated officers may appeal adverse ASRB decisions
to the Army Board for Correction of Military Records. 32 C.F.R. § 581.3. This board is
statutorily required to consist of civilian personnel. See 10 U.S.C. § 1552(a)(1). Members
must be “regularly employed in the executive part of the Department of the Army” and
“are appointed by the Secretary of the Army and serve on the ABCMR as an additional
duty.” 32 C.F.R. § 581.3(c). Like the ASRB, applicants to the ABCMR bear the “burden
of proving an error or injustice.” Id. § 581.3(e)(2). However, the ABCMR instead requires
proof by a preponderance of the evidence. Id.

-- 6 of 21 --

7
B.
The present dispute arose from alleged inaccuracies and bias in CPT Dorado-
Ocasio’s June 29, 2020, “Relief for Cause” OER. On December 20, 2019, appellant was
assigned a new commanding officer, Lieutenant Colonel (“LTC”) Peter Holloway, who
thereupon became her rater. J.A. 170. LTC Holloway started overseeing CPT Dorado-
Ocasio during a time of great tension between the Captain and one of her subordinates,
Staff Sargeant (“SSG”) Shakeia Dunn. It is the Army’s belief that, in October 2019, CPT
Dorado-Ocasio retaliated against SSG Dunn for using the Army’s “open-door” policy to
register complaints about the Captain’s leadership failings with the Battalion Commander.
Response Br. at 6. CPT Dorado-Ocasio counseled SSG Dunn for “toxic leadership,
unprofessionalism, [and] lack of military bearing,” J.A. 79, in a manner which the latter
interpreted as being “based on personal feelings . . . rather than from a professional stand
point,” J.A. 76. Less than a month later, CPT Dorado-Ocasio reported a civilian
contractor’s allegation that SSG Dunn and a married sergeant were having an affair. J.A.
56.
Aware of the ongoing feud, LTC Holloway prohibited the Captain from any
reprisals against SSG Dunn. CPT Dorado-Ocasio confirmed receipt of this order on
December 30, 2019, indicating that she “fully respect[ed] the directive you gave me to hold
off on counseling and anything that can be seen as retaliation,” but that she would not
tolerate any disrespect or aggression from SSG Dunn. J.A. 126. Unassuaged by her
response, LTC Holloway repeated his dissatisfaction that the Captain was “considering
retaliating against [SSG Dunn] if she was one of the individuals that utilized the open door

-- 7 of 21 --

8
policy . . . [and that] [t]his concerns me greatly.” Id. He stated that the Battalion
Commander would handle disciplinary action taken against SSG Dunn. Despite this clear
command, CPT Dorado-Ocasio persisted, and asked LTC Holloway on January 18, 2020,
for permission to use the “open door” policy to discuss concerns about SSG Dunn with the
Battalion Commander. J.A. 125.
During this time, CPT Dorado-Ocasio also became the subject of an Army
Regulation 15-6 (“AR 15-6”) investigation. The scope of the investigation covered
appellant’s “toxic or ineffective leadership,” her acts of retaliation against subordinates,
military housing-policy violations, and an alleged extramarital affair with a major. See J.A.
171. CPT Dorado-Ocasio accused SSG Dunn of manufacturing these allegations behind
the scenes “with the intent of having me removed.” J.A. 125. CPT Dorado-Ocasio also
later claimed that LTC Holloway initiated the AR 15-6 investigation in retaliation for a
sexual harassment claim she brought on December 18, 2019. However, there is no record
evidence of this complaint or that the AR 15-6 was in any way linked to the complaint.
There is no record evidence to even suggest that the AR 15-6 commenced after the alleged
complaint was made. See Response Br. at 8 & n.2.
The results of the AR 15-6 investigation substantiated the allegations and CPT
Dorado-Ocasio was served with a General Officer Memorandum of Reprimand
(“GOMOR”) on March 28, 2020. The GOMOR received multiple levels of review, and
Brigadier General Geck finally removed appellant from company command on April 28,
2020. See J.A. 211.

-- 8 of 21 --

9
A few days beforehand, during a counseling session with LTC Holloway, the
Captain inquired as to what disciplinary action would be taken against SSG Dunn for her
alleged affair. LTC Holloway warned her for at least the third time “not to take any action
that could be considered as retaliation against SSG Dunn.” J.A. 60. Once again, the Captain
ignored his orders, instead immediately reporting SSG Dunn to a Sexual
Harassment/Assault Response Prevention (“SHARP”) officer. Id. On April 29, LTC
Holloway again counseled CPT Dorado-Ocasio for a “pattern” of retaliation against
subordinates despite “verbal and written warnings.” Id.
CPT Dorado-Ocasio subsequently filed a Uniform Code of Military Justice Article
138 request for redress against LTC Holloway on May 18, 2020, making various
allegations of wrongdoing, including that he discouraged her from reporting to SHARP.
As part of her complaint, CPT Dorado-Ocasio requested that LTC Holloway be removed
as her rater and investigated. J.A. 199-200. The request was subsequently denied after an
investigation found the Captain’s claims were unsubstantiated. See J.A. 62.
While the request for redress was pending, LTC Holloway issued the June 29, 2020,
“Relief for Cause” OER. He rated CPT Dorado-Ocasio’s performance
“UNSATISFACTORY” and recommended that she be removed from command
permanently “based upon an AR 15-6 investigation and subsequent GOMOR.” J.A. 170.
The senior rater acknowledged the investigation and GOMOR but declined to relieve
appellant, rating her instead as “QUALIFIED.” J.A. 171.

-- 9 of 21 --

10
C.
On December 3, 2020, CPT Dorado-Ocasio appealed her OER to the ASRB. She
contended that the OER was (1) factually inaccurate, (2) contained unproven derogatory
information, (3) was produced by a rater with a significant conflict of interest and personal
bias, (4) did “not reflect an assessment of the performance of assigned duties and
responsibilities against an understood set of requirements,” and (5) falsely alleged “defects
in her character and leadership.” J.A. 178. And, on April 8, 2021, the Board voted
unanimously to deny her appeal. J.A. 221.
Continuing to seek removal of the OER from her Army Military Human Resource
Record (“AMHRR”), CPT Dorado-Ocasio filed an application with the ABCMR on July
19, 2021, making substantially the same allegations as she did before the ASRB. See J.A.
26-27. The ABCMR subsequently rejected the application on June 21, 2022. The Board
reasoned that
[a]fter reviewing the application, all supporting documents, and the evidence
found within the applicant’s military records . . . relief was not warranted.
The applicant’s contentions, her military records, and regulatory guidance
were carefully considered. The Board found insufficient evidence to support
a conclusion that the contested report contains administrative or substantive
errors or that it was not prepared in compliance with applicable regulations
and policies. Furthermore, the applicant has not shown the evaluations
rendered by the rating officials represented anything other than their
objective judgment and considered opinions at the time the contested
evaluation report was prepared or that they exercised faulty judgment in
evaluating her as they did.
J.A. 19-20.
On May 3, 2023, CPT Dorado-Ocasio filed a complaint in the United States District
Court for the Eastern District of Virginia. She claimed that the ABCMR’s decision was

-- 10 of 21 --

11
arbitrary and capricious under the Administrative Procedure Act (“APA”) because the
ABCMR ignored evidence about LTC Holloway’s bias and did not engage in “serious
discussion” about whether the OER “was reprisal for her alleging sexual harassment.” J.A.
7. The parties cross-filed motions for summary judgment and the district court granted the
motion in favor of the defendant, finding that the “ABCMR adequately explained its
decision to deny Plaintiff[’]s application” and otherwise “did all that the law requires [the
Board] to do.” Ocasio-Dorado v. Wormuth, No. 23-CV-595, 2024 WL 712533, at *6, *9
(E.D. Va. Feb. 21, 2024).
On April 19, 2024, CPT Dorado-Ocasio filed her notice to appeal the district court’s
judgment. J.A. 3.
II.
We review the district court’s grant of summary judgment under a de novo standard
of review. Randall v. United States, 95 F.3d 339, 348 (4th Cir. 1996). We “employ[] the
same standards used by the district court,” id., and thus find summary judgment warranted
only if there is “no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law,” Fed R. Civ. P. 56(a). Under the APA, our review of ABCMR
decisions is limited to instances where the Board’s judgment was “arbitrary, capricious,
contrary to law, or unsupported by substantial evidence.” Downey v. U.S. Dep’t of the
Army, 685 F. App’x 184, 189 (4th Cir. 2017) (citing Randall, 95 F.3d at 348).
However, this case involves no ordinary “arbitrary and capricious” review. The
ABCMR, and other military boards akin to it, are afforded “an unusually deferential

-- 11 of 21 --

12
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.

-- 12 of 21 --

13
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.
This omission does not enable federal courts to look away from gross abuses of
military authority that violate constitutionally protected rights. See, e.g., Ex parte Milligan,

-- 13 of 21 --

14
71 U.S. (4 Wall.) 2 (1866) (holding that civilians cannot be tried by military tribunals when
civilian courts remain open). However, when—as here—no such rights are implicated,
Article III courts best uphold their place in our constitutional system by deferring to their
legislative and executive partners who possess “textually demonstrable constitutional
commitment[s]” of military authority. Baker v. Carr, 369 U.S. 186, 217 (1962). “[C]ourts
traditionally have been reluctant to intrude upon the authority of the Executive in military
and national security affairs.” Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988). The
“responsibility” for handling the intricacies of military life “rests upon the Congress and
upon the President of the United States.” Orloff v. Willoughby, 345 U.S. 83, 94 (1953). “It
is this power of oversight and control of military force by elected representatives and
officials which underlies our entire constitutional system.” Gilligan v. Morgan, 413 U.S.
1, 10 (1973).
Since the earliest days of our republic, the federal judiciary has avoided improvident
interference with military affairs. Just three years after the Constitution’s ratification,
federal circuit courts in New York and Pennsylvania refused to make determinations
regarding individual veterans’ pensions under the Invalid Pensions Act of 1792—that
administrative task was suitable for the Secretary of War, not Article III tribunals. See
Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n.* (1792). And the Supreme Court has not
deviated from the broader non-interference principle in the two centuries that have
followed. For example, the Court has rejected the expansion of judicially implied causes
of action to the military on the grounds that this would intrude upon Congress’s regulatory
authority. See, e.g., Chappell v. Wallace, 462 U.S. 296, 300-02 (1983); accord Lebron v.

-- 14 of 21 --

15
Rumsfeld, 670 F.3d 540, 549-50 (4th Cir. 2012). Our circuit has taken the additional step
of limiting Section 1983 actions for injuries incident to service in order to “respect[] the
delicate separation of powers necessary for [a] smooth and effective military.” Aikens v.
Ingram, 811 F.3d 643, 649 (4th Cir. 2016) (framing this holding as an extension of the
Feres doctrine).
Even when the Constitution does not expressly prohibit judicial review, prudential
concerns have counseled hesitancy about intrusions into military affairs. The Supreme
Court has long acknowledged that “the military is, by necessity, a specialized society
separate from civilian society.” Parker v. Levy, 417 U.S. 733, 743 (1974). This “specialized
community” is governed by its own unique codes and regulations—a “separate discipline
from that of the civilian.” Orloff, 345 U.S. at 94. Officers are regularly tasked with making
countless “complex[,] subtle, and professional decisions as to the composition, training,
equipping, and control of [the] military.” Gilligan, 413 U.S. at 10. Flexibility in such
decision-making is critical to the maintenance of an effective, adaptable, and readily
deployable fighting force.
Judicial involvement in this whole process raises the risk of hindrance to military
discipline. See Blevins v. Orr, 721 F.2d 1419, 1423 (D.C. Cir. 1983). Indeed, as the
Supreme Court noted in a decision whose age has not dimmed its pertinence:
An army is not a deliberative body. It is the executive arm. Its law is that of
obedience. No question can be left open as to the right to command in the
officer, or the duty of obedience in the soldier. Vigor and efficiency on the
part of the officer, and confidence among the soldiers in one another, are
impaired if any question be left open as to their attitude to each other.

-- 15 of 21 --

16
United States v. Grimley, 137 U.S. 147, 153 (1890); see Goldman v. Weinberger, 475 U.S.
503, 507 (1986) (“The military must insist upon a respect for duty and a discipline without
counterpart in civilian life in order to prepare for and perform its vital role.” (internal
quotation marks omitted) (quoting Schlesinger v. Councilman, 420 U.S. 738, 757 (1975))).
Military chains of command simply have no obvious civilian analog. Life and death do not
often inhere in corporate decision-making.
Judicial deference serves to preserve respect for the chain of command when
judicial review over a claim is permitted. See Farmer v. Mabus, 940 F.2d 921, 924 (5th
Cir. 1991) (“[S]uits for injunctive relief, like those for monetary damages, must be
carefully regulated in order to prevent intrusion of the courts into the military structure.”).
Federal judges have neither the tactical skills of a Major General planning an operation,
nor the logistical talents of a Sargeant Major assisting its execution. See Wu Tien Li-Shou
v. United States, 777 F.3d 175, 181 (4th Cir. 2015) (“As judges, we are just not equipped
to second-guess such small-bore tactical decisions. We are also ill-suited to evaluate more
strategic considerations. We do not know the waters.”). On this, our sister circuits have
long agreed. See, e.g., Blevins, 721 F.2d at 1423; Tirado-Acosta v. P.R. Nat’l Guard, 118
F.3d 852, 855 (1st Cir. 1997); Jones v. N.Y. State Div. of Military & Naval Affs., 166 F.3d
45, 50 (2d Cir. 1999); Farmer, 940 F.2d at 923; Alhassan v. Hagee, 424 F.3d 518, 525 (7th
Cir. 2005); Horn v. Schlesinger, 514 F.2d 549, 553 (8th Cir. 1975).
Respect instilled for military decision-making in non-threatening environments can
carry over to the realm of battle. One need only look to the circumstances of the present
case to understand that day-to-day military operations are “a field foreign to our normal

-- 16 of 21 --

17
competence.” Horn, 514 F.2d at 553. Operation Inherent Resolve, in which CPT Dorado-
Ocasio and her supervisors were engaged, is an extension of the “War on Terror”—a
relatively new form of conflict, in a region halfway across the globe. How ordinary human
tensions and shortcomings may affect this mission may not be immediately apparent.
Technological capabilities, geopolitics, and intelligence gathering evolve daily. The
judiciary was not designed to keep abreast of such changes. We were not trained to
understand the objectives and processes of a Movement Control Team, the logistical unit
which CPT Dorado-Ocasio commanded, nor the shifting performance goals that drove
raters’ and senior raters’ OERs. It would thus be a mistake to “sit astride the top of the
command pyramid,” and, without hesitation, substitute our judgments for those closer to
the ground. Wu Tien Li-Shou, 777 F.3d at 181; see Austin v. U.S. Navy Seals 1-26, 142 S.
Ct. 1301, 1302 (2022) (mem.) (Kavanaugh, J., concurring) (“[T]he District Court, while
no doubt well-intentioned, in effect inserted itself into the Navy’s chain of command,
overriding military commanders’ professional military judgments.”).
The ABCMR, whose decision we review, is comprised of individuals with “far
greater experience than this court in deciphering the content and effect of military
regulations.” Navas v. Gonzalez Vales, 752 F.2d 765, 769 (1st Cir. 1985). ABCMR
members are required to be “regularly employed in the executive part of the Department
of the Army.” 32 C.F.R. § 581.3(c). They are repeat players with intimate knowledge of
Army protocols, including OERs. Our deference simply reflects a comparative deficit. It is
not wrong to recognize that the range of judicial comprehension is not limitless. See Orloff,
345 U.S. at 94.

-- 17 of 21 --

18
C.
Deference to military review boards also reflects our obligation to conserve limited
judicial resources. In 2023, a total of 92,791 officers served in the Army. 2023
D EMOGRAPHICS – PROFILE OF THE MILITARY COMMUNITY , U.S. D EP ’ T D EF . 15 (2023).
Thus, at a minimum, nearly one hundred thousand “annual” OERs are issued each year.
And each branch of the Armed Forces has analogous evaluation procedures to the Army.
The ABCMR and its cousins were designed not only to avoid intrusion of Article III courts
into military affairs, but also to avoid “opening the floodgates” of litigation in federal
courts. Grzyb v. New River Co., 793 F.2d 590, 592 (1986).
While deference does not eliminate our obligation to ensure that the ABCMR has
acted appropriately, it does streamline our review process and ensure that time and energy
are not spent unnecessarily on cases that the military has competently resolved. Indeed, it
is a well-known principle that “there is an important judicial economy in deference.” Rhody
v. State Farm Mut. Ins. Co., 771 F.2d 1416, 1422 (10th Cir. 1985) (McKay, J., concurring).
The logic behind deference thus parallels that of administrative exhaustion requirements.
See Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir. 1974) (“[W]e can guard . . . against
inefficient use of judicial resources by requiring ‘finality’ within the military system and
thus avoiding needless review.”).
In the case of OERs, the layers of review are onion-like. A rater’s evaluation is often
reviewed by a senior rater, a Commander, the ASRB, and the ABCMR before Article III
courts even become involved. And where, like here, a “contested issue may first be litigated
through established agency procedures,” deference is “particularly appropriate.” Casey v.

-- 18 of 21 --

19
FTC, 578 F.2d 793, 798 (9th Cir. 1978). Failing to afford these reviewers proper deference
risks encouraging an inevitable cohort of dissatisfied soldiers to continue their challenges
in federal court. And if even a small fraction of OERs do elicit such challenges, the effect
on judicial caseloads would be measurable. See McCoy v. Gilbert, 270 F.3d 503, 510 (7th
Cir. 2001).
III.
Given the deference due to the military’s decisions with regard to military
personnel, we are constrained to affirm the judgment here. There must be some explanation
providing a discernible path to the Board’s determination. See Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The explanation, however, does
not have to be a “model of analytic precision.” Inova Alexandria Hosp. v. Shalala, 244
F.3d 342, 350 (4th Cir. 2001) (quoting Dickson v. Sec’y of Def., 68 F.3d 1396, 1404 (D.C.
Cir. 1995)). Rather, we will “uphold a decision of less than ideal clarity if the agency’s
path may be reasonably discerned.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc.,
419 U.S. 281, 286 (1974).
The ABCMR clearly met this low bar. That the ABCMR analyzed the “relevant
data” is beyond question. The Board’s discussion of the factual context of CPT Dorado-
Ocasio’s OER spans nine pages. It demonstrated an understanding of the incidents with
SSG Dunn and LTC Holloway, including the plaintiff’s repeated failure to heed orders not
to retaliate against those who raised lawful concerns about her leadership. See J.A. 11-19.
And while appellant claims that the ABCMR ignored “evidence” regarding LTC

-- 19 of 21 --

20
Holloway’s conflict of interest, she did not submit key evidence that could have validated
those hollow claims. The ABCMR is “not an investigative body”; it only reviews record
evidence. 32 C.F.R. § 581.3(c)(2)(iii). And neither the AR 15-6 investigation report, nor
direct evidence of CPT Dorado-Ocasio’s sexual-harassment claim were part of the
administrative record. See J.A. 11 (detailing all documents submitted to and reviewed by
the ABCMR).
The ABCMR’s decision explained that the available evidence did not credibly
support claims of LTC Holloway’s lack of objectivity, any substantive or procedural errors
in the evaluation process, or any factual inaccuracies. See J.A. 19-20. Applicants cannot
decline to submit relevant documentation and then cry foul when the Board finds that there
is insufficient information to justify correcting their AMHRR. Furthermore, appellant
could not point the ABCMR to any Army regulation which would have required LTC
Holloway to recuse himself from the OER process. See Oral Arg. at 13:38-14:19.
We are therefore satisfied that the ABCMR’s discussion provided sufficient clarity
as to its rationale for rejecting CPT Dorado-Ocasio’s application. The Board’s explanation,
as we have noted, need not represent a “model of analytic precision.” Shalala, 244 F.3d at
350 (quoting Dickson, 68 F.3d at 1404). And the speculation that appellant would have
benefited from slightly more elaboration does not inspire us to ignore the settled tradition
of deference to professional military judgments.

-- 20 of 21 --

21
IV.
None of the above is to imply that military decision-making is invariably correct. It
is not. The Supreme Court simply counsels that the risk of military error is presumptively
outweighed by the risks run by deviation from the constitutional design. In upholding the
ABCMR’s decision, we acknowledge that the effectiveness of an army unit depends upon
the obedience that individual military personnel, whether enlisted or officer, have to the
orders of their superiors. See Dep’t of Air Force v. Rose, 425 U.S. 352, 368 (1976). CPT
Dorado-Ocasio’s OER reflected her failure to respect the chain of command. She was
ordered not to retaliate, warned of the consequences, and retaliated, nonetheless. Discipline
of officers is a matter generally entrusted to the Army. We are not willing to import civilian
values and rules into this context when multiple layers of review have found rational
justifications for CPT Dorado-Ocasio’s negative evaluation. Failure to give the ABCMR a
wide berth would force us to inappropriately “tamper with the established relationship
between [] military personnel and their superior officers.” Chappell, 462 U.S. at 300. We
are unwilling to do so. The judgment is affirmed.
AFFIRMED

-- 21 of 21 --