LEONIE M. BRINKEMA, District Judge.
Following an incident that occurred during a military ball in April 2012, plaintiff Lieutenant Colonel Christopher P. Downey ("Downey" or "plaintiff") was charged with three violations of the Uniform Code of Military Justice ("UCMJ"). Downey's superior officer, twostar Major General Mark Milley ("Milley"), held an administrative hearing known as an "Article 15," after which he found Downey guilty of one of the three charges — assault consummated by a battery. The only punishment Downey received as a direct result of this finding of guilt was that the record of the
After an unsuccessful intermediate appeal, Downey appealed his Article 15 to the Army Board for Correction of Military Records ("ABCMR" or the "Board"), which denied his appeal. Downey filed the instant four-count action challenging the ABCMR's decision; the Article 15 proceeding; and various regulations, policies, and procedures of the defendants. The parties have filed cross-motions for summary judgment on Counts I and II, and defendants have filed a motion to dismiss Counts III and IV. The motions have been fully briefed and oral argument has been held. For the reasons that follow, defendants' motions will be granted and plaintiff's motion will be denied.
On April 14, 2012, a formal squadron ball was held on the base of Fort Drum, New York. AR 330. At that time, Downey was serving as the commander of the 6th Squadron, 6th Calvary, 10th Combat Aviation Brigade at Fort Drum, AR 330, 336, and was the commanding officer at the ball, AR 91. Between roughly 11:00 p.m. and midnight, Chief Warrant Officer Aaron Simbro ("Simbro") alerted Downey to what he thought appeared to be a crowd gathering around the dance floor and photographing a lesbian couple, Captain Katherine Robinson ("Robinson") and Second Lieutenant Heather Parsons ("Parsons"), who were dancing and possibly engaging in an inappropriate public display of affection. AR 218, 330. Downey quickly made his way towards the couple and, in the process, he reached out and open-handedly attempted to push down the cameras of two soldiers in his path whom he thought were photographing the couple. AR 218, 330-31, 414, 611. One of those individuals, Specialist Jeremy Reuter ("Reuter"), was sufficiently pushed off balance from the force of Downey's thrust to wind up lying prone on the floor. AR 218, 224, 330-31. It is undisputed that Reuter's nose was cut when the camera hit his face. AR 415, 611. Downey's intention in attempting to push down the cameras had been to stop any further photographing of the couple. AR 218, 333, 611. After his impact with Reuter, Downey reached the lesbian couple and briefly told them to alter their behavior. AR 218, 332. He then stepped off the dance floor without waiting to determine whether his order had been followed and began explaining the situation to Captain Thomas Jones, who had witnessed the incident and asked what happened. AR 331-32. After Downey explained that he thought Reuter had been taking inappropriate pictures of Robinson and Parsons, Jones immediately retrieved Reuter's camera and reviewed the last 20 to 30 photographs; however, he found none of them captured inappropriate conduct and most of them were actually of Jones and his wife, Captain Samantha Jones, as they had asked Reuter to photograph them as they were dancing. AR 225, 331.
By this time, Captain Samantha Jones and some others had moved Reuter out-side of the hall where they observed his nose starting to swell. AR 225, 331, 415-16, 611. Downey left the hall and met Reuter and the others, apologizing to Reuter and explaining that he had not intended to injure Reuter; rather, he had only meant to prevent potentially inappropriate
Shortly after Downey left the ballroom, an altercation arose on the dance floor between Robinson and Command Sergeant Major Patrick McGuire ("McGuire"). AR 332. According to Robinson and Parsons, McGuire called Robinson an "abomination," stated that their actions were against regulations, and referenced the Don't Ask, Don't Tell policy ("DADT"). Id. Robinson responded that DADT had been repealed months earlier, in September. AR 373. Their heated exchange escalated until finally McGuire shoved Robinson with enough force to move her backwards and to make an audible "thump" when his hands made contact with her body. AR 332, 334.
After apologizing to Reuter, Downey returned to the ballroom to check on Robinson and Parsons, but neither of them mentioned the altercation with McGuire. AR 611. Downey found out about that altercation the following day. AR 333, 611. Between his arrival at the ball at 5:00 p.m. and the beginning of the relevant events around 11:00 p.m., Downey had consumed six alcoholic beverages. AR 219, 611. Reuter had also consumed five or six alcoholic drinks by the time the incident with Downey occurred. AR 404-05.
Four days after the events at the ball, on April 18, 2012, Downey's superior officer, Milley, appointed Colonel Paul Schlimm ("Schlimm") to investigate what happened at the ball. AR 330, 336. On April 23, Milley suspended Downey from duty and issued a "no contact" order preventing him from having any contact with members of his unit. Am. Compl. ¶ 91. Schlimm conducted an extensive investigation during which he obtained the sworn testimony or statements of 34 witnesses to the events at the ball, including statements from Downey, Reuter, Robinson, Parsons, and Simbro. AR 309-14, 332. Schlimm also interviewed all the wait staff on duty during the ball, although none saw the incident at issue. AR 523-24. In addition to investigating the incident between Downey and Reuter, Schlimm also inquired into the subsequent incident between McGuire and Robinson, as well as the alcohol situation at the ball and the implementation of DADT in Downey's unit. AR 332, 334-36. Among the hundreds of pages of documentation gathered by Schlimm during his investigation, see AR 309-629, was the preliminary diagnosis that Reuter had suffered a concussion and fractured nose, which was reflected on his "After Care Instructions" from the hospital, AR 409-11. These instructions summarized the symptoms typically associated with such injuries; advised on how to manage those symptoms, including using ice to reduce nasal swelling; directed Reuter to follow up with his unit's physician assistant, Justin Overholt, on Monday, April 16, 2012; and explained that Reuter would be notified if the radiologist's final report on Reuter's x-rays differed significantly from the preliminary report and diagnosis. AR 410.
After completing his investigation, Schlimm presented his report to Milley on May 4, 2012, recommending, among other things, that Downey "receive an Article 15 for the offense of assault consummated by a battery and be relieved from command." AR 336. A deputy staff judge advocate reviewed Schlimm's investigation report and found that "the Report complies with legal requirements, the evidence supports
Downey was advised that Milley was considering whether Downey should receive punishment for three offenses: (1) assault consummated by a battery, (2) disorderly conduct, and (3) obstruction of justice.
The Article 15 hearing took place on May 30, 2012. Am. Compl. ¶ 151. Because a non-judicial proceeding is non-adversarial,
Non-judicial proceedings are conducted largely at the direction of the imposing commander who determines, for example, whether the soldier or the spokesperson may examine or cross-examine witnesses and what witnesses are reasonably available for the proceeding. Army Reg. 27-10 ¶ 3-18(h) (Oct. 3, 2011). Formal rules of evidence do not apply, and the commander may consider any evidence he reasonably believes to be relevant to the charges at issue. Id. ¶ 3-18(j). After considering all of the evidence, the commander may only find the soldier guilty if he is convinced beyond a reasonable doubt that the soldier committed the offense charged. Id. ¶ 3-18(l).
Following a five-hour hearing, Milley adjudicated Downey guilty of assault consummated by a battery but sentenced him to no punishment. Am. Compl. ¶ 151; AR 59-60. Pursuant to Army regulations, a copy of the Article 15 record was placed in Downey's military personnel file, but only in the restricted section. Army Reg. 27-10 ¶ 3-37 (Oct. 3, 2011). The disorderly conduct charge was dismissed and Downey was found not guilty of obstruction of justice. AR 59. Through counsel,
On June 4, 2012, the same day the Article 15 decision was issued, Milley imposed an administrative reprimand (General Officer Memorandum of Reprimand or "GOMOR") on Downey for violating the repeal of DADT by "wrongfully and unfairly singl[ing] out a same sex couple for kissing and dancing together at the Squadron Ball." AR 12.
Also on June 4, 2012, Milley relieved Downey of his command pursuant to the regulation permitting such decisions when a superior commander "loses confidence in a subordinate commander's ability to command due to misconduct, poor judgment, the subordinate's ability to complete assigned duties, or for other similar reasons [including the performance of an informal investigation under Army Reg. 15-6]." Army Reg. 600-20 ¶ 2-17 (Mar. 18, 2008).
AR 6 (signed by Milley in August 2012).
On July 19, 2012, an administrative elimination board was convened to determine whether Downey should be separated from the Army based on the derogatory activity reported in his relief for cause OER. AR 40-44. That board found that the allegations of derogatory activity and of conduct unbecoming an officer were not supported by a preponderance of the evidence. AR 44. Accordingly, the board recommended that Downey be retained on active duty, a decision consistent with Milley's conclusion. AR 44, 55. This decision did not result in Downey being reinstated to his command position; it merely permitted him to remain in the Army.
Downey suffered other consequences, including being removed from the National War College attendance list, being repeatedly passed over for promotion, and being put on a list to be considered for early retirement, as a result of the Article
On August 16, 2013, Downey, through counsel, petitioned the ABCMR, which is the highest level of administrative review in the Army, to remove the Article 15 record from his personnel file on the ground that such removal was "necessary to correct an error or remove an injustice."
Before the ABCMR, Downey focused on an x-ray report showing that it was later determined that Reuter's nose had not actually been fractured. See Pl.'s Opp'n to Defs.' Mots. and Cross-Mot. Summ. J. ("Pl.'s Opp'n"), Ex. 1 [Dkt. No. 36]. Downey discovered this report after his Article 15 and presented it to the ABCMR as part of his application for relief. Am. Compl. ¶ 129. Nevertheless, the Board concluded that the record evidence demonstrated that Downey had committed an assault consummated by a battery in violation of the UCMJ by unlawfully striking Reuter "on his face with a camera which he pushed into his face."
On November 27, 2013, Downey submitted additional documentation to the ABCMR, and requested that the ABCMR remove the relief for cause OER from his personnel file. AR 3-18. By letter dated December 23, 2013, the ABCMR responded, slating that it could not treat the OER as an additional issue in his original ABCMR proceeding because that proceeding had been closed in October 2013. The ABCMR further informed Downey that he could not apply to the ABCMR for relief regarding the relief for cause OER until he exhausted his administrative remedies by presenting his request to the Department of the Army Suitability Evaluation Board or appropriate ASRB. AR 1-2; see also Army Reg. 623-3 ¶ 6-7(i) (Aug. 10, 2007).
Following his unsuccessful appeal to the ABCMR, Downey filed this lawsuit, His Amended Complaint contains four counts:
Plaintiff seeks reversal of the ABCMR's decision and a declaration that the defendants violated plaintiff's fundamental rights, as well as an order: enjoining defendants from instituting separation proceedings against plaintiff pending the out-come of this action, directing defendants to remove the Article 15 and the relief for cause Officer Evaluation Report from plaintiff's personnel file, and requiring the ABCMR to restore plaintiff to the position he would have had absent the wrongful findings. Alternatively, plaintiff seeks an order directing a Special Selection Board to convene to restore plaintiff to the position he held before the events underlying his claims. Lastly, he seeks an award of reasonable attorneys' fees and costs under the Equal Access to Justice Act. Each party has moved for summary judgment on Counts I and II. Defendants have also moved for the dismissal of Counts III and IV for failure to state a claim upon which relief can be granted.
Counts I and II state claims under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. Defendants contend that the ABCMR's decision satisfies the standards set forth in the APA and should therefore be upheld. Plaintiff responds that the Board's decision should be reversed as arbitrary, capricious, and unsupported by substantial evidence.
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). Decisions of the
For an ABCMR decision to be found invalid under the APA, the decision must be "arbitrary, capricious, contrary to law, or unsupported by substantial evidence," Portner v. McHugh, 395 Fed. Appx. 991, 992 (4th Cir.2010) (per curiam); Randall v. United States, 95 F.3d 339, 348 (4th Cir.1996); 5 U.S.C. § 706(2)(A), (E), or "contrary to constitutional right, power, or privilege," 5 U.S.C. § 706(2)(B). "In determining whether agency action was arbitrary or capricious, the court must consider whether the agency considered the relevant factors and whether a clear error of judgment was made." Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir.2009) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). "Deference is due where the agency has examined the relevant data and provided an explanation of its decision that includes `a rational connection between the facts found and the choice made.'" Id. (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)).
The APA also "includes `the same kind of `harmless-error' rule that courts ordinarily apply in civil cases.'" Bechtel v. Admin. Review Bd., 710 F.3d 443, 449 (2d Cir.2013) (quoting Shinseki v. Sanders, 556 U.S. 396, 406, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009)); see 5 U.S.C. § 706 ("[D]ue account shall be taken of the rule of prejudicial error."). "As incorporated into the APA, the harmless error rule requires the party asserting error to demonstrate prejudice from the error." Friends of Iwo Jima v. Nat'l Capital Planning Comm'n, 176 F.3d 768, 774 (4th Cir.1999) (quoting Air Canada v. Dep't of Transp., 148 F.3d 1142, 1156 (D.C.Cir.1998)). "If a party fails to carry that burden, the agency's decision must be upheld." Id.
The Secretary of the Army, acting through the ABCMR, "may correct any military record ... when the Secretary considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a)(1).
Counts I and II of the Amended Complaint challenge the ABCMR's decision under the APA. Specifically, Count I alleges that the ABCMR decision was arbitrary, capricious, and/or unsupported by substantial evidence, and Count II alleges that the decision "failed to address and correct" purported "due process violations" in the underlying Article 15 proceeding. Am. Compl. ¶¶ 227-43; see 5 U.S.C. § 706(2)(A)-(B), (E).
Although Downey has raised arguments challenging every aspect of the Board's decision, the primary issue presented is quite narrow: whether the ABCMR was justified in finding that Downey had not met his burden of proving an error or injustice and thereby denying his request to correct or remove the Article 15. The record of Downey's Article 15 stated that he was guilty of assault consummated by a battery for unlawfully striking Reuter "on his face with ... a camera which [Downey] pushed into his face." AR 59. The Board found that the record evidence supported the conclusion that Downey had indeed unlawfully struck Reuter by pushing a camera into his face. AR 27-28. Based on that finding, the Board concluded there was no error or injustice to correct.
The record reflects that the ABCMR's decision was supported by substantial evidence and that the Board's written opinion made a "rational connection" between that evidence and its conclusion. Ohio Valley, 556 F.3d at 192 (quoting State Farm, 463 U.S. at 43, 103 S.Ct. 2856). Through counsel, Downey submitted to the Board a 30-page memorandum in support of removing the Article 15, and he enclosed over 150 pages of evidence, including some of the sworn testimony gathered by Schlimm during the investigation, Schlimm's report of his findings and recommendations, and an x-ray report regarding Reuter's injury that Downey had obtained after his Article 15 hearing. In its written decision, the Board summarized its review of all the evidence before it. AR 21-26. This evidence included the verbatim testimony of numerous witnesses who all agreed that Downey intentionally made contact with the camera that Reuter was holding and that the force of Downey's contact caused the camera to hit Reuter's nose and caused Reuter to lose his balance. See, e.g., AR 414 (testimony of Samantha Jones); AR 439 (testimony of Nicholas Wood); AR 517 (testimony of Dustin Tagliaboski); AR 526-27 (testimony of Thomas McHale II). Most importantly, in Downey's sworn statement, he admits that he "pushed down" Reuter's camera and "[i]n the process, SPC Reuters [sic] camera struck him in the nose and as a result, he stumbled backwards to the floor and was somehow injured." AR 218.
Under the UCMJ, the offense of assault consummated by a battery is defined as
Similarly, there is more than substantial evidence in the record that the "unlawful force" element was satisfied. Force is unlawful if used "without legal justification or excuse and without the lawful consent of the person affected." Manual for Courts-Martial, Pt. IV ¶ 54(c)(1)(a). Unlawful force can occur through either an intentional or culpably negligent act or omission. Id. ¶ 54(c)(1)(b)(ii). Moreover, even if the use of force is justified or excused, using "more force than is required" constitutes an assault consummated by a battery. Id. ¶ 54(c)(2)(c). As Milley stated in a reprimand letter, Downey "had many alternative ways to address what [he] believed to be inappropriate conduct without assaulting a junior enlisted Solider under [his] command."
Downey argued before the ABCMR that injuring Reuter was accidental, which should excuse him from the assault charge. His accident defense was also properly rejected because there is no dispute that he intentionally made contact with the camera while Reuter was holding it in an attempt to stop what he assumed were inappropriate photographs from being taken. AR 218; Am. Compl. ¶ 60. Downey
Downey has argued that the decision of the Board failed to address all of the issues he raised in his 30-page, single-spaced application. The Board was not required to address in writing every argument attacking the Article 15 proceeding raised in that application because none of those arguments could alter the outcome that there was clearly enough record evidence to satisfy the two elements of the offense reflected in the Article 15. In fact, "[e]ven when an agency explains its decision with less than ideal clarity, a reviewing court will not upset the decision on that account if the agency's path may reasonably be discerned." Nat'l Elec. Mfrs. Ass'n v. U.S. Dep't of Energy, 654 F.3d 496, 514-15 (4th Cir.2011) (internal citation omitted). This approach is especially valid given the added deference due to military boards of correction. Cone, 223 F.3d at 793. Under this deferential standard, and given the substantial evidence demonstrating that Downey's Article 15 record was not untrue or unjust, the ABCMR's decision was not arbitrary, capricious, an abuse of discretion, or otherwise in violation of law.
None of Downey's other claims in Counts I and II alters this conclusion. For example, in Count II, Downey claims that the ABCMR failed to address and correct alleged due process violations that occurred during his Article 15 proceeding, thereby rendering the Board's decision contrary to applicable regulations. Specifically, he complains that he was not found guilty beyond a reasonable doubt; he was not given the opportunity to present a full defense to the charges; exculpatory evidence, including the x-ray report showing Reuter did not have a fractured nose, was not considered; and he was not given the notes of those who were present during the Article 15 proceeding, which hindered his ability to appeal the findings. Am. Compl. ¶¶ 237-43.
Contrary to Downey's contentions, the ABCMR found that the Article 15 proceeding was procedurally sufficient and "conducted in accordance with law." AR 28. Specifically, the Board found that Downey was provided an attorney with whom he consulted before having to decide whether to proceed with the Article 15 or elect trial by court-martial, and he was given the opportunity to demand a trial by court-martial. AR 28. He was also afforded the right to appeal the Article 15 findings to the next superior authority (FORSCOM), which appeal was denied, AR 28, and was able to defend himself during the Article 15 by submitting his own version of events in writing, calling witnesses, including Simbro and Justin Overholt, and submitting
Finally, in Count I, Downey complains that the Board applied the wrong standard of review. Rather than requiring him to prove that the record of his Article 15 was untrue or unjust by a preponderance of the evidence, as is appropriate under Army Reg. 15-185 ¶ 2-9 (Mar. 31, 2006), the Board held him to a clear and convincing evidence standard, AR 26-27. This was harmless error as the Board found that there was "no evidence" of error or injustice. AR 28. Given the substantial evidence supporting his Article 15, Downey could not have met his burden of proof even under the lower preponderance standard. For these reasons, defendants' motion for summary judgment on Counts I and II will be granted.
To survive a Fed.R.Civ.P. 12(b)(6) motion to dismiss, a complaint must allege facts that "state a plausible claim for relief" and "are sufficient to raise a right to relief above the speculative level." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Although a plaintiff "need not forecast evidence sufficient to prove the elements of the claim," the complaint must "allege sufficient facts to establish those elements." Id. (quoting Robertson v. Sea Pines Real Estate Cos., 679 F.3d 278, 291 (4th Cir.2012)) (internal quotation marks omitted). Thus, "a formulaic recitation of the elements of a cause of
In evaluating whether a plaintiff has successfully "nudg[ed] [his] claims across the line from conceivable to plausible," a court must "accept the truthfulness of all factual allegations," Burnette v. Fahey, 687 F.3d 171, 180 (4th Cir.2012) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955); however, "the court need not accept the [plaintiff's] legal conclusions drawn from the facts, nor need it accept as true unwarranted inferences, unreasonable conclusions, or arguments." Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir.2009) (internal quotation marks omitted), "Dismissal for failure to state a claim is proper where it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Randall, 95 F.3d at 343 (internal quotation marks omitted).
Lastly, "[a]lthough as a general rule extrinsic evidence should not be considered at the 12(b)(6) stage, [the Fourth Circuit has] held that when a defendant attaches a document to its motion to dismiss, a court may consider it in determining whether to dismiss the complaint [if] it was integral to and explicitly relied on in the complaint and [if] the plaintiffs do not challenge its authenticity." Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.2004). Under this standard, the administrative record is deemed incorporated into Downey's Amended Complaint because it is integral to this action and its authenticity is not at issue.
In Count III, Downey claims that defendants' actions deprived him of his right to due process based on alleged defects in how his Article 15 proceeding was conducted. Am. Compl. ¶¶ 246-55. In Count IV, he challenges the defendants' regulations, policies, and procedures, claiming that they deprive an accused, including himself, the right to due process by failing to allow access to notes and transcripts upon which to base an appeal; failing to provide a right to counsel when waiving the right to a trial by court-martial; failing to provide a fair opportunity to be heard before the ABCMR; and denying liberty and property without due process. Am. Compl. ¶¶ 258-61. Defendants have moved to dismiss Counts III and IV on the ground that both counts raise non-justiciable issues and that, even if the issues were justiciable, these counts fail to state a claim because Downey has not pointed to any deprivation of a cognizable liberty or property interest.
Relying on the reasoning in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), which has been adopted by the Fourth Circuit, Downey contends that Counts III and IV are justiciable and that his allegations sufficiently satisfy the threshold pleading requirements to defeat dismissal. To avoid dismissal under the Mindes framework for determining whether a federal court should review an internal military decision, two threshold requirements must be satisfied. "First, there must be an `allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations.'"
Defendants characterize Counts III and IV as seeking direct review of the Article 15 proceeding in this Court and argue that such review is impermissible under Brannum v. Lake, 311 F.3d 1127 (D.C.Cir. 2002). In Brannum, the plaintiff, an Air Force member charged with being absent without leave, had chosen to proceed "by way of non-judicial punishment in lieu of trial by court martial." Id. at 1129. He was found guilty of that charge and demoted one rank as a result. Id. In his lawsuit, the plaintiff claimed, among other things, that his rights had been violated by numerous procedural defects in his non-judicial punishment, such as his case having been pre-judged and having been denied copies of the evidence used against him. Id. He sought an injunction setting aside his non-judicial punishment. Id. The D.C. Circuit rejected this claim, relying on Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), explaining that "[t]he acts of a court martial, within the scope of its jurisdiction and duty, cannot be controlled or reviewed in the civil courts, by writ of prohibition or otherwise."
Although Downey failed to distinguish or even address Brannum, other courts, including the Fourth Circuit, have not taken such a limited approach to reviewing non-judicial proceedings under Article 15 and instead will consider claims solely alleging procedural defects. See, e.g., Murphy
The factual allegations underlying Count III do not plausibly support any of these procedural claims, particularly in light of the evidence in the administrative record. See Am. Compl. ¶¶ 142-81 (describing Downey's Article 15 proceeding). Downey was in fact able to call witnesses and present evidence, as both Justin Overholt and Simbro testified in his favor. Id. ¶¶ 164-65. As the unit's physician assistant, Overholt had performed a follow-up examination of Reuter within 36 hours of his trip to the emergency room and, based on that examination, he believed that Reuter's nose was not fractured. AR 66; Am. Compl. ¶¶ 123-26. Although Downey alleges that Milley disregarded these witnesses' testimony, id. ¶¶ 164-65, Milley had the authority as the decision maker and fact finder to afford each witness's testimony as much or as little weight as he saw fit. In contrast to his claims that he did not have a reasonable opportunity to speak or defend himself or to present evidence, Downey did speak on his own behalf at the hearing and also submitted multiple letters of support and a sworn written statement providing his version of events and his reasons for taking the actions he did.
Downey further claims that his election of non-judicial punishment and his waiver of the right to counsel were not knowing, voluntary, and intelligent. There is no basis in the record supporting these claims. "Article 15 is an `administrative method of dealing with the most minor offenses,' thus, the fifth and sixth amendment rights applicable to criminal proceedings do not apply to Article 15 proceedings." Dumas v. United States, 620 F.2d 247, 252 (Ct.Cl.1980) (quoting Middendorf, 425 U.S. at 31-32, 96 S.Ct. 1281). Army Regulations do provide the right to have a spokesperson present during an Article 15 who may be an attorney; however, Downey chose not to exercise this right. Downey also claims that his election of non-judicial punishment was not knowing, voluntary, and intelligent because the waiver was conducted without his counsel's presence. Pl.'s Opp'n 37. This argument is meritless. Downey had the right to consult with counsel, and did consult with appointed military counsel, before going into the hearing at which he chose to waive trial by court-martial. His decision not to bring his military counsel with him into the hearing as his spokesperson does not constitute a violation of any rights. Moreover, it is completely implausible that Downey, as a Lieutenant Colonel and squadron commander authorized to administer non-judicial punishment to his subordinates, was unaware of the contours of the Article 15 proceeding he was choosing.
Finally, Downey claims that he was denied access to notes of others who were at the Article 15 hearing. Downey points to no regulation requiring such access. Moreover, as nonadversarial, non-judicial proceedings, Article 15 proceedings are not transcribed or recorded; the only record of the proceeding is the DA Form 2627, which Downey received. See Army Reg. 27-10 ¶¶ 3-36 to 3-37 (Oct. 3, 2011).
The above analysis comports with the Mindes framework for determining whether a court should review a military decision. Downey's claims in Counts III and IV fail the first threshold requirement that "there must be an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations." Guerra, 942 F.2d at 276 (internal quotation marks omitted). The Count III claims alleging violations of Army Regulations are unsupported and implausible in light of the allegations in the Amended Complaint and the record evidence showing that the regulations cited were in fact followed.
In Count IV, Downey claims that the regulations, policies, and procedures themselves violated his constitutional right to due process. To state a procedural due process claim, a plaintiff must plausibly allege an actual deprivation of a protected liberty or property interest. Kendall v. Balcerzak, 650 F.3d 515, 528 (4th Cir.2011). Downey has failed to do so. Downey was neither discharged nor demoted; instead, the only actual deprivations Downey experienced were being removed from the National War College ("NWC") attendance list, being relieved from command, and his stigmatization as an assaulter. Pl.'s Opp'n 39. The first two deprivations are insufficient to support a due process claim because there is no protected liberty or property interest in NWC attendance or a command position. Cf. Wilhelm v. Caldera, 90 F.Supp.2d 3, 8 (D.D.C.2000) (collecting cases holding that there is no right to continued military service or its attendant benefits and privileges), aff'd, 6 Fed.Appx. 3 (D.C.Cir.2001). Similarly, Downey's allegation of being stigmatized does not satisfy the requirements
In both Counts II and III, Downey raises claims regarding unlawful command influence ("UCI") based on concerns over the adverse media attention the incidents at the ball garnered in the wake of the repeal of DADT. Specifically, Downey claims that UCI tainted the Article 15 investigation and hearing and also tainted "[a]ll proceedings concerning" him, presumably including the ABCMR's decision.
Lastly, Downey referenced for the first time in this litigation a September 2012 New York Times article
For these reasons, Downey's UCI claims fail under both the summary judgment and motion to dismiss standards of review.
As summarized in seven pages in his Amended Complaint, Downey had an exemplary military record before the events in April 2012. He served three combat tours of duty and earned three Bronze Stars and seven Air Medals, including an Air Medal with a distinction for valor in combat. Am. Compl. ¶¶ 14-15, 22. In addition, he was selected to serve as the Presidential Airlift Coordinator for the White House between 2008 and 2010; held various command positions during his career; received consistently exemplary OERs; and received numerous glowing evaluations by commanding officers. See Am. Compl. ¶¶ 18-21, 23-24, 26, 30.
That record is not relevant to the issues before this Court. As discussed above, the informal Article 15 proceeding that Downey knowingly and voluntarily chose was conducted properly, and the ABCMR's affirmance of that proceeding was neither arbitrary, capricious, contrary to law, nor unsupported by substantial evidence. Moreover, Downey was not denied due process because the process he was due was in fact followed and he was not deprived of any constitutionally recognized liberty or property interest. For these reasons, the defendants' motions to dismiss and for summary judgment will be granted by an Order to be issued with this Memorandum Opinion.
Army Reg. 600-20 ¶ 2-17 (Mar. 18, 2008).
Further, although Downey is correct that AR 207 states that "documents are missing," the document referenced by that notation is a character reference letter written on behalf of Downey by James L. Terry, which appears elsewhere in the record. See AR 205-08 (skipping from Enclosure 24 to Enclosure 26); AR 96 (indicating that Plaintiffs "Enclosure 25" to the ABCMR was the Terry letter); AR 264 (letter by Terry entitled "Character Reference").
Guerra, 942 F.2d at 276 (quoting Mindes, 453 F.2d at 201-02).
Schlesinger, 420 U.S. at 746, 95 S.Ct. 1300 (internal quotations marks, citations, and footnote omitted). The Court went on to state that "it must be assumed that the military court system will vindicate servicemen's constitutional rights." Id. at 758, 95 S.Ct. 1300.
