Schaefer v. Geren

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MALCOLM G. SCHAEFER, )
)
Plaintiff, )
)
v. ) Civil Case No. 07-1550 (RJL)
)
PETE GEREN, )
SECRETARY OF THE ARMY, )
)
Defendant. )
Vci
MEMORANDUM OPINION
(March~ 2009) [#s 10, 42]
Malcolm Schaefer ("plaintiff'), a former U.S. Army officer, brings this action
against Pete Geren ("defendant"), in his official capacity as Secretary of the Army,
seeking to reverse the Army Board for Correction of Military Records' ("ABCMR")
decision denying his request that certain records in his official military personnel file be
altered or expunged. Before the Court are plaintiffs and defendant's cross-motions for
summary judgment. Because the ABCMR's decision was neither arbitrary, capricious,
nor unlawful, plaintiffs motion for summary judgment is DENIED and defendant's
motion for summary judgment is GRANTED.
BACKGROUND
In the fall of 2000, plaintiff was an active member of the U.S. Army Judge
Advocate General's Corps ("JAG Corps") assigned to the Trial Defense Service field
office at Fort Benning, Georgia. (Compl. ~~ 11, 13 [Dkt. #1].) He had attended the
University of Virginia School of Law at the Army's expense, graduating in 1996, and
was serving a six-year active duty service obligation. (A.R.226.) Due to the physical
deterioration of his knees, plaintiff s physician referred him to an administrative
screening board. known as a MedicaliMSO Retention Board ("MMRB"), for evaluation
of his ability to perform the physical requirements of his specialty in a worldwide field
environment. I (A.R. 228); see generally Physical Performance Evaluation System, Army
Reg. 600-60 ~ 2-1 (Oct. 31, 1985).2 On September 27,2000, upon plaintiffs request, the
MMRB Convening Authority referred plaintiffs case to a Medical Evaluation Board
CoMEB") after finding that his "ability to satisfactorily perform [his] duties ... is
questionable." (A.R. 476, 492.) A MEB is the first step in the Army's Physical
Disability Evaluation System ("PDES"), which determines whether a solider is unfit
because of a physical disability to perform his or her duties and, as a result, should be
discharged. See generally Physical Evaluation for Retention, Retirement, or Separation,
Army Reg. 635-40 (Aug. 15, 1990).
On May 29, 2001, the MEB determined that plaintiff did not meet the medical
qualifications for retention and referred his case to a Physical Evaluation Board ("PEB"),
the second step in the PDES process. 3 (A.R. 496-500.) On June 11,2001, the PEB at
Plaintiff was unable to run, parachute, walk long distances, march with a rucksack, or
conduct other military activities that included impact on his knees. (Compi. ~ 14.)
2
Since the filing of the Complaint in this case on August 30, 2007, many of the regulations
governing the relevant Army conduct have been revised. E.g., Physical Performance Evaluation
System, Army Reg. 600-60 (Feb. 28, 2008). For purposes of this decision, the Court references
and applies the versions of the regulations that were in force at the time of the conduct at issue.
3 MEBs are tasked with determining whether a solider is medically qualified for retention
based on certain medical criteria. See Army Reg. 635-40 ~ 4-10. PEBs subsequently evaluate
the soldier's medical condition against the physical requirements of the soldier's particular
office, grade, rank, or rating and make findings and recommendations as to the soldier's
eligibility to be separated. See id. ~ 4-17.
2
Fort Sam in Houston, Texas, determined that plaintiff was medically unfit and
recommend he be separated from the Army with severance pay and a zero percent
disability (the "first PEB"). (A.R. 96.) After plaintiff concurred with the findings, the
PEB forwarded plaintiff's case to the U.S. Army Physical Disability Agency
("USAPDA") in Washington, DC - the third step in the PDES process - which reviewed
the unopposed recommendation. (A.R. 97,406, 750, 1235, 1705-06.) At USAPDA's
direction, the Physical Disability Branch ("PDB") then used the TRANSPROC computer
notification system to authorize the Fort Benning transition office to issue discharge
4
orders - the fourth and final step in the process. (A.R. 528, 750, 767, 772.) On July 2,
2001, Fort Benning printed Orders 183-2200, which ordered plaintiff to take certain
preparatory actions and to appear at the transition point for processing on his appointed
discharge date, September 14,2001. (A.R. 98.)
During this process, plaintiff had taken care to keep his progression quiet from the
JAG Corps.s In late July, however, an employee in the JAG Corps Personnel Plans &
Training Office ("PPTO") discovered plaintiff's pending discharge while updating the
office's database and, due to his surprise, contacted Dennis Brower, the legal advisor to
4
The record indicates that "TRANSPROC is an electronic notification system that is an
interoffice network connecting the [USAPDA] ... with installation transition centers/points."
CA.R. 750.)
5
Only plaintiffs administrative commander - the commander of his local unit to which he
was attached for administrative support - knew from the outset that plaintiff was being
considered for a medical discharge, and plaintiff asked him to keep it confidential. CA.R. 408,
460.) Following the PEB's recommendation that he was unfit, plaintiff asked the PEB Liaison
Officer "keep all of this quiet" out of concern that ifhis JAG supervisors found out, they would
try to cancel the PEB and retain him on active duty. CA.R. 410.) Indeed, plaintiff did not inform
anyone in his supervisory chain in the JAG Corps until after he received his discharge orders on
July 2, 200 I, and, even then, he asked those who he told to tell as few people as possible. CA.R.
413,460.)
3
USAPDA. (A.R. 449, 1236.) Upon his review, Brower determined that plaintiffs case
file was deficient for lack ofperfonnance reviews from plaintiffs JAG Corps
supervisors. (A.R. 449, 1238.) Brower asked Colonel Clyde Tate, chief ofPPTO,
whether the JAG Corps was interested in submitting performance infonnation about
plaintiff, to which Col. Tate answered it was. (A.R.446.) The JAG Corps thereafter
submitted several of plaintiff s officer evaluation reports and, on August 10, 2001, Col.
Tate submitted a memorandum to USAPDA stating that he had reviewed medical facts in
plaintiffs file and "concIude[ d] with certainty that [plaintiff] can effectively perform his
assigned duties as ajudge advocate." (A.R. 517-18, 769.)
Based on the JAG Corps' assessment, Colonel Austin Bell, deputy commander of
USAPDA, directed Brower to send the new infonnation to the PEB in Texas to see if the
PEB wanted to reconsider its previous findings, which it said it did. (A.R. 761, 769.) In
addition, at Col. Bell's direction, PDB took steps to revoke the authorization to discharge
plaintiff and to put his case "on hold." (A.R. 762, 769-770, 772.) On approximately
August 2, 2001, PDB attempted to revoke the authorization in the TRANSPROC system;
the system, however, was not working properly. (A.R. 444.) PDB accordingly contacted
the Fort Benning transition point both by telephone and by facsimile to let them know
that plaintiff was no longer authorized for separation and that PDB would make the
appropriate change in TRANSPROC when it was again operational. (A.R. 442, 444,
947-48, 1563-64.) On approximately August 14,2001, a PDB analyst again attempted to
revoke the authorization in the TRANSPROC system, this time supposedly with success.
(A.R.444.)
4
On August 30, 2001, the PEB issued a new determination that plaintiff was, in
fact, fit for continued active duty (the "second PEB"), which the Fort Benning PEB
Liaison Officer ("PEBLO") communicated to plaintiff on September 5th. (A.R. 100-01.)
Plaintiff did not concur with the finding. (ld.) The PEBLO informed plaintiff that he had
ten days in which to submit a written appeal, which plaintiff and the PEBLO agreed
would be due Monday, September 17th. (A.R. 101,406.) In response to plaintiffs
comment during the meeting that he had discharge orders and was in the process of
clearing, the PEBLO responded that his case was "on hold.,,6 (A.R. 406.) On the advice
of counsel, however, plaintiff nevertheless proceeded to move forward with his out-
processing and, on September 14th, three days after the terrorist attacks of September 11,
2001, plaintiff appeared at the transition point and presented his July 2, 2001 discharge
orders. (A.R. 326-27, 439.) Despite PDB's multiple attempts to effectuate the revocation
of Fort Benning's authority to discharge plaintiff, the code in TRANSPROC authorizing
plaintiffs discharge was inadvertently reentered into the system and the personnel clerk
issued plaintiff a DD Form 214 discharge certificate. (A.R. lO2, 439, 1826-31.)
Plaintiff subsequently left Fort Benning, his discharge certificate in hand.
The following Monday, September 17,2001, the JAG Corps discovered plaintiffs
empty office and contacted Brower at USAPDA. (A.R. 449, 471.) Brower responded
6
Following plaintiffs meeting with the PEBLO, plaintiff told a colleague of his in the
JAG Corps that he would not be discharged because the JAG Corps had stopped his medical
board. CA.R. 462.) Plaintiff had also made similar comments prior to the PEB's formal "fit"
determination. Following a conversation with Brower in which Brower informed plaintiff that
his PEB determination was likely going to be reversed and that his case was on hold, plaintiff
told both his subordinate and his supervisor that he would not be leaving the Army and that he
intended to attend the JAG graduate course the following year. CA.R. 437, 449, 464.)
5
that the authorization for plaintiffs discharge had been revoked and that Fort Benning
had no authority to separate him. (A.R. 449.) Having not received an appeal from
plaintiff concerning his second PEB, USAPDA, through PDB, directed Fort Benning to
issue a formal order revoking plaintiffs July 2nd discharge order, which Fort Benning
did. (A.R. 104,440,449.) Fort Benning informed plaintiff later that day that his
discharge orders had been revoked. (A.R. 441.)
The Army soon thereafter conducted an investigation into plaintiffs separation
pursuant to Rule for Court-Martial 303. The investigation concluded that plaintiffs
separation was invalid and he had knowingly and fraudulently procured his separation.
(A.R. 12-16.) On October 29, 2001, the Army sent plaintiff a memorandum notifying
him that it had concluded that he obtained an invalid separation and ordering him to
report back to duty by November 5, 2001, else the Army would take "appropriate
measures to return [him] to military control." (A.R. EI05.) The Army also preferred a
court-martial charge against plaintiff on November 1, 2001 for obtaining a fraudulent
discharge in violation of Article 83 of the Uniform Code of Military Justice ("UCMJ"),
10 U.S.c. § 883. 7 (A.R. 105.) The charge stated that plaintiff "on or about 14 September
2001, by means of knowingly presenting ORDERS 183-220 [sic] dated 01 July 2001
authorizing his release from active duty, when in fact he knew those orders were void,
procure himself to be separated from the U.S. Army." (Id.)
7
Article 83 provides that "Any person who ... (2) procures his own separation from the
armed forces by knowingly false representation or deliberate concealment as to his eligibility for
that separation ... shall be punished as a court-martial may direct." 10 U.S.C. § 883.
6
Plaintiff immediately filed a lawsuit in the Middle District of Georgia seeking a
temporary restraining order and a preliminary injunction enjoining the Army from
enforcing the October 29,2001 orders and declaring that plaintiff was a civilian and not
subject to military control. Plaintiff contended that he had received a valid discharge and
that the Army could not assert jurisdiction over him either on the basis that his discharge
was invalid or under Article 3(b) of the UCMJ, 10 U.S.C. § 803(b), which plaintiff
contended was unconstitutional. Article 3(b) provides:
Each person discharged from the armed forces who is later charged with
having fraudulently obtained his discharge is ... subject to trial by court-
martial on that charge and is after apprehension subject to this chapter
while in the custody of the armed forces for that trial.
10 U.S.C. § 803(b). Judge Lawson denied plaintiffs motion on November 14,2001,
holding that Article 3(b) was constitutional, that the military therefore had jurisdiction to
court-martial plaintiff for fraudulent separation, and that a military tribunal was the best
forum for determining whether plaintiffs discharge was valid, given the military'S
relative competence and expertise in the subject. Schaefer v. White, 174 F. Supp. 2d
1374, 1383-84 (M.D. Ga. 2001).
Despite his continuing objection to the Army's jurisdiction, plaintiff thereafter
returned to duty at Fort Benning and was assigned to work as a legal assistance attorney
assisting service members and their families with a variety of legal issues. (A.R. 222.) In
December 2001, the Army moved forward with the court-martial and appointed a JAG
attorney as an investigating officer (10) for purpose of conducting an impartial
investigation into plaintiffs separation and to make a non-binding recommendation
7
concerning the charges, as required by Article 32 of the UCMJ, 10 U.S.C. § 832.8 (A.R.
217.) The IO issued his report on January 15, 2002, concluding that plaintiffs conduct,
while duplicitous and unbecoming of an officer, was not fraudulent because the bases for
the discharge orders had not been overturned or revoked on September 14, 2001, when he
presented himself for separation. (A.R. 107-14.) The Commanding General, however,
nevertheless determined otherwise on the recommendation of his Staff Judge Advocate,
pursuant to Article 34 of the UCMJ, 10 U.S.C. § 834, and referred the fraudulent
9
separation charge to a general court-martial on March 1,2002. (A.R.219.) Rather
than proceed with his defense to the general court-martial, set to begin trial June 17,
2002, plaintiff thereafter submitted a voluntary Resignation for the Good of the Service
("RFGOS") on May 27, 2002. (A.R. 733.) Plaintiffs RFGOS stated that it was
conditioned on plaintiff receiving a "General under Honorable Conditions Discharge."
8
Article 32(a) provides:
No charge or specification may be referred to a general court-martial for trial until
a thorough and impartial investigation of all the matters set forth therein has been
made. This investigation shall include inquiry as to the truth of the matter set forth
in the charges, consideration of the form of charges, and a recommendation as to
the disposition which should be made of the case in the interest of justice and
discipline.
10 U.S.C. § 832(a).
9
Article 34(a) provides:
Before directing the trial of any charge by general court-martial, the convening
authority shall refer it to his staff judge advocate for consideration and advice.
The convening authority may not refer a specification under a charge to a general
court-martial for trial unless he has been advised in writing by the staff judge
advocate that (l) the specification alleges an offense under this chapter; (2) the
specification is warranted by the evidence indicated in the report of investigation
under [Article 32] ... ; and (3) a court-martial would have jurisdiction over the
accused and the offense.
10 U.S.C. § 834(a).
8
(Jd.) On June 3, 2002, the Commanding General issued plaintiff a General Officer
Memorandum of Reprimand ("GOMOR"), which stated that plaintiff was being
"reprimanded for wrongfully obtaining a [discharge certificate] when [he] fully knew that
the basis for the issuance of [his] separation orders had been overturned." (A.R. 220-21.)
The GOMOR recounted plaintiffs conduct surrounding his discharge, concluding that
plaintiff "traded [his] integrity for selfish gain and in the process proved [himself]
completely untrustworthy." (Jd.) Plaintiff was also issued an adverse Officer Evaluation
Report for the year preceding May 2002, which concluded that while plaintiffs work was
"legally sufficient and generally satisfactory," he "did not perform at the level one would
expect of a major" and "does not display any leadership skills nor Army values ... as he
is self-serving and puts himself over the mission." (A.R.223.) Plaintiff received a
second discharge certificate on October 1,2002, discharging plaintiff from the Army.
(A.R. 1014.)
On September 8, 2004, plaintiff applied to the ABCMR for relief pursuant to 10
10
U.S.C. § 1552. Plaintiff requested that the ABCMR declare his October 2002 discharge
certificate null and void, reissue plaintiff a discharge certificate stating that he was
discharged on September 14, 2001, expunge from his military file his GOMOR, OER,
and any references to his RFGOS, and stop the Army from its efforts to recoup the
severance pay he received in September 2001. (A.R. 3.) In a 4 I-page decision, the
ABCMR denied plaintiffs requests on November 8, 2005, concluding that: I) plaintiffs
10
10 U.S.C. § 1552(a)(l) provides: "The 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."
9
first discharge was without legal effect and would not have been issued but for an
"administrative snafu"; 2) the Army was justified in revoking his discharge orders and
directing that he return to duty; 3) the Army was justified in preferring fraudulent
separation charges against him; and 4) he failed to demonstrate that his GOMOR, his
OER, and references to his RFGOS should be expunged from his file on account of error
or injustice. I I (A.R.38-42.) Plaintiff thereafter filed this lawsuit on August 30, 2007, in
which he alleges that the ABCMR acted arbitrarily, capriciously, and contrary to law in
failing to award his requested relief. (CompI. ~~ 157-92.) Plaintiff also alleges that
Article 3(b) is unconstitutional, both on its face and as applied to plaintiff. (CompI. ~~
110-56.) Defendant moved for summary judgment on January 4,2008 and plaintiff
cross-moved for summary judgment on June 26, 2008.
DISCUSSION
I. Legal Standard
A. Legal Standard for Summary Judgment
Summary judgment should be rendered if the pleadings and the record "show that
there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden of establishing that
there is no genuine issue of material fact is on the moving party. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Material facts are those "that might affect the
outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S.
II
The ABCMR also noted that it agreed with the case law holding Article 3Cb) of the
UCMJ constitutional, citing Wickham v. Hall, 12 M.1. 145 (CMA 1981) and Schaefer, 174 F.
Supp. 2d at 1374. CA.R.42.)
10
242, 248 (1986). The Court must view the facts in the light most favorable to the
nonmovant, giving the nonmovant the benefit of all justifiable inferences derived from
the evidence. Id. at 255. The nonmovant, however, may not rely merely on allegations,
conclusory statements, or denials in its own pleading, but must set out specific facts that
would enable a reasonable jury to find in its favor. Fed. R. Civ. P. 56(e); Greene v.
Dalton, 164 F.3d 671,675 (D.C. Cir. 1999).
B. Legal Standard for Review ofABCMR Decisions
Judicial review of ABCMR decisions issued pursuant to 10 U.S.c. § 1552 is
authorized under the Administrative Procedure Act ("APA"). 5 U.S.C. §§ 701, et seq.;
Piersall v. Winter, 435 F.3d 319, 324 (D.C. Cir. 2006). Under the APA, a Court may
only set aside agency action that is "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). To prevail, a plaintiff
must provide "cogent and clearly convincing evidence" satisfying this standard, Mueller
v. England, 404 F. Supp. 2d 51,55 (D.D.C. 2005), and must "overcome the 'strong, but
rebuttable, presumption that administrators of the military, like other public officers,
discharge their duties correctly, lawfully, and in good faith, '" Frizelle v. Slater, III F.3d
172,177 (D.C. Cir. 1997) (quoting Collins v. United States, 24 Cl. Ct. 32, 38 (1991)). In
addition, as to those aspects of the ABCMR's decision that "rel[y] on a broad delegation
from Congress of discretion to use its inherent judgment to assess the merits of an
application, the court ... appl[ies] an especially deferential standard of review." Epstein
v. Geren, 539 F. Supp. 2d 267, 275 (D.D.C. 2008) (citing Cone v. Caldera, 223 F.3d 789,
793 (D.C. Cir. 2000)). The Court must "determine only whether the Secretary's decision
11
making process was deficient, not whether his decision was correct." Kreis v. Sec 'y of
the Air Force, 866 F.2d 1508,1511 (D.C. Cir. 1989). Indeed, "the function of [the Court]
is not to serve as a super correction board that reweighs the evidence." Charette v.
Walker, 996 F. Supp. 43, 50 (D.D.C. 1998).
III. Analysis
A. Validity of the First Discharge
Plaintiff contends that the ABCMR acted arbitrarily, capriciously, and contrary to
law by allowing the Army to violate its own regulations governing the reconsideration of
a medical discharge and, in turn, in determining that the September 14, 2001 discharge
was without legal effect. (Tr. of Mot. Hr'g at 10-11, Aug. 19,2008.) If the Court agrees,
plaintiff contends, the Court must find the second discharge, the OER, and the GOMOR
null and void because there is no indication of fraud in the record and therefore the Army
was without jurisdiction over the plaintiff after September 14,2001. (Jd. at 18.)
Defendant contends, conversely, that the ABCMR did not act arbitrarily, capriciously, or
contrary to law in determining that plaintiffs alleged first discharge on September 14,
2001 was a legal nullity and that the Army's actions thereafter were justified. (Def.'s
Mot. for Summ. J. at 7-11 [Dkt. #10].) For the following reasons, I agree.
Plaintiff s threshold attack on the ABCMR decision is that he received a facially
valid discharge certificate based on orders that were not revoked until after his discharge
and, therefore, under Smith v. Vanderbush, 47 MJ. 56 (C.A.A.F. 1997), the Army - not
plaintiff - must bear the cost of the Army's "administrative snafu" involving
TRANSPROC. (Pl.'s Cross-Mot. for Summ. J. at 3-9 [Dkt. #42].) As noted by Judge
12
Lawson, however, Vanderbush did not involve a discharge of questionable validity.
Schaefer, 174 F. Supp. 2d at 1380. In Vanderbush, the Army intended, but failed, to
"flag" the soldier's file, which would have suspended any favorable personnel actions,
and defendant received a discharge based on the expiration of his term of service.
Vanderbush, 47 M.J. at 57. The U.S. Court of Appeals for the Armed Forces held that
the Army could not assert continuing jurisdiction over the discharged soldier in order to
court-martial him, despite the administrative error, because the defendant had received a
discharge for which the underlying basis was valid: namely, his duty obligation had
ended. Id. at 60-61; see also Us. v. Howard, 20 M.J. 353, 354-55 (C.M.A. 1985) (no
continuing jurisdiction over soldier where "commander made an informed decision to
allow appellant to be discharged" and only later attempted to revoke the discharge in
order to court-martial him). Here, by contrast, USAPDA revoked the authority for
plaintiffs discharge well before September 14,2001. When the underlying authority for
the discharge is timely revoked, an error in delivering a discharge certificate does not
effectuate a valid discharge. See Us. v. Williams, 53 M.J. 316, 317 (C.A.A.F. 2000)
(facially valid discharge certificate was properly revoked when military placed legal hold
on soldier hours prior to delivery of the discharge certificate); Us. v. Garvin, 26 M.J.
194, 195-96 (C.M.A. 1988) (where discharge authority revoked discharge orders prior to
delivery "the mistaken delivery of [the] discharge certificate ... was not accomplished
with the intent required to effect a valid discharge"); see also us. v. Harmon, 63 M.J. 98,
101 (C.A.A.F. 2006) ("the discharge authority must have intended the discharge to take
effect" in order for the delivery of the discharge certificate to terminate military
13
jurisdiction). Accordingly, the ABCMR was not arbitrary, capricious, or contrary to law
in determining that plaintiffs first discharge was "without legal effect," (A.R. 40), based
on the USAPDA's revocation of the authority to issue the discharge prior to plaintiffs
receipt of the discharge certificate.
Plaintiffs second attack centers on his interpretation of Army Regulation 635-40,
which governs the PDES process. Notwithstanding the regulation's complexity, plaintiff
contends that the regulation sets forth a clear division of labor between USAPDA and
U.S. Total Army Personnel Command ("PERSCOM"). While USAPDA is responsible
for making the final decisions concerning whether a soldier is unfit for duty, PERSCOM
is responsible for effecting final disposition after it receives USAPDA's decision. 12
Included in that division of labor, plaintiff contends, are material limitations on
USAPDA's authority to reconsider cases in which discharge orders have been issued by
PERSCOM such that USAPDA's sua sponte reconsideration of plaintiffs case, without
having received it back from PERSCOM, rendered void both the PEB's reconsideration
and USAPDA's revocation of Fort Benning's authority to discharge plaintiff. Therefore,
plaintiff contends, his discharge on September 14, 2001 was, in fact, valid and the
12
Chapter 2 of the regulation, entitled "Responsibilities and Functions," provides that
PERSCOM will, among other things, "(a) Operate the [PDES] ... [and] (b) Accomplish final
administrative actions in processing physical disability cases; issue needed orders or other
instructions for the [Secretary of the Army], based on decisions of [USAPDA]." Army Reg.
635-40 ~ 2-3(a)-(b). In contrast, the chapter provides that USAPDA, "under the operational
control of [PERSCOM]," will, among other things, "operate the [PDES], to include ... (b)
Developing the policies, procedures, and programs of the system ... [and] (f) Making the final
decision whether a solider is unfit because of physical disability." Id. ~ 2-4(b), (f).
14
ABCMR was arbitrary, capricious, and contrary to law to find otherwise. (PI. 's Cross-
Mot. for Summ. J. at 13-27.) I disagree.
The record reflects that at some time prior to 2001, the PERSCOM office
responsible for accomplishing final administrative actions in the PDES process - the
Physical Disability Branch ("PDB") - physically moved from PERSCOM to Walter Reed
Army Medical Center, the location ofUSAPDA. (A.R. 251, 274,1549,1566.) As a
result, PDB became, in effect, an adjunct ofUSAPDA. Rather than fax USAPDA's final
decisions to PDB for final disposition, as it had previously done, USAPDA was able to
walk down the hall and instruct PDB to transmit the appropriate instructions, via the
TRANSPROC system, to the appropriate installation. (A.R. 274, 1557-58.) Thus, when
USAPDA approved the PEB's first finding that plaintiff was unfit, USAPDA, without
ever contacting PERSCOM's headquarters, instructed PDB to transmit the necessary
authorization to Fort Benning for it to issue plaintiffs July 2, 2001 discharge orders.
(A.R. 444.) And similarly, when USAPDA received the JAG Corps' assessment of
plaintiffs physical capabilities in early August 2001, it instructed PDB to revoke the
authorization to discharge plaintiff, again without contacting PERSCOM's
headquarters. 13 (A.R. 255, 444.)
It is well-settled that federal agencies, including the Army, are required to follow
their own rules and regulations. Steenholdt v. FAA, 314 F.3d 633, 639 (D.C. Cir. 2003)
(construing United States ex reI. Accardi v. Shaughnessy, 347 U.S. 260 (1954)); see also
13
Col. Bell, who was deputy commander for USAPDA at the time and had final authority
over its day-to-day operations, testified during the Middle District of Georgia action that as a
result ofPDB's move to USAPDA, he was both USAPDA and PERSCOM. CAR. 250,251.)
15
Martin v. Sec y ofArmy, 455 F. Supp. 634, 638 (D.D.C. 1977) ("It is established beyond
peradventure that the military, like any other agency, is bound by its own regulations. ").
Contrary to plaintiffs contentions, however, the ABCMR's decision did not overtly or
implicitly bless a violation of the Army's own regulations. Rather, the ABCMR found,
after an extensive review of the facts and relevant regulations, that the USAPDA was
within its authority under the regulation to return plaintiff s case to the PEB for
reconsideration and that, as a result, the second PEB obviated the first and the first
discharge lacked validity because the authority underlying the discharge had been
revoked. (A.R. 38-40.) According the ABCMR the due deference it is owed and
recognizing the military's relative expertise in interpreting military regulations and
procedures, see Lawrence v. McCarthy, 344 F.3d 467,473-74 (5th Cir. 2003), this Court
does not find the ABCMR's interpretation arbitrary, capricious, or otherwise not in
accordance with law.
It is clear from the ABCMR's 41-page memorandum decision that it considered
both the structure and the specific provisions of Army Regulation 635-40, as well as
plaintiffs proffered interpretation. (A.R. 8-9, 33-35, 38-39.) The ABCMR determined
that "the authority to act upon PEB proceedings for the Secretary of the Army rests with
the PEB itself, or as in this case, the USAPDA" and that "[c]ounsel's argument that
[plaintiffs] case could not be reconsidered by PEB or the USAPDA until after they
received the case back from PERSCOM is without merit." (A.R. 38.) Noting that while
the "regulation ... is outdated" and "the functions of PERSCOM in this respect have
been assumed by the [PDB]," the ABCMR found that "the first PEB finding never went
16
to PERSCOM, and so the requirement for PERSCOM to authorize reconsideration was
not triggered, contrary to [plaintiffs] claim." (Jd.)
The ABCMR's interpretation is sufficiently supported by the regulation and the
regulation's implementation in practice to withstand review. The regulation makes clear
that USAPDA is the final decision-making authority in the PDES process, the authority
responsible for reviewing PEB proceedings and findings, and the authority responsible
for "developing the policies, procedures, and programs of the system." Army Reg. 635-
40 ~ 2-4(b), (e), (t). PERSCOM, by contrast, is tasked with the purely ministerial role of
issuing orders or disposition instructions "[blased on the final decision of USAPDA." Id.~ 4-24(b); see also id. ~ 2-3(b) (PERSCOM will "[a]ccomplish final administrative
actions in processing physical disability cases; issue needed orders or other instructions ..
. based on the decisions of rUSAPDA ]"). While USAPDA operates formally under the
PERSCOM umbrella, id. ~ 2-3, USAPDA has day-to-day responsibility for overseeing
the PDES process and for acting on PEB proceedings. For example, USAPDA - not
PERSCOM - is responsible for reviewing case records to ensure the findings are "just,
equitable, consistent with the facts, and in keeping with the provisions of law and
regulations," id. ~ 4-22(b)(3), and USAPDA - not PERSCOM - is responsible for
returning cases to PEB when "case records show such action is in the best interests of the
solider or the Army," id. ~ 4-22(c)(2).
USAPDA's authority in this regard is born out by record. Even prior to PDB's
physical re-location from PERSCOM to USAPDA's office at Walter Reed, PDB effected
and revoked final dispositions at USAPDA's direction, without independent review on
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PERSCOM's part. (A.R. 1566-67.) PDB, consistent with the ministerial role given
PERSCOM in the regulation, merely took the actions necessary to implement USAPDA's
decisions, including whether to recall certain cases. (Id.)
PDB 's practice in this respect is at least equally as consistent with the regulation
as plaintiff s interpretation. Plaintiff relies heavily on paragraph 4-24 and Appendix
paragraph E-9( e) of the regulation, which state, respectively:
4-24. Disposition by PERSCOM
PERSCOM will dispose of the case by publishing orders or issuing proper
instructions to subordinate headquarters, or return any disability evaluation
case to USAPDA for clarification or reconsideration when newly
discovered evidence becomes available and is not reflected in the findings
and recommendations.
and
E-9. Final disposition instructions.
e. Requests for exception to established discharge or retirement date.
Request for deviation from established discharge date or amendment or
revocation of retirement orders for other than medical reasons will be
submitted, with justification, to PERSCOM ([Physical Disability BranchD.
. . . USAPDA will decide whether the case should be reconsidered by the
PEB. USAPDA may request PERSCOM cancel discharge instructions, or
amend or revoke retirement orders.
Army Reg. 635-40 ~~ 4-24, App. E-9( e). While plaintiff argues that these provisions
require that PERSCOM review each case in which discharge orders have been issued to
determine if the new evidence warrants reconsideration, neither provision explicitly gives
PERSCOM such an affirmative role. Rather, both indicate that it is USAPDA that has
the decision-making role, while PERSCOM is tasked only with formally returning the
case to USAPDA or canceling discharge orders at USAPDA's request. The ABCMR's
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decision that USAPOA was within its authority to reconsider plaintiffs case and revoke
the authority for his discharge is thus neither arbitrary, capricious, nor contrary to law.
Moreover, and perhaps most critically, plaintiffs interpretation ofPERSCOM's
role in the POES process does not square with the conclusion that he contends this Court
should reach: namely, that his first discharge was valid. Plaintiffs first PEB finding,
which resulted in his July 2, 2001 discharge orders, never went to or through PERSCOM,
but rather, went from USAPOA to the Fort Benning transition point via POB. (A.R.
444.) Accordingly, if the second PEB and USAPOA's revocation of authority to
discharge plaintiff were invalid due to USAPOA's failure to request plaintiffs case back
from PERSCOM, as plaintiff contends, so too were plaintiffs first discharge orders
invalid due to USAPOA's failure to send plaintiffs case to PERSCOM for final
disposition. In short, plaintiffs argument is one of form over substance on steroids!
Accordingly, I do not find the ABCMR's decision that USAPOA and the PEB had
the authority to reconsider plaintiffs case arbitrary, capricious, or contrary to law. I also
do not find arbitrary, capricious, or contrary to law the ABCMR's related conclusions
that the second PEB's reconsideration obviated the first PEB's findings and that
USAPOA effectively revoked the authority for the September 14, 2001 discharge before
that date. (A.R. 39-40.) Indeed, the form transmitting the second PEB's "fit"
determination, which plaintiff reviewed and signed, stated on its face that the PEB's first
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determination was superseded. 14 (A.R. 100,406.) And while the second PEB's findings
were not yet final until after the period for plaintiff's filing of an appeal ran, on
September 17, 2001, the record reflects that if the clerk at the Fort Benning transition
point had remembered that the authorization for plaintiff's discharge had been revoked,
she would not have given plaintiff a discharge certificate. (A.R.439.) The ABCMR,
therefore, was not arbitrary, capricious, or contrary to law to determine that plaintiff's
September 14,2001 discharge was a legal nullity and that the Army's formal revocation
of his discharge orders and order that plaintiff return to duty were justified. (A.R. 40);
Garvin, 26 M.1. at 195-96.
B. Plaintiff'S Remaining Claims
Plaintiff also asserts facial and as-applied challenges to the constitutionality of
Article 3(b) of the UCMJ, 10 U.S.C. § 803(b).15 Plaintiff, however, lacks standing to do
so. "To have Article III standing, a plaintiff must demonstrate an 'actual or immediate'
'injury-in-fact' that is 'fairly traceable' to the challenged conduct and 'likely' to be
'redressed by a favorable decision.'" Tozzi v. Us. Dep't of Health & Human Servs., 271
F.3d 301,307 (D.C. Cir. 2001) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-561 (1992)). Here, plaintiff chose to voluntarily resign from the Army in October
14
Indeed, paragraph 4-19(p)(I) of Army Regulation 635-40 provides that "[w]hen new
findings are made by the PEB, they become the only findings on which later action will be
taken." Army Reg. 635-40 ~ 4-19(p)(1).
15
Plaintiff s Article 3(b) challenge is essentially a reassertion of the arguments he presented
to the Middle District of Georgia in support of his motion for a temporary restraining order and
preliminary injunction, which was denied. See Schaefer, 174 F. Supp. 2d at 1382-83. Plaintiffs
challenge differs in this case only in that plaintiff adds related as-applied challenges to the
constitutionality of Articles 32 and 34 of the UCMJ, 10 U.S.C. §§ 832, 834.
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2002 rather than proceed with his defense to the court-martial proceeding that was then
pending. Accordingly, even if the Court were to declare Article 3(b) unconstitutional, as
plaintiff requests, such a declaration would not redress any injury plaintiff alleges he has
suffered. See Miller v. Roche, No. 03-1742,2006 WL 326006, *3-4 (D.D.C. Feb. 10,
2006). Such a declaration would not invalidate his October 2002 discharge or lead this
Court to order that his military file be expunged of all materials related to events after
September 14,2001, because this Court has already held above that the ABCMR's
decision that plaintiffs first discharge was a legal nullity was neither arbitrary,
capricious, nor contrary to law. 16 Accordingly, because I can issue no order that would
redress plaintiffs alleged injury, he lacks standing to pursue his constitutional claims.
Finally, the Court finds no reason to overturn the ABCMR's refusal to remove
from plaintiffs official military file his 2001-2002 OER, June 2002 GOMOR, or
references to his RFGOS. Beyond alleging that the Army lacked jurisdiction over
plaintiff to issue these documents, plaintiff provides no basis on which to find the
ABCMR's decision arbitrary or capricious. Moreover, in this area courts must give the
ABCMR "an unusually deferential application of the 'arbitrary and capricious' standard'
of the APA." Kreis, 866 F.2d at 1514. Here again, the ABCMR's decision contains an
extensive review of the facts and provides explicit reasons for denying plaintiff s
requested relief. (A.R 40-41); Kreis, 866 F.2d at 1514-15 (the Army "must give a reason
16
Nevertheless, even ifl had jurisdiction to consider plaintiffs constitutional challenges, I
see no reason to deviate from Judge Lawson's earlier determination that Article 3(b) is
constitutional. Schaefer, 174 F. Supp. 2d at 1382-83 (citing United States v. Cole, 24 M.J. 18,22
(CMA 1987)).
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that a court can measure, albeit with all due deference, against the' arbitrary and
capricious' standard of the APA"). The ABCMR neither failed to consider any of
plaintiff s arguments nor issued a decision as to any of the documents that was arbitrary
or capricious.
CONCLUSION
Thus, for all of the above reasons, the Court GRANTS defendant's Motion for
Summary Judgment and DENIES plaintiffs Cross-Motion for Summary Judgment. An
appropriate Order will issue with this Memorandum Opinion.
~~
United States District Judge
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