Rudo v. Geren

• Decision Date: 24 March 2011
• Docket Number: Civil Action No. 09–02172 (RMU).
• Citation: 818 F.Supp.2d 17
• Parties: Babuto M. RUDO, Plaintiff, v. Pete GEREN, Secretary of the Army, Defendant.
• Court: U.S. District Court — District of Columbia

818 F.Supp.2d 17

Babuto M. RUDO, Plaintiff,

v.Pete GEREN, Secretary of the Army, Defendant.

Civil Action No. 09–02172 (RMU).

United States District Court, District of Columbia.

March 24, 2011.

John A. Wickham, Evergreen, CO, for Plaintiff.

Kelly Lynell McGovern, U.S. Attorney Office for District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

Denying in Part and Holding in Abeyance in Part The Defendant's Motion for Summary Judgment; Granting in Part and Holding in Abeyance in Part the Plaintiff's Cross–Motion for Summary Judgment

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

This matter comes before the court on the parties' cross-motions for summary judgment. The plaintiff, a former servicemember, seeks judicial review pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., of the decision by the Army Board for Correction of Military Records (“ABCMR”) regarding the characterization of his discharge from the Army in 1968 as based on unsuitability grounds. The defendant argues that there is sufficient evidence in the record to support the ABCMR's holding. Because the ABCMR's decision did not address the plaintiff's due process claim, the court grants in part the plaintiff's cross-motion for summary judgment and remands that claim to the ABCMR. Further, because adjudication concerning the plaintiff's other claims is more appropriately reserved until after the ABCMR has decided the plaintiff's due process claim, the court holds in abeyance its ruling on the other plaintiff's remaining APA claims.

II. 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 Admin. R. (“A.R.”) 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: “(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.” A.R. at 67 (A.Reg. 635–212 ¶ (6)(b)).

Before removing a soldier on “unsuitability” grounds, the Army was required to establish that: (1) the soldier was unlikely to develop “sufficiently to participate in further military training and/or become a satisfactory soldier” and (2) 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 a medical evaluation and provide the medical examiners with “[s]ufficiently detailed information about the reasons for considering the individual ... unsuitable” so that they 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 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. at 69 (A.Reg. 635–212 ¶ 9). If, however, the soldier was determined to be medically unfit for service, the discharge process pursuant to “unsuitability” grounds was halted. 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 Cross–Mot. for Summ. J. (“Pl.'s Cross–Mot.”), App. at 13 (A.Reg. 635–200 ¶ 1.8) (Separation as it Affects the Individual). 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, (5) Dishonorable.” Id., App. at 12 (A.Reg. 635–200 ¶ 1.5). An unsuitability separation could be characterized as either an “Honorable or General discharge,” depending on the soldier's service record. A.R. at 66 (A.Reg. 635–212 ¶ 4(b)). Either characterization entitled a soldier to “full Federal rights and benefits,” although “an undesirable or bad conduct discharge may or may not deprive the individual of veterans' benefits administered by the Veterans Administration.” Pl.'s Cross–Mot., App. at 13 (A.Reg. 635–200 ¶ 1.8).

The commanding officer overseeing the discharge process was required under Army regulations to explain to the soldier his rights. A.R. 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 Cross–Mot., App. at 9 (A.Reg. 635–212 (Waiver Form)). This statement, in relevant part, 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,” effectively ending his service in the Army. Id., App. at 10 (A.Reg. 635–212 ¶ 23).

B. Factual Background

The plaintiff served in the Army from September 1966 to November 1968. Compl. ¶¶ 1, 2; Def.'s Statement of Material Facts (“Def.'s Statement”) ¶¶ 1, 6. The majority of this time was spent on administrative duty due to medical conditions related to his knee and leg bone. Compl. ¶ 2; Def.'s Statement ¶ 4.

During his tenure, the plaintiff received several non-judicial punishments under Article 15 of the Uniform Code of Military Justice ¹ for infractions such as visiting “off-limits” bars while in Vietnam, Compl. ¶ 7, smoking marijuana, id., and going “absent without leave” or “AWOL,” id. ¶ ¶ 9–11. In October 1968, as a result of the plaintiff's multiple reprimands pursuant to Article 15, 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; A.R. at 65–72.

In October 1968, as a part of his discharge processing, the plaintiff received a medical evaluation. A.R. at 100–103. As part of the evaluation, the plaintiff filled out a questionnaire which asked whether he suffered from certain ailments, to which he responded in the affirmative by checking the box next to the following conditions: depression, soaking sweats, shortness of breath and “nervous trouble of any sort.” Id. at 100. Although the evaluating physician determined that the plaintiff was suffering from a “back condition,” he made no other significant diagnoses or findings regarding any major medical conditions and, accordingly, referred the plaintiff for a mental health examination to determine whether the plaintiff was medically qualified for service. Id. at 100–103.

A psychiatrist in the Army's psychiatric clinic evaluated the plaintiff and diagnosed him with a “[s]ociopathic personality with passive-aggressive features.” Id. at 106; Compl. ¶ 17. The examining psychiatrist determined that the plaintiff would “not adjust to further military service and further rehabilitative efforts probably [would] be nonproductive.” Id. Specifically, the psychiatrist reported that:

[the 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.

Id. The psychiatrist concluded that the 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 ultimately recommended that the plaintiff be discharged pursuant to Army Regulation 635–212 for unsuitability. Id.

The plaintiff's medical reports were then presumably forwarded to his commander. According to the plaintiff, however, his commander failed to provide any verbal explanation as to the effects of his pending discharge. Pl.'s Cross–Mot. at 13. Instead, the plaintiff chose to waive his rights, Compl. ¶ 22; Def.'s Statement ¶ 18, and signed the standard waiver statement as described under Army Regulation 635–212, see Pl.'s Cross–Mot., App. at 9 (Waiver Form).

On November 5, 1968, after serving just over two years in the Army, the plaintiff was administratively discharged for unsuitability due to apathy, a separation under the...