Lefrancois v. Mabus

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JOSEPH P. LEFRANCOIS, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-1968 (RMC)
)
RAYMOND EDWIN MABUS, JR., )
Secretary of the Navy, )
)
Defendant. )
)
OPINION
Joseph P. Lefrancois seeks a recharacterization of his discharge from the United
States Marine Corps. Mr. Lefrancois enlisted in the Marine Corps Reserve in June of l995.
After two periods of Unauthorized Absence, the Marine Corps discharged him with an "Other
_ than Honorable" discharge He later petitioned the Naval Discharge Review Board (NDRB) and
the Board for Correction of Naval Records (BCNR) for review of his discharge; both boards
denied his claim for relief. Mr. Lefrancois alleges that the decisions by the NDRB and the
BCNR were arbitrary and capricious in violation of section 706 of the Administrative Procedure
Act because the boards failed to consider properly whether he was fit for service at the time of
his enlistment. Raymond Edwin Mabus, .Jr., the Secretary of the Navy, responds that Mr.
Lefrancois was properly enlisted because he received a medical waiver for his enlistment and
that neither board’s decision was arbitrary or capricious. The Court concludes that in the total
and complete absence of any evidence in the record that a medical waiver was granted, the
boards acted arbitrarily and capriciously in their denial of Mr. Lefrancois’s request for relief by
failing to consider adequately whether his enlistment was defective.
I. FACTS
A. Background
On June 27, l995, Mr. Lefrancois enlisted in the United States l\/larine Corps
Reserve and began a period of active duty on July 5, 1995. AR 3. Prior to enlistment, Mr.
Lefrancois filled out a Report of Medical History (Form 93). See AR 59-60. He stated that he
was in good health and not then taking any medication. AR 59. He also stated that he had never
been a patient in any type of hospital and that he had not consulted with or been treated by a
doctor within the past five years for other than a minor illness. AR 60. On the same form,
however, Mr. Lefrancois stated that he had been treated for a mental condition and further
disclosed that he was a patient at Yale-New Haven Hospital from June to August of l990. I~Ie
also disclosed weekly sessions with a psychiatrist from September 1990 until August l992. Id.
Mr. Lefrancois served his first few months on duty without incident. On October
22, l995, however, he failed to return to duty following a period ofliberty. During Mr.
Lefrancois’s period of Unauthorized Absence (UA),' he checked himself into Yale-New Haven
, .? He remained on UA for 36 days; this period of UA
ended on November l6, l995. In early December, Mr. Lefrancois underwent a psychiatric
evaluation at Walter Reed National Military Medical Center (Walter Reed). His treating
l The Uniform Code of Military Justice states that "[a]ny member of the armed forces who,
without authority (l) fails to go to his appointed place of duty at the time prescribed; (2) goes
from that place; or (3) absents himself or remains absent from his unit, organization, or place of
duty at which he is required to be at the time prescribed; shall be punished as a court-martial may
direct." 10 U.S.C. § 886.
physician at Walter Reed diagnosed him with
recommended that he be administratively separated. AR 4.
But shortly before the start of procedures for administrative separation, Mr.
Lefrancois began a second period of UA on January l, l996. He remained on this period of UA
for 114 days. Upon advice of a lawyer, Mr. Lefrancois turned himself in to the military on April
reatment for
:~_5 _`` After consultation with a military lawyer, Mr. Lefrancois
.»i
24, l996. Several days after his surrender, he received emergency
requested an "Other than I-Ionorable” discharge to avoid facing court-martial proceedings for his
two periods of UA.3 His request was approved, and on June l l, 1996, l\/lr. Lefrancois was
discharged from the Marine Corps with an "Other than Honorable" discharge.
B. Naval Discharge Review Board Decision
Mr. Lefrancois petitioned the NDRB for review of his discharge on November 29,
l999. AR 12. The NDRB is made up of five military officers, and its role is "to review the
discharge or dismissal (other than a discharge or dismissal by sentence of a general court-
martial) of any former member of an armed force." lO U.S.C. § l553(a), (b); see also Vi``etnam
Veterans ofAm. v. Sec’y ofthe Navy, 843 F.2d 528, 53_1 (D.C. Cir. 1988) (describing the
NDRB). The NDRB "may, subject to review by the Secretary concerned, change a discharge or
dismissal, or issue a new discharge, to reflect its findings." 10 U.S.C. § l553(b). Additionally,
3 On May 29, 1996, Mr. Lefrancois filled out a second Form 93. See AR 68. He stated that he
had been a patient in a hospital and that he had consulted or been treated by a doctor within the
past five years for other than a minor illness. In addition, under the disclosure that he was a
patient at Yale-New Haven Hospital in 1990, Mr. Lefrancois added "paranoia/problems with
temper." The Form 93 included his psychiatric treatment post-enlistment as well. Id.
3
the Secretary of the Navy has issued discharge review standards for the NDRB to follow when
reviewing a discharge. See SECNAVINST 5420.l74D, Part V (current version). "Th'e objective
cfa discharge review is to examine the propriety and equity of the applicant’s discharge." Id. §
50la. In determining whether a discharge is equitable, the NDRB may consider "whether the
individual met normal military standards of acceptability for military service and similar
indicators of an iiidividual’s ability to serve satisfactorily, as well as ability to adjust to military
service." Ia’. § 5030(2).
Mr. Lefrancois requested that his discharge be changed to "general/under
honorable conditions or entry level separation or uncharacterized." AR 12. He asserted that at
the time of his discharge, "he was suffering from a psychiatric illness which prevented him from
understanding the wrongfulness of his conduct." AR l3. The NDRB conducted a documentary
discharge review on August 31, 2000 and denied Mr. Lefrancois’s request. NDRB explained,
The Board presumed regularity in the conduct of governmental
affairs. After a thorough review of the records, supporting
documents, facts, and circumstances unique to this case, the Board
found that the discharge was proper and equitable,
ln response to the applicant’s issue, the Board determined a
medical diagnosis on active duty or during post-service, and
whether proper or improper, is not an issue upon which this Board
can grant relief. When reviewing a discharge, the Board does
consider the extent to which a medical problem, diagnosed or
undiagnosed while on active duty, might effect an applicant’s
performance and ability to conform to the military’s standards of
conduct and discipline The Board does not consider the
circumstances surrounding the applicant’s diagnosis or any
medical treatment given to the applicant to be of sufficient nature
to exculpate the applicant from his misconduct of record. Relief
will not be granted at this time.
AR 17 (citations omitted). In conclusion, however, the NDRB encouraged Mr. Lefrancois to
apply for a personal appearance hearing. On September l7, 2008, he appeared before the
NDRB. Shortly thereafter, the NDRB denied his request for relief. AR 7. The NDRB first
noted that Mr. Lefrancois requested a discharge "for the good of the service to escape trial by
court-martial." lt added that he admitted guilt to the charges preferred against him and made his
request with "a complete understanding of the negative consequences of his actions." Id. The
NDRB went on to explain,
While he may feel a medical condition was the underlying cause of
his misconduct, the record clearly reflects his willful misconduct
and demonstrated he was unfit for further military service. The
Board carefully considered Applicant’s medical history and his
explanation for entering into a status of unauthorized absence. The
Board concluded neither mitigated his misconduct and that the
characterization of his discharge was consistent with the standards
of discipline within the Naval Service. The evidence of record
does not demonstrate the Applicant was not responsible for his
conduct or he should not be held accountable for his actions based
on a medical issue. The Board determined an upgrade would be
inappropriate.‘l
Id.
C. Board for Correction of Naval Records Decision
On October l3, 2009, Mr. Lefrancois petitioned BCNR for recharacterization of
his discharge, AR 225. The BCNR is made up of civilian personnel from the Department of the
Navy and can correct a service member’s records where "necessary to correct an error or remove
an injustice." lO U.S.C. § l552(a)(l); see also Vietnam Veterans ofAm., 843 F.Zd at 531
(describing the BCNR); 32 C.F.R. § 723.3(e)(2) (The BCNR may deny an application "if it
determines that the evidence of record fails to demonstrate the existence of probable material
error or injustice."). Further, the BCNR “relies on a presumption of regularity to support the
4 Mr. Lefrancois also emphasized his post-service conduct before the NDRB. The NDRB
dismissed this basis as a ground for relief as well. It concluded, "[w]hile [it] was impressed with
the Applicant’s testimony and post~service accomplishments, it did not mitigate the misconduct
that resulted in the characterization of discharge and it was determined an upgrade would be
inappropriate." AR 7.
official actions of public officers and, in the absence of substantial evidence to the contrary, will
presume that they have properly discharged their official duties." 32 C.F.R. § 723.3(e)(2).5
In Mr. Lefrancois’s application for review, he stated that "[a]t the time of entry
and discharge, l was medically unfit for service" and that his discharge should be upgraded for
equitable reasons. He also stated that his post-service conduct warranted a discharge upgrade.
AR 225. The BCNR initially denied review because Mr. Lefrancois’s application fell outside the
applicable statute of limitations. See Joint l\/lot. to Stay [Dkt. 7] at 2. After the denial, l\/lr.
Lefrancois filed suit in this Court. Pursuant to ajoint motion filed by the parties,6 the Court
stayed the case and ordered the BCNR to consider the merits of his application for review. See
Order [Dkt. 8]. On June 29, 201 l, the BCNR issued a three-page letter detailing its decision to
deny Mr. Lefrancois the relief he sought. The BCNR concluded that "[a]fter careful and
conscientious consideration of the entire record, the Board found the evidence submitted was
insufficient to establish the existence of probable material error or injustice." lt expounded,
The Board, in its review of your entire record and application
carefully weighed all potentially mitigating factors, such as your
desire to upgrade your discharge, lt also considered your assertion
that you should not have been allowed to enlist because of your
mental health problems, specifically, '
_".’»g§§;j"?"“"``f_"``- Nevertheless, the Board co re not
sufficient to warrant recharacterization of your discharge because
of the seriousness of your repeated and lengthy periods of UA
from the Marine Corps during such a short term of service, and
which also resulted in your request for discharge . . .
[T]he Board concluded that your request for separation because of
your misconduct and not for medical reasons was proper and
5 When the BCNR denies an application without a hearing, the determination must "be made in
writing and include a brief statement of the grounds for denial." The brief statement must include
"the reasons for the determination that relief should not be granted." See 32 C.F.R.
§ 723.3(e)(3), (4).
6 The parties agreed that Lefrancois’s delay was due to his reliance on NDRB counsel. See Joint
Mot. to Stay [Dkt. 7] at 3.
procedurally correct. Further, in regard to your assertion, the
Board believed that had you disclosed, in detail, your mental and
medical history, a fraudulent entry would not have occurred.
Finally, the Board believed that considerable clemency was
extended to you when your request for discharge to avoid trial by
court-martial was approved.
AR 4-5. The parties cross-move for summaryjudgrnent.
II. LEGAL STANDARDS
A. Summary Judgment
Under Rule 56 ofthe Federal Rules of Civil Procedure, summaryjudgment shall
be granted "if the movant shows that 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); accord Anderson v,
Liberty Lobby, Inc., 477 U.S. 242, 247 (l986). "ln a case involving review ofa final agency
action under the Administrative Procedure Act, 5 U.S.C. § 706, however, the standard set forth
in Rule 56[] does not apply because of the limited role ofa court in reviewing the administrative
record." Sierra Club v. Maz``nella, 459 F. Supp. 2d 76, 89 (D.D.C. 2006); see also Charter
Operators ofAlaska v. Blank, 844 F. Supp. 2d 122, 126-27 (D.D.C. 2012); Buckingham v.
Mabus, 772 F. Supp. 2d 295, 300 (D.D.C. 201 l). Under the APA, the agency’s role is to resolve
factual issues to reach a decision supported by the administrative record, while "the function of
the district court is to determine whether or not as a matter of law the evidence in the
administrative record permitted the agency to make the decision it did." Si``erra Club, 459 F.
Supp. 2d at 90 (quoting Occz``dental Eng'g C0. v. INS, 753 F.2d 766, 769 (9th Cir. 1985) (intemal
quotation marks omitted)). "Summaryjudgment thus serves as the mechanism for deciding, as a
matter of law, whether the agency action is supported by the administrative record and otherwise
consistent with the APA standard of review." Id. (citing Ri'chards v. 1NS, 554 F.2d l 173, l 177 &
n.28 (D.C. Cir. 1977)).
B. AI’A
A reviewing court may set aside an agency action that is "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
"[D]ecisions regarding the correction of military records are reviewable under the ‘arbitrary or
capricious’ standard of APA § 706." Krei``s v. Sec’y ofthe Az``r Force, 866 F.2d 1508, 1513 (D.C.
Cir. 1989) (articulating the Supreme Court’s holding in Chappell v. Wallace, 462 U.S. 296(1983)). Generally speaking, "[t]he scope of review under the ‘arbitrary and capricious' standard
is narrow and a court is not to substitute its judgment for that of the agency." M0t0r Velzicle
Mfi”s, Ass'n. afU.S. v. Staz‘e Farm Mut. Auto. Ins. C0., 463 U.S. 29, 43 (1983). At the same time,
"the agency must examine the relevant data and articulate a satisfactory explanation for its action
including a ‘rational connection between the facts found and the choice made."’ Id. (quoting
Burlz``ngton TruckLz``ries v. United States, 371 U.S, 156, 168 (1962)); see also Pub. Ci'tz'zen, Inc. v.
FAA, 988 F.2d 186, 197 (D.C. Cir.l993) ("'l``lie requirement that agency action not be arbitrary or
capricious includes a requirement that the agency adequately explain its result."). While the
agency action under review is "entitled to a presumption of regularity[,] . . . that presumption is
not to shield [an] action from a thorough, probing, in-depth review." Ci'tz``zens to Pres. Overton
Park, Inc. v. Volpe, 401 U.S. 402, 415 (l97l), abrogated on other grounds by Calzfano v.
Sanders, 430 U.S. 99 (l 977).
The Court reviews decisions by military correction boards under "an unusually
deferential application of the ‘arbitrary or capricious standard."’ Krez's, 866 F.2d at 1514; see
also Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000) ("This deferential standard 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."). The plaintiff "bears the burden of overcoming
‘the strong, but rebuttable, presumption that administrators of the military, like other public
officers, discharge their duties correctly, lawfully and in good faith."’ Roberts v. Harvey, 441 F.
Supp. 2d l1l, 118 (D.D.C. 2006) (quoting Frz'zelle v. Slater, 111 F.3d 172, 177 (D.C. Cir.
1997)). The Court need only determine "whether the Secretary's decision making process was
deficient, not whether his decision was correct." Krez``s, 866 F.2d at 151 1 . But the deferential
standard "does not mean that it is a rubber stamp of approval." Mz``ller v. Roclie, No. 03-1 742,
2004 WL 3257070, at *6 (D.D.C. Nov. 4, 2004). While the military’s discretion is broad, it is
not boundless. Id.,' see also Roberts, 441 F. Supp. 2d at 1 19 (“Although only the ‘most
egregious’ Board decisions will fail to satisfy this deferential standard of review, a plaintiff
nevertheless can establish that the Board's decision-making process was flawed and in violation
of the APA by showing that the Board did not consider or respond to an argument that does not
511
appear ‘frivolous’ on its face and ‘could affect the Board's ultimate disposition. (quoting
Frz'zelle, 111 F.3d at 177) (internal citation omitted)).
III. ANALYSIS
' Mr. Lefrancois asserts that the NDRB and the BCNR acted arbitrarily and
capriciously by failing to consider his medical disqualification for service and the Marine
Corps’s obligation to investigate his defective enlistment given his mental history. The Secretary
responds that Mr. Lefrancois properly enlisted in the Marine Corps because he received a
medical waiver. Further, the Secretary claims that "the BCNR’.s review of the applicable
medical regulations coupled with its reasonable reliance on the presumption of regularity was
sufficient to establish that a medical waiver was granted." Def. Reply [Dkt. 28] at 12. Because
the administrative record does not contain any evidence that any one of the multiple steps
leading to a medical waiver occurred or that a medical waiver was granted, the Court concludes
9
that the boards’ decisions were arbitrary and capricious due to their failure to consider
adequately l\/lr. Lefrancois’s defective enlistment claim.
At the time Mr. Lefrancois applied for enlistment, his history of mental illness,
including his prior hospitalization and prolonged care by a physician, constituted a "cause{] for
rejection" under section 15-54 of the Manual of the Medical Department (MANMED) (1992
ed.).l See Def. Opp., Ex. 1 (MANMED) at 2. A waiver could be obtained for a cause of
rejection, permitting entry into service that would otherwise be prohibited. See MANMED § 15-
73, 74; Elias Decl. at 2. lf an applicant for enlistment reported a medical condition that was a
cause for rejection, the medical examiner could request a waiver by submitting a form with a
description of the defect(s) and the examiner’s recommendation to the Bureau of Medicine and
Surgery (BUMED). See MANMED § 15-74(2)(a) ("[Tlie] [c]ommanding officer of the member,
or ofa hospital or c1inic; examining or responsible medical officer; or, the service member may
request a waiver."); z'd. § 15-74(3) (referral to BUl\/IED). The manual also required that
"WAIVER RECOMMENDED" appear on the top right of the form. Id. § 15-74(3).
Additionally, applicants with a history of depression were required to undergo a thorough
psychiatric evaluation to assess their "maturity, emotional stability, and suitability for service."
See z'd. § 15-75(3). Upon receipt of the waiver application, BUMED would review the relevant
documentation and make a recommendation to the office of the Commandant of the Marine
7 The Secretary explains that l\/lANl\/IED was the manual governing enlistment standards at the
time ofMr. Lefrancois’s application. See Def. Opp. [Dkt. 23] at 9-10. In support of this
explanation, the Secretary provides the Court with the declaration of Commander Walter Ellias
llI who, at the time of filing, served as the Head of Qualifications and Standards with the Bureau
of Medicine and Surgery in the Navy. See i'd., Ex. 2 (E1ias Decl.). While Mr. Lefrancois relies
in his motion for summary judgment on a Department of Defense instruction for enlistment
standards, he relies on the relevant MANMED provisions in his Reply. The Court accepts the
Secretary’s explanation of its own regulations at the time of Mr. Lefrancois’s application for
enlistment.
10
Corps (CMC). The CMC made the final decision to grant or deny waivers after reviewing
BUMED recommendations. Id. § 15-74; Elias Decl. at 2. An applicant with a known defect
could not be ordered to active duty unless CMC granted a waiver of the defect. See MANMED
§ 15-74(3) ("Applicants may not be processed for transfer until a written waiver has been
received from the appropriate waiver authority and made part of the permanent l~lealth Record.").
The Marine Corps recognized the potentially disqualifying medical information
that Mr. Lefrancois disclosed on his Form 93 and requested that he be medically evaluated for
service. The record reflects that before Mr. Lefrancois’s enlistment, the Marine Corps received
his medical records from Yale-New Haven Hospita1, which stated that his treating physician
diagnosed him with ``l l
upon discharge, with multiple medications. AR 140. The record also includes a letter dated l\/lay
13, 1994 from Dr. Gallalee, the physician that l\/lr. Lefrancois saw for psychotherapy from
August 1990 until May 1992 following his discharge from Yale-New Haven Hospital, regarding
his assessment of Mr. Lefrancois’s mental health. AR 123. Dr. Gallalee stated that although
record further shows that on July 6, 1994, Dr. Frederick Roddy at the l\/lilitary Entrance
Processing Station requested a "consultation" to evaluate Plaintiff for military service in light of
" AR 124-25. l~lowever, no additional documentation
his "history ofi " " ” ‘ ar
regarding the Marine Corps’s evaluation of l\/lr. Lefrancois’s mental health appears in the
administrative record after the physician referral in July of 1994.
ll
The NDRB considered Mr. Lefrancois’s medical history only as a basis for
explaining his misconduct-not in regard to his defective enlistment claim-and concluded that
it did not "mitigate[] his misconduct and that the characterization of his discharge was consistent
with the standards of discipline within the Nava1 Service." AR 7. The BCNR, however, stated
that it considered Mr. Lefrancois’s argument that he was unfit for service at the time of his
enlistment but concluded that this argument was insufficient "to warrant recharacterization of
[Mr. Lefrancois’s] discharge" under the circumstaiices. The BCNR further stated that it
"believed that had [l\/Ir. Lefrancois] disclosed, in detail, [his] mental and medical history, a
fraudulent entry would not have occurred." AR 4-5. Neither the NDRB nor the BCNR made
any statements regarding whether the Marine Corps granted Mr. Lefrancois a medical waiver for
his enlistment.
Both boards’ decisions failed to address adequately whether Mr. Lefrancois was
enlisted properly in the Marine Corps. The Secretary claims that "the record demonstrates the
military’s identification of his potentially disqualifying medical information, a referral for
additional evaluations, and his acceptance and entrance to active duty in the USl\/lC subsequent
to examinat-ions." Def. Reply at 9-10. The Secretary asks the Court to rely on the presumption
of regularity, see Roberts, 441 F. Supp. 2d at 1 18-19, to infer from these undisputed facts that
there was a response to the request for consultation, that the appropriate official recommended a
waiver, that a thorough psychiatric exam f
occurred, that BUl\/lED reviewed the
waiver application and recommended that a waiver be granted, and that the CMC agreed with the
recommendation, issued a waiver, and it was made part of Mr. LeFrancois’s permanent Health
Record. However, nowhere in the administrative record is there any evidence that the Marine
Corps took any one of these steps. The record does not contain a response to the request for
12
consultation or an application for waiver in conformance with the requirements of MANMED
§ 15-74(3). The record does not contain any documentation of a thorough psychiatric
examination for depression or a recommendation by BUMED. Finally, the record contains no
indication that the CMC agreed to issue a waiver or did so. ln fact, there is no evidence in the
record of any steps taken by the Marine Corps to investigate Mr. Lefrancois’s mental health after
Dr. Roddy’s request for a medical consultation in July of l994-much less evidence which
actually points to adherence to the process stipulated by MANMED. The Secretary seeks to
prove too much from the facts that are in the record. The presumption of regularity is overcome
by the total absence of any record evidence of any one of the multiple paper-intensive steps that
were required before l\/lr. Lefrancois could be properly inducted.
Moreover, paragraph 6204 of the Marine Corps Separation and Retirement
Manual (Separation Manual) states that any case that comes to the attention of a commander
concerning erroneous enlistment must be investigated and "a complete report promptly
submitted to the Cl\/IC." See Notice of Filing [Dkt. 31], Ex. 1. lt is well settled that an agency
must follow its own regulations. See Morton v. Ruz``z, 415 U.S. 199, 235 (1974) ("Where the
rights of`` individuals are affected, it is incumbent upon agencies to follow their own
procedures."); Blassz'ngame v. Sec ’y of the Navy, 866 F.2d 556, 560 (2d Cir. 1989) (stating that
"we require only that the [Navy] carry out the procedures and regulations it created itself"
(alteration in original) (internal quotation mark and citation omitted)). The record bears no
indication that at any time Marine Corps officials investigated whether Mr. Lefrancois was
erroneously enlisted.
In addition to Mr. Lefrancois’s initial disclosure that he was a patient at Yale-New
Haven Hospital for two months in 1990 and that he had weekly psychotherapy sessions with a
13
specialist for two years following his hospitalization, the Marine Corps had before it Mr.
Lefrancois’s extensive history of mental health illness, including his discharge diagnosis of
‘ .~:p kéig'*``::»‘;§'€ " .
"‘sr
period of active duty, based on the record, no Marine Corps officials investigated the possibility
of his erroneous enlistment during his service or when considering his discharge, And the
record of the NDRB and BCNR proceedings nowhere suggest that either board considered
whether the Marine Corps investigated Mr. Lefrancois’s possible erroneous enlistment.
BCNR avoids addressing the question of erroneous enlistment by placing the
blame on Mr. Lefrancois and characterizing his enlistment as "fraudulent entry," AR 5. lndeed,
while a Marine may be separated on the basis of erroneous enlistment and receive an honorable
or uncharacterized discharge, the action must not be "the result of fraudulent conduct."
Separation Manual 11 6204. ln fact, Mr. Lefrancois’s initial Form 93 contained some
inconsistencies. Despite answering "no" to whether he had ever been a patient in a hospital and
to whether he had consulted or been treated by a doctor within the past five years, he
affirmatively disclosed the fact of his history of mental illness. His disclosure was sufficient to
14
raise a flag for the Marine Corps to require further investigation into Mr. Lefrancois’s mental
health.g See AR 124-25 (request for consultation by Dr. Roddy).
Further, the Secretary does not allege that Mr. Lefrancois procured his enlistment
by fraud but instead argues that he was properly enlisted because a waiver was granted. The
Secretary states that the BCNR made a "detemiination" and "coirectly conc1uded" that a medical
waiver was granted, Def. Reply at 10. BCNR’s decision, however, makes no mention of a
medical waiver. lnstead, BCNR concluded that Mr. Lefrancois made a "frauduleiit entry." The
Secretary’s argument that Mr. Lefrancois was enlisted properly is not consistent with BCNR’s
conclusion that he made a "fraudulent entry" into the Marine Corps. Without a careful
examination of l\/lr. Lefrancois’s defective enlistment claim, BCNR’s finding of fraud and
conclusion that the circumstances did not warrant a discharge upgrade were arbitrary and
capricious in violation of the APA. See Blassingame, 866 F.2d at 560 ("But for the Corps’s
initial improper induction and subsequent failure to investigate, Blassingame’s record might have
been spared the blemish of an ‘undesirable’ discharge.").
IV. CONCLUSION
The Court will grant Mr. Lefrancois’s Motion for Summary Judgment [Dkt. 21]
and deny the Secretary’s Cross-Motion for Summary judgment [Dkt. 23]. The case will be
remanded to the BCNR to reconsider l\/lr. LeFrancois’s application in 1iglit ofthis Opinion.
A memorializing Order accompanies this Opinion.
Date: November 30, 2012 /s/
ROSEMARY M. COLLYER
United States District Judge
8 The Marine Corps received Mr. Lefrancois’s Yale-New Haven Hospital discharge summary
before Mr. Lefrancois’s enlistment; it discussed his mental health in detail including his
i
15