Eric D. Smith v. Daniel P. Driscoll

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 17, 2026*
Decided February 20, 2026
Before
MICHAEL B. BRENNAN, Chief Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
NANCY L. MALDONADO, Circuit Judge
No. 25-1574
ERIC D. SMITH,
Plaintiff-Appellant,
v.
DANIEL P. DRISCOLL, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:24-cv-01174-MPB-KMB
Matthew P. Brookman,
Judge.
O R D E R
Eric D. Smith, a former member of the Army Reserve, sued several Army
officials in their official capacities under the Administrative Procedure Act (APA) after
he was denied reenlistment. See 5 U.S.C. § 706(2)(A). The district court granted the
Army’s motion for summary judgment, concluding that the Army’s decision was not
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

-- 1 of 6 --

No. 25-1574 Page 2
arbitrary or capricious. Because the Army followed valid, governing regulations, and
those regulations are consistent with the governing statutes, we affirm.
Smith joined the Army Reserve in 1996. In 2001, he was convicted of Class B
felony arson in Indiana state court and was sentenced to 20 years’ incarceration. He
separated from the Army Reserve in 2004. In 2021, his arson conviction was expunged.
In 2022, Smith attempted to reenlist in the Army Reserve. He first submitted a
standard application. After a background check revealed his arson conviction, the
application was denied because he did not provide the required documentation
regarding his criminal record. In March 2024, Smith made another attempt to reenlist.
This time, he fully disclosed his expunged arson conviction. His application was
flagged by Army officials and was subsequently denied because of his prior
misconduct.
Shortly thereafter, Smith filed this action against several Army officials in their
official capacities, alleging that he was denied reenlistment because of his religion. The
district court screened his complaint, see 28 U.S.C. § 1915(e)(2), and permitted Smith to
proceed on claims seeking injunctive relief for religious discrimination under the APA
and injunctive relief under Indiana Code § 35-38-9-10(b), which makes unlawful an
employer’s refusal to hire someone because of a conviction that has been expunged.
Smith alleged that his reenlistment was unlawfully denied because of his religion and
therefore was arbitrary and capricious under the APA, and that Indiana’s expungement
statute required Army officials to honor the expungement of his state arson conviction,
such that it could not bar his reenlistment.
Both parties moved for summary judgment. In his motion, Smith raised an
additional claim: a facial challenge to the validity of Army regulations. The court,
however, noted that its screening order had not authorized a claim on this basis, so it
considered only Smith’s arguments concerning religious discrimination and his claim
under Indiana’s expungement statute. The court then granted the Army’s motion.
The court first concluded that Smith failed to show that the Army denied his
reenlistment application for religious reasons. It then concluded that the Army did not
act arbitrarily or capriciously in denying Smith’s attempt to reenlist. The court
explained that Army regulations prohibit officials from waiving certain categories of
major misconduct—such as arson—when determining enlistment eligibility and bar
consideration of state-law variances—including expungements—in evaluating prior
misconduct. The court also noted that Army officials who disregard these regulations

-- 2 of 6 --

No. 25-1574 Page 3
risk court-martial. As to Smith’s claim under Indiana’s expungement statute, the court
concluded that the Supremacy Clause requires Army officials to follow federal military
regulations over conflicting state law. Accordingly, the Army was not required to honor
Smith’s expungement when assessing his eligibility for reenlistment.
Smith then moved under Federal Rule of Civil Procedure 59 to vacate the
judgment, arguing that the Army regulations conflict with superseding Department of
Defense regulations and statutory authority in a way that placed the Army “outside the
scope of any congressionally delegated authority.” The court rejected this argument,
adopting the Army’s position that the governing statutes and regulations authorized
each of the armed services to promulgate enlistment standards more exacting than the
minimums contained in the governing statute and the Department of Defense’s
implementing regulations.
On appeal, Smith argues that the Army regulations exceed the authority granted
by superior regulations and statutes, rendering the Army’s decision arbitrary and
capricious.† We review whether the Army’s decision to deny reenlistment was
arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or
not in accordance with law. See Little Co. of Mary Hosp. v. Sebelius, 587 F.3d 849, 853
(7th Cir. 2009).
We begin by outlining the statutory and regulatory framework governing
enlistment eligibility. With respect to enlistment generally, 10 U.S.C. § 504(a) provides
that no person convicted of a felony may enlist in the armed forces, except that the
Department of Defense may authorize exceptions in “meritorious cases.” With respect
to enlistment in the Reserve, 10 U.S.C. § 12102(b) authorizes each service secretary to
“prescribe physical, mental, moral, professional, and age qualifications for the
enlistment of persons as Reserves.” Pursuant to its authority under § 504(a), the
Department of Defense has promulgated regulations establishing minimum enlistment
standards and criteria for exceptions, including the statutorily-authorized waivers.
† We note that Smith does not appear to have sought relief from the Board for
Correction of Military Records prior to filing suit. Generally, courts will not review
internal military matters in the absence of exhaustion of available intraservice remedies.
See Woodrick v. Hunderford, 800 F.2d 1413, 1416 (5th Cir. 1986). Nonetheless, the Army
has not raised the non-jurisdictional failure-to-exhaust argument, so we proceed to the
merits. See Bradley v. Village of University Park, 59 F.4th 887, 897 (7th Cir. 2023).

-- 3 of 6 --

No. 25-1574 Page 4
Applicants with significant criminal records are generally ineligible to enlist but may
request a waiver. See 32 C.F.R. § 66.6(b)(8)(ii). Convictions for certain sexual offenses
may not be waived, see id. § 66.6(b)(8)(iii), but Department regulations do not otherwise
limit the armed forces from prohibiting waivers for other specific offenses.
The Army implements these standards through its own regulations,
supplementing them where appropriate. Under AR 601-210 ¶ 4-7(d)(5), the Army
cannot consider waivers for applicants convicted of “major misconduct”—any felony-
level offense punishable by imprisonment exceeding one year—during or after prior
military service. Id. ¶ 4-7(d). To ensure consistent application across jurisdictions, the
Army treats convictions as valid notwithstanding expungement unless new findings in
the case would have resulted in an original verdict of not guilty. Id. ¶ 4-30(b)(1)(B).
Smith first contends that the Army’s categorical prohibition on waivers for
convictions involving major misconduct—¶ 4-7(d)(5)—conflicts with its statutory and
regulatory authority to promulgate enlistment standards. See 10 U.S.C. § 504(a);
32 C.F.R. § 66.6(b). He argues that the Army’s rule exceeds its authority by extending
ineligibility beyond the sexual offenses identified in § 66.6(b)(8)(ii), rather than
permitting waivers in “meritorious cases,” as § 504(a) allows.
Smith is correct that § 66.6(b)(8) and § 504(a) set baseline criteria; however, the
Army may adopt more restrictive eligibility standards and waiver procedures.
See Gulomjonov v. Bondi, 131 F.4th 601, 609–10 (7th Cir. 2025) (regulations promulgated
within the scope of delegated authority may establish detailed service-level criteria
consistent with—but broader than—departmental minimum standards). The plain
language of § 66.6(b)(8), which establishes the “minimum” ineligibility criteria,
expressly authorizes the military services to impose additional or tailored restrictions.
Section 66.5(c) further directs the services to “[u]se the standards in § 66.6 to determine
the entrance qualifications for all individuals being enlisted, appointed, or inducted into
any component of the Military Services” and to establish procedures to grant waivers
under § 504(a). And § 504(a) vests the Army with discretion to grant exceptions in
meritorious cases without limiting the Army’s authority to issue regulations
establishing eligibility standards and waiver procedures. We therefore reject Smith’s
contention that the Army regulations exceed the authority granted by Congress in
§ 504(a) or by the Department in § 66.6(b)(8).
In any event, Smith sought to enlist in the Army Reserve. Congress has provided
the Army independent statutory authority under § 12102(b) to prescribe moral
qualifications for enlistment in the Reserve. Accordingly, even if the challenged Army

-- 4 of 6 --

No. 25-1574 Page 5
regulation extended beyond what § 504(a) alone would authorize, it would not be
unauthorized by law, because it is independently authorized by § 12102(b).
Smith next contends that the Army’s policy of not recognizing expungements
(absent new evidence establishing a not guilty verdict) when assessing major
misconduct—¶ 4-30(b)(1)(B)—conflicts with Indiana’s expungement statute and that the
Army is therefore required to conform its enlistment regulations to Indiana law. But
“Congress shall have Power … To make Rules for the Government and Regulation of
the land and naval Forces.” U.S. C ONST. art. I, § 8, cl. 14. And “it is clear that the
Constitution contemplated that the Legislative Branch has plenary control over rights,
duties, and responsibilities in the framework of the military establishment.” See Chappell
v. Wallace, 462 U.S. 296, 301 (1983).
To the extent that ¶ 4-30(b)(1)(B) is authorized by § 504(a), Smith’s argument
fails: the Supreme Court has recognized that federal law may disregard state
expungements to maintain nationwide consistency. See, e.g., Dickerson v. New Banner
Institute, 460 U.S. 103, 119–20 (1983). And to the extent that ¶ 4-30(b)(1)(B) is also
authorized by § 12102(b) as it applies to enlistment in the Reserve, the expungement is
immaterial. The Army, exercising congressionally delegated authority, has imposed a
bar to enlistment in the Reserve for major misconduct—a standard of its own creation.
Smith’s arson conviction is evidence of major misconduct. Expungement of that
conviction may affect legal disabilities imposed under Indiana law but, absent evidence
that he would have been found not guilty, the expungement cannot afford Smith the
relief he seeks. Regardless of the source of statutory authority, the bar to enlistment in
¶ 4-30(b)(1)(B) is valid.
Smith’s final challenge to the regulations asserts that the Army failed to comply
with notice-and-comment procedures when promulgating them and that the
regulations should therefore be set aside. But because Smith did not raise this argument
in the district court, it is waived. See Henry v. Hulett, 969 F.3d 769, 785 (7th Cir.
2020) (en banc).
Because the Army’s regulations are valid, the Army’s decision to deny Smith
reenlistment is not arbitrary and capricious. “The APA allows us to discard an agency’s
conclusion if the path it took cannot be discerned.” St. Vincent Med. Grp., Inc. v. United
States Dep't of Just., 71 F.4th 1073, 1076 (7th Cir. 2023). Here, the path is straightforward.
Smith was convicted of arson, which qualifies as major misconduct under ¶ 4-7(d)(5)
and disqualifies him from reenlistment. His expungement is immaterial because ¶ 4-
30(b)(1)(B) requires expunged convictions to be treated as convictions absent new

-- 5 of 6 --

No. 25-1574 Page 6
evidence that he would have been found not guilty, which Smith has not presented.
Accordingly, the Army reasonably applied its enlistment regulations to Smith’s request,
and its refusal was neither arbitrary nor capricious.
AFFIRMED

-- 6 of 6 --