GLADYS KESSLER, District Judge.
Babatu Rudo
This matter is before the Court on Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment [Dkt. No. 35] and Plaintiff's Cross-Motion for Summary Judgment [Dkt. No. 41]. Upon consideration of the Motions, Oppositions, Replies, the administrative record, and the entire record herein, and for the reasons set forth below, Defendant's Motion is
Under the Army Regulations in place in 1968, an Army soldier could be discharged upon a finding that he was "unsuitable" for further military service. See Administrative Record ("AR")
Before removing a soldier on "unsuitability" grounds, the Army was required to establish: (1) that the soldier was unlikely to develop "sufficiently to participate in further military training and/or become a satisfactory soldier" and (2) that the soldier met the "retention medical standards" in place at the time. See id. at 66 (A.Reg. 635-212 ¶ 3(b)).
To satisfy these requirements, a soldier's unit commander was required to refer the soldier for physical and mental evaluations and to provide the medical examiners with "[s]ufficiently detailed information about the reasons for considering the individual ... unsuitable" so that the medical examiners would have a thorough understanding of the contemplated action. Id. at 68 (A.Reg. 635-212 ¶ 8).
If the medical examiners determined that the soldier was medically unfit for service, the discharge process pursuant to "unsuitability" grounds was halted. Id. at 69 (A.Reg. 635-212 ¶ 9). If, however, the medical examiners determined that the soldier met "retention medical standards," i.e., that he was medically fit for further military service, his discharge for unsuitability would be approved and the soldier would be sent back to his commanding officer for further processing of his discharge. Id. (A.Reg. 635-212 ¶ 9).
Once the soldier was medically cleared for an unsuitability discharge, the commanding officer was required to provide him with the "basis of the contemplated separation and its effect." Id. (A.Reg. 635-212 ¶ 10(a)(1)-(3)). The "effect" of a soldier's separation was governed by the characterization of his service. Pl.'s First Cross-Mot. for Summ. J.App. ("Pl.'s App.") at 13 [Dkt. No. 13-4] (A.Reg. 635-200 ¶ 1.8).
In 1968, a soldier's service could be characterized as one of five general types of discharges, ranging from the most satisfactory characterization of service to the least satisfactory: "(1) Honorable, (2) General [u]nder honorable conditions, (3) Undesirable [u]nder conditions other than honorable, (4) Bad Conduct [u]nder conditions other than honorable, [or] (5) Dishonorable." Id. at 12 (A.Reg. 635-200 ¶ 1.5).
An unsuitability separation could be characterized as either an "Honorable or General discharge," depending upon the soldier's service record. AR at 66 (A.Reg. 635-212 ¶ 4(b)). Either of those characterizations entitled a soldier to "full Federal rights and benefits," while "an undesirable or bad conduct discharge may or may not deprive the individual of veterans' benefits administered by the Veterans Administration." Pl.'s App. at 13 (A.Reg. 635-200 ¶ 1.8).
The commanding officer overseeing the discharge process was required to explain to the soldier his rights. AR at 69 (A.Reg. 635-212 ¶ 10(a)(1)-(3)). These rights included the right of the soldier to present his case before a board of officers, to submit statements on his own behalf, and to be represented by counsel. Id. Alternatively, the soldier could waive these rights in writing. Id. A soldier who chose to waive his rights was required to submit a signed statement indicating that he had "been advised of the basis for his contemplated separation and its effect and the rights available to him." Pl.'s App. at 9 (A.Reg.635-212). This statement read:
Id.
After the soldier had been adequately informed of his rights under the applicable regulations, and either exercised or waived those rights in a signed statement, he was issued a final discharge certificate stating "the specific reason and authority for [his] discharge," effectively ending his service in the Army. Id. at 10 (A.Reg. 635-212 ¶ 23).
Plaintiff served in the Army from September 1966 until November 1968. Complaint ("Compl.")
In October 1968, as a result of Plaintiff's multiple Article 15 reprimands, his commander reduced his rank and recommended that he receive an administrative discharge for "unsuitability" due to apathy pursuant to Army Regulation 635-212. Id. ¶ 12; AR at 65-72.
As part of the discharge process, Plaintiff received physical and mental health evaluations. AR at 100-107. The evaluating physician determined that Plaintiff was suffering from a "back condition," but he made no other significant diagnoses or findings with respect to Plaintiff's physical health. Id. at 100-103. Accordingly, the physician concluded that Plaintiff was physically fit for further military service and referred Plaintiff for a mental health examination. Id.
A psychiatrist in the Army's psychiatric clinic evaluated Plaintiff and diagnosed him with a "[s]ociopathic personality with passive-aggressive features." Id. at 106. The psychiatrist determined that Plaintiff would "not adjust to further military service and [that] further rehabilitative efforts probably [would] be nonproductive." Id. Specifically, the psychiatrist determined that:
Id. The psychiatrist then concluded that Plaintiff was "mentally responsible, able to distinguish right from wrong and to adhere to the right, and ha[d] the mental capacity to participate in [administrative discharge] proceedings," and recommended that Plaintiff be discharged pursuant to Army Regulation 635-212 for unsuitability. Id.
Plaintiff's medical reports were then forwarded to his commander, and his discharge for unsuitability was approved. Plaintiff chose to waive his rights to appear before an administrative discharge board, to submit statements on his own behalf, and to be represented by counsel, Am. Compl. ¶ 32; Def.'s Statement ¶ 21, and signed the standard waiver statement as described under Army Regulation 635-212, Def.'s Statement ¶ 22; see Pl.'s App. at 9 (Waiver Form).
On November 5, 1968, after serving for just over two years in the Army, Plaintiff was administratively discharged for unsuitability due to apathy, a separation under the category of a "General" discharge "under honorable conditions." Am. Compl. ¶ 32. Plaintiff's discharge form indicated that "[a]pathy, defective attitudes and inability to expend efforts constructively," were the reasons for his separation. AR at 379 (Pl.'s Discharge Certificate).
Following his administrative discharge, Plaintiff continued to suffer from mental health problems as well as drug addiction. Am. Compl. ¶ 35. Plaintiff made repeated attempts to procure disability benefits from the Department of Veterans Affairs ("VA"), claiming that his drug dependence and mental problems were "service-connected disabilities."
It was only after the recognition of Post-traumatic Stress Disorder ("PTSD") as a psychiatric disorder in the early 1980s that Plaintiff was able to begin distinguishing his mental health claim from his personality disorder. AR at 7-8.
In July 1997, after several unsuccessful attempts to prove that his PTSD was service-connected, Plaintiff submitted new evidence to the VA and asked the VA's Board of Veterans' Appeals ("BVA") to re-open his claim. Id. at 10. The BVA concluded that Plaintiff's new evidence: (1) revealed his involvement in several hostile actions in Vietnam and (2) established a service-connection for PTSD. Id. Accordingly, the BVA granted Plaintiff a 70% disability rating and backdated this rating effective as of August 1, 1994, the date on
In 2006, Plaintiff filed a claim with the VA "to receive benefits as of an earlier effective date." Am. Compl. ¶ 39. The VA, however, denied Plaintiff's claim, AR at 274-76, and instead forwarded the claim to the ABCMR, see Am. Compl. ¶ 39.
According to Plaintiff, the VA mistakenly failed to submit Plaintiff's VA and Army records to the ABCMR and, after reviewing the limited record, the ABCMR denied Plaintiff's claim on statute of limitations grounds. Id. Plaintiff then retained counsel and filed a request for reconsideration along with his VA and Army records. Id. ¶ 40.
The ABCMR determined that Plaintiff's new evidence warranted waiving the statute of limitations and, accordingly, it agreed to consider the merits of his claim. AR at 1-14. On April 8, 2008, the ABCMR issued its decision, denying Plaintiff's request for relief. Id.
In his request for reconsideration, Plaintiff asked the ABCMR to either void or upgrade his 1968 discharge status. Id. at 21. Plaintiff claimed that such action was warranted because the Army violated his "[c]onstitutional liberty interest" by misleading him into waiving his right to a hearing, id. at 43, and because the Army acted contrary to established regulations by failing to consider the effect of his diagnosed personality disorder on his separation, see id. at 41-44.
The ABCMR construed Plaintiff's request as either: (1) a claim that Plaintiff had a medical disability at the time of discharge and therefore should have been considered for a medical discharge or (2) a claim that he was wrongfully discharged for unsuitability due to apathy. Id. at 5-14. The ABCMR's decision did not substantively address Plaintiff's due process claim.
Regarding the medical disability claim, the ABCMR determined that Plaintiff did not qualify for a service-connected disability. Id. at 12. Addressing the wrongful discharge claim, the ABCMR determined that "[Plaintiff's] discharge for unsuitability due to apathy, a defective attitude and inability to expend efforts constructively was appropriate and [that] there [was] no reason to change it." Id. at 13.
On November 16, 2009, Plaintiff commenced this action, challenging the ABCMR's denial of his request for relief. Plaintiff asked "[t]hat the Court set aside the BCMR decision limited to denial of Plaintiff's request to set aside the General service characterization for unsuitability, and remand to the BCMR for appropriate relief." Compl. at 8.
On March 24, 2011, after briefings by the parties on their first cross-motions for summary judgment, the District Court granted in part Plaintiff's initial cross-motion, remanding the case to the ABCMR
On November 1, 2011 the ABCMR issued its decision on remand, again denying Plaintiff's request for relief. AR at 430-34.
The ABCMR determined that "[i]n the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and [that] the rights of the applicant were fully protected throughout the separation process and that the type of discharge, the reason for separation, and characterization of service were appropriate considering all the facts of the case." Id. at 433.
On March 16, 2012, Plaintiff filed his Amended Complaint. Plaintiff again asked "[t]hat the Court set aside BCMR decision limited to denial of plaintiff's request to set aside the 1968 general service characterization for unsuitability, and remand to the BCMR for appropriate relief." Am. Compl. at 13.
On June 29, 2012, Defendant filed his Motion to Dismiss or, in the Alternative, for Summary Judgment. On October 23, 2012, Plaintiff filed his Cross-Motion for Summary Judgment. On January 4, 2013, Defendant filed his Opposition to Plaintiff's Cross-Motion and Reply in Support of his Motion [Dkt. No. 45]. On February 28, 2013, Plaintiff filed his Reply in Support of his Cross-Motion [Dkt. No. 48].
Under § 1552(a) of Title 10 of the United States Code, "[t]he 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." 10 U.S.C. § 1552(a)(1). The statute directs the Secretary to make such corrections through boards of civilians. Id.
Under the APA, a court may set aside an agency's decision only if the decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "unsupported by substantial evidence." 5 U.S.C. §§ 702(2)(A), (2)(E). The substantial evidence standard is "highly deferential to the agency fact-finder, requiring only `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rossello v. Astrue, 529 F.3d 1181, 1185 (D.C.Cir.2008) (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)).
Courts review military correction-board decisions under an "unusually deferential application of the arbitrary or capricious standard," Kreis v. Sec'y of Air Force, 866 F.2d 1508, 1514 (D.C.Cir.1989), in order to ensure that "courts do not become a forum for appeals by every soldier dissatisfied with his or her ratings [and thereby] destabilize military command and take the judiciary far afield of its area of competence," Cone v. Caldera, 223 F.3d 789, 793 (D.C.Cir.2000). "Perhaps only the most egregious decisions may be prevented under such a deferential standard of review."
The APA also provides that "a reviewing court shall `hold unlawful and set aside agency action' that is `not in accordance with the law' or `contrary to constitutional right.'" Poett v. U.S., 657 F.Supp.2d 230, 241 (D.D.C.2009) (quoting 5 U.S.C. §§ 706(2)(A) & (B)). In contrast to the deferential standard of review described above, "a court's review of `constitutional challenges to agency actions ... is de novo.'" Id. (quoting Cullman Reg'l Med. Ctr. v. Shalala, 945 F.Supp. 287, 293 (D.D.C.1996)). "[A] reviewing court owes no deference to the agency's pronouncement on a constitutional question," and must instead make "an independent assessment of a citizen's claim of constitutional right when reviewing agency decision-making." Lead Indus. Ass'n v. Envtl. Prot. Agency, 647 F.2d 1130, 1173-74 (D.C.Cir.1980) (internal quotation marks omitted).
Plaintiff claims that the ABCMR's decision "refusing to set aside [his] General Discharge was arbitrary, unsupported by substantial evidence, contrary to Army regulation, or a gross injustice." Pl.'s First Cross-Mot. for Summ. J. at 10 [Dkt. No. 13].
Plaintiff argues that he was wrongfully discharged for unsuitability due to apathy because "[t]he Army-diagnosed sociopathic personality disorder qualified as a reason for unsuitability." Pl.'s First Cross-Mot. for Summ. J. at 10. Plaintiff contends that, contrary to Army Regulation 635-212, the ABCMR failed to consider his "diagnosed mental condition in relation to the misconduct under review." Id.; Compl. ¶ 23 ("The commander and Army had no authority, nor support to disagree and issue an incorrect, mislabeled discharge. This was in effect a[n] ultra vires
In deciding to uphold Plaintiff's discharge for unsuitability due to apathy, the Board considered and discussed Plaintiff's military personnel records,
The ABCMR also considered and discussed the connection between Plaintiff's diagnosed mental condition and his pattern of misconduct. The Board specifically referred to Plaintiff's psychiatric diagnosis, noting that he was "evaluated by a psychiatric clinic with a discharge diagnosis of sociopathic personality with passive feature." Id. at 9. Importantly, the Board also noted that "[t]he psychiatrist determined that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right." Id.
Considering the record before it, the ABCMR then determined that Plaintiff "used poor judgment, was not committed to any productive goals, and was completely unmotivated for further service" and concluded that his "discharge under the provisions of Army Regulation 635-212 for unsuitability due to apathy, a defective attitude, and inability to expend efforts constructively was appropriate and [that] there is no reason to change it." Id. at 13.
As an initial matter, the ABCMR's decision was not contrary to Army Regulation 635-212, which explicitly allows an individual to be discharged for unsuitability due to apathy even where that individual has an accompanying mental disorder. The regulation states that "individuals considered for elimination may attempt to excuse immature, inadequate, and undisciplined behavior on the basis of minor or non-disabling illness" but that "[t]he presence of a physical or mental disease or defect-producing impairment of function insufficient to warrant [a medical separation] is no bar to discharge for unsuitability" due to apathy. AR at 67 (A.Reg. 635-212 ¶ 6(b)(3)) (emphasis added). Therefore, the Court concludes that Plaintiff's Army-diagnosed personality disorder did not preclude the Army from discharging him for unsuitability due to apathy.
Affording the ABCMR an "unusually deferential application of the arbitrary or capricious standard," Kreis, 866 F.2d at 1514, the Court further concludes that the ABCMR adequately examined the record before it, including Plaintiff's pattern of
Accordingly, the Board's decision to uphold Plaintiff's discharge for unsuitability due to apathy was not arbitrary or capricious, and it certainly was not the sort of "most egregious decision[]," that the Court may set aside. Kreis, 866 F.2d at 1515.
Plaintiff claims that the Army "violated minimum constitutional due process" because "the discharge procedure for unsuitability [due to] apathy failed to inform him that the accompanying `discharge diagnosis' of personality disorder would deny full VA benefits." Pl.'s Cross-Mot. for Summ. J. at 11. Plaintiff argues that, as a result of his discharge diagnosis, he was deprived of his "liberty interest" in "free VA or private medical care" and "disability compensation."
Defendant disputes Plaintiff's claim, arguing that "[t]he ABCMR correctly concluded that Plaintiff failed to demonstrate that his due process rights were violated." Def.'s Mot. for Summ. J. at 17.
The procedural component of the Due Process Clause is intended to "impose constraints on governmental decisions which deprive individuals of `liberty' or `property' interests." Matthews v. Eldrige, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In order to maintain a due process claim Plaintiff "must establish that the government deprived him of a liberty or property interest." Chamness v. McHugh, 814 F.Supp.2d 7, 16 (D.D.C. 2011) (citing Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)). Indeed, "[o]nly after finding the deprivation of a protected interest do[es] [the Court] look to see if the [government's] procedures comport with due process." Am. Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 59, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999).
Plaintiff has not asserted a cognizable property interest of which the government has deprived him. Plaintiff is essentially arguing that his Army diagnosis in 1968 resulted in the deprivation of certain VA benefits that he expected to receive after his discharge. However, "[t]he Supreme Court has explained that property interests arise in specific benefits that a person has already acquired" but that where "[a] plaintiff is seeking to acquire disability benefits ... no property interest is implicated." Powell v. Marsh, 560 F.Supp. 636, 641 n. 6 (D.D.C.1983) (emphasis in original) (citing Board of Regents v. Roth, 408 U.S. 564,
Therefore, a former service-member, like Plaintiff, "who might qualify for potential future veterans' benefits," does not have "a due process property interest in the expectation of those benefits." Owings v. Brown, 86 F.3d 1178, 1178 (Fed. Cir.1996); Town of Castle Rock v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) ("To have a property interest in a benefit ... [a person] must have more than a unilateral expectation of it. [She] must instead have a legitimate claim of entitlement to it.").
Having concluded that Plaintiff's "due process claim falters for lack of property interest ... [the Court] need go no further" with the due process analysis. Sullivan, 526 U.S. at 65, 119 S.Ct. 977. Accordingly, Plaintiff has not established a violation of his due process rights.
Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, and for the reasons set forth in this Memorandum Opinion, Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment is
