The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BABATU M. RUDO, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-02172 (GK)
)
JOHN McHUGH, )
Secretary of the Ar.my )
)
Defendant. )
_____________________________ )
MEMORANDUM OPINION
Babatu Rudo 1 ("Plaintiff" or "Rude"), a former service
member in the United States Army ("Army") , brings this action
pursuant to the Administrative Procedure· Act ("APA"), 5 U.S.C.
§§ 701 et seq. and the Fifth Amendment's Due Process Clause
against John McHugh ("Defendant") , Secretary of the Army,
challenging the Army Board for Correction of Military Records'
( "ABCMR" or "Board") decision regarding the characterization of
his discharge from the Army.
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
1
In 1988, Plaintiff legally changed his name from Fred Myers to
Babatu Rude. Administrative Record ("AR") at 256 [Dkt. No. 8].
the reasons set forth below, Defendant's Motion is granted and
Plaintiff's Motion is denied.
I . BACKGROUND
A. Regulatory Framework
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
2
Record ("AR") at 66 (Army Regulation ("A.Reg.") 635-200, 635-212
~ 1) . A discharge for unsuitability was proper if the soldier
exhibited any one of the following conditions: "(1) Inaptitude,
(2) Character and behavioral disorders, (3) Apathy (lack of
appropriate interest), defective attitudes and inability to
expend effort constructively, ( 4) Alcoholism, ( 5) Enuresis
(bedwetting), or (6) Homosexuality." AR at 67 (A.Reg. 635-212 ~
(6)(b)).
2
On April 1, 2010, Defendant filed an Administrative Record in
support of his First Motion for Summary Judgment consisting of
427 pages, numbered 1 through 427. On June 29, 2012, Defendant
filed a Supplemental Administrative Record in Support of his
present Motion to Dismiss or, in the Alternative, for Summary
Judgment consisting of 61 pages, numbered 428 through 489 [Dkt.
No. 34]. See, infra, Section I.C. (discussing in detail the
procedural background of this matter) . Because Defendant
continued the sequential pagination . of the Supplemental Record
beginning with page 428j the Court will reference the original
Administrative Record and the Supplemental Record collectively
as the "Administrative Record" or "AR."
- 2 -
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).
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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).
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I'
The commanding officer overseeing the d1scharge 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. 11
Pl. 's App. at 9
(A.Reg. 635-212). This statement read:
I understand that I may expect to encounter
substantial prejudice in civilian life in the event a
general discharge under honorable conditions is issued
to me. I further understand that as the result of
issuance of an undesirable discharge under conditions
other than honorable, I may be ineligible for many or
all benefits as a veteran under both Federal and State
laws, and that I may expect to encounter substantial
prejudice in civilian life.
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, 11
effectively ending his service in the
Army. Id. at 10 (A.Reg. 635-212 ~ 23).
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B. Factual Background 3
Plaintiff served in the Army from September 1966 until
November 1968. Complaint ("Compl.") 4
~~ 1, 21 [Dkt. No. 1].
During his tenure with the Army, Plaintiff received several non-
judicial punishments under Article 15 of the Uniform Code of
Military Justice 5 for infractions such as visiting "off-limits"
bars while in Vietnam, smoking marijuana, and going "absent
without leave" or "AWOL." Id. ~~ 7, 9-11.
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-
3
The following facts are drawn from the Factual Background
section of the District Court's March 24, 2011 Memorandum
Opinion [Dkt. No. 22 at 4 -7] . The facts as set forth in that
Opinion are referenced by both parties and, unless otherwise
noted, they are not in dispute. See Defendant's Statement of
Facts ("Def.'s Statement") [Dkt. No. 35-3]; Plaintiff's
Statement of Facts (Pl.'s Statement") [Dkt. No. 41-2] .
4
On November 16, 2009, Plaintiff filed his Complaint. On March
16, 2012, Plaintiff filed an Amended Complaint [Dkt. No. 25] .
While styled as an Amended Complaint, the Court considers it a
Supplemental Complaint because Plaintiff "reasserts his other
claims held in abeyance by the Court," incorporating the facts
and claims originally asserted. Amended Complaint ("Am. Compl.")
~ 51. Accordingly, the Court, like the parties, refers to both
complaints.
5
A reprimand under Article 15 of the Uniform Code of Military
Justice is a form of non-judicial military punishment that
permits commanders to administratively discipline a service-
member without a court-martial. See 10 U.S.C.A. § 815(a).
- 6 -
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:
[Plaintiff] gives a history of marked social
inadaptability prior to and during service. He has
been arrested at least four times for such offenses as
disorderly conduct and under-age drinking. He joined
the Army in September 1966 after he had impregnated
one of his girlfriends and was not willing to pay the
doctor's bill. While in the Army he has amassed
several Articles 15 for such offenses as missing
formation, going to an off limits bar in Vietnam,
having possession of illegal drugs and AWOL. He uses
poor judgment, is not committed to any productive
goals and is completely unmotivated for further
service.
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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).
- 8 -
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. " 6 Def. 's Statement ~~ 27-
30. The VA denied his requests for benefits because it
determined that Plaintiff's "drug dependence and mental problems
. were not service connected disabilities under the law." 7
Id. ~ 29.
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
6
A veteran is ineligible for VA healthcare or disability
compensation unless an injury or illness is "service-connected,"
or the veteran otherwise qualifies due to his indigent status.
See 38 C.F.R. § 3.303.
7
At the time of his discharge, Plaintiff's mental health issues
were considered to be a "pre-service" disability. A personality
disorder diagnosed in military health records may be considered
a "pre-service," or a pre-existing condition and therefore not
an illness or injury that is service-connected. 38 C.F.R. §
3.303(c).
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( "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 which Plaintiff had
filed his first claim for service-connected PTSD. Id. at 10,
217-18, 229-33.
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. 8
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
8
The system of awarding disability benefits in the ABCMR and the
VA are distinct and based on separate calculations. Powell v.
Marsh, 560 F.Supp. 636, 641 (D.D.C. 1983). "The VA's rating is
based on the applicant's current disability. By contrast, the
ABCMR is charged with determining what disability rating would
have been appropriate at the time of the applicant's discharge
from the Service." Id. Accordingly, "[i] t is well established
that a VA determination of extent of disability at some post-
discharge date, is not binding upon the ABCMR." Id.
- 10 -
VA and Army records. Id. ~ 40.
C. Procedural Background
1. ABCMR's Decision upon Reconsideration
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 I 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.
- 11 -
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.
2. District Court's March 2011 Opinion
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 for the limited purpose of addressing
Plaintiff's due process claim. Order (March 24, 2011) [Dkt. No.
21] . The Court further ordered that Plaintiff's "APA claims
challenging the characterization of his 1968 military discharge
are held in abeyance." Id.
- 12 -
3. ABCMR's Decision on Remand
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.
4. Motions Presently Before the Court
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].
- 13 -
On February 28, 2013, Plaintiff filed his Reply in Support of
his Cross-Motion [Dkt. No. 48].
II. STANDARD OF REVIEW
A. Judicial Review of Military Correction-Board Decisions
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
(1988)).
Courts review military correction-board decisions under an
"unusually deferential application of the arbitrary or
- 14 -
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." 9 Kreis,
866 F.2d at 1515.
To survive judicial review, the military agency's decision
"must give a reason that a court can measure, albeit with all
due deference, against the 'arbitrary or capricious' standard of
the APA." Id. at 1514-15. A court "will not disturb the decision
of an agency that has examined the relevant data and articulated
a satisfactory explanation for its action including a rational
connection between the facts found and the choice made." MD
9
In reaching this determination, the Court of Appeals reasoned
that, "[w]hile the broad grant of discretion [under the statute]
implicated here does not entirely foreclose review of the
Secretary's action, the way in which the statute frames the
issue for review does substantially restrict the authority of
the reviewing court to upset the Secretary's determination"
because "[i]t is simply more difficult to say that the Secretary
has acted arbitrarily if he is authorized to act 'when he
considers it necessary to correct an error or remove an
injustice,' 10 U.S.C. § 1552(a), than it is if he is required to
act whenever a court determines that certain objective
conditions are met, i.e., there has been an error or injustice."
Kreis, 866 F.2d at 1514 (emphasis in original).
- 15 -
Pharm., Inc. v. Drug Enforcement Admin., 133 F.3d 8, 16 (D.C.
Cir. 1998) (internal quotation marks omitted).
B. Judicial Review of Constitutional Challenges to Agency
Actions
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).
III. ANALYSIS
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.
- 16 -
13] . 10 Plaintiff also claims that "[t]he 1968 discharge
proceedings violated minimum constitutional due process." Pl.'s
Cross-Mot. for Summ. J. at 11.
A. The ABCMR' s Decision to Uphold Plaintiff's Discharge
Characterization Was Not Arbitrary or Capricious
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 delegation of the psychiatric examination
process to the commander."). Defendant responds that "[t]he
ABCMR properly concluded [that] Plaintiff's misconduct and
military performance records supported the discharge [that] he
10
Plaintiff's present Cross-Motion for Summary Judgment only
addresses his due process claim and "refers the Court to those
parts of his prior pleadings on the other issue[] [held in
abeyance]," specifically directing the Court to his First Cross-
Motion for Summary Judgment. Pl.'s Cross-Mot. for Summ. J. at 2.
Accordingly, the Court refers to that motion for purposes of
resolving the claim that was held in abeyance.
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received." 11 Def.'s Mot. for Summ. J. at 13.
In deciding to uphold Plaintiff's discharge for
unsuitability due to apathy, the Board considered and discussed
Plaintiff's military personnel records, 12 noting that he
"received several non-judicial punishments (NJP) for offenses
including missing information, going to an off-limits bar in
Vietnam, possession of illegal drugs, and being absent without
leave (AWOL)." Id. at 9, 13.
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
11
Defendant additionally argues that "Plaintiff's [APA] claim
must be dismissed because he waived judicial review by failing
to raise the claim to the Board." Def.'s Mot. for Summ. J. at 5
(emphasis added). More specifically, Defendant contends that
"Plaintiff asked the ABCMR to consider three alternative options
in correcting his record" but "now improperly asks this Court to
consider a fourth alternative not previously presented to the
Board." Id. at 6. Defendant's argument has no merit. While
Plaintiff has introduced an additional suggestion for correcting
his record, he certainly has not raised a 'claim' that was not
previously presented to the Board. Moreover, Plaintiff's request
for relief, i.e., "that the Court set aside BCMR decision .
and remand to the BCMR for appropriate relief," was entirely
proper. Am. Compl. at 13 (emphasis added).
12
The ABCMR also considered, among other evidence, Plaintiff's:
pre-service criminal record; military medical records; post-
discharge applications for benefits; and post-discharge medical
records. AR at 5-12.
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personality with passive feature. 11
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. 11
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
serviceu 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. 11
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 11 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
- 19 -
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
misconduct and his psychiatric diagnosis, and "articulated a
satisfactory explanation for its action including a rational
connection between the facts found and the choice made," MD
Pharm., Inc., 133 F.3d at 16. Moreover, Plaintiff's significant
pattern of misconduct, especially in light of the psychiatrist's
determination that he was able to distinguish right from wrong,
at a minimum, constitutes "relevant ·evidence as a reasonable
mind might accept as adequate to support" the ABCMR' s decision.
Rossello, 529 F.3d at 1185.
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. 3d at
1515.
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B. The Army Did Not Violate Plaintiff's Due Proces·s
Rights
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." 13 Pl.'s Cross-Mot.
for Summ. J. Reply at 6 (emphasis added) . Because these
purported interests are more accurately · characterized as
property interests, the Court treats them as such.
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
13
It is worth noting that, soon after his discharge, Plaintiff
began receiving certain VA benefits and qualified for placement
in rehabilitation and counseling programs. For instance, in the
early 1970s, Plaintiff received 30% disability rating from the
VA for his leg and back problems, AR at 133, and throughout the
.1960s and 1970s, Plaintiff was admitted to several VA hospitals
and treated in twelve drug rehabilitation programs, Compl. ~ 35;
AR at 129-44, 158.
I
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deprive individuals of 'liberty' or 'property' interests."
Matthews v. Eldrige, 424 U.S. 319, 332 (1976). In order to
maintain a due process claim Plaintiff "must establish that the
government deprived him of a 1 iberty 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 (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 (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, 575 (1983)).
Therefore, a former service-member, like Plaintiff, "who
might qualify for potential future veterans' benefits," does not
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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 (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.") . 14
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. Accordingly, Plaintiff has not established a violation of
his due process rights.
14
Moreover, even assuming that Plaintiff had a property interest
in his· expectation of future VA benefits, the Administrative
Record does not support a finding that the Army deprived
Plaintiff of those benefits. Although it is correct that a
number of Plaintiff's requests for benefits were denied, those
requests were not denied because of the Army's discharge
diagnosis. Rather, the VA denied several of Plaintiff's requests
for mental health related benefits because the VA determined,
based on its own evaluations, that Plaintiff's disabilities were
not service-connected. See, e.g., AR at 172-73 (September 15,
1983 VA Decision relying on then-current VA physical and
psychiatric examinations to conclude that "[p]ost traumatic
stress neurosis was not found"). Thus, the Administrative Record
does not show that the Army "deprived [Plaintiff] of a liberty
or property interest." Chamness, 814 F. Supp. 2d at 16.
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IV. CONCLUSION
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 granted and Plaintiff's
Cross-Motion for Summary Judgment is denied.
March 20, 2013
United States District Judge
Copies to: attorneys on record via ECF
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