Reddin v. Phelan: Fifth Circuit Clarifies BCNR’s Distinct § 1552 Regime and Upholds “Liberal Consideration” Without a Heightened Burden

Court: U.S. Court of Appeals for the Fifth Circuit

Date: October 9, 2025

Panel: Dennis, Graves, and Duncan, Circuit Judges

Disposition: Affirmed (unpublished; see 5th Cir. R. 47.5)

Introduction

In Reddin v. Phelan, the Fifth Circuit addressed a former sailor’s challenge to the Board for Correction of Naval Records (BCNR) after it denied his request to upgrade an Other-Than-Honorable (OTH) discharge to Honorable. The appeal raised two overarching issues: first, whether procedural protections and a class settlement applicable to the Naval Discharge Review Board (NDRB) under 10 U.S.C. § 1553 must be imported into BCNR proceedings under 10 U.S.C. § 1552; and second, whether the BCNR properly applied the “liberal consideration” framework—rooted in the Hagel (2014), Kurta (2017), and Wilkie (2018) memoranda (now reflected in § 1552(h))—when weighing mental-health mitigation and equity factors in an APA-reviewed decision.

The Fifth Circuit rejected the petitioner’s attempts to graft § 1553’s requirements and the Manker class settlement onto BCNR proceedings and held that the BCNR’s decision survived “exceptionally deferential” APA review. Importantly, the court clarified that the Board’s use of the phrase “no convincing evidence” did not impose a heightened evidentiary burden or contravene the liberal-consideration standard; rather, in context, it described the Board’s degree of persuasion based on the record.

Summary of the Opinion

The court affirmed the district court’s grant of summary judgment to the Secretary of the Navy (substituted under Federal Rule of Appellate Procedure 43(c)), holding that:

BCNR proceedings are governed by 10 U.S.C. § 1552 and its regulations, not § 1553; therefore, requirements unique to the NDRB (e.g., a mental-health professional as a board member and terms of the Manker class settlement) do not apply to the BCNR.
The BCNR applied the correct “liberal consideration” framework under the Hagel, Kurta, and Wilkie memoranda (and § 1552(h)) and did not demand a heightened showing merely because it described the record as lacking “convincing evidence.”
Substantial evidence supported the BCNR’s determination that any mental-health mitigation (including alleged self-medication for an in-service back injury) did not outweigh the severity and pattern of misconduct, particularly given contemporaneous lawful medical treatment and the chronology of events.
Under the “exceptionally deferential” APA standard, the BCNR articulated a rational connection between facts found and the denial, so the decision was neither arbitrary nor capricious.

Analysis

Precedents and Authorities Cited

Williams v. Wynne (5th Cir. 2008): Confirms APA review of military correction boards, with an “exceptionally deferential” lens. A board’s decision is upheld if it shows a rational connection between facts and outcome and is supported by substantial evidence.
Buffalo Marine Services, Inc. v. United States (5th Cir. 2011): Establishes de novo appellate review of the district court’s APA summary judgment ruling (the underlying agency decision still receives deferential review).
Viles v. Ball (D.C. Cir. 1989) and Frizelle v. Slater (D.C. Cir. 1997): Frequently cited to describe deferential review and the “rational connection” requirement for agency decisions.
Piersall v. Winter (D.C. Cir. 2006): Addresses limited judicial review over military correction boards, reinforcing deference.
Bolton v. Department of the Navy BCNR (6th Cir. 2019): Recognizes BCNR authority under § 1552 and differentiates its statutory footing from the NDRB’s.
O’Hare v. United States (Fed. Cl. 2021): Notes the BCNR is bound by its own regulations and may seek advisory opinions, including mental-health evaluations.
Doyon v. United States (Fed. Cir. 2023): Explains codification of the “liberal consideration” standard in 10 U.S.C. § 1552(h) via the FY2018 NDAA.
Illinois Central R.R. Co. v. Norfolk & Western Ry. Co. (U.S. 1966): Emphasizes that courts should not disturb agency conclusions reasonably drawn from the record under substantial-evidence review.

The Court’s Legal Reasoning

1) Two Distinct Statutory Regimes: § 1552 (BCNR) vs. § 1553 (NDRB)

A core contribution of the opinion is doctrinal clarity about the different statutory schemes for discharge review and record correction:

Section 1553 (NDRB): Governs discharge review within 15 years of separation and imposes requirements specific to the NDRB, including membership composition such as a mental-health professional (10 U.S.C. § 1553(d)(1)(A)).
Section 1552 (BCNR): Empowers the Secretary to correct military records to rectify errors or injustices; the BCNR operates under 32 C.F.R. Part 723, with a presumption of regularity and a written, record-based adjudication process. It allows—but does not require—the Board to seek advisory opinions, including from clinicians (10 U.S.C. § 1552(g)(1)).

Because the petitioner sought relief from the BCNR and not the NDRB, the court held that § 1553’s procedural requirements (including a board-seat mental-health professional) did not apply. The BCNR appropriately obtained a psychologist’s advisory opinion rather than seating a clinician as a voting member, in line with § 1552 and its regulations.

2) Manker Settlement Does Not Reach BCNR Proceedings

The class-action settlement in Manker v. Spencer confers automatic reconsideration rights for certain veterans who sought discharge upgrades before the NDRB and were denied. The Fifth Circuit held that Manker governs NDRB cases under § 1553, not BCNR petitions under § 1552. Because the petitioner never went to the NDRB, he could not invoke Manker to compel reconsideration at the BCNR.

3) “Liberal Consideration” Was Applied; “No Convincing Evidence” Was Descriptive, Not a Heightened Burden

The BCNR cited and applied the Hagel, Kurta, and Wilkie guidance memoranda and the codified liberal-consideration standard (10 U.S.C. § 1552(h)). It sought a mental-health advisory opinion from a Navy clinical psychologist who acknowledged “some evidence” that the petitioner may have incurred a mental-health condition in service and that some misconduct could be mitigated, but who also found no in-service mental-health evaluation and no clinical evidence tying the misconduct to self-medication.

The court took special care with the Board’s phrase “no convincing evidence,” concluding it did not signal a heightened evidentiary threshold inconsistent with liberal consideration. Instead, in context—paired with the Board’s statement that evidence was “insufficient” and with express application of the liberal-consideration guidance—the phrase described the Board’s ultimate level of persuasion after weighing the record. The court endorsed this reading and rejected the challenge.

4) Substantial Evidence Supported the BCNR’s Causation and Equity Findings

The BCNR relied on chronology and context in finding insufficient nexus between the asserted somatic-symptom disorder/self-medication theory and the misconduct:

Timeline: After a back injury in November 2001, the petitioner was treated by Navy medical providers with non-narcotic anti-inflammatories. In January 2002, before any marijuana allegation, he received non-judicial punishment (NJP) for multiple offenses (AWOL, insubordination, disobedience, intoxication on duty, disorderly conduct). After correctional custody, he produced a positive urinalysis for marijuana in March 2002; his subsequent back-pain report post-dated that sample. In April 2002 he received NJP for disobedience and drug use and was processed for administrative separation; he declined the Alcohol and Drug Abuse Program and waived separation rights.
Causation: Given the sequence and concurrent lawful medical treatment, the Board found insufficient clinical linkage between symptoms and misconduct. The advisory opinion noted a lack of in-service mental-health evaluation or evidence that alcohol use was an attempt to medicate the same symptoms.
Equity and Accountability: The Board explicitly considered the Wilkie equity factors, acknowledging the petitioner’s positive service and post-discharge achievements. It nevertheless concluded that the severity, pattern, and willfulness of misconduct—coupled with available lawful care and refusal to engage with the treatment program—outweighed mitigation. The court found this balancing consistent with the guidance’s admonition that liberal consideration does not mandate upgrades and that serious/premeditated misconduct is generally not excused.

Under the APA’s substantial-evidence and arbitrary-and-capricious standards, the Fifth Circuit deemed the BCNR’s explanation adequate and rational.

Impact and Practical Implications

Forum choice matters: Veterans within 15 years of separation seeking a discharge upgrade should consider the NDRB if they want to invoke § 1553-specific protections (including a mental-health board member and any NDRB-specific settlements like Manker). Those outside the 15-year window or seeking correction of records beyond discharge characterization will typically proceed under § 1552 to the BCNR, where different procedures apply.
No automatic cross-over of NDRB rules: Reddin clarifies that courts will not transpose § 1553’s requirements or NDRB settlements onto BCNR proceedings. Counsel should tailor arguments to the correct statutory regime.
“Liberal consideration” is real but not dispositive: Petitioners should not expect an automatic upgrade. The Board may acknowledge “some evidence” of a mental-health condition yet deny relief where the record does not persuasively link symptoms to misconduct or where the misconduct is serious and patterned.
Chronology and contemporaneous evidence are critical: Demonstrating that symptoms existed during service and causally contributed to misconduct—preferably via in-service evaluations or other contemporaneous documentation—materially strengthens a petition. Post hoc opinions can help, but the closer they track contemporaneous records and timelines, the better.
Engagement with lawful treatment is relevant: Where lawful medical care was available, refusal to participate in treatment programs (e.g., the Navy’s Alcohol and Drug Abuse Program) can weigh against equitable relief.
Language choices by boards: The Fifth Circuit’s acceptance of the Board’s “no convincing evidence” phrasing as descriptive suggests courts will examine context, not isolated words. Still, boards should strive for clarity to avoid the appearance of applying a higher burden than “liberal consideration” permits.
Precedential weight: The opinion is unpublished under 5th Cir. R. 47.5, limiting precedential effect. Even so, it is a practical roadmap for litigants and boards within the Fifth Circuit on statutory boundaries, evidentiary evaluation, and APA review.

Complex Concepts Simplified

Other-Than-Honorable (OTH) Discharge: A characterization indicating significant misconduct; it can bar certain VA benefits, including where the misconduct is “willful and persistent” (38 C.F.R. § 3.12(d)(4)).
Non-Judicial Punishment (NJP): Administrative discipline imposed by a commanding officer for minor offenses, short of court-martial; may include rank reduction, forfeitures, and custody.
Administrative Separation: Process to discharge a service member for specified bases (e.g., drug abuse, pattern of misconduct), often with notice and rights to contest or waive procedures.
BCNR vs. NDRB: The BCNR (10 U.S.C. § 1552) corrects military records to remediate errors or injustices; the NDRB (10 U.S.C. § 1553) reviews discharge characterizations within 15 years. They have different statutory mandates and procedural rules.
“Liberal Consideration” (Hagel, Kurta, Wilkie): Policy guidance (now reflected in § 1552(h)) instructing boards to liberally consider whether mental-health conditions (PTSD, TBI, other disorders) or experiences (e.g., sexual assault/harassment) may have mitigated misconduct that led to a less-than-honorable discharge. It is a lens for evaluation, not a guarantee of relief.
Substantial Evidence: In APA review, a court asks whether the agency’s findings are supported by evidence that a reasonable mind could accept as adequate, and whether the agency articulated a rational connection between facts and outcome.
Presumption of Regularity: Boards presume official actions were proper; petitioners bear the burden to produce substantial evidence of error or injustice to overcome that presumption (see 32 C.F.R. § 723.6(e)).
Advisory Opinion: Expert input (e.g., from a clinician) that the BCNR may solicit; it informs, but does not control, the Board’s ultimate judgment.
Self-Medication as Mitigation: Under Kurta, substance use as an attempt to self-medicate may be considered as mitigation, but serious or premeditated misconduct is generally not excused, and liberal consideration does not mandate an upgrade.

Conclusion

Reddin v. Phelan reinforces two central propositions in military records jurisprudence within the Fifth Circuit:

Doctrinal boundary-setting: The BCNR’s § 1552 regime is distinct from the NDRB’s § 1553 structure; litigants cannot import § 1553-specific procedural guarantees or leverage NDRB-focused class settlements (like Manker) when proceeding under § 1552.
Measured application of liberal consideration: The court accepted that the BCNR gave liberal and special consideration to mental-health mitigation yet reasonably concluded, on this record, that the severity and pattern of misconduct outweighed mitigation. The Board’s “no convincing evidence” phrasing did not signal a heightened burden and was saved by the decision’s context and reasoning.

Although unpublished, the decision provides a clear, practical template for how courts in the Fifth Circuit will evaluate BCNR denials: by confirming the correct statutory framework, looking for a reasoned application of the Hagel/Kurta/Wilkie guidance and § 1552(h), and ensuring there is a rational, record-based explanation that meets the APA’s deferential standards. For veterans and counsel, the opinion underscores the importance of timely forum selection, contemporaneous mental-health evidence, a persuasive causal nexus, and demonstrated engagement with lawful treatment when seeking discharge upgrades or corrections.