Id. As to allegations that other serviceman mocked or publicly
criticized Crane because of his weight, Zophy commented that he
had never heard of Crane's being mocked for either his weight or
appearance and dismissed DeBarto's allegations by explaining that
at some point, all leaders in the military get laughed at by
their subordinates. R. at 63. Frederick Harris also questioned
DeBarto's credibility and motives when he testified to the
strained relationship that existed between DeBarto and Crane, and
how on two occasions DeBarto "shrugged . . . off" Crane's
requests to speak with her. R. at 66.
The documentary evidence submitted by Crane gives further
reason to question whether the decision to discharge him under
5-10h was supported by substantial evidence. Most notable are the
letters from Major Alexandro Wright and Operations Specialist
Stephen Dykes. R. at 126-28. Dykes and Wright attest to Crane's
professional appearance and military deportment. Dykes' statement
also impeaches Captain DeBarto's credibility and the truthfulness
of the allegations she made against Crane. R. at 128. There are
also several letters of thanks written to Crane from various
Generals in the Army in the spring of 1994. R. at 160. Each
letter commends Crane for his fine work, and one letter from
Brigadier General Charles Bauman comments on Crane's "exceptional
professional skills." R. at 162.
Finally, Crane's last OER, issued in August of 1994 and
covering his performance since January of 1993, reveals that
Crane was given all "1's", even in the category evaluating
military bearing and appearance, thus indicating that at that
time of Crane's discharge his rater opined that Crane had
acceptable appearance and bearing under AR 635-100. R. at 157.
The rater, Lieutenant Colonel Zophy, also noted that although
Crane was over his required weight, it was due to Crane's knee
surgery and subsequent rehabilitation over the past year; and as
such, no negative notation could be made against him as to his
military bearing and appearance. Id.
An agency decision is supported by substantial evidence if
there is such evidence that a reasonable person "`might accept as
adequate to support a conclusion.'" Falk v. United States,
870 F.2d 941, 945 (2d Cir. 1989), quoting Consolidated Edison v.
N.L.R.B., 305 U.S. 197, 229 (1938). Here, the BOI's decision to
discharge plaintiff under AR 635-100 5-10h is supported by only
two out of more than one hundred documents in the Administrative
Record and the testimony of one out of more than ten
witnesses.*fn14 In contrast, there is a tremendous amount of
evidence in the Administrative Record which favors retaining
Crane. Most of that evidence are first-hand accounts from the
officers and individuals who had frequent and long contact with
Crane and who all concluded that he presented an appropriate
military appearance. Accordingly, I find that a reasonable person
reviewing the record could not determine that the BOI's decision
was supported by substantial evidence; and thus, the decision
violates that APA.
III. Constitutional Due Process Claim
Having granted plaintiff relief based on his APA claim, the
court need not consider the other arguments raised by the
defendant in the motion papers, such as the inadequacy of
plaintiff's Constitutional Due Process claim.
For the foregoing reasons, defendant's motion for summary
judgment is denied, and plaintiffs cross-motion for summary
judgment is granted. Accordingly, the Secretary's decision to
discharge the plaintiff under AR 635-100 5-10i is set aside, and
the Department of the Army shall reinstate plaintiff as a member
of the Army with all duties, responsibilities, and
privileges earned by plaintiff prior to his discharge.